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CIVIL LAW

2013 GOLDEN NOTES


UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law.
Communications regarding the NOTES should be addressed to
the Academics Committee of the Team: Bar-Ops.

ADDRESS: Academics Committee


Team Bar-Ops
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

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Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

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2013 Edition

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No. 01

Printed in the Philippines, April 2013.


ACADEMIC YEAR 2013-2014

CIVIL LAW STUDENT COUNCIL


VICTOR LORENZO L. VILLANUEVA PRESIDENT
MARIANE TINGCHUY VICE PRESIDENT INTERNAL
RONN ROBBY ROSALES VICE PRESIDENT EXTERNAL
MARIE SYBIL TROPICALES SECRETARY
RAFAEL LORENZ SANTOS TREASURER
LUIS ALFONSO E. ARTAIZ AUDITOR
GLORIA ANASTHASIA LASAM PUBLIC RELATIONS OFFICER

TEAM: BAR-OPS
BIENVENIDO L. MABULAC II CHAIRPERSON
VICENTE JAN PLATON III VICE-CHAIRPERSON
APRIL V. ENRILE SECRETARY
ERIKA PINEDA ASST. SECRETARY
CARLO ARTEMUS V. DIAZ HEAD, FINANCE COMMITTEE
WILFREDO P. SUDIO JR. ASST. HEAD, FINANCE COMMITTEE
MHAE ANN V. RIVERA ASST. HEAD, FINANCE COMMITTEE
CLARABEL ANNE R. LACSINA HEAD, HOTEL ACCOMMODATIONS COMMITTEE
VANNESSA ANNE VIRAY ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
HAZEL M. NAVAREZ ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
ARWIN V. CABANTING HEAD, LOGISTICS COMMITTEE
NATHANIEL LIBERATO ASST. HEAD, LOGISTICS COMMITTEE

ATTY. AL CONRAD B. ESPALDON


ADVISER
ACADEMICS COMMITTEE
ALJON D. DE GUZMAN CHAIRPERSON
MARK KEVIN U. DELLOSA VICE-CHAIR FOR ACADEMICS
ANTHONY M. ROBLES VICE-CHAIR FOR LAYOUT AND DESIGN
CLARABEL ANNE R. LACSINA MEMBER, LAYOUT AND DESIGN TEAM
RAFAEL LORENZ SANTOS MEMBER, LAYOUT AND DESIGN TEAM
JAMES BRYAN V. ESTELEYDES VICE-CHAIR FOR RESEARCH
MARIA JAMYKA S. FAMA MEMBER, RESEARCH TEAM
PAULINE BREISSEE GAYLE D. ALCARAZ MEMBER, RESEARCH TEAM
ROBBIE BAAGA MEMBER, RESEARCH TEAM
MONICA S. CAJUCOM MEMBER, RESEARCH TEAM
DOMINIC VICTOR C. DE ALBAN MEMBER, RESEARCH TEAM
OMAR DELOSO MEMBER, RESEARCH TEAM
ANNABELLA HERNANDEZ MEMBER, RESEARCH TEAM
MA. CRISTINA MANZO-DAGUDAG MEMBER, RESEARCH TEAM
WILLIAM RUSSELL MALANG MEMBER, RESEARCH TEAM
CHARMAINE PANLAQUE MEMBER, RESEARCH TEAM

CIVIL LAW COMMITTEE


MONICA S. CAJUCOM CIVIL LAW COMMITTEE HEAD
KENNETH JAMES CARLO C. HIZON ASST. CIVIL LAW COMMITTEE HEAD
KING JAMES CARLO C. HIZON ASST. CIVIL LAW COMMITTEE HEAD
NICOLE MARIE G. ATIENZA MEMBER
CONSTANZA B. BRILLANTES MEMBER
KIM APPLE S. CARVAJAL MEMBER
SAMANTHA FAE D. CHAN MEMBER
LISETTE A. MANDOCDOC MEMBER
EILYN E. MEDINA MEMBER
HAZEL M. NAVAREZ MEMBER
ANGELA MICHELLE A. PAGUIO MEMBER
TEFFANIE MARIE N. QUIBOD MEMBER
NARCISO G. REYES JR. MEMBER
Monique Eveleen V. Salazar MEMBER
RICHARD P. SARINO MEMBER
AILEEN U. TAMBANILLO MEMBER
BERNADETH S. YABON MEMBER
MARIA CARMELA C. YUMUL MEMBER
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.


DEAN REGENT

ATTY. ARTHUR B. CAPILI


FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ


LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

ATTY. AMADO E. TAYAG


SWDB COORDINATOR

LENY G. GADANIA, R.G.C.


GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS & INSPIRATION
DEAN AGUSTO ALIGADA
JUSTICE OSWALDO AGCAOILI
JUDGE PHILIP AGUINALDO
ATTY. ENRIQUE V. DELA CRUZ JR.
ATTY. PAOLO AMADO DIMAYUGA
ATTY. IRVIN JOSEPH M. FABELLA
ATTY. GREGORIO FERNANDEZ
ATTY. ALDEN GONZALES
ATTY. RENE GOROSPE
ATTY. ELMER T. RABUYA
ATTY. TEOFILO RAGADIO
ATTY. CARLA SANTAMARIA--SEA
ATTY. MAURICIO ULEP

For being our guideposts in understanding the intricate


sphere of Civil Law.
- Academics Committee 2013
DISCLAIMER

THE RISK OF USE, MISUSE OR NON-


USE OF THIS BAR REVIEW MATERIAL
SHALL BE BORNE BY THE USER/
NON-USER.
CIVIL LAW

EFFECT AND APPLICATION OF LAWS Q: Are all laws required to be published?

Q: What is a law? A: GR: Yes. Publication is indispensable.

A: In its jural and concrete sense, law means a rule of XPNs:


conduct formulated and made obligatory by legitimate 1. Municipal Ordinances (governed by the Local
power of the state (Diaz, Statutory Construction, p. 1). Government Code)
2. Rules and regulations which are internal in
Q: When did the Civil Code take effect? nature.
3. Letters of Instruction issued by administrative
A: August 30, 1950 supervisors on internal rules and guidelines.
4. Interpretative regulations regulating only the
Q: When do laws take effect? personnel of administrative agency.

A: GR: Laws take effect after 15 days following the XPNs to the XPNs: Administrative rules and regulations
completion of their publication in the Official Gazette or that require publication:
newspaper of general circulation in the Philippines. 1. The purpose of which is to implement or enforce
existing laws pursuant to a valid delegation;
XPN: unless it is otherwise provided by the law. (Art. 2) 2. Penal in Nature;
3. It diminishes existing rights of certain individuals
Note: If the law provided a specific date for its effectivity, it
becomes effective only upon the lapse of said period following Note: If the law is not published, it shall not be effective. Non-
its complete publication and not before. publication is a violation of due process.

Q. How is the 15-day period computed? Q: Honasan questions the authority and jurisdiction of the
DOJ panel of prosecutors to conduct a preliminary
A: The 15-day period may either be on the 15th day or on investigation and to eventually file charges against him,
the 16th day depending on the language used by Congress claiming that since he is a senator with a salary grade of
in fixing the effectivity date of the statute. (Rabuya, p. 8) 31, it is the Office of the Ombudsman, not the DOJ, which
has authority and jurisdiction to conduct the preliminary
th
15 Day - If the law declares that it shall become investigation. DOJ claims that it has concurrent
effective 15 days after its publication jurisdiction, invoking an OMB-DOJ Joint Circular which
outlines the authority and responsibilities among
th
16 Day - If the law declares that it shall be effective prosecutors of the DOJ and the Office of the Ombudsman
after 15 days following its publication in the conduct of preliminary investigations. Honasan
counters that said circular is ineffective as it was never
Q: What is meant by the phrase unless it is otherwise published. Is OMB-DOJ Circular No. 95-001 ineffective
provided in the provision on effectivity of laws? because it was not published?

A: The clause "unless it is otherwise provided" refers to the A: No. OMB-DOJ Circular No. 95-001 is merely an internal
date of effectivity and not to the requirement of circular between the two offices which outlines the
publication itself, which cannot, in any event be omitted. authority and responsibilities among prosecutors of the
This clause does not mean that the legislator may make the DOJ and of the Office of the Ombudsman in the conduct of
law effective immediately upon approval, or on any other preliminary investigations. It does not contain any penal
date without its previous publication. provision nor prescribe a mandatory act or prohibit any
under pain of penalty. Further, it does not regulate the
Note: Publication is indispensable in every case, but the legislature conduct of persons or the public, in general. As such
may in its discretion provide that the usual fifteen-day period shall therefore, it need not be published (Honasan, II v. The
be shortened or extended (Umali v. Estanislao, G.R. No. 104037,
Panel of Investigating Prosecutors of the Department of
May 29, 1992, [citing Taada v. Tuvera, G.R. No. L-63915,
December29, 1986]). Justice, G.R. No. 159747, Jun. 15, 2004).

Q: When will the law take effect if it is made to take effect Q: What must be published in order to comply with the
immediately or upon approval? publication requirement?

A: It shall take effect immediately after publication. The 15- A: Publication must be in full or it is no publication at all
day period after publication is dispensed with but since its purpose is to inform the public of the contents of
publication is not. In cases wherein the law states that it the law. The mere mention of the number of the
shall be effective upon approval, it likewise becomes presidential decree, the title of such decree, its
effective only after its complete publication and not whereabouts, the supposed date of effectivity, and in a
immediately after its signing by the President. mere supplement of the Official Gazette cannot satisfy the
publication requirement. This is not even substantial

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 8
EFFECT AND APPLICATION OF LAWS

compliance (Taada v. Tuvera, G.R. No. L-63915, A: An interpretative rule is designed to provide guidelines
December29, 1986). to the law which the administrative agency is in charge of
enforcing xxx Whether an administrative rule is merely
Q: Publication must be made in the Official Gazette or in a interpretative in nature, its applicability needs nothing
newspaper of general circulation. What is a newspaper of further than its bare issuance for it gives no real
general circulation? consequence more than what the law itself has already
prescribed. When the administrative agency goes beyond
A: merely providing for the means that can facilitate or render
1. It is published within the courts jurisdiction least cumbersome the implementation of the law but
2. Published at regular intervals for disseminating local substantially increases the burden of those governed, it
news and general information. behooves the agency to accord at least to those directly
3. It has a bona fide subscription list of paying subscribers affected a chance to be heard and thereafter to be duly
4. It is not devoted to the interest or published for the informed.
entertainment of a particular class, profession, trade,
calling, race or religious denomination (Alvarez v. The said orders cannot be viewed simply as implementing
people, G.R. No. 192591, June 29, 2011). rules or directive measures revoking in the process previous
rulings of past commissioners xxx The due observance of
Q: A Local Budget Circular 55 issued by the DBM which the requirements of publication should not have been
reduced the monthly allowance given by Local ignored (CIR v. Lhuillier G.R No. 150947, 15 July 2003).
Governments to RTC and MTC judges was questioned in
this case. Petitioner judges filed a protest against the IGNORANCE OF THE LAW
notices. Is the circular valid?
Q: What is the presumption of knowledge of laws?
A: LBC 55 is void on account of its lack of publication.
Administrative rules and regulations must be published if A: GR: Everyone is conclusively presumed to know the law.
their purpose is to enforce or implement existing law Hence, ignorance of the law excuses no one from
pursuant to a valid delegation. Interpretative regulations compliance therewith (Art. 3).
and those merely internal in nature, that is, regulating only
the personnel of an administrative agency and the public XPNs:
need not be published. Neither is publication required of a. Mistake upon a doubtful or difficult question of
the so called LOIs issued by administrative superiors law may be the basis of good faith. [Art. 526 (3)]
concerning the rules or guidelines to be followed by their b. Art. 2155
subordinates in the performance of their duties (Judge c. Art. 1344
Dadole v. COA, G.R. No. 125350, December 3, 2002).
Q: Differentiate mistake of law from mistake of fact.
Q: The Sangguniang Bayan of Hagonoy Bulacan enacted an
ordinance which increased the stall rentals of the market A:
vendors in Hagonoy. Art. 3 of the said ordinance provided MISTAKE OF FACT MISTAKE OF LAW
that it shall take effect upon approval. The ordinance was Want of knowledge or
posted from November 4 to 25, 1996. In the last week of Want of knowledge of acquaintance with the laws
November 1997, petitioners were personally given copies some fact or facts of the land insofar as they
and were informed that it shall be enforced on January constituting or relating to apply to the act, relation,
1998. The petitioners contended that the subject the subject matter in hand. duty, or matter under
ordinance was not posted as required by law. Did the consideration.
ordinance comply with the rule of publication? When some facts which Occurs when a person
really exist are unknown or having full knowledge of the
A: An ordinance which increased the stall rentals of the some fact is supposed to facts come to an erroneous
market vendors has complied with the publication exist which really does not conclusion as to its legal
requirement when the same was posted in 3 conspicuous exist. effects
places since there was no newspaper of local circulation in Not excusable, even if in
the municipality which is in accordance with Sec. 188 of the Good faith is an excuse
good faith
LGC (Hagonoy v. Municipality, G.R. No. 137621 February 6,
2002). Note: Ignorance of a foreign law is a mistake of fact

Q: CIR issued a Memorandum Order 15-91 imposing a 5% Q: Eduardo was married to Ruby. He then met Tina and
lending investors tax on pawnshops. The BIR issued an proposed marriage, assuring her that he was single. They
assessment against Lhuillier demanding payment of got married and lived together. Tina, upon learning that
deficiency tax. Lhuillier contended that the said memo is a Eduardo had been previously married, charged Eduardo
new and additional tax measure on pawnshops which for bigamy for which he was convicted.
Congress should enact. Is the said memorandum valid
even without publication? Eduardo testified that he declared he was single
because he believed in good faith that his first wife was

UNIVERSITY OF SANTO TOMAS


9 FACULTY OF CIVIL LAW
CIVIL LAW
already dead, having not heard from her for 20 years, and proved (Estate of Boo v. Gee, G.R. No. 18081, March 3,
that he did not know that he had to go to court to seek for 1922).
the nullification of his first marriage before marrying Tina.
Note: Processual Presumption if the foreign law is not properly
Is Eduardo liable for the crime of bigamy? alleged and proved, the presumption is that it is the same as our
own law (Estate of Suntay v. Suntay, G.R. No. 132524. December
29, 1998).
A: Yes. Eduardo is presumed to have acted with malice or
evil intent when he married Tina. As a general rule, mistake
RETROACTIVITY OF LAWS
of fact or good faith of the accused is a valid defense in a
prosecution for a felony by dolo; such defense negates
Q: Do laws have retroactive effect?
malice or criminal intent. However, ignorance of the law is
not an excuse because everyone is presumed to know the
A: GR: Laws shall have no retroactive effect. (lex prospicit,
law. It was the burden of Eduardo to prove that when he
non respicit)
married Tina, he was of the well-grounded belief that his
first wife was already dead. He should have adduced in
XPNs: TIN CREEP
evidence a decision of a competent court declaring the
1. Tax laws
presumptive death of his first wife as required by Art. 349
2. Interpretative statutes
of the RPC, in relation to Art. 41 of the FC. Such judicial
3. Laws creating New Substantive Rights
declaration constitutes proof that Eduardo acted in good
4. Curative Statutes
faith, and would negate criminal intent on his part when he
5. Remedial/procedural
married the private complainant (Manuel v. People, G.R.
6. Emergency Laws
No. 165842, November 29, 2005).
7. When Expressly provided
8. Penal laws favorable to the accused provided,
Q: Complainants who were connected with the Daily
accused is not a habitual criminal
Informer (a widely circulated newspaper in Western
Visayas) were charged before the MTC by Judge Pamonag
XPNs to the XPNs: Constitutional limits where
of the crime of libel. Respondent judge conducted a
retroactivity would result to: IE
preliminary investigation and thereafter issued warrants
1. Impairment of obligation of contracts
for the arrest of the complainants. Complainants filed an
2. Ex Post Facto Laws
administrative case against the judge for gross ignorance
of the law. They contended that the judge neither has
Note: In case of doubt, laws apply prospectively.
authority to conduct a preliminary investigation nor to
issue warrants for their arrest. The judge said that it was
Q: May judicial decisions be given retroactive effect?
his first libel case and that he issued the warrants in good
faith. Is the respondent guilty of gross ignorance of the
A: No. When a doctrine of the Supreme Court is overruled
law?
and a different view is adopted, the new doctrine should be
applied prospectively and should not apply to parties who
A: Judges are expected more than just cursory
had relied on the old doctrine and acted on the faith
acquaintance with statutes and procedural rules. They must
thereon. (Rabuya, p. 10)
know the law and apply them properly in good faith. The
provisions of Art. 360 of the RPC on the persons authorized
Q: Does the Family Code contain a retroactivity clause?
to conduct preliminary investigation in libel cases is so
elementary. Not to know it constitutes gross ignorance of
A: Yes. Art. 256 of the FC provides that the Code shall have
the law (Miaque v. Judge Pamonag, A.M. No. MTJ-02-1412.
retroactive effect insofar as it does not prejudice or impair
March 28, 2003).
vested or acquired rights in accordance with the NCC or
other laws.
Q: Cheong Boo, a native of China died intestate in
Zamboanga. He left a property worth P100,000. The estate
MANDATORY OR PROHIBITORY LAWS
of the deceased was claimed on one hand by Gee, who
alleged that he was a legitimate child by a marriage
Q: What is the status of acts which are contrary to law?
contracted by Boo with Tan Dit in China in 1895. The
estate was claimed, on the other hand, by Mora Adong
A: GR: Acts executed against the provisions of mandatory
who alleged that she had been lawfully married to Boo in
or prohibitory laws are void. (Art. 5)
1896. Gee introduced in evidence a document in Chinese
stating the marriage ceremony that took place in Amoy,
XPNs: Where the law:
China. Is the document presented by Gee recognized here
1. Makes the act valid but punishes the violator, e.g.
in the Philippines?
Marriage solemnized by a person not authorized
to do so;
A: Ignorance of a foreign law is not ignorance of the law but
2. Itself authorizes its validity;
of fact because such foreign law must be first alleged and
3. Makes the act merely voidable;
proved as a matter of fact, there being no judicial notice of
said foreign law. The Chinese marriage was not adequately

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2013 GOLDEN NOTES 10
EFFECT AND APPLICATION OF LAWS

4. Declares the nullity of an act but recognizes its 4. Waiver must Not be contrary to law, public order,
effects as legally existing, e.g. Child born after the public morals, etc.
annulment of marriage is considered legitimate. 5. When Formalities are required, they must be
complied with.
WAIVER OF RIGHTS
Q: What are some instances where waiver is considered
Q: What is a right? void?

A: It is a legally enforceable claim of one person against A: Waiver is considered void in such instances as: (i) waiver
another, that the other shall do a given act, or shall not do a of future support; (ii) waiver of political rights; (iii) waiver of
given act. (Pineda, Persons, p. 23) future inheritance especially if the waiver is intended to
prejudice creditors.
Q: What are the kinds of rights? Distinguish.
REPEAL OF LAWS
A:
1. Natural Rights Those which grow out of the nature Q: What are the kinds of repeal? Distinguish.
of man and depend upon personality. e.g. right to life,
liberty, privacy, and good reputation A: Repeal may be:
2. Political Rights Consist in the power to participate, 1. EXPRESS - if the law expressly provides for such
directly or indirectly, in the establishment or 2. IMPLIED if the provisions of the subsequent law
administration of government. e.g. right of suffrage, are incompatible or inconsistent with those of the
right to hold public office, right of petition previous law, PROVIDED, it is impossible to
3. Civil Rights Those that pertain to a person by virtue of reconcile the two laws.
his citizenship in a state or community. e.g. property
rights, marriage, equal protection of laws, freedom of Q: What are the two accepted instances of implied repeal?
contract, trial by jury (Pineda, Persons, p. 24)
a. Rights of personality or human rights; A:
b. Family rights; and 1. When the provisions in the two acts on the same
c. Patrimonial rights: subject matter are irreconcilably contradictory, in
i. Real rights which case, the later act, to the extent of the conflict,
ii. Personal rights. (Rabuya, p. 19) constitutes an implied repeal of earlier one; and
2. When the later act covers the whole subject of the
Q: May rights be waived? earlier one and is clearly intended as a substitute; thus
it will operate to repeal the earlier law (Carmelita
A: GR: Yes. Lledo v. Atty. Cesar V. Lledo, A.M. No. P-95-1167,
February 9, 2010).
XPNs:
1. If waiver is: Q: What is the rule on repeal of repealing laws?
a. Contrary to law, public order, public policy,
morals or good customs. A: It depends upon how the old law is repealed by the
b. Prejudicial to a third person with a right repealing law:
recognized by law. 1. If the old law is expressly repealed and repealing law is
2. If the right is: repealed: the Old law is not revived
a. A natural right, such as right to life. 2. If the old law is impliedly repealed and repealing law is
b. Inchoate, such as future inheritance. repealed: the Old law is revived.

Q: What are the elements of waiver of rights? JUDICIAL DECISIONS

A: EKI Q: Are judicial decisions considered laws in this


1. Must be an Existing right jurisdiction?
2. The one waiving such right must have Knowledge
of evidence thereof A: No. However, decisions of the Supreme Court, although
3. Intention to relinquish said right (Valderamma v. in themselves not laws, are nevertheless evidence of what
Macalde, G.R. No. 165005, September 16,2005). the laws mean.

Q: What are the requisites of a valid waiver? Q: When do judicial decisions form part of the law of the
land?
A: AFCUNF
1. Waiving party must Actually have the right he is A: As of the date of the enactment of said law. This is so
renouncing. because the Supreme Courts interpretation merely
2. He must have Full capacity to make the waiver establishes the contemporaneous legislative intent that the
3. Waiver must be Clear and Unequivocal construed law purports to carry into effect.

UNIVERSITY OF SANTO TOMAS


11 FACULTY OF CIVIL LAW
CIVIL LAW
Q: May courts apply customs in deciding cases?
Note: When a doctrine is overruled and a different view is
adopted, the new doctrine should be applied prospectively and A:
should not prejudice parties who relied on the old doctrine. 1. In civil cases, customs may be applied by the courts in
cases where the applicable law is: SOI
Q: What is the Doctrine of Stare Decisis? a. Silent
b. Obscure
A: It is adherence to judicial precedents. Once a question of c. Insufficient
law has been examined and decided, it should be deemed
settled and closed to further argument. Note: Provided said customs are not contrary to law, public
morals, etc.
Note: This doctrine however is not inflexible, so that when in the
light of changing conditions, a rule has ceased to be beneficial to 2. In criminal cases, customs cannot be applied because
the society, courts may depart from it.
nullum crimen nulla poena sine lege (There is neither
crime nor punishment, without a law).
DUTY TO RENDER JUDGMENT
Q: In case of silence, obscurity or insufficiency of the law
Q: Can the Court decline to render judgment by reason of
with respect to a particular controversy, what rules shall
silence of the law?
be applied? (1961, 1971, 1977 Bar Question)
A: No. No judge or court shall decline to render judgment
A: If the law is silent, or is obscure or insufficient with
by reason of the silence, obscurity or insufficiency of the
respect to a particular controversy, the judge shall apply
law (Art. 9).
the custom of the place, and in default thereof, the general
principles of law and justice.
Note: However, this duty is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret
the law, not to make or amend it. Q: What should first be established before such custom
could be considered a source of right?
PRESUMPTION AND APPLICABILITY OF CUSTOM
A: The custom must be proved as a fact, according to the
Q: What is the presumption in case there is doubt in the rules of evidence (Art. 12, NCC). This fact, however, should
interpretation or application of laws? possess the following requisites: (1) plurality of acts, (2)
uniformity of acts, (3) general practice by the great mass of
A: It is presumed that the lawmaking body intended right the people of the country or community; (4) continued
and justice to prevail (Art. 10). practice for a long period of time; (5) general conviction
that the practice is the proper rule of conduct; and (6)
Q: What are customs? conformity with law, morals or public policy (1 Tolentino.
Civil Code, p. 39; 1 Manresa 82).
A: These are rules of conduct, legally binding and
obligatory, formed by repetition of acts uniformly observed LEGAL PERIODS
as a social rule.
Q: How do you compute the periods?
Q: How are customs proved?
A: Year 12 calendar months (CIR v. Primetown Property
A: GR: Must be proved as a fact, according to the rules on Group, Inc., 531 SCRA 436))
evidence. (Art. 12) Month 30 days, unless designated by their name, in
which case, they shall be computed according to the
XPN: Courts may take judicial notice of a custom if number of days which they respectively have.
there is already a decision rendered by the same court Day 24 hours
recognizing the custom. Night time from sunset to sunrise
Week 7 successive days regardless of which day it
Q: What are the requisites to make a custom an obligatory would start
rule? Calendar week Sunday to Saturday

A: P-TOP Q: What is the manner of computing a period?


1. Plurality or Repetition of acts
2. Practiced for a long period of Time A: The first day shall be excluded, and the last day included.
3. The community accepts it as a proper way of
acting, such that it is considered Obligatory upon Q: In a case of violation of the Copyright law filed against
all. her, Soccoro countered by saying that since the crime was
4. Practiced by the great mass of the social group. found out on September 3, 1963, while the information
was filed on September 3, 1965, the crime had already
prescribed, since 1964 was a leap year. Has the crime
prescribed?

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2013 GOLDEN NOTES 12
EFFECT AND APPLICATION OF LAWS

c. Legal capacity of persons are binding upon


A: Yes. With the approval of the NCC we have reverted to citizens of the Philippines even though living
the provisions of the Spanish Civil Code in accordance with abroad (Art. 15)
which a month is to be considered as the regular 30-month
and not the solar or civil month with the particularity that, XPNs:
whereas the Spanish Civil Code merely mentioned 'months, a. In case of divorce obtained validly by an alien
days or nights,' ours has added thereto the term 'years' and pursuant to the rules that governs his
explicitly ordains in Art. 13 that it shall be understood that country, the Filipino spouse shall be
years are of three hundred sixty-five days (People v. Ramos considered also as divorced (Van Dorn v.
GR L-25265, May 9, 1978, Ramos v. Ramos GR L-25644, Romillo, Jr., 139 SCRA 139, 1985).
May 9, 1978). b. Domiciliary rule applies to stateless persons

However, when the year in question is a leap year, the 365 Note: the basis for determining the personal law
day rule is not followed because February 28 and 29 of a of an individual is either the Domiciliary Rule
leap year should be counted as separate days in computing (Domicile) or Nationality Rule (Citizenship)
periods of prescription (NAMARCO v. Tuazon, GR No L-
29131, August 27, 1969). 3. REAL STATUTES Laws on Property
GR: Lex Rei Sitae Real property as well as personal
Q: What is the rule if the last day falls on a Sunday or a property is subject to the law of the country where it is
legal holiday? situated. (Art. 16)

A: It depends. If the act to be performed within the period XPNS:


is:
a. Succession as to order of succession, amount of
1. Prescribed or allowed by: ROO successional rights and intrinsic validity of the
a. the Rules of Court testamentary provisions - governed by national law (in
b. an Order of the court; or Philippines) not lex situs
c. any Other applicable statute
b. Contracts involving real property but do not deal
The last day will automatically be the next working with title or real rights over the property, the issue
day. being the contractual rights and liabilities of parties -
governed by the proper law of the contract (lex loci
2. Arises from a contractual relationship the act will still voluntatis or lex loci intentionis)
become due despite the fact that the last day falls on a
Sunday or a legal holiday. c. In contracts where real property is given as security
by way of mortgage to secure a principle contract (i.e.
CONFLICT OF LAWS loan) - loan is governed by the proper law of the
contract while the mortgage is governed by the lex
Q: When, where and upon whom do the following laws situs
apply?
d. While the validity of the transfer of land must be
A: determined by the lex situs, the validity of the contract
1. PENAL LAWS to transfer is determined by the proper law of the
GR: TERRITORIALITY RULE - Penal laws and laws of contract
public security and safety shall be obligatory upon all
who live or sojourn in the Philippine territory (Art. 14) 4. Law governing extrinsic validity of contracts, wills and
public instruments.
XPNs: Treaty stipulations, Principle of Public GR: Lex loci celebrationis (Art. 17) forms and
International, Laws of Preferential Application. solemnities of contracts, wills and other public
e.g. Ambassadors, Ministers, International instruments shall be governed by the laws of the
agencies enjoying diplomatic immunity country in which they are executed

Note: Consul is not entitled to the privileges and XPNs: Philippine law shall apply in the following
immunities of ambassadors or ministers. cases even though performed abroad:
a. Acts are executed before the diplomatic or
2. STATUS LAWS consular officials of the Philippines.
GR: NATIONALITY RULE - Laws relating to b. Prohibitory laws concerning persons, their
a. Family rights and duties acts or property, and those which have for
b. Status and condition their object public order, public policy and
good customs. (Art. 17)

UNIVERSITY OF SANTO TOMAS


13 FACULTY OF CIVIL LAW
CIVIL LAW
Q: The second clause of the will of Joseph, a Turkish
citizen and a resident of the Philippines, states that: 3. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for
xxx, it is my wish that the distribution of my property the benefit of a third person (Article 818).
and everything in connection with this, my will, be
made and disposed of in accordance with the laws in Note: Wills, prohibited by the preceding article, executed by
force in the Philippine Islands, requesting all of my Filipinos in a foreign country shall not be valid in the Philippines,
relatives to respect this wish, otherwise, I annul and even though authorized by the laws of the country where they may
have been executed (Art. 819).
cancel beforehand whatever disposition found in this
will favorable to the person or persons who fail to
4. Capacity to succeed is governed by the law of the nation
comply with this request.
of the decedent (Article 1039).
Is the clause above-quoted valid?
Q: What law governs the revocation of wills?
A: No, it is void. The second clause of the will regarding the
A:
law which shall govern it and the condition imposed, is null
1. Under Art. 829 of the NCC, a revocation done outside the
and void, being contrary to law. Article 792 of the Civil Code
Philippines by a person who does not have his domicile
provides that Impossible conditions and those contrary to
here is valid if done according to:
law or good morals shall be considered as not imposed and
shall not prejudice the heir or legatee in any manner
(a) The law of the place where the will was made (lex
whatsoever, even should the testator otherwise provide.
loci celebrationis) or
Said clause is contrary to law because it expressly ignores
(b) The law of his domicil at the time of revocation (lex
the testator's national law when, according to Art. 16 of the
domicilii)
NCC, such national law of the testator is the one to govern
his testamentary dispositions. Said condition then is
Note: It ignores the law of the place of revocation
considered unwritten, hence the institution of legatees is
unconditional and consequently valid and effective.
2. If the revocation is done in the Philippines, it is valid if
made in accordance with the provisions of the Civil Code
Q: What law governs the validity of wills?
3. If the revocation is done outside the Philippines by a
A:
person who is domiciled in the Philippines, it is valid if made
1. Intrinsic validity of wills - The NCC applies the lex
in accordance with the law of the Philippines (lex domicilii)
nationalii of the decedent
or lex loci actus of the revocation (the place where the
revocation was made)
2. Extrinsic validity of wills - The NCC applies the law of the
place in which they are executed
Q: Explain the following doctrines:
a.) When a Filipino is in a foreign country, he is
A:
authorized to make a will in any of the forms
1. Renvoi Doctrine (referring back) Renvoi takes place
established by the law of the country in which he may
when the conflicts rule of the forum makes a reference
be. Such will may be probated in the Philippines
to a foreign law, but the foreign law is found to
(Article 815).
contain a conflict rule that returns or refers the matter
back to the law of the forum (Remission).
XPN: Joint wills executed by Filipinos in a foreign
2. Transmission theory Provides that when the conflicts
country shall not be valid in the Philippines even
rule of the forum makes a reference to a foreign law,
though authorized by the laws of the country where
but the foreign law is found to contain a conflict rule
they have been executed (Art. 819, NCC).
that refers it to a third country, the law of the third
country shall apply.
b.) The will of an alien who is abroad produces effect
3. Doctrine of Processual Presumption The foreign law,
in the Philippines if made with the formalities
whenever applicable, should be proved by the
prescribed by the law of the place in which he resides,
proponent thereof, otherwise, such law shall be
or according to the formalities observed in his country,
presumed to be exactly the same as the law of the
or in conformity with those which this Code prescribes
forum.
(Article 816).
4. Doctrine of Operative Facts Acts done pursuant to a
law which was subsequently declared unconstitutional
c.) A will made in the Philippines by a citizen or subject
remain valid, but not when the acts are done after the
of another country, which is executed in accordance
declaration of unconstitutionality.
with the law of the country of which he is a citizen or
subject, and which might be proved and allowed by
Q: Edward is a citizen of California domiciled in the
the law of his own country, shall have the same effect
Philippines. After he executed his will, he went back to
as if executed according to the laws of the Philippines.
America and stayed there. During the post mortem
(Art. 817)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 14
EFFECT AND APPLICATION OF LAWS

probate of the will, Helen, his illegitimate natural child, Marriage between a The national law of the
opposed it on the ground of preterition. She claims that Filipino and a foreigner in Filipino Philippine law
under Art. 16 par. 2 of the Civil Code, in case of succession, the PHILIPPINES should be followed
the national law of the deceased - the civil code of otherwise the countrys
California - should govern., which provides that if a public policy would be
Californian not domiciled in California dies, the law of his violated
domicile must govern. Lucy, on the otherhand, counters
that under the same provision, the national law of the Q: What law governs the personal relations of the
deceased should apply. Which law should be applied spouses?
Philippine law or Californian Law?
A: GR: The personal relations of the spouses are governed
A: Philippine Law should be applied. Where the testator by the national law of the husband
(Edward) was a citizen of California, and domiciled in the
Philippines, the amount of successional rights should be Alien woman who marries Ipso facto becomes a
governed by his national law, that is, Californian law. a Filipino husband Filipino citizen if she does
However, the conflict of law rules of California provides not suffer under any
that in cases of citizens who are residents of another disqualification for
country, the law of the country of domicile should apply, naturalization as a Filipino
hence, Philippine law on legitimes should be applied. This is citizen
so because California law itself refers the case back to the
Philippines. The Philippine court has no other alternative Personal relations: national
but to accept the referring back, for to do otherwise, might law of the husband shall
result again in its referring back to the Philippines, which govern (GR)
would give rise to a sort of an international football A Filipina who marries an Constitution provides that
(Aznar v. Garcia, G.R. No.L-16749. January 31, 1963). alien husband she shall retain her
Philippine citizenship,
Q: What is the effect of laws, judgments promulgated or unless by her act or
conventions agreed upon in a foreign country on omission, she is deemed,
Philippine laws? under our law, to have
renounced her citizenship
A: As regards prohibitive laws: Personal relations: Art. 80
of the Family Code provides
GR: Prohibitive laws concerning persons, their acts, or that the national law of the
property and laws which have for their object public order, wife or Philippine law
public policy or good customs are not rendered ineffective would govern the spouses
by laws, judgments promulgated or conventions agreed personal relations (rule was
upon in foreign country. intended to protect the
Filipino wife)
XPN: Art 26, par. 2 of the Family Code (FC), on mixed
marriages where the foreigner obtained a divorce decree Q: What if the spouses change nationalities, what law will
abroad and was thereby capacitated to remarry. govern?

Note: In this case, even though divorce is not recognized in the A:


Philippines as a mode of terminating marriage, still the marriage is
1. If the spouses have the same nationality but they acquire
terminated by virtue of a judgment of divorce and issuance of a
divorce decree by a foreign court. a new nationality by their common act their new national
law will govern their personal relations
Q: What law governs the validity of marriage in case of
mixed marriages? 2. If the husband alone changes his nationality after the
marriage the law of the last common nationality of the
A: spouses would govern
Marriage between a If the marriage is valid
Filipino and foreigner under the law of one of the 3. If the spouses retain their different nationalities after the
ABROAD spouses while void under marriage National law of both spouses should govern
the law of the other, the
validity of the marriage Q: What are the rules in determining the domicile of a
should be upheld, unless person?
the marriage is universally
incestuous or highly A:
immoral (the same rule as If the child is legitimate His domicile of origin is that
to foreigners who get of his parents at the time of
married abroad) his birth

UNIVERSITY OF SANTO TOMAS


15 FACULTY OF CIVIL LAW
CIVIL LAW

spouses, the wife can have


If parents are separated, her own domicile of choice
the domicile of the
custodial parent 3. If there is a separation de
If the child is illegitimate His domicile of origin is that facto, the wife can also
of the mother at the time have a separate domicile
of his birth
If the child is legitimated The domicile of his father at If the marriage is voidable Apply the same rules when
the time of his birth the marriage is valid.
controls However, after annulment,
If the child is adopted The domicile of origin is the the wife can freely select
domicile of his real parents her own domicile of choice
at the time of his birth, NOT If the marriage is void The wife can have a
the domicile of the domicile separate from the
adopters husband
If a foundling The domicile of origin is the OTHER PERSONS
country where it was found Convict or prisoner His domicile is the one he
had possessed prior to his
RULES DETERMINING ONES CONSTRUCTIVE DOMICILE incarceration
Soldiers Their domicile is their
MINORS domicile before their
1. If legitimate, the domicile of both parents enlistment
Public officials or Their domicile is the one
In case of disagreement, that of the father, unless there is employees abroad they had before they were
a judicial order to the contrary (diplomats, etc) assigned elsewhere, unless
they voluntarily adopt their
2. If illegitimate, the domicile of the mother place of employment as
their permanent residence
3. In case of absence or death of either parent, the
domicile of the present parent.

Even in case of remarriage of the surviving parent, still


his/her domicile determines the constructive domicile of
the minor child

4. If the child is adopted, the domicile of choice of the


adopter is the childs constructive domicile

INSANES, IDIOTS, IMBECILES


The law assigns their domicile to them:

1. If they are below the age of majority, the rules on


minors apply to them

2. If they are of age and have guardians, they follow the


domicile of choice of their guardians

3. If they are of age and have no guardians, their


constructive domicile is their domicile of choice before
they became insane

MARRIED WOMEN
1. The constructive
domicile of the wife is the
domicile of both spouses,
unless the law allows the
wife to have a separate
domicile for valid and
If the marriage is valid compelling reasons

2. If there is legal
separation between the

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 16
PERSONS

Q: What law governs the validity of contracts?

A:
Extrinsic validity Capacity of parties Intrinsic validity
Barter, sale, donation Lex situs Lex situs Lex situs
Lease of property: creates Lex situs Lex situs Lex situs
real rights
Lease of property: does Lex loci celebrationis Personal law of the Lex voluntatis or lex loci
not create real rights parties intentionis
Pledge, chattel mortgage, Lex situs Lex situs Lex situs
real estate mortgage,
antichresis
Contract of loan: mutuum Lex loci celebrationis Personal law of the Lex loci voluntatis or lex
parties loci intentionis
Contract of loan: Lex situs Lex situs Lex situs
commodatum
Lease of service, agency, Lex loci celebrationis Personal law of parties Lex loci voluntatis or lex
guaranty, suretyship loci intentionis
Note: Agency to alienate
or encumber real property
is governed by lex situs
Lex loci celebrationis Personal law of the Lex loci voluntatis
parties
Liability for loss, destruction, deterioration of goods in transit: law of destination of
Contract of goods (Art. 1753, NCC)
transportation or carriage
(render services) If COGSA applies, limitation on liability applies, unless the shipper declares value of
goods and inserts such declaration in the bill of lading

Contract for air transportation


(Warsaw Convention)

1. The liability of the airline in case of death, injury to passengers, or loss or damage
to cargo is governed by Warsaw Convention

2. If there was malice, gross negligence, or bad faith, or improper discrimination,


carrier is liable for damages beyond those limited by Warsaw Convention

Note: If contracts involve encumbrances of property, real or personal, apply lex situs. If personal contracts, law on contracts will apply

UNIVERSITY OF SANTO TOMAS


17 FACULTY OF CIVIL LAW
CIVIL LAW
HUMAN RELATIONS Q: How is Art. 21 related to Art. 19?

Q: What is the principle of abuse of rights? A: While Art. 19 lays down the rule of conduct for the
government of human relations, it does not provide a
A: A right, though by itself legal because recognized or remedy. Generally, an action for damages under either Art.
granted by law as such, may become the source of some 20 or Art. 21 would be proper. Art. 21 deals with acts
illegality. When a right is exercised in a manner which does contra bonus mores or contrary to good morals and
not conform with the norms enshrined in Art. 19 and presupposes loss or injury, material or otherwise, which
results in damage to another, a legal wrong is thereby one may suffer as a result of such violation. Under Arts. 19
committed for which the wrongdoer must be held and 21, the act must be intentional. (Rabuya, 2006)
responsible.
Note: Art. 21 fills countless gaps in the statutes, which leave so
Q: What are the elements of abuse of rights? many victims of moral wrongs helpless, even though they suffered
material and moral damages. (Tolentino, p. 70)
A:
1. There is a legal right or duty; Q: Is breach of promise to marry an actionable wrong?
2. Such duty is exercised in bad faith;
3. It is for the sole intent of prejudicing or injuring another. A: GR: No. A breach of promise to marry per se is not an
actionable wrong. There is no provision in the NCC
Q: What is the principle of Damnum Absque Injuria? authorizing an action for breach of promise to marry.

A: Under this principle which literally means damage XPN: When the act is not a mere breach of promise to
without injury, one who merely exercises ones rights does marry but constitutes one where damages pursuant to
no actionable injury and cannot be held liable for damages. Art. 21 of the NCC may be recovered, such as:
This is premised on the valid exercise of a right (Amonoy v. 1. Where the woman is a victim of moral seduction
Guitierrez, 351 SCRA 731, 2001). (Gashem Shookat Baksh v. CA, G.R. No. 97336,
February 19, 1993).
Note: Injury is the illegal invasion of a legal right; damage is 2. Where one formally sets a wedding and go
the loss, hurt, or harm which results from the injury; and through and spend for all the preparations and
damages are the recompense or compensation awarded for publicity, only to walk out of it when the
the damage suffered. There can be damage without injury matrimony was about to be solemnized
in those instances in which the loss or harm was not the (Wassmer v. Velez, G.R. No. L-20089, December
result of a violation of a legal duty. In such cases, the 26, 1964).
consequences must be borne by the injured person alone
(Panteleon v. American Express, G.R. No. 174269, August Q: Maria met Ayatollah, an Iranian medical student, at the
25, 2010). restaurant where she worked. A few days after, Ayatollah
courted and proposed to marry Maria. The latter accepted
Q: Is there civil liability for moral negligence? his love on the condition that they would get married.
When the couple visited Maria's parents, Ayatollah was
A: None. A person is required to act with prudence towards allowed to sleep with Maria during the few days of their
others, but not with charity; the law imposes diligence and stay. The couple continued to live together in an
not altruism. Hence, the failure to make sacrifices or apartment, but Ayatollah's attitude towards Maria
egoism does not constitute a source of liability. (Tolentino, changed. He maltreated her and when Maria became
p. 69) pregnant, Ayatollah gave her medicine to abort the fetus.
Despite the abuses, Maria continued to live with Ayatollah
Illustration: A person who fails to render assistance to and kept reminding him of his promise to marry her.
a drowning person or to the victim of an accident, However, Ayatollah told her that he could not do so
cannot be held liable for damages (3 Colin & Capitant because he was already married to a girl in Bacolod City.
826). Maria left and filed a complaint for damages against
Ayatollah for the alleged violation of their agreement to
Note: Every person who, contrary to law, wilfully or negligently get married. May damages be recovered for a breach of
causes damage to another, shall indemnify the latter for the same. promise to marry on the basis of Art. 21 of the NCC?
(Art. 20, NCC)
A: Yes. A breach of promise to marry per se is not an
Q: What are the elements of an action under Art. 21 of the actionable wrong. But where a man's promise to marry is
NCC? the proximate cause of the acceptance of his love by a
woman and his representation to fulfill that promise
A: LCI thereafter becomes the proximate cause of the giving of
1. There is an act which is Legal; herself unto him in a sexual congress, proof that the
2. Such act is Contrary to morals, good customs, public promise was only a deceptive device to inveigle her to
order or policy; obtain her consent to the sexual act, could justify the award
3. It is done with Intent to injure. of damages pursuant to Art. 21, not because of such
promise to marry but because of the fraud and deceit

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 18
HUMAN RELATIONS
behind it and the willful injury to her honor and reputation Q: What are the requisites of accion in rem verso?
which followed thereafter. It is essential, however, that
such injury should have been committed in a manner A:
contrary to morals, good customs or public policy. In the 1. The defendant has been enriched;
instant case, Ayatollah's fraudulent and deceptive 2. The plaintiff has suffered a loss;
protestations of love for and promise to marry Maria that 3. The enrichment of the defendant is without just or legal
made her surrender her virtue and womanhood to him and ground; and
to live with him on the honest and sincere belief that he 4. The plaintiff has no other action based on contract,
would keep said promise. In short, Maria surrendered her quasi-contract, crime or quasi-delict.
virginity, the cherished possession of every single Filipina,
not because of lust but because of moral seduction Q: How is accion in rem verso different from solutio
(Gashem Shookat Baksh v. CA, G.R. No. 97336, February 19, debiti?
1993).
A: Mistake is an essential element in solutio indebiti. In
Q: Soledad a high school teacher used to go around accion in rem verso, it is not necessary that there should
together with Francisco who was almost ten (10) years have been mistake in the payment (Rabuya, 2006).
younger than her. Eventually, intimacy developed
between them after Soledad became an underwriter in Q: Can there be liability without fault or negligence?
Cebu. One evening, they had sexual intercourse in
Francisco's cabin on board M/V Escao, to which he was A: Yes. The NCC recognizes liability without fault or
then attached as apprentice pilot. After a few months, negligence, even when the event producing loss to others
Soledad advised Francisco that she was pregnant, may be accidental or fortuitous, so long as another person
whereupon he promised to marry her. Later their child is benefited through such event or act. (Art. 23, NCC)
was born. However, subsequently, Francisco married
another woman. Soledad filed a complaint for moral
damages for alleged breach of promise to marry. May
moral damages be recovered for breach of promise to
marry?

A: No. It is the clear and manifest intent of our law making


body not to sanction actions for breach of promise to
marry. Moreover, Francisco is not morally guilty of
seduction, not only because he is approximately 10 years
younger than the complainant who around 36 years of
age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be
when she became intimate with him, than a mere
apprentice pilot, but, also, because, the court of first
instance found that, complainant "surrendered herself" to
Francisco because, "overwhelmed by her love" for him, she
"wanted to bind" "by having a fruit of their engagement
even before they had the benefit of clergy (Hermosisima v.
CA, G.R. No. L-14628, September 30, 1960).

Note: To constitute seduction there must be some


sufficient promise or inducement and the woman must
yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction.

Q: What is accion in rem verso?

A: It is an action for recovery of what has been paid or


delivered without just cause or legal ground. Under Art. 22
of the NCC, if a person acquires or comes into possession of
something at the expense of another without just or legal
ground through an act or of performance by another or any
other means has the obligation to return the same.

UNIVERSITY OF SANTO TOMAS


19 FACULTY OF CIVIL LAW
CIVIL LAW
PERSONS which declares that the civil personality of the child shall
commence from the time of his conception, for all purposes
PERSONS AND PERSONALITY favorable to him, subject to the requirements of Art. 41 of
the NCC.
Q: Differentiate person from personality.
RESTRICTIONS ON CAPACITY TO ACT
A: A person is every physical or moral, real or juridical and
legal being susceptible of rights and obligations or being the Q: What are the restrictions on capacity to act?
subject of legal relations. Personality, on the other hand, is
the aptitude to be the subject, active or passive, of juridical A: MIDI-PC (Art. 38, NCC)
relations. One is a person, while one has personality. 1. Minority - state of a person who is under the age of
(Rabuya, 2006) legal majority which is eighteen years of age
2. Insanity state of a person whose mental faculties are
Q: What are the two kinds of persons? diseased
3. Deaf-mute lacking sense of hearing and the inability
A: to speak
1. NATURAL human beings and have physical existence
2. JURIDICAL artificial persons and product of legal Note: Only deaf-mutes who do not know how to write
fiction are declared by law incapable of giving consent.

Q: Distinguish juridical capacity from capacity to act. 4. Imbecility state of a person who while advanced in
age has the mental capacity comparable to that of a
A: child between two and seven years of age
JURIDICAL CAPACITY CAPACITY TO ACT 5. Prodigality a spendthrift or squanderer
6. Civil Interdiction an accessory penalty imposed upon
Definition
an accused who is sentenced to a principal penalty not
Fitness to be the subject Power to do acts with legal
lower than reclusion temporal.
of legal relations effect
Acquisition
Note: They do not exempt the incapacitated person from
Inherent (co-exists with Through the fulfillment of certain obligations.
the natural person) specific legal activities
Loss Q: What are the circumstances that modify or limit
Through death and other capacity to act?
Only through death
causes
In relation to the other A: I-PAID-FAT-PIA
Can exist without Cannot exist w/o juridical 1. Insanity
capacity to act capacity 2. Prodigality
Limitation 3. Age
Art. 38 (restriction) 4. Imbecility
Art. 39 (modification/ 5. Deaf-Mute
None
limitation), 6. Family Relations
among others 7. Alienage
8. Trusteeship
Q: What is meant by status? 9. Penalty
10. Insolvency
A: The status of a person is the legal condition or class to 11. Absence
which one belongs in a society. (1 del Viso 32, 2 Sanchez
Roman 110) BIRTH

Q: What is meant by civil personality? Q: How is personality acquired by natural persons?

A: Civil personality is merely the external manifestation of A: GR: Actual/Permanent Personality Personality begins at
either juridical capacity or capacity to act. Consequently, it birth, not at conception.
may be defines as the aptitude of being the subject of
rights and obligations. (2 Sanchez Roman 114-147) XPN: Presumptive/Temporary The law considers the
conceived child as born (Conceptus pro natohabetur)
Q: When does civil personality begin in natural persons?
Note: For there to be presumptive personality, the fetus must
A: Birth determines personality, but the conceived child be born later in accordance with law and the purpose for
shall be considered born for all purposes that are which such personality is given must be beneficial to the
favourable to it, provided it be born later with the child.
conditions specified in the following article (Art. 40, NCC).
This provision is now superseded by Art. 5 of P.D. No. 603,

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 20
PERSONS AND FAMILY RELATIONS
Q: Explain the meaning of the clause Born later in since he was much younger than his father and therefore,
accordance with law. should be presumed to have survived longer?

A: A fetus with an intra-uterine life of: A: No, Wilma cannot successfully claim that Willy had a
1. Less than 7 months Must survive for at least 24 hours hereditary share in his fathers estate.
after its complete delivery from the maternal womb
2. At least 7 months If born alive, it shall be considered Under Art. 4 of the NCC, two persons who are called to
born even if it dies within 24 hours after complete succeed each other are presumed to have died at the
delivery. same time, in the absence of proof as to which of them
died first. This presumption of simultaneous death applies
Note: Complete delivery means the cutting of the umbilical cord. in cases involving the question of succession as between
the two who died, who in this case, are mutual heirs, being
Q: Does the conceived child have the right to be father and son.
acknowledged even if it is still conceived?
Q: Suppose, Jaime had a life insurance policy with his wife
A: Yes. It is a universal rule of jurisprudence that a child, Julia, and his son, Willy, as the beneficiaries. Can Wilma
upon being conceived, becomes a bearer of legal rights and successfully claim that one-half of the proceeds should
is capable of being dealt with as a living person. The fact belong to Willys estate? (1998 Bar Question)
that it is yet unborn is no impediment to the acquisition of
rights provided it be born later in accordance with law (De A: Yes, Wilma can invoke the presumption of survivorship
Jesus v. Syquia, G.R. No. L-39110, November 28, 1933). and claim that one-half of the proceeds should belong to
Willys estate, under Rule 131, Sec.3 (jj), par. 5, Rules of
Q: What do you mean by provisional personality of a Court, as the dispute does not involve succession.
conceived child?
Under this presumption, the person between the ages of 15
A: A conceived child, although as yet unborn, has a limited and 60 is deemed to have survived one whose age was over
and provisional personality. Its personality is essentially 60 at the time of their deaths. The estate of Willy endowed
limited because it is only for purposes favorable to the with juridical personality stands in place and stead of Willy,
child. Its personality is provisional because it depends upon as beneficiary.
the child being born alive later under certain conditions.
COMPARISON OF ART.43 AND RULE 131
DEATH
SURVIVORSHIP RULE UNDER THE NCC
Q: How does civil personality cease?
Q: Explain the survivorship rule under the NCC.
A: It depends upon the classification of persons:
1. Natural persons by death A: If there is doubt as to who died first between 2 or more
2. Juridical persons by termination of existence persons who are called to succeed each other, as to which
of them died first,
Q: What rule would apply in case there is doubt as to who
died first? Burden of Proof: Whoever alleges the death of one prior to
the other has the burden of proving such claim.
A: It depends on whether the parties are called to succeed
each other. Absent such proof: Presumption is they all died at the same
1. If successional rights are involved Art. 43 of the NCC: time. There shall be no transmission of successional rights.
Survivorship Rule, and Rule 131, Sec. 3(kk): (Rule 131, Sec. 3 [kk], Rules of Court)
Presumption of simultaneity of deaths between
persons called to succeed each other, apply. Q: What are the conditions that may warrant the
2. If no successional rights are involved Rule 131, Sec. 3 application of the survivorship rule?
(jj) of the Rules of Court applies. (Presumption of
survivorship) A: It applies when the following conditions are present:
1. The parties are heirs to one another
Note: Both are to be applied only in the absence of facts. 2. There is no proof as to who died first
3. There is doubt as to who died first
Q: Jaime, who is 65, and his son, Willy, who is 25, died in a
plane crash. There is no proof as to who died first. Jaimes Q: What is the presumption under the survivorship rule?
only surviving heir is his wife, Julia, who is also Willys
mother. Willys surviving heirs are his mother, Julia, and A: Presumption of simultaneity of deaths. When two or
his wife, Wilma. more persons who are called to succeed each other die,
they shall be presumed to have died at the same time.
In the settlement of Jaimes estate, can Wilma successfully
claim that her late husband, Willy, had a hereditary share

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21 FACULTY OF CIVIL LAW
CIVIL LAW
PRESUMPTION ON SURVIVORSHIP UNDER THE RULES OF that the designation of the unborn child as a beneficiary is
COURT favorable to the child.

Q: What are the requisites for the presumptions on Q: Between Marian and the baby, who is presumed to
survivorship under the Rules of Court to apply? have died ahead?

A: A: If the baby was not alive when completely delivered


1. Two or more persons; from the mothers womb, it was not born as a person, then
2. They perish in the same calamity; the question of who between two persons survived will not
3. It is not shown who died first; be an issue. Since the baby had an intra-uterine life of more
4. There are no particular circumstances from which it than 7 months, it would be considered born if it was alive,
can be inferred that one died ahead of the other. at the time of its complete delivery from the mothers
womb. We can gather from the facts that the baby was
Q: What are the presumptions under the survivorship rule completely delivered. But whether or not it was alive has to
under the Rules of Court? be proven by evidence.

A: The survivorship shall be determined from the If the baby was alive when completely delivered from the
probabilities resulting from the strength and age of the mothers womb, then it was born as a person and the
sexes according to the following rules: question of who survived as between the baby and the
mother shall be resolved by the provisions of the Rules of
Age/Sex of decedents at the time of Court on survivorship. This is because the question has
Who presumed to
death nothing to do with succession. Obviously, the resolution of
have survived
Decedent A Decedent B the question is needed just for the implementation of an
Under 15 Under 15 Older insurance contract. Under Rule 13, Sec. 3, (jj), (5) as
Above 60 Above 60 Younger between the baby who was under 15 years old and Marian
Under 15 who was 18 years old, Marian is presumed to have
Under 15 Above 60 survived.
(younger)
Different sexes
Above 15 BUT Above 15 BUT male In both cases, therefore, the baby never acquired any right
under 60 under 60 Same sex under the insurance policy. The proceeds of the insurance
Older will then go to the estate of Marian.
Under 15 OR Between 15 and Between 15 and
over 60 60 60 Q: Will Prieto, as surviving biological father of the baby, be
entitled to claim the proceeds of the life insurance on the
Note: The statutory rules in the determination of sequence of life of Marian? (2008 Bar Question)
death do not absolutely apply in a case where indirect and/or
inferential evidence surrounding the circumstances of the deaths A: Since the baby did not acquire any right under the
exists. Where there are facts, known or knowable, from which a insurance contract, there is nothing for Prieto to inherit.
rational conclusion can be made, the presumption does not step in,
and the rule of preponderance of evidence controls. It is the JURIDICAL PERSONS
"particular circumstances from which survivorship can be inferred"
that are required to be certain as tested by the rules of evidence
(Joaquin v. Navarro, G.R. No. L-5426, May 29, 1953).
Q: What are the different kinds of Judicial Persons?

