ANSWERS TO MIDTERM POINTERS (2) Consent freely given in the presence of the

solemnizing officer. (53a)

1. Define marriage; give 2 aspects and

distinguish it from ordinary contracts ARTICLE 3.

ARTICLE 1 The formal requisites of marriage are:

Marriage is a special contract of permanent union (1) Authority of the solemnizing officer;
between a man and a woman entered into in
accordance with law for the establishment of (2) A valid marriage license except in the cases
conjugal and family life. It is the foundation of the provided for in Chapter 2 of this Title; and
family and an inviolable social institution whose (3) A marriage ceremony which takes place with the
nature, consequences, and incidents are governed by appearance of the contracting parties before the
law and not subject to stipulation, except that solemnizing officer and their personal declaration
marriage settlements may fix the property relations that they take each other as husband and wife in the
during the marriage within the limits provided by presence of not less than two witnesses of legal age.
this Code. (52a) (53a, 55a)
The two aspects of Marriage are: 3. What is required in the formal requisite of a
1) It is a special contract marriage ceremony?
2) It is a status or relation or an institution ARTICLE 6
Marriage distinguished from Ordinary Contract No prescribed form or religious rite for the
MARRIAGE ORDINARY CONTRACT solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to
1. Both a contract and a 1. Merely a Contract
appear personally before the solemnizing officer and
social institution
declare in the presence of not less than two
2. Generally, stipulations 2. Stipulations are witnesses of legal age that they take each other as
are fixed by lawnot generally fixed by the husband and wife. This declaration shall be
only by the parties parties
contained in the marriage certificate which shall be
(exception: marriage
settlement provisions) signed by the contracting parties and their witnesses
and attested by the solemnizing officer.

3. Can be dissolved only 3. Can be ended by In case of a marriage in articulo mortis, when the
by death or annulment, mutual agreement and party at the point of death is unable to sign the
not by mutual agreement by other legal causes marriage certificate, it shall be sufficient for one of
the witnesses to the marriage to write the name of
said party, which fact shall be attested by the
2. What are the essential and formal requisites of solemnizing officer.
marriage?
4. Give the effect of an ABSNECE of any essential
ARTICLE 2. or formal requisites?

No marriage shall be valid, unless these essential ARTICLE 4.

requisites are present:
The absence of any of the essential or formal
(1) Legal capacity of the contracting parties who requisites shall render the marriage void ab initio,
must be a male and a female; and except as stated in Article 35 (2).

