Aleezah Gertrude Regado

PERSONS AND FAMILY RELATIONS NOTES

BOOK 1 other codes, the Rules of Court, and in
PERSONS special laws. Capacity to act is not limited on
TITLE I --- CIVIL PERSONALITY account of religious belief or political opinion.

CHAPTER 1: A married woman, twenty-one years of age or

GENERAL PROVISIONS over, is qualified for all acts of civil life,
except in cases specified by law.
Art. 37. Juridical capacity, which is the
fitness to be the subject of legal relations, is
inherent in every natural person and is lost Restrictions on Capacity to Act:
only through death. Capacity to act, which is 1. Minority
the power to do acts with legal effect, is 2. Insanity or Imbecility
3. State of being deaf mute
acquired and may be lost
4. Prodigality
5. Civil Interdiction
ART 37 JURIDICAL CAPACITY AND
CAPACITY TO ACT Modifications/Limitations on Capacity to
Act
JURIDICAL CAPACITY TO ACT 1. Family relations
CAPACITY 2. Insanity
 Acquired upon  Not inherent in a 3. Imbecility
birth and is person ; 4. Trusteeship
terminated only  Attained or conferred 5. Insolveny
upon death Can likewise be lost 6. Penalty
not only by death but 7. Prodigality
by any valid cause 8. Age
provided by law 9. Alienage
 Passive  Active
 Inherent  Merely Acquired Art 38
 Can exist without  Exists with juridical  Restricts one’s capacity to act
capacity to act capacity Art 39
 Enumerates situations which merely
Art. 38. Minority, insanity or imbecility, the modify the capacity to act
state of being a deaf-mute, prodigality and
civil interdiction are mere restrictions on OBJECTIVE OF ARTICLES 38 AND 39
capacity to act, and do not exempt the  Make an overview of the situation that
incapacitated person from certain obligations, qualifies a person’s power to undertake
as when the latter arise from his acts or from acts which can produce legal effects
property relations, such as easements.  Intended to give people not adept with
technicalities of law, situations which
Art. 39. The following circumstances, among may effectively, juridically and legally
others, modify or limit capacity to act: age, affect such relationships.
insanity, imbecility, the state of being a deaf-  Consequences of these restrictions and
mute, penalty, prodigality, family relations, modifications in person’s capacity to act
alienage, absence, insolvency and are provided by:
trusteeship. The consequences of these 1. Civil Code
circumstances are governed in this Code, 2. Other Codes

[1]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
3. Special Laws
4. Rules of Court
CHAPTER 2:
NATURAL PERSONS
Art. 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.
Art. 41. For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mother's
womb. However, if the fetus 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.
** COMMENCEMENT OF CIVIL
PERSONALITY**
“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 Civ. Code” (Art 5, P.D
No. 603/ Child and Youth Welfare Code)
QUIMIGUING v. ICAO
FACTS:
 Carmen Quimiguing sued Felix Icao,
defendant although married succeeded in
having carnal intercourse without her
consent and as a result she became
pregnant.
 Carmen claimed support of P120.00 per
month, damages and attorney’s fees.
 Icao moved to dismiss for lack of cause of
action since the complaint did not allege that
child had been born; and after hearing
arguments, trial judge sustained defendant’s
motion and dismissed complaint.
[2]
RULING
 Conceived child, although not yet unborn,
is given by law a provisional personality of
its own for all purposes favorable to it, as
explicitly provided in Art 40 of Civ Code.
 Even if child is only “en ventre de sa
mere” just as a conceive child, even if as
yet unborn may receive donations and
its being ignored by parent in his
testament may result in preterition of a
forced heir that annuls the institution of
testamentary heir even if such child
should be born after death of testator.
 Art 40 prescribing “conceived chid shall
be considered born for all purposes that
are favorable to it” adds further “provided
it be born later with the conditions
specified I following article.
 Provisio however is not a condition
precedent to right of conceived child; for
if it were, first part of Art 40 would be
useless af.
BEGINNING OF PERSONALITY
GR: Birth determines Personality
EX:
Civil personality of child shall commence
from time of its conception, for all purposes
favorable to him subject to reqs of Art 41
Law considers conceived child as born for all
purposes favorable to him (if born alive)
Therefore child has a presumptive personality
which has the following characteristics:
1. Limited
2. Provisional or Conditional
EX:
 Concept of provisional personality
CANNOT be invoked to obtain damages
for and in behalf of an aborted child.
 Well, parents can in their own legal right
against doctor who caused abortion.
(Provided they must show that they have
not consented or acquiesced to abortion)
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
WHEN CHILD IS CONSIDERED TO BE BORN?
 Born if alive at time it is completely
delivered from mother’s womb.
 EX: If fetus had an intra-uterine life of less
than 7 months, it is not deemed born if it
dies w/in 24 hours after complete delivery
BIRTH CERTIFICATE
 Best evidence of fact of birth
 Public document once registered in Office
of Local Civil Registrar
 However:
Only prima facie evidence of facts
contained therein and can be rebutted by
competent evidence
(Sec 4 of Civil Registry Law Act No. 3753)
SUFFICIENT FOR REGISTRATION OF BIRTH IN
CIVIL REGISTER
Declaration of:
1.) Physician /Midwife in attendance at birth
2.) In default, declaration of either parent
WHEN
 Not later than 30 days AFTER birth
(duh, alangan namang before?!)
CERTIFIES THE FOLLOWING FACTS
1.) Date & Hour of Birth
2.) Sex & Nationality of infant
3.) Names, Citizenship & Religion of parents
Or in case father is not nown, of mother
alone
4.) Civil Status of parents
5.) Place of birth
6.) Such other data as may be required in
regulations to be issued
WHAT IF EXPOSED CHILD? #NATAGPUAN
 Person who found, report to local civil registrar
the
1. Place
2. Date
3. Hour of finding
4. Other attendant circumtances
ILLIGITIMATE CHILD
 Birth cert, sign and sworn jointly by parents or
only by mother (if no balls si poppa)
 If father refuses, it shall not be permissible to
state or reveal in documents the name of
father who refuses to acknowledge the child or
give therein any info by which such father
could be identified (Baka kasi mamaya
malandi ka, di naman talaga siya ang
fatherbells niyan)
[3]
CONFIDENTIALITY OF BIRTH RECORDS
 Cannot be revealed except in cases
provided by law.
 They are required to be confidential and
therefore not known to the public
 Nevertheless they still maintain there
nature as public documents because
following proper legal procedure, they can
be obtained by those interested therein.
(Child and Youth Welfare Code, Art 7)
EXCEPT UPON REQUEST OF ANY OF THE
FOLLOWING
1.) Person himself/person authorized by
him
2.) His spouse, parent/s, direct
descendants or guardian or institution
in charge of him (if minor)
3.) Court or proper public official
whenever absolutely necessary in
administrative, judicial or other official
proceedings to determine identity of
child’s parents or other circumstances
surrounding his birth
4.) In case of person’s death, the nearest
of kin
Art. 42. Civil personality is extinguished by
death.
The effect of death upon the rights and
obligations of the deceased is determined
by law, by contract and by will.
DEATH
 Puts end to Civil Personality
 “Death extinguished civil personality and
therefore, all further juridical capacity to
acquire or transmit rights and obligations of
any kind” (Butte v. Manuel Uy & Sons Inc)
DEATH CERTIFICATE
 Office of Local Civil Registrar of
Municipality or City must also have in its
custody the death certificates of persons
who died in its locality.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
(Sec 6 of Civil Registry Law)
 No human body shall be buried unless the
proper death certificate has been presented
and recorded in the office of local civil
registry
DEATH CERT SHALL CONTAIN
1.) Date & Place of Death
2.) Full name
3.) Age
4.) Occupation/Profession
5.) Residence
6.) Status as regards marriage
7.) Nationality of Deceased
8.) Probable Cause of Death
DURING EPIDEMIC
 Bodies may be buried provided the proper
death certs have been secured, which shall
be registered not later than 5 days AFTER
burial
CONTRACT, WILL AND THE LAW
 Rights & Obligations of dead person
can still be regulated by contract, will
or law.
 Creditors given right to claim for
estate of deceased, any obligation
due them before estate can finally be
partitioned in favor of heirs.
EXAMPLE:
Matias father of Kiki and Koko died.
Matias owes P20,000.00 from Nuknuk.
Therefore before Kiki and Koko enjoys
with the P50,000.00 left by there Sugar
Poppa, Nuknuk could first claim the
P20,000.00 due to him.
 Testator through express provision in a
will may disinherit any of his/her heirs
under any valid grounds provided by
law.
 Any person who shows disrespect to
dead or wrongfully interferes with
funeral shall bee liable to the family of
the deceased for damages, material or
moral.
Art. 43. If there is a doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
[4]
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.
PROOF OF DEATH
 Art 43 specifically applies only to persons
called upon to succeed each other.
 Proof of death must be established by
positive evidence
 However it can likewise be established by
circumstantial evidence derived from facts.
 “In conclusion, the presumption that
Angela Joaquin de Navarro died before her
son is based purely on surmises,
speculations or conjectures without any
sure foundation in the evidence. Opposite
theory, that mother outlived her son is
deduced from established facts which
weighed by common experience, engender
the inference as a very strong probability. “
(Joaquin v. Navarro)
PRESUMPTION OF SURVIVORSHIP
 If there is doubt as to whom, between or
among two or more persons called upon
to succeed each other died first, the
following rules apply
1. Whoever alleges death of one prior
to the other shall prove the same
2. In absence of proof, it shall be
presumed that they died at the same
time, therefor no transmission of
rights from one another
(Bes, ma-tetegi na nga lang, dami pa
hanash ng law sa who’s this and
who’s that…)
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
CHAPTER 3
JURIDICAL PERSONS
Art. 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; their personality begins as soon as
they have been constituted according to 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)
Art. 45. Juridical persons mentioned in Nos. 1
and 2 of the preceding article are governed by
the 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)
Art. 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.
JURIDICAL PERSON
 Being of legal existence susceptible of
rights and obligations or of being the
subject of juridical relations.
WHO ARE JURIDICAL PERSONS?
1. State and its Political Subdivisions
2. Corporations for public interest ( Quasi-
Public Corporations)
[5]
3. Corporations, Partnerships and
Associations for Private Interest
STATE
 Yup, Juridical person
 Is a sovereign person with people
composing it viewed as an organized
corporate society under a government with
the legal competence to exact obedience
of its commands.
 As a juridical person, state can enter into
treaties and contracts
 State cannot be sued w/o its consent.
 Suability depends on consent of state,
 Liability on applicable law and established
facts.
POLITICAL SUBDIVISIONS
 Municipal corporations and in the
Philippines consists of provinces, cities and
municipalities.
 May exercise either poitical or
governmental functons or private,
proprietary or corporate right.
 Officers and agents in performance of such
functions act in behalf of the municipalities
in their corporate or individual capacity and
not for state of sovereign power.
CORPORATION
 Governed by B.P Blg 68 otherwise known
as Corporation Code of the Philippines/
 May 1, 1980
 Is an artificial being created by law having
rights of succession and the powers,
attributes and properties expressly
authorized by law or incident to its
existence.
PARTNERSHIP
 By contract of partnership, two or more
persons bind themselves to contribute
money, property, or industry to a common
fund with the intention of dividing the profits
among themselves. Two or more persons
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
may also form partnership for exercise of (4) Those whose mothers are citizens of the
profession. Philippines and, upon reaching the age of
DISTICT PERSONALITY AND majority, elect Philippine citizenship;
EXCEPTIONS
 Corps, Partnerships & Associations for (5) Those who are naturalized in accordance
private interest and purpose may be with law.
granted by law a juridical personality
separate and distinct from that of each Art. 49. Naturalization and the loss and
shareholder, partner or member. reacquisition of citizenship of the Philippines
 Hence obligation of Tagay Corp is not an are governed by special laws.
obligation of its Tagay Board members.
(There is such thing as doctrine of Art. 50. For the exercise of civil rights and the
corporate veil) fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual
Art. 47. Upon the dissolution of corporations, residence.
institutions and other entities for public
interest or purpose mentioned in No. 2 of Art. 51. When the law creating or recognizing
Article 44, their property and other assets them, or any other provision does not fix the
shall be disposed of in pursuance of law or domicile of juridical persons, the same shall
the charter creating them. If nothing has been be understood to be the place where their
specified on this point, the property and other legal representation is established or where
assets shall be applied to similar purposes they exercise their principal functions.
for the benefit of the region, province, city or
municipality which during the existence of DOMICILE RESIDENCE
the institution derived the principal benefits Fixed permanent Place of abode,
from the same. residence; which when whether permanent or
absent one has temporary
intention of returning
Title II. - CITIZENSHIP AND DOMICILE Residence coupled No length of residence
with intention to without intention of
Art. 48. The following are citizens of the remaining will remaining will
Philippines: constitute a domicile constitute domicile.
(1) Those who were citizens of the Philippines ONLY ONE MAY BE AS MANY AS
at the time of the adoption of the Constitution YOUR MONEY
COULD AFFORD.
of the Philippines; “Domicile is like true love, you may wander over across the
surface of the Earth, but heart desires the intent of
(2) Those born in the Philippines of foreign returning to what it considers to be home”
“Residence, is the mistress you may seek from time to
parents who, before the adoption of said time..But without the intent to stay, it shall forever just be
Constitution, had been elected to public office province for comfort”
in the Philippines; ***MINOR = DOMICILE OF PARENTS
CAN A DOMICILE BE LOST AND CHANGED?
(3) Those whose fathers are citizens of the ---YEAHHHHHH
Philippines; BY:
1. Actual removal/ actual change of
domicile

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 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
2. Bona fide intention of abandoning the
former place of residence establishing a
new one
3. Acts which correspond with the purpose
CITIZENSHIP
 Status of being citizen or of owing
allegiance to the state for the privilege
of being under its protection.
 Art 4, 1987 Consti governs rule on
citizenship
Sec 1: The following are citizens of the
Philippines
1.) Citizens at time of adoption of consti
2.) Fathers and Mothers are citizens of Phil.
3.) Born before Jan 17,1973, of Filipino
mothers who elect Phil. Citizenship.
Those who elect Phil. Citizenship in
accordance with paragraph 3 Sec 1 shall
be deemed natural born citizens
Sec 3: Philippine citizenship may be lost or
reacquired in the manner provided by law
Sec 4: Citizens of the Philippines who marry
aliens shall retain their citizenship, unless
their act or omission they are deemed under
the law to have renounced it.
Sec 5: Dual allegiance of citizens is inimical
to the national interest and shall be dealt with
by law
JUS SANGUINIS
 Citizenship by blood
JUS SOLI
 Citizenship on basis of place of birth
ACQUISITION OF CITIZENSHIP
 Governed by Commonwealth Act No 473
as amended.
 For a foreigner to be the able to become a
Philippine Citizen, a proper petition shall be
filed in the proper court which after due
hearing shall issue the certificate of
naturalization.
Sec 2: Qualifications
[7]
1. Not less than 21 years of age on day of
hearing of petition
2. Resided in PH for continuous period of
not less than 10 years
3. Good moral character and believes in
principle underlying in PH consti and
must have conducted himself in a proper
and irreproachable manner during the
entire period of his residence in PH in his
relation with the constituted government
as well as with community in which he is
living.
4. Own a real estate in PH worth not less
than P5,000.00 or must have some
known lucrative trade, profession or
lawful occupation.
 However under present Consti,
no alien or foreigner may own land
except through hereditary
succession
5. Speak and write English or Spanish and
any one of the Principal Philippine
language
6. Must have enrolled his minor children of
school age
 Any public school or private
school recognized by the Office
of Private Education of
Philippines
 Where Phil. History, government
and civics taught or prescribed
as partu of the school,
curriculum, during the entire
period of the residence in PH
required of him prior to the
hearing of his naturalization as
PH citizen.
Sec 3: Special Qualification
 Years of continuous residence required
under second condition of last
proceeding section shall be understood
as reduced to 5 years for any petitioner
having any of the following qualifications
1. Honorably held office under the
government of PH or under that of
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
any of the provinces, cities,
municipalities or political subdivision
therof
2. Established new industry or
introduced a useful invention in PH
3. Married a Filipino woman
4. Engaged as teacher in PH in public
or recognized private school not
established for exclusive instruction
of children of persons of particular
nationality or race, in any of the
branches of education or industry for
a period of not less han 2 years.
5. Born in PH
Sec 4: Who are disqualified
1. Opposed to organize government or
affiliated with any association or group of
persons who uphold and teach doctrines
opposing all organized governments
2. Defending or teaching the necessity or
propriety of violence, personal assault, or
assassination for the success and
predominance of their ideas
3. Polygamists or believers in practice of
polygamy
4. Convicted of crimes involving moral
turpitude
5. Mental alienation or incurable contiguous
diseases
6. Persons who during period of their
residence in PH have not mingled
socially with the Filipinos or who have
not evinced a sincere desire to learn and
embrace all customs, traditions and
ideals of Filipinos
7. Citizens or subjects of nations with whom
PH are at war during the period of war
8. Citizens or Subjects of foreign country
other than US whose laws do not grant
Filipinos the right to become naturalized
citizens or subject therof
LOSS OF CITIZENSHIP
Grounds for loss of Citizenship
[8]
1.) Naturalization in foreign country
2.) Express renunciation of citizenship
3.) Subscribing to an oath of allegiance to
support consti or laws of foreign country
upon attaining 21 years of age or more.
PROVIDED:
Filipino may not divest himself of PH
citizenship in any manner while Republic of
PH is at war with any country
4.) By rendering service to, accepting
commission in armed forces of foreign
country
PROVIDED:
Rendering service to acceptance of such
commission in the armed forces of foreign
country and taking of an oath of allegiance
incident thereto with consent of Rep of PH
shall not divest a Fil of his PH citizenship if
either off the following circumstances is
present
a. Defensive and/or offensive pact of
allegiance with said foreign country
b. Foreign country maintains armed
forces of PH territory with consent of
Rep of PH
PROVIDED:
He does so only in connection w/ his
service to said foreign country
PROVIDED FINALLY:
Any Filipino citizen who is rendering
service to, or is commissioned in, the
armed forces of foreign contry under any of
the circumstances mentioned shall not be
permitted to participate nor vote in any
election during period of his service to
commission
Upon discharge, he shall automatically be
entitled to full enjoyment of his civil and
political rghts as Fil Citizens
5.) Cancelllation of cert of naturalization
6.) Having been declared by competent
authority a deserter of PH armed forces
in time of war unless subsequently, a
plenary pardon or amnesty has been
granted
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
7.) In case of a woman, upon her marriage
to foreigner if by virtue of laws in force of
her husband’s country she acquires his
nationality.

REAAQUISITION OF CITIZENSHIP
1. By naturalization
2. Reparation of deserters of Army, Navy or
Air Corps
3. Direct act of Congress of PH

FAMILY CODE (ART 1-6) REFER TO

HANDWRITTEN NOTES : PERSONS
NOTEBOOK

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 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
consent is essential to every marriage.
(Eaton v Eaton)
 State’s consent is manifested/ granted
vicariously by the people granted by state the
privileged authority to solemnize marriage.
The institution of marriage is so directly
conserned with public welfare that state is
third party thereto.
Art. 7. Marriage may be solemnized by: HOW DO YOU REMEMBER THE CONCEPT OF
(1) Any incumbent member of the PARTIES IN A MARRIAGE
judiciary within the court's
Officiates celeb
jurisdiction; STATE of marriage
through person
(2) Any priest, rabbi, imam, or minister of solemnizing the
any church or religious sect duly same
authorized by his church or religious
sect and registered with the civil  Such MAN person MUST have
WIFE
registrar general, acting within the authority from the
limits of the written authority granted government at time of celebration ofr
by his church or religious sect and marriage.
provided that at least one of the
 Article 7 defines the limits and scope of
contracting parties belongs to the
solemnizing officer's church or authority granted to the solemnizers.
religious sect;  IF THEY FAIL TO COMPLY W/ ANY
REQUISITES MANDATED BY LAW, such
(3) Any ship captain or airplane chief marriage is generally void in absence of a
only in the case mentioned in Article formal requisite (Authority of solemnizing
31;
officer) [except if parties believed in good
(4) Any military commander of a unit to faith that such person is authorize to do so]
which a chaplain is assigned, in the THE WHO?
absence of the latter, during a military 1. JUDGES  Can solemnize marriage
operation, likewise only in the cases ONLY w/in their court’s
mentioned in Article 32; jurisdiction
 If solemnized beyond his
(5) Any consul-general, consul or vice- jurisdiction, there is
consul in the case provided in Article absence of formal
10. requisite. Hence marriage
is void.
AUTHORIZED SOLEMNIZERS OF  When judge solemnizes
MARRIAGE marriage outside his
 Marriage have always been considered as court’s jurisdiction, there
involving questions of public policy and is resultant irregularity in
formal requisite laid down
interest of other than those of contracting
in Art 3, which may
parties and should therefore be construed in subject the officiating
accordance with such policy. (Cunningham v. official to administrative
Cunningham) liability [that statement is
 Need to limit persons who solemnize erroneous] Law clearly
marriage.State being an interested party, its provides that judge has

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 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
authority only if he/she religious sector
solemnizes w/in his/her -Written authority granted
jurisdiction. Non- to priest by his sect may
observance of this rule is impose limitation as to
not mere irregularity place where he could
because it generally solemnize marriage.
makes marriage null and (Navarro v. Domagtoy)
void. (Navarro v. Domagtoy) 3. SHIP  FOLLOWING
 But since principal issue CAPTAIN REQUISITES MUST
in Domagtoy case AND CONCUR
involves liability of judge AIRPLANE 1. Marriage in
and not validity of CHIEF Articulo Mortis
marriage, said statement 2. Between
is mere obiter dictum. passengers or
 Supreme Court justice crew members
could solemnize 3. Generally
marriages anywhere in the ship/plane must
Philippines (Jurisdiction is be at sea or plane
of National Scope) must be in flight
2. PRIEST,  A priest means one  Assistant Pilot
RABBI, especially consecrated to  Even if he assumes
IMAM OR service of a divinity and command .
MINISTER considered as the medium  No law allowing such
OF ANY
through whom worship, assumption of authority
CHURCH
OR prayer, sacrifice or other for purposes of
RELIGIO service o be offered to one solemnizing marriage
US being worshipped and  Marriages can be
SECTOR pardon, blessing, and solemnized during stop
deliverance, obtained by overs at ports of call.
worshiper as priest of [means that voyage is
Baal, or of Jehovah or a not yet terminated.]
Buddhist priest. (Adong v. 4. MILITARY  FOLLOWING
Cheong Seng Gee) COMMANDER REQUISITES MUST
 FOUR REQUISTES THAT CONCUR
MUST CONCUR TO 1. Must be a military
VALIDLY SOLEMNIZE A commander of unit
MARRIAGE 2. Commissioned
1. Duly authorized by Officer
religious sector 3. Chaplain must be
2. Act w/in limits of assigned to such
written authority unit
granted by church or 4. Chaplain must be
religious sect absent at time of
3. Register w/ civil marriage
registrar general 5. Marriage must be
4. At least one of one of articulo
contracting parties mortis
whose marriage 6. Contracting parties
he/she is to whether members of
solemnize belongs AF or civilians must
to his/jer church or be within zone of

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 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
military operation.
 If chaplain is present, he
must be the one who
should solemnize the
marriage (Art 7 (2) )
o COMMISSIONED
OFFICER means his rank
should start from 2nd
lieutenant, ensign and
above
o UNIT refers to a battalion
under present table of
organization and not mere
company
o WITHIN ZONE OF
MILITARY OPERATIONS
implies widespread of
military activity over area
and does not refer to a
simulated exercise beause
it requires absence of
civilian authorities
-May solemnize marriage
even if contracting parties do
not belong to his/her unit
?CHAPLAIN- member of a
religious clergy who does
work in armed forces
5. CONSUL-  Consular agent cannot
GENERAL solemnize marriage
, CONSUL  They can solemnize
OR VICE marriage abroad only
CONSUL when the contracting
parties are both Filipino
citizens
 They act as solemnizer of
marriage and perform
duties of local civil
registrar such as
issuance of marriage
license.
 Solemnities established
by PH laws shall be
observed in
execution.(Art 17 CC)
 Thus contracting parties
shall personally appear
before him and declare in
presence in not less than
2 witnesses of legal age
that they take each other
[12]
as husband and
wife.Declaration shall be
contained in a marriage
cert which shall be
signed by contracting
parties and their
witnesses and attested
by their solemnizing
officer
 Marriage may be
solemnized other place
provided they shall
request said official in
writing.
 Marriage between
Filipino and foreigner
abroad solemnized by
PH consul [VOID]
 Very authority of consul
is limited to Filipino
citizens. (absence of
formal req)
 EXCEPTION:
Marriage between
foreigner and Fil citizen
abroad solemnized by
PH consul assigned in
that country is recognized
as valid in said host
country. (Art 26)
 NOT AUTHORIZED TO
SOLEMIZE MARRIAGE
WITHIN PH
6. MAYOR  Local government code
of Jan 1, 1992
 Vice mayor of
municipality acting as
mayor has authority to
solemnize marriage.
GOOD FAITH OF PARTIES
 Under Art 35 (2), if marriage was
solemnized by person not legally
authorized to solemnize a marriage and
either the contracting parties believed in
good faith that such solemnizing officer
had such authority, then marriage shall be
considered as valid.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
VENUE
 Non-observance will not invalidate
marriage but can subject persons who
cause the violation to civil, criminal or
administrative liability
 EXCEPTIONS
1.) Articulo Mortis
2.) In a remote place in accordance with
Art 29 FC
3.) Both parties request a solemnizing
officer in writing
(Navarro v. Domagtoy)
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
PLACE OF ISSUE
 Local Civil registrar of city or municipality
where either of them resides.
 If contracting parties obtain marriage
license in place other than place where
ether of them resides, it is MERELY AN
IRREGULARITY (People v. Janssen)
R.A 10354
“The responsible parenthood and
reproductive health act of 2012”
 No marriage license shall be issued by
LCR unless applicants present a Certificate
[13]
of Compliance issued by Family planning
Office
 Certifying that they had duly received
adequate instructions and info on
responsible parenthood, family planning,
breast feeding and infant nutrition.
(well, yun lang most couples in PH, nanganak na
muna’t lahat lahat ng basketball team bago pa
magpakasal)
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.
CONSULAR OFFICIALS
 Duties of LCR and solemnizing officer:
performed by them abroad.
 Marriage ceremony shall be in accordance
with laws of the PH because Art 17 of CC
pertinently provides that when contracts,
among others are executed before
diplomatic or consular officials, among
others are executed before the diplomatic
and consular officials of RP in a foreign
country, solemnities by PH laws shall be
observed in their execution
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;
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
(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
PURPOSE OF DOCUMENTARY
REQUIREMENTS
 Concern of state to make marriages the
secure and stable institution they should be
(Kilburn v. Kilburn)
 Mainly, task of seeing to it that these
documentary proofs are accomplished is
addressed to Local civil registrar to secure
publicity and require a record to be made of
marriage contracted.
 It is also to discourage deception and
seduction.
 Prevent illicit intercourse under guise of
matrimony and relieve from doubt the status
of parties who live together as man and wife.
(State v. Walker)
MARRIAGE APPLICATION
 Can be obtained by ANYBODU
 LCR has no choice but to accept
application and process the same up to the
time of the issuance of the marriage
license.
[14]
 If LCR has knowledge of some legal
impediments, HE/SHE CANNOT
DISCONTINUE PROCESS OF
APPLICATION
 Must only note down the legal impediments
in application and thereafter issue marriage
license otherwise stopped by court.
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,
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
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.
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
[15]
authorized by law to administer oaths. The
personal manifestation shall be recorded in
both applications for marriage license, and
the affidavit, if one is executed instead, shall
be attached to said applications
NO EMACIPATION BY MARRIAGE
 No more emancipation by marriage under FC
 Emancipation is attained if child reaches age
of 18 years. (Art 234 as ameded by R.A
6809) [AN ACT LOWERING THE AGE OF
MAJORITY FROM TWENTY-ONE TO
EIGHTEEN YEARS, AMENDING FOR THE
PURPOSE EXECUTIVE ORDER
NUMBERED TWO HUNDRED NINE, AND
FOR OTHER PURPOSES]
 Emancipation shall terminate parental
authority over the person and property of the
child who shall then be qualified and
responsible for all acts of civil life, save the
exceptions established by existing laws in
special cases. (Art. 236.)
 The act by which one who was unfree. or
under the power and control of another, is
set at liberty and madeliis own master (Black
Law Dictionary)
PARENTAL CONSENT
 If any of the contracting parties not being
emancipated by previous marriage is =< 18
y/o but > 21. Consent of father, mother,
surviving parent, or guardian or persons
having legal charge of them. [in order
mentioned must be obtained before
marriage license can be issued to
contracting parties]
 Marrying age and majority are both 18
years of age.
 Nevertheless, contracting parties between
18 to below 21 MUST STILL obtain
consent of parents as required under 2nd
par of Art 236
 NON-COMPLIANCE however does ot
make marriage invalid or void but merely
annullable. Statute being regarded as
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
directory only in absence of any provision (21), they shall, in addition to
the requirements of marriage,
declaring such marriage absolutely void. secure the consent to their
(Browning v. Browning) marriage of their father,
 Parental consent required of parties does mother, surviving parent or
guardian, or persons having
not add anything to legal capacity of said legal charge of them, in the
comtracting partees, as the law itself order mentioned (Article 14,
declares that people 18 y/o and above can Ibid.).

legally and validly contract marriage.