Q: At the age of 18, Marian found out that she was A:


pregnant. She insured her own life and named her unborn 1. The State and its political subdivisions;
child as her sole beneficiary. When she was already due to 2. Other corporations, institutions and entities for public
give birth, she and her boyfriend Pietro, the father of her interest or purpose, created by law; their personality
unborn child, were kidnapped in a resort in Bataan. The begins as soon as they have been constituted
military gave chase and after one week, they were found according to law;
in abandoned hut in Cavite. Marian and Pietro were 3. Corporations, partnerships and associations for private
hacked with bolos. Marian and the baby she delivered interest or purpose to which the law grants a juridical
were both found dead, with the babys umbilical cord personality, separate and distinct from that of each
already cut. Pietro survived. shareholder, partner or member (Art. 44, NCC)

Can Marians baby be the beneficiary of the insurance Q: May juridical persons acquire and possess property of
taken on the life of the mother? all kinds, as well as incur obligations and bring civil or
criminal actions?
A: An unborn child may be designated as the beneficiary in
the insurance policy of the mother. An unborn child shall be A: Yes, provided that they are in conformity with the laws
considered a person for purposes favorable to it provided it and regulations of their organization. (Art. 46)
is born later in accordance with the NCC. There is no doubt

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2013 GOLDEN NOTES 22
PERSONS AND FAMILY RELATIONS
DOMICILE AND RESIDENCE OF PERSON Social institution
Applicable law
Q: Distinguish between residence and domicile. Governed by the law on Governed by the law on
marriage contracts
A: Residence is a place of abode, whether permanent or
Right to stipulate
temporary. Domicile denotes a fixed permanent place to
which, when absent, one has the intention of returning. GR: Not subject to
stipulation
Generally subject to
Q: Where is the domicile of a natural person for the stipulations
exercise of civil rights and fulfillment of civil obligations? XPN: Property relations in
marriage settlements
A: His place of habitual residence. Capacity to contract
Minors may contract thru
Q: Where is the domicile of juridical persons? their parents or guardians or
Legal capacity required
in some instances, by
A: themselves
1. The place fixed by the law creating or recognizing the Gender requirement
juridical person; Contracting parties must Contracting parties may be
2. In the absence thereof, the place where their legal only be two persons of two or more persons
representation is established or where they exercise opposite sexes regardless of sex
their principal functions. Dissolution by agreement
Dissolved only by death or
Can be dissolved by mutual
MARRIAGE annulment, never by
agreement among others.
mutual agreement
Q: What is marriage?
Q: What is required to prove the marriage?
A: Marriage is a special contract of permanent union
between a man and a woman entered into in accordance A: The best documentary evidence of a marriage is the
with law for the establishment of conjugal and family life. It marriage contract. Although a marriage contract is
is the foundation of the family and an inviolable social considered primary evidence of marriage, the failure to
institution whose nature, consequences, and incidents are present it is not, however, proof that no marriage took
governed by law and not subject to stipulation, except that place, as other evidence may be presented to prove
marriage settlements may fix the property relations during marriage. The following may be presented as proof of
the marriage within the limits provided by the Family Code. marriage: (a) testimony of a witness to the matrimony (b)
(Art. 1, FC) the couples public and open cohabitation as husband and
wife after the alleged wedlock (c) the birth and baptismal
NATURE OF MARRIAGE certificate of children born during such wedlock and (d) the
mention of such nuptial in subsequent documents
Q: What is meant by the law when it declares marriage as (Balogbog v. CA, G.R No. 83598, March 7, 1997).
an inviolable social institution?
KINDS OF REQUISITES
A: Marriage is an institution in which the community is
deeply interested. The State has surrounded it with ESSENTIAL REQUISITES
safeguards to maintain its purity, continuity and
permanence. The security and stability of the State are Q: What are the essential requisites of marriage?
largely dependent on it. It is in the interest and duty of each
member of the community to prevent the bringing about of A:
a condition that would shake its foundation and lead to its 1. Legal capacity of the contracting parties who must be
destruction. The incidents of the status are governed by a male and a female;
law, not by will of the parties (Beso v. Daguman, A.M. No. 2. Consent freely given in the presence of the solemnizing
MTJ-99-1211, January 28, 2000 [citing Jimenez v. Republic, officer. (Art. 2, FC)
G.R. No. L-12790, August 31,1960]).
Q: What constitutes legal capacity of the parties to marry?
Q: Distinguish marriage from an ordinary contract:
A: ASL
A: 1. Age at least 18 years
2. Sex between male and female
MARRIAGE ORDINARY CONTRACT 3. Lack of legal impediment to marry

As a contract
Special contract
Merely a contract
Sui Generis contract

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23 FACULTY OF CIVIL LAW
CIVIL LAW
Q: Are there other requirements, taking into consideration 2. their personal declaration that they shall take each
the age of the parties to the marriage, for the validity of other as husband and wife; and
such marriage? 3. in the presence of not less that 2 witnesses of legal
age.
A: Yes, depending upon the age of the contracting party.
Note: No particular form of ceremony or religious rite is required
ADDITIONAL by law (Art. 6, FC).
AGE
REQUIREMENTS
Q: Is marriage by proxy allowed?
Parental consent and
18 to 21 years old
Marriage counseling A: It depends.
Parental advice and 1. If performed in the Philippines No, it is not
22 to 25 years old allowed, hence the marriage is void.
Marriage counseling
Note: Philippine laws prohibit marriages by proxy. Since
Note: Absence of the additional requirement of parental consent the marriage is performed in the Philippines, Philippine
does not make the marriage void but only voidable. laws shall apply following the principle of lex loci
celebrationis.
FORMAL REQUISITES
2. If performed abroad Whether it is allowed or
Q: What are the formal requisites of marriage? not depends upon the law of the place where the
marriage was celebrated (lex loci celebrationis).
A: CAL
1. Marriage Ceremony Note: As to marriages between Filipinos - all marriages
2. Authority of the solemnizing officer solemnized outside the Philippines, in accordance with
3. Valid marriage License (Art. 3, FC) the laws enforced in said country where they are
solemnized, and valid there as such, shall also be valid
EFFECT OF ABSENCE OF REQUISITES here in the country, except those prohibited under Art.
35 (1), (2), (4), (5), (6), 36, 37 and 38. (Art. 26, FC)
Q: What is the status of marriage in case of:
SOLEMNIZING AUTHORITY
1. Absence of any of the essential requisites?
Q: Who are authorized to solemnize marriage?
A: Void ab initio (Art. 4)
A: It depends:
1. Under ordinary circumstances:
2. Absence of any of the formal requisites?
a. Incumbent judiciary member provided, within
the courts (his) jurisdiction
A: GR: Void ab initio. (Art. 4)
b. Priest, rabbi, imam or minister of any
church/religious sect duly authorized provided
XPNs: Valid even in the absence of formal
at least one of the parties belongs to such church
requisite:
or religious sect.
a. Marriages exempt from license requirement
c. Consul general, consul or vice-consul provided
b. Either or both parties believed in good faith
both parties are Filipinos and marriage takes
that the solemnizing officer had the proper
place abroad.
authority. (Art. 35 [2])
d. Mayors (Arts. 444 and 445 of LGC)
3. Defect in essential requisites?
Note: Includes Acting Mayor

A: Voidable
2. Marriages in articulo mortis:
a. Ship captain or airplane chief provided the
4. Irregularity in formal requisites?
marriage is performed:
i. During voyage, even during stopovers
A: Valid, but the party responsible for such irregularity
ii. Between passengers or crew members
shall be civilly, criminally or administratively liable.
b. Military commander of a unit who is a
(Art. 4 par. 2)
commissioned officer provided the marriage is
performed:
MARRIAGE CEREMONY
i. In absence of chaplain;
ii. Within zone of military operation;
Q: What constitutes a valid marriage ceremony?
iii. Between members of the armed forces or
civilians
A: That which takes place with the:
1. personal appearance of the contracting parties before
the solemnizing officer;

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2013 GOLDEN NOTES 24
PERSONS AND FAMILY RELATIONS
Q: What must the solemnizing officer in a marriage in Note: In case of a marriage solemnized by a mayor outside of his
articulo mortis do after solemnizing such marriage? territorial jurisdiction, LGC is silent on the matter, hence the
abovementioned case may be applied by analogy.
A: He shall state in an affidavit executed before the local
civil registrar or any other person legally authorized to Q: What is the exception to the rule requiring authority of
administer oaths, that the marriage was performed in the solemnizing officer?
articulo mortis and that he took the necessary steps to
ascertain the ages and relationship of the contracting A: Marriages contracted with either or both parties
parties and the absence of a legal impediment to the believing in good faith that the solemnizing officer had the
marriage. (Art. 29, FC) authority to do so. (Art. 35 (2))

Q: Will the solemnizing officers failure to execute an MARRIAGE LICENSE


affidavit that he solemnized the marriage in articulo
mortis affect the validity of marriage? Q: What is the period of the validity of a marriage license?

A: No. The marriage will still be valid. The Law permits A: The license shall be valid in any part of the Philippines for
marriages in articulo mortis without marriage license but it a period of 120 days from the date of issue, and shall be
requires the solemnizing officer to make an affidavit and deemed automatically cancelled at the expiration of said
file it. period if the contracting parties have not made use of it.
(Art. 20, FC).
However, such affidavit is not an essential or formal
Note: If the parties contracted marriage after the lapse of 120 days
requisite of marriage, the same with a Marriage Contract.
from the issuance of the marriage license, such marriage shall be
The signing of the marriage contract and the affidavit is considered void for lack of marriage license.
only required for the purpose of evidencing the act, not a
requisite of marriage. It is the obligation of the solemnizing Q: What is the effect in the issuance of a marriage license
officer. It does not affect the validity of marriage (De Loria if a party who is required by law to obtain parental advice
v. Felix, G.R. No. L-9005, Jun. 20, 1958). or undergo marriage counseling failed to do so?

Q: What are the authorized venues of marriage? A: The issuance of marriage license is suspended for 3
months from the completion of publication of the
A: GR: Must be solemnized publicly within the jurisdiction application.
of the authority of the solemnizing officer:
1. Chambers of the judge or in open court Note: The marriage is valid in this case.
2. Church, chapel or temple
3. Office of the consul-general, consul or vice-consul Q: What is the status of the marriage if the parties get
married within said 3-month period?
XPNs:
1. Marriage at the point of death A: It depends.
2. Marriage in remote places 1. If the parties did not obtain a marriage license
3. Marriage at a house or place designated by the the marriage shall be void for lack of marriage
parties with the written request to the license.
solemnizing officer to that effect. 2. If the parties were able to obtain a marriage
license the marriage shall be valid without
Note: This provision is only directory, not mandatory. The prejudice to the actions that may be taken against
requirement that the marriage be solemnized in a particular venue
the guilty party.
or a public place is not an essential requisite for the validity of the
marriage.
Q: Who issues the marriage license?
Q: What is the status of a marriage solemnized by a judge
outside of his territorial jurisdiction? A: The local civil registrar of the city or municipality where
either contracting party habitually resides (Art. 9, FC).
A: The marriage is valid. Under Art. 3 of the FC, one of the
Note: Obtaining a marriage license in a place other than where
formal requisites of marriage is the "authority of the
either party habitually resides is a mere irregularity.
solemnizing officer." Under Art. 7, marriage may be
solemnized by, among others, "any incumbent member of
FOREIGN NATIONAL
the judiciary within the court's jurisdiction." Art. 8, which is
a directory provision, refers only to the venue of the
Q: What is required from the contracting parties before a
marriage ceremony and does not alter or qualify the
marriage license can be obtained?
authority of the solemnizing officer as provided in the
preceding provision. Non-compliance herewith will not
A: Each of the contracting parties shall file a separate or
invalidate the marriage. (Navarro v. Domagtoy, A.M. No.
individual sworn application with the proper local civil
MTJ-96-1088. July 19, 1996)
registrar (Art. 11, FC).

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25 FACULTY OF CIVIL LAW
CIVIL LAW
Note: When either or both of the contracting parties are citizens of Note: The five-year period of cohabitation must have been a
a foreign country, it shall be necessary for them to submit a period of legal union had it not been for the absence of
certificate of legal capacity to contract marriage, issued by their marriage.
respective diplomatic or consular officials.
3. Fact of absence of legal impediment must be Present
Stateless persons or refugees from other country shall, in lieu of at the time of the marriage
the certificate of legal capacity herein required, submit an affidavit
4. Parties must execute an Affidavit that they are living
stating the circumstances showing such capacity to contract
marriage. (Art 21, FC) together as husband and wife for 5 years and that they
do not have any impediment to marry
Q: What is the status of a marriage celebrated on the basis 5. Solemnizing officer must execute a Sworn statement
of a license issued without the required Certificate of that he had ascertained the qualifications of the
Legal Capacity? parties and found no legal impediment to their
marriage (Manzano v. Sanches, March 1, 2001).
A: The marriage is valid as this is merely an irregularity in
complying with a formal requirement of the law in Q: Pepito was married to Teodulfa. Teodulfa was shot by
procuring a marriage license, which will not affect the him resulting in her death. After 1 year and 8 months, he
validity of the marriage. (Garcia v. Recio, G.R. 138322, married Norma without any marriage license. In lieu
October 2, 2001) thereof, they executed an affidavit stating that they had
lived together as husband and wife for at least five years
EXCEPTIONS and were thus exempt from securing a marriage license.
What is the status of their marriage?
Q: What are the marriages exempt from the license
requirement? A: Void for lack of marriage license. To be exempt from the
license requirement under the 5-year cohabitation rule, the
A: MARCOS-Z cohabitation should be in the nature of a perfect union that
is valid under the law but rendered imperfect only by the
1. Marriages among Muslims or members of ethnic absence of the marriage contract and is characterized by
cultural communities continuity, that is, unbroken, and exclusivity, meaning no
2. Marriages in Articulo mortis third party was involved at anytime within the 5 years. It
a. Solemnized by a ship captain or airplane pilot should be a period of legal union had it not been for the
b. within Zones of military operation absence of the marriage.
3. Marriages in Remote places
In this case, Pepito and Norma are not exempt from the
Note: Remote Place - no means of transportation to enable marriage license requirement because at the time of Pepito
the party to personally appear before the solemnizing local and Norma's marriage, it cannot be said that they have
civil registrar. lived with each other as husband and wife for at least five
years prior to their wedding day because from the time
4. Marriages between parties Cohabiting for at least 5 Pepito's first marriage was dissolved to the time of his
years marriage with Norma, only about twenty months had
5. Marriages solemnized Outside the Philippines where elapsed.
no marriage license is required by the country where it
was solemnized. Q: Would your answer be the same if Pepito was
separated in fact from Teodulfa?
Q: What are the requisites for the 5-year cohabitation as
an exception to the marriage license requirement? A: Yes, the marriage is still void. Even if they were
separated in fact, and thereafter both Pepito and Norma
A: The requisites are: 5D PAS had started living with each other that has already lasted
1. Living together as husband and wife at least 5 years for five years, the fact remains that Pepito had a subsisting
before the marriage. marriage at the time when he started cohabiting with
Norma. It is immaterial that when they lived with each
The 5 year period must be characterized by: other, Pepito had already been separated in fact from his
a. Exclusivity the partners must live together lawful spouse. The subsistence of the marriage even where
exclusively, with no other partners, during the there was actual severance of the filial companionship
whole 5-year period. between the spouses cannot make any cohabitation by
b. Continuity such cohabitation was unbroken. either spouse with any third party as being one as "husband
and wife" (Nial v. Bayadog, GR No. 133778, March 14,
Note: The period is counted from the date of celebration of 2000).
marriage. It should be the years immediately before the day
of the marriage.

2. No legal impediment to marry each other During the


period of cohabitation.

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2013 GOLDEN NOTES 26
PERSONS AND FAMILY RELATIONS
MARRIAGE CERTIFICATE country where it is celebrated, if valid there, shall be valid
here as such.
Q: What are the distinctions between a marriage license
and a marriage certificate? XPNs: It shall be void, even if it is valid in the foreign
country where the marriage was celebrated, if any of
A: the following circumstances are present: LIM 2B 2P
MARRIAGE LICENSE MARRIAGE CERTIFICATE 1. Lack of legal capacity even with parental consent
Authorization by the Best evidence of the (e.g. party is below 18);
state to celebrate existence of the 2. Incestuous;
marriage. marriage. 3. Contracted through Mistake of one party as to
Not an essential or the identity of the other;
Formal requisite of 4. Contracted following the annulment or
formal requisite of
marriage. declaration of nullity of a previous marriage but
marriage.
Before partition, etc.;
Q: Guillermo and Josefa lived together as husband and 5. Bigamous or polygamous except as provided in
wife, but there is doubt as to whether they got married, Art. 41 FC on terminable bigamous marriages;
since no record of the marriage existed in the civil registry 6. Void due to Psychological incapacity;
but their relatives and friends maintained that the two in 7. Void for reasons of Public policy
fact married each other and lived as husband and wife for
more than half a century. Is Guillermo married to Josefa? Q: Suppose in a valid mixed marriage (marriage between a
citizen of a foreign country and a citizen of the Philippines)
A: They are presumed to be married. In this jurisdiction, the foreign spouse obtained a divorce decree abroad and
every intendment of the law leans toward legitimizing was capacitated to remarry.
matrimony. Persons dwelling together apparently in 1. May the Filipino spouse remarry despite the fact
marriage are presumed to be in fact married. This is the that divorce is not valid in the Philippines?
usual order of things in society and, if the parties are not 2. Will your answer be the same if it was a valid
what they hold themselves out to be, they would be living marriage between Filipinos?
in constant violation of the common rules of law and
propriety. Semper praesumitur pro matrimonio always A:
presume marriage (Vda.De la Rosa v. Heirs of Vda. De 1. Yes, the Filipino spouse is likewise capacitated. Divorce
Damian, G.R. No. 103028, October 10, 1997). validly obtained abroad by the alien spouse
capacitating him/her to remarry will likewise allow the
Note: Although a marriage contract is considered a primary Filipino spouse to remarry. This is the rule laid down in
evidence of marriage, its absence is not always proof that no Art. 26 (2) of the FC.
marriage took place (Delgado Vda. De la Rosa, et al. v. Heirs of
Marciana Rustia Vda. De Damian, et al., G.R. No. 103028, October It should be noted however that the foreign spouse
10, 1997). must be capacitated to remarry before the Filipino
spouse may also be capacitated to remarry.
EFFECT OF MARRIAGE CELEBRATED ABROAD AND
FOREIGN DIVORCE Note: It is true that owing to the nationality principle
embodied in Art. 16 of the NCC, only Philippine nationals are
Q: What rules govern the validity of marriage? covered by the policy against absolute divorces, the same
being considered contrary to our concept of public policy and
A: It depends: morality. Nevertheless, aliens may obtain divorces abroad
1. As to its extrinsic validity Lex loci celebrationis which may be recognized in the Philippines, provided they are
valid according to their national law (Van Dorn v. Romillo, Jr.,
GR No. L-68470, October 8, 1985).
Note: Locus regit actum (the act is governed by the law of the
place where it is done) - is adhered to here in the Philippines
as regards the extrinsic validity of marriage. 2. It depends. What is material in this case is the
citizenship of the spouse who obtained a divorce
2. As to its intrinsic validity Personal law decree abroad at the time the decree was obtained
and not their citizenship at the time the marriage was
Note: Personal law may either be the national law or the law celebrated.
of the place where the person is domiciled.
If the Filipino spouse was naturalized as a citizen of a
If the person involved is a stateless person, domiciliary rule foreign country before he/she obtains a divorce
applies, otherwise, lex nationalii applies. decree and was thereafter capacitated to remarry, the
Filipino spouse will be capacitated to remarry.
Q: What is the status of marriages between Filipinos
solemnized abroad in accordance with the law in force in Note: The naturalization of one of the parties, as well as the
said country? divorce decree obtained by him or her, must be proven as a
fact under our rules on evidence. The foreign law under which
A: GR: Marriages between Filipinos solemnized outside the the divorce was obtained must likewise be proven as our
Philippines in accordance with the law of the foreign courts cannot take judicial notice of foreign laws.

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27 FACULTY OF CIVIL LAW
CIVIL LAW

However, if the Filipino spouse remained to be a citizen of the


Philippines when he/she obtained a divorce decree abroad,
such decree will not be recognized in the Philippines even if
that spouse is subsequently naturalized as a citizen of a
foreign country. This is so because at the time the spouse
obtained the divorce decree, he/she was still a citizen of the
Philippines and being naturalized afterwards does not cure
this defect (Republic v. Iyoy, G.R. No. 152577, September 21,
2005).

Note: Burden of Proof lies with "the party who alleges the
existence of a fact or thing necessary in the prosecution or
defense of an action." Since the divorce was a defense raised
by respondent, the burden of proving the pertinent foreign
law validating it falls squarely upon him. Courts cannot take
judicial notice of foreign laws. The power of judicial notice
must be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative (Garcia
v. Recio, G.R. No. 138322, October 2, 2001).

VOID AND VOIDABLE MARRIAGES

Q: What may be the status of marriages?

A:
1. Valid
2. Void
3. Voidable

Q: What are the distinctions between void and voidable marriages?

A:
VOID MARRIAGE VOIDABLE MARRIAGE
Status of marriage
Void ab initio Voidable: Valid until annulled
Petition filed
Declaration of Nullity of Marriage Annulment of Marriage
Who may file
GR: Solely by the husband or wife.
XPN: Any real party in interest, only in the following cases: GR: Offended Spouse
1. Nullity of marriage cases commenced before the XPN:
effectivity of A.M. No. 02-11-10 - March 15, 2003. 1.Parents or guardians in cases of insanity
2. Marriages celebrated during the effectivity of the Civil 2.Parents or guardians before the party reaches 21
Code (De Dios Carlos v. Sandoval, G.R. No. 179922, years old on the ground of Lack of Parental Authority
December 16, 2008).
Prescriptive Period
GR: Within 5 years from discovery of the ground
XPN:
No prescriptive period 1. Lifetime of spouse in cases of insanity
2. Before the party reaches 21 in cases where parents
or guardians may file annulment
How may be impugned

Either directly or collaterally Judicial declaration is necessary

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2013 GOLDEN NOTES 28
PERSONS AND FAMILY RELATIONS

Children

GR: Illegitimate;

XPN: Those conceived or born of marriages declared void Legitimate


under:
1. Art. 36 (Psychological incapacity), or
2. Art. 52 in relation to Art. 53

Property
GR: governed by rules on absolute community
Property relations are governed by rules on co-ownership
XPN: unless another system is agreed upon in marriage
settlement
Judicial Declaration
GR: Not necessary that there is judicial declaration
Necessary
XPN: in case of remarriage

VOID MARRIAGE 1. If the change is artificial No, he/she cannot.

Q: What are the marriages that are void ab initio? Note: The sex or gender at the time of birth shall be
taken into account. He is still, in the eyes of the law, a
A: LAaMB- PIPS-18 man although because of the artificial intervention, he
now has the physiological characteristics of a woman
1. Absence of any of the essential or formal
(Silverio v. Republic, G.R. No. 174689, October22, 2007)
requisites of marriage;
2. Marriages contracted by any party below 18 years
2. If the change is natural He/she can.
of age even with the consent of parents or
guardians;
Q: Jennifer was registered as a female in her Certificate of
3. Solemnized without License, except those
Live Birth. In her early years, she suffered from clitoral
marriages that are exempt from the license
hypertrophy and was found out that her ovarian
requirement;
structures had minimized. She also alleged that she has no
4. Solemnized by any person not Authorized to
breasts or menstruation. She was diagnosed to have
perform marriages unless such marriages were
Congenital Adrenal Hyperplasia (CAH) a condition where
contracted with either or both parties believing in
persons thus afflicted possess secondary male
good faith that the solemnizing officer had the
characteristics because of too much secretion of
legal authority to do so;
androgen. She then alleged that for all interests and
5. Contracted through Mistake of one of the
appearances as well as in mind and emotion, she has
contracting parties as to the identity of the other;
become a male person. What is Jennifers gender or sex?
6. Bigamous or polygamous marriages;
7. Subsequent marriages which are void under Art.
A: Male. Where the person is biologically or naturally
53 FC;
intersex the determining factor in his gender classification
8. Marriages contracted by any party, who at the
would be what the individual, having reached the age of
time of the celebration of the marriage, was
majority, with good reason thinks of his/her sex. Jennifer
Psychologically incapacitated (Art. 36, FC);
here thinks of himself as a male and considering that his
9. Incestuous Marriages (Art. 37, FC);
body produces high levels of androgen, there is
10. Marriages declared void because they are
preponderant biological support for considering him as
contrary to Public policy (Art. 38, FC).
being male. Sexual development in cases of intersex
persons makes the gender classification at birth
ABSENCE OF REQUISITES
inconclusive. It is at maturity that the gender of such
persons is fixed.
Q: What is the status of a marriage between Filipinos if
the parties thereto are of the same sex?
Jennifer has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he
A: Void. For a marriage to be valid, it must be between
was born with. And accordingly, he has already ordered his
persons of opposite sexes.
life to that of a male. He could have undergone treatment
and taken steps, like taking lifelong medication, to force his
Q: In case of a change in sex, can the person who has
body into the categorical mold of a female but he did not.
undergone said change be allowed to marry another of
He chose not to do so. Nature has instead taken its due
the same sex as he/she originally had?
course in his development to reveal more fully his male
characteristics.
A: It depends upon the cause for the change in sex.

UNIVERSITY OF SANTO TOMAS


29 FACULTY OF CIVIL LAW
CIVIL LAW
To him belongs the primordial choice of what courses of essential or formal requisites shall generally render the
action to take along the path of his sexual development and marriage void ab initio and that, while an irregularity in the
maturation. In the absence of evidence that he is an formal requisites shall not affect the validity of the
incompetent and in the absence of evidence to show that marriage, the party or parties responsible for the
classifying him as a male will harm other members of irregularity shall be civilly, criminally and administratively
society who are equally entitled to protection under the liable (Cosca v. Palaypayon, A.M. No. MTJ-92-721,
law, the Court affirms as valid and justified his position and September 30, 1994).
his personal judgment of being a male (Republic v. Jennifer
Cagandahan, G.R. No. 166676, Sep. 12, 2008). Q: For the marriage to be void, on what circumstance
must the mistake refer to?
Q: What is the status of marriages where one or both of
the parties are below 18 years of age? A: For marriage to be rendered void, the mistake in identity
must be with reference to the actual physical identity of
A: It is void for lack of legal capacity. other party, not merely a mistake in the name, personal
qualifications, character, social standing, etc. (Rabuya, p.
Q: Would your answer be the same if their parents 213)
consented to the marriage?
Q: If a person contracts a subsequent marriage during the
A: Yes. Parental consent does not have the effect of curing subsistence of a prior marriage, what is the status of the
this defect. subsequent marriage?

Q: What if the marriage was a mixed marriage where the A: GR: Void for being bigamous or polygamous, even if
Filipino is 18 years old but the foreigner is below 17 years celebrated abroad and valid there as such.
of age. What is the status of the marriage?
XPN: Valid if it is a terminable bigamous marriage.
A: It depends. If the national law of the foreigner recognizes
17 year old persons to be capacitated to marry, then their Q: When is a marriage considered bigamous?
marriage is valid, otherwise it is void.
A: It is when a person contracts a second or subsequent
Q: What is the effect of lack of authority of solemnizing marriage before the former marriage has been legally
officer? dissolved, or before the absent spouse has been declared
presumptively dead by means of judgment rendered in the
A: GR: The marriage is void ab initio. proper proceedings. (Art. 349, RPC)

XPN: Note: The same applies to polygamy.


1. Express - If either or both parties believed in good
faith that the solemnizer had the legal authority Q: Arnold, a Filipino, and Britney, an American, both
to do so. (Art. 35, FC) residents of California, decided to get married in their
2. Implied - Article 10 in relation to Article 26 of the local parish, two years after their marriage, Britney
Family Code. If the marriage between a foreigner obtained a divorce in California. While in Boracay, Arnold
and a Filipino citizen abroad solemnized by a met Jenny, a Filipina, who was vacationing there. Arnold
Philippine consul assigned in that country is fell in love with her. After a brief courtship and complying
recognized as valid in the host country, such with all the requirements, they got married in Hong Kong
marriage shall be considered as valid in the to avoid publicity, it being Arnolds second marriage. Is his
Philippines. (Sta. Maria Jr., Persons and Family marriage with Jenny valid? (2006 Bar Question)
Relations Law)
A: Yes. The marriage will not fall under Art. 35(4) on
Q: Judge Palaypayon solemnized marriages even without bigamous marriages, provided that Britney obtained an
the requisite marriage license. Thus, some couples were absolute divorce, capacitating her to remarry under her
able to get married by the simple expedient of paying the national law. Consequently, the marriage between Arnold
marriage fees. As a consequence, their marriage contracts and Jenny may be valid as long as it was solemnized and
did not reflect any marriage license number. In addition, valid in accordance with the laws of Hong Kong.
the judge did not sign their marriage contracts and did not
indicate the date of the solemnization, the reason being Q: May a person contract a valid subsequent marriage
that he allegedly had to wait for the marriage license to be before a first marriage is declared void ab initio by a
submitted by the parties. Such marriage contracts were competent court?
not filed with the Local Civil Registry. Are such marriages
valid? A: No. The Supreme Court has consistently held that a
judicial declaration of nullity is required before a valid
A: No. The Family Code pertinently provides that the formal subsequent marriage can be contracted; or else, what
requisites of marriage are, inter alia, a valid marriage transpires is a bigamous marriage, reprehensible and
license, except in the cases provided for therein. immoral. Article 40 of the Family Code expressly requires a
Complementarily, it declares that the absence of any of the
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 30
PERSONS AND FAMILY RELATIONS
judicial declaration of nullity of marriage (In re: Salvador v. d. clearly explained in the decision
Serafico, A.M. 2008-20-SC, March 15, 2010).
Note: Expert evidence may be given by qualified psychiatrists and
Note: Under Art. 40 of the FC, before one can contract a second clinical psychologists.
marriage on the ground of nullity of the first marriage, there must
first be a final judgment declaring the first marriage void. If a party Q: Is a physicians examination required in establishing
fails to secure a judicial declaration of nullity of the first marriage, psychological incapacity as a ground for declaration of
he or she runs the risk of being charged with bigamy as the marital nullity?
bond or vinculum in the first nuptial subsists (Mercado v. Tan GR:
137110, August, 2000; Te v. CA GR No: 126746, November 29,
2009). A: No. If the totality of evidence presented is enough to
sustain a finding of psychological incapacity, physicians
Q: What are the special cases when subsequent marriage examination of the person concerned need not be resorted
is allowed? to.

A: Q: What are the guidelines set by the Court to aid it in its


1. Marriage between a Filipino and a foreigner and disposition of cases involving psychological incapacity?
procurement by the alien spouse of a valid divorce
decree abroad, capacitating him/her to remarry. A:
2. Terminable bigamous marriages (Art. 41) 1. Burden of proof to show the nullity of the marriage
belongs to the plaintiff;
PSYCHOLOGICAL INCAPACITY 2. The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in
Q: What is psychological incapacity? the complaint, (c) sufficiently proven by experts and
(d) clearly explained in the decision.
A: There is no exact definition for psychological incapacity, 3. The incapacity must be proven to be existing at the
but it was defined by the Supreme Court as no less than a time of the celebration of the marriage.
mental (not physical) incapacity that causes a party to be 4. Such incapacity must also be shown to be medically or
truly incognitive of the basic marital covenants that clinically permanent or incurable.
concomitantly must be assumed and discharged by the 5. Such illness must be grave enough to bring about the
parties to the marriage. disability of the party to assume the essential
obligations of marriage.
The determination is left solely with the courts on a case- 6. The essential marital obligations must be those
to-case basis. Determination of PI depends on the facts of embraced by Arts. 68 up to 71 of the FC as regards the
the case. Each must be judged, not on the basis of a priori husband and wife, as well as Arts. 220, 221 and 225 of
assumptions, predilections or generalizations but according the same Code in regard to parents and their children.
to its own facts (Republic v. Dagdag, G.R. No. 109975, Such non-complied marital obligation(s) must also be
February 9, 2001). stated in the petition, proven by evidence and
included in the text of the decision.
The intendment of the law has been to confine the 7. Interpretations given by the National Appellate
meaning of "psychological incapacity" to the most serious Matrimonial Tribunal of the Catholic Church in
cases of personality disorders clearly demonstrative of an the Philippines, while not controlling or decisive,
utter insensitivity or inability to give meaning and should be given great respect by our courts.
significance to the marriage (Santos v. CA, G.R. No. 112019, 8. The trial court must order the prosecuting attorney or
January 4, 1995). fiscal and the Solicitor General to appear as counsel for
the state. No decision shall be handed down unless the
Q: What are the requisites of psychological incapacity? Solicitor General issues a certification, which will be
quoted in the decision, briefly stating therein his
A: reasons for his agreement or opposition, as the case
1. Juridical antecedence must be rooted in the history may be, to the petition (Danilo A. Aurelio v. Vide Ma.
of the party antedating the marriage, although overt Corazon P. Aurelio, G.R. No. 175367, June 6, 2011).
manifestations may arise only after such marriage.
2. Gravity grave enough to bring about the disability of Q: What are some instances where allegations of
the party to assume the essential marital obligations. psychological incapacity were not sustained?
3. Permanence or incurability must be incurable. If
curable, the cure should be beyond the means of the 1. Mere showing of irreconcilable differences and
parties involved. conflicting personalities (Carating-Siayngco v.
Siayngco, G.R. No. 158896, Oct, 27. 2004).
Q: How is psychological incapacity proven?
2. Mere sexual infidelity or perversion, do not by
A: The root cause of psychological incapacity must be: themselves constitute psychological incapacity, as
a. medically or clinically identified well as immaturity and irresponsibility.
b. alleged in the complaint
c. sufficiently proven by experts

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31 FACULTY OF CIVIL LAW
CIVIL LAW
Note: It must be shown that these acts are sexual intimacy which brings the spouses wholeness and
manifestations of a disordered personality which would oneness (Chi Ming Tsoi v. CA, G.R. No. 119190, January 16,
make respondent completely unable to discharge the 1997).
essential obligations of a marital state, not merely
youth, immaturity or sexual promiscuity (Dedelvs CA,
G.R. no. 151867, January29, 2004). Alternative Answer:
None of them are necessarily psychologically incapacitated.
3. Disagreements regarding money matters (Tongol Being a nagger, etc., are at best only physical
v. Tongol, G.R. No. 157610, October 19, 2007). manifestations indicative of psychological incapacity. More
than just showing the manifestations of incapacity, the
4. Mere abandonment. petitioner must show that the respondent is incapacitated
to comply with the essential marital obligations of marriage
Note: There must be proof of natal or supervening and that it is also essential that he must be shown to be
disabling element in the personality factor that incapable of doing so due to some psychological, not
effectively incapacitates a person from accepting and physical illness. (Republic v. Quintero-Hamano, G.R. No.
complying with the Essential Marital obligations of 149498, May 20, 2004)
Marriage.(Republic v. Quintero-Hamano, G.R. No.
149498, May 20, 2004). Alternative Answer:
A congenital sexual pervert may be psychologically
5. Sexual infidelity (Republic v. Dagdag, GR No. incapacitated if his perversion incapacitates him from
109975, February 9, 2001). discharging his marital obligations. For instance, if his
perversion is of such a nature as to preclude any normal
Q: Would the state of being of unsound mind or the sexual activity with his spouse.
concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism be considered indicia of INCESTUOUS MARRIAGES
psychological incapacity, if existing at the inception of
marriage? (2002 Bar Question) Q: What marriages are considered incestuous?

A: In the case of Santos v. CA (240 SCRA 20, 1995), the A: Those marriages:
Supreme Court held that being of unsound mind, drug 1. Between ascendants and descendants of any degree;
addiction, habitual alcoholism, lesbianism or homosexuality 2. Between brothers and sisters whether of the full or
may be indicia of psychological incapacity, depending on half blood. (Art. 37, FC)
the degree of severity of the disorder. However, the
concealment of drug addiction, habitual alcoholism, Note: Regardless of whether the relationship between the parties
lesbianism or homosexuality is a ground of annulment of is legitimate or illegitimate.
marriage.
Q: What are the marriages that are void by reason of
Q: Art. 36 of the FC provides that a marriage contracted by public policy?
any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential A: Marriages between:
marital obligations of marriage, shall be void. 1. Collateral blood relatives (legitimate or Illegitimate) up
th
to the 4 civil degree;
Choose the spouse listed below who is psychologically 2. Step-parents & step-children;
incapacitated. 3. Parents-in-law & children-in-law;
a. Nagger 4. Adopting parent & the adopted child;
b. Gay or Lesbian 5. Surviving spouse of the adopting parent & the adopted
c. Congenital sexual pervert child;
d. Gambler 6. Surviving spouse of the adopted child & the adopter;
e. Alcoholic (2006 Bar Question) 7. Adopted child & legitimate child of the adopter;
8. Adopted children of the same adopter;
A: B and C. To be sure, the existence and concealment of 9. Parties where one, with the intention to marry the
these conditions at the inception of marriage renders the other, kills the latters spouse, or his/her spouse. (Art.
marriage contract voidable (Art 46, FC). They may serve as 38, FC)
indicia of psychological incapacity, depending on the
degree and severity of the disorder (Santos v. CA, G.R. No. Note: The list is exclusive. If not falling within this enumeration, the
112019, January 4, 1995). Hence, if the condition of marriage shall be valid. Such as marriages between:
homosexuality, lesbianism or sexual perversion, existing at 1. Adopted and Illegitimate child of the adopter
the inception of the marriage, is of such a degree as to 2. Step brother and step sister
3. Brother-in-law and sister-in-law
prevent any form of sexual intimacy, any of them may
4. Parties who have been guilty of adultery or concubinage
qualify as a ground for psychological incapacity. The law
provides that the husband and wife are obliged to live
Q: Amor gave birth to Thelma when she was 15 years old.
together, observe mutual love, respect and fidelity (Art. 68,
Thereafter, Amor met David and they got married when
FC). The mandate is actually the spontaneous, mutual
she was 20 years old. David has a son, Julian, with his ex-
affection between the spouses/ in the natural order it is

UNIVERSITY OF SANTO TOMAS


2013 GOLDEN NOTES 32
PERSONS AND FAMILY RELATIONS
girlfriend Sandra. Can Julian and Thelma get married? barred by res judicata. There is only one cause of action
(2007 Bar Question) which is the nullity of the marriage. Hence, when the
second case was filed based on another ground, there was
A: If the marriage was solemnized during the effectivity of a splitting of a cause of action which is prohibited. The
the NCC, the marriage between stepbrother and stepsister petitioner is estopped from asserting that the first marriage
is void. However, under the FC, the marriage may be valid. had no marriage license because in the first case, he
impliedly admitted the same when he did not question the
PRESCRIPTION absence of a marriage license. Litigants are provided with
the options on the course of action to take in order to
Q: What is the prescriptive period of the action or defense obtain judicial relief. Once an option has been taken and a
for the declaration of absolute nullity of marriage? case is filed in court, the parties must ventilate all matters
and relevant issues therein. The losing party who files
A: None. The time for filing an action or defense for the another action regarding the same controversy will be
declaration of absolute nullity of marriage, whether in a needlessly squandering time, effort and financial resources
direct or collateral manner, does not prescribe. (Art. 39, FC) because he is barred by law from litigating the same
controversy all over again (Mallion v. Alcantara, G.R. No.
Note: Any of the parties in a void marriage can file an action for the 141528, October 31, 2006).
declaration of nullity of marriage even though such party is the
wrongdoer. Q: Is the declaration of nullity of marriage applied
prospectively?
Q: What is the effect of death of a party in a petition for
declaration of nullity of marriages? A: No, it retroacts to the date of the celebration of the
marriage. However, although the judicial declaration of
A: nullity of a marriage on the ground of psychological
1. Before the entry of judgment The court shall order incapacity retroacts to the date of the celebration of the
the case closed and terminated without prejudice to marriage insofar as the vinculum between the parties is
the settlement of estate in proper proceedings. concerned, it must be noted that the marriage is not
2. After the entry of judgment The decision shall be without legal consequences or effects. One such
binding upon the parties and their successors-in- consequence or effect is the incurring of criminal liability
interest in the settlement of the estate. for bigamy. To hold otherwise would be to render nugatory
the State's penal laws on bigamy as it would allow
Q: May the heirs of a deceased person file a petition for individuals to deliberately ensure that each marital contract
the declaration of nullity of his marriage after his death? be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages (Tenebro v.
A: No. The advent of the Rule on Declaration of Absolute CA, G.R. No. 150758, February 18, 2004).
Nullity of Void Marriages marks the beginning of the end of
the right of the heirs of the deceased spouse to bring a Q: While his marriage is subsisting, Veronico married
nullity of marriage case against the surviving spouse. The Leticia, which marriage was later declared void on the
heirs can still protect their successional right, for, ground of psychological incapacity. When Veronico got
compulsory or intestate heirs can still question the validity married for the third time, Leticia filed a case for bigamy
of the marriage of the spouses, not in a proceeding for against him.
declaration of nullity but upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased For his defense, Veronico claims that effects of the nullity
spouse filed in the regular courts. of his marriage with Leticia retroacts to the date when it
was contracted, hence, he is not guilty of bigamy for want
However, with respect to nullity of marriage cases of an essential element the existence of a valid previous
commenced before the effectivity of A.M. No. 02-11-10 and marriage. Rule on Veronicos argument.
marriages celebrated during the effectivity of the NCC, the
doctrine laid down in the Nial v. Bayadog case still applies; A: No. Art. 349 of the RPC penalizes the mere act of
that the children have the personality to file the petition to contracting a second or subsequent marriage during the
declare the nullity of marriage of their deceased father to subsistence of a previous valid marriage. Here, as soon as
their stepmother as it affects their successional rights (De the second marriage to Leticia was celebrated, the crime of
Dios Carlos v. Sandoval, G.R. No. 179922, December 16, bigamy had already been consummated as the second
2008). marriage was contracted during the subsistence of the valid
first marriage (Tenebro v. CA, G.R. No. 150758, February 18,
Q: If the court denies a petition for declaration of nullity of 2004).
marriage based on psychological incapacity, may a party
to the said case file another petition for declaration of its Q: Is the judicial declaration of absolute nullity of a void
nullity based on the absence of marriage license? marriage necessary?

A: A petition to declare the marriage void due to absence of A:


marriage license, filed after the court denied a petition to 1. For purposes of remarriage judicial declaration of
declare the marriage void due to psychological incapacity, is absolute nullity is necessary.

UNIVERSITY OF SANTO TOMAS


33 FACULTY OF CIVIL LAW
CIVIL LAW
Q: May a marriage be terminated extra-judicially?
Note: In the instance where a party who has
previously contracted a marriage which is legally A: Yes. The recording of the affidavit of reappearance of the
unassailable, he is required by law to prove that the absent spouse in the civil registry of the residence of the
previous one was an absolute nullity. But this he may parties to the subsequent marriage shall automatically
do on the basis solely of a final judgment declaring terminate the terminable bigamous marriage unless there is
such previous marriage void. a judgment annulling the previous marriage or declaring it
void ab initio. (Art. 42)
2. For purposes other than remarriage no judicial
action is necessary. In Art 42, FC, no judicial proceeding to annul a subsequent
marriage contracted under Art. 41 is necessary. Also, the
Note: Here, evidence may be adduced, testimonial or termination of the subsequent marriage by affidavit
documentary, to prove the existence of the grounds provided for in Art. 42 does not preclude the filing of an
rendering such a previous marriage an absolute nullity. But action in court to prove the reappearance of the absentee
these need not be limited solely to an earlier final judgment
and obtain a declaration of dissolution or termination of the
of a court declaring such marriage void. (Rabuya, Civil Law
Reviewer, 2009 ed.) subsequent marriage (SSS v. Jarque Vda. De Bailon, G.R. No.
165545, March 24, 2006).
SUBSEQUENT MARRIAGE
Q: When are non-bigamous subsequent marriages void?
Q: In what cases may a person enter into a valid
subsequent marriage during the subsistence of a prior A: The subsequent marriage of a person whose prior
marriage? marriage has been annulled but contracted said subsequent
marriage without compliance with Art. 52, FC, shall be void.
A: In case of terminable bigamous marriages. If before the
celebration of the subsequent marriage: ABD Before he contracts a subsequent marriage, he must first
1. The Absent spouse had been absent for 4 comply with the requirement provided for in Art. 52, viz:
consecutive years (ordinary absence) or 2
consecutive years (extra-ordinary absence); The recording in the civil registries and registries of
2. The present spouse has a well-founded Belief that properties of the following: JPDD
the absent spouse is already dead; 1. Judgment of annulment;
3. There is judicial Declaration of presumptive death in 2. Partition;
a summary proceeding. 3. Distribution of properties, and
4. Delivery of presumptive legitimes
Note: If both spouses of subsequent marriage acted in bad faith,
such marriage is void ab initio. Q: Ana Rivera had a husband, a Filipino citizen like her,
who was among the passengers on board a commercial jet
Q: Gregorio married Janet. When he was employed plane which crashed in the Atlantic Ocean ten (10) years
overseas, he was informed that Janet left. Five years later, earlier and had never been heard of ever since. Believing
he filed an action for her to be declared presumptively that her husband had died, Ana married Adolf Cruz
dead without alleging that he wishes to remarry. Will his Staedler, a divorced German national born of a German
action prosper? father and a Filipino mother residing in Stuttgart. To avoid
being required to submit the required certificate of
A: No. A petition to declare an absent spouse capacity to marry from the German Embassy in Manila,
presumptively dead may not be granted in the absence of Adolf stated in the application for marriage license stating
any allegation that the spouse present will remarry. Also, that Adolf was a Filipino, the couple got married in a
there is no showing that Gregorio conducted a search for ceremony officiated by the Parish Priest of Calamba,
his missing wife with such diligence as to give rise to a Laguna in a beach in Nasugbu, Batangas, as the local
"well-founded belief" that she is dead. The four requisites parish priest refused to solemnize marriage except in his
not having concurred, his action for the declaration of church. Is the marriage valid? (2008 Bar Question)
presumptive death of his wife should be denied (Republic v.
Nolasco, G.R. No. 94053, March 17, 1993). A: The issue hinges on whether or not the missing husband
was dead or alive at the time of the second marriage.
Q: What is the effect if the parties to the subsequent
marriage obtains knowledge that the spouse absent has If the missing husband was in fact dead at the time the
reappeared? second marriage was celebrated, the second marriage was
valid. Actual death of a spouse dissolves the marriage ipso
A: None. If the absentee reappears, but no step is taken to facto whether or not the surviving spouse had knowledge of
terminate the subsequent marriage, either by affidavit or by such fact. A declaration of presumptive death even if
court action, such absentee's mere reappearance, even if obtained will not make the marriage voidable because
made known to the spouses in the subsequent marriage, presumptive death will not prevail over the fact of death.
will not terminate such marriage (SSS v. Jarque Vda. De
Bailon, G.R. No. 165545, March 24, 2006). If the missing husband was in fact alive when the second
marriage was celebrated, the second marriage was void ab
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 34
PERSONS AND FAMILY RELATIONS
initio because of a prior subsisting marriage. Had Ana
obtained a declaration of presumptive death, the second
marriage would

have been voidable.

In both cases, the fact that the German misrepresented his


citizenship to avoid having to present his Certificate of Legal
Capacity, or the holding of the ceremony outside the church
or beyond the territorial jurisdiction of the solemnizing
officer, are all irregularities which do not affect the validity
of the marriage.

VOIDABLE MARRIAGES

Q: What is the effect if a marriage is voidable?

A: A voidable marriage is considered valid and produces all


its civil effects until it is set aside by final judgment of a
competent court in an action for annulment. (Rabuya,
2006, p. 295)

Q: What are voidable marriages and how may they be ratified?

A:
GROUND RATIFICATION WHO MAY FILE WHEN TO FILE
Contracting party who failed to obtain
Marriage of a party 18 years of parental consent: Through free
cohabitation after attaining the age of By the contracting party Within 5 years after
age or over but below 21
21. attaining the age of 21
solemnized without the consent
of the parents, guardian or Parent, guardian, or
Note: The parents cannot ratify the person having legal charge At any time before
person having substitute
marriage. The effect of prescription on such party has reached
parental authority over the of the contracting party
their part is that they are barred from the age of 21
party, in that order contesting it but the marriage is not yet
cleansed of its defect.
Sane spouse who had no At any time before the
knowledge of the others death of either party
insanity
At any time before the
Either party was of unsound Insane spouse: Through free
Any relative, guardian or death of either party
mind cohabitation after coming to reason.
person having legal charge
of the insane During a lucid interval
or after regaining
Insane spouse sanity
Injured party: Through free
Consent of either party was Within 5 years after
cohabitation with full knowledge of Injured party
obtained by fraud the discovery of fraud
the facts constituting the fraud.
Within 5 years from
Injured party: Through free the time the force,
Vices of consent such as force,
cohabitation after the vices have Injured party intimidation or undue
intimidation or undue influence
ceased or disappeared. influence disappeared
or ceased
May not be ratified but action may be Within 5 years after
Impotence and STD
barred by prescription only, which is 5 Injured party the celebration of
years after the marriage marriage

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35 FACULTY OF CIVIL LAW
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Q: What is the test in determining unsoundness of mind as Note: The intention of Congress to confine the circumstances that
a ground for annulment? can constitute fraud as ground for annulment of marriage to the 3
cases therein may be deduced from the fact that, of all the causes of
nullity enumerated in Art. 85 (now, Art. 46 of the FC), fraud is the
A: It is essential that the mental incapacity must relate
only one given special treatment in a subsequent article within the
specifically to the contract of marriage and the test is chapter on void and voidable marriages. If its intention were
whether the party at the time of the marriage was capable of otherwise, Congress would have stopped at Art. 85, for anyway,
understanding the nature and consequences of the fraud in general is already mentioned therein as a cause for
marriage. (Rabuya, 2006, p. 300) annulment. (Anaya v. Palaroan, GR L-27930, November 26, 1970)

Q: Who may file annulment based on unsound mind? Q: Under what conditions, respectively, may drug addiction
be a ground, if at all, for the declaration of nullity of
A: GR: The sane spouse has the legal standing to file the marriage, annulment of marriage, and legal separation?
action for annulment only in cases where he or she (1997 Bar Question)
contracted the marriage without knowledge of the others
insanity. A:
Declaration of Nullity a. The drug addiction must
XPNs: When the sane spouse had knowledge of the of Marriage amount to psychological
others insanity, action for annulment may be filed only incapacity to comply with the
by the following; essential obligations of
1. Any relative or guardian or person having legal marriage;
charge of the insane b. It must be antecedent
2. The insane spouse during a lucid interval or after (existing at the time of
regaining sanity (Rabuya, p. 301) marriage), grave and
incurable:
Q: What are the circumstances constituting fraud under Annulment of Marriage a. The drug addiction must be
Art. 45(3)? concealed;
b. It must exist at the time of
A: NPSD marriage;
1. Non-disclosure of conviction by final judgment of crime c. There should be no
involving moral turpitude; cohabitation with full
2. Concealment by the wife of the fact that at the time of knowledge of the drug
marriage, she was Pregnant by a man other than her addiction;
husband; d. The case is filed within five (5)
3. Concealment of Sexually transmitted disease, regardless years from discovery.
of nature, existing at the time of marriage; Legal Separation a. There should be no
4. Concealment of Drug addiction, habitual alcoholism, condonation or consent to
homosexuality and lesbianism. (Art. 46) the drug addiction;
b. The action must be filed
Note: Where there has been no misrepresentation or fraud, that is, within five (5) years from the
when the husband at the time of the marriage knew that the wife occurrence of the cause.
was pregnant, the marriage cannot be annulled (Buccat v. Buccat,
c. Drug addiction arises during
G.R. No. 47101, April 25, 1941).
the marriage and not at the
time of marriage.
Q: Aurora prayed for the annulment of her marriage with
Fernando on the ground of fraud in obtaining her consent
after having learned that several months prior to their
marriage, Fernando had pre-marital relationship with a Q: If drug addiction, habitual alcoholism, lesbianism or
close relative of his. According to her, the "non- homosexuality should occur only during the marriage,
divulgement to her of such pre-marital secret" constituted would these constitute grounds for a declaration of nullity
fraud in obtaining her consent w/in the contemplation of or for legal separation, or would they render the marriage
Art. 46 of the FC. Is the concealment by the husband of a voidable (2002 Bar Question)?
pre-marital relationship with another woman a ground for
annulment of marriage? A: In accordance with law, if drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only
A: No. The non-disclosure to a wife by her husband of his during the marriage, they will:
pre-marital relationship with another woman is not a ground 1. Not constitute as grounds for declaration of nullity. (Art.
for annulment of marriage. For fraud as a vice of consent in 36, FC)
marriage, which may be a cause for its annulment, comes 2. Constitute as grounds for legal separation. (Art. 55, FC);
under Art. 46 of the FC. This fraud, as vice of consent, is and
limited exclusively by law to those kinds or species of fraud 3. Not constitute as grounds to render the marriage
enumerated in Art. 86. voidable. (Arts. 45 and 46 of the FC)

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Q: When is vitiated consent a ground for annulment of Yvette annulled on the ground that Yvette has STD. Yvette
marriage? opposes the suit contending that Joseph is estopped from
seeking annulment of their marriage since he knew even
A: GR: Consent of either party was obtained by force, before their marriage that she was afflicted with HIV virus.
intimidation or undue influence Can the action of Joseph for annulment of his marriage with
Yvette prosper?
XPN: If the same having disappeared or ceased, such
party thereafter freely cohabited with the other as A: No. Concealment of a sexually transmitted disease may
husband and wife annul the marriage if there was fraud existing in the party
concerned. In this case, there was no fraud because Joseph
Q: When may impotence be a ground for annulment of knew that Yvette was suffering from HIV when he married
marriage? her. (Art. 46, par 3, FC)

A: CPUII Q: Differentiate Arts. 45 and 46 of the FC on STD as ground


1. Exists at the time of the Celebration of marriage for annulment.
2. Permanent (does not have to be absolute)
3. Incurable A:
4. Unknown to the other spouse ARTICLE 45 ARTICLE 46
5. Other spouse must not also be Impotent Affliction Concealment
The act of concealing is the
Q: In case there is no proof as to the potency of one spouse, The fact of being afflicted is
ground for annulment as it
shall he be considered as impotent? the ground for annulment
constitutes fraud

A: GR: No. Presumption is in favor of potency. Whether concealed or not There must be concealment

Must be serious and Does not have to be serious


XPN: Doctrine of triennial cohabitation.
incurable and incurable
Q: What is the doctrine of triennial cohabitation?
PRESENCE OF PROSECUTOR
A: If after 3 years of living together with her husband, the
wife remained a virgin, the husband is presumed to be Q: What is the role of the prosecutor or Solicitor General in
impotent (Rabuya, Persons, p. 310). The husband will have to all cases of annulment or declaration of absolute nullity of
overcome this presumption. marriage?

Q: The day after John and Marsha got married, John told A: They shall take steps to prevent collusion between the
her that he was impotent. Marsha continued to live with parties and to take care that evidence is not fabricated or
John for two years. Is Marsha now estopped from filing an suppressed. Concomitantly, even if there is no suppression
annulment case against John? (2007 Bar Question) of evidence, the public prosecutor has to make sure that the
evidence to be presented or laid down before the court is
A: No. Unlike the other grounds for annulment of voidable not fabricated. Truly, only the active participation of the
marriage which are subject to ratification by continued public prosecutor or the Solicitor General will ensure that
cohabitation, the law does not allow ratification in case of the interest of the State is represented and protected in
impotency. proceedings for declaration of nullity of marriages by
preventing the fabrication or suppression of evidence. (Art.
Q: When may affliction of a sexually transmitted disease 48, FC)
(STD) be a ground for annulment?
Note: The non-intervention of the prosecutor is not fatal to the
validity of the proceedings in cases where the respondent in a
A: Requisites: AESIAF
petition for annulment vehemently opposed the same and where he
a. One of the parties is Afflicted with STD does not allege that evidence was suppressed or fabricated by any
b. STD must be: of the parties (Tuason v. CA, G.R. No. 116607, April 10, 1996).
a. Existing at the time the marriage is celebrated
b. Serious Q: What are the actions prohibited in annulment and
c. apparently Incurable declaration of absolute nullity of marriage cases?
c. The other spouse must not be Aware of the others
affliction A: CCSSJ
d. Injured party must be Free from STD. 1. Compromise
2. Confession of judgment
Q: Yvette was found to be positive for HIV virus, considered 3. Stipulation of facts
sexually transmissible, serious and incurable. Her boyfriend 4. Summary judgment
Joseph was aware of her condition and yet married her. 5. Judgment on the pleadings
After two (2) years of cohabiting with Yvette, and in his
belief that she would probably never be able to bear him a Note: What the law prohibits is a judgment based exclusively or
healthy child, Joseph now wants to have his marriage with mainly on defendant's confession (Ocampo v. Florenciano, 107 Phil.