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5. What is the effect of a DEFECT of any essential
requisites and an irregularity in the formal
requisites?
ARTICLE 4.
A defect in any of the essential requisites shall not
affect the validity of the marriage but the party or
parties responsible for the irregularity shall be
civilly, criminally and administratively liable. (n)
6. What is a marriage by proxy and give the rules
if performed here in the Philippines or
performed abroad?
A marriage by proxy is one where the other party is
merely represented by a delegate or a friend.
If Marriage by proxy is performed here in the
Philippines, the marriage is VOID because physical
presence of both parties is required under Art. 6 of
the Family Code
If such marriage is performed abroad, whether
between Filipinos or foreigners or mixed, it would
seem that the controlling article is Art. 26 of the
Family Code. Hence, ordinarily, if the marriage by
proxy is valid as such where celebrated, it should be
considered as valid in the Philippines, without
prejudice to any restrictions that may be imposed by
our Immigration Laws for purposes of immigration.
7. By whom may marriage be solemnized and are
Mayors and Governors authorized to perform
Marriage?
ARTICLE 7
Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within
the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect and registered with the civil
registrar general, acting within the limits of the
written authority granted by his church or religious
sect and provided that at least one of the contracting
parties belongs to the solemnizing officer's church or
religious sect;
(3) Any ship captain or airplane chief only in the
case mentioned in Article 31;
(4) Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the
cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the
case provided in Article 10. (56a)
As to whether Mayors and Governors
authorization to perform marriage:
Under the family code, said officers are not
authorized to perform marriages. However, under
the Local Government Code, mayors are now
authorized to perform marriages within their
jurisdiction, but no such authorization for Governors
is stipulated.
8. Who has the burden of proof if one seeks to
impugn the validity of the marriage on the
ground that the person who solemnized it was
not really authorized?
As discussed under Art. 7, if a person seeks to
impugn the validity of a marriage on the ground that
the person who solemnized it was not really
authorized, such lack of authority must be proved by
the person petitioning.
9. What is the reason for public solemnization?
the reason for public solemnization is based on the
premise that the state takes an active interest in the
marriage.
10. Where should marriage license be issued and
what are the marriages of exceptional character?
ARTICLE 9
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A marriage license shall be issued by the local civil
registrar of the city or municipality where either
contracting party habitually resides, except in
marriages where no license is required in
accordance with Chapter 2 of this Title.
The marriages that are of exceptional character
are where no marriage license is required:
1) In Articulo Mortis (Art. 27)
2) In a remote place (Art. 28)
3) Marriage of people who have previously
cohabited for at least five years no legal
impediment to marry each other (Art. 34)
4) Marriages between pagans or
Mohammedans, who live in non-Christian
provinces, and who are married in
accordance with their Customs (Art. 33)
11. What are the ages of the contracting parties
where parental consent is necessary and when
parental advice is necessary and give the effect if
parties refused to obtain parental advice?
ART. 14.
In case either or both of the contracting parties, not
having been emancipated by a previous marriage,
are between the ages of eighteen and twenty-one,
they shall, in addition to the requirements of the
preceding articles, exhibit to the local civil registrar,
the consent to their marriage of their father, mother,
surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. Such
consent shall be manifested in writing by the
interested party, who personally appears before the
proper local civil registrar, or in the form of an
affidavit made in the presence of two witnesses and
attested before any official authorized by law to
administer oaths. The personal manifestation shall
be recorded in both applications for marriage
license, and the affidavit, if one is executed instead,
shall be attached to said applications.
ART. 15.
Any contracting party between the age of twenty-
one and twenty-five shall be obliged to ask their
parents or guardian for advice upon the intended
marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued
till after three months following the completion of
the publication of the application therefor. A sworn
statement by the contracting parties to the effect
that such advice has been sought, together with the
written advice given, if any, shall be attached to the
application for marriage license. Should the parents
or guardian refuse to give any advice, this fact shall
be stated in the sworn statement. (62a)
If the parties refused to obtain parental advice, as
discussed under Art.15, the marriage license must
not be issued till after 3 months from the end of the
10-day publication. If they marry without the
license, the marriage will be null and void.
12. Give the life of a marriage license?
ART. 20.
The license shall be valid in any part of the
Philippines for a period of one hundred twenty days
from the date of issue, and shall be deemed
automatically canceled at the expiration of the said
period if the contracting parties have not made use
of it. The expiry date shall be stamped in bold
characters on the face of every license issued.
13. Distinguish a marriage certificate from a
marriage license and why is the date and precise
time of the celebration of the marriage required
to be stated in the marriage certificate?
As discussed under Art. 22, the difference between
marriage certificate and marriage license is that the
latter is an essential requisite of marriage while the
former is not.
why is the date and precise time of the
celebration of the marriage required to be stated
in the marriage certificate?
To determine whether certain properties
obtained during the date of marriage belongs
to Absolute Community Property or not.
Page 3 of 19
14. Give the general rule and exception of
marriages celebrated abroad
ART. 26.
All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country
where they were solemnized, and valid there as
such, shall also be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) and (6),
3637 and 38. (17a)
15. Give the effect of divorce of a marriage
between a Filipino citizen and a foreigner?
ART. 26. (PAR. 2)
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under
Philippine law. (As amended by Executive Order
227)
16. What is the rule of both parties are at the
point of death and who can perform marriages
on Articulo Mortis?
As discussed under Art. 28, the rule if both parties
are at the point of death, is that the marriage can be
a valid marriage in articulo mortis, provided that all
the essential requisites are present. It is clear that
the parties concerned must be conscious of what
they are doing.
The persons who can perform marriages on Articulo
Mortis are:
1) Priests
2) Ship Captains
3) Airplane Chiefs
4) military commander
5) Justice
6) Judge, etc.
17. Distinguish danger of death from point of
death
As discussed under Art. 28, if a soldier is about to go
to a war, he may be in danger of death, but not at
the point of death.
18. What are the requisite for ratification of
Marital Cohabitation?
As discussed under Art. 34, the following are
requisites for ratification of Marital Cohabitation:
a) The contracting parties must have lived
together as husband and wife for at least 5
years before the marriage they are entering
into
b) No legal impediment of any kind must exist
between them
c) Requirements (a), (b) and (c) must be stated
in an affidavit before any person authorized
by law to administer oaths. (I do not
understand this requisite)
d) The necessary affidavit of the person
solemnizing the marriage
19. Enumerate marriages void from the very
beginning?
Art. 35.
The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the solemnizing
officer had the legal authority to do so;
(3) Those solemnized without license, except those
covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not
failing under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under
Article 53.
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Can a void marriage be a source of rights?
No. In a void marriage, it was though no marriage
has taken place, thus, it cannot be a source of rights.
(Garcia-Quiazon v. Belez, 702 SCRA 707)
20. Is a judicial declaration of nullity required
before a valid subsequent marriage can be
contracted?
CASE: IWASWAS V. GAINGAN, 705 SCRA 669 (p.
391)
A judicial declaration of nullity is required before a
valid subsequent marriage can be contracted. Or
else, what transpires is a bigamous marriage, which
is void from the beginning as provided in Art. 5 (4)
CASE: APIAG VS. CANTERO, 79 SCRA 327 (p. 457)
Now, per current jurisprudence, a marriage though
void still needs a judicial declaration of such fact
before any party thereto can marry again,
otherwise, the second marriage will also be void.
This was expressly provided for under Art. 40 of the
Family Code
CASE: WIEGEL VS. SEMPIO-DY, 143 SCRA 499 (p.
456)
There is a need to declare a void marriage as void or
invalid.
21. What is meant by Psychological Incapacity
as a found to render the marriage void?
As discussed under Art. 36, the psychological
incapacity to comply with the essential marital
obligations of marriage is a ground that will render
the marriage void. This incapacity need not
necessarily be manifested before or during the
marriage although it is a basic requirement that the
psychological defect be existing during that
marriage. Thus, a marriage contracted by any party
who, at the time of the celebration, was
psychologically incapacitated to comply with the
essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes
manifest only after its solemnization.
22. Is an un-satisfactory marriage considered a
null and void marriage?
No, it is not based on the jurisprudence on the case:
CASE: AMY PEREZ-FERRARIS V. BRIX FERRARIS,
495 SCRA 396 (2006)
Issue: whether or not psychological incapacity exist
in a given casecalling for annulment of marriage --
depends crucially, more than in any field of the law,
on the facts of the case.
Held: Yes. Said the Supreme Court, thus:
1) The term psychological incapacity to be a
ground for the nullity of marriage under Art.
36 of the Family Code, refers to a serious
psychological illness affecting a party even
before the celebration of the marriage; and
2) A husband alleged mixed personality, the
leaving-the-house attitude whenever the
spouses quarreled, the violent tendencies
during epileptic attacks, the sexual infidelity,
the abandonment and lack of support, and,
his preference to spend more time with his
band mates than his family, are not rooted on
some debilitating psychological condition
but a mere refusal or unwillingness to
assume the essential obligations of marriage.
It is not enough to prove that the parties
failed to meet their responsibilities and
duties as married persons; it is essential that
they must be shown to be incapable of doing
so, due to some psychological, not physical,
illness.
23. Is Article 26 of the Family Code dealing with
Psychological Incapacity similar as that of
divorce?
No. Said Art. 36 should not be confused with a
divorce law that cuts the marital bond at the time,
the causes therefore manifest themselves, and
neither is it to be equated with legal separation, in
which the grounds need not be rooted in
psychological incapacity but on physical violence,
moral pressure, moral corruption, civil interdiction,
Page 5 of 19
drug addiction, habitual alcoholism, sexual infidelity, ART. 38.
abandonment, and the like.
The following marriages shall be void from the
beginning for reasons of public policy:

24. Can a wifes psychological fitness as a spouse (1) Between collateral blood relatives whether
be equated with her professional/work legitimate or illegitimate, up to the fourth civil
relationship? degree;

CASE: REPUBLIC VS. ENCELAN, 684 SCRA 215 (2) Between step-parents and step-children;

Psychological incapacity contemplates downright (3) Between parents-in-law and children-in-law;

incapacity or inability to take cognizance of and to
assume the basic marital obligation, not merely the
refusal, neglect as difficulty, much less ill will, on the
part of the errant spouse.
(4) Between the adopting parent and the adopted
child;
(5) Between the surviving spouse of the adopting
parent and the adopted child;

25. Give 4 distinctions between void and (6) Between the surviving spouse of the adopted
voidable marriage? child and the adopter;

VOID VOIDABLE (7) Between an adopted child and a legitimate child

1. Can never be ratified
2. Always void
3. Can be attacked
directly or collaterally
4. There is no conjugal
partnership (only a co-
ownership)
1. Can generally be
ratified by free
cohabitation
2. Valid until annulled
3. Cannot be assailed
collaterally; there must
be a direct proceeding
4. There is a conjugal
partnership
of the adopter;
(8) Between adopted children of the same adopter;
and
(9) Between parties where one, with the intention to
marry the other, killed that other person's spouse, or
his or her own spouse. (82)

28. Shall an action or defense for the declaration

26. What are the marriages that are incestuous
and void from the very beginning?
Article 37
Marriages between the following are incestuous and
void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
of absolute nullity of a marriage prescribe?
ART. 39.
The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (As amended
by RA 8533, dated Feb. 23, 1998)

(1) Between ascendants and descendants of any

29. What is the effect/rule and exception of a
degree; and
marriage contracted by any person during the
(2) Between brothers and sisters, whether of the full subsistence of a previous marriage?
or half blood. (81a)
ART. 41.