 Required parental consent provision simply
Art. 15. Any contracting party between the
means that said contracting parties “may
age of twenty-one and twenty-five shall be
not be licensed to marry upon their own
obliged to ask their parents or guardian for
consent alone, but consent of parents must
advice upon the intended marriage. If they do
be added thereto” (Cushman v. Cushman)
not obtain such advice, or if it be unfavorable,
 Lack of consent does not affect validity of
the marriage license shall not be issued till
marriage, but only subjects those who
after three months following the completion
have neglected to acquire it to the
of the publication of the application therefor.
penalties of law. (Cushman v. Cushman)
A sworn statement by the contracting parties
 IF ANY OF THE CONTRACTING
to the effect that such advice has been
PARTIES IS BELOW 18 Y/O, MARRIAGE
sought, together with the written advice
IS VOID REGARDLESS OF EXISTENCE
given, if any, shall be attached to the
OR NON-EXISTENCE OF CONSENT OF
application for marriage license. Should the
PARENTS.
parents or guardian refuse to give any advice,
 Age of consent is the age at which person
this fact shall be stated in the sworn
are considered in law to be capable into
statement.
marriage relation.
BRIEF HISTORY:
Art. 16. In the cases where parental consent
BEFORE FC Any male aged 16 or upwards,
and any female of the age of or parental advice is needed, the party or
14 or upwards, not under any parties concerned shall, in addition to the
of the impediments mentioned
in Articles 80 to 84 of the Civil requirements of the preceding articles, attach
Code, may contract marriage a certificate issued by a priest, imam or
(Article 54, Civil Code of the
minister authorized to solemnize marriage
Philippines).
If the male is less than 20 under Article 7 of this Code or a marriage
years old and the female is counselor duly accredited by the proper
less than 18 years old, they
shall be required to obtain the government agency to the effect that the
consent to their marriage of contracting parties have undergone marriage
their father, mother or counseling. Failure to attach said certificates
guardian, or persons having
legal charge of them, in the of marriage counseling shall suspend the
order mentioned (Article 61, issuance of the marriage license for a period
Ibid.).
of three months from the completion of the
EFFECTIVITY OF Marrying age of both the
parties to a marriage was publication of the application. Issuance of the
FC
fixed at eighteen (18) years marriage license within the prohibited period
old (Article 5, Family Code of
the Philippines). shall subject the issuing officer to
In case either or both parties administrative sanctions but shall not affect
are between the ages of the validity of the marriage.
eighteen (18) and twenty-one

[16]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
PARENTAL ADVICE
 Absence does not affect marriage
 Does not even make marriage annullable
 While it is not an essential nor formal
requirement under Art 2 & 3 prescribing
parental advice in keeping with PH tradition
and does not bar marriage totally.
 It is just a vehicle to induce further and ore
mature deliberation over decision to get
married.
REMEMBER
PARENTAL CONSENT V. PARENTAL ADVICE
At least 18 and below 21 to 25 years of age
21
Annulable {Defect in Does not affect
essential requirement } marriage
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
DUTY OF LOCAL CIVIL REGISTRAR
1.) Post notice to inform everybody of
impending marriage
 Posted for 10 consecutive days on bulletin
board outside office of LCR in a conspicuous
place w/in building and accessible to genera
public
[17]
 Notice: request all persons having
knowledge of any impediment to advice LCR
therof.
2.) Issue marriage license after completion
of period of publication.
 However if parties between ages of 21-
25 do not obtain advice of parents or if
such advice is unfavorable, LCR shall
not issue marriage license til after 3
months following completion of
publication
 WHAT IF ISSUED W/IN 3 months?!
 Marriage is valid.
 Parental consent required or Parental
advice needed, failure of parties to
attach such application a certification that
they have undergone marriage consoling
shall suspend issuance of ML for period
of 3 months.
 Issuance of ML w/in prohibited period
shall subject issuing officer to
administrative sanctions but shall not
affect validity of marriage
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.
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
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
INVESTIGATIVE POWER OF LCR AND
COURT INTERVENTION
 In case any impediment known to LCR or
brought to his attention, he shall MERELY
NOTE DOWN PARTICULARS THEREOF
AND HIS FINDINGS THEREON ON
APPLICATION FOR MARRIAGE
LICENSE.
 He is nonetheless duty bound to issue
license after payment of necessary fees
unless exempted due to indigence, after
completion of period of pub or after period
of 3 months.
 Law does not restrain LCR from
investigating any impediment on part of
contracting parties but LCR is only
generally prohibited from withholding
marriage license despite legal impediment
(J Caguioa)
 Purpose of Art 18 as agreed upon by
committee members is to ELIMINATE any
opportunity of extortion or for it to be a
source of graft.
 Only court intervention directing non-
issuance of ML can empower LCR to
validly refuse to issue said license.
 MAY BE BROGHT BY LCR HIMSELF OR
ANY INTERESTED PARTY.
 What if LCR is pasaway and issues ML
despite injuction then nakasal na ang mga
beshies?
MARRIAGE STILL VALID as validity of
ML is not affected by violation of
injunction. [mere irregularity in formal
requisite of marriage license]
 Does not affect validity of
marriage but party or parties
responsible shall be civilly, criminally
and administratively liable.
[18]
CRIMINAL LIABILITY OF LOCAL CIVIL
REGISTRAR
Marriage Law of 1929
 Sec 37: Influencing parties in
religious respects
 Sec 38: Illegal issuance or
refusal of license
Art. 20. The license shall be valid in any part
of the Philippines for a period of one hundred
twenty days from the date of issue, and shall
be deemed automatically canceled at the
expiration of the said period if the contracting
parties have not made use of it. The expiry
date shall be stamped in bold characters on
the face of every license issued.
MARRIAGE LICENSE ANND DATE OF
ISSUE
 Valid only within PH and not abroad
 Good for 120 days from date of issue
 Date of signing of LCR =Date of issue
 Automatically ineffective upon expirty.
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.
CERTIFICATE OR AFFIDAVIT OF LEGAL
CAPACITY
 Citizens of Foreign country: contract
marriage in PH
 If they are BOTH freigners and intent to have
marriage solemnize by those mentioned in
Art 7 of FC or mayor pursuant to LGC, then
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
they have to SECURE MARRIAGE LICENSE
IN PH
 Before issuance of ML, they have to submit a
cert of legal capacity.
 Cert of Leg Cap is necessary because PH in
so far as marriage is concerned, adhere to
law of contracting parties with respect to their
legal capacity to marry.
16 y/o US Legally capacitated to marry in
Citizen US wants to marry Fil here or
another foreigner
 By obtaining cert of
legal capacity stating
that in US, persons
under 16 years of age
can be validly married.
 Show to proper lcr
where he is residing in
PH
 Marriage license can
be subsequently
issued
 W/O cert of legal cap, LCR will not issue
ML.
 Law clearly provides that as to foreigner,
this is a necessary requisite before ML
can be obtained.
EXCEPTION to the rule that LCR even if finds an
impediment in impending marriage must
nevertheless issue the marriage license, unless
at his own instance, or that of an interested party,
he is judicially restrained from issuing marriage
license.
EH…. What if chaka si LCR, nag-issue pa rin
then kinasal yung mga atat na beshies.
 Marriage still considered valid as this is
merely an irregularity in complying with the
formal requirement of law in procuring
marriage license.
STATELESS PERSONS OR REFUGEES
 Required to file an affidavit stating
circumstances showing such capacity to
contract marriage in lieu of certificate of
legal cap.
IF CONTRACTING PARTIES WHO ARE
CITIZENS OF FOREIGN COUNTRY
DESIRE TO HAVETHEIR MARRIAGE
SOLEMNIZED BY THIEIR CONTRY’S
CONSUL GENERAL IN PH
 No need to obtain ML if their country’s laws
allow the same.
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.
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

[19]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
contracting party regarding the solemnization
of the marriage in place other than those
mentioned in Article 8
PRESUMPTION OF MARRIAGE
 Man & Woman deporting themselves as
husband and wife have entered into lawful
contract of marriage [presumption
satisfactory if uncontradicted]
 Presumption may be contradicted and
overcome by evidence.
 Law and public policy lean toward
legalizing matrimony
 Presumption gains strength through lapse
of time.
 When celebration of marriage is once
shown, the contract of marrage, capcity of
parties and fact everything necessary for
validity of marriage, in absence of proof to
contrary will be presumed (Gaines v. New
Orleans)
 Public policy should aid acts intended to
validate marriage and should retard acts
intended to invalidate marriages. This is
necessary for the order of society. (Adong
v. Cheong Seng Gee)
 If shown that either/nnoth parties have
been previously married and that such wife
or husband of first marriage is still living,
does not destroy prima facie legality of last
marriage. Presumption is that former
marriage has been legally dissolved and
burden of proving that it has not rests upon
party seeking to impeach the last marriage.
(Wenning v. Teeple; Son Cui v.
Guepangco)
PROOF OF MARRIAGE
 May be proved by evidence of any kind
(Pugeda v. Trias)
 Primary evidence of marriage is the
marriage contract or marriage certificate
(Lim Tanhu v. Ramolete)
[20]
 Mere photostat of marriage cert is a
worthless piece of paper (Vda De Chua v.
CA)
 But if such Photostat copy emanated from
Office of LCR and duly certified by LCR as
an authentic copy of the records in his
office such certified Photostat copy is
admissible as evidence.
 If presented in court w/o objection from
opposing parties and consequently
admitted by court, said photostaat copies
are deemed sufficient proof of facts
contained therein and therefore can be
proof of marriage. (Sy v CA)
 Baptismal certs, birth certs, jud deci, and
family bible in which names of spouses
have been entered as married are good
evidences of marriage (Trinidad v. CA)
 Cert of marriage made many years after
marriage is inadmissible especially where
there was no register of marriage in official
records (Gaines v. Relf)
 Failure to present marriage cert is not fatal
in case where marriage is in dispute as the
parties can still rely on presumption of
marriage (Rivera v. IAC)
 Abence of record of the contested
marriage was asserted to assail the
existence of marriage, SC rehected
assertions by stating:
1. Although marriage contract is
considered a primary evidence of
marriage, its absence is not always
proof that no marriage took place.
Evidence need not necessarily or
directly establish marriage but must at
least be enough to strengthen the
presumption of marriage. These are
public documents which are prima
facie evidence of facts stated herein.
No clear and convincing evidence is
sufficient to overcome the presumption
of the truth of recitals therein was
presented by petitioners.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
2. Petitioner’s own witness whose
testimony they primarily relied upon to
support their proposition confirmed that
Guillermo Rustia had proposed
marriage to Josefa Delgado and that
eventually two had lived together as
husband and wife [this could not but
strengthen the presumption of
marriage]
3. Baptismal cert was conclusive proof
only of thee baptism administered by
priest who baptized child. [No proof of
the veracity of declarations and
statements contained therein such as
alleged single or unmarried civil status
of Josefa Delgado]
Petitioners failed to rebut presumption of
marriage of Guillermo Rustia and Josefa
Delagdo.(Vda. De La Rosa v. Heirs of
Mariciana Rustia Vda. De Damian)
 Testimony by one of parties or witess to
marriage or by person who solemnized
marriage is admissible (Pugeda v. Trias)
 Testimonies must themselves be credible
and must proceed from witnesswho is
credible. (People v. Ignacio)
 It is well-settled that entries in official
records made in performance of a duty by
a public officer of PH or by person in
performance of duty specially enjoined by
law, are prima facie evidence of facts
therein stated (Young v. Magayo)
 Marriage ceremony, testimony of an
eyewitness sufficient should disclose not
only performance of ceremony by
someone, but that all circumstances
attending it were such as to constitute it a
legal marriage. (State v. Hodgskins)
 Fact that marriage has been solemnized
gives rise to presumption that there is an
exchange of marital vows.(Balogbog v. CA)
 Public and open cohabitation as husband
and wife after alleged marriage, birth and
baptismal certs of children borne by
[21]
alleged sposes and statement of such
marriage in subsequent documents are
competent evidence to prove the fact of
marriage (Pugeda v. Trias)
 Solemn statement in will of deceased also
admissible as proof of marriage. (Son Cui
v. Guepangco)
 Mere cohabitation is not direct proof or
marriage which must be proved by proper
documents or by oral testimony in case
these have been lost (Santiago v. Cruz)
 Conduct of parties in order to constitute as
evidence of marital consent must be
something more than mere living together;
it must be an association, consciously and
openly as h&w (Cox v. State)
PROOF TO ATTACK VALIDITY OF
MARRIAGE
 Evidence must be strong, distict and
satisfactory (Murchison v. Green)
 Statement of civil status of person in cert of
title issued to him is not conclusive to show
that he is not actually married. (Perido v
Perido)
 Petitioner failed to assert absence of ML as
ground of nullity in her petition based solely
on psychological incapacity under Art 36
and where she only invoked such absence
of marriage license in her appeal to SC.
Supreme Court made an exception to the
general rule that litigants cannot raise an
issue for the firs time on appeal and
consequently declared marriage due to
absence of marriage license. SC said that
in order to protect substantive rights of
parties: IT WAS MAKING AN EXCEPTION
TO APPLICATION OF SAID GR THAT
MARRIAGE CONTRATC ITSELF WHICH
WAS PRESENTED AS EVIDENCE
CLEARLY SHOWED THAT
SOLEMNIZATION OF MARRIAGE
OCCURRED BEFORE ISSUANCE OF
MARRIAGE LICENSE. (Sy v CA)
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 While obtaining ML in place which is not
place of residence of any contracting
parties is merely an irregularity that does
not invalidate marriage (People v.
Janssen)
 Such circumstances may nevertheless be
an indication that ML is spurious or non-
existent which should necessitate further
investigation as to its authenticity. (Sy v
CA)
 Official Cert issued by Office of LCR of
municipalty where particular marriage
license has been issued stating that after
earnest effort to locate and verify existence
of particular ML, said office has no record
of ML or is issued to another couple or is
spurious or fabricated is a convincing
evidence to destroy the validity of marriage
on ground of absence of valid ml (Republic
of PH v CA)
(REMEMBER THE PREVIOUS
ASSIGNED CASES)
 In case where LCR certified that there was
no marriage license despite exertion of all
efforts but with an admission that, due to
work load of said office, it cannot give full
force in locating marriage license
compounded by fact that the custodian
already retired. SC did not allow the nullity
of marriage on ground of absence of
marriage license. (Servilla v. Cardenas)
 Marriage followed by 40 years of
uninterrupted marital life > impugn and
discredit after dead of husband through
alleged prior chinese marriage (Sy Joe
Lieng v. Sy Quia)
 However any presumption of marriage
from fact that there was cohabitation
bertween man and woman many years ago
may be considered offset by fact that for
last 35 years they lived separately and
several thousandmiles away from each
other (Fernandez v. Puath)
 While birth certificates can prove fact of
marriage between parties, pieces of
[22]
evidences disproving existence of marriage
also have probative value such that the
evidence if weighted against each other
prepodered in favor of assertion that there
was no marriage (Sarmiento v. CA)
DECLARATORY RELIEF
 Parties are not certain whether under law
they can proceed with marriage can file a
petition for declaratory relief to seek from
court a judgment of their capacity o marry.
 Petition for declaratory relief may be brought
by any person interested under deed, will
contract or other written instrument
 Whose right are affected for purpose of
determing any question of construction or
validity arising therefrom and for
declaration of his/her right or duties
thereunder. (Republic v. Orbecido)
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.
EFFECT OF DUTY OF LOCAL CIVIL
REGISTRAR
 Specific government official charged with
preparation and keeping of all official
documents in connection with marriage, any
certification issued by him/her in connection
with any matter involving marriage of any
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
particular individual within his/her jurisdiction
is given high probative value. (Rep of PH v.
CA)
MARRIAGE REGISTER
 Office of LCR keeps marriage rester of all
persons married in its locality.
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. (17a)
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.
OVERVIEW:
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;
(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
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.
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. (n)
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
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.
Art. 37. Marriages between the following are
incestuous and void 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. (81a)
Art. 38. The following marriages shall be void
from the beginning for reasons of public
policy:
[23]
(1) Between collateral blood relatives
whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents and step-children;
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
EXCEPTIONS:
AS TO VALIDITY OF MARRIAGE (SUMMARY)
GENERAL RULE
 Marriages contracted outside the PH
and are performed in accordance with
laws in force in country where they
were solemnized are valid in this
country
 In case Filipino contracts foregn
marriage which is null and void in place
where it was solemnized, same shall
also be null and void in PH even if such
was valid if celebrated under PH laws.
[24]
 If both are foreigners, lex loci
celebrationis applies.
1.) Contracted by national who is below
18 y/o (No legal capacity to contract
marriage under Art 35) [When both
parties contracting marriage abroad
are Fil citizens]
2.) Incestuous marriage (ewww)
3.) Bigamous or Polygamous except as
provided in Art 41 FC
4.) Contracted through Mistake of one
party as to identity of the other (like
twin na wa naman imik di naman pala
siya fiancé mo)
5.) Contracted following the Annulment
or declaration of nullity of a previous
marriage but before partition
6.) When any of the party is
Psychologically incapacitated when
marriage was celebrated (Art 36)
7.) Marriage is void by reason of Public
Policy
VALID PROVISIONS
 Family code expressly provides that except
for marriages prohibited under Art 35 (1),
(4), (5), (6) , 36,37,38, marriages
solemnized abroad and which are valid
there as such are recognized as valid here.
 PH follows “lex loci celebrationis rule”
 General principle of international and
interstate law that validity of marriage, so
far at least as it depends upon the
preliminaries, and manner or mode of its
celebration is to be determined in
reference of law of place where it is
celebrated.Therefore, marriage valid
celebrated will generally be regarded as
valid everywhere and where there is bona
fide attempt on part of parties to effect a
legal marriage, every presumption will be
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
in favor of the marriage. (Medway v.
Needham)
 Conversely, marriage void where it is
celebrated is void everywhere. But under
the operation of rule that all presumptions
favor marriage and every bona fide attempt
to effect it, and since courts are extremely
reluctant and rightly so, to declare
marriage void exceptfor strongest and
most obvious reasons, the converse rule is
subj to many exceptions ad will not be
enforced where circumstances afford a
reasonable ground for the course taken
and show a bona fide attempt to effect a
marriage. (Medway v. Needham)
MATTER OF INTERNATIONAL COMITY
 Legal effect which be given by one state to
the marriage laws of another state is
merely because of comity or because of
public policy and justice demand the
recognition of such laws (Henderson v
Henderson)
 No state is bound by comity to give effect
in its courts to laws which are repugnant to
its own laws and policy (Brimson v.
Brimsom)
 WHY? : because every sovereign state is
the conservator of its own morals and good
order of society (Jackson v. Jackson)
 Each sovereign state has right to declare
what marriage its will and will no recognize
regardless of whether participants are
domiciled w/in or w/o its borders (US ex rel
Modianos v. Tutle) and not withstanding
such marriages validity under the laws of
foreign state where such marriages were
contracted. (Kapigan v. Der Minassian)
 Hence applying 1st paragraph of Art 26,
marriages w/o license solemnized abroad
and proxy marriages abroad, valid in PH if
such marriages are valid in accordance w/
[25]
laws in force in country where they are
solemnized.
 IF however, foreign marriage is to be
solemnized inside PH consulate abroad,
such marriage must observe the forms and
solemnities established by PH laws.
EXCEPTIONS
 Under FC, if either or both contracting parties
are Filipinos and they are below 18 years of
age, their marriage solemnized abroad will
not be recognized in PH even if marriage is
valid in place where it has been solemnized
 Our law clearly adheres to the rule that
marrying capacity of contracting parties is
governed by national law of that party (PH
law)
 [ remember Art 15 stating that laws relating
to family rights and duties or to status,
conditions and legal capacity of persons are
binding upon citizens of PH even though
living abroad.] #WhereverYouGo
 If one is Fil and another is an alien whose nat
laws capacitate persons below 18 y/o to
marry: FC does not give precise solution.
(WELL) With respect to legal capacity, our
country follows the nationality rule, hence
should accord respect to laws of the country
in so far as the legal capacity to marry the
foreigner is concerned.
BETTER RULE: Exception under Art 26
referring to Art 35 (1) should be construed
as referring to situation where marriage
abroad is between a Filipino and a
Fiilipina and not between Filipino or
Filipina and an alien married in Alien’s
state where he/she is (the alien) though
below 18 years of age is capacitated to
Marry
LET’S MAKE IT CLEAR
INVALID [Art 35 (1) ]
Juan 19 y/o and Juana 14 y/o married
abroad in a country where marriage above
13 y/o is valid.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
VALID Marriage abroad where there is mistake of
Juan (17 y/o) and Maria Ozawa (33 y/o) identity of other contracting party is ALSO
married abroad where marriage below 18 y/o NOT RECOGNIZED in PH
is valid.  Even if one who committed mistake
 Take note Juan: Fil
were the foreigner spouse.
 Maria Ozawa : Alien

Bigamous and Polygamous marriages,  Spouse able to annul or to declare as null

though valid abroad shall likewise not be and void his/her marriage but failed to
recognized in PH. record judicial decree with LCR, to partition
BIGAMOUS POLYGAMOUS & distribute their properties and deliver
 Committed by  Act or state of presumptive legitime of their children, any
person who a person who, subsequent marriage of either spous shall
cotracts 2nd nowing that he be void. [Art 53 in relation to Art 52 of FC]
marriage before has 2 or more  Marriage by Fil to a person who is
former marriage wives or that psychologically incapacitated to perform
has been legally he has two or essential marital obligations abroad even if
dissolved or more
valid in foreign country where it has bee
before the husbands
absent spouse marries solemnized shall not be considered valid
has been another here.
declared - even if valid in foreign country where it
presuptively has been solemnized shall not be
dead by means considered valid here.
of judgment
 Marriages between ascendants and
rendered in
proper descendants of any degree as well as
proceeding (US between brothers and sisters whether full or
v Mcleod) half blood are likewise not considered as
KEYWORD: KEYWORD: valid here even if such marriages were
2 marriage
nd 2 or more allowed in country where they were
#MASMALANDI celebrated. (BECAUSE THEY ARE
#Haliparot
INCESTUOS
 Marriages declared void under PH laws for
being against public policy.
Under Art 41 of FC
 Even if not illegal or not against pub policy
 Bigamous marriage may be recognized
where it was solemnized. (Art 38)
HOW?!!!
: When before marriage, one of the spouse had (CONTINUE NOTES!)
been absent for 4 consecutive years or 2
consecutive years in case where there is
danger of death and spouse present has a
well-founded belief that the absent spouse is
already dead.
<2nd marriage is valid w/o prejudice to
reappearance of absentee spouse.>

[26]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
CHAPTER 2
MARRIAGE EXEMPT FROM LICENSE
REQUIREMENT
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.
[27]
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.
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.
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.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
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.
EXEMPTION FROM MARRIAGE LICENSE
ARTICLE WHAT KIND
ARTICLE 27 at the point of death
ARTICLE 28 located that there is no means of
transportation to enable such party to
appear personally before the local civil
registrar
ARTICLE 31 articulo mortis between passengers or
crew
ARTICLE 32 authority to solemnize marriages in
articulo mortis between persons within
the zone of military operation
ARTICLE 33 among Muslims or among members of
the ethnic cultural communities
(solemnized in accordance with their
customs, rites or practices.)
ARTICLE34 lived together as husband and wife for at
least five years and without any legal
impediment to marry each other
 Explicitly declared by Art 3(2) as exemptions
to formal requirement of valid marriage
license.
 Likewise provided for in Art 9 which provides
that “marriage license shall be issued by
LCR of city or municipality where either of
contracting parties habitually reside, except
in marriage where no license is required in
accordance with Chapt 2 of this Title.
[28]
 EXCEPT FOR MUSLIMS who are now
governed by Code of Muslim Personal Laws
of PH, various ethic groups in PH and
contracting parties refered to in said article
must comply with all other essential and
formal requirements provided under Art 2 & 3
of FC.
 Also solemnizing officer: Art 7.
ARTICLE 35
ARTICLE 36
ARTICLE 37
ARTICLE 38
ARTICLE 40
ARTICLE 41
ARTICLE 44
VOID
ARTICLE 53
RATIONALE
 Necessity and Practicality
 Policy of state to, as much as possible,
validate or legitimize illicit cohabitation
between persons who do not suffer any legal
impediment to marry.
FAR AREAS
 “no means of transportation to enable such
party to appear PERSONALLY before
LCR”
 Marriage may be solemnized w/o marriage
license
  W/O this, illicit relationships may
proliferate only because parties could not
get marriage license with really no fault on
their part.
SOLEMNIZING OFFICERS UNDER ART 7 AND
THE MAYOR
 On basis of Art 27 all those who are
authorized to solemnize marriage
enumerated in Art 7 & Mayor are
empowered to act as solemnizer of
marriage even w/o valid marriage license.
 Well, yung kailagan mo lang naman
tandaan here is that all solemnizing officers
must be a valid solemnizing officer
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
according to Art 7. (jurisdiction x requisites, with these laws shall be recognized
stuff like that) (ay taray pati dissolution beshy)
 In articulo mortis, even if ailing party
subsequently survives, marriage will OTHER ETHNIC GROUPS FAMILY
remain valid. CODE
CHIEF PILOT AND SHIP CAPTAINS W/O SEPARATE LAW
 Only marriages in artiuclo mortis
 When ship is at sea, plane is on flight and
Has
even during stopovers at ports of call. MUSLIM CAR
separate
 Only among their passengers and crew law
members.
MILITARY COMMANDER
 Commissioned officer (rank 2nd lieutenant, COHABITATION FOR FIVE YEARS (Art 34 FC)
ensign and above) Two distinct conditions
 Commander of a unit (at least a battalion) 1.) Live as such for at least 5 years
 Only articulo mortis and in absence of characterized by exclusivity and
chaplain (chaplain should compy w/ Art 7 continuity that is unbroken ( Republic v.
(2) Dayot)
 W/IN zone of military operations and during 2.) Be without legal impediment to marry
such military operations each other
 Either members of armed forces or (While both conditions must concur, they do not
civilians qualify each other)
MUSLIM AND ETHNIC GROUPS
 Under Civil Code, for as long as marriages “Absence of legal impediment”
of ethnic groups, pagans and Muslims  At time of marriage (J; Puno)
were performed in accordance with their
customs, rights and practices, such
marriage: VALID (Art 78 CC) (Art 76 CC repealed by Art 36 FC (NOW)
Art 36 FC)
Code of Muslim Personal Laws of PH
– Feb 4,1997 [effectively same year] 1. Lived as  Provides a broader
It does not provide that for a marriage to be husband and condition by an
valid, ML has to be procured by contracting wife for at amendment that no legal
parties least 5 years impediment exists with
2. Attained age contracting parties
 Aug 3,1988, FC took effect expressly of majority “Legal impediment”
providing that Muslims and ethnic 3. Must be  Any possible ground or
groups are exempted only from procuring unmarried basis under fam code
a marriage license as long as marriage *mandatory whole 5 Presence and absence of
will be solemnized in accordance with years no legal impediment only considered @
their customs, rites and practices. impediment* time of celebration of marriage
ceremony
 Marry paramour  Spouse living in w/
R.A No. 6766 “Organic Act for Cordillera when legitimate paramour can avail
Autonomous Region (CAR) Art 10, Sec 2 spouse dies exception and marry
 Marriages solemnized between or (cohabited for 5 his paramour w/o
among members of indigenous tribal years) marriage license after
group/ cultural community in death of legal spouse
accordance w/ the indigenous
customary laws of place shall be valid (Office of Court Administrator v. Necessario)
and dissolution thereof in accordance  Errorneous

[29]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Judges made statement that for exception to
apply “parties should have been capacitated to
marry each other during entire period and not
only at time of marriage”
 They applied Art 76 CC
 But case was administrative & does not deal w/
validity of marriage, therefore statement only
an obiter dictum.
 Under exception of cohabitation for 5
years, contracting parties shall state the
fact of their cohabitation for at least 5 years
and absence of any legal impediment to
marry in an affidavit before any person
authorized by law to administer oath.
 Solemnizing officer shall also state under
oath that he ascertained qualifications of
the contracting parties and found no legal
impediment to marriage. Failure of
solemnizing officer to investigate shall not
invalidate marriage.
(Cosca v. Palaypayon)
 Judge solemnized marriage involving party
only 18 y/o .
 Judge acted improperly because he should
have conducted first an investigation as to the
qualification of parties.
 Should have been alerted by the fact that child
was 18 y/o at time of marriage ceremony w/
means that parties started living together when
she was barely 13 y/o. Thus there was
probability that affidavit was forged.
 SC nevertheless did not state that marriage
was void because clearly at time of marriage
ceremony, parties had no legal impediment to
marry.
Aim of this provision
 Avoid exposing parties to humiliation, shame
and embarrassment concomitant w/
scandaloys cohabitation of persons outside a
valid marriage due to publication of every
applicant’s name for marriage license. (De
Castro v. Assiadao- De Castro)
[30]
Falsity of affidavit
 Cannot be considered to be mere
irregularity considering that 5 year period is
a substantial requirement of the law to be
exempted from obtaining marriage license.
(De castro v. Assiadao-Ce Castro)
DIRECTORY REQUIREMENTS
 Procedure laid down in Art 29 to 30 of FC
relative to duties of S.O w/ respect to affidavit
he/she has to execute is MERELY
DIRECTORY IN CHARACTER
 Non-observance : will not render marriage
void or annullable (Loria v. Felix)
 HOWEVER UNDER MARRIAGE LAW OF
1929, those solemnizing officers who fail to
comply shall be punished by imprisonment,
by fine or both in the discretion of court.
Chapter 3. Void and Voidable
Marriages
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.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Marriages declared void by legislature
Let’s make memorizing easier!  There can be no void marriages outside
KINDS OF VOID MARRIAGES [L.A.P.I.S] specifically provided by law.
1.) Contrary to Law or Public Policy  Grounds for void marriages may co-exist in
2.) Absence of Essential or Formal one case
requisites Like minor na nga you, waley ka pa
3.) Either of parties is Psychologically
marriage license, deins pa you nadala
incapacitated
4.) Incestuous marriages collateral blood relative pa yung jowa mez
5.) Void Subsequent marriages within 4th civil degree of consanguinity.
 But take note it has only one cause of
action which is nullity of marriage. (Mallion
VOID MARRIAGES v. Alcantara)
 Not valid from its inception.  Well, hindi pag it is with any other
 Absence of essential and formal requisites incidental prayers like support (Mallon v.
as provided for in Art 2 & 3 FC renders Alcantara)
marrage void (Art 4 FC)
 EXCEPTIONS: VOID AND VOIDABLE MARRIAGE
ARTICLE WHAT DOES IT SAY Void is different from Voidable or annullable
27 In case either or both of the marriage under Art 45 FC
contracting parties are at the  A marriage that is annulled presupposes
point of death, the marriage may
be solemnized without necessity that it subsist but later ceases to have legal
of a marriage license and shall effect when it is terminated through court
remain valid even if the ailing action. BUT in nullifying a marriage, court
party subsequently survives simply declares a status or condition which
28 Residence of either party is so
located that there is no means of already exists from the beginning (Suntay
transportation to enable such v. Conjuanco-Suntay)
party to appear personally before
the local civil registrar VOIDABLE VOID (Void ab initio)
31 Marriage in articulo mortis
(Annullable)
between passengers or crew
members by ship captain or Valid until otherwise Considered as never to
airplane pilot declared by court have taken place and
32 military commander authority to cannot be a source of
solemnize marriages in articulo rights
mortis Can generally be Can never be ratified
33 Marriages among Muslims or ratified or confirmed by
among members of the ethnic free cohabitation or
cultural communities prescription
34 Lived together as husband and Cannot be assailed Can be attacked
wife for at least five years and collaterally except in collaterally
without any legal impediment to
direct proceeding
marry each other.
Assailed only during Can be questioned
35 (2) (2) Those solemnized by any
person not legally authorized to lifetime of parties but even after death of
perform marriages unless such after death of either, either party
marriages were contracted with parties and their
either or both parties believing in offspring will be left as
good faith that the solemnizing if the marriage had
officer had the legal authority to been perfectly valid
do so; Action prescribes Action or defense is

[31]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
imprescriptible  Ruling gave more weight to procedure
Only parties (or Any proper interested rather than substantial law WHICH SHOUL
parents and guardians) party may attack void NOT BE THE CASE. Decision did not take
can assail it marriage into account that no amount of ratification,
Property regime No legal effect except
waiver, acquiescence or estoppel can
governing voidable those declared by law
marriage is generally concerning properties validate void marriage.
conjugal partnership of alleged spouses  A null and void marriage cannot be
(or absolute regarding co- validated directly or indirectly.
community) and the ownership or  In this case SC gave valid effect to an
children conceived ownership through invalid marriage which is inconsistent with
before its annulment actual joint contribution very notion of void marriages.
are considered and its effects on
legitimate children
 (Ninal v. Bayadog) BAD FAITH OR GOOD FAITH IN VOID
MARRIAGES
 Void marriages can never be ratified or
General Rule
cured by any act of the contracting parties.
 Good faith and bad faith are immaterial in
 Neither could estoppel or acquiescence
determining whether a marriage is null and
apply to remedy the infirmity.
void.
Example
Example:
1) Party minor at time of marriage – marriage  Even if a woman believed in good faith that she
is void and can still be judicially declared married a man not related to her but who in fact
void; there can be no estoppel just was his long-lost brother, her good faith will not
because parties agreed to false age. cure the infirmity even if she willingly and freely
2) In order to be exempted from procuring cohabited with him for a reasonable length of
marriage license, parties stated in their time after discovery. She can still nullify marriage
sworn statement that they were already because it is incestuous.
cohabiting continuously for 5 years to  If a person marries w/o marriage license or that is
comply with time requirement of law when spurious, and does not fall under exceptions,
in fact they cohabited for two years and marriage is void regardless of his/her good faith.
 If a person marries his first cousin knowing fully
marriage was consequently solemnized,
well of such relationship which he/she conceals
such marriage IS STILL NULL AND VOID
from his/her first cousin, marriage is still void and
on ground of absence of marriage license. it can be nullified
(De Castro v. Assidao-De Castro) Chi Ming Tsoi v. CA
(Republic v. Dayot)  Ground of psychological incapacity under Art
36 was invoked to nullify a marriage and
HOWEVER in Mallion v. Alcantara where evidence showed the spouses did not
 In not invoking ground of absence of engage in sexual intercourse but there was
marriage license in the first case and then no finding as to who between h & w refused
filing a subsequent case involving said to have sexual intercourse
 SC ruled that such absence of finding is
ground, petitioner violated the rule on
immaterial because action to declare
splitting of cause of action. marriage void may be filed by either party
 Petitioner was considered to be barred by even psychologically incapacitated one.
res judicata.
 Considered to have impliedly admitted the Chi Ming Tsoi vs. CA
validity of celebration of marriage and that (Every law student should know this tragic case)
he had therefore waived all defects. GR No. 119190, January 16, 1997

