Effect and Application of

Laws

The Civil Code took effect on August 30, 1950

WHEN LAWS TAKE EFFECT
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such
publication. (1a)
Taada v. Tuvera (1986):
(a) The clause "unless it is otherwise provided" refers
to the date of effectivity and not to the
requirement of publication itself, which cannot in
any event be omitted.
(b) Publication is indispensable in every case, but the
legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or
extended.
(c) EXCEPTION: interpretative regulations and those
internal in nature
IGNORANCE OF THE LAW
Art. 3. Ignorance of the law excuses no one from
compliance therewith. (2)
(a) Conclusive Presumption That everyone knows
the law, even if they have no actual knowledge of
the law
(b) Mistake of Fact & Difficult Questions of Law These may excuse a party from the legal
consequences of his conduct; but not ignorance
of law.
(c) In specific instances provided by law, mistake as
to difficult legal questions has been given the
same effect as a mistake of fact. (Tolentino)
(d) The laws referred to by this article are those of
the Philippines. There is no conclusive
presumption of knowledge of foreign laws.
(Tolentino)
RETROACTIVITY OF LAWS
Art. 4. Laws shall have no retroactive effect, unless
the contrary is provided. (3)
General Rule: All statutes are to be construed as
having only prospective operation
Exceptions
(1) When the law itself expressly provides
Exceptions to Exception:
(a) Ex post facto law
(b) Impairment of contract
(2) In case of remedial statutes
(3) In case of curative statutes
(4) In case of laws interpreting others
(5) In case of laws creating new rights [Bona v.
Briones (1918)]
(6) Penal Laws favorable to the accused
ACTS CONTRARY TO LAW

Art. 5. Acts executed against the provisions of

mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. (4a)
WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a
right recognized by law. (4a)
Waiver the relinquishment of a known right with
both knowledge of its existence and an intention to
relinquish it. [Portland v. Spillman]
Exceptions:
(1) If the waiver is contrary to law, public order,
public policy, morals or good customs
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist
(4) If the right is a natural right
REPEAL OF LAWS
Art. 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent
with the Constitution, the former shall be void and
the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution. (5a)
TWO KINDS OF REPEAL OF LAW [Tolentino]
(1) Express or Declared contained in a special
provision of a subsequent law
(2) Implied or Tacit takes place when the provisions
of the subsequent law are incompatible or
inconsistent with those of an earlier law.
JUDICIAL DECISIONS
Art. 8. Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal
system of the Philippines. (n)
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(a) Jurisprudence cannot be considered as an

independent source of law; it cannot create law.
(1 Camus 38 as cited in Tolentino)
(b) But the Courts interpretation of a statute
constitutes part of the law as of the date it was
originally passed since the Courts construction
merely establishes contemporaneous legislative
intent that the interpreted law carried into effect.
[Senarillos v. Hermosisima (1956)]
DUTY TO RENDER JUDGMENT
Art. 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or
insufficiency of the laws. (6)
Exception:
This article does not apply to criminal prosecutions
because where there is no law punishing an act, the

case must be dismissed. [Tolentino]

PRESUMPTION AND APPLICABILITY OF CUSTOM
Art. 10. In case of doubt in the interpretation or
application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
(n)
Art. 11. Customs which are contrary to law, public
order or public policy shall not be countenanced. (n)
Art. 12. A custom must be proved as a fact, according
to the rules of evidence. (n)
LEGAL PERIODS
Art. 13. When the laws speak of years, months, days
or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty
days; days, of twenty-four hours; and nights from
sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they
respectively have.
In computing a period, the first day shall be
excluded, and the last day included. (7a)
POLICY ON LAST DAY BEING A LEGAL HOLIDAY/SUNDAY
(a) If the period arises by statute or orders by the
government, the last day will automatically be
considered the next working day
(b) If the period arises from a contractual
relationship, the act will still be due on that Legal
Holiday/Sunday
APPLICABILITY OF PENAL LAWS
Art. 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
(8a)
EXEMPTIONS UNDER INTERNATIONAL LAW (THEORY OF
EXTRATERRITORIALITY):
(1) When the offense is committed by a foreign
sovereign while in Philippine territory
(2) When the offense is committed by diplomatic
representatives
(3) When the offense is committed in a public or
armed vessel of a foreign country.
CONFLICT OF LAWS
CONFLICT OF LAWS/ PRIVATE INTERNATIONAL LAW
(a) It is a branch or part of Philippine Law which
regulates the application of foreign law within
Philippine jurisdiction in the resolution of cases
involving foreign elements.
(b) It is that part of municipal law which governs
cases involving a foreign element.
(c) Private International Law is more commonly
known in other jurisdictions as conflict of laws
SOURCES

(1) Codes and statutes

(2) Treaties and international conventions

(3) Treatises, commentaries, and studies of learned

societies
(4) Judicial decisions
EXAMPLES OF CONFLICT OF LAW RULES IN THE PHILIPPINES

(1) Art. 15 CC: Lex Patriae

(2) Art. 1251 (par. 3) CC: Lex Domicili
(3) Art. 16 CC: Lex Situs/ Lex Rei Sitae
(4) Art. 17 (par. 1) CC: Lex Loci Contractus
(5) Art. 71 CC: Lex Loci Celebrationis
(6) Art. 26 (par. 1) FC: Lex Loci Celebrationis
(7) Art. 1306 CC: Lex Loci Intentionis
Art. 15. Laws relating to family rights and duties, or
to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even
though living abroad. (9a)
Most civil law countries such as the Philippines
follow the National Law Theory:
It is the nationality or citizenship of the individual,
which regulates the following:
(a) Civil status
(b) Capacity
(c) Condition
(d) Family rights and duties
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(e) Laws on Succession

(f) Capacity to succeed
According to the Supreme Court, it is a conflict of
laws theory by virtue of which jurisdiction over the
particular subject matter affecting a person is
determined by the latters nationality. [Ellis vs.
Republic (1963)]
RULE ON PROPERTY

Controlling Law Lex Situs/Lex Rei Sitae

General Rule: Real and Personal Property is subject
to the law of the country where it is situated (Art. 16)
Application of the Doctrine of Lex Situs/Lex Rei Sitae
(1) The capacity to transfer or acquire property is
governed by Lex Situs.
Note: Transfer of property to a foreigner who
subsequently became a Filipino citizen shall be
recognized [Llantino v Co Liong Chong]
(2) The formalities of a contract to convey property
are governed by Lex Situs
Exceptions to Lex Situs
(1) Transactions Not Affecting Transfer of Title or
Ownership of Land: Lex Intentionis or Lex
Voluntatis
(2) Contracts where Real Property Offered as Security:
The principal contract is the loan while the
mortgage of the land is only an accessory
(a) Mortgage - Lex Situs
(b) Loan Contract - Rules on ordinary contracts
(3) Intestate and Testamentary Succession:
Intestate and testamentary successions shall be
regulated by the national law of the decedent,

with respect to the following [Art. 16(2); Art. 1039]

(a) Order of succession
(b) Amount of succession rights
(c) Intrinsic validity of the testamentary provisions
(d) Capacity to succeed
(4) Under a Policy-centered Approach:
Forum court is not bound to look to the law of the
situs when the situs of the movable property is
insignificant or accidental
(a) Questions relating to the validity and effect of
the transfer of the movable property are
governed by the law of the place of principal
use
(b) Where the issue involves considerations other
than the validity and effect of the transfer
itself, governing law is the law of the state
which has real interest
RULE ON SUCCESSION

Extrinsic Validity [Arts. 17, 815-817, CC]

Place of
execution
Applicable law
Filipino Testator
Philippines Philippine Law
Foreign
Country
(1) Law of the place where he
may be (lex loci
celebrationis) [Art 815]
(2) Philippine law [see III
Tolentino 117]
Alien Testator
Philippines (1) Philippine Law (Art. 17)
(2) Law of the country in
which he is a citizen or
subject (lex nationali) [Art.
817]
Foreign
Country
(Arts. 816,
17)
(1) Law of the place in which
he resides (lex domicilii)
(2) Law of his country (lex
nationali)
(3) Philippine law
(4) Law of the place where
they were executed (lex
loci celebrationis)
Note: Rule re: Joint Wills
(1) Joint wills prohibited under Art. 818 executed by
Filipinos in a foreign country shall not be valid in
the Philippines even though authorized by the
laws of the country where they were executed.
(Art. 819)

(2) Civil Code is silent as to the validity of a joint will

executed by an alien in the Philippines. It is
suggested that it should not be probated if it
would affect the heirs in the Philippines.
Intrinsic Validity
Intestate and testamentary successions shall be
regulated by the national law of the decedent, with
respect to the following (Art. 16(2); Art. 1039)
(1) Order of succession
(2) Amount of successional rights
(3) Intrinsic validity of the testamentary provisions
(4) Capacity to succeed
Interpretation of Wills
Governed by the National Law of the decedent.
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Revocation
Testator Applicable Law
Will is revoked in
the Philippines
Philippine
Domiciliary
Philippine Law
Non-domiciliary
[Art. 829]
Will is revoked in a
Foreign Country
Philippine
Domiciliary
(1) Philippine Law
(2) Law of the place of
revocation (lex loci
actus)
Non-domiciliary
[Art. 829]
(1) law of the place where
the will was made
(2) law of the place in
which the testator had
his domicile at the
time of the revocation
Probate of wills
Controlling Law:
The probate of a will being essentially procedural in
character, the law of the forum (lex fori) governs.
Wills Proved and Allowed in a Foreign Country
(1) A will proved and allowed in a foreign country in
accordance with the laws of that country may be
allowed, filed, and recorded in the proper
Regional Trial Court in the Philippines (RULES
OF COURT, Rule 77, Sec.1)
(2) Requisites for Reprobate [Vda de Perez v Tolete,
232 SCRA 722]
The following must be proved by competent
evidence:
(a) due execution of the will in accordance with the

foreign laws
(b) the testator had his domicile in the foreign
country and not in the Philippines
(c) the will has been admitted to probate in such
country
(d) the laws of the foreign country on procedure and
allowance of wills
Administration of Estates
Territorial: governed by the law of the place where
the administration takes place, and that is the law of
the country from which the administrator derives his
authority.
Trusts
Extrinsic validity: Rule governing wills apply intrinsic
validity: lex situs since a trust involves property cf Art.
17
Art. 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by
the laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution.
Prohibitive laws concerning persons, their acts or
property, and those which have, for their object,
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
RULE ON EXTRINSIC VALIDITY OF CONTRACTS

General Rule: Lex Loci Celebrationis

The forms and solemnities of contracts xxx shall
be governed by the laws of the country in which
they are executed [Art. 17]
Note:
(1) Contracts Before Diplomatic/ Consular Officials:
The solemnities established by Philippine laws
shall be observed with respect to contracts
executed before diplomatic or consular officials of
the Republic of the Philippines in a foreign
country [Art. 17(2), FC]
(2) Contracts entered Into by Letter/ Cablegram, etc.:
A contract accepted by letter or cablegram is
presumed to have been entered into the place
where the offer was made. [Art. 1319(2)]
Three possible laws:
(1) Lex Loci Contractus (Asked in 95, 02 BAR
EXAMINATIONS)
(a) Law of the place where the contract is made
(b) Merits
(i) Relative ease in establishing
(ii) Certainty and stability
(c) Demerit - Unjust results when place of
making entirely incidental

Note: To determine where the contract is made, we

look to the place where the last act is done which is
necessary to bring the binding agreement into being
so far as the acts of the parties are concerned.
(2) Lex Loci Solutionis
(a) Law of the place of performance governs
(b) Merit - Always connected to the contract in a
significant way
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(c) Demerit - Not helpful when the contract is

performed in 2 or more states with conflicting
laws
(3) Lex Loci Intentionis
(a) Law intended by the parties
(b) Basis:
The contracting parties may establish such
stipulations, clauses, terms and conditions as
they may deem convenient, provided they are
not contrary to law, morals, good customs,
public order, or public policy [Art. 1306]
(c) May be express or implied
(i) Express - when the parties stipulate that the
contract be governed by a specific law, such
law will be recognized unless there are
cogent reasons for not doing so.
(ii) Implied
(a) Based on the contemporaneous and
subsequent acts of the parties
(b) Often upheld with reference to the rule of
validity of contracts which presumes that
the parties contemplate to enter into a
valid contract
Art. 18. In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be
supplied by the provisions of this Code.
SPECIAL CONFLICT OF LAW RULES
MARRIAGE

Definition:
Art. 1, FC. Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this
Code.
Extrinsic Validity of Marriage
(1) Formal Requisites of Marriage under Philippine Law
[Art. 3, FC]
(a) Authority of the solemnizing officer
(b) Valid marriage license except in the cases
provided for in Chapter 2 of Title I
(c) A marriage ceremony which takes place with

the appearance of the contracting parties

before the solemnizing officer and their
personal declaration that they take each other
as husband and wife in the presence of not
less than two witnesses of legal age.
(2) Determination of Extrinsic Validity
Art. 26, FC. All marriages solemnized outside the
Philippines in accordance with the laws in force in
the country where they were solemnized, and valid
there as such, shall also be valid in this country. Xxx
Art. 2, Hague Convention. Formal requirements for
marriage are governed by the law of the state of
celebration.
General Rule: Lex Loci Celebrationis
Exceptions: The following marriages are void even if
valid in the country where celebrated [Art. 26, FC]:
(a) Those contracted by any party below 18 years of
age even with the consent of parents or guardians
[Art. 35(1), FC]
(b) Bigamous or polygamous marriages not falling
under Art. 41, FC [Art. 35 (4), FC]
(c) Those contracted thru mistake of one contracting
party as to the identity of the other [Art. 35(5), FC]
(d) Those subsequent marriage without recording in
the civil registry the judgment of annulment or
declaration of nullity, partition and distribution of
properties and the delivery of the childrens
presumptive legitimes [Art. 35(6), FC]
(e) A marriage contracted by any party who, at the
time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, even if such incapacity
becomes manifest only after solemnization [Art.
36, FC]
(f) Incestuous marriages [Art. 37, FC]
(i) Marriages between ascendants and
ascendants of any degree, whether legitimate
or illegitimate; and
(ii) Marriages between brothers and sisters,
whether of the full or half-blood
(g) Void marriages for reasons of public policy (Art. 38,
FC)
(i) Marriages between collateral blood relatives,
whether legitimate or illegitimate, up to the
4th civil degree
(ii) Marriages between step-parents and stepchildren.
(iii) Marriages between the adopting parent and
adopted child
(iv) Marriages between the surviving spouse of the
adopting parent and the adopted child
(v) Marriages between the surviving spouse of the
adopted child and the adopter
(vi) Marriages between an adopted child and a
legitimate child of the adopter
(vii) Marriages between adopted children of the

same adopter
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(viii) Marriages between parties where one, with

the intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
Note: These exceptions put into issue the capacity of
the parties to enter into the marriage and therefore
relate to the substantive requirement for marriage
and is governed by lex nationalii.
Intrinsic Validity of Marriage
(refers to capacity of a person to marry)
(1) Intrinsic validity is determined by the parties
personal law, which may be their domiciliary or
national law.
Note:
(a) Laws relating to Family rights and duties,
Status, Condition or Legal capacity of persons
are binding on citizens of the Philippines, even
though living abroad [Art. 15]
(b) When either or both of the contracting parties
are citizens of a foreign country, it shall be
necessary for them before a marriage license
can be obtained to submit a certificate of legal
capacity to contract marriage, issued by their
respective diplomatic or consular officials [Art.
21, FC]
(c) Marriages enumerated under Art. 26(2), FC
are void even if valid in the country where
celebrated.
(2) Intrinsic requirements of marriage under
Philippine Law [Art. 2, FC]
(3) The Hague Convention on Validity of Marriages
allows a contracting state to refuse recognition of
the marriage in the ff. Cases (CR-M3):
(a) One of the parties did not freely Consent
(b) Spouses were Related, by blood or adoption
(c) One of the parties did not have the Mental
capacity to consent
(d) One of the spouses was already Married
(e) One of the parties has not attained the
Minimum age, nor acquired the necessary
dispensation
Note:
(1) Rule on Proxy Marriages:
(a) Proxy marriages, where permitted by the law
of the place where the proxy participates in
the marriage ceremony, are entitled to
recognition in countries adhering to the lex
loci celebrationis rule, at least insofar as
formal validity is concerned
(b) Internal Philippine law, however, does not
sanction proxy marriages.
(2) Consular Marriages
Marriages between Filipino citizens abroad may

be solemnized by a consul-general, consul or vice

consul of the Republic of the Philippines [Art. 10,
FC].
Effects of Marriage
(1) Personal relations between the spouses
(a) Governed by the national law of the parties
NOTE: If the spouses have different nationalities,
generally the national law of the husband may
prevail as long as it is not contrary to law, customs
and good morals of the forum.
(b) Under Philippine law, personal relations
between the spouses include [Arts. 68, 70-71,
FC]
(i) mutual fidelity
(ii) respect
(iii) cohabitation
(iv) support
(v) right of the wife to use the husbands
family name
(2) Property relations
(a) The Hague Convention declares that the
governing law on matrimonial property is:
(i) The internal law designated by the spouses
before the marriage
(ii) In the absence thereof, the internal law of
the state in which the spouses fix their
habitual residence
(b) Rule under Philippine law [Art. 80, FC]
(i) In the absence of a contrary stipulation in
the marriage settlements, the property
relations of the spouses shall be governed
by Philippine laws, regardless of the place
of the celebration of the marriage and their
residence.
(ii) Rule is inapplicable:
(1) If both spouses are aliens
(2) With respect to the extrinsic validity of
the contracts affecting property not
situated in the Philippines and executed
in the country where the property is
located
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines
but affecting property situated in a
foreign country whose laws require
different formalities for its extrinsic
validity.
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(c) Doctrine of Immutability of Matrimonial

Property Regime:
The change of nationality on the part of the
husband or wife does not affect the original
property regime EXCEPT when the law of
the original nationality itself changes the
marital regime, hence, the property regime

has to change accordingly.

DIVORCE AND SEPARATION

Rule under the Hague Convention

The granting of divorce or separation must comply
with the national law of the spouses and lex fori (law
of the place where the application for divorce is
made).
Divorce Decrees Obtained by Filipinos
General Rule: Decrees of absolute divorce obtained
by Filipinos abroad have no validity and are not
recognized in Philippine Jurisdiction.
Note: Statutory Bases
(a) Laws relating to Family rights and duties, or to
the Status, Condition and Legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad [Art. 15,
CC]
(b) Prohibitive laws concerning persons, their acts
or property, and those which have for their
object public order, public policy and good
customs, shall not be rendered ineffective by
laws or judgments, or by determinations or
conventions agreed upon in a foreign country.
[Art. 17(3), CC]
Exception: Art. 26(2), FC
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under
Philippine law
Van Dorn v. Romillo, Jr. (1985): Owing to the
Nationality Principle, only Philippine nationals are
covered by the policy against absolute divorces, the
same being considered contrary to our concept of
public policy and morality. However, aliens may
obtain divorces abroad, provided they are valid
according to their national law.
Llorente v. Court of Appeals (2000): Divorce obtained
by Petitioner from his first wife, after he was admitted
to US citizenship, is valid and recognized in our
jurisdiction as a matter of comity.
Republic v. Orbecido (2005): Paragraph 2 of Article 26
should be interpreted to include cases involving parties
who, at the time of the celebration of the marriage
were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a
divorce decree. The Filipino spouse should likewise be
allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the
marriage. The reckoning point is not the citizenship of
the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce
is obtained abroad by the alien spouse capacitating the
latter to remarry.

Validity of Foreign Divorce Between Foreigners

(1) A foreign divorce will be recognized in all
contracting states if, at the date of the institution
of the proceedings (Hague Convention on the
Recognition of Divorce and Legal Separation):
(a) either spouse had his habitual residence
there;
(b) both spouses were nationals of that state; or
(c) if only the petitioner was a national, he should
have his habitual residence there
(2) While there is no provision of law requiring
Philippine courts to recognize a foreign divorce
decree between non-Filipinos such will be
recognized under the principle of international
comity, provided that it does not violate a
strongly held policy of the Philippines.
ANNULMENT AND DECLARATION OF NULLITY

Jurisdiction to Annul
(1) Vested in the court of the domicile of the parties
(2) Jurisdiction over the non-resident defendant is
not essential
Governing Law
(1) Lex loci celebrationis determines the
consequences of any defect as to form
(2) In general, the same applies with reference to
substantive or intrinsic validity. But with regard to
capacity of the parties to marry, national law is
determinative.

Human Relations

ABUSE OF RIGHT
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
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ACTS CONTRARY TO LAW

Art. 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify
the latter for the same.
ACTS CONTRA BONUS MORES
Art. 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter
for the damage.
Breach of promise to marry is not an actionable
wrong. [De Jesus vs. Syquia, 58 Phil., 866]
BUT damages may be recoverable
Wassmer v. Velez (1964): Mere breach of promise to
marry is not an actionable wrong. But to formally set
a wedding and go through all the above-described
preparation and publicity, only to walk out of it when
the matrimony is about to be solemnized, is quite
different. This is palpably and unjustifiably contrary
to good customs for which defendant must be held

answerable in damages in accordance with Article 21

aforesaid.
Baksh vs. Court of Appeals (1993): Article 21 may also
be applied in a breach of promise to marry where the
woman is a victim of moral seduction. Award of
damages pursuant to Article 21 is justified not
because of such promise to marry but because of the
fraud and deceit behind it and the willful injury to her
honor and reputation which followed thereafter.
Tanjanco v. Court of Appeals (1966): The conduct of a
woman of adult age, maintaining intimate sexual
relations with appellant, with repeated acts of
intercourse is incompatible with the idea of
seduction.
PRINCIPLE OF UNJUST ENRICHMENT
Art. 22. Every person who through an act of
performance by another, or any other means,
acquires or comes into possession of something at
the expense of the latter without just or legal
ground, shall return the same to him.
Art. 22
(Accion in Rem Verso)
Art. 2154
(Solutio Indebiti)
Not necessarily a
mistake in payment
Payment should be
made by mistake

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Persons and Personality

CAPACITY TO ACT
CIVIL PERSONALITY

Art. 37. Juridical capacity, which is the fitness to be

the subject of legal relations, is inherent in every
natural person and is lost only through death.
Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost.
Juridical Capacity
Capacity to Act
Fitness of man to be the
subject of legal relations
Power to do acts with
legal effect
Passive Active
Aptitude for the Holding
and Enjoyment of rights
Aptitude for the Exercise
of rights
Inherent in every natural
person
Must be acquired
Lost upon death Lost through death and
other causes
Can exist without

capacity to act
Must exist with juridical
capacity
Cannot be limited or
restricted
May be restricted or
limited
Note: Juridical capacity can exist even without
capacity to act; the existence of the latter implies
that of the former.
RESTRICTIONS ON CAPACITY TO ACT

Art. 38. Minority, insanity or imbecility, the state of

being a deaf-mute, prodigality and civil interdiction
are mere restrictions on capacity to act, and do not
exempt the incapacitated person from certain
obligations, as when the latter arise from his acts or
from property relations, such as easements.
Art. 39. The following circumstances, among others,
modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of
these circumstances are governed in this Code, other
codes, the Rules of Court, and in special laws.
Capacity to act is not limited on account of religious
belief or political opinion.
A married woman, twenty-one years of age or over, is
qualified for all acts of civil life, except in cases
specified by law.
General rule: Incapacitated persons are not exempt
from certain obligations arising from his acts or
property relations.
Minority
RA 6809 (1989): An act lowering the age of majority
from twenty-one to eighteen years.
Effects on Contracts
(1) They cannot give consent to a contract [Art. 1327
(1)]
(2) A contract where one of the parties is a minor is
voidable [Art. 1390(1)]
(3) A contract is unenforceable when both of the
parties are minors (incapable of giving consent)
[Art. 1403(3)]
(4) Minority cannot be asserted by the other party in
an action for annulment [Art. 1397]
(5) Not obliged to make restitution except insofar as
he has been benefited [Art. 1399]
(6) Minor has no right to demand the thing/price
voluntarily returned by him [Art. 1426]
(7) Minor has no right to recover voluntarily paid sum
or delivered thing, if consumed in good faith [Art.
1427]
(8) Must pay reasonable amount for necessaries
delivered to him [Art. 1489]
Mercado v. Espiritu, (1918):

Estoppel works against minors who misrepresent their

ages in a contract and are compelled to comply with
its terms. (active misrepresentation done by minors).
Bambalan v. Maramba, (1928):
When a minor made no active misrepresentation as to
his minority and such minority is known to the other
party, the contract is voidable (Art. 1403) as to the
minor.
Braganza v. Villa Abrille, (1959):
Minors are obliged to make restitution insofar as they
have been benefited (Art. 1399).
Effects on Marriage
(1) May not yet contract marriage [Art. 5, FC].
(2) Marriages, where one of the parties is below 18,
even with the consent of parents/guardians, are
VOID [Art. 35, FC]
Insanity
Insanity includes many forms of mental disease,
either inherited or acquired. A person may not be
insane but only mentally deficient (idiocy, imbecility,
feeble-mindedness).
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Effect on Contracts
(1) Incapacity to give consent to a contract [Art.
1327(2)]
(2) Contracts entered into during lucid intervals are
valid [Art. 1328]
(3) Restitution of benefits [Art. 1399]
(4) Voidable if one of the parties is insane [Art. 1390]
(5) Unenforceable if both of the parties are insane
(Art. 1403 (3))
Effect on Crimes
(1) General rule: EXEMPTED from criminal liability
(2) Exception: Acted during lucid interval
Effect on Marriage
(1) May be annulled if either party was of unsound
mind unless the such party after coming to
reason, freely cohabited with the other [Art. 45(2),
FC]
(2) Action for annulment of marriage must be filed by
the sane spouse who had no knowledge of the
others insanity, or by any relative/guardian of the
insane before the death of either party; or by the
insane spouse during a lucid interval or after
regaining sanity [Art. 47(2), FC]
State of Being Deaf-Mute
(1) Cannot give consent to a contract if he/she also
does not know how to write (Art. 1327(2), CC)
(2) Can make a valid WILL, provided: he must
personally read the will. The contents of the same
have either been read personally by him or
otherwise communicated to him by 2 persons
(Art. 807, CC)
(3) Cannot be a witness to the execution of a will (Art.
820, CC)

