Civil Law

full price of P25, 230, 000, were not delivered to XYZ

Corporation. XYZ Corporation filed a case for specific
PERSONS AND FAMILY RELATIONS
performance before the HLURB and a criminal case
charging respondent directors and officers of ABC _________________________________________________________________
Homes with non-delivery of titles in violation of
Section 25, in relation to Section 39, both of PERSONS AND PERSONALITY UNDER THE CIVIL CODE
Presidential Decree No. 957 before the OCP of Quezon _________________________________________________________________
City. The OCP suspended the filing of the criminal case
stating that the case pending in HLURB poses a A person is every physical or moral, real or juridical and
prejudicial question. XYZ Corporation alleges that legal being susceptible of rights and obligations or being
there is no prejudicial question between the two the subject of legal relations (Rabuya, 2006).
cases because prejudicial question only exists when
one case is civil and the other is criminal and the case Persons v. Things
pending before HLURB is an administrative one. Is the
argument of XYZ Corporation tenable? A person is the subject of legal relations
A thing is the object of legal relations
A: NO. The concept of a prejudicial question involves a
civil action and a criminal case. Yet, contrary to XYZ Personality is the aptitude to be the subject, active or
Corporation’s submission that there could be no passive, of juridical relations. One is a person, while one
prejudicial question to speak of because no civil action has personality (Rabuya, 2006).
where the prejudicial question arose was pending, the
action for specific performance in the HLURB raises a Kinds of persons
prejudicial question that sufficed to suspend the
proceedings determining the charge for the criminal 1. Natural – Human beings and have physical existence
violation of Section 2524 of Presidential Decree No. 957. 2. Juridical – Artificial persons and product of legal
This is true simply because the action for specific fiction
performance was an action civil in nature but could not be
instituted elsewhere except in the HLURB, whose Juridical capacity v. Capacity to act
jurisdiction over the action was exclusive and original.
JURIDICAL
According to SC, the action for specific performance in the BASIS CAPACITY TO ACT
CAPACITY
HLURB would determine whether San Miguel was legally Fitness to be the Power to do acts
entitled to demand the delivery of the remaining 20 TCTs, subject of legal with legal effect
while the criminal action would decide whether BF Definition relations (Art. (Art. 37).
Homes’ directors and officers were criminally liable for 37).
withholding the 20 TCTs. The resolution of the former
must obviously precede that of the latter, for the HLURB Inherent Through the
hold San Miguel property to be not entitled to the delivery (co-exists with fulfillment of
of the TCTs because lawyer did not have the authority to Acquisition the natural specific legal
represent BF Homes in the sale to his receivership having person). activities.
been terminated by the SEC, the basis for the criminal
liability for violation of Sec. 25 of PD 597 would Only through Through death and
evaporate, thereby negating the need to proceed with the Loss death. other causes.
criminal case (San Miguel Properties, Inc. v. Sec. Perez, G.R.
No. 166836, September 4, 2013). (BERSAMIN, J.)
Can exist Cannot exist w/o
In relation to without capacity juridical capacity.
the other to act.

None. Art. 38 (restriction)

Art. 39
Limitation (modification/
limitation),
among others.

A person is presumed to have capacity to act (Standard Oil

Co. v. Arenas, et al., G.R. No. L-5921, December 15, 1908).

Status

The status of a person is the legal condition or class to

which one belongs in a society (1 del Viso 32, 2 Sanchez
Roman 110).

22
 PERSONS AND FAMILY RELATIONS
Civil personality
It is merely the external manifestation of either juridical
capacity or capacity to act. Consequently, it may be
defined as the aptitude of being the subject of rights and
obligations (2 Sanchez Roman 114-147).
RESTRICTIONS ON CAPACITY TO ACT
Restrictions on capacity to act (M-I-D-I-P-C)(NCC, Art.
38)
1. Minority - State of a person who is under the age of
legal majority which is eighteen years of age;
2. Insanity – State of a person whose mental faculties
are diseased;
3. Deaf-mute – Lacking sense of hearing and the
inability to speak;
NOTE: Only deaf-mutes who do not know how to
write are declared by law incapable of giving consent.
The enumeration in Articles 38 and 39 is not exclusive.
There are others spread throughout the code(e.g.,a
lawyer cannot buy property in litigation) [NCC, Art. 1491
(5)].
BIRTH
Determination of personality
The Civil Code provides that birth determines personality,
but the conceived child shall be considered born for all
purposes that are favorable to it, provided it is born later
with the conditions specified in Art. 41 (Art. 40).(1999,
2003, 2008 BAR)
This provision has been superseded by Art. 5 of P.D. No.
603 (The Child and Youth Welfare Code), which declares
that the civil personality of the child shall commence from
the time of his conception, for all purposes favorable to
him, subject to the requirements of Art. 41.
Acquisition of personality through birth

4. Imbecility – State of a person who while advanced in
age has the mental capacity comparable to that of a
child between two and seven years of age;
5. Prodigality – A spendthrift or squanderer;
NOTE: Prodigality per se doesn’t automatically
modify or restrict a person’s capacity to act. There
must be a declaration thereof and be placed under
guardianship under the Rules on Special Proceeding.
6. Civil Interdiction – An accessory penalty imposed
upon an accused who is sentenced to a principal
penalty not lower than reclusion temporal.
GR: Actual/Permanent Personality– Personality begins
at birth, not at conception.
XPN: Presumptive/Temporary – The law considers the
conceived child as born (Conceptus pro natohabetur)
The provisional personality of a conceived child
(conceptus pro nato habetur) under Article 40, expressly
limits such provisional personality by imposing the
condition that the child should be subsequently born
alive: "Provided it be born later with the condition
specified in the following article" (Geluz v. CA, G.R. No. L-
16439, 20 July 1961).

NOTE: The following are the effects of civil “Born later in accordance with law” (1995, 1999, 2008
interdiction: BAR)

1. Deprivation of parental or marital authority; A foetus with an intra-uterine life of:

2. Deprivation of the right to be the guardian of the
person and property of a ward;
3. Deprivation of his property by act inter vivos; and
4. Deprivation of the right to manage one's
properties (Art. 34, RPC).
They do not exempt the incapacitated person from certain
obligations.
1. Less than 7 months – Must survive for at least 24
hours after its complete delivery from the maternal
womb.
2. At least 7 months – If born alive, it shall be
considered born even if it dies within 24 hours after
complete delivery.
Complete delivery

Circumstances that modify or limit capacity to act(FC, It means the cutting of the umbilical cord from the
Art. 39) mother’s womb.

1. Insanity; Provisional personality of a conceived child

2. Prodigality;
3. Age; A conceived child, although as yet unborn, has a limited
4. Imbecility; and provisional personality. Its personality is provisional
5. Deaf-Mute; because it depends upon the child being born alive later
6. Family Relations; under certain conditions.
7. Alienage
8. Trusteeship; Rights of the conceived child
9. Penalty;
10. Insolvency; and Since a conceived child has a provisional personality even
11. Absence. while inside the mother’s womb, it is entitled to the
following rights: (S-A-D)