[32]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
FACTS:
Chi Ming Tsoi and Gina Lao Tsoi was married in
1988. After the celebration of their wedding, they
proceed to the house of defendant’s mother.
There was no sexual intercourse between them
during their first night and same thing happened
until their fourth night. In an effort to have their
honeymoon in a private place, they went to
Baguio
but Gina’s relatives went with them. Again,
there was no sexual intercourse since the
defendant avoided by taking a long walk during
siesta or sleeping on a rocking chair at the living
room. Since May 1988 until March 1989 they
slept together in the same bed but no attempt of
sexual intercourse between them. Because of
this, they submitted themselves for medical
examination to a urologist in Chinese General
Hospital in 1989. The result of the physical
examination of Gina was disclosed, while that of
the husband was kept confidential even the
medicine prescribed. There were allegations that
the reason why Chi Ming Tsoi married her is to
maintain his residency status here in the country.
Gina does not want to reconcile with Chi Ming
Tsoi and want their marriage declared void on
the ground of psychological incapacity. On the
other hand, the latter does not want to have their
marriage annulled because he loves her very
much, he has no defect on his part and is
physically and psychologically capable and since
their relationship is still young, they can still
overcome their differences. Chi Ming Tsoi
submitted himself to another physical
examination and the result was there is not
evidence of impotency and he is capable of
erection.
ISSUE: Whether Chi Ming Tsoi’s refusal to have
sexual intercourse with his wife constitutes
psychological incapacity.
HELD:
The abnormal reluctance or unwillingness to
consummate his marriage is strongly indicative of
a serious personality disorder which to the mind
of the Supreme Court clearly demonstrates an
utter insensitivity or inability to give meaning and
significance tot the marriage within the meaning
of Article 36 of the Family Code.
If a spouse, although physically capable but
simply refuses to perform his or her essential
[33]
marital obligations and the refusal is senseless
and constant, Catholic marriage tribunals
attribute the causes to psychological incapacity
than to stubborn refusal. Furthermore, one of the
essential marital obligations under the Family
Code is to procreate children thus constant non-
fulfillment of this obligation will finally destroy the
integrity and wholeness of the marriage.
 Doctrine of unclean hands where court
should not grant relief to wrongdoer is not
a rule as applied to nullity actions because
it is merely judge-made and has no
statutory basis.
 In declaring marriage void, state expresses
that it does not consider a union in a void
marriage as serving the fundmental
purpose of state of fostering and nurturing
a family which is a foundation of society.
Hence either husband or wife in a void
marriage can file a case.
 Nonetheless, party who knew that he/she
was entering a void marriage before its
solemnization may be held liable for
damages b other contracting party under
provisions on Human Relations in CC
specially Art 19-21 thereof.
 Even if party’s intention in filing a
declaration of nullity were less than pure
and was merely to evade bigamy case,
such fact will not prevent declaration of
nullity on basis of clear showing that there
was absence of marriage license
warranting such declaration (Abbas v.
Abbas)
EXCEPTIONS TO GENERAL RULE THAT
GOOD FAITH AND BAD FAITH ARE NOT
RELEVANT IN VOID MARRIAGES
1.) Art 35 (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;
2.) Art. 41. A marriage contracted by any
person during subsistence of a previous
marriage shall be null and void, unless
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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
 Spouse may validly marry again if he/she
1. Has a well-founded belief that spouse is
dead
2. Procures judicial declaration of
presumptive death
3. At time of subsequent marriage
ceremony, is in good faith together with
subsequent spouse
(otherwise marriage shall be considered void
under 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.)
 Good faith: even if only one of the
contracting parties : OK
 To be void: BOTH must be in bad faith
BAD FAITH AS AFFECTING PROPERTY
DISPOSITION
As a general rule
 In void marriage, property regime is one of
co-ownership
 In disposition of co-ownership at time of
liquidation, whether one of parties is in bad
faith is basic consideration
(Art 147/148 of FC)
RULES FOR EASY UNDERSTANDING
[34]
SCENARIO EFFECT
Only one in GF Share of party in BF in
co-ownership :
FORFEITED
 In favor of common
children
Default of/ Waiver by Each vacant share
any/All common shall belong to
children/their respective surviving
descendants descendants
Absence of Belong to innocent
descendants party
In all cases forfeiture shall take place upon
termination of cohabitation
 Rule above applies to all void marriages
Art. 147. When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned
by them in equal shares and the property acquired by both
of them through their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivos
of his or her share in the property acquired during
cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon
termination of the cohabitation.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money
and evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
marriage. If the party who acted in bad faith is not validly before lower court, in case for support
married to another, his or her shall be forfeited in the can rule that marriage was void. (De
manner provided in the last paragraph of the preceding
Article.
Castro v. Assidao-De Castro)
The foregoing rules on forfeiture shall likewise apply even if  Direct attack – filing case precisely
both parties are in bad faith. putting forth as principal issue the nullity
of marriage.

SUBSEQUENT VOID MARRIAGES DUE TO

FAILURE OF PARTY TO GET PRIOR
3 cases where direct attack and not a
JUDICIAL DECLARATION OF NULLITY OF
collateral attack on nullity of marriage
PREVIOUS MARRIAGE PURSUANT TO
must first be undertaken so that
ARTICLE 40
proper effects provided by law can
 Art 43 (2) The absolute community of
appropriately apply
property or the conjugal partnership, as the
case may be, shall be dissolved and 1. Art. 40. The absolute nullity of a
liquidated, but if either spouse contracted previous marriage may be
said marriage in bad faith, his or her share invoked for purposes of
of the net profits of the community property remarriage on the basis solely of
or conjugal partnership property shall be a final judgment declaring such
forfeited in favor of the common children previous marriage void
or, if there are none, the children of the 2. (Ninal v. Bayadog)
guilty spouse by a previous marriage or in For other purposes such as but
default of children, the innocent spouse not limited to determination of
(this applies) heirship, legitimacy or
illegitimacy of child, settlement of
COLLATERAL AND DIRECT ATTACK estate, dissolution of property
regime, or criminal case for that
 As a general rule, void marriages can be
matter, court may pass upon the
collaterally attacked.
validity of marriage even in a suit
 Meaning nullity of marriage can be
not directly situated to question
asserted even if it is not the main or
the same so long as it is
principal issue of a case and that no
essential to the determination of
previous judicial declaration of nullity is
case.
required by law with respet to any other
[in art 40, “on basis solely of final
matter where issue of voidness of
judgment declaring such
marriage is pertinent or material, either
previous marriage void”
directly or indirectly.
connotes that such final
 It is not mandatory to show that prior to
judgment need not be obtained
death of decedent, either decedent or
only for purpose of remarriage]
mother filed a civil case precisely and
mainly for purpose of judicially declaring 3. Art. 50. 43(3), and 86 (1) of FC
marriage void. Evidence other than 43(3) Donations by reason of
judicial declaration declaring said marriage shall remain valid,
marriage void can be presented to show except that if the donee
the nullity of marriage (Domingo v. Court contracted the marriage in bad
faith, such donations made to
of Appeals)
 While case was one of support, lower said donee are revoked by
court can make a declaration that operation of law
marriage was void to determine rights of
Art. 86. A donation by reason of
child to be supported. SC rejected
contention that separate case for judicial marriage may be revoked by the
declaration of nullity must be filed first donor in the following cases:
(1) If the marriage is not

[35]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
celebrated or judicially declared
void ab initio except donations
made in the marriage
settlements, which shall be
governed by Article 81
BELOW 18 YEARS OF AGE (AYAY)
 Consent of parents is immaterial in the
sense that even if present it will not make
marriage valid.
 Neither can subsequent parental consent
ratify void marriage
SPANISH CODE Discriminatory
MALE: 14 FEMALE:12 Unsafe pregnancy
Minimum age to effectively
procreate
1950 CIVIL CODE
MALE: 16 FEMALE: 14
 Basis : primary obligation of
husband or father to support
the family
FAMILY CODE
 BOTH 18YEARS OF AGE
NO AUTHORITY OF SOLEMNIZING OFFICER
 PH exclusively recognize ceremonial
marriage which involves intervention of
ecclesiastical or civil functionary
empowered by state to declare couple as
husband and wife.
 Basta remember na lang ulit Art 7
GOOD FAITH MARRIAGE
 If marriage were contracted with either or
both parties believing in good faith that
solemnizing officer had the legal authority
to do so when in fact he/she has none,
then marriage is still considered valid.
 GOOD FAITH IS CLEARLY ADDRESSED
TO CONTRACTING PARTIES. No that of
solemnizing officer and not to any other
requisite whether essential or formal.
 W/O declaration by law of its validity, such
good-faith marriage would have been an
instance of putative marriage which is void
because absence of authority of a
solemnizing officer.
 Putative marriage- applied to matrimonial
union which has been solemnized in due
form and good faith on some legal infirmity is
either void or voidable.
 Like putative marriage, good faith under Art
35 (2) is not founded on actual marriage or
ceremonial marriage but on reasonable
belief by one or both contracting parties
that they were honestly married and
solemnizing officer had authority when in
fact, he had none.
 Good faith is always presumed until
contrary is shown (Kunafoff v, Woods)
 Scope of good faith in putative marriage
may likewise be applied to good faith
marriages under Art 35 (2)
Term good faith – honest and reasonable
belief that marriage was valid at its inception
and that no legal impediment exists to impair
it validity.
While it is frequently been said that a party
may be in good faith, so long as he receives
no certain or authoritative knowledge of
some legal impediment to marriage, such
person CANNOT CLOSE his ears to
information or his eyes to suspicious
circumstances and must not act blindly or
without reasonable precaution.
Extent to which person has duty to ascertain
existence of impediment to his marriage
depends ultimately upon facts and
circumstances in each individual case.
EXPLANATIONS OF JUSTICE RICARDO
PUNO AND EDUARDO CAGUIOA: Aspect of
good faith
 General rule is that there should be marriage
and therefore good faith of parties should
come to their rescue.Sometimes it its ot
therefault.
 Exception where marriage is not void is
where parties were made t believe, one or
both, that solemnizing officer has authority
 This is to prevent unscrupulous chauvinistic
males from deceiving girls because they are
made to believe that they are going to be
married when marriages is not what they
want. (basta si lalaki more ask sa fried to
appear as if valid solemnizing officer siya
pero di naman pala tas mavovoid marriage
because of that)
 Court is not saying it is void. It is saying that
it is valid, not only as between parties but
everybody. It is as if it was solemnized by
person with authority

[36]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Dr.Arturo Toentino : Ignorance of the law and
Ignorance of the fact. If parties go before a
person not specifically mentioned by law as
having authority to solemnize marriage, then
good faith or bad faith is immaterial because
according to art 4 of CC, ignorance of the law
excuses no one from compliance therewith.
NO MARRIAGEE LICENSE
 Marriage license is a formal requisite,
absence of which makes marriage void.
 Exceptions however: Art
27,28,29,30,31,32,33,34 of FC
ARTICLE WHAT KIND
ARTICLE 27 at the point of death
ARTICLE 28 located that there is no means of
transportation to enable such party to
appear personally before the local civil
registrar
ARTICLE 31 articulo mortis between passengers or
crew
ARTICLE 32 authority to solemnize marriages in
articulo mortis between persons within
the zone of military operation
ARTICLE 33 among Muslims or among members of
the ethnic cultural communities
(solemnized in accordance with their
customs, rites or practices.)
ARTICLE34 lived together as husband and wife for at
least five years and without any legal
impediment to marry each other
BIGAMOUS OR POLYGAMOUS MARRIAGE
 Except those allowed under Muslim Code
or under Art 41 of FC, law prohibits a
married man or woman from contracting
another bond of union as long as the
consort is alive (US v. Ibanez)
 Subsequent marriage is illegal and void
from the beginning (Carratala v. Samson)
 Subsequent marriage contracted in Hong
Kong by husband who had secured a void
Nevada divorce is bigamous and void
(Manila Surety & Fidelity Co., Inc v.
Teodoro)
 IMPORTANT TO NOTE HOWEVER THAT
in bigamous marriage, 1st marriage must
have been valid. If 1st marriage is in itself
void and subsequent marriage is
contracted w/o prior judicial declaration of
nullity of 1st marriage, subsequent marriage
is void because it violates Art 40 in relation
to Art 52 and 53 of FC.
Art. 40. The absolute nullity of a previous marriage
[37]
may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void.
Art. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of
the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in
the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
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
JUDICIAL DECLARATION OF NULLITY
 Absolute nullity of previous marriage may
be invoked for purposes of remarriage on
basis solely of final judgment declaring
such previous marriage void
 RATIONALE: Parties to marriage should
not be permitted to judge for themselves its
nullity, only competent courts having such
authority (Landicho v. Relova-Landicho)
BIGAMY
 One who enters subsequent marriage
without first obtaining such judicial
declaration is guilty of bigamy. Principle
applies even if earlier unio is characterized
by statute as void (Manuel v. People)
Elements of Bigamy:
1. That the offender has been legally
married;
2. That the first marriage has not been
legally dissolved or, in case his or her
spouse is absent, the absent spouse
could not yet be presumed dead
according to the Civil Code;
3. That he contracts a second or
subsequent marriage; and
4. That the second or subsequent marriage
has all the essential requisites for
validity.
EXCEPTION:
1.) Present spouse must file a Summary
proceeding for the declaration of
presumptive death of absentee w/o
prejudice to latter’s reappearance
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
2.) Absence of other spouse must have
been for 4 consecutive years or 2 years
where there is danger of death under
circumstances laid down in Art 391 of
NCC
3.) Well-founded belief of present spouse
who wishes to remarry that absent
spouse is already dead
MISTAKE IN IDENTITY
 An instance of fraud which makes marriage
annullable. (CC)
 Mistake in indentity is a ground for nullity of
marriage (FC)
Example:
Basta namarry mo yung twin. Due to complete
absence of consent, marriage is void ab initio
 IMPORTANT : contracting party absolutely
did not intend to marry the other, as the
same is not the person he/she actually
knew before marriage.
 This covers only situations in which there
has been a mistake on part of party
seeking nullification of marriage as to
ACTUAL PHYSICAL IDENTITY OF THE
OTHER
DOES NOT COVER
1.) Mistake in name (Ebak pala apilido niya)
2.) Character of person (Chaka pala siya
after all this time)
3.) His or her attributes (Jafake pala nose
niya)
4.) Age (Jutanders na pala siya)
5.) Social Standing (Mahirap pala siya)
6.) Pedigree (dog food? Charot joke.)
7.) Pecuniary means
8.) Temperaments
9.) Acquirements
10.) Conditions in life
11.) Previous habit
VOID UNDER ARTICLE 53
 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.
 For persons whose marriages has been
annulled or declared null and void to be
able to validly marry again, they must
[38]
undertake the liquidation, partition and
distribution of their properties, if any and
only in proper cases, he delivery of
children’s presumptive legitimes and
thereafter all these requirements including
decree of annulment or nullity should be
recorded in appropriate civil registry and
registries of property
OKAY LET’S SUMMARIZE!!!!!!
VOID MARRIAGES DUE TO ABSENCE OF
ANY OF THE ESSENTIAL OR FORMAL
REQUISITES
[B.B-L.A .PI.S]
1.) Contracted by any party Below 18 years
of age even with parental consent
2.) Bigamous or polygamous marriage
except as provided in Art 41
3.) Solemnized without License except as
otherwise provided
4.) Solemnized by any person not legally
Authorized to perform marriages unless
one or both parties believed in good faith
that solemnizing officer had the legal
authority to do so
5.) Marriages contracted through mistake of
one of the parties as to Physical Identity
of the Other
6.) Subsequent marriages that are not void
under Art 53 of FC
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.
PSYCHOLOGICAL INCAPACITY
 Law does not define P.I, therefore
determination is left solely with courts on a
case to case basis.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Determination of P.I “depends on the facts
of the case. Each case must be judged not
on basis of a priori assumptions,
predilections or generalizations but
according to its own facts. (Republic v.
Dagdag) (Aurelio v Aurelio)
 RATIONALE: “code should not have so
many definitions because definitions are
straight-jackets the concept and therefore,
many cases that should go under it are
excluded by the definition. That’s why we
leave it up to the court to determine the
meaning of psychological incapacity.
(Justice Caguioa)
 Clearly, ground is restricted to
psychological incapacity “to comply with
the essential marital obligations.”
 Must be as such as to seriously and
effectively prevent them from having a
functional and normal marital life clearly
conductive to bringing up a healthy
personal inter-marital relationship within
the family which is necessary for its
growth. It must be a psychological illness
afflicting a party even before the
celebration of the marriage. (Perez-Ferraris
v. Ferraris)
 Hence, while person may be truly efficient
and mentally capable of undertaking a
particular profession in life, he/she can still
be considered as completely irresponsible
person vis-à-vis his/her married life if
he/she spends almost the whole day
working and not minding his/her family.
(Tongol v. Tongol)
 Despite this very authentic feeling of love,
he/she is so absolutely indifferent with
respect to his/her duties as a father and
husband/mother and wife as hee case may
be.
 Incapacity : limited to failure/disregard to
comply with essential marital obligations.
Not mere stubborn refusal but can be
attributed to psychological causes.
[39]
 J; Caguioa – “lack of appreciation of one’s
marital obligations” and that “psychological
incapacity does not refer to mental
faculties in the sense that he/she or both
should necessarily be shown to be insane.
While incapacity it is not a pre-requisite for
existence of ground for nullity.
 Psychological incapacity to perform the
essential marital obligations MUST BE
PRESENT AT TIME OF MARRIAGE
CEREMONY, BUT CAN MANIFEST
LATER ON DURING MARRIAGE
(well, siguro kasi pag after na tas tiyaka lang
siya nagkasakit it goes against the “for better
or for worse cliché” charot…)
 It is considered a ground to nullify
marriage.
 Such a marriage CANNOT BE CURED by
cohabitation considering that it is void and
therefore, ratification cannot apply.
( Well when you think about “void” co-relate it with
the love your ex promised you, besh wala nun una
pa lang, kahit gaano ka pa niya pinagtiisan char!!!!)
WHY COHABITATION NOT A DEFENSE?
 J; Puno stated that even the bearing of
children and cohabitation should not be a
sign that psychological incapacity has been
cured
[Santos v. CA]
 1st case SC decided which discussed scope
and meaning of Art 36 (1995)
 Denied nullity based on Art 36
DIGEST
Leouel Santos, a member of the Army, met Julia
Rosario Bedia in Iloilo City. In September 1986, they
got married. The couple latter lived with Julia’s
parents. Julia gave birth to their son in 1987. Their
marriage, however, was marred by the frequent
interference of Julia’s parents, as averred by Leouel.
The couple also occasionally quarreled about as to,
among other things, when should they start living
independently from Julia’s parents. In 1988, Julia
went to the US to work as a nurse despite Leouel’s
opposition. 7 months later, she and Leouel got to talk
and she promised to return home in 1989. She never
went home that year. In 1990, Leouel got the chance
to be in the US due to a military training. During his
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
stay, he desperately tried to locate his wife but to no
avail. Leouel, in an effort to at least have his wife
come home, filed a petition to nullify their marriage
due to Julia’s alleged psychological incapacity. Leouel
asserted that due to Julia’s failure to return home or
at least communicate with him even with all his effort
constitutes psychological incapacity. Julia filed an
opposition; she said that it is Leouel who is
incompetent. The prosecutor ascertained that there is
no collusion between the two. Leouel’s petition is
however denied by the lower and appellate court.
ISSUE: Whether or not psychological incapacity is
attendant to the case at bar.
HELD: No. Before deciding on the case, the SC noted
that the Family Code did not define the term
“psychological incapacity”, which is adopted from the
Catholic Canon Law. But basing it on the
deliberations of the Family Code Revision Committee,
the provision in PI, adopted with less specificity than
expected, has been designed to allow some resiliency
in its application. The FCRC did not give any
examples of PI for fear that the giving of examples
would limit the applicability of the provision under the
principle of ejusdem generis. Rather, the FCRC would
like the judge to 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 which, although
not binding on the civil courts, may be given
persuasive effect since the provision was taken from
Canon Law. The term “psychological incapacity”
defies any precise definition since psychological
causes can be of an infinite variety.
Article 36 of the Family Code cannot be taken and
construed independently of but must stand in
conjunction with, existing precepts in our law on
marriage. PI should refer to no less than a mental (not
physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by
the parties to the marriage which (Art. 68), include
their mutual obligations to live together, observe love,
respect and fidelity and render help and support. The
intendment of the law has been to confine the
meaning of PI 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 psychological
condition must exist at the time the marriage is
celebrated. The SC also notes that PI must be
characterized by (a) gravity, (b) juridical antecedence,
and (c) incurability. The incapacity must be grave or
serious such that the party would be incapable of
[40]
carrying out the ordinary duties required in marriage;
it must be rooted in the history of the party antedating
the marriage, although the overt manifestations may
emerge only after the marriage; and it must be
incurable or, even if it were otherwise, the cure would
be beyond the means of the party involved.
In the case at bar, although Leouel stands aggrieved,
his petition must be dismissed because the alleged PI
of his wife is not clearly shown by the factual settings
presented. The factual settings do not come close to
to the standard required to decree a nullity of
marriage.
 Family Code did not define term
“psychological incapacity” Deliberations
during sessions of FC revision can however
provide an insight on import of the provision
 J; Caguioa
: idea is that one is not lacking in judgment
but he is lacking in the exercise of
judgment. Lack of judgment would make
marriage voidable.
 Judge Sempio-Diy
: Since insanity is also psychological or
mental incapacity, why is insanity only a
ground for annulment and not for
declaration of nullity?”
 J; Caguioa
: In insanity there is appearance of
consent, which is the reason why it is a
ground for voidable marriage, while
psychological incapacity refers to the very
essence of marital obligation.
 J;Reyes
: “Why is insanity a ground for marriage,
while psychological incapacity is ground for
void ab initio marriages?
 J; Caguioa
: Insanity is curable and there are lucid
intervals, while psychological incapacity is
not.
THERE ARE 2 INTERPRETATIONS OF
PHRASE “PSYCHOLOGICAL OR
MENTALLY INCAPACITATED”
1st : Vitiation of consent because one
does not know all consequences of the
marriage
2nd: if he had known these completely
he might not have consented to
marriage.
 J; Caguioa
: Term incurable has a differect meaning in
law and in medicine. P.I is incurable
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 J; Caguioa
: In divorce, P.I may occur after marriage,
in void marriages it has to be at time of
celebration of marriage, incapacity
continues and later becomes manifest
 J;Puno and Judge Diy
: It is possible that after marriage one’s
psychological incapacity becomes manifest
but later on he is cured.
 J; Caguioa and J; Reyes
: remedy in this case is to allow him to
remarry.
 J; Caguiao
:mental and physical incapacities are vices
of consent while psychological incapacity is
not a species of vices of consent.
:FC Revision committee in ultimately deciding to
adopt the provision with less specificity than
expected, has in fact so designated law as to
allow some resiliency in its application
 Part of the provision is similar to Canon 1095 of
New Code of Canon Law
: They are incapable of contracting
marriage
1. Lack sufficient use of reason
2. Suffer from a grave defect of
discretion of judgment concerning
essential matrimonial rights and
duties to be given and accepted
mutually
3. Who for causes of psychotically in
nature are unable to assume
essential obligations of marriage.
 Fr.Orsy, author: psychological causes can be of
infinite variety.
 Judge Sempio-Diy cites w/ approval the
work of Gerardo Veloso, former
Presiding Judge of Metropolitan Marriage
Tribunal of Catholic Archidocese of
Manla who opines that P.I must be
characterized by
1. GRAVITY
2. JURIDICAL ANTECEDENCE
3. INCURABILITY
[41]
 There is clearly no doubt that intendment
of law has been to confine P.I to most
serious cases of an utter insensitivity and
inability to give meaning and significance
to marriage.
Other forms of psychoses if existing at inception of
marriage
1.) Unsound mind
2.) Concealment of drug addiction
3.) Habitual Alcoholism
4.) Homosexuality or Lesbianism
 Merely render marriage voidable under Art 46 of
FC.
o Marriage is not just an adventure but
also a lifetime commitment . We should
continue to be reminded that innate in
our society, then enshrined in our civil
code and now still indelible in Art 1 of FC
Article 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
o Our constitution
Sec 1: The State recognizes the Filipino
family as the foundation of nation.
Accordingly, it shall strengthen its solidarity
and actively promote its total development
Sec 2: Marriage as an inviolable social
institution, is the foundation of the family and
shall be protected by State.
CONSTITUTIONAL CONSIDERATION
: Consti itself does not establish the
parameters of state protection to marriage
as a social institution and the foundation of
family
:it remains the province of legislature to
define all legal aspects of marriage and
prescribe the strategy and modalities to
protect it based on whatever socio-political
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
influences it deems proper, and subject of
course to the qualification that legislative
enactment itself adheres to the consti and
bill of rights.
 Indeed Art 36 of FC in classifying marriages
contracted by psychologically incapacitated
persons as a nullity should be demanded as an
implement of consti protection of marriage.
 Corresponding interest for state to defend
against marriages ill-equipped to promote
family life.
 Void ab initio marriage under Art 36 do not
further initiatives of state concerning marriage
and family, as they promote wedlock among
persons, who for reasons independent of their
will are not capacitated to understand or
comply with essential obligations of marriage.
PROVING PYSCHOLOGICA INCAPACITY
 Psychosomatic and deals with state of mind
and thus can only be proven by indicators or
external manifestations of the person claimed
to be psychologically incapacitated. These
indicators must be clearly alleged in complaint
filed in court.
 Unlike other grounds for declaration of nullity
and grounds for annulment and legal
separation which generally constitute clearly
definable physical acts and situations
 Upon petitioner’s time and efforts so that she
frequently complained of his lack of attention to
her even to her mother whose intervention
caused petitioner to lose his job (Salita v. Hon.
Delilah Magtolis)
 See if husband or wife observes his/her duty
as such towards spouse, children and family.
 Art 68: The husband and wife are obliged to
live together, observe mutual love, respect and
fidelity, and render mutual help and support
 Procreation is likewise an essential obligation.
 Constant non-fulfillment of this obligation will
finally destroy the integrity or wholeness of
marriage (Chi Ming Tsoi v. CA)
< BRING UP KO LANG TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE : FC>
 Art 220,221, 225 of Code enumerates rights,
duties and liabilities of parents relative to their
parental authority over their children. Failure to
[42]
comply with these : good indication of
psychological incapacity (Toring vs. Toring)
 Fear of a wife who is afraid of children to
engage in sexual intercourse is an indicator of
P.I
 Senseless and protracted refusal is equivalent
to P.I. Thus prolonged refusal of spouse to ave
sexual intercourse w/ his/her spouse is
considered a sign of P.I (Chi Ming Tsoi v. CA)
 Unreasonable attachment of spouse to fam,
friends or barkada such that importance and
devotion which should be given to his/her own
spouse and children are subordinated to said
attachment is also good indication of PI.
However separation and abandonment alone
is note conclusive proof of P.I (Republic v.
Quintero Hamano)
 Sexual infidelity alone or living adulterous life
does not automatically prove P.I.(Ligeralde v.
Patalinghug)
 Mere isolated idiosyncrasies of spouse are not
themselves manifestations of P.I to perform
essential marital obligations. Manifestations of
P.I must be attributed to psychological illness
and not mere physical illness. (Bier v. Bier)
 P.I cannot be mere refusal or neglect to
comply with obligations, it must be downright
incapacity to perform (Republic v. Cabantug-
Baguio)
 There must be proof of natal or supervening
disabling factor that effectively incapacitated
the respondent spouse from complying w/
basic marital obligations. (Suazo v. Suazo)
 Mere incompatibility and irreconcilable
difference are not enough (Aspillaga v.
Aspillaga)
 Ground is very personal and limited one. It
does not mean that because person is P.I to
perform marital obligations with his/her present
spouse, this would also be the case with any
other person other than his/her present spouse
 Medical and clinical rules to determine P.I were
formulated on basis of studies of human
behavior in general. Hence norms used for
determining P.I should apply to any person
regardless of nationality. (Republic v.
Hamano)
 [granted nullity] Shown that petitioner was
suffering from dependent personality disorder
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
and respondent was also suffering from 1. Anti-social personality with its funfamental
narcissistic and anti-social disorder, both lack of loyalty to persons or sense of moral
consistent w/ p.i to perform essential martial values
obligations. (Te v. Te) 2. Hyperesthesia where individual has no
 By the very nature of Art 36, courts, despite freedom of sexual choice
having primary task and burden of decision 3. Inadequate personality where persona
making must not discount but, instead must responses consistently fall short of
consider as decisive evidence the expert reasonable expectation
opinion on the P.I and mental temperaments of  Verily, evidence must show a link, medical or
parties. the like between acts that manifest
 J;Romero psychological incapacity and the psychological
Professional opinion of psychological expert disorder itself
became increasingly important in such cases.  Court mentions nevertheless for emphasis tat
Data about person’s entire life, both before and presentation of expert prof presupposes a
after ceremony were presented to these thorough and an ind-depth assessment of
experts and they were asked to give parties by the psychologist or expert for a
professional opinions about a party’s mental conclusive diagnosis of grave, severe and
capacity at time of wedding. These opinions incurable P.I
were rarely challenged and tended to be
accepted as decisive evidence of lack of valid CAUSES OF PERSONALITY DISORDERS
consent FREUDIAN Fixation at certain stages
 As meaning the capacity of spouses to give of development led to
themselves to each other and to accept the certain personality types
GENETIC FACTORS There is genetic factor
other as distinct person; that the spouses must
involved in etiology or
be other oriented since the obligations of anti-social or borderline
marriage are rooted in a self-giving love; and personality disorders, less
that spouses must have capacity for evidence of inheritance of
interpersonal relationship because marriage is other personality
more than just a physical reality but involves disorders
true intertwining of personalities. The fulfillment NEUROBIOLOGIC Borderline personality,
low cerebrospinal fluid,
of obligation of marriage depends according to
negatively correlated with
church decisions on strength of interpersonal measures of aggression.
relationship BRAIN WAVE Abnormalities in
ACTIVITY electroencephalograph.
 Fr.Green in an article in Catholic Mind lists 6
elements necessary to mature marital (Add up to this pag may time)
relationship
EXPERT TESTIMONY
1. Permanent and faithful commitment  Extremely helpful
2. Openness to children and partner  SC : the personal medical or psychological
3. Stability examination of respondent is not a requirement
4. Emotional Maturity for declaration of P.I and that it is not a
5. Financial responsibility condition sine qua non for such declaration”
6. Ability to cope with ordinary stress and (not an essential condition) (Republic v. Tayag
strains of marriage San Jose)
 Fr.Green: among the psychic factors possibly  However court may or may not accept
giving rise to his/her ability to fulfill marital testimony of psychologist or psychiatrist
obligations are the following because decision must be based on totality of
evidence (Paras v. Paras)