(4) Voidable if one of the parties is deaf-mute and

does not know how to write
(5) Unenforceable if both of the parties are deafmutes
and does not know how to write
Prodigality
Martinez v. Martinez, (1902):
A spendthrift or a prodigal is a person, who, by
excessive drinking, gambling, idleness or debauchery
of any kind shall so spend, waste or lessen his estate as
to expose himself or his family to want or suffering.
The acts of prodigality must show a morbid state of
mind.
Note: It is not the circumstance of prodigality, but the
fact of being under guardianship that restricts
capacity to act.
Civil interdiction
(1) It is an accessory penalty imposed upon persons
who are sentenced to a principal penalty not
lower than reclusion temporal (Art. 41, RPC).
(2) Offender is deprived of rights of parental
authority, or guardianship, of marital authority, of
the right to manage his property and of the right
to dispose of such (Art. 34, RPC)
(3) For the validity of marriage settlements, the
participation of the guardian shall be
indispensable (Art. 123)
Family relations
(1) Justifying circumstance if acted in defense of
person/rights of spouse, ascendants,
descendants, brothers/sisters, and other relatives
up to the 4th civil degree [Art. 11(2), RPC]
(2) Mitigating circumstance if acted in the immediate
vindication of a grave offense/felony committed
against his spouse, ascendants or relatives of the
same civil degree [Art. 13(5), RPC]
(3) Incestuous and void marriages:
(a) Between ascendants and descendants of any
degree;
(b) Between brothers and sisters, whether full or
half-blood. [Art. 37, FC]
(4) Donations/grants of gratuitous advantage
between spouses during the marriage shall be
VOID, except moderate gifts during family
occasions [Art. 87, FC]
(5) Descendants cannot be compelled to testify in a
criminal case, against his parents and
grandparents
(a) UNLESS: crime was against the descendant
OR by one parent against the other [Art. 215,
FC]
(6) Spouses cannot sell property to each other, except:
(a) Absolute separation is agreed upon in the
marriage settlements
(b) Judicial separation of property [Art. 1490]
Absence

Art. 390. After an absence of seven years, it being

unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be
sufficient in order that his succession may be
opened. (n)

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Art. 391. The following shall be presumed dead for all

purposes, including the division of the estate among
the heirs:
1. A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has taken part in
war, and has been missing for four years;
3. A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
Article 124, FC:
(1) Administration and enjoyment of the CPG shall
belong to both spouses jointly.
(2) In case of disagreement, husbands decision shall
prevail, subject to recourse to the court by the
wife for proper remedy (within 5 years from date
of contract implementing such decision)
(3) If one spouse is incapacitated/unable to
administer, sole powers of administration may be
assumed by the other spouse.
(4) General Rule: This power does not include
disposition/encumbrance.
Exception: Judicial authority or written consent of
other spouse.
Birth
General Rule: Birth determines personality [Art. 40].
Death extinguishes civil personality [Art. 42].
Exception: A conceived child shall be considered
born for all purposes that are FAVORABLE to it,
provided it be born later [Art. 40, 2nd clause] with
the following circumstances:
Intra-Uterine Life
When Considered Born
7 months or more Alive upon delivery
Less than 7 months Alive only after
completion of 24 hours
from delivery
Birth = complete removal of the fetus from the
mothers womb; before birth, a fetus is merely part of
the mothers internal organs.
Personality of Conceived Child
(1) Limited = only for purposes FAVORABLE to it.

(2) Conditional = it depends upon the child being

born alive later.
Period of Conception = the first 120 days of the 300
days preceding the birth of the child.
A conceived child can acquire rights while still in the
mothers womb. It can inherit by will or by intestacy.
Geluz v CA, (1961):
An aborted fetus had conditional personality but never
acquired legal rights/civil personality because it was
not alive at the time of delivery from the mothers
womb. No damages can be claimed in behalf of the
unborn child.
Complete respiration = test/sign of independent life
Death
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations
of the deceased is determined by law, by contract
and by will
Criminal liability ends with death BUT civil liability
may be charged against the estate [People v. Tirol,
(1981)].
Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death
of one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the
same time and there shall be no transmission of
rights from one to the other.
Note: Article 43 provides a statutory presumption
when there is doubt on the order of death between
persons who are called to succeed each other (only).
The statutory presumption of Article 43 was not
applied due to the presence of a credible eyewitness
as to who died first [Joaquin v. Navarro, (1948)]
Compare Art. 43 with Rule 131, Sec. 3 (jj), presumption
of Survivorship.
Art. 43
Rule 131, Sec. 3 (jj)
Only use the presumptions when there are no facts
to get inferences from
Only use for succession
purposes
Cannot be used for
succession purposes
In any circumstance Only during death in
calamities, wreck, battle
or conflagration
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Presumption of Survivorship in the Rules of Court

(Rule 131, sec. 3, (jj.)
Age
Presumed Survivor
Both under 15 Older
Both above 60 Younger
One under 15, the other

above 60
One under 15
Both over 15 and under
60; different sexes
Male
Both over 15 and under
60; same sex
Older
One under 15 or over
60, the other between
those ages
One between 15 and 60
DOMICILE AND RESIDENCE OF PERSON
FOR NATURAL PERSONS:
The place of their habitual residence [Art. 50]
FOR JURIDICAL PERSONS:
The place where their legal representation is
established, or where they exercise their primary
functions, unless there is a law or other provision that
fixes the domicile [Art. 51]
DOMICILE VS. RESIDENCE
While domicile is permanent (there is intent to
remain), residence is temporary and may be changed
anytime (there is no necessary intent to remain).
REQUISITES OF DOMICILE [Callejo v. Vera]
(1) Physical Presence in a fixed place
(2) Intent to remain permanently (animus manendi)
KINDS OF DOMICILE

(1) Domicile of Origin - domicile of parents of a

person at the time he was born.
(2) Domicile of Choice
(a) Domicile chosen by a person, changing his
domicile of origin.
(b) A 3rd requisite is necessary intention not to
return to ones domicile as his permanent
place.
(3) Domicile by Operation of Law (i.e., Article 69,
domicile of minor)
(a) A married woman does not lose her domicile
to her husband. (Romualdez-Marcos vs.
Comelec (1995))

Family Code

The Family Code took effect on August 3, 1988.

Marriage
REQUISITES

NATURE OF MARRIAGE, ART.

1
Art. 1, FC. Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property relations

during the marriage within the limits provided by this

Code.
KINDS OF REQUISITES

(1) Essential Requisites (Art. 2)

(a) Legal Capacity of the contracting parties, who
must be a male and a female
(b) Consent (of the parties) freely given in the
presence of a solemnizing officer.
(2) Formal Requisites (Art. 3)
(a) Authority of solemnizing officer
(b) A valid marriage license
(c) Except: Marriages in articulo mortis or when
one or both parties are at the point of death
(d) Marriage Ceremony:
(i) Appearance of contracting parties in the
presence of a solemnizing officer
(ii) Personal declaration that they take each
other as husband and wife in the presence of
not less than 2 witnesses
EFFECT OF ABSENCE OF REQUISITES

Absence
Defect or Irregularity
Effect
Void Voidable
ESSENTIAL REQUISITES

Age
Legal Capacity [Art. 5]
Male or female 18 years old and above, not under any
impediments mentioned in Art. 37 (incestuous
marriage) & Art. 38 (marriage against public policy),
may contract marriage.
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Must be male and female

Jones v Hallahan, (1973): Application for marriage
license was denied since marriage is defined by law as
a contract entered into between a man and a woman.
Goodridge v. Dept. of Public Health, (2003): Same-sex
couples should not be denied the same benefits as
heterosexual couples; the right to marry includes the
right to choose who to marry.
Silverio v Republic, (2007): Changing of gender in ones
birth certificate was denied; otherwise, it would result
in confusion and would allow marriage between
persons of the same sex which is in defiance of the law,
as marriage is a union between a man and a woman.
Note: The best source for citing the requirement (of
male/female) is still statutory, as provided explicitly
in the Family Code.
Consent freely given
People v. Santiago, (1927): A marriage entered into by a
person whose real intent is to avoid prosecution for
rape is void for total lack of consent. The accused did
not intend to be married. He merely used such
marriage to escape criminal liability.
Eigenmann v. Guerra (1964): There was no reasonable
and well-grounded fear of an imminent and grave evil

upon him or his property, father-in-laws words were

merely an admonition typical of concerned parents.
Ceremony
Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required. (Art. 6)
The couple's written agreement where they declare
themselves as husband and wife, signed by them
before a judge and two capable witnesses, even
though it was independently made by them, still
counts as a valid ceremony. [Martinez v Tan, (1909)]
Minimum requirements prescribed by law: (AP-PMS)
(1) Appearance of contracting parties personally
before the solemnizing officer [Art. 3]
(2) Personal declaration that they take each other as
husband and wife. [Art. 3]
(3) Presence of at least two witnesses of legal age.
[Art. 3]
(4) The declaration shall be contained in the
Marriage certificate. [Art. 6]
(5) Marriage certificate shall be Signed by the
contracting parties and their witnesses and
attested by the solemnizing officer. [Art. 6]
Note: In a marriage in articulo mortis, when one or
both parties are unable to sign the marriage
certificate, it shall be sufficient for one of the
witnesses to write the name of said party, which shall
be attested by the solemnizing officer. (Art. 6, par. 2)
Places where marriage SHALL be publicly solemnized:
(CCO)
(1) Chambers of the judge or in open court
(2) Church, chapel, or temple
(3) Office of the consul-general, consul, or viceconsul
[Art. 8]
Exceptions:
(1) Marriages performed in articulo mortis or in
remote places. [Art. 29]
(2) Where both parties request in writing that
marriage be solemnized at a place designated by
them.
Non-compliance with this requirement does not
invalidate the marriage (premise: more witnesses =
more people can notify officer of impediments to
marriage).
Who may solemnize marriages
Who may solemnize marriage: (JC-SPAMM)
(1) Incumbent member of the Judiciary within his
jurisdiction. [Art. 7]
(2) Priest, Rabbi, Imam or Minister of any Church or
Religious Sect. Must be:
(a) Duly authorized by his church or religious sect
(b) Registered with the civil registrar general
(c) Acting within the limits of the written
authority granted to him by his church or
religious sect.

(d) At least one of the contracting parties belongs

to the solemnizing officers church or religious
sect. [Art. 7]
(3) Ship Captain or Airplane Chief may solemnize a
marriage in articulo mortis between passengers
or crew members [Art. 7, 31]
(4) A Military commander of a unit may solemnize
marriages in articulo mortis between persons
within the zone of military operation. (Art. 7, 32)
(5) Consul-general, consul or vice-consul may
solemnize marriages between Filipino citizens
abroad. (Art. 7, 10)
(6) Municipal and City Mayors (LGC sec. 444 and
455)
Exceptions Art. 35
(1) Marriage is void when solemnized by any person
not legally authorized to perform marriages
unless either or both parties believed in good faith
that the solemnizing officer had legal authority to
do so. [Art. 35 (2)]

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(2) Absence & Irregularity of Authority of a

solemnizing officer
Lack of valid notification of both parties desiring a
ceremony in a remote place was held to be only a
mere IRREGULARITY [Navarro vs. Domagtoy (1996)]
Respondent judge was faulted for solemnizing a
marriage outside his territorial jurisdiction. Also,
presentation of the marriage license subsequent to
the solemnization of marriage will not cure the
defect. [Araes v. Occiano (2002)]
License required
General Rule: License required
Article 9 - Issued by local registrar of city or
municipality where either contracting party
habitually resides
Article 11 - Each contracting party should file
separately.
Article 20 - License valid in any part of the
Philippines for 120 days from date of issue,
automatically cancelled at the expiration of such
period.
Foreign National
When either or both parties are foreign nationals:
Certificate of legal capacity to contract marriage,
issued by a diplomatic or consular official, shall be
submitted before a marriage license can be obtained
[Art. 21]
Stateless persons or refugees from other countries:
affidavit stating circumstances showing capacity to
contract marriage, instead of cert. of legal capacity
[Art. 21]
Exceptions
(1) Marriage in articulo mortis [Art. 27]
(a) The marriage may be solemnized without the

necessity of a marriage license.

(b) It remains valid even if ailing party survives.
(2) Between passengers or crew members in a ship
or airplane [Art. 31]
(3) Persons within a military zone [Art. 32]
(4) Marriage in Remote and inaccessible places [Art.
28]
(5) Marriages by Muslims and Ethnic cultural
minorities provided they are solemnized in
accordance with their customs, rites or practices.
[Art. 33]
(6) Marriage by parties who have Cohabited for at
least 5 years without any legal impediment to
marry each other. [Art. 34, Ninal vs. Badayog
(2000)]
Requisites for the 5-year cohabitation to be valid for the
exemption from acquiring a marriage license
(1) The man and woman must have been living
together as husband and wife for at least five
years before the marriage;
(2) The parties must have no legal impediment to
marry each other;
(3) The fact of absence of legal impediment between
the parties must be present at the time of
marriage;
(4) The parties must execute an affidavit stating that
they have lived together for at least five years
[and are without legal impediment to marry each
other]; and
(5) The solemnizing officer must execute a sworn
statement that he had ascertained the
qualifications of the parties and that he had
found no legal impediment to their marriage.
[Borja-Manzano vs. Judge Sanchez (2001)]
Marriage certificate
Absence and irregularity of marriage license and
contract
Republic v. CA and Castro (1994): Issuance of the Civil
Registrar of a Certificate of Due Search and Inability to
Find the application of a marriage license certifies the
licenses inexistence, thus rendering the marriage
VOID.
Moreno v. Bernabe (1995): Before a marriage can be
solemnized, a valid marriage license must be
presented first, otherwise, the marriage is VOID.
People v. Borromeo (1984): Non-existence of a
marriage contract does not invalidate the marriage as
long as all the requisites for its validity are properly
complied with.
Things to do at the local civil registrar:
(1) File an application of marriage license at the
proper local civil registrar. [Art. 11]
(2) Present birth or baptismal certificate for proof of
age. [Art. 12]
(3) If aged 18-21 years, present parental consent.

[Art. 14]
(4) If aged 21-25, present parental advice. [Art. 15]
(5) If aged 18-25, present certificate of marriage
counseling from your priest. [Art. 16]
(6) (PD 965) Attend family planning seminar or get a
brochure regarding family planning
(7) Pay the required fees. [Art 19]
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(8) If foreigner, present certificate of legal capacity

issued by diplomat or consular officials. (Art. 21)
Marriage Certificate
Where parties declare that they take each other as
husband and wife; contains the ff:
(1) Full name, sex, age of party
(2) Citizenship, religion, habitual residence
(3) Date and precise time of celebration of
marriage
(4) That marriage license was properly issued
(except in marriages exempt from ML reqt)
(5) That parental consent was secured, when
required
(6) That requirement as to parental advice was
complied with, when required
(7) That parties have entered into marriage
settlements, if any [Art. 22]
Note: Not an essential or formal requisite without
which the marriage will be void [Madridejo v. de Leon
(1930)]
Best evidence that a marriage does exist. [Tenebro v.
CA (2004)]
EFFECT OF MARRIAGES CELEBRATED ABROAD
AND FOREIGN DIVORCE
MARRIAGES CELEBRATED ABROAD

General Rule: Marriages solemnized abroad in

accordance with the laws in force in that country
shall be valid in the Philippines. [Art 26]
Exceptions:
(1) Marriage between persons below 18 years old
[Art. 35(1)]
(2) Bigamous or polygamous marriage [Art. 35(4)]
(3) Mistake in identity [Art. 35 (5)]
(4) Marriages void under Article 53 [Art. 35 (6)]
(5) Psychological incapacity [Art. 36]
(6) Incestuous marriages [Art. 37]
(7) Marriage void for reasons of public policy [Art. 38]
Essential requisites
Formal requisites
Inherent in the parties,
carried everywhere
Requirements
independent of the
parties
Lex Nationalii Laws
relating to family rights
and duties, or to the

status, condition, and

legal capacity of persons
are binding upon Phil
citizens even though living
Lex loci celebrationis- if
valid where celebrated,
then valid everywhere;
forms of contracting
marriage are to be
regulated by the law
where it is celebrated.
Essential requisites
Formal requisites
abroad (Art 15, CC) (Art. 26, CC)
Foreign marriages void
under Phil law due to lack
of an essential requisite,
even if valid under foreign
laws, will not be
recognized
Foreign marriages may
be void under Phil law
due to absence of a
formal requisite under
foreign laws.
PROOF OF FOREIGN MARRIAGE in order that it may be
upheld:
(1) Provisions of the foreign law
(2) Celebration of the marriage in accordance with
said provisions
FOREIGN DIVORCES

(1) Those obtained by Filipino citizens are void under

Philippine law.
(2) If the foreign spouse obtains a valid foreign
divorce, the Filipino spouse shall have capacity to
remarry under Philippine law. (Art. 26)
Van Dorn v. Romillo (1985):
A divorce obtained by the foreign spouse in
accordance with the said spouses national law is
recognized in the Philippines and releases Filipino
spouse from their marriage.
Quita v. Dandan (1998):
The citizenship of the spouses at the time of the
divorce determines their capacity to obtain a valid
divorce. Since the divorce and the naturalization of W
occurred within the same year, the case was remanded
to determine which occurred first.
Llorente v. CA (2000):
Citizenship at the time the divorce is obtained
determines its validity. Since H was no longer a
Filipino citizen when he divorced W, the nationality
principle did not apply to him anymore and the divorce
is valid.
Garcia v. Recio (2001):
A divorce decree obtained by the foreign spouse is

recognized under Phil law if it is executed in

accordance with the foreigners national law. The
party must prove divorce as a fact and that said
divorce is obtained in conformity with the law allowing
it, before the Philippine courts can take judicial notice.
VOID AND VOIDABLE MARRIAGES
PRESUMPTION OF MARRIAGE

(1) Presumption in favor of a valid marriage [Art 220,

CC]
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(2) The presumption that a man and a woman

deporting themselves as husband and wife have
entered into a lawful contract of marriage is
satisfactory if uncontradicted. [Sec. 3 (aa), Rule
131, ROC]
(3) In marriages of exceptional character, the
existence of the marriage is presumed, even in
the TOTAL ABSENCE of a marriage license. [Vda.
De Jacob v CA (1999)]
(4) If a marriage certificate is missing, and all means
HAVE NOT YET BEEN EXHAUSTED to find it,
then the marriage is presumed to exist [Sevilla v
Cardenas (2006)]
Absence of a marriage certificate is not proof of
absence of marriage. To prove the fact of marriage,
the following would constitute competent evidence:
(1) the testimony of witnesses to matrimony; (2) the
couples public cohabitation; and (3) birth and
baptismal certificates of children born during the
union. [Trinidad v CA (1998)]
VOID MARRIAGES

Type of Void Marriages

(1) Absence of any formal/essential requisites
(2) Psychologically Incapacitated spouse
(3) Incestuous Marriages
(4) Marriages contrary to public policy
(5) Void subsequent marriages
Absence of Requisites
Art. 4(1): The absence of any essential or formal
requisites shall render the marriage void ab initio,
except as stated in Article 35 (a).
Art. 5: Any male or female of the age of eighteen years
or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract
marriage.
Void from the Beginning [Art. 35].
(1) Marriage where any party is below eighteen years
of age even with the consent of parents or
guardians
(2) Marriage solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the
solemnizing officer had the legal authority to do
so.

Note: Ones belief in good faith that the

solemnizing officer has the required authority is a
mistake of fact, and not of law.
(3) Marriage solemnized without a valid marriage
license, except in marriages under exceptional
circumstances
(4) Bigamous or polygamous marriages not falling
under Article 41 (Art. 41: subsequent marriage by
present spouse who obtained a declaration of
presumptive death for absent spouse prior to the
subsequent marriage)
(5) There is a mistake as to the identity of the other
contracting party
(6) Subsequent marriages that are void under Article
53 (Non-compliance with Art. 52)
Psychological incapacity
Contracted by any party who, at the time of the
celebration, was psychologically incapacitated to
comply with the essential marital obligations of
marriage, even if such incapacity becomes manifest
only after its solemnization [Art. 36]
Republic v. Molina, (1997):
(1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff.
(2) The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts,
(d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at
the time of the celebration of the marriage.
(4) Such incapacity must also be shown to be
medically or clinically permanent or incurable.
(5) Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code
as regards the husband and wife as well as Articles
220, 221, and 225 of the same Code in regard to
parents and their children.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling/decisive, should
be given great respect by our courts.
(8) The trial court must order the prosecuting attorney
or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed
down unless the Solicitor General issues a
certification.
Santos v. Bedia-Santos, (1995):
Laid down 3 characteristics for determining
psychological incapacity: gravity, antecedent, and
incurability.
Tsoi v. CA, (1997):
Refusal of husband to have sex was interpreted to be

PI. A man who can but wont is PI

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Marcos vs. Marcos (2000):

Psychological incapacity maybe established by the
totality of the evidence presented. Personal medical
examination could be dispensed with.
Republic vs. San Jose (2007):
There is no requirement that the respondent be
medically examined first.
Antonio v. Reyes, (2006):
Pathological liar considered as psychological
incapacity, Molina guidelines met.
Incestuous marriages
Article 37 (Incestuous):
(1) Between ascendants and descendants of any
degree, legitimate or illegitimate
(2) Between brothers and sisters, whether of the full
or half blood, legitimate or illegitimate
Against Public Policy
Article 38 (Against Public Policy):
(1) Between collateral blood relatives, legitimate or
illegitimate, up to the fourth civil degree.
(2) Between step-parents and step-children.
Note: Stepbrothers and stepsisters can marry
because marriages between them are not
among those enumerated in Article 38.
(3) Between parents-in-law and children-in-law.
(4) Between adopting parent and adopted child.
(5) Between the surviving spouse of the adopting
parent and the adopted child.
(6) Between the surviving spouse of the adopted
child and the adopter.
(7) Between an adopted child and a 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 other person's
spouse, or his or her own spouse.
Relationships outside of Art. 37 and 38 which are not
impediments to marriage: brother-in-law with sisterinlaw, stepbrother with stepsister, guardian with
ward, adopted with illegitimate child of the adopter,
adopted son of the husband with adopted daughter
of the wife, parties who have been convicted of
adultery
Void subsequent marriages
Article 40 (No Judicial Declaration of Nullity)
A person entered into a subsequent marriage
without first getting a judicial declaration of nullity of
the first void marriage
Article 41 (Presumptive Death)
Failure of the present spouse to obtain a judicial
declaration of presumptive death before entering a
subsequent marriage
Article 44 (Bad Faith of both spouses)

Both spouses entering a subsequent marriage after

presumptive death, who acted in bad faith
Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have not
have been complied with, shall be null and void.
Art. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of
the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in
the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons.
Previous marriage declared void ab initio or annulled
Art. 40. The 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.
In order to have a subsequent marriage:
(1) The previous marriage should be judicially
declared void or annulled (final judgment) (Terre
v. Terre (1992), Atienza v. Brillantes (1995))
(2) Must comply with the requirements of Art. 52
Under the Civil Code (superseded by the Family
Code), there was no need for a judicial declaration of
nullity of a previous marriage for a subsequent
marriage to be valid [People v. Mendoza (1954)]
Terre v. Terre, (1998):
A lawyer was disbarred for grossly immoral conduct by
convincing the other party that a judicial declaration of
nullity was not required and subsequently contracting
another marriage while his first marriage was
subsisting.
If there is no Judicial Declaration of Nullity, subsequent
marriage void for being bigamous.
Atienza v. Brillantes, (1995):
Even if the judges first marriage contracted in 1965
was void for not having a marriage license, the
requirement for a judicial declaration of nullity in Art.
40 still applies for his subsequent marriage contracted
in 1991.