23
 Civil Law
a. Right to Support
b. To receive Donations
c. To be Acknowledged (Rabuya, 2009)
Right to be acknowledged
A conceived child has the right to be acknowledged even
if it is still conceived. A child, upon being conceived,
becomes a bearer of legal rights and is capable of being
dealt with as a living person. The fact that it is yet unborn
is no impediment to the acquisition of rights provided it
be born later in accordance with law (De Jesus v. Syquia,
G.R. No. L-39110, November 28, 1933).
Although as yet unborn, it is given by law a provisional
personality of its own for all purposes favorable to it, as
explicitly provided in Article 40 of the Civil Code of the
Philippines (Qumiguing v. Icao, G.R. No. 26795, 31 July
1970).
DEATH
Civil personality ceases depending upon the
classification of persons
1. Natural persons – by death
2. Juridical persons – by termination of existence
Effect of death on civil personality
Death extinguishes civil personality. However, the rights
and obligations of the deceased are not necessarily
extinguished by his death (Pineda, 2009).
Rules to apply in case there is doubt as to who died
first
It depends on whether the parties are called to succeed
each other.
1. If successional rights are involved– Art. 43 of the
NCC: Survivorship Rule, and Rule 131, Sec. 3(kk):
Presumption of simultaneous deaths between
persons called to succeed each other, apply.
2. If no successional rights are involved – Rule 131,
Sec. 3 (jj) of the Rules of Court applies (Presumption
of survivorship).
NOTE: Both are to be applied only in the absence of facts.
---
Q: Jaime, who is 65, and his son, Willy, who is 25, died
in a plane crash. There is no proof as to who died first.
Jaime’s only surviving heir is his wife, Julia, who is
also Willy’s mother. Willy’s surviving heirs are his
mother, Julia, and his wife, Wilma. In the settlement of
Jaime’s estate, can Wilma successfully claim that her
late husband, Willy, had a hereditary share since he
was much younger than his father and therefore,
should be presumed to have survived longer?
A: NO, Wilma cannot successfully claim that Willy had a
hereditary share in his father’s estate.
24
Two persons “who are called to succeed each other” are
presumed to have died at the same time, in the absence of
proof as to which of them died first (NCC, Art. 43). This
presumption of simultaneous death applies in cases
involving the question of succession as between the two
who died, who in this case, are mutual heirs, being father
and son.
---
Q: Suppose, Jaime had a life insurance policy with his
wife Julia, and his son, Willy, as the beneficiaries. Can
Wilma successfully claim that one-half of the
proceeds should belong to Willy’s estate? (1998 BAR)
A: YES, Wilma can invoke the presumption of
survivorship and claim that one-half of the proceeds
should belong to Willy’s estate, under Rule 131, Sec.3 (jj),
par. 5, Rules of Court, as the dispute does not involve
succession.
Under this presumption, the person between the ages of
15 and 60 is deemed to have survived one whose age was
over 60 at the time of their deaths. The estate of Willy
endowed with juridical personality stands in place and
stead of Willy, as beneficiary.
---
COMPARISON OF ART. 43 AND RULE 131 OF THE
RULES OF COURT
SURVIVORSHIP RULE UNDER THE NEW CIVIL CODE
If there is doubt as to who died first between 2 or more
persons who are called to succeed each other, as to which
of them died first:
1. Burden of Proof: Whoever alleges the death of one
prior to the other has the burden of proving such
claim.
2. Absent such proof: Presumption is they died at the
same time. There shall be no transmission of
successional rights [Sec. 3(kk), Rule 131, Rules of
Court]. (1998, 1999, 2000, 2008, 2009 BAR)
Conditions in the application of the survivorship rule
It applies when the following conditions are present:
1. The parties are heirs to one another;
2. There is no proof as to who died first; and
3. There is doubt as to who died first.
PRESUMPTION ON SURVIVORSHIP UNDER THE
RULES OF COURT
Requisites
1. There are two or more persons;
2. They perish in the same calamity;
3. It is not shown who died first; and
4. There are no particular circumstances from which it
can be inferred that one died ahead of the other.
The presumption under the survivorship rule under the
Rules of Court is that the survivorship shall be determined
from the probabilities resulting from the strength and age
of the sexes according to the following rules:
 PERSONS AND FAMILY RELATIONS
Age/Sex of decedents at the time
Who presumed
of death
to have survived
Decedent A Decedent B
Under 15 Under 15 Older
Above 60 Above 60 Younger
Under 15
Under 15 Above 60
(younger)
Different sexes –
Above 15 BUT Above 15 BUT male
under 60 under 60 Same sex –
Older
Under 15 OR Between 15 and Between 15 and
over 60 60 60
NOTE: The statutory rules in the determination of
sequence of death do not absolutely apply in a case where
indirect and/or inferential evidence surrounding the
circumstances of the deaths exists.
Where there are facts, known or knowable, from which a
rational conclusion can be made, the presumption does
not step in, and the rule of preponderance of evidence
controls. It is the "particular circumstances from which
survivorship can be inferred" that are required to be
certain as tested by the rules of evidence (Joaquin v.
Navarro, G.R. No. L-5426, May 29, 1953).
---
Q: At the age of 18, Marian found out that she was
pregnant. She insured her own life and named her
unborn child as her sole beneficiary. When she was
already due to give birth, she and her boyfriend
Pietro, the father of her unborn child, were
kidnapped in a resort in Bataan. The military gave
chase and after one week, they were found in
abandoned hut in Cavite. Marian and Pietro were
hacked with bolos. Marian and the baby she delivered
were both found dead, with the baby’s umbilical cord
already cut. Pietro survived.
a. Can Marian’s baby be the beneficiary of the
insurance taken on the life of the mother?
b. Between Marian and the baby, who is presumed
to have died ahead?
c. Will Prieto, as surviving biological father of the
baby, be entitled to claim the proceeds of the life
insurance on the life of Marian? (2008 BAR)
A:
a) YES. An unborn child may be designated as the
beneficiary in the insurance policy of the mother. An
unborn child shall be considered a person for
purposes favorable to it provided it is born later in
accordance with the NCC. There is no doubt that the
designation of the unborn child as a beneficiary is
favorable to the child.
b) If the baby was not alive when completely delivered
from the mother’s womb, it was not born as a person,
then the question of whom between two persons
survived will not be an issue. The baby had an intra-
uterine life of more than 7 months, thus, it would be
considered born if it was alive at the time of its
complete delivery from the mother’s womb. We can
gather from the facts that the baby was completely
delivered. But whether or not it was alive has to be
proven by evidence.
25
If the baby was alive when completely delivered from
the mother’s womb, then it was born as a person and
the question of who survived as between the baby
and the mother shall be resolved by the provisions of
the Rules of Court on survivorship. This is because
the question has nothing to do with succession.
Obviously, the resolution of the question is needed
just for the implementation of an insurance contract.
Under Rule 13, Sec. 3, (jj), (5) as between the baby
who was under 15 years old and Marian who was 18
years old, Marian is presumed to have survived.
c) Since the baby did not acquire any right under the
insurance contract, there is nothing for Prieto to
inherit. Prieto is not married to Marian neither was
he named as the beneficiary of the insurance.
---
JURIDICAL PERSONS
Kinds of Juridical Persons
The following are the different kinds of 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 (NCC, Art.
44).
NOTE: Although the Catholic Church is not one of those
mentioned in Article 44, it is still considered as a juridical
person because of tradition (Barlin v. Ramirez, G.R. No. L-
2832, November 24, 1906).
Capacity of a Juridical Person
A juridical person can acquire and possess property of all
kinds as well as incur obligations and bring civil or
criminal actions, provided that they are in conformity
with the laws and regulations of their organization (NCC,
Art. 46).
DOMICILE AND RESIDENCE OF PERSON
Residence is a place of abode, whether permanent or
temporary.
Domicile denotes a fixed permanent place to which,
when absent, one has the intention of returning (Animus
Revertendi).
Domicile of natural persons
The place of habitual residence is the domicile of a natural
person for the exercise of civil rights and fulfillment of
civil obligations.
Domicile of juridical persons
1. The place fixed by the law creating or recognizing the
juridical person;
 Civil Law
2. In the absence thereof, the place where their legal some instances,
representation is established or where they exercise by themselves.
their principal functions. Contracting
Contracting
parties may be
parties must
Gender two or more
MARRIAGE UNDER FAMILY CODE only be two
requirement persons
_________________________________________________________________ persons of
regardless of
A special contract of permanent union between a man and opposite sexes.
sex.
a woman entered into in accordance with law for the Can be
establishment of conjugal and family life. It is the dissolved
foundation of the family and an inviolable social through express
institution whose nature, consequences, and incidents are provision of the
governed by law and not subject to stipulation, except that law, through
marriage settlements may fix the property relations expiration of
during the marriage within the limits provided by the the term for
Family Code (FC, Art. 1). Dissolved only which the
by death or contract was
NATURE OF MARRIAGE Dissolution by annulment, agreed upon,
agreement never by through
Marriage as an inviolable social institution mutual fulfillment of
agreement. the purpose for
Under the Constitution, “marriage, as an inviolable social which the
institution, is the foundation of the family and shall be contract was
protected by the State” (1987 Constitution, Art. XV, Sec. 2). entered into, or
by mutual
Marriage is an institution in which the community is agreement by
deeply interested. The State has surrounded it with the parties
safeguards to maintain its purity, continuity and concerned.
permanence. The security and stability of the State are
largely dependent on it. It is in the interest and duty of Evidence of Marriage
each member of the community to prevent the bringing
about of a condition that would shake its foundation and The best documentary evidence of a marriage is the
lead to its destruction. The incidents of the status are marriage contract. However, the failure to present it is
governed by law, not by will of the parties (Beso v. not, however, proof that no marriage took place, as other
Daguman, A.M. No. MTJ-99-1211, January 28, 2000). evidence may be presented to prove marriage (Balogbog
v. CA, G.R No. 83598, March 7, 1997).
Marriage as a status
The following may be presented as proof of marriage: (a)
As a status, the principle in contracts that the parties may, testimony of a witness to the matrimony (b) the couple’s
by mutual agreement, put an end to it, cannot certainly public and open cohabitation as husband and wife after
apply, for the consequences of the marriage as a rule are the alleged wedlock (c) the birth and baptismal certificate
fixed by law (Paras, 2016). of children born during such wedlock and (d) the mention
of such nuptial in subsequent documents (Sarmiento v. CA,
Marriage v. Ordinary contract G.R. No. 96740, March 25, 1999).

ORDINARY STATUS OF MARRIAGES

BASIS MARRIAGE
CONTRACT I. Valid
Special contract II. Void
Sui Generis Merely a III. Voidable
Nature contract contract
Social I. VALID MARRIAGES
institution
Law on Law on The requisites for a valid marriage are provided by
Governing Law
marriage contracts law.
GR: Not subject
to stipulation. The parties are The principle that the validity of a marriage is determined
Right of the free to stipulate by the law effective at the time of the celebration of the
parties to XPN: Property subject to marriage is further highlighted by the fact that, as general
stipulate relations in certain rule, the nature of the marriage already celebrated cannot
marriage limitations. be changed by a subsequent amendment to the law (Sta.
settlements. Maria, 2010).
Minors may
Capacity to Legal capacity contract thru ESSENTIAL REQUISITES OF A VALID MARRIAGE
contract is required. their parents or (1996, 2009 BAR)
guardians or in

