PERSONS AND FAMILY RELATIONS LAW
superiors concerning the rules or guidelines to be
Article 1. This Act shall be known as the Civil Code of the Philippines.
Article 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after
publication.
Publication is made either
in the Official Gazette or
In a newspaper of general circulation ( Secs. 1 & 2,
Executive Order No. 200)
Taada vs Tuvera, 136 scra 27
FACTS: Invoking the peoples right to be informed on
matters of public concerns as well as the principle that
laws to be valid and enforceable must be published in
the Official Gazette or otherwise effectively
promulgated, Taada et. al. sought for a writ of
mandamus to compel Tuvera to publish and/or to
cause the publication in the Official Gazette of various
Presidential Decrees (PDs), Letters of
Instructions(LOIs), Proclamations(PPs), Executive
Orders(EOs), and Administrative Orders(AOs).
ISSUE: Whether or not the various PDs et al must be
published before they shall take effect.
HELD: That the PD or LOI states its date of effectivity
does not preclude their publication in the Official
Gazette as they constitute important legislative acts,
particularly in the present case where the president
may, on his own, issue laws. The clear objective of
this provision is to give the public general adequate
notice of the various laws which are to regulate their
actions and conduct. Without such notice and
publication, there would be no basis for the
application of the maximignorantia legis non
excusat. Publication is indispensable.
Taada v. Tuvera G.R. No. L-63915 April 24, 1985146
SCRA 453, 454
All statutes, including those of local application and private
laws, shall be published as a condition for their effectivity,
which shall begin after fifteen days after publication unless
a different effectivity date is fixed by the legislature.
Covered by this rule are:
a. presidential decrees and executive orders
promulgated by the President in the exercise of
legislative powers whenever the same are validly
delegated by the legislature or, at present, directly
conferred by the Constitution
b. Administrative rules and regulations if their purpose is
to enforce or implement existing law pursuant to a
valid delegation.
c. the charter of a city (must be published)
notwithstanding that it applies to only one portion of
the national territory and directly affects only the
inhabitants of that place
d. Circulars issued by the Monetary Board if they are
meant not merely interpret but to "fill in details" of the
Central Bank Act which that body supposed to enforce.
Philippine Association of Service Exporters,
Inc. vs. Torres, G.R. No. 101279 August 6,
1992, 212 SCRA 299 [1992].
FACTS:
d. All presidential decrees must be published,
including, even, say those naming a public place after
a favored individual or exempting him from a certain
prohibitions or requirements.
EXCEPTIONS
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public
letters of instructions issued by administrative
followed by their subordinates in the performance of
their duties
EXECUTIVE ORDER NO. 200 dated June 18, 1987 amended
Art. 2 of the NCC in this wise:
Sec. 1. Laws shall take effect after fifteen days
following the completion of their publication either in
the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise
provided.
Sec. 2. Article 2 of Republic Act No. 386, otherwise
known as the "Civil Code of the Philippines," and all
other laws inconsistent with this Executive Order are
hereby repealed or modified accordingly.
REASONS:
the requirement that for laws to be effective only a
publication thereof in the Official Gazette will suffice
has entailed some problems, a point recognized by the
Supreme Court in Taada. et al. vs. Tuvera, et al. (G.R.
No. 63915, December 29, 1986) when it observed that
"[t]here is much to be said of the view that the
publication need not be made in the Official Gazette,
considering its erratic release and limited readership
it was likewise observed that "[u]ndoubtedly,
newspapers of general circulation could better
perform the function of communicating the laws to the
people as such periodicals are more easily available,
have a wider readership, and come out regularly
Article 3. Ignorance of the law excuses no one from compliance
therewith.
CONSUNJI vs. CA, G.R. No. 137873, April 20, 2001
Article 3 of the New Civil Code applies only to mandatory
and prohibitory laws.
MANDATORY STATUTE- one that commands something to
be done, leaving the person concerned no choice on the
matter except to obey. Statutes using words of command
such as shall, must, ought, or should; or prohibitions such
as cannot, shall not, or ought not are mandatory.
Taada v. Tuvera, supra
That every person knows the law is a conclusive
presumption.
As a necessary consequence of the mandatory provision
that all laws must be published. Without such notice and
publication, there will be no basis for the application of the
maxim ignorantia legis non excusat. It would be at the
height of injustice to punish/burden a citizen for the
transgress of the law of which he had no knowledge.
DELGADO vs. ALONSO, 44 Phil. 739
The legal precept that IGNORANCE OF THE LAW EXCUSES
NO ONE FROM COMPLIANCE THEREWITH is founded not
only on expediency and policy but necessity.
When a law is passed by Congress, duly approved by the
President of the Philippines, properly published, and
consequently becomes effective pursuant to its effectivity
clause or to some provision of general law on the effectivity
of statutes, the public is always put on constructive notice
of the laws existence and effectivity.
This is true even if a person has no actual knowledge of the
law.
To allow a party to set up as a valid defense the fact that he
has no actual knowledge of law which he has violated is to
foment disorder in society. (M. S. Sta. Maria, Jr., PERSONS
and FAMILY RELATIONS)
ZUO vs. JUDGE ARNULFO G. CABREDO A.M. No. RTJ-03-
1779 April 30, 2003
FACTS: Acting on the petition for Prohibition with Prayers
for the Issuance of Preliminary Injunction and Temporary
Restraining Order, Judge Cabredo issued a TRO, ex parte,
for the release of 35,000 bags of rice from customs to
Antonio Chua, Jr. and Carlos Carillo. Chief State Prosecutor
 Zuo alleged that respondent Judge violated Administrative
Circular No. 7-99, which cautions trial court judges in their
issuance of temporary restraining orders and writs of
preliminary injunctions. Said circular reminds judges of the
principle, enunciated in Mison v. Natividad, that the
Collector of Customs has exclusive jurisdiction over seizure
and forfeiture proceedings, and regular courts cannot
interfere with his exercise thereof or stifle or put it to
naught.
HELD: Respondent judge had no jurisdiction to take
cognizance of the petition and issue the questioned TRO.
RATIO: He proceeded against settled doctrine, an act
constituting gross ignorance of the law. If the law is so
elementary, not to know it or to act if one does not know it,
constitutes gross ignorance of the law. It is a basic principle
that the Collector of Customs has exclusive jurisdiction over
seizure and forfeiture proceedings of dutiable goods. A
studious and conscientious judge can easily be conversant
with such an elementary rule.
BORJA-MANZANO vs. JUDGE ROQUE R. SANCHEZ A.M. No.
MTJ-00-1329 March 8, 2001
FACTS: Complainant avers that she was the lawful wife of
the late David Manzano, having been married to him on 21
May 1966 in San Gabriel Archangel Parish, Araneta Avenue,
Caloocan City. Her husband contracted another marriage
with one Luzviminda Payao before respondent
Judge. When respondent Judge solemnized said marriage,
he knew or ought to know that the same was void and
bigamous, as the marriage contract clearly stated that both
contracting parties were "separated." Respondent Judge,
on the other hand claims in his comment, that when he
officiated the marriage between Manzano and Payao he did
not know that Manzano was legally married. What he knew
was that the two had been living together as husband and
wife for seven years already without the benefit of
marriage, as manifested in their joint affidavit. Had he
known that the late Manzano was married, he would have
advised the latter not to marry again; otherwise, he
(Manzano) could be charged with bigamy.
HELD: Clearly, respondent Judge demonstrated gross
ignorance of the law when he solemnized a void and
bigamous marriage.
RATIO: Respondent Judge knew or ought to know that a
subsisting previous marriage is a diriment impediment,
which would make the subsequent marriage null and void.
The maxim "ignorance of the law excuses no one" has
special application to judges. It is highly imperative that
judges be conversant with the law and basic legal principles.
And when the law transgressed is simple and elementary,
the failure to know it constitutes gross ignorance of the law
Article 4. Laws shall have no retroactive effect, unless the contrary
is provided.
Laws generally apply to conditions existing at the time of
their effectivity.
EXCEPTIONS:
When the law
specifically provides for retroactivity;
is curative or remedial;
is procedural
is penal and favorable to the accused
Article 5. Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes
their validity.
Mandatory laws- when the omission of which, renders the
proceeding or acts, to which it relates generally illegal or
void.
Prohibitory laws- those which contain prohibitive
prohibitions and are couched in the negative terms
importing that the act required shall not be done
However, if the law expressly provides for the validity of
acts committed in violation of a mandatory or prohibitory
provision of a statute, such act shall be considered valid and
enforceable.
Article 6. Rights may be waived, unless the waiver is contrary to law,
public policy, morals or good customs, or prejudicial to a third
person with a right recognized by law.
Waiver- intentional relinquishment of a known right
Waivers are not presumed, but must be clearly and
convincingly shown, either by express stipulation or acts
admitting no other reasonable explanation.
It is essential that, a right, in order to be waived:
Must be in existence at the time of the waiver
Exercised by a duly capacitated person actually
possessing the right to make the waiver
it is an act of understanding that presupposes that a party
has knowledge of its rights, but chooses not to assert them.
Ignorance of a material fact negates a waiver, and waiver
cannot be established by a consent given under a mistake
or misapprehension of fact.
PROHIBITION. Waivers cannot be made if they are contrary
to law, public order, public policy, morals or good customs,
or prejudicial to a third person with a right recognized by
law.
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom, or practice to the contrary.
When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to
the laws or the Constitution.
Repeal
the legislative act of abrogating through a
subsequent law the effects of a previous
statute or portions thereof
either express or implied
Implied repeal
Takes place when a new law contains
provisions contrary to or inconsistent with
those of a former without expressly repealing
them.
Repeals and amendments by implications are
not favored.
Express repeal
Literally declared by a new law, either in
specific terms, as where particular laws and
provision are named and identified and
declared to be repealed, or in general terms,
as where a provision in a new law declares
all laws and parts of laws inconsistent
therewith to be repealed.
A special statute, providing for a particular case or
class of cases, is not repealed by a subsequent statute,
general in its terms, provisions and applications,
unless the intent to repeal or alter is manifest,
although the terms of general law are broad enough
to include the cases embraced in the special law
No ordinary law can override a constitutional
provision.
PARTIAL CONSTITUTIONALITY OF STATUTES. Where a
portion of a statute is rendered unconstitutional and
the remainder valid, the parts will be separated, and
the constitutional portion upheld.

Article 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines.
SEC. OF JUSTICE vs. CATOLICO 68 SCRA 62
Judicial decisions of the Supreme Court are authoritative
and precedent-setting while those of the inferior courts and
the Court of Appeals are merely persuasive. It is the duty of
the judges to apply the law as interpreted by the Supreme
Court.
STARE DECISIS ET NON QUIETA MOVERE
Stare decisis simply declares that, for the sake of certainty,
a conclusion reached in one case should be applied to those
which follow, if the facts are substantially the same, even
though the parties may be different.
Tan Chong vs. Secretary of Labor, 79 Phil. 249
The principle of stare decisis does not mean blind
adherence to precedents. The doctrine or rule laid down,
which has been followed for years, no matter how sound it
may be, if found to be contrary to law, must be abandoned.
The principle of stare decisis does not and should not apply
when there is a conflict between the precedent and the law.
Judicial decisions, although in themselves not laws, assume
the same authority as the statute itself.
Article 9. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws.
Judges are tasked with the dispensation of justice in
accordance with the constitutional precept that no person
shall be deprived of life, liberty, and property without due
process of law.
Judges must not evade this responsibility just because of an
apparent non-existence of any law governing a particular
legal dispute or because the law involved is vague or
inadequate.
Article 10. In case of doubt in the interpretation and application of
laws, it is presumed that the lawmaking body intended right and
justice to prevail.
If there is ambiguity in the law, interpretation of the law
requires fidelity to the legislative purpose.
Article 11. Customs which are contrary to law, public order or public
policy shall not be countenanced.
Article 12. A custom must be proved as a fact. According to the rules
of evidence.
Custom- a rule of conduct formed by repetition of facts,
uniformly observed (practiced) as a social rule, legally
binding and obligatory.
Custom which are contrary to law, public order or public
policy shall not be countenanced.
Custom, even if proven, cannot prevail over a statutory rule
or even a legal rule enunciated by the Supreme Court.
Article 13. When the laws speak of years, months, days or nights, it
shall be understood that years are of three hundred sixty-five days
each; months, of thirty days; days, of twenty-four hours; and nights
from sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively have.
In computing a period, the first day shall be excluded,
and the last day included. (7a)
GARVIDA vs. SALES JR. 271 SCRA 767
When the law speaks of years, it is understood that years
are 365 days each. One born on the first day of the year is
consequently deemed to be one-year old in the 365th day
after his birth. In computing the years, the first year is
reached after completing the first 365 days. After the 365th
day, the first day of the second 365-day cycle begins. On
365th day of the second cycle, the person turns two years
old. This cycle goes on and on in a lifetime.
Article 13 has been impliedly repealed by Administrative
Code of 1987.
Section 31. Legal Periods. Year shall be understood to
be twelve months; month of thirty days, unless it refers
to a specific calendar month in which case it shall be
computed according to the number of days the specific
month contains; day, to a day of twenty-four hours and;
night from sunrise to sunset
Article 14. Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in the Philippine territory
subject to the principles of public international law and to treaty
stipulations. (8a)
Citizens and foreigners are subject to penal laws and all
other laws designated to maintain public security and
safety.
The liability for any violation of the said laws will even
attach regardless of whether a foreigner is merely
sojourning in Philippine territory.
EXCEPTION
Foreigners may be immune from suit and
therefore, cannot be criminally prosecuted in the
Philippines in certain cases where the Philippine
government has waived its criminal jurisdiction
over them on the basis of the principles of public
international law and treaty stipulations.
Diplomatic agent
Heads of state officially visiting the Philippines
LEX NATIONALE. Article 15. Laws relating to family rights and
duties, or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad.
GARCIA-RECIO vs. REDERICK A. RECIO G.R. No.
138322 October 2, 2001
FACTS: Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on March
1, 1987. They lived together as husband and wife in
Australia. On May 18, 1989, an Australian family court
issued a divorce decree, purportedly dissolving the
marriage.
Petitioner Grace J. Garcia, a Filipina, and respondent were
married on January 12, 1994 in Our Lady of Perpetual Help
Church in Cabanatuan City. In their application for a
marriage license, respondent was declared as "single" and
"Filipino.
Petitioner later learned that respondent Rederick had a
prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of
respondent's marriage to Editha Samson only in November,
1997 and on March 3, 1998, she filed a Complaint for
Declaration of Nullity of Marriage on the ground of bigamy.
In his defense, respondent Rederick submitted a copy of the
divorce decree issued by the Australian court.
ISSUE: Whether the decree of divorce submitted by
Rederick Recio is admissible as evidence to prove his legal
capacity to marry petitioner and absolved him of bigamy.
HELD: No
RATIO: A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. However, the
divorce decree and the governing personal law of the alien
spouse who obtained the divorce must be proven.
Our courts do not take judicial notice of foreign laws and
judgment; hence, like any other facts, both the divorce
decree and the national law of the alien must be alleged and
proven according to our law on evidence.
Presentation solely of the divorce decree is insufficient.
The court ordered a REMAND of the case to the court a quo
for the purpose of receiving evidence which conclusively
show respondents legal capacity to marry petitioner; and
falling in that of declaring the parties marriage void on the
ground of bigamy.
LEX RE SITAE. Article 16. Article 16. Real property as well as
personal property is subject to the law of the country where it is
stipulated.
However, intestate and testamentary successions,
both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
The law of the country where the real property and
personal property is situated shall be the governing law
over such real property.
With respect to order of succession and the amount of
successional rights, whether intestate or testamentary
succession, they shall be regulated by the national law of
the deceased and this is applicable regardless of the nature
of the property.
Art. 16, par. 2 and Art. 1039 of the Civil Code render
applicable the national law of the decedent, in intestate or
testamentary succession, with regard to four items: (1) the
order of succession; (2) the amount of successional rights;
(3) the intrinsic validity of the provisions of the will; and (4)
capacity to succeed.
LEX LOCI CELEBRATIONS. Article 17. The forms and solemnities of
contracts, wills, and other public instruments shall be governed by
the laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the Philippines in
a foreign country, the solemnities established by Philippine laws
shall be observed in their execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
Forms and solemnities of public instruments, wills, and
contracts shall be governed by the laws of the country
where they are executed.
Any act or contract made in a foreign country before
diplomatic and consular officials must conform to the
solemnities under Philippine law.
This is so, because the host country where such diplomatic
or consular officials are assigned, by rules of international
law, waives its jurisdiction over the premises of the
diplomatic office of another country located n the said host
country.
Under our law, prohibitive laws concerning persons, their
acts or property, and those which have for their object
public order, public policy and good customs shall not be
rendered ineffective by laws, or judgments promulgated, or
by determinations or conventions agreed upon in a foreign
country.
HUMAN RELATIONS
Article 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
Article 20. Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.
Article 21. Any person who willfully causes loss or injury to another
in manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
Pe et. al. vs. Pe G.R. No. L-17396. 30 May 1962
FACTS: Plaintiffs are parents, brothers and sisters of Lolita
Pe, an unmarried woman 24 years of age. Defendant, a
married man, frequently visited Lolitas house on the
pretext that he wanted her to teach him to pray the rosary.
They fell in love and conducted clandestine trysts. When
the parents learned about this they prohibited defendant
from going to their house. The affair continued just the
same. On April 14, 1957 Lolita disappeared from her
brothers house where she was living. A note in the
handwriting of the defendant was found inside Lolitas
aparador The present action was instituted under Article 21
of the Civil Code. The lower court dismissed the action and
plaintiffs appealed.
ISSUE: Whether or not the defendant committed injury to
Lolitas family in a manner contrary to morals, good
customs and public policy as contemplated in Article 21 of
the New Civil Code
HELD: The circumstances under which defendant tried to
win Lolitas affection cannot lead to any other conclusion
than that it was he who, thru an ingenious scheme or
trickery, seduced the latter to the extent of making her fall
in love with him. Indeed, no other conclusion can be drawn
from this chain of events than that defendant not only
deliberately, but through a clever strategy, succeeded in
winning the affection and love of Lolita to the extent of
having illicit relations with her. The wrong he has caused
her and her family is indeed immeasurable considering the
fact that he is a married man. Verily, he has committed and
injury to Lolitas family in a manner contrary to morals,
good customs and public policy as contemplated in Article
21 of the New Civil Code.
WASSMER vs. VELEZ , G.R. No. L-20089
FACTS: Franciso Velez and Beatriz Wassmer decided to get
married and set September 4, 1954 as the big day. On
September 2, 1954 Velez left a note to her that they have
to postpone their wedding because his mother opposed it.
And on the next day he sent her the following telegram
Nothing changed rest assured returning very soon
apologize mama papa love Paking. Thereafter Velez did not
appear nor was he heard from again, sued by Beatrice for
damages, Velez filed no answer and was declared in default.
The record reveals that on August 23, 1954, plaintiff and
defendant applied for a license to contract marriage, which
was subsequently issued. Invitations were printed and
distributed to relatives, friends and acquaintances. The
bride-to-bes trousseau, party dresses and other apparel for
the important occasion were purchased. Dresses for the
maid of honor and the flower girl were prepared, but two
days before the wedding he never returned and was never
heard from again.
ISSUE: Whether or not breach of promise to marry is an
actionable wrong.
HELD: Mere breach of promise to marry is not an
actionable wrong. But to formally set a wedding and go
through all the preparation and publicity, only to walk out
of it when the matrimony is about to be solemnized, is
quite different. This is palpably and unjustifiably contrary
to good customs for which defendant must be held
answerable in damages in accordance with Article 21 of
the Civil Code.
Article 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground,
shall return the same to him.
Nemo cum alterius detrimento potest No person shall
enrich himself at the expense of another
Prevention of Unjust Enrichment
These is unjust enrichment when a person unjustly retains
a benefit to the loss of another, or when a person retains
money or property of another against the fundamental
principles of justice, equity and good conscience.
In Republic vs. Ballocanog, G.R. No. 163794, where a person
in good faith invested money to develop and grow fruit-
bearing trees on a land which he believed as his own but
which turned out as timberland belonging to the State, the
SC recognized the ownership of the State over the land but
 ordered it to pay the person the value of the actual
improvements he made.
Article 23. Even when an act or event causing damage to another's
property was not due to the fault or negligence of the defendant,
the latter shall be liable for indemnity if through the act or event he
was benefited.
It likewise seeks to prevent unjust enrichment.
for example: Without As knowledge, a flood drives his
cattle to the cultivated highland of B. As cattle are saved,
but Bs crop is destroyed. True, A was not at fault, but he
was benefited. It is but right and equitable that he should
indemnify B.
Article 24. in all contractual, property or other relations, when one
of the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender age or
other handicap, the courts must be vigilant for his protection.
Article 25. Thoughtless extravagance in expenses for pleasure or
display during a period of acute public want or emergency may be
stopped by the order of the courts at the instance of any
government or private charitable institution.
Article 25 specifically provides for the entities which are
given legal standing to seek an injunction: any government
or private charitable institution.
Article 26. Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons. The
following and similar acts, though they may not constitute a criminal
offense, shall produce a cause of action for damages, prevention
and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or
family relations of another;
(3) Intriguing to cause another to be alienated from
his friends;
(4) Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth, physical defect,
or other personal condition.
In RCPI vs. Verchez, G.R. No. 164349, where a family in
Sorsogon sent a telegram to another member of a family in
Manila asking for money for their ailing mother and where
the telegram-company was negligent in failing to send the
telegram on time and in not immediately informing the
family of the reason for the delay, thereby causing filial
disturbance on the part of the family as they blamed each
other for failing to respond immediately to the emergency
involving the mother, the SC awarded damages on the basis
of Article 26 (2) of the Civil Code considering that the act or
omission of the telegraph company disturbed the peace of
mind of the family.
