CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

SUGGESTED ANSWER: Vested Rights (2000)

1) No, the Motion to Dismiss should not On April 15, 1980, Rene and Angelina were
be granted. Article 236 of the Family Code as married to each other without a marriage
amended by Republic Act 6809, provides in settlement. In 1985, they acquired a parcel
the third paragraph that "nothing in this Code of land in Quezon City. On June 1, 1990,
shall be construed to derogate from the when Angelina was away in Baguio, Rene
duty or responsibility of parents and sold the said lot to Marcelo. Is the sale void
guardians for children and wards below or voidable? (2%)
twenty-one years of age mentioned in the SUGGESTED ANSWER:
second and third paragraphs of Article The sale is void. Since the sale was
2180 of the Civil Code". executed in 1990, the Family Code is the
2) The liability of Julio's parents to Jake's law applicable. Under Article 124 of the FC,
parents arises the sale of a conjugal property by a spouse
from quasi-delict (Arts. 2176 and without the consent of the other is void.
2180 Civil Code) and shall cover specifically ALTERNATIVE ANSWER:
the following: The sale is voidable. The provisions of the
a) P50,000.00 for the death of the son; Family Code may apply retroactively but only
b) such amount as would correspond to if such application will not impair vested
lost earning capacity; and rights. When Rene and Angelina got married
c) moral damages. in 1980, the law that governed their property
relations was the New Civil Code. Under the
Family Code; Retroactive Application; NCC, as interpreted by the Supreme Court in
one who seeks to adopt the legitimate
b) child of his
Filipino spouse; to a Filipino citizen and
c) or seeks to FAMILY CODE
one who is
married
adopt jointly with his spouse a relative within
the fourth
(4th) degree of consanguinity or affinity of
the Filipino Emancipation (1993)
Julio and Lea, both 18 years old, were
spouse. sweethearts. At a
party at the house of a mutual friend. Lea met
Jake, also 18
years old, who showed interest in her.
Qualifications of Adopter (2003) Lea seemed to
Lina, a former Filipina who became an entertain Jake because she danced with him
American citizen
shortly after her marriage to an American many times. In
husband, would a fit of jealousy, Julio shot Jake with his
like to adopt in the Philippines, jointly with father's 38 caliber
her husband, revolver which, before going to the party he
one of her minor brothers. Assuming that all was able to get
the required from the unlocked drawer inside his father's
consents have been obtained, could the bedroom. Jake
contemplated joint died as a result of the lone gunshot wound he
sustained. His
adoption in the Philippine prosper? Explain. parents sued Julio's parents for damages
arising from quasi-
SUGGESTED ANSWER: delict. At the time of the incident, Julio was
Yes, Lina and her American husband can 18 years old
jointly adopt a living with his parents. Julio's parents moved
minor brother of Lina because she and her to dismiss the
husband are complaint against them claiming that since
both qualified to adopt. Lina, as a former Julio was already
Filipino citizen, of majority age, they were no longer liable
can adopt her minor brother under Sec. 7(b)(i) for his acts.
of RA 8552 1) Should the motion to dismiss be
(Domestic Adoption Act of 1998), or under Art. granted? Why?
184 (3)(1) 2) What is the liability of Julio's parents to
of Family Code. alien husband can now Jake's parents?
the The adopt Explain your answer.

Page 23 of 119
Heirs of Felipe v. Aldon, 100 SCRA 628
and reiterated in Heirs of Ayuste v.
Malabonga, G.R No, 118784, 2 September
1999, the sale executed by the husband
without the consent of the wife is
voidable. The husband has already acquired
a vested right on the voidable nature of
dispositions made without the consent of the
wife. Hence, Article 124 of the Family Code
which makes the sale void does not apply.
Family Home; Dwelling House (1994)
In 1991, Victor established judicially out
of conjugal property, a family home in
Manila worth P200.000.00 and
extrajudicially a second family home in
Tagaytay worth P50.000.00. Victor leased
the family home in Manila to a foreigner.
Victor and his family transferred to another
house of his in Pasig.
Can the two family homes be the subject of
execution on a judgment against Victor's
wife for non-payment of the purchase in
1992 of household appliances?
SUGGESTED ANSWER:
The two (2) so-called family homes can be
the subject of execution. Neither of the
abodes are considered family homes because
for purposes of availing the benefits under the
Family Code, there can only be one (1)
family home which is defined as the "dwelling
house" where the husband and the wife and
their family actually "reside" and the land on
which it is situated. (Arts. 152 and 161, Family
Code)
Family; Constitutional Mandates; Divorce
(1991)
A. How does the 1987 Constitution
strengthen the family as an Institution?
B. Do the Constitutional policy on the
family and the provision that marriage is the
foundation of the family and shall be
protected by the State bar Congress from
enacting a law allowing divorce in the
Philippines?
SUGGESTED ANSWER:
A. Sec, 2, Article II of the Constitution
provides that: The State recognizes the
sanctity of family life and shall protect and
strengthen the family as a basic
autonomous social institution. It shall equally
protect the life of the mother and the life of
the unborn from conception. The natural
and primary right and duty of parents in the
rearing of the youth for civic efficiency and
the development of moral character shall
receive the support of the Government.
Section I, Article XV, further provides that:
The State recognizes the Filipino family as
the foundation of the nation. Accordingly,
it shall strengthen its solidarity and
actively promote its total development.
(Note: The Committee recommends that a
citation of either one of the provisions be
credited as a complete answer).
SUGGESTED ANSWER:
B, No, the Constitutional policy, as well as
the supporting provision, does not amount to
a prohibition to Congress to enact a law on
divorce. The Constitution only meant to help
the marriage endure, to "strengthen its
solidarity and actively promote its total
development."
ALTERNATIVE ANSWER:
B. Yes. Congress is barred from enacting
a law allowing divorce, since Section 2 of
Article XV provides: "Sec. 2. Marriage, as
an inviolable social institution, is the
foundation of the family and shall be
protected by the State." Since marriage is
"Inviolable", it cannot be dissolved by an
absolute divorce.
Marriage; Annulment; Effects;
Requisites Before Remarriage (1990)
The marriage of H and W was annulled by the
competent court. Upon finality of the
judgment of nullity. H began looking for
his prospective second mate. He fell in
love with a sexy woman S who wanted to be
married as soon as possible, i.e., after a few
months of courtship. As a young lawyer, you
were consulted by H,
(a) How soon can H be joined in lawful
wedlock to his girlfriend S? Under existing
laws, are there certain requisites that must
be complied with before he can remarry?
What advice would you give H?
(b) Suppose that children were born from the
union of H and W, what would be the status
of said children? Explain your answer.
(c) If the subsequent marriage of H to
S was contracted before compliance with
the statutory condition for its validity, what
are the rights of the children of the first
marriage (i.e., of H and W) and of the
children of the
subsequent marriage (of H and S)?
SUGGESTED ANSWER:
(a) H, or either spouse for that matter, can
marry again after complying with the
provisions of Article 52 of the Family Code,
namely, there must be a partition and
distribution, of the properties of the spouses,
and the delivery of the
Page 24 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
children's presumptive legitimes which should sexually-transmissible disease, found to be
be recorded serious and
in the appropriate civil registry and registries of appears incurable. Two (2) years after their
property. H marriage, which
took place on 10 October 1988, Bethel
should be so advised. discovered that her
husband James has a sexually-transmissible
ALTERNATIVE ANSWER: for (a) disease which he
The following are the requisites prescribed by contracted even prior to their marriage
law and I although James did
not know it himself until he was examined
advice to H is to comply with them, namely: two [2) years
1) If either spouse contracted the marriage in later when a child was already Bethel
bad faith, born to them. sues
his or her share of the net profits of the James for annulment of their marriage. James
community opposes the
property : or conjugal partnership annulment on the ground that he did not even
property shall be know that he
forfeited in favor of the common children or, had such a disease so that there was no fraud
if there or bad faith
are none, the children of the guilty
spouse by a on his part. Decide.
previous marriage or, in default of B. Suppose that both parties at the time of
children, the their marriage
were similarly afflicted with sexually-
innocent spouse; transmissible diseases,
2) Donations by reason of marriage shall serious and incurable, and both knew of
remain valid their respective
except that if the donee contracted the infirmities, can Bethel or James sue for
marriage in bad annulment of their
faith, such donations made to said donee
are revoked marriage?
by operation of law; SUGGESTED ANSWER:
3) The spouse who contracted the subsequent A. The marriage can be annulled, because
marriage in good faith is not
a defense when the ground is based
bad faith shall be disqualified to inherit
upon sexually-
from the
transmissible disease on the part of
innocent spouse by testate and intestate
succession; either party.
4) If both spouses of the subsequent SUGGESTED ANSWER:
marriage acted in B. Yes, the marriage can still be annulled
bad faith all donations by reason of because the fact
marriage and that both of them are afflicted with sexually-
testamentary dispositions made by one in transmissible
favor of the diseases does not efface or nullity the
other are revoked by operation of law. ground.
Alternative Answer:
Th judgment of annulment of the
5) e marriage, the B. No, the marriage can no longer be
annulled, because the
partition and distribution of the
fact that both were afflicted and that both
properties of the
knew of their
spouses, and the delivery of the children's
presumptive respective infirmities constitutes a waiver of that
legitimes shall be recorded in the ground.
appropriate civil
registry and registers of property, (Articles Marriage; Annulment; Judicial
53. 52, 43.
Declaration (1993)
44. Family Code). Maria and Luis, both Filipinos, were married by
a Catholic
priest in Lourdes Church, Quezon City in
SUGGESTED ANSWER: 1976, Luis was
drunk on the day of his wedding. In fact, he
(b) The children born from the union of H and W
would be slumped at the
legitimate children if conceived or born before altar soon after the ceremony. After
marriage, Luis never
the decree of
annulment of the marriage (under Art. 45 of had a steady job because he was drunk
the Family most of the time.
Code) has become final and executory (Art. Finally, he could not get employed at all
because of
54, Family
drunkenness. Hence, it was Maria who had to
earn a living
Code}. to support herself and her child begotten with
Luis. In 1986,
Maria filed a petition in the church
SUGGESTED ANSWER: matrimonial court in
(c) The children of the first marriage shall be Quezon City to annul her marriage with Luis
considered on the ground
legitimate children if conceived or born of psychological incapacity to comply with
before the his marital
Judgment of annulment of the marriage of H obligation. Her petition was granted by
and W has the church
become final and executory. Children conceived matrimonial court.
or born of Can Maria now get married legally to
the subsequent marriage shall likewise be 1) another man
legitimate even if under Philippine laws after her marriage
the marriage of H and S be null and void for to Luis was
failure to annulled by the church matrimonial court?
comply with the requisites of Article 52 of the Explain.
Family Code What must Maria do to enable her to get
(Article 53, Family Code). 2) married
As legitimate children, they have the following lawfully to another man under
rights; Philippine laws?
a) To bear the surnames of the father and SUGGESTED ANSWER:
the mother 1) No, Maria cannot validly contract a
in conformity with the provisions of subsequent marriage
the Civil without a court declaration of nullity of the
Code on Surnames; first marriage.
To receive support from their The law does not recognize the church
b) parents, their declaration of nullity
ascendants, and in proper cases, their of a marriage.
brothers and
sisters, in conformity with the provisions 2) To enable Maria to get married lawfully to
of this
Code on Support; and another man.
To be entitled to the legitime she must obtain a judicial declaration of
c) and other nullity of the prior
successional rights granted to them by marriage under Article 36 Family
the Civil Code.
Code (Article 174, Family Code). Marriage; Annulment; Legal
Separation; Prescription of
Marriage; Annulment; Grounds (1991) Actions (1996)
One of the grounds for annulment of marriage is 2) Bert and Baby were married to each other
that either on December
party, the time of their marriage was 23, 1988. Six months later, she discovered
at afflicted with a that he was a