26
 PERSONS AND FAMILY RELATIONS
1. Legal capacity of the contracting parties who must
be a male and a female;
2. Consent freely given in the presence of the
solemnizing officer (FC, Art. 2).
Legal capacity of the parties to marry
1. Age – at least 18 years of age
The attainment of the required minimum age for
marriage should be reckoned, not on the date of filing
of the application for issuance of a marriage license,
but on the date of the marriage. Pursuant to Article
6 of the same Code, parties may contract marriage on
the date of the solemnization of the marriage, i.e.,
when they appear personally before the solemnizing
officer and declare in the presence of not less than
two witnesses of legal age that they take each other
as husband and wife (Rabuya, 2009).
2. Sex – between male and female
Two females are incapable of entering into marriage.
There is no constitutional protection of the rights of
marriage between two persons of the same sex (Jones
v. Hallahan, November 9, 1973).
3. Lack of legal impediment to marry
The legal impediments which may affect legal
capacity are those mentioned in Articles 37 and 38 of
the Family Code. Thus, the contracting parties are not
legally capacitated to marry each other.
Other requirements needed for the validity of such
marriage depending upon the age of the contracting
party
ADDITIONAL
AGE
REQUIREMENTS
Parental consent and
18 to 21 years old
Marriage counseling
Parental advice and
22 to 25 years old
Marriage counseling
Absence of the additional requirement of parental
advice
It does not make the marriage void or voidable, it only
affects the release of the marriage license to be postponed
until (3) three months from the complete publication of
the application (FC, Art. 15).
FORMAL REQUISITES OF A VALID MARRIAGE
(1996, 2009 BAR) C-A-L
1. Marriage Ceremony
2. Authority of the solemnizing officer
3. Valid marriage License, except in a marriage of
exceptional character (FC, Art. 3).
EFFECT OF ABSENCE OF REQUISITES
27
Effect in the status of marriage (1995, 1996, 1999,
2008 BAR)
Status of Marriage in case of:
1. Absence of any of the essential requisites - Void ab
initio (FC, Art. 4).
2. Absence of any of the formal requisites – Void ab
initio(FC, Art. 4).
XPNs: Valid even in the absence of formal requisite:
a. Marriages exempt from license requirement
b. Either or both parties believed in good faith that
the solemnizing officer had the proper authority
[FC, Art. 35 (2)].
3. Defect in essential requisites – Voidable (FC, Art. 4).
4. Irregularity in formal requisites - Valid, but the party
responsible for such irregularity shall be civilly,
criminally or administratively liable (FC, Art. 4).
1. MARRIAGE CEREMONY
That which takes place with the:
1. Personal appearance of the contracting parties
before the solemnizing officer;
NOTE: There is no marriage ceremony if what
transpired was a mere private act of signing a
marriage contract by the contracting parties, without
the presence of the solemnizing officer (Morigo v.
People, G.R. No. 145226, February 6, 2004).
2. Their personal declaration that they shall take each
other as husband and wife; and
3. In the presence of not less than 2 witnesses of legal
age.
No particular form of ceremony or religious rite for
solemnization of the marriage is required by law (FC, Art.
6).
The declaration of consent need not be vocally expressed.
It can be shown by other manifestations or signs of
approval and consent. It is the agreement itself, and not
the form in which it is couched, which constitutes the
contract (Sta. Maria, 2010).
Common-law marriages are not recognized in the
Philippines
A common-law marriage, otherwise referred to as a live-
in relationship, is one where the man and the woman just
live together as husband and wife without getting married
(Paras, 2016).
Common-law marriages recognized in England and the
United States [of America] have never been and are not
still recognized in the Philippines (Enriquez v. Enriquez,
No. 3474, September 20, 1907).
Validity of marriage by proxy
It depends on the place of celebration of the marriage:
 Civil Law
1. If performed in the Philippines – No, it is not
allowed, hence the marriage is void.
Philippine laws prohibit marriages by proxy. Since
the marriage is performed in the Philippines,
Philippine laws shall apply following the principle of
lex loci celebrationis.
“If valid where celebrated, it is also valid here.” This
is the doctrine of “lex loci celebrationis”, the law of
the place of celebration (Paras, 2016).
2. If performed abroad – Whether it is allowed or not
depends upon the law of the place where the
marriage was celebrated (lex loci celebrationis).
As to marriages between Filipinos - all marriages
solemnized outside the Philippines, in accordance
with the laws enforced in said country where they
are solemnized, and valid there as such, shall also be
valid here in the country, except those prohibited
under Art. 35 (1), (2), (4), (5), (6), 36, 37 and 38 (FC,
Art. 26).
2. SOLEMNIZING AUTHORITY
Persons authorized to solemnize marriage (1994
1995, 1999 BAR)
The following are the persons authorized to solemnize
marriage depending upon the circumstances:
1. Under ordinary circumstances(FC, Art. 7):
a. Incumbent judiciary member – Provided,
within the court’s (his) jurisdiction.
NOTE: Where a judge solemnized a marriage
outside his court’s jurisdiction, this is a mere
irregularity in the formal requisite, which while
it may not affect the validity of the marriage,
may subject the officiating official to
administrative liability (Rabuya, 2009).
b. Priest, rabbi, imam or minister of any
church/religious sect duly authorized – by his
church or religious sect and registered with the
civil registrar general, acting within the limits of
the written authority granted him by his church
or religious sect –
Provided at least one of the parties belongs to
such church or religious sect.
c. Consul general, consul or vice-consul –
Provided both parties are Filipinos and marriage
takes place abroad in the country where the
consul holds office (FC, Art. 10).
d. Mayors (LGC, Arts. 444 and 445) – including
“Acting Mayor”
NOTE: From the time of the effectivity of the
Family Code (August 3, 1988) up to the time of
the effectivity of the Local Government Code
(January 1, 1992), mayors do not have the
authority to solemnize marriage.
2. Marriages in articulo mortis:
28
a. Ship captain or airplane chief – provided the
marriage is performed:
i. During voyage, even during stopovers
ii. Between passengers or crew members
(FC, Art. 31).
Such authority may be exercised not only while
the ship is at sea or the plane is in flight but also
during stop-overs at ports of call (Rabuya, 2009).
b. Military commander of a unit who is a
commissioned officer – provided the marriage is
performed (FC, Art. 32):
i. In absence of chaplain;
ii. Within zone of military operation;
iii. Between members of the armed forces or
civilians.
Duty of the solemnizing officer in a marriage in
articulo mortis
The solemnizing officer in a marriage in articulo mortis
after solemnizing such marriage 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 and that he
took the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of
a legal impediment to the marriage (FC, Art. 29).
Effect of solemnizing officer’s failure to execute an
affidavit
It will have no effect as to the validity of the marriage. The
marriage will still be valid.
The local civil registrar is given the original of the affidavit
which takes the place of a marriage license (Paras, 2016).
Such affidavit is not an essential or formal requisite of
marriage, the same with a Marriage Contract. The signing
of the marriage contract and the affidavit is only required
for the purpose of evidencing the act, not a requisite of
marriage. It is the obligation of the solemnizing officer. It
does not affect the validity of marriage (De Loria v. Felix,
G.R. No. L-9005, June 20, 1958).
Authorized venues of marriage
GR: Must be solemnized publicly within the jurisdiction of
the authority of the solemnizing officer:
a. Chambers of the judge or in open court;
b. Church, chapel or temple; or,
c. Office of the consul-general, consul or vice-consul
(FC, Art. 8).
XPNs:
1. Marriage at the point of death;
2. Marriage in remote places;
3. Marriage at a house or place designated by both of
the parties with the written request to the
solemnizing officer to that effect (FC, Art. 8).
 PERSONS AND FAMILY RELATIONS
NOTE: This provision is only directory, not mandatory.
The requirement that the marriage be solemnized in a
particular venue or a public place is not an essential
requisite for the validity of the marriage.
A marriage solemnized by a judge outside of his
jurisdiction is valid
Under Art. 3 of the FC, one of the formal requisites of
marriage is the "authority of the solemnizing officer."
Under Art. 7, marriage may be solemnized by, among
others, "any incumbent member of the judiciary within
the court's jurisdiction." Art. 8, which is a directory
provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority of
the solemnizing officer as provided in the preceding
provision. If there is defect in such requirement, the same
would not make the marriage void, but it merely subjects
the officer to criminal, civil, or administrative
responsibility (Navarro v. Domagtoy, A.M. No. MTJ-96-
1088, July 19, 1996).
NOTE: In case of a marriage solemnized by a mayor
outside of his territorial jurisdiction, LGC is silent on the
matter, hence the abovementioned case may be applied
by analogy.
Exception to the rule requiring authority of the
solemnizing officer
The exception to the rule requiring authority of the
solemnizing officer is when a marriage is contracted with
either or both parties believing in good faith that the
solemnizing officer had the authority to do so [FC, Art. 35
(2)].
3. MARRIAGE LICENSE
A marriage license is required in order to notify the public
that two persons are about to be united in matrimony and
that anyone who is aware or has knowledge of any
impediment to the union of the two shall make it known
to the local civil registrar.
The requirement and issuance of marriage license is the
State’s demonstration of its involvement and
participation in every marriage (Rabuya, 2009).
What is required is the marriage license, not the marriage
certificate. The latter is not an essential or formal
requisite; thus an oral solemnization is valid. In fact, a
marriage may be proved by oral evidence (Paras, 2016).
Validity of marriage license
The license shall be valid in any part of the Philippines for
a period of 120 days from the date of issue, and shall be
deemed automatically cancelled at the expiration of said
period if the contracting parties have not made use of it
(FC, Art. 20).
If the parties contracted marriage after the lapse of 120
days from the issuance of the marriage license, such
marriage shall be considered void for lack of marriage
license.
29
Effect of lack of parental advice
In case a party who is required by law to obtain parental
advice or undergo marriage counselling fails to do so, the
issuance of marriage license is suspended for 3 months
from the completion of publication of the application (FC,
Art. 15).
Status of marriages celebrated during the suspension
of the issuance of marriage license
The status of the marriage if the parties get married
within the said 3-month period depends:
1. If the parties did not obtain a marriage license –
the marriage shall be void for lack of marriage
license.
2. If the parties were able to obtain a marriage
license – the marriage shall be valid without
prejudice to the actions that may be taken against the
guilty party.
Persons authorized to issue the marriage license
The marriage license is issued by the local civil registrar
of the city or municipality where either contracting party
habitually resides (FC, Art. 9).
Obtaining a marriage license in a place other than where
either party habitually resides is a mere irregularity.
Requirement in the application for marriage license
Each of the contracting parties is required to file
separately a sworn application for the issuance of
marriage license, specifying the following:
1. Full name of the contracting party;
2. Place of birth;
3. Age and date of birth;
4. Civil status;
5. If previously married, how, when and where the
previous marriage was dissolved or annulled;
6. Present residence and citizenship;
7. Degree of relationship of the contracting parties;
8. Full name, residence and citizenship of the father;
9. Full name, residence and citizenship of the mother;
and
10. Full name, residence and citizenship of the guardian
or person having charge, in case the contracting
party has neither father nor mother and is under the
age of twenty-one years (FC, Art. 11).
FOREIGN NATIONAL
Additional requirement for foreign national
applicants
When either or both of the contracting parties are citizens
of a foreign country, it shall be necessary for them to
submit a certificate of legal capacity to contract marriage,
issued by their respective diplomatic or consular officials.
 Civil Law
Stateless persons or refugees from other country shall, in
lieu of the certificate of legal capacity herein required,
submit an affidavit stating the circumstances showing
such capacity to contract marriage (FC, Art. 21).
Marriage without the required certificate of legal
capacity to marry is valid
The status of the marriage celebrated on the basis of a
license issued without the required Certificate of Legal
Capacity is valid as this is merely an irregularity in
complying with a formal requirement of the law in
procuring a marriage license, which will not affect the
validity of the marriage (Garcia v. Recio, G.R. No. 138322,
October 2, 2001).
EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT
Marriages exempt from the license requirement
(MARCO)
1. Marriages among Muslims or members of ethnic
cultural communities – Provided they are solemnized
in accordance with their customs, rites or practices
(FC, Art. 33);
2. Marriages in Articulo mortis
a. In case either or both of the contracting parties
are at the point of death (FC, Art. 27);
b. Solemnized by a ship captain or airplane pilot
(FC, Art. 31);
c. Within zones of military operation (FC, Art. 32).
3. Marriages in Remote places (FC, Art. 28)
Remote Place - no means of transportation to enable
the party to personally appear before the local civil
registrar (Rabuya, 2009).
4. Marriages between parties Cohabiting for at least 5
years and without legal impediment to marry each
other (FC, Art. 34);
5. Marriages solemnized Outside the Philippines where
no marriage license is required by the country where
it was solemnized.
Requisites for the 5-year cohabitation as an exception
to the marriage license requirement (2002, 2008
BAR)
The requisites are:
1. Living together as husband and wife at least 5 years
before the marriage.
The 5 year period must be characterized by:
a. Exclusivity – the partners must live together
exclusively, with no other partners, during the
whole 5-year period.
b. Continuity– such cohabitation was unbroken.
NOTE: The period is counted from the date of
celebration of marriage. It should be the years
immediately before the day of the marriage.
2. No legal impediment to marry each other During the
period of cohabitation.
30
NOTE: The five-year period of cohabitation must
have been a period of legal union had it not been for
the absence of marriage.
3. Fact of absence of legal impediment must be Present
at the time of the marriage.
4. Parties must execute an Affidavit that they are living
together as husband and wife for 5 years and that
they do not have any impediment to marry.
5. Solemnizing officer must execute a Sworn statement
that he had ascertained the qualifications of the
parties and found no legal impediment to their
marriage (Manzano v. Sanchez, AM No. MTJ-00-1329,
March 8, 2001).
---
Q: Pepito was married to Teodulfa. Teodulfa was shot
by him resulting in her death. After 1 year and 8
months, he married Norma without any marriage
license. In lieu thereof, they executed an affidavit