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37 FACULTY OF CIVIL LAW
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35). Thus, stipulation of facts or confession of judgment if Q: What must the final judgment of nullity or annulment
sufficiently supported by other independent substantial evidence to provide?
support the main ground relied upon, may warrant an annulment or
declaration of absolute nullity.
A: The final judgment shall provide for the ff:
1. Liquidation, partition and distribution of the properties
PENDENCY OF ACTION
of the spouses;
2. Custody and support of the common children; and
Q: What is the duty of the Court during the pendency of the
3. Delivery of their presumptive legitimes.
action for annulment, declaration of absolute nullity of
marriage or legal separation?
Unless such matters had already been adjudicated in
previous judicial proceedings, in which case, the final
A: The Court shall, in the absence of adequate written
judgment of nullity or annulment need not provide for those
agreement between the spouses, provide for the:
which have already been adjudicated.
1. Support of the spouses
2. Support and custody of the common children. Note: Where there was a failure to record in the civil registry and
3. Visitation rights of the other parent. (Art.49, FC) registry of property the judgment of annulment or absolute nullity
of the marriage, the partition and distribution of the property of the
EFFECTS OF NULLITY spouses, and the delivery of the childrens presumptive legitimes, it
shall not affect third persons. (Arts. 52, FC)
Q: What rule governs the liquidation of properties in
marriages declared void or annulled by final judgment? Q: What are the forms of presumptive legitime?

A: A:
1. Void marriages: 1. Cash
GR: The rules on co-ownership under the Civil Code 2. Property
(Valdes v. RTC, G.R. No. 122749. July 31, 1996). 3. Sound security

XPN: Art. 43(2) of the FC in marriages declared Q: What must be done by a person whose prior marriage
void under Art. 40. (Art. 50) was annulled or declared void if he wishes to remarry?

2. Voidable marriages under Art. 45: shall be liquidated in A: He must comply with the requirement provided for in Art.
accordance with Art. 43(2) of the FC. (Art. 50) 52, before he contracts a subsequent marriage, viz:

Note: In both instances under Arts. 40 and 45, the marriages are The recording in the civil registries and registries of
governed either by absolute community of property or conjugal properties of the following: JPDD
partnership of gains unless the parties agree to a complete 1. Judgment of annulment;
separation of property in a marriage settlement entered into before 2. Partition;
the marriage (Dino v. Dino, G.R. No. 178044, January 19, 2011).
3. Distribution of properties; and
4. Delivery of presumptive legitimes.
Q: What are the effects of Final Judgment of Annulment?
LEGAL SEPARATION
A: The effects are:
1. Termination of the marital bond, as if it had never been
GROUNDS
entered into, but the effects thereof are not totally
wiped out.
Q: What are the grounds for legal separation?
2. Children conceived or born before the judgment of
annulment has become final and executor are
A: PALFAC SILA
considered legitimate.
1. Repeated Physical violence or grossly abusive conduct
3. Absolute community property regime or the conjugal
against petitioner, common child, child of petitioner;
partnership property regime is terminated of dissolved
2. Attempt to corrupt or induce petitioner, common child,
and the same shall be liquidated in accordance with the
child of petitioner to engage in prostitution, or
provisions of Arts. 102 and 129.
connivance in such corruption or inducement;
3. Attempt by respondent against Life of petitioner;
Q: What will happen to the liquidation of property, after
4. Final judgment sentencing respondent to imprisonment
final judgment of annulment, if either spouse contracted
of more than 6 years, even if pardoned;
the marriage in bad faith?
5. Drug Addiction or habitual alcoholism of respondent;
A: If either spouse contracted the marriage in bad faith, his Note: It must exist after celebration of marriage
or her share of the next profits of the community property or
conjugal partnership property shall be forfeited in favour of 6. Physical violence or moral pressure to Compel
the common children or if there be none, the children of the petitioner to change religious or political affiliation;
guilty spouse by previous marriage or in default thereof, the 7. Bigamous marriage Subsequently contracted by
innocent spouse. respondent in the Philippines or abroad

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2013 GOLDEN NOTES 38
PERSONS AND FAMILY RELATIONS
8. Sexual Infidelity or perversion; f. Intimidation directed against the woman or child. This
9. Lesbianism or homosexuality of respondent; shall include, but not limited to, the following acts
committed with the purpose or effect of controlling
Note: It must exist after celebration of marriage or restricting the womans or her childs movement
or conduct:
10. Abandonment of petitioner by respondent without i. Threatening to deprive or actually depriving the
justifiable cause for more than 1 year. woman or her child of custody to her/his
family;
Q: If a man commits several acts of sexual infidelity, ii. Depriving or threatening to deprive the woman
particularly in 2002, 2003, 2004, 2005, does the prescriptive or her children of financial support legally due
period to file for legal separation run from 2002? (2007 Bar her or her family, or deliberately providing the
Question) womans children insufficient financial support;
iii. Depriving or threatening to deprive the
A: The prescriptive period begins to run upon the woman or her child of a legal right;
commission of each act of infidelity. Every act of sexual iv. Preventing the woman in engaging in any
infidelity committed by the man is a ground for legal legitimate profession, occupation, business or
separation. activity or controlling the victims own money
or properties, or solely controlling the conjugal
Q: Lucita left the conjugal dwelling and filed a petition for or common money, or properties;
legal separation due to the physical violence, threats, 5. Inflicting or threatening to inflict physical harm on
intimidation and grossly abusive conduct she had suffered oneself for the purpose of controlling her actions or
at the hands of Ron, her husband. Ron denied such and decisions;
claimed that since it was Lucita who had left the conjugal 6. Causing or attempting to cause the woman or her child
abode, then the decree of legal separation should not be to engage in any sexual activity which does not
granted, following Art. 56 (4) of the FC which provides that constitute rape, by:
legal separation shall be denied when both parties have a. Force, or
given ground for legal separation. Should legal separation b. threat of force;
be denied on the basis of Rons claim of mutual guilt? c. physical harm, or
d. through intimidation directed against the woman
A: No. Art. 56 (4) of the FC does not apply since the or her child or her/his immediate family;
abandonment that is a ground for legal separation is 7. Engaging in purposeful, knowing, or reckless conduct,
abandonment without justifiable cause for more than one personally or through another that alarms or causes
year. In this case, Lucita left Ron due to his abusive conduct. substantial emotional or psychological distress to the
Such act does not constitute the abandonment woman or her child. This shall include, but not be
contemplated in the said provision. Since this is so, there is limited to, the following acts:
no mutual guilt between them as there is only one erring a. Stalking or following the woman or her child in
spouse (Ong Eng Kiam v. CA, GR No. 153206, October 23, public or private places;
2006). b. Peering in the window or lingering outside the
residence of the woman or her child;
Q: What acts are considered acts of violence under R.A. c. Entering or remaining in the dwelling or on the
9262? property of the woman or her child against her/his
will;
A: d. Destroying the property and personal
1. Causing, threatening to cause, or attempting to cause belongingness or inflicting harm to animals or pets
physical harm to the woman or her child; of the woman or her child; and
e. Engaging in any form of harassment or violence;
2. Placing the woman or her child in fear of imminent 8. Causing mental or emotional anguish, public ridicule or
physical harm; humiliation to the woman or her child, including, but
not limited to, repeated verbal and emotional abuse,
3. Attempting to compel or compelling the woman or her and denial of financial support or custody of minor
child: children of access to the womans child/children.
a. to engage in conduct which the woman or her child
has the right to desist from; or Q: What is a Protection Order under R.A. 9262?
b. desist from conduct which the woman or her child has
the right to engage in, A: Protection order is an order issued under this act for the
purpose of preventing further acts of violence against a
4. Attempting to restrict or restricting the womans or her woman or her child and granting other necessary relief. The
childs freedom of movement or conduct by: relief granted under a protection order serves the purpose of
a. Force, or safeguarding the victim from further harm, minimizing any
b. Threat of force; disruption in the victims daily life, and facilitating the
c. Physical, or opportunity and ability of the victim to independently regain
d. Other harm, or control over her life. The provisions of the protection order
e. Threat of physical or other harm; shall be enforced by law enforcement agencies. The

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39 FACULTY OF CIVIL LAW
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protection orders that may be issued under this Act are the Note: This case was decided under the Civil Code not under the
barangay protection order (BPO), temporary protection Family Code.
order (TPO) and permanent protection order (PPO).
What is the effect of failure to interpose prescription as a
Q: Who may file for protection order? defense?

A: A: None. While it is true that prescription was not interposed


1. The offended party; as a defense, nevertheless, the courts can take cognizance
2. Parents or guardians of the offended party; thereof, because actions seeking a decree of legal
3. Ascendants, descendants or collateral relatives within separation, or annulment of marriage, involve public interest
the fourth civil degree of consanguinity or affinity; and it is the policy of our law that no such decree be issued if
4. Officers or social workers of the DSWD or social workers any legal obstacles thereto appear upon the record (Brown v.
of local government units (LGUs); Yambao, G.R. No. L-10699, October 18, 1957).
5. Police officers, preferably those in charge of women
and childrens desks; Q: Rosa and Ariel were married in the Catholic Church of
6. Punong barangay or Barangay Kagawad; Tarlac, Tarlac on January 5, 1988. In 1990, Ariel went to
7. Lawyer, counselor, therapist or healthcare provider of Saudi Arabia to work. There, after being converted into
the petitioner; Islam, Ariel married Mystica, Rosa learned of the second
8. At least 2 concerned responsible citizens of the city or marriage of Ariel on January 1, 1992 when Ariel returned to
municipality where the violence against women and the Philippines with Mystica. Rosa filed an action for legal
their children occurred and who has personal separation on February 5, 1994.
knowledge of the offense committed.
1. Does Rosa have legal grounds to ask for legal
DEFENSES separation?
2. Has the action prescribed? (1994 Bar Question)
Q: What are the grounds for denial of petition for legal
separation? A:
1. Yes, the abandonment of Rosa by Ariel for more than
A: C
4
MP-DR one (1) year is a ground for legal separation unless upon
1. Condonation of the act complained of; returning to the Philippines, Rosa agrees to cohabit with
2. Consent to the commission of the offense/act; Ariel which is allowed under the Muslim Code. In this
3. Connivance in the commission of the act; case, there is condonation.
4. Collusion in the procurement of decree of LS;
5. Mutual guilt; The contracting of a subsequent bigamous marriage
6. Prescription: 5 yrs from occurrence of cause; whether in the Philippines or abroad is a ground for
7. Death of either party during the pendency of the case legal separation under Art. 55 (7) of the FC. Whether
(Lapuz-Sy v. Eufemio, G.R. No. L-31429, January 31, the second marriage is valid or not, Ariel having
1972); converted into Islam, is immaterial.
8. Reconciliation of the spouses during the pendency of
the case (Art. 56, FC) 2. No. Under Art. 57 of the FC, the aggrieved spouse must
file the action within 5 years from the occurrence of the
Q: What is the prescriptive period for filing a petition for cause. The subsequent marriage of Ariel could not have
legal separation? occurred earlier than 1990, the time he went to Saudi
Arabia. Hence, Rosa has until 1995 to bring the action
A: An action for legal separation shall be filed within five under the FC.
years from the time of the occurrence of the cause (Art. 57,
FC). An action filed beyond that period is deemed prescribed. COOLING-OFF PERIOD

Q: William filed a petition for legal separation in 1955 Q: What is the mandatory cooling-off period?
grounded on Juanitas adulterous relations allegedly
discovered by William in 1945. Was Williams action A: The requirement set forth by law that an action for legal
already barred by prescription? separation shall be in no case tried before 6 months has
elapsed since the filing of the petition, to enable the
A: Yes. Under Art. 102, NCC, an action for legal separation contending spouses to settle differences. In other words, it is
cannot be filed except within 1 year from and after the for possible reconciliation (Art. 58, FC).
plaintiff became cognizant of the cause and within five years
from and after the date when such cause occurred. The 6 months cooling-off period is a mandatory
requirement. Petition shall not be granted if it is not
In this case, Williams action is already barred because of his observed (Pacete v. Carriaga, G.R. No. L-53880 March 17,
failure to petition for legal separation proceedings until ten 1994).
years after he learned of his wife's adultery, which was upon
his release from internment in 1945 (Brown v. Yambao, G.R.
No. L-10699, October 18, 1957).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 40
PERSONS AND FAMILY RELATIONS
Note: There is no cooling-off period if the ground alleged are those depend upon the parties themselves. It is consonant with
under R.A. 9262 (Anti-violence against Women and Children). The this policy that the inquiry by the Fiscal should be allowed to
court can immediately hear the case. focus upon any relevant matter that may indicate whether
the proceedings for separation or annulment are fully
RECONCILIATION EFFORTS justified or not. (Brown v. Yambao, G.R. No. L-10699, October
18, 1957)
Q: What is required of the Court before legal separation
may be decreed? Q: Who may file, when and where should the petition for
legal separation be filed?
A: The Court shall take steps toward the reconciliation of the
spouses and must be fully satisfied, despite such efforts, that A:
reconciliation is highly improbable. (Art. 59, FC) Who may file Husband or wife
Within 5 years from the time of the
CONFESSION OF JUDGMENT When to file
occurrence of the cause
Family Court of the province or city
Q: What is the rule in rendering a judgment of legal
where the petitioner or the respondent
separation based upon a stipulation of facts or confession
has been residing for at least 6 months
of judgment?
Where to file prior to the date of filing or in case of a
non-resident, where he may be found in
A: A decree of legal separation cannot be issued solely on the
the Philippines, at the election of the
basis of a stipulation of facts or a confession of judgment.
petitioner
The grounds for legal separation must be proved. Neither
confession of judgment nor summary judgment is allowed
EFFECTS OF FILING PETITION
(Art. 60, FC).
Q: What are the effects of filing of a petition for legal
Note: What the law prohibits is a judgment based exclusively or
mainly on defendant's confession. (Ocampo v. Florenciano, G.R. No. separation?
L-13553, February 23, 1960)
A:
Q: After learning of Juanitas misconduct, William filed a 1. The spouses shall be entitled to live separately from
petition for legal separation. During his cross-examination each other.
by the Assistant Fiscal, it was discovered that William lived 2. In the absence of a written agreement between the
with a woman named Lilia and had children with her after parties, the court shall designate either the husband or
rd
the liberation. The court denied the petition on the ground the wife or a 3 person to administer the absolute
both of them had incurred in a misconduct of similar nature community or conjugal partnership property.
that barred the right of action under Art. 100, NCC.
EFFECTS OF PENDENCY
William argues that in cross-examining him with regard to
his marital relation with Lilia, who was not his wife, the Q: What is the effect of the death of plaintiff- spouse
Assistant Fiscal acted as counsel for Juanita when the before a decree of legal separation?
power of the prosecuting officer is limited to finding out
whether or not there is collusion, and if there is no A: The death of plaintiff before a decree of legal separation
collusion, to intervene for the state. Is his argument abates such action. Being personal in character, it follows
correct? that the death of one party to the action causes the death of
the action itself - actio personalis moritur cum persona. Even
A: The argument is untenable. It was legitimate for the Fiscal if property rights are involved, because these rights are mere
to bring to light any circumstances that could give rise to the effects of the decree of legal separation, being rights in
inference that Juanita's default was calculated, or agreed expectation, these rights do not come into existence as a
upon, to enable him to obtain the decree of legal separation result of the death of a party. Also under the Rules of Court,
that he sought without regard to the legal merits of his case. an action for legal separation or annulment of marriage is
One such circumstance is the fact of William's cohabitation not one which survives the death of spouse. (Lapuz v.
with Lilia, since it bars him from claiming legal separation by Eufemio, G.R. No. L-31429, January 31, 1972)
express provision of Art. 100 of the NCC. Such evidence of
misconduct is a proper subject of inquiry as they may Q: May the heirs of the deceased spouse continue the suit
justifiably be considered circumstantial evidence of collusion (petition for decree of legal separation) if the death of the
between the spouses. spouse takes place during the pendency of the suit?

Art. 101 of the NCC, calling for the intervention of the state A: No. An action for legal separation is purely personal,
attorneys in case of uncontested proceedings for legal therefore, the death of one party to the action causes the
separation (and of annulment of marriages, under Art. 88) death of the action itself action personalis moritur cum
emphasizes that marriage is more than a mere contract; that persona.
it is a social institution in which the state is vitally interested,
so that its continuation or interruption cannot be made Note: Incases where one of the spouses is dead, or where the
deceaseds heirs continue the suit, separation of property and any

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41 FACULTY OF CIVIL LAW
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forfeiture of share already effected subsists, unless spouses agree to Q: Which of the following remedies,
revive former property regime. a. declaration of nullity of marriage,
b. annulment of marriage,
EFFECTS OF LEGAL SEPARATION c. legal separation, and/or
d. separation of property,
Q: What are the effects of decree of legal separation? can an aggrieved spouse avail himself/herself of:

A: a. If the wife discovers after the marriage that her husband


1. Spouses entitled to live separately; has AIDS?

Note: Marriage bond not severed A: Since AIDS is a serious and incurable sexually transmissible
disease, the wife may file an action for annulment of the
2. ACP/CPG shall be dissolved and liquidated; marriage on this ground whether such fact was concealed or
not from the wife, provided that the disease was present at
Note: But offending spouse shall have no right to any share of
the time of the marriage. The marriage is voidable even
the net profits earned by the AC/CP which shall be forfeited in
according w/ Art. 43(2). though the husband was not aware that he had the disease
at the time of marriage.
3. Custody of minor children is awarded to the innocent
spouse (subject to Art. 213, FC); b. If the wife goes to abroad to work as a nurse and refuses
4. Offending spouse is disqualified to inherit from innocent to come home after the expiration of her three-year
spouse by intestate succession; contract there?
5. Provisions in the will of innocent spouse which favors
offending spouse shall be revoked by operation of law; A: If the wife refuses to come home for three (3) months
6. Innocent spouse may revoke donations he/she made in from the expiration of her contract, she is presumed to have
favor of offending spouse; abandoned the husband and he may file an action for judicial
separation of property. If the refusal continues for more than
Note: Prescriptive period: 5 years from finality of decree of one year from the expiration of her contract, the husband
legal separation may file the action for legal separation under Art. 55(10) of
the FC on the ground of abandonment of petitioner by
7. Innocent spouse may revoke designation of offending respondent without justifiable cause for more than one year.
spouse as beneficiary in any insurance policy, even The wife is deemed to have abandoned the husband when
when stipulated as irrevocable. she leaves the conjugal dwelling without any intention of
returning (Art. 101, FC). The intention not to return cannot
Note: An action for legal separation which involves nothing more be presumed during the 30 year period of her contract.
than bed-and-board separation of the spouses is purely personal.
The Civil Code recognizes this by: c. If the husband discovers after the marriage that his wife
1. By allowing only the innocent spouse and no one else to has been a prostitute before they got married?
claim legal separation;
2. By providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of A: If the husband discovers after the marriage that his wife
legal separation already granted (Lapuz v. Eufemio, G.R. No. was a prostitute before they got married, he has no remedy.
L-31429, January 31, 1972). No misrepresentation or deceit as to character, health, rank,
fortune or chastity shall constitute fraud as legal ground for
Q: May the wife who has been granted legal separation an action for the annulment of marriage (Art. 46, FC).
petition be allowed to revert to her maiden name?
d. If the husband has a serious affair with his secretary and
A: No. The marriage bond not having severed, the woman refuses to stop notwithstanding advice from relatives and
remains to be the lawful wife of the man. friends?

Note: Even under the NCC, the use of the husband's surname during A: The wife may file an action for legal separation. The
the marriage (Art. 370, NCC), after annulment of the marriage (Art. husbands sexual infidelity is a ground for legal separation
371, NCC) and after the death of the husband (Art. 373, NCC) is (Art. 55, FC). She may also file an action for judicial
permissive and not obligatory except in case of legal separation (Art. separation of property for failure of her husband to comply
372, NCC). Under the present article of our Code, however, the word
with his marital duty of fidelity (Art. 135(4), 101, FC).
"may" is used, indicating that the use of the husband's surname by
the wife is permissive rather than obligatory. We have no law which
provides that the wife shall change her name to that of the husband e. If the husband beats up his wife every time he comes
upon marriage. This is in consonance with the principle that home drunk? (2003 Bar Question)
surnames indicate descent. It seems, therefore, that a married
woman may use only her maiden name and surname. She has an A: The wife may file an action for legal separation on the
option, but not a duty, to use the surname of the husband in any of ground of repeated physical violence on her person (Art.
the ways provided by this Article (Yasin v. Hon. Judge Shariah 55(1), FC). She may also file an action for judicial separation
District court, G.R. No. 94986, February 23, 1995).
of property for failure of the husband to comply with his
marital duty of mutual respect (Art. 135(4), Art. 101, FC). She
may also file an action for declaration of nullity of the
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marriage if the husbands behavior constitutes psychological This is an exception to the Rules of Court provision that defenses not
incapacity existing at the time of the celebration of marriage. raised in the pleadings will not be considered since provisions on
marriage are substantive in nature.(Brown v. Yambao, G.R. No. L-
10699, October 18, 1957)
Q: What will happen to the donations made by the spouses
to each other?
Q: Does reconciliation automatically revive the former
property regime of the spouses?
A: The revocation of the donations shall be recorded in the
registries of property in the places where the properties are
A: No. If the spouses want to revive the previous property
located. Alienations, liens and encumbrances registered in
regime, they must execute an agreement to revive the
good faith before the recording of the complaint for
former property regime, which agreement shall be
revocation in the registries of property shall be respected.
submitted in court, together with a verified motion for its
The revocation of or change in the designation of the
approval. (Art. 67, FC)
insurance beneficiary shall take effect upon written
notification thereof to the insured.
The agreement to revive must be under oath and specify:
1. The properties to be contributed anew to the
The action to revoke the donation must be brought within
restored regime;
five years from the time the decree of legal separation has
2. Those to be retained as separated properties of
become final.
each spouse; and
3. The names of all their known creditors, their
RECONCILIATION
addresses and the amounts owing to each.
Q: What are the effects of reconciliation?
Q: What if there is reconciliation between the spouses
while the petition is being heard by the court?
A:
1. As to the Decree:
A:
a. During the pendency of the case: LS proceedings
1. If the spouses should reconcile, a corresponding joint
terminated at whatever stage
manifestation under oath duly signed by them shall be
b. After the issuance of the decree: Final decree of LS
filed with the court in the same proceeding for legal
to be set aside
separation.
2. The legal separation proceedings, if still pending, shall
2. As to the Property Regime:
thereby be terminated at whatever stage; and
GR: With respect to separation of properties, the same
3. The final decree of legal separation shall be set aside, but
shall subsist.
the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless
XPN: The parties, however, can come into an
the spouses agree to revive their former property regime.
agreement to revive their previous regime. Their
The court's order containing the foregoing shall be
agreement must be under oath and must contain a
recorded in the proper civil registries
list of the properties desired to be returned to the
community or conjugal property and those which
will remain separate, a list of creditors and their
addresses.

3. As to capacity to succeed: The Family Code does not


provide for the revival of revoked provisions in a will
originally made in favor of the offending party as a
result of the LS. This absence gives the innocent spouse
the right to choose whether the offending spouse will
be reinstituted.

4. As to the forfeited shares: Those given to the children


cannot be returned since the spouses are no longer the
owners of such. But those given to the innocent spouse
may be returned.

Note: In an action for legal separation on the ground of adultery


filed by the husband, even though the defendant wife did not
interpose the defense of prescription, nevertheless, the courts can
take cognizance thereof, because actions seeking a decree of legal
separation or annulment of marriage, involve public interest, and it
is the policy of our law that no such decree be issued if any legal
obstacles thereto appear upon the record. Also, the husband was
guilty of commission of the same offense by living with another
woman.

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Q: How do Declaration of Nullity of Marriage, Annulment of Marriage and Legal Separation differ from each other?

A:

DECLARATION OF NULLITY OF MARRIAGE ANNULMENT LEGAL SEPARATION

Marriage bond
No effect, marriage bond
Dissolved Dissolved
remains valid
Status of children
GR: Illegitimate

XPN: Children conceived or born of marriages before Legitimate


declaration of nullity under Arts. 36 and 53 considered
legitimate
Property relations
ACP/CPG shall be dissolved & liquidated. [Art. 43 (2)]
GR: Governed either by Article 147 or Article 148 of the Family
Code. Thus, property regime shall be liquidated pursuant to the Share of spouse, who contracted the subsequent marriage in
ordinary rules on co-ownership. bad faith, in the net profits of the community property or
conjugal partnership, shall be forfeited in favor of the
XPN: Marriages declared void under Art. 40 which shall be common children, or
liquidated in accordance with Art. 43 (2). (Valdes v. RTC,
G.R. No. 122749. July 31, 1996). If there are none, the children of the guilty spouse by a
previous marriage, or

in default of children, the innocent spouse


Donations propter nuptias
GR: Shall remain valid. [Art. 43 (3)]

XPN:
1. if donee contracted the marriage in bad faith, such
donations made to said donee shall be revoked by
operation of law.
2. if both spouses to the marriage acted in bad faith, all
donations propter nuptias shall be revoked by operation
of law.
Insurance
If one spouse acted in bad faith, innocent spouse may revoke
his designation as beneficiary in the insurance policy even if
such designation be stipulated as irrevocable. [Art. 43 (4)]
Succession
If one spouse contracted the marriage in bad faith, he shall be
disqualified to inherit from innocent spouse by testate and
intestate succession. [Art. 43 (5)]

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE b. Observe mutual love, respect, fidelity
c. Render mutual help and support
ESSENTIAL OBLIGATIONS 2. Fix the family domicile (Art. 69, FC)

Q: What are the rights and obligations of the spouses? Note: In case of disagreement the Court shall decide.

A: 3. Jointly support the family (Art. 70, FC)


1. Essential marital obligations (EMO): LOR a. Expenses shall be paid from the community
a. Live together property
b. In the absence thereof from the income or fruits
Note: Includes consortium and copulation of their separate properties

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c. In the absence or insufficiency thereof from their a. affecting property not situated in the
separate properties Philippines; and
4. Manage the household (Art. 71, FC) b. executed in the country where the property
5. Not to neglect duties, or commit acts which tend to is located;
bring danger, dishonor, or injury to family (Art. 72, FC) 3. With respect to extrinsic validity of contracts:
6. Either spouse may practice any legitimate a. entered into in the Philippines; but
profession/business, even without the consent of the b. affecting property situated in a foreign
other. country whose laws require different
formalities for its extrinsic validity
Note: The other spouse may object on valid, serious and
moral grounds. In case of disagreement, the court shall Q: What governs the property relations of spouses?
decide whether:
a. Objection is proper; and
A: The property relations shall be governed by the ff. in the
b. Benefit has accrued to the family prior to the objection
or thereafter. If the benefit accrued prior to the stated order:
objection, the resulting obligation shall be enforced 1. Marriage settlement
against the community property. If the benefit accrued 2. Provisions of the FC
thereafter, such obligation shall be enforced against the 3. Local custom
separate property of the spouse who has not obtained
consent. (Art. 73, FC as amended by R.A. 10572) Q: Marriage being a contract, may the parties enter into
stipulations which will govern their marriage?
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith
A: Yes, only as to their property relations during the
marriage subject only to the condition that whatever
Q: What are the other obligations of spouses?
settlement they may have must be within the limits
provided by the Family Code. However, the nature,
A:
consequences, and effects of marriage cannot be subject to
1. Exercise the duties and enjoy the rights of parents;
stipulation. (Rabuya, 2006, p. 398)
2. Answer for civil liability arising from injuries caused by
children below 18;
Note: Future spouses may agree upon the regime of absolute
3. Exercise parental authority over childrens property community of property, conjugal partnership of gains, absolute
(Republic v. CA, Molina, G.R. No. 108763, February 13, separation of property or any other regime.
1997).
Q: Are rights over share in the community or conjugal
Q: May the performance of essential marital obligations property waivable during the marriage?
be compelled by court?
A: GR: No.
A: GR: Performance of EMO under Art. 68 cannot be
compelled by court because it will be a violation of personal XPN: In case of judicial separation of property.
liberty.
Note: The waiver must be in a public instrument and recorded in
XPN: Giving support (Arroyo v. Arroyo, G.R. No. L-17014, the office of the local civil registrar where the marriage contract
August 11, 1921) was recorded as well as in the proper registry of property.

Q: When may the Court exempt one spouse from living MARRIAGE SETTLEMENTS
with the other?
Q: What is a marriage settlement (MS)?
A:
1. If one spouse should live abroad. A: It is a contract entered into by spouses about to be
2. Other valid and compelling reasons. married for the purpose of fixing the terms and conditions
of their property relations with regard to their present and
Note: The Court shall not grant the exemption if it is not future property.
compatible with the solidarity of the family.
It is also referred to as Ante Nuptial Agreement or
Q: What law shall govern the property relations of Matrimonial Contract. (Pineda, 2008 ed.)
spouses?
Q: What are the requisites of a valid MS?
A: GR: Philippine laws shall govern, regardless of place of
celebration and residence of spouses, in the absence of A: I-SER
contrary stipulation in a marriage settlement. (Art. 80, FC) 1. In writing;
2. Signed by the parties;
XPN: Lex rei sitae applies: 3. Executed before the celebration of marriage;
rd
1. Where both spouses are aliens; 4. Registration (to bind 3 persons)
2. With respect to the extrinsic validity of contracts:

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45 FACULTY OF CIVIL LAW
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Note: The provisions in the marriage settlement must be in 1. There must be marriage settlement (MS) stipulating a
accordance with law, morals or public policy, otherwise such property regime other than ACP;
agreement is void (Paras, book I, p. 516). 2. Donation in the MS be not more that 1/5 of the
present property;
3. There must be acceptance by the other spouse.

Q: What are the additional requirements for the validity of Q: What is the effect of donations of property which is
the MS? subject to encumbrances?

A: A: Such donations are valid. In case of foreclosure of the


ADDITIONAL encumbrance and the property is sold for more less than
FACTUAL SITUATION
REQUIREMENT the total amount of the obligation secured, the donee shall
The ff. must be made a not be liable for the deficiency. If the property is sold for
If one of both of the parties
party to the MS, more than the total amount of the obligation, the done
are:
otherwise the MS is void: shall be entitled to the excess. (Art. 85, FC)
Parents; or
18-21 years old those required to give VOID DONATIONS BY THE SPOUSES
consent
Sentenced with civil Guardian appointed by the Q: What is the rule regarding donations made between
interdiction court spouses?
Guardian appointed by the
Disabled A:
court
1. Before the marriage:
Q: May a marriage settlement be modified?
GR: Future spouses cannot donate to each other more
than 1/5 of their present property (Excess shall be
A: Yes. For any modification in the MS to be valid:
considered void)
1. The requisites for a valid MS must be present;
2. There must be judicial approval;
XPN: If they are governed by ACP, then each
3. Subject to the provisions of Arts. 66, 67, 128, 135,
spouse can donate to each other in their marriage
and 136.
settlements present property without limit,
provided there is sufficient property left for their
Q: What is the effect on the ante-nuptial agreement in
support and the legitimes are not impaired.
case the marriage is not celebrated?
2. During the marriage:
A: GR: Everything stipulated in the settlements or contracts
in consideration of the marriage shall be rendered void.
GR: Every donation or grant of gratuitous advantage,
direct or indirect, between spouses is considered void.
XPN: Those not dependent upon or is not made in
consideration of the marriage subsists.
XPN: Moderate gifts on the occasion of any family
rejoicing.
DONATIONS BY REASON OF MARRIAGE
Note: The aforementioned rules also apply to common law
Q: When are donations considered as donations by reason spouses.
of marriage?
Q: Why are donations between spouses during marriage
A: Those donations which are made before the celebration considered void?
of the marriage, in consideration of the same, and in favor
of one or both of the future spouses. A:
1. To protect unsecured creditors from being defrauded;
Q: What are the requisites for donations propter nuptias 2. To prevent the stronger spouse from imposing upon
(DPN)? the weaker spouse transfer of the latters property to
the former;
A: 3. To prevent indirect modification of the marriage
1. Made before celebration of marriage; settlement.
2. Made in consideration of the marriage;
3. Made in favor of one or both of the future spouses. Q: What if the parties agree upon a regime other than
absolute community of property?
Q: What are the requisites if donation be made by one
spouse in favor of the other? A: They cannot donate to each other in their marriage
settlements more than 1/5 of their present property. Any
A: excess is considered void.

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Note: Donations of future property are governed by provisions on 5. If with a resolutory condition which was complied with
testamentary succession and formalities of wills. 6. Donee has committed an act of ingratitude

Q: What are the donations that may be revoked by the


donor?

A: A donation by reason of marriage may be revoked by the


donor in the following cases:
1. Marriage is not celebrated or judicially declared void ab
initio

XPN: donations made in the marriage settlements

2. Marriage takes place without the required consent of


parents or guardians
3. Marriage is annulled and done acted in bad faith
4. Upon legal separation, the donee being the guilty
spouse

Q: What are the grounds for filing an action for revocation of a DPN and what are their respective prescriptive periods?

A:
PRESCRIPTIVE PERIOD
GROUNDS (Art. 86)
Period Reckoning Point
1. Marriage is not celebrated Time the marriage was not solemnized
5 yrs
XPN: Those automatically rendered void by law on the fixed date. (art. 1149)
Ground for nullity:
a. Contracted subsequent marriage
Revoked by operation of law
2. Marriage is judicially before prior marriage has been
declared void judicially declared void
Finality of judicial declaration of nullity
b. any other grounds 5 yrs
(if action is to recover property)
Time the donor came to know that the
3. Marriage took place without consent of parents or guardian, when
5 yrs required parental consent was not
required by law
obtained.
4. Marriage is annulled and donee acted in bad faith 5 yrs Finality of decree
5. Upon legal separation (LS), donee being the guilty spouse 5 yrs Time decree of LS has become final
6. Donation subject to resolutory condition which was complied with 5 yrs Happening of the resolutory condition.
From donors knowledge of the
7. Donee committed an act of ingratitude 1 yr
commission of an act of ingratitude.

Note: Acts of ingratitude:


1. Commission of an offense against the person, honor or property of the donor, his wife or his children under his parental authority
2. GR: Imputation to the donor any criminal offense or any act involving moral turpitude
XPN: if the crime was committed against the donee himself, his wife or his children under his authority
3. Undue refusal to support the donor when he is legally or morally bound to give such support.

PROPERTY RELATIONS OF THE SPOUSES

Q: What are the different property regimes which may be adopted by future spouses?

A:
1. Absolute Community of Property (ACP)
2. Conjugal Partnership of Gains (CPG)
3. Absolute Separation of Property (ASOP)
4. Any other regime within limits provided by the FC

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47 FACULTY OF CIVIL LAW
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Q: Distinguish ACP, CPG and ASOP.

A:
ACP CPG ASOP

When it applies

1. When future spouses adopt it in a


marriage settlement
2. ACP or CPG is dissolved
When spouses:
3. Prior marriage is dissolved due to
1. Adopt it in a marriage settlement;
death of one spouse and surviving
2. Do not choose any economic When the future spouses adopt it in a
spouse failed to comply with the
system; or marriage settlement.
requirements under Art. 103
3. Adopted a different property
(judicial settlement proceeding of
regime and the same is void.
the estate of deceased spouse)
4. By judicial order. Judicial separation
of property may either be voluntary
or for sufficient cause.

Consist of
Each spouse retains his/her property
All the properties owned by the spouses before the marriage and only the fruits
at the time of marriage become and income of such properties become
community property part of the conjugal properties during the
marriage
Effect of separation in fact
The separation in fact shall not affect the regime of ACP, but:
1. The spouse who leaves the conjugal home or refuses to live therein, without
just cause, shall not have the right to be supported;
2. When consent of one spouse to any transaction of the other is required by law,
judicial authorization shall be obtained in a summary proceeding.
3. In case of insufficiency of community or conjugal partnership property, separate
property of both spouses shall be solidarily liable for the support of the family.
Spouse present shall, upon proper petition in a summary proceeding, be given
judicial authority to administer or encumber any specific separate property of
the other spouse and use the fruits or proceeds thereof to satisfy the latters
share. (Arts. 100 & 127, FC)
Effect of dissolution
Upon dissolution and liquidation of the Upon dissolution of the partnership, the
community property, what is divided separate property of the spouses are
equally between the spouses or their returned and only the net profits of the
heirs is the net remainder of the partnership are divided equally between
properties of the ACP. the spouses of their heirs.

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Q: When do the property regimes commence? ABSOLUTE COMMUNITYY

A: Property regimes commence at the precise moment of GENERAL PROVISIONS


the celebration of the marriage.
Q: When shall the absolute community of property
Q: In the absence of a marriage settlement, what property commence?
regime governs the property relations of spouses?
A: At the precise moment of the celebration of the
A: GR: Absolute community of property (Art. 75, FC) marriage. i.e. actual time the marriage is celebrated on a
certain date.
XPNs:
1. For marriages contracted prior to the effectivity Note: Any stipulation, express or implied, for the commencement
of the Family Code on August 3, 1988, conjugal of the community regime at any other time shall be void.
partnership of gains shall govern the property
relations. This is so because Art. 119 of the NCC Q: What law governs the absolute community of
will apply. The provisions of the FC shall have no property?
retroactive effect because it shall impair vested
rights. A:
1. Family code
2. Subsequent marriage contracted within one year 2. Provisions on co-ownership
from the death of the deceased spouse without
liquidation of the community property or conjugal Q: What constitutes the community property?
partnership of gains, either judicially or
extrajudicially, as required under Arts. 103 and A:
130 of the FC. In such case, a mandatory regime Includes:
of complete separation of property shall govern 1. All the property owned by the spouses:
the subsequent marriage. (Rabuya, Civil Law a. at the time of the celebration of the marriage; or
Reviewer, p. 100). b. acquired thereafter;
2. Property acquired during the marriage by gratuitous
Q: What are the grounds for the revival of a former title, if expressly made to form part of the community
property regime? property by the donor, testator or grantor;
3. Jewelries, etc.;
A: 1-CAR-APS 4. Winnings in gambling.
1. Civil interdiction of the prisoner-spouse
terminates; Excludes:
2. Absentee spouse reappears 1. Property acquired during the marriage by gratuitous
3. Court authorizes Resumption of administration by title and its fruits as well as income thereof;
the spouse formerly exercising such power;
4. Spouse who has Abandoned the conjugal home XPN: If expressly provided by the donor, testator or
returns and resumes common life with the other; grantor that they shall form part of the community
5. Parental authority is judicially restored to the property
spouse previously deprived thereof;
6. Reconciliation and resumption of common life of 2. Property for personal and exclusive use of either
spouse who had been separated in fact for at spouse;
least 1 year;
7. Spouses agree to revive their former property XPN: Jewelries shall form part of the ACP because of
regime. their monetary value.

Q: What are the grounds for transfer of administration of 3. Property acquired before the marriage by one with
the exclusive property of each spouse? legitimate descendants by former marriage and its
fruits and income, if any;
A: When one spouse: CFAG 4. Those excluded by the marriage settlement.
1. is sentenced to penalty with Civil interdiction;
2. becomes a Fugitive from justice or is hiding as an Q: In absence of evidence, does property acquired during
accused in a criminal case; the marriage belong to the community property?
3. is judicially declared Absent;
4. becomes a Guardian of the other. A: Property acquired during the marriage is presumed to
belong to the community, unless proven otherwise by
Note: Transfer of administration of the exclusive property of either strong and convincing evidence. (Art. 93, FC)
spouses does not confer ownership over the same (Rodriguez v. De
la Cruz, GR No. 3629, September 28, 1907). Q: Mister, without Misis consent, executed a special
power of attorney in favor of Drepa in order to secure a
loan to be secured by a conjugal property, which loan was

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49 FACULTY OF CIVIL LAW
CIVIL LAW
later obtained. When the loan was not paid, the mortgage 125283, February 10, 2006).
was foreclosed and sold on auction. Misis seeks the
declaration of the mortgage and sale as void invoking Art. Q: Will losses in gambling be charged upon the community
124 of the FC. Will the wifes action prosper? property?

A: Yes. The settled rule is that the sale or encumbrance of a A: No (Art. 95). However, any winnings therefrom shall
conjugal property requires the consent of both the husband form part of the community property.
and the wife (Guiang v. CA, 353 Phil. 578). The absence of
the consent of one renders the entire sale or encumbrance CHARGES UPON AND OBLIGATIONS OF THE COMMUNITY
null and void, including the portion of the conjugal property PROPERTY
pertaining to the husband who contracted the sale. Neither
would the conjugal partnership be liable for the loan on the Q: What are the charges upon the ACP?
ground that it redounded to the benefit of the family. The
sweeping conclusion that the loan was obtained by the A:
husband in order to finance the construction of housing 1. The support of
units, without however adducing adequate proof, does not a. the spouses
persuade (Homeowners Savings & Loan Bank v. Dailo, G.R. b. their common children
No. 153802, March 11, 2005). c. legitimate children of either spouse;
2. All debts and obligations contracted during the
Q: In a sale of a piece of land that she and her husband, marriage by:
David, owned, Lorenza, who witnessed the sale, signed on a. the designated administrator-spouse for the
the page reserved for witnesses to the deed. When the benefit of the community
buyer sought to register the sale, it was denied by the b. by both spouses
Register of Deeds for lack of the wife's consent to the sale. c. by one spouse with the consent of the other;
Decide. 3. Debts and obligations contracted by either spouse
without the consent of the other to the extent that the
A: The register of deeds is incorrect. A wife, by affixing her family may have been benefited;
signature to a deed of sale on the space provided for 4. All taxes, liens, charges and expenses, including major
witnesses, is deemed to have given her implied consent to or minor repairs, upon the community property;
the contract of sale. The consent need not always be 5. All taxes and expenses for mere preservation made
explicit or set forth in any particular document so long as it during marriage upon the separate property of either
is shown by acts of the wife that such consent or approval spouse used by the family;
was in fact given (Pelayo v. Perez, G.R. No. 141323, June 8, 6. Expenses to enable either spouse to commence or
2005). complete a professional or vocational course, or other
activity for self-improvement;
Note: In this case, it will be noted that the sale was entered into 7. Ante-nuptial debts of either spouse insofar as they
prior to the effectivity of the FC. Because of such, Art. 173, in have redounded to the benefit of the family;
relation to Art. 166 of the NCC would have applied if there was a 8. The value of what is donated or promised by both
finding of lack of the wife's consent. Under said provisions, the sale spouses in favor of their common legitimate children
would have been merely voidable, and not void.
for the exclusive purpose of commencing or
completing a professional or vocational course or
Q: Andres sold a parcel of land belonging to the conjugal
other activity for self-improvement;
partnership to Pepito. Days before the sale, Kumander, his
9. Payment, in case of absence or insufficiency of the
wife, assented to such by signing a document entitled
exclusive property of the debtor-spouse, of:
"Marital Consent" contained in a jurat, which was then
a. Ante-nuptial debts of either spouse which did not
sworn to before the same notary public who notarized the
redound to the benefit of the family;
deed of sale, and then appended to the deed of sale itself.
b. the support of illegitimate children of either
Is the conveyance valid?
spouse;
c. liabilities incurred by either spouse by reason of a
A: It depends. The use of the jurat, instead of an
crime or quasi-delict;
acknowledgment, does not elevate the marital consent into
the level of a public document but instead consigns it to the Note: The payment of which shall be considered as advances
status of a private writing. Hence, the presumption of to be deducted from the share of the debtor-spouse upon
regularity does not apply and the wife still needs to prove liquidation of the community
its genuineness and authenticity as required under the
rules of evidence (Pan Pacific Industrial Sales Co., Inc. v. CA, 10. Expenses of litigation between the spouses.
G.R. No. 125283, February 10, 2006)
XPN: If suit is found to be groundless, it cannot be
Note: The fact that the document contains a jurat, and not an charged against the ACP.
acknowledgment, should not affect its genuineness or that of the
related document of conveyance itself, the Deed of Absolute Sale.
Q: An individual, while single, purchases a house and lot in
In this instance, a jurat suffices as the document only embodies the
manifestation of the spouse's consent, a mere appendage to the 1990 and borrows money in 1992 to repair it. In 1995,
main document (Pan Pacific Industrial Sales Co., Inc. v. CA, G.R. No. such individual is married while the debt is still being paid.

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2013 GOLDEN NOTES 50
PERSONS AND FAMILY RELATIONS
After the marriage, is the debt still the responsibility of person which may be perfected as a binding contract upon
such individual? (2007 Bar Question) acceptance by the spouse or court approval.

A: No. Ante-nuptial debts of either spouse shall be Q: When may one spouse resort to obtaining court
considered as the liability of the absolute community of approval for any alienation, encumbrance or disposition of
property insofar as they have redounded to the benefit of community property?
the family.
A: In absence of the written consent of the other spouse.
OWNERSHIP, ADMINISTRATION, ENJOYMENT AND
DISPOSITION OF THE COMMUNITY PROPERTY Q: What if the community property is insufficient to cover
the foregoing liabilities?
Q: To whom does the right of administration of the
community property belong to? A: GR: The spouses shall be solidarily liable for the unpaid
balance with their separate properties.
A: GR: It belongs to both spouses jointly.
XPN: Those falling under paragraph 9 of Art. 94.
XPN: If one spouse is incapacitated or otherwise (Ante-nuptial debts, support of illegitimate children,
unable to participate in the administration of the liabilities incurred by spouse by reason of a crime or
common properties capacitated or able spouse quasi-delict) in which case the exclusive property
may assume sole powers of administration of the spouse who incurred such debts will be liable.
However, if the exclusive property is insufficient,
But such powers do not include: DAE payment will be considered as advances to be
1. Disposition; deducted from share of debtor-spouse. (Art. 94 (9),
2. Alienation; or FC)
3. Encumbrance
of the conjugal or community property. Q: What is the rule on donating a community property by
a spouse?
Q: In case of disagreement, whose decision shall prevail?
A: GR: A spouse cannot donate any community property
A: That of the husband but subject to recourse to the court without the consent of the other.
by the wife for proper remedy.
XPN: Moderate donations for charity or on occasion
Note: Prescriptive period for recourse is within 5 years from the of family rejoicing or distress. (Art. 98, FC)
date of the contract implementing such decision.
Q: Will the separation in fact between husband and wife
Q: In cases of alienation, disposition or encumbrance of affect the regime of absolute community?
the community property, and one spouse is incapacitated
or unable to participate in the administration of the A: GR: No.
community property, is the approval of one spouse
enough for said alienation, disposition or encumbrance to XPNs:
be valid? 1. Spouse who leaves the conjugal home or refuses
to live therein without just cause has no right
A: No. Both spouses must approve any dispositions or to be supported
encumbrances, and consent of the other spouse regarding 2. When consent of one spouse to any transaction
the disposition must be in writing, otherwise, the matter of the other is required by law, judicial
should be brought to court and the court will give the authorization must be obtained
authority, if proper. 3. If community property is insufficient, the separate
property of both spouses shall be solidarily
Such consent or court approval must be obtained before liable for the support of the family
the alienation, etc., otherwise, such will be void and
obtaining such consent or court approval afterwards will Q: If a spouse abandons without just cause his family or
not validate the act. A void act cannot be ratified. fails to comply with obligations to the family, what are the
remedies of the spouse present?
Q: What if one spouse acts without the consent of the
other or without court approval? A: Petition the court for:
1. Receivership;
A: If one spouse acts without the consent of the other or 2. Judicial separation of property;
without court approval, such disposition or encumbrance is 3. Authority to be the sole administrator of the absolute
void. community.

However, the transaction shall be construed as a continuing


rd
offer on the part of the consenting spouse and the 3

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51 FACULTY OF CIVIL LAW
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Q: When is there abandonment? 6. Adjudication of conjugal dwelling and custody of
common children. (Art. 102, FC)
A: When a spouse leaves the conjugal dwelling without
intention of returning. Q: What is the applicable procedure in the dissolution of
the ACP in case the marriage is terminated by death?
Note: Three months disappearance without any information as to
the spouses whereabouts shall be prima facie presumption of A: Community property shall be liquidated in the same
abandonment of the other spouse. (Art. 101, FC) proceeding for the settlement of the estate of the
deceased.
Q: May spouses sell property to each other?
If no judicial proceeding is instituted, the surviving spouse
A: GR: No, such sale is considered void shall, judicially or extra-judicially, liquidate the community
property within 1 year from the death of the deceased
XPNs: spouse. (Art. 103, FC)
1. When a separation of property was agreed upon
in the marriage settlement; Q: What if the surviving spouse failed to liquidate the
2. When there has been a judicial separation of community property within 1 year from the death of the
property under Articles 135 and 136 of FC (Art. deceased spouse contrary to Art. 103, FC?
1490, NCC).
A: Failure to do so would render any disposition or
Note: The proscription against the sale of property between
encumbrance involving community property of the
spouses under Art. 1490 applies even to common law
relationships. In an earlier ruling, the SC nullified a sale made by a terminated marriage void.
husband in favor of a concubine, after he had abandoned his family
and left the conjugal home where his wife and children lived, and CONJUGAL PARTNERSHIP OF GAINS
from whence they derived their support, for being contrary to
morals and public policy. The sale was regarded by the court as GENERAL PROVISIONS
subversive of the stability of the family, a basic social institution
which public policy cherishes and protects (Ching v. CA, GR No. Q: What is the regime of CPG?
165879, November 10, 2006).
A: It is the property relation formed by the husband and the
DISSOLUTION OF COMMUNITY REGIME
wife by placing in a common fund:
1. the proceeds, product, fruits and income of their
Q: How is the ACP terminated?
separate properties;
2. those acquired by either or both of them through:
A:
a. effort
1. Death of either spouse;
b. chance
2. Legal separation;
3. Annulment;
Q: When shall the conjugal partnership commence?
4. Judicial separation of property during marriage (Art.
A: At the precise moment when the marriage ceremony is
99, FC)
celebrated.
LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS
Q: What law governs the conjugal partnership?
AND LIABILITIES
A: The rules on the contract of partnership in all that is not
Q: What is the applicable procedure in case of dissolution
in conflict with what is expressly determined in the FC and
of ACP?
by the spouses in their marriage settlements (Art. 108, FC).
A:
EXCLUSIVE PROPERTY OF EACH SPOUSE
1. Inventory of all properties of the ACP, excluding
separate property of each spouse; Q: What are the exclusive properties of the spouses?
2. Payment of community debts;
A:
Note: First, pay out of the community assets. If not enough, 1. Those brought into the marriage as his/her own;
husband and the wife are solidarily liable for the unpaid
balance with their separate properties. Note: A property purchased before the marriage and fully
paid during the marriage remains to be a separate property
3. Delivery to each spouse of his/her remaining exclusive of either spouse (Lorenzo v. Nicolas, L-4085, July 30, 1952).
properties;
4. Equal division of net community assets 2. Those acquired during the marriage by gratuitous title;
Unless there is: 3. Those acquired by right of redemption, barter or
a. An agreement for a different proportion; or exchange with exclusive property;
b. A voluntary waiver of such share; 4. That purchased with exclusive money of either spouse.
5. Delivery of the presumptive legitimes of the children;

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PERSONS AND FAMILY RELATIONS
Note: The controlling factor is the source of the money used, Note: In either case, any amount advanced by the partnership or
or the money promised to be paid (Rivera v. Bartolome, C.A., by either or both spouses shall be reimbursed by the owner/s upon
40 O.G. 2090). liquidation of the partnership.

Note: Either spouse may mortgage, encumber, alienate or Q: Yamane asserts that the parcel of land, which was
otherwise dispose of his or her exclusive property (Art. 111 as purchased at auction, belonged to the conjugal
amended by R.A. 10572) partnership of him and his late wife. In the title, his name
appeared to be merely descriptive of the civil status of the
Q: What are the rules in cases of improvement of registered owner, his late wife. The purchase took place
exclusive property? prior to the advent of the Family Code. Is the property
conjugal or paraphernal property of his late wife?
A:
1. Reverse accession If the cost of the improvement and A: Conjugal. In this case, the provisions of the NCC would
the additional value is more than the value of the apply since the purchase took place before the FC took
principal property at the time of the improvement, the effect. Under Art. 160 of the NCC, all property of the
entire property becomes conjugal. marriage is presumed to belong to the conjugal
2. Accession If the cost of the improvement and the partnership, unless it be proved that it pertains exclusively
additional value is equal to or less than the value of to the husband or the wife. In this case, there was no proof
the principal property, the entire property becomes that the property had been acquired exclusively by
the exclusive property of the spouses Yamane's late wife. The mere registration of a property in
the name of one spouse does not destroy its conjugal
Note: In either case, there shall be reimbursement upon the nature in the absence of strong, clear and convincing
liquidation of the conjugal partnership and ownership of evidence that it was acquired using the exclusive funds of
entire property shall be vested only upon reimbursement.
said spouse (Spouses Go v. Yamane, G.R. No. 160762, May
3, 2006).
Q: What is the presumption with regard to property
acquired during marriage? Q: Dolores seeks to recover a parcel of land, alleging that
she and her husband acquired such during their marriage,
A: GR: All property acquired during the marriage, whether that it formed part of their conjugal properties and that he
the acquisition appears to have been made, contracted or sold it without her consent. She presents as evidence their
registered in the name of one or both spouses, is presumed marriage contract and the initial tax declaration over the
to be conjugal. property.
XPN: Unless the contrary is proved.
A: Recovery is not warranted. The rule is all property of the
marriage is presumed to be conjugal in nature. However,
CONJUGAL PARTNERSHIP PROPERTY for this presumption to apply, the party who invokes it must
first prove that it was acquired during the marriage. Here,
Q: What constitutes CPG? Dolores' evidence consisted of her marriage contract and
the initial tax declaration over the property. She did not
A: identify when she and her husband first occupied and
1. Those acquired by onerous title during the marriage possessed the land. Neither did she present any witness to
with conjugal funds; prove that they first occupied the property during their
2. Those obtained from labor, industry, work or
marriage and that they both, worked on the land (Pintiano-
profession of either or both spouses; Anno v. Anno, G.R. No. 163743, January 27, 2006).
3. Fruits of conjugal property due or received during the
marriage and net fruits of separate property; Q: H & W got married on October 1926. H subsequently
4. Share of either spouse in hidden treasure; cohabited with X. During the cohabitation of H with X, H
5. Those acquired through occupation such as hunting or acquired certain properties and places his status as single.
fishing; What is the nature of said properties?
6. Livestock in excess of what was brought to the
marriage; A: They are conjugal properties. Whether a property is
7. Those acquired by chance such as winnings in conjugal or not is determined by law and not by the will of
gamblings and bettings. (Art. 117, FC) one of the spouses. No unilateral declaration by one spouse
can change the character of conjugal property. The clear
Q: What are the rules if a property is bought on intent of H in placing his status as single is to exclude W
installments paid partly from the exclusive funds of the from her lawful share in the conjugal property. The law
spouses and partly from conjugal funds? does not allow this. The cohabitation of a spouse with
another person, even for a long period, does not sever the
A: tie of a subsisting previous marriage. H and Xs cohabitation
1. If full ownership was vested before the marriage it cannot work to the detriment of W as the legal spouse. The
shall belong to the buyer spouse. marriage of H and W continued to exist regardless of the
2. If full ownership was vested during the marriage it fact that H was already living with X. Hence, all property
shall belong to the conjugal partnership.
acquired from the date of their marriage until the death of

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53 FACULTY OF CIVIL LAW
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W are presumed conjugal. It was neither claimed nor A: That of the husband but subject to recourse to the court
proved that any of the subject properties was acquired by the wife for proper remedy.
outside or beyond this period. (Villanueva v. CA, G.R. No.
143286, April 14, 2004) Note: Prescriptive period for recourse is 5 years from the date of
CHARGES UPON AND OBLIGATIONS OF THE CPG the contract implementing such decision.

Q: What are the charges upon the CPG? DISSOLUTION OF CPG REGIME

A: D2-T2-E2-VAS Q: How is the conjugal partnership terminated?


1. Support of the spouses, their common children and
the legitimate children of either spouse; A:
2. Debts and obligations contracted by one without the 1. Death of either spouse;
consent of the other to the extent that the family 2. Legal separation;
benefited; 3. Annulment;
3. Debts and obligations contracted during the marriage 4. Judicial separation of property during marriage. (Art.
by an administrator-spouse, both spouses or one with 126, FC)
the consent of the other;
4. Taxes, liens, charges, expenses upon conjugal LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS
property; AND LIABILITIES
5. Taxes and expenses for mere preservation of separate Q: What are the steps in the liquidation of the CPG?
property;
6. Expenses for professional, vocational or self- A: R2-D4-IPA
improvement courses of either spouse; 1. Inventory of all the properties;
7. Ante-nuptial debts to the extent the family has been 2. Restitution of advances made to each of the spouses;
benefited; 3. Reimbursement for use of exclusive funds;
8. Value of what is donated or promised to common 4. Debts and obligations of the CP are paid;
legitimate children for professional, vocation or self- 5. Delivery of exclusive properties;
improvement courses; 6. Payment of losses and deterioration of movables
9. Expenses of litigation. (Art. 121, FC) belonging to each of the spouses;
7. Division of the net conjugal partnership;
Note: If the conjugal partnership is insufficient to cover the 8. Delivery of the childrens presumptive legitimes;
foregoing liabilities, spouses shall be solidarily liable for the unpaid
9. Adjudication of conjugal dwelling and custody of
balance with their separate properties.
children. (Art. 129, FC)
Q: Levy was made on the conjugal partnership of husband
Q: Upon termination of the marriage by death, how shall
and wife on the basis of liability of the husband as
the community property be liquidated?
guarantor. Is the levy proper?
A: The community property shall be liquidated in the same
A: No. The payment of personal debts contracted by the
proceeding for the settlement of the estate of the deceased
husband or the wife before or during the marriage shall not
spouse.
be charged to the conjugal partnership except as they
redounded to the benefit of the family. (Art. 122, FC)
Q: From where shall the support to be given to the
surviving spouse and to the children be charged against
ADMINISTRATION OF THE CPG
during the liquidation?
Q: To whom does the right to administer the conjugal
A: The support shall come from the common mass of
partnership belong?
property and shall be particularly charged against the fruits,
rents or income pertaining to their shares to the inventories
A: GR: It belongs to both spouses jointly.
property. But where the support given exceeds the fruits,
rents or income pertaining to their shares, the excess shall
XPN: If one spouse is incapacitated or otherwise
be deducted from their respective shares as these are
unable to participate in the administration of the
deemed advances from the inventoried property. (Art. 133,
common properties capacitated or able spouse may
FC)
assume sole powers of administration.
Q: In the absence of a judicial settlement proceeding, how
But such powers do not include: DAE
shall the community property be liquidated?
1. Disposition;
2. Alienation; or
A: The surviving spouse shall liquidate the community
3. Encumbrance of the conjugal or community property.
property either, judicially or extrajudicially within 1 year
from the death of the deceased spouse.
Q: In case of disagreement, whose decision shall prevail?