Article 27. Any person suffering material or moral loss because a
public servant or employee refuses or neglects, without just cause,
to perform his official duty may file an action for damages and other
relief against the latter, without prejudice to any disciplinary
administrative action that may be taken.
Any person, suffering from the refusal or neglect of any
government employee or public servant to perform his
duties, is entitled to damages.
Article 28. Unfair competition in agricultural, commercial or
industrial enterprises, or in labor through the use of force,
intimidation, deceit, machination or any other unjust, oppressive or
highhanded method shall give rise to a right of action by the person
who thereby suffers damage.
Article 29. When the accused in a criminal prosecution is acquitted
on the ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission may
be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the
plaintiff to file a bond to answer for damages in case the complaint
should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In the absence of
any declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.
Preponderance of evidence means that, as a whole, the
evidence adduced by one side outweighs that of the
adverse party.
If the guilt of the accused is not proven beyond reasonable
doubt, a civil action to prove the civil liability can still be
filed where only preponderance of evidence is needed.
The fact that guilt was not proven beyond reasonable doubt
must be expressly stated in the criminal decision.
Article 30. When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal proceedings
are instituted during the pendency of the civil case, a preponderance
of evidence shall likewise be sufficient to prove the act complained
of.
Even if the civil obligation arose from the criminal offense,
the required quantum of evidence in a civil suit to claim
such civil obligation is not proof beyond reasonable doubt
but merely preponderance of evidence.
Article 31. When the civil action is based on an obligation not arising
from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and
regardless of the result of the latter.
Article 31 of the Civil Code expressly provides that when the
civil action is based upon an obligation not arising from the
act or omission complained of a felony, such civil action may
proceed independently of the criminal proceedings and
regardless of the result of the latter.
Article 33. In cases of defamation, fraud, and physical injuries a civil
action for damages, entirely separate and distinct from the criminal
action, may be brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution, and shall
require only a preponderance of evidence.
Article 34. When a member of a city or municipal police force
refuses or fails to render aid or protection to any person in case of
danger to life or property, such peace officer shall be primarily liable
for damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Primary liability
Applicable only to a member of city/municipal
police force
Refused/failed to render aid or protection
City/municipality shall be subsidiarily responsible
therefor
Civil action shall be independent of any criminal
proceedings
Article 35. When a person, claiming to be injured by a criminal
offense, charges another with the same, for which no independent
civil action is granted in this Code or any special law, but the justice
of the peace finds no reasonable grounds to believe that a crime has
been committed, or the prosecuting attorney refuses or fails to
institute criminal proceedings, the complainant may bring a civil
action for damages against the alleged offender. Such civil action
may be supported by a preponderance of evidence. Upon the
defendant's motion, the court may require the plaintiff to file a bond
to indemnify the defendant in case the complaint should be found
to be malicious.
If during the pendency of the civil action, an
information should be presented by the prosecuting attorney, the
civil action shall be suspended until the termination of the criminal
proceedings.
Rule 111 of the Rules of Court, Sec. 2. When separate civil
action is suspended. After the criminal action has been
commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered
in the criminal action.
Rule 111 of the Rules of Court, Sec. 3. When civil action may
proceed independently. In cases provided in Articles 32,
33, 34, and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended
 party. It shall proceed independently of the criminal action
and shall require only a preponderance of evidence. In no
case, however, may the offended party recover damages
twice for the same act or omission charged in the criminal
action.
PREJUDICIAL QUESTION
Article 36. Pre-judicial questions, which must be decided before any
criminal prosecution may be instituted or may proceed, shall be
governed by rules of court which the Supreme Court shall
promulgate and which shall not be in conflict with the provisions of
this Code.
The general rule is that where both a civil and a criminal
case arising from the same facts are filed in court, the
criminal case takes precedence.
EXCEPTION. The exception to this general rule is the
existence of a prejudicial question.
Zapanta vs. Montesa, 4 SCRA 410
A prejudicial question is one that arises in a case, the
resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to
another tribunal.
It always involves two cases, CRIMINAL and CIVIL
The criminal case is always suspended because the
resolution of the issue in the civil case will determine the
outcome of the criminal case.
Elements of Prejudicial Question:
The civil action involves an issue similar or
intimately related to the issue raised in the
criminal action.
The resolution of the issue in the criminal case
determines whether or not the criminal action
may proceed.
PAHANG vs. VESTIL, G.R. No. 148595, 7/ 12/2004
FACTS: Petitioners defaulted on the payment of a loan
secured by a mortgage on a real property which was
foreclosed as a consequence.
Petitioners did not redeem the property but instead filed a
case for the annulment of the extrajudicial sale. Meanwhile,
the mortgagee filed an action for the issuance of a writ of
possession.
ISSUE: Is the filing of an action to nullify the extrajudicial
sale a prejudicial question to the petition filed by the
mortgagee for the issuance of the writ of possession?
HELD: No.
RATIO: A complaint for annulment of extrajudicial sale is a
civil action and a petition for the issuance of writ of
possession is but an incident to the land registration
proceeding hence no prejudicial question can arise from the
two actions.
LANDICHO vs. RELOVA, 22 SCRA 731
FACTS: First wife charged husband with BIGAMY.
Thereafter, second wife sued for annulment of marriage
against the same husband on the ground that she was just
intimidated to marry him. Common husband filed third-
party complaint alleging that first wife intimidated him to
marry her.
ISSUE: Does the civil case for annulment of marriage
constitute a prejudicial question to warrant the suspension
of the criminal case?
HELD: No.
RATIO: Prior to the annulment of marriage, the same is still
valid and effective. A party who contracts a subsequent
marriage then assumes the risk of being prosecuted for
bigamy.
ZAPANTA vs. MENDOZA, L-14534, Feb. 28, 1962
If the situation where the accused in the BIGAMY case was
the one who was intimidated or forced by the SECOND
SPOUSE to enter into a bigamous marriage, his consent to
the second marriage would be involuntary and cannot be
the basis of his conviction for bigamy, and in which case, the
civil case for the annulment of the second marriage
constitutes a prejudicial question to warrant the suspension
of the criminal case for bigamy.
PERSONS
PERSON- any being, natural or artificial, capable of possessing legal
rights and obligations
NATURAL PERSON- a human being created by God through the
intervention of the parents
JURIDICAL PERSON- those created by law
Article 37. Juridical capacity, which is the fitness to be the subject of
legal relations, is inherent in every natural person and is lost only
through death. Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost.
Juridical Capacity the fitness to become the subject of
legal relations
Capacity to Act- the power to act with legal effect
Full Civil Capacity = Juridical Capacity + Capacity to Act
Article 38. Minority, insanity or imbecility, the state of being a deaf-
mute, prodigality and civil interdiction are mere restrictions on the
capacity to act, and do not exempt the incapacitated person from
certain obligations, as when the latter arise from his acts or from
property relations, such as easements,
Restrictions on capacity to act
Minority
Insanity or imbecility
Being a deaf-mute
Prodigality
Civil interdiction
Article 39. the following circumstances, among others, modify or
limit capacity to act: age, insanity, imbecility, the state of being a
deaf-mute, penalty, prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes, the Rules of
Court, and in special laws. Capacity to act is not limited on account
of religious belief or political opinion.
A married woman, twenty-one years of age or over,
is qualified for all acts of civil life, except in cases specified by law.
NATURAL PERSONS
Article 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the
following article. (29a)
Civil Personality - is the aptitude of being the subject, active
or passive, of rights and obligations.
The civil personality of the child shall commence from the
time of his conception for all purposes favorable to him,
subject to the requirements of Art. 41 of the Civil Code (Art.
5, of PD 603)
A child already conceived at the time of the death of the
decedent is capable of succeeding, provided that it be born
later under the conditions prescribed in Article 41.
Article 41. For civil purposes, the foetus is considered born if it is
alive at the time it is completely delivered from the mother's womb.
However, if the foetus had an intra-uterine life of less than seven
months, it is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb. (30a)
For purposes of inheritance and succession, Art. 1025 of the
Civil Code provides that a child already conceived at the
time of death of the decedent is capable of succeeding,
provided it be born later under the conditions prescribed in
Art. 41 of the Civil Code
Article 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of
the deceased is determined by law, by contract and by will. (32a)
Death puts an end to civil personality
Article 43. If there is a doubt, as between two or more persons who
are called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove the
same; in the absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights from one to
the other. (33)
Applicable to succession
If both were under age 15, the older is deemed to
have survived
If both were above 60 years old, the younger is
deemed to have survived
If one is under 15 and the other is above 60, the
15 year-old is deemed to have survived.
JURIDICAL PERSONS
Article 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for
public interest or purpose, created by law;
(3) Corporations, partnerships and associations for
private interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (35a)
Article 45. Juridical persons mentioned in Nos. 1 and 2 of the
preceding article are governed by laws creating or recognizing them.
Private corporations are regulated by laws of general
application on the subject.
Partnerships and associations for private interest or
purpose are governed by the provisions of this Code concerning
partnerships. (36 and 37a)
Article 46. Juridical persons may acquire and possess property of all
kinds, as well as incur obligations and bring civil or criminal actions,
in conformity with the laws and regulations of their organization.
(38a)
Article 47. Upon the dissolution of corporations, institutions and
other entities for public interest or purpose mentioned in No. 2 of
Article 44, their property and other assets shall be disposed of in
pursuance of law or the charter creating them. If nothing has been
specified on this point, the property and other assets shall be
applied to similar purposes for the benefit of the region, province,
city or municipality which during the existence of the institution
derived the principal benefits from the same. (39a)
USE OF SURNAMES
Name- the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or
appellation which he bears for the convenience of the world at large
addressing him, or in speaking of or dealing with him.
Characteristics of a name:
Absolute, intended to protect the individual from being
confused with others;
Obligatory in certain respects, for nobody can be without a
name;
Fixed, unchangeable, or immutable, at least at the start,
and maybe changed only for good cause and by judicial
proceedings;
Outside the commerce of man, and therefore inalienable
and intransmissible by act inter vivos or mortis causes; and
Imprescriptible.
Article 364 to 369- surnames of children
Article 370 to 373- surnames of a woman
Article 364. Legitimate and legitimated children shall principally use
the surname of the father.
Article 365. An adopted child shall bear the surname of the adopter.
Section 17, Article 5 of RA No. 8552, otherwise known as
the Domestic Adoption Act of 1998, provides that the
adoptee shall be considered the legitimate son/daughter
of the adopter(s) for all intents and purposes and as such
is entitled to all the rights and obligations provided by law
to legitimate sons/daughters without discrimination of
any kind and, to this end, the adoptee is entitled to love,
guidance, and support in keeping with the means of the
family
Article 366. A natural child acknowledged by both parents shall
principally use the surname of the father.
If recognized by only one of the parents, a natural
child shall employ the surname of the recognizing parent.
Article 367. Natural children by legal fiction shall principally employ
the surname of the father.
Article 368. Illegitimate children referred to in Article 287 shall bear
the surname of the mother.
Illegitimate children shall use the surname of the mother
and shall be under the parental authority of their mother,
and shall be entitled to support and conformity with this
Code.
However, illegitimate children may use the surname of
their father if their filiation has been expressly recognized
by the father through the record of birth appearing in the
civil register, or when an admission in a public document
or private handwritten instrument is made by the father.
The legitime of each illegitimate child shall consist of one-
half of the legitimate child.
Article 369. Children conceived before the decree of annulling a
voidable marriage shall principally use the surname of the father.
A child conceived inside a marriage prior to its annulment is
legitimate.
Article 370. A married woman may use:
(1) Her maiden first name and surname and add her
husbands surname, or
(2) Her maiden first name and her husbands
surname, or
(3) Her husbands full name but prefexing a word
indicating that she is his wife, such as Mrs.
Article 370 is directory and permissive in character because
when a woman gets married, she does not change her name
but only her civil status.
A validly married woman has actually four alternatives in
the use of a name:
her maiden first name and surname and add her
husbands surname;
her maiden first name and her husbands
surname;
Her husbands full name but prefexing a word
indicating that she is his wife, such as Mrs.; and
Maintain her name and surname.
Article 371. In case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name and surname. If she
is the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her
former husbands surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to
another person.
Example: If Maria Clara-De la Cruzs marriage to Juan De la
Cruz is annulled and if said wife is the guilty party, she
should resume using Maria Clara. If she is the innocent
spouse, she may use Maria Clara or Maria Clara De la Cruz
depending upon her choice unless the court decrees
otherwise or she marries Sam America in which case she
will follow the rule under Art. 370 in connection with her
being married to Sam America.
Article 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation.
In legal separation the bond of marriage is not severed. The
husband and wife are only separated from bed and board.
Article 373. A widow may use the deceased husbands surname as
though he were still living, in accordance with Article 370.
Article 374. In case of identity of names and surnames, the younger
person shall be obliged to use such additional name or surname as
will avoid confusion.
 Thus, if parents would want to name their son after his
godfather who is not related to them, the said son must use
an additional name or surname.
Hence, if the name of the godfather is Juan de la Cruz, the
godson must use an additional name such as Juan Pedro de
la Cruz.
Article 375. In case of identity of names and surnames between
ascendants and descendants, the word Junior can be used only by
a son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mothers surname, or
(2) Add the Roman numerals II, III, and so on.
Hence, the son of Juan de la Cruz who has the same name
shall use Juan de la Cruz, Junior.
Any other direct descendant other than a son could either
add a middle name or the mothers surname, or add the
Roman numerals II, III, and so on.
Article 376. No person can change his name or surname without
judicial authority.
RA No. 9048 as amended by RA No. 10172 An act
authorizing the city or municipal civil registrar or the consul
general to correct a clerical or typographical error in an
entry and/or change of first name or nickname in the civil
register without need of judicial order
City/municipal civil registrar can correct the following
entries even without judicial order:
Clerical and typographical errors and change of first
name or nickname;
Day and month in the date of birth;
Sex of a person where it is patently clear that there
was a clerical or typographical error or mistake in
the entry.
Any person having direct and personal interest in the
correction of a clerical/typographical error may file, in
person, a verified petition.
In case the petitioner has already migrated to another place
in the country and it would not be practical for such party,
in terms of transportation expenses, time and effort to
appear in person before the local civil registrar keeping the
documents to be corrected, the petition may be filed, in
person, with the local civil registrar of the place where the
interested party is presently residing or domiciled.
Citizens of the Philippines presently residing or domiciled in
foreign countries may file their petition, in person, with the
nearest Philippine Consulates.
All petitions may be availed for only once.
Sec. 4. Grounds for change of first name or nickname.
The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
The new first name or nickname has been
habitually and continuously used by the petitioner
and he has been publicly known by the first names
or nicknames in the community; or
The change will avoid confusion.
A change of name is a privilege and not a matter of right, so
that before a person can be authorized to change his or her
given name in his/her certificate/civil registry, he/she must
show proper or reasonable cause or any compelling reason
which may justify such change.
A change of surname is however, a matter of judicial
discretion which must be exercised in the light of the
reasons adduced and the consequences that will likely
follow.
Reasonable causes or compelling reasons for change of
surname:
A ridiculous name, a name tainted with dishonor,
or a name extremely difficult to write or
pronounce;
A change of civil status;
A need to avoid confusion.
A change of name does not alter family relations, rights or
duties, legal capacity, civil status or citizenship.
Article 377. Usurpation of a name and surname may be the subject
of an action for damages and other relief.
Article 378. The unauthorized or unlawful use of another persons
surname gives a right of action to the latter.
Article 379. The employment of pen names or stage names is
permitted, provided it is done in good faith and there is no injury to
third persons. Pen names and stage names cannot be usurped.
Article 380. Except as provided in the preceding article, no person
shall use different names and surnames.
ABSENCE
Provisional Measures in case of Absence
Article 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an interested
party, a relative, or a friend, may appoint a person to represent him
in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has expired.
(181a)
Article 382. The appointment referred to in the preceding article
having been made, the judge shall take the necessary measure to
safeguard the rights and interests of the absentee and shall specify
the powers, obligations and remuneration of his representative,
regulating them, according to the circumstances, by the rules
concerning guardians. (182)
Article 383. In the appointment of a representative, the spouse
present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present
is a minor, any competent person may be appointed by the court.
(183a)
It is necessary that the appointment of a representative of
an absentee be made by way of a court order, and it must
be noted that a spouse must likewise file an application for
appointment with the courts with respect of his or her very
own absent spouse.
If there is no legal separation, the spouse present shall be
preferred.
Declaration of Absence
Article 384. Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years in case
the absentee has left a person in charge of the administration of his
property, his absence may be declared.
Article 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an
authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee
some right subordinated to the condition of his death. (185)
Article 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general
circulation. (186a)
A judicial declaration of absence is necessary for interested
persons to be able to protect their rights, interests and
benefits in connection with the person who disappeared.
Administration of the Property of the Absentee
Article 387. An administrator of the absentees property shall be
appointed in accordance with Article 383. (187a)
Article 388. The wife who is appointed as an administratrix of the
husbands property cannot alienate or encumber the husbands
property, or that of the conjugal partnership, without judicial
authority. (188a)
While art. 388 refers only to the wife, a husband is likewise
prohibited from alienating the properties of the wife
without her consent.
 Any of the spouses cannot alienate the properties of the
other spouse without the consent of the latter.
Article 389. The administration shall cease in any of the following
cases:
(1) When the absentee appears personally or by means of an
agent;
(2) When the death of the absentee is proved and his testate
or intestate heirs appear;
(3) When a third person appears, showing by a proper
document that he has acquired the absentees property by purchase
or other title;
In these cases, the administrator shall cease in the
performance of his office, and the property shall be at the disposal
of those who may have a right thereto. (190)
If the owner appears, the very reason for the
administrators appointment ceases.
Upon the death of a person, the executor mentioned in
his/her will shall usually be appointed as the administrator
of his/her estate in accordance with the said decedents
wishes which must be pursuant to law.
If he/she dies without a will, intestate proceedings will be
instituted where a new administrator of his/her estate shall
be appointed.
An administrator has no right to administer property which
does not belong to the owner.
Presumption of Death
Article 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead
for all purposes, except those of succession.
The absentee shall not be presumed dead for the purpose
of opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
(n)
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years
since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.
Article 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the condition in
which it may be found, and the price of any property that may have
been alienated or the property acquired therewith; but he cannot
claim either fruits or rents. (194)
The word absence in the rule that a presumption of death is
raised by the absence of a person from his domicile when
unheard of for seven years, means that a person is not at the
place of his domicile and his actual residence is unknown, and
it is for this reason that his existence is doubtful, and that,
after seven years of such absence, his death is presumed.
Except for purposes of remarriage under Article 41 of the
Family Code, there is no need for filing a case to declare that
one is presumptively dead. (No judicial declaration needed for
purposes other than remarriage)
Period:
Remarriage (under Art. 41 of Family Code) four
consecutive years is enough for a person to be
judicially declared presumptively dead
For other purposes, except opening of
succession seven years
Opening of succession ten years
For all purposes including succession and the
person disappeared at the age of seventy-five-
five years
if disappearance occurred under dangerous
circumstances (Art. 391)- four years for all
purposes except remarriage
if disappearance occurred under dangerous
circumstances (Art. 391)- for remarriage, judicial
declaration is needed and the period is shortened
to two years.
In these cases, the person shall be presumed dead at the end
of the seven-year period.
Effect of Absence Upon the Contingent Rights of the Absentee
Article 393. Whoever claims a right pertaining to a person
whose existence is not recognized must prove that he was
living at the time his existence was necessary in order to
acquire said right. (195)
Example: If A validly made a donation of a house to X
to be given on January 5, 1990 and likewise promised
to give another donation of a specific car also to X in
the event that X would still be alive by January 2, 1991
and if, December 25, 1990, X was nowhere to be found
and therefore was consequently declared dead, the
heirs of X can claim that the car already belongs to X
after January 2, 1991 by providing that X was alive on
January 2, 1991.
If a person is known to be dead and there is a
controversy as to the validity of a transaction or
contract allegedly entered into by him, the person
claiming the validity of the transaction, contract or
obligation must prove that, at the time it was entered
into, the person who entered the contract or incurred
the obligation was alive.
Article 394. Without prejudice to the provisions of the preceding
article, upon the opening of a succession to which an absentee is
called, his share shall accrue to his co-heirs, unless he has heirs,
assigns, or a representative. They shall all, as the case may be, make
an inventory of the property. (196a)
The disposition of the inheritance of an absentee shall benefit
either his/her co-heirs or his/her own heirs, assigns or
representatives.
Example: A and B are brothers. They are the only heirs of their
father. A has been judicially declared an absentee. Thereafter,
their father died without a last will and testament leaving a
net estate valued at P100,000. If A were not an absentee, he
will inherit P50,000 while B will likewise inherit P50,000.
Considering, however, that A is an absentee, his P50,000 shall
accrue to B who will therefore inherit the whole estate.
However, if A has children who are therefore his heirs, the said
children shall inherit the P50,000 which was supposed to go
to A. the children will inherit by their right of representation.
Article 395. The provisions of the preceding article are understood
to be without prejudice to the action and petition for inheritance or
other rights which are vested in the absentee, his representatives or
successors in interest. This right shall not be extinguished save by
lapse of time fixed for prescription. In the record that is made in the
Registry of the real estate which accrues to the co-heirs, the
circumstance of its being subject to the provisions of this article shall
be stated. (197)
In the event that the property supposed to be inherited by the
absentee accrues to the co-heirs, the title or record of the said
property in the proper registry of property shall have an
annotation stating that, within the prescriptive period
provided by law, the property can be subject to the claim of
any person having an interest in the said property especially
the absentee, or his or her representative or successors.