stating that they had lived together as husband and
wife for at least five years and were thus exempt from
securing a marriage license.
a. What is the status of their marriage?
b. Would your answer be the same if Pepito was
separated in fact from Teodulfa?
A:
a) The marriage is void for lack of marriage license.
To be exempt from the license requirement under
the 5-year cohabitation rule, the cohabitation should
be in the nature of a perfect union that is valid under
the law but rendered imperfect only by the absence
of the marriage contract and is characterized by
continuity, that is, unbroken, and exclusivity,
meaning no third party was involved at anytime
within the 5 years. It should be a period of legal union
had it not been for the absence of the marriage.
In this case, Pepito and Norma are not exempt from
the marriage license requirement because at the time
of Pepito and Norma's marriage, it cannot be said
that they have lived with each other as husband and
wife for at least five years prior to their wedding day
because from the time Pepito's first marriage was
dissolved to the time of his marriage with Norma,
only about twenty months had elapsed.
b) YES, the marriage is still void. Even if they were
separated in fact, and thereafter both Pepito and
Norma had started living with each other that has
already lasted for five years, the fact remains that
Pepito had a subsisting marriage at the time when he
started cohabiting with Norma. It is immaterial that
when they lived with each other, Pepito had already
been separated in fact from his lawful spouse. The
subsistence of the marriage even where there was
actual severance of the filial companionship between
the spouses cannot make any cohabitation by either
spouse with any third party as being one as "husband
and wife" (Niñal v. Bayadog, G.R. No. 133778, March
14, 2000).
---
Q: Roderick and Faye were high school sweethearts.
When Roderick was 18 and Faye, 16 years old, they
 PERSONS AND FAMILY RELATIONS
started living together as husband and wife without
the benefit of marriage. When Faye reached 18 years
of age, her parents forcibly took her back and
arranged for her marriage to Brad. Although Faye
lived with Brad after the marriage, Roderick
continued to regularly visit Faye while Brad was away
at work. During their marriage, Faye gave birth to a
baby girl, Laica. When Faye was 25 years old, Brad
discovered her continued liaison with Roderick and
in one of their heated arguments, Faye shot Brad to
death. She lost no time in marrying her true love
Roderick, without a marriage license, claiming that
they have been continuously cohabiting for more
than 5 years. Was the marriage of Roderick and Faye
valid? (2008 BAR)
A: NO, the marriage is void because there was no
marriage license. Their marriage was not exempt from the
requisite of a marriage license because Roderick and Faye
have not been cohabiting for at least 5 continuous years
before the celebration of their marriage. Their lovers’
trysts and brief visitations did not amount to
“cohabitation”.
MARRIAGE CERTIFICATE
Marriage license v. Marriage certificate
BASIS MARRIAGE MARRIAGE
LICENSE CERTIFICATE
Authorization by Best evidence of
the state to the existence of the
Nature
celebrate marriage.
marriage.
Formal requisite Neither essential
Requisite
of marriage. nor formal
of
requisite of
Marriage
marriage.
Q: Guillermo and Josefa lived together as husband and
wife, but there is doubt as to whether they got
married, since no record of the marriage existed in
the civil registry but their relatives and friends
maintained that the two in fact married each other
and lived as husband and wife for more than half a
century. Is Guillermo married to Josefa?
A: They are presumed to be married. In this jurisdiction,
every intendment of the law leans toward legitimizing
matrimony. Persons dwelling together apparently in
marriage are presumed to be in fact married. This is the
usual order of things in society and, if the parties are not
what they hold themselves out to be, they would be living
in constant violation of the common rules of law and
propriety. Semper praesumitur pro matrimonio – always
presume marriage (Vda.De la Rosa v. Heirs of Vda. De
Damian, G.R. No. 103028, October 10, 1997).
Although a marriage contract is considered a primary
evidence of marriage, its absence is not
always proof that no marriage took place (Vda.De la Rosa
v. Heirs of Vda. De Damian, G.R. No. 103028, October 10,
1997).
---
EFFECT OF MARRIAGE CELEBRATED ABROAD AND
FOREIGN DIVORCE
31
Rules governing the validity of marriage (2002, 2004,
2006, 2009, 2010 BAR)
1. As to its extrinsic validity – Lex loci celebrationis
NOTE: Locus regit actum (the act is governed by the
law of the place where it is done) - is adhered to here
in the Philippines as regards the extrinsic validity of
marriage.
2. As to its intrinsic validity – Personal law
NOTE: Personal law may either be the national law
or the law of the place where the person is domiciled.
If the person involved is a stateless person,
domiciliary rule applies, otherwise, lex nationalii
applies.
The 1st paragraph of Article 26 of the Family Code (FC)on
the validity of foreign marriages applies, however, only to
Filipinos. Foreign marriages of foreigners or of a Filipino
and a foreigner are governed by the Rules on Conflict of
Laws (Sempio-Diy, 1995).
Marriages between Filipinos solemnized abroad in
accordance with the law in force in said country
GR: Marriages between Filipinos solemnized outside the
Philippines in accordance with the law of the foreign
country where it is celebrated, if valid there, shall be valid
here as such.
XPNs: It shall be void, even if it is valid in the foreign
country where the marriage was celebrated, if any of the
following circumstances are present:
1. Lack of legal capacity even with parental consent (e.g.
party is below 18);
2. Incestuous;
3. Contracted through Mistake of one party as to the
identity of the other;
4. Contracted following the annulment or declaration of
nullity of a previous marriage but Before partition,
etc.;
5. Bigamous or polygamous except as provided in Art.
41 FC on terminable bigamous marriages;
6. Void due to Psychological incapacity;
7. Void for reasons of Public policy.
Requirements to prove a foreign marriage
1. The existence of the pertinent provision of the
foreign marriage law.
2. The celebration or performance of the marriage in
accordance of said law.
Requirements for the application of par. 2 of Art. 26 of
the Family Code
1. It must be a case of mixed marriage (one party is
Filipino and the other is an alien);
2. The divorce must be obtained by the alien spouse and
not by the Filipino spouse; and
3. The divorce obtained by the alien spouse must
capacitate him or her to remarry (Rabuya, 2009).
 Civil Law
---
Q: Suppose in a valid mixed marriage the foreign
spouse obtained a divorce decree abroad and was
capacitated to remarry.
a. May the Filipino spouse remarry despite the fact
that divorce is not valid in the Philippines?
b. Will your answer be the same if it was a valid
marriage between Filipinos?
A:
a. YES, the Filipino spouse may remarry. Divorce
validly obtained abroad by the alien spouse
capacitating him/her to remarry will likewise allow
the Filipino spouse to remarry (FC, Art. 26, 2nd par.).
NOTE: Under the nationality principle embodied in
Art. 16 of the NCC, only Philippine nationals are
covered by the policy against absolute divorces, the
same being considered contrary to our concept of
public policy and morality. Nevertheless, aliens may
obtain divorces abroad which may be recognized in
the Philippines, provided they are valid according to
their national law (Van Dorn v. Romillo, Jr., G.R. No. L-
68470, October 8, 1985).
b. It depends. What is material in this case is the
citizenship of the spouse who obtained a divorce
decree abroad at the time the decree was obtained and
not their citizenship at the time the marriage was
celebrated. If the Filipino spouse was naturalized as a
citizen of a foreign country before he/she obtains a
divorce decree and was thereafter capacitated to
remarry, the Filipino spouse will be capacitated to
remarry (Republic v. Orbecido, G.R. No. 154380, October
5, 2005).
---
Q: A Filipina was married to an American who
obtained a divorce decree in the U.S. When the
Filipina came back to the Philippines and started her
business, the American followed suit and wanted to
enforce his rights over the Filipina to the extent of
claiming his rights to administer the properties of the
woman, contending that they are still married. He
also claimed hereditary rights. Is he correct? Why?
A: NO, the divorce in the U.S. released the Filipina from
the marriage. Thus, pursuant to American law, he is no
longer the husband of the Filipina. He would therefore
have no standing to sue the Filipina (Van Dorn v. Romillo,
Jr., G.R. No. L-68470, October 8, 1985).
---
Burden of proof in recognition of foreign divorce
Burden of proof lies with "the party who alleges the
existence of a fact or thing necessary in the prosecution or
defense of an action." Since the divorce was a defense
raised by respondent, the burden of proving the pertinent
foreign law validating it falls squarely upon him. Courts
cannot take judicial notice of foreign laws. The power of
judicial notice must be exercised with caution, and every
reasonable doubt upon the subject should be resolved in
the negative (Garcia v. Recio, G.R. No. 138322, October 2,
2001).
The naturalization of one of the parties, as well as the
32
divorce decree obtained by him or her, must be proven as
a fact under our rules on evidence. The foreign law under
which the divorce was obtained must likewise be proven
as our courts cannot take judicial notice of foreign laws
and judgments; hence, like any other facts, both the
divorce decree and the national law of the alien must be
alleged and proven according to our law on evidence
(Garcia v. Recio, G.R. No. 138322, October 2, 2002).
However, if the Filipino spouse remained to be a citizen of
the Philippines when he/she obtained a divorce decree
abroad, such decree will not be recognized in the
Philippines even if that spouse is subsequently
naturalized as a citizen of a foreign country because at the
time the spouse obtained the divorce decree, he/she was
still a citizen of the Philippines and being naturalized
afterwards does not cure this defect (Republic v. Iyoy, G.R.
No. 152577, September 21, 2005).
---
Q: If a foreigner who was divorced seeks to obtain a
marriage license in the Philippines, what should he
do?
A: The applicant for marriage license has to prove his legal
capacity. If the marriage was dissolved by reason of
divorce, he has to file a sworn statement as to how the
marriage was dissolved (FC, Art. 11) and furnish the local
civil registrar with the judgment (FC, Art. 13) and must
register the same with the local civil registrar to bind
third persons (FC, Art. 52).
NOTE: Without the divorce decree and foreign law as part
of the evidence, the Court cannot rule on the issue of
whether petitioner has the personality to file the petition
for declaration of nullity of marriage. After all, petitioner
may have the personality to file the petition but the
divorce decree obtained was a limited divorce or a mensa
et thoro or the foreign law may restrict remarriage even
after the divorce decree becomes absolute (Garcia v.
Recio, G.R. No. 138322, October 2, 2002).
II. VOID MARRIAGES
Marriages that are void ab initio(1993, 2004, 2005,
2006 BAR)
1. Solemnized without License, except those marriages
that are exempt from the license requirement;
2. Absence of any of the essential or formal requisites
of marriage;
3. 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;
4. Contracted through Mistake of one of the contracting
parties as to the identity of the other;
5. Bigamous or polygamous marriages not falling under
Article 41 of the Family Code or those allowed under
special laws such as the Muslim Code;
6. Marriages contracted by any party below 18 years of
age even with the consent of parents or guardians;
7. Marriages contracted by any party, who at the time
of the celebration of the marriage, was
Psychologically incapacitated, even if such incapacity
 PERSONS AND FAMILY RELATIONS
becomes manifest only after its solemnization (FC,
Art. 36);
8. Incestuous Marriages (FC, Art. 37);
9. Marriages declared void because they are contrary to
Public policy (FC, Art. 38);
10. Subsequent marriages which are void under Art. 53;
11. Marriages in jest; and
“Marriages in jest is a pretended one, legal in form
but entered as a joke, with no real intentions of
entering into the actual marriage status, and with a
clear understanding that the parties would not be
bound (Republic of the Philippines v. Albios, G.R. No.
198780, October 16, 2013).
12. Common-law marriages
1. ABSENCE OF ANY ESSENTIAL OR FORMAL
REQUISITES OF MARRIAGE
Marriage between Filipinos who are of the same sex is
VOID
For a marriage to be valid, it must be between persons of
opposite sexes.
Although gay marriages are definitely not covered within
the purview of Article 2 of the Family Code, the emerging
issue of transsexuals and intersexual gender identities
have called the attention of the Supreme Court in the
cases of Silverio v. Republic (G.R. No. 174689, October 22,
2007) and Republic v. Cagandahan (G.R. No. 166676,
September 125, 2008), respectively (Sta. Maria, 2010).
---
Q: In case of a change in sex, can the person who has
undergone said change be allowed to marry another
of the same sex as he/she originally had? (2014 BAR)
A: It depends upon the cause for the change in sex.
1. If the change is artificial – No, he/she cannot.
The sex or gender at the time of birth shall be taken
into account. He is still, in the eyes of the law, a man
although because of the artificial intervention, he
now has the physiological characteristics of a woman
(Silverio v. Republic, G.R. No. 174689, October 22,
2007).
2. If the change is natural – He/she can. Ex.
Hermaphrodite, Congenital Adrenal Hyperplasia
---
Q: Jennifer was registered as a female in her
Certificate of Live Birth. In her early years, she
suffered from clitoral hypertrophy and was found out
that her ovarian structures had minimized. She also
alleged that she has no breasts or menstruation. She
was
diagnosed to have Congenital Adrenal Hyperplasia
(CAH) a condition where persons thus afflicted
possess secondary male characteristics because of
too much secretion of androgen. She then alleged that
for all interests and appearances as well as in mind
and emotion, she has become a male person. What is
Jennifer’s gender or sex?
33
A: MALE. Where the person is biologically or naturally
intersex the determining factor in his gender
classification would be what the individual, having
reached the age of majority, with good reason thinks of
his/her sex. Jennifer here thinks of himself as a male and
considering that his body produces high levels of
androgen, there is preponderant biological support for
considering him as being male. Sexual development in
cases of intersex persons makes the gender classification
at birth inconclusive. It is at maturity that the gender of
such persons is fixed (Republic v. Jennifer Cagandahan,
G.R. No. 166676, September 12, 2008).
---
Marriage where one or both of the parties are below
18 years of age is VOID
Such marriage is void for lack of legal capacity even if the
parents consented to such marriage (Sempio-Dy, 1995).
Validity of the marriage if it is a mixed marriage
where the Filipino is 18 years old but the foreigner is
below 17 years of age
If the national law of the foreigner recognizes 17 year old
persons to be capacitated to marry, then their marriage is
valid, otherwise it is void.
Effect of lack of authority of solemnizing officer
GR: The marriage is void ab initio.
XPNs:
1. Express- If either or both parties believed in good
faith that the solemnizing officer had the legal
authority to do so (FC, Art. 35).
2.
3. Implied - Article 10 in relation to Article 26 of the
Family Code. If the marriage between a foreigner and