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Apiag v. Cantero, (1997):

Where both marriages were contracted prior to the
effectivity of the FC, the requirement of Art. 40 does
not apply to the second marriage where a right is
already vested and which the FC cannot have
retroactive effect.
Domingo v. CA, (1993):
The judicial declaration of nullity can be invoked for
purposes other than remarriage. Article 40 was
interpreted as being a requirement for purposes of
remarriage but not limited for that purpose.
Separation of property is also a valid purpose for
filing for a judicial declaration of nullity.
The word solely in Art. 40 referred to validating

subsequent marriages but NOT to limiting the

purposes for which a judicial declaration of nullity
can be invoked.
Borja-Manzano v. Sanchez, (2001):
Legal separation does not severe marital bonds.
Cohabitation under Art. 34 merely exempts the
spouses from obtaining a marriage license, and is
not met when there exists legal impediment to marry
during the period of cohabitation.
Subsequent Marriage when one spouse is absent
Requirements for Subsequent Marriage to be Valid
When Prior Spouse is Absent [Art. 41]:
(1) Subsequent marriage due to ordinary absence
where:
(a) Absent spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-founded belief
that absent spouse is dead; and
(c) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) Absent spouse had been missing for 2
consecutive years;
(b) There is danger of death under the
circumstances set forth in the provisions of
Art. 391 CC attendant to the disappearance;
(c) The spouse present had a well-founded belief
that the missing person is dead; and
(d) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
Extraordinary circumstances [Art. 391, CC]:
(a) ON BOARD VESSEL lost at sea voyage, airplane,
(b) ARMED FORCES in war, or
(c) DANGER OF DEATH under other circumstances,
existence not known
Notes:
(1) Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (Balane)
(2) Only the deserted/present spouse can file or
institute a summary proceeding for the
declaration of presumptive death of the
absentee. (Bienvenido case)
(3) There must have been diligent efforts on the part
of the deserted spouse to locate the absent
spouse. These diligent efforts correspond to the
requirement of the law for a well-founded belief.
Effect of Reappearance of Absent Spouse
General Rule: The subsequent marriage remains
valid.
Exception: It is automatically terminated by the
recording of the affidavit of reappearance of the

absent spouse at the instance of any interested

person, with due notice to the spouses of the
subsequent marriage. [Art. 42]
Note: It is the recording of the affidavit of
reappearance that automatically terminates the
subsequent marriage. Hence, if absentee spouse
reappears without recording affidavit of
reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
(Tolentino)
Exception to the exception: If there is a judgment
annulling the previous marriage or declaring it void
ab initio. [Art. 42]
Good Faith: PERIOD of absence for PRESUMPTIVE
DEATH is MANDATORY thus cannot be shortened by
good faith and if be done so will be VOID.
Burden of Proof: Two successive marriages,
presumption of validity on 2nd marriage and burden
on party ATTACKING VALIDITY OF 2ND MARRIAGE.
PRESUMPTION in favor of INNOCENCE prevails over
PRESUMPTION of CONTINUANCE OF LIFE OF 1ST
SPOUSE & MARITAL RELATIONS.
Difference between Absence in the Civil Code and
Family Code
Family Code Civil Code
As to period
4 years under normal
circumstances;
2 years under
extraordinary
Absent for at least 7
years;
4 years under
extraordinary

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Family Code Civil Code

circumstances circumstances
As to remarriage
In order to remarry,
summary proceeding is
necessary
Declaration of
presumptive death is not
necessary
As to who can institute the action
Can be instituted by the
present spouse, any
interested party, and the
subsequent spouse
The spouses themselves
As to effect on subsequent marriage
Subsequent marriage is
automatically terminated
by the recording of an
affidavit of reappearance

of the absent spouse

Upon reappearance,
judicial proceeding is
necessary to declare
marriage null and void
As to ground
Well founded belief that
the absent spouse is dead
Generally believed to be
dead
Connected Provisions
Art. 390, Civil Code. After an absence of 7 years, it
being unknown whether or not the absentee still lives,
he shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of 10 years. If he disappeared after the age of 75 years,
an absence of 5 years shall be sufficient in order that
his succession may be opened.
Art. 391, Civil Code. The following shall be presumed
dead for all purposes, including the division of the
estate among the heirs: (SAAD)
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the
vessel or aeroplane;
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
Notes:
Although 7 years is required for the presumption of
death of an absentee in the Civil Code, Art. 41 of the
Family Code makes an exception for the purpose of
remarriage by limiting such requirement to 4 years.
Article 43 and 44 (Effects of Termination of Bigamous
Marriage under Art. 42)
Art. 43:
(1) Children of subsequent marriage conceived prior
to its termination considered legitimate; custody
and support decided by court in a proper
proceeding
(2) Property Regime dissolved and liquidated (party
in bad faith shall forfeit his/her share in favor of
the common children or if there are none, children
of the guilty spouse by a previous marriage, and in
case there are none, to the innocent spouse)
(3) Donation propter nuptias remains valid, (but if
the donee contracted marriage in bad faith,
donations will be revoked)
(4) Insurance benefits innocent spouse may revoke
designation of guilty party as beneficiary, even if
such designation is stipulated as irrevocable

(5) Succession Rights Party in bad faith disqualified

to inherit from innocent spouse, whether testate or
intestate
Article 44:
Donations: If both parties of subsequent marriage
acted in bad faith, any donations and testamentary
dispositions made by one party to the other by
reason of marriage will be revoked
ACTION OR DEFENSE OF NULLITY

Prescription
Art. 39. The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. (as
amended by RA 8533)
It must be noted that under the new Supreme Court
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages
A.M. No. 02-11-10-SC, effective March 15, 2003,
nullity of the marriage can still be collaterally
attacked.
Who may file the petition for nullity?
As to the parties allowed to file the action: Only an
aggrieved or injured spouse may file a petition for
annulment of voidable marriages or declaration of
absolute nullity of void marriages. Such petition
cannot be filed by compulsory or intestate heirs of
the spouses or by the State. The Committee is of the
belief that they do not have a legal right to file the
petition. Compulsory or intestate heirs have only
inchoate rights prior to the death of their
predecessor, and, hence, can only question the validity
of the marriage of the spouses upon the death of a
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spouse in a proceeding for the settlement of the estate

of the deceased spouse filed in the regular courts.
(Enrico v. Heirs of Sps. Medinaceli (2007)), also
reiterated in (Carlos vs. Sandoval (2008))
How to attack a void marriage?
General Rule: Void Marriages may be attacked
collaterally or directly.
Exception: A person in a void marriage must first file
for a declaration of nullity in order to subsequently
marry
ANNULLABLE MARRIAGE

(Note: Although the Supreme Court in its syllabus

seems to make a distinction between annullable and
voidable marriages by the fact that they made two
separate categories for the two, Tolentino makes no
mention of any such difference.)
Art. 14: In case either or both of the contracting
parties, not having been emancipated by a previous
marriage, are between the ages of eighteen and
twenty-one, In addition to the requirements of the
preceding articles:
(a) Exhibit to the local civil registrar the consent to
their marriage of their father, mother, surviving

parent or guardian, or persons having legal charge

of them, in the order mentioned
(b) Manifested in writing by the interested party, who
personally appears before the proper local civil
registrar, or
(c) In the form of an affidavit made in the presence of
two witnesses and attested before any official
authorized by law to administer oaths
(d) The personal manifestation shall be recorded in
both applications for marriage license, and the
affidavit, if one is executed instead, shall be
attached to said applications.
Grounds for Annulment
Article 4 states that xxx A defect in any of the
essential requisites shall render the marriage
voidable as provided in Article 45.
Article 45. Marriage may be annulled on the
following grounds existing at time of marriage:
(PIFFIS)
(1) One of the parties is 18 or above but below 21
years old, and there is no parental consent.
(2) Either party was of unsound mind (insanity).
(3) The consent of either party was obtained through
fraud (different from mistake in identity):
(a) Through non-disclosure of a previous
conviction of a crime involving moral
turpitude;
(b) Through concealment by the wife of the fact
that at the time of the marriage she was
pregnant by another man;
(c) Through concealment of a sexuallytransmitted
disease, regardless of its nature,
existing at the time of marriage;
(d) Through concealment of drug addiction,
habitual alcoholism or
homosexuality/lesbianism. (Art.46)
(4) The consent of either party was obtained through
force, intimidation, or undue influence.
(5) Either party is physically incapable of
consummating the marriage (impotence; this is
different from sterility, which is the inability to
produce offspring).
(6) Either party has a serious and incurable sexuallytransmissible
disease, even if not concealed.*
Action to Annul: Action in rem, concerns status of
parties; res is relation between parties or marriage
tie; jurisdiction depends on nationality or domicile
not the place of celebration.
Grounds for Annulment explained:
(1) Lack of parental consent
(a) 18 x < 21 without parental consent
(b) Ratified by party 18 or above but below 21
upon free cohabitation upon reaching 21.
(c) TOLENTINO: parents whose consents were
wanting may ratify before 21; this right can be

waived; however, the Code Commission

believes that no such ratification can be made
by the parent.
(2) Insanity
(a) Mental incapacity or insanity is a vice of
consent; insanity (1) of varying degrees, (2)
curable being an illness, capable of
ratification or convalidation, (3) has lucid
intervals, (4) ground only for annulment in
many countries
(b) Can be ratified by cohabitation after insanity is
cured or during a lucid interval
(c) Mere mental weakness is not a ground for
annulment, but if found grave enough may
amount to psychological incapacity.
(d) Intoxication, somnambulism where one had
no mental capacity to give consent is
equivalent to insanity
(e) Must EXIST AT THE TIME of the celebration of
the marriage.
(f) Law presumes SANITY, burden of proof on
party alleging insanity
(3) Fraud
(a) Only those enumerated in Art. 46:

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(1) Non-disclosure of previous CONVICTION

by final judgment of a crime involving
MORAL TURPITUDE
(2) Concealment by wife at the time of
marriage, that she was pregnant by
another man
(3) Concealment of STD regardless of nature
existing at time of marriage
(4) Concealment of drug addiction, habitual
alcoholism, homosexuality, lesbianism
existing at time of marriage
(b) NO other misrepresentation or deceit of
CHARACTER, HEALTH, RANK, FORTUNE OR
CHASTITY shall constitute FRAUD.
(c) Conviction of Crime: requisites are
(1) Moral turpitude
(2) Conviction
(d) Concealment of Pregnancy
(1) Fraud against very essence of marriage;
importance of procreation of children; an
assault to the integrity of the union by
introducing ALIEN BLOOD
(2) If husband knew of pregnancy, the
marriage cannot be annulled on the
ground of concealment
(e) Marriage cannot be annulled on the ground
that wife concealed the fact that she had been
lewd & corrupt and had illegitimate child.
(Shrady v. Logan (1896))
(f) Maybe ratified upon free cohabitation after

knowledge of fraud.
Art. 45 STD
Art. 46 STD
Ground for annulment The STD is a type of
fraud which is a ground
for annulment
Does not have to be
concealed
Must be concealed
Must be serious and
incurable
Need not be serious nor
incurable
The STD itself is the
ground for annulment
It is the concealment
that gives rise to the
annulment
Effect of Cure to Fraud in Art. 46:
Recovery or rehabilitation from STD, drug addiction,
and habitual alcoholism will NOT BAR ACTION for
annulment; The defect is not the disease, but the
FRAUD which VITIATED CONSENT.
Buccat v. Mangonon de Buccat, (1941):
Wife gave birth 3 months after marriage celebration.
Husband filed for annulment. Denied. Ground:
Concealment of non-virginity. Court held that it was
unbelievable that husband could not have noticed
when wife had been at least 6 months pregnant prior
to marriage.
Aquino v. Delizo, (1960):
The Supreme Court granted annulment because the
wife concealed the fact that she was 4 months
pregnant during the time of the marriage. It argued
that since Delizo was naturally plump, Aquino could
hardly be expected to know, by mere looking, whether
or not she was pregnant at the time of the marriage.
Almelor v. RTC, (2008):
It is the concealment of homosexuality, and not
homosexuality per se, that vitiates the consent of the
innocent party. Such concealment presupposes bad
faith and intent to defraud the other party in giving
consent to the marriage.
Corpuz v. Ochoterena, (2004):
In a legal separation or annulment case, the
prosecuting attorney must first rule out collusion as a
condition sine qua non for further proceedings. A
certification by the prosecutor that he was present
during the hearing and even cross-examined the
plaintiff does not suffice to comply with the mandatory
requirement.
(4) Force, intimidation, undue influence
(a) FORCE must be one as to prevent party from
acting as a free agent; will destroyed by
fear/compulsion

(b) INTIMIDATION must be one as to compel the

party by reasonable/well-grounded fear/evil
imminent upon person/properties
(c) DEGREE OF INTIMIDATION: age, sex,
condition of person borne in mind
(d) Threat or intimidation as not to act as FREE
AGENT; threatened of armed demonstrations
by brother is ANNULLABLE (Tiongco v Matiga)
(e) Man rapes a girl, marries her to conceal the
rape & has no intention to live with the girl;
marriage is annullable (People v Santiago
(1927))
(f) Committee added undue influence, maybe
compelled to enter out of REVERENTIAL
FEAR e.g., fear of causing distress to parents,
grandparents, etc.
(g) May be ratified upon cohabitation after force,
intimidation, or undue influence has ceased or
disappeared.
(5) Impotency
(a) Must exist at time of marriage, must be
continuous, must be incurable; thus if
incapacity can be remedied or is removable by
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operation, NOT ANNULLABLE (Sarao v

Guevarra(1940))
(b) Should be unknown to the other party
(c) Physical condition: sexual intercourse with a
person of the opposite sex is impossible, not
mere sterility
(d) When both spouses are impotent, marriage
cannot be annulled because neither spouse is
aggrieved
(e) POTENCY PRESUMED; party who alleges
impotency has burden of proof (Jimenez v
Canizares (1960))
(f) Although potency is presumed, there is a
doctrine in England called TRIENNIAL
COHABITATION that if wife remains virgin
after 3 yrs, husband presumed impotent & has
burden to prove otherwise (Tompkins v
Tompkins)
(g) REFUSAL of wife to be examined DOES NOT
PRESUME impotency because Filipino women
are inherently shy & bashful; TC must order
physical examination because w/o proof of
impotency, she is presumed potent; to order
her to undergo physical exam does not
infringe constitutional rights against selfincrimination
(Jimenez v Canizares)
(h) Villanueva vs. CA (2006): Absence of
cohabitation is not a ground for annulment.
(i) NOTE: if wife continues to refuse to undergo
physical exam, she can be held for
CONTEMPT & ordered to be confined in jail

until she does so

(j) RELATIVE IMPOTENCY: may now be invoked
because there are cases where one is
impotent with respect to his spouse but not
with other men or women.
(k) EXAMPLE: penile erection to other women
possible; unusually large penis cannot fit with
abnormally small vagina
(6) Sexually-transmissible disease serious and
incurable
(a) Should exist at the time of the marriage
(b) Should be found serious
(c) Should appear to be incurable
(d) Should be unknown to other party
(e) Reason: danger to the health of spouse &
offspring/s
(f) Same as incurable impotency
(g) Not subject to ratification cannot be ratified
or convalidated by prescription or
cohabitation:
(a) Prior subsisting marriage; would result in
anomalous relationship
(b) Vitiated by impotency remains as long as
afflicted
(c) Vitiated by affliction of STD remains as
long as afflicted
(d) Affliction of STD is unknown to the other
spouse (Balane)
(e) The other spouse must also be free from a
similar STD. (Balane)
(h) 2 & 3 above prescribe w/in 5 yrs by Art. 47(5)
Who may file, Prescription, Ratification
Ground
(Art. 45)
Who can file
(Art. 47)
Prescription
(Art. 47)
Ratification
(Art. 45)
Lack of
parental
consent
Under-aged party (18 or above
but below 21)
Within 5 years after attaining
21.
Free cohabitation after
attaining age of 21.
Parent or guardian without
consent
Before party below 21 reaches
21.
Insanity Sane spouse with no
knowledge of the others

insanity
Legal guardian of insane party
Any time before the death of
either party
Free cohabitation of insane
party after insane party
comes to reason
Insane party During lucid interval or after
regaining sanity, and before
death
Fraud Injured party (defrauded party) Within 5 years after discovery
of fraud
Free cohabitation after having
full knowledge of fraud
Force,
intimidation,
undue
influence
Injured party Within 5 years after
disappearance of force, undue
influence, or intimidation
Free cohabitation after the
force or intimidation or undue
influence has ceased or
disappeared
Impotence Potent spouse Within 5 years after marriage Cannot be ratified but action
prescribes
STD Healthy party Within 5 years after marriage Cannot be ratified but action
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Ground
(Art. 45)
Who can file
(Art. 47)
Prescription
(Art. 47)
Ratification
(Art. 45)
prescribes
Marriages Not Subject to Ratification/ Convalidation
by cohabitation
(1) One spouse is incurably impotent (Art. 47
prescription: 5 years)
(2) One spouse has an incurable STD (Art. 47
prescription: 5 years)
(3) Sane spouse marries an insane spouse w/o
knowledge of insanity
Presence of Prosecutor
Art. 48: To prevent collusion between the parties,
fabrication or suppression of evidence, the prosecuting
attorney or fiscal shall appear on behalf of the State.
EFFECT OF PENDING ACTIONS/DECREE
Art. 49: During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the
support of the spouses and the custody and support of

their common children. The Court shall give

paramount consideration to the moral and material
welfare of said children and their choice of the parent
with whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights
of the other parent.
(1) The court shall provide for the support of the
spouses,
(2) The custody and support of the common children,
giving paramount consideration to their moral
and material welfare, their choice of parent with
whom they wish to remain.
(3) The court shall also provide for visitation rights of
other parent.
Decisions on the nullification of the marriage
Art. 48 (2): In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
Stipulation of Facts: An admission by both parties
after agreeing to the existence of any of the grounds
or facts that would constitute a void/voidable
marriage
Confession of judgment: The admission by one party
admitting his/her fault to cause the invalidity of the
marriage.
EFFECTS OF NULLITY

The effects provided for by paragraphs (2), (3), (4)

and (5) of Article 43 and by Article 44 shall also apply
in the proper cases to marriages which are declared
ab initio or annulled by final judgment under Articles
40 and 45 (Art. 50(1)).
Final judgment in such cases shall provide for the
liquidation, partition, and distribution of the:
(1) Properties of the spouses
(2) Custody and support of the common children
(3) Delivery of their presumptive legitimes
(a) Unless such matters had been adjudicated
in previous judicial proceedings (Art. 50(2))
(b) All creditors (of the spouses/property regime)
shall be notified of the proceedings for
liquidation (Art. 50(2 and 3))
In the partition, the conjugal dwelling and lot shall be
adjudicated to the spouse with whom majority of the
common children remain (Art. 102 and 129) (Art.
50(4)
Presumptive legitimes, computed as of the date of
the final judgment, shall be delivered in cash,
property or sound securities:
(1) Unless the parties, by mutual agreement
judicially approved, had already provided for such
(Art. 51(1))
(2) The children/guardian/trustee of property may
ask for the enforcement of the judgment (Art.
51(2))
(3) The delivery of the presumptive legitimes shall

not prejudice the ultimate successional rights,

but the value of the properties already received
shall be considered as advances on their legitime
(Art. 51(3))
Generally, children born or conceived within void
marriages are illegitimate.
Exceptions:
(a) Children conceived or born before the judgment
under Article 36 has become final and executor
(Art. 54)
(b) Children conceived or born of subsequent
marriages under Article 53 (Art. 54)

Legal Separation

GROUNDS FOR LEGAL SEPARATION

Note: The grounds for legal separation are exclusive.
(Article 55) (RPC Final DH BSAA)

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These must be filed within 5 years after occurrence of

cause (Article 57)
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral Pressure to compel the
petitioner to change religious or political
affiliation;
(3) Attempt of respondent to Corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or Homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
Bigamous marriage, whether in the Philippines
or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent Against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
People v. Zapata and Bondoc (1951):
Adultery is not a continuing crime, but is
consummated and exhausted at the moment of carnal
union. Each sexual act constitutes one act of adultery.
As such, every sexual act is a ground for legal
separation.
Gandioco v. Pearanda (1989):
In sexual infidelity as a ground for legal separation,
there is no need for prior conviction for concubinage,
because legal separation only requires a
preponderance of evidence, as opposed to proof

beyond reasonable doubt required in concubinage.

Lapuz Sy v. Eufemio (1972):
The death of one party in a legal separation case
abates the action. This is because the death of either
spouse automatically dissolves the marriage. An
action for legal separation is also purely personal
between the spouses.
Dela Cruz. v. Dela Cruz (1968):
Abandonment is not mere physical estrangement but
also financial and moral desertion. There must be an
absolute cessation of marital relations, duties, and
rights with the intention of perpetual separation.
ACTS OF VIOLENCE ACCORDING TO RA 9262
(1) Causing physical harm to the woman or her child;
(2) Threatening to cause the woman or her child
physical harm;
(3) Attempting to cause the woman or her child
physical harm;
(4) Placing the woman or her child in fear of
imminent physical harm;
(5) Attempting to compel or compelling the woman or
her child to engage in conduct which the woman
or her child has the right to desist from or desist
from conduct which the woman or her child has
the right to engage in, or attempting to restrict or
restricting the woman's or her child's freedom of
movement or conduct by force or threat of force,
physical or other harm or threat of physical or
other harm, or intimidation directed against the
woman or child. This shall include, but not
limited to, the following acts committed with the
purpose or effect of controlling or restricting the
woman's or her child's movement or conduct:
(a) Threatening to deprive or actually depriving
the woman or her child of custody to her/his
family;
(b) Depriving or threatening to deprive the woman
or her children of financial support legally due
her or her family, or deliberately providing the
woman's children insufficient financial
support;
(c) Depriving or threatening to deprive the woman
or her child of a legal right;
(d) Preventing the woman in engaging in any
legitimate profession, occupation, business or
activity or controlling the victim's own money
or properties, or solely controlling the
conjugal or common money, or properties;
(6) Inflicting or threatening to inflict physical harm on
oneself for the purpose of controlling her actions
or decisions;
(7) Causing or attempting to cause the woman or her
child to engage in any sexual activity which does
not constitute rape, by force or threat of force,
physical harm, or through intimidation directed

against the woman or her child or her/his

immediate family;
(8) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that
alarms or causes substantial emotional or
psychological distress to the woman or her child.
This shall include, but not be limited to, the
following acts:
(a) Stalking or following the woman or her child in
public or private places;
(b) Peering in the window or lingering outside the
residence of the woman or her child;
(c) Entering or remaining in the dwelling or on the
property of the woman or her child against
her/his will;
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(d) Destroying the property and personal

belongings or inflicting harm to animals or
pets of the woman or her child; and
(e) Engaging in any form of harassment or
violence;
(9) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support
or custody of minor children of access to the
woman's child/children.
DEFENSES
GROUNDS FOR DENYING LEGAL SEPARATION (ARTICLE 56)
(4CMPRD):
(1) Condonation by aggrieved party
(2) Consent by aggrieved party to the commission of
the offense
(3) Connivance between parties in the commission of
the offense
(4) Mutual guilt or Recrimination between spouses in
the commission of any ground for legal
separation
(5) Collusion between parties to obtain decree of
legal separation
(6) Prescription of action for legal separation (Art. 57:
5 years from occurrence of the cause of action)
(7) Reconciliation of parties during pendency of
action (Art. 66 par.1)
(8) Death of either party during pendency of action
(Lapuz-Sy vs. Eufemio)
COOLING-OFF PERIOD AND RECONCILIATION
EFFORTS
Action cannot be tried before six months have
elapsed from the filing of the petition (Art. 58).
Action cannot be tried unless the court has
attempted to reconcile the spouses, and determined
that despite such efforts, reconciliation is highly
improbable (Art. 59)
Note: This is without prejudice to judicial

determination of custody of children, alimony, and

support pendente lite.
Araneta vs. Concepcion, (1956):
Courts can still resolve other issues, pending the
waiting period or cooling off period. In resolving issues,
try not to touch, as much as possible, on the main
issue (i.e. adultery if that is the ground used). However,
Court must still receive evidence if just to settle
incidental issues of support and custody.
Note: This provision of the Family Code dictating a
mandatory 6-month cooling-off period does not
apply in cases where violence, as used in RA 9262
(Anti-Violence Against Women and their Children), is
alleged. The case should be heard as soon as
possible by the court.
CONFESSION OF JUDGMENT
No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment (Art.
60, par. 1. FC).
Note: Art. 60 par. 1 applies only if the judgment was
based solely on the stipulation of facts or solely on
the confession of judgment. Thus, if other grounds
were used, Art. 60 par. 1 is not applicable. (Balane)
Ocampo v Florenciano (1960):
The prohibition on confession of judgment does not
mean that the Court will not grant petition if one party
admits to being guilty of the charges of adultery. The
point of this provision is that the Court should still
admit evidence, not decide just based on an admission
of guilt. Because what is prohibited is handing down a
decree of legal separation based solely on a confession
of judgment.
EFFECTS OF FILING PETITION
(1) The spouses are entitled to Live separately, but
the marital bond is not severed. (Art. 61 (1)
(2) Administration of Community or Conjugal Property
If there is no written agreement between the
parties, the court shall designate one of them or a
third person to administer the ACP or CPG. (Art.
61, par. 2)
EFFECTS OF PENDENCY
The Court shall provide for: (Art. 62, cf. Art. 49. FC)
(a) Support of spouses
(b) Custody of children
The court shall give custody of children to one of
them, if there is no written agreement between
the spouses. It shall also provide for visitation
rights of the other spouse.
(c) Visitation rights of the other spouse
EFFECTS OF LEGAL SEPARATION
(1) The spouses can live separately (Art. 63) but the
marriage bonds are not severed.
(2) The ACP or CPG shall be dissolved and liquidated,
and the share of the guilty spouse shall be
forfeited in favor the common children, previous

children, or innocent spouse, in that order (Art.

63. cf. Art. 43, par. 2).
(3) Custody of the minor children shall be awarded to
the innocent spouse (Art. 63, cf. Art 213)
(4) Guilty spouse shall be disqualified from Inheriting
from innocent spouse by intestate succession.