If absentee reappears, he/she has the right to file a petition to
be able to get his/her rightful inheritance from said co-heirs.
Petition must be filed within the prescriptive period provided
by law.
Article 396. Those who may have entered upon the inheritance shall
appropriate the fruits received in good faith so long as the absentee
does not appear, or while his representatives or successors do not
bring the proper actions. (198)
However, if such absentee appears or his or her
representatives or successors already filed a claim in court,
those who may have entered upon the inheritance cannot
anymore make such appropriation.
CIVIL REGISTRY
Article 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register. (325a)
Duties of the CR:
File registerable certificates and documents
presented to them for entry;
Compile the same monthly and prepare and send
any information required of them by the Civil
Registrar general;
Issue certified transcripts or copies of any
certificate or document registered, upon
payment of the proper fees;
Order the binding, properly classified, of all
certificates or documents registered during the
year;
Send to the Civil Registrar-General during the first
ten days of each month, a copy of the entries
made during the preceding month, for filing;
Index the same to facilitate search and
identification in case any information is required;
and
Administer oaths, free of charge, for civil register
purposes
Article 408. The following shall be entered in the civil register:
(1) Births;
(2) Marriages
(3) Deaths;
(4) Legal separations;
(5) Annulment of marriages;
(6) Judgments declaring marriages void from the beginning;
(7) Legitimations;
(8) Adoptions;
(9) Acknowledgments of natural children;
(10) Naturalization;
(11) Loss; or
(12) Recovery of citizenship;
(13) Civil interdiction;
(14) Judicial determination of filiation;
(15) Voluntary emancipation of a minor; and
(16) Changes of name. (326a)
Article 409. In cases of legal separation, adoption, naturalization,
and other judicial orders mentioned in the preceding article, it shall
be the duty of the clerk of court which issued the decree to ascertain
whether the same has been registered, and if this has not been
done, to send a copy of said decree to the civil registry of the city or
municipality where the court is functioning.
Article 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be
prima facie evidence of the facts therein contained.
The local civil registrar shall not under any circumstances
permit any document entrusted to his care to be removed
from his office, except by order of a court, in which case the
proper receipt shall be taken.
Prima facie evidence- such proofs which, if remaining
unrebutted of uncontradicted, is sufficient to maintain the
fact such evidence seeks to substantiate.
Article 411. Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person
suffering damage thereby. However, the civil register may exempt
himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration.
Article 412. No entry in a civil register shall be changed or corrected,
without judicial order.
Except for clerical or typographical errors or change in the
name or nickname of a person, a change in the entries in the
civil register must always pass through a judicial proceeding.
Clerical error- one made in copying or writing
Proceeding must be judicial and should be adversarial if the
changes involve substantial or controversial matters such as
those which involve a persons civil status, nationality or
citizenship, and filiation of the offspring of parents.
Article 413. All other matters pertaining to the registration of civil
status shall be governed by special laws.
FUNERALS
Article 305. The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the order
established for support, under Article 294. In case of descendants of
the same degree, or of brothers and sisters, the oldest shall be
preferred. In case of ascendants, the paternal shall have a better
right.
Devolution of duty for arrangements:
Spouse; in case of his/her absence or incapacity
Descendants of nearest degree; in the absence of
which
Ascendants in the nearest degree; and finally, in
the absence of all said persons
Brothers and sisters.
In case of descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred.
In case of ascendants, the paternal shall have a better right.
Article 306. Every funeral shall be in keeping with the social position
of the deceased.
Article 307. The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his
religious beliefs or affiliation hall determine the funeral rites. In case
of doubt, the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same, after consulting
the other members of the family.
The wishes of the deceased shall be mainly followed because
this is part of the respect that should be accorded to the dead.
In the absence of such expressions, his or her religious beliefs
or affiliation shall determine the funeral rites because
religious beliefs cater to the spiritual and, more often than
not, the deceaseds concept of death is greatly influenced by
his or her religious background.
In case of doubt, the form of the funeral shall be decided upon
by the person obliged to make arrangements for the same,
after consulting the other members of the family.
Every funeral shall be in keeping with the social position of the
deceased.
Article 308. No human remains shall be retained, interred, disposed
of or exhumed without the consent of the persons mentioned in
Articles 294 and 305.
Article 309. Any person who allows disrespect to the dead, or
wrongfully interferes with a funeral shall be liable to the family of
the deceased for damages, material and moral.
Damages can be sought against those who allow disrespect to
the dead, or wrongfully interfere with a funeral.
Article 310. The construction of a tombstone or mausoleum shall be
deemed a part of the funeral expenses, and shall be chargeable to
the conjugal partnership property, if the deceased is one of the
spouses.
If the deceased is married, the law clearly provides that the
tombstone or mausoleum shall be deemed a part of the
funeral expenses and shall be chargeable to the conjugal
partnership property.
THE FAMILY CODE OF THE PHILIPPINES
Executive Order No. 209, otherwise known as the Family
Code of the Philippines
Took effect on August 3, 1988
Implements the following provisions of the Constitution:
Section 12 Art. II. The State recognizes the sanctity of
family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of
the unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral
character shall receive the support of the Government.
 Section 14 Art. II. The State recognizes the role of
women in nation-building, and shall ensure the
fundamental equality before the law of women and
men.
Art. 15- Section 1. The State recognizes the Filipino
family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its
total development.
Section 2. Marriage, as an inviolable social institution,
is the foundation of the family and shall be protected
by the State.
Art. 1. Marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property
relations during the marriage within the limits provided by this
Code.
Art. 1 improves on the definition of marriage in Art. 52 of the
NCC by stating that:
Marriage is:
A special contract;
A permanent union;
A union between a man and a woman;
Entered into in accordance with law and
For the purpose of establishing conjugal and
family life
ASPECTS OF MARRIAGE
As a contract
As a status
As a contract, marriage is special because:
Only a man and a woman can enter into it;
It is a permanent contract and may be dissolved
only by death or annulment or declaration of
nullity;
The rights, duties, obligations and other
incidents cannot be stipulated save on property
relations
Breach of contract of marriage is criminally and
civilly dealt with unlike in ordinary contract.
Once a valid contract of marriage exists, the STATUS of
being married is created.
As a status:
It is no longer just a contract but an inviolable
social institution that becomes the foundation of
the family.
Being an institution of public order and policy, its
nature, consequences and incidents are governed
bylaw and not subject of stipulations; and
It carries with it implications in 2 fields:
a. The realm of personal rights and obligations of
spouses; and
b. The realm of property relations
Art. 2. No marriage shall be valid, unless these essential requisites
are present:
(1) Legal capacity of the contracting parties who must be
a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)
Consent freely given is that which is given by the parties and
not by their parents.
The personal appearance by the party before the
solemnizing officer is required so that each may have the
opportunity to inform the former of any vice of consent to
warrant the suspension or stoppage of the marriage
ceremony.
The capacity of a foreigner to get married in the Philippines
is governed by his national law.
Hence, if he applies for a marriage license to be able to get
married in the Philippines, he is required to present a
certificate of legal capacity to contract marriage from the
embassy or consular office of his country in the national law
of said foreigner and whether he has capacity to marry
under said law.
A divorced foreigner can be issued a marriage license to
marry again in the Philippines provided he can present the
certificate above mentioned, which means that his divorce
is recognized by his own country.
If the foreigner is stateless or a refugee from another
country, so that there is no embassy or consular office from
the which he can get the above-mentioned certificate, it is
enough that he executes and affidavit stating the
circumstances showing his capacity to contract marriage.
TENEBRO vs. CA G.R. No. 150758, February 18, 2004
FACTS: Tenebro contracted marriage with Ancajas in 1990.
The two lived together continuously and without
interruption until the latter part of 1991, when Tenebro
informed Ancajas that he had been previously married to a
certain Hilda Villareyes in 1986. Petitioner thereafter left
the conjugal dwelling which he shared with Ancajas, stating
that he was going to cohabit with Villareyes. In 1993,
petitioner contracted yet another marriage with a certain
Nilda Villegas. Ancajas thereafter filed a complaint for
bigamy against petitioner. Villegas countered that his
marriage with Villareyes cannot be proven as a fact there
being no record of such. He further argued that his second
marriage, with Ancajas, has been declared void ab initio due
to psychological incapacity. Hence he cannot be charged for
bigamy.
ISSUE: Whether or not Tenebro is guilty of bigamy.
HELD: Yes
RATIO: The second or subsequent marriage contracted
during the subsistence of petitioners valid marriage to
Villareyes, petitioners marriage to Ancajas would be null
and void ab initio completely regardless of petitioners
psychological capacity or incapacity.
Since a marriage contracted during the subsistence of a
valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the
avoidance of criminal liability for bigamy.
A plain reading of the law, therefore, would indicate that
the provision penalizes the mere act of contracting a
second or a subsequent marriage during the subsistence of
a valid marriage.
MORIGO vs. PEOPLE OF THE PHILIPPINES G.R. No.
145226, February 6, 2004
FACTS: Lucio Morigo and Lucia Barrete were boardmates in
Bohol. They lost contacts for a while but after receiving a
card from Barrete and various exchanges of letters, they
became sweethearts. They got married in 1990. Barrete
went back to Canada for work and in 1991 she filed petition
for divorce in Ontario Canada, which was granted. In 1992,
Morigo married Lumbago. He subsequently filed a
complaint for judicial declaration of nullity on the ground
that there was no marriage ceremony. Morigo was then
charged with bigamy and moved for a suspension of
arraignment since the civil case pending posed a prejudicial
question in the bigamy case. Morigo pleaded not guilty
claiming that his marriage with Barrete was void ab
initio. Petitioner contented he contracted second marriage
in good faith.
ISSUE: Whether Morigo must have filed declaration for the
nullity of his marriage with Barrete before his second
marriage in order to be free from the bigamy case.
HELD: No need.
RATIO: Morigos marriage with Barrete is void ab initio
considering that there was no actual marriage ceremony
performed between them by a solemnizing officer instead
they just merely signed a marriage contract. The petitioner
does not need to file declaration of the nullity of his
marriage when he contracted his second marriage with
Lumbago. Hence, he did not commit bigamy and is
acquitted in the case filed.
 MALLION vs. ALCANTARA G.R. No. 141528, October 31,
2006
FACTS: Oscar Mallion filed a petition with the Regional Trial
Court seeking a declaration of nullity of his marriage with
Editha Alcantara due to psychological incapacity. The RTC
denied the petition. As the decision attained finality,
Mallion filed another petition for a declaration of nullity of
marriage, this time alleging that his marriage was null and
void due to the fact that it was celebrated without a valid
marriage license.
ISSUE: Does a previous final judgment denying a petition for
declaration of nullity on the ground of psychological
incapacity bar a subsequent petition for declaration of
nullity on the ground of lack of marriage license?
Held: Mallion is simply invoking different grounds for the
same cause of action which is the nullity of marriage.
When the second case was filed based on another ground,
there is a splitting of a cause of action which is prohibited.
He is estopped from asserting that the first marriage had
no marriage license because in the first case he impliedly
admitted the same when he did not question the absence
of a marriage license.
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided
for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the solemnizing
officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witnesses of
legal age. (53a, 55a)
Art. 4. The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35 (2).
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.
An irregularity in the formal 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)
Examples of Void marriages for absence of essential
requisites: LEGAL CAPACITY
Marriage between minors;
Marriage between a person of age and another
who is a minor;
Same sex marriages;
Marriage between persons who have legal
impediment to get married under Articles 37 and
38 of the Family Code
Examples of Void marriages for absence of essential
requisites: LACK OF CONSENT by the PARTIES
Marriage in jest; and
Marriage in movies or in a play
Examples of Void marriages for absence of formal
requisites: ABSENCE OF AUTHORITY OF SOLEMNIZING
OFFICER
Solemnized by a retired judge;
Solemnized by a judge or a mayor out of
jurisdiction;
Solemnized by a pretender;
Solemnized by a religious leader who has no
authority pursuant to Art. 7(2) of the Family Code
However, under Art. 35(2), marriage is still valid even if
solemnized by a person not legally authorized to solemnize
marriages, if either or both parties believed in good faith
that the solemnizing officer had the authority to do so.
VOID FOR ABSENCE OF VALID MARRIAGE LICENSE
Without a license except under Articles 27 to 34
of the Family Code;
With an expired license; and
Certification by the LCR that no license on record
is found (REP. vs. CA, 236 SCRA 257)
VOID FOR ABSENCE OF MARRIAGE CEREMONY
common-law marriages
marriage by proxy, where one or both parties are
represented by other persons
What is a secret marriage?
There is no such thing. It is a legally non-existent phrase that
applies to a civil marriage celebrated without the
knowledge of the friends and/or relatives of the spouses
(Republic vs. CA and Castro, 236 SCRA 257).
Effect of a Defect in any of the Essential Requisites of
Marriage e.g.
Getting married without parental consent when
parties are between 18-21 years old and they
have no parental consent
A defect in the consent of either party, meaning it
was obtained with vice of consent as provided
under Articles 45 and 46 of the Family Code
A defect in any of the essential requisites makes the
marriage voidable, that is, valid until annulled.
Irregularity in any formal requisite DOES NOT affect the
validity of the marriage, but the party responsible for the
irregularity are CIVILLY, CRIMINALLY and
ADMINISTRATIVELY liable.
Examples of Irregularity in the formal requisites
Marriage license not applied for in the place
specified under Art. 9
Marriage license signed by a person other than
the civil registrar even when authorized by him
when the person so signing was not authorized,
marriage is void for lack of marriage license
Issuance of the marriage license sans compliance
with the 10-day posting requirement
Lack of declaration by the parties before the
solemnizing officer that they take each other as
husband and wife;
Lack of parental advice required under Article 15
of the Family Code; and
Absence of witnesses to the marriage
Art. 5. Any male or female of the age of eighteen years or upwards
not under any of the impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)
Art. 6. No prescribed form or religious rite for the solemnization of
the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which shall
be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the
point of death is unable to sign the 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 solemnizing officer.
(55a)
In this article, only the appearance of the parties is required
before the solemnizing officer, absence of which renders
the marriage void.
The absence of the witnesses, or failure to declare by the
parties before the solemnizing officer that they take each
other as husband and wife or the absence of marriage
contract will not render the marriage void.
Art. 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)
Judges and justices have authority to solemnize marriage in
areas within the jurisdiction of their courts
Priests, rabbis and ministers are authorized to solemnize
marriages if they are:
a. duly authorized by their church or sect;
b. duly registered with the Office of the Registrar
General
The priest, rabbi or minister has the duty to show his
authority to the parties if so requested by them
This article amends Art. 92 of the Civil Code which requires
registration with the director of the proper government
office (Bureau of Public Libraries)
At least one of the contracting parties must be a member of
the church or sect of the solemnizing officer
Ship captains or airplane chiefs can solemnize marriage
between passengers or crew members only in articulo
mortis.
May be solemnized even in ports or stopovers
Only the captain of the ship or the chief pilot of the plane is
authorized under this article.
The military commander must be a commissioned officer of
the unit.
The military unit must be a battalion.
He can solemnize marriage in articulo mortis in a zone of
military operation whether the parties are civilians or
members of the armed forces and only in the absence of a
military chaplain.
Consuls general, consuls and vice-consuls can solemnize
marriages under Art. 10 of the Family Code but not when
they are on home assignment in the Phils.
Mayors can solemnize marriages within their respective
jurisdictions per Secs. 444 and 445 of the LGC
NAVARRO vs. JUDGE HERNANDO C. DOMAGTOY, A.M.
No. MTJ-96-1088 July 19, 1996
FACTS: Complainant Mayor Rodolfo Navarro of Dapa,
Surigao del Norte filed this case to the Supreme Court
against respondent Judge Hernando Domagtoy of MCTC of
Monica-Burgos, Surigao del Norte, for gross misconduct as
well as inefficiency and ignorance of the law. First, on Sept.
24, 1994, Judge Domagtoy solemnized the marriage of
Gaspar Tagadan and Arlyn Borja despite his knowledge that
Tagadan was merely separated from his wife.
Second, he performed a marriage ceremony between
Floriano Sumaylo and Gemma del Rosarioin October 1994
at respondent judges residence in Dapa, SDN. As to the
first, Domagtoy contended that he merely relied on the
affidavit issued by the RTC Judge of Bassey, Samar, which
stated that Tagadan and his wife have not seen each other
for almost seven years. However, the certified true copy of
the marriage contract between Tagadan and Borja showed
that his civil status was separated.
ISSUES: 1) Whether or not a court may solemnize another
marriage of a husband who was merely separated from his
wife for almost seven years.
2) Whether or not a Judge may solemnize a marriage at his
residence.
HELD: (1) Article 41 of the Family Code expressly provides
that a marriage contracted by any person during the
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 had a well-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 i
n the Code for the declaration of presumptive
death. Absent this judicial declaration, he remains to
be married to Pearanda. Wittingly or unwittingly, it
was manifest error on the part of respondent judge to have
accepted the joint affidavit submitted by Tagadan. Such
neglect or ignorance of the law has resulted in a bigamous
and therefore void marriage. 2) Art. 7. A marriage may be
solemnized by (1) any incumbent member of the judiciary
within the courts jurisdiction xxx. Article 8, however,
states that marriages shall be solemnized publicly in the
chambers of the judge or in open court, in the church,
chapel or temple, or in the office of the consul-general,
consul or vice consul, as the case may be, and not
elsewhere, except in cases of marriages contracted on the
point of death or in remote places in accordance with Art.
29 of the Family Code, or where both parties in which case
the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.
There is no pretense that either Sumaylo or del Rosario was
at the point of death or in a remote place. Moreover, the
written request presented addressed to the respondent
judge is the authority of the solemnizing officer. Under
Art. 8, which is only a discretionary provision, refers only to
the venue of the marriage ceremony and does not alter or
qualify the authority of the solemnizing officer as provided
in the preceding provision.
Non-compliance herewith will not invalidate the marriage.
Judges who are appointed to specific jurisdiction may
officiate in marriages only within said areas and not
beyond. Where a judge solemnizes a marriage outside his
courts jurisdiction, there is a resultant irregularity in the
formal requisite laid down in Article 3 which while it may
not affect the validity of the marriage, may subject the
officiating official to administrative liability.
Judge Domagtoy was suspended for six months for
demonstrating gross ignorance of the law.
ARAES vs. JUDGE SALVADOR M. OCCIANO A.M. No. MTJ-
02-1390 April 11, 2002
FACTS: Mercedita Araes filed charges against Judge
Salvador Occiano of the Municipal Circuit Trial Court of
Batalan, Camarines Sur with Gross Ignorance of Law.
Occiano solemnized Araes marriage without the requisite
marriage license in latters house which is outside judges
jurisdiction. Araes was not able to claim her right to inherit
his deceased husbands property and she was deprived of
receiving her husbands pension.
Occiano avers that the ceremony took place in Araes
house because the groom had a difficulty walking & he
couldnt stand traveling. Judge was aware that there was no
marriage license but due to the pleas of the couple and
everything was prepared already and the visitors were
there, he agreed to solemnize the marriage. He reminded
them that marriage wont be valid without the license. They
promised to give it within the day but they never did.
Araes desisted but Court still decided the case.
ISSUE: Whether or not the marriage is valid.
HELD: No. Judge fined P5,000.00.
RATIO: 1. Judges can only solemnize marriage within their
territorial jurisdiction. 2. Marriage license is a requisite for
marriage and without it, marriage is void. It is the marriage
license that gives the solemnizing officer the authority to
solemnize a marriage. And since there was no license,
Occiano didnt have the authority to officiate the ceremony.
Article 8. The marriage shall be solemnized publicly in the chambers
of the judge or in open court, in the church, chapel or temple, or in
the office the consul-general, consul or vice-consul, as the case may
be, and not elsewhere, except in cases of marriages contracted on
the point of death or in remote places in accordance with Article 29
of this Code, or where both of the parties request the solemnizing
officer in writing in which case the marriage may be solemnized at a
house or place designated by them in a sworn statement to that
effect. (57a)
(1) This provision is only directory, not mandatory, so that
non-compliance therewith will not invalidate the marriage.
(2). Can the marriage be solemnized by a judge on a Sunday,
which is not an office day? No, according to Gabriel V.
Gabriel, CA., 56 O.G. 3555.
(3) The requirement of public solemnization of the marriage
in this article is based on the premise that the more people
witness the marriage, more people can notify the
solemnizing officer if they know of any impediments to said
marriage.
Art. 9. 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 (58a)
This provision is useful in small communities where the
people know one another, because the names of the
applicants for marriage license are posted by the local civil
registrar under Art. 17, and anyone who knows of an
impediment to an intended marriage may inform him about
it.
A violation of this provision will not, however invalidate the
marriage license, but the party who falsified his or her
application for marriage license by stating that he or she is
a resident of the place where the license was applied for, is
criminally liable.
The solemnizing officer is not required to investigate
whether or not the license was issued in the place required
by law (People v. Jansen, 54 Phil. 176).
Art. 10. Marriages between Filipino citizens abroad may be
solemnized by a consul-general, consul or vice-consul of the
Republic of the Philippines. The issuance of the marriage license and
the duties of the local civil registrar and of the solemnizing officer
with regard to the celebration of marriage shall be performed by
said consular official. (75a)
In these marriages, a marriage license is still required, to be
issued by the consular official who will solemnize the
marriage.
The marriage must be between Filipino citizens abroad; if
one of the parties is a foreigner, this article cannot apply.
By Filipino citizens abroad may mean Filipinos
permanently residing abroad or who are mere transients or
vacationists there.