a Filipino citizen abroad solemnized by a Philippine
consul assigned in that country is recognized as valid
in the host country, such marriage shall be
considered as valid in the Philippines (Sta. Maria,
2010).
---
Q: Judge Palaypayon solemnized marriages even
without the requisite of marriage license. Thus, some
couples were able to get married by the simple
expedient of paying the marriage fees. As a
consequence, their marriage contracts did not reflect
any marriage license number. In addition, the judge
did not sign their marriage contracts and did not
indicate the date of the solemnization, the reason
being that he allegedly had to wait for the marriage
license to be submitted by the parties. Such marriage
contracts were not filed with the Local Civil Registry.
Are such marriages valid?
A: NO. A valid marriage license is necessary for the
validity of marriage, except in the cases provided for
therein. The absence of any of the essential or formal
requisites shall generally render the marriage void ab
initio(Cosca v. Palaypayon, A.M. No. MTJ-92-721,
September 30, 1994).
---
Mistake to render the marriage void
 Civil Law
For marriage to be rendered void, the mistake in identity
must be with reference to the actual physical identity of
other party, not merely a mistake in the name, personal
qualifications, character, social standing, etc (Rabuya,
2009).
2. PSYCHOLOGICAL INCAPACITY
Psychological incapacity is “no less than a mental (not
physical) incapacity that causes a party to be truly
(cognitive) of the basic marital covenants that
concomitantly must be assumed and discharged by the
parties to the marriage which include their mutual
obligations to live together, observe love, respect, fidelity,
and to render help and support” (Republic of the
Philippines v. Iyoy, G.R. No. 152577, September 21, 2005).
Psychological incapacity does not refer to mental
incapacity tantamount to insanity. (Paras, 2016) Clearly,
the ground is restricted to psychological incapacity to
“comply with the essential marital obligations” (Sta.
Maria, 2010).
In such case, the spouse declared to be psychologically
incapacitated cannot be held liable to pay moral damages
to the other spouse based on Articles 2217 and 21 of the
NCC, which connotes (willfulness) of the acts complained
of, if the same acts constitutive of the psychological
incapacity were to be made the basis for the award of
moral damages. It is contradictory to characterize acts as
a product of psychological incapacity, and hence beyond
the control of the party because of an innate inability,
while at the same time considering the same set of acts as
willful (Rabuya, 2009).
Determination is left solely with the courts on a case-
to-case basis
Determination of psychological incapacity “depends on
the facts of the case. Every court should approach the
issue of nullity “not on the basis of a priori assumptions,
predilections or generalizations, but according to its own
facts” in recognition of the verity that no case would be on
“all fours” with the next one in the field of psychological
incapacity as a ground for the nullity of marriage; hence,
every “trial judge must take pains in examining the factual
milieu and the appellate court must, as much as possible,
avoid substituting its own judgment for that of the trial
court.
By the very nature of Article 36 of the Family Code, courts,
despite having the primary task and burden of decision-
making, must not discount but, instead, must consider as
decisive evidence the expert opinion on the psychological
and mental temperaments of the parties (Kalaw v.
Fernandez, G.R. No. 166357, January 15, 2015).
Requisites of Psychological Incapacity (1996, 1997,
2002, 2006 BAR)
a. Juridical antecedence– Must be rooted in the history
of the party antedating the marriage, although overt
manifestations may arise only after such marriage.
34
b. Gravity – Grave enough to bring about the disability
of the party to assume the essential marital
obligations.
c. Permanence or incurability – Must be incurable. If
curable, the cure should be beyond the means of the
parties involved.
Proof of Psychological Incapacity
The root cause of psychological incapacity must be:
a. Medically or clinically identified;
b. Alleged in the complaint;
c. Sufficiently proven by experts; and
d. Clearly explained in the decision.
NOTE: Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
The physician’s examination is not required in
establishing psychological incapacity as ground for
declaration of nullity
If the totality of evidence presented is enough to sustain a
finding of psychological incapacity, physician’s
examination of the person concerned need not be
resorted to (Marcos v. Marcos, G.R. No. 136490, October 19,
2000; Glenn Viñas v. Mary Grace Parel-Viñas, G.R. No.
208790, January 21, 2015).
Guidelines set by the Court to aid it in its disposition
of cases involving psychological incapacity
In the case of Republic of the Philippines v. Court of
Appeals and Molina, the Supreme Court enumerated the
following guidelines in invoking and proving
psychological incapacity under Article 36 of the Family
Code:
1. Burden of proof to show the nullity of the marriage
belongs to the plaintiff;
2. The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by experts and
(d) clearly explained in the decision;
3. The incapacity must be proven to be existing at “the
time of the celebration” of the marriage;
4. Such incapacity must also be shown to be medically
or clinically permanent or incurable;
5. Such illness must be grave enough to bring about the
disability of the party to assume the essential
obligations of marriage;
6. The essential marital obligations must be those
embraced by Arts. 68 up to 71 of the FC as regards
the husband and wife, as well as Arts. 220, 221 and
225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by
evidence and included in the text of the decision;
7. Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive,
should be given great respect by our courts;
8. The trial court must order the prosecuting attorney
or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed
 PERSONS AND FAMILY RELATIONS
down unless the Solicitor General issues a
certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition
(Republic of the Philippines v. Court of Appeals and
Molina, G.R. No. 108763, February 13, 1997; Danilo A.
Aurelio v. Vide Ma. Corazon P. Aurelio, G.R. No. 175367,
June 6, 2011).
NOTE: In Republic v. Quintero-Hamano, the SC held that
these guidelines may not be relaxed just because the
spouse alleged to be psychologically incapacitated
happens to be a foreign national. The norms used for
determining psychological incapacity should apply to any
person regardless of nationality because the rules were
formulated on the basis of studies of human behavior in
general (Rabuya, 2009).
In Marcos v. Marcos, the SC held categorically that
psychological incapacity “may be established by the
totality of evidence presented” and that “there is no
requirement that the respondent should be examined by
a physician or a psychologist as a condition sine qua non
for such declaration” (Marcos v. Marcos, G.R. No. 136490,
October 19, 2000).
Instances where allegations of psychological
incapacity were not sustained
1. Mere showing of irreconcilable differences and
conflicting personalities (Carating-Siayngco v.
Siayngco, G.R. No. 158896, October 27, 2004).
Mere sexual infidelity or perversion do not by
themselves constitute psychological incapacity, as
well as immaturity and irresponsibility.
NOTE: It must be shown that these acts are
manifestations of a disordered personality which
would make respondent completely unable to
discharge the essential obligations of a marital state,
not merely youth, immaturity or sexual promiscuity
(Dedel v. CA, G.R. No. 151867, January 29, 2004).
2. Disagreements regarding money matters (Tongol v.
Tongol, G.R. No. 157610, October 19, 2007)
3. Mere abandonment
NOTE: To constitute psychological incapacity, it
must be shown that the unfaithfulness and
abandonment are manifestations of a disordered
personality that completely prevented the erring
spouse from discharging the essential marital
obligations (Republic of the Philippines v. Cesar
Enselan, G.R. No. 170022, January 9, 2013).
4. Sexual infidelity (Republic v. Dagdag, G.R No. 109975,
February 9, 2001)
5. Living an adulterous life when specific evidence was
shown that promiscuity as a trait already existing at
the inception of marriage (Baccay v. Baccay, G.R. No.
173138, December 1, 2010)
---
35
Q: A and B were married. They have four (4) children.
A, the husband, had an affair with C, who gave birth to
a child. After 12 years of marriage, B left the conjugal
home and her 4 children with A. Now, A started living
with C. Nine years since the de facto separation from
B, A filed a petition for declaration of nullity of
marriage based on Article 36 of the Family Code. A
psychologist and a canon law expert testified that B,
were indeed psychologically incapacitated alleging
that she may reflect a narcissistic personality
disorder with her sexual infidelity, habitual mahjong
playing, and her frequent night-out with friends. They
based their diagnosis on an interview with the family
relative of B and statements made by their own son. Is
the marriage of A and B void on the ground of
psychological incapacity?
A: YES. The Court held that B was indeed psychologically
incapacitated as they relaxed the previously set forth
guidelines with regard to this case. Article 36 of the
Family Code must not be so strictly and too literally read
and applied given the intendment of the drafter to adopt
its enacted version of “less specificity” obviously to enable
“some resiliency in its application.” Expert opinion
considered as decisive evidence as to psychological and
emotional temperaments. The long-term effects of the
respondent’s obsessive mahjong playing surely impacted
her family life particularly on her very young children.
Her willfully exposing her children to the culture of
gambling on every occasion of her mahjong sessions was
a very grave and serious act of subordinating their needs
for parenting to the gratification of her own personal and
escapist desires. The respondent revealed her wanton
disregard for her children’s moral and mental
development. This disregard violated her duty as a parent
to safeguard and protect her children (Kalaw v.
Fernandez, G.R. No. 166357, January 14, 2015)
(BERSAMIN, J.).
---
Q: Would the state of being of unsound mind or the
concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism be considered indicia of
psychological incapacity, if existing at the inception of
marriage? (2002 BAR)
A: The state of being of unsound mind, the concealment of
drug addiction, habitual alcoholism, lesbianism or
homosexuality may be indicia of psychological incapacity,
depending on the degree of severity of the disorder.
However, the concealment of drug addiction, habitual
alcoholism, lesbianism or homosexuality is a ground of
annulment of marriage (Santos v. CA, G.R. No. 112019,
January 4, 1995).
---
Q: Art. 36 of the FC 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.
a. Nagger
b. Gay or Lesbian
c. Congenital sexual pervert
 Civil Law
d. Gambler
e. Alcoholic (2006 BAR)
A: B and C. They may serve as indicia of psychological
incapacity, depending on the degree and severity of the
disorder (Santos v. CA, G.R. No. 112019, January 4, 1995). If
the condition of homosexuality, lesbianism or sexual
perversion, existing at the inception of the marriage, is of
such a degree as to prevent any form of sexual intimacy,
any of them may qualify as a ground for psychological
incapacity. The law provides that the husband and wife
are obliged to live together, observe mutual love, respect
and fidelity (FC, Art. 68).
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).
---
3. INCESTUOUS MARRIAGES
a. Between ascendants and descendants of any degree;
b. Between brothers and sisters whether of the full or
half-blood (FC, Art. 37).
NOTE: Regardless of whether the relationship between
the parties is legitimate or illegitimate.
Void marriages by reason of public policy (1999,
2007, 2008 BAR)
Marriages between:
1. Collateral blood relatives (legitimate or Illegitimate)
up to the 4th civil degree;
2. Step-parents & step-children;
3. Parents-in-law & children-in-law;
NOTE: The prohibition under Nos. 2 and 3 applies
even after the termination of the marriage which is
the very source of the relationship by affinity,
regardless of the cause of such termination.
4. Adopting parent & the adopted child;
5. Surviving spouse of the adopting parent & the
adopted child;
6. Surviving spouse of the adopted child & the adopter;
7. Adopted child & legitimate child of the adopter;
8. Adopted children of the same adopter;
9. Parties where one, with the intention to marry the
other, kills the latter’s spouse, or his/her spouse (FC,
Art. 38).
NOTE: The list is EXCLUSIVE. If not falling within this
enumeration, the marriage shall be valid. Such as
marriages between:
i. Adopted and Illegitimate child of the adopter;
ii. Step brother and step sister;
iii. Brother-in-law and sister-in-law;
iv. Parties who have been guilty of adultery or
concubinage.
36
---
Q: Amor gave birth to Thelma when she was 15 years
old. Thereafter, Amor met David and they got married
when she was 20 years old. David has a son, Julian,
with his ex-girlfriend Sandra. Can Julian and Thelma
get married? (2007 BAR)
A: The marriage between stepbrother and stepsister is
void. However, under the FC, the marriage may be valid.
---
4. SUBSEQUENT MARRIAGE
---
Q: If a person contracts a subsequent marriage during
the subsistence of a prior marriage, what is the status
of the subsequent marriage? (1992, 2005, 2008 BAR)
A: GR: Void for being bigamous or polygamous, even if
celebrated abroad and valid there as such.
XPN: Valid if it is a terminable bigamous marriage.
---
Bigamous Marriage
Bigamy - When a person contracts a second or subsequent
marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared
presumptively dead by means of judgment rendered in
the proper proceedings (RPC, Art. 349).
NOTE: The same applies to polygamy.
A subsequent void bigamous marriage contemplates a
situation where such subsequent marriage was
contracted at the time when the first marriage, which is
valid in all respects, was still subsisting. A void bigamous
marriage therefore involves a situation where the first
marriage is not void but completely valid or at least
annullable (Sta. Maria, 2010).
If the first marriage is void and a party to that first
marriage subsequently remarries without obtaining a
judicial declaration of nullity of the first marriage, the
subsequent marriage is likewise void. It is void not
because it is bigamous but because it failed to comply with
the requirements under Article 40 in relation to Articles
52 and 53 of the Family Code (Valdes v. RTC, G.R. No.
122749, July 31, 1996).
---
Q: Arnold, a Filipino, and Britney, an American, both
residents of California, decided to get married in their
local parish. Two years after their marriage, Britney
obtained a divorce in California. While in Boracay,
Arnold met Jenny, a Filipina, who was vacationing
there. Arnold fell in love with her. After a brief
courtship and complying with all the requirements,
they got married in Hong Kong to avoid publicity, it
being Arnold’s second marriage. Is his marriage with
Jenny valid? (2006 BAR)
A: YES. The marriage will not fall under Art. 35(4) of the
Family Code on bigamous marriages provided that
Britney obtained an absolute divorce, capacitating her to
remarry under her national law. Consequently, the
marriage between Arnold and Jenny may be valid as long
 PERSONS AND FAMILY RELATIONS
as it was solemnized and valid in accordance with the
laws of Hong Kong.
---
Q: May a person contract a valid subsequent marriage
before a first marriage is declared void ab initio by a
competent court?
A: NO. A judicial declaration of nullity is required before a
valid subsequent marriage can be contracted; or else,
what transpires is a bigamous marriage, reprehensible