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2013 GOLDEN NOTES 54
PERSONS AND FAMILY RELATIONS
Q: What if the conjugal partnership assets are less than 2. The liability of the spouses to creditors shall be
the conjugal partnership liabilities at the time of solidary with their separate properties;
liquidation of the CP? 3. Mutual obligation to support each other continues;

A: The surviving spouse and the children shall not be XPN: When there is legal separation
entitled to support.
4. Rights previously acquired by creditors are not
Q: What are the effects if the community property is not prejudiced.
liquidated?
Q: How and in what instances can the property regime
A: that existed between the spouses before the separation of
1. Any disposition or encumbrance made by the surviving property be revived?
spouse involving community property of the
terminated marriage shall be void. A: Spouses may, in the same proceedings where separation
2. Should the surviving spouse contract a subsequent of property was decreed, file a motion existed between
marriage a mandatory regime of complete separation them before the separation of property in any of the
of property shall govern the property relations of the following instances:
subsequent marriage a. When the civil interdiction terminates
b. When absentee spouse reappears
SEPARATION OF PROPERTY OF THE SPOUSES AND c. When the court, being satisfied
ADMINISTRATION OF COMMON PROPERTY BY ONE
SPOUSE DURING THE MARRIAGE REGIME OF SEPARATION OF PROPERTY

Q: When shall the system of complete separation of Q: What governs the regime of separation of property?
property govern the property relations between the
spouses? A:
1. Marriage settlement
A: Only in the following cases: 2. Family Code in suppletory character. (Art. 149, FC)
1. When it is expressly provided for in the marriage
settlement Q: What are the kinds of separation of property?
2. When it is so decreed by a competent court
3. Mandatory regime of complete separation of property A:
1. As to extent:
Q: In what ways can there be judicial separation of a. Total
property? b. Partial In this case, the property not agreed
upon as separate shall pertain to the absolute
A: Judicial separation of property may either be: community.
1. voluntary 2. As to kinds of property:
2. for sufficient cause a. Present property
b. Future property
Q: What are the sufficient causes for judicial separation of c. Both present and future property
property?
Q: What are the rights of the spouses under the regime of
A: CJ-LASA separation of property?
1. Civil interdiction of the spouse of petitioner;
2. Judicial declaration of absence; A:
3. Loss of parental authority as decreed by the court; 1. Each spouse shall own, dispose of, administer, possess,
4. Abandonment or failure to comply with family and enjoy his or her own separate property, without
obligation; need of the consent of the other.
5. Administrator spouse has abused authority; 2. Each spouse shall own all earnings from his or her
6. Separation in fact for one year and reconciliation is profession, business or industry and all fruits, natural,
highly improbable. (Art. 135, FC) industrial or civil, due or received during the marriage
from his or her separate property.
Note: In cases provided in 1, 2 and 3, the presentation of the final
judgment against the guilty or absent spouse shall be enough basis Q: What are the liabilities for family expenses of the
for the grant of the decree of judicial separation of property. spouses under the regime of separation of property?

Q: What are the effects of judicial separation of property A: GR: Both spouses shall bear the family expenses in
between spouses? proportion to their income.

A: XPN: In case of insufficiency or default thereof, to the


1. The absolute community or conjugal partnership is current market value of their separate properties.
dissolved;

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55 FACULTY OF CIVIL LAW
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PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

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

A:
ART. 147 ART. 148
Applicability
Presence of legal impediment:
1. No legal impediment to marry; 1. Adulterous relationships
2. Void marriage on the ground of psychological 2. Bigamous/polygamous marriages
incapacity. 3. Incestuous void marriages under Art. 37
4. Void marriages by reason of public policy (Art. 38)
Salaries & wages
Separately owned by the parties. If any is married, his/her
Owned in equal shares
salary pertains to the CPG of the legitimate marriage.
Property exclusively acquired
Belongs to party
Belongs to such party
upon proof of acquisition through exclusive funds
Property acquired by both through their work or industry
Owned in common in proportion to their respective
Governed by rules of co-ownership
contributions
Presumption
Property acquired while living together presumed obtained
No presumption of joint acquisition.
by their joint efforts, work or industry and owned by them
in equal shares.
Actual joint contribution of money, property or industry shall
be owned by them in common proportion.
If one party did not participate in acquisition:
presumed to have contributed through care and
However, their contributions are presumed equal, in the
maintenance of family and household (Buenaventura v.
absence if proof to the contrary
Buenaventura, G.R. No. 127358, March 31, 2005)
Forfeiture
If one of the parties is validly married to another, his/her
When only one is in GF, share of party in BF in the co-
share in the co-ownership shall accrue to the ACP or CPG
ownership be forfeited in favor of:
existing in the marriage.
1. their common children
2. innocent party
If the party who acted in BF is not validly married to another
in default of / waiver by any/all common children, or by
or if both parties are in BF, such share be forfeited in manner
their descendants
provided in the last par. of Art. 147
Proof of actual contribution
Not necessary Necessary

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

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

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2013 GOLDEN NOTES 56
PERSONS AND FAMILY RELATIONS
Q: What property relation governs in case marriage is maintenance of the family and of the household.
declared null and void on the ground of psychological
incapacity? Note: In this case, Francisco himself testified that his wife was not
a plain housewife but one who helped him in managing the family's
A: The property relation between the parties is governed business. Hence, Erminda is rightfully entitled to a joint share in
their properties (Gonzales v. Gonzales, G.R. No. 159521,
by Art. 147 of the FC. Under this property regime, property
December16, 2005).
acquired by both spouses through their work and industry
shall be governed by the rules on equal co-ownership. Any
Q: Romeo and Juliet lived together as husband and wife
property acquired during the union is prima facie presumed
without the benefit of marriage. During their
to have been obtained through their joint efforts. A party
cohabitation, they acquired a house. When they broke up,
who did not participate in the acquisition of the property
they executed an agreement where he agreed to leave the
shall still be considered as having contributed thereto
house provided Juliet will pay his entire share in their
jointly if said party's "efforts consisted in the care and
properties. She failed to do so but she also ignored his
maintenance of the family household." Unlike the conjugal
demand for her to vacate. Romeo sued her for ejectment
partnership of gains, the fruits of the couple's separate
which the court granted. Was the court correct in granting
property are not included in the co-ownership.
the same?
Q: Josefinas petition for nullity of her marriage to
A: No. Under Art. 147 of the FC, the property is co-owned
Eduardo was granted on the ground of existence of a prior
by the parties. Under said provision, in the absence of
marriage. She now asserts that since her marriage to
proof to the contrary, any property acquired by common-
Eduardo is void, their property relation is to be governed
law spouses during their cohabitation is presumed to have
by the rules on co-ownership under Art. 148 of the FC and
been obtained thru their joint efforts and is owned by them
not by Art.144 of the Civil Code. In this regime, Eduardo
in equal shares. Their property relationship in such a case is
has no share at all in the properties since no proof was
essentially governed by the rules on co-ownership. Thus,
adduced by him as regards his participation in their
Romeo cannot seek the ejectment of Juliet therefrom. As a
purchase. However, she did not prove that she acquired
co-owner, she is as much entitled to enjoy its possession
the properties using her personal funds and prior to her
and ownership as him (Abing v. CA,G.R. No. 146294, Jul. 31,
cohabitation with Eduardo. Is her contention correct?
2006).
A: No. Art. 148 of the FC does not apply since, in said
Q: Luis and Rizza, both 26 years of age and single, live
article, a co-ownership may ensue in case of cohabitation
exclusively with each other as husband and wife without
where, for instance, one party has a pre-existing valid
the benefit of marriage, Luis is gainfully employed, Rizza is
marriage, provided that the parties prove their actual joint
not employed, stays at home, and takes charge of the
contribution of money, property or industry and only to the
household chores.
extent of their proportionate interest thereon. Petitioner
failed to adduce preponderance of evidence that she
After living together for a little over twenty years, Luis was
contributed money, property or industry in the acquisition
able to save from his salary earnings during that period
of the subject property and, hence, is not a co-owner of the
the amount of P200,000.00 presently deposited in a bank.
property. Since the subject property was acquired during
A house and lot worth P500,000.00 was recently
the subsistence of the first marriage of Eduardo, under
purchased for the same amount by the couple. Of the
normal circumstances, the same should be presumed to be
P500.000.00 used by the common-law spouses to
conjugal property of Eduardo and Josefina (Francisco v.
purchase the property, P200.000.00 had come from the
Master Iron Works Construction Corp., G.R. No. 151967.
sale of palay harvested from the hacienda owned by Luis
February 16, 2005).
and P300,000.00 from the rentals of a building belonging
to Rizza. In fine, the sum of P500.000.00 had been part of
Q: Francisco and Ermindas marriage was nullified by the
the fruits received during the period of cohabitation from
trial court due to psychological incapacity. He did not
their separate property, a car worth P100.000.00 being
contest the decree of nullity but he assailed the division in
used by the common-law spouses, was donated just
the properties which was contained in the decree. He
months ago to Rizza by her parents.
asserted that the properties were acquired through his
efforts and that she had no contribution whatsoever in
Luis and Rizza now decide to terminate their cohabitation,
their acquisition and maintenance; hence, she should not
and they ask you to give them your legal advice on how,
be entitled to a joint share in their properties. Is
under the law should the bank deposit of P200,000.00 the
Franciscos contention correct?
house and lot valued at P500.000.00 and the car worth
P100.000.00 be allocated to them (1997 Bar Question)?
A: No. The property relation between the parties is
governed by Art. 147 of the FC. Under this article, there is a
A: Art. 147 of the FC provides in part that when a man and
presumption that the properties which they acquired
a woman who are capacitated to marry each other, live
during their cohabitation were acquired through their joint
exclusively with each other as husband and wife without
efforts, work or industry. It further provides that a party
the benefit of marriage or under a void marriage, their
who did not participate in the acquisition thereof shall be
wages and salaries shall be owned by them in equal shares
deemed to have contributed jointly in the acquisition
and the property acquired by both of them through their
thereof if his or her efforts consisted in the care and

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57 FACULTY OF CIVIL LAW
CIVIL LAW
work or industry shall be governed by the rules of co- Addendum: However, after Rico's marriage to Letty,
ownership. In the absence of proof to the contrary, the coconut land of Rico will then become absolute
properties acquired while they lived together shall be community property of Rico and Letty.)
presumed to have been obtained by their joint efforts,
worker industry, and shall be owned by them in equal 3. Rico and Letty are the co-owners. The relations is the
shares. A party who did not participate in the acquisition by Absolute Community of Property (Arts, 75, 90 and 91,
the other party of any property shall be deemed to have Family Code).
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family THE FAMILY
and of the household. Thus:
1. The wages and salaries of Luis in the amount of P200, THE FAMILY AS AN INSTITUTION
000.00 shall be divided equally between Luis and Rizza.
2. The house and lot valued at P500.000.00 having been Q: What is included in family relations?
acquired by both of them through work or industry
shall be divided between them in proportion to their A:
respective contribution, in consonance with the rules 1. Between husband and wife
on co-ownership. Hence, Luis gets 2\5 while Rizza gets 2. Between parents and children
3\5 of P500.000.00. 3. Among other ascendants and descendants
3. The car worth P100, 000.00 shall be exclusively owned 4. Among brothers and sisters, whether of the full or half
by Rizza, the same having been donated to her by her blood (Art. 150, FC)
parents.
Q: What governs family relations?
Q: In 1989, Rico, then a widower 40 years of age,
cohabited with Cora, a widow 30 years of age. While living A: Family relations are governed by the law. No custom,
together, they acquired from their combined earnings a practice or agreement destructive of the family shall be
parcel of riceland. After Rico and Cora separated, Rico recognized or given effect. (Art. 149, FC)
lived together with Mabel, a maiden 16 years of age.
While living together, Rico was a salaried employee and Note: Even if not all forms of extra-marital relations are
Mabel kept house for Rico and did full-time household punishable under penal law, the sanctity of marriage is
chores for him. During their cohabitation, a parcel of constitutionally recognized and likewise affirmed by our
coconut land was acquired by Rico from his savings. statutes as a special contract of permanent union.
Accordingly, the Court has had little qualms with penalizing
After living together for 1 year, Rico and Mabel separated. judicial employees for their dalliances with married persons
Rico then met and married Letty, a single woman 26 years or for their own betrayals of the marital vow of fidelity
of age. During the marriage of Rico and Letty, Letty bought (Concerned Employee v. Mayor, A.M. No. P-02-1564,
a mango orchard out of her own personal earnings. November 23, 2004).

1. Who would own the riceland, and what property Q: What are the requisites before a suit between
relation governs the ownership? Explain. members of the same family may prosper?
2. Who would own the coconut land, and what
property relation governs the ownership? A:
Explain. 1. Earnest efforts toward a compromise have been
3. Who would own the mango orchard, and what made;
property relation governs the ownership? 2. Such efforts failed;
Explain. (1992 Bar Question) 3. The fact that earnest efforts toward a compromise
have been made but the same have failed appears in
A: the verified complaint or petition.
1. Rico and Cora are the co-owners of the riceland. The
relation is that of co-ownership (Art. 147, Family Code, Note: This rule shall not apply to cases which may not be subject of
first paragraph). compromise under the Art. 2035 of the NCC.

Addendum: However, after Rico's marriage to Letty, Q: In a complaint filed by Manolo against his brother,
the half interest of Rico in the riceland will then Rodolfo, it was alleged that the case "xxx passed through
become absolute community property of Rico and the Barangay and no settlement was forged between the
Letty. plaintiffs and defendant as a result of which Certification
to File Action was issued xxx". Rodolfo moved to dismiss
2. Rico is the exclusive owner of the coconut land. The for failure to comply with a condition precedent - that
relation is a sole/single proprietorship (Art. 148. Family earnest efforts for an amicable settlement among the
Code, first paragraph is applicable, and not Art. 147 parties had been exerted but that none was reached.
Family Code). Decide.

A: The case will prosper. There was in fact substantial


compliance with Art. 151 of the FC since the spouses

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2013 GOLDEN NOTES 58
PERSONS AND FAMILY RELATIONS
alleged in the complaint for ejectment that the case "xxx A: It is not exempt. Under Art. 155 of the FC, the family
passed through the Barangay and no settlement was forged home shall be exempt from execution, forced sale, or
between the plaintiffs and defendant as a result of which attachment except for, among other things, debts incurred
Certification to File Action was issued by Barangay 97, Zone prior to the constitution of the family home. In the case at
8, District I, Tondo, Manila xxx". It bears stressing that bar, the house and lot was not constituted as a family
under Sec. 412 (a) of R.A. 7160, no complaint involving any home, whether judicially or extra-judicially, at the time that
matter within the authority of the Lupon shall be instituted the debtor incurred her debts. Under prevailing
or filed directly in court for adjudication unless there has jurisprudence, it is deemed constituted as such by
been a confrontation between the parties and no operation of law only upon the effectivity of the Family
settlement was reached. Code on August 3, 1988, thus, the debts were incurred
before the constitution of the family home (Gomez-Salcedo,
Moreover, the phrase "members of the same family" found et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005).
in Art. 151 of the FC must be construed in relation to Art.
150 thereof (Martinez, et al. v. Martinez, G.R. No. 162084. Q : Has the residential house and lot of Cesario Montana
Jun. 28, 2005). which he and his family built in 1960 but which was not
constituted as a family home, whether judicially or
Note: A sister-in-law or a brother-in-law is not covered by extrajudicially, under the NCC been constituted as a family
these two provisions. Being an exception to the general home by operation of law under Art. 153 of the FC, and
rule, Art. 151 must be strictly construed (Gayon v. Gayon, therefore, exempt from execution from a money
G.R. No. L-28394, November 26, 1970). judgement where the debt or liability was incurred before
the effectivity of the FC ?
THE FAMILY HOME
A : Under Art. 162 of the FC, it is provided that the
Q: What is meant by family home (FH) and how is it provisions of this Chapter shall also govern existing family
constituted? residences insofar as said provisions are applicable. It does
not mean that Arts. 152 and 153 of the FC have a
A: It is the dwelling house where the husband and wife and retroactive effect such that all existing family residences are
their family reside, and the land on which it is situated; it is deemed to have been constituted as a family home at the
constituted jointly by the husband and the wife or by an time of their occupation prior to the effectivity of the FX
unmarried head of a family. (Art. 152, FC) and are exempt from execution for the payment of
obligations before the effectivity of the FC. Art. 162 simply
Q: Can FH be constituted on a house constructed on a land means that all existing family residences at the time of the
belonging to another? effectivity of the FC are considered family homes and are
prospectively entitled to the benefits accorded to a family
A: No. The land where the house is erected is an integral home under the FC (Manacop v. CA, 277 SCRA 64, August
part of the home and the home should be permanent in 11, 1997).
character.
Q: What are the rules for the family home to be exempt
Note: A house constructed on rented land or by tolerance of the from execution?
owner is not a permanent improvement on the land and the home
will thus be temporary. A: If the family home was constructed before the effectivity
of the FC, then it must have been constituted either
Q: What are the exceptions to the rule that the FH is judicially or extrajudicially as provided under Arts. 225,
exempt from execution, forced sale or attachment? 229-231 and 233 of the NCC. Judicial constitution of the
family home requires the filing of a verified petition before
A: LTPM the courts and the registration of the courts order with
1. Debts due to Laborers, mechanics, architects, builders, the Registry of Deeds of the area where the property is
material men and others who rendered service or located. Meanwhile, extrajudicial constitution is governed
furnished materials for the constitution of the by Arts. 240 to 242 of the NCC and involves the execution
building; of a public instrument which must also be registered with
2. Non-payment of Taxes; the Registry of Property.
3. Debts incurred Prior to its constitution;
4. Debts secured by Mortgages on the premises before For family homes constructed after the effectivity of the FC,
or after such constitution. there is no need to constitute extrajudicially or
judicially, and the exemption is effective from the time it
Note: Exemption is limited to the value allowed in the FC.
was constituted and lasts as long as any of its beneficiaries
actually resides therein. Moreover, the family home should
Q: A complaint for damages was filed against Hinahon in
belong to the absolute community or conjugal partnership,
1986 when she incurred liabilities as early as 1977, which
or if exclusively by one spouse, its constitution must have
action prospered in 1989. The house and lot that she
been with consent of the other, and its value must not
owned was levied upon and sold at auction. She assails
exceed certain amounts depending upon the area where it
the levy and sale on the ground that it was her family
is located. Further, the debts incurred for which the
home and therefore exempt from execution. Decide.
exemption does not apply as provided under Art. 155 for

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59 FACULTY OF CIVIL LAW
CIVIL LAW
which the family home is made answerable must have been home either by the owner thereof or by any of its
incurred after the effectivity of the FC. beneficiaries must be actual. That which is actual is
something real, or actually existing, as opposed to
And in both cases, whether under the Civil Code or the something merely possible, or to something which is
Family Code, it is not sufficient that the person claiming presumptive and constructive. Actual occupancy, however,
exemption merely alleges that such property is a family need not be by the owner of the house. Rather, the
home. This claim for exemption must be set up and proved property may be occupied by the beneficiaries
(Juanita Trinidad Ramos, et al. v. Danilo Pangilinan et al. enumerated by Art. 154 of the FC (Manacop v. CA, 277
G.R. No. 185920, July 20, 2010). SCRA 65, August 11, 1997).

Q: Does the exemption of family home from execution be Note: This enumeration may include the in-laws where the family
set up and proved? home is constituted jointly by the husband and wife. But the law
definitely excludes maids and overseers.
A: Yes. The family homes exemption from execution must
be set up and proved to the Sheriff before the sale of the Q: On what properties must the family home be
property at public auction. It should be asserted that the constituted?
property is a family home and that it is exempted from
execution at the time it was levied or within a reasonable A: The family home must be part of the properties of the
time thereafter. It is not sufficient that the person claiming absolute community or the conjugal partnership or the
exemption merely alleges that such property is a family exclusive properties of either spouse with the latters
home. Failure to do so will estop one from later claiming consent. It may also be constituted by an unmarried head
the said exemption (Spouses Araceli Oliva-De Mesa and of a family on his or her own property.
Ernesto de Mesa v. Spouses Claudio D. Acero Jr. and
Note: Property that is subject of a conditional sale on instalments
Ma.Rufina D. Acero, Sheriff Felixberto L. Samonte and
where ownership is reserved by the vendor to guarantee payment
Registrar Alfredo Santos, G.R. No. 185064, January 16, of the purchase price may be constituted as a family home.
2012).
Q: What is the effect of death of one or both spouses or of
Q: What are the guidelines in the constitution of the the unmarried head of the family upon the family home?
family home?
A: The family home shall continue despite the death of one
A: 1-SAPOC or both spouses or of the unmarried head of the family for
1. FH is deemed constituted from the time of Actual a period of 10 years or for as long as there is a minor
occupation as a family residence; beneficiary and the heirs cannot partition the same unless
2. Only 1 FH may be constituted; the court finds compelling reasons therefor. This rule shall
3. Must be Owned by the person constituting it; apply regardless of whoever owns the property or
4. Must be Permanent; constituted the family home. (Art. 159, FC)
5. Same rule applies to both valid and voidable marriages
and even to common law spouses; (Arts. 147 and 148) Q: What are the requisites in the sale, alienation,
6. It Continues despite death of one or both spouses or donation, assignment or encumbrance of the FH?
an unmarried head of the family for 10 years or as long
as there is a minor beneficiary. A: The following must give their written consent:
1. The person who constituted the FH;
Note: The heirs cannot partition the same unless the court finds
2. The spouse of the person who constituted the FH;
compelling reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family home. 3. Majority of the beneficiaries of legal age.

Note: In case of conflict, the court shall decide.


Q: Who are the beneficiaries of a FH?
Q: What are the requisites for the creditor to avail of the
A:
right to execute?
1. Husband and wife, or unmarried head of the family
2. Parents (may include parents-in-law), ascendants,
A:
brothers and sisters (legitimate or illegitimate) living in
1. He must be a judgment creditor;
the FH and dependent on the head of the family for
2. His claim must not be among those excepted under
support
Art. 155;
3. He has reasonable grounds to believe that the family
Q: Miko contends that he should be deemed residing in
home is worth more than the maximum amount fixed
the family home because his stay in the U.S. is merely
in Art. 157.
temporary. He asserts that the person staying in the house
is his overseer and that whenever his wife, Rosanna,
Q: What is the procedure in exercising the right to
visited the Philippines, she stayed in the family home. Is
execute?
the contention of Miko meritorious?
A:
A: The law explicitly provides that occupancy of the family
1. Creditor must file a motion in the court proceeding
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 60
PERSONS AND FAMILY RELATIONS
where he obtained a favorable judgment for a writ of LEGITIMATE CHILDREN
execution against the FH;
2. There will be a hearing on the motion where the Q: Who is a legitimate child?
creditor must prove that the actual value of the FH
exceeds the maximum amount fixed by the Family A: One who is conceived or born during the marriage of the
Code, either at the time of its constitution or as a parents
result of improvements introduced after its
constitution; Q: When is a child conceived by artificial insemination
3. If the creditor proves that the actual value exceeds the considered legitimate?
maximum amount, the court will order its sale in
execution; A: The following conditions must be present:
4. If the family home is sold for more than the value 1. The artificial insemination is made on the wife, not on
allowed, the proceeds shall be applied as follows: another woman;
a. The obligations enumerated in Art. 155 must be 2. The artificial insemination on the wife is done with the
paid sperm of the husband or of a donor, or both the
b. The judgment in favor of the creditor will be paid, husband and a donor;
plus all the costs of execution 3. The artificial insemination has been authorized or
The excess, if any, shall be delivered to the judgment ratified by the spouse on a written instrument
debtor. (Art. 160, FC) executed and signed by them before the birth of the
child; and
Q: How many family homes may a person constitute or be 4. The written instrument is recorded in the civil registry
a beneficiary of, for the purposes of availing of the together with the birth certificate of the child.
benefits of a family home?
Q: What are the rights of legitimate children?
A: A person may constitute or be the beneficiary of only
one family home for purposes of availing of the benefits of A:
a family home. (Art. 161, FC) 1. To bear the surname of the father and the mother;
2. To receive support from their parents, their
PATERNITY AND FILIATION ascendants, and in proper cases, their brothers and
sisters;
Q: To what do paternity and filiation refer to? 3. To be entitled to the legitimate and other successional
rants granted to them by Art. 174 of the FC.
A: Paternity and filiation refer to the relationship existing
between parent and child. Q: On what grounds may legitimacy be impugned?

Note: Filiation may be by nature or adoption, legitimate or A: legitimacy of the child may be impugned only on the
illegitimate.
following grounds:
1. Physical impossibility of the husband to have sexual
Q: What are the classifications of filiation?
intercourse with his wife within the first 120 days of
the 300 days which immediately preceded the birth of
A: LILA
the child
GENERAL RULE EXCEPTIONS
2. It is proved that the child could not have been that of
Legitimate the husband
Conceived or born within a valid marriage 3. In case of artificial insemination, the written
authorization or ratification of either parent was
Illegitimate obtained through mistake, fraud, violence,
Conceived and born outside a valid marriage intimidation, or undue influence.
Legitimated
Q: What is the rule on status of child where the mother
Conceived or born outside of wedlock of parents without
contracted another marriage within 300 days after
impediment to marry at the time of conception and had
termination of the former?
subsequently married.
A: The child shall be considered as conceived during the:
Requisites of Legitimation:
1. No legal impediment for parents to marry at time
1. Former marriage if child is born:
of conception;
a. Before 180 days after the solemnization of the
2. Valid marriage subsequent to childs birth.
subsequent marriage, provided it is born
Adopted
b. Within 300 days after termination of former
(Please refer to related notes on Adoption laws at page 61)
marriage
2. Subsequent marriage if a child is born:
a. 180 days after the celebration of the subsequent
marriage;

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61 FACULTY OF CIVIL LAW
CIVIL LAW
b. even though it be born within 300 days after the
termination of the former marriage.

Illustrations:
th th
1. 180 day takes place before 300 day

Subsequent 180th day from 300th day


Former marriage marriage solemnization of from
terminated solemnized subsequent termination of
marriage former
marriage

Born during this period: Born during this period:

Conceived during Former Conceived during Subsequent


Marriage Marriage

th th
2. 180 day takes place after 300 day

300th day from


Subsequent termination of
180th day from
marriage solemnization of
Former former
solemnized subsequent
marriage marriage
marriage
terminated

Born during this period: Born during this period:


Conceived during Former Conceived during Subsequent
Marriage Marriage

Q: Distinguish action to impugn legitimacy and action to without having Note: Must be filed within 5
claim legitimacy. desisted; years.
3. Child was born after
A: the death of husband.
ACTION TO IMPUGN ACTION TO CLAIM Prescription
LEGITIMACY LEGITIMACY GR: During the lifetime of
Remedy the child
1 year husband reside in
Action to impugn legitimacy Action to claim legitimacy the same municipality or
XPN: Lifetime of the
or illegitimacy (compulsory recognition) city where birth took place
putative father
Real party in interest 2 years husband reside
NOT in the same
GR: Husband GR: Child In cases where the action is
municipality or city
for the recognition of
3 years husband is living
XPNs: Heirs, in cases where: XPNs: Heirs of the child, in illegitimate child by open
abroad
1. Husband died before cases where: and continuous possession
the expiration of the 1. Child died in state of of the status.
period for bringing the insanity
action; 2. Child died during
2. Husband died after minority
filing the complaint,
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 62
PERSONS AND FAMILY RELATIONS
Q: What are the grounds to impugn legitimacy of the Q: When does the prescriptive period start to run?
child?
A: GR: The prescriptive period for filing action impugning
A: the legitimacy of the child shall be counted from the
1. Physical impossibility for the husband to have sexual knowledge of birth or its recording in the civil registry.
intercourse with his wife within the first 120 days of
the 300 days which immediately preceded the birth of XPN: If the birth was:
the child because of: 1. Concealed from or
a. Physical incapacity of the husband to have sexual 2. Was unknown to the husband or his heirs, the
intercourse with his wife, periods shall be counted from the discovery or
b. The fact that the husband and wife were living knowledge of the birth of the child or of the act of
separately in such a way that sexual intercourse registration of said birth, whichever is earlier.
was not possible, or
c. Serious illness of the husband which absolutely Q: Is the right to claim filiation transmissible to the heirs
prevented intercourse; of the child?
2. Proved that for biological or other scientific reasons,
the child could not have been that of the husband, A: GR: The right to claim filiation may be used only by the
except in the case of children conceived through child. It is not transmissible to the heirs.
artificial insemination;
3. In case of children conceived through artificial XPN: In cases where child died:
insemination, the written authorization or ratification 1. During minority or
of either parent was obtained through mistake, fraud, 2. In a state of insanity.
violence, intimidation or undue influence.
Q: When should an action to claim legitimacy be brought?
Q: Is sterility synonymous with impotency?
A: It depends on who is bringing the action:
A: No, they are not synonymous. Sterility is the inability to 1. By the child during his lifetime
procreate, while impotency is the physical inability to 2. By his heirs within 5 years should the child die
copulate (Menciano v. San Jose, 89, Phil. 63). during minority or in a state of insanity

Q: Will an infliction of the last stages of tuberculosis be a Note: Questioning legitimacy may not be collaterally attacked. It
ground for impugnation of the legitimacy of the child? can be impugned only in a direct action.

A: Tuberculosis, even in its last stages, is not the kind of PROOF OF FILIATION
serious illness of the husband that will establish physical
impossibility of access (Andal v. Macaraig, 89 Phil.165). Q: What are the different kinds of proof of filiation?

Q: What is the effect of the declaration of a wife against A: Proof of filiation has two kinds:
the legitimacy of the child where the child is conclusive 1. Primary proof consists of the ff:
presumed to be the legitimate child of H and W? a. Record of birth appearing in civil registrar or final
judgment;
A: The child shall still be legitimate, although the mother b. Admission of legitimate filiation in public
may have declared against his legitimacy. This law likewise document or private handwritten instrument
applies to such instances where the mother may have been signed by parent concerned.
sentenced as an adulteress (Art. 167, FC). 2. Secondary consists of the ff:
a. Open and continuous possession of legitimacy;
Q: Who may attack the legitimacy of the child? b. Any means allowed by the Rules of Court and
special laws.
A: GR: Only the husband can contest the legitimacy of the
child. Note: To prove open and continuous possession of the status of an
illegitimate child, there must be evidence of manifestation of the
permanent intention of the supposed father to consider the child
XPNs: Heirs of the husband may impugn the filiation as his, by continuous and clear manifestations of parental affection
of the child within the period prescribed in Art. 170 of and care, which cannot be attributed to pure charity.
the FC only in the following cases:
1. If the husband should die before the expiration of Such acts must be of such a nature that they reveal not only the
the period fixed for brining his action; conviction of paternity, but also the apparent desire to have and
2. If he should die after the filing of the complaint, treat the child as such in all relations in society and in life, not
without having desisted therefrom; or accidentally, but continuously (Jison v. CA, G.R. No. 124853,
February 24, 1998).
3. If the child was born after the death of the
husband. (Art. 171, FC)

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63 FACULTY OF CIVIL LAW
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Q: Will pictures or certificate of baptism constitute The SSS granted her claim but this was withdrawn after
authentic documents to prove the legitimate filiation of a investigation, when a sister of the decedent informed the
child? system that Pablo could not have sired a child during his
lifetime because he was infertile. However in lyns birth
A: Pictures or the canonical baptismal certificate do not certificate, Pablo affixed his signature and he did not
constitute the authentic documents to prove the legitimate impugn lyns legitimacy during his lifetime. Was the SSS
filiation of a child. The baptismal certificate of the child, correct in withdrawing the death benefits?
standing alone, is not sufficient. It is not a record of birth.
Neither is it a public instrument nor a private handwritten A: No. Under Art. 164 of the FC, children conceived or born
instrument (Abelle v. Santiago, 7 SCRA 925). during the marriage of the parents are legitimate. This
presumption becomes conclusive in the absence of proof
Q: May a baptismal certificate prove filiation? that there is physical impossibility of access under Art. 166.
Further, upon the expiration of the periods for impugning
A: Just like in a birth certificate, the lack of participation of legitimacy under Art. 170, and in the proper cases under
the supposed father in the preparation of a baptismal Art. 171, of the FC, the action to impugn would no longer
certificate renders this document incompetent to prove be legally feasible and the status conferred by the
paternity. And while a baptismal certificate may be presumption becomes fixed and unassailable. In this case,
considered a public document, it can only serve as evidence there is no showing that Pablo, who has the right to impugn
of the administration of the sacrament on the date the legitimacy of lyn, challenged her status during his
specified but not the veracity of the entries with respect to lifetime. Furthermore, there is adequate evidence to show
the childs paternity. Thus, baptismal certificates are per that the child was in fact his child, and this is the birth
se inadmissible in evidence as proof of filiation and they certificate where he affixed his signature (SSS v. Aguas, et
cannot be admitted al., G.R. No. 165546, February 27, 2006).

indirectly as circumstantial evidence to prove the Q: In an action for partition of estate, the trial court
same (Antonio Perla v. Mirasol Baring and Randy B. dismissed it on the ground that the respondent, on the
Perla, G.R. No. 172471, November 12, 2012). basis of her birth certificate, was in fact the illegitimate
child of the deceased and therefore the latter's sole heir,
Q: What are the rules in proving filiation? to the exclusion of petitioners. However, trial court failed
to see that in said birth certificate, she was listed therein
A: GR: Primary proof shall be used to prove filiation. as adopted. Was the trial court correct in dismissing the
action for partition?
XPN: In absence of primary proof, secondary proof
may be resorted to. A: No. The trial court erred in relying upon the said birth
certificate in pronouncing the filiation of the respondent.
Note: For illegitimate children, if the action is based on par. 2 of However, since she was listed therein as adopted, she
Art. 172 (secondary proof), the action may be brought only during should therefore have presented evidence of her adoption
the lifetime of the alleged parent. in view of the contents of her birth certificate. In this case,
there is no showing that she undertook such. It is well-
Q: May a will which was not presented for probate settled that a record of birth is merely prima facie evidence
sufficiently establish filiation? of the facts contained therein. It is not conclusive evidence
of the truthfulness of the statements made there by the
A: Yes. It still constitutes a public document or private interested parties (Rivera v. Heirs of Romualdo Villanueva,
handwritten instrument signed by parent concerned. G.R. No. 141501, July 21, 2006).

Q: When is a prima facie case said to exist? Q: In a complaint for partition and accounting with
damages, Ma. Theresa alleged that she is the illegitimate
A: We explained that a prima facie case exists if a woman daughter of Vicente, and therefore entitled to a share in
declares supported by corroborative proof that she the estate left behind by the latter. As proof, she
had sexual relations with the putative father; at this point, presented her birth certificate which Vicente himself
the burden of evidence shifts to the putative father. We signed thereby acknowledging that she is his daughter. Is
explained further that the two affirmative defenses the proof presented by Ma.Theresa sufficient to prove her
available to the putative father are: (1) incapability of claim that she is an illegitimate child of Vicente?
sexual relations with the mother due to either physical
absence or impotency, or (2) that the mother had sexual A: Yes. Citing the earlier case of De Jesus v. Estate of Juan
relations with other men at the time of conception (Charles Dizon, (366 SCRA 499), the Supreme Court held that the
Gotardo v. Divina Buling, G.R. No. 165166, August 15, Ma. Theresa was able to establish that Vicente was in fact
2012). her father. The due recognition of an illegitimate child in a
record of birth, a will, a statement before a court of record,
Q: Rosanna, as surviving spouse, filed a claim for death or in any authentic writing is, in itself, a consummated act
benefits with the SSS upon the death of her husband, of acknowledgment of the child, and no further court action
Pablo. She indicated in her claim that the decedent is also is required. The rule is, any authentic writing is treated not
survived by their minor child, lyn, who was born in 1991. just as a ground for compulsory recognition; it is in itself a
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 64
PERSONS AND FAMILY RELATIONS
voluntary recognition that does not require a separate execution, which is, the fact of birth of a child. A birth
action for judicial approval. (Eceta v. Eceta, G.R. No. certificate, in order to be considered as validating proof of
157037, May 20, 2004) paternity and as an instrument of recognition, must be
signed by the father and mother jointly, or by the mother
Q: Gerardo filed a complaint for bigamy against Ma. alone if the father refuses. There having been no convincing
Theresa, alleging that she had a previous subsisting proof of respondent's supposed legitimate relations with
marriage when she married him. The trial court nullified respect to the decedent, the presumption of legitimacy
their marriage and declared that the son, who was born under the law did not therefore arise in her favor (Angeles
during their marriage and was registered as their son, as v. Angeles-Maglaya, G.R. No. 153798, September2, 2005).
illegitimate. What is the status of the child?
Q: On the basis of the physical presentation of the
A: The first marriage being found to be valid and subsisting, plaintiff-minor before it and the fact that the alleged
whereas that between Gerardo and Ma. Theresa was void father had admitted having sexual intercourse with the
and non-existent, the child should be regarded as a child's mother, the trial court, in an action to prove
legitimate child out of the first marriage. This is so because filiation with support, held that the plaintiff-minor is the
the child's best interest should be the primordial child of the defendant with the plaintiff-minor's mother.
consideration in this case. Was the trial court correct in holding such?

Q: Gerardo and Ma. Theresa, however, admitted that the A: No. In this age of genetic profiling and DNA analysis, the
child was their son. Will this affect the status of the child? extremely subjective test of physical resemblance or
similarity of features will not suffice as evidence to prove
A: No. The admission of the parties that the child was their paternity and filiation before courts of law. This only shows
son was in the nature of a compromise. The rule is that: the the very high standard of proof that a child must present in
status and filiation of a child cannot be compromised. Art. order to establish filiation.
164 of the FC is clear that a child who is conceived or born
during the marriage of his parents is legitimate (Concepcion Note: The birth certificate that was presented by the plaintiff-
v. CA, G.R. No. 123450. August 31, 2005). minor appears to have been prepared without the knowledge or
consent of the putative father. It is therefore not a competent
piece of evidence on paternity. The local civil registrar in this case
Q: What is the effect of Ma. Theresas claim that the child
has no authority to record the paternity of an illegitimate child on
is her illegitimate child with her second husband, to the the information of a third person. Similarly, a baptismal certificate,
status of the child? while considered a public document, can only serve as evidence of
the administration of the sacrament on the date specified therein
A: None. This declaration an avowal by the mother that but not the veracity of the entries with respect to the child's
her child is illegitimate is the very declaration that is paternity (Macadangdang v. CA, 100 SCRA 73). Thus, certificates
proscribed by Art. 167 of the FC. This proscription is in issued by the local civil registrar and baptismal certificates are per
consonance with, among others, the intention of the law to se inadmissible in evidence as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence to prove the same
lean towards the legitimacy of children (Concepcion v. CA,
(Jison v. CA, 350 Phil. 138; Cabatania v. CA, G.R. No. 124814.
G.R. No. 123450. August 31, 2005). October 21, 2004).

Q: In a petition for issuance of letters of administration, Q: Ann Lopez, represented by her mother Araceli Lopez,
Cheri Bolatis alleged that she is the sole legitimate filed a complaint for recognition and support of filiation
daughter of decedent, Ramon and Van Bolatis. Phoebe, against Ben-HurNepomuceno. She assailed that she is the
the decedent's second wife, opposed the petition and illegitimate daughter of Nepomuceno submitting as
questioned the legitimate filiation of Cheri to the evidence the handwritten note allegedly written and
decedent, asserting that Cheris birth certificate was not signed by Nepomuceno. She also demanded for financial
signed by Ramon and that she had not presented the support along with filial recognition. Nepomuceno denied
marriage contract between her alleged parents which the assertions reasoning out that he was compelled to
would have supported her claim. execute the handwritten note due to the threats of the
National Peoples Army. RTC ruled in favor of Ann. Is the
In said birth certificate, it was indicated that her birth was trial court correct?
recorded as the legitimate child of Ramon and Van Bolatis,
and contains as well the word "married" to reflect the A: Anns demand for support is dependent on the
union between the two. However, it was not signed by determination of her filiation. However, she relies only on
Ramon and Vanemon Bolatis. It was merely signed by the the handwritten note executed by petitioner. The note
attending physician, who certified to having attended to does not contain any statement whatsoever about her
the birth of a child. Does the presumption of legitimacy filiation to petitioner. It is, therefore, not within the ambit
apply to Cherimon? of Article 172(2) vis--vis Art. 175 of the FC which admits as
competent evidence of illegitimate filiation an admission of
A: No. Since the birth certificate was not signed by Cher's filiation in a private handwritten instrument signed by the
alleged parents but was merely signed by the attending parent concerned.
physician, such a certificate, although a public record of a
private document is, under Sec. 23, Rule 132 of the Rules of
Court, evidence only of the fact which gave rise to its

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65 FACULTY OF CIVIL LAW
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The Court is mindful that the best interests of the child in
cases involving paternity and filiation should be advanced. Q: How may illegitimate children establish their
It is, however, just as mindful of the disturbance that illegitimate filiation should their status be impugned?
unfounded paternity suits cause to the privacy and peace of When must the action to claim illegitimacy be brought?
the putative fathers legitimate family (Ben-
HurNepomuceno v. Archbencel Ann Lopez, represented by A: Illegitimiate children may establish their illegitimate
her mother Araceli Lopez G.R. No. 181258, March 18, 2010). filiation in the same way and on the same evidence as
st
legitimate children. (Art. 175, 1 sentence, FC)
ILLEGITIMATE CHILDREN
The action must be brought in the same period specified in
Q: Who are illegitimate children? Art. 173 of the FC, except when the action is based on the
nd
2 par. of Art. 172 of the FC, in which case the action may
A: Children conceived and born outside a valid marriage: be brought during the lifetime of the alleged parent. (Art.
1. children born of couples who are not legally married or 175, FC)
of common law marriages
2. children born of incestuous marriage LEGITIMATED CHILDREN
3. children born of bigamous marriage
4. children born of adulterous relations between parents Q: Who are legitimated children?
5. children born of marriages which are void for reasons of
public policy under Art. 18 A; Legitimated children are those who, because of the
6. children born of couples below 18, whether they are subsequent marriage of their parents to each other are by
married (which marriage is valid) or not legal fiction, considered legitimate.
7. children born of void marriages under Art. 35, except
where the marriage is void for lack of authority on the Q: What is legitimation?
part of the solemnizing officer, but the parties or either
of them believed in good faith that the solemnizing A: Legitimation is a remedy or process by means of which
officer had authority, in which case the marriage will be those who in fact not born in wedlock and should therefore
considered valid and the children will be considered be ordinarily illegitimate, are by fiction, considered
legitimate. legitimate.

Q: What are the rights of an illegitimate child? Q: Who are entitled to legitimation?

A: A: Only children conceived and born outside of wedlock of


1. They shall use the surname of the mother; parents who, at the time of conception, were not
2. They shall be under the parental authority of the disqualified by any impediment to marry each other or
mother; were so disqualified only because either or both of them
3. They shall be entitled to support in conformity with were below eighteen (18) years of age (Art. 177, FC as
the FC; amended by R.A. 9858).
4. They shall be entitled to a legitime which shall consist
of of the legitime of a legitimate child. (Art. 176, FC) Q: How does legitimation take place?

Q: What is the effect of the recognition of an illegitimate A: Legitimation takes place by a subsequent valid marriage
child by the father? between parents.

A: Such recognition would be a ground for ordering the Note: The annulment of a voidable marriage shall not affect
latter to give support to, but not the custody of the child. the legitimation. (Art. 178, FC)
The law explicitly confers to the mother sole parental
authority over an illegitimate child; it follows that only if Q: When does legitimation take place?
she defaults can the father assume custody and authority
over the minor (Briones v. Miguel, G.R. No. 156343, October A: It shall retroact to the time of the childs birth. (Art 180,
18, 2004). FC)

Q: In what instances may an illegitimate child use the Q: Who may impugn legitimation?
surname of their father?
A: Only by those who are prejudiced in their rights.
A: RAP
1. Filiation has been Recognized by the father through Q: What are the requisites of legitimation?
the record of birth appearing in the civil register
2. Admission in public document A:
3. Private handwritten instrument is made by the father 1. Child must have been conceived and born outside of
wedlock;
Note: Provided that the father has the right to institute an action 2. Childs parents, at the time of formers conception,
before the regular courts to prove non-filiation during his lifetime. were not disqualified by any impediment to marry
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 66
PERSONS AND FAMILY RELATIONS
each other or were so disqualified only because either Q: Can Laica bring an action to impugn her own status on
or both of them were below eighteen (18) years of the ground that based on DNA results, Roderick is her
age; biological father?
3. The subsequent valid marriage of the parents.
A: No, she cannot impugn her own filiation. The law does
Q: Why is an illegitimate child of a woman who gets not allow a child to impugn his or her own filiation. In the
married allowed to bear the surname of her spouse, while problem, Laicas legitimate filiation was accorded to her by
a legitimate child may not? operation of law which may be impugned only by Brad, or
his heirs in the cases provided by law within the
A: To allow the child to adopt the surname of his mothers prescriptive period.
second husband, who is not his father, could result in
confusion in his paternity. It could also create the suspicion Q: Can Laica be legitimated by the marriage of her
that the child, who was born during the covertures of his biological parents?
mother with her first husband, was in fact sired by the
second husband, thus bringing his legitimate status into A: No she cannot be legitimated by the marriage of her
discredit (Republic v. Vicencio, G.R. No. 88202. biological parents. In the first place she is not, under the
December14, 1998). law, the child of Roderick. In the second place, her
biological parents could not have validly married each other
Q: Roderick and Faye were high school sweethearts. When at the time she was conceived and born simply because
Roderick was 18 and Faye, 16 years old, they started living Faye was still married to Roderick at that time. Under Art.
together as husband and wife without the benefit of 177 of the FC, only children conceived or born outside of
marriage. When Faye reached 18 years of age, her parents wedlock of parents who, at the time of the conception of
forcibly took her back and arranged for her marriage to the child were not disqualified by any impediment to marry
Brad. Although Faye lived with Brad after the marriage, each other, may be legitimated.
Roderick continued to regularly visit Faye while Brad was
away at work. During their marriage, Faye gave birth to a Q: Who may oppose legitimation? Within what time may
baby girl, Laica. When Faye was 25 years old, Brad the impugnation of the legitimation be made?
discovered her continued liaison with Roderick and in one
of their heated arguments, Faye shot Brad to death. She A: Legitimation may be impugned only by those who are
lost no time in marrying her true love Roderick, without a prejudiced in their rights, within 5 years from the time their
marriage license, claiming that they have been cause of action accrues, that is, from the death of the
continuously cohabiting for more than 5 years. Was the putative parent.
marriage of Roderick and Faye valid? (2008 Bar Question)

A: The marriage was void because there was no marriage


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

Q: What is the filiation status of Laica?

A: Having been born during the marriage of Faye and Brad,


she is presumed to be the legitimate child of Faye and Brad,
she is presumed to be the legitimate child of Faye and Brad.
This presumption had become conclusive because the
period of time to impugn her filiation had already
prescribed.

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67 FACULTY OF CIVIL LAW
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RIGHTS OF CHILDREN 4. Full civil capacity and legal rights;
5. Not been Convicted of any crime involving moral
Q: What are the rights of legitimate and illegitimate turpitude;
children? 6. Emotionally and psychologically capable of caring for
children;
A: 7. GR: At least 16 years older than adoptee

LEGITIMATE CHILDREN ILLEGITIMATE CHILDREN XPN: It is not necessary that adopter be at least
16 years older:
Surname a. Adopter is the biological parent of the
Bear the surnames of both Bear the surname of either adoptee,
parents (mother and the mother or the father b. Adopter is the spouse of adoptees parent.
father) under R.A. 9255
Q: What are the qualifications of an alien who may adopt
Support
under R.A. 8552?
Receive support from:
1. Parents;
A: SD-3
2. Ascendants; and Receive support according to
1. Possesses Same qualifications as those enumerated for
3. in proper cases, provision of FC
Filipino adopters;
brothers and sisters
2. His country has Diplomatic relations with the
under Art. 174.
Philippines;
Legitime 3. GR: Has been living in the Philippines for at least 3
Full Legitimes and other Share is equivalent to of continuous years prior to the application for adoption
successional rights under the share of a legitimate and maintains such residence until adoption decree
the NCC child has been entered.
Period for filing action for claim of legitimacy or
illegitimacy XPNs:
For primary proof: his/her a. He is a former Filipino who seeks to adopt a
whole lifetime relative within the 4
th
civil degree of
His/her whole lifetime
regardless of type of proof consanguinity or affinity,
For secondary proof: b. He is married to a Filipino and seeks to adopt
provided under Art. 172
only during the lifetime of jointly with his spouse a relative within the 4
th

the alleged parent degree of consanguinity or affinity,


Transmissibility of right to file an action to claim c. He is married to a Filipino and seeks to adopt
legitimacy the legitimate or illegitimate child of his
Yes No Filipino spouse.
Right to inherit ab intesto
No right to inherit ab intesto Q: How may a guardian adopt his ward?
from legitimate children and
Yes relatives of father and A: A guardian may only adopt his ward after termination of
mother under Art. 992, NCC guardianship and clearance of his financial accountabilities.
(Iron Curtain Rule)
Q: What is the rule when a person seeking to adopt has a
ADOPTION spouse?

DOMESTIC ADOPTION LAW A: GR: Such person must adopt with his spouse jointly. The
general rule is that husband and wife shall jointly adopt.
WHO CAN ADOPT
XPNs:
Q: Who may adopt? 1. One spouse seeks to adopt the legitimate child of
the other;
A: 2. One spouse seeks to adopt his own illegitimate
1. Filipino citizens; child;
2. Aliens; 3. Spouses are legally separated.
3. Guardians with respect to their ward.
Q: Spouses Primo and Monica Lim, childless, were
Q: What are the qualifications of a Filipino who may entrusted with the custody of two minor children, the
adopt? parents of whom were unknown. Eager of having children
of their own, the spouses made it appear that they were
A: LPG-FEC-16 the childrens parents by naming them Michelle P. Lim and
1. Must be of Legal age; Michael Jude Lim. Subsequently, Monina married Angel
2. In a Position to support and care for his children; Olario after Primos death of her husband. She decided to
3. Good moral character; adopt the children by availing the amnesty given under
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 68
PERSONS AND FAMILY RELATIONS
R.A. 8552 to those individuals who simulated the birth of a ADOPTEE
child. She filed separate petitions for the adoption of
Michelle, then 25 years old and Michael, 18. Both Michelle Q: Who may be adopted?
and Michael gave consent to the adoption.
A:
The trial court dismissed the petition and ruled that 1. Any person below 18 of age who has been
Monina should have filed the petition jointly with her new administratively or judicially declared available for
husband. Monina, in a Motion for Reconsideration argues adoption;
that mere consent of her husband would suffice and that 2. Legitimate child of one spouse by the other spouse;
joint adoption is not needed, for the adoptees are already 3. Illegitimate child by a qualified adopter to improve the
emancipated. status of said child to that of legitimacy;
4. Person of legal age, if prior to the adoption, said
Is the trial court correct in dismissing the petitions for person has been consistently considered and treated
adoption? by adopters as their child since minority;
5. Child whose adoption has been previously rescinded;
A: Yes. Sec. 7 Art. 3 of R.A. 8552 reads: Sec. 7 Husband 6. Child whose biological parents have died provided no
and wife shall jointly adopt xxx. proceedings have been initiated within 6 months from
time of death.
The use of the word shall in the above-quoted provision
means that joint adoption by the husband and the wife is Q: What is the definition of child?
mandatory. This is in consonance with the concept of joint
parental authority over the child which is the ideal A: A child is any person below 18 years old.
situation. As the child to be adopted is elevated to the level
of a legitimate child, it is but natural to require the spouses Q: What is the definition of child legally free for
to adopt jointly. The rule also ensures harmony between adoption?
the spouses.
A: A child voluntarily or involuntarily committed to the
The law is clear. There is no room for ambiguity. Monina, DSWD, freed of his biological parents, guardians, adopters
having remarried at the time the petitions for adoption in case of rescission.
were filed, must jointly adopt. Since the petitions for
adoption were filed only by Monina herself, without joining Q: Whose written consent is necessary for adoption?
her husband, Olario, the trial court was correct in denying
the petitions for adoption on this ground (In Re: Petition for A:
Adoption of Michelle P. Lim, In Re: Petition for Adoption of 1. Adoptee, if 10 years of age and over;
Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992-93, 2. Biological parents of the child, if known or the legal
May 21, 2009). guardian, or the proper government instrumentality
which has legal custody of the child;
Q: Is joint adoption still needed when the adoptees are 3. Legitimate children of the adopter, if 10 years old or
already emancipated? over;
4. Illegitimate children of the adopter, if 10 years old or
A: Yes. Even if emancipation terminates parental authority, over and living with him;
the adoptee is still considered a legitimate child of the 5. Spouse of the adopted, if married;
adopter with all the rights of a legitimate child such as: (1) 6. Spouse of the adopter, if married.
to bear the surname of the father and the mother; (2) to
receive support from their parents; and (3) to be entitled to Q: Bernadette filed a petition for adoption of the three
the legitime and other successional rights. Conversely, the minor children of her late brother, Ian. She alleged that
adoptive parents shall, with respect to the adopted child, when her brother died, the children were left to the care
enjoy all the benefits to which biological parents are of their paternal grandmother, Anna, who went to Italy.
entitled such as support and successional rights. This grandmother died however, and so she filed the
petition for adoption. The minors gave their written
Q: May a person who already has children of his own consent to the adoption and so did all of her own grown-
adopt? up children. The trial court granted the decree of adoption
even though the written consent of the biological mother
A: Yes, a person who already has children of his own may of the children was not adduced by Bernadette. Was the
still adopt, provided, that he is in a position to support and trial court correct in granting the decree of adoption?
care for his children, legitimate or illegitimate, in keeping
with the means of the family, both material and otherwise. A: No. The rule is adoption statutes must be liberally
(Art. 183, par. 1, FC) construed in order to give spirit to their humane and
salutary purpose which is to uplift the lives of unfortunate,
needy or orphaned children. However, the discretion to
approve adoption proceedings on the part of the courts
should not to be anchored solely on those principles, but
with due regard likewise to the natural rights of the parents

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69 FACULTY OF CIVIL LAW
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over the child. The written consent of the biological parents 5. In legal and intestate succession, the adopters and the
is indispensable for the validity of the decree of adoption. adoptee shall have reciprocal rights of succession
Indeed, the natural right of a parent to his child requires without distinction from legitimate filiation. However,
that his consent must be obtained before his parental rights if the adoptee and his/her biological parents had left a
and duties may be terminated and vested in the adoptive will, the law on testamentary succession shall govern.
parents. In this case, since the minors' paternal
grandmother had taken custody of them, her consent Q: State the effects of rescission of the adoption in the
should have been secured instead in view of the absence of Domestic Adoption Act of 1998 (RA 8552).
the biological mother. This is so under Sec. 9 (b) of R.A.
8552, otherwise known as the Domestic Adoption Act of A:
1998. Diwata failed in this respect, thus necessitating the 1. If adoptee is still a minor or is incapacitated
dismissal of her petition for adoption (Landingin v. Republic, Restoration of:
G.R. No. 164948, June 27, 2006). a. Parental authority of the adoptees biological
parents, if known or
Q: On what grounds may an adoptee seek the rescission of b. Legal custody of the DSWD;
the adoption? 2. Reciprocal rights and obligations of the adopters and
adoptee to each other shall be extinguished;
A: 3. Court shall order the civil registrar to cancel the
1. Attempt on the life of the adoptee; amended certificate of birth of the adoptee and
2. Sexual assault or violence; restore his/her original birth certificate;
3. Abandonment and failure to comply with parental 4. Succession rights shall revert to its status prior to
obligations; adoption, but only as of the date of judgment of
4. Repeated physical or verbal maltreatment by the judicial rescission;
adopter. 5. Vested rights acquired prior to judicial rescission shall
be respected.
Q: May the adopter seek the rescission of the adoption?
Q: Despite several relationships with different women,
A: No. Adopter cannot rescind but he may disinherit the Andrew remained unmarried. His first relationship with
adoptee. Brenda produced a daughter, Amy, now 30 years old. His
second, with Carla, produced two sons: Jon and Ryan. His
Q: What are the grounds by which an adopter may third, with Donna, bore him two daughters: Vina and
disinherit adoptee? Wilma. His fourth, while Elena, bore him no children
although Elena has a daughter Jane, from a previous
A: relationship. His last, with Fe, produced no biological
1. Groundless accusation against the testator of a crime children but they informally adopted without court
punishable by 6 years or more imprisonment; proceedings, Sandy, now 13 years old, whom they
2. Found guilty of attempt against the life of the testator, consider as their own. Sandy, now 13 years old, whom
his/her spouse, descendant or ascendant; they consider as their own. Sandy was orphaned as a baby
3. Causes the testator to make changes or changes a and was entrusted to them by the midwife who attended
testators will through violence, intimidation, fraud or to Sandys birth. All the children, including Amy, now live
undue influence; with Andrew in his house. Is there any legal obstacle to
4. Maltreatment of the testator by word or deed; the legal adoption of Amy by Andrew? To the legal
5. Conviction of a crime which carries a penalty of civil adoption of Sandy by Andrew and Elena? (2008 Bar
interdiction; Question)
6. Adultery or concubinage with the testators wife;
7. Refusal without justifiable cause to support the parent A: No, there is no legal obstacle to the legal adoption of
or ascendant; Amy by Andrew. While a person of age may not be
8. Leads a dishonorable or disgraceful life. adopted, Amy falls within two exceptions: (1) she is an
illegitimate child and she is being adopted by her
Q: What are the effects of adoption? illegitimate father to improve her status; and (2) even on
the assumption that she is not an illegitimate child of
A: Andrew, she may still be adopted, although of legal age,
1. GR: Severance of all legal ties between the biological because she has been consistently considered and treated
parents and the adoptee and the same shall then be by the adopter as his own child since minority. In fact, she
vested on the adopters has been living with him until now.