[43]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Nevertheless, testimony of an expert witness,
like psychiatrist or psychologist if credible and
if consistent with totality of evidence which is
also credible might be given weight.
 SC even adered to medical and clinical
findings of psychia or psycholo who did not
personally examine the subject but who were
given reliable data about the respondent and
read pertinent court records in coming up with
more reliable assessment that respondent was
not suffering from PI. Mere fact therefore that
psychiatrist personally examined subject
person is not an assurance that his/her
findings would be sustained. (Antonio v.
Reyes)
 Psychiatrist of petitioner however merely
evaluated the respondent by analyzing his
disposition (Ting v. Ting)
 SC denied nullity of marriage on ground that
psychological report was very general and did
not state specific linkages between personality
disorder and behavioral pattern of spouse
during marriage (Rumbaua v. Rubaua)
JURISPRUDENTIAL GUIDELINES
SC enumerated guidelines in invoking and proving P.I
under Art 36
1.) Burden of proof to show the nullity of
marriage belongs to plaintiff. Any doubt
should be resolved in favor of existence and
continuation of marriage and against its
dissolution and nullity
2.) Root cause of psychological incapacity must
be
a. Medically identified
b. Alleged in the complaint
c. Sufficiently proven by experts
d. Clearly explained in the decision.
Psycological- not physical, although its
manifestations and or symptoms may be
physical .
To such an extent that person could not
have known the obligations he was
assuming or knowing them, could not have
given valid assumption thereof.
3.) Incapacity must be proven to be existing at
the time of celebration of marriage. It need
not be perceivable at such time, but the
[44]
illness itself must have attached at such
moment or prior thereto.
4.) Such 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 and not necessarily absolutely agaist
every one of the same sex. Such incapacity
must be relevant to the assumption of
marriage obligations not necessarily to those
not related to marriage.
5.) Such illness must be grave enough to bring
about the disability of the party to assume
the essential obligations of marriage. The
illness must be shown as downright
incapacity or inability, not a refusal, neglect
or difficulty, much less ill will.
6.) The essential marital obligations must be
those embraced by Art 68 up to 71 of FC
as regards husband and wife as well as
Art 220,221, and 225 of same code with
regard to parents and their children
7.) Interpretations given by National Appellate
Matrimonial Tribunal of the Catholic Church
of PH while not controlling should be given
great respect by our courts.
“the following are incapable of contracting
marriage: those who are unable to assume
essential obligations of marriage due to
causes of psychological in nature”
8.) Trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state.
 Certification of SG is not anymore needed.
 Court is not demolishing the foundation of
families, but actually protecting the sanctity
of marriage because it refuses to allow a
person afflicted with psychological disorder,
who cannot comply with or assume the
essential marital obligations from remaining
in that sacred bond.
DAMAGES
 Disallowed award of moral, & exemplary
damages and attorneys fees
 On ground that the very nature of P.I which is
non-cognizance of one’s essential marital
obligation at time of marriage ceremony,
negates bad faith.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 No award of exemplary damages and
attorney’s fees can also be made in absence of
showing of bad faith.
ESSENTIAL MARITAL OBLIGATIONS
AS REGARDS HUSBAND AND WIFE
Art. 68. The husband and wife are obliged to live
together, observe mutual love, respect and fidelity,
and render mutual help and support.
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall
decide.
The court may exempt one spouse from living with
the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same
is not compatible with the solidarity of the family.
Art. 70. The spouses are jointly responsible for the
support of the family. The expenses for such support
and other conjugal obligations shall be paid from the
community property and, in the absence thereof, from
the income or fruits of their separate properties. In
case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the
separate properties.
Art. 71. The management of the household shall be
the right and the duty of both spouses. The expenses
for such management shall be paid in accordance
with the provisions of Article 70.
AS REGARD TO PARENTS AND CHILDREN
Art. 220. The parents and those exercising parental
authority shall have with the respect to their
unemancipated children on wards the following rights
and duties:
(1) To keep them in their company, to support,
educate and instruct them by right precept and good
example, and to provide for their upbringing in
keeping with their means;
(2) To give them love and affection, advice and
counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity, self-discipline,
self-reliance, industry and thrift, stimulate their
interest in civic affairs, and inspire in them compliance
with the duties of citizenship;
(4) To furnish them with good and wholesome
educational materials, supervise their activities,
recreation and association with others, protect them
from bad company, and prevent them from acquiring
habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their
interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required
under the circumstances; and
(8) To perform such other duties as are imposed by
law upon parents and guardians.
[45]
Art. 221. Parents and other persons exercising
parental authority shall be civilly liable for the injuries
and damages caused by the acts or omissions of their
unemancipated children living in their company and
under their parental authority subject to the
appropriate defenses provided by law.
Art. 225. The father and the mother shall jointly
exercise legal guardianship over the property of the
unemancipated common child without the necessity
of a court appointment. In case of disagreement, the
father's decision shall prevail, unless there is a judicial
order to the contrary.
Where the market value of the property or the annual
income of the child exceeds P50,000, the parent
concerned shall be required to furnish a bond in such
amount as the court may determine, but not less than
ten per centum (10%) of the value of the property or
annual income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the bond shall be
filed in the proper court of the place where the child
resides, or, if the child resides in a foreign country, in
the proper court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding
the performance of the obligations referred to in the
second paragraph of this Article shall be heard and
resolved.
The ordinary rules on guardianship shall be merely
suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a
parent has remarried, in which case the ordinary rules
on guardianship shall apply.
RECAP!!!
REQUISITEES OF PSYCHOLOGICAL
INCAPACITY
1.) Juridical Antecedence
 Must be rooted in the history of party attending
the marriage although manifestations may
emerge only after the marriage
2.) Incurability
 Must be incurable or even if curable, the cure
would be beyond the means of party involved
3.) Gravity
 Must be grave/serious such that the party would
be incapable of carrying out the ordinary duties
required of marriage.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Art. 37. Marriages between the
following are incestuous and void
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.
REASN FOR PROHIBITION OF INCESTOUS
MARRIAGE
 Universally condemned as grossly
indecent, immoral and inimical to the
purity and happiness of the family and
the welfare of future generations.
 They are abhorrent to nature, not only of
civilized men, but of barbarous and semi-
civilized peoples
 Tend to the confusion of rights and
duties, incident to family relations (Gould
v. Gould)
[child of incestuous union creates a
special problem of social placement,
because its status is so confused, as of
its parents]
Draw the confusing table
(Child born between union of daughter and
father)
(Father married to grandmother)
[46]
 In addition, science and experience have
established beyond cavil that such
intermarriages very often result in
deficient of degenerate offspring which, if
occurring to any great extent, would
amount to a serious deterioration of race
(Gould v. Gould)
 Another reason deals with the social and
psychological aspects of an incestuous
marriage
 Social prohibitions against incest
promote solidarity of nuclear family.
 Incest prohibition regulates erotic desire
in two ways that contribute to
preservation of the nuclear family.
1. Prohibition controls sex rivalries and
jealousies within family unit.
2. By ensuring suitable role models, the
incest restriction prepares the
individual for assumption of familial
responsibility as an adult. Eventually
it propels individual toward creation
of new nuclear family of his own
marriage.
Art. 38. The following marriages
shall be 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;
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
(6) Between the surviving spouse of  Principal and agent can validly marry each
the adopted child and the adopter; other.
(7) Between an adopted child and a
COLLATERAL BLOOD RELATIVES BY
legitimate child of the adopter;
CONSANGUINITY
(8) Between adopted children of the  May likely result though not in the same
same adopter; and gravity in dangers and confusion attendant
(9) Between parties where one, with in incestuous marriage under Art 37.
the intention to marry the other,  Prevent coming together in their offspring
of any deleterious recessive genes.
DRAW HERE UNDERSTANDING
(create family tree)  Role of legislation has been to decide that
1.) Determine who is a relative by direct ascending line risk is too much to allow citizens and then
2.) Relative 4th civil degree
3.) Relative 5th civil degree
to enact law accordingly
4.) Relative of 2nd civil degree  Pertinently, relationship by consanguinity is
in itself not capable of dissolution. Even if
grandfather died, does not sever blood
relationship of first cousins.
 To determine whether two persons are
relatives of each other up to forth civil
degree, they have to consider their nearest
and immediate common ascendant and
then count the number of relatives from
one of them to the common ascendant and
from the common ascendant to other one.

COLLATERAL HALF BLOOD RELATIVES BY

CONSANGUINITY
 Under FC, the prohibitition extends to
killed that other person's spouse, collateral blood relatives up to the 4th civil
degree which include one’s uncle, aunt,
or his or her own spouse.
niece, nephew and first cousin.
 No question that prohibition applies to full-
REASONS FOR PROHIBITION OF VOID
blood relationships.
MARRIAGE
 Against Public Policy  HOWEVER it is interesting to point out that
 Policy of state to foster a normal, peaceful law does not provide that marriage
and wholesome integral nuclear family unit between collateral blood relatives by half-
which would constitute as the very blood are prohibited.
foundation of the society/
 Marriages described in Art 38 will not serve ILLUSTRATE UNDERSTANDING HERE.
the fundamental objective of nurturing a
stable family unit that can effectively be the
foundation of society
 Enumeration in art 38 – EXCLUSIVE
 Guardian and his ward can marry

[47]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
[American Cases which advance 2 different
views as to whether such marriages are void.]
Audley v. Audley Issue:
Whether the provision in marital
statute prohibiting marriages between
uncles and nieces or aunts or
nephews also include half-blood
relationships
Held:
Claim:. Marriage is incestuous and
void between uncle and niece or an
aunt or nephew, whether they are
legitimate or illegitimate.
Prior to 1893, incestuous and void
marriages were limited to marriages
between ancestor and descendant
and a brother and a sister if either
whole blood or half blood
And marriages between uncles and
nieces and aunts and nephews have
only been prohibited in this state since
enactment of chapter 601 of laws of
1893 (Weisberg vs. Weisberg)
Held:
Probable that legislature recognized
this and addressed prohibition against
marriages in subdivision 3, not on
percentage of blood relationship but to
the relationship generally known and
understood and on the theory that it
has prohibited marriages between
uncle and niece and aunt and nephew
without regard to percentage of their
blood relationship
The prohibition was enacted for
benefit of public health and
perpetuation of human race. Since the
closest relationship of an uncle and
niece under a lawful marriage of those
so related are plainly prohibited. I
think it would have been unreasonable
to impute to the legislature the belief
that the evils which it was anticipated
would flow from such marriages,
would not befall the issue of a
marriage between uncle of half blood
and niece of quarter blood of common
ancestor. (McCullen vs. McCullen
In Re Simms New York CA stated that a marriage
Estate between uncle and niece by the half
blood is not incestuous and void.
“Reasonable to think that if the
legislature intended to prohibit
marriages between uncles, nieces,
aunts, nephews whose parents were
related to the contracting party only by
the half blood, it would have used
similar language and its failure to do
so, in immediate context in dealing
[48]
with a more remote relationship than
brother and sister, suggests that it did
not intend to put this limited class
within the interdiction.
All doubts must be construed in favor
of marriage. Only those prohibited by
law as void shall be treated as such.
RELATIONSHIP BY AFFINITY
 Step-parents and step-children as well as
parents-in0law and children-in-law are
related by affinity.
 Doctrine of affinity grew out of canonical
maxim that a marriage makes husband
and wife one. Husband has the relation, by
affinity to his wife’s blood relatives as she
has to them consuanguinity, vice versa
(State v. Hooper)
 Affinity is the connection formed by
marriage which places the husband in the
same degree of nominal propinquity to the
relatives of wife as that in which she
herself stands towards them and give wife
the same reciprocal connection with
relations of husband. (Kelly v. Neely)
 Only marriages by affinity prohibited in FC
are marriages between step-parents and
step-children as well as parents-in law and
children-in-law.
 It is believed that these kinds of marital
relationships, IF ALLOWED can most likely
destroy the peacefulness of family relations
and also cause disturbance within family
circle.
 PH society is characterized as practicing
“extended families” which have been
proven most advantageous and beneficial
to society itself.
 Step-brother or step-sister can, however
marry each other as this relationship by
affinity is not included in the prohibition.
EFFECT OF TERMINATION OF MARRIAGE ON
THE AFFINITY PROHIBITION
 In event that marriage is annulled or
nullified in accordance with law, there can
be no question that relationship by affinity
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
between step-parents and step children as
well as parents-in law and children in law is ADOPTIVE RELATIONSHIP
terminated.  Relationship created in adoption is merely
 They become strangers to each other limited to one of parent and child. The void
 This will allow them therefore to marry marriages in an adoptive relationship are
each other legally. specifically and expressly limited by law to
 But, as it appears in the case before us, those mentioned in
there was no issue of former marriage Art 37 Between the adopting parent and
between descendant and plaintiff’s mother, (4) the adopted child
the question need now determined. He Art 37 Between the surviving spouse of
(5) the adopting parent and the
court concludes: relationship of affinity
adopted child
between decedent and plaintiff which Art 37 Between the surviving spouse of
existed during continuance of marriage (6) the adopted child and the adopter
relation between decedent and plaintiff’s Art 37 Between an adopted child and a
mother terminated when latter procured a (7) legitimate child of the adopter
divorce from decedent and after that time, Art 37 Between adopted children of the
plaintiff was not the daughter of (8) same adopter
decentent’s wife, the marriage between **** THIS IS ART 38 CORRECTION IN
them is valid. (Back vs. Back) BOOK**
 In Civil Law, in a case a marriage is  One parent and child, an adopted can validly
terminated by death of one of spouse, marry the following
there are conflicting views. 1.) Parents
Affinity not terminated If spouses have no 2.) Illegitimate child
whether there are living issues or 3.) Other relatives
children or not in the children and one of  There is no prohibition against marriages
marriages (Carman v. spouses dies, between an adopted and illegitimate children
Newell) relationship by affinity
is dissolved. It follows of adopter as such marriage will not most
The relationship by the rle that likely destroy the tranquility of family home
affinity is continued relationship by affinity and “artificial” family because usually, an
despite the death of ceases with the illegitimate child does not live in same house
one of the spouses dissolution of
where there are living marriage which where adopted child and legitimate child of
issues or children of produces it. (Kelly v. adopter are living (Minutes of 151st joint Civil
the marriage in whose Neely) Code and Family Law Committees)
veins the blood of  On the other hand, the adopter can validly
parties are
comminggled, since marry
relationship of affinity 1.) Legitimate, Illegitimate or adopted
was continued child of the adopted
through the medium of
2.) Natural parent of the adopted
issue of marriage
(Paddock v. Wells) 3.) Other relatives whether by
consanguinity or affinity of the
adopted
 In Criminal Law, affinity relation subsists  Hence, if marriage of adopter and his or her
even after the death of spouse regardless of spouse is judicially nullified or annulled, and
existence or non-existence of children barring any other ground to make the
(Intestate Estate of Monalita Gonzales Vda marriage void, adopted can validly marry the
De Carungcong)

[49]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
previous spouse of adopter because such
spouse is not a surviving spouse as
contemplated by law but a former spouse
who, after the finality of the nullity or
annulment decree, has become a complete
stranger to the adopter.
 Likewise and under the same condition, the
adopter can marry the spouse of adopted if
marriage of adopted and his/her spouse
were severed by a final judicial nullity or
annulment decree.
INTENTIONAL KILLING OF SPOUSE
 Involves grave moral turpitude, destructive
not only on family but the whole society itself.
 There is no guarantee that he/she will not do
the same evil act again to subsequent
spouse to marry for the third time.
 However it must be emphasized that, in
killing spouse, guilty party must be animated
by an intention to marry another person.
 Thus, if a wife kills her husband because he
was an incorringible philanderer and
thereafter marries her lawyer who has been
defending her in criminal case, the marriage
is VALID. Reason for killing husband was
obviously not for purpose of marrying the
lawyer.
 NO PRIOR CRIMINAL CONVICTION by
court for killing is required by law. Justice
Caguioa even said that mere preponderance
of evidence is required to prove killing.
 Unknowing party, affected by void character
of marriage.
 Likewise apply to a person who kills the
spouse to marry the latter.
Art. 39. The action or defense for
the declaration of absolute nullity
of a marriage shall not prescribe.
(As amended by Executive Order 227
and Republic Act No. 8533; The
phrase "However, in case of
marriage celebrated before the
[50]
effectivity of this Code and
falling under Article 36, such
action or defense shall prescribe
in ten years after this Code shall
taken effect"has been deleted by
Republic Act No. 8533 [Approved
February 23, 1998]
PRESCRIPTIVE PERIOD
Time within which to file an action for
declaration of nullity of marriage or to invoke
such nullity as a defense, whether direct or
collateral manner DOES NOT PRESCRIBE.
Judicial decree of nullity of marriage does not
legally dissolve marriage because such
marriage is invalid from the beginning and
therefore being non-existent, cannot be
dissolved.
J.D merely declares or confirms the voidness
, non-existence or incipient invalidity of
marriage. Hence decree is known as
declaration of judicial declaration of nullity of
marriage decree.
(Ninal v. Bayadog) Supreme Court justified its
decision by stating that void marriage is
considered as having never to have taken place
and will be treated as non-existent by courts. As
such, petition is imprescriptible and can be filed
by children after death of contracting party, who
was their father.
However under SC En Banc resolution of A.M
No. 02-11-10 which took effect on March
15,2003, the ruling in Ninal case as to
prescription does not hold anymore because said
resolution provides that only husband and wife
can fiile a case and if filed, case will be closed or
terminated if during its pendency, either husband
or wife should die. Moreover, under said new rule
on declaration of nullity, the heirs cannot
anymore file a case for the nullity of marriage of
their parents or their parent with their step-parent
(Enrico v. Heirs of Medinaceli)
Under E.O 227, if Dec of Nullity is that spouse is
Psychologically incapacitated to perform
essential marital obligations and marriage
ceremony was celebrated prior to the effectivity
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
of FC, which was on Aug 3,1988, such action or law, wilfully or negligently
defense must be filed or invoked within 10 years causes damage to another, shall
from Aug 3,1988. However if marriage was indemnify the latter for the
celebrated after the effectivity of FC, action or same.
Art 21 Any person who wilfully causes
defense shall not prescribe.
loss or injury to another in a
manner that is contrary to
RA 8533 further amended Art 39 by morals, good customs or public
deleting prescriptive period of 10 years. policy shall compensate the
latter for the damage.
Hence as it now stands, THERE IS NO
 Significantly, prior to SC resolution in A.M
PRESRIPTIVE PERIOD TO NLLIFY A
No. 02-11-10 SC which took effect on March
MARRIAGE UNDER ART 36, even if
15,2003, any interested party, uch as the
marriage were celebrated before Aug
father and step-children can file a direct case
3,1988. ALL VOID MARRIAGES UNDER FC
for nullity of marriage. However, under new
DO NOT PRESCRIBE.
rules on declaration of nullity, heirs cannot
PARTIES
anymore file a case for nullity of marriage of
 While FC is silent as to who can file a petition
the parents or of their parent with their step-
to declare the nullity of marriage (Ninal
parent. (Enrico v. Heirs of Medinaceli)
v.Bayadog) only husband or wife can file
 Thus previously, a father can file aa case for
cour case declaring marriage void.
declaration of bigamous marriage entered
 Significantly, it has been authoritatively
into by his daughter to married man
opined that equitable doctrine of unclean
(Conjuanco v. Romillo)
hands where court should not grant relief to
 Likewise, leigitimate heris can file a suit
wrongdoer is not a rue as applied in nullity
against their stepmother for the declaration
actions because it is merely judge-made and
of nullity of her marriage with their deceased
has no statutory basis (Faustin v. Lewis)
father to protect their successional rights.
 Any of the parties in void marriage can nullify
 Now, under new rules, parents cannot file a
case even though such party is the
case for nullity in relation to the marriage of
wrongdoer (Chiming Choi v. CA)
their children. Neither can heir file a case in
 Moreover, what is sought to be protected
relation to marriage of his/her parent with
here is also the interest and public policy of
another. (Enrico v. Heirs of Medinaceli)
state. In declaring a marriage void, the state
 SC ruled that only spouses in subsisting first
expresses that it does not consider such
marriage can file a case for declaration of
union as serving the fundamenta prupose of
nullity of subsequent bigamous marriage.
state in fostering and nurturing a family which
The “other spouse” in subsequent marriage
is foundation of society.
cannot file the case considering that his/her
 Nonetheless, wrongdoer may be held liable
marriage is void (Fujiki v. Marinay)
for damage by way of counterclaim by the
 Where 2nd wife filed a petition for intervention
other under provisions of Human relations in
in the declaration of nullity of marriage case
Civil Code.
filed by her husband in relation the latter’s
Human Relations- Liab.
Art 19 Every person must, in the first marriage, SC denied such intervention
exercise of his rights and in the on the ground that 2nd wife has no legal
performance of his duties, act interest to justify her intervention. SC said
with justice, give everyone his that since divorce obtained by her husband
due, and observe honesty and
good faith. in Dominican Republic from 1st wife to be
Art 20 Every person who, contrary to able to marry 2nd wife was not recorgnized in

[51]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
PH, PH law does not recognize 2nd marriage
of her husband to her. (Perez v. CA)
 However void marriage can still be
collaterally attacked by any interested party
in any proceeding where the determination of
the validity of marriage is necessary to give
rise to certain rights or negate certain rights.
This can occur in an intestate proceeding.
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.
JUDICIAL DECLARATION OF NULLITY
o If marriage between two contracting
parties is void ab initio, any one of them
cannot contract a subsequent valid
marriage without previous judicial
declaration of nullity of previous void
marriage.
o Subsequent marriage w/o such JDN of
previous marriage is in itself void ab initio
in accordance with Articles 40,52,53.
o Insofar as Art 40 is concerned, if JDN
were obtained and not registered with
local civil registrar and the liquidation,
partition and distribution of properties, if
any, were also not recorded in proper
registry of property, in accordance with
Art 52 and Art 53 of FC, any subsequent
marriage is likewise void ab initio.
o Only after full compliance with Art 52 and
52 can a subsequent valid marriage be
entered into.
o Hence, though first marriage is judicially
declared void, any subsequent marriage
may still be declared void because of the
failure to comply with Art 52 & Art 53.
o Also, if there is no judicial declaration of
nullity and no decree of annulment, there
can be no way by which the party can
comply with Art 52 in matter of
registration with LC of nullity or
[52]
annulment decree prior to subsequent
marriage . [so it applies: void and
voidable marriages]
o RATIONALE:
For the sake of good order of society and
for peace of mind of all persons
concerned, it is generally expedient that
nullity of marriage should be asccertaied
and declared by decree of court of
competent jurisdiction. Another reason
why a judicial determination of such a
marriage ought to be sanctioned is that
the opportunity given, when evidence
obtainable, and the parties living t ave
proof of validity of such marriage
presented in form of judicial record, so
that it cannot be disputed or denied.
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.
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.
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
HISTORY BACKGROUND OF NEED FOR
JUDICIAL DECLARATION OF NULLITY
 Prior to effectivity of FC, rule on need for
judicial declaration of nullity of void marriage
for purposes of remarriage changed from
time to time.
 As consonance to these changing rules,
status of subsequent marriage depends upon
time of solemnization of said marriage.
 Example of situation
1960 w/o need
1972 required
1978 w/o need
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
1985 w/o need
1986 required
 Jarillo v. People, June 29,2010, Supreme
court made a sweeping statement on Art 40
can be given retroactive effect and ruled that,
even if the two marriages were solemnized
prior to Aug 3,1988, the subsequent
marriage will always be void.
 As basis SC used Atienza v. Brillantes, supra
as basis. This is unfortunate because the
subsequent marriage in Atienza case
occurred after Augsust 3,1988 when FC
already in effect.
 In Atienza ccase, SC was clearly stating that
even if 1st marriage was celebrated before
effectivity of FC, but subsequent marriage
occurred after said FC, Art 40 will apply
retroactively in so far as making 1st marriage
the reckoning point.
 Atienza case does not deal with two
marriage occurring prior to Aug 3,1988.
Atienza v. Brillantes digest
FACTS:
This is a complaint by Lupo A. Atienza for Gross
Immorality and Appearance of Impropriety
against Judge Francisco Brillantes, Jr.
Complainant alleged that he has two children
with Yolanda De Castro with whom respondent
Judge was cohabiting with. Complainant claimed
that respondent is married to one Zenaida
Ongkiko with whom he has 5 children.
Respondent alleges that while he and Ongkiko
went through a marriage ceremony (1965) before
a Nueva Ecija town Mayor, the same was not a
valid marriage for lack of a marriage license.
Upon request of the parents of Ongkiko,
respondent went through another marriage
ceremony with her in Manila. Again, neither party
applied for a marriage license. Respondent
claims that when he married De Castro in civil
rites in Los Angeles, California in 1991, he
believed in all good faith and for all legal intents
and purposes that he was single because his first
marriage was solemnized without a license.
Respondent also argues that the provision of
Article 40 of the Family Code does not apply to
him considering that his first marriage took place
in 1965 and was governed by the Civil Code of
[53]
the Philippines; while the second marriage took
place in 1991 and governed by the Family Code.
ISSUE:
WON Article 40 of the Family Code is applicable
to the case at bar.
HELD:
Yes. Article 40 is applicable to remarriages
entered into after the effectivity of the Family
Code on August 3, 1988 regardless of the date of
the first marriage. Besides, under Article 256 of
the Family Code, said Article is given “retroactive
effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the
Civil Code or other laws.” This is particularly true
with Article 40, which is a rule of procedure.
Respondent has not shown any vested right that
was impaired by the application of Article 40 to
his case.
 In case of Domingo v. CA. SC had the
occasion to discuss the reason fro need to
obtain a judicial declaration of nullity for the
purpose of remarriage and proper
interpretation of Art 40 of FC. After tracing
the changing doctrines in relation to need of
obtaining a judicial declaration of nullity SC
stated that declaration of absolute nullity of
marriage iis now explicitly required either as
cause of action or a ground fro defense.
Where absolute nullity of previous marrage is
sought to be invoked for purposes of
contracting a second marriage , the sole
basis acceptable in law for said projected
marriage to be free from legal infirmity is final
judgment declaring the previous marriage
void. Family Law Revision Committee and
Civil Code Revision Committee which drafted
SC took position that parties to marriage
should not be allowed to assume that their
marriage is void even if such be the fact but
must first secure a judicial declaration of
nullity of their marriage before they can be
allowed to marry again.
Art 40 as finally formulated included the
significant clause denotes that such final
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
judgment declaring the previous marriage void o Aim of Article 40 in requiring for purposes of
need not be obtained only for the purposes of remarriage a judicial declaration of nullity by
remarriage. Undoubtedly, one can conceive of final judgment of previously contracted void
other instances where a party might well invoke marriage is “to do away with any continuing
the absolute nullity of previous marriage for
uncertainty on status of 2nd marriage (Valdes
purpose other than remarriage such as in the
case of an action for liquidation, partition, v. RTC) 2nd marriage shall likewise be void.
distribution or separation of property between o In (De Castro v. Assidao-De Castro) SC
erstwhile spouses, as well as an action for ruled that in case for support, a lower court
custody and support of their children and delivery can declare marriage void even without prior
of latter’s presumptive legitimes. judicial declaration of nullity of void marriage
filed in a separate action considering that
So why the distinction? In other words, for
purposes of remarriage, why should the only determination of the issue on validity of
legally acceptable basis for declaring a previous marriage was important in the resolution of
marriage an absolute nullity be a final judgment the right of child to be supported. This is so
declaring such previous marriage void? Whereas because the validity of marriage, as a
for purposes other than remarriage, other general rule can be collaterally attacked. It
evidence is acceptable reiterated however the ruling in Domingo
case, supra that for purposes of remarriage,
 FC characterizes marriage as a “special
contract of permanent union between a man the only acceptable proof is a judicial
and a woman entered into in accordance declaration of nullity of marriage.
with law for the establishment of conjugal
and family life” ARTICLE 40 AND BIGAMY
 So crucial are marriage and family to the  Law distinctly separated the provisions of
stability and peace of thee nation and that subsequent void marriages contracted
their nature, consequences, and incidents
while previous marriage is still subsisting
are governed by law and not subject to
stipulation (Art 40)
 As a matter of policy therefore, nullification of  From provisions on void bigamous
marriage for purpose of contracting another marriage (Art 35 (4) and Art 41
cannot be accomplished merely on basis of  All these provisions contemplate a
perception of both parties or of one that their situation where subsequent marriage is
union is so defective with respect to the void but they differ on status of first
essential requisites of contract of marriage
marriage.
as to render it void ipso jure and with no legal
effect and nothing more. ART 40 ART 35 (4) & 41
 That law seeks to ensure that prior marriage o Void not because it o Subsequent void
is no impediment to a second marriage to be is bigamous but bigamous marriage
because it failed to contemplates a
contracted by one of the parties may be
comply with the situation where such
gleaned from new information required in the requirements under subsequent
FC to be included in application for a Art 40, 52 and 53. marriage was
marriage license. “If previously marriage, o Thus if contracting contracted at time
how when and where the previous marriage parties marry without a when the first
was dissolved and annulled. marriage license and marriage, which is
they do not fall under valid in all respects,
o Significantly, Art 40 of FC which is a rule of exceptions for
procedure in effect states that only was still subsisting.
obtaining valid
marriage license their FIRST MARRIAGE IS
acceptable proof of nullity of 1st marriage for NOT VOID BUT
marrage is void on
purposes of remarriage is judicial declaration ground of absence of a COMEPLETELY VALID
of nullity. formal requirement OR AT LEAST

[54]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
:valid ML ANNNULLABLE.
o If one of them SUBSISTING 1ST
remarries w/o
MARRIAGE WAS
procuring a JDN of 1st
VALID.
marriage, the
subsequent marriage
is void not because it
is bigamous but
because it violates Art
40 in rel to 52 & 53
PRECISELY
CONTEMPLATES A
SITUATION WHERE 1ST
MARRIAGE IS VOID
 Interesting to note however that in Nicdao
Carino v. Carino, SC wile acknowledging that
previous marriage was void for aving been
solemnized w/o marriage license,
nevertheless stated that subsequent
marriage of one of the parties was bigamous
because the first marriage, though void was
still presumed to be valid considering that
there was no judicial declaration of nullity of
1st marriage.
 Accordingly SC applied property regime
under Art 148. This particular decision
creates confusion for, in making the
presumption, there seems to be no more
distinction between voidness of subsequent
marriage to bigamy under Art 41
 By statement SC presuming the validity of 1st
marriage, though it is indeed void due to lack
of ML, it obfuscates the difference between
40 & 41.
 QUESTION IS: If 1st marriage will always be
presumed to be valid, though it is clearly
void, would there still be any difference
between Art 40 and bigamy under 40?
 It is submitted therefore that despite the
decision of SC in Carino case, basic
difference between Art 40 ad 41 must still be
maintained.
ARTICLE 40 AND CRIMINAL BIGAMY
Crime of Bigamy under our laws is
committed by any person who shall
contract a 2nd or subsequent marriage
before the former marriage has been
[55]
legally dissolved or before the absent
spouse has been declared presumptively
dead by means of judgment rendered I
the proper proceeding.
The crime of bigamy therefore
contemplates a situation where the 1st
marriage is valid or at least annullable
and not void from the beginning.
Hence if the 2nd marriage is likewise void
of legal grounds other than bigamy, there
can be no crime of bigamy.
It might likewise be pointed out that good
faith in contracting 2nd marriage is a
defense in crime of bigamy.
However, in (Mercado v Mercado) SC
held that criminal offense of bigamy is
committed for so long as subsequent
marriage was contracted by person
without him/her obtaining judicial
declaration of nullity of his/her 1st
marriage pursuant to Art 40 of FC. SC
did not find it material to focus on nullity
of 1st marriage but instead merely
reasoned that, for so long as Art 40 of
FC was not complied with, the
subsequent marriage will always be
criminally bigamous. Hence ruling states
that criminal bigamy is determined not by
fact that 1st marriage is really legally void
but by fact that no judicial declaration of
nullity of 1st marriage was obtained prior
to subsequent marriage.
This decision is subject to strong
dissenting opinion of Assoc Justice Jose
Vitug.He stated that criminal law on
bigamy contemplated an existing
marriage or at least an annullable or
voidable one but not a null and void one.
When criminal law on bigamy referred to
a legally dissolved marriage, it clearly
contemplates a marriage which is at
least annullable or voidable but not void.
This is so because criminal law on
bigamy as explained in (People v.
Aragon) does not require a judicial
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
declaration of nullity in order to set up the
defense of nullity of marriage in cases of
criminal bigamy. He stated that the total
nullity and inexistence of void marriage
“should be capable of being
independently raised by way of defense
in a criminal case for bigamy”
He observes that “no incongruence
between this rule in criminal law and FC
and each may be applied within the
respective spheres of governance.”
Dissenting opinion of Assoc Justice Vitug
in Mercado case appears to be a correct
rule.
While the accused may have violated Art
40, such violation is not a bar in invoking
nullity of 1st marriage because Art 40
merely aims to put certainty as to the
void status of subsequent marriage and
is not aimed as provision to define
bigamy under FC or criminal bigamy
under RPC.
Only effect of non-observance of Art 40
is to make the subsequent marriage void
pursuant to Art 52 and 3.
(page 284*** People v. Cobar)