and immoral (FC, Art. 40; In re: Salvador v. Serafico, A.M.
2008-20-SC, March 15, 2010).
---
NOTE: Before one can contract a second marriage on the
ground of nullity of the first marriage, there must first be
a final judgment declaring the first marriage void (FC, Art.
40). If a party fails to secure a judicial declaration of nullity
of the first marriage, he or she runs the risk of being
charged with bigamy as the marital bond or vinculum in
the first nuptial subsists (Mercado v. Tan, G.R. No. 137110,
August, 2000; Te v. CA, G.R. No. 126746, November 29,
2009).
Special cases when subsequent marriage is allowed
1. Marriage between a Filipino and a foreigner and
procurement by the alien spouse of a valid divorce
decree abroad, capacitating him/her to remarry.
2. Terminable bigamous marriages (FC, Art. 41)
Requisites for validity of subsequent marriage under
Art. 41 under the Family Code (B-A-D)
Before the celebration of the subsequent marriage:
1. The Absent spouse had been absent for 4 consecutive
years (ordinary absence) or 2 consecutive years
(extra-ordinary absence);
2. The present spouse has a well-founded Belief that
the absent spouse is already dead;
3. There is judicial Declaration of presumptive death in
a summary proceeding in accordance with Article
253 of the Family Code.
NOTE: If both spouses of subsequent marriage acted in
bad faith, such marriage is void ab initio.
Requisites for issuance of judicial declaration of
presumptive death
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of
death under the circumstances laid down in Article
391 of the New Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has well-founded belief that
the absentee is dead;
4. That the present spouse files a summary proceeding
for the declaration of presumptive death of the
absentee (Republic of the Philippines v. Nolasco, G.R.
No. 94053, March 17, 1993).
The requirement for a judgment of the presumptive death
of the absent spouse is for the benefit of the spouse
37
present because she could be charged and convicted of
bigamy if the defense of good faith based on mere
testimony is found incredible. It is also for the protection
of the State. The law regulating civil marriages are
necessary to serve the interest, safety, good order,
comfort or general welfare of the community and the
parties can waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered society
by encouraging stable relationships over transient ones;
it enhances the welfare of the community (Eduardo
Manuel v. People, G.R. No. 165842, November 29, 2005).
Finality of judicial declaration of presumptive death
GR: The order of the trial court granting the petition for
judicial declaration of presumptive death under Article 41
of the Family Code is immediately final and executory by
the express provision of Article 247 of the Family Code
(Republic of the Philippines v. Bermudez-Lorino, G.R. No.
160258, January 19, 2005).
XPN: Under Article 41 of the Family Code, the losing party
in a summary proceeding for the declaration of
presumptive death may file a petition for certiorari with
the CA on the ground that, in rendering judgment thereon,
the trial court committed grave abuse of discretion
amounting to lack of jurisdiction. From the decision of the
CA, the aggrieved party may elevate the matter to this
Court via a petition for review on certiorari under Rule 45
of the Rules of Court (Republic of the Philippines v. Yolanda
Cadacio Granada, G.R. No.187512, June 13, 2012).
The declaration of presumptive death is without
prejudice to the effect of reappearance of the absent
spouse (Sta. Maria, 2010). The declared presumption will
still only be prima facie, and can be overthrown by
evidence (People v. Archilla, G.R. No. L-15632, February 28,
1961).
Effect if both parties in the subsequent marriage
under Article 41 acted in bad faith
1. The subsequent marriage is void ab initio.
2. All donations propter nuptias made by one in favour
of the other are revoked by operation of law.
3. All testamentary dispositions made by one in favour
of the other are revoked by operation of law.
4. The parties shall be liable for the crime of bigamy
(Rabuya, 2009).
Termination of Subsequent Bigamous Marriage
The recording of the affidavit of reappearance of the
absent spouse in the civil registry of the residence of the
parties to the subsequent marriage shall automatically
terminate the terminable bigamous marriage
(subsequent marriage) unless there is a judgment
annulling the previous marriage or declaring it void ab
initio (FC, Art. 42).
In Art. 42, no judicial proceeding to annul a subsequent
marriage contracted under Art. 41 is necessary. Also, the
termination of the subsequent marriage by affidavit
provided for in Art. 42 does not preclude the filing of an
action in court to prove the reappearance of the absentee
 Civil Law
and obtain a declaration of dissolution or termination of
the subsequent marriage (SSS v. Jarque Vda. De Bailon, G.R.
No. 165545, March 24, 2006).
---
Q: Gregorio married Janet. When he was employed
overseas, he was informed that Janet left. Five years
later, he filed an action for her to be declared
presumptively dead without alleging that he wishes
to remarry. Will his action prosper?
A: NO. A petition to declare an absent spouse
presumptively dead may not be granted in the absence of
any allegation that the spouse present will remarry
(Republic v. Nolasco, G.R. No. 94053, March 17, 1993).
---
Q: What is the effect if the parties to the subsequent
marriage obtains knowledge that the spouse absent
has reappeared?
A: NONE. If the absentee reappears, but no step is taken
to terminate the subsequent marriage, either by affidavit
or by court action, such absentee's mere reappearance,
even if made known to the spouses in the subsequent
marriage, will not terminate such marriage (SSS v. Jarque
Vda. De Bailon, G.R. No. 165545, March 24, 2006).
Any interested party of the parties, including the parents,
their children, the present spouse, or the subsequent
spouse of the present spouse, may file the sworn
statement of reappearance of the spouse who was absent
(Sta. Maria, 2010).
---
Q: RTC declared Celerina presumptively dead after
her husband, Ricardo, had filed a petition for
declaration of absence or presumptive death for the
purpose of remarriage on June 15, 2007.
Subsequently, Ricardo remarried.
Celerina claimed that she learned about Ricardo’s
petition only sometime in October 2008 when she
could no longer avail the remedies of new trial,
appeal, petition for relief, or other appropriate
remedies. Thereafter, on November 17, 2008, she filed
a petition for annulment of judgment before the CA on
the grounds of extrinsic fraud and lack of jurisdiction.
She argued that she was deprived her day in court
when Ricardo, despite his knowledge of her true
residence, misrepresented to the court that she was a
resident of Tarlac City when, in fact, she never resided
there. As a result of Ricardo’s misrepresentation, she
was deprived of any notice of and opportunity to
oppose the petition declaring her presumptively
dead. The CA dismissed Celerina’s petition for
annulment of judgment for being a wrong mode of
remedy and ruled that the proper remedy was to file
a sworn statement before the civil registry, declaring
her reappearance in accordance with Article 42 of the
Family Code. Was the CA correct?
A: NO. Mere filing of an affidavit of reappearance would
not suffice for the purpose of terminating the subsequent
marriage and also of nullifying the effects of the
declaration of presumptive death and the subsequent
marriage. Celerina does not admit to have been absent.
She also seeks not merely the termination of the
38
subsequent marriage but also the nullification of its
effects.
A subsequent marriage contracted in bad faith, even if it
was contracted after a court declaration of presumptive
death, lacks the requirement of a well-founded belief that
the spouse is already dead; the first marriage will not be
considered as validly terminated. Hence, Celerina’s choice
to file an action for annulment of judgment is the proper
remedy as annulment of judgment is the remedy when the
RTC’s judgment, order, or resolution has become final, and
the remedies of new trial, appeal, petition for relief (or
other appropriate remedies) are no longer available
through no fault of the petitioner (Celerina J. Santos v.
Ricardo T. Santos, G.R. No. 187061, October 8, 2014).
---
Property relations in subsequent bigamous marriage
Q: Atty. Luna and his wife Eugenia agreed to live
separately and to dissolve their conjugal property. On
January 2, 1976, Atty. Luna obtained a divorce decree
of his marriage with Eugenia from the Dominican
Republic. On the same day, he married Soledad. Atty.
Luna later on died and left a 25% share in a
condominium, law books and other pieces of
furniture from the law firm he organized with other
lawyers shortly after his second marriage. All the said
properties were taken over by his son from his first
marriage, Gregorio. Soledad, the second wife, then
filed a complaint against the heirs of Atty. Luna.
According to her, the properties were acquired by
Atty. Luna and her during their marriage, and because
they had no children, 3/4 of the property became
hers, 1/2 being her share in the net estate, and the
other half bequeathed to her in a last will and
testament of Atty. Luna. Is the marriage between
Soledad and Atty. Luna valid?
Q: Is Soledad entitled to the properties left by Atty.
Luna?
A: No. Atty. Luna’s marriage with Soledad was bigamous,
and void from the very beginning, hence, their property
relations is governed by the rules on co-ownership. In
such a situation, whoever alleges co-ownership carried
the burden of proof to confirm such fact. To establish co-
ownership, therefore, it became imperative for the
petitioner to offer proof of her actual contributions in the
acquisition of property. Her mere allegation of co-
ownership, without sufficient and competent evidence,
would warrant no relief in her favor. SOLEDAD was not
able to prove by preponderance of evidence that her own
independent funds were used to buy the law office
condominium and the law books subject matter in
contention in this case. (SoledadL. Lavadia v. Heirs of Juan
Luces, G.R. No. 171914, July 23, 2014) (Bersamin, J.).
---
Q: When are non-bigamous subsequent marriages
void?
A: The subsequent marriage of a person whose prior
marriage has been annulled but contracted said
subsequent marriage without compliance with Art. 52 (of
the) FC, shall be VOID.
 PERSONS AND FAMILY RELATIONS
Before he contracts a subsequent marriage, he must first
comply with the requirement provided for in Art. 52, viz:
The recording in the civil registries and registries of
properties of the following:
1. Judgment of annulment;
2. Partition;
3. Distribution of properties, and,
4. Delivery of presumptive legitimes.
---
Q: Ana Rivera had a husband, a Filipino citizen like
her, who was among the passengers on board a
commercial jet plane which crashed in the Atlantic
Ocean ten (10) years earlier and had never been
heard of ever since. Believing that her husband had
died, Ana married Adolf Cruz Staedler, a divorced
German national born of a German father and a
Filipino mother residing in Stuttgart. To avoid being
required to submit the required certificate of capacity
to marry from the German Embassy in Manila, Adolf
stated in the application for marriage license stating
that Adolf was a Filipino, the couple got married in a
ceremony officiated by the Parish Priest of Calamba,
Laguna in a beach in Nasugbu, Batangas, as the local
parish priest refused to solemnize marriage except in
his church. Is the marriage valid? (2008 BAR)
A: If the missing husband was in fact dead at the time the
second marriage was celebrated, the second marriage was
valid. Actual death of a spouse dissolves the marriage ipso
facto whether or not the surviving spouse had knowledge
of such fact. A declaration of presumptive death even if
obtained will not make the marriage voidable because
presumptive death will not prevail over the fact of death.
If the missing husband was in fact alive when the second
marriage was celebrated, the second marriage was void
ab initio because of a prior subsisting marriage. Had Ana
obtained a declaration of presumptive death, the second
marriage would have been voidable.
In both cases, the fact that the German misrepresented his
citizenship to avoid having to present his Certificate of
Legal Capacity, or the holding of the ceremony outside the
church or beyond the territorial jurisdiction of the
solemnizing officer, are all irregularities which do not
affect the validity of the marriage.
---
JUDICIAL DECLARATION OF NULLITY OF MARRIAGE
Necessity of Judicial Declaration of Nullity of Marriage
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
(FC, Art. 40).
There has yet to be a judgment declaring it void, for it is
solely on the basis of that final judgment that a party can
remarry (Albano, 2013).
Remarriage is not the sole purpose of declaration of
nullity of a marriage, as it can be declared void for other
purposes. In Valdes v. RTC, it was said that the law aims to
do away with any continuing uncertainty on the status of
39
the second marriage (G.R. No. 122749, Valdez v. Gomez-
Valdez, July 31, 1996; Albano, 2013).
Prescriptive Period
The time for filing an action or defense for the declaration
of absolute nullity of marriage, whether in a direct or
collateral manner, does not prescribe (FC, Art. 39). (2002,
2006 BAR)
Any of the parties in a void marriage can file an action for
the declaration of nullity of marriage even though such
party is the wrongdoer.
Effect of death of a party in a petition for declaration
of nullity of marriages
1. Before the entry of judgment – The court shall order
the case closed and terminated without prejudice to
the settlement of estate in proper proceedings.
2. After the entry of judgment – The decision shall be
binding upon the parties and their successors-in-
interest in the settlement of the estate.
Petition for the declaration of nullity of marriage by
the heirs of a deceased person after his death
The heirs cannot file for declaration of nullity of marriage.
The advent of the Rule on Declaration of Absolute Nullity
of Void Marriages marks the beginning of the end of the
right of the heirs of the deceased spouse to bring a nullity
of marriage case against the surviving spouse. The heirs
can still protect their successional right, for, compulsory
or intestate heirs can still question the validity of the
marriage of the spouses, not in a proceeding for
declaration of nullity but upon the death of a spouse in a
proceeding for the settlement of the estate of the
deceased spouse filed in the regular courts.
However, with respect to nullity of marriage cases
commenced before the effectivity of A.M. No. 02-11-10
and marriages celebrated during the effectivity of the
NCC, the doctrine laid down in the Niñal v. Bayadog case
still applies; that the children have the personality to file
the petition to declare the nullity of marriage of their
deceased father to their stepmother as it affects their
successional rights (De Dios Carlos v. Sandoval, G.R. No.
179922, December 16, 2008).
---
Q: If the court denies a petition for declaration of
nullity of marriage based on psychological incapacity,
may a party to the said case file another petition for
declaration of its nullity based on the absence of
marriage license?
A: NO. A petition to declare the marriage void due to
absence of marriage license, filed after the court denied a
petition to declare the marriage void due to psychological
incapacity is barred by res judicata. There is only one
cause of action which is the declaration of nullity of the
marriage. Hence, when the second case was filed based on
another ground, there was a splitting of a cause of action
which is prohibited (Mallion v. Alcantara, G.R. No. 141528,
October 31, 2006).
---
 Civil Law
Q: Is the declaration of nullity of marriage applied EFFECTS OF JUDICIAL DECLARATION OF
prospectively? NULLITY OF MARRIAGE