Art. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with
the proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian
or person having charge, in case the contracting party has neither
father nor mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be
required to exhibit their residence certificates in any formality in
connection with the securing of the marriage license. (59a)
The application for marriage license is required to be under
oath so that the applicants would tell the truth in their
applications. If they lie regarding any detail therein, they
will be committing perjury.
The oath to the application shall be administered by the
local civil registrar with whom the application for license is
filed.
The two parties to the intended marriage are required to
file separate or individual sworn applications because the
data that they will state under oath are different.
Even if the parties falsify the information given in their
marriage application, such as their age, civil, status, absence
of relationship with each other, etc., the marriage license
will still be valid if issued by the local civil registrar of the
place where the application is filed, but the party who gave
wrong information would be civilly, criminally, and
administratively liable.
If the local civil registrar, knowing the falsity of the
information in the applications, still issues the license, he
shall be civilly, criminally, and administratively liable, but a
marriage solemnized pursuant to said license will still be
valid.
Art. 12. The local civil registrar, upon receiving such application,
shall require the presentation of the original birth certificates or, in
default thereof, the baptismal certificates of the contracting parties
or copies of such documents duly attested by the persons having
custody of the originals. These certificates or certified copies of the
documents by this Article need not be sworn to and shall be exempt
from the documentary stamp tax. The signature and official title of
the person issuing the certificate shall be sufficient proof of its
authenticity.
If either of the contracting parties is unable to produce his
birth or baptismal certificate or a certified copy of either because of
the destruction or loss of the original or if it is shown by an affidavit
of such party or of any other person that such birth or baptismal
certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish in lieu
thereof his current residence certificate or an instrument drawn up
and sworn to before the local civil registrar concerned or any public
official authorized to administer oaths. Such instrument shall
contain the sworn declaration of two witnesses of lawful age,
setting forth the full name, residence and citizenship of such
contracting party and of his or her parents, if known, and the place
and date of birth of such party. The nearest of kin of the contracting
parties shall be preferred as witnesses, or, in their default, persons
of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not
be required if the parents of the contracting parties appear
personally before the local civil registrar concerned and swear to the
correctness of the lawful age of said parties, as stated in the
application, or when the local civil registrar shall, by merely looking
at the applicants upon their personally appearing before him, be
convinced that either or both of them have the required age. (60a)
The best proof of ones age is his birth certificate or, if the
same is not available, his baptismal certificate.
If the foregoing documents cannot be presented, the
applicant may just present his current residence certificate
or the affidavit of two witnesses.
The parents of the parties may just accompany them to the
office of the local civil registrar and certify to their ages.
Makuha ka sa tingin! The local civil registrar may, however,
be satisfied as to the ages of the parties in proper cases by
just looking at them.
Art. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the
birth or baptismal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial decree
of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage.
 In case the death certificate cannot be secured, the party
shall make an affidavit setting forth this circumstance and his or her
actual civil status and the name and date of death of the deceased
spouse. (61a)
If the death certificate of ones deceased spouse cannot be
presented, an affidavit executed by the applicant as to the
facts of the death of his or her spouse would do.
If the applicant has had a marriage that had been annulled
or declared null and void, or he has been divorce under the
old law.
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
application. (61a)
If a marriage is solemnized without the parental consent
required in this article, the marriage is voidable.
Parental consent is required if the woman or a man is 18
and above but below 21 years of age.
If the applicant had already been previously emancipated
by a previous marriage, although still below 21 years of age,
he or she does not need parental consent.
The parental consent may be in the form of a sworn
statement acknowledged in the presence of two witnesses
before any official authorized of two oaths, or the parents
or guardian may appear personally before the local civil
registrar and accomplish the written consent before him.
The parental consent must be for the child to marry a
specific person; it cannot be consent to marry anyone.
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)
This Article amends Art. 62 of the Civil Code by requiring
parental advice if the parties are 21 and above but below
25 years of age. The Family Code has made the requirement
uniform for both parties. Under the Civil Code, the
requirement of parental advice applies to a male who is 20
and above but below 25, and a female who is 18 and above
but below 23.
The Family Code committee has decided to retain the
requirement of parental advice in keeping with Philippine
tradition of honoring ones parents (filial respect) by
seeking their guidance or informing them about his or her
intended marriage.
The lack of parental advice or an unfavorable parental
advice does not bar the marriage from taking place, but the
requirement is a vehicle to induce further and more mature
reflection by the induce further and more mature reflection
by the 3- month period that they are required to wait
before they are issued a license.
If the parties get married without a license, their marriage
is void. If, however, they were able to get a license without
required parental advice. The marriage is still valid, but they
will be liable criminally and civilly for falsifying their
application for marriage license.
Art. 16. In the cases where parental consent or parental advice is
needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued by
a priest, imam or minister authorized to solemnize marriage under
Article 7 of this Code or a marriage counselor duly accredited by the
proper government agency to the effect that the contracting parties
have undergone marriage counseling. Failure to attach said
certificates of marriage counseling shall suspend the issuance of the
marriage license for a period of three months from the completion
of the publication of the application. Issuance of the marriage
license within the prohibited period shall subject the issuing officer
to administrative sanctions but shall not affect the validity of the
marriage.
Should only one of the contracting parties need parental
consent or parental advice, the other party must be present at the
counseling referred to in the preceding paragraph. (n)
Marriage counseling is a new requirement for the issuance
of a marriage license under the Family Code in cases where
the parties need parental consent or parental advice (i.e.,
they are 18 and above but below 25 years).
The purpose of the requirement is to enable the parties to
find out if they are compatible before they get married.
Psychological incapacity as defined in Art. 36 of the Code on
the part of either partly may also be discovered through
marriage counseling.
Experience has shown that many marriages, especially
teen-age marriage, have failed because of the lack of pre-
marital counseling to the parties.
While some members of the Committee believe that this
requirement does not accord with the customs of the
Filipinos and may just be disregarded, the majority of the
members think it is requirement and should be included in
the Family Code, since law should be an instrument of
change for the better.
The effect of the lack of the certificate or marriage
counseling is the same as the lack of parental advice; i.e.,
the issuance of the marriage of license is suspended for
three months.
If only one of the parties needs parental consent or parental
advice, the other party must be present at the counseling.
Who will do the counseling?
The priest or minister of the church or religious sect to
which the party concerned belongs, or a marriage counselor
accredited by the proper government agency.
Another requirement for the issuance of a marriage license
is attendance of the family planning seminar required by
P.D. 965, with certain exceptions.
Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a
marriage license and other data given in the applications. The notice
shall be posted for ten consecutive days on a bulletin board outside
the office of the local civil registrar located in a conspicuous place
within the building and accessible to the general public. This notice
shall request all persons having knowledge of any impediment to
the marriage to advise the local civil registrar thereof. The marriage
license shall be issued after the completion of the period of
publication. (63a)
(1) The posting of the application for marriage license under
this Article is indispensable to the issuance of the license.
If, however, a license is issued without complying with this
provision and a marriage is solemnized on the basis of such
license, the marriage is still valid. However, the local civil
registrar who did not comply with this provision will be
liable criminally, civilly and administratively.
The reason for the required posting of the application for
marriage license is to inform the public of the intended
marriage so that if they know of any legal impediment
thereto, they may inform the local civil register about it.
While such requirement may be of no practical value in big
cities and communities, it is very useful in small towns and
municipalities where practically everybody knows everyone
else.
Art. 18. In case of any impediment known to the local civil registrar
or brought to his attention, he shall note down the particulars
thereof and his findings thereon in the application for marriage
license, but shall nonetheless issue said license after the completion
of the period of publication, unless ordered otherwise by a
competent court at his own instance or that of any interest party.
No filing fee shall be charged for the petition nor a corresponding
bond required for the issuances of the order.
Under Art. 64 of the Civil Code, the local civil registrar is
given quasi-judicial authority to investigate any information
he receives of any legal impediment to an intended
marriage, and may withhold the issuance of the marriage
license if he is convinced that such impediment exists,
unless otherwise ordered by a competent court.
The Family Code has amended the above article of the Civil
Code in that the local civil registrar, who most often has no
legal knowledge, is no longer given quasi-judicial power to
investigate an alleged legal impediment to an intended
marriage.
What he is required to do, if he receives information as to
alleged impediment, is to note it on the application for
marriage license and then refer the matter to the
competent court if he thinks such action is warranted. But
he should still issue the marriage license, unless ordered by
a competent court at the instance of an interested party or
even at his own instance.
Art. 19. The local civil registrar shall require the payment of the fees
prescribed by law or regulations before the issuance of the marriage
license. No other sum shall be collected in the nature of a fee or tax
of any kind for the issuance of said license. It shall, however, be
issued free of charge to indigent parties, that is those who have no
visible means of income or whose income is insufficient for their
subsistence a fact established by their affidavit, or by their oath
before the local civil registrar.
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 cancelled 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.
The marriage license may be used anywhere in the
Philippines but not in foreign countries.
The license is good for only 120 days. It is not subject to
extension and once it has expired, it is deemed cancelled
and cannot be used anymore. If the parties still want to get
married after the expiration of the license, they must apply
for a new license.
The Family Code requires that the expiry date of the license
must be stamped in bold characters in its face, so that the
parties will be fully aware of its expiration date.
Art. 21. When either or both of the contracting parties are citizens
of a foreign country, it shall be necessary for them before a marriage
license can be obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic or consular
officials.
Stateless persons or refugees from other countries shall,
in lieu of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to
contract marriage.
The capacity of a foreigner to get married in the Philippines
is governed by his national law, a foreign law, so that our
government offices and courts cannot take judicial notice of
said law.
Hence, if the applies for a marriage license to be able to get
married in the Philippines, he is required to present a
certificate of legal capacity to contract marriage from the
embassy or consular office of his country in the Philippines,
since they are the ones who know the national law of said
foreigner and whether he has capacity to marry under said
law.
A divorced foreigner can be issued a marriage license to
marry again in the Philippines provided he can present the
certificate above mentioned, which means that his divorce
is recognized by his own country.
If the foreigner is stateless or a refugee from another
country, so that there is no embassy or consular office from
which he can get the above-mentioned certificate, it is
enough that he executes an affidavit stating the
circumstances showing his capacity to contract marriage.
Art. 22. The marriage certificate, in which the parties shall declare
that they take each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to
law, except in marriage provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the
parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied with
the legal requirement regarding parental advice in appropriate
cases;and
(7) That the parties have entered into marriage settlement, if any,
attaching a copy thereof.
Under Art. 67 of the Civil Code, the parties are required to
state in their marriage certificate or contract their full
names, domiciles, and ages; the fact that they have been
issued the proper marriage license; and that they have the
consent or advice of their parents in the cases where these
are required.
This Article of the Family Code, however, requires the
marriage certificate to state the following additional
information:
(a) The sex, citizenship, and religion of each party;
(b) The date and precise time of the celebration of the
marriage; and
(c) A statement that the parties have entered into a
marriage settlement, if any, attaching a copy thereof to the
marriage certificate.
Madridejo v De Leon, 55 Phil. 1
The marriage certificate is not an essential or formal
requisite of marriage such that without which, the marriage
will be void.
De Loria v Felix, 104 Phil.; Pugeda v, Trias, Mar.31, 1962, 4
SCRA 49
An oral marriage is, therefore, valid, and failure of a party
to sign the marriage certificate or the omission of the
solemnizing officer to send a copy of the marriage
certificate to the proper local civil registrar does not
invalidate the marriage.
Mariatequi v C.A., 205 SCRA 337
The mere fact that no record of the marriage can be found,
does not invalidate the marriage provided all the requisites
for its validity are present.
The marriage certificate is, however the best evidence that
a marriage does exist.
Art. 23. It shall be the duty of the person solemnizing the marriage
to furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the duplicate
and triplicate copies of the certificate not later than fifteen days
after the marriage, to the local civil registrar of the place where the
marriage was solemnized. Proper receipts shall be issued by the
local civil registrar to the solemnizing officer transmitting copies of
the marriage certificate. The solemnizing officer shall retain in his
file the quadruplicate copy of the marriage certificate, the copy of
the marriage certificate, the original of the marriage license and, in
proper cases, the affidavit of the contracting party regarding the
solemnization of the marriage in place other than those mentioned
in Article 8.
While Art. 68 of the Civil Code requires that the marriage
certificate should be in three copies, this Article requires
that the certificate should be in four copies, to be
distributed as follows:
(1) The original shall be given to either of the
contracting parties;
(2) The duplicate and triplicate shall be sent not
later than 15 days after the marriage to the local
civil registrar of the place where the marriage was
solemnized; and
(3) The quadruplicate shall be retained by the
solemnizing officer, together with the marriage license.
 Jones v. Hortiguela, 64 Phil. 179
Even if no one receives a copy of the marriage certificate,
the marriage is still valid.
Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents
and affidavits filed in connection with applications for marriage
licenses shall be exempt from documentary stamp tax.
Art. 25. The local civil registrar concerned shall enter all applications
for marriage licenses filed with him in a registry book strictly in the
order in which the same are received. He shall record in said book
the names of the applicants, the date on which the marriage license
was issued, and such other data as may be necessary.
This Article requires all applications for marriage license to
be entered in the registry book strictly in the order in which
they are received, that is, chronologically or in accordance
with the dates of application.
This means, too, that the applications. Should be duly
numbered, to avoid the bad practice in offices of the local
civil registrars of leaving certain numbers in the registry
book of applications for marriage license blank, and then
selling these blanks spaces to couples who want instant
licenses (i.e., without complying with the 10-day posting) by
antedating the dates of their applications for marriage
license.
The registry book above-mentioned should also record the
names of the applicants, the date on which the marriage
license was issued, and other necessary data.
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), 36, 37 and 38.
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)
Foreign Marriages of Filipinos:
This Article retains the rule in Art. 71 of the Civil Code that
marriage solemnized abroad, if valid in the country where
celebrated, are also valid in the Philippines (the rule of lex
loci celebrationis).
The same Article, however, amends Art. 71 of the Civil Code
as to the exceptions to the rule of lex loci celebrationis.
While Art. 71 of the Civil Code excepts therefrom only
bigamous, polygamous, and incestuous marriage as
determined by Philippines law, the above Article excepts all
those void under Articles 35 (1), (4), (5), and (6), 36, 37, 38,
and applies the rule of lex loci celebration only to foreign
marriages solemnized in accordance with the formal
requirements of the countries where they were celebrated
but otherwise valid under the Family Code.
Therefore, a foreign marriage, although valid in the country
of celebration, will still be void in the Philippines if:
1. Either or both parties did not have the legal
capacity to get married (Art. 35 (1)
2. The marriage is immoral for being bigamous or
polygamous (Art. 35 (4).
3. Consent of one party is lacking because of
mistake as to the identity of the other (Art. 35 (5).
4. One of the parties was psychologically
incapacitated at the time of the marriage to
comply with the essential marital obligations (Art.
36);
5. The marriage is incestuous (Art. 37);
6. The marriage is void by reason of public policy
(Art. 38.)
Art. 26 on the validity of foreign marriages applies only to
Filipinos.
2nd paragraph of Art. 26 applies where a Filipino is married
to a foreigner and thereafter, the latter obtained a divorce
abroad which decree capacitates the foreigner to remarry
The effect would be that the Filipino spouse shall likewise
be capacitated to remarry under Philippine law.
The second paragraph provision was not a part of the draft
originally approved by the Code committee, but came after
President Aquino issued E.O. 227
The idea of including the second paragraph is to avoid the
absurd situation of a Filipino as being still unmarried to
his/her foreigner spouse, although the latter in no longer
married to him/her by reason of the decree of divorce
obtained abroad.
The 2nd paragraph of Art. 26 does not apply to a divorce
obtained by a Filipino abroad from his Filipino spouse
because of Art. 15 of the Civil Code.
Pilapil vs. Ibay-Somera, 174 SCRA 553
Facts: Imelda M. Pilapil, a Filipino citizen, was married with
private respondent, Erich Ekkehard Geiling, a German
national before the Registrar of Births, Marriages and
Deaths at Friedensweiler, Federal Republic of
Germany. They had a common child. Private respondent
initiated a divorce proceeding against petitioner in
Germany before the Schoneberg Local Court in January
1983. Petitioner then filed an action for legal separation,
support and separation of property before the RTC of
Manila on January 23, 1983.
The decree of divorce was promulgated on January 15, 1986
on the ground of failure of marriage of the spouses. The
custody of the child was granted to the petitioner.
On June 27, 1986, private respondent filed 2 complaints for
adultery before the City Fiscal of Manila alleging that while
still married to Imelda, latter had an affair with William
Chia as early as 1982 and another man named Jesus Chua
sometime in 1983.
ISSUE: Whether private respondent can prosecute
petitioner on the ground of adultery even though they are
no longer husband and wife as decree of divorce was
already issued.
HELD: NO.
RATIO: In prosecution for adultery and concubinage, the
person who can legally file the complaint should be the
offended spouse and nobody else. Though in this case, it
appeared that private respondent is the offended spouse,
the latter obtained a valid divorce in his country, the
Federal Republic of Germany, and said divorce and its legal
effects may be recognized in the Philippines in so far as he
is concerned. Thus, under the same consideration and
rationale, private respondent is no longer the husband of
petitioner and has no legal standing to commence the
adultery case under the imposture that he was the
offended spouse at the time he filed suit.
Van Dorn vs. Romillo G.R. No. L-68470 October 8, 1985/139
SCRA 139
FACTS: Alice Reyes Van Dorn, a Filipino Citizen and private
respondent, Richard Upton, a US citizen, were married in
Hong Kong in 1979. They established their residence in the
Philippines and had 2 children. They were divorced in
Nevada, USA in 1982 and petitioner remarried, this time
with Theodore Van Dorn. A suit against petitioner was filed
on June 8, 1983, stating that petitioners business in Ermita
Manila, the Galleon Shop, is a conjugal property with Upton
and prayed therein that Alice be ordered to render an
accounting of the business and he be declared as the
administrator of the said property.
ISSUE: Whether or not the foreign divorce between the
petitioner and private respondent in Nevada is binding in
the Philippines where petitioner is a Filipino citizen.
HELD: YES
RATIO: Private respondent is no longer the husband of the
petitioner. He would have no standing to sue petitioner to
exercise control over conjugal assets.
He is estopped by his own representation before the court
from asserting his right over the alleged conjugal property.
 Aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid
according to their national law.
Petitioner is not bound to her marital obligations to
respondent by virtue of her nationality laws. She should
not be discriminated against her own country if the end of
justice is to be served.
ROEHR vs. RODRIGUEZ and GUEVARA-SALONGA, G.R. No.
142820 June 20, 2003
FACTS: Petitioner Wolfgang, a German citizen and resident
of Germany, married private respondent Carmen, a Filipina,
on 11 December 1980 in Hamburg, Germany. Early 1981,
the marriage was ratified in Tayasan, Negros Oriental. They
had two daughters, Carolyne and Alexandria Kristine.
Private respondent filed a petition for the declaration of
nullity of marriage before the Regional Trial Court of Makati
on 28 August 1996. Petitioner filed a motion to dismiss but
was denied by trial court. A motion for reconsideration was
filed by private respondent but was again denied by the trial
court.
I997 - petitioner obtained a decree of divorce from the
Court of First Instance of Hamburg-Blankenese and granting
the custody of the children to the father.
June 14, 1999 - public respondent granted the petitioners
motion to dismiss, but was partially set aside on September
1999 for the purpose of tackling issues regarding property
relations of the spouses as well as support and custody of
their children.
Petitioner assailed the order of the trial courts for lack of
jurisdiction, and grave abuse of discretion on the part of the
respondent judge.
Issue: Whether or not the Philippine courts can determine
the legal effects of a decree of divorce from a foreign
country.
Held: YES
RATIO: Our courts can determine the legal effects of a
divorce obtained from a foreign country such as those
concerning with support and custody of the children.
In this case, the decree did not touch as to who the
offending spouse was. The trial court was correct in setting
the issue for hearing to determine the issue of parental
custody, care, support and education of the best interests
of the children. After all, the childs welfare is always the
paramount consideration in all questions concerning his
care and custody.
The trial court has jurisdiction over the issue between the
parties as to who has parental custody, including the care,
support and education of the children.
Republic vs. Orbecido GR NO. 154380, October 5, 2005
FACTS: Cipriano Orbecido III was married with Lady Myros
Villanueva on May 24, 1981 at the United Church of Christ
in the Philippines in Ozamis City. They had a son and a
daughter named Kristoffer and Kimberly, respectively. In
1986, the wife left for US bringing along their son
Kristoffer. A few years later, Orbecido discovered that his
wife had been naturalized as an American citizen and
learned from his son that his wife sometime in 2000 had
obtained a divorce decree and married a certain
Stanley. He thereafter filed with the trial court a petition
for authority to remarry invoking Paragraph 2 of Article 26
of the Family Code.
ISSUE: Whether or not Orbecido can remarry under Article
26 of the Family Code.
HELD: YES
RATIO: Taking into consideration the legislative intent and
applying the rule of reason, Article 26 Par.2 should be
interpreted to include cases involving parties who, at the
time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other
party were a foreigner at the time of the solemnization of
the marriage.
Through a petition for the recognition of a decree of
divorce obtained abroad, the Filipino spouse however has
to show sufficient evidence that the former spouse had
obtained a divorce decree which allowed the latter to
remarry.
Corpuz vs. Tirol Sto. Tomas G.R. No. 186571, 11 August
2010
FACTS: Gerbert R. Corpuz is a naturalized Canadian citizen
who married respondent Daisylyn Tirol Sto. Tomas but
subsequently left for Canada for work. When he returned
to the Philippines, he discovered that Sto. Tomas was
already romantically involved with another man.
Corpuz later obtained a divorce decree in Windsor, Ontario,
Canada. Corpuz has fallen in love again with another Filipina
and wished to marry her. He went to the Civil Registry Office
of Pasig City to register the Canadian divorce decree on his
marriage certificate with Sto. Tomas.