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The provisions in favor of the guilty party in the

will of the innocent spouse shall also be revoked
by operation of law. (Art. 63)
(5) Donations in favor of the guilty spouse may be
revoked (Art. 64) but this action prescribes after 5
years from the decree of legal separation.
(6) Innocent spouse may also revoke designation of
guilty spouse as beneficiary in an Insurance policy,
even if such stipulations are irrevocable. (Art. 64.
FC, cf. PD 612, sec. 11)
(7) Obligation for Mutual support ceases, but the
court may order the guilty spouse to support the
innocent spouse. (Art. 198)
(8) The wife shall continue to use the Surname of the
husband even after the decree for legal
separation. (Art. 372, CC)
RECONCILIATION
HOW DONE

Should the spouses reconcile, they should file a

corresponding joint manifestation under oath of such
reconciliation. (Art. 65)
EFFECTS OF RECONCILIATION

(1) Proceedings for legal separation shall be

terminated at whatever stage. (Art. 66)
(2) If there is a final decree of legal separation, it
shall be set aside. (Art. 66)
(3) The separation of property and forfeiture of share
of guilty spouse shall subsist, unless the spouses
agree to revive their former property regime or to
institute another property regime. (Art. 66 cf. Art.
67)
(4) Joint custody of children is restored.
(5) The right to intestate succession by guilty spouse
from innocent spouse is restored.
The right to testamentary succession depends on
the will of the innocent spouse.
ANNEX TO VOID AND VOIDABLE MARRIAGES AND LEGAL SEPARATION
GROUNDS

Void Marriages
Voidable Marriages
Legal Separation
One is a minor Lack of parental consent Repeated Physical Violence
No authority to marry Insanity Pressure to compel to change religious/political
affiliations
No valid marriage license Fraud Corruption / Inducement to engage in prostitution
Bigamous and polygamous
marriages
Force, Intimidation or
Undue Influence

Final judgement with sentence of more than 6 yrs.

Mistake of identity Impotence Drug Addiction / Habitual Alcoholism
Void subsequent marriage Serious and Incurable
STD
Homosexuality / Lesbianism
Psychological incapacity Bigamous marriage (engaging in)
Incestuous Marriages Sexual Infidelity
Marriages against public
policy
Attempts against the life
Abandonment without just cause for more than 1
year
EFFECTS OF FILING / PENDING DECREE
Void/Voidable Marriages
Legal Separation
Support for the spouses
Custody and support for the children
Visitation rights to the other spouse
No right to live separately Spouses to live separately
Properties are still managed by both parties Designation of an administrator of the
properties
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EFFECTS OF AFFIDAVIT OF REAPPEARANCE, JUDICIAL DECLARATION OF NULLITY, ANNULMENT AND

LEGAL SEPARATION

Void Marriages Terminated Marriage (Art.

41)
Voidable Marriages Legal Separation
Status of Marital ties
Severed Severed Severed Not Severed
Status of Marriage
Void ab initio Subsequent marriage is
terminated (not
invalidated)
Void Valid
Status of Children born and conceived before termination
Illegitimate
EXCEPT: Art. 36 and 35 conceived
and born before judgement
(legitimate)
Legitimate Legitimate Legitimate
Custody of Children
Court Proceeding Court Proceeding Court Proceeding Innocent Spouse
Property Relations
(1) Dissolution and Liquidation of properties
(a) Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order):
(i) Common children
(ii) Children of the guilty spouse
(iii) Children of the innocent spouse
(2) Notification of creditors with the proceedings for liquidation
(3) Conjugal dwelling to be adjudicated to the spouse who has majority custody of common
children
(4) Insurance policy may be revoked only by the innocent spouse (Legal Separation: Only
within 5 years)
(5) Spouse in bad faith/guilty shall be disqualified to inherit (testate and intestate)
Donation Propter Nuptias

Valid, but if donee contracted marriage in bad faith, revoked by operation of law May be
revoked within 5
years

Rights and Obligations

between Husband and Wife
ESSENTIAL OBLIGATIONS
(1) Live together (cohabitation Art. 68)
Exemption: One spouse living abroad or there are
valid and compelling reasons (Art. 69 (2))
Exemption To Exemption: Incompatibility with the
solidarity of the family (Art. 69 (2))
(2) Observe mutual love, respect, and fidelity
(3) Render mutual help and support (Art. 68)
Ilusorio v. Bildner (2000): A person has a purely
personal right to consortium (Constitutional right to
liberty). Court cannot order a man to go back to the
conjugal dwelling. (Shows that what is in Family Code
is not the former spousal unity doctrine (Old
England)).
Goitia v. Campos Rueda (1916): The husband
demanded the wife perform unchaste and lewd
sexual acts. The wife refused but the husband kept
insisting. The wife left the family home. Wife petitioned
for support/ separate maintenance.
SC: Court cannot compel the woman to go back to the
husband. The duty of the husband to support the wife
is also not terminated because she left the house,
when it is the husbands fault she left in the first place.
Husband is compelled, in this case, to give support for
separate maintenance (outside family home).
Arroyo v. Vasquez de Arroyo (1921): A court cannot
compel a married woman to go back to her husband.
FAMILY DOMICILE
The husband and wife shall fix the family domicile.
(Art. 69)
In case of disagreement, the court shall decide. (Art.
69 (1))
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SUPPORT
From the conjugal property; If none, income or the
fruits of their separate properties; if none, from their
separate properties (liable in proportion to their
properties).
MANAGEMENT OF HOUSEHOLD
This is the right and duty of both spouses.
EFFECT OF NEGLECT OF DUTY
In case the other spouse neglects his or her duties or
commits acts which tend to bring danger, dishonor
or injury to the family, the aggrieved party may apply
to the court for relief. (Art. 72)
Injury contemplated is physical, moral, emotional or
psychological, not financial.
EXERCISE OF PROFESSION

Either spouse may exercise any legitimate

profession, without need for consent of the other.
(a) The other spouse may only object on valid,
serious, and moral grounds.
(b) In case of disagreement, the Court shall decide
whether:
(1) The objection is proper, and
(2) Benefit has accrued to the family before OR
after the objection.
If BEFORE the objection, enforce resulting obligation
against the separate property of the spouse who has
not obtained consent.

Property Relations of the

Spouses

MARRIAGE SETTLEMENTS
Art. 75. Future spouses may agree upon, in the
marriage settlement, which property regime will
govern their marriage (ACP, CPG, complete
separation of property, other regimes). However, in
the absence of a marriage settlement, or when the
regime agreed upon is void, the system of absolute
community of property as established by this Code
shall govern.
Marriage settlements are considered accessory to
the marriage, therefore as per Art. 81, stipulations in
consideration of future marriage and donations will
be void if the marriage does not take place.
MARRIAGE SETTLEMENT RULES

When modifications can be

made
General rule: Before marriage is celebrated [Art. 76]
Art. 63(2) Property regime is dissolved
Arts. 66 and 67 - Reconciliation in case of legal separation
Art. 128 - When spouse leaves family without just cause
Art. 135 - Sufficient cause for judicial separation of property
Art. 136 - Voluntary dissolution of ACP or CPG by the spouses
If a spouse petitions the court for:
(1) Receivership;
(2) Judicial separation of property; or,
(3) Authority to be the sole administrator of the conjugal partnership, if he or she is
abandoned by the other without just cause or fails to comply with his or her obligations to
the family [Art. 128]
Requirements of marriage
settlements and any
modification thereof [Art. 77]
Made in writing
Signed by the parties
Executed before the marriage celebration
Registered in the local civil registry where the marriage is recorded and in registries of
property in order to prejudice third persons
If executed by a person below 21 y.o., valid only when persons required to give consent to
the
marriage (father, mother, or guardian, respectively) are made parties to the agreement [Art.
78]

If executed by a person upon whom civil interdiction has been pronounced or who is subject
to any other disability, valid only when his guardian is made party to the agreement [Art. 79]
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DONATIONS BY REASON OF MARRIAGE

Solis v. Barroso (1928): In donations propter nuptias, the marriage is really a consideration,
but not in the sense of
giving birth to the obligation. There can be a valid donation even if the marriage never took
place, but the absence
of marriage is a ground for the revocation fo the donation.
Mateo v. Lagua (1969): Donations propter nuptias are without onerous consideration,
marriage being merely the
occasion or motive for the donation, not its cause. Being liberalities, they remain subject to
reduction for
inofficiousness upon the donors death, if they should infringe the legitime of a forced heir.
Requisites of
donations propter
nuptias
Made before the celebration of marriage
Made in consideration of marriage
In favor of one or both of the future spouses
Donor must be one of the betrothed or any third person
Donations excluded
Ordinary wedding gifts given after the celebration of the marriage
Donations in favor of future spouses made before marriage but not in consideration
thereof
Donations made in favor of persons other than the spouses even if founded on the
intended marriage
Who may donate
Spouses to each other
Parents of one or both spouses
Third persons to either or both spouses
Sources of rules
governing donations
propter nuptias
Family code provisions [Arts. 82-87]
Ordinary donation provisions [Art. 83; Title III of Book III, NCC]
Provisions on testamentary succession and the formalities of wills for donations on future
property [Art. 84, par. 2]
Rules for donations
before marriage
General rule: Future spouses cannot donate to each other more than 1/5 of their present
property (excess shall be considered void). [Art. 84]
Exception: If they are governed by ACP
Donations of property subject to encumbrances
(1) Are considered valid.
(2) In case of foreclosure:
(a) if property value < obligation, donee shall not be liable for the deficiency
(b) if property value > obligation, donee shall be entitled to the excess (Art. 85)
Grounds for
revocation of donation
propter nuptias [Art.
86]
(1) If the marriage is not celebrated or judicially declared void ab initio, except donations
made in settlements.
(2) When the marriage takes place without the consent of the parents or guardians, as

required by law.
(3) When the marriage is annulled, and the donee acted in bad faith.
(4) Upon legal separation, if the donee is the guilty spouse.
(5) If there is a resolutory condition, and it is not complied with.
1. When donee has committed an act of ingratitude: [Art. 765, CC]
a. An offense against person or property of donor, or his wife or children under
parental authority.
b. An imputation to the donor of any criminal offense, or any act involving moral
turpitude, even if proven, unless the crime is committed against the donee, his wife
or children under his authority.
c. Refusing to support the donor, if he/she is legally required to do so.
Effects of judicial
declaration of nullity
Donations by reason of marriage shall remain valid except that if the donee contracted
marriage in bad faith, such donations made to said donee are revoked by operation of law.
[Art. 43 (3)]
Revocation by operation of law - Thus, even if spouse in good faith condones the donee,
the donation propter nuptias is still forfeited.
Effects provided for by Art. 43(2), (3), (4), and (5) and by Art. 44 shall also apply to
marriages that are declared void ab initio or annulled by final judgment under Article 40
(Judicial declaration of nullity) and 45 (Voidable marriages). [Art. 50]
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Rules for donations

during marriage
General rule: Spouses cannot donate to each other, directly or indirectly (donations made
by spouses to each other during the marriage are void). [Art. 87]
Exception: Moderate gifts on the occasion of any family rejoicing.
Harding v. Commercial Union, (1918): The prohibition on donations can only be assailed by
persons who bear such relation to the parties or the property itself, that their rights are
being interfered with. Here, the insurance company of the donated car cannot assail the
validity of the donation. In addition, the codal exception of moderate gifts depends on
the income class of the spouses and a car could be considered a moderate gift that does
not infringe the prohibition of donation between spouses.
Rules for donations
between common-law
spouses
Matabuena v Cervantes, (1971): The donation between common-law spouses falls within
the provision prohibiting donations between spouses during marriage.
Sumbad v. CA, (1999): The donation made by a man to a woman was held valid because no
proof was shown that they were still living in a common-law relationship at the time of the
donation.
DISTINGUISHED FROM ORDINARY DONATIONS

Donations Propter Nuptias Ordinary Donations

Does not require express acceptance Express acceptance necessary
May be made by minors (Art. 78) Cannot be made by minors
May include future property Cannot include future property
If present property is donated and property is not
absolute community, limited to 1/5 (Art. 84)
No limit to donation of present property provided
legitimes are not impaired
Grounds for revocation - In Art. 86 Grounds for revocation - in donation laws
ABSOLUTE COMMUNITY OF PROPERTY AND CONJUGAL PARTNERSHIP OF GAINS
Art. 80. Property relations between Filipino spouses are governed by Philippine laws,
regardless of the place of
marriage and their residence.

By the Nationality Rule [Art. 15], the rule that Absolute Community Property (ACP) is the
default mode of property
relations absent any marriage settlement applies to all Filipinos, regardless of the place of
the marriage and their
residence.
Exceptions:
(1) Where both spouses are aliens
(2) As to the extrinsic validity of contracts
(3) Contrary stipulation
Art. 81. Everything stipulated in marriage settlements in consideration of a future marriage
are void if marriage
does not take place. However, stipulations that do not depend upon the celebration of
marriage (e.g.: recognition
of paternity of illegitimate child) remain valid.
Art. 89. As a general rule, a waiver of rights is not allowed, except in the following cases:
(1) When there is judicial separation of property
(2) When there is legal separation
(3) When the marriage is dissolved by death of one of the spouses
(4) When the marriage is annulled
Art. 90. Co-ownership rules shall apply to ACP in matters not provided by the Family Code.
COMPARISON OF ACP AND CPG

Absolute Community Property Conjugal Partnership Of Gains

When it commences
At the precise moment of the celebration
of the marriage [Art. 88]
Default property regime for marriages celebrated before the Family
Code took effect (1988)
For marriages after the Family Code, if agreed to by the parties
through a marriage settlement.
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Absolute Community Property Conjugal Partnership Of Gains

What it consists of
All the property owned by the spouses at
the time of the celebration of the
marriage or acquired thereafter [Art. 91]
Proceeds, products, fruits, and income of their separate properties
Everything acquired by them within marriage through their own
efforts
Under the ACP, spouses cannot exclude
specific properties from the regime.
Everything acquired by them by chance
Acquired by onerous title during the marriage at the expense of the
common fund
Winnings from gambling shall accrue to
the community property [Art. 95]
Acquired through the labor, industry, work, or profession of either or
both spouses
Fruits from common property and net fruits of the exclusive
property of each spouse
Share of either spouse in hidden treasure, whether as finder or
owner of property where treasure was found
Acquired through occupation such as fishing or hunting
Livestock existing at dissolution of partnership in excess of what is
brought by either spouse to the marriage
Acquired by chance, such as winnings from gambling or betting

Moral damages arising from a contract paid from the CPG [Zulueta
v. Pan Am (1973)]
Loans contracted during the marriage are conjugal, and so is any
property acquired therefrom [Mendoza v. Reyes (1983)]
Property purchased by installment, paid partly with conjugal funds
and partly with exclusive funds, if full ownership was vested during
the marriage; the CPG shall reimburse the owner-spouse [Art. 118]
If a winning ticket is bought by conjugal funds, the prize is conjugal
(otherwise, the prize is exclusive property of the spouse who owns
the ticket)
Improvement on exclusive property: if original value < new value
(where new value = value of land + value of improvements + net
change in value), then land becomes conjugal property, subject to
the reimbursement of the value of the property of the ownerspouse
at the dissolution of the CPG
Property belonging to one spouse converted into another kind
totally different in nature from its original form during marriage
becomes conjugal in the absence of proof that the expenses of the
conversion were exclusively for the account of the original ownerspouse,
subject to reimbursement of the value of the original
property from the conjugal partnership
What remains exclusive property
Properties acquired before the marriage,
for those with legitimate descendants with
a former marriage (to protect rights of
children by a former marriage)
Property brought into a marriage by each spouse as his/her own
Properties acquired by a gratuitous title,
i.e. donation, inheritance by testate and
intestate succession, including the fruits
of such properties
Except: When expressly provided by
the donor or testator that the property
shall form part of the ACP
Property acquired by either spouse during the marriage by
gratuitous title
Properties for personal use
Except: Jewelry
Property acquired by right of redemption, by barter, or by exchange
with property belonging to either spouse
Plata v. Yatco: Plata purchased property when she was single.
When married, she and her husband Bergosa co-signed a
mortgage on the property. Upon foreclosure, Bergosa was
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Absolute Community Property Conjugal Partnership Of Gains

sued for illegal detainer. A writ of execution on the property
was carried out but Plata refused to leave the premises. SC
ruled that Plata cannot be held in contempt. Property is not
conjugal. Her husband signing as co-mortgagor does not
convert it to CPG. She could ignore execution because the
decision was for her husband alone.
Property purchased with exclusive money of either spouse
Property purchased by installment, paid partly with conjugal funds
and partly with exclusive funds, if full ownership was vested before
the marriage [Art. 118]

Even if the installment is completed after the marriage, the

property is exclusive if ownership was vested in one spouse before
the marriage [Lorenzo v. Nicolas (1952)]
Improvement on exclusive property: if original value > new value
(where new value = value of land + value of improvements + net
change in value), then land remains exclusive property of the
owner-spouse, subject to the reimbursement of the cost of
improvement
Money received under the Social Security Act is not conjugal,
although the employee-spouse contributes to the SS with his
salaries, but belongs to the designated beneficiary under the
Social Security Law. SSA governs, not FC.
Intellectual property, like copyright or patent, should, according to
Tolentino, be considered separate property
Business property (e.g. trademarks, trade names, service marks,
business goodwill) are merely accessories to some commercial
establishment or product, so that if such establishment or product
is separate property of one spouse, then all the business property
is separate property; but all benefits or earnings derived from
these during the marriage should belong to the conjugal property
(Tolentino)
Collection of credits belonging to one spouse exclusively but the
interests shall belong to the CPG [Art. 119]
Sale of separate property of a spouse
Indemnity paid in case of expropriation of separate property or
under an insurance policy covering separate property
Presumption
All properties acquired during the
marriage form part of the ACP, unless it
be proven that they are excluded. [Art.
93]
All property acquired during the marriage, whether made,
contracted, or registered in the name of one spouse, are presumed
conjugal unless the contrary is prove. [Art 116]
As a condition sine qua non in favor of the conjugal partnership,
the party who invokes the presumption must first prove that the
property was acquired during the marriage [Acabal v. Acabal
(2005)]
Charges and obligations
Art. 94 Arts. 121-123
Support of the following:
(1) Spouses
(a) Even if not living together, except
when a spouse leaves conjugal
home without just cause
(b) Even during pendency of action for
legal separation/annulment of
Debts and obligations
(1) Parag. 2: Debts incurred
(a) By administrator-spouse for the benefit of the family
(b) By both spouses
(c) By one spouse with the consent of the other
(2) Parag. 3: By one spouse without the consent of the other for the
benefit of the family
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Absolute Community Property Conjugal Partnership Of Gains

marriage
(2) Common children
(3) Legitimate children of previous
marriage
(4) Illegitimate children follow the
provisions on Support and parag. 9
(3) Parag. 7: Ante-nuptial debts for the benefit of the family
Debts and obligations contracted during
the marriage
(1) Either by both spouses or one of them,
with the consent of the other
(2) In parags. 2 and 3, creditors need not
prove that the debts benefited the
family
Taxes and expenses
(1) Parag. 4: Maintenance of the CPG properties
(2) Parag. 5: Mere preservation of all exclusive properties
(3) Parag. 9: Litigation expenses, unless the suit is groundless
Debts contracted by one spouse without
consent of the other ACP is liable only
to the extent that the debt benefited the
family
Support
(1) Parag. 1: Support of spouses and common children
(2) Parag. 6: Education of spouses, absolute
(3) Parag. 8: Education of common children, only for value of
donation
Support to surviving spouse & children during liquidation is
charged against the fruits or income of their shares in the
properties. [Art. 133]
Tax, liens, repairs (both major and minor)
on community property
Debts incurred in the exercise of a spouses profession [Javier v.
Osmea (1916)]
Taxes and expenses for mere
preservation of separate properties
- Applies only to separate properties by
either spouse being used by the family,
not those that do not benefit the family
- Expenses limited to minor repairs only
Loan contracts signed by both spouses are conjugal, and they are
jointly liable for payment, even if only one spouse signs a
subsequent promissory note [DPB v. Adil (1988)]
Expenses for professional, vocational, or
self-improvement courses of spouses
Debts incurred during the marriage are presumed to be conjugal
and thus are charged to the CPG [Cobb-Perez v. Latin (1968)]
Ante-nuptial debts that benefited the
family if the ante-nuptial debt did not
benefit the family, the applicable rule is
parag. 9
Donations by both spouses to common
legitimate children, for purposes of
professional/vocational courses or

activities for self-improvement

Ante-nuptial debts not under parag. 7,
support of illegitimate children, and
liabilities of either spouse arising from
crime/quasi-delict
- Only if the debtor-spouse has no
exclusive property or his/her property is
insufficient
- The payments by the ACP are deemed
advances to be deducted from the share
of the guilty spouse upon the
liquidation of the absolute community
Ayala Investment v. Ching (1998):
The Supreme Court ruled that indirect benefits that might accrue
to a husband in signing as a surety or guarantee agreement not in
favor of the family but in favor of his employer corporation are not
benefits that can be considered as giving a direct advantage
accruing to the family. Hence, the creditors cannot go against the
conjugal partnership property of the husband in satisfying the
obligation subject of the surety agreement. A contrary view would
put in peril the conjugal partnership by allowing it to be given
gratuitously as in cases of donation of conjugal partnership
property, which is prohibited
Expenses of litigation between spouses,
except when suit is groundless
If community property is insufficient
except in parag. 9, the spouses are
solidarily liable for the unpaid balance
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Absolute Community Property Conjugal Partnership Of Gains

from their separate properties
Gambling losses shall be borne by the
losing spouses separate property [Art.
95]
Ownership, administration, enjoyment, and disposition
Art. 96: Administration of property
belongs to both spouses, jointly. If they
disagree, the husbands decision prevails.
However, the wife has 5 years to seek
recourse from the court. Otherwise, it is
presumed she agreed to his decision.
Exception: When the other spouse is
incapacitated, or unable to participate in
the administration, e.g. when abroad.
Capacitated spouse may assume sole
powers of administration. However,
power is limited to administration.
Art. 124, par. 1: Administration of property belongs to both spouses,
jointly. In case of disagreement, the husbands decision shall
prevail, subject to recourse by the wife for proper remedy, which
must be availed of within 5 years from the date of the contract
implementing such decision
Sale by the husband of property belonging to the conjugal
partnership without the consent of the wife, when there is no
showing that the latter is incapacitated, is void ab initio [Abalos v.