A: NO, it retroacts to the date of the celebration of the 1. Status of the Children(1990, 2010 BAR)
marriage.
GR: (Children conceived and born outside a valid
Although the judicial declaration of nullity of a marriage marriage or inside a void marriage are Illegitimate.)
on the ground of psychological incapacity retroacts to the
date of the celebration of the marriage insofar as the XPNs:
vinculum between the parties is concerned, it must be i. Legitimate if the marriage is void:
noted that the marriage is not without legal consequences 1. On the ground of psychological
or effects. One such consequence or effect is the incurring incapacity of either or both parties;
of criminal liability for bigamy. To hold otherwise would 2. Due to the non-compliance with the
be to render nugatory the State’s penal laws on bigamy as requirements set forth under Article 52
it would allow individuals to deliberately ensure that each of the Family Code
marital contract be flawed in some manner, and to thus ii. Legitimate if the children were conceived or born
escape the consequences of contracting multiple
before the judgment of annulment or absolute
marriages (Tenebro v. CA, G.R. No. 150758, February 18,
2004). nullity of the marriage under Article 36 has
--- become final and executory (FC, Art. 54, 1st
Q: Is a decree of nullity of the first marriage required sentence).
before a subsequent marriage can be entered into iii. Legitimate if the children were conceived or
validly? born of the subsequent marriage under Article 53
(FC, Art. 54, 2nd sentence).
A: GR: Under the Art. 40 of the FC, the absolute nullity of
2. Property Relations
a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment
GR: Either Article 147 or 148 (Co-Ownership) of the
declaring such previous marriage void.
Family Code will apply.
XPN: If the second marriage, however, took place prior to
XPN: If the subsequent marriage is void due to non-
the effectivity of the FC, there is no need for judicial
compliance with Article 40 of the Family Code, the
declaration of nullity of the first marriage pursuant to the
property relations of the void subsequent marriage
prevailing jurisprudence at that time (Rabuya, 2006).
will either be absolute community or conjugal
---
partnership of gains.
NOTE: Art. 40 is applicable to remarriages entered into
3. Donations Propter Nuptias
after the effectivity of the FC on August 3, 1988
regardless of the date of the first marriage. Besides, under
GR: Donations propter nuptias are revocable at the
Art. 256 of the FC, said Article is given “retroactive effect
instance of the donor.
insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other
XPNs:
laws” (Atienza v. Brillantes, A.M. No. MTJ-92-706, March 29,
a. If the donation propter nuptias is embodied in a
1995).
marriage settlement, the donation is void under
---
Article 86 par. 1 of the Family Code;
Q: While his first marriage is subsisting, Veronico
b. If the subsequent marriage is judicially declared
married Leticia, which marriage was later declared
void by reason of Article 40 of the Family Code,
void on the ground of psychological incapacity. When
the donation remains valid;
Veronico got married for the third time, Leticia filed a
case for bigamy against him. For his defense, Veronico
XPN to the XPN: If the donee spouse contracted
claims that effects of the nullity of his marriage with
the marriage in bad faith, all donations are
Leticia retroacts to the date when it was contracted,
revoked by operation by law.
hence, he is not guilty of bigamy for want of an
essential element – the existence of a valid previous
c. When both parties to a subsequent marriage
marriage. Rule on Veronico’s argument.
contracted in bad faith under Article 44 of the
Family Code, all donations propter nuptias are
A: Veronico’s argument has no merit. Art. 349 of the RPC
revoked by operation by law.
penalizes the mere act of contracting a second or
subsequent marriage during the subsistence of a previous
4. Designation as Beneficiary in Insurance Policy
valid marriage. Here, as soon as the second marriage to
Leticia was celebrated, the crime of bigamy had already
If the subsequent marriage is judicially declared to
been consummated as the second marriage was
void by reason of Article 40 of the Family Code, the
contracted during the subsistence of the valid first
innocent spouse may revoke such designation if the
marriage (Tenebro v. CA, G.R. No. 150758, February 18,
beneficiary spouse acted in bad faith, even if such
2004).
designation be stipulated as irrevocable.
5. Right to Inherit