XPN: In cases where the biological parent is the There is a legal obstacle to the adoption of Sandy by
spouse of the adopter; Andrew and Elena. Andrew and Elena cannot adopt jointly
because they are not married.
2. Deemed a legitimate child of the adopter;
3. Acquires reciprocal rights and obligations arising from
parent-child relationship;
4. Right to use surname of adopter;
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PERSONS AND FAMILY RELATIONS
Q: In his old age, can Andrew be legally entitled to claim
support from Amy, Jon, Ryan, Vina, Wilma and Sandy A: It depends. If Sonny and Sarah have been residing in the
assuming that all of them have the means to support him? Philippines for at least 3 years prior to the effectivity of R.A.
8552, the petition may be granted. Otherwise, the petition
A: Andrew can claim support from all of them, except from cannot be granted because the American husband is not
Sandy, who is not his child, legitimate, illegitimate or qualified to adopt.
adopted.
While the petition for adoption was filed in 1990, it was
Q: Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally considered refiled upon the effectivity of R.A. 8552. This is
claim support from each other? the law applicable, the petition being still pending with the
lower court. Under the Act, Sarah and Sonny must adopt
A: Amy, Jon, Ryan, Vina and Wilma can ask support from jointly because they do not fall in any of the exceptions
each other because they are half-blood brothers and where one of them may adopt alone. When husband and
sisters, and Vina and Wilma are full-blood sisters (Art. 195 wife must adopt jointly, the Supreme Court has held in a
[5], FC), but not Sandy who is not related to any of them. line of cases that both of them must be qualified to adopt.
While Sarah, an alien, is qualified to adopt, for being a
Q: Can Jon and Jane legally marry? former Filipino citizen who seeks to adopt a relative within
th
the 4 degree of consanguinity or affinity, Sonny, an alien,
A: Jon and Jane can legally marry because they are not is not qualified to adopt because he is neither a former
related to each other. Jane is not a daughter of Andrew. Filipino citizen nor married to a Filipino. One of them not
being qualified to adopt, their petition has to be denied.
INTERCOUNTRY ADOPTION ACT OF 1995 However, if they have been residents of the Philippines 3
(R.A. 8043) years prior to the effectivity of the Act and continues to
reside here until the decree of adoption is entered, they are
ADOPTER qualified to adopt the nephew of Sarah under Sec. 7(b)
thereof, and the petition may be granted.
Q: Who may adopt?
ADOPTEE
A:
1. Any alien; Q: Who may be adopted?
2. Filipino citizen, both permanently residing abroad.
A: Only a legally free child may be adopted provided the
Q: What are the qualifications needed for a Filipino or following are submitted:
alien to adopt? 1. Child study;
2. Birth certificate/ foundling certificate;
A: 3. Deed of Voluntary Commitment/Decree of
1. At least 27 years old and 16 years older than the child Abandonment/Death Certificate of parents;
to be adopted at the time of the application unless 4. Medical evaluation or history;
adopter is the parent by nature of the child; 5. Psychological evaluation;
2. If married, his spouse must jointly file for adoption; 6. Recent photo;
3. Has the capacity to act or assume all rights and
responsibilities of parental authority; Q: What is the definition of child?
4. Not been convicted of a crime involving moral
turpitude; A: A child is any person below 15 years old.
5. Eligible to adopt under his national law;
6. In a position to provide for proper care and support Note: No child shall be matched to a foreign adoptive
and give necessary moral values; family unless it is satisfactorily shown that the child cannot
7. Agrees to uphold the basic rights of the child be adopted in the Philippines.
mandated by the UN convention of rights of Child and
the Philippine Laws; GR: There shall be no physical transfer of a voluntarily
8. Comes from a country with which the Philippines has committed child earlier than 6 months from the date of
diplomatic relations and adoption is allowed under his execution of Deed of Voluntary Commitment.
national law;
9. Possesses all the qualifications and none of the XPN:
disqualifications under the law or other applicable 1. Adoption by relative;
Philippine laws. 2. Child with special medical condition.

Q: Sometime in 1990, Sarah, born a Filipino but by then a INTER-COUNTRY ADOPTION BOARD
naturalized American citizen, and her American husband
Sonny Cruz, filed a petition in the Regional Trial Court of Q: What is the function of Inter-Country Adoption Board?
Makati, for the adoption of the minor child of her sister, a
Filipina, can the petition be granted? (2000 Bar Question) A: The Inter-Country Adoption Board acts as the central
authority in matters relating to inter-country adoption. The

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71 FACULTY OF CIVIL LAW
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Board shall ensure that all the possibilities for adoption of Q: What are the rules on the amount of support?
the child under the Family Code have been exhausted and
that the inter-country adoption is in the best interest of the A: Amount of support shall be in proportion to the
child resources or means of the giver and to the necessities of
the recipient. It shall be increased or reduced
Q: What is trial custody? proportionately, according to the increase/reduction of
necessities of the recipient and the resources of the person
A: It is the pre-adoptive relationship which ranges 6 months obliged.
from the time of the placement. It starts from the actual
transfer of the child to the applicant who, as actual Q: What are the different kinds of support?
custodian, shall exercise substitute parental authority over
the person of the child A:
1. Legal required or given by law;
Note: 2. Judicial required by court;May be:
1. If unsatisfactory the relationship shall be suspended by the a. Pendente lite
board and the foreign adoption agency shall arrange for the b. In a final judgment
childs voluntary care.
3. Conventional by agreement.
2. If satisfactory the Board shall submit the written consent of
the adoption to the foreign adoption agency within 30 days
after the request of the latters request. Q: What are the rules on support of illegitimate children
of either spouse?
SUPPORT
A: It depends upon the property regime of the spouses.
Q: What is support? 1. ACP:
a. Exclusive property of the debtor spouse shall be
A: It comprises everything indispensable for sustenance, liable.
dwelling, clothing, medical attendance and transportation,
in keeping with the financial capacity of the family, b. If the exclusive property is insufficient, the
including the education of the person entitled to be community is liable.
supported until he completes his education or training for
some Note: The same being considered as advance made by the
absolute community to said spouse.

2. CPG:
profession, trade or vocation, even beyond the age of
a. Property of the debtor-spouse is liable.
majority. (Art. 194, FC)
b. If the debtor spouse has no property or the same
is insufficient, it may be enforced against the
Q: What are the characteristics of support?
conjugal property.
A: PRIM PEN
WHO ARE OBLIGED
1. Personal
2. Reciprocal on the part of those who are by law bound
Q: Who are persons obliged to support each other?
to support each other
3. Intransmissible
A:
4. Mandatory
1. Spouses;
5. Provisional character of support judgment
2. Legitimate ascendants & descendants;
6. Exempt from attachment or execution
3. Parents and their legitimate children, and the
7. Not subject to waiver or compensation
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children, and the
WHAT IT COMPRISES
legitimate and illegitimate children of the latter;
5. Legitimate brothers and sisters whether full or half-
Q: What comprises support?
blood. (Art. 195, FC)
A: Support comprises of everything indispensable for: SDC
Q: Are brothers and sisters not legitimately related
MET
likewise bound to support each other?
1. Sustenance
2. Dwelling
A: GR: Yes, whether full or half-blood.
3. Clothing
4. Medical attendance
XPN: When the need for support of the brother or
5. Education includes schooling or training for some
sister, being of age, is due to a cause imputable to the
profession, trade or vocation, even beyond the age of
claimants fault or negligence. In this case, the
majority
illegitimate brother or sister has no right to be
6. Transportation includes expenses going to and from
supported.
school, or to from place of work

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Q: What are the sources of support? no means to support them, then Francisco, as the girls
grandfather, should then extend the support needed by
A: them.
SOURCES OF SUPPORT
During Note: The second option in Art. 204 of the FC, that of taking in the
Pending Litigation After Litigation family dwelling the recipient, is unavailing in this case since the
Marriage
filing of the case has evidently made the relations among the
Spouses
parties bitter and unpleasant (Mangonon, et al. v. CA, et al., G.R.
ACP No. 125041, Jun. 30, 2006).
GR: From the
community property Q: Marcelo and Juana called Dr. Arturo to their house to
assets GR: No render medical assistance to their daughter-in-law who
XPN: If Art. 203 obligation to was about to give birth to a child. He performed the
applies, that if the support necessary operation. When Dr. Arturo sought payment,
claimant spouse is the Marcelo and Juana refused to pay him without giving any
guilty spouse, he/she is XPN: If there is good reason. Who is bound to pay the bill for the services
From the not entitled to support. Legal rendered by Arturo?
community
Separation. In
property CPG which case, the A: Her husband, not her father and mother- in-law. The
Support is considered court may rendering of medical assistance in case of illness is
an advance of such require the comprised among the mutual obligations to which the
spouses share. guilty spouse to spouses are bound by way of mutual support (Arts. 142 and
give support 143). If every obligation consists in giving, doing or not
Note: The rule does not doing something (Art. 1088), and spouses are mutually
apply if the spouses are
bound to support each other, there can be no question but
under ACP based on Art.
153. that, when either of them by reason of illness should be in
Children need of medical assistance, the other is under the
From the unavoidable obligation to furnish the necessary services of
From the a physician in order that health may be restored, and he or
From the community separate
community she may be freed from the sickness by which life is
property properties of
property jeopardized.
the spouses
Q: Cheryl married Edward Lim they have three children.
Q: To whom does the liability to support devolve upon?
Cheryl, Edward and their children lived at the house of
Edwards parents, Prudencio and Filomena, together with
A: In the following order: S-DAB
Edwards ailing grandmother and her husband. Edward
1. Spouse
was employed with the family business, which provided
2. Descendants in the nearest degree
him with a monthly salary of P6,000 and shouldered the
3. Ascendants in the nearest degree
family expenses. Cheryl had no steady source of income.
4. Brothers and sisters
Cheryl caught Edward in a very compromising situation
with the midwife of Edwards
Q: Belen, in behalf of her minor children, instituted a
petition for declaration of legitimacy and support against
grandmother. After a violent confrontation with Edward,
Federico, their alleged father, and Francisco, father of
Cheryl left the Forbes Park residence. She subsequently
Federico. It appears that the marriage of the two was
sued, for herself and her children, Edward, Edwards
annulled due to the minority of Federico. May Francisco
parents and grandparents for support. Edward and his
be ordered to give support?
parents were ordered by the RTC to jointly provide,
monthly support to Cheryl and her children. Is the courts
A: Yes. There appears to be no dispute that the children are
judgment in making Edwards parents concurrently liable
indeed the daughters of Federico by Belen. Under Art. 199
with Edward to provide support to Cheryl and her children
of the FC, Whenever two or more persons are obliged to
correct?
give support, the liability shall devolve upon the following
persons in the following order herein provided:
A: Yes. However, the Supreme Court modified the appealed
1. The spouse;
judgment by limiting liability of Edwards parents to the
2. The descendants in the nearest degree;
amount of monthly support needed by Cheryls children.
3. The ascendants in the nearest degree: and
Edwards parents are liable to provide support but only to
4. The brothers and sisters.
their grandchildren. By statutory and jurisprudential
mandate, the liability of ascendants to provide legal
The obligation to give support rests principally on those
support to their descendants is beyond cavil. Petitioners
more closely related to the recipient. However, the more
themselves admit as much they limit their petition to the
remote relatives may be held to shoulder the responsibility
narrow question of when their liability is triggered, not if
should the claimant prove that those who are called upon
they are liable.
to provide support do not have the means to do so. Here,
since it has been shown that the girls' father, Federico, had

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73 FACULTY OF CIVIL LAW
CIVIL LAW
There is no showing that private respondent is without AMOUNT
means to support his son; neither is there any evidence to
prove that petitioner, as the paternal grandmother, was Q: What is the amount of support?
willing to voluntarily provide for her grandson's legal
support. Cheryl is unable to discharge her obligation to A: Amount shall be in proportion to the resources or means
provide sufficient legal support to her children. It also of the giver and to the necessities of the recipient. (Art.
shows that Edward is unable to support his children. This 201, FC)
inability of Edward and Cheryl to sufficiently provide for
their children shifts a portion of their obligation to the Q: May the amount of support be reduced or increased?
ascendants in the nearest degree, both in the paternal
(petitioners) and maternal lines, following the ordering in A: Yes. Support may be decreased or increased
Article 199. (Spouses Lim v. Cheryl Lim, G.R. No. 163209, proportionately according to the reduction or increase of
October 30, 2009) the necessities of the recipient and the resources of the
person obliged to furnish the same. (Art. 202, FC)
SUPPORT DURING MARRIAGE LITIGATION
WHEN DEMANDABLE
Q: What is the source of support during the pendency of
legal separation, annulment and declaration of nullity of Q: When is the obligation to give support demandable?
marriage proceedings?
A: From the time the person who has a right to receive
A: The spouses and their common children shall be support needs it for maintenance.
supported from the properties of the absolute community
or the conjugal partnership. Q: When shall support be paid?

Q: Are the spouses still obliged to render mutual support A: Only from the date of judicial or extrajudicial demand.
after final judgment granting the petition?
Note: The right to support does not arise from mere fact of
A: GR: No. The obligation of mutual support ceases after relationship but from imperative necessity without which it cannot
final judgment. be demanded. The law presumes that such necessity does not exist
unless support is demanded.
XPN: In case of legal separation the Court may order
that the guilty spouse shall give support to the OPTIONS
innocent one.
Q: What are the options given to persons giving support?
Q: H and W are living separately. Both had been unfaithful
to each other. After their separation, H had been giving A:
money to W for her support. Subsequently, W brought an 1. To Give a fixed monthly allowance; or
action against H for separate maintenance. Will the action 2. To Receive and maintain the recipient in the givers
prosper? home or family dwelling. (Art. 204, FC)

A: Yes. The principle of in pari delicto is applicable. Both are Q: What if support is given by a stranger without the
at fault. Consequently, H cannot avail of himself of the knowledge of the person obliged to give support?
defense of adultery of W. Besides, the act of H in giving
money to W is implied condonation of the adultery of W A: GR: The stranger shall have the right of reimbursement.
(Amacen v. Baltazar, L-10028, May 28, 1958).
XPN: Unless it appears that he gave it without any
Q: May the woman oblige her husband to pay the intention of being reimbursed. (Art. 206, FC)
attorneys fee for the lawyer who defended her in a
criminal action for adultery instituted against her by the Q: What if the person obliged to give support unjustly
husband? refuses or fails to give support when urgently needed?

A: It depends. A: Any third person may furnish support to the needy


individual, with a right of reimbursement. (Art. 207, FC)
She may, in case of acquittal. Expenses such as judicial costs
and attorneys fees incurred by the wife to defend herself ATTACHMENT
against unjust prosecution are chargeable as support
against the husband. However, the rule is different in case Q: Is the right to receive support subject to attachment or
of conviction. Adultery on the part of the wife, when execution?
proved, is a valid defense against an action for support
(Quinatana v. Lerma, G.R. No. L-7426, February 5, 1913). A: GR: No. The right to receive support and any money or
property obtained as support cannot be attached nor be
subject to execution to satisfy any judgment against the
recipient.
UNIVERSITY OF SANTO TOMAS
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PERSONS AND FAMILY RELATIONS
latter, any third person may furnish support to the needy
XPN: In case of contractual support or support given individual, with right of reimbursement from the person
by will, the excess in amount beyond that required for obliged to give support." The resulting juridical relationship
legal support shall be subject to levy on attachment or between the Edward and Noel is a quasi-contract, an
execution. equitable principle enjoining one from unjustly enriching
himself at the expense of another (Lacson v. Lacson, et al.,
Note: Contractual support shall be subject to adjustment GR No. 150644, August 28, 2006).
whenever modification is necessary due to changes in
circumstances beyond the contemplation of the parties Q: Fe and her son Martin sued Martins alleged biological
father Arnel for support. Arnel denied having sired Martin
Q: Jurisdictional questions may be raised at any time. arguing that his affair and intimacy with Fe had allegedly
What is the exception with respect to the provisional ended in long before Martins conception. As a result, Fe
character of judgment for support and the application of and Martin moved for the issuance of an order directing
estoppel? all the parties to submit themselves to DNA paternity
testing. The said motion was granted by the court. Did the
A: Judgment for support is always provisional in character. order of the court convert the complaint for support to a
Res Judicata does not apply. The lower court cannot grant a petition for recognition?
petition based on grounds, such as bigamy, not alleged in
the petition. Such a decision based on grounds not alleged A: The assailed order did not convert the action for support
in the petition is void on the ground of no jurisdiction. into one for recognition but merely allowed Fe to prove
their cause of action. But even if the order effectively
However, if the lower courts void decision is not assailed integrated an action to compel recognition with an action
on appeal which dealt only with the matter of support, the for support, such was valid and in accordance with
losing party is now estopped from questioning the jurisprudence. In Tayag v. Court of Appeals (209 SCRA 665),
declaration of nullity and the SC will not undo the judgment the Supreme Court allowed the integration of an action to
of the RTC declaring the marriage null and void for being compel recognition with an action to claim one's
bigamous. inheritance. A separate action will only result in a
multiplicity of suits. Furthermore, the declaration of
It is axiomatic that while a jurisdictional question may be filiation is entirely appropriate to the action for support
raised at any time, this however admits of an exception (Agustin v. CA, G.R. No. 162571, June 15, 2005).
where estoppel has supervened (Lam v. Chua, G.R. No.
131286, March 18, 2004). Q: Can DNA testing be ordered in a proceeding for support
without violating the constitutional right against self-
Q: Edward abandoned his legitimate children when they incrimination?
were minors. After 19 years from the time Edward left
them, they, through their mother, finally sued him for A: Yes. In People v. Yatar (428 SCRA 504), the Supreme
support, which the court granted. The court ordered him Court had already upheld the constitutionality of
to pay 2M pesos as support in arrears. compulsory DNA testing and the admissibility of the results
thereof as evidence. Moreover, it has mostly been in the
Edward assails the grant of the support in arrears as areas of legality of searches and seizure and in the
erroneous since under Art. 203 of the FC, there was never infringement of privacy of communication where the
any demand for support, judicial or extra-judicial, from constitutional right to privacy has been critically at issue.
them. Rule on his contention.
If, in a criminal case, an accused whose very life is at stake
A: No. Edward could not possibly expect his daughters to can be compelled to submit to DNA testing, so much more
demand support from him considering their tender years at so may a party in a civil case, who does not face such dire
the time that he abandoned them. In any event, the mother consequences, be likewise compelled. DNA testing and its
of the girls had made the requisite demand for material results is now acceptable as object evidence without
support although this was not in the standard form of a running afoul self-incrimination rights of a person (Agustin
formal written demand. Asking one to give support owing v. CA, GR No. 162571, June 15, 2005).
to the urgency of the situation is no less a demand just
because it came by way of a request or a plea (Lacson v. PARENTAL AUTHORITY
Lacson, et al., G.R. No. 150644, August 28, 2006).
GENERAL PROVISIONS
Q: Noel helped Lea by extending financial help to support
Leas children with Edward. May Noel seek Q: What is patria potestas?
reimbursement of his contributions? If yes, from whom
may he do so? A: The sum total of the rights of parents over the persons
and property of their unemancipated child.
A: Yes. Pursuant to Art. 207 of the FC, Noel can rightfully
exact reimbursement from Edward. This provision reads
that "[W]hen the person obliged to support another unjustly
refuses or fails to give support when urgently needed by the

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75 FACULTY OF CIVIL LAW
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Q: What does parental authority include? XPN: If the fears and apprehensions were unfounded
as to the fathers corrupting influence over the
A: It shall include: children and if it is proven therefore that indeed the
1. Caring for and rearing of such children for civic father is a negative influence because of reasons like
consciousness and efficiency; immorality, drunkenness, etc. on the children, the
2. Development of their moral, mental and physical court, taking into consideration the best interest of the
character and well-being. children, can deny his petition for the exercise of his
visitation rights (Silva v. CA, G.R. No. 114742, July 17,
Q: What are the characteristics of parental authority? 1997).

A: Jo-Na-RePuTe Q: What is meant by the parental preference rule?


1. Jointly exercised by the father and mother;
2. Natural right and duty of the parents; A: The natural parents, who are of good character and who
3. Cannot be Renounced, transferred or waived; can reasonably provide for the child are ordinarily entitled
to custody as against all persons.
XPN: In cases authorized by law such as in cases of
adoption, guardianship and surrender to a children's Q: Who shall exercise parental authority in case of
home or an orphan institution (Santos v. CA, G.R. No. absence, death, remarriage of either parent or legal or de
113054, March 16, 1995). facto separation of parents?

4. Purely personal; A:
1. Absence or death of either parent parent present
Note: It cannot be exercised through agents. shall continue exercising parental authority
2. Remarriage of either parent it shall not affect the
5. Temporary. parental authority over the children, unless the court
appoints another person to be the guardian of the
Q: What are the rules as to the exercise of parental person or property of the children. (Art. 213, FC)
authority? 3. Legal or de facto separation of parents the parent
designated by the court.
A:
1. The father and the mother shall jointly exercise Q: What shall the Court take into account in the
parental authority over the persons of their common designation of the parent?
children.
A: All relevant considerations, especially the choice of the
Note: In case of disagreement, the fathers decision shall child over seven years of age except when the parent
prevail unless there is a judicial order to the contrary. chosen is unfit.

2. If the child is illegitimate, parental authority is with the Note: The relevant Philippine law on child custody for spouses
mother. separated in fact or in law (under the second paragraph of Art. 213
of the FC) is also undisputed: no child under seven years of age
Q: What is visitation rights? shall be separated from the mother x x x. (This statutory awarding
of sole parental custody to the mother is mandatory, grounded on
sound policy consideration, subject only to a narrow exception not
A: It is the right of access of a noncustodial parent to his or
alleged to obtain here.) Clearly then, the Agreements object to
her child or children. establish a post-divorce joint custody regime between respondent
and petitioner over their child under seven years old contravenes
Q: Carlitos Silva and Suzanne Gonzales had a live-in Philippine law. The Philippine courts do not have the authority to
relationship. They had two children, namely, Ramon enforce an agreement that is contrary to law, morals, good
Carlos and Rica Natalia. Silva and Gonzales eventually customs, public order, or public policy (Dacasin v. Dacasin, G.R. No.
separated. They had an understanding that Silva would 168785, February 5, 2010).
have the children in his company on weekends. Silva
claimed that Gonzales broke that understanding on Q: What is the rule as to the custody of a child below 7
visitation rights. Hence, Silva filed a petition for custodial years of age?
rights over the children before the RTC. The petition was
opposed by Gonzales who claimed that Silva often A: GR: No child below 7 years of age shall be separated
engaged in gambling and womanizing which she feared from the mother.
could affect the moral and social values of the children. In
the meantime, Suzanne had gotten married to a Dutch XPN: When the court finds compelling reasons to
national. She eventually immigrated to Holland with her consider otherwise
children Ramon Carlos and Rica Natalia. Can Silva be
denied visitation rights? Note: The paramount consideration in matters of custody of a child
is the welfare and well-being of the child
A: GR: No. The use of the word shall in Art. 213 of the FC is mandatory in
character. It prohibits in no uncertain terms the separation of a

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2013 GOLDEN NOTES 76
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mother and her child below 7 years, unless such separation is Q: Bonifacia Vancil, a US citizen, is the mother of Reeder C.
grounded upon compelling reasons as determined by a court Vancil, a Navy serviceman of USA who died in the said
(Lacson v. San Jose-Lacson, G.R. No. L-23482, August 30, 1968). country on December 22, 1986. During his lifetime, Reeder
had two children named Valerie and Vincent by his
Q: If the parents are separated de facto, who between common-law wife, Helen G. Belmes. Bonifacia obtained a
them has custody over their child/children? favorable court decision appointing her as legal and
judicial guardian over the persons and estate of Valerie
A: In the absence of a judicial grant of custody to one Vancil and Vincent Vancil, Jr. She alleged that Helen was
parent, both are entitled to the custody of their morally unfit as guardian of Valerie considering that
child/children. Helens live-in partner raped Valerie several times. Can
Bonifacia exercise substitute parental authority over
The parent who has been deprived of the rightful custody Valerie and Vincent?
of the child may resort to the remedy of habeas corpus
(Salientes v. Abanilla, G.R. No. 162734, August 29, 2006). A: Bonifacia, as the surviving grandparent, can exercise
substitute parental authority only in case of death, absence
Q: The petition for declaration of nullity filed by Crisanto or unsuitability of Helen. Considering that Helen is very
against his wife included a prayer for custody pendente much alive and has exercised continuously parental
lite of their 4-year old son. The supplication for custody authority over Vincent, Bonifacia has to prove, in asserting
was based on the alleged immorality of the mother who, her right to be the minors guardian, Helens unsuitability.
the husband asserted, was a lesbian. However, the trial Bonifacia, however, has not proffered convincing evidence
court citing Art. 213 of the FC, denied Crisanto's prayer for showing that Helen is not suited to be the guardian of
temporary custody of his son, there having been no Vincent. Bonifacia merely insists that Helen is morally unfit
compelling reason to so order it. Was the trial court as guardian of Valerie considering that her live-in partner
correct in denying Crisantos prayer for temporary raped Valerie several times. (But Valerie, being now of
custody? major age, is no longer a subject of this guardianship
proceeding.)
A: Yes. The petitioner failed to overcome the so-called
"tender-age presumption" rule under Art. 213 of the FC. Even assuming that Helen is unfit as guardian of minor
There was no compelling evidence of the mother's Vincent, still Bonifacia cannot qualify as a substitute
unfitness. Sexual preference or moral laxity alone does not guardian. She is an American citizen and a resident of
prove parental neglect or incompetence to deprive the Colorado. Obviously, she will not be able to perform the
wife of custody, the husband must clearly establish that her responsibilities and obligations required of a guardian. In
moral lapses have had an adverse effect on the welfare of fact, in her petition, Bonifacia admitted the difficulty of
the child or have distracted the errant spouse from discharging the duties of a guardian by an expatriate, like
exercising proper parental care. her. To be sure, she will merely delegate those duties to
someone else who may not also qualify as a guardian
Note: The general rule that children less than 7 years of age shall
not be separated from the mother finds its raison d'etre in the (Vancil v. Belmes, G.R. No. 132223, June 19, 2001).
basic need of minor children for their mother's loving care. This is
predicated on the "best interest of the child" principle which EFFECTS OF PARENTAL AUTHORITY UPON THE PERSON OF
pervades not only child custody cases but also those involving THE CHILDREN
adoption, guardianship, support, personal status and minors in
conflict with the law (Pablo-Gualberto v. Gualberto, G.R. No. Q: What are the rules regarding the right to custody over
154994/G.R. No. 156254, Jun. 28, 2005). the child?

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY A: GR: Parents are never deprived of the custody and care
of their children.
Q: What is the order of substitute parental authority?
XPNS:
A: GOC 1. For cause
1. Surviving Grandparent;
Note: the law presumes that the childs welfare will be
Note: The law considers the natural love of a parent to best served in the care and control of his parents.
outweigh that of the grandparents, such that only when the
parent present is shown to be unfit or unsuitable may the
2. If in consideration of the childs welfare or well-
grandparents exercise substitute parental authority (Santos v.
CA, G.R. No. 113054, March 16, 1995). being, custody may be given even to a non-
relative.
2. Oldest brother or sister, over 21 years;
Q: What is the basis for the duty to provide support?
XPN: unfit or disqualified
A: Family ties or relationship, not parental authority.
3. Actual Custodian over 21 year;
Note: The obligation of the parents to provide support is not
coterminous with the exercise of parental authority.
XPN: unfit or disqualified (Art. 216, FC)

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77 FACULTY OF CIVIL LAW
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Q: What are the distinctions between substitute parental
Q: What is the rule on the parents duty of authority and special parental authority?
representation?
A:
A: GR: Parents are duty-bound to represent their SUBSTITUTE PARENTAL SPECIAL PARENTAL
unemancipated children in all matters affecting their AUTHORITY AUTHORITY
interests; Exercised in case of: DAU 1. Exercised concurrently
with the parental
Note: This duty extends to representation in court litigations. 1. Death, authority of the
2. Absence, or parents;
XPN: A guardian ad litem may be appointed by the 3. Unsuitability of 2. Rests on the theory that
court to represent the child when the best interest of parents. while the child is in the
the child so requires. custody of the person
exercising special
Q: What is the scope of the parents right to discipline the parental authority, the
child? parents temporarily
relinquish parental
A: Persons exercising parental authority may: authority over the child
1. Impose discipline on minor children as may be to the latter.
required under the circumstances.
Q: What is the liability of persons exercising special
2. Petition the court for the imposition of parental authority over the child?
appropriate disciplinary measures upon the child,
which include the commitment of the child in A: They are principally and solidarily liable for damages
entities or institutions engaged in child care or in caused by the acts or omissions of the child while under
childrens homes duly accredited by the proper their supervision, instruction or custody.
government agency.
Note: Parents, judicial guardians or those exercising substitute
Note: Such commitment must not exceed 30 days. parental authority over the minor are subsidiarily liable for said
acts and omissions of the minor.
Q: What are the limitations on the exercise of the right to
discipline the child and what are its consequences? Q: While Jayson and his classmates were conducting a
science experiment about fusion of sulphur powder and
A: Persons exercising such right is not allowed to: iron fillings under the tutelage of Tabugo, the subject
1. Treat the child with excessive harshness or teacher and employee of St. Joseph College. Tabugo left
cruelty; or her class while it was doing the experiment without
2. Inflict corporal punishment. having adequately secured it from any untoward incident
or occurrence. In the middle of the experiment, Jayson
Otherwise, the following are its consequences: checked the result of the experiment by looking into the
1. Parental authority may be suspended; test tube with magnifying glass and it was moved towards
2. Parent concerned may be held criminally liable his eyes. At that instance, the compound in the test tube
for violation of RA 7160 (Special Protection of spurted out and several particles of which hit his eyes and
Children against Abuse, Exploitation and his left eye was chemically burned for which he had to
Discrimination Act) undergo surgery and had to spend for his medication.
Hence, Jayson was constrained to file the complaint for
Q: To whom may special parental authority be granted? damages against the school and Tabugo. Can the said
school and its teacher, Tabugo, be held liable for the
A: unfortunate incident of Jayson?
1. School, its administrators and teachers;
2. Individual entity or institution engaged in child care. A: Yes. The proximate cause of the students injury was the
concurrent failure of petitioners to prevent the foreseeable
mishap that occurred during the conduct of the science
experiment. Petitioners were negligent by failing to
exercise the higher degree of care, caution and foresight
incumbent upon the school, its administrators and
teachers. Art. 218 of the FC, in relation to Art. 2180 of the
NCC, bestows special parental authority on a school, its
administrators and teachers, or the individual, entity or
institution engaged in child care, and these persons have
responsibility over the minor child while under their
supervision, instruction or custody. Authority and
responsibility shall apply to all authorized activities whether

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2013 GOLDEN NOTES 78
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inside or outside the premises of the school, entity or Q: What are the rules regarding the use of the childs
institution. property?

In this case, the petitioners negligence and failure to A:


exercise the requisite degree of care and caution was 1. The property of minor children shall be devoted to their
demonstrated by the following: (i) petitioner school did not support and education unless the title or transfer
take affirmative steps to avert damage and injury to its provides otherwise.
students although it had full information on the nature of 2. The parents have the right to use only the fruits and
dangerous science experiments conducted by the students income of said property for the following purposes:
during class; (ii) petitioner school did not install safety a. Primarily, to the childs support;
measures to protect the students who conduct experiments b. Secondarily, to the collective daily needs of the
in class; (iii) petitioner school did not provide protective family.
gears and devices, specifically goggles, to shield students
from expected risks and dangers; and (iv) petitioner Tabugo Q: What is the rule on lease of property belonging to
(the teacher) was not inside the classroom the whole time minor children?
her class conducted the experiment, specifically, when the
accident involving the student occurred (St. Josephs A: GR: The parents, as legal guardians of the minors
College v. Miranda, G.R. No. 182353, June 29, 2010). property, may validly lease the same, even without court
authorization, because lease has been considered as an act
EFFECTS OF PARENTAL AUTHORITY UPON THE PROPERTY of administration.
OF THE CHILDREN
XPNs: Court authorization is required if:
Q: Who exercises legal guardianship over the property of 1. If the lease will be recorded in the Registry of
an unemancipated child? Property;
2. If the lease is for a period of more than one year,
A: The father and the mother, jointly, without need of because this is already deemed an act of
court appointment. dominion.

Note: In case of disagreement, the fathers decision shall prevail SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY
unless there is a judicial order to the contrary.
Q: When is parental authority terminated?
Q: When is a parent required to post a bond?
A:
A: If the market value of the property or the annual income 1. Permanent: DED
of the child exceeds Php 50,000. a. Death of parents;
b. Emancipation of the child;
Note: The bond shall not be less than 10% of the value of the c. Death of child.
property or annual income. (Art. 225, FC)
2. Temporary: AGA FIA it may be revived
Q: What are the kinds of properties of a minor?
a. Adoption of the child;
Distinguish.
b. Appointment of general Guardian;
c. Judicial declaration of Abandonment;
A:
d. Final judgment divesting parents of PA;
ADVENTITIOUS PROSFECTITIOUS e. Incapacity of parent exercising PA;
1. Earned or f. Judicial declaration of Absence.
acquired by the
child through his 1. Property Q: What are the grounds for suspension of PA?
work or industry given by the
by onerous or parents to the A: CHAIN B
gratuitous title; child for the 1. Gives Corrupting orders, counsel and example;
2. Owned by the latter to 2. Treats child with excessive Harshness and cruelty;
child; administer; 3. Subjects/allows child be subjected to Acts of
3. Child is also the 2. Owned by the lasciviousness;
usufructuary, but parents; 4. Conviction of crime with penalty of civil Interdiction ;
the childs use of 3. Parents are 5. Culpable Negligence of parent or person exercising PA;
the property shall usufructuary; 6. Compels child to Beg.
be secondary to 4. Property
all collective daily administered Note: If the person exercising PA has subjected the child or allowed
needs of the by the child. him to be subjected to sexual abuse, he/she shall be permanently
family; deprived of PA.
4. Administered by
the parents.

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79 FACULTY OF CIVIL LAW
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Q: When may the suspension be revoked and parental 4. The responsibility of parents or guardians for children
authority revived? and wards below 21 under the second and third
paragraphs of Art. 2180 of the NCC shall not be
A: There must be a case filed for the purpose or in the same derogated.
proceeding if the court finds that the cause therefore had
ceased and will not be repeated. SUMMARY JUDICIAL PROCEEDINGS IN FAMILY LAW CASES

GR: Parental authority and responsibility are inalienable Q: What are the matters subject to summary proceedings?
and may not be transferred and renounced.
A:
XPN: In case authorized by law. 1. Petition for judicial authority to administer or
encumber specific separate property of the
Note: Parents may exercise authority over their childrens abandoning spouse.
property. 2. Petition for an order providing for disciplinary
measures over a child.
Q: Under the Child Abuse Law (R.A. 7610), when will 3. Petition for approval of bond of parents who exercise
parental authority over the minor? parental authority over the property of their children.
4. Judicial declaration of presumptive death.
A: When an ascendant, stepparent or guardian of the 5. Action of a child for delivery of presumptive legitime
minor, induces, delivers or offers him to any person who 6. Judicial determination of family domicile in case of
would keep or have in his company such minor, twelve (12) disagreement between the spouses
years or under or who in ten (10) years or more his junior, 7. Objection of one spouse as to the profession of the
in any public or private place, hotel, motel, beer joint, other.
discotheque, cabaret, pension house, sauna or massage 8. Action entrusting parental authority over foundlings,
parlor, beach and/or other tourist resort or similar places. abandoned, neglected or abused children to heads of
institutions.
Q: What is corporal punishment? 9. Annulment by wife of the husband's decision in the
administration and enjoyment of community or
A: It is the infliction of physical disciplinary measures to a conjugal property.
student. This is absolutely prohibited under the Family 10. Appointment of one of the spouses as sole
Code (Sta. Maria, Jr., Persons and Family Relations Law). administrator but only when the other spouse is
absent, or separated in fact, or has abandoned the
Note: While a teacher is administratively liable or civilly liable in other or the consent is withheld (Uy v. CA, G.R. No.
the event that he or she inflicts corporal punishment to a student,
109557, November 29, 2000 ).
it has been held that where there was no criminal intent on the
part of the teacher who angrily and repeatedly whipped a student
resulting in slight physical injuries to the said student and where Q: How shall matters subject to summary proceedings be
the purpose of the teacher was to discipline a student, the said decided?
teacher cannot be held feloniously liable for the criminal offense of
slight physical injuries (Bagajo v. Marave, G.R. No. L-33345, A: All cases requiring summary court proceedings shall be
November 20, 1978, also cited by Sta. Maria, Jr., Persons and decided in an expeditious manner, without regard to
Family Relations Law). technical rules.

EMANCIPATION Q: W filed a petition with the RTC under the rules on


Summary Judicial Proceedings in the Family Law provided
Q: What is emancipation? for in the FC, for the declaration of the presumptive death
of her absent spouse, H, based on the provisions of Art. 41
A: It is the release of a person from parental authority of the FC, for purposes of remarriage. After trial, the RTC
whereby he becomes capacitated for civil life. rendered a decision declaring the presumptive death of H.
The Republic received a copy of the decision on November
Q: How does emancipation take place? 14, 2001. Subsequently, the Republic filed a Notice of
Appeal on November 22, 2001. The RTC held that the
A: By attainment of majority at the age of (18) eighteen appeal was filed within the reglementary period and thus,
years. elevated the records to the Court of Appeals. However,
Q: What are the effects of emancipation? the Court of Appeals denied the Republics appeal and
accordingly affirmed the appealed RTC decision. Did the
A: Court of Appeals acquire jurisdiction over the appeal on a
1. Parental authority over the person and property of the final and executory judgment of the RTC?
child is terminated
2. Child shall be qualified and responsible for all acts of A: No. In Summary Judicial Proceedings under the Family
civil life, save exceptions established by existing laws. Code, there is no reglementary period within which to
3. Contracting marriage shall require parental consent perfect an appeal, precisely because judgments rendered
until the age of 21. thereunder, by express provision of Art. 247 of the FC, are
immediately final and executory. An appellate court
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 80
PERSONS AND FAMILY RELATIONS
acquires no jurisdiction to review a judgment which, by possession of status of illegitimate children of Jose who
express provision of law, is immediately final and had an amorous relationship with their mother Luz Fabian
executory. The right to appeal is not a natural right nor is it until the time of the death of Jose. The court declared that
a part of due process, for it is merely a statutory privilege. Antonia Aruego is an illegitimate daughter of the
Since, by express mandate of Article 247 of the Family deceased with Luz Fabian while Evelyn is not. Antonia and
Code, all judgments rendered in summary judicial Evelyn contested the decision citing provisions of the
proceedings in Family Law are immediately final and Family Code particularly Art. 127 on Filiation, Art. 172 on
executory, the right to appeal was not granted to any of illegitimate childrens filiation, and Art. 256 on the
the parties therein. The Republic, as oppositor in the retroactivity of the code. Whether or not the provisions of
petition for declaration of presumptive death, should not the Family Code be applied retroactively and will it impair
be treated differently. It had no right to appeal the RTC the vested rights of the respondents?
decision of November 7, 2001. The RTC's decision was
immediately final and executory upon notice to the parties A: The action for compulsory recognition and enforcement
(Republic v. Bermudez-Lorino, G.R. No. 160258, January 19, of successional rights which was filed prior to the advent of
2005). the FC, must be governed by Art. 285 of the NCC and not by
Art. 175, par. 2 of the FC. The present law cannot be given
Note: However, an aggrieved party may file a petition for certiorari retroactive effect insofar as the instant case is concerned,
to question abuse of discretion amounting to lack of discretion. as its application will prejudice the vested right of private
(Republic v. Tango, G.R. No. 161062, July 31, 2009) respondent to have her case decided under Art. 285 of the
NCC. The right was vested to her by the fact that she filed
RETROACTIVITY OF THE FAMILY CODE her action under the regime of the NCC. Prescinding from
this, the conclusion then ought to be that the action was
Q: What is the rule on the retroactivity of the Family not yet barred, notwithstanding the fact that it was brought
Code? when the putative father was already deceased, since
private respondent was then still a minor when it was filed,
A: GR: The Code shall have retroactive effect. an exception to the general rule provided under Art. 285 of
the NCC. Hence, the trial court, which acquired jurisdiction
XPN: No retroactivity if it would prejudice vested over the case by the filing of the complaint, never lost
rights. jurisdiction over the same despite the passage of E.O. No.
209, also known as the Family Code of the Philippines
Q: What is a vested right? (Aruego v. CA,G.R. No. 112193, March 13, 1996).

A: Some right or interest in property that has become fixed Note: If an action for recognition was filed prior to the effectivity of
or established, and is no longer open to doubt or the FC, Art. 173 of the FC cannot be given retroactive effect
controversy. Rights are vested when the right to because it will prejudice the vested rights of petitioners
enjoyment, present or prospective, has become the transmitted to them at the time of the death of their father,
property of some person as present interest. Eutiquio Marquino. "Vested right" is a right in property which has
become fixed and established and is no longer open to doubt or
controversy. It expresses the concept of present fixed interest,
Q: Is a decree of nullity of the first marriage required
which in right reason and natural justice should be protected
before a subsequent marriage can be entered into validly? against arbitrary State action (Marquino v. IAC, G.R. No. 72078,
June 27, 1994).
A: GR: Under the Art. 40 of the FC, the absolute nullity of a
previous marriage may be invoked for purposes of FUNERALS
remarriage on the basis solely of a final judgment declaring
such previous marriage void. Q: What are the rules regarding funeral?

XPN: If the second marriage, however, took place prior A: General Guidelines:
to the effectivity of the FC, there is no need for judicial 1. Duty and right to make arrangements in funerals in
declaration of nullity of the first marriage pursuant to accordance with Art. 199, FC:
the prevailing jurisprudence at that time. (Rabuya, a. Spouse,
2006, p. 265) b. Descendants in the nearest degree,
c. Ascendants in the nearest degree,
Note: Art. 40 is applicable to remarriages entered into after d. Brothers and Sisters
the effectivity of the FC on August 3, 1988 regardless of the
date of the first marriage. Besides, under Art. 256 of the FC,
Note: In case of descendants of the same degree, or of
said Article is given "retroactive effect insofar as it does not
brothers and sisters, the oldest shall be preferred.
prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws" (Atienza v. Brillantes, A.M.
In case of ascendants, the paternal shall have a better right.
No. MTJ-92-706, March 29, 1995).

2. Funeral shall be:


Q: Antonia Aruego and her sister Evelyn filed a petition in
a. in keeping with the social position of the
the courts seeking Jose Aruego, Jr. and his five children to
deceased,
recognize them as illegitimate children and compulsory
heirs of Jose. They claim there is open and continuous

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81 FACULTY OF CIVIL LAW
CIVIL LAW
b. in accordance with the expressed wishes of the show proper or reasonable cause, or any compelling reason
deceased, which may justify such change. Otherwise, the request
c. In absence of the expressed wishes, his religious would be denied. (In Re: Petition for change of name and/or
beliefs or affiliation shall determine; correction/cancellation of entry in civil registry of
3. Any person who disrespects the dead or allows the
same shall be liable for damages; Julian Lin Carulasan Wang, G.R. No. 159966, March 30,
4. Funeral expenses are chargeable against the property 2005)
of the deceased. However, if the deceased is one of
the spouses, they are chargeable against the conjugal Note: The touchstone for the grant of a change of name is that
partnership property. (Art. 310, NCC) there be proper and reasonable cause for which the change is
5. If the deceased is married, the tombstone or sought.
mausoleum is deemed part of the funeral expense and
chargeable against the community property or Q: Can a person change his registered first name and sex
conjugal partnership property. on the basis of a sex reassignment?

USE OF SURNAMES A: No. Before a person can legally change his given name,
he must present proper or reasonable cause or any
Q: What are the grounds for change of name which have compelling reason justifying such change. In addition, he
been held valid? must show that he will be prejudiced by the use of his true
and official name. Under the Civil Register Law, a birth
A: CLEARED certificate is a historical record of the facts as they existed
1. One has Continuously used and been known since at the time of birth. Thus, the sex of a person is determined
childhood by a Filipino name and was unaware of alien at birth, visually done by the birth attendant (the physician
parentage; or midwife) by examining the genitals of the infant.
2. The change results as a Legal consequence, as in Considering that there is no law legally recognizing sex
legitimation; reassignment, the determination of a persons sex made at
3. There is a sincere desire to adopt a Filipino name to the time of his or her birth, if not attended by error, is
Erase signs of former alienage, all in good faith and immutable (Silverio v. Republic, G.R. No. 174689, October
without prejudicing anyone; 22, 2007).
4. The change will Avoid confusion;
5. The name is: Q: What are the procedural requirements for a petition for
a. Ridiculous, change of name?
b. Extremely difficult to write or pronounce,
c. Dishonorable. A:
1. 3 years residency in the province where the change is
Q: The petition filed by the parents in behalf of their sought prior to the filing;
minor son Julian Lin Carulasan Wang sought the dropping 2. Must not be filed within 30 days prior to an election;
of the latter's middle name, "Carulasan." The parents 3. Petition must be verified.
averred that their plan for Julian to study in Singapore and
adjust to its culture necessitates the drop since in that
Q: What is the Rule with regard to the use of surname by a
country, middle names or the mother's surname are not
child who is (1) legitimate, (2) legitimated, (3) adopted
carried in a person's name. They therefore anticipate that
and (4) illegitimate?
Julian may be subjected to discrimination on account of
his middle name, which is difficult to pronounce in light of
A:
Singapore's Mandarin language which does not have the
CHILD CONCERNED SURNAME TO BE USED
letter "R" but if there is, Singaporeans pronounce it as "L."
Legitimate
Should the petition for the dropping of his middle name Fathers
be granted? Legitimated
Adopted Adopters
A: No. Petitioners justification for seeking the change in Mothers or Fathers if
the name of their child, that of convenience, was Illegitimate requisites of R.A. 9255 are
characterized by the Supreme Court as amorphous, to say complied with
the least, and would not warrant a favorable ruling. As Conceived prior to
Fathers
Julian is only a minor and has yet to understand and annulment of marriage
appreciate the value of any change in his name, it is best Conceived after annulment
Mothers
that the matter be left to his judgment and discretion when of marriage
he reaches legal age.
FACTUAL CIRCUMSTANCE
SURNAME TO BE USED
The State has an interest in the names borne by individuals OF THE WIFE
and entities for purposes of identification, and that a 1. first name and maiden
Valid marriage (before
change of name is a privilege and not a right, such that name + husbands
husband dies)
before a person can be allowed to change the name given surname
Art 370
him either in his birth certificate or civil registry, he must 2. first name + husbands

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2013 GOLDEN NOTES 82
PERSONS AND FAMILY RELATIONS

surname In case of renewal of passport, a married woman may


3. husbands full name + either adopt her husbands surname or continuously use
prefix indicating that her maiden name. However, once she opted to use her
she is his wife (e.g. husbands surname in her original passport, she may not
Mrs.) revert to the use of her maiden name, except if any of the
4. retain the use of her four grounds provided under R.A. 8239 is present.
maiden name
Further, even assuming R.A. 8239 conflicts with the Civil
*use of husbands surname Code, the provisions of R.A. 8239 which is a special law
is not a duty but merely an specifically dealing with passport issuance must prevail over
option for the wife the provisions of the Civil Code which is the general law on
Wife is the Shall resume using her the use of surnames. A basic tenet in statutory construction
guilty party maiden name is that a special law prevails over a general law. (Remo v.
Choices: Sec. of Foreign Affairs, G.R. No. 169202, March 5, 2010)
1. resume using her
maiden name Q: What are the elements of usurpation of name?
2. continue using
husbands surname A: AUD
Marriage is 1. Actual use of anothers name by the defendant;
Annulled Wife is the 2. Use is Unauthorized;
Unless:
Art. 371 innocent 3. Use of anothers name is to Designate personality
a. court decrees
party or identify a person.
otherwise;
b. she or the former
husband is Q: What are the remedies available to the person whose
married again to name has been usurped?
another person
A:
Wife shall continue using 1. Civil insofar as private persons are concerned:
Legally Separated the name and surname a. Injunction
Art. 372 employed by her prior to b. Damages
the legal separation. 2. Criminal when public affairs are prejudiced.
She may use the
deceaseds husbands Q: Is the use of anothers name always actionable?
Widowed Spouse
surname as though he
were still living. Art. 373 A: No. It is not actionable when it is used as stage, screen or
Divorced (at least if they pen name.
Choices same as widowed
allow it later or for those
spouse. Provided: GIM
who got divorced during the
Japanese occupation) 1. Use is in Good faith;
2. No Injury is caused to the rights of the person
Q: Virginia Remo, a Filipino citizen, is married to Francisco whose name was used;
Rallonza. In her passport, the following entries appear: 3. Use is Motivated by:
"Rallonza" as her surname, "Maria Virginia" as her given a. Modesty
name, and "Remo" as her middle name. Prior to the b. desire to avoid unnecessary trouble
expiration of her passport, Virginia applied for the c. other reason not prohibited by law or
renewal of her passport with the DFA, with a request to morals.
revert to her maiden name and surname in the
replacement passport. Virginia, relying on Article 370 of MIDDLE NAME
the Civil Code, contends that the use of the husbands
Note: A middle name has practical or legal significance as it serves
surname by the wife is permissive rather than obligatory. to identify the maternal pedigree or filiation of a person and
Is Virginia correct? distinguishes him from others who may have the same given name
and surname as he has. Art. 364 of the Civil Code states that
A: No. A married woman has an option, but not a duty, to legitimate and legitimated children shall principally use the
use the surname of the husband in any of the ways surname of their father. Art. 174 of the Family Code gives
provided by Art. 370 of the Civil Code. However, R.A. 8239 legitimate children the right to bear the surnames of the father and
or the Philippine Passport Act of 1996 limits the instances mother, while illegitimate children, under Art. 176, as amended by
R.A. 9255, shall use the surname of their mother, unless their
when a married woman applicant may exercise the option
father recognizes their filiation, in which case, they may bear the
to revert to the use of her maiden name. These are death father's surname. In the case of these children, their registration in
of husband, divorce, annulment, and declaration of nullity the civil registry requires that their middle names be indicated
of marriage. therein, apart of course from their given names and surnames. (In
re: Petition for Change of Name and/or Correction of Entry in the
Civil Registry of Julian Lin Carulasan Wang, 454 SCRA 155)

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83 FACULTY OF CIVIL LAW
CIVIL LAW
under the law as the legitimate child of Aimee and her
Q: Honorato filed a petition to adopt his minor illegitimate husband. This filiation may be impugned only by the
child Stephanie. Stephanie has been using her mother's husband. To correct the status of Gianna in her birth
middle name and surname. certificate from legitimate child of Andy and Aimee to
illegitimate child of Andy and Aimee will amount to
He prayed that Stephanie's middle name be changed from indirectly impugning her filiation as the child of Aimees
"Astorga" to "Garcia," which is her mother's surname and husband in a proper action. What cannot be done directly
that her surname "Garcia" be changed to "Catindig," cannot be done indirectly.
which is his surname. This the trial court denied. Was the
trial court correct in denying Honoratos request for b. Change her surname from that of Andys to Aimees
Stephanies use of her mothers surname as her middle maiden surname?
name?
A: A judicial action to change the surname of Gianna from
A: No. The name of an individual has two parts the given the surname of Andy to the maiden surname of Aimee is
name or proper name and the surname or family name. The also not allowed. Gianna, being presumed to be the
given name may be freely selected by the parents for the legitimate child of Aimees husband is required by law to be
child, but the surname to which the child is entitled is fixed registered under the surname of Aimees husband. While it
by law. The Civil Code (Arts. 364 to 380) is silent as to the is true that Giannas registered surname is erroneous, a
use of a middle name. Even Art. 176 of the FC, as amended judicial action for correction of entry to change the
by R.A. 9255 (An Act Allowing Illegitimate Children to surname of Gianna to that of Aimees maiden surname will
Use the Surname of Their Father) is silent as to what also be erroneous. A judicial action to correct an entry in
middle name a child may use. the birth certificate is allowed to correct an error and not to
commit another error.
An adopted child is entitled to all the rights provided by law
to a legitimate child without discrimination of any kind, Alternative Answers: It may be noted that the problems
including the right to bear the surname of her father and does not show whether Gianna was born while Aimee was
her mother. As she had become a legitimate child on living with her ex-husband. Neither does it show who filed
account of her adoption, it follows that Stephanie is the judicial action to correct the entries.
entitled to utilize the surname of her father, Honorato
Catindig, and that of her mother, Gemma Garcia. If the problem is intended only for purpose of determining
whether factual changes are in order, then the answers are:
Since there is no law prohibiting an illegitimate child
adopted by her natural father, like Stephanie, to use, as a. A change from legitimate to illegitimate is
middle name her mother's surname, the High Court found proper upon proof of lack of marriage between
no reason why she should not be allowed to do so. Andy and Aimee.

Note: The Supreme Court, in granting the petition, predicated its b. If the child is considered illegitimate, then she
ruling upon the statutory principle that adoption statutes, being should follow the surname of her mother.
humane and salutary, should be liberally construed to carry out the
beneficent purposes of adoption. The modern trend is to consider
Q: Instead of a judicial action, can administrative
adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows a child with proceedings be brought for the purpose of making the
legitimate status. (In the Matter of the Adoption of Stephanie above corrections?
Nathy Astorga Garcia, G.R. No. 148311. March 31, 2005)
A: Under R.A. 9048, only typographical errors are allowed
Q: Giana was born to Andy and Aimee, who at the time of to be corrected administratively. The change of status from
Gianas birth were not married to each other. While Andy legitimate to illegitimate is not a typographical error and
was single at that time, Aimee was still in the process of even assuming that it is, its administrative correction is not
securing a judicial declaration of nullity on her marriage to allowed under R.A. 9048. Typographical errors involving
her ex-husband. Giannas birth certificate, which was status, age, citizenship, and gender are expressly excluded
signed by both Andy and Aimee, registered the status of from what may be corrected administratively.
Gianna as legitimate, her surname carrying that of
Andys, and that her parents were married to each other. The change of the surname is also not allowed
Can a judicial action for correction of entries in Giannas administratively. R.A. 9048 provides for an administrative
birth certificate be successfully maintained to: procedure for change of first name only and not for change
of surname.
a. Change her status from legitimate to illegitimate;
and Q: Assuming that Aimee is successful in declaring her
former marriage void, and Andy and Aimee subsequently
A: A judicial action cannot be maintained to change the married each other, would Gianna be legitimated (2008
status of Gianna from legitimate to illegitimate child of Bar Question)?
Andy and Aimee. While it is true that Gianna is the
biological daughter of Andy and Aimee conceived and born A: No, Gianna will not be legitimated. While the court may
without marriage between them, Gianna is presumed, have declared the marriage void ab initio and, therefore, no
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES 84
PERSONS AND FAMILY RELATIONS
marriage took place in the eyes of the law, Gianna will still
not be legitimated. This is because at the time she was A: They may petition the Court for the appointment of a
conceived and born her biological parents could not have representative to represent the absentee in all that may be
validly married each other. For their marriage to be valid, necessary.
the court must first declare the first marriage null and void.
In the problem, Gianna was conceived and born before the Q: What is the duty of the Court after appointing the
court has decreed the nullity of her mothers previous representative?
marriage.
A: The Court shall:
Note: The word "principally" as used in the codal provision is not 1. Take the necessary measures to safeguard the
equivalent to "exclusively" so that there is no legal obstacle if a rights and interests of the absentee.
legitimate or legitimated child should choose to use the surname of 2. Specify the powers, obligations, and
its mother to which it is equally entitled. If the use of the mothers
remuneration of the representative.
surname is since childhood and the child has been using it already
in various records, then there is an ample justification for the 3. Regulate the powers, obligations and
continuation of the use of the mothers surname. It is therefore, remuneration according to the circumstances by
not whimsical but on the contrary is based on a solid and the rules concerning guardians.
reasonable ground, i.e. to avoid confusion. (Alfon v. Republic, G.R
No. L-51201, May 29, 1980) Q: What is the order of preference in the appointment of a
representative?
ABSENCE
A:
PROVISIONAL MEASURES IN CASE OF ABSENCE 1. Spouse present, except, when legally separated.
2. In the absence of spouse, any competent person.
Q: What is absence?
Note: The administrator of the absentee's property shall be
A: The special status of a person who has left his domicile appointed in accordance with the same order.
and thereafter his whereabouts and fate are unknown, it
being uncertain whether he is already dead or still alive. DECLARATION OF ABSENCE
(Olaguiviel v. Morada, 63 O.G. 4940)
Q: What are the requisites for a declaration of absence?
Q: What are the kinds of absence?
A:
A: 1. The absentee have disappeared from his domicile
1. Physical Absence 2. His whereabouts are not known
2. Legal Absence 3. he has been absent without any news for 2 years, if
nobody was left to administer his property or 5 years if
Q: What are the 3 Stages of Absence? somebody was left to administer such property

A: Q: When may absence be judicially declared?