Macatangay (2004)]
Uy v. CA (2000):
FC124 contemplates a situation where one spouse is absent, or
separated in fact or has abandoned the other or consent is
withheld or cannot be obtained. Such rules do not apply to cases
where the non-consenting spouse is incapacitated or incompetent
to give consent ie, in coma. The proper remedy is to file for
guardianship under the ROC. Even assuming that the rules on
summary proceedings apply, the power of the administrator is the
same as a guardian. So a spouse who desires to sell conjugal
property as administrator must still observe the procedure for the
sale of the wards estate required of judicial guardians under ROC
not the summary judicial proceedings under FC.
De Ansaldo v. Sheriff of Manila (1937): Spouses are not co-owners
of CPG during the marriage and cannot alienate the supposed
interest of each in the said properties. The interest of the spouses
in the CPG is only inchoate or a mere expectancy and does not
ripen into title until it appears after the dissolution and liquidation
of the partnership that there are net assets. [
Either spouse may, through a will,
dispose of his or her interest in the
community property. [Art. 97] However,
the will should refer only to his or her
share in the community property.
Art. 124, par. 2: Disposition or encumbrance of conjugal property
requires the following:
(1) Consent or approval by both spouses, or
(2) Judicial authority secured in court
Donation of one spouse without the
consent of the other is not allowed. [Art.
98]
Exceptions:
(1) Moderate donations to charity due to
family rejoicing or distress
(2) Moderate gifts by each spouse to the
other due to family rejoicing
Moderation depends on the familys
socio-economic status.
ACP allows donations in excess of onefifth
of present property of future spouses
because the donation would form part of
the community property once the
marriage is celebrated. [Art. 84]
Donation of CPG must be with the consent of the other spouse
except moderate donations for charity, on occasions of family
rejoicing, or family distress [Art. 125; cf. Art. 98]
Mere awareness of a transaction is NOT consent [Jader-Manalo v. Camaisa (2002)]
Homeowners Savings & Loan Bank v. Dallo (2005):
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Absolute Community Property Conjugal Partnership Of Gains

In the absence of (court) authority or written consent of the other spouse, any disposition or
encumbrance of the
conjugal property shall be void.
Cheeseman v. IAC (1991):

If however, one of the spouses is an alien, the Filipino spouse may encumber or dispose of
the property w/o the
consent of the former. The property is presumed to be owned exclusively by the Filipino
spouse.
Dissolution of the regime
Terminates upon [Art. 99]:
(1) Death of either spouse follow rules
in Art. 103
(2) Legal separation follow rules in
Arts. 63 and 64
(3) Annulment or judicial declaration of
nullity follow rules in Arts. 50 and
52
(4) Judicial separation of property during
marriage follow rules in Arts. 134 to
138
Terminates upon [Art. 126; cf. Art. 99]:
(1) Death
(2) Legal separation
(3) Annulment or judicial declaration of nullity
(4) Judicial separation of property
Rules on de facto separation [Art. 100]
De facto separation does not affect the
ACP, except that:
(1) Spouse who leaves the conjugal home
without just cause shall not be
entitled to support; however, he/she
is still required to support the other
spouse and the family
(2) If consent is necessary for transaction
but is withheld or otherwise
unobtainable, authorization may be
obtained from the court
(3) Support for family will be taken from
the ACP
(4) If ACP is insufficient, spouses shall be
solidarily liable
(5) If it is necessary to administer or
encumber separate property of
spouse who left, spouse present may
ask for judicial authority to do this
(6) If ACP is not enough and one spouse
has no separate property, spouse who
has property is liable for support,
according to provisions on support
Not affected by de facto separation [Art. 128; cf. Art. 100]
Abandonment [Art. 101]
Present/aggrieved spouse may petition
the court for:
(1) Receivership
(2) Judicial separation of property
(3) Authority to be the sole administrator
of the absolute community, subject to
precautionary conditions that the
court may impose

A spouse is deemed to have abandoned

the other when he or she has left the
conjugal dwelling without any intention
of returning.
Spouse is prima facie considered to have
Abandonment and absence [cf. Art. 101]
Partosa-Jo v. CA (1992):
Physical separation of the spouses, coupled with the husbands
refusal to give support to the wife, sufficed to constitute
abandonment as a ground for an action for the judicial separation
of their conjugal property.
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Absolute Community Property Conjugal Partnership Of Gains

abandoned the other spouse and the
family if he or she has:
(1) Left for a period of 3 months
(2) Failed to inform the other spouse of
his or her whereabouts for a period of
3 months
Liquidation of assets and liabilities
Procedure [Art. 102]
(a) Inventory of assets of ACP and of
spouses, with market values
(b) Obligations are paid with community
property, and separate obligations not
charged to ACP paid by respective
assets of spouses
If obligations exceed the assets of the
ACP, nothing is divided. Creditors can
go after the separate properties of the
spouses, which are solidarily liable for
the deficiency
(c) Delivery of whatever remains in their
exclusive property
(d) Balance, or net remainder is divided
equally between the spouses,
irrespective of how much each
brought into the community
(e) If personal obligations of a spouse
exceed his/her separate property,
creditor can go after the share of the
spouse on the net remainder of the
ACP, without prejudice to the
provisions of law on forfeitures and
delivery of presumptive legitimes
(f) After covering all community
obligations and obligations of
spouses, balance of separate
properties shall be delivered to
respective spouses or their heirs, and
they will also divide into two equal
shares whatever is left of the
community assets, without prejudice
to the provisions of law on forfeitures
and delivery of presumptive legitimes

Procedure [Art. 129]

(1) Prepare an inventory of all properties
(2) Amounts advanced by CPG in payment of personal debts and
obligations shall be credited to the CPG
(3) Reimburse each spouse for the use if his/her exclusive funds in
the acquisition of property or for the value of his or her
exclusive property, the ownership of which has been vested by
law in the conjugal partnership
(4) Debts and obligations of CPG shall be paid out of the conjugal
assets, otherwise both spouses are solidarily liable with their
exclusive property
(5) Remains of the exclusive properties shall be delivered to
respective owner-spouses
(6) Indemnify loss/deterioration of movables belonging to either
spouse, even due to fortuitous event, used for the benefit of the
family
(7) Net remainder of CPG shall constitute the profits which shall
be divided equally between husband and wife except when:
(a) A different proportion or division was agreed upon in the
marriage settlements
(b) There has been a voluntary waiver or forfeiture of such share
as provided in the FC
(8) Presumptive legitimes are delivered to common children
(9) Conjugal dwelling goes to:
(a) Spouse with whom majority of common children choose to
remain (below 7 y.o. = deemed to have chosen the mother)
(b) Whoever the court chooses in case of lack of majority
Rules in case of termination of marriage by death of one of the spouses [Art. 104]:
(1) The community property shall be liquidated in the same proceeding for the settlement of
the estate of the
deceased spouse.
(2) If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the
community
property either judicially or extra-judicially within one year from the death of the deceased
spouse.
(a) If no liquidation is made within the period, any disposition or encumbrance involving
community property of
the terminated marriage shall be void.
(b) Non-compliance with liquidation procedures would mean that a subsequently contracted
marriage will
follow a regime of complete separation of property.
Procedure for liquidation of properties of two marriages [Art. 104]:
(1) Determine the capital, fruits, and income of each community upon such proof as may be
considered
according to the rules of evidence.
(2) In case of doubt as to which community the existing properties belong, they shall be
divided between two
communities in proportion to the capital and duration of each.
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SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON

PROPERTY BY ONE
SPOUSE DURING THE MARRIAGE
Art. 134. In the absence of an express declaration in the marriage settlements, the
separation of property between

spouses during the marriage shall not take place except by judicial order. Such judicial
separation of property may
either be voluntary or for sufficient cause.
JUDICIAL SEPARATION OF PROPERTY MAY EITHER BE (1) VOLUNTARY OR (2) FOR SUFFICIENT CAUSE.
(a) Sufficient Causes and Grounds for Return to Previous Regime
Sufficient Causes for Judicial Separation of Property (Art.
135) (CALASA)
Grounds for Return to Previous Regime
(Art. 141)
(1) Spouse of petitioner has been sentenced to a
penalty which carries with it the penalty of civil
interdiction
(1) Termination of the civil interdiction
(2) Spouse of petitioner is judicially declared an
absentee
(2) Reappearance of absentee spouse
(3) Loss of parental authority of the spouse of
petitioner has been decreed by the court
(5) Restoration of parental authority to the spouse
previously deprived of it
(4) Spouse of petitioner has abandoned the latter or
failed to comply with his or her obligations to the
family
(4) When the spouse who left the conjugal home without
legal separation resumes common life with the other
(5) The spouse granted the power of administration in
the marriage settlements has abused that power
(3) When the court, being satisfied that the spouse
granted the power of administration in will not again
abuse that power, authorizes the resumption of said
administration
(6) At the time of the petition, the spouses have been
separated in fact for at least 1 year and
reconciliation is highly improbable.
(6) Reconciliation and resumption of common life of the
spouse who have separated in fact for at least 1 year
(7) When after voluntary dissolution of the ACP or CPG
has been judicially decreed upon the joint petition of
the spouses, they agree to the revival of the former
property regime. No voluntary separation of property
may thereafter be granted.
Separation of Property
When it applies
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a surviving spouse
without judicial settlement of previous property regime)
Default property regime when there is reconciliation between spouses after judicial
separation
of property
What it consists
of
Present or future property or both
Each spouses earnings from his or her own profession, business, or industry
Natural, industrial or civil fruits of spouses separate properties
May be total or partial

If partial, property not considered separate is presumed to pertain to the ACP

Liabilities
Family expenses: Both spouses are liable in proportion to their income; if insufficient, based
on
the current value of their separate properties
Creditors for family expenses: Spouses solidarily liable
Ownership,
administration,
enjoyment, and
disposition
Spouses may own, dispose, possess, and administer separate estates without the consent of
the
other
Administration of exclusive properties may be transferred between spouses when:
1. One spouse becomes the other spouses guardian
2. One spouse is judicially declared an absentee
3. One spouse is given the penalty of civil interdiction
4. One spouse becomes a fugitive
Conveyance between the spouses is allowed under Art. 1490, NCC.
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In Re: voluntary dissolution of CPG of spouses Bernas (1965):

A voluntary separation of properties is not perfected by mere consent but upon the decree
of the court approving the
same. The petition for voluntary separation of property was denied because the children of
the 1st and 2nd marriages
were not informed; the separation of property may prejudice the rights and shares of the
children.
Maquilan v. Maquilan (2007):
A compromise agreement with judicial recognition is valid, pending petition for declaration
of nullity of marriage.
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE, ARTS. 147-148
Art. 147
Art. 148
Applicability
Man and woman living together as husband
and wife, with capacity to marry (Art.5,
without any legal impediment)
(a) at least 18 years old
(b) not Art. 37 (incestuous void marriage)
(c) not Art. 38 (void marriage by reason of
public policy)
(d) not bigamous
Man and woman living together as husband and wife, NOT
capacitated to marry
(a) Under 18 years old
(b) Adulterous relationship
(c) Bigamous/polygamous marriage
(d) Incestuous marriages under Art. 37
(e) Void marriages by reason of public policy under Art. 38
Other void marriages due to absence of
formal requisite
Salaries and wages
Owned in equal shares Separately owned by parties
Properties acquired through exclusive funds
Remains exclusive, provided there is proof Remains exclusive

Villanueva v. CA (2004): Transfer of certificate

and tax declarations are not sufficient proof
of joint contribution.
Juaniza v. Jose (1979): Property acquired by a married party during
cohabitation with another not his spouse belongs to the CPG of
the marriage, and the other party cannot be held jointly/severally
liable for it
Properties acquired by both through work and industry
Governed by rules on co-ownership Owned in common in proportion to respective
contribution
Properties acquired while living together
Owned in equal shares since it is presumed to
have been acquired through joint efforts
No presumption of joint acquisition. When there is evidence of
joint acquisition but none as to the extent of actual contribution,
there is a presumption of equal sharing.
If one party did not participate in acquisition,
presumed to have contributed through care
and maintenance of family and household
Joaquina v. Reyes (2004): Prohibitions against donations between
spouses must likewise apply to donations between persons living
together in illicit relations
Forfeiture
(1) In favor of their common children
(2) In case of default of or waiver by any or all
of the common children or their
descendants, each vacant share shall
belong to the respective surviving
descendants
In the absence of such descendants, such
share belongs to the innocent party
If one party is validly married to another his/her share in the coowned
properties will accrue to the ACP/CPG of his/her existing
valid marriage
If the party who acted in bad faith is not validly married to another,
his/her share shall be forfeited in the same manner as that
provided in Art 147.
The same rules on forfeiture shall apply if both parties are in bad
faith.
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Yaptinchay v. Torres (1969):

Application of Article 148; there was no proof of actual contribution, while there was a
subsisting marriage apart from
the union without marriage, therefore, the N. Forbes house goes to the CPG of subsisting
marriage
Juaniza v. Jose (1979):
Property acquired by a married party during cohabitation with another not his spouse
belongs to the CPG of the
marriage, and the other party cannot be held jointly/severally liable for it
Villanueva v. CA (2004):
Transfer of certificate and tax declarations are not sufficient proof of joint contribution.
Joaquino v. Reyes (2004):
Prohibitions against donations between spouses must likewise apply to donations between
persons living together in
illicit relations;

Valdez vs. QC-RTC (1996):

Marriages that have been declared void come under the rules of co-ownership under
FC147/148 regardless of the
reason.

The Family

Art. 149. The family, being the foundation of the

nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations
are governed by law and no custom, practice or
agreement destructive of the family shall be
recognized or given effect.
THE FAMILY AS AN INSTITUTION
ASPECTS OF FAMILY RELATIONS

(1) External Aspect

(a) Governed by law (Art. 149)
(b) Only in this aspect can third persons and the
public interest be concerned
(2) Internal Aspect
(a) Sacred to the family and inaccessible to law
because law must respect the freedom of
action of man
(b) E.g. spiritual relations, sexual relations of
spouses, career or profession of spouses,
profession and career of spouses, practices
and customs of family
FAMILY RELATIONS INCLUDE:
(1) Between husband and wife
(2) Between parents and children
(3) Among other ascendants and descendants
(4) Among brothers and sisters, full or half blood.
General rule: (Art. 151):
No suit between members of the same family shall
prosper.
Except: For a suit between members of the same
family to prosper, the following are required:
(1) Earnest efforts towards a compromise have been
made
(2) Such efforts have failed
(3) Such earnest efforts and the fact of failure must
be alleged
Note: The case will be dismissed if it is shown that no
such efforts were made.
The rules shall not apply to cases, which may not be
the subject of compromise.
EXCEPTIONS TO THE GENERAL RULE CANNOT BE SUBJECT
OF COMPROMISE (ART 2035, CC; VJLAFF)
(1) Civil status of persons,
(2) Validity of marriage or a legal separation,
(3) Any ground for legal separation,
(4) Future support,
(5) Jurisdiction of courts,
(6) Future legitime
Hontiveros v. RTC (1999):
Whenever a stranger is a party in a case involving
family members, the requisite showing of earnest

efforts to compromise is no longer mandatory, as such

inclusion of a stranger takes the case out of the ambit
of Art. 151.
THE FAMILY HOME
CONSTITUTED BY:
(1) Jointly by the husband and the wife
(2) By an unmarried head of a family;
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INCLUDES:

(1) Dwelling house where they and their family reside

(2) The land on which it is situated (Art. 152)
The actual value of the family home shall not exceed,
at the time of the constitution, the amount of Three
hundred thousand pesos (P300,000.00) in urban
areas, and Two hundred thousand pesos
(P200,000.00) in rural areas or such amounts as may
hereafter be fixed by law. (Art. 157)
A person may constitute and be the beneficiary of
only one family home (Art. 161)
The provisions of the Chapter on Family Home shall
govern existing family residences insofar as said
provisions are inapplicable (Art. 162)
GUIDELINES:
(1) It is deemed constituted from time of actual
occupation as a family residence
(2) It must be owned by person constituting it
(3) It must be permanent
(4) Rule applies to valid and voidable and even to
common-law marriages under Arts.147 and 148
(5) It continues despite death of one or more spouses
or unmarried head of family for 10 years or as
long as there is a minor beneficiary (Art.159)
(6) Can only constitute one family home
General rule: The family home is exempt from (EFA)
from the time of its constitution and so long as any of
its beneficiaries actually resides therein (Art. 153):
(1) Execution
(2) Forced sale
(3) Attachment
Exceptions in the exemption of the family home from
execution (Art. 155)
(1) Nonpayment of taxes.
(2) Debts incurred prior to the constitution of the
family home.
(3) Debts secured by mortgages on the premises
before or after such constitution.
(4) Debts due to laborers, mechanics, architects,
builders, materialmen and others who have
rendered service or furnished material for the
construction of the building.
BENEFICIARIES OF THE FAMILY HOME (ART. 154)
(1) Husband and wife, or an unmarried person who is
the head of the family
(2) Parents (may include parent-in-laws),
ascendants, descendants, brothers and sisters

(legitimate/illegitimate), who are living in the

family home and who depend on the head of the
family for support
REQUISITES TO BE A BENEFICIARY (RLD)
(1) The relationship is within those enumerated
(2) They live in the family home
(3) They are dependent for legal support on the head
of the family
REQUIREMENTS FOR THE SALE, ALIENATION, DONATION,
ASSIGNMENT, OR ENCUMBRANCE OF THE FAMILY HOME
(ART. 158)
(1) the written consent of the person constituting it,
(2) his/her spouse, and
(3) majority of the beneficiaries of legal age
Note: If there is a conflict, the Court will decide.
In case of death of one or both spouses or the
unmarried head of the family (Art. 159):
The family home shall continue despite the death of
one or both spouses or of the unmarried head of the
family for a period of ten years, or as long as there is
a minor beneficiary.
The heirs cannot partition the home unless the court
finds compelling reasons therefore.
REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER
ARTICLE 160 (If a claim of a creditor is not among the

exceptions mentioned in Art. 155 and has reasonable

grounds to believe that the family home is worth
more than the amount fixed in Art. 157)
Requisites:
(1) He must be a judgment creditor;
(2) His claim is not among those excepted under
Article155, and
(3) He has reasonable grounds to believe that the
family home is worth more than the maximum
amount fixed in Art. 157.
Procedure to avail of right under Art. 160
(1) The creditor must file a motion in the court
proceeding where he obtained a favorable
decision for a writ of execution against the family
home.
(2) There will be a hearing on the motion where the
creditor must prove that the actual value of the
family home exceeds the maximum amount fixed
by the FC either at the time of its constitution or
as a result of improvements introduced thereafter
its constitution.
(3) If the creditor proves that the actual value
exceeds the maximum amount the court will
order its sale in execution.
(4) If the family home is sold for more than the value
allowed, the proceeds shall be applied as follows:
(a) First, the obligation enumerated in Article 157
must be paid
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(b) Then the judgment in favor of the creditor will

be paid, plus all the costs of execution

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

Paternity and Filiation

KINDS OF FILIATION (ARTS. 163, 164, 165):

(1) Natural
(a) Legitimate
(b) Illegitimate
(2) Legal Fiction (Adoption)
LEGITIMATE CHILDREN
WHO ARE LEGITIMATE CHILDREN (ART. 164)
Those conceived or born during the marriage of
parents either by natural means or by artificial
insemination
Natural/Biological
[Liyao v. Liyao (2002)]: A child conceived or born
during a valid marriage is presumed to belong to that
marriage, regardless of the existence of extramarital
relationships.
Artificial Insemination (Art. 164)
Requisites to be considered legitimate:
(a) Artificial insemination made on wife
(b) Sperm comes from any of the following:
(1) Husband
(2) Third Person Donor
(3) Husband and third person donor
(c) In case of donor sperm, husband and wife must
authorize/ratify insemination in a written
instrument
(1) Executed & signed by husband and wife
before the birth of the child.
(2) Recorded in the civil registry together with the
birth certificate of the child.
[Tolentino]: Dual consent is required whether the
semen used comes from the husband or a third person
donor
WHO ARE ILLEGITIMATE CHILDREN

General rule: Those conceived and born outside of a

valid marriage. [Art. 165]
Exceptions:
(1) Children of marriages void under Art. 36

(psychological incapacity).
(2) And under Art. 53 (the second marriage of a
widow or widower who has not delivered to his or
her children by his or her first marriage the
legitime of said children). (Sempio-Dy)
De Castro v. Assidao-De Castro, (2008):
Common children born before the annulment are
legitimate, and therefore entitled to support from each
of the spouses.
IMPUGNING LEGITIMACY

Grounds for impugning legitimacy of a child are [Art.

166]:
(1) Physical impossibility for the husband to have
sexual intercourse with his wife within the first
120 days of the 300 days which immediately
preceded the child's birth due to:
(a) Physical incapacity of the husband to have
sexual intercourse with his wife
(b) Husband and wife were living separately as to
make sexual intercourse impossible
(c) Serious illness of the husband absolutely
preventing sexual intercourse
(2) Other biological or scientific reasons, except
Artificial Insemination
(3) And in case of Artificial Insemination, the written
consent of either parent was vitiated through
fraud, violence, mistake, intimidation, or undue
influence
Macadangdang v. CA (1980):
Mere proximate separation between the spouses is not
sufficient physical separation as grounds for
impugning legitimacy.
Andal v. Macaraig (1951):
Serious illness of the husband which absolutely
prevented him from having sexual intercourse with his
wife, like if the husband was already in comatose or a

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vegetable, or sick with syphilis in the tertiary stage so

that copulation was not possible. But tuberculosis,
even in its most crucial stage, does not preclude
copulation between the sick husband and his wife.
Jao v. CA (1987):
Blood-type matching is an acceptable means of
impugning legitimacy, covered by Art. 166(2), under
"biological or other scientific reasons." But this is only
conclusive of the fact of non-paternity.
Legitimacy with regard to the mother:
(1) Child considered legitimate although [Art. 167]:
(a) Mother may have declared against its
legitimacy
(b) Mother may have been sentenced as an
adulteress (also applies to wife who was
raped)
(2) If the marriage is terminated and the mother
contracted another marriage within 300 days

after the termination of the former marriage, the

rules shall govern in the absence of proof to the
contrary [Art 168]:
(a) If child born before 180 days after the
solemnization of the subsequent marriage
child is considered conceived during the
former marriage, provided it be born within
300 days after termination of the former
marriage
(b) If child born after 180 days following the
celebration of the subsequent marriage
child is considered conceived during such
marriage, even if it be born within 300 days
after the termination of the former marriage
Note: The legitimacy or illegitimacy of a child born
after 300 days following the termination of the
marriage burden of proof upon whoever alleges
the status. [Art. 169]
[Tolentino:] If nobody asserts the legitimacy or
illegitimacy of the child described in Art. 169, the
child should be considered illegitimate unless
legitimacy is proved. Legitimacy cannot be presumed
here since the birth was beyond the 300-day period
of gestation. While it goes against the policy of law
to lean in favor of legitimacy, this interpretation is
better than the anomalous situation created by Art.
169, which is a child without a status.
ACTION FOR IMPUGNING LEGITIMACY [ARTS. 170 AND 171]
May be brought within 1, 2, or 3 years from the
knowledge of the birth, or the knowledge of
registration of birth.
(1) Within 1 year if husband or any heirs reside in
the same city or municipality where the child was
born or his birth was recorded.
(2) Within 2 years if the husband or all heirs live in
the Philippines but do not reside in the same city
or municipality where the child's birth took place
or was recorded
(3) Within 3 years if the husband or all heirs live
outside the Philippines when the child's birth took
place or was recorded in the Philippines
If the birth of the child has been concealed or was
unknown to the husband, the above periods shall be
counted:
(1) From the discovery or knowledge of the birth of
the child, or
(2) From the discovery or knowledge of its
registration,
(3) Whichever is earlier.
General rule: Only the husband can impugn the
legitimacy of a child. If he does not bring an action
within the prescribed periods, he cannot file such
action anymore thereafter, and this is also true with
his heirs.
Exception: That the heirs of the husband may file the

action or continue the same within the periods

prescribed in Art. 170 [Art. 171]:
(a) If the husband died before the expiration of the
period fixed for bringing his action
(b) If he should die after the filing of the complaint
without having desisted therefrom
(c) If the child was born after the death of the
husband.
Sayson v. CA (1992): Legitimacy can only be attacked
directly.
PROOF OF FILIATION
Legitimate children may establish their filiation by
any of the following [Art. 172]:
(1) Primary Evidence
(a) Their record of birth appearing in the civil
registry.
(b) An admission of his filiation (legitimate or
illegitimate) by his parent or parents in a
public document or a private handwritten
instrument and signed by said parent or
parents
(2) Secondary Evidence
(a) Proof of open and continuous possession of
status as legitimate or illegitimate child
(b) Any other means stated by the rules of court
or special laws
Note: Only in the absence of primary evidence can
secondary evidence be admitted

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ACTION FOR CLAIMING FILIATION [ART.

173]:
(a) The child can bring the action during his or her
lifetime, and once commenced such action
survives even after the death of the parents. The
action does not prescribe as long as he lives.
(b) If the child dies during minority or in a state of
insanity, such action shall be transmitted to his
heirs, who shall have a period of five years within
which to institute the action.
RIGHTS OF LEGITIMATE CHILDREN [ART. 174]:
(a) To bear the surnames of the father and the
mother, in conformity with the provisions of the
Civil Code on Surnames
(b) To receive support from their parents, their
ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of
this Code on Support
(c) To be entitled to the legitimate and other
successional rights granted to them by the Civil
Code
ILLEGITIMATE CHILDREN
Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence
(primary or secondary) as legitimate children. [Art.
175]
ACTION FOR CLAIMING FILIATION [ART. 175]:

(a) For actions based on primary evidence, the same

periods stated in Art. 173 apply.
(b) For actions based on secondary evidence, the
action may only be brought during the lifetime of
the alleged parent.
Mendoza v. Melia (1966):
Baptismal certificates are given probative value only
for births before 1930. Birth certificates must be signed
by the parents and sworn for it to be admitted as
evidence.
Baluyut v. Baluyut (1990):
Unsigned birth certificates are not evidence of
recognized filiation.
Acebedo v. Arquero (2003):
Baptismal certificates are only conclusive of the
sacrament administered, and cannot be used as proof
of filiation.
Lim v. CA (1975):
Marriage certificates cannot be used as proof of
filiation.
Jison v. CA (1998):
Rule 130, Sec. 40 is limited to objects commonly
known as family possessions reflective of a family's
reputation or tradition regarding pedigree like
inscriptions on tombstones, monuments, or coffin
plates.
Eceta v. Eceta (2004):
Signature of the father on the birth certificate is
considered as an acknowledgement of paternity and
mere presentation of a duly authenticated copy of such
certificate will successfully establish filiations.
Heirs of Rodolfo Baas v. Heirs of Bibiano Baas
(1985):
"Su padre [Your father]" ending in a letter is only proof
of paternal solicitude and not of actual paternity.
Signature on a report card under the entry of
"Parent/Guardian" is likewise inconclusive of open
admission.
De Jesus v. Syquia (1933):
By "open and continuous possession of the status of a
legitimate child" is meant the enjoyment by the child
of the position and privileges usually attached to the
status of a legitimate child, like bearing the paternal
surname, treatment by the parents and family of the
child as legitimate, constant attendance to the child's
support and education, and giving the child the
reputation of being a child of his parents.
Agustin v. CA (2005):
DNA evidence can be used as proof of paternity.
De Jesus v. Estate of Decedent Juan Gamboa Dizon
(2001):
The due recognition of an illegitimate child in a record
of birth, a will, a statement before a court of record, or
in any authentic writing, is in itself a consummated act
of acknowledgement of the child, and no further court

action is required.
Gono-Javier vs. Court of Appeals (1994):
Mere possession of status as an illegitimate child does
not make a recognized illegitimate child but is only a
ground for bringing an action to compel judicial
recognition by the assumed parent.
Herrera v. Alba (2005):
In assessing the probative value of DNA evidence,
therefore, courts should consider, among other things,
the following data:
(a) How the samples were collected,
(b) How they were handled,
(c) The possibility of contamination of the samples,
(d) The procedure followed in analyzing the samples,
(e) Whether the proper standards and procedures were
followed in conducting the tests,
(f) The qualification of the analyst who conducted the
tests.