Despite the registration, an official of National Statistics
Office informed Corpuz that the former marriage still
subsists
under the Philippine law until there has been a judicial rec
ognition of the Canadian divorce decree by a competent
judicial court in view of NSO Circular No. 4, series of 1982.
Corpuz then filed a petition for judicial recognition
of foreign divorce and/or declaration of dissolution of mar
riage with the RTC.
However, the RTC denied the petition reasoning out that
Corpuz cannot institute the action for judicial recognition of
the foreign divorce decree because he is a naturalized
Canadian citizen. It was provided further that Sto. Tomas
was the proper party who can institute an action under the
principle of Article 26 of the Family Code which capacitates
a Filipino citizen to remarry in case the alien spouse obtains
a foreign divorce decree. Hence, this petition.
ISSUE: Whether or not the second paragraph of Article 26
of the Family Code grants aliens like Corpuz the right to
institute a petition for judicial recognition of a foreign
divorce decree.
HELD: The alien spouse can claim no right under the second
paragraph of Article 26 of the Family Code as the
substantive right it establishes is in favor of the Filipino
spouse.
The foreign divorce decree is presumptive evidence of a
right that clothes the party with legal interest to petition for
its recognition in this jurisdiction.
The recognition of the foreign divorce decree may be made
in a Rule 108 proceeding, as the object of special
proceedings (such as that in Rule 108 - Cancellation or
Correction of Entries in the Civil Registry) is precisely to
establish the status or right of a party or a particular fact.
Art. 27. In case either or both of the contracting parties are at the
point of death, the marriage may be solemnized without necessity
of a marriage license and shall remain valid even if the ailing party
subsequently survives.
The marriage referred to in the Article is the marriage in
articulo mortis; i.e., one or both of the contracting parties
are dying or at the point of death.
In such case, there is no need for a marriage license because
obviously, the dying party would already be dead by the
time the license is issued.
What happens if the dying party survives or recovers?
Art. 72 of the Civil Code, which is the source of this Article,
does not provide for such a situation. The above Article,
however, expressly provides that the marriage remains
valid even if the ailing or dying party survives or does not
die.
The marriage in this case may be solemnized by a priest or
a minister of any religious sect, a judge, or any of the
persons referred to in Arts. 21 and 32 in the special cases
covered by said by said Articles.
 At the point of death must be distinguished from in
danger of death.
A member of the army who takes part in a military
operation against NPAs or the Muslim insurgents may be in
danger of death but not at the point of death.
Art. 28. If the residence of either party is so located that there is no
means of transportation to enable such party to appear personally
before the local civil registrar, the marriage may be solemnized
without necessity of a marriage license.
This Article covers marriages in remote or distant places
formerly governed by Art. 72 of the Civil Code.
Art.72 of the Civil Code has, however, been amended by this
Article as follows:
(1) While Art.72 of the Civil Code applies only if the
female resides more than 15 kilometers from the municipal
building, the above Article applies whether it is the male or
female who lives in a remote or distant place.
(2) The above articles does not specify the distance of
the residence of either party from the municipal building.
All that is required is that the residence of either party be
so located that there is no means of transportation to
enable such party to appear before the local civil register.
The above Article provides that there must be no means of
transportation to enable party to personally go to the office
of the local civil registrar, which is usually in the municipal
building.
Art. 29. In the cases provided for in the two preceding articles, the
solemnizing officer shall state in an affidavit executed before the
local civil registrar or any other person legally authorized to
administer oaths that the marriage was performed in articulo mortis
or that the residence of either party, specifying the barrio or
barangay, is so located that there is no means of transportation to
enable such party to appear personally before the local civil registrar
and that the officer took the necessary steps to ascertain the ages
and relationship of the contracting parties and the absence of legal
impediment to the marriage.
Art. 30. The original of the affidavit required in the last preceding
article, together with the legible copy of the marriage contract, shall
be sent by the person solemnizing the marriage to the local civil
registrar of the municipality where it was performed within the
period of thirty days after the performance of the marriage.
The affidavit of the solemnizing officer required by this
Article takes the place of the marriage license and
constitutes an assurance that the parties are of the proper
ages and that there is no impediment to their marriage.
Loria vs. Felix 104 Phil. 1, June 20, 1958,
But lack of this affidavit does not invalidate the marriage in
articulo mortis.
Cruz vs. Catandes CA, 39 O.G. No. 18, p. 324
No particular from of the marriage in articulo mortis is
required. The law as much as possible intends to give legal
effect to the marriage. The failure of the solemnizing officer
to comply with this requirement will also not invalidate the
marriage.
Art. 31. A marriage in articulo mortis between passengers or crew
members may also be solemnized by a ship captain or by an airplane
pilot not only while the ship is at sea or the plane is in flight, but also
during stopovers at ports of call.
Art. 32. A military commander of a unit, who is a commissioned
officer, shall likewise have authority to solemnize marriages in
articulo mortis between persons within the zone of military
operation, whether members of the armed forces or civilians.
Art. 33. Marriages among Muslims or among members of the ethnic
cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in
accordance with their customs, rites or practices.
The similar provision of the Civil Code (Art. 78 thereof)
requires that the Muslims or pagans should live in non
Christian provinces before that provision could apply.
But this Article eliminates such requirement in order not to
limit the application of the provision. In other words, as long
as the parties are Muslims or members of other cultural
minorities, their marriages are exempt from the
requirement of a marriage license if performed in
accordance with their customs or practices even if such
marriages are held outside non Christian provinces.
Art. 34. No license shall be necessary for the marriage of a man and
a woman who have lived together as husband and wife for at least
five years and without any legal impediment to marry each other.
The contracting parties shall state the foregoing facts in an affidavit
before any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he ascertained
the qualifications of the contracting parties are found no legal
impediment to the marriage.
Requisites for Application of Article:
The man and woman must have been living
together as husband and wife for at least five
years before the marriage;
The parties must have no legal impediment to
marry each other (for example, they are not first
cousins).
The fact of absence of legal impediment between
the parties must be present at the time of the
marriage, not during their 5-year cohabitation.
The parties must execute an affidavit stating that
they have lived together for at least 5 years.
The solemnizing officer must also execute a
sworn statement that he had ascertained the
qualifications of the parties and that he had found
no legal impediment to their marriage.
ENGRACE NIAL vs. NORMA BAYADOG
G.R. No. 133778, March 14, 2000
Facts: Pepito Nial and Teodulfa Bellones were married on
September 26, 1974 and such union bore some children.
Teodulfa died on April 24, 1985, after being shot by Pepito.
On December 11, 1986, Pepito and respondent Norma
Bayadog were married without any marriage license. In lieu
thereof, they executed an affidavit that they had lived
together as husband and wife for at least five years and
were thus exempted from securing a marriage license.
On February 19, 1997, Pepito died in a car accident. After
His death, his heirs (herein petitioners) filed a declaration
to declare the nullity of his marriage to Norma, alleging that
the said marriage was void for lack of a marriage license.
Norma filed an action to dismiss, stating that petitioners
were not among those who could file an action for
annulment of marriage under the Family Code. Judge
Ferdinand Marcos of the RTC in Toledo dismissed the
petition after finding that the Family Code was rather silent
on resolving the issues in the case.
Issue: 1. Is the marriage of Pepito to Norma null and void?
2. May the heirs of a deceased person file a petition for the
declaration of nullity of his marriage after his death?
Held: Is the marriage of Pepito to Norma null and void?
YES, a valid marriage license is a requisite of marriage, the
absence of which renders the marriage void ab initio.
Such requirement stems from the State's involvement and
participation in every marriage, the maintenance of which
the public is interested. Such interest proceeds from the
"constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to the
family as a basic `autonomous social institution'."
It is true that Norma and Pepito were married without a
license, working on the assumption that they had been
living together for at least five years without benefit of a
marriage.
However, this 5-year period should be considered as the
years immediately before the day of the marriage and it
should be a period of cohabitation characterized by
exclusivity -- meaning that there is no third party involved
at any time within the 5 years -- and continuity -- that is
unbroken.
 Otherwise, if such period were computed regardless of
whether the parties were capacitated to marry each other
or not, then the law would be sanctioning immorality and
encouraging parties to have common-law relationships and
placing them on the same footing as those who lived
faithfully with their spouse.
Only 20 months had elapsed between the time Pepito's first
marriage was dissolved and his marriage to Norma.
May the heirs of a deceased person file a petition for the
declaration of nullity of his marriage after his death? YES.
RATIO: The children have the personality to file the petition
to declare the nullity of the marriage of their deceased
father to their stepmother as it affects their successional
rights.
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.
Contract by Parties Below 18 Years:
(1) The marriage is void even if the parties had
parental consent because the essential requisite of legal
capacity of the contracting parties (Art. 2 (1)) is lacking.
(2) The marriage is void whether only one or both of
the parties are below 18.
Solemnized by Person with No Authority:
The marriage is, however, valid if either or both contracting
parties had believed in good faith that the solemnizing
officer had legal authority.
(a) The belief of one party would suffice.
(b) God faith means after reasonable inquiry and
investigation.
Art. 36. 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. (As
amended by Executive Order 227)
Provision is New and Taken from Canon Law:
This is a new provision which was taken by the Committee
from par. 3 of Can. 1095 of the New Code of Canon Law
which took effect on November 27, 1983,
Can. 1095. The following are incapable of contracting
marriage:
1. Those who lack sufficient use of reason;
2. Those who suffer from a grave lack of discretionary
judgment concerning the essential matrimonial rights and
obligations to be mutually given and accepted;
3. Those who, because of causes of a psychological
nature, are unable to assume the essential obligations of
marriage.
The Committee decided to adopt the third paragraph of the
above provision of the New Code of Canon Law as a ground
for declaration of nullity of marriage for the following
reasons:
(1) As a substitute for divorce: Divorce being a very
controversial and would surely be strongly opposed by the
Catholic Church, it was decided to draw from Canon Law
itself on a ground that does not conflict with the traditional
civil law concept of voidable marriages.
2) As a solution to the problem of Church-annulled
marriages: There are many marriages that have already
been annulled by the Catholic Church but still exist under
the civil law. This provision would give many parties to
church annulled marriages a cause of action to have their
marriages declared void by the civil courts.
(3) As an additional remedy. The provision would also
give a remedy to parties who are imprisoned by a marriage
that exists in name only as they have long separated
because of the inability of one of them to perform the
essential obligations of marriage.
SANTOS vs. CA G.R. No. 112019 January 4, 1995
Psychological incapacity should refer to no less than a
mental (nor physical) incapacity and that (t)here is hardly
any doubt that the intendment of the law has been to
confine the meaning of 'psychological incapacity' to the
most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage.
This psychologic condition must exist at the time the
marriage is celebrated.
The psychological incapacity must be characterized by
1. Gravity
2. juridical antecedence
3. incurability.
Republic vs. CA and Molina G.R. No. 108763 February 13,
1997
FACTS: The case challenges the decision of CA affirming the
marriage of the respondent Roridel Molina to Reynaldo
Molina void in the ground of psychological incapacity. The
couple got married in 1985, after a year, Reynaldo
manifested signs of immaturity and irresponsibility both as
husband and a father preferring to spend more time with
friends whom he squandered his money, depends on his
parents for aid and assistance and was never honest with
his wife in regard to their finances. In 1986, the couple had
an intense quarrel and as a result their relationship was
estranged. Roridel quit her work and went to live with her
parents in Baguio City in 1987 and a few weeks later,
Reynaldo left her and their child. Since then he abandoned
them.
ISSUE: Whether or not the marriage is void on the ground
of psychological incapacity.
HELD: The marriage subsists and remains valid. What
constitutes psychological incapacity is not mere showing of
irreconcilable differences and confliction personalities.
It is indispensable that the parties must exhibit
inclinations which would not meet the essential
marital responsibilities and duties due to some
psychological illness.
Reynaldos action at the time of the marriage did
not manifest such characteristics that would
comprise grounds for psychological incapacity.
The evidence shown by Roridel merely showed
that she and her husband cannot get along with
each other and had not shown gravity of the
problem neither its juridical antecedence nor its
incurability.
In addition, the expert testimony by Dr. Sison
showed no incurable psychiatric disorder but only
incompatibility which is not considered as
psychological incapacity.
The following are the guidelines as to the grounds of
psychological incapacity laid set forth in this case:
burden of proof to show nullity belongs to the
plaintiff
root cause of the psychological incapacity must
be (a) medically or clinically identified, (b) alleged
in the complaint, (c) sufficiently proven by experts
and (d) clearly explained in the decision.
incapacity must be proven to be existing at "the
time of the celebration" of the marriage. The
evidence must show that the illness was existing
when the parties exchanged their "I do's." The
manifestation of the illness need not be
 perceivable at such time, but the illness itself
must have attached at such moment, or prior
thereto
incapacity must also be shown to be medically or
clinically permanent or incurable. Such
incurability may be absolute or even relative only
in regard to the other spouse, not necessarily
absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to
the assumption of marriage obligations.
Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage.
The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as
Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-
complied marital obligation(s) must also be
stated in the petition, proven by evidence and
included in the text of the decision.
Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive,
should be given great respect by our courts. It is
clear that Article 36 was taken by the Family Code
Revision Committee from Canon 1095 of the New
Code of Canon Law, which became effective in
1983 and which provides:
The following are incapable of contracting
marriage: Those who are unable to assume the
essential obligations of marriage due to causes of
psychological nature.
The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state.
-No decision shall he handed down unless the
Solicitor General issues a certification, which will
be quoted in the decision, briefly staring therein
his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney,
shall submit to the court such certification within
fifteen (15) days from the date the case is deemed
submitted for resolution of the court.
TE vs.YU-TEG.R. No. 161793 , February 13, 2009
FACTS: Kenneth met Rowena in a Filipino-Chinese gathering
on campus. They did not have interest with each other at first
but they developed a certain degree of closeness due to the
fact that they share the same angst with their families. In
1996, while still in college, Rowena proposed that they
should elope. Kenneth initially refused on the ground that he
is young and jobless but due to Rowenas persistence
Kenneth complied bringing with him P80K.
The money soon after disappeared and they found
themselves forced to return to their respective home.
Subsequently, Rowenas uncle brought the two before a
court and had had them be married. After marriage, Kenneth
and Rowena stayed with her uncles house where Kenneth
was treated like a prisoner.
Kenneth was advised by his dad to come home otherwise he
will be disinherited. One month later, Kenneth was able to
escape and he was hidden from Rowenas family. Kenneth
later contacted Rowena urging her to live with his parents
instead.
Rowena however suggested that he should get his
inheritance so that they could live together separately or just
stay with her uncle. Kenneth however was already
disinherited. Upon knowing this, Rowena said that it is better
if they live separate lives from then on. Four years later,
Kenneth filed for an annulment of their marriage. Rowena
did not file an answer.
The City Prosecutor, after investigation, submitted that he
cannot determine if there is collusion between the 2 parties
hence the need to try the merits of the case. The opinion of
an expert was sought wherein the psychologist subsequently
ruled that both parties are psychologically incapacitated.
The said relationship between Kenneth and Rowena is said
to be undoubtedly in the wreck and weakly-founded. The
break-up was caused by both parties unreadiness to
commitment and their young age. He was still in the state of
finding his fate and fighting boredom, while she was still
egocentrically involved with herself. The trial court ruled that
the marriage is void upon the ruling of the expert
psychologist.
The break-up was caused by both parties unreadiness to
commitment and their young age. He was still in the state of
finding his fate and fighting boredom, while she was still
egocentrically involved with herself. The trial court ruled that
the marriage is void upon the ruling of the expert
psychologist.
The OSG appealed and the CA ruled in favor of the OSG. The
OSG claimed that the psychological incapacity of both parties
was not shown to be medically or clinically permanent or
incurable (Molina case). The clinical psychologist did not
personally examine respondent, and relied only on the
information provided by petitioner. Further, the
psychological incapacity was not shown to be attended by
gravity, juridical antecedence and incurability. All these were
requirements set forth in the Molina case to be followed as
guidelines.
ISSUE: Whether or not the expert opinion of the psychologist
should be admitted in lieu of the guidelines established in the
case of Molina.
HELD: NO
RATIO: The MOLINA ruling is not cast in stone. SC may have
inappropriately imposed a set of rigid rules in ascertaining PI.
So much so that the subsequent cases after Molina were
ruled accordingly to the doctrine set therein. And that there
is not much regard for the laws clear intention that each
case is to be treated differently, as courts should interpret
the provision on a case-to-case basis; guided by experience,
the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals. The SC
however is not abandoning the Molina guidelines, the SC
merely reemphasized that there is need to emphasize other
perspectives as well which should govern the disposition of
petitions for declaration of nullity under Article 36 such as in
the case at bar.
The principle that each case must be judged, not on the basis
of a priori assumptions, predilections or generalizations but
according to its own facts. And, to repeat for emphasis,
courts should interpret the provision on a case-to-case basis;
guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of
church tribunals.
The SC then ruled that the marriage of Kenneth and Rowena
is null and void due to both parties psychological disorder as
evidenced by the finding of the expert psychologist. Both
parties being afflicted with grave, severe and incurable
psychological incapacity.
Kenneth cannot assume the essential marital obligations of
living together, observing love, respect and fidelity and
rendering help and support, for he is unable to make
everyday decisions without advice from others. He is too
dependent on others. Rowena cannot perform the essential
marital obligations as well due to her intolerance and
impulsiveness.
If the doctor recommends therapy, is PI curable?
MA. SOCORRO CAMACHO-REYES vs. RAMON REYES G.R. No.
185286 August 18, 2010
FACTS: Parties got married. Their marriage
was rocky because Respondent did not support his wife, nor
did he take good care of his children. He entered into a lot of
 business ventures but all were unsuccessful adding to the
problems in their marriage. Petitioner sought to have the
marriage annulled on the ground of psychological incapacity
(Article 36).
RTC ruled that there was Psychological Incapacity.
Marriage was declared a nullity. CA reversed the RTC
decision on the ground that expert witness
recommendation that respondent should undergo therapy.
ISSUE: WON a finding that Psychological Incapacity is curable
will not warrant a petition for annulment of marriage under
Art. 36
HELD: NO
RATIO: A recommendation for therapy does not
automatically imply curability. In
general, recommendations for therapy are given by clinical
psychologists, or even psychiatrists, to manage behavior.
Dr.s recommendation that respondent should undergo
therapy does not necessarily negate the finding that
respondents psychological incapacity is incurable.
Moreover, the doctor, during her testimony, categorically
declared that respondent is psychologically incapacitated to
perform the essential marital obligations.
Case of Pathological Liar
ANTONIO V. REYES G.R. No. 155800 March 10, 2006
FACTS: Leonilo Antonio was married to Marie Yvonne Reyes
on Dec 6, 1990. They had a child who died 5 months later.
Reyes concealed the fact that she previously had an
illegitimate son introducing the boy as an adopted child of
the family.
She fabricated a story that her brother-in-law attempted to
rape and kill her. She misrepresented herself as a
psychiatrist. She claimed to be a successful singer when no
member of her family witnessed her alleged singing
activities. She invented friends from the music industry who
wrote letters to Antonio touting her as the number one
moneymaker.
Antonio later found out that she was the one who actually
wrote and sent the letters. She altered her pay slip to
represent herself as one of greater means. She exhibited
insecurities and jealousies over Antonio to the extent of
calling his officemates to monitor his whereabouts.
On Mar 8, 1993, Antonio filed a petition to have their
marriage declared null and void and presented two expert
witnesses who concluded that her persistent lying and
paranoia made her psychologically incapacitated to perform
her marriage obligations. While the case was pending, on
Mar 30, 1995, the marriage of the parties was annulled by
the Catholic Church. RTC granted the petition; the
CA reversed it.
ISSUE: Whether or not Marie Yvonne Reyes
was psychologically incapacitated.
HELD: YES. Petition granted. Marriage VOID.
RATIO:
1. A person unable to distinguish between fantasy and reality
would similarly be unable to comprehend the legal nature of
the marital bond and the corresponding obligations attached
to marriage.
2. Present case sufficiently satisfies guidelines in MOLINA
(REP. V. CA)
Psychological incapacity was sufficiently proven by expert
witnesses & root cause has been medically identified. It
clearly existed at the time of and even before the marriage.
Its gravity is sufficient to prove her disability to assume the
essential obligations of marriage based on love, trust and
respect.
3.MOLINA
(1997) is not set in stone and interpretation of Art 36 FC
relies heavily on a case-to-case perception. Clinical diagnosis
of incurability was not yet required when expert witnesses
testified in 1994-95.
SANTOS V. CA
Promulgated by the SC in Jan1995, in its doctrinal rule
omitted any reference to incurability as a characteristic
of psychological incapacity.
Hence, there was no legal impelling cause to prove
incurability during trial. In this case, the Supreme Court is
convinced by the totality of the evidence that Reyes
psychological incapacity is incurable.
Art. 37. Incestuous and void marriages from the beginning, whether
relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree;
and
(2) Between brothers and sisters, whether of the full or half
blood.
This Article amends Art. 81 of the Civil Code by considering
as incestuous and void only marriages between
(1) ascendants and descendants of any degree, and
(2) brothers and sisters, whether the relationship of the
parties is legitimate or illegitimate, since what is important is
that the parties are close relatives by blood.
Under Art. 81 of the Civil Code, incestuous relatives by blood
within the fourth civil degree. The above Article does not
consider such marriages incestuous (following the trend in
other countries wherein incestuous marriages extend only to
those between brothers and sisters), but they are still
considered void by reason of public-policy under Art. 38.
Incestuous marriages are universally or almost universally
considered immoral (contra bonos mores) and void as they
contravene human nature, degrade the family, and offend
decency and morals.