1. Provisional Absence when a person disappears from
his domicile his whereabouts being unknown, without A: It depends.
leaving an agent to administer his property 1. Where the absentee left no agent to administer
his property- after two (2) years without any
2. Declared Absence when a person disappears from his news about the absentee or since receipt of the
domicile and 2 years thereafter have elapsed without any last news.
news about him or since the receipt of the last news, or 5 2. Where the absentee has left a person to
years have elapsed in case he left a person to administer his administer his property- after five (5) years.
property
Q: Who may ask for the declaration of absence?
3. Presumptive Death the absentee is presumed dead
(Jurado, 2009) A:
1. Spouse present
Q: What is provisional absence? 2. Heirs instituted in a will
3. Relatives who may succeed by intestacy
A: 4. Persons who may have over the property of the
1. When a person disappears from his domicile absentee some right subordinated to the condition of
2. His whereabouts are unknown and: his death.
a. he did not leave any agent
b. he left an agent but the agents power has Q: When shall the judicial declaration of absence take
expired effect?

Q: What is the remedy of an interested party, a relative or A: Six (6) months after its publication in a newspaper of
a friend of the absentee to protect the latter's interest? general circulation.

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Q: Who are presumed dead for all purposes including the
Note: A judicial declaration of absence is necessary fpr interested division of estate among heirs in case of extraordinary
persons o be able to rotect their rights, interests and benefits in presumption of death?
connection with the person who has disappeared. It is also
necessary to protect the interest of the absentee. (Sta. Maria, Jr.,
A: VAD
Persons and Family Relations Law)
1. Person on board a Vessel lost during a sea
ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE voyage, or an airplane which is missing, who has
not been heard of for four (4) years since the loss
Q: When shall the administration of the property of the of the vessel or airplane;
absentee cease? 2. Person in the Armed forces who has taken at in
war, and has been missing for four (4) years;
A: ADD 3. Person who has been in Danger of death under
1. When absentee Appears personally or by means other circumstances and his existence has not
of an agent. been known for four (4) years.
2. When Death of the absentee is proved and his
testate or intestate heirs appear. Q: When is the absentee presumed to have died under an
3. When a third person appears, showing by a extraordinary presumption?
proper Document that he has acquired the
absentee's property by purchase or other title. A: At the time of disappearance. i.e. when the calamity took
place.
PRESUMPTION OF DEATH
Q: May a petition for the declaration of presumptive
Q: What are the kinds of presumed death? death be the subject of a judicial declaration, if it is the
only question upon which a competent court has to pass?
A:
1. Ordinary presumption- ordinary absence; absentee A: No. Under the NCC, the presumption of death is
disappears under normal conditions without danger or established by law and no court declaration is needed for
idea of death. the presumption to arise. Moreover, It is clear that a
2. Extraordinary presumption- qualified absence; judicial declaration that a person is presumptively dead,
disappearance with great probability of death. being a presumption juris tantum only, subject to contrary
proof, cannot become final. If a judicial decree declaring a
Q: What are the rules in ordinary presumption of death? person presumptively dead, cannot become final and
executory even after the lapse of the reglementary period
A: In case of: within which an appeal may be taken, then a petition for
1. Disappearance upon or before reaching the age such a declaration is useless, unnecessary, superfluous and
of seventy five (75) years: of no benefit to the petitioner.
a. After an absence of seven (7) years -the
absentee is presumed dead for all purposes Q: Juana married Arturo on January 1973. However,
except, succession. because the latter was unemployed the spouses
b. After an absence of ten (10) years - the constantly argued. Thus, Arturo left the conjugal dwelling
absentee is presumed dead for all purposes on October 1975. Years passed without any word from
including succession. Arturo. Juana didnt hear any news of Arturo, his
2. Disappearance at the age of seventy six (76) years whereabouts or even if he was alive or not. Believing that
or older, after an absence of five (5) years -the Arturo was already dead, Juana married Dante on June
absentee is presumed dead for all purposes 1986. Subsequently, however, Dante's application for
including succession. naturalization filed with the United States Government
was denied because of the subsisting marriage between
Note: The word absence in the rule that a presumption of death Juana and Arturo. Hence, on March, 2007, Juana filed a
is raised by the absence of a person from his domicile when Petition for declaration of presumptive death of Arturo
unheard of for seven years, means that a person is not at the place with the RTC. The RTC dismissed the Petition on the
of his domicile and his actual residence is unknown, and it is for ground that Juana was not able to prove the existence of a
this reason that his existence is doubtful, and that, after seven well-grounded belief that her husband Arturo was already
years of such absence, his death is resumed. But removal alone is dead as required under Article 41 of the Family Code.
not enough. (Gorham v. Settegast, 98 SW 655, also cited by Sta.
Maria, Jr. Persons and Family Relations Law)
a. Was the RTC correct in dismissing the petition based on
Article 41 of the Family Code?
Q: When is the absentee presumed to have died under an
ordinary presumption?
A: No. Since the marriages were both celebrated under the
auspices of the Civil Code it is the Civil Code that applies to
A: At the end of the five, seven or ten year period, as the
this case not Art. 41 of the FC. Under the Civil Code, proof
case may be.
of well-founded belief is not required. Juana could not have
been expected to comply with the requirement of proof of
"well-founded belief" since the FC was not yet in effect at
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the time of her marriage to Dante. Moreover, the
enactment of the FC in 1988 does not change this
conclusion. The FC shall have no retroactive effect if it
impairs vested rights. To retroactively apply the provisions
of the FC requiring Juana to exhibit "well-founded belief"
will, ultimately, result in the invalidation of her second
marriage, which was valid at the time it was celebrated.
Such a situation would be untenable and would go against
the objectives that the Family Code wishes to achieve.

b. Will the petition for declaration of presumptive death,


therefore, prosper?

A: No. Under the NCC, the presumption of death is


established by law and no court declaration is needed for
the presumption to arise. For the purposes of the civil
marriage law, Art. 83 of the Civil Code, it is not necessary to
have the former spouse judicially declared an absentee.
The law only requires that the former spouse has been
absent for seven consecutive years at the time of the
second marriage, that the spouse present does not know
his or her former spouse to be living, that such former
spouse is generally reputed to be dead and the spouse
present so believes at the time of the celebration of the
marriage. Since death is presumed to have taken place by
the seventh year of absence, Arturo is to be presumed dead
starting October 1982.

Further, the presumption of death cannot be the subject of


court proceedings independent of the settlement of the
absentees estate. In case the presumption of death is
invoked independently of such an action or special
proceeding there is no right to be enforced nor is there a
remedy prayed for by the petitioner against her absent
husband. Neither is there a prayer for the final
determination of his right or status or for the ascertainment
of a particular fact, for the petition does not pray for a
declaration that the petitioner's husband is dead, but
merely asks for a declaration that he be presumed dead
because he had been unheard from in seven years. In sum,
the petition for a declaration that the petitioner's husband
is presumptively dead, even if judicially made, would not
improve the petitioner's situation, because such a
presumption is already established by law. (Valdez v.
Republic, G.R. No. 180863, September 8, 2009)

Q: Discuss the distinctions between declaration of presumptive death for purpose of contracting subsequent marriage and
opening succession and declaration of absence under Rules of Court.

A:
DECLARATION OF PRESUMPTIVE DEATH FOR PURPOSE OF: DECLARATION OF ABSENCE
OPENING OF SUCCESSION CONTRACTING SUBSEQUENT MARRIAGE
Applicable laws
Arts. 390-396, Civil Code Arts. 41-44, Family Code Rule 107, Rules of Court
Who may file petition
1. Spouse present;
2. Heirs instituted in the will;
3. Relatives who will succeed by
Absentees co-heirs, heirs, assigns,
Spouse present intestacy; or
representative or successors-in-interest
4. Those who have over the property of
the absentee some right
subordinated to the condition of his

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death. (Sec. 2, Rule 107)


Purpose of petition
It is to appoint an administrator over the
For the purpose of contracting properties of the absentee. This is
To open succession
subsequent marriage by spouse present proper only where the absentee has
properties to be administered
When to file petition
GR: 4 consecutive years absence of
spouse and the spouse present has a After 2 years:
well-founded belief that the absent 1. From his disappearance and
GR: Absence of ten years.
spouse was already dead without any news about the
absentee; or
XPN: If he disappeared after the age of
XPN: 2 consecutive years absence of 2. Of the last news about the
seventy-five years, an absence of five
spouse In case of disappearance where absentee.
years shall be sufficient in order that his
there is danger of death under the
succession may be opened
circumstances set forth in the provisions After 5 years: If he left an administrator
of Article 391 of the Civil Code (Art. 41, of his property. (Sec. 2)
FC)
Effect of reappearance
It does not automatically terminate the
subsequent marriage. To cause the
termination of the subsequent marriage,
the reappearance must be made in an
If the absentee appears, or without affidavit of reappearance and the
appearing his existence is proved, he recording of a sworn statement of the
shall recover his property in the fact and circumstances of such The trustee or administrator shall cease
condition in which it may be found, and reappearance in the civil registry. in the performance of his office, and the
the price of any property that may have property shall be placed at the disposal
been alienated or the property acquired If, however, there was previous of those who may have a right thereto.
therewith; but he cannot claim either judgment annulling or declaring the prior
fruits or rents. (Art. 392, Civil Code) marriage void, then the reappearance of
the absent spouse, the execution of the
affidavit, and the recording of the sworn
statement shall not result to the
termination of the subsequent marriage.

CIVIL REGISTRAR his being legitimate or illegitimate, or his being married or


not.
ARTICLE 407-413
Q: What are the acts authorized to be entered in the civil
Q: What is the civil register? register?

A: Refers to the various registry books and related A:


certificates and documents kept in the archives of the local 1. Legitimation
civil registry offices, Philippine Consulate, and of the Office 2. Acknowledgment of illegitimate children
of the Civil Registrar General. 3. Naturalization

Q: What shall be recorded in the civil register? Q: What are the events authorized to be entered in the
civil register?
A: The following, concerning the civil status of persons:
1. Acts A:
2. Events 1. Birth
3. Judicial decrees 2. Marriages
3. Naturalization
Q: What is civil status? 4. Death

A: The circumstances affecting the legal situation or sum Q: What are the judicial decrees authorized to be entered
total of capacities or incapacities of a person in view of his in the civil register?
age, nationality and family membership (Beduya v.
Republic, G.R. L-71639, May 29, 1964). It also includes all A:
his personal qualities and relations, more or less permanent 1. Legal separation
in nature, not ordinarily terminable at his own will, such as 2. Annulments of marriage

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2013 GOLDEN NOTES 88
PERSONS AND FAMILY RELATIONS
3. Declarations of nullity of marriage his first name Zirxthoussous to "Jesus." His full name now
4. Adoption reads "Jesus delos Santos."
5. Naturalization
6. Loss or recovery of citizenship Jesus delos Santos moved to General Santos City to work
7. Civil interdiction in a multi-national company. There, he fell in love and
8. Judicial determination of filiation married Mary Grace delos Santos. She requested him to
9. Changes of name (Silverio v. Republic, G.R. No. 174689, have his first name changed because his new name "Jesus
October 22, 2007) delos Santos" is the same name as that of her father who
abandoned her family and became a notorious drug lord.
Q: What is the nature of the books making up the civil She wanted to forget him. Hence, Jesus filed another
register and the documents relating thereto? petition with the Office of the Local Civil Registrar to
change his first name to "Roberto." He claimed that the
A: The books and documents shall be considered public change is warranted because it will eradicate all vestiges
documents and shall be prima facie evidence of the facts of the infamy of Mary Grace's father. Will the petition for
therein contained. change of name of Jesus delos Santos to Roberto delos
Santos under Republic Act No. 9048 prosper? (2006 Bar
Note: Applications for delayed registration of birth go through a Question)
rigorous process. The books making up the civil register are
considered public documents and as a public document, a A: No, under the law, Jesus may only change his name
registered certificate of live birth enjoys the presumption of
once. In addition, the petition for change of name may be
validity (Nieves Estares Baldos, substituted by Francisco Baldos and
Martin Baldos v. Court of Appeals and Reynaldo Pillazar a.k.a. denied on the following grounds:
Reynaldo Estares Baldos, G.R. No. 170645, July 9, 2010). 1. Jesus is neither ridiculous, nor tainted with
dishonor nor extremely difficult to write or
R.A. 9048 pronounce.
2. There is no confusion to be avoided or created
Q: When did R.A. 9048 take effect? with the use of the registered first name or
nickname of the petitioner.
A: March 22, 2001 3. The petition involves the same entry in the same
document, which was previously corrected or
Q: What is the rule with regard to changing or correction changed under the Rules and Regulations
of entries in the civil register? Implementing RA 9048.

A: GR: No entry in a civil register shall be changed or RULE 108, RULES OF COURT
corrected without a judicial order.
Q: May clerical or typographical errors be corrected under
XPNs: Rule 108 of the Rules of Court?
1. Clerical or typographical errors and
2. Change of first name or nickname which can be A: No. The correction or change of clerical or typographical
corrected or changed administratively by the errors can now be made through administrative
concerned city or municipal civil registrar or proceedings and without the need for a judicial order. In
consul general in accordance with the provisions effect, RA 9048 removed from the ambit of Rule 108 of the
of RA 9048 (Clerical Error Law). Rules of Court the correction of such errors. Rule 108 now
applies only to substantial changes and corrections in
Q: What is a clerical or typographical error? entries in the civil register. (Silverio v. Republic, G.R. No.
174689, October 22, 2007)
A: Refers to a mistake committed in the performance of
clerical work in writing , copying, transcribing or typing an Q: What is a first name?
entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth or the A: Refers to a name or nickname given to a person which
like, which is visible to the eyes or obvious to the may consist of one or more names in addition to the middle
understanding, and can be corrected or changed only by and last names.
reference to other existing record or records: Provided, that
no correction must involve the change of , nationality, age, Q: John Lloyd Cruzada filed a petition for the change of
status or sex of the petitioner. (Section 2(c), RA 9048) his first name and sex in his birth certificate in the RTC. He
alleged that his name was registered as John Lloyd
Q: Zirxthoussous delos Santos filed a petition for change Cruzada in his certificate of live birth. His sex was
of name with the Office of the Civil Registrar of registered as male. Further, he alleged that he is a male
Mandaluyong City under the administrative proceeding transsexual. Prior to filing the petition, he underwent sex
provided in RA No. 9048. He alleged that his first name reassignment surgery Thailand. Thus, he seeks to have his
sounds ridiculous and is extremely difficult to spell and name in his birth certificate changed from John Lloyd to
pronounce. After complying with the requirements of the Joanna, and his sex from male to female on the
law, the Civil Registrar granted his petition and changed ground of sex reassignment pursuant to Articles 407 to

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413 of the Civil Code, Rules 103 and 108 of the Rules of subsequently denied. Hence, the remedy and the proceedings
Court and RA 9048. regulating change of first name are primarily administrative in
1. May a person's first name be changed on the ground nature, not judicial (Silverio v. Republic, G.R. No. 174689, October
22, 2007).
of sex reassignment?

A: No. The State has an interest in the names borne by


individuals and entities for purposes of identification. A
change of name is a privilege, not a right. Petitions for
change of name are controlled by statutes. RA 9048 now
governs the change of first name. RA 9048 provides the
grounds for which change of first name may be allowed:
(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
first name or nickname in the community; or
(3) The change will avoid confusion.

RA 9048 does not sanction a change of first name on the


ground of sex reassignment. Rather than avoiding
confusion, changing petitioners first name for his declared
purpose may only create grave complications in the civil
registry and the public interest. Before a person can legally
change his given name, he must present proper or
reasonable cause or any compelling reason justifying such
change. In addition, he must show that he will be
prejudiced by the use of his true and official name. In this
case, he failed to show, or even allege, any prejudice that
he might suffer as a result of using his true and official
name.

2. May a person's sex as indicated in his certificate of


birth be changed on the ground of sex reassignment?

A: No. Under RA 9048, a correction in the civil registry


involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court. The
entries correctable under Rule 108 of the Rules of Court are
those provided in Arts. 407 and 408 of the NCC. These acts,
events and judicial decrees provided in Arts. 407 and 408 of
the NCC produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. In contrast,
sex reassignment is not among those acts or events
mentioned in Art. 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly. A persons
sex is an essential factor in marriage and family relations. It
is a part of a persons legal capacity and civil status. In this
connection, Art. 413 of the NCC provides that all other
matters pertaining to the registration of civil status shall be
governed by special laws. But there is no such special law in
the Philippines governing sex reassignment and its effects
(Silverio v. Republic, G.R. No. 174689, October 22, 2007).

Note: The jurisdiction over applications for change of first name is


now primarily lodged with the city or municipal civil registrar or
consul general concerned. The intent and effect of the law is to
exclude the change of first name from the coverage of Rules 103
(Change of Name) and 108 (Cancellation or Correction of Entries in
the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and

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PROPERTY respiratory functions or the irreversible cessation of all functions of
the entire brain, including the brain system.) (Sec. 2[j], R.A. 7170,
CHARACTERISTICS as amended)

CLASSIFICATION OF PROPERTY
Q: What is property?
Q: What are the classifications of property?
A: It is an object or a right which is appropriated or
susceptible of appropriation by man, with capacity to A:
satisfy human wants and needs (Pineda, 1999) 1. As to mobility
a. Immovable or real property
It is any object which is, or may be, appropriated. (Art. 414) b. Movable or personal property
2. As to ownership
Q: What are the requisites for a thing to be considered as a. Public dominion
property? b. Private ownership
3. As to alienability
A: USA a. Alienable
1. Utility capacity to satisfy human wants b. Inalienable
2. Substantivity/ Individuality It has a separate and 4. As to individuality
autonomous existence. It can exist by itself and a. Specific property
not merely as a part of a whole. (Paras, Civil Code b. Generic property
of the Philippines, vol. 2, 2008 ed.) 5. As to susceptibility to touch
3. Appropriability susceptibility to a. Tangible
ownership/possession, even if not yet actually b. Intangible
appropriated 6. As to susceptibility to substitution
a. Fungible
Q: What properties are not susceptible of appropriation? b. Non fungible
7. As to accession
A:
a. Principal
1. Common things (res communes) Those properties
b. Accessory
belonging to everyone. While in particular no one
8. As to existence
owns common property, still in another sense, res
a. Existing or present property (res existentes)
communes are really owned by everybody in that their
b. Future property (res futurae)
use and enjoyment are given to all of mankind.
9. As to consumability
Examples: air, wind, sunlight. (Paras, Civil Code of the
a. Consumable
Philippines, vol. 2, 2008 ed.)
b. Non-consumable
10. As to divisibility
XPN: Those that may be appropriated under certain
a. Divisible
conditions in a limited way.
b. Indivisible
e.g. Electricity
HIDDEN TREASURE
2. Not susceptible due to physical impossibility
e.g. Sun Q: What is the concept of hidden treasure?
3. Not susceptible due to legal impossibility A: Any hidden and unknown deposit of money, jewelry or
e.g. Human body other precious objects, the lawful ownership of which does
not appear. (Art 439)
Q: Is the human body a real or personal property?
Q: What is the meaning of other precious objects?
A: The human body, whether alive or dead, is neither real
nor personal property. It is not even property at all, in that
A: Under the ejusdem generis rule, the phrase should be
it generally cannot be appropriated.
understood as being similar to money or jewelry.
While a human being is alive, he cannot, as such, be the
Q: Is oil or gold considered as hidden treasure?
object of a contract, for he is considered outside the
commerce of man. He may donate part of his blood, may
A: No, these are natural resources. The Regalian Doctrine
even sell part of his hair, but he cannot sell his body (Paras,
applies and not the provisions on hidden treasure.
Civil Code of the Philippines, vol. 2, 2008).

Note: Under the R.A. 7170 or the Organ Donation Act of 1991, Q: What is the rule regarding discovery of hidden
donation of all or a part of a human body may only occur after a treasure?
persons death (i.e., the irreversible cessation of circulatory and
A: GR: If the finder is the owner of the land, building, or
other property where it is found, the entire hidden treasure
belongs to him.

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The vault of the Banco de las Islas Filipinas has been buried
XPN: If the finder is not the owner or is a stranger for about a century and the Bank of the Philippine Islands
(includes the lessee or usufructuary), he is entitled to cannot succeed by inheritance to the property of Banco de
thereof. (Art 566) las Islas Filipinas. The ownership of the vault, together with
the notes and coins can now legally be considered as
Q: What is the effect if the finder is married? hidden treasure because its ownership is no longer
apparent. The contractor, Adams, is not a trespasser and
A: If the finder is married he or she gets one half of the therefore entitled to one-half of the hidden treasure and
treasure or its value his or her spouse is entitled to share Blas as owner of the property, is entitled the other half (Art.
one-half of that share it being a conjugal property. (Art. 438). Since the notes and coins have historical value, the
117, par. 4, FC) government may acquire them at their just price which in
turn will be divided equally between Adam and Blas (Art.
Q: When is the finder entitled to any share in the hidden 438, par.3)
treasure?
Alternative Answer: The Banco de las Islas Filipinas is the
A: Requisites: ACTA owner of the vault. The finder and the owner of the land
1. Discovery was made on the property of Another, cannot share in the notes and coins, because they are not
or of the State or any of its political subdivisions; buried treasure under the law, as the ownership is known.
2. Made by Chance; and Although under Art. 720 of the NCC the finder shall be
3. He is not a Trespasser or Agent of the landowner. given a reward of one-tenth of the price of the thing found,
(Art. 438 par. 2) as a lost movable, on the principle of quasi-contract.

Note: If the things found be of interest to science or the arts, the However, the notes and coins may have become res nullius
State may acquire them at their just price, which shall be divided in
considering that Banco de las Islas Filipinas is no longer a
conformity with the rule stated. (Art. 438)
juridical person and has apparently given up looking for
Q: Is a trespasser who discovers hidden treasure on a land them and Adam, the first one to take possession with intent
owned by another entitled to any rights to such treasure? to possess shall become the sole owner.

A: A trespasser (one prohibited to enter, or not given the Q: Assuming that either or both Adam and Blas are
authority to enter) who discovers hidden treasure is not adjudged as owners, will the notes and coins be deemed
entitled to any share of the treasure. (Paras, Civil Code of part of their absolute community or conjugal partnership
the Philippines, p. 199, vol. 2, 2008) of gains with their respective spouses? (2008 Bar
Question)
Q: What is the meaning of By Chance?
A: Yes. The hidden treasure will be part of the absolute
A: The finder had no intention to search for the treasure. community or conjugal property, of the respective
There is no agreement between the owner of the property marriages. (Arts. 91, 93 & 106, FC)
and the finder for the search of the treasure.
Alternative Answer: It is not hidden treasure and therefore,
Q: Adam, a building contractor, was engaged by Blas to not part of the absolute or conjugal partnership of the
construct a house on a lot which he (Blas) owns. While spouses. But the finder of the lost movable, then his reward
digging on the lot in order to lay down the foundation of equivalent to one-tenth of the value of the vaults contents,
the house, Adam hit a very hard object. It turned out to be will form part of the conjugal partnership. If the
the vault of the old Banco de las Islas Filipinas. Using a government wants to acquire the notes and coins, it must
detonation device, Adam was able to open the vault expropriate them for public use as museum pieces and pay
containing old notes and coins which were in circulation just compensation.
during the Spanish era. While the notes and coins are no
longer legal tender, they were valued at P 100 million ACCESSION
because of their historical value and the coins silver and
nickel content. The following filed legal claims over the Q: What is the right of accession?
notes and coins:
A: That right of ownership of which an owner of a thing has
i) Adam, as finder; over the products of said thing (accession discreta), as well
ii) Blas, as owner of the property where they were as to all things inseparably attached or incorporated
found; thereto whether naturally or artificially (accession
iii) Bank of the Philippine Islands, as successor-in- continua). (Pineda Property, p.116, 2009 ed.)
interest of the owner of the vault; and
iv) The Philippine Government because of their
Q: Is accession a mode of acquiring ownership?
historical value.
Who owns the notes and coins?
A: No. It is not one of the modes enumerated under Art.
712 (different modes of acquiring ownership). It is therefore
A: Hidden treasure is money jewelry or other precious
safe to conclude that accession is not a mode of acquiring
objects the ownership of which does not appear (Art. 439).
ownership. The reason is simple: accession presupposes a

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PROPERTY
previously existing ownership by the owner over the
principal. Fundamentally and in the last analysis, accession
is a right implicitly included in ownership, without which it
will have no basis or existence. (Paras, Civil Code of the
Philippines, p. 203, vol. 2, 2008)

Note: In general, the right to accession is automatic (ipso jure),


requiring no prior act on the part of the owner or principal.

FRUITS

Q: What is the rule on the owners right of accession with


respect to what is produced by his property?

A: To the owner belongs the:


1. Natural fruits;
2. Industrial fruits;
3. Civil fruits. (Art. 441)

Note: Natural fruits are the spontaneous products of the soil, and
the young and other products of animals. Industrial fruits are those
produced by lands of any kind through cultivation or labor. Civil
fruits are the rents of buildings, the price of leases of lands and
other property and the amount of perpetual or life annuities or
other similar income.

Q: What is the obligation of the owner who receives the


fruit from a third person?

A: He who receives the fruits has the obligation to pay the


expenses made by a third person in their production,
gathering and preservation.

Note: Only such as are manifest or born are considered as natural


or industrial fruits.

With respect to animals, it is sufficient that they are in the womb


of the mother, although unborn.

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ACCESSION; IMMOVABLE PROPERTY FRUITS

Q: What is the rule if the planter and owner of the land are different?

A: As to:
Gathered Fruits
Planter in GF Planter in BF
Reimbursed for expenses for production,
Planter Keeps fruits
gathering and preservation
No necessity to reimburse the planter of
Owner Gets fruits, pay planter expenses
expenses since he retains the fruits
Standing Crops
Planter in GF Planter in BF
Reimbursed for expenses, Loses everything; No right of
Planter
for production, gathering and preservation reimbursement
Owns fruits provided he pays planter
Owner expenses for production, gathering and Owns fruits
preservation

Q: Give the rule when the land owner is the builder, planter or sower.

A:
Land Owner and Builder, Planter or Sower Owner of Materials
Good Faith Good Faith
1. Remove materials if w/o injury to works,
Acquire building etc. after paying indemnity for value of materials. plantings or constructions; or
2. Receive indemnity for value of materials
Bad Faith Good Faith
1. Remove materials, w/ or w/o injury and be
Acquire building etc. after paying value of materials AND indemnity for indemnified for damages; or
damages, subject to the right of the owner of materials to remove 2. Be indemnified for value of materials and
damages
Good Faith Bad Faith
Lose materials w/o being indemnified and pay
Acquire w/o paying indemnity and right to damages
damages
Bad Faith Bad Faith
As though both acted in good faith
(in pari delicto)

Q: Give the rule when land owner is not builder, planter or sower.

A:
Land Owner Builder, Planter, Sower and Owner of Materials
Good Faith Good Faith
LO has option to: In case land owner exercises (1), builder has the right to
1. Acquire improvements after paying indemnity which could either retain until indemnity is paid and cannot be required to
be: pay rent
a. Original costs of improvements
b. Increase in the value of the whole

2. Sell the land to builder and planter or collect rent from sower
unless the value of the land is considerably greater than the
building etc., in which case, the builder and planter shall pay rent
under the terms fixed by the parties
Good Faith Bad Faith
1. Option to: 1. Lose improvements without right to be indemnified
a. Acquire improvements without paying indemnity and collect
damages 2. Recover necessary expenses for preservation of land

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b. Sell the land to builder and planter or rent it to the sower,


and collect damages in both cases 3. Pay damages to land owner
c. Order the demolition of work or restoration to former
condition and collect damages in both cases

2. Pay necessary expenses for preservation


Bad Faith Good Faith
1. Land owner must indemnify builder, planter, sower for 1. Receive indemnity for improvements and receive
improvements and pay damages. damages; or
2. Remove them in any event and receive damages
2. Cannot compel Builder, planter and sower to buy land

Bad Faith Bad Faith


As though both acted in good faith
(in pari delicto)

Q: Give the rule when the land owner, builder, planter, sower and owner of materials are different persons.
A:
Land Owner Builder, Planter, Sower Owner of Materials
Good Faith Good Faith Good Faith
1. Acquire improvements and pay 1. Right of retention for necessary and 1. Collect value of materials primarily
indemnity to builder, planter, sower and useful expenses; from BPS and subsidiarily from LO if
be subsidiarily liable to owner of materials former is insolvent
for value of materials and
2. Remove only if w/o injury
2. Either 2. Pay value of materials to its owner
a. Sell the land to builder and planter
except if its value is considerably
more
b. Rent to sower
Good Faith Good Faith Bad Faith
1. Option to: 1. Right of retention for necessary and 1. Loses materials without right to
a. Acquire improvements and pay useful expenses. indemnity
indemnity to builder, planter, sower
b. 2. Keeps building etc. without indemnity 2. Pays damages
i. Sell to builder, planter except if the to owner of materials and collects
value of land is considerably more, damages from him
then, forced lease
ii. Rent to sower

2. Without subsidiary liability for cost of


materials

Good Faith Bad Faith Bad Faith


1. Option to:
1.Recover value from builder, planter,
a. Acquire improvements without
sower (in pari delicto)
paying indemnity and collect 1. Recover necessary expenses for land
damages preservation
2. If builder, planter, sower acquired
b. Demolition/ restore plus damages
improvements, remove materials if
c. Sell to builder, planter or collect rent 2. Loses improvements without right to
possible without injury
from sower plus damages indemnity from land owner unless the
latter sells the land
3. No action against land owner and may
2. Pay necessary expenses to builder,
be liable to the latter for damages
planter, sower
Bad Faith Bad Faith Bad Faith
Same as though both acted in good faith
(in pari delicto)

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95 FACULTY OF CIVIL LAW
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Bad Faith Good Faith Good Faith


1. Remove materials if possible without
1. Acquires improvements after paying injury
1. Remove improvements
indemnity and damages to builder,
2. Be indemnified for damages in any
planter, sower, unless the latter decides to 2. Collect value of materials primarily
event
remove from builder, planter, sower, subsidiarily
from land owner
Bad Faith Bad Faith Good Faith
1. Acquire improvements after indemnity,
subsidiarily liable to owner of materials 1. Right of retention for necessary
expenses 1. Collect value of materials primarily
2. from builder, planter, sower, subsidiarily
a. Sell to builder, planter except if value 2. Pay value of materials to owner of from land owner
of land is more materials and pay him damages
b. Rent to sower

Good Faith Bad Faith Good Faith


1. Option to:
a. Acquire without paying indemnity
and collect damages 1. Recovers necessary expenses 1. Collect value of materials and damages
b. Sell to builder, planter or rent to from builder, planter, sower
sower and collect damages 2. Loses improvements without right of
2. Pay necessary expenses to builder, indemnity from land owner unless the 2. Remove materials in any event if
planter, sower latter sells the land builder, planter, sower
3. Subsidiarily liable to owner of
materials
Bad Faith Good Faith Bad Faith
Acquire improvements and pay 1. Indemnity for damages No indemnity, loses materials
indemnity and damages to builder,
planter, sower unless the latter decides 2. Remove improvements in any event
to remove

Q: When can the owner of the land appropriate as his own builder in good faith (Carrascoso v. CA, G.R. No. 123672,
the works, sowing or planting of the builder, planter or December14, 2005).
sower?
Q: May the owner of the land choose neither to pay the
A: Only when the builder, planter, or sower believes that he building nor to sell the land and demand the removal of
has the right to so build, plant, or sow because he thinks he the structures and restoration of possession of the lot?
owns the land or believes himself to have a claim of title Decide.
(Morales v. CA, G.R. No. 12196, January28, 1998).
A: The owner has the option of paying the value of the
Note: Improvements made prior to the annotation of the notice of building or selling the land. He cannot refuse either to pay
lis pendens are deemed to have been made in good faith. After or sell and compel the owner of the building to remove it
such annotation, the builder can no longer invoke the rights of a from the land where it is erected. He is entitled to such

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2013 GOLDEN NOTES 96
PROPERTY
removal only when, after having chosen to sell the land, the A: Yes, Pecson is entitled to rentals by virtue of his right of
other party fails to pay for the same (Ignacio v. Hilario, 76 retention over the apartment. The construction of the
Phil 606, 1946). apartment was undertaken at the time when Pecson was
still the owner of the lot. When the Nuguids became the
Q: Felix cultivated a parcel of land and planted sugar cane, uncontested owner of the lot, the apartment was already in
believing it to be his own. When the crop was eight existence and occupied by tenants.
months old, and harvestable after two more months, a
resurvey of the land showed that it really belonged to Art. 448 does not apply to cases where the owner of the
Fred. What are the options available to Fred? (2000 Bar land is the builder but who later lost the land; not being
Question) applicable, the indemnity that should be paid to the buyer
must be the fair market value of the building and not just
A: As to the pending crops planted by Felix in good faith, the cost of construction thereof. To do otherwise would
Fred has the option of allowing Felix to continue the unjustly enrich the new owner of the land.
cultivation and to harvest the crops, or to continue the
cultivation and harvest the crops himself. In the latter Note: While the law aims to concentrate in one person the
option, however, Felix shall have the right to a part of the ownership of the land and the improvements thereon in view of
expenses of cultivation and to a part of the net harvest, the impracticability of creating a state of forced co-ownership, it
guards against unjust enrichment insofar as the good-faith
both in proportion to the time of possession. (Art. 545)
builders improvements are concerned. The right of retention is
considered as one of the measures to protect builders in good
Q: Because of confusion as to the boundaries of the faith.
adjoining lots that they bought from the same subdivision
company, X constructed a house on the adjoining lot of Y Q: Pending complete reimbursement, may the spouses
in the honest belief that it is the land that he bought from Nuguid benefit from the improvement?
the subdivision company.
A: No. Since spouses Nuguid opted to appropriate the
What are the respective rights of X and Y with respect to improvement for themselves when they applied for a writ
X's house? of execution despite knowledge that the auction sale did
not include the apartment building, they could not benefit
A: The rights of Y, as owner of the lot, and of X, as builder of from the lots improvement until they reimbursed the
a house thereon, are governed by Art. 448 which grants to improver in full, based on the current market value of the
Y the right to choose between two remedies: (a) property (Pecson v. CA, G.R. No. 115814, May 26, 1995).
appropriate the house by indemnifying X for its value plus
whatever necessary expenses the latter may have incurred Q: In good faith, Pedro constructed a five-door
for the preservation of the land, or (b) compel X to buy the commercial building on the land of Pablo who was also in
land if the price of the land is not considerably more than good faith. When Pablo discovered the construction, he
the value of the house. If it is, then X cannot be obliged to opted to appropriate the building by paying Pedro the cost
buy the land but he shall pay reasonable rent, and in case thereof. However, Pedro insists that he should be paid the
of disagreement, the court shall fix the terms of the lease. current market value of the building, which was much
higher because of inflation. (2000 Bar Question)
Suppose X was in good faith but Y knew that X was
constructing on his (Y's) land but simply kept quiet about 1. Who is correct, Pedro or Pablo?
it, thinking perhaps that he could get X's house later.
What are the respective rights of the parties over X's A: Pablo is correct. Under Art. 448 in relation to Art. 546,
house in this case? (1999 Bar Question) the builder in good faith is entitled to a refund of the
necessary and useful expenses incurred by him, or the
A: Since the lot owner Y is deemed to be in bad faith (Art. increase in value which the land may have acquired by
453), X as the party in good faith may (a) remove the house reason of the improvement, at the option of the
and demand indemnification for damages suffered by him, landowner. The builder is entitled to a refund of the
or (b) demand payment of the value of the house plus expenses he incurred, and not to the market value of the
reparation for damages (Art. 447, in relation to Art. 454). Y improvement.
continues as owner of the lot and becomes, under the
second option, owner of the house as well, after he pays Note: The case of Pecson v. CA, G.R. No. 115814, May 26, 1995 is
the sums demanded. not applicable.

Q: Pecson owned a commercial lot on which he built a 2. In the meantime that Pedro is not yet paid, who is
building. For failure to pay realty taxes, the lot was sold at entitled to the rentals of the building, Pedro or Pablo?
public auction to Nepomuceno, who in turn sold it to the
spouses Nuguid. The sale, however, does not include the A: Pablo is entitled to the rentals of the building. As the
building. The spouses subsequently moved for the owner of the land, Pablo is also the owner of the building
delivery of possession of the said lot and apartment. being an accession thereto. However, Pedro who is entitled
Pecson filed a motion to restore possession pending to retain the building is also entitled to retain the rentals.
determination of the value of the apartment. May Pecson He, however, shall apply the rentals to the indemnity
claim payment of rentals? payable to him after deducting reasonable cost of repair
and maintenance.

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97 FACULTY OF CIVIL LAW
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Q: What is the effect if the building built on the land the value of the land, when such is demanded by the
owned by another is sold to pay for the lands value? landowner, the land owner becomes automatically the
owner of the improvement under Art. 445.
A: The builder becomes part-owner of the land.
Q: The Church, despite knowledge that its intended
Q: When may the landowner compel the removal of the contract of sale with the National Housing Authority
building built on his land? (NHA) had not been perfected, proceeded to introduce
improvements on the disputed land. On the other hand,
A: The landowner may not seek to compel the owner of the NHA knowingly granted the Church temporary use of the
building to remove the building from the land after refusing subject properties and did not prevent the Church from
to pay for the building or to sell the land. He is entitled to making improvements thereon. Did the Church and NHA
such removal only when, after having chosen to sell the act in bad faith?
land, the other party fails to pay for said land (Ignacio v.
Hilario, G.R. L-175, April 30, 1946). A: Yes. The Church and the NHA, both acted in bad faith,
hence, they shall be treated as if they were both in good
Q: What is the rule when the lands value is considerably faith (National Housing Authority v. Grace Baptist Church,
more than the improvement? G.R. No. 156437, March 1, 2004).

A: The landowner cannot compel the builder to buy the USUFRUCTUARY


land. In such event, a forced lease is created and the
court shall fix the terms thereof in case the parties disagree
Q: What are the rights of the usufructuary over
thereon (Depra v. Dumalo, No. L-57348, May 16, 1985).
improvements he introduced on the property held in
rd usufruct?
Q: What is the rule when landowner sells the land to a 3
person who is in bad faith?
A: GR: The usufructuary is not entitled to indemnity for the
rd
A: Builder must go against the 3 person but if the latter expenses he had incurred in the making of the
has paid the land owner, a case against such land owner improvements.
rd
may still be filed by the builder and the 3 person may file a
rd
3 party complaint against land owner. XPN: He may remove the improvements even against
the will of the owner, provided, that no damage would
Q: Does the land owner have the right of removal or be caused to the property. (Art. 579)
demolition?
Note: The usufructuary may introduce useful or luxurious
A: GR: No. improvements but is prohibited from altering the form and
substance of the property.
XPN: Option exercised was compulsory selling and
builder failed to pay. Q: What if the improvements cannot be removed without
causing damage to the property?
Q: What is the recourse left to the parties where the
builder fails to pay the value of the land? A: The usufructuary may set off the improvements he may
have made on the property against any damage to the
A: While the Civil Code is silent on this point, guidance may same. (Art 580)
be had from these decisions:
1. In Miranda v. Fadullon, G.R. No. L-8220, October 29,
LAND ADJOINING RIVER BANKS
1955, the builder might be made to pay rental only,
leave things as they are, and assume the relation of
ALLUVION
lessor and lessee;
2. In Ignacio v. Hilario, G.R. L-175, April 30, 1946, owner
Q: What is alluvium or alluvion?
of the land may have the improvement removed; or
3. In Bernardo v. Bataclan, G.R. No. L-44606, November
A: It is the gradual deposit of sediment by natural action of
28, 1938, the land and the improvement may be sold
a current of fresh water (not sea water), the original
in a public auction, applying the proceeds first to the
identity of the deposit being lost. Where it is by sea water,
payments of the value of the land, and the excess if
it belongs to the State. (Government of Philippine Islands v.
any, to be delivered to the owner of the house in
Cabangis, G.R. No. L-28379, March 27, 1929)
payment thereof. (Filipinas College Inc. v. Timbang,
G.R. No. L-12812, September 29, 1959).
Note: Art. 457 states To the owners of the lands adjoining
the banks of the rivers belongs the accretion which they
Q: Will the landowner upon demand for payment
gradually receive from the effects of the current of the
automatically become the owner of the improvement for
waters.
failure of the builder to pay for the value of the land?
Q: Distinguish accretion from alluvium?
A: No. There is nothing in Arts. 448 and 546 which would
justify the conclusion that upon failure of the builder to pay

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A: Accretion is the process whereby the soil is deposited A:
while alluvium is the soil deposited. 1. To compensate him for:
a. danger of loss that he suffers due to the location
Q: What are the requisites of alluvium? of his land; and
b. for the encumbrances and other easements on
A: GRA his land
1. Deposit be Gradual and imperceptible 2 To promote the interests of agriculture as he is in
2. Resulted from the effects of the current of the the best position to utilize the accretion.
water
3. The land where the accretion takes place is CHANGE IN THE COURSE OF RIVER
Adjacent to the banks of a river
Q: What happens when a river changes its course by
Q: What is the effect if all the requisites are present? natural causes and its bed is formed on a private estate?

A: The riparian owner is automatically entitled to the A: It becomes of public dominion whether it is navigable or
accretion. floatable.

Q: When does the alluvion start to become the property Q: What are the requisites?
of the riparian owner?
A: NAPA
A: From the time that the deposit created by the current of 1. There must be a Natural change in the course of the
water becomes manifest. (Heirs of Navarro v. IAC, GR. No. waters of the river; otherwise, the bed may be the
68166, February 12, 1997) subject of a State grant (Reyes-Puno, p.54)
2. The change must be Abrupt or sudden;
Q: When does the rule on alluvion not apply? 3. The change must be Permanent;

A: The rule does not apply to man-made or artificial Note: The rule does not apply to temporary overflowing of
accretions to lands that adjoin canals or esteros or artificial the river.
drainage system (Ronquillo v. CA, G.R. No 43346, March 20,
1991). 4. There must be Abandonment by the owner of the bed.

Q: What if the deposits accumulate, not through the Note: Abandonment pertains to the decision not to bring
effects of the current of the water, but because of the back the river to the old bed (Reyes-Puno, p.53).
constructions made by the owner purely for defensive
purposes against the damaging action of the water? Q: What is the effect when the river bed is abandoned?

A: The deposits are still deemed to be alluvion and will A: River beds which are abandoned through the natural
belong to the riparian owner. change in the course of the waters ipso facto belong to the
owners whose lands are occupied by the new course in
Q: What if the deposit is brought about by sea water? proportion to the area lost. However, the owners of the
lands adjoining the old bed shall have the right to acquire
A: It belongs to the State and forms part of the public the same by paying the value thereof, which value shall not
domain. exceed the value of the area occupied by the new bed. (Art
461)
Q: Must alluvial deposits be registered?
Note: The rule on abandoned river bed does not apply to cases
A: Yes, though automatically it is owned by the riparian where the river simply dries up because there are no persons
owner (Heirs of Navarro v. IAC, G.R. No. 68166, February whose lands are occupied by the waters of the river.
12, 1997).
AVULSION
Q: What if the riparian owner fails to register the deposits
within the prescriptive period? Q: What is avulsion?

A: Failure to register the alluvial deposit acquired by A: It is the deposit of known (identifiable) portion of land
accretion for a period of 50 years subjects said accretion to detached from the property of another which is attached to
acquisition thru prescription by third persons (Reynante v. the property of another as a result of the effect of the
CA, G.R. No. 95907, Apr. 8, 1992). current of a river, creek or torrent.

Note: Registration under the Torrens System does not protect the Note: Art. 459 states that whenever the current of a river, creek, or
riparian owner against the diminution of the area of his registered torrent segregates from an estate on its banks a known portion of
land through gradual changes in the course of an adjoining stream. land and transfers it to another estate, the owner of the land to
which the segregated portion belonged retains the ownership of it,
Q: What are the reasons for granting a riparian owner the provided he removes it within 2 years.
right to alluvion deposited by a river?
Q: Distinguish alluvium from avulsion.

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A: typhoon, destroying the bigger portion thereof and
ALLUVIUM AVULSION improvements thereon. Due to the movements of the
river deposits on the part of the land that was not eroded,
Gradual and imperceptible Sudden or abrupt process
the area was increased. Later, Eduave allowed Dodong to
introduce improvements thereon and live there as a
Soil cannot be identified Identifiable and verifiable
caretaker. However, Dodong however later denied
Belongs to the owner of Belongs to the owner from Eduaves claim of ownership so the latter filed action to
the property to which it is whose property it was quiet title over the property. Who has a better right to
attached detached the land?
Detachment followed by
Merely an attachment
attachment A: Eduave. Clearly, the land in question is an island that
appears in a non-floatable and non-navigable river, and it is
Q: What are the requisites of avulsion? not disputed that Eduave is the owner of the parcel of land
along the margin of the river and opposite the island.
A: CAP Applying Art. 465, the island belongs to the owner of the
1. Transfer is caused by the Current of a river, creek, parcel of land nearer the margin. More accurately, because
or torrent. the island is longer than the property of Eduave, he is
2. Transfer is sudden or Abrupt deemed ipso jure the owner of that portion which
3. The Portion of the land transported is known or corresponds to the length of his property along the margin
identifiable. of the river. If however, the riparian owner fails to assert
his claim thereof, the same may yield to the adverse
Q: What if land from one tenement is transferred to possession of the third parties, as indeed even accretion to
another by forces of nature other than the river current? land titled under the Torrens system must itself still be
registered. Dodong thus may acquire said land by
A: By analogy, it can still be considered as an avulsion. acquisitive prescription. But here, Dodongs possession
cannot be considered to be in good faith, so 30 years of
Q: What is the rule on acquisition of titles over an possession is needed. (Jagualing v. CA, G.R. No. 94283,
avulsion? March 4, 1991)

A: GR: Original owner retains title. Note: There is no accession when islands are formed by the
branching of a river; the owner retains ownership of the isolated
XPNs: The owner must remove (not merely claim) the piece of land.
transported portion within 2 years to retain
ownership, otherwise, the land not removed shall BY OBJECT
belong to the owner of the land to which it has been
adjudicated in case of: REAL OR IMMOVABLE
1. Abandonment; or
2. Expiration of 2 years, whether the failure to Q: What are the categories of immovable property?
remove be voluntary or involuntary, and
irrespective of the area of the portion known A: Real Property by: NIDA
to have been transferred. 1. Nature Those which cannot be carried from
place to place
ISLANDS 2. Incorporation Those which are attached to an
immovable in a fixed manner and considered as
Q: What are the rules on ownership with regard to an integral part thereof, irrespective of its
formation of islands? ownership
3. Destination Things placed in buildings or on
A: lands by the owner of the immovable or his agent
LOCATION OWNER in such a manner that it reveals the intention to
If formed on the sea attach them permanently thereto
4. Analogy Classified by express provision of law.
W/in territorial waters State
Outside territorial waters First country to occupy IMMOVABLE BY NATURE & INCORPORATION
If formed on lakes or navigable/ floatable rivers
State Par. 1, Art. 415. Land, buildings, roads and constructions of
If formed on non-navigable/ floatable rivers all kinds adhered to the soil.
Nearer in margin to one Owner of nearer margin is
bank the sole owner Q: Are barong-barongs immovable property?
Island divided longitudinally
If equidistant
in halves A: No. They are not permanent structures but mere
superimpositions on land.
Q: Eduave is the owner of land forming part of an island in
a non-navigable river. Said land was eroded due to a

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Q: Where buildings are sold to be demolished timber, they are still not considered as personal property because
immediately, are the buildings immovable or movable? timber is an integral part of the timber land.

A: The sale involves movable property. What are really sold IMMOVABLE BY INCORPORATION
are the materials.
Par. 3, Art. 415. Everything attached to an immovable in a
Q: What is the effect of demolition of a house? fixed manner, in such a way that it cannot be separated
therefrom without breaking the material or deterioration
A: Once a house is demolished, its character as an of the object.
immovable ceases. This is because a house is classified as
an immovable property by reason of its adherence to the Q: What is res vinta?
soil on which it is built (Bicerra v. Teneza, G.R. No. L-16218,
November 29, 1962). A: These are immovables by incorporation, which when
separated from the immovable, regain their condition as
Q: May a building be mortgaged apart from the land on movable.
which it was built?
IMMOVABLE BY INCORPORATION & BY DESTINATION
A: Yes. While it is true that a mortgage of land necessarily
includes, in the absence of stipulation of the improvements
thereon, buildings, still a building by itself may be Par. 4, Art. 415. Statutes, reliefs, paintings or other
mortgaged apart from the land on which it has been built. objects for use or ornamentation, placed in buildings or
Such a mortgage would still be a real estate mortgage for on lands by the owner of the immovable in such a
the building would still be considered immovable property manner that it reveals the intention to attach them
even if dealt with separately and apart from the land (Yee v. permanently to the tenements.
Strong Machinery Company, G.R. No. 11658, February15,
1918).

Q: Can a building erected on a land belonging to another Q: What do you mean by placed by the owner?
be mortgaged?
A: The objects must be placed by the owner of the
A: Yes. A valid real estate mortgage can be constituted. Art. immovable and not necessarily the owner of the object.
415 of the New Civil Code mentions buildings separate
from land. This means that the building by itself is an Q: Distinguish Par. 3 from Par. 4.
immovable and may be subject of a REM (Prudential Bank
v. Panis, G.R. No. L-50008, August 31, 1987). A:
PAR. 3 PAR. 4
Q: Is the annotation or inscription of a deed of sale of real Cannot be separated from Can be separated from the
property in a chattel mortgage registry considered an the immovable without immovable without
inscription in the registry of real property? breaking or deterioration breaking or deterioration.
Must be placed by the
A: No. By its express terms, the Chattel Mortgage Law
Need not be placed by the owner of the immovable, or
contemplates and makes provisions for mortgages of
owner by his agent whether
personal property; and the sole purpose and object of the
express or implied
chattel mortgage registry is to provide for the registry of
Real property by
Chattel mortgages, that is to say, mortgages of personal Real property by
incorporation and
property executed in the manner and form prescribed in incorporation
destination
the statute. (Yee v. Strong Machinery Co, G.R. No. L-11658,
February 15, 1918)
Par. 5, Art. 415. Machinery, receptacles, instruments or
Par. 2, Art. 415. Trees, plants and growing fruits, while implements intended by the owner of the tenement for an
they are attached to the land or form an integral part of industry or works which may be carried on in a building or
an immovable. on a piece of land & which tend directly to meet the needs
of the said industry or works.
Q: Are trees immovable or movable?
Q: What are the requisites for machinery to be considered
A: real property?
1. Real property by nature - if they are spontaneous
products of the soil A: COTE
2. Real property by incorporation - If they have been 1. The industry or work must be Carried on in a building
planted thru cultivation or labor or on a piece of land;
2. The machinery must:
Note: The moment trees are detached or uprooted from the land it a. Be placed by the Owner of the tenement or his
is considered as personal property. However, in case of uprooted agent;

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101 FACULTY OF CIVIL LAW
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b. Tend directly to meet the needs of the said by destination because they are essential and principal
industry or work; and elements in the industry. Petitioners argue that said
c. Be Essential and principal to the industry or work, machines are real properties pursuant to Art. 415 (5) of
and not merely incidental thereto. the NCC and are not, therefore, the proper subjects of a
Writ of Seizure. However, the lease agreement entered
Q: Is machinery placed by a tenant or by a usufructuary into by the petitioners provides that the machines in
considered real property? question are to be considered as personal property. How
should the machines be classified?
A: No. Since it is placed by a person having only a
temporary right, it does not become immobilized. A: That machines should be deemed personal property
pursuant to the Lease Agreementis good only insofar as
Note: Where a tenant places the machinery under the express the contracting persons are concerned. Hence, while the
provision of lease that it shall become a part of the land belonging
parties are bound by the Lease Agreement, third persons
to the owner upon the termination of the lease without
compensation to the lessee, the tenant acts as an agent of the
acting in good faith are not affected by its stipulation
owner and the immobilization of the machineries arises from the characterizing the subject machinery as personal (Sergs
act of the owner in giving by contract a permanent destination to Products, Inc. v. PCI Leasing and Finance, Inc., 338 SCRA
the machinery (Valdez v. Central Altagracia, 225 U.S. 58, 1912). 504, August 22, 2000).

Q: How is the equipment of a transportation business Q: Manila Petroleum Co. (MPC) owned and operated a
classified? petroleum operation facility off the coast of Manila. The
facility was located on a floating platform made of wood
A: A transportation business is not carried on in a building and metal, upon which was permanently attached the
or on a specified land. Hence, equipment destined only to heavy equipment for the petroleum operations and living
repair or service a transportation business may not be quarters of the crew. The floating platform likewise
deemed real property, but personal property (Mindanao contained a garden area, where trees, plants and flowers
Bus Co. v. City Assessor and Treasurer, G.R. No. L-17870, were painted. The platform was tethered to a ship, the
September 29, 1962). MV101, which was anchored to a seabed.

Note: Machines must be essential and principal elements in the a. Is the platform movable or immovable property?
industry and must directly meet the needs of said industry. It does
not include movables which are merely incidentals, without which
the business can still continue or carry on their functions. A: The platform is an immovable property by destination. It
was intended by the owner to remain at a fixed place on a
Q: Are machineries bolted or cemented on real property river or coast. Art. 415 (9) of the NCC considers as real
mortgaged considered an immovable property? property docks and structures which, though floating are
intended by their nature and object to remain at a fixed
A: No. The fact that machineries were bolted or cemented place on a river, lake, or coasts (2007 Bar Question; Fels
on real property mortgaged does not make them ipso facto Energy, Inc. v. The Province of Batangas, G.R. No. 168557,
immovable under Art. 415 (3) and (5) as the parties intent February 16, 2007).
has to be looked into.
b. Are the equipment and living quarters movable or
Q: Can parties treat an immovable property by nature as a immovable property? (2007 Bar Question)
chattel?
A: With respect to the equipment, the same is real
A: Yes. Even if the properties appear to be immovable by property under paragraph 5 of Art. 415, NCC. It is intended
nature, nothing detracts the parties from treating them as to meet the needs of the industry being undertaken by
chattels to secure an obligation under the principle of MPC. The equipment partakes of the nature of the
estoppel (Tsai v. CA, G.R. No. 120098, October 2, 2001). immovable upon which it has been placed.

Q: What is the effect of temporary separation of movables The living quarters, if attached to the immovable platform
from the immovables to which they are attached? with permanence, becomes an immovable as well.
Permanence means they cannot be separated without
A: 2 views destroying the platform or the quarters. On the other hand,
1. They continue to be regarded as immovables. if the attachment is not permanent, or not merely
2. Fact of separation determines the condition of superimposed on the platform, then the living quarters are
the objects thus recovering their condition as movable property.
movables.
c. Are the trees, plants and flowers immovable or movable
Q: Petitioners contend that the machines that were the property? (2007 Bar Question)
subjects of the Writ of Seizure were placed in the factory
built on their own land. Indisputably, they were essential A: The trees, plants and flowers are also immovable, having
and principal elements of their chocolate making industry. been planted in the garden area, under Art. 415 (2) which
Hence, although each of them was movable or personal provides that Trees, plants and growing fruits, while they
property on its own, all of them have become immobilized

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are attached to the land or form an integral part of the a. Private persons, either individually or
immovable are likewise immovable property. collectively; and
Q: The City Assessor sought to impose realty tax on steel b. The State in its private capacity (patrimonial
towers of MERALCO. The taxes were paid under protest, property)
MERALCO contending that the towers were exempt from c. The LGUs:
taxation and that they were personal and not real i. Property for public use roads, streets,
properties. Decide. squares, fountains, public waters,
promenades and public works for public
A: The towers are personal properties. They are not service paid for by the LGUs
buildings adhered to the soil (Art. 415 par. 1); they are not ii. Patrimonial Property all other properties
attached to an immovable in a fixed manner and they can possessed by LGUs without prejudice to
be separated without substantial damage or deterioration, special laws. (Art. 419)
and they are not machineries intended for works on the
land (Board of Assessment Appeals v. Meralco, G.R. No. L- Note: Sacred and religious objects are considered outside the
15334, January 31, 1964). commerce of man. They are neither public nor private party.