A marriage contracted by any person during

27. Enumerate the nine (9) marriages that are
void from the very beginning for reasons of
public policy
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-
Page 6 of 19
founded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent
spouse. (83a)
30. What is the purpose in the issuance of a
marriage license to a widow?
the purpose is to prevent doubtful paternity. (PP v.
Rosal)
31. How is the subsequent marriage referred to
in Article 41 automatically terminated?
ART. 42.
The subsequent marriage referred to in the
preceding Article shall be automatically terminated
by the recording of the affidavit of reappearance of
the absent spouse, unless there is a judgment
annulling the previous marriage or declaring it void
ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent
marriage at the instance of any interested person,
with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in case
such fact is disputed. (n)
32. Enumerate the 5 effects of the termination of
the subsequent marriage referred to in Art. 42
ART. 43.
The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage
conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property
or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none,
the children of the guilty spouse by a previous
marriage or in default of children, the innocent
spouse;
(3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation
of the other spouse who acted in bad faith as
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (n)
33. What are the 6 grounds for the annulment of
a marriage?
ART. 45.
A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to
have the marriage annulled was eighteen years of
age or over but below twenty-one, and the marriage
was solemnized without the consent of the parents,
guardian or person having substitute parental
authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as
husband and wife;
(2) That either party was of unsound mind, unless
such party after coming to reason, freely cohabited
with the other as husband and wife;
Page 7 of 19
(3) That the consent of either party was obtained by However, the cohabitation must something more
fraud, unless such party afterwards, with full than mere living together in the same house or even
knowledge of the facts constituting the fraud, freely occupying the same bed; it is the living together of
cohabited with the other as husband and wife; the parties as husband and wife, including sexual
relations.
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the 36. Give at least 4 distinctions between
same having disappeared or ceased, such party annulment and legal separation?
thereafter freely cohabited with the other as
husband and wife; ANNULMENT LEGAL SEPARATION
1. The marriage was 1. there was NO
(5) That either party was physically incapable of defective at the very DEFECT in the
consummating the marriage with the other, and such beginning marriage at the
beginning
incapacity continues and appears to be incurable; or
2. The cause for annulment 2. The cause for legal
(6) That either party was afflicted with a sexually- must be already existing at separation arises after
the time of the marriage the marriage
transmissible disease found to be serious and
celebration
appears to be incurable. (85a) 3. There are 6 grounds for 3. There are 10
annulment grounds for legal
34. What is the doctrine of Triennial separations
Cohabitation? (Tompkins vs. Tompkins) 4. Annulment dissolves the 4. The marriage
marriage bond; the parties remains.
CASE: TOMPKINS VS TOMPKINS (p. 472) are free to marry again
5. From the angle of Private 5. From said angle, the
FACTS: a wife sued her husband for annulment of
International Law, the grounds are those
the marriage on the ground of impotency. The grounds are generally given by the
couple, young persons, had lived together for 5 those in the lex loci NATIONAL LAW, not
years, and the wife was still a virgin. The wife celebrationis (by the lex loci
testified that the husband was impotent, while the implication from Art. 71 of celebrationis for in the
man claimed that they had no sexual intercourse the Civil code) legal separation, the
because this was painful and distressing the wife. very validity of the
marriage itself is NOT
HELD: Under the doctrine of triennial cohabitation, questioned, unlike in
the case of annulment.
the husband in this case is presumed to be impotent.
The claim of the husband, that the wife do not want
carnal intercourse is hard to believe. Such 37. Give the 4 frauds referred to as a ground for
solicitation of a groom is noble; of a husband, heroic. annulment of marriage
Men are still cavemen in the pleasures of the bed.
The husbands plea does not inspire confidence. ART. 46.
Common experience discredits it. And of on fact he
Any of the following circumstances shall constitute
had the physical power and refrained from sexual
fraud referred to in Number 3 of the preceding
intercourse during the 5 years he occupied the same
Article:
bed with his wife, purely out of sympathy for her
feelings, he deserves to be doubted for not having (1) Non-disclosure of a previous conviction by final
asserted his rights, even though she balked. The judgment of the other party of a crime involving
presumption of impotency, because of the doctrine moral turpitude;
of triennial cohabitation has not been overcome, and
the decree of annulment will be granted. (2) Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
35. How may a voidable marriage be ratified? other than her husband;