[ART 40-46 REFER TO BOOK AND TAKE

NOTE OF CASES}

[56]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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 Article 45, by the
injured party, within five years
after the discovery of the
fraud;
[57]
(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.
NATURE OF ANNULMENT
 Actions in rem: concern the status of parties and
status affects or binds whole world.
 “res” is the relation between said parties, or their
marriage tie.
 Jurisdiction over the same by proper RTC
depends upon the nationality or domicile of
parties, not the place where celebration of
marriage took place or the locus celebracionis.
 Thus where Filipino is domiciled in PH, lower
court has jurisdiction to annul his marriage to
Korean girl contracted by him in Korea.
(Raray v. Chae Kyung Lee)
Rayray married Lee in 1952 in Pusan, Korea. Before
the marriage, Lee was able to secure a marriage
license which is a requirement in Korea prior to
marrying. They lived together until 1955. Rayray
however later found out that Lee had previously
lived with 2 Americans and a Korean. Lee answered
by saying that it is not unusual in Korea for a woman
to have more than one partner and that it is legally
permissive for them to do so and that there is no
legal impediment to her marriage with Rayray.
Eventually they pursued their separate ways. Rayray
later filed before lower court of Manila for an action to
annul his marriage with Lee because Lee’s
whereabouts cannot be determined and that his
consent in marrying Lee would have not been for the
marriage had he known prior that Lee had been
living with other men. His action for annulment had
been duly published and summons were made
known to Lee but due to her absence Rayray moved
to have Lee be declared in default. The lower court
denied Rayray’s action stating that since the
marriage was celebrated in Korea the court cannot
take cognizance of the case and that the facts
presented by Rayray is not sufficient to debunk his
marriage with Lee.
ISSUE: Whether or not Rayray’s marriage with Lee is
null and void.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
HELD: The lower court erred in ruling that Philippine sanity
courts do not have jurisdiction over the case. As far as 3. Fraud Injured party w/in 5 years
marriage status is concerned, the nationality principle
is controlling NOT lex loci celebracionis. The lower after discovery
court is however correct in ruling that Rayray’s of fraud
evidence is not sufficient to render his marriage with 4. Vitiated Injured party w/in 5 years
Lee null and void. Rayray said that the police Consent from time
clearance secured by Lee is meant to allow her to
force,
marry after her subsequent cohabitation/s with the
other men – which is considered bigamous in intimidation or
Philippine law. The SC ruled that the police clearance undue
is wanting for it lacks the signature of the person who influence
prepared it and there is no competent document to disappeared
establish the identity of the same. Also, through
or ceased
Rayray himself, Lee averred that it is ok in Korea for a
person who cohabited with other men before to marry 5. Incapabilit Injured party w/in 5 years
another man. This is an indication that Lee herself is y to after marriage
aware that if it were a previous marriage that is Consumma ceremony
concerned then that could be a legal impediment to te/ STD
any subsequent marriage. Rayray cannot be given
credence in claiming that his consent could have been
otherwise altered had he known all these facts prior to
Notes:
the marriage because he would lie to every  In case of insanity, if the sane spouse knew that
opportunity given him by the Court so as to suit his his/her spouse has already been insane previous
case. to the marriage
 Such sane spouse cannot file suit for annulment
as he/she is already estopped.
GROUNDS,PARTIES, PRESCRIPTIVE PERIOD  If sane spouse only knew of insanity after
 Prescriptive period is the time within which case marriage ceremony, he/she is given legal
can be filed in court. standing to file sit at anytime prior to death of
 After lapse of prescriptive period, case cannot be insane spouse.
filed anymore  In fraud, vitiated consent, incapability to
GROUNDS CODE (N.I.F.V.I) consummate and std :
GROUND PARTY TO FILE PRESCRIPTIV  Person given standing is the “injured party.
SUIT E PERIOD
 Even if injured party were married because of
1. No Parent Parent/Guardia Anytime
Consent n having legal before no- force and intimidation and thereafter such injured
charge of no- consent party party became insane, the parents or person who
consent party reaches age is legally charged of such aggrieved party who
of 21 eventually became insane cannot file a case for
No consent w/in 5 years annulment for him or her.
party after attaining  Non-consent of parents, as to child himself, she
21 can file the case within 5 years after reaching
2. Insanity Sane spouse At any time age of 21.
without before death - It may be argued, however that lowering the
knowledge of of either party majority age from 21 to 18 by R.A 6809
insanity amending Art 234 of FC, has in effect extended
Relative, At any time the prescriptive period in favor of child.
guardian, or before death  Where one of the parties is insane, he/she
person having of either party cannot reciprocate the marital commitment of
legal charge of sane person.
insane
 Insane spouse cannot even appreaciate and
Insane spouse During lucid
comply with the essential marital obligations.
interval or
after regaining  To a great extent, an insane person is even
worse than a person who is merely

[58]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
psychologically incapacitated to perform the
essential marital obligations. Failure of insane
person’s mental faculties to perform normally
even affects nor only his or her marital life but
also totality of life.
 But if it that the case? Why is insanity merely a
ground for annulment while psychological
incapacity is grounds for nullity?
 For vitiated consent, the 5 year period is counted
from the time of disappearance of force,
intimidation or undue influence.
 For fraud, the 5 year period starts from discovery
of fraud
 For incurable impotency and std, disease, 5 year
period begins from time of marriage ceremony.
 However, except for grounds of incurable
physical incapacity to consummate or incurable
STD, the ther grounds are subj to rule of
ratification.
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.
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
[59]
consideration to the moral and
material welfare of said children
and their choice of the parent with
whom they wish to remain as
provided to in Title IX. It shall
also provide for appropriate
visitation rights of the other
parent.
PROCEDURE IN ANNULMENT AND IN
DECLARATION OF NULLITY CASES
 Procedure is now governed by Supreme Court
En Banc Resolution A.M 00-11-01-SC. Effective
March 15,2003
 After a complaint for annulment or for declaration
of nullity of marriage has been filed with proper
RTC, defendant shall be given 15 days from
receipt of summons and of a copy of complaint
within which to file an answer
 In the event that defendant fails to file an answer,
he/she cannot be declared in default unlike
ordinary civil cases and the court will order the
full-blown hearing of the case where the fiscal
shall appear on behalf of the state to make sure
that no collusion or the evidence is not
fabricated.
 However, if errorneously, the court renders a
default jusgment in an annulment case, this
would not prevent the decree from having legal
effect.
 BECAUSE: Errorneous judgment IS NOT void
judgment
 If defending party in an action for annulment or
declaration of nullity of marriage or for legal
separation fails to answer, court shall order
prosecuting attorney to investigate whether a
collusion between parties exists, and if there is
no such collusion, to intervene for the State in
order to see to it that the evidence submitted is
not fabricated.
 Inquiry of the fiscal can focus upon any relevant
matter that may indicate whether proceedings
for annulmen, nullity or legal separation are fully
justified or not.(Brown v. Yambao)
 Annulment suit cannot be terminated by way of
compromise agreement.. No valid compromise is
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
legally possible on issue of validity of marriage.
(Mendoza v. Ca)
 In all cases, a full blown hearing must be
undertaken where parties are duty bound to
prove their grounds by preponderance of
evidence.
 Summary proceedings are not allowed?
 WHY?
1. Such action is not one to “recover upon a
claim” or “to obtain a declaratory relief”
2. It is avowed politcy of state to prohibit
annulment if marriages by summary
proceedings (Roque v. Enarnacion)
 In actions for declaration of nullity or annulment
of marriage or legal separation, the material facts
alleged in complaint shall always be proved.
ROLE OF FISCAL AND SOLICITOR GENERAL
 In annulment or nullitycases: prosecuting
attorney or fiscal must be present.
 OSG can intervene in proceeding considering
that issue of validity of marriage is vested with
public interest.
 OSG – counsel of state in capacity of defender of
marital bound (defensor vinculi)
DUTY
1.) Make sure that there is no collusion or
that evidence is not fabricated
2.) Defend marriage
3.) Expose an invalid marriage
 Prosecutin attorney must actively participate.
 Fiscal merely filed a manifestation that there was
no collusion and where he merely entered his
appearance at certain heariings of case for futher
proceeding even if SC remanded case for further
proceedings even if judge of lower court already
denied petition for nullity. (Sin v. Sin)
 Partial voluntary separation of property agreed
upon by parties via compromise agreement duly
approved by Court prior to judicial declaration of
nullity of marriage is valid (Maquilan v. Maquilan)
 It cannot be voided because non-participation of
prosecuting atty or OSG. An agreement to
separate property is not itself an indicator of
collusion. In fact, there is no need for fiscal to
participate in negotiation leading to agreement.
[60]
The task of fiscal is to determine if parties
colluded or fabricated their evidence to get a
nullity or annulment of marriage. If there is no
showing that compromise agreement for the
separation of propert touched on merits of nullity
or annulment case, participation of fiscal or OSG
in such an agreement is no need. (Maquilan v.
Maquilan)
 However if annulment or declaration of nullity of
case were strongly opposed and heatedly
contested in that defendant filed his answer and
was represented by counsel who filed several
pleadings and actively participated in the case
and even cross examined the witnesses of
plaintiff, it is clear that litigation was characterized
by no-holds-barred contest and not by collusion.
Under this circustances, non-intervention of fiscal
or prosecuting atty. to assure lack of collusion
between contending parties is not fatal for validity
of proceedings in court especially when it was no
shown that it was suppressed or fabiracted by
parties. These kinds of situation do not call for
strict application of Art 48 and 60 of FC (Tuason
v. CA)
COLLUSION
 Where for purposes of getting an annulment or
nullity decree, parties come up w/ an agreement
making it appear that the marriage is defective
due to the existence of any of the grounds for
annulment of marriage
 or the declaration of its nullity provided by law
and agreeing to represent such false or non-
existent cause of action before proper court with
objective of facilitating issuance of decree of
annulment or nullity of marriage.
 Collusion implies a corrupt agreement between
husband and wife and therefore renders
dismissible an annulment or nullity case initiated
through the same.
 Collusion only if parties had arranged to make it
appear that ground existend or had been
committed although it was not, or if parties had
connived to bring about a matrimonial case
even in absence of grounds therefor. (Ocampo
v. Florenciano)
 To say that mere agreement is collusion and
therefore enough to dismiss a case is
dangerous becase this could very well leave
fate of proceeding to defendant who would, if
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
he/she wishes to proceed with case deny an
agreement, or who desires to terminate case
merely invoke the parties agreed to file suit
even if there is real ground for matrimonial case.
 Judge who does not order an investigation for
collusion when situation falls squarely within
rules for him to order such investigation can be
subject to administrative sanction. (Corpus v.
Ochotorena)
 Mere fact that wife agreed and accepted
P50,000 from husband as her share in conjugal
property in nullity case does not prove collusion
- Probability that husband willingly gave her
amount as her conjugal asset out of his
recognition of her unquestionable legal
entitlement to such share was very high
STIPULATION OF FACTS OR CONFESSION
OF JUDGMENT
 Annulment or decree cannot e issued by court on
sole basis of stipulation of facts or confession of
judgment (Cardenas v. Cardenas and Rinen)
Stipulation of Facts Confession of
Judgment
- Practically an - Admission made in
admission by both court by respondent
parties made in or defendant
court agreeing to admitting fault as
existence of the act invoked by plaintiff to
constituting the sever marriage ties.
ground of
annulment or for
declaration of nullity
of marriage
However if stipulation of facts or
confession of judgment if sufficiently
supported or corroborated by other
independent substantial evidence to
support main ground relied upon, may
warrant an annulment of marriage or the
declaration of nullity of the same.
What law prohibits is judgment based
exclusively or mainly on defendant who
oppose the separation will immediately
confess judgment purposely to prevent it.
Remember that state and public ave vital interest
in the mainteane and preservation of these social
institution against descreation by collusion
between parties or by fabricated evidence.
[61]
Prohibition against annulling marriage based on
stipulation of facts or by confession of judgment
or by non-appearance of defendant stresses that
marriage s more than mere contract between
parties; and for this reason, when defendant fails
to appear, law enjoins court to direct prosecuting
officer to intervene for state in order to preserve
integrity and sanctity of marriage bonds.
((Tolentino v. Villanueva)
Mere circumstance that defendant told fiscal that
she “liked also” to be legally separated from
husband is no obstacle to successful prosecution
of action.
 Where 1st wife filed annulment of marriage case
with respect to subsequent marriage of her
husband with 2nd wife and where during hearing
there was a stipulation of facts entered into by
1st wife and defendants whereby parties agreed
that 1st wife is married to her husband prior to
2nd wife and where marriage certificates of 1st
and 2nd marriage were duly attached to
stipulation of facts, sc ruled that the stipulation
of facts and attached marriage cert are sufficient
to declare 2nd marriage null and void . In this
case, collusion is remote becase interet of 1st
and 2nd wife are conflicting. (Cardenas v.
Cardenas)
NULLITY DECISION PRIOR TO
DETERMINATION OF OTHER INCIDENTAL
ISSUES
 Annulmet and declaration of nullity case, other
issues can be threshed out such as with respect
to visitation rights division of property and
custody.
 Rules of nullity of void marriage and annulment
of voidable marriages (En Banc Resolution in
A.M 02-11-10-SC) clearly allow the reception on
evidence on custody support and property
relations after trial courts renders a decision
granting petition or upon entry of judgment
granting the petition and even before decree of
nullity or annulment is issued (Yu. V. Carpio)
SUPPORT OF SPOUSES AND CUSTODY OF
CHILDREN
 Governed by whatever agreement the parties
have made with respect to the same.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Principally, spouses and their children shall be
supported from properties of absolute community
of property or conjugal partnership of gains
during period of sut for annulment or nullity of
marriage. (Art 198 FC)
 However should the court find agreement
inadequate, it may disregard the same and make
necessary provisions.
 Where court provisionally gives support pendente
lite to spouse who at end has of case has been
found out to be not entitled to support because
marriage is void ab initio, court shall order
recipient to return to person who furnished
support amounts already paid with legal interest
from dates of actual payments.
 Court shall give paramount consideration to the
moral and material welfare of children and their
choice of parent with whom they wish to remain.
 Art 213 of FC provides that “no child under 7
years of age shall be separated from the mother
UNLESS court finds compelling reasons to order
otherwise.”
 Court shall also provide for appropriate visitation
rights of other parent.
Court takes consideration of
 Sex
 Age
 Emotional, Social,Moral, Material and Educational
needs
 Home environment offered by parties
 Characteristics of those seeing custody including
age, character,stability, mental and physical health
 Capacity and interest of each parent to provide for
child’s needs
 Effect on children of disrupting or continuing an
existing custodial status
 Preference of each child (if child is of sufficient age
and maturity)
 Recommendation of any expert witness
Rule 61 of the Rules of Court
provides for the proper application and procedure for such
a petition. Under the said rule, the court hearing the case
may, upon proper petition and hearing grant and
provisionally fix the amount of money to be paid or to
provide for the other forms of support taking into
consideration the resources of the adverse party.
Furthermore, as provided for under the Rule on Provisional
Orders covering actions for annulments, declaration of
nullity of marriages and actions for legal separation, the
court issuing the order for provisional support may be
guided by the following factors:
(1) whether the spouse seeking support is the custodian of
a child whose circumstances make it appropriate for that
[62]
spouse not to seek outside employment;
(2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find
appropriate employment, and that spouse’s future earning
capacity;
(3) the duration of the marriage;
(4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor
market;
(5) the needs and obligations of each spouse;
(6) the contribution of each spouse to the marriage,
including services rendered in home-making, child care,
education, and career building of the other spouse;
(7) the age and health of the spouses;
(8) the physical and emotional conditions of the spouses;
(9) the ability of the supporting spouse to give support,
taking into account that spouse’s earning capacity, earned
and unearned income, assets, and standard of living; and
(10) any other factors the court may deem just and
equitable. This however, should not be confused with a
separate action for support. An action for support pendente
lite requires an existing case where the issue of support is
but an incident of the main proceeding. An action for
support is an independent proceeding wherein the grant of
support is the main relief sought.
VISITATION RIGHTS
 While custody of child may be awarded to a
particular parent, this does not deprive other
parent from exercising his/her visitorial rights
 UNLESS court for some compelling reason
deprives him/her of this right.
 Even if parent has been legally deprived of
visitorial rights, this can be reinstated if fit can be
shown that grounds for deprivation have become
too harshe or are not anymore present.
 Parents have natural right as well as moral and
legal duty to care for their children and see to
their proper upbringing and safeguard their best
interest and welfare.
 The authority and responsibility may not be
unduly renounced by them.
 Even when parents are estranged, and their
affection to each other is lost, the attachment and
feeling for their offspring invariably remain
unchanged.
CARLITOS E. SILVA, petitioner, vs. HON. COURT
OF APPEALS and SUZANNE T. GONZALES,
respondents.
DECISION
VITUG, J.:
Parents have the natural right, as well as the moral
and legal duty, to care for their children, see to their
proper upbringing and safeguard their best interest
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
and welfare. This authority and responsibility may not
be unduly denied the parents; neither may it be
renounced by them. Even when the parents are
estranged and their affection for each other is lost, the
attachment and feeling for their offsprings invariably
remain unchanged. Neither the law nor the courts
allow this affinity to suffer absent, of course, any real,
grave and imminent threat to the well-being of the
child.
The petition bears upon this concern.
Carlitos E. Silva, a married businessman, and
Suzanne T. Gonzales, an unmarried local actress,
cohabited without the benefit of marriage. The union
saw the birth of two children: Ramon Carlos and Rica
Natalia. Not very long after, a rift in their relationship
surfaced. It began, according to Silva, when Gonzales
decided to resume her acting career over his vigorous
objections. The assertion was quickly refuted by
Gonzales who claimed that she, in fact, had never
stopped working throughout their relationship. At any
rate, the two eventually parted ways.
The instant controversy was spawned, in February
1986, by the refusal of Gonzales to allow Silva, in
apparent contravention of a previous understanding,
to have the children in his company on weekends.
Silva filed a petition for custodial rights over the
children before the Regional Trial Court (RTC),
Branch 78, of Quezon City. The petition was opposed
by Gonzales who averred that Silva often engaged in
"gambling and womanizing" which she feared could
affect the moral and social values of the children.
In an order, dated 07 April 1989, the trial court
adjudged:
"WHEREFORE, premises considered, judgment is
rendered directing respondent to allow herein
petitioner visitorial rights to his children during
Saturdays and/or Sundays, but in no case should he
take out the children without the written consent of the
mother or respondent herein. No pronouncement as
to costs."[1]
Silva appeared somehow satisfied with the judgment
for only Gonzales interposed an appeal from the
RTCs order to the Court of Appeals.
In the meantime, Gonzales got married to a Dutch
national. The newlyweds emigrated to Holland with
Ramon Carlos and Rica Natalia.
On 23 September 1993, the appellate tribunal ruled in
favor of Gonzales; it held:
"In all questions, regarding the care, custody,
[63]
education and property of the child, his welfare shall
be the paramount consideration' - not the welfare of
the parents (Art. 8, PD 603). Under the predicament
and/or status of both petitioner-appellee and
respondent-appellant, We find it more wholesome
morally and emotionally for the children if we put a
stop to the rotation of custody of said children.
Allowing these children to stay with their mother on
weekdays and then with their father and the latter's
live-in partner on weekends may not be conducive to
a normal up-bringing of children of tender age. There
is no telling how this kind of set-up, no matter how
temporary and/or remote, would affect the moral and
emotional conditions of the minor children. Knowing
that they are illegitimate is hard enough, but having to
live with it, witnessing their father living with a woman
not their mother may have a more damaging effect
upon them.
"Article 3 of PD 603, otherwise known as the Child
and Youth Welfare Code, provides in part:
"`Art. 3. Rights of the Child. - x x x
`(5) Every child has the right to be brought up in an
atmosphere of morality and rectitude for the
enrichment and the strengthening of his character.
`(8) Every child has the right to protection against
exploitation, improper influences, hazards and other
conditions or circumstances prejudicial to his
physical, mental, emotional, social and moral
development.
"With Articles 3 and 8 of PD 603, in mind, We find it to
the best interest of the minor children, to deny
visitorial and/or temporary custodial rights to the
father, even at the expense of hurting said parent.
After all, if indeed his love for the children is genuine
and more divine than the love for himself, a little self-
sacrifice and self-denial may bring more benefit to the
children. While petitioner-appellee, as father, may not
intentionally prejudice the children by improper
influence, what the children may witness and hear
while in their father's house may not be in keeping
with the atmosphere of morality and rectitude where
they should be brought up.
"The children concerned are still in their early
formative years of life. The molding of the character of
the child starts at home. A home with only one parent
is more normal than two separate houses - (one
house where one parent lives and another house
where the other parent with another woman/man
lives). After all, under Article 176 of the Family Code,
illegitimate children are supposed to use the surname
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
of and shall be under the parental authority of their
mother.
"The child is one of the most important assets of the
nation. It is thus important we be careful in rearing the
children especially so if they are illegitimates, as in
this case.
"WHEREFORE, in view of all the foregoing, judgment
is hereby rendered giving due course to the appeal.
The Order of the Regional Trial Court of Quezon City
dated April 7, 1989 is hereby reversed. Petitioner-
appellee's petition for visitorial rights is hereby denied.
"SO ORDERED."[2]
Silva comes to this Court for relief.
The issue before us is not really a question of child
custody; instead, the case merely concerns the
visitation right of a parent over his children which the
trial court has adjudged in favor of petitioner by
holding that he shall have visitorial rights to his
children during Saturdays and/or Sundays, but in no
case (could) he take out the children without the
written consent of the mother x x x." The visitation
right referred to is the right of access of a
noncustodial parent to his or her child or children.[3]
There is despite a dearth of specific legal provisions,
enough recognition on the inherent and natural right
of parents over their children. Article 150 of the
Family Code expresses that "(f)amily relations include
those x x x (2) (b)etween parents and children; x x x."
Article 209, in relation to Article 220, of the Code
states that it is the natural right and duty of parents
and those exercising parental authority to, among
other things, keep children in their company and to
give them love and affection, advice and counsel,
companionship and understanding. The Constitution
itself speaks in terms of the "natural and primary
rights of parents in the rearing of the youth.[4] There
is nothing conclusive to indicate that these provisions
are meant to solely address themselves to legitimate
relationships. Indeed, although in varying degrees,
the laws on support and successional rights, by way
of examples, clearly go beyond the legitimate
members of the family and so explicitly encompass
illegitimate relationships as well.[5] Then, too, and
most importantly, in the declaration of nullity of
marriages, a situation that presupposes a void or
inexistent marriage, Article 49 of the Family Code
provides for appropriate visitation rights to parents
who are not given custody of their children.
There is no doubt that in all cases involving a child,
his interest and welfare is always the paramount
[64]
consideration. The Court shares the view of the
Solicitor General, who has recommended due course
to the petition, that a few hours spent by petitioner
with the children, however, could not all be that
detrimental to the children. Similarly, what the trial
court has observed is not entirely without merit; thus:
"The allegations of respondent against the character
of petitioner, even assuming as true, cannot be taken
as sufficient basis to render petitioner an unfit father.
The fears expressed by respondent to the effect that
petitioner shall be able to corrupt and degrade their
children once allowed to even temporarily associate
with petitioner is but the product of respondent's
unfounded imagination, for no man, bereft of all moral
persuasions and goodness, would ever take the
trouble and expense in instituting a legal action for the
purpose of seeing his illegitimate children. It can just
be imagined the deep sorrows of a father who is
deprived of his children of tender ages."[6]
The Court appreciates the apprehensions of private
respondent and their well-meant concern for the
children; nevertheless, it seems unlikely that
petitioner would have ulterior motives or undue
designs more than a parents natural desire to be able
to call on, even if it were only on brief visits, his own
children. The trial court, in any case, has seen it fit to
understandably provide this precautionary measure,
i.e., "in no case (can petitioner) take out the children
without the written consent of the mother."
WHEREFORE, the decision of the trial court is
REINSTATED, reversing thereby the judgment of the
appellate court which is hereby SET ASIDE. No
costs.
SO ORDERED.
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
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
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
[65]
annulment or absolute nullity shall
be considered as advances on their
legitime.
JUDGMENT OF ANNULMENT OR NULLITY OF
MARRIAGE
- Shall state factual and legal basis for its
dispositive conclusion
- Court cannot grant any relief which is not based
on allegation of the petition unless issues related
t main case were presented without objection
from any party.
- Should court render judgment not in conformity
with allegations in a pleading or which grant relief
which is not based on pleadings, judgment is
void for being coram non judice.
- Even if judgment is void but was not assailed in a
motion for reconsideration and therefore not
made an issue on appeal, such void judgment
shall not set aside and will continue to be
effective.
- Findings of TC as to existence or non-existence
of party’s psychological incapacity at time of
marriage is final and binding on SC unless it can
be sufficiently shown that TC’s factual findings
and evaluation of testimonies and pieces of
evidence are clearly and manifestly erroneous.
(Tuason v CA)
- If it shall involve dissolution of ownership of
properties, liquidation, partition and distribution of
the same shall be provided for in the same
judgment unless such matters had been
adjudicated previous judicial proceedings or
parties had agreed in their marriage settlement
executed prior to marriage that regime of
separation of property govern their marriage.
ART 50 APPLIES TO marriage declared void ab inito
under 40 and 45 of fc
 VOID MARRIAGES THAT OCCUR AS A
RESULT OF NON-OBSERVANCE OF ARY 40
 Specifiically, they apply only to subsequent void
marriages contracted by spouse of a prior void
marriage before latter s judicially declared void.
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
Art. 45. A marriage may be annulled for any of the
following causes, existing at the time of the marriage
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Art 43(2) The absolute community of property or the industry shall be governed by
conjugal partnership, as the case may be, shall be the rules on co-ownership.
dissolved and liquidated, but if either spouse Neither party can encumber or
contracted said marriage in bad faith, his or her share dispose by acts inter vivos of
his or her share in the property
of the net profits of the community property or
acquired during cohabitation
conjugal partnership property shall be forfeited in and owned in common, without
favor of the common children or, if there are none, the the consent of the other, until
children of the guilty spouse by a previous marriage after the termination of their
or in default of children, the innocent spouse; cohabitation.
(3) Donations by reason of marriage shall remain When only one of the parties to
valid, except that if the donee contracted the marriage a void marriage is in good faith,
in bad faith, such donations made to said donee are the share of the party in bad
revoked by operation of law; faith in the co-ownership shall
(4) The innocent spouse may revoke the designation be forfeited in favor of their
common children. In case of
of the other spouse who acted in bad faith as
default of or waiver by any or
beneficiary in any insurance policy, even if such all of the common children or
designation be stipulated as irrevocable; and their descendants, each vacant
(5) The spouse who contracted the subsequent share shall belong to the
marriage in bad faith shall be disqualified to inherit respective surviving
from the innocent spouse by testate and intestate descendants. In the absence of
succession. descendants, such share shall
Art. 44. If both spouses of the subsequent marriage belong to the innocent party. In
acted in bad faith, said marriage shall be void ab initio all cases, the forfeiture shall
take place upon termination of
and all donations by reason of marriage and
the cohabitation
testamentary dispositions made by one in favor of the
other are revoked by operation of law. Art. 148. In cases of
cohabitation not falling under
VALDEZ RULING the preceding Article, only the
properties acquired by both of
ART 50 OTHER CASES OF VOID the parties through their actual
: MARRIAGE joint contribution of money,
VOID property, or industry shall be
CONTRACTED owned by them in common in
BEFORE LATTER proportion to their respective
contributions.
IS JUDICIALLY
DECLARED VOID
- Although void, - Property regime shall  However in case of Carino v. Carino, SC ruled
property shall be be governed b rule on
that subsequent marriage celebrated in violation
liquidated as if co-ownership
there is conjugal provided for by article of Art 40 is void because it is bigamous and
partnership of 147 and 148 therefore property regime in said subsequent
gains or absolute void marriage is co-ownership
community of  THIS CARINO RULING IS INACCURATE!
property  Legal rationale in Valdez ruling must still be
 TAKE NOTE: ART Chapter 7. Property Regime of
followed considering that it is a clear application
147 & 148 Unions Without Marriage
summarized that’s of what Art 50 provides
not the whole Art. 147. Man and a woman  Supreme Court en banc resolution in A.M No. 02-
provisons who are capacitated to marry 11-10-SC of March 15,2003 provides in Sec 21
each other, live exclusively with
each other as husband and
thereof
wife without the benefit of “After entry of judgment as a consequence of
marriage or under a void finality of a nullity or annulment decree,
marriage, their wages and
salaries shall be owned by presumptive legtme of common children shall be
them in equal shares and the delivered pursuant to Art 50 and 51 of FC”
property acquired by both of
them through their work or

[66]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Indeed new rules have acknowledged that for remain.
purposes of void marriage, presumptive Children below age of 7 years are deemed to have
legitime shall be delivered in accordance with chosen the mother, unless court has decided
Art 5 which in turn expressly provides that otherwise. In case there is no majority, court shall
decide taking into consideration the best interest of
proper case of void marriage referred to is
children
only one under Art 4 which is the subsequent
void marriage resulting from failure to get a  In case of other void marriages above provision
judicial declaration of nullity of 1st void is not applicable. Rules of co-ownership will
marriage apply. Dwelling shall be co-owned equally in the
REMEMBER AGAIN THIS TABLE!!!! absence of any evidence that it is the exclusive
ART 40 ART 35 (4) & 41 property of one party in accordance with rules of
o Void not because it o Subsequent void co-ownership (HAYYZ ANG KULIT) (Valdez v.
is bigamous but bigamous marriage RTC)
because it failed to contemplates a
comply with the situation where such  For marriages declared void on grounds other
requirements under subsequent than subsequent void marriage under Art 40,50
Art 40, 52 and 53. marriage was and 51 do not apply, and marriage can be
o Thus if contracting contracted at time declared void without waiting for liquidation of
parties marry without a when the first properties.
marriage license and marriage, which is
they do not fall under  It is not necessary to liquidate properties of
valid in all respects,
exceptions for
was still subsisting. spouses in same proceeding for declaration of
obtaining valid nullity of marriage. (Dino v Dino)
marriage license their FIRST MARRIAGE IS
marrage is void on NOT VOID BUT  Rules on co-ownership under Civil Code applies
ground of absence of a COMEPLETELY VALID under Art 496 thereof, partition may be made by
formal requirement OR AT LEAST agreement between parties or by judicial
:valid ML ANNNULLABLE. proceedings.
o If one of them SUBSISTING 1ST
remarries w/o MARRIAGE WAS  In order that their interest will be amply protected,
procuring a JDN of 1st VALID. all the creditors of spouses as well as of the
marriage, the absolute community or conjugal partnership shall
subsequent marriage
is void not because it
be notified of liquidation proceeding.
is bigamous but ENTRY OF JUDGMENT AND DECREE OF
because it violates Art NULLITY OF ANNULMENT
40 in rel to 52 & 53 - Unless here is Motion for Reconsideration or an
appeal made after decision, such decision will
PRECISELY
CONTEMPLATES A become final upon expiration of 15 days from
SITUATION WHERE 1ST receipt of parties of the decision
MARRIAGE IS VOID - Upon finality, entry of judgment shall be issued.
- Subsequently Decree of Absolute Nullity of
ART 50 and 51 also apply to VOIDABLE AND Marriage or Annulment of Marriage shall be
ANNULABLE MARRIAGE under Art 45 issued.
Art. 45. A marriage may be annulled for any of the - Such decree is the best evidence of nullity or
following causes, existing at the time of the
annulment of marriage.
marriage
DOES NOT APPLY TO OTHER VOID MARRIAGES - However decree will issue only after registration
 Like Art 36 on Psychological incapacity of the entry of judgment in proper local civil
registries.
Art 102 (6) and 12 (9) identically provide that: - In case of subsequent void marriage under Art
Unless otherwise agreed upon by the parties, in 40, after registration of approved partition and
partition of properties, conjugal dwelling and lot on distribution of properties of spouses in proper
which it is situated shall be adjudicated to spoise with registry of deeds and delivery of presumptive
whom the majority of common children choose to
legitime (Dino v Dino)