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Estate of Rogelio Ong v. Diaz (2007):

DNA evidence can still be used even after the death of
the parent.
Gotardo v. Buling (2012):
There are four significant procedural aspects of a
traditional paternity action that parties have to face:
a prima facie case, affirmative defenses, presumption
of legitimacy, and physical resemblance between the
putative father and the child. A prima facie case exists
if a woman declares supported by corroborative
proof that she had sexual relations with the putative
father; at this point, the burden of evidence shifts to
the putative father. Further, the two affirmative
defenses available to the putative father are: (1)
incapability of sexual relations with the mother due to
either physical absence or impotency, or (2) that the
mother had sexual relations with other men at the
time of conception.
Perla v. Baring and Perla (2012):
To prove open and continuous possession of the
status of an illegitimate child, there must be evidence
of the manifestation of the permanent intention of the
supposed father to consider the child as his, by
continuous and clear manifestations of parental
affection and care, which cannot be attributed to pure
charity.
Meanwhile, the lack of participation of the supposed
father in the preparation of a baptismal certificate
renders this document incompetent to prove paternity.
Baptismal certificates are per se inadmissible in
evidence as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence to prove
the same
RIGHTS OF ILLEGITIMATE CHILD [ART. 176]:
(a) Use the surname and be under the parental
authority of the mother

(b) However, may use the surname of their father if

(1) Their filiation has been expressly recognized
by the father through the record of birth
appearing in the civil register.
(2) There is an admission in a public document or
private handwritten instrument made by the
father.
(3) Provided, the father has the right to institute
an action before the regular courts to prove
non-filiation during his lifetime [RA 9255]
(c) Shall be entitled to support in conformity with the
Family Code
(d) Legitime shall consist of one-half of the legitime
of a legitimate child. Except for such
modification, all other provisions of the Civil Code
governing successional rights shall remain in
force.
LEGITIMATED CHILDREN
"Legitimated" children are illegitimate children who
because of the subsequent marriage of their parents
are, by legal fiction, considered legitimate.
TO BE CAPABLE OF LEGITIMATION:
(1) The child must have been conceived and born
outside of wedlock; and
(2) General rule: The parents, at the time of the child's
conception, were not disqualified by any
impediment to marry each other (Art. 177).
Exception: RA 9858 - Children born to parents
who were so disqualified only because either or
both of them were below eighteen (18) years of
age at the time of childs conception may be
legitimated.
PROCEDURE:
(a) Legitimation shall take place by a subsequent
valid marriage between the parents. The
annulment of a voidable marriage shall not affect
the legitimation. [Art. 178]
(b) Effects of legitimation shall retroact to the time of
the childs birth [Art. 180]
(c) Legitimation of children who died before the
celebration of the marriage shall benefit their
descendants [Art. 181]
GROUNDS FOR IMPUGNING LEGITIMATION:
(1) The subsequent marriage of the child's parents is
void.
(2) The child allegedly legitimated is not natural.
(3) The child is not really the child of the alleged
parents. (Sempio-Dy)
RIGHTS:
The same as those of legitimate children [Art. 179]
IMPUGNING LEGITIMATION [ART. 182]
(1) May be made only by those who are prejudiced in
their rights
(2) Within five years from the time their cause of
action accrues
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Adoption
Legitimation
Adoption
Legal effect
The law merely makes
legal what exists by
nature
The law merely creates by
fiction a relation which
did not in fact exist
Persons affected
Natural Children Strangers (generally)
Procedure
Extrajudicial acts of
parents
Always by judicial decree
Who should apply
Both parents Both parents, but with
exceptions allowing only
one of them to apply [RA
85520]
Effect on parent-child relationship
Same status and rights
with that of a legitimate
child not only in relation
to the legitimizing
parents but also to
other relatives
Creates a relationship
only between the child
and the adopting parents
ADOPTION is a juridical act, which creates between
two persons a relationship similar to that which
results from legitimate paternity and filiation.
RA 8552 DOMESTIC ADOPTION LAW
WHO CAN ADOPT

(1) Filipino Citizens

(a) Of legal age
(b) With full civil capacity and legal rights
(c) Of good moral character
(d) Has not been convicted of any crime involving
moral turpitude
(e) Emotionally and psychologically capable of
caring for children
(f) At least sixteen (16) years older than adoptee,
except when adopter is biological parent of
the adoptee or is the spouse of the adoptees
parent
(g) In a position to support and care for his/her
children in keeping with the means of the
family
(2) Aliens
Same for Filipinos provided further that:
(1) At least 27 years old

(2) His/her country has diplomatic relations with

the Philippines
(3) Has been living continuously for 3 years
(provided that absences not exceeding 60
days per 1 year for professional, business, or
emergency reasons are allowed) in RP prior to
the filing of application and maintains such
residence until the decree is entered
(4) Has been certified by his/her diplomatic or
consular office or any appropriate government
agency that he/she has the legal capacity to
adopt in his/her country
(5) His/her government allows the adoptee to
enter his/her country as his/her adoptee
(6) Has submitted all the necessary clearances
and such certifications as may be required
**Items 3, 4 and 5 may be waived under the
following circumstances:
(a) Adopter is a former Filipino Citizen who seeks to
adopt a relative within the 4th degree of
consanguinity or affinity
(b) Adopter seeks to adopt the legitimate or
illegitimate child of his/her Filipino spouse
(c) Adopter is married to a Filipino Citizen and seeks
to adopt jointly with his/her spouse a relative
within the 4th degree of consanguinity or affinity
of the Filipino spouse
(3) Guardians
With respect to theirs ward after the termination
of the guardianship and clearance of his/her
accountabilities.
Husband and wife shall adopt jointly, EXCEPT:
(1) If one spouse seeks to adopt the legitimate child
of the other
(2) If one of the spouse seeks to adopt his/her
illegitimate child provided that other spouse has
signified his/her consent
(3) If spouses are legally separated from each other
Note: If spouses jointly adopt, parental authority
shall be exercised jointly
WHO CAN BE ADOPTED

(a) Minor who has been administratively or judicially

declared available for adoption
(b) Legitimate child of one spouse by another
(c) Illegitimate child by a qualified adopter to
improve the childs status to that of legitimacy
(d) A person of legal age if, prior to the adoption,
said person has been consistently considered
and treated by the adopter(s) as his/her child
since minority
(e) A child whose previous adoption has been
rescinded
(f) A child whose biological or adoptive parent(s)
has died, provided that no proceedings shall be
initiated within 6 months from the time of death

of said parent(s)
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Persons whose written consent is necessary for

adoption [Sec. 9]
(1) The prospective adoptee if 10 years or older
(2) The prospective adoptees biological parents,
legal guardian or the government instrumentality
or institution that has custody of the child
(3) The prospective adopters legitimate and adopted
children who are 10 years or older
(4) The prospective adopters illegitimate children, if
any, who are 10 years or older and living with
them
(5) The spouse, if any, of the person adopting or to be
adopted.
Note: A decree of adoption shall be effective as of the
date the original petition was filed. It also applies in
case the petitioner dies before the issuance of the
decree of adoption to protect the interest of the
adoptee.
PRE-ADOPTION PROCEDURES
(1) Voluntary Commitment of biological mother
wanting to put her child up for adoption
(2) Involuntary Commitment of abandoned or
neglected child
Notes:
(1) Abandoned child no proper parental
care/guidance; or parents have deserted him/her
for at least 3 continuous months, including
foundlings
(2) Neglected child his basic needs have been
deliberately unattended or inadequately
attended within 3 continuous months either by:
(a) Physical Neglect child is malnourished, illclad,
without proper shelter, or without proper
provisions
(b) Emotional Neglect child is maltreated,
raped, seduced, exploited, overworked, or in
moral danger
(3) Required supporting documents for a petition for
the declaration of involuntary commitment:
(a) Social Case Study Report by DSWD / LGU /
institution charged with childs custody
(b) Proof of efforts to locate the childs
parents/known relatives
(1) Written certification that a local/national
radio/TV case was aired on 3 different
occasions
(2) Publication in 1 newspaper of general
circulation
(3) Police report / barangay certification of
due diligence
(4) Returned registered mail to last known
address of parents
(c) Birth certificate, if available

(d) Recent photo and photo upon

abandonment of child
ADOPTION PROCEDURES

Inquiry of prospective adopters at DSWD

Attendance of DSWD Adoption Fora and
Seminars (include counseling)
Application for Adoption
Counseling on her options other than adoption
Explaining to her the implications of losing her
parental authority over the child
Continuing services shall be provided after
relinquishment to cope with feelings of loss, etc.
and other services for his/her reintegration to the
community
Biological parent(s) who decide to keep the child
shall be provided with adequate services and
assistance to fulfill their parental responsibilities
Biological parent(s) who decide to put the child
for adoption shall sign the Deed of Voluntary
Commitment (DVC), which shall be rescissible
within 3 months from signing of the same
Filing of a petition at Regional DSWD in the form
of an affidavit and with the required supporting
documents
Posting of the petition, then recommendation by
the Regional Director of the DSWD (5 days each)
Issuance of certification by DSWD Secretary
declaring the child legally available for adoption

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Note: After the decree of adoption, the court may

also issue a travel authority, if needed; DSWD to
provide post adoption services
WHO MAY NOT ADOPT/ BE ADOPTED
Art. 184 (as amended by RA 8552)
The following may not adopt:
(1) The guardian, with respect to the ward prior to
the approval of the final accounts rendered upon
the termination of the guardianship
(2) Any person convicted of a crime of moral
turpitude
Art. 187
The following may not be adopted:
(1) A person of legal age unless he is a natural child
of the adopter or of his/her spouse; or he was
treated as a natural child since minority
(2) An alien whose government has no diplomatic
relations with the Philippines
(3) A person already adopted unless his adoption has
been previously revoked/rescinded
RIGHTS OF AN ADOPTED CHILD

(a) Parental Authority

All legal ties between biological parents and
adoptee are severed, and the same shall be
vested on the adopter, except if the biological
parent is the spouse of the adopter. [Art. 189 as

amended]
(b) Legitimacy
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and shall be entitled to all the rights
and obligations provided by law to legitimate
children born to them without discrimination of
any kind. [Art. 189 as amended]
(c) Succession
Adopter and adoptee shall have reciprocal rights
of succession without distinction from legitimate
filiation, in legal and intestate succession. If
adoptee and his/her biological parents had left a
will, the law on testamentary succession shall
govern. [Art. 189 as amended]
Art. 190 as amended. Rules on legal or intestate
succession to the estate of the adoptee:
(1) Legitimate and illegitimate children, descendants
and the surviving spouse of the adoptee shall inherit
in accordance with the ordinary rules of
legal/intestate succession
(2) When the surviving spouse OR illegitimate children
AND adopters concur, they shall inherit on a 50-50
basis
(3) When the surviving spouse AND illegitimate
children AND adopters concur, they shall inherit on a
1/3-/1/3-1/3 basis
(4) When only adopters survive, they shall inherit
100% of the estate
(5) When only collateral blood relatives survive,
ordinary rules of legal or intestate succession shall
apply
Art. 365, NCC. An adopted child shall bear the
surname of the adopter.
RESCISSION OF ADOPTION

Adoptee may request for rescission, with the

assistance of DSWD if he/she is a minor or over 18
but incapacitated, based on the ff. grounds:
(1) Repeated physical and verbal maltreatment by
adopters despite having undergone counseling
(2) Attempt on life of adoptee
(3) Sexual assault or violence
Matching
Placement
Case Study Report
Supervised Trial Custody
Home Study Report
Recommendation and Consent of DSWD
Petition for Adoption
Adoption Decree
Certificate of Availability for Adoption
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(4) Abandonment or failure to comply with parental

obligations
Note: Adoption, being in the best interest of the

child, shall not be subject to rescission by the

adopter(s). However, the adopter(s) may disinherit
the adopted based on causes enumerated in Art. 919
of the NCC:
(1) Conviction of an attempt on the life of the
adopter
(2) Having accused, without grounds, the adopter of
a crime punishable by imprisonment for more
than 6 years
(3) Conviction of adultery/concubinage with the
adopters spouse
(4) Having caused the adopter to make or change a
will by force, intimidation or undue influence
(5) Refusal without just cause to support the adopter
(6) Maltreatment of the adopter by word/deed
(7) Living a dishonorable/disgraceful life
(8) Conviction of a crime which carries with it the
penalty of civil interdiction
Effects of Rescission [Sec. 20]:
(1) Parental authority of the adoptee's biological
parents, if known, OR the legal custody of the
DSWD shall be restored if the adoptee is still a
minor or incapacitated
(2) Reciprocal rights and obligations of the adopters
and the adoptee shall be extinguished
(3) Court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and
restore his/her original birth certificate
(4) Succession rights shall revert to its status prior to
adoption, but only as of the date of judgment of
judicial rescission
(5) Vested rights prior to judicial rescission shall be
respected
Note: Rescission contemplates a situation where the
adoption decree remains valid until its termination
RECTIFICATION OF SIMULATED BIRTH

Simulation of birth is the tampering of LCR records

to make it appear that a certain child was born to a
person who is not his/her biological parent, causing
said child to lose his true identity/status
Sec. 21-b (RA 8552)
Any person who shall cause the fictitious registration
of the birth of a child under the name(s) of a
person(s) who is not his/her biological parent(s) shall
be guilty of simulation of birth, and shall be
punished by prision mayor in its medium period and
a fine not exceeding Fifty thousand pesos
(P50,000.00).
Sec. 22 (RA 8552)
A person who has, prior to the effectivity of RA 8552,
simulated the birth of a child shall not be punished
for such act, PROVIDED:
(a) The simulation was for the childs best interest
(b) Child has been treated consistently as his own
(c) Petition filed within 5 years of RA 8552s

effectivity (2003)
Three-in-one Procedure
(a) Correction of entries in birth certificate
(b) Declaration of abandonment
(c) Adoption decree
RA 8043 THE LAW ON INTER-COUNTRY
ADOPTION
INTER-COUNTRY ADOPTION refers to the socio-legal
process of adopting a Filipino child by a foreigner or
a Filipino citizen permanently residing abroad where
the petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued
outside the Philippines
WHO CAN ADOPT

Any foreign national or a Filipino citizen permanently

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

(a) Only a legally-free child may be the subject of

inter-country adoption.
(b) A legally-free child is one who has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with the
Child and Youth Welfare Code.

(c) No child shall be matched to a foreign adoptive

family unless it is satisfactorily shown that the
child cannot be adopted locally.
(d) In order that such child may be considered for
placement, the following documents must be
submitted to the Board:
(a) Child study
(b) Birth Certificate / Foundling Certificate
(c) Deed of Voluntary Commitment/ Decree of
Abandonment/ Death Certificate of parents
(d) Medical Evaluation / History
(e) Psychological Evaluation, as necessary
(f) Recent photo of the child
Tamargo v. CA (1992):
Where the petition for adoption was granted after the
child had shot and killed a girl, the Supreme Court did
not consider that retroactive effect may be given to the
decree of adoption so as to impose a liability upon the
adopting parents accruing at a time when adopting
parents had no actual or physically custody over the
adopted child. Retroactive effect may perhaps be given
to the granting of the petition for adoption where such
is essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant
case, however, to hold that parental authority had
been retroactively lodged in the adopting parents so as
to burden them with liability for a tortuous act that
they could not have foreseen and which they could not
have prevented would be unfair and unconscionable.
Lazatin v. Campos (1979):
Adoption is a juridical act, proceeding in rem. Because
it is artificial, the statutory requirements in order to
prove it must be strictly carried out. Petition must be
announced in publications and only those proclaimed
by the court are valid. Adoption is never presumed.
Santos v. Aranzanso (1966):
Validity of facts behind a final adoption decree cannot
be collaterally attacked without impinging on that
courts jurisdiction.
DSWD v. Belen (1997):
Participation of the appropriate government
instrumentality in performing the necessary studies
and precautions is important and is indispensable to
assure the childs welfare.
Landingin v. Republic (2006)
Consents for adoption must be written and notarized.
Sayson v. CA (1992):
Adopted children have a right to represent their
adopters in successional interests. (Although an
adopted child shall be deemed to be a legitimate child
and have the same rights as the latter, these rights do
not include the right of representation. The
relationship created by the adoption is between only
the adopting parents and the adopted child. It does
not extend to the blood relatives of either party.)

Republic v. Hernandez (1996):

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

Support

WHAT IT COMPRISES
Consists of everything indispensable for sustenance,
dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial
capacity of the family. [Art. 194]
(a) Education includes a persons schooling or
training for some profession, trade or vocation.
[Art. 194]
(b) Transportation includes expenses in going to and
from school, or to and from place of work. [Art.
194]
(c) The right and duty to support, especially the right
to education, subsists even beyond the age of
majority. [Art. 194]
WHO ARE OBLIGED
TO SUPPORT EACH OTHER:
(a) Spouses;
(b) Legitimate ascendants and descendants;
(c) Parents and their children (legitimate and
illegitimate) and the children of the latter
(legitimate and illegitimate);
(d) Legitimate brothers and sisters, whether of full or
half-blood; [Art. 195]
(e) Illegitimate brothers and sisters, whether of full
or half-blood, EXCEPT when the need for support
of one (of age) is due to a cause imputable to
his/her fault or negligence. [Art. 196]

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Note: Both legitimate and illegitimate children are

entitled to support.
PROPERTIES ANSWERABLE FOR SUPPORT

From the separate property of the obligor. If no

separate property, the ACP/CPG (if financially
capable) shall advance the support, to be deducted
from the obligors share upon liquidation of such
regime. [Art. 197]
ORDER OF SUPPORT

If there are multiple obligors (SDAB)

(1) Spouses
(2) Descendants, nearest in degree
(3) Ascendants, nearest in degree
(4) Brothers and Sisters [Art. 199]
[Tolentino]: The order of liability among ascendants
and descendants would be: (1) legitimate children

and descendants, (2) legitimate parents and

ascendants, (3) illegitimate children and their
descendants.
When two or more are obliged to give support, the
payment shall be divided between them IN
PROPORTION to their resources;
Also, in case of URGENT NEED and by special
circumstances, judge may order only one obligor to
furnish support without prejudice to reimbursement
from other obligors of the share due from them (Art.
200).
If there are multiple recipients and only one obligor,
and the latter has no sufficient means to satisfy all
claims:
(1) Observe order in Article 199 (SDAB) as to whose
claim shall be satisfied first;
(2) But if the concurrent obligees are the spouse and
a child subject to parental authority, the child
shall be preferred. [Art. 200]
[Tolentino]: The above preference given to a child
under parental authority over the spouse should
prevail only if the person obliged to support pays it
out of his own separate property. So if the support
comes from ACP or CPG, the above rule of
preference for the child does not apply.
Pelayo v. Lauron (1909):
Even if the parents-in-law were the ones who called for
the physicians services for the childbirth of their
daughter-in-law, it is the womans husband who is
bound to pay the fees due to the physician.
Lacson v. San Jose-Lacson (1968):
Man is still liable for support in arrears since the
mother advanced it from a stranger (the uncle of the
daughters).
Lacson v. Lacson (2006):
Acknowledgment of and commitment to comply with
support obligation through a note in his own
handwriting is proof that a demand was made.
Gotardo v. Buling (2012):
The amount of support is variable and, for this reason,
no final judgment on the amount of
support is made as the amount shall be in proportion
to the resources or means of the giver and the
necessities of the recipient.
STRANGER GIVES SUPPORT

When, WITHOUT THE KNOWLEDGE of the person

obliged to give support, it is given by a stranger, the
stranger has the right to claim the same from the
person obliged, unless it appears that he gave it
without intention of being reimbursed. [Art. 206]
PERSON OBLIGED REFUSES OR FAILS TO GIVE SUPPORT

When the person obliged to give support UNJUSTLY

REFUSES OR FAILS to give support when urgently
needed, any third person may furnish support to the
needy individual, with right of reimbursement from
the person obliged to give support. This particularly

applies when the father or mother of a minor child

unjustly refuses to support or fails to give support to
the child when urgently needed. [Art. 207]
CONTRACTUAL SUPPORT OR THAT GIVEN BY WILL

The excess in amount beyond that required for legal

support shall be subject to levy on attachment or
execution. [Art. 208]
Reason: The amount of support agreed upon in the
contract or given in the will can be more than what
the recipient needs (Sempio-Diy).
Furthermore, contractual support shall be subject to
adjustment whenever modification is necessary due
to changes in circumstances manifestly beyond the
contemplation of the parties. [Art. 208]
SUPPORT DURING MARRIAGE LITIGATION
Pending legal separation or annulment, and for
declaration of nullity, support (pendente lite) for
spouses and children will come from the ACP/CPG.
After final judgment granting the petition, mutual
support obligation between spouses ceases. (But in
legal separation court may order guilty spouse to
give support to innocent spouse.) [Art. 198]

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Note: De facto separation does not affect the ACP,

except that the spouse who leaves the conjugal
home without just cause shall not be entitled to
support. [Art. 100]
AMOUNT
The amount of support is in proportion to the means
of the provider and the needs of the receiver, and can
be reduced or increased if such circumstances
change. [Arts. 201, 202]
WHEN DEMANDABLE
(a) The obligation to give support shall be
DEMANDABLE from the time the person who has
a right to receive the same needs it for
maintenance, but it shall not be PAYABLE except
from the date of judicial or extra-judicial demand.
[Art. 203]
(b) Support pendente lite may be claimed in
accordance with the Rules of Court. [Art. 203]
(c) Payment shall be made within the first five days
of each corresponding month. When the recipient
dies, his heirs shall not be obliged to return what
he has received in advance. [Art. 203]
OPTIONS
(a) Payment of the amount; or
(b) Receiving and maintaining the recipient in the
home of the provider, unless there is a legal or
moral obstacle for doing so.
ATTACHMENT
The right to receive support as well as any money or
property obtained as such support shall not be levied
upon on attachment or execution. (Art. 205)
[Tolentino:] This is to protect that which the law gives

to the recipient against want and misery.

Parental Authority

GENERAL PROVISIONS
Parental authority is the mass of rights and
obligations which parents have in relation to the
person and property of their children until their
emancipation, and even after this under certain
circumstances (Manresa).
PARENTAL AUTHORITY INCLUDES [ART. 209]:
(1) The caring for and rearing of children for civic
consciousness and efficiency;
(2) The development of the moral, mental and
physical character and well-being of said children
PARENTAL AUTHORITY AND RESPONSIBILITY MAY NOT BE
RENOUNCED OR TRANSFERRED EXCEPT IN THE CASES
AUTHORIZED BY LAW. [ART. 210]
CASES WHEN PARENTAL AUTHORITY AND RESPONSIBILITY
MAY BE TRANSFERRED OR RENOUNCED:

(a) Adoption;
(b) Guardianship; or
(c) Commitment of the child in an entity or
institution engaged in child care or in a childrens
home
RULES AS TO THE EXERCISE OF PARENTAL AUTHORITY:
(a) Jointly exercised by the father and mother over
their common children, but in case of
disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary [Art.
211]
(b) Exercised by the mother if the child is illegitimate
[Art.176]
(c) Children under parental authority shall always
observe respect and reverence towards their
parents and are obliged to obey them [Art. 211]
CHARACTERISTICS OF PARENTAL AUTHORITY:
(1) Natural right and duty of parents [Art. 209, FC]
(2) Cannot be renounced, transferred or waived,
except in cases authorized by law [Art 210, FC]
(3) Jointly exercised by the father and the mother
[Art. 211, FC]
(4) Purely personal and cannot be exercised through
agents
(5) Temporary
PARENTAL PREFERENCE RULE:
The natural parents, who are of good character and
who can reasonably provide for the child, are
ordinarily entitled to custody as against all persons.
[Santos v CA (1995)]
WHO EXERCISES AUTHORITY IN CASES OF DEATH,
ABSENCE, UNSUITABILITY, REMARRIAGE, OR SEPARATION
OF PARENTS:
(1) In case one parent is absent or already dead, the
present or surviving parent [Art. 212]
- Remarriage of the surviving parent shall not
affect his/her parental authority over the

children, unless the court appoints another

person to be the guardian of the children or
their property [Art. 212]
(2) In case of a void/annulled marriage, and there is
no agreement between spouses, the parent
designated by the court [Art. 43 par. 1; Art. 49]
(3) Innocent spouse gets custody of minor children in
legal separation [Art. 63 par. 3]

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(4) The court shall take into account all relevant

considerations, especially the choice of the child
over seven years of age, unless the parent chosen
is unfit [Art. 213 par. 1]
(5) Substitute parental authority [Art. 214]
(a) In case of death, absence or unsuitability of
the parents, substitute parental authority shall
be exercised by the surviving grandparent
(b) When several grandparents survive, the one
designated by the court shall exercise
parental authority, taking into account all
relevant considerations, especially the choice
of the child over seven years of age, unless the
grandparent chosen is unfit
DESCENDANTS PRIVILEGE OF REFUSAL TO TESTIFY [ART.
215]: No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents.
Exception: When such testimony is indispensable in
(1) a crime against the descendant, or (2) a crime by
one parent against the other.
TENDER YEARS PRESUMPTION:
NO child under 7 years of age shall be separated
from the mother, unless the court finds compelling
reasons to order otherwise. [Art. 213 par 2; Gamboa v.
CA (2007)]
Examples of compelling reasons are:
(1) When the mother is insane;
(2) with a communicable disease that might
endanger the life or health of the child;
(3) is maltreating the child; or
(4) has another child by another man who lives with
her. [Cervantes v. Fajardo (1989)]
Note: Prostitution or infidelity to husband does not
make a mother unfit as parent.
SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY
PERSONS EXERCISING SUBSTITUTE PARENTAL AUTHORITY
IN DEFAULT OF PARENTS OR JUDICIALLY APPOINTED
GUARDIAN (IN THIS ORDER):

(a) The surviving grandparent [Art. 214, FC]

(b) Oldest brother or sister, over 21 years old, unless
unfit or unqualified.
(c) Childs actual custodian, over 21 years old, unless
unfit or unqualified.
Note: The same order applies to the appointment of
judicial guardian over the property of the child
SUBSTITUTE PARENTAL AUTHORITY OVER DISADVANTAGED

CHILDREN (ART.