In general, free and voluntary cohabitation ratifies

the voidable marriage. The period need not be long.
Page 8 of 19
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug addiction, habitual
alcoholism or homosexuality or lesbianism existing
at the time of the marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the
annulment of marriage. (86a)
38. Who are the persons who may sue for the
annulment of the marriage and prescriptive
periods? (Art. 47)
PSIP(5y)
Art. 47. The action for annulment of marriage must
be filed by the following persons and within the
periods indicated herein:
(1) For causes mentioned in number 1 of Article 45
by the party whose parent or guardian did not give
his or her consent, within five years after attaining
the age of twenty-one, or by the parent or guardian
or person having legal charge of the minor, at any
time before such party has reached the age of
twenty-one;
(2) (2) For causes mentioned in number 2 of Article
45, by the same spouse, who had no knowledge of
the other's insanity; or by any relative or guardian or
person having legal charge of the insane, at any time
before the death of either party, or by the insane
spouse during a lucid interval or after regaining
sanity;
(3) (3) For causes mentioned in number 3 of Article
45, by the injured party, within five years after the
discovery of the fraud;
(4) (4) For causes mentioned in number 4 of Article
45, by the injured party, within five years from the
time the force, intimidation or undue influence
disappeared or ceased;
(5) (5) For causes mentioned in number 5 and 6 of
Article 45, by the injured party, within five years
after the marriage.
39. Give and describe the two (2) kinds of
confession of judgement. (Art. 48)
WACCA (Article 48, Comment No. 2)
a. Confession of judgment by warrant of attorney -
authority given by the defendant to plaintiffs
attorney allowing the latter to tell the court that the
defendant confesses or admits the plaintiffs claim to
be true and just. This is done before the action is
actually filed.
b. Confession of judgment or judgment by confession
cognovit actionem - that rendered where, instead of
defending himself, the defendant chooses to
acknowledge the rightfulness of the plaintiffs action.
40. What is the purpose of the Court, in all cases
of annulment or declaration of nullity of
marriage in ordering a fiscal to appear on behalf
of the State? (Art. 48)
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to
take care that evidence is not fabricated or
suppressed. In the cases referred to in the
preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.
Page 9 of 19
41. When a marriage is annulled, does the
obligation to give support between the spouses
and the children still subsist? (Art. 48)
After the marriage is annulled, the obligation to give
support between the spouses ceases BUT the
children should still be supported by them. (Article
48, Comment No. 3)
42. Who pays for the attorneys fees and other
expenses in the annulment case? (Art. 48)
Article 48, Comment No. 4)
It depends:
a. If the action prospers (and the annulment is
granted), the ABSOLUTE COMMUNITY PROPERTY
shall be liable
b. If the marriage is not annulled, whoever brought
the action shall pay for the attorneys fees and other
litigation expenses.
43. What is the status of children conceived or
born before the judgment of annulment or
absolute nullity of marriage under Article 36 has
become final and executory and the children
conceived or born of the subsequent marriage
under Article 53? (Art. 54)
Art. 54. Children conceived or born before the
judgment of annulment or absolute nullity of the
marriage under Article 36 has become final and
executory shall be considered legitimate.
Children conceived or born of the subsequent
marriage under Article 53 shall likewise be
legitimate.
44. Read again the case of People vs. Mendoa,
People vs. Sansano and Ramos, and People v.
Scneckenburger.
a. (Article 54, Comment No. 3)
FACTS: In 1936, Mendoa married Jovita. While Jovita
was still alive, Mendoza in 1941 married Olga. In
1943, Jovita died. In 1949, while Olga was still alive,
Mendoza married Carmencita. Mendoza was then
accused of bigamy for his marriage to Carmencita. Is
Mendoza guilty?
Held: No, Mendoza is not guilty of bigamy, for when
he married Carmencita, he had no previous valid
marriage. Marriage No. 1 (to Jovita) had already
been dissolved by Jovitas death while marriage No.
2 (to Olga) cannot be counted inasmuch as it was
void ab initio, having been contracted while Jovita
was still alive. Said second marriage needed no
judicial declaration to establish its validity because it
was bigamous, and void from the very beginning, as
distinguished from a merely voidable or annullable
marriage.
b. (Article 56, Comment 3)
FACTS: A and B, husband and wife, respectively, were
legally married. Later, B abandoned A. B lived with C. A did
nothing to interfere with the relations of his wife and her
paramour. He even went to Hawaii, completely
abandoning his wife B for more that secen years. Later, A
returned and charged B and C with adultery. Is B guilty of
adultery?
HELD: B should be acquitted because As conduct
warranted the inference that in truth, as well as in fact, he
had consented to the philandering of his wife.
c. (Article 56, Comment 3)
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FACTS: A husband and a wife entered into a mutual
agreement whereby esch could live with others,
have carnal knowledge of them, without interference
from the other. Pursuant to the agreement, the
husband lived with another woman, and in the
prosecution of concubinage, he presented in defense
the prior agreement or consent. Is he guilty?
RDAF-DL-SCAA
Art. 55. A petition for legal separation may be filed
on any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;

(2) Physical violence or moral pressure to compel

HELD: No, he is not guilty in the view of the consent
of the wife because even if we do not legalize the
agreement; the agreement is still null and void
because it is contrary to law and contrary to morals
BUT precisely because the girl had previously
consented, she is now undeserving of our sympathy.
She deserves less consideration that a woman who
condones.
45. Give four (4) distinctions of legal separation
from separation of property.
the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent; (6) Lesbianism or homosexuality of the
respondent;

(Introductory Comment No. 9 of Title II, Legal (7) Contracting by the respondent of a subsequent
Separation) bigamous marriage, whether in the Philippines or
abroad;
Legal Separation Separation of Property
(a) Must be done thru (a) 1. If prior to marriage - (8) Sexual infidelity or perversion;
the court. NOTE that may be done thru the
an extrajudicial marriage settlement. (9) Attempt by the respondent against the life of the
agreement to separate 2. If done during the petitioner; or
is VOID. existence of the marriage -
must be done thru the courts. (10) Abandonment of petitioner by respondent
(b) Always involves (b) May exist with or without
separation of legal separation. without justifiable cause for more than one year.
property.
(c) May be considered, (c) May be considered, in a
in a sense, as a cause sense as one of the effects of
of separation of legal separation. (Art. 63, For purposes of this Article, the term "child" shall
property. Family Code). (Of course, include a child by nature or by adoption.
separation of property may
exist without legal
separation.)
(d) The Spouse (d) The spuses persons are C^3 GCP
persons are NOT necessarily separated.
necessarily separated. Art. 56. The petition for legal separation shall be
denied on any of the following grounds:

(1) Where the aggrieved party has condoned the

46. Give the ten (10) grounds for petition for offense or act complained of;
legal separation and its six (6) defenses.
(2) Where the aggrieved party has consented to the
(Art. 55/56) commission of the offense or act complained of;