Page 25 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
drug addict. Efforts to have him In 1989, Maris, a Filipino citizen, married her
rehabilitated were boss Johnson,
an American citizen, in Tokyo in a
unsuccessful. wedding ceremony
Can Baby ask for annulment of celebrated according to Japanese laws.
marriage, or legal One year later,
Johnson returned to his native Nevada,
separation? Explain. and he validly
SUGGESTED ANSWER: obtained in that state an absolute divorce
No, Baby cannot ask for annulment of her from his wife
marriage or for Maris.
legal separation because both these actions After Maris received the final judgment of
had already divorce, she
prescribed. married her childhood sweetheart Pedro,
While concealment of drug addiction also a Filipino
existing at citizen, in a religious ceremony in Cebu City,
the time of marriage constitutes fraud under celebrated
Art. 46 of the according to the formalities of Philippine law.
FC which makes the marriage voidable under Pedro later
Art. 45 of the left for the United States and became
FC, the action must, however, be brought naturalized as an
within 5 years American citizen. Maris followed Pedro to
from the discovery thereof under Article 47(3), the United
FC, Since States, and after a serious quarrel, Marts
the drug addiction of Bert was discovered by filed a suit and
Baby in June obtained a divorce decree issued by the court
1989, the action had already prescribed in in the state of
June of 1994. Maryland.
Although drug addiction is a ground for legal Maris then returned to the Philippines
separation and in a civil
under Art. 55(5) and Art. 57 of the FC ceremony celebrated in Cebu City
requires that the according to the
action must be brought within 5 years from the formalities of Philippine law, she married
occurrence her former
of the cause. Since Bert had been a drug
addict from the classmate Vincent likewise a Filipino citizen.
time of the celebration of the marriage, the Was the marriage of Maris and Pedro
action for legal b) valid when
separation must have been brought not celebrated? Is their marriage still valid
later than 23 existing now?
December 1993. Hence, Baby cannot, now,
bring the action Reasons.
for legal separation. c) Was the marriage of Marts and Vincent
valid when
celebrated? Is their marriage still validly
existing now?
Marriage; Annulment; Proper Party (1990) Reasons.
D and G, age 20 and 19, respectively, and d) At this point in time, who is the lawful
both single, husband of
eloped and got married to each other
without parental Marts? Reasons.
consent in the case of G, a teenaged student of
an exclusive SUGGESTED ANSWER:
college for girls. Three years later, her parents The marriage of Maris and Pedro was
wanted to (b) valid when
seek judicial annulment on that ground. You celebrated because the divorce validly
were consulted obtained by Johnson
and asked to prepare the proper complaint. in Manila capacitated Maris to marry Pedro. The
What advice marriage of
Maris and Pedro is still validly existing,
would you give G's parents? Explain your answer. because the marriage
has not been validly dissolved by the
SUGGESTED ANSWER: Maryland divorce [Art.
G himself should file the complaint under Article
45 of the 26, Family Code).
Family Code, and no longer the parents
because G is
(c) The marriage of Maris and Vincent is
already 22 years of age. void ab initio
because it is a bigamous marriage
contracted by Maris
Marriage; Annulment; Proper Party (1995) during the subsistence of her marriage with
Yvette was found to be positive for HIV virus, Pedro (Art 25
considered and 41, Family Code).
sexually transmissible, serious and incurable. The marriage of Maris and Vincent does not
Her boyfriend validly exist
Joseph was aware of her condition and yet because Article 26 does not apply. Pedro
married her. was not a
After two (2) years of cohabiting with Yvette, foreigner at the time of his marriage with
and in his marts and the
belief that she would probably never be able to divorce abroad (in Maryland) was initiated and
bear him a obtained not
healthy child, Joseph now wants to have his by the alien spouse, but by the Filipino
marriage with spouse. Hence, the
Yvette annulled. Yvette opposes the suit Maryland divorce did not capacitate Marts
contending that to marry
Joseph is estopped from seeking annulment
of their Vincent.
marriage since he knew even before their
marriage that she
was afflicted with HIV virus. (d) At this point in time, Pedro is still the
Can the action of Joseph for annulment of his lawful husband of
marriage with Maris because their valid marriage has not
been dissolved by
Yvette prosper? Discuss fully. any valid cause (Art. 26. Family Code)
SUGGESTED ANSWER:
No, Joseph knew that Yvette was HIV positive at Marriage; Divorce Decrees; Filiation of
the time Children (2005)
of the marriage. He is, therefore, not an injured
party. The In 1985, Sonny and Lulu, both Filipino
FC gives the right to annul the marriage only to citizens, were
married in the Philippines. In 1987, they
an injured
separated, and
party. [Art. 47 (5), FC] Sonny went to Canada, where he obtained a
divorce in the
ALTERNATIVE ANSWER:
sam year. He then married another Filipina,
The action for annulment can prosper e Auring, in
because the
Canada on January 1,1988. They had two
prescriptive period of five (5) years has not yet
sons, James and
lapsed. [Art.
John. In 1990, after failing to hear from
45 (6), FC]. Sonny, Lulu
married Tirso, by whom she had a daughter,
Verna. In 1991,
Marriage; Divorce Decree; Void Marriages Sonny visited the Philippines where he
succumbed to heart
(1992) attack..