Art. 38. Marriages that are void from the beginning for reasons of
public policy:
(1) Between collateral blood relatives whether legitimate
or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent
and the adopted child;
(6) Between the surviving spouse of the adopted child and
the adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; 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.
The above Article of the Family Code amends Arts. 80, pars.
(6) and (7), and 82 of the Civil Code:
(1) by eliminating altogether the prohibition for
stepbrothers and stepsisters to marry (Art. 80 (7) of the Civil
Code), since they are not related either by blood or by
affinity;
(2) by transferring marriages under Art. 80 (6) of the
Civil Code (those where one or both contracting parties have
been found guilty of the killing of the spouse of either of
them) to par. (9) of the above Article 38; and
(3) by adding to the list of void marriages by reasons
of public policy of the following:
(a) marriages between collateral blood relatives,
whether legitimate or illegitimate, up to the fourth civil degree
(art.38 (1));
(b) marriages between parents-in-law and
children-in-law (Art. 38 (3)); and
(c) When there is a grandchild, there is a
confusion in a relationship between the child of the father-in-law
and that of the formers son, as the children have the same
mother. (That is why in American law, the prohibition arises only
when there are grandchildren.)
(d) It is a family tradition in the Philippines that
parents live with their children, unlike in the U.S. where parents
 usually do not live with their children.
(4)Marriages between adopting parent and adopted
child, between the latter and the surviving spouse of the former,
and between the former and the surviving spouse of the latter.
These marriages are against public policy because adoption
creates the relationship of parent and child be legal fiction, so
that the reasons prohibiting a parent from marrying a child, and
a parent-in-law from marrying a child-in-law, will apply.
(5) Marriages between the legitimate child of the
adopter and an adopted child:
The reason is again because adoption results in the
legitimate child of the adopted and the adopted child becoming
brother and sister by legal fiction. Besides, these children usually
grown up together under the same roof and in the same roof and
in the same family, so that it is immoral and scandalous that they
should be allowed to marry each other after reaching the
marriageable age.
(6) Marriages between adopted children of the same
adopter:
The reason are the same as No. (4) above.
(7) Marriages between parties where one, with the
intention to marry the other, killed the other persons spouse or
his or her own spouse:
Under Art. 38 (9) of the Family Code, there is no need for
conviction in a criminal case of the guilty party. The fact of the
killing committed by one of the parties to the marriage can be
proved in a civil case.
Relationship outside Arts. 37 and 38 Are Not Impediments to
marriage.
Other relationships not included in Arts. 37 and 38 are not
impediments to marriage, like:
(1) Brother-in-law and sister-in-law;
(2) Stepbrother and stepsister;
(3) Guardian and ward;
(4) Adopted son of the husband, and adopted daughter of
the wife;
(5) Parties who have been convicted of adultery or
concubinage.
Art. 39. The action or defense for the declaration of absolute nullity
shall not prescribe. (As amended by Executive Order 227 and R.A.
8533)
This a new provision.
The action or defense for the declaration of the absolute
nullity of marriage does not prescribe because mere lapse of
time cannot give effect to a marriage or any other contract
that is null and void
(Art. 141, Civil Code, Angeles v. CA., 102 Phil. 1006).
Art. 40. The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void.
This is also a new provision in the Family Code. The
Committee believes that parties to a marriage should not be
allowed to assume that their marriage is void, even if such is
the fact, but must first secure a judicial declaration of the
nullity of their marriage before they should be allowed to
marry again.
This Article is in line with the recent decisions of the Supreme
Court that the marriage of a person may be null and void but
there is need of a judicial declaration of such fact before that
person can marry again; otherwise, the second marriage will
also be void.
(Wiegel v Sempio-Diy, Aug. 19/86, 143 SCRA 499; Vda. De
Consuegra v. GSIS, 37 SCRA 315).
This provision changes the old rule that where a marriage is
illegal and void from its performance, no judicial decree is
necessary to establish its validity
(People v Mendoza, 95 Phil. 843; People v Aragon, 100 Phil.
1033).
This Article is also for the protection of the spouse who,
believing that his or her marriage is null and void, marries
again. With the judicial declaration of the nullity of his or her
first marriage, the person who marries again cannot be
charged with bigamy.
Applies to re-marriage under the Family Code
(Atienza V.J. Brillantes, 243 SCRA 32).
A marriage void for lack of a marriage license still needs a
judicial declaration of such fact under the Family Code even
for purposes other than remarriage
(Rep. v. C.A. and Castro, 236 SCRA 257; Domingo v. C.A..226
SCRA 572).
Art. 41. A marriage contracted by any person during subsistence of
a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-
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.
2 kinds of bigamous marriages under Article 41:
The void bigamous marriages, which is contracted
by a person during the subsistence of his or her
previous marriage. Here, the good faith of the
party who marries again is immaterial; the second
marriage would still be void. On the other hand,
the person who marries again in bad faith is even
criminally liable for bigamy; and
The voidable bigamous marriage, which is
contracted by a person whose spouse has been
absent for four consecutive years (in ordinary
absence) or two years (in extraordinary absence
under Art. 391 of the Civil Code), said person
having a well-founded belief that his or her
absent spouse was already dead, and after having
the latter judicially declared presumptively dead
in a summary proceeding
Above Article Compared with Art. 83 of the Civil Code:
Under Art. 83 of the Civil Code, the subsequent
marriage is voidable:
a. when the absent spouse has not been
heard of for seven consecutive years;
b. when, although absent for less than
seven years, the absentee is generally
considered as dead and believed to be
so by the present spouse, and
c. when the absent spouse is presumed
to be dead after four years from the
occurrence of any of the events
enumerated in Art. 391 of the Civil
Code.
Under the above Article of the Family Code, however:
period of 7 years (which is ordinary absence
under Art. 390 of the Civil Code) is reduced to 4
years, and the period of 4 years under Art. 391 of
the Civil Code (extraordinary absence) is required
to reduce to 2 years
the reason being that it is now much easier to
receive news about what is happening in other
parts of the country or even abroad because of
modern means of communication and
transportation.
Under the Civil Code, there is no need for the missing spouse
to the judicially declared an absentee before the present
spouse can marry again. It is enough that the required period
of absence has passed.
 Jones v Hortiguela, 64 Phil. 79
For the purpose of a second valid marriage of the present
spouse, all that was necessary was that the absent spouse be
unheard of for seven consecutive years at the time of the
second marriage, and that the only purpose of declaration of
absence was the proper administration of the estate of the
absentee.
In Re Sztraw, 81 Phil. 461 and Lukban v. Rep., 52 O.G. 1441
Unless the case involved the distribution of property, a
declaration of presumptive death would not be made by the
court because such presumption is already made in the law,
the judgment will remain a presumption and will never be
final, such declaration might lead the present spouse to
believe that she could get married again. Such rulings,
however, conflict with Art. 349 of the Rev. Penal Code
providing that the present spouse must first ask for a
declaration of presumptive death of the absent spouse in
order not to be guilty of bigamy in case he or she marries
again.
The above Article of the Family Code now clearly provides
that for the purpose of the present spouse contracting a
second marriage, he or she must file a summary proceeding
as provided in the Code for the declaration of the
presumptive death of the absentee, without prejudice to the
latters reappearance.
This provision is intended to protect the present spouse from
a criminal prosecution for bigamy under Art. 349 of the Rev.
Penal Code because with the judicial declaration that the
missing spouse is presumptively dead, the good faith of the
present spouse in contracting a second marriage is already
established.
Meaning of Absent Spouse under this Article.
o By absent spouse means that the other spouse
has been missing for at least four years, it being
unknown whether or not he or she is still alive,
and the present spouse having a well-founded
belief that the missing spouse is already dead.
The period of four (4) years is, however, reduced to two (2)
years if in the disappearance of the missing spouse, there
was danger of death as provided in Art. 391 of the Civil Code,
namely:
o The missing person was on board a vessel lost
during a voyage, or an aeroplane which is missing;
o The missing person was in the armed forces and
had taken part in war: or
o The missing person was in danger of death under
other circumstances
In the above cases, the two-year period of absence is
computed from the occurrence of the event from which
death is presumed.
Vessel in the first case includes all kinds of watercraft, and
aeroplane, all kinds of aircraft. Taking part in war in the
second case includes all military operations or undertaking
involving armed fighting, and does not only apply to soldiers
but also to those employed in the armed forces like nurses
and doctors, reporters, and cameramen, etc. In danger of
death in the third case includes such events as earthquakes,
fires, explosions, dangerous expeditions, landslides, volcanic
eruptions, etc.
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.
Rule under the Civil Code:
Under Art. 83 of the Civil Code, the second marriage
contracted by a person with an absent spouse remains valid
until annulled by a competent court upon the reappearance
of the missing spouse, which action for annulment may be
filed, according to Art. 87, by the returning spouse during
his or her lifetime, or by either spouse of the subsequent
marriage of the present spouse, during the lifetime of the
other.
This, however, gives rise to the anomalous situation, if
nobody files said action for annulment, of the present spouse
having two husbands or two wives (the returning spouse and
the second spouse), both entitled to exercise conjugal rights.
The Civil Code offers no solution to this situation.
To solve the above problem, many authorities believe that
the first marriage and all its effects with respect to the
personal and property relations of the parties should be
considered suspended by the celebration of the second
marriage and as long as the latter subsists (see 1 Tolentino,
Civil Code of the Phil., 1983 ed., p. 275-276; 1 Paras, Civil
Code of the Phil., 1984 ed., pp. 321-322).
The effects on the first marriage would be similar to legal
separation in which the marriage subsists but the rights and
obligations of the parties to each other, as well as the
conjugal partnership are extinguished, to be revived only in
case of the return of the missing spouse and annulment of
the second marriage of the present spouse.
Meanwhile,
(1) The absent spouse who returns cannot get married
again because he or she is still married to the present spouse.
(2) The present spouse cannot have sexual relations with
both returning spouse and his or her second spouse.
(3) Properties acquired by the absent spouse during his or
her absence of after his or her return do not become part of
his or her conjugal partnership with the present spouse.
(4) If a child is born of the returning spouse and the
present spouse, the child id illegitimate.
Rule under the Family Code:
The above Article of the Family Code solves all the above
problems unsolved by Art.83 of the Civil Code by providing
as follows:
o The subsequent marriage referred to in Art. 41
shall be automatically terminated by the
recording of an affidavit of the reappearance of
the absent spouse in the office of the local civil
registrar of the residence of the parties to the
second marriage.
o The affidavit or reappearance may be recorded by
the returning spouse or by any interested person.
o Due notice of the recording of the affidavit of the
reappearance must be sent to the spouses of the
subsequent marriage.
o The fact of reappearance may, however, be
referred to the courts in a proper action if such
fact is disputed.
o The automatic termination of the second
marriage will not apply if the previous marriage of
the present spouse and the returning spouse has
been annulled or declared void by the courts.
Some have criticized the above solution offered by the
Family Code in that may be unduly harsh and oppressive to
the spouses of the second marriage who may really love each
other and would like to stay married, just as it might
constitute an undue imposition on the present spouse to live
with the returning first spouse even if he or she does not
want to do so.
The Committee is of the opinion, however, that the
automatic termination of the second marriage upon the
return of the absent spouse id the better solution because if
the solution is left to the present spouse, he or she may
decide to keep both marriages. On the other hand, the
absent spouse who returns cannot marry again if his or her
spouse decides to stick to the second marriage.
 Or the returning spouse can even blackmail the spouses to
the second marriage by threatening to annul their marriage
if they do not pay off. The second marriage, on the other
hand, will remain insecure and hanging, because it may be
annulled by either of the parties during each others lifetime.
Finally, the automatic termination of the second marriage
upon the reappearance of the absent or missing spouse is a
risk that the parties to said marriage knew they were taking
when they entered into such marriage, so that if it does
happen, no reason to complain.
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.
Unlike the Civil Code which does not provide for the effects
of the termination of the subsequent marriage under its
Art. 83, the Family Code expressly provides for the effects
of the automatic termination of the subsequent marriage
under Art. 41 as follows:
The children of the subsequent marriage
conceived before its termination shall be
considered legitimate, and their custody and
support shall be decided by the courts in the
proper proceeding in case of dispute in
accordance with the Codes provision on custody
of children and support.
The absolute community of property or conjugal
partnership of the second marriage shall be
dissolved and liquidated, but if one of the parties
to the marriage was bad faith, his or her share in
the net profits shall be forfeited in favor of the
common children, or if none the children of the
guilty spouse by a previous marriage, or in default
of such children, the innocent spouse.
Donation by reason of marriage shall remain
valid, but such donations in favor of the guilty
spouse are revoked by operation of law.
The innocent spouse may revoke the designation
of the guilty spouse as beneficiary in any
insurance policy, even if such designation be
stipulated as irrevocable, and
The spouse in bad faith shall be disqualified to
inherit from the innocent spouse by testate or
intestate succession.
Art. 44. If both spouses of the subsequent marriage acted in bad
faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law.
Bad faith under this Article means that both spouses to
the subsequent marriage knew that the absent spouse was
still alive when they entered that the absent spouse was still
alive when they entered into said marriage.
The spouses to the subsequent marriage being bad faith,
their marriage is, as provided in the above article, void ab
initio, and they may even be prosecuted for bigamy.
Again, the subsequent marriage being void ab initio, its
effect on the personal and property relations of the spouses
as well as their children will be those of marriages that are
null and void and not those of voidable marriages.
Donations by reason of marriage and testamentary
dispositions made by one in favor of the other are, under
the above Article, revoked by operation of law.
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;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband
and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such incapacity
continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-
transmissible disease found to be serious and appears to be
incurable.
Art. 85 of the Civil Code and Above Article Compared
Under Art. 85 of the Civil Code, there are six grounds for
annulment of marriage, namely:
(1) Lack of parental consent in cases
where the parties needed the same;
(2) The existing prior marriage of a
person who, because of the absence of
his or her spouse, marries again;
(3) Insanity of one of the parties;
(4) Fraud vitiating the consent of one
the parties;
(5) Violence or intimidation that
vitiated the consent of one of the
parties; and
(6) Impotency (Physical incapability to
copulate) of one of the parties.
Under the above Article of the Family Code, however, the
following changes have been made to Art. 85 of the Civil
Code:
(1) The ground of prior existing marriage (par.2 of
Art. 85 of the Civil Code) has been eliminated
because under Art. 42 of the Family Code, there
is no need to annul the second marriage of the
present spouse upon the reappearance of the
absent spouse, since said second marriage is
automatically terminated by the recording of the
absent spouses reappearance in the office of the
local civil registrar.
(2) Undue influence has been added to par. 5 of
Art. 85 of the Civil Code as ground for annulment
of marriage.
(3) Par. 6 of Art. 85 of the Civil Code has been
amended by the Family Code by making both
absolute and relative impotency (physical
 incapability of consummating the marriage with
the other spouse) ground for annulment of
marriage.
Another ground for annulment of marriage has been added;
if either party is afflicted with a sexually transmissible
disease found to be serious and appears to be incurable.
Grounds for Annulment of Marriage Explained:
1. Lack of parental consent:
(a) This applies to parties who, being 18 years and
above but below 21 years of age, get married
without parental consent.
(b) The marriage may, however, be ratified if the
parties freely cohabit with each other upon
reaching 21 years of age. Mere transient sexual
intercourse is not sufficient.
Tolentino believes, however, that the parents
may ratify the marriage before the child reaches
the proper age, since parental consent is all the
law requires, so that it is immaterial that consent
is given in advance or after the marriage by
ratification. Besides, the parents can ask for the
annulment of the marriage before the child
reaches the age when he or she can already get
married without personal consent, and this right
of the parents can be waived. (1 Tolentino, id.,
280).
(c) The parents who did not give consent cannot
ratify the marriage by giving consent after the
marriage.
2. Insanity of one of the parties:
(a) For distinction between insanity and
psychological incapacity under Art. 36 which is a
ground for the declaration of nullity of marriage.
(b) The marriage can be ratified by the same
partys cohabitation with the other after the
latters insanity has been cured (i.e., the latter has
returned to reason), because insanity is
sometimes curable.
(c) Mere mental weakness that does not deprive
a party of the capacity to understand and
appreciate the consequences of the step he or
she is taking, does not affect the validity of the
marriage, unless it amounts to psychological
incapacity to perform the essential marital
obligations under Art. 36, in which case the
marriage may even be declared null and void.
(d) Intoxication which results in lack of mental
capacity to give consent is equivalent to insanity;
so is somnambulism.
(e) The insanity of one party must exist at the time
of the marriage, not prior or subsequent thereto.
(f) Since the presumption of the law is generally
in favor of sanity, the burden of proof is on the
party who alleges the insanity of the other.
Fraud:
(a) Not all kinds of fraud will justify the annulment
of marriage, but only those enumerated in Art. 46
of the Code.
(b) See comments under Art. 46.
(c) The marriage maybe ratified by free
cohabitation between the parties after full
knowledge of the fraud.
4. Force, intimidation, or undue influence:
(a) The definition of violence, intimidation,
and undue influence are found in Arts. 1335 to
1337 of the Civil Code.
Art. 1335. There is violence when in order to
wrest consent, serious or irresistible force is
employed.
There is intimidation when one of the contracting
parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon
his person or property, or upon the person or
property of his spouse, descendants or
ascendants, to give his consent.
To determine the degree of the intimidation, the
age, sex and condition of the person shall be
borne in mind.
A threat to enforce ones claim through
competent authority, if the claim is just or legal,
does not vitiate consent.
Art. 1336.Violence or intimidation shall annul the
obligation, although it may have been employed
by a third person who did not take part in the
contract.
Art. 1337. There is undue influence when a
person takes improper advantage of his power
over the will of another, depriving the latter of a
reasonable freedom of choice. The following
circumstances shall be considered the
confidential, family, spiritual and other relations
between the parties, or the fact that the person
alleged to have been unduly influenced was
suffering from mental weakness, or was ignorant
or in financial distress.
Ruiz v Atienza, CA, O.G. 1903
The threat to enforce a legal claim, like a threat to file
a case for immorality against a bar candidate if he
does not marry a girl with whom he had carnal
knowledge, does not vitiate consent to a
marriage.
Tiongco v Matig-a, 44 O.G. No. ,1, p.96)
The threat or intimidation must be of such a
nature as to prevent the victim from acting as a
free agent. Thus, where a man was threatened
with armed demonstrations by the brothers of
the woman in order to marry the latter, the
marriage was held annullable.
People v. Santiago, 51 Phil. 68
Where a man rapes a girl and then forces her to
marry him in order that he may not be
prosecuted for rape, but no intention to live with
the girl, the marriage is annullable.
The Code Committee added undue influence as a
ground for annulment of marriage because while
the fear that induces a person to enter into a
marriage may not strictly be founded on any
threatened physical, material, or moral harm, he
may be compelled to enter into a marriage out of
reverential fear, i.e, fear of causing distress,
disappointment or anger on the part of one
whom a person has been conditioned to revere,
respect, or obey out of a special debt of gratitude,
like his parents, grandparents, god parents,
employer, etc.
5. Impotency
(a) This refers to lack of power to copulate, not
to mere sterility.
Sara v. Guevarra, C.A., 40 O.G 263
The impotency of one party must be present at
the time of the marriage, must be continuous,
and must appear incurable. Thus, where the
impotency can be removed by surgical operation,
the marriage is not annullable
Only the potent spouse can file the action for
annulment and he or she must not have been
aware of the others impotency at the time of the
marriage.
If both spouses are impotent, the marriage
cannot be annulled because neither spouse is
aggrieved by the other.
Impotency due to old age is not a ground for
annulment, since one who married an old person
 takes a calculated risk that the latter may be
impotent.
Jimenez v Canizarez, L-12790, Aug. 31, 1960
Potency is presumed, and the party who alleges
that the other is impotent has the burden of
proving his allegation.
Although the general rule is in favor of potency,
there is a doctrine applied in England and by some
U.S. courts called the doctrine of triennial
cohabitation to the effect that if the wife still
remains a virgin after living together with the
husband for 3 years, the latter is presumed
impotent, and he will have to present evidence to
overcome this presumption (Tompkins v
Tompkins, 92 N.J. eg. 113, 111 Atl. 599).
Jimenez v. Canizares, L-12790, Aug. 31, 1960
Can the court assume that the wife is impotent
and annul the marriage upon complaint of her
husband if she refuses to submit to a physical
examination to determine her potency?
HELD: NO
Ratio: The refusal of the wife to be examined
does not create a presumption of her impotency
because Filipino girls are inherently shy and
bashful. The trial court must order the physical
examination of the girl, because without proof of
impotency, she is presumed to be potent. To
order her to submit to a physical examination
does not infringe on her constitutional right
against self-incrimination
NOTE: If the girl refuses to be examined after
having been ordered by the court to do so, she
can be held guilty of contempt and ordered
confined in jail until she complies with the order
of the court.
Relative Impotency: This may now be invoked as
a ground for annulment under the Family Code;
i.e, the physical incapability one party to
consummate the marriage with the other.
The Committee has decided to include relative
impotency of one party as a ground for
annulment of marriage because there are cases
where a person is impotent with respect to his
spouse but not with other men or women.
Example:
1. a man may not be able to harness penile
erection with his wife but can do so with other
women; or
2. a mans genitals are too big that he cannot have
intercourse with the genitals of his wife but can
do so with a woman but can do so with a woman
who, having also abnormal genitals, matches his
functionally for coitus.
(6) Affliction of sexually-transmissible disease found to be
serious and which appears incurable.
How May Voidable Marriages be Ratified or Convalidated?
A voidable marriage may be ratified or convalidated by
cohabitation and by prescription.