PERSONAL OR MOVABLE PUBLIC DOMINION

Q: What are movable properties? Q: What are the kinds of property of public dominion?

A: SOFTSS A: Properties which are: USD


1. Movables Susceptible of appropriation which are not 1. For public Use;
included in Art. 415; 2. Intended for public Service and not for public use; and
2. Real property which by any Special provision of law 3. For the Development of the national wealth. (Art. 420)
considers as personalty
e.g. growing crops under the Chattel Mortgage Law.
3. Forces of nature which are brought under the control
of science
e.g. electricity generated by electric powers, solar light
for batteries power.
4. In general, all things which can be Transported from
Q: What are the characteristics of properties of public
place to place without impairment of the real property
dominion?
to which they are fixed;
5. Obligations and actions which have for their object
A: ULEP- ROB
movables or demandable sums; and
1. In general, they can be Used by everybody;
6. Shares of stock of agricultural, commercial and
2. Cannot be Levied upon by execution or attachment;
industrial entities, although they have real estate. (Art.
3. May Either be real or personal property;
416)
4. Cannot be acquired by Prescription;
5. Cannot be Registered under Land Registration Law and
Q: State the tests to determine whether a property is a
be the subject of Torrens Title;
movable property.
6. Outside the commerce of man cannot be alienated or
leased or be subject of any contract;
A: MES
7. Cannot be Burdened by voluntary easement.
1. Test of Exclusion Everything not included in Art. 415,
e.g. ships or vessels or interest in a business
Q: How are lands of public dominion classified?
2. By reason of a Special law Immovable by nature but
movable for the purpose of the special law, e.g.
A:
Growing crops for purposes of the Chattel Mortgage
1. Agricultural;
Law
2. Forest or timber;
3. Test of Mobility If the property is capable of being
3. Mineral lands;
carried from place to place without injuring the real
4. National Parks. (Art. XIV, Sec. 10, Philippine
property to which it may in the meantime be attached
Constitution)
BY OWNER
Q: Who has the authority to classify or reclassify public
Q: How are properties classified according to ownership? lands?

A: A: As provided in the Public Land Act, the classification or


1. Public dominion - Property owned by the State (or its reclassification of public lands into alienable or disposable,
political subdivisions) in its public or sovereign capacity mineral or forest lands is a prerogative of the executive
and intended for public use department of the government and not of the courts.
2. Private ownership Property owned by:
Q: Can property of public dominion be converted to
patrimonial property?

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103 FACULTY OF CIVIL LAW
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A: Yes, through a formal declaration by the executive or
legislative body that the property is no longer needed for A: The property is patrimonial and not subject to legislative
public use or for public service. control. It is property of the city, purchased with private
funds and not devoted to public use (it is for profit). It is
Q: Do LGUs have the power to withdraw a public street therefore patrimonial under the Civil Code. Nor can the
from public use? system be considered public works for public service
under Art. 424 because such classification is qualified by
A: LGU cannot withdraw a public street from public use, ejusdem generis; it must be of the same character as the
unless it has been granted such authority by law (Dacanay preceding items. (City of Cebu v. NAWASA, G.R. No. 12892,
v. Asistio Jr., G.R. No. 93654, May 6, 1992). April 20, 1960)

PRIVATE OWNERSHIP BY NATURE

Q: What are properties in private ownership of private Q: How are properties classified according to
persons or entities? consumability?

A: All properties not belonging to the State or its political A:


subdivision are properties of private ownership pertaining 1. Consumable property That which cannot be used
to private persons, either individually or collectively. according to its nature without being consumed or
being eaten or used up
Q: What is the patrimonial property of the State? 2. Non-Consumable property That which can be used
according to its nature without being consumed or
A: It is the property not devoted to public use, public
being eaten or used up.
service, or the development of the national wealth. It is
intended rather for the attainment of the economic ends of
the State, that is, for subsistence. It is owned by the State in
its private or proprietary capacity.

Note: It may be disposed of by the State in the same manner that


Q: How are properties classified according to susceptibility
private individuals dispose of their own property subject, however,
to administrative laws and regulations. to substitution?

Q: Where do properties for public service and properties A:


for the development of national wealth fall? 1. Fungible property That property which belongs to a
common genus permitting its substitution
A: Public service depends on who pays for the service. 2. Non- fungible property That property which is
specified and not subject to substitution
If paid for by the political subdivision, public; if for profit,
patrimonial. Note: As to whether a property is fungible or non-fungible is
determined by the agreement of the parties and not on the
National wealth still property for public use under the consumability of the thing.
regalian doctrine
OWNERSHIP
Q: Are canals constructed by private persons within
private lands are of public dominion or of private RIGHTS IN GENERAL
ownership?
Q: What is ownership?
A: Art. 420 states that canals constructed by the State are
of public ownership; conversely, canals constructed by A: The juridical relation of a person over a thing by virtue of
private persons within private lands are of private which said person has the exclusive power or authority to
ownership (Santos v. Moreno, G.R. No. L-15829, receive all the benefits and advantages arising from said
December4, 1967). thing, save those restricted by law or the recognized rights
of others.
Q: The City of Cebu obtained a loan which was to be paid
with its own funds. Part of the proceeds of this loan was Q: What are the kinds of ownership?
used to fund the construction of the Citys sewage system.
NAWASA sought to expropriate the sewage system. This A: FNSC
was opposed with the arguments that there was no 1. Full ownership Includes all the rights of an owner;
payment of just compensation; NAWASA offered
Note: Naked ownership + Usufruct
unliquidated assets and liabilities. NAWASA averred, as an
alternative course of action, that the property is one for
public use and under the control of the legislature. Decide 2. Naked ownership Ownership where the rights to the
whether the property is patrimonial property of the city or use and to the fruits have been denied;
property for public use.
Note: Full ownership Usufruct

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Q: What is accion interdictal?
3. Sole ownership Ownership is vested in only one
person; A: A summary action to recover physical or material
possession only and it must be brought within one year
4. Co-ownership Ownership is vested in 2 or more from the time the cause of action arises.
persons. There is Unity of the property, and plurality of 1. Forcible Entry
the subjects. 2. Unlawful detainer

Q: What are the characteristics of ownership? Q: What is accion publiciana?

A: A: An ordinary civil proceeding to recover the better right


1. Elastic Power/s may be reduced and thereafter of possession, except in cases of forcible entry and unlawful
automatically recovered upon the cessation of the detainer. What is involved here is not possession de facto
limiting rights. but possession de jure.
2. General The right to make use of all the possibilities
or utility of the thing owned, except those attached to Q: What is accion reinvindicatoria?
other real rights existing thereon.
3. Exclusive There may be two or more owners, but only A: An action to recover real property based on ownership.
one ownership. Here, the object is the recovery of the dominion over the
4. Independent Other rights are not necessary for its property as owner.
existence.
5. Perpetual Ownership lasts as long as the thing exists. Q: What are the requisites of accion reinvindicatoria?
It cannot be extinguished by nonuser but only by
adverse possession. A:
1. Identity of property
2. Plaintiffs title to the property

Note: Where the facts averred in the complaint reveals that the
BUNDLE OF RIGHTS PERSONAL OR MOVABLE
action is neither one of forcible entry nor unlawful detainer but
essentially involves a boundary dispute, the same must be resolved
JUS UTENDI, FRUENDI, ABUTENDI, VINDICANDI, in an accion reinvindicatoria (Sarmiento v. CA, G.R. No. 116192,
DISPODENDI, POSSIDENDI, ACCESIONES November 16, 1995).

Q: What are the attributes of ownership? Q: A contract of lease executed by Alava (lessor) and Anita
Lao (lessee) was not registered with the Register of Deeds.
A: Aside from Anita, Rudy Lao also leased a portion of the
1. Right to enjoy (jus utendi) same property where he put up his business. At that time,
2. Right to the fruits (jus fruendi) Rudy knew that Anita and her husband were the owners
3. Right to abuse (jus abutendi) of the said building. He also knew that she had leased
4. Right to dispose (jus dispodendi) that portion of the property, and that Jaime Lao, their son,
5. Right to recover (jus vindicandi) managed and maintained the building, as well as the
6. Right to accessories (jus accessiones) business thereon. Rudy eventually purchased the entire
7. Right to possess (jus possidendi) property from Alava. Rudy then filed a complaint for
unlawful detainer against Jaime alleging that the latter
REMEDIES TO RECOVER POSSESSION had occupied a portion of his property without any lease
agreement and without paying any rentals, and prayed
ACTIONS TO RECOVER OWNERSHIP AND POSSESSION OF that an order be rendered directing Jaime to vacate the
REAL PROPERTY premises. Should the complaint be dismissed?

Q: What are the legal remedies to recover possession of A: Yes. The records in this case show that the respondent
ones property? has been in possession of the property in question, not by
mere tolerance or generosity of Rudy, but as the manager
A: of his mother, who conducted her business in the building
1. Personal property- Replevin which stood on a portion of the property leased from Alava.
2. Real property Jaimes possession was in behalf of his mother, and not in
a. Accion Interdictal his own right.
i. Forcible Entry
ii. Unlawful detainer Q: What is the effect of non-registration of the contract of
b. Accion Publiciana lease?
c. Accion Reinvindicatoria
A: Although the lease contract was not filed with the
DISTINCTIONS BETWEEN ACCION REIVINDICATORIA, Register of Deeds, nevertheless, Rudy was bound by the
ACCION PUBLICIANA, ACCION INTERDICTAL terms and conditions of said contract. The lease, in effect
became a part of the contract of sale. However, Rudy had

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105 FACULTY OF CIVIL LAW
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no cause of action for unlawful detainer against Anita A: No. A property validly deposited in custodia legis cannot
because of the subsisting contract of lease; hence, he could be subject of a replevin suit (Calub v. CA, G.R. No. 115634,
not file the complaint against her (Lao v. Lao, G.R. No. Apr. 27, 2000).
149599, May 16, 2000).
REQUISITES FOR RECOVERY OF PROPERTY
DISTINCTION BETWEEN FORCIBLE ENTRY AND UNLAWFUL
DETAINER Q: What are the requisites in an action to recover
property?
Q: Distinguish forcible entry from unlawful detainer.
A:
A: 1. Clearly identify the land he is claiming in
Forcible Entry Unlawful Detainer accordance with the title/s on which he bases his
As to when possession became unlawful right of ownership; and
Possession is inceptively Note: Burden of proof lies on the party who asserts the
lawful but becomes illegal affirmative of an issue. The description should be so
from the time defendant definite that an officer of the court might ho to the
unlawfully withholds locality where the land is situated and definitely locate
Possession of the defendant possession after the it.
is unlawful from the expiration or termination of
beginning as he acquired his right thereto. 2. Prove that he has a better title than the
possession by force, defendant
intimidation, strategy, threat Note: The question of a. Best proof is a Torrens certificate.
or stealth (FISTS). possession is primordial, while b. Tax receipts, tax declarations are only prima
the issue of ownership is facie evidence of ownership; it is rebuttable.
generally unessential in unlawful
detainer (Rosa Rica Sales Center
Note: Plaintiffs title must be founded on positive right or title and
v. Sps. Ong, G.R. 132197, August not merely on the lack or inefficiency of the defendants title. In
16, 2005). other words, he shall not be permitted to rely upon the defects of
As to necessity of demand the defendants title. (Art. 434)
No previous demand for the Demand is jurisdictional if
defendant to vacate is the ground is non-payment Q: Why is the plaintiff not allowed to rely on the weakness
necessary. of rentals or failure to of defendants title?
comply with the lease
contract. A:
1. Possibility that neither the plaintiff nor the defendant
As to necessity of proof of prior physical possession is the true owner of the property. In which case, the
Plaintiff must prove that he Plaintiff need not have been defendant who is in possession will be preferred.
was in prior physical in prior physical possession. 2. One in possession is presumed to be the owner and he
possession of the premises cannot be obliged to show or prove a better title
until he was deprived Note: The fact that petitioners 3. Possessor in the concept of an owner is presumed to
thereof by the defendant. are in possession of the lot does be in good faith and he cannot be expected to be
not automatically entitle them carrying every now and then his proofs of ownership
to remain in possession (Ganilla
over the property
v. CA, G.R. No. 150755, June 28,
2005). 4. He who relies on the existence of a fact, should prove
that fact. If he cannot prove, the defendant does not
As to when 1 year period is counted from have to prove.
1 year period is generally 1 year period is counted
counted from the date of from the date of last DISTINCTION BETWEEN REAL AND PERSONAL RIGHTS
actual entry of the land. demand or last letter of
demand.
Q: Distinguish real from personal rights
ACTIONS FOR RECOVERY OF POSSESSION OF MOVABLE
PROPERTY A:
Real Right Personal Right
Q: What is replevin? Creation
Created by title alone
A: It is the remedy when the complaint prays for the It is not directly created
recovery of the possession of personal property. Created by both title and over a thing but is
mode directly over a thing exercised through another
Q: May a property in custodia legis be subject of a against whom the action is
replevin suit? to be brought.
Object

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Incorporeal or intangible. a. Prohibition against the acquisition of private


Generally corporeal or Object covers all the lands by aliens.
tangible. Object is specific present and future 7. Acts in state of necessity The law permits injury
property or thing. property of the debtor. or destruction of things owned by another
(Art. 2236) provided this is necessary to avert a greater
Subjects danger (with right to indemnity v. principle of
(a) One definite active unjust enrichment)
subject (e.g. 8. True owner must resort to judicial process When
owner) thing is in possession of another; law creates a
(b) One indefinite disputable presumption of ownership to those in
passive subject actual possession
(a) An active subject
which is the whole
(creditor) ACCESSION
world
(b) A definite passive
Right of pursuit is
subject (debtor) Q: Define accession. Is accession a mode of acquiring
therefore
available. Real ownership?
right follows its
object in the hands A: Accession may be defined as the right pertaining to the
of any possessor owner of a thing over everything which is produced
Enforceability thereby, or which is incorporated or attached thereto,
either naturally or artificially (Art. 440). From the very
Enforceable only against
the original debtor or his definition itself, it is clear that it is not a mode of acquiring
Enforceable against the ownership; it is merely a consequence of the right of
transferee charged with
whole world ownership. Furthermore, under Art. 712 of the NCC which
notice of the personal
enumerates the different modes of acquiring ownership or
rights
other real rights, accession is not included.
Limit
Limited by usefulness, value GENERAL RULES
No such limitation
or productivity of the thing
Extinguishment FOR IMMOVABLES
Not so extinguished. Claim
Extinguished by loss or for damages may still be ACCESSION DISCRETA
destruction of the thing pursued-in case of loss or
destruction of the thing Q: What is accession discreta?

LIMITATIONS A: It is the right pertaining to the owner of a thing over


everything produced thereby.
Q: What are the limitations on the right of ownership?
Q: What are the requisites of accession discreta?
A: Those imposed by the: CC-SLOG
1. State in the exercise of: A:
a. Power of taxation 1. Increase or addition to the original thing
b. Police power 2. At repeated intervals
c. Power of eminent domain 3. By inherent forces
2. Law
a. Legal easements (i.e., easements of waters Q: Is the rule of accession discretathat to the owner of
and of right of way) and the thing belong the natural, industrial and civil fruits
b. The requirement of legitime in succession; absolute in character?
3. Owner himself
a. Voluntary easement A: No. It is subject to the following exceptions:
b. Mortgage 1. If the thing is in possession of a possessor in good
c. Pledge faith in which case such possessor is entitled to
d. Lease; the fruits. (Art. 544)
4. Grantor of the property on the grantee, either by: 2. If the thing is subject to a usufruct, in which case
a. Contract the usufructuary is entitled to the fruits. (Art. 566)
b. Donation or 3. If the thing is leased, in which case the lessee is
c. Will; entitled to the fruits of the thing, although such
5. Those arising from Conflicts of private rights lessee must pay the owner rentals which are in
a. Those which take place in accession the nature of civil fruits. (Art. 1654)
continua; 4. If the thing is in possession of an antichretic
6. Constitution creditor, in which case such creditor is entitled to
the fruits with the obligation of applying them to
the interest and principal. (Art. 2132)

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107 FACULTY OF CIVIL LAW
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ACCESSION CONTINUA
Q: What are the kinds of fruits?
Q: What is accession continua?
A: NIC
1. Natural A: It is the right pertaining to the owner of a thing over
a. Spontaneous products of the soil; everything incorporated or attached thereto either
b. The young and naturally or artificially; by external forces.
c. Other products of animals, whether brought 1. With respect to real property [IN]
about by scientific means or not. a. Accession Industrial (building, planting or
2. Industrial produced by lands of any kind sowing)
through: b. Accession Natural (alluvium, avulsion,
a. Cultivation or change of a river course, and formation of
b. Labor islands)
3. Civil fruits
a. Derived from the use of property or Note: In case of uprooted trees, the owner retains
b. Income from the property itself. They ownership if he makes a claim within 6 months.
consist of rents of buildings and the prices of This does not include trees which remain planted
leases of lands. (Art. 442) on a known portion on land carried by the force of
the waters. In this latter case, the trees are
regarded as accessions of the land through gradual
Q: When can we say that the fruit is in existence?
changes in the course of adjoining stream.
(Payatas v. Tuazon, No. 30067, March 23, 1929)
A: It depends on the type of fruit:
1. Annual (must be planted every year/must re-plant after 2. With respect to personal property [SAC]
harvest; rice, wheat, corn) deemed manifest the a. Specification
moment their seedlings appear. b. Adjunction or conjunction
2. Perennial (only planted once and bear fruit for several c. Commixtion or confusion
seasons; mango and coconut trees) deemed to exist
only when they actually appear. Q: What are the basic principles in accession continua?

Q: When are animal young considered as existing? A: BADONG-E


1. He who is in Bad faith is liable for damages.
A: They are considered existing even if still in the maternal 2. Accessory follows the principal
womb. They should be considered existing only at the 3. Union or incorporation must generally be
commencement of the maximum ordinary period for effected in such a manner that to separate the
gestation. principal from the accessory would result in
substantial Damage to either or diminish its
Q: When are civil fruits and natural fruits deemed to exist? value.
4. To the Owner of the thing belongs the extension
A: or increases to such thing.
a. Civil fruits accrue daily and are considered personal 5. Bad faith of one party Neutralizes the bad faith of
property and may be pro-rated. the other so that they shall be considered in good
b. Natural and industrial fruits, while still growing, are faith.
considered as real property; ordinarily, they cannot be 6. He who is in Good faith may be held responsible
pro-rated. but not penalized.
7. No one shall unjustly Enrich himself at the
Q: To whom do the fruits belong? expense of another.

A: GR: To the owner of the land. (Art. 441)


ACCESSION INDUSTRIAL
XPNS: If the thing is: [PULPA]
1. In possession of a possessor in good faith (Art 546, Q: What are the maxims in connection with accession
NCC); before the possession is legally interrupted. industrial?
2. Subject to a Usufruct (Art. 566)
3. Lease of rural land A:
4. Pledged (Art. 1680 and Art. 2102, par. 7); pledge is 1. The accessory follows the principal.
entitled to the fruits but has the obligation to 2. The accessory follows the nature of that to which it
compensate or set-off what he receives with those relates.
which are owing to him. 3. What is built upon the land goes with it; or the land is
5. In possession of an Antichretic creditor (Art. 2132) the principal, and whatever is built on it becomes the
accessory.
Q: What does the maxim pratus sequitor ventrem mean?
Q: What is the rule on ownership regarding accession
A: The offspring follows the dam (mother). industrial?

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A: GR: The owner of the land is the owner of whatever is they form a single object and each of the things united
built, planted or sown on that land, including the preserves its own nature. (Art. 466)
improvements or repairs made thereon.
Q: What are its characteristics?
XPNS:
A: That there are: 2BUS
1. When the doer is in good faith the rule is 1. 2 movables;
modified. 2. Belonging to different owners;
2. Improvements on the land of one of the spouses 3. United forming a single object;
at the expense of the conjugal partnership will 4. Separation would impair their nature or result in
belong to the partnership or to the spouse who substantial injury to either thing.
owns the land depending on which of the two
properties has a higher value (Art. 120, FC) Q: What are the classes of adjunction or conjunction?
Note: If the doer is in bad faith, he is entitled only to necessary
expenses for the preservation of the land. A: PEWWS
1. Painting (pintura)
2. Engraftment - Like setting a precious stone on a
golden ring)
3. Writing (escritura)
4. Weaving
5. Soldering- Joining a piece of metal to another
metal)
a. Ferruminacion - Principal and accessory are
of the same metal
ACCESSION NATURAL b. Plumbatura Different metals (Art. 468)

Q: To whom does the offspring of animals belong when Q: Who owns the movables subject to adjunction?
the male and female belong to different owners?
A: The owner of the principal by law becomes owner of the
A: Under the Partidas, the owner of the female was resulting object and should indemnify the owner of the
considered also the owner of the young, unless there is a accessories for the values thereof.
contrary custom or speculation.
Q: What are the tests to determine the principal?
The legal presumption, in the absence of proof to the
contrary, is that the calf, as well as its mother belongs to A: VVUM
the owner of the latter, by the right of accretion (US v. 1. That of greater Value- If two things are of equal value.
Caballero, G.R. No. 8608, September 26, 1913). (Art. 468)
2. That of greater Volume- If two things are of equal
Note: This is also in accord with the maxim pratus sequitor
volume. (Art. 468)
ventrem.
3. That to which the other has been United as an
FOR MOVABLES ornament, or for its use or perfection- If it cannot be
determined from Art. 467. (Art. 467)
ACCESSION CONTINUA 4. That which has greater Merits, utility and volume if
things.
Q: What is the basic principle of accession with respect to
movable property? Q: How is ownership determined if the adjunction
involves three or more things?
A: Accession exists only if separation is not feasible.
Otherwise, separation may be demanded. A: The court should first distinguish the principal and apply
Art. 466 in an equitable manner such that the principal
Q: Enumerate different kinds of accession continua as acquires the accessory, indemnifying the former owner
regard movables. thereof for its value.

Q: How about if the adjunction involves three or more


A: AMS
things?
1. Adjunction or conjunction
2. Mixture
A: The principal should first be distinguished, after, Art. 466
3. Specification
will be applied in an equitable manner, such that the
principal acquires the accessory, indemnifying the former
Q: What is adjunction?
owner thereof for its value.
A: The process by virtue of which two movable things Note: Art. 466 states that Whenever two movable things
belonging to different owners are united in such a way that belonging to different owners are, without bad faith, united in such

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a way that they form a single object, the owner of the principal
thing acquires the accessory, indemnifying the former owner A: COM-CON
thereof for its value. 1. Commixtion mixture of solids
2. Confusion liquids
Q: When is separation of things allowed?
Q: What are the rules regarding mixtures?
A: WIB
1. Separation Without injury
A:
2. Separation with Injury Accessory is much more
st nd
precious than the principal, the owner of the former 1 Owner 2 Owner
may demand its separation even though the principal By Will of Both Owners of by Accident
may suffer injury.
3. Owner of the principal acted in Bad faith. (Art. 469) Good Faith Good Faith
1. Right is subject to stipulations; OR
Q: What are the rules as regards rights of owners over the
2. Right is in proportion to the part belonging to him
thing in adjunction?
(Co-ownership arises)
A: By Will of Only 1 Owner/ By Chance
OWNER OF THE
OWNER OF THE ACCESSORY Good Faith Good Faith
PRINCIPLE
Good Faith Good Faith 1. Have the things separated provided the thing
1. Receive payment for value suffers no injury; OR
of accessory; OR 2. If cannot be separated w/o injury, acquire interest
1. Acquire
2. GR: Demand separation on mixture in proportion to his part (co-
accessory and pay
provided the thing suffers ownership)
owner of the accessory
no injury
for its value; OR Bad Faith
XPN: If accessory is more Good Faith
2. Demand (caused the mixture)
precious than principal, he
separation provided st nd
may demand separation 1 owner will lose his part on 2 owner will acquire
the thing suffers no
w/ or w/o injury to the the mixture and pay damages entire mixture and
injury nd
thing to the 2 owner entitled to damages

Good Faith Bad Faith Good Faith


Bad Faith
Acquire accessory w/o (caused the mixture)
Lose accessory and pay
paying the owner of As if both acted in GF,
damages As if both acted in GF, because
accessory and entitled to st
since the 1 owner is in
nd
damages the 2 owner in GF was the nd
BF and the 2 owner who
Bad Faith Good Faith one who caused the
st caused the mixture in GF
1. Pay value of 1. Receive payment ratification, because the 1
in a way ratifies the BF of
accessory and pay and damages; OR owner st
1 owner.
damages; OR
2. Have the things
Q: What is a specification?
separated, even though 2. Have accessory
there is injury to the separated w/ or w/o injury
A: It is the giving of new form to anothers material thru
principal and pay to principal and receive
application of labor. The material undergoes a
damages damages
transformation or change of identity.
Bad Faith Bad Faith
Same as though both acted in good faith Q: What are the respective rights of the maker and the
owner of the materials in specification?
Q: How is the indemnity made?
A:
A: Maker (M) Owner of Materials (OM)
1. Delivery of a thing equal in kind and value; or
2. Payment of its price including the sentimental value. Good Faith Good Faith
(Art. 471) GR: Appropriate the thing
transformed and pay the
Q: What is a mixture? owner of the materials for
Receive payment for value of
its value
A: It is the combination of materials where the respective materials
XPN: If the material is
identities of the component elements are lost either more precious than the
voluntarily or by chance. (Arts. 472-473) thing transformed, the
owner of the materials has
Q: What are the kinds of mixtures?

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2013 GOLDEN NOTES 110
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the option to: Secondary Factors


1. The one which has a greater value shall be
1. Acquire the work and considered principal
indemnify the maker for 2. If they have equal value, the one with greater
his labor; or volume shall be considered principal (Art. 467-
2. Demand indemnity for 468.
the material
Note: In painting and sculpture, writings, printed matter, engraving
Good Faith Good Faith and lithographs, the board, metal, stone, canvas, paper or
1. Receive payment for 1. Appropriate new parchment shall be deemed the accessory thing. (Art. 468)
value of his work; OR thing and pay the maker for
2. Appropriate the new the work; OR QUIETING OF TITLE
thing and pay the owner 2. Receive payment for
of materials for its value value of materials Q: What is an action for quieting of title?
Bad Faith Good Faith
A: It is a proceeding in equity, the purpose of which is the
1. Lose the new thing and 1. Appropriate the new thing declaration of the invalidity of a claim on a title or the
pay damages to owner without paying and receive invalidity of an interest in property adverse to that of the
of the materials; OR damages; OR plaintiff, and thereafter to free the plaintiff and all those
claiming under him from any hostile claim thereon. (Pineda,
Note: Not available if the
p. 191)
2. Pay value of materials new thing is more valuable
and damages to owner than materials for scientific
or artistic reasons Note: An action to quiet title is quasi in rem - an action in
of the materials personam concerning real property where judgment therein is
enforceable only against the defeated party and his privies.
2. Receive payment for the
value of materials and Q: What are the properties that can be subject of an
damages action for quieting of title?

Q: Distinguish adjunction, mixture and specification. A: Only real properties could be the subject matter of
quieting of title. Art. 476 makes reference only to real
A: property without hinting to include personal property.
ADJUNCTION MIXTURE SPECIFICATION (Pineda, p. 192)

May involve 1 REQUIREMENTS


Involves at least 2 Involves at least 2
thing(or more) but
things things Q: What are the requisites for an action to quiet title?
form is changed

Accessory follows Co-ownership Accessory follows A: LCDR


the principal results the principal 1. Plaintiff must have a Legal or equitable title to, or
interest in the real property which is the subject
Things mixed or matter of the action;
The new object
confused may 2. There must be Cloud in such title;
retains or
Things joined either retain or 3. Such cloud must be Due to some
preserves the
retain their nature lose their a. Instrument;
nature of the
respective b. Record;
original object
natures c. Claim;
d. Encumbrance; or
e. Proceeding which is apparently valid but is in
RULES FOR DETERMINING THE PRINCIPAL AND truth invalid, ineffective, voidable or
ACCESSORY unenforceable, and is prejudicial to the plaintiffs
title; and
Q: What are the factors to determine the principal and the 4. Plaintiff must
accessory? a. Return to the defendant all benefits he may have
received from the latter; or
A: Primary Factors (Importance/purpose) b. reimburse him for expenses that may have
1. The thing which is incorporated to another thing redounded to his benefit.
as an ornament is the accessory. The other is the
principal Q: What are the reasons for quieting of title?
2. The thing to which is added to or joined to
another for the use or perfection of the latter is A:
the accessory. The other is the principal. 1. Prevent future litigation on the ownership of the
property

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111 FACULTY OF CIVIL LAW
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2. Protect true title & possession ACTION TO REMOVE
3. To protect the Real interest of both parties ACTION TO QUIET TITLE
CLOUD ON TITLE
4. To determine and make known the precise state of
To put an end to troublesome For the removal of a
title for the guidance of all
litigation with respect to the possible foundation for a
property involved future hostile claim
Q: State the rules in actions for Quieting of Title.
A remedial action A preventive action
A: Involving a present adverse To prevent a future cloud
1. These put an end to vexatious litigation in respect to claim on the title
property involved; plaintiff asserts his own estate &
generally declares that defendants claim is without Q: Edgardo donated a parcel of land to a barangay subject
foundation to the condition that it shall be used for the construction
2. Remedial in nature of a public plaza within 5 years from execution of the
3. Not suits in rem nor personam but suits against a Deed of Donation. Otherwise, the deed shall have no force
particular person or persons in respect to the res and effect and ownership of the land will revert to the
(quasi in rem) donor. The barangay took possession of the property and
4. May not be brought for the purpose of settling a allowed the construction of buildings by public and private
boundary disputes. entities. Edgardo filed a complaint for quieting of title and
5. Applicable to real property or any interest therein. recovery of possession of the area donated against the
The law, however, does not exclude personal property barangay claiming that the donation had ceased to be
from actions to quiet title. effective, for failure to comply with the conditions of the
6. An action to quiet title brought by the person in donation. Was the action to quiet title properly made?
possession of the property is IMPRESCRIPTIBLE.
7. If he is not in possession, he must invoke his remedy A: No. The action to quiet title is unavailing until the
within the prescriptive period. donation shall have first been revoked. In the case at bar,
the barangay traces its claim of ownership over the
Q: What are the classifications of action? disputed property to a valid contract of donation which is
yet to be effectively revoked. Such rightful claim does not
A: constitute a cloud on the supposed title of Edgardo over
a.) Remedial action one to remove cloud on title the same property removable by an action to quiet title.
b.) Preventive action on to prevent the casting of a (Dolar v. Brgy. Lublub, G.R. No. 152663, November 18,
(threatened) cloud on the title. 2005)
Q: What are the requisites for existence of a cloud? PRESCRIPTION OR NON-PRESCRIPTION
OF ACTION
A: ATP
1. There is an Apparently valid or effective
Q: What are the prescriptive periods for bringing an action
instrument.
to quiet title?
Note: They must appear valid or effective and
extraneous evidence is needed to prove their invalidity A:
or ineffectivity. 1. Plaintiff in possession Imprescriptible
2. Plaintiff not in possession
2. But such instrument is in Truth: a. 10 years (ordinary) or
a. Invalid; b. 30 years (extra-ordinary)
b. Ineffective;
c. Voidable; Note: Laches is defined as the failure or neglect, for unreasonable
d. Unenforceable; and unexplained length of time, to do that which by exercising due
e. Has been extinguished or terminated; diligence, could or should have been done earlier.
f. Has been barred by extinctive prescription.
The negligence or omission to assert a right within a reasonable
3. Such instrument may be Prejudicial to the title.
time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it (Tijam v
Q: What is the purpose of an action to remove cloud on Sibonghanoy, L-21450, Apr. 15, 1968).
title?
Q: May an action filed within the period of limitations, still
A: It is intended to procure the cancellation, or delivery of, be barred?
release of an instrument, encumbrance, or claim
constituting a claim on plaintiffs title, and which may be A: Yes, by laches. (See Arts. 1431, 1433, 1437)
used to injure or vex him in the enjoyment of his title.
Q: Is an action to quiet title imprescriptible?
Q: Differentiate an action to quiet title from an action to
remove cloud on title. A: Yes. Even though the NCC does not include an action to
quiet title as one of those actions which are imprescriptible,
A:

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2013 GOLDEN NOTES 112
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the SC in this case held that such action is imprescriptible. his undivided share and the transferee gets only what would
The basis of the court is Art. 480. The imprescriptibility of correspond to his grantor in the partition of the thing owned in
an action to quiet title is a general principle from American common (Paulmitan v. CA, GR No. 51584, November 25, 1992.).
jurisprudence (Bucton v. Gabar, G.R. No. L-36359,
Q: Can there be an agreement to keep the thing undivided
January31, 1974).
for a certain period of time?
CO-OWNERSHIP
A: Yes. An agreement to keep the thing n undivided for a
certain period of time, not exceeding ten years, shall be
CHARACTERISTICS OF CO-OWNERSHIP
valid. This term may be extended by a new agreement.
IN GENERAL
A donor or testator may prohibit partition for a period
Q: What is co-ownership? which shall not exceed twenty years.
A: It is a state where an undivided thing or right belongs to Neither shall there be any partition when it is prohibited by
2 or more persons (Art. 484). It is the right of common law. (Art. 494)
dominion which two or more persons have in a spiritual (or
ideal) part of the thing which is not physically divided. Q: How do you determine the share of the co-owners in
the benefits and charges arising from the co-ownership?
Q: What are the characteristics of co-ownership?
A: According to the NCC, the share of the co-owners in the
A: PRES-LG benefits and charges arising from the co-ownership shall be
1. Plurality of subjects / owners; proportional to their respective interests and any
2. There is no mutual Representation by the co-owners; stipulation in a contract to the contrary shall be void (Art.
3. It exists for the common Enjoyment of the co-owners; 485, par.1). Consequently, in order to determine the share
4. There is a Single object which is not materially divided; of the co-owners in the benefits and charges, we must first
5. It has no distinct Legal personality determine their respective interests in the co-ownership.
6. It is Governed first of all by the contract of the parties; Under the law, such interests are presumed equal, unless
otherwise, by special legal provisions, and in default of the contrary is proved. (Art. 485, par.2)
such provisions, by the provisions of Title III of the
New Civil Code on co-ownership.

Q: What are the requisites of co-ownership?

A: POL
1. Plurality of owners;
2. Object, which is an undivided thing or right;
3. Each co-owners right must be Limited only to his ideal
share of the physical whole

Note: By the very nature of co-ownership, a co-owner cannot point


to any specific portion of the property owned in common as his
own because his share remains intangible and ideal (Spouses Avila
et al v. Spouses Barabat, GR. No. 141993, May 17, 2006).

Q: What are the limitations upon the right of a co-owner


to use the thing owned in common?

A: The thing should be used only:


1. In accordance with the purpose for which it is
intended;
2. In such a way as not to injure the interest of the
co-ownership; and
3. In such a way as not to prevent the other co-
owners from using it according to their rights.
(Art. 486)

Q: What happens when a co-owner sells the whole


property as his?

A: The sale will affect only his own share but not those of
the other co-owners who did not consent to the sale.

Note: A sale of the entire property by one co-owner without the


consent of the other co-owners is not null and void but affects only

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Q: Distinguish co-ownership from joint tenancy.

A:
CO-OWNERSHIP JOINT OWNERSHIP
Tenancy in common Joint Tenancy
As to the extent of ownership

Each co-owner is the owner of his own ideal share. Each joint owner owns the whole thing.

As to disposition
Each co-owner may dispose of his undivided share without the Joint owner may not dispose of his own share without of all the
other co-owners consent. rest, because he really has no ideal share.
As to transfer of shares in case of death

Upon the death of a joint owner, his share goes to the other
Upon the death of a co-owner, his ideal share goes to his heirs.
joint owners by accretion.

As to minority or legal disability


In case of a minor who is a co-owner, this does not benefit the
The legal disability of one joint owner benefits the others.
others.
Prescription
Prescription will continue to run among co-owners Prescription will not run among them.

Q: Distinguish co-ownership from partnership.

A:
CO-OWNERSHIP ORDINARY PARTNERSHIP
No legal personality Has legal personality
Can be created without the formalities of a Can be created only by contract, express or
contract implied
By contract or by will By contract only
Agreement to exist for more than 10 years is
No term limit is set by law
void
No mutual representation There is mutual representation
Not dissolved by the death/incapacity of a co-
Dissolved by death or incapacity of a partner
owner
A co-owner can dispose of his share w/o the
A partner cannot be substituted w/o the
consent of the others hence in a way a co-
consent of the others
owner is substituted
Profits of a co-owner depend on his Profits may be stipulated upon (for e.g., profit-
proportionate share sharing agreements)
For collective enjoyment For profit
No public instrument is needed even if the May be made in any form except when real
object of the co-ownership is an immovable property is contributed

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SPECIAL RULES: XPNs: A partition shall be made only upon a showing
that: COURE
CONCEPT OF CONDOMINIUM 1. That 3 years after damage to the project which
rendered a material part thereof unfit for its use
CONDOMINIUM CORPORATION prior thereto, it has not been Repaired
substantially to its state prior to said damage; or
Q: What is a condominium corporation? 2. That damage to the project has rendered 1/2 or
more of the units therein Untenantable and
A: A condominium may include, in addition, a separate owners holding, in aggregate, more than 30%
interest in other portions of such real property. Title to the interest in the common areas are opposed to the
common areas, including the land, or the appurtenant repair; or
interests in such areas, may be held by a corporation 3. That the project which has been in existence for
specially formed for the purpose (known as the more than 50 yrs, is Obsolete and is uneconomic,
condominium corporation) in which the holders of and owners holding, in aggregate, more than 50%
separate interest shall automatically be members or interest in the common areas are opposed to the
shareholders, to the exclusion of others, in proportion to repair or modernizing; or
the appurtenant interest of their respective units in the 4. That the project or a material part thereof has
common areas. been condemned or Expropriated, the project is
no longer viable and owners holding, in
The real right in condominium may be ownership or any aggregate, more than 70% interest in the
other interest in real property recognized by law, on common areas are opposed to continuation of
property in the Civil Code and other pertinent laws. (Sec. 2, the condominium after such expropriation or
RA No. 4726) condemnation; or
5. That the Conditions for such partition by sale
INTEREST IN REAL PROPERTY have been met.

Q: What is a condominium? Q: When can a Corporation Condominium be voluntarily


dissolved?
A: An interest in real property consisting of;
1. A separate interest in a unit in a residential, A:
industrial or commercial building; and 1. By the affirmative vote of all the stockholders or
2. An undivided interest in common, directly or members thereof at a general or special meeting duly
indirectly, in the called for the purpose: Provided all the requirements
a. Land on which it is located; and of Section 62 of the Corporation Law are complied
b. In other common areas of the building. with.

CONCEPT OF COMMON AREAS, AMENDMENT 2. GR: When the enabling or master deed is revoked

Q: What are common areas? XPN:

A: The entire project excepting all units separately granted


1. That 3 years after damage or destruction to the
or held or reserved.
project which renders a material part thereof
unfit for its use prior thereto, it has not been
Q: What is a project?
rebuilt or repaired substantially to its prior
A: The entire parcel of real property divided or to be state; or
divided in condominiums, including all structures thereon. 2. That damage or destruction to the project has
rendered 1/2 or more of the units therein
Q: Where the common areas in the condominium are held untenantable and that more than 50% of the
by the owners of separate units as co-owners thereof, to members of the corporation, if non-stock, or
whom can the units therein be conveyed? the shareholders representing more than 30%
of the capital stock entitled to vote, if a stock
A: GR: Only to Filipino citizens corporation, are opposed to the repair or
reconstruction of the project, or
XPN: To aliens in case of hereditary succession 3. That the project has been in existence in excess of
50 years, that it is obsolete and uneconomical,
GROUNDS FOR PARTITION OF COMMON AREAS, OR and more than 50% of the members of the
DISSOLUTION OF THE CONDOMINIUM corporation, if non-stock, or the stockholders
representing more than 50% of the capital
stock entitled to vote, if a stock corporation,
Q: Can the common areas be divided? are opposed to the repair or restoration or
remodeling or modernizing of the project; or
A: GR: No, there can be no judicial partition.

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115 FACULTY OF CIVIL LAW
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4. That the project or a material part thereof has RIGHTS OF CO-OWNERS
been condemned or expropriated and that the
project is no longer viable, or that the Q: What are the general rights of each co-owner as to the
members holding in aggregate more than 70% thing owned in common?
interest in the corporation, if non-stock, or the
stockholders representing more than 70% of A: USA-COPE-P
the capital stock entitled to vote, if a stock 1. To Use the thing according to the purpose intended
corporation, are opposed to the continuation provided that:
of the condominium regime after expropriation a. It is w/o prejudice to the interest of the co-
or condemnation of a material portion thereof; ownership; and
or b. W/o preventing the use of other co-owners.
5. That the conditions for such a dissolution have (Art. 486)
been met. (Secs. 13 & 14, R.A. 4726) 2. To Share in the benefits in proportion to his interest,
provided the charges are borne in the same
Q: If you are the owner of a unit in a condominium proportion. (Art. 485)
project, such as an apartment, office or store, can you
transfer your interest in the project to a third person? Note: A contrary stipulation is void. Hence, benefits cannot
be stipulated upon by the co-owners.

A: Yes, I can. However, the limitations prescribed by Sec. 5


3. Each co-owner may bring an Action for ejectment.
of the Condominium Act must be observed. According to
(Art. 487)
this section: Any transfer or conveyance of a unit or an
apartment, office or store or other space therein, shall Note: Action for ejectment covers; forcible entry, unlawful
include the transfer or conveyance of the undivided detainer, accion publiciana, quieting of title, accion
interest in the common areas or, in a proper case, the reivindicatoria, replevin.
membership or shareholding in the condominium
corporation: Provided, however, that where the common 4. To Compel other co-owners to contribute to expenses
areas in the condominium project are held by the owners of for preservation of the thing (Art. 488)
separate units as co-owners thereof, no condominium unit 5. To Oppose to any act of alteration (Art. 491) even if
therein shall be conveyed or transferred to person other beneficial to the co-owners
than Filipino citizens or corporations at least 60% of the 6. To Protect against acts of majority which are
capital stock of which belong to Filipino citizens, except in prejudicial to the minority (Art. 492, par. 3)
cases of hereditary succession. Where the common areas in 7. To Exercise legal redemption
a condominium project are held by a corporation, no 8. To ask for Partition (Art. 494)
transfer or conveyance of a unit shall be valid if the 9. Right to exempt himself from obligation of paying
concomitant transfer of the appurtenant membership or necessary expenses and taxes by renouncing his share
stockholding in the corporation will cause the alien interest in the pro-indiviso interest; but cant be made if
in such corporation to exceed the limits imposed by existing prejudicial to co-ownership
laws. 10. Right to make repairs for preservation of things can be
made at will of one co-owner; receive reimbursement
SOURCES OF CO-OWNERSHIP therefrom; notice of necessity of such repairs must be
given to co-owners, if practicable
11. Right to full ownership of his part and fruits
Q: What are the sources of co-ownership?
12. Right to alienate, assign or mortgage own part; except
A: LOST-CC personal rights like right to use and habitation
1. Law - ex. Easement of party walls (Article 658, NCC) 13. Right of pre-emption
2. Occupancy - ex. When two persons gather forest 14. Right to be adjudicated thing (subject to right of others
products or catch a wild animal to be indemnified)
3. Succession- ex. Heirs of undivided property before 15. Right to share in proceeds of sale of thing if thing is
partition indivisible and they cannot agree that it be allotted to
4. Testamentary (or mortis causa) / Donation inter vivos one of them.
i.e. Where the donor prohibits partition of the
property for a certain period of time Q: What is the effect of redemption of the whole property
5. Contract of a co-owner?
6. by Chance or fortuitous event A: Redemption of the whole property by a co-owner does
i.e. Hidden treasure not vest in him sole ownership over said property.
Redemption within the period prescribed by law by a co-
owner will inure to the benefit of all co-owners. Hence, it
will not put an end to existing co-ownership (Mariano v. CA
222 SCRA 76, 1993).

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2013 GOLDEN NOTES 116
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Q: What are the duties/liabilities of co-owners? Q: What if the case does not prosper, are the other co-
owners bound by the judgment?
A: A: GR: No.
1. Share in charges proportional to respective interest;
stipulation to contrary is void XPN: If they were also served with summons, even as
2. Pay necessary expenses and taxes may be exercised unwilling plaintiffs.
by only one co-owner
3. Pay useful and luxurious expenses if determined by Q: Can a suit for ejectment be brought by one co-owner
majority against another co-owner?
4. Duty to obtain consent of all if thing is to be altered
even if beneficial; resort to court if non-consent is A: No, since the latter also has a right of possession; the
manifestly prejudicial only effect of the action will be to obtain recognition of the
5. Duty to obtain consent of majority with regards to co-ownership.
administration and better enjoyment of the thing;
controlling interest; court intervention if prejudicial DISTINCTION BETWEEN RIGHT TO PROPERTY OWNED IN
appointment of administrator COMMON AND FULL OWNERSHIP OVER HIS/HER IDEAL
6. No prescription to run in favor co-owner as long as he SHARE
recognizes co-ownership; requisites for acquisition
through prescription:
a. He has repudiated through unequivocal acts Q: Distinguish right to property owned in common and full
b. Such act of repudiation is made known to other co- ownership over his/her ideal share
owners
c. Evidence must be clear and convincing A:
7. Co-owners cannot ask for physical division if it would 1. Right to property owned in common
render thing unserviceable; but can terminate co-
ownership. Each co- owner is granted the right to use the property
8. After partition, duty to render mutual accounting of owned in common for the purpose for which it is intended.
benefits and reimbursements for expenses.
rd There are two restrictions in the enjoyment of this right:
Q: What are the rights of a co-owner to 3 parties?

a. The co- ownership shall not be injured; and


A: b. The exercise shall not prevent the other co-
1. Assignees may take part in division and object if being owners from using the property according to their
effected without their concurrence, but cannot own rights.
impugn unless there is fraud or made not withstanding
their formal opposition.
2. Full ownership over his/her ideal share
2. Non-intervenors Retain rights of mortgage and
servitude and other real rights and personal rights
belonging to them before partition was made. A co- owner has full ownership of his share (undivided
interest) and the fruits and benefits arising therefrom.
Q: Borromeo, a co-owner of a parcel of land, allowed Being the full owner thereof he may alienate, assign or
Resuena to reside in said land. After sometime, Borromeo mortgage it; he can also substitute another person in the
later demands that Resuena should vacate the property, enjoyment of his share, except only when personal rights
but the latter refused. May Borromeo file an ejectment are involved.
suit even if he is a mere co-owner of the lot?
ACTS OF ALTERATION
A: Yes. Art. 487 of the Civil Code which provides that
Anyone of the co-owners may bring an action in Q: What is an alteration?
ejectment is a categorical and an unqualified authority in
favor of Borromeo to evict Resuena from the portion A: Alteration is a change which is more or less permanent,
occupied. Borromeos action for ejectment against Resuena which changes the use of the thing and which prejudices
is deemed to be instituted for the benefit of all co-owners the condition of the thing or its enjoyment by the others.
of the property. (Resuena v. CA, G.R. No. 128338, March 28, (Paras, p.344)
2005)
Q: What does alteration include?
Q: Does the filing of an ejectment suit require the consent
of the other co-owners? A: It includes the act by virtue of which a co-owner changes
the thing from the state in which the others believe it
A: No. Art. 487 states that Any one of the co-owners may should remain. It is not limited to material charges (Viterbo
bring action for ejectment. The law does not require that v. Quinto, 35226-R, December19, 1973).
consent of the co-owners must be first secured before
bringing an action for ejectment.

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117 FACULTY OF CIVIL LAW
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Q: Distinguish acts of administration from acts of RIGHT TO PARTITION
alteration.
Q: What are the rights of co-owners as to the ideal share
A: of each?
ACTS OF
ACTS OF ALTERATION A: FARTS
ADMINISTRATION
1. Each has Full ownership of his part and of his share of
the fruits and benefits;
Acts, by virtue of which, a co- 2. Right to Alienate, dispose or encumber;
Refer to the owner, in opposition to the 3. Right to Renounce part of his interest to reimburse
enjoyment, expressed or tacit agreement of necessary expenses incurred by another co-owner;
exploitation, alteration all the co-owners, and in 4. Right to enter into Transaction affecting his ideal
of the thing which do violation of their will, chang the share;
not affect its thing from the state in which the
substance, form, or others believe it would remain, Note: The transaction affects only his ideal share not that of
purpose or withdraws it from the use to the other co-owners.
which they believe it is intended
5. Right to Substitute another person in its enjoyment,
except when personal rights are involved.
Transitory in character Permanent
Note: Personal rights or jus in personam is the power
belonging to one person to demand from another, as a
Do not affect the Affect or relate the substance or
definite passive subject-debtor, the fulfillment of a prestation
substance or form essence of the thing to give, to do, or not to do. (Paras, p.773)

In relation to the right Q: What is the rule as regards to the right to demand
of a co-owner, they Require the consent of all co- partition?
require the consent of owners
the majority A: GR: Every co-owner has the right to demand partition.

Can be exercised by XPNs: EAS-PAUL


Must be exercised by the co-
the co-owners through 1. When partition would render the thing
owners themselves
others Unserviceable; or
2. When the thing is essentially Indivisible;
3. When partition is prohibited by Law by reason of
Q: What is the liability of a co-owner who makes an
their origin or juridical nature- ex. party walls and
alteration without the express or implied consent of the
fences;
others? 4. When the co-owners Agree to keep the property
undivided for a period of time but not more than
A: He shall: LDP 10 yrs;
1. Lose what he has spent; 5. When partition is Prohibited by the transferor
2. Be obliged to Demolish the improvements done; and (donor / testator) but not more than 20 yrs;
3. Pay for the loss and damages the community
property or other co-owners may have suffered. Note: 10 years ordinary prescription, 30 years extra-
ordinary partition.
Note: Estoppel will operate against the co-owners who were aware
of the execution of the acts of alteration, but did not object 6. When a co-owner possessed the property as an
thereto. They are deemed to have given their implied consent. (3 Exclusive owner for a period sufficient to acquire
Manresa 469-470)
it through prescription. (Acquisitive Prescription)
7. When Co-owners may agree that it be Allotted to
Q: What is conversion?
one of them reimbursing the others;
8. If they cannot agree, may Sell the thing and
A: It refers to the act of using or disposing of anothers
distribute the proceeds.
property without lawful authority to do so in a manner
different from that with which a property is held by the
Q: May the right to ask for partition be waived or
trustees to whom the owner had entrusted the same. It is
renounced permanently?
not necessary that the use for which the property is given
be directly to the advantage of the person misappropriating
A: No, such waiver or renunciation is void.
or converting the property of another (People v. Carballo,
17136-CR, November 17, 1976).
Q: Can prescription run in favor of or against a co-owner?

A: GR: As long as he expressly or impliedly recognizes the


co-ownership, it cannot.

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2013 GOLDEN NOTES 118
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Reason: Possession of a co-owner is like that of a trustee Q: Should creditors and/or assignees be notified of the
and shall not be regarded as adverse to the other co- proposed partition?
owners but in fact is beneficial to all of them. Acts
considered adverse to strangers may not be considered A: The law does not require that a notification be given but:
adverse insofar as co-owners are concerned (Salvador v. 1. If notice is given- It is their duty to appear to
CA, G.R. No. 109910, Apr. 5, 1995). concur /oppose, otherwise creditors claims are
deemed waived.
XPN: Co-owner's possession may be deemed adverse to 2. If no notice is given- creditors and/or assignees
the cestui que trust or the other co-owners provided the may still question the partition made.
following elements must concur:
1. That he has performed unequivocal acts of Note: Third persons who have rights attached to the community
repudiation amounting to an ouster of the cestui property before its partition, shall retain such rights even after the
que trust or the other co-owners; partition of the property. The protection granted by law applies to
both real and personal rights. (Pineda, p. 254)
2. That such positive acts of repudiation have been
made known to the cestui que trust or the other
Q: Can a partition already executed or implemented be
co-owners; and
still impugned?
3. That the evidence thereon must be clear and
convincing (Salvador v. CA, G.R. No. 109910, Apr.
A: GR: No.
5, 1995).
XPN:
Note: Prescription begins to run from the time of
repudiation.
1. In case of fraud, regardless of notification and
opposition;
Example of acts of repudiation: filing of an action to: 2. In case of partition was made over their objection
1. Quiet title; or even in absence of fraud (Article 497)
2. Recovery of ownership.
Q: What are the remedies available to co-owners where
XPN to XPN: Constructive trusts can prescribe. the co-owned property cannot be physically divided
Express trust cannot prescribe as long as the without rendering it useless or unserviceable?
relationship between trustor and trustee is
recognized. (Paras, p. 362) A:
1. Agree on the allotment of the entire property to one of
Q: The two lots owned by Alipio were inherited by his 9 them who in turn will indemnify the others for their
children, including Maria, upon his death. Pastor, Marias respective interests; or
husband, filed a complaint for quieting of title and 2. Sell the property and distribute the proceeds to the co-
annulment of documents against the spouses Yabo, owners. (Pineda, p.252)
alleging that he owned a total of 8 shares of the subject
lots, having purchased the shares of 7 of Alipio's children Q: What are rights of co-owners are not affected by
and inherited the share of his wife, Maria, and that he partition?
occupied, cultivated, and possessed continuously, openly,
peacefully, and exclusively the parcels of land. He prayed A: MRS-P
that he be declared the absolute owner of 8/9 of the lots. 1. Rights of:
His co-heirs then instituted an action to partition the lots. a. Mortgage;
Did Pastor acquire by prescription the shares of his other b. Servitude;
co-heirs or co-owners? c. any other Real rights existing before
partition.
A: No. The only act which may be deemed as repudiation by 2. Personal rights pertaining to third persons against
Pastor of the co-ownership over the lots is his filing of an the co-ownership (Art. 499, NCC)
action to quiet title. The period of prescription started to
run only from this repudiation. However, this was tolled Illustration: A, B and C where co-owners of parcel of land
when his co-heirs, instituted an action for partition of the mortgaged to M. If A, B, and C should physically partition
lots. Hence, the adverse possession by Pastor being for only the property, the mortgage in Ms favor still covers all the
about 6 months would not vest in him exclusive ownership three lots, which, together, formerly constituted one single
of his wife's estate, and absent acquisitive prescription of parcel. If A alone had contracted an unsecured obligation,
ownership, laches and prescription of the action for he would of course be the only one responsible. (Paras, p.
partition will not lie in favor of Pastor (Salvador v. CA, G.R. 376)
No. 109910, Apr. 5, 1995).
Q: What are the rights of third persons in case of
partition?

A:
1. The partition of a thing owned in common shall not
prejudice third persons, who shall retain the rights of

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119 FACULTY OF CIVIL LAW
CIVIL LAW
mortgage, servitude or nay other real rights belonging WAIVER
to them before the division was made;
2. Personal rights pertaining to them against the co- Q: May a co-owner opt not to contribute to the expenses
ownership shall also remain in force, notwithstanding for the preservation of the property? How?
the partition.
A: GR: Yes, by renouncing his undivided interest equal to
RIGHT TO CONTRIBUTIONS FOR EXPENSES the amount of contribution.

XPN: If the waiver or renunciation is prejudicial to the


Q: What are the expenses which the co-owners can be
co-ownership, otherwise he cannot exempt himself
compelled to contribute?
from the contribution (Art. 488)
A: Only necessary expenses. Useful expenses and those for
Note: The value of the property at the time of the renunciation will
pure luxury are not included. be the basis of the portion to be renounced.