Page 26 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
a) Discuss the effect of the divorce Flor and Virgillo were married to each other in
obtained by Sonny Roxas City
in 198O. In 1984, Flor was offered a
and Lulu in Canada. (2%) teaching Job in
SUGGESTED ANSWER: Canada, which she accepted. In 1989, she
The divorce is not valid. Philippine law does not applied for and
provide for was granted Canadian citizenship. The
absolute divorce. Philippine courts cannot following year, she
grant it. A sued for divorce from Virgilio in a Canadian
marriage between two (2) Filipinos cannot be court. After
dissolved by a Virgilio was served with summons, the
divorce obtained abroad. (Garcia v. Redo, G.R. Canadian court tried
No. 138322, the case and decreed the divorce. Shortly
October 2, 2001). Philippine laws apply to Sonny thereafter, Flor
and Lulu. married a Canadian.
Under Article 15 of the New Civil Code, laws Can Virgilio marry again in the
relating to Philippines? Explain.
family rights and duties, status, and capacity of
persons are SUGGESTED ANSWER:
binding upon citizens of the Philippines No, Virgilio cannot validly remarry. His case is
wherever they may not covered
be. Thus, the marriage of Sonny and Lulu is still by Article 26 of the Family Code, For said
valid and Article to be
applicable, the spouse who filed for
subsisting. divorce must be a
foreigner at the time of the marriage. Since
both of them
b) Explain the status of the marriage were Filipinos at the time of the marriage,
between Sonny the divorce
obtained by Flor did not capacitate Virgilio to
and Auring. (2%) remarry. The
SUGGESTED ANSWER: fact that Flor was already an alien at the time
Since the decree of divorce obtained by Lulu she obtained
and Sony in the divorce does not give Virgilio the
Canada is not recognized here in the capacity to remarry
Philippines, the under Philippine Law.
marriage between Sonny and Auring is void.
(Art. 35, ALTERNATIVE ANSWERS:
Family Code) Any marriage subsequently a) Yes, Virgilio can validly remarry. Art. 26
contracted during of the FC,
the lifetime of the first spouse shall be illegal merely States the alien spouse without
and void, taking into
subject only to the exception in the cases of consideration his or her nationality at the
absence or time of the
where the prior marriage was dissolved or marriage. While his case is not covered by
annulled. (Ninal the letter of
v. Bayadog, G.R. No. 133778, March 14, 2000) Article 26 FC, it is, however, covered by the
The marriage spirit of said
of Sonny and Auring does not fall within the Article, the injustice to the Filipino spouse
exception. sought to be
cured by said Article is present in this case.
(Department of
Explain the status of the marriage
c) between Lulu Justice Opinion No. 134 Series of 1993).
and Tirso. (2%) Although the marriage originally
SUGGESTED ANSWER: b) involved Filipino
The marriage of Lulu and Tirso is also void. Mere citizens, it eventually became a marriage
absence
of the spouse does not give rise to a right of between an alien
the present and a Filipino after Flor became a Canadian
spouse to remarry. Article 41 of the Family Code citizen. Thus,
provides the divorce decree was one obtained by an
for a valid bigamous marriage only where a alien spouse
spouse has been married to a Filipino. Although nothing is
said about
absent for four consecutive years before whether such divorce did capacitate Flor to
the second remarry, that
marriage and the present spouse had a well- fact may as well be assumed since the
founded belief problem states that
that the absent spouse is already dead. she married a Canadian shortly after
(Republic v. Nolasco, obtaining the divorce.
G.R. No. 94053, March 17, 1993) Hence, Virgillo can marry again under
Philippine law,
d) Explain the respective filiation of pursuant to Art. 26. FC which applies
because Flor was
James, John and already an alien at the time of the divorce.
Verna. (2%)
SUGGESTED ANSWER: Marriage; Divorce Decrees; Filipino
James, John and Verna are illegitimate children Spouses becoming
since their
Alien (1999)
parents are not validly married. Under Article
Ben and Eva were both Filipino citizens at the
165 of the
time of their
Family Code, children conceived and born marriage in 1967, When their marriage
outside a valid turned sour, Ben
marriage are illegitimate, unless otherwise
went to a small country in Europe, got himself
provided in this
naturalized
Cod
there, and then divorced Eva in accordance
e.
with the law of
Who are the heirs of Sonny? that country, Later, he returned to the
e) Explain. (2%) Philippines with his
new wife.
Suggested answer:
Eva now wants to know what action or actions
Sonny's heirs include James, John, and Lulu. she can file
Article 887 of against Ben. She also wants to know if she
the Civil Code provides that the compulsory can likewise
heirs of the marry again. What advice can you give her?
deceased are among others, his widow and {5%)
his illegitimate SUGGESTED ANSWER:
children. The widow referred to in Article 887 Considering that Art. 26(2nd par.)
is the legal contemplates a divorce
wife of the deceased. Lulu is still a between a foreigner and a Filipino, who had
compulsory heir of such respective
Sonny because the divorce obtained by Sonny nationalities at the time of their marriage,
in Canada the divorce in
cannot be recognized in the Philippines. The Europe will not capacitate the Filipino wife to
legitime of remarry. The
each illegitimate child shall consist of one- advice we can give her is either to file a
half of the petition for legal
legitime of a legitimate child. (Art. 176, Family separation, on the ground of sexual
Code) infidelity and of
Marriage; Divorce Decrees; Filipino contracting a bigamous marriage abroad, or
to file a petition
Spouses becoming to dissolve the conjugal partnership or
absolute community
Alien (1996) of property as the case maybe.