Certain marriages, however, cannot be ratified or
convalidated by free cohabitation; namely:
(1) Those vitiated by a prior subsisting marriage,
since the cause of nullity of this marriage exists as
long as the absent spouse is alive. Besides, to
allow its ratification would result in the
anomalous situation of one person having two
living spouses;
(2) Those vitiated by the impotency of one
spouse, since the cause of nullity does not cease
to exist as long as such impotency of the spouse
remains; and
(3) Those vitiated by the affliction of one spouse
of a sexually-transmissible disease found to be
serious and appears to incurable, since like
impotency, the cause of the nullity of the
marriage remains as long as the sick spouse
remains so afflicted.
The action to annul a marriage on grounds (2) and
(3) above, however, prescribes within five years
after the marriage Art. 41 (5)).
Art. 46. Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other than her husband;
(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.
Provision of Art. 86 of the Civil Code and Above Article Compared:
Under Art. 86 of the Civil Code, the frauds that constitute
grounds for annulment of marriage are only the following:
(1) Misrepresentation as to the identity of one of
the contracting parties;
(2) Non-disclosure of the previous conviction of
the other party of a crime involving moral
turpitude, and the penalty imposed was
imprisonment for two years or more; and
(3) Concealment by the wife of the fact that at
the time of the marriage he was pregnant by a
man other than her husband.
The above Article of the Family Code amends Art. 86 of the
Civil Code as follows:
(1) Mistake of one of the contracting parties as to
the identity of the other has been included as a
ground to declare the marriage void under Art.
35, the reason being that if one party is mistaken
as to the identity of the other, whether through
the others fraud or for any other reason, the
former did not really give consent to the
marriage, and the marriage is void for lack of valid
consent on the part of the party mistaken. If the
party is guilty of fraud, however, he is criminally
and civilly liable.
(2) The above Article of the Family Code has
eliminated the requirement that the penalty
imposed should be imprisonment for two years
or more in the fraud of one party consisting of
his non-disclosure of a previous conviction of a
crime involving moral turpitude. Under the above
Article, all such non-disclosure of a previous
conviction of a crime involving moral turpitude
constitute fraud that can justify the annulment of
a marriage, irrespective of the penalty imposed,
since the important thing is that the party guilty
of such non-disclosure is lacking in good moral
character, and the other party did not know
about it.
(3) The above Article adds two other
concealments (in addition to concealment by the
wife of the fact that at the time of the marriage
she was not pregnant by a man other than her
husband) as also constituting fraud that can be a
ground for annulment of marriage, namely:
(a) Concealment of a sexually-
transmissible disease regardless of its
nature, existing at the time of the
marriage: and
 (b) Concealment of drug addiction,
habitual alcoholism, homosexually or
lesbianism existing at the time of the
marriage.
(4) To the other misrepresentations that do not
constitute fraud that give ground for annulment
of marriage in Art. 86 of the Civil Code namely,
misrepresentations as to character rank, fortune,
or chastity, the above Article of the Family Code
adds misrepresentation as to health.
In other words, concealment by one party that he
is seriously ill because of cancer, heart trouble,
high blood pressure, diabetes, etc. does not
constitute a ground for annulment of marriage.
Concealment of a Sexually-Transmissible Disease as Fraud
Under Art. 46 (3) Distinguished from Affliction with a
Sexually Transmissible Disease as Ground for Annulment of
Marriage under Art. 45 (6)).
In Art 45 (6), the fact that one party is afflicted with a
sexually-transmissible disease found to be serious and
appears to be incurable is a ground for annulment of
marriage, whether such fact was concealed or not from the
other party, as long as the disease was present at the time
of the marriage.
The sick party might not even have known of his own illness
at the time of the marriage, but once the illness is
discovered, the other party is entitled to annul the
marriage, on the theory that if she or he had known about
it, she or he would not have consented to the marriage.
The healthy party, because of love and compassion for the
sick party, might not after all annul their marriage, but he
or she should be given the right to annul the same,
considering the seriousness of the other's illness, which
may not only be transmitted to the healthy spouse but may
even have serious effects on their offspring. (Examples:
AIDS, herpes)
In Art. 46. (3), the concealment of a sexually-transmissible
disease by the sick party from the other party which
constitutes fraud that would justify the annulment of their
marriage refers to any kind of sexually-transmissible
disease, regardless of its nature.
The healthy party can annul the marriage on the ground of
fraud.
Concealment of Conviction of a Crime Involving Moral
Turpitude as Constituting Fraud that may be a Ground for
Annulment of Marriage:
As already stated, while Art. 86 of the Civil Code provides
that the penalty for the previous conviction of one party of
a crime involving moral turpitude that he or she did not
disclose to the other party should be imprisonment for
two years or more, the above Article of the Family Code
does not mention any penalty, so that as long as the crime
of which one party was convicted involved moral turpitude
and such fact was concealed from the other party, the latter
can ask for annulment of their marriage on the ground of
fraud.
The wisdom of this provision is very doubtful. This is really
a deceit as to character, and has no essential bearing upon
the marital relations of the parties. The concealment of a
woman of a previous life of prostitution would be a more
serious fraud than mere conviction for theft or estafa with
a penalty of two years or more; and yet; while the former
fraud as to character would not be a ground for annulment
the latter is made so by this article. Besides, there are
serious offenses involving moral turpitude under special
statutes, for which either fine or imprisonment may be
imposed in the discretion of the court; if the court imposes
a penalty of fine of, say, P10,000, instead of a possible
imprisonment of ten years, the concealment of this
conviction would not constitute fraud under. (1 Tolentino,
id., 289-290).
Concealment of Fact that Wife was Pregnant by Another
Man as Constituting Fraud that would be a Ground for
Annulment of Marriage:
(1) This is a very serious fraud that goes to the
very essence of marriage, for one of the most
important objects of marriage is procreation of
children, and a husband has the right to require
that his wife shall not bear to his bed aliens to his
blood and lineage (Tolentino, id., p.290)
(2) But where the wife was already at an
advanced stage of pregnancy at the time of the
marriage, the husband can no longer invoke fraud
as the condition of his wife was already patent to
him when they got married (Buccat v. Mangahas,
72 Phil. 19).
(3) The fact that the wife was formerly prostitute
or has delivered a child buy another man before
her marriage does not constitute a ground for
annulment of marriage on the ground of fraud,
for it is not included in Art. 46 (2). The husband
should have investigated his wifes background
before he married her.
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) 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) For causes mentioned in number 3 of Articles 45, by
the injured party, within five years after the discovery of the fraud;
(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) For causes mentioned in number 5 and 6 of Article
45, by the injured party, within five years after the marriage.
Under this Article, in relation to Art. 45, the following
diagram shows the parties entitled to file the action for
annulment under each ground, the corresponding period of
prescription of action, and whether the defective marriage
can be ratified or not:

Periods of Prescription under Art. 87 of the Civil Code:
Note that under Art. 87 of the Civil Code, some periods of
prescription for the filing of the action for annulment of
marriage are different from those prescribed in the above
Art. 47 of the Family Code, to wit:
(1) In case of lack of parental consent, the period
or prescription for the filling of the action for
annulment by the minor whose parent did not
give parental consent is within four years after
reaching 18 for the girl and 20 for the boy.
(2) In case of fraud, the period of prescription is
within 4 years from the discovery of the fraud.
(3) In case of violence or intimidation, the period
of prescription is within 4 years from the
cessation of the violence or intimidations;
(4) In case of impotency of one parties, the period
of prescription is within 8 years from the date of
the marriage.
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.
Under Art. 88 in relation to Art. 101, par.2, of the Civil Code,
it is only when the defendant does not appear that the court
is required to order its fiscal in behalf of the State after
ascertaining that there was no collusion between the
parties. Under the above Article, however, the trial of the
court shall be ordered to appear whether the defendant
appears or not.
The reason for the intervention of the trial fiscal of the court
at the trial of any case involving the annulment or
declaration of nullity of a marriage is because marriage is
not just a contract between the parties but a social
institution in the preservation of which the State is
interested.
The above is also the reason why the second paragraph of
the above Article provides that no judgment annulling a
marriage or declaring it void ab initio shall be based upon a
stipulation of facts or a confession of judgment. The
purpose of this provision, which is also found in Art. 88 of
the Civil Code, is to prevent collusion between the parties
in obtaining a decree of annulment or declaration of nullity
of their marriage.
If, in spite of the above safeguards, the parties still succeed
in obtaining a decree of annulment or declaration of nullity
of marriage, through collusion, the decree is absolutely
void.
Art. 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses,
the Court shall provide for the support of the spouses and the
custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said
children and their choice of the parent with whom they wish to
remain as provided for in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
The support of the spouses and the children during the
pendency of the case shall of course come from the
absolute community or conjugal properties of the spouses.
After the annulment or declaration of the nullity of the
marriage, support between the spouses shall already cease,
since they are no longer husband and wife and have n more
duty to support each other but they shall continue to
support their children.
As to custody of the children, the court should be guided by
the best interests and welfare of said children, taking into
account all relevant considerations, as well as the choice of
the child over seven years of age as to the parent he would
like to live with, unless the parent chosen is unfit (Art. 213,
first par).
No child under seven years old shall, however, be separated
from the mother, unless the court finds compelling reasons
to order otherwise (art. 213, second paragraph).
The Code Committee agrees with the Civil Code that a child
below seven years is still a baby who needs the loving care
of his or her mother, and no one in the world can take
better care of a child than the mother.
The Court shall also provide for appropriate visitation rights
of the other parent.
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final judgment
under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children, and the
delivery of third presumptive legitimes, unless such matters had
been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
(1) The provisions of Art. 43, par. (2) to (5), and Art. 44, shall
also apply in proper case to marriages declared void ab
initio or annulled under Arts. 40 and 45 hereof. Thus, in the
liquidation of the absolute community or conjugal
partnership properties of the annulled marriage, the
following rules shall apply:
(a) The share of the party who acted in bad faith
in the net profits shall be forfeited in favor of the
common children or, if none, the children of the
guilty spouse by a previous marriage, or in default
of such children the innocent spouse.
(b) Donations by reason of marriage shall remain
valid, but donations in favor of the guilty spouse
shall be revoked by operation of law.
(c)The designation by the innocent spouse of the
guilty spouse as beneficiary in any insurance
policy may be revoked even if such designation is
stipulated as irrevocable.
(d) The spouse in bad faith shall be disqualified to
inherit from the innocent spouse by testate or
intestate succession.
(e) If both spouses are guilty, donations by reason
of marriage and testamentary dispositions made
but one in favor of the other shall be revoked by
operation of law.
Note that if the marriage is declared void ab initio,
the parties would not have an absolute
 community or conjugal partnership of property,
and the rules in Arts. 147 and 148 on Property
Regime of Unions Without Marriage would
apply.
(2) The final judgment of annulment or declaration of nullity
of marriage shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody
and support of the common children, and the delivery of
the presumptive legitimes of said children, unless such
matters had already been adjudicated in previous
proceedings.
(3) All creditors of the spouses as well as of their absolute
community or conjugal partnership shall be notified of the
proceedings for liquidation and should be allowed to
intervene to protect their interests.
(4) In the partition, the conjugal dwelling and the lot on
which it is situated shall be adjudicated in accordance with
Arts. 102 and 129, i.e,
(a) Said house and lot shall be adjudicated to the
spouse with whom the majority of the common
children should choose to remain.
(b) Children below 7 years are deemed to have
chosen the mother, unless the court decides
otherwise.
(c) In case there is no majority (of the common
children), the court shall decide, taking into
account the best interests of the children.
Art. 51. In said partition, the value of the presumptive legitimes of
all common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate successional rights
of the children accruing upon the death of either of both of the
parents; but the value of the properties already received under the
decree of annulment or absolute nullity shall be considered as
advances on their legitime.
(1) In the partition of the net profits of the absolute
community or conjugal properties between the spouses,
the value of the presumptive legitimes of their common
children, computed as of the date of the final judgment of
the court, shall be delivered to them in cash, property, or
sound securities unless the parties have already provided
for such matters and their agreement has been approved
by the court.
(2) If the delivery of the childrens presumptive legitime is
not made although ordered by the court, the children, or
their guardians or trustees, may ask the court to enforce
said judgment.
(3) The delivery of the presumptive legitimes of the children
shall be considered as advances on their legitimes and shall
not prejudice their ultimate successional rights accruing to
them upon the death of either of their parents.
Art. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons.
(1) The judgment of annulment or absolute nullity of
marriage, the partition and distribution of the properties
of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded:
(a) in the appropriate civil registry; and
(b) in the registries of property of the places
where the real properties distributed and
delivered are located.
(2) Third persons will not be affected and prejudiced by the
aforesaid judgment unless the recording aforementioned is
complied with.
Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall be null and void.
(1) Either of the former spouses may marry again after
complying with the requirements of the immediately
preceding articles.
(2) If any of them marries again without complying with
such requirements, the subsequent marriage shall be null
and void.
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.
(1) Children conceived or born of the subsequent marriage
under the immediately preceding article shall, however, be
legitimate, although said subsequent marriage is null and
void. The Committee does not want the children to suffer
because of the fault of their parents.
(2) Children conceived or born before the judgment of
annulment of marriage under the preceding provisions shall
be considered legitimate. This is because voidable or
annullable marriages are valid until annulled.
(3) Children of marriages that are judicially declared null
and void or void ab initio are, however, illegitimate (Art.
165), except for children born of the void marriages under
Art.36 and under the immediately preceding Art. 53.
(4) Note that there are no more natural children by legal
fiction under the Family Code, which classifies children only
as legitimate or illegitimate (Art. 164 and 165).
LEGAL SEPARATION
DISTINCTIONS:
Absolute divorce (a vinculo matrimonii) dissolves the
marriage and the parties can marry again.
Legal separation or relative divorce (a mensa et thoro) is
only separation from bed and board but the parties remain
married.
Brief History of Divorce and Legal Separation in the Philippines:
Spanish Regime:
The law on divorce in the Philippines was the Siete Partidas
which fallowed only legal separation. The provisions of the
Civil Code of Spain on the subject were among those
suspended by Gov. Gen. Weyler on December 29, 1989 and
had never been in force since then.
March 11, 1917:
Act 2710 was passed by the Philippine Legislature repealing
the Siete Partidas by allowing absolute divorce but only the
two grounds; adultery on the part of the wife and
concubinage on the part of the husband, and previous
conviction was necessary to prove the aforementioned
offenses.
Japanese occupation:
A new law on absolute divorce (E.O. No. 141) was
promulgated providing for ten grounds for divorce. This law
was effective until October 23, 1944, when Gen. Douglas
MacArthur reestablished the Commonwealth Government
by proclamation which in effect repealed E.O. No. 141 and
revived Act 2710.
Act 2710 was repealed by the Civil Code of the Philippines
which allows only legal separation. The absolute divorce,
but during the discussions of the Code in Congress and with
the strong opposition from the Catholic population of the
country, absolute divorce was eliminated and substituted
with legal separation.
 The Family Code also does not allow divorce (except a
divorce obtained by the alien spouse of a Filipino citizen
abroad under Art. 26, sec, par.), but it has expanded the
grounds for legal separation into ten
Are Foreign Divorce Obtained by Filipinos Valid in the Philippines?
No, because divorce is not allowed in the Philippines, and
Filipinos cannot evade Philippine law by going abroad and
getting divorces there Under Art. 15 of the Civil Code of the
Philippines. Philippine law governs the status of Filipinos
wherever they may be and even if they are abroad.
Legal Separation Distinguished from Separation of Property:
(1) In legal separation, the common life of the spouses is
suspended, both as to person and as to properties.
In separation of property, only the property relations of the
spouses are suspended; that is, they may still be living
together, but their absolute community of property or
conjugal partnership is dissolved.
(2) Legal separation cannot be granted on mere agreement
of the parties (Art. 60).
Separation of property can be effected by agreement of the
parties, subject to court approval (Art. 134 and 136).
(3) Legal separation always involves separation of property.
There can be separation or property without legal
separation.
Legal Separation Distinguished from Separation De Facto:
(1) Legal separation can be effected only be decree of court,
while the parties can separate at any time without court
order.
(2) Legal separation necessarily results in the dissolution of
the parties absolute community of property or conjugal
partnership, the guilty party can no longer inherit from the
innocent party, and the formers share in the net profits of
the absolute community of property or conjugal
partnership is forfeited.
In separation de facto, the property relations of the spouses
remain guilty one spouse is, unless the innocent spouse
disinherits the guilty in his or her will.
Legal Separation Distinguished from Annulment of Marriage:
(1) In legal separation, the marriage is not defective; in
annulment, the marriage is defective.
(2) In legal separation, the grounds arise after the marriage;
in annulment, the grounds must exist at the time of or
before the marriage.
(3) In legal separation, the parties are still married to each
other and cannot remarry; in annulment, the marriage is set
aside and the parties can marry again.
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 the
petitioner to change religious or political affiliation;
(EXCEPTION FOR Art. 2) Sec.19, RA 9262 In cases of legal
separation, where violence as specified in this Act is alleged, Article
58 of the Family Code shall not apply. The court shall proceed on the
main case and other incidents of the case as soon as possible. The
hearing on any application for a protection order filed by the
petitioner must be conducted within the mandatory period specified
in this Act.
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without justifiable
cause for more than one year.
For purposes of this Article, the term "child shall include a
child by nature or by adoption.
Grounds for Legal Separation in the Civil Code and in the Family Code
Compared:
In the Civil Code, there are only two grounds of legal
separation:
(1) Adultery of the wife and concubinage of the
husband, both as defined in the Revised Penal
Code, although criminal conviction is not
necessary: and
(2) Attempt by one spouse against the life of the
other (attempted or frustrated parricide), and
again, criminal conviction is not necessary (Art.
97).
In the Family Code, however, there are ten
grounds for legal separation, thus answering the
long-standing need to broaden the grounds for
legal separation which the Civil Code limits to only
two.
ABUSIVE CONDUCT
(1) This may be directed against the petitioner, a common
child, or a child of the petitioner.
(2) This ground will give relief to wives who are often
maltreated or grossly insulted by their husbands. But even
wives can also be guilty of grossly abusive conduct against
their husband, like constant nagging of the husband by the
wife.
Physical Violence or Moral Pressure to Compel the
Petitioner to Change Religion or Political Affiliation (Art. 5
(2)).
This ground was included because there are known cases of
a husband inflicting violence or using force on his wife to
compel the latter either to follow his religion or his political
affiliation.
Attempt to Corrupt Petitioner or Child to Engager in
Prostitution (Art. 55 (3)):
(1) The one whom respondent has attempted to corrupt
may be his wife, their own daughter, a daughter of his wife
by a former marriage, or a natural child of the latter.
(2) Connivance in such attempt to corrupt or induce into
prostitution is also included.
(3) This is particularly important in recent times because of
the proliferation of child prostitution, sometimes with the
knowledge and consent of parents.
Drug Addiction or Habitual Alcoholism (Art. 55 (5
(1) This is a very common situation (especially habitual
alcoholism of one spouse) and the aggrieved spouse should
be given the remedy of at least legal separation if life has
become unbearable.
(2) If the drug addiction or habitual alcoholism of one
spouse was present at the time of the marriage and has
deprived him or her of the capacity to perform the essential
obligations of marriage, it can even amount to
psychological incapacity under Art. 36 which is a ground for
declaring the marriage null and void.
(3) If the habitual alcoholism was concealed from the other
spouse, it also constitutes fraud which is a ground for
annulment of marriage if present at the time of the
marriage (Art. 46 (4).
 Lesbianism or Homosexuality (Art. 55 (6):
(1) This means the desire by one spouse to the same sex
for sexual fulfillment.
(2) If it was already present at the time of the wedding, it
can be a ground either for declaring the marriage void
under Art. 36 (psychological incapacity) or for annulment of
the marriage, if it was concealed from the other spouse
(Art. 46 (4).
Contracting by One Spouse of Another Marriage (Art. 55 (7):
(1) This is a ground for legal separation, whether the second
marriage was contracted in the Philippines or abroad.
(2) If a Filipino gets a foreign divorce from his or her Filipino
spouse and marriage again, the second marriage is
bigamous; hence, it is a ground for legal separation, and
also for prosecution for bigamy.
(3) If the husband did not contract a second marriage but
is only living with another woman, the ground will be
sexual infidelity under par. (8) of this Article.
Sexual Infidelity of perversion (Art. 55 (8):
(1) This ground takes the place of the ground of adultery on
the part of the wife and concubinage on the part of the
husband in the Civil Code. This change answers the
demands of Filipino women for the elimination of the
double standard between men and women, since
concubinage on the part of the husband is very hard to
prove (the man usually just keeps a mistress in another
place but goes home to his wife every evening), while one
sexual intercourse with another man is already adultery on
the part of the wife.
(2) The ground of sexual infidelity also gives the court
leeway to determine whether the unfaithfulness of the
husband or the wife is sufficient to justify an action for
legal separation by other spouse.
(3) As to sexual perversion, the Code does not also define
the same to provide the court leeway in determining
whether the ground dos exist or not which may be
determined on a case-to-case basis.
Attempt by One Spouse Against the Life of the Other (Art.
55 (9):
(1) This implies intent to kill; i.e., attempted or frustrated
parricide.
(2) Mere infliction of physical injuries is not enough.
However, if it is repeatedly done, it can fall under par. (1)
of this Article. On the other hand, if the guilty spouse is
convicted and the party is more than six years, it would fall
under par. (4) of this Article.
(3) If the act of the respondent spouse is justified, as when
a husband catches his wife in the act of adultery, there is
no ground for legal separation.
(4) Likewise, if the respondent spouse acts in self-defense
or in defense of a child against the unlawful aggression of
the other spouse, there is no ground for legal separation.