217)
Entrusted in summary judicial proceedings to:
(1) Heads of childrens homes
(2) Orphanages
Similar institutions duly accredited by the proper
government agency (such as the DSWD)
Who are disadvantaged children:
(1) Foundlings
(2) Abandoned
(3) Neglected
(4) Abused
(5) Others similarly situated
PERSONS EXERCISING SPECIAL PARENTAL AUTHORITY
[ART. 218 FC]

(1) School, its administrators and teachers; or

(2) The individual, entity or institution engaged in
child care
Note: Exercised over minor child while under their
supervision, instruction or custody; authorized
activities include those conducted both within or
outside the school, entity or institution
Substitute
Parental Authority
Special Parental Authority
It is exercised in
case of death,
absence, or in
case of
unsuitability of
parents.
It is exercised concurrently with
the parental authority of the
parents and rests on the theory
that while the child is in the
custody of the person exercising
special parental authority, the
parents temporarily relinquish
parental authority over the child
to the latter.
St. Marys Academy v. Carpitanos (2002):
The special parental authority and responsibility
applies to all authorized activities, whether inside or
outside the premises of the school, entity or institution.
LIABILITY OF THOSE EXERCISING SPECIAL PARENTAL
AUTHORITY OVER THE CHILD (ART. 219 FC)

(1) Principal and solidary liability for damages

caused by the acts or omissions of the minor child
while under their special parental authority
(2) Subsidiary liability for the parents and judicial
guardians of the minor, or those exercising
substitute parental authority over such minor for
his acts and omissions
Note: Both groups can use the defense that they
exercised proper diligence to avoid liability
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EFFECT OF PARENTAL AUTHORITY UPON THE

PERSONS OF THE CHILDREN

RIGHTS OF PARENTS UPON THE PERSON OF THE CHILDREN:

(1) To have them in their custody [Art. 220]

(2) To represent them in all matters affecting their
interests [Art. 220]
(3) To demand from them respect and obedience
and impose necessary discipline on them [Art.
220]
(4) To give or withhold consent to their marriage,
their marriage settlements, their donations by
reason of marriage, adoption, and employment
(Art. 220)
(5) To disinherit them for just cause (Tolentino)
People v Silvano (1999):
Art. 220 which states that the parent has a right to
impose necessary discipline on the child does not
authorize the parent to invade or disregard the
childs honor and dignity under the mask of
discipline. Such acts can never be justified as
parental punishment.
DUTIES OF PARENTS UPON THE PERSON OF THE CHILDREN:

(a) To support them, providing for their upbringing in

accordance with their means [Art. 220]
(b) To educate, instruct, and provide them with moral
and spiritual guidance and love and
understanding [Art. 220]
(c) To defend them against unlawful aggression [Art.
220]
(d) To give their lawful inheritance (Tolentino)
(e) To perform such other duties as are imposed by
law [Art. 220]
(f) To answer for damages caused by their fault or
negligence and for the civil liability for crimes
committed by them. [Art. 221]
SUBSTITUTE REPRESENTATION [ART. 222]
The courts may appoint a guardian of the childs
property, or a guardian ad litem when the best
interests of the child so requires.
COURT ASSISTANCE IN THE DISCIPLINE OF THE CHILD
[ARTS. 223-224]

(1) The parents or, in their absence or incapacity, the

individual, entity or institution exercising parental
authority, may petition the proper court of the
place where the child resides, for an order
providing for disciplinary measures over the child.
[Art. 223]
(2) The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the
court, and a summary hearing shall be conducted
wherein the petitioner and the child shall be
heard. [Art. 223]
(3) If the court finds the petition meritorious,
disciplinary measures may include the
commitment of the child for not more than 30

days in entities or institutions engaged in child

care or in childrens homes duly accredited by the
proper government agency. [Art. 224]
(a) The parent exercising parental authority shall
not interfere with the case of the child
whenever committed but shall provide for his
support. [Art. 224]
(b) Upon proper petition or at its own instance,
the court may terminate the commitment of
the child whenever just and proper. [Art. 224]
If the court finds the petitioner at fault, irrespective of
the merits of the petition, or when the circumstances
so warrant, the court may also order the deprivation
or suspension of parental authority or adopt such
other measures as it may deem just and proper. [Art.
223]
EFFECTS OF PARENTAL AUTHORITY UPON THE
PROPERTY OF THE CHILDREN
(a) The father and mother shall jointly exercise legal
guardianship over the property of the minor child
without court appointment. [Art. 225]
(b) In case of disagreement, the fathers decision
shall prevail, unless there is judicial order to the
contrary. [Art. 225]
(c) The ordinary rules on guardianship shall be
merely suppletory except when the child is under
special parental authority, or the guardian is a
stranger, or a parent has remarried, in which case
the ordinary rules on guardian ship shall apply.
[Art. 225]
(d) If the market value of the property or the annual
income of the child exceeds P50,000, the parent
is required to furnish a bond of not less than 10%
of the value of the childs property or income.
[Art. 225]
PROCEDURE IN THE APPROVAL OF THE PARENTS BOND
[ART. 225]
(a) A verified petition for approval of the bond shall
be filed in the proper court of the place where the
child resides.
(b) If the child resides in a foreign country, the
petition shall be filed in the proper court of the
place where the property or any part thereof is
situated.
(c) The petition shall be docketed as a summary
special proceeding. The court shall determine
the amount of the bond, but shall not be less
than 10% of the market value of the childs
property or of his annual income.
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OWNERSHIP OF CHILDS ACQUISITIONS [ART.

226]
The property of the unemancipated child earned or
acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership
and shall be devoted exclusively to the latters

support and education, unless the title or transfer

provides otherwise.
PARENTS USUFRUCT [ART. 226]
The right of the parents over the fruits and income
(not the property itself) of the childs property shall
be limited primarily to the childs support and
secondarily to the collective daily needs of the family.
WHEN PARENTS ENTRUST THE MANAGEMENT OF THEIR
PROPERTIES TO A CHILD [ART. 227]

(a) If the parents entrust the management or

administration of any of their properties to an
unemancipated child, the net proceeds of such
property shall belong to the owner.
(b) The child shall be given a reasonable monthly
allowance in an amount not less than that which
the owner would have paid if the administrator
were a stranger, unless the owner grants the
entire proceeds to the child.
(c) In any case, the proceeds thus given in whole or
in part shall not be charged to the childs
legitime.
SUSPENSION OR TERMINATION OF PARENTAL
AUTHORITY;
RA 7610 CHILD ABUSE LAW
PARENTAL AUTHORITY PERMANENTLY TERMINATES

(1) Upon death of parents [Art. 228]

(2) Upon death of child [Art. 228]
(3) Upon emancipation of child [Art. 228]
(4) If the parents exercising parental authority has
subjected the child or allowed him to be
subjected to sexual abuse [Art. 232]
Note: In the case of death of parents, there is no
absolute termination of parental authority because
while the child is still a minor, the grandparents,
brothers and sisters, or a guardian may exercise
substitute parental authority over the child [Art. 216]
TERMINATION OF PARENTAL AUTHORITY WHICH CAN BE
REVIVED BY FINAL JUDGMENT [ART. 229]

(1) Upon adoption of the child;

(2) Upon the appointment of a general guardian for
the child;
(3) Upon judicial declaration of
(a) Abandonment of the child in a case filed for
the purpose
(b) Absence or incapacity of the person exercising
parental authority
(4) Upon final judgment of a competent court
divesting the party concerned of parental
authority.
GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY
[CLEBC; ART. 230-231]

(1) Conviction of parent for crime which carries with it

the penalty of civil interdiction
(2) Treats child with excessive harassment and
cruelty
(3) Gives corrupting orders, counsel, or example

(4) Compels child to beg

(5) Subjects or allows acts of lasciviousness
SCOPE OF SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
[ART. 233]

(a) The person exercising substitute parental

authority shall have the same authority over the
person of the child as the parents.
(b) In no case shall the school administrators, teacher
or individual engaged in child care exercising
special parental authority inflict corporal
punishment upon the child.
RA 7610 CHILD ABUSE LAW
An ascendant, stepparent or guardian of a minor
who shall induce, deliver or offer the minor to:
(1) Any one prohibited to keep the minor or
(2) Any one prohibited to have in his company a
minor, twelve (12) years or under or who is ten (10)
years or more his junior in any public or private
place, hotel, motel, beer joint, discotheque,
cabaret, pension house, sauna or massage parlor,
beach and/or other tourist resort or similar places
shall suffer penalties and imprisonment.
Note: Those not prohibited to have in his company
such minor in any of the mentioned places: anyone
who is related within the fourth degree of
consanguinity or affinity or any bond recognized by
law, local custom and tradition or acts in the
performance of a social, moral or legal duty

Emancipation, as amended
by RA 6809

Art. 234. Emancipation takes place by the attainment

of majority. Unless otherwise provided, majority
commences at the age of eighteen years.
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

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civil life, save the exceptions established by existing

laws in special cases.
Contracting marriage shall require parental consent
until the age of twenty-one.
Nothing in this Code shall be construed to derogate
from the duty or responsibility of parents and
guardians for children and wards below twenty-one
years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code.
RA 6809:
By virtue of this law, emancipation can no longer
take place by virtue of the minors marriage or by the
concession of the parents to a minor in a recorded
public instrument.

Summary Judicial

Proceedings in the Family

Law

PROCEDURAL RULES PROVIDED FOR IN THIS

TITLE SHALL APPLY TO [ART. 238]:
(1) Separation in fact between husband and wife
(2) Abandonment by one of the other
(3) Incidents involving parental authority
SEPARATION IN FACT
A verified petition alleging the following facts is
required when [Art. 239]:
(a) A husband and wife are separated in fact; or,
(b) One has abandoned the other
Situation: Where one of them seeks judicial
authorization for a transaction where the consent of
the other spouse is required by law but such consent
is withheld or cannot be obtained
The petition shall:
(1) Attach the proposed deed, if any, embodying the
transaction, if none, shall describe in detail the
said transaction and state the reason why the
required consent thereto cannot be secured.
(2) The final deed duly executed by the parties shall
be submitted to and approved by the court.
SEPARATE CLAIM FOR DAMAGES: Claims for damages by
either spouse, except costs of the proceedings, may
be litigated only in a separate action. [Art. 240]
JURISDICTION: Jurisdiction over the petition shall,
upon proof of notice to the other spouse, be
exercised by the proper court authorized to hear
family cases, if one exists, or in the regional trial
court or its equivalent sitting in the place where
either of the spouses resides. [Art. 241]
NOTIFICATION TO OTHER SPOUSE:
(1) Upon the filing of the petition, the court shall
notify the other spouse, whose consent to the
transaction is required, of said petition, ordering
said spouse to show cause why the petition
should not be granted, on or before the date set
in said notice for the initial conference.
(2) The notice shall be accompanied by a copy of the
petition and shall be served at the last known
address of the spouse concerned. [Art. 242]
PROCEDURE:
(1) A preliminary conference shall be conducted by
the judge personally without the parties being
assisted by counsel.
(2) After the initial conference, if the court deems it
useful, the parties may be assisted by counsel at
the succeeding conferences and hearings. [Art.
243]
(3) If the petition is not resolved at the initial
conference, said petition shall be decided in a
summary hearing. Basis of summary hearing (at
the sound discretion of the court):

(a) Affidavits
(b) Documentary evidence
(c) Oral testimonies at the courts sound
discretion. If testimony is needed, the court
shall specify the witnesses to be heard and the
subject-matter of their testimonies, directing
the parties to present said witnesses. [Art.
246(a)]
WHEN APPEARANCE OF SPOUSES REQUIRED:
(1) In case of non-appearance of the spouse whose
consent is sought, the court shall inquire into the
reasons for his failure to appear, and shall require
such appearance, if possible. [Art. 244]
(2) If, despite all efforts, the attendance of the nonconsenting
spouse is not secured, the court may
proceed ex parte and render judgment as the
facts and circumstances may warrant. In any
case, the judge shall endeavor to protect the
interests of the non-appearing spouse. [Art. 245]
NATURE OF JUDGMENT: The judgment of the court
shall be immediately final and executory. [Art 247]
RULES APPLICABLE FOR ADMINISTERING OR ENCUMBERING
SEPARATE PROPERTY OF SPOUSE: The petition for

judicial authority to administer or encumber specific

separate property of the abandoning spouse and to
use the fruits or proceeds thereof for the support of

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the family shall also be governed by these rules. [Art.

248]
INCIDENTS INVOLVING PARENTAL AUTHORITY
PROCEDURE

(1) Such petitions shall be verified and filed in the

proper court of the place where the child resides.
[Art. 250]
(2) Upon the filing of the petition, the court shall
notify the parents or, in their absence or
incapacity, the individuals, entities or institutions
exercising parental authority over the child. [Art.
251]
Note:
(a) Petitions filed under Articles 223, 225 and 235 of
this Code involving parental authority shall be
verified. [Art. 249]
(b) The rules in Chapter 2 hereof shall also govern
summary proceedings under this Chapter insofar
as they are applicable [Art. 253]
(c) The foregoing rules in Chapter 2 (Separation in
Fact) and (Incidents Involving Parental Authority)
hereof shall likewise govern summary
proceedings filed
(1) Declaration of presumptive death [Art. 41]
(2) Delivery of presumptive legitime [Art. 51]
(3) Fixing of family domicile [Art. 69]
(4) Disagreements regarding one spouses
profession, occupation, business, or activity

[Art. 73]
(5) Disposition or encumbrance of common
property in ACP where one spouse is
incapacitated or unable to participate in the
administration; administration of absolute
community in a disagreement and the wife
takes recourse within five years [Art. 96]
(6) Disposition or encumbrance of common
property in CPG where one spouse is
incapacitated or unable to participate in the
administration; administration of absolute
community in a disagreement and the wife
takes recourse within five years, [Art. 124]
When wife and husband are de facto separated and
the CPG is insufficient, the spouse present shall,
upon a petition, be given judicial authority to
administer or encumber any specific property of the
other spouse and use the fruits and proceeds thereof
to satisfy the latters share. [Art. 127]

Retroactive Effect
RETROACTIVE EFFECT

Retroactive Effect

RETROACTIVE EFFECT
This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other
laws. [Art 256]
INVALIDITY OF OTHER PROVISIONS
If any provision is held invalid, other provisions not
affected shall remain valid. [Art. 255]

Funeral, NCC Arts. 305-310

The duty and the right to make arrangements for the

funeral of a relative shall be in accordance with the
order established for support, under Article 294 [Art.
305]:
(1) Spouse
(2) Descendants in the nearest degree. In case of
descendants of the same degree, or of brothers
and sisters, the oldest shall be preferred.
(3) The ascendants in the nearest degree. In case of
ascendants, the paternal shall have a better right
(4) The brothers and sisters.
(5) Municipal authorities if there are no persons
who are bound to support or if such persons are
without means
NATURE OF FUNERAL: Every funeral shall be in keeping
with the social position of the deceased. [Art. 306]
The funeral shall be:
(1) In accordance with the expressed wishes of the
deceased.
(2) In the absence of such expression, his religious
beliefs or affiliation shall determine the funeral
rites.

(3) In case of doubt, the form of the funeral shall be

decided upon by the person obliged to make
arrangements for the same, after consulting the
other members of the family [Art. 307]
Note: No human remains shall be retained, interred,
disposed of or exhumed without the consent of the
persons mentioned in articles 294 and 305.
Damages: Any person who shows disrespect to the
dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages,
material and moral [Art. 309]
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Funeral Expenses: The construction of a tombstone or

mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses [Art. 310].
GUIDELINES IN MAKING FUNERAL ARRANGEMENTS

(1) The persons who are preferred in the right to

make funeral arrangements may waive the right
expressly or impliedly in which case the right and
duty immediately descend to the person next in
the order.
(2) It must be in keeping with the social position of
the deceased.
(3) Law shall prevail over the will of the persons who
have the right to control the burial of deceased
exhumation, evidential purpose, disposition of
corpse by deceased, mutilation of corpses and
autopsies.
(4) Corpses which are to be buried at public
expenses may also be used for scientific purposes
under certain conditions.
(5) Expressed wishes of the deceased is given priority
provided that it is not contrary to law and must
not violate the legal and reglementary provisions
concerning funerals and disposition of the
remains (time, manner, place or ceremony)
(6) In the absence of expressed wishes, his religious
beliefs or affiliation shall determine the funeral
rights.
(7) In case of doubt, the persons in Art. 199 shall
decide.
(8) Any person who disrespects the dead or interferes
with the funeral shall be liable for material and
moral damages.

Use of Surnames, Arts. 364369, 369-380

SURNAMES OF CHILDREN
(1) Legitimate and legitimated children shall
principally use the surname of the father. [Art.
364]
(2) An adopted child shall bear the surname of the
adopter. [Art. 365]

(3) A natural child acknowledged by both parents

shall principally use the surname of the father. If
recognized by only one of the parents, a natural
child shall employ the surname of the
recognizing parent. [Art 366]
(4) Natural children by legal fiction shall principally
employ the surname of the father [Art. 367]
(5) Illegitimate children referred to in Article 287 shall
bear the surname of the mother. [Art 368]
(6) Children conceived before the decree annulling a
voidable marriage shall principally use the
surname of the father. [Art. 369]
WIFE AFTER AND DURING MARRIAGE
(1) A married woman may use [Art. 370]:
(a) Her maiden first name and surname and add
her husband's surname, or
(b) Her maiden first name and her husband's
surname or
(c) Her husband's full name, but prefixing a word
indicating that she is his wife, such as "Mrs."
[Tolentino:] The wife cannot claim an exclusive right
to use the husbands surname. She cant be
prevented from using it; but neither can she restrain
others from using it.
(2) In case of annulment of marriage, and 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.
However, she may choose to continue employing
her former husband's surname, unless [Art. 371]:
(a) The court decrees otherwise, or
(b) She or the former husband is married again to
another person.
(3) When legal separation has been granted, the wife
shall continue using her name and surname
employed before the legal separation. [Art. 372]
(4) A widow may use the deceased husband's
surname as though he were still living, in
accordance with Article 370. [Art 373]
CONFUSION AND CHANGE OF NAMES
In case of identity of names and surnames, the
younger person shall be obliged to use such
additional name or surname as will avoid confusion.
[Art. 374]
In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can
be used only by a son. Grandsons and other direct
male descendants shall either [Art. 375]:
(a) Add a middle name or the mother's surname, or
(b) Add the Roman Numerals II, III, and so on.
No person can change his name or surname without
judicial authority. [Art. 376]
Usurpation of a name and surname may be the
subject of an action for damages and other relief.
[Art. 377]
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The unauthorized or unlawful use of another

person's surname gives a right of action to the latter
[Art. 378]
The employment of pen names or stage names is
permitted, provided it is done in good faith and there
is no injury to third persons. Pen names and stage
names cannot be usurped. [Art. 379]
Except as provided in the preceding article, no
person shall use different names and surnames. [Art
380]

Absence Art. 43, CC; Art. 41,

FC

PROVISIONAL MEASURES IN CASE OF

ABSENCE, ARTS. 381-383
Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights
from one to the other.
Note: Article 43 provides a statutory presumption
when there is doubt on the order of death between
persons who are called to succeed each other (only).
Joaquin v. Navarro (1948):
The statutory presumption of Article 43 was not
applied due to the presence of a credible eyewitness as
to who died first.
PRESUMPTION IN THE RULES OF COURT (Rule 131, sec. 3,
(jj.) (presumption of survivorship)
Age
Presumed Survivor
Both under 15 Older
Both above 60 Younger
One under 15, the other
above 60
One under 15
Both over 15 and under
60; different sexes
Male
Both over 15 and under
60; same sex
Older
One under 15 or over 60,
the other between those
ages
One between 15 and 60
Note: Applicable only to two or more persons who
perish in the same calamity, and it is not shown who
died first, and there are no particular circumstances
from which it can be inferred.
Article 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and

void, unless before the celebration of the subsequent

marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded
belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
General rule: Marriage contracted by any person
during the subsistence of a previous marriage is void.
Exceptions: The following subsequent marriage of
the present spouse is valid:
(1) Subsequent marriage due to ordinary absence
where:
(a) The prior spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-founded belief
that absent spouse is dead; and
(c) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) The prior spouse had been missing for 2
consecutive years;
(b) There is danger of death attendant to the
disappearance [Art. 391, Civil Code];
(c) The spouse present had a well-founded belief
that the missing person is dead; and
(d) Judicial declaration of presumptive death was
secured (no prejudice to the effect of the
reappearance of the absent spouse).
Notes:
(a) Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (Balane)
(b) Only the deserted spouse can file or institute an
action a summary proceeding for the declaration
of presumptive death of the absentee.
(Bienvenido case)
(c) There must have been diligent efforts on the part
of the deserted spouse to locate the absent
spouse. These diligent efforts correspond to the
requirement of the law for a well-founded belief.
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Exception to the Exception:

Art. 381. When a person disappears from his domicile,
his whereabouts being unknown, and without leaving
an agent to administer his property, the judge, at the
instance of an interested party, a relative, or a friend,
may appoint a person to represent him in all that may
be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee
has expired.

Art. 382. The appointment referred to in the preceding

article having been made, the judge shall take the
necessary measures to safeguard the rights and
interests of the absentee and shall specify the powers,
obligations and remuneration of his representative,
regulating them, according to the circumstances, by
the rules concerning guardians.
Art. 383. In the appointment of a representative, the
spouse present shall be preferred when there is no
legal separation.
If the absentee left no spouse, or if the spouse present
is a minor, any competent person may be appointed
by the court.
REQUISITES: The judge may appoint a person to
represent absentee when:
(1) Person disappears from his domicile
(2) His whereabouts are unknown
(3) No agent to administer his property
(4) An interested party, a relative, or a friend files the
action
WHO MAY BE APPOINTED AS REPRESENTATIVE?
(1) Spouse present shall be preferred when there is
no legal separation
(2) If no spouse or spouse is incapacitated, any
competent person
DECLARATION OF ABSENCE, ARTS. 384-389
Art. 384. Two years having elapsed without any news
about the absentee or since the receipt of the last
news, and five years in case the absentee has left a
person in charge of the administration of his property,
his absence may be declared.
Art. 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an
authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the condition of
his death.
Article 386. The judicial declaration of absence shall
not take effect until six months after its publication in
a newspaper of general circulation.
WHEN MAY A DECLARATION OF ABSENCE BE DECLARED?
(a) Two years without any news about the absentee
(b) Five years if the absentee left a person in charge
of administration of his property
(c) Declaration takes effect only after six months after
publication in a newspaper of general circulation
WHO MAY ASK FOR A DECLARATION OF ABSENCE?
(1) Spouse present
(2) Heirs instituted in a will, who may present an
authentic copy of the same;
(3) Relatives who may succeed by the law of intestacy;

(4) Those who may have some right over the property of
the absentee, subordinated to the condition of his
death.
ADMINISTRATION OF THE PROPERTY OF THE
ABSENTEE, ARTS. 387-389
Art. 387. An administrator of the absentee's property
shall be appointed in accordance with Article 383.
Art. 388. The wife who is appointed as an
administratrix of the husband's property cannot
alienate or encumber the husband's property, or that
of the conjugal partnership, without judicial authority.
Art. 389. The administration shall cease in any of the
following cases:
(1) When the absentee appears personally or by means
of an agent;
(2) When the death of the absentee is proved and his
testate or intestate heirs appear;
(3) When a third person appears, showing by a proper
document that he has acquired the absentee's
property by purchase or other title.
In these cases the administrator shall cease in the
performance of his office, and the property shall be at
the disposal of those who may have a right thereto.
WHO MAY ADMINISTER THE PROPERTY?
(a) Spouse present shall be preferred when there is
no legal separation
(b) If no spouse or spouse is incapacitated, any
competent person
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WHEN WILL THE ADMINISTRATION OF PROPERTY CEASE ?

Administrator shall cease in performance of his

office, and property shall be disposed in favor of
those who have a right thereto when
(1) Absentee appears personally or by means of an
agent
(2) Testate or intestate heirs appear, upon proof of
death of absentee
(3) Third person appears, with a proper document
showing he has acquired absentees property by
purchase or other title
PRESUMPTION OF DEATH, ARTS. 390-392
Art. 390. After an absence of 7 years, it being unknown
whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of 10 years. If he disappeared after the age of 75 years,
an absence of 5 years shall be sufficient in order that
his succession may be opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among
the heirs: (SAAD)
(7) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has

not been heard of for four years since the loss of

the vessel or aeroplane;
(8) A person in the armed forces who has taken part
in war, and has been missing for four years;
(9) A person who has been in danger of death under
other circumstances and his existence has not
been known for four years.
General rule: A person shall be presumed dead for all
purposes after absence for a period of 7 years.
Exception: Succession
(a) In succession, 10 years is required for
presumption of death.
(b) If absentee disappeared after age 75, 5 years
shall be sufficient.
EXTRAORDINARY ABSENCE

Only 4 years is required for presumption to arise if:

(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of
the vessel or aeroplane;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not
been known for four years.
Note:
(1) Although 7 years is required for the presumption
of death of an absentee in the Civil Code, Art. 41
of the Family Code makes an exception for the
purpose of remarriage by limiting such
requirement to 4 years.
(2) Art. 41 also limits the required 4 years in Art. 391
for absence under exceptional circumstances to
only 2 years.
Art. 392. If the absentee appears, or without appearing
his existence is proved, he shall recover his property in
the condition in which it may be found, and the price
of any property that may have been alienated or the
property acquired therewith; but he cannot claim either
fruits or rents.
Republic of the Philippines v. Granada (2012):
The petition for declaration of presumptive death of an
absent spouse for the purpose of contracting a
subsequent marriage under Article 41 of the Family
Code is a summary proceeding as provided for under
the Family Code, and as such, the judgment of the
court therein shall be immediately final and executor,
and not subject to ordinary appeal.
However, the losing party in a summary proceeding for
the declaration of presumptive death for purposes of
remarriage under Art. 41 of the FC may file a petition
for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed
grave abuse of discretion amounting to lack of
jurisdiction. From the decision of the CA, the aggrieved

party may elevate the matter to the Supreme Court via

a petition for review on certiorari under Rule 45 of the
Rules of Court.