Page 27 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
ALTERNATIVE ANSWER: the marriage, the conclusion is that
Eva may file an action for legal separation on Digna's father may
the grounds revoke the donation and get back the car.
of sexual infidelity of her husband and the
contracting by
Marriage; Grounds; Declaration of
her husband of a bigamous marriage abroad. Nullity: Annulment:
She may remarry. While a strict interpretation of Legal Separation: Separation of Property
(2003)
Article 26 Which of the following remedies, i.e., (a)
of the Family Code would capacitate a Filipino declaration of
spouse to nullity of marriage, (b) annulment of
remarry only when the other spouse was a marriage, (c) legal
foreigner at the separation, and/or (d) separation of
time of the marriage, the DOJ has issued property, can an
an opinion aggrieved spouse avail himself/herself of-
(Opinion 134 s. of 1993) that the same injustice If the wife discovers after the
sought to (i) marriage that her
be cured by Article 26 is present in the case of
spouses who husband has “AIDS”.
were both Filipino at the time of the marriage (ii) If the wife goes (to) abroad to work as a
but one nurse and
became an alien subsequently. Said injustice is refuses to come home after the
the anomaly expiration of her
of Eva remaining married to her husband who is
no longer three-year contract there.
married to her. Hence, said Opinion makes (iii) If the husband discovers after the
Article 26 marriage that his
applicable to her case and the divorce obtained wife has been a prostitute before they
abroad by got married.
her former Filipino husband would (iv) If the husband has a serious affair with his
capacitate her to
secretary
remarry. To contract a subsequent marriage, all and refuses to stop notwithstanding
she needs to advice from
do is present to the civil registrar the decree
of divorce relatives and friends.
when she applies for a marriage license under (v) If the husband beats up his wife every
Article 13 of time he
the Family Code. comes home drunk. 5%
SUGGESTED ANSWER:
Marriage; Donations by Reason of Since AIDS is a serious and incurable
Marriage; Effect of (i) sexually-
transmissible disease, the wife may file
Declaration of Nullity (1996) an action for
1) On the occasion of Digna's marriage to annulment of the marriage on this ground
George, her whether such fact
father gave her a donation propter nuptias
was concealed or not from the wife,
of a car.
provided that the
Subsequently, the marriage was annulled
disease was present at the time of the
because of the
marriage. The
psychological immaturity of George. marriage is voidable even though the
May Digna's father revoke the donation and husband was not
get back the aware that he had the disease at the time of
marriage.
car? Explain.
SUGGESTED ANSWER: If the wife refuses to come home for
No, Digna's father may not revoke the (ii) three (3)
donation because months from the expiration of her
Digna was not in bad faith, applying Art. contract, she is
86(3) of the presumed to have abandoned the husband
and he may file
Family Code. an action for judicial separation of
property. If the refusal
ALTERNATIVE ANSWER:
continues for more than one year from the
a) Yes, the donation is revocable. Since the expiration of her
ground for the
annulment of the marriage is the psychological contract, the husband may file the
immaturity action for legal
of George, the judgment was in the nature of a separation under Art. 55 (10) of the Family
Code on the
declaration
ground of abandonment of petitioner by
of nullity under Art. 36 of the FC and,
respondent
therefore, the
donation may be revoked under Art. 86( 1) of without justifiable cause for more than one
year. The wife is
the FC for
deemed to have abandoned the husband
the reason that the marriage has been
when she leaves
judicially declared
the conjugal dwelling without any intention
void ab initio. of returning
(Article 101, FC). The intention not to return
ALTERNATIVE ANSWER: cannot be
b) No, the donation cannot be revoked. The presumed during the 30year period of her
law provides contract.
that a donation by reason of marriage may be
revoked by If the husband discovers after the
the donor if among other cases, the marriage (iii) marriage that his
is judicially wife was a prostitute before they got
declared void ab initio [par. (1) Art. 86. married, he has no
Family Code], or remedy. No misrepresentation or deceit as
when the marriage is annulled and the donee to character,
acted in bad health, rank, fortune or chastity shall
faith [par. (3), Id.]. Since the problem constitute fraud as
states that the legal ground for an action for the annulment
marriage was annulled and there is no of marriage
intimation of bad
faith on the part of the donee Digna, the
conclusion is that (Article 46 FC).
the donor cannot revoke the donation. The wife may file an action for legal
ALTERNATIVE ANSWER: (iv) separation.
c) Yes, the donation can be revoked. The The husband’s sexual infidelity is a
ground used in ground for legal
dissolving the marriage was the psychological
separation 9Article 55, FC). She may also file
immaturity of an action for
George, which is not a ground for annulment of judicial separation of property for failure
marriage. of her husband to
If this term is equated with psychological comply with his martial duty of fidelity (Article
incapacity as used 135 (4), 101,
in Art. 36 of the Family Code, then it is a
ground for
FC).
declaration of nullity of the marriage.
Consequently, par. (1)
of Art. 86, FC, is the applicable law. Since Art. The wife may file an action for legal
86 of the FC
makes no qualification as to who furnished the (v) separation on
ground or the ground of repeated physical violence
on her person
who was in bad faith in connection with the (Article 55 (1), FC). She may also file an
nullification of action for judicial

Page 28 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
separation of property for failure of the Saudi Arabia to work. There, after being
husband to comply converted into
with his marital duty of mutual respect (Article Islam, Ariel married Mystica, Rosa learned of
135 (4), the second
Article 101, FC). She may also file an action for marriage of Ariel on January 1, 1992 when
declaration Ariel returned to
of nullity of the marriage if the the Philippines with Mystica. Rosa filed an
husband’s behavior action for legal
constitute psychological incapacity existing at separation on February 5, 1994,
the time of 1) Does Rosa have legal grounds to ask for legal
the celebration of separation?
marriage. Has the action
2) prescribed?
Marriage; Grounds; Nullity; Annulment; SUGGESTED ANSWER:
Legal Separation 1) a) Yes, the abandonment of Rosa by Ariel
(199 for more than
one (1) year is a ground for legal separation
7)
unless upon
Under what conditions, respectively, may drug
returning to the Philippines, Rosa agrees to
addiction be
a ground, if at all, (a) for a declaration of nullity cohabit with
of marriage, Ariel which is allowed under the Muslim Code.
(b) for an annulment of the marriage contract, In this case,
and (c) for
there is condonation.
legal separation between the spouses?
b) Yes. The contracting of a subsequent
SUGGESTED ANSWER:
bigamous marriage
whether in the Philippines or abroad is a
(a
) Declaration of nullity of marriage: ground for legal
1) The drug addiction must amount to separation under Article 55(7) of the Family
psychological Code. Whether
incapacity to comply with the essential the second marriage is valid or not, Ariel
obligations having converted
of marriage; into Islam, is immaterial.
2) It be antecedent (existing at the SUGGESTED ANSWER:
must time of Under Article 57 of the Family
marriage), grave and incurable: 2) No. Code, the
aggrieved spouse must file the action within
3) The case be filed before August 1,
five (5) years
must 1998.
from the occurrence of the cause. The
Because if they got married before
subsequent marriage
August 3, 1998,
of Ariel could not have occurred earlier than
it must be filed before August 1990, the time
1, 1998. he went to Saudi Arabia. Hence, Rosa has
until 1995 to
(b Annulment of the Marriage bring the action under the Family Code.
) Contract:
1) The drug addiction must be Marriage; Legal Separation; Mutual guilt
concealed;
2) It must exist at the time of (2006)
marriage; Saul, a married man, had an adulterous
cohabitati wit relation with Tessie.
3) There should be no on h full In one of the trysts, Saul's wife, Cecile,
knowledge of the drug caught them in
addiction; flagrante. Armed with a gun, Cecile shot
Saul in a fit of
The case is within five year
4) filed (5) s from extreme jealousy, nearly killing him. Four (4)
years after the
discovery. incident, Saul filed an action for legal
separation against
Cecile on the ground that she attempted to
(c) Legal Separation; kill him.
1) There should be no condonation or (1) If you were Saul's counsel, how will
consent to the you argue his
drug case?
addiction; (2.5%)
SUGGESTED ANSWER:
 2) The action must be filed within five (5)
years from As the counsel of Saul, I will argue that an
attempt by the
the occurrence of the cause.
wife against the life of the husband is one of
3) Drug addiction arises during the the grounds
marriage and not enumerated by the Family Code for legal
at the time of separation and
marriage. there is no need for criminal conviction for the
ground to
Marriage; Legal Separation; Declaration of be invoked (Art. 55, par. 9, Family Code).
Nullity (2002)
If drug addiction, habitual alcoholism, (2) If you were the lawyer of Cecile,
lesbianism or what will be your
homosexuality should occur only during the
marriage, defense? (2.5%)
would this constitute grounds for a declaration
of nullity or SUGGESTED ANSWER:
for legal separation, or would they render As the counsel of Cecile, I will invoke the
the marriage adultery of Saul.
voidable? Mutual guilt is a ground for the dismissal of an
(1%). action for
SUGGESTED ANSWER: legal separation (Art. 56, par. 4, Family
In accordance with law, if drug addiction, Code). The rule is
habitual anchored on a well-established principle
alcoholism, lesbianism or homosexuality should that one must
occur only
during the marriage, come to court with clean hands.
they:
a) Will not constitute as ground for declaration (3) If you were the judge, how will
of nullity you decide the
(Art. 36, Family
Code); case?
b) Will constitute as grounds for legal (5%)
separation (Art. 56, SUGGESTED ANSWER:
FC) and If I were the judge, I will dismiss the action on
c) will not constitute as grounds to render the ground
the marriage of mutual guilt of the parties. The Philippine
voidable (Art.45and 46, Constitution
FC) protects marriage as an inviolable social
institution (Art.
Marriage; Legal Separation; Grounds; XV, Sec. 2, 1987 Constitution). An action
for legal
Prescriptive Period separation involves public interest and no
(199 such decree
4) should be issued if any legal obstacle
Rosa and Ariel were married in the Catholic thereto appears on
Church of record. This is in line with the policy that in
Tarlac, Tarlac on January 5. 1988. In 1990, case of doubt,
Ariel went to