[67]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
PRESUMPTIVE LEGITIME
 Part of testator’s property which he cannot
dispose of because law has reserved it for
“compulsory heirs”
 Decree of annulment or nullity of marriage shall
also provide that presumptive legime of common
children shall be delivered to the same in case,
property or sound securities unless parties, by
mutual agreement judicially approved for such
matter.
 Shall be computed as of date of final judgment in
TC.
 Judicial proceeding for approval of mutual
agreement shall be summary in nature in
accordance with Art 253.
 Law also provides that delivery of presumptive
legitime will in no way prejudice the ultimate
successional rights of children accruing upon
death of either or both of parents but value of
properties already received under decree of
annulment or absolute nullity shall be considered
as advances of their legitime.
 While common children are not parties to the
annulment case relative to voidable marriage
under 45 or nullity case based on Art 40,
considering that they are materially affected by
nullity or annulment judgment in so far as the
presumptive legitime is concerned, they are
specially granted by law legal stading to seek
enforcement of judgment
 Delivery of presumptive legitime can be done
by filing a summary court proceeding praying
for such delivery under Art 253
ANNULMENT VOID MARRIAGES
Presumptive legitime of Delivery of
common children must presumptive legitime is
be delivered to them generally not required
except only in void
subsequent marriages
(Art 40)
Hearing on FC in Senate Committee
of
Women and Family relations:
(Justice Reyes and Justice Puno)
[PURPOSE OF DELIVERY OF PRESUMPTIVE
LEGITIMES]
[68]
J; REYES:
Protect legitime of children against result of
subsequent marriage that might be contracted after
annulment or declaration of nullity.Assuming that he
has received presumptive legitime and transferee
becomes incapacitated to receive, it is a matter of
recovery of the property that has been transmitted to
him or its value since legitime anyway is a matter of
values not specific property.
J;PUNO:
Presumptive leitime is exactly what it is, a
presumption. It is not actual legitime. Actual legitime
is present at time of death. What then is the basis of
presumption? Basis of presumption is that properties
of persons involved at time of particular situation
arises would be the same as when he dies which is
not a fact. Point is, certain persons have to be
protected.
If you do not exclude the presumptive legitime, then
children of 1st marriage will be at a disadvantage
because they will have to share that party which could
have belonged to them to one of he children in 2nd
marriage.
THIS WILL HELP YOU TO REMEMBER
ART 50
 Requires delivery of presumptive legitime
ART 51
 How in the delivery of presumptive legitime shall
be valued
ART 52
 Requires recording of delivery of presumptive
legitime in proper registry of property
PETITION FOR CANCELLATION OF ENTRIES
- Petition for correction of entries under Rule 108
of ROC filed by alleged wife for purposes of
cancelling the certificate of marriage was the
proper remedy not the Petition for Declaration of
Nullity of Marriage under FC considering that
there was no actual marriage to speak of where
petitioner participated as bride.
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
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
appropriate civil registry and
registries of property; otherwise,
the same shall not affect third
persons.
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.
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.
LIQIDATION AND PARTITION OF
PROPERTIES
 In case of nullity of marriage, properties shall be
liquidated in accordance with ordinary rules of
co-ownership.
 Absolute community of property and conjugal
partnership of gains will not apply in a void
marriage except I one exceptional case which is
subsequent void marriage under Art 40.
 In voidable marriage, properties shall be
liquidated in accordance with rules provided for
under chapters in absolute community of
property and conjugal partnership of gains.
 If there is pre-nuptial agreement, there is no need
for liquidation and partition.
 Partial voluntary separation of property agreed
upon by parties via a compromise duly approved
by court in judicial declaration of nullity of
marriage is valid.
SUMMARY LIQUIDATION/SEP OF PROP
[AP2N]
1.) Absolute Community of Property/Conjugal
[69]
property of gains
2.) Pre-nuptial agreement
3.) Partial voluntary separation of property approved
by court
4.) Nullity (co-ownership)
RECORDING IN CIVIL REGISTRY AND
REGISTRY OF PROPERTY
- Recording in civil registry and in registry of
property of judgment of annulment or of absolute
nullity of marriage and partition and distribution
as well as delivery of presumptive legitimes of
common children in an annulled marriage based
on Art 45 or nullified subsequent marriage based
on Art 40 are necessary to bind 3rd persons
- Necessary also for subsequent parties to
contract subsequent marriage.
- It must be noted however that except in
subsequent void marriage that may arise due to
non-observance of Art 40, there is no need for
delivery of presumptive legitime after marriage is
judicially declared void.
- Non-compliance with liquidation and partition
requirements as well as delivery of presumptive
legitime shall be a cause for non-issuance of
decree of nullity or annulment.
- Observance or non-observance of requirements
of liquidation, partition, distribution and the
delivery of presumptive legitimes is crucially
material in determining whether subsequent
marriage is void only if previous marriage has
been judicially nullified or annulled in
accordance with law.
- If 1st marriage were terminated by death of
one of spouses and surviving spouse
remarried, complying with all essential and
formal requirements of Art 2 and 3 of FC,
subsequent marriage is valid even if there
has been no previous liquidation, partition
and distribution of properties of 1st marriage
as well as no delivery of presumptive
legitimes or actual legitime of children (FUCK
ITO YUNG RECIT)
- Failure to liquidate will only be determinative of
the property regime that will govern subsequent
marriage.
- Edi pag awuz magliquidate, automatically yung
next marriage, separation of property ang prop
regime.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
APPROPRIATE CIVIL REGISTRY AND
REGISTRIES OF PROPERTY
 LCR of City or Municipality where the court that
issued the decision is functioning and also the
LCR of city or municipality where marriage was
solemnized.
 Upon finality of judgment, entry of judgment and
decree of nullity or annulment shall be issued
which shall be registered in local civil registries
where marriage was recorded and where Court
granting the petition is located.
 Duty of successful petitioner to send the copy of
final decree of court to proper LCR.
 It shall be the duty of clerk of court which issued
decree to ascertain whether same has been
registered and if it has not been done, send a
copy of said decree to civil registry of city or
municipality where court is functioning.
DRAW TABLE HERE OFHOW YOU UNDERSTOOD PROCESS
 Registries of property in Art 52 = Registries of
properties where properties are located
 If yamanin, and there are many properties
located in various places, registration must be
made in each of registries of properties where
each property is located.
STATUS OF CHILDREN
Generally :
- Children conceived and born outside of valid
marriage or inside void marriage are
illegitimate
- Children conceived or born inside an
annullable or voidable marriage are legitimate
while those conceived and born inside void
marriage are illegitimate except as provided
for by Art 54 of FC
Art. 54.
[70]
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.
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
- Hence, if marriage is null and void because one
of the parties is psychologically incapacitated to
perform essential marital obligations or because
parties to subsequent marriage have not
complied with mandatory recording and
distribution requirements under Art 52 in relation
to Art 53, children conceived or born inside a void
marriage under Art 36 and before finality of
judgment of nullity in psychhologica incapacity
case, or conceived or born inside a vid marriage
under Art 36 and before finality of judgment in
psychological incapacity case, or those
conceived or born in marriage which does not
comply with Art 52 in relation to 53 shall be
considered legitimate.
- Judicial decree of nullity becomes final after
lapse of 15 days from the receivpt of parties of
said decree UNLESS in meantime, decree has
been appealed to higher court.
- It must be understood that children referred to
under Art 54 referring to 36 do not involve those
conceived and born after marriage ceremony of
parents but before final judgment of nullity. Thus
child conceived and born before marriage
ceremony is illegitimate.
- If child were conceived at time when parents do
not suffer any legal impediment to marry each
other, subsequent marriage of such parents will
legitimate child pursuant to Art 178 of FC.
- If subsequent marriage is declared void because
of Art 36, child shall be an illegitimate child.
- Art 54 will not apply because child was born or
conceived inside void marriage but was
conceived when there was no marriage
ceremony yet.
- Art 53, if either former spouse does not comply
with requirement under Art 52, and he/she
remarries, subsequent marriage is void but
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
children conceived or born inside void marriage
are legitimate.

TITLE II. ---- LEGAL SEPARATION

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;
(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;

[71]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
(6) Lesbianism or homosexuality of - May or may not exist at time of marriage
the respondent; ceremony
- This is in furtherance of policy of state o foster
(7) Contracting by the respondent unity in and to preserve marital relation as the
of a subsequent bigamous marriage, same is essential to public welfare.
whether in the Philippines or AS A GENERAL RULE:
abroad; - They usually occur after celebration of marriage

(8) Sexual infidelity or

REPEATED PHYSICAL VIOLENCE OR GROSS
perversion; ABUSIVE CONDUCT
(9) Attempt by the respondent  Frequency of physical violence inflicted upon
against the life of the petitioner; petitioner, a common child or child of petitioner
or warrants a decree of legal separation.
 Law does not give a cause of action to petitioner
(10) Abandonment of petitioner by
to file a case for legal separation on the ground
respondent without justifiable that respondent spouse repeatedly inflicts upon
cause for more than one year. his/her own child with another person. (ay so
For purposes of this Article, the bawal ka mangiaalam kung wiz mo naman
junakiz yung sinasaktan)
term "child" shall include a child
 HOWEVER, such repeated physical violence
by nature or by adoption. may be cause to suspend or terminate,
depending on severity of violence, the parental
LEGAL SPEARATION authority of respondent upon his/her own minor
- “Relative Divorce” child with another person pursuant to Art 231 (1)
- Does not affect marital status , there being no of FC.
severance of vinculum.  Frequency of act and not severity of the same
- It does not dissolve marriage. is determinative factor under this ground.
- Involves nothing more but a bed and board (For example, sinapak ka ng extra super hard ni
separation of spouses.(a mesa et thoro) hubby yung kamay mo coz you are so malandi once <
- Decree is terminable at the will of the parties by Palagi kang sinasampal 15 times a day coz you are so
merely filing a manifestation in court, marriage mama-g)
continuing in regard to everything not necessarily  However it must be inflicted with bad faith and
withdrawn from its operation. malice
- FC does not admit absolute divorce except 2nd  Even if act is not repeated or does not involve
paragraph of Art 26. physical violence, such act may nevertheless
(Miller v Miller) constitute grossly abusve conduct on part of
DIVORCE ANNULMENT respondent which may warrant issuance of legal
- Dissltion of bond of - Proceeding is separation decree.
matrimony based on maintained upon  “Grossly abusive conduct” has no exact definition
theory of valid theory that, for some
and therefore determined on a case to case
marriage causes existing at
- Casuses arising time or marriage basis
after marriage ceremony, marriage  Continued manifestation by one spouse of
is terminable indifference or aversion to the other coupled
with persistent neglect of duties incident to
EXCLUSIVITY OF GROUNDS FOR LEGAL marital relation has been declared by American
SEPARATION jurisprudence as cruelty enough to warrant
- No other grounds can be invoked by any party decree of divorce.
other than those stated by law.  If however, such indifference or neglect are
manifestations of psychological incapacity to

[72]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
perform essential marital obligations ------- same
may be ground for nullity under Art 36 (IF) such
behavior exists at tie of marriage ceremony and
is grave and is incurable.
 Also where it appears that spouse has
deliberately adopted, as course of conduct,
use of offensive language, with intent and
fixed purpose of causing happiness = legal
cruelty or abusive treatment.
COMPULSION BY PHYSICAL VIOLENCE OR
MORAL PRESSURE TO CHANGE RELIGIOUS OR
POLITICAL AFFILIATION
J;PUNO
- Physical violence or grossly abusive conduct
directed against petitioner and common child of
petitioner”
- “physical violence” is for any purpose. So no
matter how insignificant the purpose is, as long
as there is repeated physical violence, there will
be a ground for legal separation.
- We equate it with religious conviction, so that
with one attempt, one incident of physical
violence or moral pressure to compel the change
of religious affiliation or political affiliation, it can
be a ground of legal separation
- We feel that there should be unity within family,
we think that the couple should learn to live with
each other’s political ideas. Main context is
RECONCILIATION.
- This is not divorce, that is not a cutting of marital
ties, it is just a separation from bed and board but
they remain married.
- There may still be reconciliation that would
enable them to restore their family life.
CORRUPTION AND INDUCEMENT
ENGAGE IN PROSTITUTION
 If one of spouses induces petitioner, a common
child, or child of petitioner to engage in
prostitution
 Or if such spouse connives in such corruption
and inducement
 VALID LEGAL SEPARATION DECREE MAY
ISSUE TO PREVENT GUILTY SPOUSE FROM
EXERCISIG SUCH MORALLY DEPRAVED
ACTS DETRIMENTAL TO GROWTH OF
CHILDREN AND FAMILY AS A WHOLE.
 Children here may or may not be emancipated.
 The immoral and corrupt act referred to is
prostitution only.
 Inducement likewise refers to prostitutiononly and
not any other corrupt or immoral act.
EX: Spouse induces common child to engage
into robbery to earn money for studies.
 Mere attempt = ENOUGH to be ground for legal
separation.
 Ground, however does not include subjects of
such an attempt, child of respondent or guilty
spouse with another person.
[basta remember, hindi ground of legal sep pag
di mo naman junakiz yung kiddo, it may just be a
ground for suspension or termination, depending
on severity, the parental authority of guilty
spouse]
[pag successful beshy, nako PERMANENT
TERMINATION OF PARENTAL AUTHORITY]
FINAL JUDGMENT INVOLVING MORE
THAN SIX YEARS OF IMPRISONMENT
- Offense could have been commtted against
anybody. (hindi necessary na crime was against
spouse, common children, or petitioner’s
children)
- Ground can be invoked even if convicted has
been validly pardoned.
- KEYWORD “final judgment” kasi diba
presumption innocent unless proven guilty
beyond reasonable doubt.
DRUG ADDICTION, HABITUAL ALCOHOLISM,
LESBIANISM AND HOMOSEXUALITY
- Extent and nature of such as ground for legal
separation are the same as those in annulment
cases.
- HOWEVER in annulment cases, they are
TO instances of fraud which must exist at time of
celebration of marriage.
- In legal separation, such grounds can exist even
after marriage ceremony.
- It must be noted however that law should ot have
lumped lesbianism and homosexuality with drug
addiction and habitual alcoholism as they are
different in nature
- Lesbianism and Homosexualism
 NOT affliction
 Sexual orientation
 Do not by themselves affect mental state of
person/judgment
[73]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
- Drug addiction and habitual alcoholism deal with  but if one condones such
mental state that is detrimental to one’s social sexual infidelity and perversion
and personal being as well as to society as he is estopped = consent
a whole.
ATTEMPT ON LIFE
- MUST proceed from evil design and not from any
justifiable cause like self-defense or from fact that
BIGAMY
spouse caught other in flagrante delicto having
 Act of illegally contracting 2nd marriage desite full
carnal knowledge with another man and woman.
knowledge that the 1st marriage is still validly
- No previous criminal conviction required for legal
existing or without obtaining needed judicial
separation case to prosper
declaration of presumptive death of 1st spouse
- Criminal attempt can be proven by
who is absent for 4 or 2 consecutive years
preponderance of evidence in civil case for legal
pursuant to Art 41.
separation.
 Whether illegal subsequent marriage has been
solemnized in PH or abroad is immaterial..
 HOWEVER if bigamous marriage were
UNJUSTIFIED ABANDONMENT
 Abandonment or desertion must be WILLFUL.
committed abroad, guilty party cannot be
 Act is willful when there is design to forsake other
criminally prosecuted for bigamy in PH as our
spouse intentionally or without cause and
penal laws are territorial in nature
therefore break the marital union.
 Deliberate intent to cease living with other
SEXUAL INFIDELITY OR PERVERSION spouse,
- Husband and wife obliged to observe mutual
 Abnegation of all duties of marriage and relation
love, respect, and fidelity.
not to return.
 Conubinage & Adultery
 Abandonment must be without justifiable
 Acts committed which would constitute
cause.
a clear betrayal of trust f his/her
 Physical separation alone is not the full meaning
spouse b having intimate love affairs
of term “abandonment” if, despite voluntary
with other persons.
departure from society of spouse, neither
 Even if husband’s single act of sexual
neglects management of conjugal partnership
intercourse with another woman may
nor ceases to give support to his wife/husband.
warrant issuance of legal separation.
 There must be absolute cessation of marital
 Sexual perversion: w/other persons
relations, duties and rights with intention of
and even with spouse [oral sex, anal
perpetual separation.
sex, bestiality]
 Abandonment implies total renunciation of duties.
 (Pranther v. Pranther)
 Abandonment must be for more than 1 year.
Wife and her relatives saw husband on
different occasions engaging in carnal
CASES
intercourse with cow, and when
- Defendant never ceased to give support to wife
confronted about situation by wife,
and children negatives any intent on his part not
husband merely evaded issue and
to return to conjugal abode and resume his
even resorted to vile language,
marital duties and rights.
necessitating wife to separate from
- Where husband after leaving his wife,contined to
husband, American court ruled that for
make small contributions at intervals to her
wife to continue living with spouse
suppor and that of their minor child, was not
impair wife’s health and imperil her life,
guilty of “abandonment” (People v. Schelske)
divorce is justified.
- Act of separation and continued intent to remain
separate must be wrongful in a sense that there

[74]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
is no reasonable excuse for one who separated.
(Willamson v. Willamson)
- Separation in which both parties willingly concur
is not any sense in the world a willful desertion of
one by the other (Smythe v. Smythe)
- It will not be granted however, as against spouse
who became insane after initial act of desertion
or abandonment, but before the statutory period
had expired, general rule being that, in
computing such period, time during which
offending spouse has been insane cannot be
said to have or maintain such nan intention. (4
ALR 1333)
- Where husband used reasonable remonstrance
and has endeavored without avail to persuade
his wife not to leave him, should not be construed
to imply consent to separation. (Nunn v. Nunn)
- Spouse is deemed to have abandoned other
when he/she left conjugal dwelling for period of 3
months and has failed within same period to give
any info as to his/her whereabouts shall be prima
facie presumed to have no intention of returning
to conjugal dwelling.
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;
[75]
(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.
Art. 57. An action for legal
separation shall be filed within
five years from the time of the
occurrence of the cause
CONDONATION
- Act of forgiving offense after its commission.
- Implies a condition of future good behavior of
offending spouse, subsequent offense on his/her
part revokes or nullifies condonation and revives
original offense. (Brown v. Brown)
- KEYWORD: AFTER; FORGIVE
- Failure of husband to look actively for his
adulterous wife after she left conjugal home does
not constitute condonation or consent of wife’s
adulterous acts. It must be remembered that she
“left” him (Ocampo v Florenciano)
- Act of giving money to erring wife and fact that no
action was taken against her before courts of
justice ar sufficient to establish forgiveness
amounting to condonation.(Almacen v. Balazar)
- Condonation is the forgiveness of one of married
parties of an offense which he knows the other
has committed against the other and at any rate,
pardon or condonation does not require sexual
intercourse and may be express or implied
(Almacen v. Baltazar)
{So pag di nagsex, naforgive na? vice versa,
anyway just found it weird na nagging basis
sexual intercourse}
CONSENT
- When either spouses agreed to or did no object
despite full knowledge, to act giving rise to ground of
legal separation, before such act was in fact
committed.
- KEYWORD: BEFORE;MAGPAALAM
- Consent may be deduced from acts of spouses.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
CONNIVANCE - Proof that defendant desires the divorce and makes
- Connivance or procurement, denotes direction, no offense, is not by itself collusion. (Pohlman v
influence, personal exertion or other action with Pohlman)
knowledge and belief that such action with
CONNIVANCE COLLUSION
knowledge and belief that such action would
Corrupt consenting Corrupt Agreement
produce certain results are produced. (Cohen, influence, personal exertion Agreement between
Divorce and Alimony in North Carolina) or other action with husband and wife looking to
- Basis of defense of connivance is the maxim knowledge and belief that procuring divorce
such action with knowledge
“volenti non fit injuria” or that one is not legally
and belief that such action
injured if he has consented to act complained of would produce certain
or was willing that it should occur” results are produced
- KEYWORDS: WILLING THAT IT SHOULD
OCCUR;
PRESCRIPTION
- Must be filed within five years from the occurrence of
RECRIMINATION OR EQUAL GUILT
cause.
- “He who comes into equity must come with clean
- After lapse of 5 year period, legal separation case
hands”
cannot be filed.
- They are in pari delicto - TIME OF DISCOVERY NOT MATERIAL
- Such plaintiff-spouse cannot invoke the guilt of - 5 year limit : absolute prescriptive period so that
the other if such plaintiff spouse is guilty of giving irrespective of when it was discovered, it is in the
grounds for legal separation. occcuerence that will govern and therefore t will
- KEYWORDS: Yung nagsumbong may fault din always be 5 years. Since law wants to preserve
- Husband who subjects his wife to physical marriage rather than destroy it. Danger is that
beathingss sought dismissal of case for legal discovery may come so many years later and
separation filed against him by wife on ground of therefore it will make stability of marriage very
precarious. Law assumes forgiveness(J; Puno)
equal guilt contending that wife abandoned him .
For abandonment to be a rgound for legal
separation, it must have been without justifiable
cause (Ong v Ong)
Ehhhhh kung hindi pa ba naman aalis yang wife
na yan at feel na feel pangbubugbog mo, edi
baka baliw na yan under Art 36 beshhy

COLLUSION
- Closely related to connivance
- Agreement between husband and wife for one of them
to commit or appear to commit or to be represented in
court as having commtted a matrimonial offense, or to
suppress evidence of valid defense for the purpose of
enabling other to obtain divorce
- Arranged to make it appear that matrimonial offense Art. 58. An action for legal
has been committed although it has not or if parties
separation shall in no case be
had connived to bring about legal separation even in
absence of grounds therefor. tried before six months shall have
- Collusion may not be inferred from mere fact that elapsed since the filing of the
guilty party confess to the offense and thus enabls the
petition.
other party to procure evidence necessary to prove it.
(Williams v. Williams) Art. 59. No legal separation may be
decreed unless the Court has taken

[76]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
steps toward the reconciliation of - Whether defendant files an answer to complaint,
the spouses and is fully satisfied, no hearing on merits shall be set by court for 6
months
despite such efforts, that - 6 months : designed to give parties enough time
reconciliation is highly to further contemplate their position with the end
improbable. view of attaining reconciliation between them
Art. 60. No decree of legal - 6 onth cooling off period MAY BE DISPENSED
WITH if ground of legal separation involves
separation shall be based upon a
violence against woman or the child.
stipulation of facts or a - Unless exempted by law, failure to observe 6
confession of judgment. month cooling off period is a ground to set aside
In any case, the Court shall order decision granting legal separation
- Any other incident such as determination of
the prosecuting attorney or fiscal
custody of children, alimony and support pendent
assigned to it to take steps to lite may be heard during 6 month. (6 m rule only
prevent collusion between the about validity or invalidity of grounds for legal
parties and to take care that the sep)
6 months
evidence is not fabricated or - Period during which court is precluded from
suppressed. acting.
- In an ordinary proceeding, no such delay is
Art. 61. After the filing of the permissible.
petition for legal separation, the - A suit for legal separation however is something
else. It involves a relationship on which law for
spouses shall be entitled to live the best reasons would attach the quality of
separately from each other. permanence.
- Grievances whether fancied or real may be
The court, in the absence of a entertained by one or both of the spouses.
- Nonetheless, it will not serve public interest much
written agreement between the
less the welfare of husband or wife to allow them
spouses, shall designate either of to go their respective ways.
- Hope that parties may settle there differences is
them or a third person to not abandoned.
administer the absolute community - The “healing balm of time” may aid the process
- Hopefully guilty parties may mend his/her ways
or conjugal partnership property. and offended party may in turn exhibit
The administrator appointed by the magnanimity. (Saosa-Ramos v. Vameta Jr)

court shall have the same powers

FOR EASIER UNDERSTANDING
and duties as those of a guardian  Plaintiff files complaint for legal separation
under the Rules of Court.  Defendant reqired to file an answer within 15
days from receipt of summons and copy of
Art. 62. During the pendency of the
petition.
action for legal separation, the IF THIS THEN THIS
provisions of Article 49 shall Respondent fails to Prosecuting attorney
answer investigates if collusion
likewise apply to the support of exists
the spouses and the custody and Prosecuting attorney Prosecuting attorney
support of the common children. finds no collusion intervenes for state and
sees to it that evidence is
PROCEDURE not fabricated
- Governed by SC Resolution En Banc A.M No. If party answers Fiscal mandated to be
00-11-01 SC present in trial to make
- Plaintiff files complaint for legal separation. sure NO collusion and
- Defendant required to file an answer fabrication of evidence