(5) There is no need for criminal conviction for the ground
to be invoked.
(6) If the act is the result of criminal negligence, the ground
does not exist since there is no intent to kill.
Abandonment of One Spouse by the Other for More Than
One Year (Art. 55 (10):
(1) Abandonment is not mere separation, but when one
spouse leaves the family and the conjugal dwelling with no
intention of returning (Art. 101, this Code), Hence, there is
a complete cessation of marital relations between husband
and wife both personal and property, as well as parental
relations with the children.
(2) The abandonment must be without justifiable cause.
(3) The abandonment must be for more than one year.
(4) If there is only physical separation between the spouses,
but they still support each other and also support and
maintain the children, there is no abandonment.
Reference to Child in this Article Includes Adopted Child.
By express provision of the last paragraph of this Article,
all references therein to child includes a child by nature
(whether legitimate or illegitimate) or a child by adoption.
Art. 56. The petition for legal separation shall be denied on any of
the following grounds:
(1) Where the aggrieved party has condoned the offense
or act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(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
Defenses to Legal Separation the Same as in Civil Code.
This Article provides for the same defenses to an action for
legal separation as those in the Civil Code, except that the
Family Code has simplified the provisions of the Civil Code
on the defenses by putting them all in one Article.
Defenses Discussed:
1. Condonation (Art. 56 (1):
(a)Condonation is the forgiveness or pardon for the
guilty spouse by the aggrieved spouse.
(b) Condonation may be express or implied, as
sleeping together with the unfaithful wife after full
knowledge of her infidelity (Gines v Bugayong, 100 Phil.
616).
(c) Condonation comes after, not before, the
commission of the offense (People v Schneckenburger, 73
Phil. 413).
(d) While there may be implied condonation if the
innocent spouse has voluntary sexual intercourse with the
guilty spouse after full knowledge of the offense, there is no
condonation if the reason for the sexual intercourse was to
save the marriage and maintain harmony (Keezer, Marriage
and Divorce, p. 557) or for the purpose of attempting a
reconciliation but the attempt was unsuccessful (Hawkins v.
Hawkins, 286Pac. 747).
(e) Each sexual intercourse by the wife with another
man is a separate act of adultery. Therefore, condonation
of one act by the husband does not necessarily imply
condonation of the other acts. (People v Zapata and
Bondoc, L-3047, May 19, 1951).
(g) If the wife leaves the conjugal home after her
adulterous acts were discovered, the fact that the husband
does not actively look for her is not condonation. It is not
the duty of the husband to search for the wife; on the other
hand, it is the duty of the wife to return home (De Ocampo
v. Florencio, L-13553, Feb. 23, 1960).
(2) Consent (Art. 56 (2):
(a) Consent may be express or implied.
(b)Consent is prior to the act; condonation, after the act.
(People v Schneckenburger, supra; Matubis v Praxedes, Oct.
25, 1960, 109 Phil. 709).
People v. Schneckburger, supra
Where the spouses entered into an agreement that each
could live with and have carnal knowledge with other
persons without interference from each spouse, the
agreement is null and void being contrary to law and
morals, but it may be considered consent which bars an
action for legal separation. This is an example of express
consent.
Example of implied consent:
People v Sansano and Ramos, 59 Phil. 73
The husband was abandoned by the wife who later lived
with another man. The husband took no action against the
wife but even went to Hawaii. After 7 years, the husband
returned and filed an action against the wife for adultery.
The wife was acquitted on the ground the husbands
 conduct warranted the inference that he had consented to
the philandering of his wife.
(3) Connivance (Art. 56 (3)):
(a) A husband who actively connives in the adultery
of his wife by luring her into adultery cannot ask for legal
separation on the ground of connivance. It is the duty of
the husband to protect his wife from temptation and not
connive in her downfall. (I Tolentino, id, 313).
Keezer, Marriage and Divorce, pp, 500-551
A husband who hires a detective to spy on his wife and tells
the latter to have a sexual intercourse with her in order to
have evidence, is a case of connivance.
But connivance must be distinguished from
entrapment. Where a husband tells the wife that he is going
out of town but does not really go away but goes with a
lover and later surprises the wife in an act of adultery, there
is no connivance.
(4) Mutual Guilt (Art. 55 (4):
(a) Where both parties have given ground for legal
separation, neither can file an action for legal separation.
(b) The guilt may be of the same ground (like sexual
infidelity), or different grounds (like homosexuality on the
part of the husband and sexual infidelity on the part of the
wife).
This defense is based on the principle that a
person must come to court with clean hands. It matters not
whether it was the petitioner or the respondent who
committed the first offense, or one is more guilty than the
other.
Benedicto v. De La Rama, 3 Phil. 34
The parties being both guilty, there is no offended spouse
who deserves to file the action, and this is true even if one
spouse has been pardons by other spouse, but the latter
has not been pardoned.
5) Collusion (Art. 55 (5)):
(a) This is collusion between the spouses to obtain the
decree of legal separation.
(b) This means that the spouses agree to make it
appear in court that one of them has committed a ground
for legal separation, or to suppress evidence of a valid
defense to such action, for the purpose enabling the other
to obtain a decree of legal separation.
For example, one spouse files a case for legal
separation on the ground of the infidelity of the other, and
the charge, and does not also appear in court at all.
(c) Under Art 60 of the Code, legal separation cannot
be decreed on a stipulation of facts or a confession of
judgment (which can imply collusion between the parties),
and the court shall order its prosecuting fiscal to take steps
to prevent collusion between the parties and to take care
that the evidence presented by either of them is not
fabricated.
(6) Prescription of the Action (Art. 55 (6):
(a) If the action is already barred by prescription under
Art. 57, it will not prosper.
Brown b. Yambao, 102 Phil. 167
Even if prescription is not alleged, the court can take
cognizance thereof for purposes of dismissing the action,
since such action involves public policy and it is the policy
of the law that no decree of legal separation be issued if
there is a legal obstacle thereto appearing in the record.
Ocampo v. Florenciano, L-13553, Feb. 23, 1960
In the case of adultery by the wife, each act of sexual
intercourse is a separate act of adultery. Hence, the
prescriptive period shall be computed from the last act of
adultery, unless there was condonation or consent.
Contreras v. Macaraig, 33 SCRA 222
Where the wife but did not discuss the matter with her
husband, and it was only later that she confronted him and
he admitted the act, the period or prescription must be
computed from such admission and not from her receipt of
hearsay information about her husbands infidelity.
Art. 57. An action for legal separation shall be filed within five years
from the time of the occurrence of the cause.(102a)
This Article Amends Art. 102 of the Civil Code:
Under Art. 102 of the Civil Code, there are two periods to
consider in determining whether the action for legal
separation has prescribed, namely:
(1) The action must be filed within one year after
knowledge of the cause;
(2) The filing of the action must be within five years
from the occurrence of the cause.
The lapse of either period will bar the action, even if the
other period has not yet expired.
Juarez v. Turon, 51 Phil. 736
Thus, where the husband came to know of the adultery of
his wife in august 1950 but filed the action for legal
separation only in February, 1953, it was held that the
action has prescribed.
Under the above Article of the Family Code, however, the
first period (of one year from knowledge) ha been
eliminated since the experience of our courts shows that
many aggrieved spouses (mostly wives) could not comply
with such period (which is too short) since they still resorted
to other means (like consulting with their families, friends,
or spiritual, advisers, or prayers) before filing the actions for
legal separation.
The period for prescription under the above Article is now
within five years from the time of the occurrence of the
cause which is long enough for any aggrieved spouse to
discover the cause and to bring the matter to court. If he or
she still does not file the action within said period of five
years, he or she is deemed to have waived the right to file
the same or to have preferred not to file the action.
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. (103)
This Article is intended to give the spouses a chance to
reconcile. The 6-month period after the filing of the action
is a cooling-off period given by law to the spouses may
forgive the offending spouse, and reconciliation between
them nay take place.
EXCEPTION:
Sec.19, RA 9262
In cases of legal separation, where violence as specified in
this Act is alleged, Article 58 of the Family Code shall not
apply. The court shall proceed on the main case and other
incidents of the case as soon as possible. The hearing on any
application for a protection order filed by the petitioner
must be conducted within the mandatory period specified
in this Act.
Araneta v. Concepcion and Benitez Araneta. L9667, July
31, 1956, 52 O.G. 5165
Even during this period of 6 months, however, the court
must still provide for the support of the spouses and the
children as well as the custody of the children
Art. 59. No legal separation may be decreed unless the Court has
taken steps toward the reconciliation of spouses and is fully
satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
Like all cases involving spouses and members of the same
family, the court is enjoined to take steps toward the
reconciliation of the spouses and must be fully satisfied
that, despite such efforts, reconciliation is highly
improbable.
The purpose of this Article is to see to it that all venues for
reconciliation are exhausted to prevent the break-up of the
marriage, before legal separation is granted. The Court
must use its moral influence over the parties and its
persuasive powers to try to reconcile them.
Many parties in fact go to court in the heat of anger and
passion, without even talking to each other about their
problem, so that the Court must give them opportunities
 for communication as well as provide them with counseling
before it should hear the case on the merits.
Thus, it is the practice of family courts to set the case for
legal separation for reconciliation conferences many times,
and only when they do not succeed in reconciling the
spouses that they set the case for hearing on the merits.
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. (101a)
Legal Separation Cannot be Granted on Stipulation of Facts
or Confession of Judgments:
(1) There must be proof of the ground for legal
separation, not a mere stipulation or agreement of the
parties that such ground exists, or a confession of judgment
on the part of the respondent or defendant spouse. This
rule is intended to prevent collusion between the parties.
(2) Rule 19 of the Revised Rules of Court also requires
that in actions for annulment of marriage or legal
separation, the material facts alleged must be proved, and
a judgment on the pleading is not allowed.
(3) A decree of legal separation based on a mere
stipulation on a mere stipulation of facts of the parties,
without proof of such facts is void and of no effect.
(4) Proof of the facts may be either direct or
circumstantial, and mere preponderance of evidence is
enough, unlike in criminal case where there must be proof
beyond reasonable doubt.
(5) If the defendant does not answer the complaint or
appear at the trial, the plaintiff or petitioner must still
present his or her evidence.
Ocampo v Florenciano, 107 Phil. 35
Even if the defendant admits the allegations of the petition
or the complaint, if there is evidence of the ground for legal
separation independently of such admission, the decree is
still valid. What the law prohibits is a judgment based solely
on the defendants confession.
Intervention of the Trial Fiscal:
Under Art. 101, sec par., of the Civil Code, the court is
required to order the prosecuting attorney to inquire
whether collusion exist between the parties only in case of
non-appearance of the defendant, and if there is no
collusion, the prosecuting attorney shall intervene for the
State in order to take care that the evidence for the plaintiff
is not fabricated.
Under the above Article of the Family Code, however, the
court is required in every case to order its trial fiscal to take
steps to prevent collusion between the parties and to take
care that the evidence is not fabricated or suppressed.
In other words, whether the defendant answers the
complaint or not, and appears at the trial or not, the trial
fiscal must always be present at the trial in representation
of the State, and may cross-examine the witnesses and the
documentary evidence presented to prevent the
presentation of false evidence or the suppression of the
true evidence.
The fiscal can also oppose the complaint or petition through
presentation of his own evidence if in his opinion, the proof
presented by the plaintiff or the petitioner is insufficient,
dubious or fabricated.
Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules of
Court. (104a)
Effects of Filing of Petition for Legal Separation:
(1) After the filling of the petition for legal separation, the
spouses are already entitled to live separately from each
other. Hence, the wife can already have a domicile or
residence of her own independently of her husband.
(2) Since the parties are already entitled to live separately,
the husband has no more right to have sexual intercourse
with his wife and if he forces himself upon her, he can be
charged with rape.
(3) In the absence of an agreement between the parties, the
court shall designate the husband or the wife to manage the
absolute community or conjugal partnership property.
(4) The court may even designate a third person to
administer the properties of the couple.
(5) In every case, the administrator appointed by the court
shall have the same powers and duties as a guardian under
the Rules of Court. He or she cannot, thereof, alienate or
encumber, any property of the spouses without court
authority.
Art. 62. During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the
spouses and the custody and support of the common children.
(105a)
Provisions of Art. 49 Shall Apply during the Pendency of
the Action as to Support and Custody and Support of
Children:
See Comments under Art. 49.
Effect of Death of Plaintiff or Petitioner During Pendency
of Action
Lapuz, Sy v. Eufemio, 43 SCRA 177
An action for legal separation is purely personal between
the spouses. Hence, the death of one party causes the
death of the action itself and the action must be dismissed.
Lapuz, Sy v. Eufemio, supra
The wife brought an action for legal separation against her
husband on the ground of concubinage committed by the
latter, and prayed that the husbands share in their conjugal
partnership profits be forfeited.
It was held that the action did not survive the death of the
wife. Even if the action involved property rights of the
deceased wife, these rights were intransmissible, mere
effects of legal separation, and mere rights in expectation
before the finality of the decree. Hence, they cannot survive
if the plaintiff dies prior to the decree.
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.
(106a)
Although the parties have the right to live separately from
each, the obligation of mutual fidelity remains. Hence, the
wife may be convicted of adultery or the husband of
concubinage if either commits any of such crimes.
Since the right to cohabit or live together had ceased, the
husband cannot insist in having sexual intercourse with his
wife. If he forces her, he will be guilty of rape.
The wife can already establish a domicile separate from her
husband.
 (2) Absolute community or conjugal partnership between
the parties is dissolved:
(a) The absolute community or conjugal partnership
between the parties is dissolved, but the offending spouse
shall have no right to any share of the net profits, which
shall be forfeited in accordance with Art. 43 (2) in favor of
the common children of the spouses, I any, or the children
of the guilty spouse by a previous marriage, if any, or the
innocent spouse.
(b) In the Civil Code (Art. 106 (3) in relation to Art. 176),
there is no forfeiture if the conjugal partnership property
came mostly or entirely from the work or industry, or the
wages and salaries, or the fruits of the separate property,
of the guilty spouse. In the Family Code, the forfeiture of
the share of the guilty spouse is without exceptions.
(3) Custody of minor children shall be awarded to the
innocent spouse, subject to the provisions of Art. 213.
(4) Offending spouse disqualified from inheriting from
innocent spouse by intestate succession, and provisions in
his favor in will of latter revoked by operation law.
(a) In short, the offending spouse cannot inherit from the
innocent spouse in both testate and intestate succession.
(b) The offending spouse is not even entitled to the
legitime.
(c) Even if the offended spouse forgets or fails to revoke
a will in favor of the offending spouse, the will becomes
ipso jure revoked.
(d) If, however, the offended spouse executes another will
in favor of the offending spouse after the decree of legal
separation, the will shall be valid.
(e) The conviction of the wife of adultery does not
disqualify her to inherit from the offended husband, if there
is no decree of legal separation between them, for Art. 1032
of the Civil Code does not make such act of unworthiness
that would render the guilty spouse incapable of
succeeding from the innocent spouse.
To disqualify the wife from inheriting from the offended
husband, the latter must file a case of legal separation
against the former. This is also provided in Art. 1002. Civil
Code which states that in case of a legal separation, if the
surviving spouse gave cause for the separation, he or she
shall not have any of the rights granted in the preceding
articles (meaning the right to inherit by intestate
succession).
Support between the Spouses in Legal Separation:
(1) During the pendency of the proceedings the spouses
and the children shall be supported from the properties of
the absolute community or the conjugal partnership (Art.
198).
(2) After the decree of legal separation, the obligation
of mutual support between the spouses ceases (id)
(3) The court may, however, order the guilty spouse to
support the innocent one, specifying the terms of such
order, if the latter needs such support (id), considering that
they are still married.
Can the Wife Drop the Name of Her Husband after the
Decree of Legal separation?
No, because they are still married. And this is true
whether she is guilty party or not.
Laperal vs. Republic 6 SCRA 357 (Oct. 30, 1962)
The wife who has been granted legal separation cannot
petition to be allowed to revert to her maiden name for
the Civil Code prevails over the Rules of Court.
To allow the wife to revert to her maiden name after the
legal separation would also give the impression that she is
no longer a married woman when in truth, she is still
married to her husband.
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. (n)
This is a new provision in the Family Code. There is no
provision in the Civil Code expressly requiring the parties to
the case for legal separation to notify the court if they had
reconciled.
Thus, there are cases where after the decree of legal
separation, the court does not even know the parties have
already reconciled and the decree of legal separation, in
effect, has ceased to be effective.
The Family Code now requires the reconciling spouses to
file a joint manifestation under oath duly signed by both, in
the same proceeding for legal separation. And this is true
whether the proceeding is still pending or it has already
been terminated by a decree of legal separation.
Art. 66. The reconciliation referred to in the preceding Articles shall
have the following consequences:
(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. (108a)
Art. 67. The agreement to revive the former property regime
referred to in the preceding Article shall be executed under oath and
shall specify:
(1) The properties to be contributed anew to the restored
regime;
(2) Those to be retained as separated properties of each spouse;
and
(3) The names of all their known creditors, their addresses and
the amounts owing to each.
The agreement of revival and the motion for its approval
shall be filed with the court in the same proceeding for legal
separation, with copies of both furnished to the creditors
named therein.
After due hearing, the court shall, in its order, take measure
to protect the interest of creditors and such order shall be
recorded in the proper registries of properties.
The recording of the ordering in the registries of property
shall not prejudice any creditor not listed or not notified,
unless the debtor-spouse has sufficient separate properties
to satisfy the creditor's claim. (195a, 108a)
Effects of Reconciliation of the Spouses:
(1) On their personal relations:
(a) Reconciliation means resumption of cohabitation
and marital relations.
(b) It is a bilateral act requiring the common consent
of the spouses express or implied commits another act
constituting a ground for legal separation, the innocent
spouse can file another action for legal separation based on
the new ground.
(c) Mere friendly relations between the spouses,
without actual living together as before, is not sufficient to
constitute reconciliation.
(d) After reconciliation, if one of the spouses
(2) On the proceedings for and decree of legal separation:
(a) If the proceedings are still, they will be terminated
in whatever stage.
(b) If there is already a decree of legal separation, it
will be set aside by a court order to that effect.
(c) It is only upon the issuance of a court order setting
aside the decree of legal separation that said decree
becomes ineffective. In the Civil Code, there is no
requirement of a court order, so that the court and third
persons do not know exactly when the decree of legal
separation is deemed rescinded by the reconciliation of the
spouses. In fact, they might not even know that the parties
have already reconciled.
 (d) The court order setting aside the decree of legal Whether benefit has accrued to the family prior to the objection or
separation shall be recorded in the civil registry where said thereafter:
decree was entered, as well as the civil registry of the place
where the parties reside, if they have changed residence Is the absolute community or the conjugal partnership
after the decree. liable for the acts or transactions of the spouse who acted
(3) On the property relation of the spouses: without the consent or notwithstanding the objection of
(a) Under the Civil Code, the reconciliation of the the other?
spouses results in the automatic revival of their conjugal If YES prior to the objection, absolute community or
partnership or other property regime that prevailed conjugal partnership is liable for the obligations
between them prior to the legal separation (Art. 108, sec. If profits accrued after the objection, the resulting
par.), without prejudice to acts and contracts executed by obligations of the spouse who acted without the consent of
the spouses during their separation (Art. 195). the other shall be enforced only against his or her separate
Under the above Art. 67 of the Family Code, properties.
however, the separation of property between the spouses Creditors who acted in good faith (i.e., without knowledge
and any forfeiture of the share of the guilty spouse shall of the objection) are, however, protected and will not be
continue to subsist after the reconciliation, unless the prejudiced in their rights.
spouses agree to revive their former property regime. Thus, they may go after the absolute community or conjugal
(b) If the spouses agree to revive their former property properties or the separate properties of the spouse with
regime, they shall execute an agreement under oath whom they contracted.
specifying:
(i) the properties they are contributing anew to the
restored regime;
(ii) the properties retained by each spouse as
separate property; and
(iii) the names and addresses of all known creditors
of each, the amounts owing to each, and the liens held by
each, if any.
(c) The spouses should then submit to the court the
above mentioned agreement of revival together with a
motion asking for its approval. The motion shall be
submitted in the same proceeding for legal separation.
(d) Copies of the agreement and the motion shall be
furnished the creditors named in the agreement.
(e) After due hearing, the court shall issue an order
approving the agreement but it shall take measured to
protect the interests of the creditors named therein.
(f) The court order approving the parties agreement
shall be recorded in the proper registries of property in all
the places where the spouses have properties. This
recording is in addition to the recording of the order setting
aside the decree of legal separation in the civil registry
where the decree of legal separation is recorded as well as
in the place where the parties reside, if they have changed
residence. In other words, there will be double recording in
the proper registries of property, and in the proper civil
registries.
(g) The recording of the said order shall not, however,
prejudice creditors not listed or not notified of the
proceedings, unless the debtor-spouse has sufficient
separate properties to satisfy the claims of such creditors.
In other words, the revival of the old property regime
between the parties is without prejudice to vested right
already acquired by6 creditors prior to such revival. In
effect, a legal lien is created in favor of unsecured creditors.
Thus:
(i) Contractual lien holders retain their lien;
(ii) Creditors without liens are given a legal lien;
(iii) In case of insufficiency of properties of the
debtor-spouse with which to pay his or her creditors, the
future share of said spouse in the community or conjugal
will answer for his personal obligation.
(h) There is no more publication of the proceedings,
because publication is very expensive and it is usually made
in newspapers that nobody reads. Anyway, creditors not
personally notified of the proceedings are not affected by
the same.
(i) The creditors not notified of the proceedings may
assert the claims against the debtor-spouse within the
ordinary periods of prescription.
(See Minutes of Committee meeting of March 9,
1985).