Page 11 of 19
(3) Where there is connivance between the parties
in the commission of the offense or act constituting
the ground for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to
obtain decree of legal separation; or
(6) Where the action is barred by prescription.
47. When shall an action for legal separation be
filed; is there a necessity of alleging prescription
and shall it be tried immediately upon filing?
(Art. 57/58)
Art. 57. An action for legal separation shall be filed
within five years from the time of the occurrence of
the cause.
Art. 58. An action for legal separation shall in no case
be tried before six months shall have elapsed since
the filing of the petition.
48. May the court issue a decree of legal
separation based upon facts stipulated by the
spouses? If so, why? If not, why not?
a. Art. 60. No decree of legal separation shall be
based upon a stipulation of facts or a confession of
judgment.
In any case, the Court shall order the prosecuting
attorney or fiscal assigned to it to take steps to
prevent collusion between the parties and to take
care that the evidence is not fabricated or
suppressed.
b. The law requires proof, not a mere stipulation of
facts or a confession of judgment. Indeed, there
ought to be a trial. The proof may be either direct
or circumstantial evidence. (Article 60, Comment
No. 1)
49. Enumerate the four (4) effects of the decree
of legal separation. (Art. 63)
SACO
Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately
from each other, but the marriage bonds shall not
be severed;
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any share
of the net profits earned by the absolute community
or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.
50. If the spouse should reconcile, what should
be done by them and give the effect of the
reconciliation filed by the spouses. (Art. 65/66)
Art. 65. If the spouses should reconcile, a
corresponding joint manifestation under oath duly
signed by them shall be filed with the court in the
same proceeding for legal separation.
Art. 66. The reconciliation referred to in the
preceding Articles shall have the following
consequences:
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(1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set
aside, but the separation of property and any
forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
revive their former property regime. The court's
order containing the foregoing shall be recorded in
the proper civil registries.
51. Who shall fix the family domicile and in case
of disagreement, what shall the court do?
(Art. 69)
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall
decide.
The court may exempt one spouse from living
with the other if the latter should live abroad or
there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply
if the same is not compatible with the solidarity of
the family.
52. Who shall be responsible for the support of
the family and give the sources of expenses for
support and conjugal obligation. (Art. 71) What
about the management of the household, who
shall be responsible and give the sources of the
expenses for such management. (Art. 70)
Art. 70. The spouses are jointly responsible for the
support of the family. The expenses for such support
and other conjugal obligations shall be paid from the
community property and, in the absence thereof,
from the income or fruits of their separate
properties. In case of insufficiency or absence of said
income or fruits, such obligations shall be satisfied
from the separate properties.
Art. 71. The management of the household shall be
the right and the duty of both spouses. The expenses
for such management shall be paid in accordance
with the provisions of Article 70.
53. If a wife engages a business, what property
will be liable? (Art. 73)
Art. 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without
the consent of the other. The latter may object only
on valid, serious, and moral grounds.
In case of disagreement, the court shall decide
whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the
objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be
enforced against the separate property of the spouse
who has not obtained consent.
The foregoing provisions shall not prejudice the
rights of creditors who acted in good faith.
54. In what order shall the property relations
between husband and wife be governed? (Art.
74) and give the different matrimonal property
regimes that may be agreed upon in the marriage
settlement? (Art. 75)
Art. 74. The property relationship between husband
and wife shall be governed in the following order:
(1) By marriage settlements executed before the
marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
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Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute
community, conjugal partnership of gains, complete
separation of property, or any other regime. In the
absence of a marriage settlement, or when the
regime agreed upon is void, the system of absolute
community of property as established in this Code
shall govern.
55. If in a marriage settlement, a future husband
and his future wife agreed that there will not be
any absolute community of property between
them and there was no other provision, what
system or regime will prevail?
(Article 75, Comment No. 3)
Their intention must be ascertained from their
actions immediately before, during, and after the
execution of the contract. It is clear, however, that
the absolute community of property should not exist.
Very likely the parties could have intended the
conjugal partnership or separation of property.
56. Enumerate the four (4) requisites of valid
marriage settlement.
(Article 75, Comment No. 4)
a. Must be made BEFORE the celebration of the
marriage and even modification must also be made
BEFORE the wedding except conversion into the
complete separation of property regime, which
would be allowed provided that there is judiciall
approval and no prejudice to creditors.
b. Must not contain provisions contrary to law, good
morals, good customs, public order, and public
policy (LAGOPU) or against the dignity of either
spouse.
c. Must generally confine itself only to property
relations.
d. Must be in writing. NOTE: The marriage
settlement shall not prejudice third person with
respect to real properties unless the settlement is
recorded in the proper registries of property.
e. If made by minors, their parents must consent by
signing also; if by other incompetents, such as those
under civil interdiction, the guardian must consent
and also sign.
57. What is the general rule and exception to the
stipulation in the marriage settlement if
marriage does not take place, and give the rule if
a child is recognized in the marriage settlement
and the marriage does not take place. (Art. 81)
Art. 81. Everything stipulated in the settlements or
contracts referred to in the preceding articles in
consideration of a future marriage, including
donations between the prospective spouses made
therein, shall be rendered void if the marriage does
not take place. However, stipulations that do not
depend upon the celebration of the marriages shall
be valid.
b. If the child is of major age, the recognition is
valid, provided that the child gave his consent. This
is so even if no judicial approval was obtained
because the child is already of major age. The