[77]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Legal separation Non-intervention of
vehemently opposed and prosecuting attorney is
heatedly contested not fatal to validity of
(CLEAR that litigation proceedings in court
was characterized by no- especially when it is was
holds barred contest and not shown that evidence
not by collusion was suppressed or
fabricated by ANY of the
parties.
You might ask, what does NO-HOLDS-BARRED mean?
 Idiom : “No limits/No restrictions”
DISCUSSION VAWC LAW (Garcia v. Drillon)
It was enacted on March 8, 2004 and became effective on
March 27 of the same year. Its full title is “The Anti-
Violence Against Women and their Children Act of 2004”.
R.A. 9262 is a special law that defines acts of violence
against women and their children, or “VAWC”; penalizes
such acts; and provides protective measures and
remedies.
Covered by this law are women who are wives or former
wives of the offender, those who have or have had a
sexual or dating relationship with the offender, or those
who have a common child with the offender. Of course, as
the title of the law suggests, it also protects the children of
these women, whether legitimate or illegitimate.
Other than the wife and ex-wife, this law also covers those
who, although not married, have had dating relationships.
This type of relationship is described in R.A. 9262 as the
protected woman and another person being “romantically
involved over time and on a continuing basis during the
course of the relationship.”
Violence is broadly defined to include physical, sexual,
psychological or economic kind. Physical violence is
covered, whether it is actual, attempted, threatened or
even just placing the woman in fear of the same. Sexual
abuse is covered, and it includes acts from rape to making
demeaning and sexually suggestive remarks.
Psychological abuse could be any act or omission that
causes or likely to cause the mental or emotional suffering
of the victim, while economic abuse refers to acts that
make or attempt to make a woman financially dependent.
All these are remedied and prevented by the issuance of
protection orders and may be issued by the court or the
Punong Barangay.
Other than difficulties in implementation, the validity of R.A.
9262 had been challenged. In a petition filed before the
Supreme Court, the question of the constitutionality of
R.A. 9262 was deliberated upon and resolved. The
validity of said law was assailed on the grounds of being
discriminatory, unjust and violative of the equal
protection clause enshrined in the Constitution. Said
petition was denied by the Supreme Court a little less than
three months ago, on June 25, 2013. In short, the
Supreme Court upheld the constitutionality of R.A. 9262.
[78]
Penned by Associate Justice Estela M. Perlas Bernabe,
the Supreme Court promulgated a decision in the case of
Garcia v. Drilon, docketed as G.R. No. 179267,
unanimously confirming the validity of R.A. 9262. In said
decision, the Supreme Court ruled that that the law does
not violate the guarantee of equal protection of laws
because it rests on substantial distinctions. Backed by the
recorded intent of the framers of the law, as well as
statistics from the Philippine National Police, the decision
recognized the historically unequal power relationship
between men and women, and that “women are the usual
and most likely victims of violence.” It likewise declared that
the enactment of R.A. 9262 “aims to address the
discrimination brought about by the biases and prejudices
against women,” and that the distinct classification being
made between women and men is germane to the purpose
of the law. The Supreme Court affirmed that R.A. 9262,
including the power to issue protection orders ex parte, or
without notice and hearing to the respondent, did not
violate the due process clause of the Constitution.
Go-Tan v. Spouses Tan, G.R. No. 168852
Subject Matter: Applicability of the doctrine of conspiracy
under the Revised Penal Code to R.A. 9262 (Anti-Violence
Against Women and Children Act of 2004)
Facts:
On April 18, 1999, Sharica Mari Go-Tan and Steven Tan
were married. Out of this union, two female children were
born, Kyra Danielle and Kristen Denise. On January 12,
2005, barely six years into the marriage, petitioner Go-Tan
filed a petition with prayer for the issuance of a Temporary
Protective Order (TPO) against Steven, in conspiracy with
respondents, were causing verbal, psychological, and
economic abuses upon her in violation of Section 5,
paragraphs (e) (2) (3) (4), (h) (5) and (i) of Republic Act No.
9262.
Issue:
Whether or not respondents-spouses, Perfecto and
Juanita, parents-in-law of Sharica, may be included in the
petition for the issuance of a protective order, in
accordance with RA 9262.
Held:
Yes, the Court ruled in favor of the petitioner. While the
provisions of RA 9262 provides that the offender be ralted
or connected to the victim by marriage, former marriage, or
a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the RPC. In
Section 47 of RA 9262, it has expressly provides for the
suppletory application of the RPC. Hence, legal principles
developed from the Penal Code may be applied in a
supplementary capacity to crimes punished under special
laws, such as RA 9262 in which the special law is silent on
a particular matter.
SUMMARY VAWC THINGS YOU HAVETO KNOW
IT INCLUDES BUT NOT LIMITED TO
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
1.) Physical violence
2.) Sexual Violence
3.) Psychological violence
4.) Economic Abuse
 Considering the extent of coverage of VAWC
law, it may be said that all grounds enumerated
under Art 55 (legal separation) except Final
judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned, Drug addiction or habitual alcoholism
of the respondent and Lesbianism or
homosexuality, could qualify as acts of violence
under VAWC.
ATTEMPTS AT RECONCILIATION
 No legal separation may be declared UNLESS
Court has taken steps toward the reconciliation of
spouses and is fully satisfied, despite such efforts
that reconciliation is highly improbable.
 Unlike case of annulment or declaration of nullity
of a marriage where objective of plaintiff in suc
cases is the complete severance of marriage
ties, a legal separation decree will not sever such
material ties but will merely separate husband
and wife from bed and board
QUANTUM OF EVIDENCE
- Proof by preponderance of evidence is required
to substantiate the ground for legal separation.
(Gandioco v. Penaranda)
- In action for legal separation material facts
alleged in complaint shall always be proved
HIERARCHY OF EVIDENCE
- PROOF BEYOND REASONABLE DOUBT
- CLEAR AND CONVINCIN EVIDENCE
- PREPONDERANCE OF EVIDENCE
- SUBSTANTIAL EVIDENCE
NO PREJIDICIAL QUESTION AND NO
SUSPENSION OF CRIMINAL CASE
 In event that civil case for legal separation is filed
on ground of sexual infidelity because husband
committed concubinage and thereafter, criminal
case is filed for concubinage against husband,
 civil action for legal separation is based on
concubiange may proceed ahead or
simultaneously with a criimina action for
concubinage
 CIVIL ACTION is not one “to enforce liability from
an offense”
[79]
 CIVIL ACTION is one intended to obtain right to
live separately, with legal consequences thereof,
such as dissolution of absolute community or
conjugal partnership of gains, custody of
offspring, support and disqualification from
inheriting from the innocent spouse.
 BASTA, magkaiba kasi sila ng cause of action so
gets?
JUDGMENT
 Judgment cannot be based on confession of
judgment or stipulation of facts.
 (Ocampo v Florenciano) explains the probative
value of confession of judgment under Art 101 of
CC now Art 60 of FC relative to legal separation.
 Husband upon discovering illicit connection,
expressed his wish to file an petition for legal
separation and defendant readily agreed to
such filing.
 When she was questioned by the fiscal upon
orders of court, she reiterated her conformity
with legal separations even as she admitted
having sexual relatins with Nelson Orzame.
 Appelate court declared that under Art 101
legal separation could not be declared.
 Article does not exclude as evidence, any
admission or confession made by defendant
outside of court. It merely prohibits decree of
separation upon confession of judgment
 Confession of judgment usually happens when
defendant appears in court and confesses
right of plaintiff to judgment or files pleading
expressly agreeing to plaintiff’s demand.
 IN THIS CASE IT DID NOT OCCUR
 Yet even supposing that statement of
defendant constituted confession of judgment,
inasmuch as there is evidence of adultery
independently of such statement, decree may
and should be granted, since it is not based on
her confession but upon evidence presented
by the plaintiff.
 What law prohibits is a judgment based
exclusively or mainly on defendant’s
confession
 Admission per se or confession per se is ok. Ang
prinoprohibit ng court is a judgment based solely
on that. Inchendes?!
MANAGEMENT OF PROPERTIES DURING SUIT
 Court in absence of written agreement between
spouses shall designate either of them or third
person to administer absolute community or
conjugal partnership property.
SAMSON T. SABALONES v. CA
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
G.R. No. 106169
CRUZ, J.:
The subject of this petition is the preliminary
injunction issued by the respondent court pending
resolution of a case on appeal. We deal only with
this matter and not the merits of the case.
As a member of our diplomatic service assigned to
different countries during his successive tours of
duties, petitioner Samson T. Sabalones left to his
wife, herein respondent Remedios Gaviola-
Sabalones, the administration of some of their
conjugal properties for fifteen years.
Sabalones retired as ambassador in 1985 and came
back to the Philippines but not to his wife and their
children. Four years later, he filed an action for
judicial authorization to sell a building and lot
located at #17 Eisenhower St., Greenhills, San Juan,
Metro Manila, belonging to the conjugal partnership.
He claimed that he was sixty-eight years old, very
sick and living alone without any income, and that he
would use his share of the proceeds of the sale to
defray the prohibitive cost of his hospitalization and
medical treatment.
In her answer, the private respondent opposed the
authorization and filed a counterclaim for legal
separation. She alleged that the house in Greenhills
was being occupied by her and their six children and
that they were depending for their support on the
rentals from another conjugal property, a building
and lot in Forbes Park which was on lease to
Nobumichi Izumi. She also informed the court that
despite her husband's retirement, he had not
returned to his legitimate family and was instead
maintaining a separate residence in Don Antonio
Heights, Fairview, Quezon City, with Thelma
Cumareng and their three children.
In her prayer, she asked the court to grant the
decree of legal separation and order the liquidation
of the conjugal properties, with forfeiture of her
husband's share therein because of his adultery. She
also prayed that it enjoin the petitioner and his
agents from a) disturbing the occupants of the
Forbes Park property and b) disposing of or
encumbering any of the conjugal properties.
After trial, Judge Mariano M. Umali, found that the
petitioner had indeed contracted a bigamous
marriage on October 5, 1981, with Thelma
Cumareng, to whom he had returned upon his
retirement in 1985 at a separate residence. The
court thus decreed the legal separation of the
spouses and the forfeiture of the petitioner's share
[80]
in the conjugal properties, declaring as well that he
was not entitled to support from his respondent
wife.[1]
This decision was appealed to the respondent court.
Pendente lite, the respondent wife filed a motion for
the issuance of a writ of preliminary injunction to
enjoin the petitioner from interfering with the
administration of their properties in Greenhills and
Forbes Park. She alleged inter alia that he had
harassed the tenant of the Forbes Park property by
informing him that his lease would not be renewed.
She also complained that the petitioner had
disposed of one of their valuable conjugal properties
in the United States in favor of his paramour, to the
prejudice of his legitimate wife and children.
The petitioner opposed this motion and filed his own
motion to prevent his wife from entering into a new
contract of lease over the Forbes Park property with
its present tenant, or with future tenants, without
his consent.
After hearing, the Court of Appeals, in an order
dated April 7, 1992, granted the preliminary
injunction prayed for by the wife.[2]
The petitioner now assails this order, arguing that
since the law provides for a joint administration of
the conjugal properties by the husband and wife, no
injunctive relief can be issued against one or the
other because no right will be violated. In support of
this contention, he cites Art. 124 of the Family Code,
reading as follows:
Art. 124. The administration and enjoyment of the
conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse
to the court by the wife for proper remedy, which
must be availed of within five years from the date of
the contract implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the administration
of the conjugal properties, the other spouse may
assume sole powers of the administration. These
powers do not include disposition or encumbrance
without authority of the court or the written consent
of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be
void. However, the transaction shall be construed as
a continuing offer on the part of the consenting
spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the
other spouse or the authorization by the court
before the offer is withdrawn by either or both
offerors.
He further notes that the respondent court failed to
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
appoint an administrator of the conjugal assets as
mandated by Art. 61 of the Code, thus:
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.
The Court has carefully considered the issues and
the arguments of the parties and finds that the
petition has no merit.
We agree with the respondent court that pending
the appointment of an administrator over the whole
mass of conjugal assets, the respondent court was
justified in allowing the wife to continue with her
administration. It was also correct, taking into
account the evidence adduced at the hearing, in
enjoining the petitioner from interfering with his
wife's administration pending resolution of the
appeal.
The law does indeed grant to the spouses joint
administration over the conjugal properties as
clearly provided in the above-cited Article 124 of the
Family Code. However, Article 61, also above
quoted, states that after a petition for legal
separation has been filed, the trial court shall, in the
absence of a written agreement between the couple,
appoint either one of the spouses or a third person
to act as the administrator.
While it is true that no formal designation of the
administrator has been made, such designation was
implicit in the decision of the trial court denying the
petitioner any share in the conjugal properties (and
thus also disqualifying him as administrator thereof).
That designation was in effect approved by the Court
of Appeals when it issued in favor of the respondent
wife the preliminary injunction now under challenge.
The primary purpose of the provisional remedy of
injunction is to preserve the status quo of the things
subject of the action or the relations between the
parties and thus protect the rights of the plaintiff
respecting these matters during the pendency of the
suit. Otherwise, the defendant may, before final
judgment, do or continue doing the act which the
plaintiff asks the court to restrain and thus make
ineffectual the final judgment that may be rendered
afterwards in favor of the plaintiff.[3]
As observed by Francisco, "Injunction is primarily a
[81]
preventive remedy. Its province is to afford relief
against future acts which are against equity and
good conscience and to keep and preserve the thing
in the status quo, rather than to remedy what is past
or to punish for wrongful acts already committed. It
may issue to prevent future wrongs although no
right has yet been violated."[4]
The Court notes that the wife has been
administering the subject properties for almost
nineteen years now, apparently without complaint
on the part of the petitioner. He has not alleged,
much less shown, that her administration has caused
prejudice to the conjugal partnership. What he
merely suggests is that the lease of the Forbes Park
property could be renewed on better terms, or he
should at least be given his share of the rentals.
In her motion for the issuance of a preliminary
injunction, the respondent wife alleged that the
petitioner's harassment of their tenant at Forbes
Park would jeopardize the lease and deprive her and
her children of the income therefrom on which they
depend for their subsistence. She also testified the
numerous other conjugal properties, real and
personal, in the sole custody of the husband,[*]
including various dollar accounts, two houses in
Quezon City and Cebu City, and a Mercedes Benz.
The private respondent also complained that on
June 10, 1991, the petitioner executed a quitclaim
over their conjugal property in Apple Valley, San
Bernardino, California, U.S.A., in favor of Thelma
Curameng, to improve his paramour's luxurious
lifestyle to the prejudice of his legitimate family.
These allegations, none of which was refuted by the
husband, show that the injunction is necessary to
protect the interests of the private respondent and
her children and prevent the dissipation of the
conjugal assets.
The twin requirements of a valid injunction are the
existence of a right and its actual or threatened
violation.[5] Regardless of the outcome of the
appeal, it cannot be denied that as the petitioner's
legitimate wife (and the complainant and injured
spouse in the action for legal separation), the private
respondent has a right to a share (if not the whole)
of the conjugal estate. There is also, in our view,
enough evidence to raise the apprehension that
entrusting said estate to the petitioner may result in
its improvident disposition to the detriment of his
wife and children. We agree that inasmuch as the
trial court had earlier declared the forfeiture of the
petitioner's share in the conjugal properties, it would
be prudent not to allow him in the meantime to
participate in its management.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Let it be stressed that the injunction has not
permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets.
It has merely allowed her to continue administering
the properties in the meantime without interference
from the petitioner, pending the express designation
of the administrator in accordance with Article 61 of
the Family Code.

WHEREFORE, the petition is DENIED for lack of merit.

It is so ordered.

Art. 63. The decree of legal

DEATH TERMINATES LEGAL SEPARATION CASE
Does death of plaintiff become final decree in action
for legal separation?
If it does, will abatement also apply if action involves
property rights?
 Action for legal separation which involves nothing
more than bed-and-board separation of spouses
(there being no absolute divorce in this
jurisdiction) is purely personal.
 Being personal in character, it follows that death
of one party to action cayses death of action itself
“actio personalis mortr cum persona”
 In absence of statute to the contrary, death of
one to such action abates action, for the reason
that death has settled the question of separation
beyond all controversy and deprived court of
jurisdiction both over persons of parties to the
action and of the subject matter of action itself.
 ( like beshie, higit pa nga to sa bed-and board
separation, coz life and death na to, malayong
malayo na yung gusto mo layuan, hindi na legal
separation eh, separation by death, perpetually
wala na yang asawa mo)
 Right to dissolution of conjugal partnership of
gains or absolute community of property, loss of
right by offending spouse to share of profits
earned by partnership or community, or his
disqualification to inherit intestacy from innocent
spouses as well as revocation of testamentary
provisions in favor of offending spouse made by
innocent one, are all rights and disabilities that by
terms of CC are vested exclusively in person of
spouses and byyy their nature and itent such
claim and disabilities are difficult to conceive as
assignable or transmissible. Hence claim of said
rights is not thereby extinguished, there may be
substitute to party in such proceedings such as
the heirs of innocent spouse who died.
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.

[82]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
EFFECTS OF DECREE OF LEGAL
SEPARATION
- When decree itself is issued, finality of separation
is COMPLETE after lapse of period to appeal
decision to higher court even if the effects, such
as liquidation of property have not yet
commenced nor terminated
- Law explicitly and clearly provides for the
dissolution and liquidation of conjugal partnership
as among the effects of final decree of legal
separation. (Macadangdang v CA)
- Legal effect of decree of legal separation is ipso
facto or automatically follows as an inevitable
incident of judgment decreeing legal separation
for purpose of determining share of each spouse
in conjugal asset (Macadangdang v. CA)
- Generally speaking purpose of decree of diviorce
insofar as disposition of property is concerned is
to fix and make certain the property rights and
interest of parties (Mich-Westgate v. Westgate)
- Notwithstanding division of property between
parties, subject matter of divorce remains the
marital status of parties, the settlement of
property rights is merely incidental (Wash-State)
MARRIAGE BOND MAINTAINED
- Spouses shall be entitled to live separately from
each other but marriage bond shall be severed.
- Even if they live apart, spouse can still be
prosecuted for bigamy, concubinage and adultery
because they are still married to each other
LIQUIDATION OF PROPERTY
- ACP or CPG shall be liquidated.
- However offending spouse shall have no right to
any share of net profits earned by ACP or CPG
which shall be forfeited in favor of
1.) Common children
2.) (If no CC) Children of guilty spouse by
previous marriage
3.) In default, children of innocent spouse
CUSTODY OF MINOR CHILDREN
- Innocent spouse shall be awarded custody of
minor chidren
- However in all matters relating to custody of
child, paramount interest shall be the standard.
- Hence court may even award custody of child to
3rd person
[83]
- According to Art 213 of FC “court shall take into
account,all relevant considerations, especially
choice of child over 7 years of age unless parent
chosen is unfit. No child under 7 years of age
shall be separated from mother, unless court
finds compelling reasons to order otherwise.
INTESTATE AND TESTATE DISQUALIFICATION
- Offending spouse shall be disqualified from
inheriting from innocent spouse
- Moreover provisions in favor of offending spouse
made in will of innocent spouse shall be revoked
by operation off law
- Law does not provide that such revocation by
operation of law will be rendered ineffectual in
case legal separation decree is set aside by court
upon manifestation of parties that they have
reconciled.
- Under Art 921, CC which has not been repealed
by FC, person can disinherit spouse in a will if
atter has given cause for legal separation even if
he/she has not been found guilty of commiting
such cause.
- However under Art 922 of CC, such
disinheritance in a will will be rendered ineffectual
upon mutual reconciliation of spouses.
Art. 64. After the finality of the
decree of legal separation, the
innocent spouse may revoke the
donations made by him or by her in
favor of the offending spouse, as
well as the designation of the
latter as beneficiary in any
insurance policy, even if such
designation be stipulated as
irrevocable. The revocation of the
donations shall be recorded in the
registries of property in the
places where the properties are
located. Alienations, liens and
encumbrances registered in good
faith before the recording of the
complaint for revocation in the
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
registries of property shall be  While there is nothing wrong in making
revocation effective upon notification to insured,
respected. The revocation of or it is very impractical and prejudicial to the
change in the designation of the insurer.
 It may happen that after revocation of insurance
insurance beneficiary shall take by notification to insured, insurer who has no
effect upon written notification knowledge of revocation might by its mistake r
by its ignorance of revocation or by fraudulent
thereof to the insured. act of insured pay proceeds to former
beneficiary.
The action to revoke the donation
 Correct procedure as deliberated should have
under this Article must be brought been notification to insurer and not insured.
 Be it as it may, since law states “notification tto
within five years from the time the
insured” and not the insurer, law must be applied
decree of legal separation become as written up to such time the same is effectively
amended.
final.

DONATIONS AND BENEFICIARY INSURANCE Art. 65. If the spouses should

- Donations and act of innocent party in
reconcile, a corresponding joint
designating guilty spouse as beneficiary in an
insurance are essentially acts of liberality manifestation under oath duly
- law gives option to innocent party whether he/she signed by them shall be filed with
will revoke donation or designation of beneficiary. the court in the same proceeding
- Insofar as designation of guilty spouse in for legal separation.
insurance is concerned, even if such designation
is irrevocable, will be considered revoked upon
written notification thereif to insured. Art. 66. The reconciliation
- In case of donations, if innocent spouse decides referred to in the preceding
to revoke donation, he/she must file an action for Articles shall have the following
revocation within 5 years from time of decree of
consequences:
legal separation has become final.
(1) The legal separation
- However if donation is void, such as in violaton of
Art 87 (every donation between spouses during proceedings, if still pending,
marriage except moderate gifts) right to bring an shall thereby be terminated at
action for nullity of such donation does not whatever stage; and
prescribe.
(2) The final decree of legal
Deliberations of CC and FL committees
 Revocation of donation shall be recorded in separation shall be set aside, but
place where properties are located. Alienations
the separation of property and any
and mortgages made before notation of
complaint for revocation in Registries of Property forfeiture of the share of the
shall be valid.
 From the deliberation of the code, revocation of
guilty spouse already effected
or change of designation of insurance shall subsist, unless the spouses
beneficiary shall take effect upon written
notification thereof to insurer and not to the agree to revive their former
insured as provided for by the law itself. property regime.
 There is a discrepancy therefore between final
version of provision as deliberated and one The court's order containing the
signed by Pres into law. Former states foregoing shall be recorded in the
notification to insurer and latter states notification
to insued. proper civil registries.
 Notification to insurer is indeed more practical
because it is the insurer who will be liable for
insurance.

[84]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Art. 67. The agreement to revive - Order containing termination of case or setting
the former property regime referred aside decree as case may be shall be recorded
in proper civil registries.
to in the preceding Article shall - HOWEVER with respect to separation of
be executed under oath and shall properties, which in meen time, had been made,
specify: it shall subsist.
(1) The properties to be - However, parties can enter into agreement which
should be approved by court, reviving their
contributed anew to the restored
previous property regime.
regime; - Agreement shall contain list of which properties
(2) Those to be retained as shall remain separate and which properties shall
separated properties of each be contributed to revived property regime.
- Creditors must be furnished the motion seeking
spouse; and
approval of agreement.
(3) The names of all their known - Recording of order in registries of property shall
creditors, their addresses and the not prejudice any creditor not listed or not notified
amounts owing to each. UNLESS debtor-spouse has sufficient separate
properties to satisfy creditor’s ciam.
The agreement of revival and the
motion for its approval shall be REVIVAL AND ADOPTION
filed with the court in the same  Reconciling spouses can revive their original
proceeding for legal separation, property regime.
with copies of both furnished to  New rules promulgated by SC for legal
separation cases, Supreme Court En Banc
the creditors named therein. After
Resolution A.M No. 02-11-12 effective on March
due hearing, the court shall, in 15,2003 allow in Sec 23 (e) and 24 thereof not
its order, take measure to protect only revival in previous property regime but also
the interest of creditors and such provide a new rule allowing “adoption of another
property regime of property relations different
order shall be recorded in the
from that which they had prior to filing of petition
proper registries of properties. for legal separation.
The recording of the ordering in  This is a new rule which is not contained in Art 66
the registries of property shall and 67 of FC.
not prejudice any creditor not  QUESTIONS thus arise if new rules goes beyond
substantive law which clearly refer only to
listed or not notified, unless the
REVIVAL of previous property regime.
debtor-spouse has sufficient The following diverging analyses may be considered:
separate properties to satisfy the 1. It is restrictive and therefore no other
property regime can be judicially applied for.
creditor's claim
New rule allowing adoption is an undue
extension of substantive law and therefore
EFFECT OF RECONCILIATION no legal basis. In cases of conflict,
- Should spouses decide to reconcile and indeed substantive law or FC should prevail.
reconcile, they can file joint manifestation of 2. Although Art 66 (2) refers to revival only, it
reconciliation in court does not expressly provide that a different
property regime could not be applied for.
- If legal separation case is still pending, it shall be
These provision should therefore be
terminated. construed to allow what they did not
- If decree has been issued already, whether with disallow. However considering that marriage
finality or not, it shall be set aside. bond is still intact and has never been cut,
this new rule cannot include allowing change

[85]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
from ACP to CPG vice versa considering
that Art 33 and Art 107 provide that they
substantive rule. New rule can only be
change to different property regime other
than ACP or CPG.
3. Provided there is court approval, parties can
request for any other different regime.

INHERTANCE
 If innocent spouse had disinherited the guilty
spouse, subsequent reconciliation renders
ineffectual any disinheritance that may have
been made.
 However there is nothing in FC which provides
for revival of revoked provisions of will originally
made in favor of offending spouse.
 Innocent spouse has option of again reinstituting
provisions in a will, revoked by operation of law
by issuance of decree of legal separation.
 (power to decide) : innocent spouse.
RECORDING OF THE ORDER OF REVIVAL
- If order of revival has not at all been recorded to
proper civil registry, creditors will not be
prejudiced whether they are listed in the order or
they have been notified.
- It is the recording of order, the listing or non-
listing of creditors in said recorded order and the
notification of creditors which will have effect on
creditors claim as provided for by Art 67.
- Recording of order of revival in proper registry of
property shall prejudice those creditors listed in
order or those notified of motion of revival and of
the order
- However creditors who are not listed or who have
not been notified shall nevertheless be
prejudiced by recording of order if debtor spouse
has sufficient separate property to satisfy
creditor’s claim
- Court can set aside, certain separate properties
of each spouse for purposes of paying off or
protecting inters of each of spouses respective
creditors.
- If no properties were set aside for listed creditors
who are notified but who did not file their claims
to protect their interests, they shall be prejudiced
by recording of order in registry of property.

[86]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
iii. Husband grossly insults her
iv. Husband maltreats her
v. If she was virtually driven out of
their home by her husband and she
is threatened with violence is she
should return
vi. Husband continually gambles
refuses to support familu and
insults wife.
vii. Husband lives as vagabond having
no fixed home
viii. Husband insist living together with
his own parents (Del Rosario v. Del
Rosario)
c. Wife refuses to unjustifiably to live with
husband, court will admonish but not order
her ruturn and even if an order is made,
TITLE III contempt proceeding against wife will not
RIGHTS AND OBLIGATIONS prosper. The only remedy here is for
husband is to refuse grant support (Mariano
BETWEEN Arroyo v Dolores C. de Arroyo)
HUSBAND AND WIFE DUTY TO OBSERVE MUTUAL LOVE,
RESPECT AND FIDELITY
1.) Instead of obedience, law now requires
mutual respect
Art. 68. The husband and wife are obliged to
2.) Infidelity may be a ground for legal
live together, observe mutual love, respect separation or disinheritance or for
unworthiness in matters of succession or
and fidelity, and render mutual help and
criminal liability.
support DUTY TO RENDER MUTUAL HELP AND
SUPPORT
1.) Marriage is a 50-50 proposition; therefore
DUTIES AND OBLIGATIONS there must be mutual help and support
PERSONAL OBLIGATIONS OF HUSBAND AND
2.) Mutual help includes the right to defend life
WIFE
and honor of other spouse
1. Live together
3.) Support includes medical attendance for sick
2. Observe mutual love, respect and fidelity
spouse, even if doctor was already called by
3. Render mutual help and support
another person
DUTY TO LIVE TOGETHER
4.) Mutual help also includes moral assistance.
a. Duty and right to live together (cohabitation
OTHER CONSEQUENCES OF MARRIAGE
and consortium)
1.) Emancipates a person from parental
b. Wife may establish separate residence or
authority as to person. As to property
domicile in following cases
incomplete emancipation.
i. Husband continually indulges in
2.) A husband and wife can chastise or
illicit relationship with others
reprimand each other, but may not inflict
(Dadivas v. Villanueva)
force,except when either catches the other in
ii. Husband is immoderate or barbaric
act of sexual intercourse with a stranger (Art
in his demands of sexual
247)
intercourse (Goitia v. Campos-
3.) The Marriage privilege rule
Rueda)

[87]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
4.) The Marital communication rule
5.) Wife should use husband’s surname
OBLIGATIONS EXPLANATIONS
 Husband and wife  Virtue in making it as
are obliged to live difficult as possible for
together, observe married couples ---
mutual respect and impelled by no better
cause than their whims
infidelity and
and caprices to abandon
render mutual help each others company.
and support  Necessity is a powerful
master in teaching the
duties which it imposes.
 Procreation is also  Universal principle that
an essential marital procreation of children is
obligation the basic end of marriage
loss or injury to another in a
manner that is contrary to morals,
good customs or public policy
shall compensate the latter for the
damage
Examples:
 Desertion and securing of an invalid divorce
decree of one consort entitles other to revocer
damages and attorney’s fees. (Tenchavez vs.
Escano)
 Deprives spouse of the consortium or services of
other spouse can be helf liable for damages.
HOWEVER, must be fully proven.
LILIUS vs MANILA RAIL ROAD COMPANY

NO COMPULSION
- Except for support.
- Court cannot validly issue decision compelling
spouse to live together observe mutual love,
respect and fidelity. (ONLY MORAL
OBLIGATIONS + HIGHLY PERSONAL)
- Wife’s domestic assistance and conjugal
companionship are purely personal and voluntary
acts which either spouses may be compelled to
render (Arroyo v. Arroyo)
DAMAGES FOR FAILURE TO COMPLY WITH
OBLIGATIONS
 No action for damages because of breach of
marital obligations. (Ty. CA)
 Cases filed by husband for filing baseless
complaint causing her mental anguish, anxiety,
beshmirched reputation and social humiliation
and alienation from her parents. SC denied
petition of husband but also denied claim of wife.
There are other remedies..
 OTHER REMEDIES:
HUMAN RELATIONS
ART 19 Every person must, in the exercise
of his rights and in the
performance of his duties, act with
justice, give everyone his due, and
observe honesty and good faith
ART 20 Every person who, contrary to law,
wilfully or negligently causes
damage to another, shall
indemnify the latter for the same
ART 21 Any person who wilfully causes
FACTS
Lilius was driving with his wife and daughter for
sightseeing in Pagsanjan Laguna. It was his first time
in the area and he was entirely unacquainted with the
conditions of the road and had no knowledge of the
existence of a railroad crossing. Before reaching the
crossing in question, there was nothing to indicate its
existence and, it was impossible to see an
approaching train. At about seven or eight meters
from the crossing the plaintiff saw an autotruck
parked on the left side of the road. Several people,
who seemed to have alighted from the said truck,
were walking on the opposite side. He slowed down
and sounded his horn for the people to get out of the
way. With his attention thus occupied, he did not see
the crossing but he heard two short whistles.
Immediately afterwards, he saw a huge black mass
fling itself upon him, which turned out to be
locomotive No. 713 of the MRC’s train. The
locomotive struck the plaintiff’s car right in the center.
The 3 victims were injured and were hospitalized.
ISSUE: WON the sums of money fixed by the court a
quo as indemnities for damages proper
Lilius also seeks to recover the sum of P2,500 for the
loss of what is called Anglo-Saxon common law
“consortium” of his wife, that is, “her services, society
and conjugal companionship”, as a result of personal
injuries which she had received from the accident
now under consideration.
Under the law and the doctrine of this court, one of
the husband’s rights is to count on his wife’s
assistance. This assistance comprises the
management of the home and the performance of

[88]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
household duties. However, nowadays when women,  RAPE = Violence against women and children.
in their desire to be more useful to society and to the
nation, are demanding greater civil rights and are
aspiring to become man’s equal in all the activities of
PRIOR TO PRESENT TIME
life, marriage has ceased to create the presumption
AMENDMENT OF RPC “matrimonial exemption
that a woman complies with the duties to her husband
“there can be no rape of has not been regarded
and children, which the law imposes upon her, and he
wife” as universal and absolute
who seeks to collect indemnity for damages resulting
rule”
from deprivation of her domestic services must prove
such services. In the case under consideration, apart
1.) Upon marriage  Essetially, rape
woman no statutes have always
from the services of his wife as translator and
longer retained aimed to protect
secretary, the value of which has not been proven,
separate legal safety and personal
Lilius has not presented any evidence showing the
existence. liberty of woman.
existence of domestic services and their nature,
rendered by her prior to the accident, in order that it 2.) Upon marriage  Implied consent
may serve as a basis in estimating their value. wife consents to rationale offensive to
sexual valued ideas of
Furthermore, inasmuch as a wife’s domestic intercourse with personal liberty, is
assistance and conjugal companionship are purely husband not sound where the
personal and voluntary acts which neither of the marriage itself is not
spouses may be compelled to render, it is necessary irrevocable.
for the party claiming indemnity for the loss of such
services to prove that the person obliged to render
them had done so before he was injured and that he Art. 69. The husband and wife shall fix the
would be willing to continue rendering them had he
not been prevented from so doing family domicile. In case of disagreement, the
court shall decide.
CAN HUSBAND COMMIT RAPE AGAINST WIFE?
 Yes
ART 266-A RC The court may exempt one spouse from
 Committed by man who shall have carnal living with the other if the latter should live
knowledge of a woman through force, threat
or intimidation abroad or there are other valid and
 Offended party is deprived of reason or compelling reasons for the exemption.
otherwise unconscious by means of
fraudulent machinations or grave abuse of However, such exemption shall not apply if
authority the same is not compatible with the
 Woman is under twelve years of age or is
solidarity of the family.
demented, even though none of
circumstances above are present
 Any person who shall commit sexual assault DOMICILE
by inserting penis into another’s mouth or - For exercise of viil rights and fulfillment of civil
anal orifice, or any instrument or object into obligations, domicile of natural persons is the
his genital or anal orifice of another person. place of their habitual residence (art 50 CC)
PH - Spouses can only have 1 domicile but many
 However, legal husband (offender) subsequent residences
forgiveness by wife shall extinguish criminal - Minor follows he domicile of his/her parents.
action or the penalty.
HOWEVER
 Provided that crime shall not be extinguished and
penalty shall not be abated if marriage is void ab - New provision of FC recognizes revolutionary
initio changes in concept of women’s rights in
intervening years by making the choice of