Page 29 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
the court shall uphold the validity and sanctity the preceding Article, only the properties
of marriage acquired by both
(Brown v. Yambao, G.R. No. L-10699, of the parties through their actual joint
October 18, 1957). contribution of
money, property, or industry shall be owned
by them in
Marriage; Non-Bigamous Marriages common in proportion to their respective
(2006) contributions. In
Marvin, a Filipino, and Shelley, an American, the absence, of proof to the contrary, their
both residents contributions
of California, decided to get married in their and corresponding shares are presumed to
local parish. be equal. The
Two years after their marriage, Shelley obtained same rule and presumption shall apply to joint
a divorce in deposits of
California. While in Boracay, Marvin met Manel,
a Filipina, money and evidences of credit.
who was vacationing there. Marvin fell in love
with her.
After a brief courtship and complying
with all the SUGGESTED ANSWER:
requirements, they got married in Hongkong It should be distinguished when the
to avoid C. property was
publicity, it being Marvin's second marriage. Is
his marriage acquired.
• If it was acquired before Mary's death,
to Manel valid? Explain. (5%) the estate
SUGGESTED ANSWER: of Mary is entitled to 1/2 of the share
Yes. The marriage will not fall under Art. of James.
35(4) of the • If it was acquired after Mary's death,
Family Code on bigamous marriages, provided there will
that Shelley be no share at all for the estate of
obtained an absolute divorce, capacitating her Mary.
to remarry
under her national law. Consequently, the Marriage; Psychological Incapacity
marriage between
Marvin and Manel may be valid as long as it was (1996)
solemnized On April 15, 1983, Jose, an engineer, and
and valid in accordance with the laws of Marina, a nurse,
were married to each other in a civil
Hongkong [Art. 26, ceremony in Boac.
paragraphs 1 and 2, Family Code]. Marinduque. Six months after their
marriage, Jose was
Marriage; Property Relations; Void employed in an oil refinery in Saudi Arabia for
a period of
Marriages (1991) three years. When he returned to the
In June 1985, James married Mary. In September Philippines, Marina
1988, he was no longer living in their house, but in
also married Ophelia with whom he begot two Zamboanga City,
(2) children, working in a hospital. He asked her to come
A and B. In July 1989, Mary died. In July 1990, he home, but she
married refused to do so, unless he agreed not to
Shirley and abandoned Ophelia, During their work overseas
union. James anymore because she cannot stand living
and Ophelia acquired a residential lot worth alone. He could
P300,000.00. not agree as in fact, he had signed
another three year
Ophelia sues James for bigamy and prays that contract. When he returned in 1989, he
could not locate
his marriage Marina anymore. In 1992, Jose filed an
with Shirley be declared null and void. James, on action served by
the other publication in a newspaper of general
hand, claims that since his marriage to circulation. Marina
Ophelia was did not file any answer, a possible collusion
contracted during the existence of his marriage between the
with Mary, parties was ruled out by the Public
the former is not binding upon him, the same Prosecutor. Trial was
being void ab
 conducted and Marina neither appeared
initio he further claims that his marriage to nor presented
Shirley is valid evidence in her favor.
and binding as he was already legally If you were the judge, will you grant the
capacitated at the time annulment.
he married her. Explain.
a) Is the contention of James correct? SUGGESTED ANSWER:
b) What property Relations governed the As judge, I will not grant the annulment. The
union of James facts do not
and Ophelia? show any taint of personality disorder on
c) Is the estate of Mary entitled to a the part of the
share in the wife Marina so as to lend substance to
residential lot acquired by James and her husband's
Ophelia? averment of psychological incapacity within
the meaning of
SUGGESTED ANSWER: Art 36 of the Family Code. In Santos vs. CA
A. Yes. His marriage to Ophelia is void ab initio (240 SCRA 20),
because of this particular ground for nullity of marriage
his subsisting prior marriage to Mary. His was held to be
marriage to limited only to the most serious cases
Shirley, after Mary's death, is valid and of personality
binding. disorders (clearly demonstrative of utter
sensitivity or
ALTERNATIVE ANSWER:
inability to give meaning and significance to
James is not correct. the marriage.
A. No. The Marina's refusal to come home to her
contention of husband unless he
Art. 40, Family Code, provides that the "absolute
nullity of a agreed not to work overseas, far from being
previous marriage may be invoked for indicative of an
purposes of insensitivity to the meaning of marriage, or of
remarriage on the basis solely of a final a personality
judgment declaring disorder, actually shows a sensitive
such previous marriage void." It can be said, awareness on her part of
therefore, that the marital duty to live together as husband
the marriage of James to Shirley is void since his and wife. Mere
previous refusal to rejoin her husband when he did
not accept the
marriage to Ophelia, although itself void, had
condition imposed by her does not furnish
not yet been
any basis for
judicially declared
concluding that she was suffering from
void,
psychological
ALTERNATIVE ANSWER:
No. The contention of James is not incapacity to discharge the essential marital
A. correct. He obligations.
cannot set up as a defense his own Mere intention to live apart does not fall under
criminal act or
Art. 36, FC.
wrongdoing-
Furthermore, there is no proof that
the alleged
psychological incapacity existed at the time of
SUGGESTED ANSWER: the marriage.
B. The provisions of Art 148 of the Family
Code, shall
govern: Art. 148. In cases of cohabitation not
falling under
Page 30 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Marriage; Psychological Incapacity SUGGESTED ANSWER: The best answers are B and C.
(2006) To be sure, the existence and concealment of
Gemma filed a petition for the declaration of these conditions at the inception of marriage
nullity of her marriage with Arnell on the renders the marriage contract voidable (Art.
ground of psychological incapacity. She 46, Family Code). They may serve as indicia of
alleged that after 2 months of their marriage, psychological incapacity, depending on the
Arnell showed signs of disinterest in her, degree and
neglected her and went abroad. He returned severity of the disorder
to the Philippines after 3 years but did not 4, 1995). Hence, if the condition of
even get in touch with her. Worse, they homosexuality, lesbianism or sexual perversion,
met several times in social functions but he existing at the inception of the marriage, is of
snubbed her. When she got sick, he did not such a degree as to prevent any form of sexual
visit her even if he knew of her intimacy, any of them may qualify as a
confinement in the hospital. Meanwhile, ground for psychological incapacity. The law
Arnell met an accident which disabled him provides that the husband and wife are obliged
from reporting for work and earning a living to live together, observe mutual love, respect
to support himself. and fidelity (Art. 68, Family Code). The mandate
Will Gemma's suit prosper? Explain. (5%) is actually the spontaneous, mutual affection
SUGGESTED ANSWER: between the spouses. In the natural order it
No, Gemma's suit will not prosper. Even if is sexual intimacy which
taken as true, the grounds, singly or brings the spouses wholeness and oneness v.
collectively, do not constitute "psychological CA, G.R. No. 119190, January 16,1997).
incapacity." In Santos v. CA, G.R. No. 112019,
January 4, 1995, the Supreme Court clearly
explained that "psychological incapacity
must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability"
(Ferraris v. Ferraris, G.R. No. 162368, July 17,
2006; Choa v. Choa, G.R. No. 143376,
November 26, 2002). The illness must be
shown as downright incapacity or inability to
perform one's marital obligations, not a
mere refusal, neglect, difficulty or much less,
ill will. Moreover, as ruled in
Republic v. Molina, GR No. 108763, February
13, 1997, it is essential that the husband is
capable of meeting his marital
responsibilities due to psychological and not
physical illness
(Antonio v. Reyes, G.R. No. 155800, March
10, 2006; Republic v. Quintero-Hamano,
G.R. No. 149498, May 20, 2004).
Furthermore, the condition complained of did
not exist at the time of the celebration of
marriage.