Q: Differentiate necessary, useful and expenses of pure Q: Is the failure or refusal of a co-owner to contribute pro
luxury. rata to his share in expenses tantamount to renunciation?
A: Necessary expenses are those made for the preservation A: No, there must be an express renunciation, otherwise he
of the thing, or those without which the thing would is required to reimburse the others for the expenses they
deteriorate or be lost, or those that augment the income of incurred.
the things upon which are expended, or those incurred for
cultivation, production, upkeep, etc. (Mendoza v De Q: What is the effect of renunciation?
Guzman, 52 Phil. 171)
A: It is in effect a dacion en pago since there is a change in
Useful expenses incurred for the preservation of the realty the object of the obligation (i.e. from sum of money to
in order that it may produce the natural, industrial, and civil interest in the co-ownership). Consequently, the consent of
fruits it ordinarily produce. (Marcelino v. Miguel, 53 OG the other co-owners is necessary.
5650)
Note: Dacion en pago is a juridical concept whereby a debtor pays
Ornamental expenses add value to the thing only for off his obligations to the creditor by the conveyance of ownership
certain persons in view of their particular whims, neither of his property as an accepted equivalent of performance or
essential for preservation nor useful to everybody in payment. The end result may be the same, but the concept is
general. entirely different from that of a purchase (Damicog v. Desquitada,
CV 43611, October 3, 1983).
Q: When may acts of preservation made in the property of
the co-owners? Q: Can the renunciation be made without the consent of
any unpaid creditor?
A: At the will of one of the co-owners, but he must, if
practicable, first notify the others of the necessity of such A: No, for it is in effect a novation by substitution, it will
repairs. prejudice the rights of the unpaid creditor.

Q: What are those acts which require the majority consent Note: Novation by substitution is the substitution of the person of
the debtor.
of the co-owners?

A: IME RIGHT OF REDEMPTION OF CO-OWNERS SHARE


a. Management
b. Enjoyment Q: Whose shares may a co-owner redeem?
c. Improvement or embellishment
A: The shares of all or any other co-owner if sold to a third
Q: What is the remedy in case the minority opposes the person.
decision of the majority in co-ownership?
Q: What if two or more co-owners want to redeem?
A: Minority may appeal to the court against the majoritys
decision if the same is seriously prejudicial. A: They may do so in proportion to the shares they
respectively have.
Q: Who shall decide on matters relating to expenses for
the improvement or embellishment of the thing? Q: What is the effect of redemption by a co-owner?

A: Expenses to improve or embellish the thing shall be A: Redemption of the whole property by a co-owner does
decided upon by the majority. (Art. 489, NCC) not vest in him sole ownership over said property.
Redemption within the period prescribed by law will inure
Note: There is no majority unless the resolution is approved by the to the benefit of all co-owners. Hence, it will not put an end
co-owners who represent the controlling interest in the object of
the co-ownership (par. 2 Art. 492)

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2013 GOLDEN NOTES 120
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to existing co-ownership (Mariano v. CA, GR. No. 101522, TERMINATION/EXTINGUISHMENT
May 28, 1993).
Q: How is co-ownership extinguished?
Q: Fortunato, his siblings and mother are co-owners of a
parcel of land. Lumayno purchased the shares of A: CALSTEP
Fortunatos co-owners. When Fortunato died, his wife 1. Consolidation or merger in one co-owner;
claimed that she has the right of redemption over the 2. Acquisitive prescription in favor of a third person or a
shares previously sold by the co-owners to Lumayno co-owner who repudiates;
because they have not formally subdivided the property. 3. Loss or destruction of thing co-owned;
However, although the lot had not yet been formally 4. Sale of thing co-owned;
subdivided, still, the particular portions belonging to the 5. Termination of period agreed upon;
co-owners had already been ascertained. In fact the co- 6. Expropriation;
owners took possession of their respective parts. Can 7. Judicial or extra-judicial Partition.
Fortunatos wife be entitled to right of legal redemption?

A: No, she is no longer entitled to the right of legal EFFECT OF PARTITION


redemption under Art. 1632 of the NCC. As legal
redemption is intended to minimize co-ownership, once the Q: What are the effects of partition?
property is subdivided and distributed among the co-
owners the community ceases to exist and there is no more A:
reason to sustain any right of legal redemption. The 1. It confers upon the co-owner exclusive title over the
exercise of this right presupposes the existence of a co- property adjudicated to him (Art. 1091);
ownership at the time the conveyance is made by a co- 2. Possession of the co-owner over the property
owner and when it is demanded by the other co-owners. adjudicated to him shall be deemed exclusive for the
Even an oral agreement of partition is valid and binding period during which the co-possession lasted (Art. 543,
upon the parties (Vda. de Ape v. CA, G.R. No. 133638, Apr. NCC). In other words, it is deemed continuous.
15, 2005).
RIGHTS AGAINST INDIVIDUAL CO-OWNERS IN CASE OF
Q: Villaner, upon death of his wife, sold the conjugal PARTITION
property to Leonardo. Villaners 8 children, as co-owners
of the property, now claim that the sale does not bind
them as they did not consent to such undertaking. Is the Q: What are the obligations of co-owners upon partition?
sale binding on the children?
A: WARD
A: No. While a co-owner has the right to freely sell and 1. Mutual Accounting for benefits received, fruits and
dispose of his undivided interest, nevertheless, as a co- other benefits
owner, he cannot alienate the shares of his other co- 2. Mutual Reimbursements for expenses
owners. The disposition made by Villaner affects only his 3. Indemnity for Damages caused by reason of
share pro indiviso, and the transferee gets only what negligence/fraud
corresponds to his grantor's share in the partition of the 4. Reciprocal Warranty for defects of title and quality of
property owned in common. The property being conjugal, the portion assigned to the co-owner (Art. 500-501)
Villaner's interest in it is the undivided one-half portion.
When his wife died, her rights to the other half was vested PARTITION IN CASE CO-OWNERS CANNOT AGREE
to her heirs including Villaner and their 8 legitimate
children. Q: How is partition effected?
Q: What is the status of the sale? Is it valid, void or A:
voidable? 1. By agreement between the parties; or
2. By judicial proceedings (Art. 496)
A: A sale of the entire property by one co-owner without
the consent of the other co-owners is valid. However, it will
Q: What is the remedy in case the co-owners cannot agree
only affect the interest or share in the undivided property
in the partition?
of the co-owner who sold the same.
A: If realty is involved, an action for partition (under Rule 69
Q: What is the remedy of the other heirs in this case?
of the Rules of Court) against the co-owners may be filed. In
case of personality and actual partition could not be made,
A: The proper action in cases like this is not for the
it may be sold under the discretion of the court and the
nullification of the sale or the recovery of possession of the
proceeds be divided among the owners after deducting the
thing owned in common from the third person who
necessary expenses
substituted the co-owner or co-owners who alienated their
shares, but the division of the common property or that is,
an action for partition under Rule 69 of the Revised Rules of
Court (Acabal v. Acabal, G.R. No. 148376, March 31, 2005).

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121 FACULTY OF CIVIL LAW
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Q: What is the rule in case the co-owners cannot agree as 5. In the Concept of an owner (en concepto de dueno)
to the partition of a thing which is essentially indivisible? possessor, by his actions, is believed by others as the
owner, whether he is in good or bad faith
A: 6. In the concept of a Holder possessor holds it merely
1. Firstly, the property may be allotted to one of the co- to keep or enjoy it, the ownership pertaining to
owners, who shall indemnify the other; another; ex. usufructuary
2. Otherwise, it shall be sold, and the proceeds
distributed. (Art. 498) Note: None of these holders may assert a claim of ownership
for himself over the thing but they may be considered as
POSSESSION possessors in the concept of an owner, or under a claim of
ownership, with respect to the right they respectively
exercise over the thing.
CHARACTERISTICS
7. Possession in Good faith
Q: What is possession? 8. Possession in Bad faith

A: Possession is the holding of a thing or the enjoyment of a Note: Only personal knowledge of the flaw in ones title or
right (Art. 523) mode of acquisition can make him possessor in bad faith. It is
not transmissible even to an heir.
Q: What are the requisites of possession?
Possession in good faith ceases from the moment defects in
A: PAP his title are made known to the possessor.
1. Possession in fact or holding or control of a thing
or right; 9. Constructive possession- does not mean that a man
2. Animus possidendi or the deliberate intention to has to have his feet on every square meter of ground.
possess;
3. Possession by virtue of ones own right Q: What kind of possession can serve as title?

Q: What is the distinction between Right to Possession A: Possession with title in fee simple.
and Right of Possession?
Q: Differentiate possession and occupation
A: Right to Possession is an incident or attribute of
A:
ownership over a thing. It is also known as jus possidendi,
POSSESSION OCCUPATION
and attribute of ownership. On the other hand, Right of
Apply to properties whether Applies only to property
Possession is an independent right, separate from
with or without an owner without an owner
ownership. It is also known as jus possessiones.
Possession does not confer Occupation confers
ownership ownership
Q: What are the degrees of possession? Distinguish.
There can be no
There can be possession
A: NJJS occupation without
without ownership
1. Possession with No right or title- possessor knows that ownership
his possession is wrongful,
2. With Juridical title - possession peaceably acquired and Q: Is it possible for a person who has been declared as the
will not ripen into full ownership as long as there is no owner of a certain property not to be entitled to its
repudiation of the concept under which property is possession?
held.
3. With Just title or title sufficient to transfer ownership, A: Yes. Possession and ownership are distinct legal
but not from the true owner - ripens to full ownership concepts. Ownership confers certain rights to the owner
by the lapse of time. among which are the right to enjoy the thing owned and
4. With a title in fee Simple - springs from ownership; the right to exclude other persons from possession thereof.
highest degree of possession. On the other hand, possession is defined as the holding of a
thing or the enjoyment of a right. Literally, to possess
means to actually and physically occupy a thing with or
Q: What are the classes of possession?
without a right. Thus a person may be declared an owner
but not entitled to possession (Heirs of Roman Soriano v.
A: OVAL-OH-GBC
CA, GR No. 128177, August 15, 2001).
1. In ones Own name possessor claims the thing for
himself Note: Possession is merely one of the attributes ownership. (Jus
2. Voluntary by virtue of an agreement Possidendi)
3. In the name of Another held by the possessor for
another; agent, subject to authority and ratification; if
not authorized, negotiorum gestio
4. Legal by virtue of law;
e.g. possession in behalf of incapacitated

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ACQUISITION OF POSSESSION Q: When does possession in good faith cease?

Q: What are the ways of acquiring possession? A: Possession in good faith ceases from the moment
defects in his title are made known to the possessor.
A: FAMS
1. By Material occupation/exercise of a right This interruption of good faith may take place:
2. By Subjection of the thing/right to our will 1. at the date of summons or
3. By proper Acts and legal Formalities established for 2. that of the answer if the date of summons does
acquiring such right (Art. 531) not appear at the date

Q: What are the essential elements of possession? Q: What is the effect in case possession ceases to be in
good faith?
A:
1. Corpus refers to the existence of the thing and its A: Possessor in bad faith is required to pay rent or in case
holding; and vacate the property, in both cases he is required to pay
2. Animus refers to the intent to possess the thing. damages to the lawful owner or possessor of the property.

Q: What if the possession is acquired by a stranger? Q: Jose offered to sell his lot to Rosario which the latter
accepted. They executed a document containing the sale.
A: Where possession is acquired not by an agent or Later, Rosario sought the execution of the formal deed of
representative but by a stranger without agency, sale, but Jose could not continue the sale because he sold
possession is not acquired until the act of the agent or the lot to Emma with whom he executed a formal deed of
representative is ratified (Art. 532). sale. Informed that the sale in favor of Emma was not
registered, Rosario registered her adverse claim. Later,
Q: What are the acts which do not give rise to possession? Emma registered her deed of sale and a TCT was issued to
her but with Rosarios adverse claim. Emma then took
A: Possession through: FAT-V possession of the lot. Who has a better right to the land?
1. Force or intimidation as long as there is a possessor
who objects thereto. (Art. 536) A: Rosario. To merit the protection of Art 1544 (double
2. Acts executed clandestinely and without the sale) it is essential that the buyer of the realty must act in
knowledge of the possessor which means that: good faith in registering his deed of sale. Rosarios prior
a. acts are not public; and purchase of the land was made in good faith; she was the
b. unknown to the owner or possessor only buyer at that time. Her good faith did not cease after
3. Mere Tolerance by the owner or the lawful possessor. Jose told him of the second sale to Emma. Because of that
4. Acts executed by Violence. (Art 537) information, Rosario wanted an audience with Emma but
was snubbed by the latter. In order to protect her right,
Q: What kind of possession can serve as a title for Rosario registered her adverse claim. Said recording is
acquiring dominion? deemed to be in good faith and emphasize Emmas bad
faith (Carbonell v.CA G.R. No. L-29972, January 26, 1976).
A: Only the possession acquired and enjoyed in the concept
of owner. (Art. 540) Q: Is Emma entitled to the improvements she introduced
in the lot?
EFFECTS OF POSSESSION
A: No. Emmas rights to the improvements she introduced
POSSESSOR IN GOOD FAITH are governed by Arts. 546 and 547 (necessary and useful
expense made by possessor in good faith). These provisions
Q: When is a possessor in good faith? seem to imply that the possessor in bad faith has neither
the right of retention of useful improvements nor the right
A: When he is not aware that there exists in his title or to demand refund for useful expenses (Carbonell v.CA G.R.
mode of acquisition any flaw which invalidates it. (Art. 526) No. L-29972, January 26, 1976).

Q: What are the requisites in order to be considered a Q: What are the rights of a possessor?
possessor in good faith?
A:
A: GOOD FAITH BAD FAITH
1. Ostensible title or mode of acquisition As to fruits received
2. Vice or defect in the title Reimburse fruits received or
3. Possessor is ignorant of the vice or defect and must Entitled while possession is
which lawful possessor
have an honest belief that the thing belongs to him. in good faith
would have received
As to pending fruits
Liable to the lawful No right to such pending
possessor for expenses of fruits

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123 FACULTY OF CIVIL LAW
CIVIL LAW

cultivation and shall share Q: Who is entitled to reimbursement for necessary


in net harvest to time of expenses?
possession
As to expenses: A: Every possessor, whether the possessor is in good faith
(Necessary expenses) or bad faith.
Right of reimbursement and Right of reimbursement and
retention retention Note: However, only the possessor in good faith may retain the
(Useful expenses) thing until he has been reimbursed. (Art. 546)
Right of removal No right of removal
(Ornamental Expenses) Q: What are useful expenses?
Reimbursement at owners
option, however, removal
No reimbursement A: Those which increase the value or productivity of the
can be effected provided no
property.
injury is incurred
As to liability in case of deterioration or loss
No liability, unless due to Always liable for Q: Who has the right to be refunded for useful expenses?
his fault/negligence deterioration or loss
A: Only to the possessor in good faith with the same right
RIGHT TO PENDING FRUITS of retention as in necessary expenses. (Art. 546)

Q: When are fruits considered received? Q: What is the effect of voluntary surrender of property?

A: A: It is a waiver of the possessors right of retention but his


1. Natural and industrial fruits- from the time they are right to be refunded may still be enforced, unless he also
gathered or severed waived the same.
2. Civil fruits - from the time of their accrual and not their
actual receipt. (Art. 544) Q: May a possessor remove the useful improvements he
introduced?
Q: What if there are ungathered natural or industrial fruits
at the time good faith ceases?
A: Yes, but only by a possessor in good faith and only when
A: The possessor shall share in the expenses of cultivation, no substantial damage or injury would be caused to the
net harvest, and charges in proportion to the time of principal thing. (Art. 547)
possession. (Art 545)
Note: However, this right of removal is only subordinate to the
Q: What are the options of the owner in case there are owners right to keep the improvements himself by paying the
pending fruits at the time good faith ceases? expenses incurred or the concomitant increase in the value of the
property caused by the improvements.
A:
1. To pay the possessor in good faith indemnity for his EXPENSES FOR PURE LUXURY
cultivation expenses and charges and his share in the
net harvest; or Q: What are luxurious expenses?
2. To allow him to finish the cultivation and gathering of
the growing fruits.
A: Expenses incurred for improvements introduced for pure
luxury or mere pleasure.
Q: What if the possessor refuses, for any reason, to finish
the cultivation and gathering?
Q: Are luxurious expenses refundable?
A: He forfeits the right to be indemnified in any other
manner. (Art. 545, par. 3) A: No, even if the possessor is in good faith.

RIGHT TO BE REIMBURSED Note: But he may remove the luxurious improvements if the
principal thing suffers no injury thereby, and if his successor in the
NECESSARY AND USEFUL EXPENSES possession does not prefer to refund the amount expended. (Art.
548)
Q: What are necessary expenses?
POSSESSOR IN BAD FAITH
A: Expenses incurred to preserve the property, without
which, said property will physically deteriorate or be lost. Q: When is a possessor in bad faith?

A: When he is aware that there exists in his title or mode of


acquisition any flaw which invalidates it.

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Note: Only personal knowledge of the flaw in ones title or mode of application, Dolorico named Martin, as his heir and
acquisition can make him a possessor in bad faith. successor in interest. Martin later relinquished his rights in
favor of Quirino his grandson and requested the Director
Q: When is good or bad faith material or immaterial? of Lands to cancel the homestead application which was
granted. Quirino filed his sales applications and the said
A: It is important in connection with the property was awarded to him being the only bidder. Is
1. receipt of fruits, Ortiz entitled to right of retention?
2. indemnity for expenses, and
3. acquisition of ownership by prescription. A: Yes. A possessor in good faith has the right of retention
of the property until he has been fully reimbursed for all
It becomes immaterial when the right to recover is the necessary and useful expenses made by him on the
exercised. (Art. 539) property. Its object is to guarantee the reimbursement for
the expenses, such as those for the preservation of the
Q: What are the liabilities of possessor in bad faith property, or for the enhancement of its utility or
regarding fruits? productivity. It permits the actual possessor to remain in
possession while he has not been reimbursed by the person
A: who defeated him in the possession for those necessary
(a) As to fruits already received or gathered: expenses and useful improvements made by him on the
thing possessed (Ortiz v. Kayanan, G.R. No. L-32974, July 30,
- return the fruits if still existing or pay their value if already 1979).
consumed or spent,
- pay the value of the fruits which the legitimate possessor Q: What is the rule when two or more persons claim
could have received were it not for his dispossession, but possession over the same property?
deducting the expenses for cultivation, gathering and
harvesting to prevent unjust enrichment on the part of the A: It depends.
latter. GR: Possession cannot be recognized in two different
personalities
(b) As to growing, pending or ungathered fruits:
- no right whatsoever on the pending, growing or XPN: In case of co-possession when there is no conflict.
ungathered fruits,
- not entitled to be reimbursed for expenses for cultivation. Q: What are the criteria in case there is a dispute of
possession of 2 or more persons?
(c) As additional liability:
- pay for damages A: Criteria in case of dispute: A2DE
1. Present/Actual possessor shall be preferred
Q: What are the requisites to constitute possession 2. If there are 2 possessors, the one longer in
whether in good faith or in bad faith? possession
3. If the Dates of possession are the same, the one
A: with a title
1. Possessor has a title/mode of acquisition;
2. There is a flaw or defect in said title/mode; If all of the above are Equal, the fact of possession shall be
3. The possessor is aware or unaware of the flaw or judicially determined, and in the meantime, the thing shall
defect. be placed in judicial deposit. (Art. 538)

Q: May mistake upon a doubtful questions or difficult Q: What are the acts which do not give rise to possession?
question of law be the basis of possession in good faith?
A: Possession through: FAT-V
A: Yes. Mistake upon a doubtful or difficult questions of law 1. Force or intimidation as long as there is a possessor
(provided such ignorance is not gross and therefore who objects thereto. (Art. 536)
inexcusable) may be a basis of good faith. It is true that 2. Acts executed clandestinely and without the
ignorance of the law excuses no one but error in the knowledge of the possessor which means that:
application of the law, in the legal solutions arising from a. acts are not public; and
such application, and the interpretation of doubtful b. unknown to the owner or possessor
doctrine can still make a person ignorance of the law may 3. Mere Tolerance by the owner or the lawful possessor.
be based on an error of fact. (Paras, p. 463) 4. Acts executed by Violence. (Art 537)

Note: Mistake upon a doubtful or difficult question of law refers to Q: What kind of possession can serve as a title for
the honest error in the application or interpretation of doubtful or acquiring dominion?
conflicting legal provisions/doctrines, and not to the ignorance of
the law. (Art. 526, par. 3) A: Only the possession acquired and enjoyed in the concept
of owner. (Art. 540)
Q When Dolorico died, his guardian Ortiz continued the
cultivation and possession of the property, without filing
any application to acquire title. In the homestead

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125 FACULTY OF CIVIL LAW
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LOSS OR UNLAWFUL DEPRIVATION OF A MOVABLE c. Possessor is in the concept of an owner.

Q: What is a lost thing? Q: Is the possession of movable property acquired in good


faith equivalent to a title?
A: It is one previously under the lawful possession and A: Yes.
control of a person but is now without any possessor.
GR: Doctrine of irrevindicability - The possession of movable
Note: An abandoned property is not considered as a lost thing. property acquired in good faith is equivalent to title.
(Pineda Property, 1999, p. 503)
Note: This is merely presumptive as it can be defeated by
Q: What is the duty of a finder of a lost movable? the true owner. (Art. 559)

A: Whoever finds a lost movable, which is not a treasure, XPNs:


must return it to its previous possessor. If the latter is 1. When the owner has lost; or
unknown, the finder shall immediately deposit it with the 2. Has been unlawfully deprived of a movable.
mayor of the city or municipality where the finding has In which case the possessor cannot retain the
taken place. thing as against the owner, who may recover it
without paying any indemnity
Note: The mayor in turn must publicly announce the finding of the
property for two consecutive weeks. XPN to the XPNs: Where movable is
acquired in good faith at a public sale,
Q: When is public auction of the lost movable authorized? the owner must reimburse to recover.
(Art. 559 par. 2)
A: If the movable cannot be kept without deterioration, or
without expenses which considerably diminish its value, it Q: Using a falsified manager's check, Justine, as the buyer,
shall be sold at public auction eight days after the was able to take delivery of a second hand car which she
publication. had just bought from United Car Sales. Inc. The sale was
registered with the Land Transportation Office. A week
Q: May the lost movable be awarded to the finder? later, the United Car Sales learned that the check had
been dishonored, but by that time, Justine was nowhere
A: Yes. If the owner or previous possessor did not appear to be seen. It turned out that Justine had sold the car to
after 6 months from the publication, the thing found or its Jerico, the present possessor who knew nothing about the
value or proceeds if there was a sale, shall be awarded to falsified check. In a suit filed by United Car Sales. Inc.
the finder. The finder, however, shall pay for the expenses against Jerico for recovery of the car, United Car Sales
incurred for the publication. (Art. 719) alleges it had been unlawfully deprived of its property
through fraud and should, consequently, be allowed to
Q: What is the duty of the owner who appeared? recover it without having to reimburse the defendant for
the price the latter had paid. Should the suit prosper?
A: (1998 Bar Question)
1. Give a reward to the finder equivalent to one-tenth
(1/10) of the sum or of the price of the thing found. A: Yes, the suit should prosper because the criminal act of
(Art. 720) estafa should be deemed to come within the meaning of
2. Reimburse to the finder for the latters expenses unlawful deprivation under Art. 559, NCC, as without it
incurred for the preservation of the thing. (Art. 546) United Car Sales would not have parted with the possession
and expenses spent for the location of the owner of its car.
3. Reimburse the expenses for publication if there was a
public auction sale. (Pineda Property, 1999, p. 505) Note: The possession of movable property acquired in good faith is
equivalent to a title. Nevertheless, one who has lost any movable
FINDER OF LOST MOVABLE or has been unlawfully deprived thereof, may recover it from the
person in possession of the same. (Art. 559, Civil Code)
Q: What is the right of a possessor who acquires a
movable claimed by another? DISTINGUISHED FROM VOIDABLE TITLE

A: Q: What is the rule in case the seller of a thing has


1. Bad faith - no right voidable title on the thing sold?
2. Good faith- presumed ownership. It is equivalent to
title. A: Where the seller of goods has a voidable title thereto,
but his title has not been avoided at the time of the sale,
Requisites: the buyer acquires a good title to the goods, provided he
a. possession in good faith buys them in good faith, for value, and without notice of
b. owner has voluntarily parted with the possession the seller's defect of title. (Art. 1506, NCC)
of the thing; and

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PROPERTY
IN CONCEPT OF OWNER, HOLDER, IN ONES OWN NAME, Q: What are the rights of a possessor as regards
IN NAME OF ANOTHER NECESSARY EXPENSES?

RIGHTS OF THE POSSESSOR A:


GOOD FAITH BAD FAITH
Q: What are the rights of a possessor?
1. Right to refund; Right to refund
2. Right of retention;
A: RPR
1. to be Respected in his possession
Note: During his possession, he is not
2. to be Protected in said possession by legal means
obliged to pay rent nor damages in case
3. to secure in an action for forcible entry the proper writ
he refuses to vacate the premises.
to Restore him in his possession (Art. 539, NCC)

Q: During his lifetime, Velasco acquired Lot A from Q: Why is there no right of retention in case of bad faith?
spouses Sacluti and Obial evidenced by a deed of sale. In
1987, spouses Padilla entered the said property as A: As punishment for his bad faith.
trustees by virtue of a deed of sale executed by the Rural
Bank. The Padillas averred that the Solomon spouses Q: Is there right of removal?
owned the property which was identified as Lot
B. However, it was proved during trial that the land A: None, whether in good faith or bad faith. Necessary
occupied by spouses Padilla was Lot A in the name of expenses affect the existence or substance of the property
Velasco, whereas the land sold by the bank to the spouses itself.
Padilla was Lot B. The heirs of Velasco demanded that
spouses Padilla vacate the property, but they refused. Note: Improvements be so incorporated to the principal
Thus, the heirs filed a complaint for accion publiciana. thing that their separation must necessarily reduce the
Who has the better right of possession? value of the thing not curable by ordinary repairs.

A: The heirs of Velasco has the better right. Accion Q: What are the rights of a possessor with regard to useful
publiciana, or for recovery of the right to possess is an expenses?
action filed in the RTC to determine the better right to
possession of realty independently of the title. The A: If in good faith:
objective of the plaintiffs in accion publiciana is to recover 1. Right to refund
possession only, not ownership. Lot A was the subject of a 2. Right of retention until paid
cadastral case. The OCT was issued to Sacluti and Obial who 3. Right of removal, provided:
sold the same to Artemio. From the date of sale, until a. without damage to the principal thing
Artemios death, he was in continuous possession of the b. subject to the superior right of the prevailing
land. party to keep the improvements by paying
the expenses or the increase in value of the
Q: Has the action already prescribed? thing

A: No. The remedy of accion publiciana prescribes after the Q: What are the rights of a possessor with regard to
lapse of ten years. In the present case, the action was filed expenses for pure luxury?
with the RTC in 1991. Spouses Padilla dispossessed the
heirs of Velasco of the property in 1987. At the time of the A:
filing of the complaint, only 4 years had elapsed from the GOOD FAITH BAD FAITH
time of dispossession. The real right of possession is not
Right of removal, Provided: same rights, but liable only
lost till after the lapse of 10 years (Spouses Padilla v.
1. without injury to for the value of the
Velasco, G.R. No. 169956, January 19, 2009).
principal thing; ornaments at the time he
2. successor in possession enters into possession, in
Q: What are the presumptions in favor of a possessor?
does not prefer to refund case he prefers to retain
A: GCENCE amount expended.
1. Good faith
2. Continuity of initial good faith
3. Enjoyment in the same character in which possession
was acquired until the contrary is proved
4. Non-interruption in favor of the present possessor
5. Continuous possession by the one who recovers
possession of which he was wrongfully deprived
6. Extension of possession of real property to all
movables contained therein.

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127 FACULTY OF CIVIL LAW
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Q: What are other rights of possessor?

A:
With respect to GOOD FAITH BAD FAITH
On capital Charged to owner Charged to owner
Taxes and
On fruits Charged to possessor Charged to owner
Charges
Charges Pro rata Charge to owner
Possessor must return value of fruits already
received as well as value of fruits which the
Gathered or severed fruits Possessor is entitled to the fruits owner or legitimate possessor should be
entitled
(does not apply to possessor in BF)
Cultivation expenses of gathered Possessor is not entitled to be
Possessor is entitled to be reimbursed
fruits reimbursed
Share pro-rata between possessor and
Pending or ungathered fruits owner of expenses, net harvest, and Owner is entitled to the fruits
charges
indemnity to possessor in pro rata:
(owners option)
Production expenses of pending
a. money No indemnity
fruits
b. allowing full cultivation and
gathering of all fruits
Improvements no longer existing No reimbursement No reimbursement
Liability for accidental loss or Liable if acting with fraudulent intent
Liable in every case
deterioration or negligence, after summons
Improvements due to time or nature Inure to the owner or lawful possessor Inure to the owner or lawful possessor

Note: A possessor is protected regardless of the manner of acquisition.

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Q: May the owner of a property eject the possessor USUFRUCT
forcibly without court intervention?
CHARACTERISTICS
A: No. The owner must resort to the courts and cannot
forcibly eject a possessor (Bago v. Garcia, No. 2587, January Q: Discuss the concept of usufruct.
8, 1906).
A: It is the right of a person called usufructuary, to enjoy
LOSS/TERMINATION the property of another called the owner, with the
obligation of returning it at the designated time and
preserving its form and substance, unless the title
Q: How is possession lost?
constituting it or the law provides otherwise. (Pineda, 2009,
A: PRADA p. 387)
1. Possession of another subject to the provisions of Art.
537, if a person is not in possession for more than one Q: What are the characteristics of usufruct?
year but less than 10 years he losses possession de
fact. This means that he can no longer bring an action A: ENA
of forcible entry or unlawful detainer, since the 1. Essential those without which it cannot be
prescriptive period is one year for such actions. But he termed as usufruct:
may still institute an accion publiciana to recover a. real right (whether registered in the registry
possession de jure, possession as a legal right or the of property or not);
real right of possession. (Paras, p. 548) b. constituted on property.
i. real
Note: Acts merely tolerated, and those executed ii. personal;
clandestinely and without the knowledge of the possessor of iii. consumable;
a thing, or by violence, do not affect possession. (Art. 537, iv. non-consumable;
Civil Code) v. tangible;
vi. intangible.
2. Abandonment c. temporary duration;
d. purpose: to enjoy the benefits and derive all
Note: Abandonment involves a voluntary renunciation advantages from the object as a
of all rights over a thing consequence of normal use or exploitation.
2. Natural that which ordinarily is present, but a
Requisites:
contrary stipulation can eliminate it because it is
a. the abandoner must have been a possessor in the
not essential.
concept of owner (either an owner or mere
a. The obligation of conserving or preserving
possessor may respectively abandon either
the form and substance (value) of the thing.
ownership or possession)
b. Transmissible
b. the abandoner must have the capacity to
3. Accidental those which may be present or
renounce or to alienate ( for abandonment is the
absent depending upon the stipulation of parties
repudiation of property right)
a. Whether it be pure or a conditional usufruct
c. there must be physical relinquishment of the
b. The number of years it will exist
thing or object
c. Whether it is in favor of one person or
d. there must be no spes recuperandi (expectation
several, etc.
to recover) and no more animus revertendi (
intention to return or get back) (Paras, pp. 344-
Q: Is the usufructuary bound to preserve the form and
345)
substance of the thing in usufruct?
3. Recovery of the thing by the legitimate owner
A: GR: Yes.
4. Destructionor total loss of the thing a thing is lost
XPN: In case of an abnormal usufruct, whereby the law
when it perishes or goes out of commerce, or
or the will of the parties may allow the modification of
disappears in such a way that its existence is unknown,
the substance of the thing.
or it cannot be recovered. (Art. 1189, Civil Code)
Q: Chayong owned a parcel of land which she mortgaged
5. Assignment - complete transmission of the thing/right
to Michael. Upon the OCT was an annotation of
to another by any lawful manner.
usufructuary rights in favor of Cheddy. Is Michael obliged
to investigate Chayongs title?

A: No. The annotation is not sufficient cause to require


Michael to investigate Chayongs title because the latters
ownership over the property remains unimpaired despite
such encumbrance. Only the jus utendi and jus fruendi over
the property are transferred to the usufructuary. The

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129 FACULTY OF CIVIL LAW
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owner of the property maintains the jus disponendi or the act mortis causa (e.g. in a last will and
power to alienate, encumber, transform, and even destroy testament)
the same. (Hemedes v. CA, G.R. Nos. 107132 and 108472, c. Mixed (or prescriptive) created by both law
October 08, 1999) and act of the person (e.g. acquired by
prescription: I possessed in good faith a
Q: Differentiate usufruct from lease. parcel of land which really belonged to
another. Still in good faith, I gave in my will
A: CRONEC to X, the naked ownership of land and to Y,
USUFRUCT LEASE the usufruct. In due time, Y may acquire the
Nature of the right ownership of the usufruct by acquisitive
prescription.) (Paras, p. 572)
Real right only if, as in the case of a 2. As to Number of beneficiary
Always a real lease over real property, the lease is a. Simple if only one usufructuary enjoys the
right registered, or is for more than one usufruct
year, otherwise it is a personal right b. Multiple if several usufructuaries enjoy the
Creator of Right usufruct
Owner or his May not be the owner, as in the case i. simultaneous at the same time.
agent of a sub-lessor or a usufructuary ii. successive one after the other.
3. As to Extent of object:
Origin
a. Total constituted on the whole thing
By contract, by way of exception by b. Partial constituted only on a part
By law,
law (as in the case of an implied new 4. As to Subject matter:
contract,
lease, or when a builder has built in a. Over things
will of
good faith on the land of another a i. Normal (or perfect or regular) involves
testator or
building, when the land is non consumable things where the form
by
considerably worth more in value and substance are preserved
prescription
than the building. ii. Abnormal (or imperfect or irregular)
Extent of Enjoyment involves consumable things
b. Over rights involves intangible property;
All fruits,
rights must not be personal or
uses and Only those particular or specific use.
intransmissible in character so present or
benefits
future support cannot be an object of
Cause usufruct.
A passive 5. As to Effectivity or extinguishment:
owner who a. Pure no term or condition
allows the b. With a term there is a period which may be
An active owner who makes the either suspensive or resolutory
usufructuary
lessee enjoy i. ex die from a certain day
to enjoy the
object of ii. in diem up to a certain day
usufruct iii. ex die in diem from a certain day up to
Repairs and Taxes a certain day.
c. Conditional subject to a condition which
Usufructuary may be either suspensive or resolutory.
pays for
ordinary
RIGHTS AND OBLIGATIONS OF USUFRUCTUARY
repairs and
Lessee is not obliged to pay for
pays for
repairs/taxes Q: What are the rights of the usufructuary as to the thing
annual
and its fruits?
charges and
taxes on the
A: RISERI-CR
fruits
1. To Receive the fruits of the property in usufruct and
half of the hidden treasure he accidentally finds on the
CLASSIFICATION property (Arts. 566, 438, NCC)
2. To enjoy any Increase which the thing in usufruct may
Q: What are the kinds of usufruct? acquire through accession (Art. 571, NCC)
3. To personally Enjoy the thing or lease it to another
A: ONES-E (Arts. 572-577, NCC)generally for the same or shorter
1. As to Origin: period as the usufruct
a. Legal created by law such as usufruct of 4. To make such Improvements or expenses on the
the parents over the property of their property he may deem proper and to remove the
unemancipated children improvements provided no damage is caused to the
b. Voluntary created by will of the parties property (Art. 579, NCC)
either by act inter vivos (e.g. donation) or by

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PROPERTY
5. To Set-off the improvements he may have made on 3. Property which has been Appraised when
the property against any damage to the same (Art. delivered.
580, NCC)
6. To Retain the thing until he is reimbursed for advances Note: if it has not yet been appraised or if it is not a consumable:
for extraordinary expenses and taxes on the capital return the same quality (mutuum)
(Art. 612, NCC)
7. To Collect reimbursements from the owner for Q: What are the rights of the usufructuary as to advances
indispensable extra ordinary repairs, taxes on the and damages?
capital he advanced, and damages caused to him
8. To Remove improvements made by him if the same A: To be: ITD
will not injure the property 1. reimbursed for Indispensable extraordinary repairs
made by him
Q: 120-hectares of land from the NHA property were
reserved for the site of the National Government Center. 7 Note: The reimbursement shall be in the amount equal to the
increase in value of the property (Art. 594, NCC)
hectares from which were withdrawn from the operation.
These revoked lands were reserved for the Manila
2. reimbursed for Taxes on the capital advanced by him
Seedling Bank Foundation, Inc. (MSBF). However, MSBF
(Art. 597, par. 2, NCC)
occupied approximately 16 hectares and leased a portion
3. indemnified for Damages caused by usufructuary to
thereof to Bulacan Garden Corporation (BGC). BGC
the naked owner (Art. 581, NCC)
occupies 4,590 sqm. Implementing such revocation, NHA
ordered BGC to vacate its occupied area. BGC then filed a
Q: What are the rights of a usufructuary on pending
complaint for injunction. Has BGC any right over the
natural and industrial fruits?
leased premises?
A:
A: A usufructuary may lease the object held in usufruct. The
Fruits
owner of the property must respect the lease entered into Rights of the usufructuary
Growing:
by the usufructuary so long as the usufruct exists. MSBF
was given a usufruct over only a 7-hectare area. NHA At the
not bound to refund to the owner
cannot evict BGC if the 4,590 square meter portion MSBF beginning
the expenses of cultivation and
leased to BGC is within the 7-hectare area held in usufruct of the
production
by MSBF. However, the NHA has the right to evict BGC if usufruct
BGC occupied a portion outside of the 7-hectare area belong to the owner but he is bound
covered by MSBF's usufructuary rights (NHA v. CA, G.R. No. At the
to reimburse the usufructuary of
148830, Apr. 13, 2005). termination
the ordinary cultivation expenses
of the
(Art. 545, NCC) out of the fruits
Q: What are the rights of the usufructuary as to the usufruct
received (Art. 443, NCC)
usufruct itself?
Note: Civil fruits accrue daily, stock dividends and cash dividends
A: ARC are considered civil fruits.

1. To Alienate or mortgage the right of usufruct (Art. 572, Q: What if the expenses exceed the proceeds of the
NCC) growing fruits?

XPN: parental usufruct (Arts. 225, 226 FC) A: The owner has no obligation to reimburse the difference.
(Art. 567, NCC)
2. In a usufruct to Recover property/real right, to bring the
action and to oblige the owner thereof to give him the Q: May the usufructuary lease the thing in usufruct even
proper authority and the necessary proof to bring the without the owners consent
action (Art. 578, NCC)
A: Yes, but not being the owner, he cannot alienate, pledge
3. In a usufruct of part of a Common property, to exercise or mortgage the thing itself.
all the rights pertaining to the co-owner with respect to the
administration and collection of fruits or interests. Q: May the usufructuary alienate, pledge, or mortgage the
right of usufruct?
Q: Can usufructuary exercise acts of ownership?
A: Yes, he, being the owner of the right itself. (Art. 572,
A: GR: A usufructuary cannot exercise acts of ownership NCC)
such as alienation or conveyance.

XPNs: When what is to be alienated or conveyed is a:


CIA
1. Consumable
2. Property Intended for sale;

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131 FACULTY OF CIVIL LAW
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Q: Up to when may the transferee enjoy the rights b. Replace the young of animals that die or are lost
transferred to him by the usufructuary? or become prey when the usufruct is constituted
on a flock or herd of livestock;
A: Until the expiration of the usufruct. Transfer of c. Make ordinary repairs
usufructuary rights, gratuitous or onerous, is co-terminous d. Notify the owner of urgent extra-ordinary repairs
with the term of usufruct. e. Permit works & improvements by the naked
owner not prejudicial to the usufruct
Q: What happens if the thing subject of usufruct is f. Pay annual taxes and charges on the fruits
mortgaged by the owner? g. Pay interest on taxes on capital paid by the naked
owner
A: Usufructuary has no obligation to pay mortgage. But if h. Pay debts when usufruct is constituted on the
the same is attached, the owner becomes liable for whole patrimony
whatever is lost by the usufructuary. i. Secure the naked owners/court's approval to
collect credits in certain cases
Q: To what may the usufructuary be liable for? j. Notify the owner of any prejudicial act committed
rd
by 3 persons
A: For the damages suffered by the usufructuary on
k. Pay for court expenses and costs
account of fraud committed by him or through his
3. At the termination
negligence.
a. Return the thing in usufruct to the naked owner
unless there is a right of retention
Q: When is the usufructuary not liable?
b. Pay legal interest for the time that the usufruct
A: lasts
1. For deterioration due to wear and tear c. Indemnify the naked owner for any losses due to
2. For deterioration due to a fortuitous event his negligence or of his transferees

Note: If the animals all perish w/o fault but due to contagious
Q: What are the rights and obligations of the usufructuary disease/uncommon event deliver remains saved. If the young of
with respect to consumable things? animals perished in part due to accident, usufruct continues on
remaining portion. If the usufruct is constituted on sterile animals,
A: The usufructuary shall have the right to make use of the they are considered as if fungible and have the obligation to
replace same kind and quality.
consumable thing. At the termination of the usufruct, the
usufructuary has the obligation to:
Q: What are the effects of failure to post a bond or
1. If the thing has been appraised, pay its appraised
security?
value;
2. If the thing has not been appraised:
A:
a. Return the same quantity and quality; or
1. The owner shall have the following options:
b. Pay its current price at such termination.
a. receivership of realty;
b. sale of movables;
Q: What if the damages exceed the value of the
c. deposit of securities; or
improvements?
d. investment of money; or
e. retention of the property as administrator.
A: The usufructuary is liable for the difference as indemnity.
2. The net product shall be delivered to the usufructuary;
3. The usufructuary cannot collect credit due or make
Q: What if the improvements exceed the amount of
investments of the capital without the consent of the
damages?
owner or of the court until the bond is given.
A: He may remove the portion of the improvements
Q: What are the effects of failure to give security?
representing the excess in value if it can be done without
injury; otherwise, the excess in value accrues to the owner.
A:
Q: Why do improvements accrue to the owner? 1. On the rights of the naked owner
a. May deliver the property to the usufructuary
A: Because there is no indemnity for improvements. b. May choose retention of the property as
administrator
Q: What are the obligations of the usufructuary? c. May demand receivership or administration of
the real property, sale of movable, conversion or
A: deposit of credit instruments or investment of
1. Before the usufruct cash or profits
a. Make an inventory 2. On the rights of the usufructuary
b. Give security a. Cannot posses the property until he gives security
2. During the usufruct b. Cannot administer property
a. Take care of property c. Cannot collect credits that have matured nor
invest them except the court or naked owner
consents

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d. May alienate his right to usufruct. because they are not needed for the preservation of
the thing.
Q: When may the usufructuary be exempt from the
obligation to give security? XPN:He shall have the right to demand the
payment of the increase in value at the
termination of the usufruct provided that:
A: When: SIR
1. He notified the owner of the urgency of the
1. No one will be Injured by the lack of the bond;
repairs
2. The donor (or parent) Reserved the usufruct of the
2. The owner failed to make repairs
property donated;
notwithstanding such notification
3. The usufruct is Subject to caucion juratoria where:
3. The repair is necessary for the preservation
a. The usufructuary: takes an oath to take care of
of the property.
the things and restore them to its previous state
before the usufruct is constituted.
Q: Does the usufructuary have a right of retention even
b. The property subject to such cannot be alienated
after the termination of the usufruct?
or encumbered or leased.
A: Yes, until he is reimbursed for the increase in value of
Q: What is caucion juratoria?
the property caused by extraordinary repairs for
preservation.
A: The usufructuary, being unable to file the required bond
or security, files a verified petition in the proper court
Q: How is the increase in value determined?
asking for the delivery of the house and furniture necessary
for himself and his family without any bond or security. A: It is the difference between the value of the property
(Art. 587) before the repairs were made and the value after the
repairs have been made.
Q: When does the usufructuary start to have a right to the
proceeds and benefits after the security has been given?
RIGHTS OF THE OWNER
A: He shall have a right to all the proceeds and benefits
from the day on which he should have commenced to Q: What are the rights of a naked owner and the
receive them. (Art. 588, NCC) limitations imposed upon him?

Q: What are ordinary repairs? A:

A: Such as are required by the wear and tear due to the Rights Limitations
natural use of the thing and are indispensable for its Can alienate the thing in
Alienation
preservation. (Art. 592, NCC) usufruct
Cannot alter the form and
Note: GR: Usufructuary has no liability when the thing deteriorates Alteration
substance
due to wear and tear. He is obliged to return the thing in such Cannot do anything
state.
Enjoyment prejudicial to the
XPN: when there is fraud or negligence
usufructuary
Can construct any works
Q: What are extraordinary repairs? and make any
improvement provided it
Construction and
A: does not diminish the value
Improvement
1. Those required by the wear and tear due to the or the usufruct or prejudice
natural use of the thing but not indispensable for its the rights of the
preservation. usufructuary.
2. Those required by the deterioration of or damage to
the thing caused by exceptional circumstances and are Q: What is the effect of the death of the naked owner on
indispensable for its preservation. the usufruct?

Q: Who pays for extraordinary repairs? A: It does not terminate the usufruct. His rights are
transmitted to his heirs.
A: Depends on the kind of extraordinary repairs: (Art. 594,
NCC) Q: Is renunciation an assignment of right?
1. If made by the owner - he can make them but to his
expense and he shall have the right to demand from A: No, it is really abandonment by the usufructuary of his
the usufructuary the payment of legal interest on the right and does not require the consent of the naked owner
amount expended during the duration of the usufruct. but it is subject to the rights of creditors.

2. If made by the usufructuary GR: The usufructuary


may make them but he is not entitled to indemnity

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133 FACULTY OF CIVIL LAW
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Q: What is the obligation of the owner if the property held son. Thus, the general rule and not the exception should
in usufruct is expropriated for public use? apply in this case.

A: The owner is obliged to: Q: What are considered special usufructs?


1. either replace it; or
2. pay legal interest to usufructuary of the net A: These are usufruct on:
proceeds of the same. 1. Pension or income (Art. 570, NCC)
2. Property owned in common (Art. 582, NCC)
Q: What happens when a part of the thing subject of the 3. Cattle (livestock) (Art. 591, NCC)
usufruct is lost? 4. On Vineyards and woodland
(Arts 575-576, NCC)
A: The remaining part shall continue to be held in usufruct. 5. Right of action (Art. 578, NCC)
6. Mortgaged property (Art. 600, NCC)
Q: Can usufruct be constituted in favor of a town, 7. over the Entire patrimony (Art. 598, NCC)
corporation or association? 8. things which Gradually deteriorate
(Art. 573, NCC)
A: Yes, but it cannot be for more than 50 years. 9. Consumable property (Art. 574, NCC)

Q: A usufruct is constituted on an immovable where a EXTINCTION/TERMINATION


building is erected, and the building is destroyed, what
will happen? Q: How is usufruct extinguished?
A: Usufructuary will have the right to make use of the land A: PLDT-ERM
and materials. 1. Acquisitive Prescription
Q: An insurance covering the object of usufructuary was Note: The use by a third person and not the non-use by the
obtained, who gets the proceeds? usufructuary

A: If both of them paid premium: both will share in the 2. Total Loss of the thing
insurance proceeds. If it was only the owner who paid, then
proceeds will go to him alone. Note: If the loss is only partial, the usufruct continues with
the remaining part.
Q: What is the effect of improper use of the thing by the
usufructuary? 3. Death of the usufructuary; unless a contrary intention
appears, since a usufruct is constituted essentially as a
A: The owner may demand the delivery of and lifetime benefit for the usufructuary or in
administration of the thing with responsibility to deliver net consideration of his person
fruits to usufructuary. 4. Termination of right of the person constituting the
usufruct
Q: On 1 January 1980, Minerva, the owner of a building 5. Expiration of the period or fulfilment of the resolutory
granted Petronila a usufruct over the property until 01 condition
June 1998 when Manuel, a son of Petronila, would have 6. Renunciation by the usufructuary.
reached his 3oth birthday. Manuel, however, died on 1
June 1990 when he was only 26 years old. Note: It partakes the nature of a condonation or donation, it
must comply with the forms of donation.
Minerva notified Petronila that the usufruct had been
extinguished by the death of Manuel and demanded that 7. Merger of the usufruct and ownership in the same
the latter vacate the premises and deliver the same to the person who becomes the absolute owner thereof.
former. Petronila refused to vacate the place on the (Art. 1275, NCC)
ground that the usufruct in her favor would expire only on
th
1 June 1998 when Manuel would have reached his 30 EASEMENTS
th
birthday and that the death of Manuel before his 30
birthday did not extinguish the usufruct. Whose CHARACTERISTICS
contention should be accepted? (1997 Bar Question)
Q: What is an easement or servitude?
A: Petronilas contention is correct. Under Article 606 of the
Civil Code, a usufruct granted for the time that may elapse A: It is an encumbrance imposed upon an immovable for
before a third person reaches a certain age shall subsist for the benefit of:
the number of years specified even if the third person 1. another immovable belonging to a different owner; or
should die unless there is an express stipulation in the 2. for the benefit of a community or one or more persons
contract that states otherwise. to whom the encumbered estate does not belong by
virtue of which the owner is obliged to abstain from
In the case at bar, there is no express stipulation that the doing or to permit a certain thing to be done on his
consideration for the usufruct is the existence of Petronilas estate. (Arts. 613- 614, NCC)

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5. Has 2 distinct tenements: dominant and servient
Q: Distinguish Dominant Estate from Servient Estate. estate;
6. Cause must be perpetual.
A:
DOMINANT ESTATE SERVIENT ESTATE Q: What is meant by easement established only on an
Immovable in favor of That property or estate immovable?
which, the easement is which is subject to the
established dominant estate A: The term immovable must be understood in its
Upon which an obligation common and not in its legal sense.
Which the right belongs
rests.
Q: Distinguish easement from usufruct.
Note: The immovable in favor of which, the easement is
established is called the dominant estate; that which is subject A:
thereto, the servient estate. EASEMENT USUFRUCT
Constituted on
Q: Can there be an easement over another easement?
Explain. (1995 Bar Question) On real property Real or personal
Use granted
A: There can be no easement over another easement for Limited to a particular or
the reason that an easement may be constituted only on a specific use of the servient Includes all uses and fruits
corporeal immovable property. An easement, although it is estate
real right over an immovable, is not a corporeal right.
As to right of possession
Q: Differentiate easement from servitude. Non-possessing right over an Involves a right of possession
immovable in an immovable or movable
A:
As to effect of death
EASEMENT SERVITUDE
Not extinguished by death of Extinguished by death of
An English law term Used in civil law countries dominant owner usufructuary
Real Real or personal Nature of right
Burden imposed upon Real right whether or not Real right whether or not
The right enjoyed
another registered registered
As to transmissibility
Q: What are characteristics of easement?
Transmissible Transmissible
A: NICE LIAR How it may be constituted
1. Is a right limited by the Needs of the dominant owner
or estate, without possession; Cannot be constituted on an
May be constituted in favor,
2. IsInseparable from the estate to which it is attached - easement but it may be
or, burdening, a piece of land
cannot be alienated independently of the estate; (Art. constituted on the land
held in usufruct
617, NCC) burdened by an easement
3. Cannot consist in the doing of an act unless the act is
accessory in relation to a real easement; Q: Can there be:
4. Involves 2 neighboring Estates: the dominant estate to
which the right belongs and the servient estate upon 1. An easement over a usufruct?
which an obligation rests;
5. Is a Limitation on the servient owners rights of A: There can be no easement over a usufruct. Since an
ownership; easement may be constituted only on a corporeal
6. Is Indivisible- not affected by the division of the estate immovable property, no easement may be constituted on a
between two or more persons; (Art. 618, NCC) usufruct which is not a corporeal right.
7. It is enjoyed over Another immovable never on ones
own property; 2. A usufruct over an easement?
8. Is a Real right but will affect third persons only when
registered. A: There can be no usufruct over an easement. While a
usufruct may be created over a right, such right must have
Q: What are essential qualities of easements? an existence of its own independent of the property. A
servitude cannot be the object of a usufruct because it has
A:
no existence independent of the property to which it
1. Incorporeal;
attaches.
2. Imposed upon corporeal property;
3. Confer no right to a participation in the profits arising
from it;
4. Imposed for the benefit of corporeal property;

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135 FACULTY OF CIVIL LAW
CIVIL LAW
Q: Distinguish easement from lease. easement should be constituted, since no one objected to
the continued existence of the windows.
A:
Easement Lease Note: It is understood that there is an exterior sign contrary to the
easement of party wall whenever:
Nature 1. there is a window or opening in the dividing wall of
Real right whether Real right only when buildings
2. entire wall is built within the boundaries of one of the
registered or not registered OR when the
estates
(whether real or personal) lease exceeds 1 yr. 3. the dividing wall bears the burden of the binding beams,
Where constituted floors and roof frame of one of the buildings, but not
those of the others
Only on real properties Real or personal 4. the lands enclosed by fences or live hedges adjoin
Limitations on the use of right others which are not enclosed
In all these cases, ownership is deemed to belong exclusively to the
There is limited right to the
Limited right to both owner of the property which has in its favor the presumption
use of real property of based on any of these signs.
possession and use of
another but w/o right of
anothers property
possession Q: What is the effect of acknowledgement of an easement
Scope and Uses in one owns property?
Covers all fruits and uses as a Generally covers only a
rule particular or specific use A: An acknowledgement of the easement is an admission
that the property belongs to another (BOMEDCO v. Heirs of
Who may create Valdez, G.R. No. 124669).
Can be created only by the The lessor may or may not
owner, or by a duly be the owner as when there Q: How is easement acquired?
authorized agent, acting in is a sub-lease or when the
behalf of the owner lessor is only a usufructuary A:
1. Prescription of 10 years
How it is created
2. By deed of recognition
GR: only by contract; 3. By final judgment
4. By apparent sign established by the owner of two
May be created by: XPN: by law as in the case of adjoining estates
law, an implied new lease, or 5. By title
contract, when a builder has built in
last will or GF on the land of another a PARTIES TO AN EASEMENT
prescription building, when the land is
considerably worth more in Q: Who are the parties to an easement?
value than the building
Passive or Active Owner A:
1. Dominant estate refers to the immovable for which
The owner is more or less The owner or lessor is more
the easement was established.
passive, and he allows the or less active
2. Servient estate the estate which provides the service
usufructuary to enjoy the
or benefit.
thing given in usufruct
Who has the duty to make repairs Q: What are the rights of the dominant owner?
Usufructuary has the duty to Lessee generally has no duty
make the ordinary repairs to pay for repairs A: MARE
1. Exercise all rights necessary for the use of the
Who bears payment of taxes and charges on the property
easement (Art. 625, NCC)
Usufructuary pays for the Lessee generally pays no 2. Make on the servient estate all works necessary for
annual charges and taxes taxes the use and preservation of the servitude (Art. 627
and on the fruits par. 1, NCC)
Limitation on the use of the property 3. Renounce the easement if he desires to exempt from
contributing necessary expenses (Art. 628, NCC)
The lessee cannot constitute
Usufructuary may lease the 4. Ask for mandatory injunction to prevent impairment
a usufruct on the property
property to another of his right (Resolme v. Lazo, 27 Phil 416).
leased
Q: What are the obligations of the dominant owner?
Q: What is the doctrine of apparent sign?
A: CAN C
A: Easements are inseparable from the estate to which they 1. He cannot Alter the easement or render it more
actively or passively pertain. The existence of apparent sign burdensome. (Art. 627 par. 1, NCC)
under Art. 624 is equivalent to a title. It is as if there is an
implied contract between the two new owners that the

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2013 GOLDEN NOTES 136
PROPERTY
2. He shall Notify the servient owner of works necessary a. Apparent Made known and continually kept in
for the use and preservation of the servitude. (Art. 627 view by external signs that reveal the use and
par. 2, NCC) enjoyment of the same
3. He must Choose the most convenient time and b. Non-apparent They show no external indication
manner of making the necessary works as to cause the of their existence.
least inconvenience to the servient owner. 5. As to the right given:
4. If there are several dominant estates he must a. Right to partially use the servient estate
Contribute to the necessary expenses in proportion to b. Right to get specific materials or objects from the
the benefits derived from the works (Art. 628 par. 1, servient estate
NCC) c. Right to participate in ownership
d. Right to impede or prevent the neighboring
Q: What are the rights of the servient owner? estate from performing a specific act of
ownership.
A: RMC 6. As to source:
1. Retain the ownership of the portion of the estate on a. Legal those created by law for public use or
which easement is imposed private interests.
2. Make use of the easement unless there is an b. Voluntary - constituted by will or agreement of
agreement to the contrary. (Art. 628 par. 2, NCC), the parties or by testator.
3. Change the place or manner of the use of the c. Mixed created partly by agreement and partly
easement, provided it be equally convenient (Art. 629, by law.
par. 2, NCC) 7. As to the duty of the servient owner:
a. Positive Imposes upon the owner of the servient
Q: What are the obligations or limitations imposed on the estate the obligation of allowing something to be
servient owner? done or doing it himself.

A: IC e.g. right of way - imposes the duty to allow the


1. He cannot Impair the use of the easement. use of said way.
2. He must Contribute to the necessary expenses in case
he uses the easement, unless otherwise agreed upon b. Negative Prohibits the owner of the servient
(Art. 628 par. 2, NCC) estate from doing something which he could
lawfully do if the easement did not exist.
CLASSIFICATIONS OF EASEMENT
e.g. Easement of light and view where the owner
Q: What are the classifications of easements? is prohibited from obstructing the passage of
light.
A:
1. As to recipient of the benefit: Q: How is an easement extinguished?
a. Real (or Predial) The easement is in favor of
another immovable. A:
b. Personal The easement is in favor of a 1. By redemption agreed upon in case of voluntary
community, or of one or more persons to whom redemption.