Civil Registrar

ARTS. 407-413
Art. 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
register.
Art. 408. The following shall be entered in the civil
register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriage;
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(6) judgments declaring marriages void from the

beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss, or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name.
Art. 409. In cases of legal separation, adoption,
naturalization and other judicial orders mentioned in
the preceding article, it shall be the duty of the clerk of
the court which issued the decree to ascertain whether
the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry
of the city or municipality where the court is
functioning.
Art. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the
facts therein contained.
Art. 411. Every civil registrar shall be civilly responsible
for any unauthorized alteration made in any civil
register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from
such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful
alteration.
Art. 412. No entry in a civil register shall be changed or
corrected, without a judicial order.
Art. 413. All other matters pertaining to the registration
of civil status shall be governed by special laws.
RA 9048 AS AMENDED BY RA 10172
AN ACT AUTHORIZING THE CITY OR MUNICIPAL
CIVIL REGISTRAR OR THE CONSUL GENERAL TO

CORRECT A CLERICAL OR TYPOGRAPHICAL

ERROR IN AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL REGISTER
WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376
AND 412 OF THE CIVIL CODE OF THE PHILIPPINES
General rule: No entry in a civil register shall be
changed or corrected without a judicial order
Exception:
(a) Clerical or typographical errors;
(b) Change of: first name or nickname, day and
month in the date of birth, or sex of a person
This exception applies where it is patently clear that
there was a clerical or typographical error or mistake
in the entry, which can be corrected or changed by
the concerned city or municipal civil registrar or
consul general in accordance with the provisions of
this Act and its implementing rules and regulations
Notes:
(a) Clerical or typographical error refers to a mistake
committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous
(i.e. misspelled name, misspelled place of birth,
mistake in the entry of day and month in the date
of birth or the sex of the person or the like, which
is visible to the eyes or obvious to the
understanding, and can be corrected or changed
only by reference to other existing record or
records)
(b) Before the amendment by RA 10172, no correction
must involve the change of sex, nationality, age or
status of the petitioner. After the amendment,
change of sex can now be subjected to correction
without judicial order under the rules of this Act.
(c) Civil Register refers to the various registry books
and related certificates and documents kept in
the archives of the local civil registry offices,
Philippine Consulates and of the Office of the
Civil Registrar General.
Sec. 3. Who May File the Petition and Where. Any
person having direct and personal interest in the
correction of a clerical or typographical error in an
entry and/or change of first name or nickname in the
civil register may file, in person, a verified petition with
the local civil registry office of the city or municipality
where the record being sought to be corrected or
changed is kept.
In case the petitioner has already migrated to another
place in the country and it would not be practical for
such party, in terms of transportation expenses, time
and effort to appear in person before the local civil
registrar keeping the documents to be corrected or
changed, the petition may be filed, in person, with the
local civil registrar of the place where the interested

party is presently residing or domiciled. The two (2)

local civil registrars concerned will then communicate
to facilitate the processing of the petition.
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Citizens of the Philippines who are presently residing or

domiciled in foreign countries may file their petition, in
person, with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil
registrar or the consul general shall be processed in
accordance with this Act and its implementing rules
and regulations.
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.
GROUNDS

Who may file the petition and where?

(1) Any person having direct personal interest in the
correction of a clerical or typographical error in an
entry and/or change of first name or nickname in
the civil register
(2) Verified petition with the local civil registry office
of the city or municipality
(a) where the record being sought to be corrected
or changed is kept
(b) where the interested party is presently
residing or domiciled, if it will be impractical
to submit in the place where record is kept (i.e.
when party has migrated to another place in
the country
(c) nearest Philippine Consulates, if the petitioner
is presently residing or domiciled in foreign
countries
Note:
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.
Sec. 4. Grounds for Change of First Name or
Nickname. The petition for change of first name or
nickname may be allowed in any of the following
cases:
(1) The 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 by that first name
or nickname in the community: or
(3) The change will avoid confusion.
Sec. 5. Form and Contents of the Petition. The
petition for correction of a clerical or typographical
error, or for change of first name or nickname, as the
case may be, shall be in the form of an affidavit,
subscribed and sworn to before any person authorized
by the law to administer oaths. The affidavit shall set
forth facts necessary to establish the merits of the

petition and shall show affirmatively that the petitioner

is competent to testify to the matters stated. The
petitioner shall state the particular erroneous entry or
entries, which are sought to be corrected and/or the
change sought to be made.
The petition shall be supported with the following
documents:
(1) A certified true machine copy of the certificate or of
the page of the registry book containing the entry or
entries sought to be corrected or changed.
(2) At least two (2) public or private documents
showing the correct entry or entries upon which the
correction or change shall be based; and
(3) Other documents which the petitioner or the city or
municipal civil registrar or the consul general may
consider relevant and necessary for the approval of the
petition.
No petition for correction of erroneous entry
concerning the date of birth or the sex of a person shall
be entertained except if the petition is accompanied by
earliest school record or earliest school documents
such as, but not limited to, medical records, baptismal
certificate and other documents issued by religious
authorities; nor shall any entry involving change of
gender corrected except if the petition is accompanied
by a certification issued by an accredited government
physician attesting to the fact that the petitioner has
not undergone sex change or sex transplant. The
petition for change of first name or nickname, or for
correction of erroneous entry concerning the day and
month in the date of birth or the sex of a person, as the
case may be, shall be published at least once a week
for two (2) consecutive weeks in a newspaper of
general circulation.
Furthermore, the petitioner shall submit a certification
from the appropriate law enforcements, agencies that
he has no pending case or no criminal record.
The petition and its supporting papers shall be filed in
three (3) copies to be distributed as follows: first copy
to the concerned city or municipal civil registrar, or the
consul general; second copy to the Office of the Civil
Registrar General; and third copy to the petitioner.
RULE 108, RULES OF COURT
CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
Sec. 1. Who may file petition. - Any person interested in
any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation
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or correction of any entry relating thereto, with the

Court of First Instance of the province where the
corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in

the civil register may be cancelled or corrected: (a)

births; (b) marriages; (c) deaths; (d) legal separations;
(e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j)
naturalization (k) election, loss or recovery of
citizenship (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation
of a minor; and (o) changes of name.
Sec. 3. Parties. - When cancellation or correction of an
entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which
would be affected thereby shall be made parties to the
proceeding.
Sec. 4. Notice and publication. - Upon the filing of the
petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the
order to be published once a week for three (3)
consecutive weeks in a newspaper of general
circulation in the province.
Sec. 5. Opposition. - The civil registrar and any person
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition
thereto.
Sec. 6. Expediting proceedings. - The court in which
the proceeding is brought may make orders expediting
the proceedings, and may also grant preliminary
injunction for the preservation of the rights of the
parties pending such proceedings.
Sec. 7. Order. - After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same
in his record.
WHO MAY FILE PETITION?
(1) Any person interested
(2) Any act, event, order or decree concerning the
civil status of persons which has been recorded in
the civil register
(3) Verified petition for the cancellation or correction
of any entry relating thereto with the Court of
First Instance of the province where the
corresponding civil registry is located
ENTRIES SUBJECT TO CANCELLATION

(a) Births
(b) Marriages
(c) Deaths
(d) Legal separations
(e) Judgments of annulments of marriage

(f) Judgments declaring marriages void from the

beginning
(g) Legitimations
(h) Adoptions
(i) Acknowledgments of natural children
(j) Naturalization
(k) Election, loss or recovery of citizenship
(l) Civil interdiction
(m) Judicial determination of filiation
(n) Voluntary emancipation of a minor
(o) Changes of name
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Property All things which are, or may be, the object

of appropriation. [NCC 414]

Characteristics (USA)

(1) Utility capacity to satisfy human wants

(2) Substantivity and Individuality separate and
autonomous existence
(3) Susceptibility of being appropriated what cannot
be appropriated because of their distance, depth,
or immensity cannot be considered things (i.e.
stars, ocean)

Classification

HIDDEN TREASURE
Hidden treasure any hidden and unknown deposit of
money jewels or other precious objects, the lawful
ownership of which does not appear. [NCC 439]
Owner of the land, building or other property on
which the hidden treasure was found, also owns it,
subject to:
(1) Right of a finder by chance who is not a
trespasser/intruder: of treasure
(2) Right of a usufructuary who finds treasure: of
treasure
(3) Right of State to acquire things of interest to
science or the arts [NCC 438]
BASED ON MOBILITY IMMOVABLE OR
MOVABLE
REAL OR IMMOVABLE PROPERTY [NCC 415]
(1) Land, buildings, roads and constructions of all
kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of
an immovable;
(3) Everything attached to an immovable in a fixed
manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use
or ornamentation, placed in buildings or on lands
by the owner of the immovable in such a manner
that it reveals the intention to attach them

permanently to the tenements;

(5) Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which may be
carried on in a building or on a piece of land, and
which tend directly to meet the needs of the said
industry or works;
(6) Animal houses, pigeon-houses, beehives, fish
ponds or breeding places of similar nature, in
case their owner has placed them or preserves
them with the intention to have them
permanently attached to the land, and forming a
permanent part of it; the animals in these places
are included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while the
matter thereof forms part of the bed, and waters
either running or stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at
a fixed place on a river, lake, or coast;
(10) Contracts for public works, and servitudes and
other real rights over immovable property.
Categories of Immovables (NIDA)
(1) By nature
(2) By incorporation
(3) By destination
(4) By analogy
Immovables by Nature: cannot be moved from place
to place; their intrinsic qualities have no utility except
in a fixed place (Par. 1 & 8)
(1) Par. 1
(a) Building - their adherence to the land must
be permanent and substantial.
(b) Buildings have been considered as
immovables, despite:
(i) Treatment by the parties e.g. they
constitute a separate mortgage on the
building and the land [Punzalan v.
Lacsamana]
(ii) Separate Ownership i.e. a building on
rented land is still considered an
immovable. [Tolentino]
(2) Par. 8
(a) Mineral Deposits
(i) Minerals still deposited in the soil
(ii) When minerals have been extracted,
they become chattel.
(b) Slag Dump: dirt and soil taken from a mine
and piled upon the surface of the ground.
Inside the dump can be found the minerals.
(c) Waters: those still attached to or running thru
the soil or the ground.
Immovables by Incorporation: are essentially movables
but are attached to an immovable in such a way as

to be an integral part [Par. 2, 3, 4, 6 & 7]

(1) Par. 2
(a) Trees and plants: only immovables when they
are attached to the land or form an integral
part of an immovable
(i) When they have been cut or uprooted,
they become movables.
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(b) By special treatment of Act 1508 (Chattel

Mortgage Law), growing crops may be subject
of a Chattel Mortgage.
(c) For the purpose of attachment: growing crops
are to be attached in the same manner as
realty. (Rule 59, Sec. 7)
(2) Par. 3
(a) Res vinta in Roman Law
(b) Attachment in a fixed manner: breakage or
injury in case of separation will be substantial
e.g. wells, sewers, aqueducts and railways
(i) Whether attached by the owner himself
or some other person
(3) Par. 7
Actually used (it has been spread over the land)
Immovables by Destination: are essentially movables
but by the purpose for which they have been placed
in an immovable, partake of the nature of an
immovable [Par. 4, 5, 6 & 9]
(1) Par. 4
(a) Requisites:
(i) Placed by the owner or by the tenant (as
agent);
(ii) With intention of attaching them
permanently even if adherence will not
involve breakage or injury.
(b) Where the improvement or ornaments placed
by the lessee are not to pass to the owner at
the expiration of the lease, they remain
movables for chattel mortgage purposes.
[Davao Sawmill v. Castillo(1935)]
(2) Par. 3 v. Par. 4
Par. 3 Par. 4
Cannot be separated
from immovable
without breaking or
deterioration
Can be separated
from immovable
without breaking or
deterioration
Need not be placed by
the owner
Must be placed by
the owner, or by his
agent, expressed or
implied

Real property by
incorporation
Real property by
incorporation and
destination
(3) Par. 5
(a) Immovability depends upon their being
destined for use in the industry or work in the
tenement;
(i) The moment they are separated, (from
the immovable or from the industry or
work in which they are utilized) they
recover their condition as movables.
(ii) If it is still needed for the industry but
separated from the tenement
temporarily, the property continues to be
immovable.
(b) Requisites for Immovability in Par. 5:
(i) Placed by the owner or the tenant (as
agent);
(ii) Adapted to the needs of the industry or
work
(c) Except: Estoppel
(d) Parties may, by agreement, treat as personal
property that which by nature would be real,
as long as no third parties would be
prejudiced. That characterization is effective
between the parties. [Makati Leasing v.
Wearever(1983)]
(e) Effect of Attachment
(i) Machinery becomes part of the
immovable.
(ii) The installation of machinery and
equipment in a mortgaged sugar central
for the purpose of carrying out the
industrial functions and increasing
production, constitutes a permanent
improvement on said sugar central and
subjects said machinery and equipment
to the mortgage constituted thereon.
[Berkenkotter v. Cu Unjieng(1935)]
(4) Par. 6
Requisites:
(a) Placed by the owner or the tenant (as agent);
(b) With the intention of permanent attachment;
(c) Forming a permanent part of the immovable.
(5) Par. 9:
(a) A floating house tied to a shore and used as a
residence is considered real property,
considering that the waters on which it floats
are considered immovables.
(b) But if the floating house makes it a point to
journey from place to place, it assumes the
category of a vessel, and is considered
immovable

Immovables by Analogy: Contracts for public works,

servitudes, other real rights over immovable property
e.g. usufruct and lease of real property for a period of
1 year and registered [Par. 10]
Note: Enumeration in Art. 415 not absolute
(1) Parties may by agreement treat as, but effective
only as to them.
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It is based, partly, upon the principle of estoppel.

[Evangelista vs. Alto Surety(1958)]
(2) For purposes of taxation, improvements on land
are commonly taxed as realty, even though for
some purposes, they might be considered as
personalty.
It is a familiar phenomenon to see things
classified as real property for purposes of
taxation, which on general principle, might be
considered personal property. [Manila Electric v.
Central Bank(1962)]
PERSONAL OR MOVABLE [416 & 417, CC]
(1) Those movables susceptible of appropriation
which are not included in the preceding article;
(2) Real property which by any special provision of
law is considered as personalty;
(3) Forces of nature which are brought under control
by science; and
(4) In general, all things which can be transported
from place to place without impairment of the
real property to which they are fixed.
(5) Obligations and actions which have for their
object movables or demandable sums; and
(6) Shares of stock of agricultural, commercial and
industrial entities, although they may have real
estate.
Tests to Determine Movable Character
(1) By exclusion
(a) Everything NOT included in Article 415
(b) Parties cannot by agreement treat as
immovable that which is legally movable.
(2) By description
(a) Ability to change location whether it can be
carried from place to place;
(b) Without substantial injury to the immovable to
which it is attached.
The steel towers built by MERALCO are not buildings
or constructions since they are removable and
merely attached to a square metal frame by means
of bolts, which when unscrewed could easily be
dismantled and moved from place to place, without
breaking the material or causing deterioration to the
object they are attached. [Board of Assessment
Appeals v. Meralco]
(3) By special provision of law
(a) Growing crops under the Chattel Mortgage
Law

(b) Machinery installed by a lessee not acting as

agent of the owner [Davao Sawmill v. Castillo]
(c) Intellectual property considered personal
property; it consists in the pecuniary benefit
which the owner can get by the reproduction
or manufacture of his work.
(4) By forces of nature e.g. electricity, gas, heat,
oxygen
IMPORTANCE AND SIGNIFICANCE OF CLASSIFICATION
UNDER THE CIVIL CODE

(1) In Criminal Law

(a) Usurpation of property can take place only
with respect to real property. [RPC 312]
(b) Robbery and theft can be committed only
against personal property. [RPC 293, 308]
(2) In the Form of Contracts Involving Movables and
Immovables
(a) Subject matter of specific contracts:
(i) Only real property can be the subject of
real mortgage [NCC 2124] and
antichresis [NCC 2132]
(ii) Only personal property can be the
subject of voluntary deposit [NCC 1966],
pledge [NCC 2094] and chattel
mortgage [Act 1508[
(b) Donations of real property are required to be
in a public instrument [NCC 749] but a
donation of a movable may be made orally or
in writing [NCC 748]
(3) For Acquisitive Prescription
(a) Real property can be acquired by prescription
in 30 years (bad faith) and 10 years (good
faith). (NCC 1137, 1134)
(b) Movables can be acquired by prescription in 8
years (bad faith) and 4 years (good faith).
(NCC 1132)
(4) Actions for Recovery of Possession
(a) Possession of real property - recovered
through accion reivindicatoria, accion
publiciana, forcible entry and unlawful detainer.
(b) Possession of movable property - recovered
through replevin.
(5) Venue of actions
(a) Real actions - Actions concerning real property
are commenced in the court which has
jurisdiction over the area where the real
property is situated. [Rules of Court Rule 4 Sec.
1]
(b) Personal actions - Commenced where the
plaintiff or any of the principal plaintiffs, or
where the defendant or any of the principal
defendants resides, or if a non-resident
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defendant, where he may be found, at the

election of the plaintiff. [Rule 4 Sec. 2]

(6) The Governing Law (Private International Law)

(a) Immovables - governed by the law of the
country where they are located
(b) Movables - governed by the personal laws of
the owner (which in some cases is the law of
his nationality and in other cases, the law of
his domicile)
(7) In affecting third persons
(a) In transactions involving real property must
be recorded in the Registry of Property to
affect third persons
(b) In transactions involving personal property
registration is not required, except for chattel
mortgages [Chattel Mortgage Register, NCC
2140]
BASED ON OWNERSHIP
Either of public dominion or private ownership [NCC
419]
Churches and other consecrated objects are
considered outside the commerce of man; they are
considered neither public nor private property
PUBLIC DOMINION

Property of public dominion is outside the commerce

of man. They cannot be the subject matter of private
contracts, cannot be acquired by prescription and
they are not subject to attachment and execution nor
burdened with a voluntary easement.
Public
Dominion
As defined by NCC 420
Public
Domain
Used in Art XII, Section 2, 1987
Constitution
Public Lands Public Land Act
Characteristics:
(1) Not owned by the State but pertains to it as
territorial sovereign; to hold in trust for the
interest of the community.
(2) Purpose: For public use, and not for use by the
State as a juridical person
(3) Cannot be the subject of appropriation either by
the State or by private persons
Classifications:
Administered by the State: [NCC 420]
(1) Those intended for public use (roads, canals,
rivers, torrents, ports and bridges constructed by
the State, banks, shores, roadsteads, and others
of similar character)
May be used by everybody, even by strangers or
aliens but nobody can exercise over it the rights of
a private owner
(2) Those intended for some public service
(a) may be used only by authorized persons but
exists for the benefit of all

(b) e.g. fortresses, unleased mines and civil

buildings
(3) Those for the development of the national wealth
Includes natural resources such as minerals, coal,
oil and forest
(4) Patrimonial property
(a) Owned by the State over which it has the
same rights as private individuals in relation
to their own property
(b) Subject to the administrative laws and
regulations on the procedure of exercising
such rights.
(c) E.g. friar lands, escheated properties and
commercial buildings
(d) Purpose:
(i) Enables the State to attain its economic
ends
(ii) Serves as a means for the States
subsistence and preservation
(iii) Enables the State to fulfill its primary
mission
(e) Conversion of Property of Public Dominion for
Public Use to Patrimonial Property:
(i) Property of public dominion, when no
longer intended for public use or for
public service, shall form part of the
patrimonial property of the State [NCC
422, Civil Code]
(ii) Requires a Declaration by the
Government (executive or legislative
departments) that it is no longer needed
for public use or service.
Administered by Municipal Corporations: [NCC 424]
(1) Property for public use, in the provinces, cities,
and municipalities, consist of the provincial
roads, city streets, municipal streets, the squares,
fountains, public waters, promenades, and public
works for public service paid for by said provinces,
cities, or municipalities.
(2) Patrimonial property of Municipal Corporations:
(a) The province or municipality, as a juridical
entity, also possesses private property to
answer for its economic necessities.
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(b) Classification of Properties of provinces, cities,

and municipalities [Salas v. Jarencio, (1972)]
(i) Properties acquired with their own funds
in their private or corporate capacity over
which the political subdivision has
ownership and control
(ii) Properties of public dominion held in trust
for the States inhabitants are subject to
the control and supervision of the State
(c) A municipal corporation must prove that they
acquired the land with their own corporate

funds
(d) Presumption: that land comes from the State
upon the creation of the municipality. All
lands in the possession of the municipality
Except for those acquired with its private funds,
are deemed to be property of public dominion,
held in trust for the State for the benefit of its
inhabitants.
(e) Congress has paramount power to dispose of
lands of public dominion in a municipality, the
latter being a subdivision only for purposes of
local administration. [Salas v. Jarencio, (1972)]
PRIVATE OWNERSHIP

Can be exercised by the State in its private capacity

or by private persons
Kinds:
(1) Patrimonial property - Property owned by the
State and its political subdivisions in their private
capacity; all property of the State not included in
NCC 420 (on public dominion) [NCC 421-424]
(2) Property belonging to private persons, either
individually or collectively [NCC 425]
(1) Property of private ownership, besides the
patrimonial property of the State, provinces,
cities, and municipalities, consists of all
property belonging to private persons, either
individually or collectively.
(2) Refers to all property belonging to private
persons, natural or juridical, either individually
or collectively (co-owned property)
Determination (two different views):
(1) Determined by how the property was used:
In Province of Zamboanga v. City of Zamboanga
(1968), property was considered patrimonial for
they were not for public use.
(2) Determined by how the property was acquired:
According to Salas v. Jarencio (1972), the absence
of a title deed to any land, showing that it was
acquired with its private or corporate funds, the
presumption is that such land came from the
State upon the creation of the municipality.
Conversion
Alienable Public Land converted to Private Property
through Prescription Alienable public land held by a
possessor personally/through predecessors-ininterest,
openly, continuously and exclusively for
30 years is CONVERTED to private property by the
mere lapse or completion of the period. The
application for confirmation is mere formality,
because land had already been converted, giving rise
to a registrable title. [Director of Lands v. IAC]
Private Land converted to Property of Public Dominion
through abandonment and reclamation Through the
gradual encroachment or erosion by the ebb and
flow of the tide, private property may become public

IF the owner appears to have ABANDONED the land,

and permitted it to be totally destroyed so as to
become part of the shore. The land having
disappeared on account of the gradual erosion, and
having remained submerged until they were
reclaimed by the government, they are public land.
[Government v. Cabangis]
BASED ON CONSUMABILITY [NCC 418]
Only applies to movables, determined by nature
CONSUMABLE

(1) Movables which cannot be used in a manner

appropriate to their nature without their being
consumed (e.g. food)
(2) Consumable goods cannot be the subject matter
of a commodatum unless the purpose of the
contract is not the consumption of the object, as
when it is merely for exhibition.
NON-CONSUMABLE
All others not falling under consumable e.g. money
in coin
SUSCEPTIBILITY TO SUBSTITUTION
Only applies to movables, determined by the
intention of the parties.
FUNGIBLES

Things which, because of their nature or the will of

the parties, are capable of being substituted by
others of the same kind, not having a distinct
individuality
NON-FUNGIBLES
(1) Things which cannot be substituted for another
(2) If the parties agreed that the same thing be
returned, it is not fungible
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BASED ON THE CONSTITUTION [ARTICLE XII,

SEC 3]
(1) Public Agricultural Land
(2) Mineral Land
(3) Timber Land
(4) National Parks
OTHER CLASSIFICATIONS
BY THEIR PHYSICAL EXISTENCE

(1) Corporeal - All property the existence of which

can be determined by the senses (res qui tangi
possunt)
(2) Incorporeal
(a) Things having abstract existence, created by
man and representing value.
(b) Includes rights over incorporeal things,
credits, and real rights other than ownership
over corporeal things.
BY THEIR AUTONOMY OR DEPENDENCE

(1) Principal - Those to which other things are

considered dependent or subordinated, such as
the land on which a house is built.
(2) Accessory - Those which are dependent upon or
subordinated to the principal. They are destined

to complete, enhance or ornament another

property.
BY SUSCEPTIBILITY TO DETERIORATION

(1) Deteriorable that deteriorate through use or by

time
(2) Non-deteriorable
BY REASON OF THEIR SUSCEPTIBILITY TO DIVISION

(1) Divisible - Those which can be divided physically

or juridically without injury to their nature. E.g.:
piece of land or an inheritance.
(2) Indivisible - Those which cannot be divided
without destroying their nature or rendering
impossible the fulfillment of the juridical relation
of which they are object.
BY REASON OF DESIGNATION

(1) Generic - That which indicates its homogenous

nature, but not the individual such as a horse,
house, dress, without indicating it
(2) Specific - That which indicates the specie or its
nature and the individual, such as the white
horse of X
EXISTENCE IN POINT OF TIME

(1) Present - Those which exist in actuality, either

physical or legal, such as, the erected building
(2) Future - Those which do not exist in actuality, but
whose existence can reasonably be expected with
more or less probability, such as ungathered
fruits.

Ownership

DEFINITION
(a) Independent right of exclusive enjoyment and
control of a thing
(b) For the purpose of deriving all advantages
required by the reasonable needs of