Marriage; Psychological Incapacity

(2006)
Article 36 of the
Family Code(Santos v. CA, G.R. No.
112019, Jan.
provides that 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 be void.
Choose the spouse listed below who is
psychologically incapacitated. Explain. (2.5%)
a) Nagger
b) Gay or Lesbian (Chi Ming
c) Congenital sexual pervert Tsoi
d) Gambler
e) Alcoholic
ALTERNATIVE ANSWER:
None of them are necessarily psychologically
incapacitated. Being a nagger, etc. are at best
only physical manifestations indicative of
psychological incapacity. More than just
showing the manifestations of incapacity, the
petitioner must show that the respondent is
incapacitated to comply with the essential
marital obligations of marriage and that it is
also essential that he must be shown to be
incapable of doing so due to some
psychological, not physical illness
(Republic v. Quintero-Hamano, G.R. No.
149498, May 20, 2004).
ALTERNATIVE ANSWER:
A congenital sexual pervert may be
psychologically incapaci- tated if his
perversion incapacitates him from
discharging his marital obligations. For
instance, if his perversion is of such a nature
as to preclude any normal sexual activity with
his spouse.
Marriage; Requisites (1995)
Isidro and Irma, Filipinos, both 18 years of
age, were passengers of Flight No. 317 of
Oriental Airlines. The plane they boarded
was of Philippine registry. While en route
from Manila to Greece some passengers
hijacked the plane, held the chief pilot
hostage at the cockpit and ordered him to fly
instead to Libya. During the hijacking Isidro
suffered a heart attack and was on the verge
of death. Since Irma was already eight
months pregnant by Isidro, she pleaded to the
hijackers to allow the assistant pilot to
solemnize her marriage with Isidro. Soon
after the marriage, Isidro expired. As
the plane landed in Libya Irma gave birth.
However, the baby died a few minutes
after complete delivery.
Back in the Philippines Irma immediately filed
a claim for inheritance. The parents of
Isidro opposed her claim contending that
the marriage between her and Isidro was
void ab initio on the following grounds: (a)
they had not given their consent to the
marriage of their son; (b) there was no
marriage license; (c) the solemnizing officer
had no authority to perform the marriage;
and, (d) the solemnizing officer did not file an
affidavit of marriage with the proper civil
registrar.
1. Resolve each of the contentions ([a] to [d])
raised by the parents of Isidro. Discuss fully.
SUGGESTED ANSWER:
1. (a) The fact that the parents of Isidro and
of Irma did not give their consent to the
marriage did not make the marriage void
ab initio. The marriage is merely voidable
under Art 45 of the FC.
(b) Absence of marriage license did not make
the marriage void ab initio. Since the
marriage was solemnized in articulo mortis,
it was exempt from the license
requirement under Art. 31 of the FC.
(c) On the assumption that the assistant pilot
was acting for and in behalf of the airplane
chief who was under disability, and by
reason of the extraordinary and
exceptional circumstances of the case
[ie. hostage situation), the marriage was
solemnized by an authorized officer under
Art. 7 (3) and Art. 31. of the FC.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
(d) Failure of the solemnizing officer to file the ALTERNATIVE ANSWER:
affidavit of If the two Filipinos believed in good faith that
marriage did not affect the validity of the the Notary
marriage. It is Public is authorized to solemnize
merely an irregularity which may subject the marriage, then the
solemnizing
officer to sanctions. marriage is valid.
ALTERNATIVE ANSWER:
Considering that the solemnizing officer has no SUGGESTED ANSWER:
authority to (e) Under the Local Government Code, a
perform the marriage because under Art. 7 town mayor may
the law validly solemnize a marriage but said law is
authorizes only the airplane chief, the silent as to the
marriage is void, territorial limits for the exercise by a town
hence, a, c, and d are mayor of such
immaterial. However, by analogy, with the
authority. authority of
Marriage; Requisites members of the Judiciary to solemnize a
(1999) marriage, it would
seem that the mayor did not have the
What is the status of the following marriages requisite authority to
and why? solemnize a marriage outside of his
(a) A marriage between two 19-year olds
territorial jurisdiction.
without parental
Hence, the marriage is void, unless it was
conse
contracted with
nt, (2%)
either or both parties believing in good faith
(b) A marriage between two 21-year olds
that the mayor
without parental had the legal authority to solemnize this
advice
particular marriage
. (2%)
(c) A marriage between two Filipino first (Art 35, par 2 Family Code).
cousins in
Spain where such marriage is ALTERNATIVE ANSWER:
valid. (2%) The marriage is valid. Under the Local
(d) A marriage between two Filipinos in Government Code,
Hongkong the authority of a mayor to solemnize
before a notary public. (2%) marriages is not
restricted within his municipality implying
(e) A marriage solemnized by a town mayor
that he has the
three towns
away from his authority even outside the territory
jurisdiction, (2%) thereof. Hence, the
marriage he solemnized outside his
SUGGESTED ANSWER:
municipality is valid.
(a) The marriage is voidable. The consent of And even assuming that his authority is
the parties to restricted within his
the marriage was defective. Being below 21 municipality, such marriage will
years old, the nevertheless, be valid
consent of the parties is not full without the because solemnizing the marriage outside
consent of their said municipality
parents. The consent of the parents of the is a mere irregularity applying by analogy
parties to the the case of
Navarro v Domagtoy, 259 Scra 129. In this
marriage is indispensable for its
case, the Supreme
validity.
Court held that the celebration by a judge
of a marriage
outside the jurisdiction of his court is a
SUGGESTED ANSWER: mere irregularity
(b) Between 21-year olds, the that did not affect the validity of
marriage is valid despite the marriage
the absence of parental advice, absence
because such is notwithstanding Article 7 of the Family
merely an irregularity affecting a formal Code which
requisite i.e., the provides that an incumbent member of
marriage license and does not affect the the judiciary is
validity of the authorized to solemnize marriages only
marriage itself. This is without prejudice to within the court’s
the civil, jurisdictio
n.
criminal, or administrative liability of the party
responsible
Marriage; Requisites; Marriage License
therefor. (1996)
On Valentine's Day 1996, Ellas and Fely, both
SUGGESTED ANSWER:
single and 25
years of age, went to the city hall where they
By reason of public policy, the marriage
sought out a
(c) between
fixer to help them obtain a quickie marriage.
Filipino first cousins is void [Art. 38, par. (1),
For a fee, the
Family Code],
fixer produced an ante-dated marriage
and the fact that it is considered a valid marriage
license for them,
in a foreign
Issued by the Civil Registrar of a small remote
country in this case, Spain— does not validate
municipality.
it, being an
He then brought them to a licensed minister
exception to the general rule in Art. 96 of said
in a restaurant
Code which
behind the city hall, and the latter solemnized
accords validity to all marriage solemnized
their marriage
outside the
right there and then.
Philippine x x x and valid there as
such. Is their marriage valid, void or
ALTERNATIVE ANSWER
1) voidable? Explain.
SUGGESTED ANSWER:
The marriage it void. Under Article 96 of the
Family Code, The marriage is valid. The irregularity in the
a marriage valid where celebrated is valid in the issuance of a
valid license does not adversely affect the
Philippines
validity of the
except those marriages enumerated in said
Article which marriage. The marriage license is valid
marriages will remain void even though because it was in fact
valid where
solemnized. The marriage between first cousins
issued by a Civil Registrar (Arts. 3 and 4. FC).
is one of
ALTERNATIVE ANSWER:
those marriages enumerated therein, hence, it
is void even It depends. If both or one of the parties was a
member of
though valid in Spain where it was the religious sect of the solemnizing officer,
celebrated. the marriage is
By reason of Art. 15 in relation to Article 38 of valid. If none of the parties is a member of
the sect and
the Civil both of them were aware of the fact, the
Code, which applies to Filipinos wherever marriage is void.
they are, the They cannot claim good faith in
believing that the
marriage is void. solemnizing officer was authorized because
the scope of the
SUGGESTED ANSWER:
authority of the solemnizing officer is a
(d) It depends. If the marriage before the matter of law. If,
notary public is
however, one of the parties believed in good
valid under Hongkong Law, the marriage is
faith that the
valid in the
other was a member of the sect, then the
Otherwise, the marriage that is
marriage is valid
Philippines. invalid in
Hongkong will be invalid in the
Philippines.