[89]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
domicile a product of mutual agreement between
spouses (Romualdez Marcos v. COMELEC)
- However in case of disagreement between
husband and wife, court shall decide
- JUDICIAL PROCEEDING : Summary in nature in
accordance with Art 253 FC.
- Spouses can validly live away or separately from
each other : compelling reason for exemption
- However such exemption shall not apply if same
is not compatible with solidarity of family.
Art. 70. The spouses are jointly responsible
for the support of the family. The expenses
for such support and other conjugal
obligations shall be paid from the
community property and, in the absence
thereof, from the income or fruits of their
separate properties. In case of insufficiency
or absence of said income or fruits, such
obligations shall be satisfied from the
separate properties.
Art. 71. The management of the household
shall be the right and the duty of both
spouses. The expenses for such
management shall be paid in accordance
with the provisions of Article 70.
Art. 72. When one of the spouses neglects
his or her duties to the conjugal union or
commits acts which tend to bring danger,
dishonor or injury to the other or to the
family, the aggrieved party may apply to the
court for relief
EXPENSES FOR SUPPORT AND HOUSEHOLD
MANAGEMENT
[90]
- SUPPORT VERY IMPORTANT.
Art 70 Spouses jointly liable to support fam
Art 68 Husband and wife obliged to support
each other
Art 94 and Absolute community of property and
Art 121 conjugal partnership of gains
respectively shall be liable for support
of spouses, common children and
legitimate children of either spouse
Art 49 In an annulment or nullity f marriage
case, court shall provide for custdy and
support of children
Art 198 During proceedings for legal
separation and for annulemenyy. And
for declaration of nullity of marriage,
spouses and children shall be
sipported from absolute community or
conjugal partnership.
Art 220 Parents and those exercising parental
authority shall have with respect to
unemancipated children or wards the
duty to support them.
Art 70 and In absence of community property,
71 expenses for support and other
conjugal obligations, shall be taken
from income or fruits of their separate
properties
In case of insufficiency: Satisfied by
separate properties. Spouses shall be
solidarily liable for unpaid balance with
their separate properties.
Art 146 When regime of separate properties,
liability of spouses to creditors for
family expenses shall however be
solidary
MANAGEMENT AND RELIEF
- Management of household right and duty of both
spouses regardless of property regime.
- In event that one neglects duties or commits acts
which tend to bring danger, dishonor and injury to
he other or the family, party may apply to court
for relief.
 Filing of case of legal separation
 Nullifying marriage based on Art 36
 Petitioning court for receivership,
judicial separation of property or
authority to be sole administrator of
community property /conjugal
partnership
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Art. 73. Either spouse may exercise any
legitimate profession, occupation, business
or activity without the consent of the other.
The latter may object only on valid, serious,
and moral grounds.
In case of disagreement, the court shall
decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior
to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting
obligation shall be enforced against the
separate property of the spouse who has
not obtained consent.
The foregoing provisions shall not prejudice
the rights of creditors who acted in good
faith.
LEGITIMATE PROFESSION
- Husband and Wife can engage in any lawful
entrerprise or proefession.
- Law does not make it a requirement that spouse
has to get prior consent of the other before
entering any legitimate profession, occupation,
business or activity.
- If husband compels wife to desist from pursuing
profession or any other conduct, purpose or
effect of controlling or restricting her movemen or
conduct considered acts of violence aganst
woman under R. A 9262.
- Exercise by spouse of legitimate profession,
occupation or activity always considered to
redound to benefit of family.
- BUT isolated transaction of spouse is not per se
considered as redounding to benefit of family and
therefore to hold the absolute community or
conjugal partnership property liable for any loss
resulting from isolated activity, PROOFS
SHOWING DIRECT BENEFIT OF FAMILY
MUST BE PRESENTED..
[91]
- It was only wife who entered into video contract
wth aggriveved parties, husband cannot be held
solidarily liable with wife for damages resulting
from breach because under law any of spouses
may exercise any legitimate activity without
consent of other souse. Also pursuant to sch
principle that contract produce effect only as
between parties who execute them.However if
wife is really engaged in business of video filming
it shall be considered as redounding to benefit of
fam and any loss shall be shouldered by absolute
community of property or conjugal partnership of
gains. (Go vs CA)
- In case of disagreement of spouses, objection
must be anchored only on valid, serious and
moral grounds. Courts shall decide if objection is
proper. Judicial proceedings summary in nature.
SEPARATE PROPERTY LIABILITY
 In case of disagreement court shall decide
whether or ot the benefit has accrued to the
family prior to objection or thereafter,
GENERAL RULE
Debts and obligations of whatever
nature and regardless of time they shall be
were incurred whether before or after chargeable
marriage ceremony BUT redounding against
to the benefit of family CPG or
An obligation incurred as a result of ACP
spouse’s exercise of his/her legitimate
profession or occupation or
undertaking of legitimate business
is an obligation redounding to benefit of
family
Art 73 (par 2)
Benefit accrued prior to objection
EXCEPTION
Art 73 (par 2) Shall be
Benefit accrued thereafter, imposed
against
separate
property of
spouse
who did
not obtain
consent
CONDITIONS FOR EXCEPTION:
 Innocent spouse must have no knowledge of
other spouse’s engagement in immoral activity
prior to objection. (DISAGREEMENT)
 If she knew, it will not bar acquiescing spouse
from interposing an authentic objection later
because considering that profession is immoral,
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
other spouse is to be given the widest latitude to
stop erring spouse from undertaking
unwholesome profession
 Making separate property of erring spouse liable
is a way of penalizing for engaged in seriously
invalid and immoral profession or occupation.
SITUATIONS:
 IF WITHOUT KNOWLEDGE OF HUSBAND and
to be able to buy plane ticket to go to Japan and
work as a prostitute, wife borrowed money from
friend who knew of wife’s plan, and thereafter
wife worked as prostitute giving her first income
to husband who used money to buy food for
family but without knowing that it was income
from immoral profession
= ACP/CPG (debt)
 AFTER OBJECTION any obligation incurred by
erring wife
= SEPARATE PROPERTY
 IF CREDITOR IN GOOD WILL, shall not bee
prejudiced and can collect from ACP/CPG by
 demanding from husband.
TITLE IV
PROPERTY RELATIONS
BETWEEN
HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between
husband and wife shall be governed in the
following order:
(1) By marriage settlements executed before
the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
Art. 75. The future spouses may, in the
marriage settlements, agree upon the
[92]
regime of absolute community, conjugal
partnership of gains, complete separation of
property, or any other regime. In the
absence of a marriage settlement, or when
the regime agreed upon is void, the system
of absolute community of property as
established in this Code shall govern.
Art. 76. In order that any modification in the
marriage settlements may be valid, it must
be made before the celebration of the
marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136.
Art. 77. The marriage settlements and any
modification thereof shall be in writing,
signed by the parties and executed before
the celebration of the marriage. They shall
not prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of properties.
PROPETY RELATIONS AND ANTE-NUPTIAL
AGREEMENTS
- By contract of marriage, man and woman enter a
joint life acting, living and working as one.
- “oneness”
- Art 1490 : husband and wife cannot sell property
to each other, except when separation of
property was agreed upon or when there has
been a judicial declaration of property.
- Also, there is no right of accretion in cases of
donation made tto several persons is not
applicable to donation jointly made by husband
and wife. Between husband and wife there shall
be right of accretion unless donor has otherwise
provided.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
- Law recognizes that property relations of  Parties may likewise design their own property
husband and wife shall primarily be governed regime “Mixed-Up Property regime”
by their marriage settlement. PREJUDICE TO THIRD PARTIES
MUST BE IN - To bind 3rd persons, marriage settlement or any
 Writing modification thereof must be registered in local
 Signed by parties civil registrar where marriage contract is recorded
 Made prior to celebration of marriage and in proper registries of property.
SITUATION:
Marriage settlement of spouses A & B
QC, San Juan and ABSOLUTE
STATUTE OF FRAUDS FAMILY CODE Caloocan Property + B’s COMMUNITY
Agreement in Requirement that ante- Caloocan Properties
consideration must be in nuptial agreement is in - Prior to marriage B borrowed from Y and used it
writing otherwise It is wriing IS MANDATORY ,
for his own benefit
unenforceable not only for purpose of
enforceability but FOR - CAN WHY EXECUTE ON PROPERTY CO-
VALIDITY. OWNED BY A & B
IF REGISTERED
 Y will be prejudiced.. Y cannot execute property
Contracting parties can stipulate on any arrangement
in Calloocan city because even if Caloocan City
in their marriage settlement that is not contrary to law,
property were exclusively owned by B at time
public policy and is within limits provided by family
loan was corntracted, such property during
code.
marriage became part of ACP which is liable only
- Cannot stipulate that they can make substantial
for community debts.
donation during marriage. (VOID UNDER Art 87)
IF NOT REGISTERED
- Marriages terminated by death, if surviving
 Y can execute on Caloocan City property
spouse decides to remarry, cannot execute
because he will not be prejudiced by marage
marriage settlement providing for regime otter
settlement.
than complete separation of property because
 Caloocan City Property can still be treated by Y
(Art 103 and 130)
as exclusively owned by B.
- Cannot stipulate that conjugal partnership of
 In having ACP pay for debt, ACP entitled to be
gains or absolute community of property will start
repaid by debtor spouse.
at time other than the precise moment of
 BUT IF redounded to benefit of family : ACP
celebration of marriage
liable.
- This should not be confused with Art 94(9) where
 By ante-nuptial settlement or agreement,, parties
only upon showing of insufficiency of debtor
may define their property rights in property
spouses properties, the creditor can seek
existing or after acquire and they may vary
payment of such spouse’s exclusive debts from
substantially property rights that would otherwise
the community property and payment of which
arise on their marriage by operation of law,
shall be considered advances to be deducted
superseding, in a sense statutes on that subject.
from share of debtor-spouse upon liquidation of
 They cannot however vary the marital personal
community property.
rights and duties that arise on marriage by
- Art 94(9) refers to situation which may or may not
operation of law.
involve prejudice to creditor regarding ante—
 Neither can such settlement or agreement divest
nuptial as result of registration of marriage.
parties children of legal rights.
IF THERE IS NO MARRIAGE SETTLEMENT
 IF THERE IS NO MARRIAGE SETTLEMENT
 Nothing to register.
AGREED UPON OR IF SAME IS VOID, THEN
 MAY HAVE DIFFERENT EFFECTS ON THIRD
ABSOLUTE COMMUNITY PROPERTY WILL
PARTY.
PREVAIL.
 This transformation from exclusive ownership to
co-ownership has an effect on creditor’s rights

[93]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
because by such marriage, A has impaired a
collateral.
 If mortgage were registered in the proper registry
of property, creditor will be protected.
 However effect on : Right to payment of period of
loan
 Therefore creditor can demand payment
immediately considering that A lost right to pay
on future date.
 To maintain period in spouse A’s favor. A has to
give new securities equally satisfactory or under
circumstances he could get consent of wife to
security or collateral already established.
 In event he fails to provide/get consent. Creditor
must file action to collect amount of
indebtedness.
 If despite judgment, creditor cannot satisfy
indebtness, because A as o more exclusive
property, creditor ca still obtain payment pursuant
to Art 94(9) from ACP. Such payment shall be
considered as advances to debtor spouse’s claim
to be deducted upon liquidation.
 If redounding to the benefit of fam : ACP/CPG
 Purchaser in good faith : reliance to Transfer
Certificate of Title “single” and through
continuous misrepresentation--- transaction cant
e annulled.
FAIRNESS IN MARRIAGE SETTLEMENT
- Relationship between parties to an ante-nuptal
agreement is one of trust and confidence.
- Parties must exercise high degree of good faith
and candor in all matters bearing upon contract.
WHAT MUST BE CONSIDERED?
1.) Relative situation of parties
2.) Ages
3.) Health
4.) Experience
5.) Properties
6.) Family ties and connection
7.) Needs and such factors as tend to show
agreement is understandingly made
- Basic criterion is the element of fairness which
should be measured as of time of the execution
of agreement
- Spouse must have signed freely, voluntarily,
intelligently and preferably upon competent and
independent advice.
- IF NOT FAIR AND REASONABLE
[94]
: effectivity can still be maintained if it can be
shown that disadvantaged spouse, when she
signed and had some understanding of her rights
to be waived or prejudiced or in manner affected
by agreement.
- Burden of proof is on spouse
- BUT if, on its face the contract is unreasonable a
presumption of concealment arises, the burden
shifts and its incumbent upon the other party to
prove validity.
EXCEPTION
 Last paragraph of Art 103 and 130 of FC provide
for exception to the general rule that the ante-
nuptial agreement must be in writing and that, in
absence of ante-nuptial agreement or if same is
void, absolute community property will prevail.
 These two articles provide that, in the event that
a marriage is terminated by the death of spouse
and surviving spouse marries again without
initiating any judicial or extra-judicial settlement
of properties within 1 year from death of
deceased spouse, mandatory regime of complete
separation of property shall govern property
relations of subsequent marriage.
MODIFICATIONS
 General rule : To be valid, it must be made
before celebration of marriage, in writing and
signed by the parties.
 By way of exception, modification can be made
after marriage ceremony but such post-marriage
modification shall need judicial approval and
should only refer to instances provided in Art
66,67, 128, 135 and 136.
 OTHERWISE, modification is not valid.
 Thus revival of former property regime between
reconciling spouse after judicial decree of legal
separation has been rendered between husband
and wife can be made only via court order
recorded in proper civil registries.
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
Art. 67. The agreement to revive the former property
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
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.
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligation to the
family, the aggrieved spouse may petition the court
for receivership, for judicial separation of property, or
for authority to be the sole administrator of the
conjugal partnership property, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the
preceding paragraph refer to marital, parental or
property relations.
A spouse is deemed to have abandoned the other
when he or she has left the conjugal dwelling without
intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has
failed within the same period to give any information
as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the
conjugal dwelling.
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been
judicially declared an absentee;
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned
the latter or failed to comply with his or her obligations
to the family as provided for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements has
abused that power; and
(6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3),
the presentation of the final judgment against the
guilty or absent spouse shall be enough basis for the
[95]
grant of the decree of judicial separation of property.
Art. 136. The spouses may jointly file a verified
petition with the court for the voluntary dissolution of
the absolute community or the conjugal partnership of
gains, and for the separation of their common
properties.
All creditors of the absolute community or of the
conjugal partnership of gains, as well as the personal
creditors of the spouse, shall be listed in the petition
and notified of the filing thereof. The court shall take
measures to protect the creditors and other persons
with pecuniary interest
LOCAL CUSTOM
 Rule of conduct formed by repetition of acts
uniformly observed as social rule, legally binding
and obligatory.
 Law requires that custom must be proved as a
fact according to rules of evidence.
 Parties stipulate in their marriage settlement that
local custom shall apply or that absolute
community of property shall not govern their
property but fail to stipulate what property regime
shall be applied.
 In first case: no particular property regime
 In second case: local custom was expressly
provided.
 Thus only local custom can be made to apply.
 Being void, the absolute community of property
shall prevail.
Art. 78. A minor who according to law may
contract marriage may also execute his or
her marriage settlements, but they shall be
valid only if the persons designated in Article
14 to give consent to the marriage are made
parties to the agreement, subject to the
provisions of Title IX of this Code.
Art. 79. For the validity of any marriage
settlement executed by a person upon
whom a sentence of civil interdiction has
been pronounced or who is subject to any
other disability, it shall be indispensable for
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
the guardian appointed by a competent
court to be made a party thereto.
CONSENT BY THOSE DESIGNATED BY LAW
 At present, any person below the 18 is a minor.
 Corollarily, a marriage contracted by person
below 18 years of age, is according to Art 35 (1),
void ab initio.
 Thus phrase” a minor who according to law may
contract marriage” under Art 78, has been
implied repealed considering that no minor now
may contract a valid marriage.
 At present, 18 year-old person, deciding to marry
validly execute a marriage settlement without
obtaining the consent of persons designated in
Art 14 of FC.
 Upon emancipation, an 18-year old becomes
qualified and responsible for all acts of civil life,
save the exceptions established by existing aws
in special cases.
 Art 79 makes it mandatory that in case of person
upon whom a sentence of civil interdiction has
been pronounced or who is to any other
disability, it shall be indispensible for guardian,
appointed by court to be made a party to the
written marriage settlement.
 Civil interdiction shall deprive the offender during
the time of his sentence of the rights of parental
authority or guardianship, either as to the person
or property of any ward, of marital authority, of
right manage his property, and of the right to
dispose of such property by any act or any
conveyance intervivos.
Art. 80. In the absence of a contrary
stipulation in a marriage settlement, the
property relations of the spouses shall be
governed by Philippine laws, regardless of
the place of the celebration of the marriage
and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
[96]
(2) With respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines and executed in the country
where the property is located; and
(3) With respect to the extrinsic validity of
contracts entered into in the Philippines but
affecting property situated in a foreign
country whose laws require different
formalities for its extrinsic validity.
RULES GOVERNING PROPERTY RELATIONS
 Property relations of spouse can be governed by
the will of parties provided that their agreement
will not be contrary to law or public policy and
that it should be within limits provided by FC.
 If the contracting parties are Filipinos, their
property relations will be governed by PH laws, in
the absence of any agreement to the contrary.
 This rule applies even if they are married abroad
or even if they reside abroad.
 However, under Art 16: real property as well as
personal property shall always be subject to the
law of country where it is situated.
 If contract were executed here, laws of country
where the property is located may govern the
extrinsic validity of contract.
 Rule set forth in first par of Art 80 is not
applicable where both spouses are aliens
married in the Philippines.
Art. 81. Everything stipulated in the
settlements or contracts referred to in the
preceding articles in consideration of a
future marriage, including donations
between the prospective spouses made
therein, shall be rendered void if the
marriage does not take place. However,
stipulations that do not depend upon the
celebration of the marriages shall be valid.
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES

EFFICACY OF MARRIAGE SETTLEMENT

 Consideration of marriage settlement is marriage
itself. If the marriage does not take place,
marriage settlement is generally rendered void.
 Indeed, marriage is said to be perhaps the most
valuable and highly respected consideration of
law.
 Marriage however is distinguishable from other
valuable cosiderations in that it is not capable of
being reduced to value that can be reduced in Chapter 2.
dollars and cents and also in that after marriage,
the status cannot be changed by seeing it aside Donations by Reason of Marriage
or by rescinding or canceling it and hence the
parties cannot be placed in status quo whih
necessarily results in peculiar application of rules Art. 82. Donations by reason of marriage are
of specific performance.
those which are made before its celebration,
 Provision in a marriage, however are separable
in that if there are provisions which are invalid but in consideration of the same, and in favor of
do not affect the rest of provisions situated in
one or both of the future spouses.
marriage settlement, only iinvalid provisions will
be rendered ineffectual.
 Also situations that do not depend upon the
Art. 83. These donations are governed by
celebration of marriage shall be valid.
 Provision to support the common child of the rules on ordinary donations established
contracting parties for a particular amount is
in Title III of Book III of the Civil Code, insofar
clearly independent of fact of marriage.
 VALID regardless of WON marriage has been as they are not modified by the following
celebrated because a parent is obliged to support
articles.
child whether legitimate or illegitimate.

Art. 84. If the future spouses agree upon a

regime other than the absolute community
of property, they cannot donate to each
other in their marriage settlements more
than one-fifth of their present property. Any
excess shall be considered void.
Donations of future property shall be
governed by the provisions on testamentary
succession and the formalities of wills.

DONATIONS PROPTER NUPTIAS

 Donation by reason of marriage.

[97]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Donation propeter nuptias are without onerous (Art 749 CC)  Valid donation of immovable,
consideration, the marriage being merely the it must be made in public
occasion or motive for the donation, and not its document, specifying therein
“causa” the property donated and the
value of the charges which
 Being liberalities, they remain subject to the
the donee must satisfy.
reduction for unofficiousness upon the donor’s  Acceptance may be made in
death, if they should infringe the legitime of a same deed of donation or in
forced heir. (Mateo v. Lagua) separate public document,
 It is indispensible, that such donation must be but it shall not take effect
made prior to celebration of marriage (Garcia v. unless it is done during
Sangil) lifetime of donor.
 Donations excluded are :  If acceptance is made in
separate instrument, donor
1.) Made in favor of spouses after celebration of shall be notified thereof in an
marriage authentic form and this step
2.) Executed in favor of future spouses but not shall be noted in both
in consideration of marriage instruments
3.) Granted to persons other than spouses even  Donation propter nuptias of future property shall
though they may be founded on the be governed by the provisions of testamentary
marriage succession and in the formalities of will.
 Donation propter nuptias can even be contained  Document containing donation of future property
in marriage settlement.  Handwritten/Holographic or;
 For donation of present property to be valid rules  Notarial
governing ordinary donations under Title 3 of NOTARIAL WILL
Book 3 of Civil Code must be observed.
 Subscribed at end therof by donor himself or
donor’s name written by some other person
(Art 745 CC)  Donee must accept donation in is presence
personally/through an  By EXPRESS direction, and attested,
authorized person with subscribed by 3 or more credible witnesses
special power for that in presence of donor and of one another.
purpose/general or sufficient
 Donor or person requested by him to write
power. Otherwise void
his name and the instrumental witnesses of
(Art 746 CC)  Acceptance must be made
deed of donation shall also sign EACH AND
during lifetime of donor and
donee EVERY PAGE THEREOF except last on the
left margin and all pages shall be numbered
(Art 748 CC)  Donation of movable may be correlatively in letters placed on upper part
made orally or in writing
of page.
 Oral donation requires
simultaneous delivery of thing  Every will must be acknowledged before
or document representing notary public.
right donated. - If attestation clause is in language not known to
 If value of propert exceeds witnesses, it shall be interpreted to them.
Php 5,000.00, donation and
acceptance must be made in DONATION BETWEEN FUTURE SPOUSES
writing otherwise void. - Useless if property regime that will govern is
absolute community of property. (spouses
become co-owners of whatever each of them
owns before the marriage and whatever each of
them acquires after marriage)
- Only exceptions in absolute community of
property regime are those matters enumerated in

[98]
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
Art 92 of FC and those stipulated in marriage
settlement.
IF ONE OF THE WOULD-BE SPOUSES WANTS TO
VALIDLY MAKE A DONATION PROPTER
NUPTIAS, THE FOLLOWING REQUISITES MUST
CONCUR
1. Valid marriage settlement
2. Marriage settlement must stipulate a
property regime other than absolute
community of property
3. Donation contained in marriage settlement
must not be more than 1/5 of his/her present
property
4. Accepted by would-be spouse
5. Comply with requisites established in Title 3
of Book 3 of Civil Code on Donations.
(Art 745 CC)  Donee must accept donation
personally/through an authorized person
with special power for that
purpose/general or sufficient power.
Otherwise void
(Art 746 CC)  Acceptance must be made during
lifetime of donor and donee
(Art 748 CC)  Donation of movable may be made
orally or in writing
 Oral donation requires simultaneous
delivery of thing or document
representing right donated.
 If value of propert exceeds Php
5,000.00, donation and acceptance must
be made in writing otherwise void.
(Art 749 CC)  Valid donation of immovable, it must be
made in public document, specifying
therein the property donated and the
value of the charges which the donee
must satisfy.
 Acceptance may be made in same deed
of donation or in separate public
document, but it shall not take effect
unless it is done during lifetime of donor.
 If acceptance is made in separate
instrument, donor shall be notified
thereof in an authentic form and this step
shall be noted in both instruments
IF THE DONATION PROPTER NUPTIAS IS NOT IN
MARRIAGE SETTLEMENT AS SAME WAS NEVER
EXECUTED BY PARTIES
 Making a donation to other spouse is also
useless because in the absence of marriage
settlement, absolute community of property will
govern the property relationship of marriage.
“NOT MORE THAN 1/5 LIMITATION NOT
APPLICABLE IF DONATION NOT CONTAINED IN
MARRIAGE SETTLEMENT”
[99]
 If there is a marriage settlement --- other than
absolute community of property
 And there is also donation propter nuptias not
included in marriage settlement but contained in
separate deed,
 NOT MORE THAN 1/5 SLIMITATION WILL NOT
APPLY
 General rues o donation contained in Title 3
Book 3 of CC shall govern providing that:
Donation may comprehend all the present
property of the donor and part therof, provided he
reserves, in full ownership or in usurfruct,
sufficient means for the support of himself, and
all relatives who, at time of acceptance of
donation, are by law entitled to be supported by
the donor. Without such reservation, donation
shall be reduced on petition of any person
affected.(Art 750 CC)
 HOWEVER
: above provision is subject to provision in CC
that “no person may give or receive by way of
donation, more than he may give or receive by
will”
 Such donation will be inofficious in all that it may
exceed limitations (Art 752 CC)
 It may be argued that giving donation propter
nuptias beyond “not more than 1/5” limitation
contained in separate deed of donations violates
the “reason” or “spirit of the law” in preventing
one spouse from unduly exerting influence on the
other specially FC provided that during marriage,
husband and wife cannot, directly or indirectly
make substantial donations to each other (Art 87)
 Art 84 contemplates situation where parties are
not yet married. Indeed it must be pointed out the
prior to marriage, danger of any contracting party
unduly exerting his influence on the other or
taking undue advantage of the feelings of alleged
“weaker” party is remote than if they are already
married.
 Thus law clearly provides that limitation applies in
case the donation is made in their marriage
settlements”
 Marriage settlement is usually negotiated and
definitely agreed upon by parties. Exerting undue
influence by one spouse is clearly a possibility
during discussions about marriage settlement. In
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
process of negotiation, it is ideal and proper that
giving of donation propter nuptias should not be
discussed to prevent same from becoming a
bargaining point.
 Donation is an act of pure liberality on part of the
donor. It is not negotiated. Neither is a donation a
“settlement” in itself. Though a donation may be
contained in marriage settlement, it cannot be
considered as part of property system.
 Reason why Art 81 had to expressly provide for
pharase “including donations between
prospective spouses made therein.” In reffering
to invalidity of everything stipulated in marriage
settlement in event the marriage ceremony does
not take place.
 Indeed while a donation propter nuptias must be
accepted by donee, he/she must not have any
part in donor’s decision of giving such donation.
 “not more than 1/5 limitation” not applicable in
donation propter nuptias is made separate deed
of donation because subtle hazards and undue
influence attendant in negotiation are generally
absent in a donation which is done
UNILATERALLY IN SEPARATE DEED, free from
interference of even donee-spouse.
 However, considering that all transactions must
be presumed to have been done in good faith,
done-spouse could not be presumed to have
acted in bad faith unless contrary is convincingly
shown.
 “Not more than 1/5 limitation” appears to be a
good compromise provision to allow donor o
make generous act in marriage settlement but at
the same time, prevent done from unduly
capitalizing on this act of generosity on part of
donor-spouse.
Art. 85. Donations by reason of marriage of
property subject to encumbrances shall be
valid. In case of foreclosure of the
encumbrance and the property is sold for
[100]
less than the total amount of the obligation
secured, the donee shall not be liable for the
deficiency. If the property is sold for more
than the total amount of said obligation, the
donee shall be entitled to the excess
DONATION WITH ENCUMBRANCE
- Donation is an act of liberality.
- If object of donation subject to encumbrance,
donation is still valid.
- However donee’s rights are subject to the
encumbrance.
- Hence if the object of donation has been
foreclosed to answer for the unpaid debt, done
shall not be liable for any deficiency in event that
amount obtained as result of foreclosure is less
than amount of debt of the donor which was
supposed to be satisfied by the foreclosure.
- Donee could not be held liable for deficiency as
he is not a debtor with respect to principal
obligation.
- However if property is sold and resulting money
obtained is more than amount of liability, of
donor, excess shall properly go to done.
BECAUSE being owner of property done is
entitled to whatever value of property whoch can
be obtained.
- Considering that donation is a conveyance of
pure liberality of donor, done cannot even seek
reimbursement from donor for the amount which
was taken by creditor as result of the foreclosure
sale.
Art. 86. A donation by reason of marriage
may be revoked by the donor in the
following cases:
(1) If the marriage is not celebrated or
judicially declared void ab initio except
donations made in the marriage settlements,
which shall be governed by Article 81;
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
(2) When the marriage takes place without
the consent of the parents or guardian, as
required by law;
(3) When the marriage is annulled, and the
donee acted in bad faith;
(4) Upon legal separation, the donee being
the guilty spouse;
(5) If it is with a resolutory condition and the
condition is complied with;
(6) When the donee has committed an act
of ingratitude as specified by the provisions
of the Civil Code on donations in general.
MARRIAGE NOT CELEBRATED
 Marriage being the very reason for donation,
must be celebrated.
 If not celebrated, donor has OPTION to revoke or
maintain donation.
 IF HOWEVER, donation propter nuptias is
contained in a marriage settlement executed
prior to marriage and marriage ceremony does
not atke place, such donation shal be considered
void pursuant to Art 81.
 FC and Title 3 Book 3 does not provide for
prescriptive period for exercise of donor of right
to revoke or recover donation given.
 Art 1149 : “All actions whose periods are not
fixed in this code or In other laws must be
brought within 5 years from time the right of
action accrues.”
 If marriage is not celebrated: right of action
accrues from moment marriage not solemnized.
 If donation is void, period within which to declare
void does not prescribe. (remember what is void
will always be void, it is not in anyway cured by
time)
 If it is clear from such marriage settlement that
donoation does not depend on celebration of
marriage (remains effective provided it complies
with all statutory requirements for valid donation
under Title 3 Book 3 of CC)
MARRIAGE JUDICIALLY DECLARED VOID
[101]
- Mere fact that marriage is provided by law as
void s not enough for donor to have right to
revoke donation.
- There must first be a judicial declaration that
marriage is void
5 SITUATIONS THAT CAN ARISE
1.) Subsequent marriage void pursuant to Art 52
and 53 because it has been contracted by
spouse of prior marriage before latter is
judicially declared void
o Revoked by operation of la if donee-spouse
contracted subsequent void marriage in
bad faith.
o If donee does not want to return donated
property, donor should file action to
recover. IF MOVABLE recovery period 8
years. IF REAL PROPERTY recovery
period is 30 years.
2.) Bad faith on part of both contracting parties
in a subsequent marriage where one of them
previously obtained judicial declaration of
presumptive death under Art 41 to be able to
remarry, Art 44 provides that such subseqnt
marriage is void and all donations by reason
of such be revoked by operation of law
3.) In all other cases where marriage has been
judicially declared void on grounds other
than Art 40 in relation to Art 52 and 53 and
under Art 44, Art 86 (1) will apply. Good faith
or bad faith irrelevant. Donor after finality of
judicial declaration of nullity shall have
option to revoke or not the donation whether
donee is in bad faith.
4.) H validly married to W and subsequently
marries C while first marriage is substing. C
may or may not revoke donation after finality
of judicial declaration of nullity
5.) If both contracting parties are in good faith,
donor after finality of judicial declaration is
given by law option to revoke pursuant to Art
86 (1)
However upon finality of jud dec of nullity,
any donation propter nuptias given by one
party to the other may or may not be
revoked by donor as both of them were in
good faith in contracting marriage.
NO CONSENT OF PARTENTS OR
GUARDIAN
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
 Art 14, Art 45 and par of Art 256 of FC
2nd
requires that contracting parties 18 y/o and
above but below 21 y/o to obtain consent of
parents, guardians or persons having substitute
parental authority before getting married.
 If consent not obtained, marriage becomes
annullable and donation propter nuptias may be
revoked by donor .
 Donor has 5 years from time he had knowledge
that needed consent was not obtained by parties.
 Knowledge in this case can only come on or after
marriage.
 BECAUSE F BEFORE, donor may not yet
revoke. Parents can still give consent anytime
prior to marriage ceremony.
 If marriage does not take place, Art 86 will apply
in proper case.
ANNULLED MARRIAGE AND DONEEE ACTED IN
BAD FAITH
- Irreconcilable conflict between Art 86 (3) which
makes donation merely revocable and the
instance of donor in case of marriage is annulled
and donee is proven to be in bad faith and Art 50
in relation to Art 43 (3) which provides that onne
of the effects of an annulment decree is that
donation propter nuptias is considered revoked
by operation of law if donee is in bad faith in
contracting marriage.
- Hence, the restrictive grounds for annulment of
marriage in Art 45 are provided by law to give
parties chance to terminate a marital relationship
due to absence of consent of partents,
guardiance or persons exercising substitute
parental authority; or due to highly defective
consent given by them to conrtacting marriage. ;
or due to the other spouse’s incurable impotency
preventing procreation or due to the other spouse
having a seriously incurable sexually
transmittable disease posing a danger to life and
limb of another or to possible offspring.
- Spouse who acted in bad faith in procuring
marriage should not be allowed to profit or gain.
- Thus it is more in keeping with spirit of law to
consider any donation propter nuptias as revoked
by operation of law in case where the marriage is
annulled and the donee acted I bad faith.
- Element of bad faith presupposes a corrupt
attitude towards institution of marriage and
should be penalized most severely .
[102]
- If Art 86 (3) is to be applicable because it came
later in the order of time, then the donor has only
5 years from finality of annulment decree to file
the action to revoke the donation as it is only
from that time that right of action accrues.
- However if one is to adhere to the view that
donation propter nuptias in this case is revoked
by operation of law, there’s no need to file an
action to revoke donation.
- Refusal of donnee to return object of donation
gives donor right to file an action to recover thing
and his right of action to flile starts from the
finality of judicial decree of annulment as it is only
from that time right of action accrues. If movable
(8 years) if real property (30 years) Possession in
this case shall be deemed to have been lost from
finality of annulment decree.
- It must be observed that there are instances
when marriage is annullable but spouses may
not be in bad faith. Hence if marriage is later on
annulled on this ground, the donation propter
nuptias remains effective and can never be
revoked either under Art 86 (3) or Art 50 in
relation to 43 ((3) of FC
LEGAL SPEARATION
- Since there is a possibility that spouses may
reconcile, donor is given option to revoke
donation or maintain it .
- If donor decides to revoke (5 years) from
issuance of decree of legal separation.
- However if ground is sexual infidelity/adultery or
concubinage = DONATION VOID
RESOLUTORY CONDITION
- Operates to extinguish right or obligation.
- Hence if father of one of spouses makes valid
donation propter nuptias of car, with provision
stating that it shall be revoked in event they leave
PH, resolutory condition is complied with once
they migrate.
- Donor shall have option to revoke such donation
or maintain it.
- If donation is validly made by one spouse in favor
of other, and resolutory codition happens, donor-
spouse can recover what is donated at any time
without prescriptive period. BECAUSE Art 1109
 Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES
provides that “prescription” does not run
between husband and wife even though there
is separation of propertyagreed upon in
marriage settlement.
ACTS OF INGRATITUDE
:The donation may also be revoked at the
instance of the donor, by reason of ingratitude in
the following cases:
1) If the donee should commit some offense
against the person, the honor or the property of
the donor, or of his wife or children under his
parental authority;
2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even though he should prove it, unless the crime
or the act has been committed against the donee
himself, his wife or children under his authority;
3) If he unduly refuses him support when the
donee is legally or morally bound to give support
to the donor. (Art. 765, CC)
 If donor desires to revoke donation--- must do so
w/in 1 year form time donor had knowledge of
fact of ingratitude and it was possible for him to
bring suit (Art 769)
 Although donation is revoked on account of
ingratitude, alienation ad mortage effected before
notatoions of complaint for revocation in registry
of property shall subsist.Later ones shall be void
(Art 766)
VOID MARRIAGE
 Donations made by persons who were guilty of
adultery or concubinage at time of donation is
void.
 Where husband transferred a property to second
wife at time of his first marriage was still
subsisting. SC ruled : transfer was in fact a
donation and therefore void under Art 739 of CC
and also under Art 87 of FC which pertinently
provides that donations between persons living
together as husband and wife without valid
marriage is void.
[103]
Art. 87. Every donation or grant of
gratuitous advantage, direct or indirect,
between the spouses during the marriage
shall be void, except moderate gifts which
the spouses may give each other on the
occasion of any family rejoicing. The
prohibition shall also apply to persons living
together as husband and wife without a
valid marriage
REASON FOR PROHIBITION
 J;PUNO: Intended benefit does not have to be
proven anymore.
 Prohibition also applies to persons living together
as husband and wife without valid marriage.
 RATIONALE: To prohibit donations in favor of the
other consort and his decendants because of
fear of undue and improper pressure or influence
upon donor, a prejudice deeply rooted in ancient
law
 So long as marriage remains the cornerstone of
our family law, reason and morality alike demand
that disabilities attached to marriage should
likewise attach to concubinage.
 For a donation given by person to alleged partner
to fall under last sentence of Art 87, it must be
shown that such donation was made at time
when they were still living together as husband
and wife without benefit of marriage.
EFFECT OF DONATION
 Every donation or grant of gratuitous advantage,
direct or indirect between spouses during
marriage shall be void except moderate gifts
which spouses may give each other on occasion
of any family rejoicing.