marriage settlement, whether in a public or private
instrument, can be considered, insofar as recognition
of a child is concerned, as an authentic writing. If the
child is a minor, the minor need not consent, but
judicial approval is needed, for if the recognition of a
minor does not take place in a record of birth or in a
will, judicial approval shall be needed. Hence, if no
judicial approval was obtained, the recognition of
the minor is not valid, even if we consider the
marriage settlement as an authentic writing.
58. Enemurate the three (3) requisites of a valid
Donation Propter Nuptias and distinguish it from
wedding gifts.
Page 14 of 19
Art. 82. Donations by reason of marriage are those
which are made before its celebration, in
consideration of the same, and in favor of one or
both of the future spouses.
Donations propter nuptias (propter means before)
are wedding gifts, but not all wedding gifts are
donations propter nuptias, for said wedding gifts
may come after the celebration of marriage.
59. If the future spouses agree upon a regime
other than the absolute community regime to
what extent is their donation to each other in
their marriage settlement? (Art. 84)
Art. 84. If the future spouses agree upon a regime
other than the absolute community of property, they
cannot donate to each other in their marriage
settlements more than one-fifth of their present
property. Any excess shall be considered void.
Donations of future property shall be governed by
the provisions on testamentary succession and the
formalities of wills.
60. Give the rules as to the deficiency in case of a
foreclosure sale subject of Donation Propter
Nuptias. (Art. 85)
Art. 85. Donations by reason of marriage of property
subject to encumbrances shall be valid. In case of
foreclosure of the encumbrance and the property is
sold for less than the total amount of the obligation
secured, the donee shall not be liable for the
deficiency. If the property is sold for more than the
total amount of said obligation, the donee shall be
entitled to the excess.
61. What are the six (6) grounds for the
revocation of Donation Propter Nuptias and give
the effect of the donation if the marriage is not
celebrated. (Art. 86)
Art. 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially
declared void ab initio except donations made in the
marriage settlements, which shall be governed by
Article 81;
(2) When the marriage takes place without the
consent of the parents or guardian, as required by
law;
(3) When the marriage is annulled, and the donee
acted in bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the
condition is complied with;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of the Civil
Code on donations in general.
If the marriage is not celebrated, the donation would
be considered revocable, merely, not automatically
revoked. The donation would still be merely
revocable that is, if no action is brought to declare
the marriage void, and the donation revoked, the
donation would remain void. (Article 86, Comments
2 and 3)
62. Give the rule and exception to every donation
or grant of gratuitous advantage, direct or
indirect, between the spouses during the
marriage and give the three (3) reasons for the
general prohibition of donation between the
spouses; give the status of donation and who can
assail its validity (Art. 87/Harding vs.
Commercial Union Case)
Page 15 of 19
Art. 87. Every donation or grant of gratuitous
advantage, direct or indirect, between the spouses
during the marriage shall be void, except moderate
gifts which the spouses may give each other on the
occasion of any family rejoicing. The prohibition
shall also apply to persons living together as
husband and wife without a valid marriage.
FACTS: A husband donated an automobile to his
wife, who subsequently insured it for P3,000. when
the car was later completely destroyed, the wife
sought to recover the insurance indemnity but the
insurer pleaded in defense that the wife had no
insurable interest in the car, the donation by the
husband being void.
HELD: Firstly, the insurer company failed to show
that the gift was not a moderate one, considering the
circumstances of the parties. Secondly, even if the
gift had not been a moderate one, the company
cannot assail the validity of the donation, because at
the time of transfer, it was not a creditor. The transfer
could not have therefore prejudiced it.
63. When shall the absolute community/conjugal
partnership of gains between the spouses
commence and what is the effect of any
stipulation for its commencement at any other
time? (Art. 88)
Art. 88. The absolute community of property
between spouses shall commence at the precise
moment that the marriage is celebrated. Any
stipulation, express or implied, for the
commencement of the community regime at any
other time shall be void.
64. Can there be a waiver of rights, interest,
share, and effects (RISE) of the absolute
community/conjugal partnership of gains during
the marriage? (Art. 89)
Art. 89. No waiver of rights, shares and effects of the
absolute community of property during the marriage
can be made except in case of judicial separation of
property.
When the waiver takes place upon a judicial
separation of property, or after the marriage has
been dissolved or annulled, the same shall appear in
a public instrument and shall be recorded as
provided in Article 77. The creditors of the spouse
who made such waiver may petition the court to
rescind the waiver to the extent of the amount
sufficient to cover the amount of their credits.
65. What shall govern the absolute community,
what constitute the same, and what are those
excluded from the community property? (Arts.
90-92)
Art. 90. The provisions on co-ownership shall apply
to the absolute community of property between the
spouses in all matters not provided for in this
Chapter.
Art. 91. Unless otherwise provided in this Chapter or
in the marriage settlements, the community
property shall consist of all the property owned by
the spouses at the time of the celebration of the
marriage or acquired thereafter.
Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by
gratuitous title by either spouse, and the fruits as
well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor
that they shall form part of the community property;
(2) Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the
community property;
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(3) Property acquired before the marriage by either
spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any,
of such property.
67. As regards losses and winnings in a gambling
game, who shall bear the loss and where shall
the winnings go? (Art. 95/123)
Art. 95. Whatever may be lost during the marriage in
any game of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted or
prohibited by law, shall be borne by the loser and
shall not be charged to the community but any
winnings therefrom shall form part of the
community property.
Article 123 replaced community property with
conjugal partnership property.
68. To whom shall the administratiob and
enjoyment of the community of
property/conjugal partnership belong and in
case of disagreement, what is the rule to follow?
(Art. 96/124)
Art. 96. The administration and enjoyment of the
community property shall belong to both spouses
jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the
court by the wife for proper remedy, which must be
availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the common properties, the other
spouse may assume sole powers of administration.
These powers do not include disposition or
encumbrance without authority of the court or the
written consent of the other spouse. In the absence
of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part
of the consenting spouse and the third person, and
may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by
the court before the offer is withdrawn by either or
both offerors.
Article 124 replaced community property with
conjugal partnership property.
69. Give the rule and exception of donation from
the absolute community of property/conjugal
partnership whether common consent is
necessary to be valid. (Art. 98/125)
Art. 98. Neither spouse may donate any community
property without the consent of the other. However,
either spouse may, without the consent of the other,
make moderate donations from the community
property for charity or on occasions of family
rejoicing or family distress.
Article 125 replaced community property with
conjugal partnership property.
70. Give the four (4) grounds for termination of
the absolute community of property/comjugal
partnership. (Art. 99/126)
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void;
or
(4) In case of judicial separation of property during
the marriage under Articles 134 to 138.
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Article 126 replaced community property with
conjugal partnership property.
71. When is a spouse deemed to have abandoned
the other and give the prima facie evidence of no
intention of returning to the conjugal dwelling.
(Art. 101/128)
Art. 101. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to
the family, the aggrieved spouse may petition the
court for receivership, for judicial separation of
property or for authority to be the sole
administrator of the absolute community, subject to
such precautionary conditions as the court may
impose.
The obligations to the family mentioned in
the preceding paragraph refer to marital, parental or
property relations.
A spouse is deemed to have abandoned the
other when her or she has left the conjugal dwelling
without intention of returning. The spouse who has
left the conjugal dwelling for a period of three
months or has failed within the same period to give
any information as to his or her whereabouts shall
be prima facie presumed to have no intention of
returning to the conjugal dwelling.
Article 128 replaced community property with
conjugal partnership property.
72. Upon the dissolution of the absolute
community of property/conjugal partnership,
what are the procedures to follow and in case of
partition of conjugal dwelling or lot, who gets the
same? (Art. 102/129)
IDN PO (I Dont No PO)
Art. 102. Upon dissolution of the absolute
community regime, the following procedure shall
apply:
(1) An inventory shall be prepared, listing separately
all the properties of the absolute community and the
exclusive properties of each spouse.
(2) The debts and obligations of the absolute
community shall be paid out of its assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties in accordance with the
provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of
the spouses shall thereafter be delivered to each of
them.
(4) The net remainder of the properties of the
absolute community shall constitute its net assets,
which shall be divided equally between husband and
wife, unless a different proportion or division was
agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such share
provided in this Code. For purpose of computing the
net profits subject to forfeiture in accordance with
Articles 43, No. (2) and 63, No. (2), the said profits
shall be the increase in value between the market
value of the community property at the time of the
celebration of the marriage and the market value at
the time of its dissolution.
(5) The presumptive legitimes of the common
children shall be delivered upon partition, in
accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in
the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority of
the common children choose to remain. Children
below the age of seven years are deemed to have
chosen the mother, unless the court has decided
otherwise. In case there in no such majority, the
court shall decide, taking into consideration the best
interests of said children.
Article 129 replaced community property with
conjugal partnership property.
73. In case of termination of the marriage by
death, what shall be done by the surviving
Page 18 of 19
spouse to the community property/conjugal
partnership and what happens to any disposition
or encumbrance made involving the community
property/conjugal partnership if no liquidation
is done and if ever the surviving spouse desire to
contract a sebsequent marriage, what regime
shall govern the property relation of the
subsequent marriage? (Art. 103/130)
Art. 103. Upon the termination of the marriage by
death, the community property shall be liquidated in
the same proceeding for the settlement of the estate
of the deceased.
If no judicial settlement proceeding is
instituted, the surviving spouse shall liquidate the
community property either judicially or extra-
judicially within six months from the death of the
deceased spouse. If upon the lapse of the six months
period, no liquidation is made, any disposition or
encumbrance involving the community property of
the terminated marriage shall be void.
Should the surviving spouse contract a
subsequent marriage without compliance with the
foregoing requirements, a mandatory regime of
complete separation of property shall govern the
property relations of the subsequent marriage.
Article 130 replaced community property with
conjugal partnership property.
74. Whenever the liquidation of the absolute
community property/conjugal partnership of
two (2) or more marriages contracted by the
same person before the effectivity of the Family
Code (August 3, 1988), how shall the respective
capital, fruits, and income of its community
property/conjugal partnership be determined
and in case of doubt as to which community
property/conjugal partnership of gains the
existing property belong, what is the rule to
follow? (Art.104/131)
Art. 104. Whenever the liquidation of the community
properties of two or more marriages contracted by
the same person before the effectivity of this Code is
carried out simultaneously, the respective capital,
fruits and income of each community shall be
determined upon such proof as may be considered
according to the rules of evidence. In case of doubt
as to which community the existing properties
belong, the same shall be divided between the
different communities in proportion to the capital
and duration of each.
Article 131 replaced community property with
conjugal partnership property.
Never forget how far youve become.
Everything you have gotten through. All the
problems you have pushed on even when you
felt you couldnt. All the mornings you got out
of bed no matter how hard it was. All the
times you wanted to give up but you got
through another day. Never forget how much
strength you have learned and developed.
~AD MAJOREM DEI GLORIAM~
Prepared by: F. Mordeno and J. Duero
Page 19 of 19