Page 32 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
under Article 35 (2), FC. In that case, the party This is different from the case of Ninal V.
in good faith Bayadog, (328
is acting under a mistake of fact, not a mistake SCRA 122 [2000]). In the said case, the
of law, situation occurred
during the Relations of the new Civil Code
where Article 76
2) Would your answer be the same if it should thereof clearly provides that during
turn out that the five-year
cohabitation, the parties must be unmarried.
the marriage license was spurious? Explain. This is not so
SUGGESTED ANSWER: anymore in the Family Code. The Change in
No, the answer would not be the same. The the Family
marriage would Code is significant. If the second marriage
be void because of the absence of a formal occurred before
requisite. In the effectivity of the Family Code, the answer
such a case, there was actually no valid marriage would that be
license.
that the marriage is void.
Marriage; Requisites; Marriage License B. Does Sotero have the personality to seek
(2002)
the declaration
On May 1, 1978 Facundo married Petra, by of nullity of the marriage, especially now
whom he had a
that Facundo is
son Sotero. Petra died on July 1, 1996, while
already deceased?
Facundo died
Explain. (3%)
on January 1, 2002. Before his demise,
Facundo had SUGGESTED ANSWER:
married, on July 1, 2002, Quercia. Having lived B. A void marriage may be questioned by
together as any interested
husband and wife since July 1, 1990, Facundo party in any proceeding where the resolution
and Quercia of the issue is
did not secure a marriage license but executed material. Being a compulsory heir,
the requisite Soterro has the
personality to question the validity of the
affidavit for the purpose. marriage of
To ensure that his inheritance rights are not Facundo and Quercia. Otherwise, his
adversely participation in the
affected by his father second marriage, Sotero estate on Facundo would be (Ninãl V.
now brings a affected. Bayadog,
suit to seek a declaration of the nullity of the 328 SCRA 122 [2000] ).
marriage of
Facundo and Quercia, grounded on the absence
of a valid
marriage license. Quercia contends that there Marriage; Requisites; Solemnizing
was no need Officers (1994)
for a marriage license in view for her 1} The complete publication of the Family
having lived Code was made
on August 4, 1987. On September 4, 1987,
continuously with Facundo for five years
Junior Cruz and
before their
Gemma Reyes were married before a
marriage and that has Sotero has no legal
municipal mayor. Was
personality to seek
a declaration of nullity of the marriage since the marriage valid?
Facundo is now 2) Suppose the couple got married on
deceased. September 1, 1994 at
Is the marriage of Facundo and the Manila Hotel before the Philippine Consul
A. Quercia valid, General to
despite the absence of a marriage license? Hongkong, who was on vacation in Manila.
Explain. (2%) The couple
executed an affidavit consenting to the
SUGGESTED ANSWER: celebration of the
The marriage with Quercia is void. The marriage at the Manila Hotel. Is the marriage
A. exemption valid?
from the requirement of a marriage license
under Art, 34, SUGGESTED ANSWER:
Family Code, requires that the man and woman a) Yes, the marriage is valid. The Family
must have 1) Code took
lived together as husband and wife for at least effect on August 3, 1988. At the time of the
five years and marriage on
without any legal impediment to marry each September 4, 1987, municipal mayors were
other during empowered to
those five years. The cohabitation of Facundo solemnize marriage under the Civil Code of
and Quercia 1950.
for six years from 1990 to July 1, 1996 when
Petra died was a) The marriage is not Consuls and vice-
one with a legal impediment hence, not in 2) valid. consuls
compliance with are empowered to solemnize marriages
the requirement of law. On other hand, the between Philippine
cohabitation citizens abroad in the consular office of the
thereafter until the marriage on July 1, 2000, foreign country
although free to which they were assigned and have
from legal impediment, did not meet the 5-year no power to
cohabitation solemnize marriage on
requirement. Philippine soil.
ALTERNATIVE ANSWER:
The marriage of Facundo and Quercia is b) A Philippine consul is authorized by law
VALID. The to solemnize
second marriage was solemnized on July 1, marriages abroad between Filipino citizens.
2000, when the He has no
Family code was already affective. The family authority to solemnize a marriage in the
code took Philippines.
effect on August 3, 1988. Under the Family Consequently, the marriage in question is
Code, no void, unless either
marriage license is required if the parties or both of the contracting parties believed in
have been good faith that
cohabiting for the period of five years and there the consul general had authority to solemnize
is no legal their marriage
impediment. There must no legal impediment in which case the marriage
ONLY AT is valid.
THE TIME OF THE SOLEMNIZATION OF
THE
MARRIAGE, and not the whole five years
period. This is Marriage; Requisites; Void Marriage (1993)
clearly the intent of the code framers (see A and B, both 18 years old, were
Minutes of the sweethearts studying in
150th joint Civil Code of the Family Law
Committees held on
Manila. On August 3, 1988, while in first year
college, they
August 9, 1986). Also, in Manzano V. Sanchez,
AM NO. MT eloped. They stayed in the house of a mutual
–00-129, March 8, 2001, the Supreme Court said friend in town
that, as one X, where they were able to obtain a
of the requisites for the exception to apply, marriage license. On
there must be August 30, 1988, their marriage was
no legal impediment at the time of the solemnized by the town
marriage. The mayor of X in his office. Thereafter, they
Supreme Court did not say that the legal returned to Manila
impediment must and continued to live separately in their
respective boarding
exist all throughout the five-year period. houses, concealing from their parents, who
were living in
the province what they had done. In 1992,
after graduation

Page 33 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
from college, A and B decided to break their Philippine Law, his marriage to Anne is void
relation and because of a
parted ways. Both went home to their prior existing marriage which was not
respective towns to dissolved by the
live and divorce decreed in Oslo. Divorce obtained
work. abroad by a
1) Was the marriage of A and B solemnized on
August 30, Filipino is not recognized.
1988 by the town mayor of X in his office a valid
marriage?
If Boni was no longer a Filipino citizen, the
Explain your answer. divorce is valid.
2) Can either or both of them contract Hence, his marriage to Anne is valid if
marriage with celebrated in
another person without committing bigamy? accordance with the law of the place
Explain your where it was
celebrated. Since the marriage was
answer. celebrated aboard a
SUGGESTED ANSWER: vessel of Norwegian registry, Norwegian law
1) The marriage of A and B is void because the applies. If the
solemnizing Ship Captain has authority to solemnize the
officer had no legal authority to solemnize the marriage aboard
marriage. But his ship, the marriage is valid and shall be
if either or both parties believed in good recognized in the
faith that the Philippines.
solemnizing officer had the legal authority to
do so, the
marriage is voidable because the marriage As to the second question, if Boni is still a
between the Filipino, Anne
parties, both below 21 years of age, was
solemnized without can file an action for declaration of nullity of
the consent of the parents. (Art. 35, par. (2) and her marriage
Art. 45 par. to him.
(1), Family
Code)
2) Either or both of the parties cannot contract Marriage; Void Marriages (2006)
marriage in Gigi and Ric, Catholics, got married when
the Philippines with another person without they were 18
committing years old. Their marriage was solemnized on
bigamy, unless there is compliance with the August 2, 1989
requirements of by Ric's uncle, a Baptist Minister, in Calamba,
Article 52 Family Code, namely: there must be a Laguna. He
judgment overlooked the fact that his license to
of annulment or absolute nullity of the solemnize marriage
marriage, partition expired the month before and that the parties
and distribution of the properties of the do not belong
spouses and the to his congregation. After 5 years of married
delivery of their children's presumptive life and blessed
legitimes, which with 2 children, the spouses developed
shall be recorded in the appropriate Civil irreconcilable
Registry and differences, so they parted ways.
Registry of Property, otherwise the same shall While separated, Ric fell in love with Juliet,
not affect a 16 year-old
third persons and the subsequent marriage shall sophomore in a local college and a Seventh-
be null and Day Adventist.
void. (Arts. 52 and 53. Family Code) They decided to get married with the
consent of Juliet's
ALTERNATIVE ANSWER: parents. She presented to him a birth
2) Yes, they can. The subsequent marriage certificate showing she
contracted by is 18 years old. Ric never doubted her age
one of the parties will not give rise to bigamy much less the
even in the authenticity of her birth certificate. They got
absence of a court declaration of nullity of married in a
the first
 Catholic church in Manila. A year after, Juliet
marriage. The subsistence of a prior valid gave birth to
marriage is an
twins, Aissa and Aretha.
indispensable element of the crime of bigamy.
(1) What is the status of the marriage
The prior
between Gigi
court declaration of nullity of the first marriage and Ric — valid, voidable or void?
is required Explain. (2.5%)
by the Family Code only for the purpose of the SUGGESTED ANSWER: Even if the Minister's
validity of license
the subsequent marriage, not as an element of expired, the marriage is valid if either or both
the crime of Gigi and Ric
bigamy. believed in good faith that he had the legal
authority to
solemnize marriage. While the authority of the
solemnizing
Marriage; Void Marriages (2004) officer is a formal requisite of marriage, and at
A. BONI and ANNE met while working least one of
overseas. They the parties must belong to the solemnizing
became sweethearts and got engaged to be officer's church,
married on New the law provides that the good faith of the
Year’s Eve aboard a cruise ship in the parties cures the
Caribbean. They defect in the lack of authority of the
took the proper license to marry in New York solemnizing officer
City, where (Art. 35 par. 2, Family Code; Sempio-Diy, p.
there is a Filipino But as planned the 34; Rabuya, The
consulate. wedding Law on Persons and Family Relations, p.
ceremony was officiated by the captain of the 208).
Norwegian-
registered vessel in a private suite among selected The absence of parental consent despite
friends. their having
Back in Manila, Anne discovered that Boni married at the age of 18 is deemed cured by
their continued
had been cohabitation beyond the age of 21. At this
married in Bacolod City 5 years earlier but point, their
divorced in Oslo marriage is valid (See Art. 45, Family Code).
only last His first wife was also a Filipina
year. but now
based in Boni himself is a resident of What is the status of the marriage
Sweden. Norway (2) between Ric
where he and Anne plan to live
permanently. and Juliet — valid, voidable or void? (2.5%)
SUGGESTED ANSWER: The marriage between Juliet
Anne retains your services to advise her on and Ric
whether her is void. First of all, the marriage is a bigamous
marriage to Boni is valid under marriage not
Philippine law? Is there falling under Article 41 [Art. 35(4)Family
anything else she should do under the Code], A
circumstances? (5%) subsisting marriage constitutes a legal
impediment to re-
SUGGESTED ANSWER: marriage. Secondly, Juliet is below eighteen
If Boni is still a Filipino citizen, his legal years of age.
capacity is The marriage is void even if consented to
governed by Philippine Law (Art. 15 Civil by her parents
Code). Under

Page 34 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
[Art. 35(1), Family Code]. The fact that Ric was Under Article 213 of the Family Code, no
not aware child under 7
years of age shall be separated from the
of her real age is immaterial. mother unless the
court finds compelling reasons to order
otherwise.
(3) Suppose Ric himself procured the (1) Explain the rationale of this provision.
falsified birth (2.5%)
certificate to persuade Juliet to marry him SUGGESTED ANSWER:
despite her The rationale of the 2nd paragraph of Article
minority and assured her that everything
213 of the
is in order.
Family Code is to avoid the tragedy of a
He did not divulge to her his prior marriage
with Gigi. mother who sees
her baby torn away from her. It is said that
What action, if any, can Juliet take
the maternal
against him?
affection and care during the early years of
Explain. (2.5%) the child are
SUGGESTED ANSWER: Juliet can file an action for generally needed by the child more than
the paternal care
(Hontiveros v. IAC, G.R. No. 64982,
declaration of nullity of the marriage on the October 23, 1984;
ground that he Tolentino, Commentaries and Jurisprudence
willfully caused loss or injury to her in a on the Civil
manner that is Code, Volume One, pp. 718-719). The general
contrary to morals, good customs and public rule is that a
policy [Art. 21, child below 7 years old shall not be
New Civil Code]. She may also bring criminal separated from his
actions for mother due to his basic need for her loving
seduction, falsification, illegal marriage and care (Espiritu v.
bigamy against

Ric. C.A., G.R. No. 115640, March 15,1995).

(2) Give at least 3 examples of
(4) If you were the counsel for Gigi, what "compelling reasons"
action/s will which justify the taking away from
you take to enforce and protect her the mother's
interests? Explain. custody of her child under 7 years of age.
(2.5% (2.5%)
)
SUGGESTED ANSWER: I would file an action to declare SUGGESTED ANSWER:
the a. The mother is insane (Sempio-Diy,
marriage between Juliet and Ric null and void ab Handbook on
the Family Code of the Philippines, pp.
initio and
296-297);
for Ric's share in the co-ownership of that
marriage to be b. The mother is sick with a disease
that is com-
forfeited in favor and considered part of the
municable and might endanger the
absolute
health and life
community in the marriage between Gigi and Ric
[Arts. 148
& 147, Family Code]. I would also file an of the child;
c. The mother has been maltreating the
action for
child;
damages against Ric on the grounds that his acts
constitute
d. The mother is engaged in prostitution;
an abuse of right and they are contrary to law
e. The mother is engaged in adulterous
and morals,
causing damages to Gigi (See Arts 19, 20, 21, relationship;
New Civil
f. The mother is a drug addict;
Code)
g. The mother is a habitual drunk or an
.
alcoholic;

h. The mother is in jail or serving sentence.

Marriage; Void Marriages; Psychological
Incapacity (2002) Parental Authority; Special Parental
Authority; Liability of
Give a brief definition or explanation of
A. the term
“psychological incapacity” as a ground for the Teachers (2003)
declaration of If during class hours, while the teacher was
chatting with
nullity of a marriage. (2%) other teachers in the school corridor, a 7 year
old male pupil