40
 PERSONS AND FAMILY RELATIONS
a. Intestate Succession: The parties cannot inherit
from each other by way of intestate succession
since they are no longer considered as spouses;
b. Testate Succession:
GR: Any Testamentary provision by one in favor of
the other shall remain valid.
XPNs:
1. If the subsequent marriage is rendered void by
non-compliance with Article 40 of the Family
Code, the spouse who contracted the
subsequent marriage in bad faith is disqualified
to inherit from the innocent spouse (.)
2. If the marriage is void by reason of the bad faith
of both parties under Article 41 of the Family
Code, all testamentary dispositions made by one
in favor of the other are revoked by operation of
law.
His or her share of the net profits of the community
property or conjugal partnership property shall be
forfeited in favor of the common children or if there be
none, the children of the guilty spouse by previous
marriage or in default thereof, the innocent spouse.
The final judgment of nullity or annulment shall
provide the following:
1. Liquidation, partition and distribution of the
properties of the spouses;
2. Custody and support of the common children; and
3. Delivery of their presumptive legitimes.
Unless such matters had already been adjudicated in
previous judicial proceedings, in which case, the final
judgment of nullity or annulment need not provide for
those which have already been adjudicated.

NOTE: The parties are not disqualified to
institute each other as voluntary heir in their
respective wills to be executed after the judicial
declaration of nullity
6. Parental Authority and Custody of Children
GR: Since the children are considered as illegitimate,
the parental authority and the custody of the children
will be exercised by their mother. The illegitimate
father even if he admits paternity, will only have
visitation rights.
XPN: If the marriage is declared void by the reason of
psychological incapacity of either or both of the
parties, the parental authority and the custody will
be exercised by the parent designated by the court.
Effects of Decree of Annulment
NOTE: Where there was a failure to record in the civil
registry and registry of property the judgment of
annulment or absolute nullity of the marriage, the
partition and distribution of the property of the spouses,
and the delivery of the children’s presumptive legitimes,
it shall not affect third persons (FC, Art. 52).
Forms of presumptive legitime
Cash
Property
Sound security
Remarriage after declaration of nullity or annulment
A person must comply with the requirements of Art.52 of
the FC before he can remarry, viz, the Recording and
registration of: (JPDD):

1. Termination of the marital bond, as if it had never 1. Judgement of Annulment

been entered into, but the effects thereof are not 2. Partition
totally wiped out; 3. Distribution of properties; and
2. Children conceived or born before the judgment of 4. Delivery of presumptive legitime
annulment has become final and executory are
considered legitimate;
3. Absolute community property regime or the conjugal
partnership property regime is terminated or
dissolved and the same shall be liquidated in
accordance with the provisions of Arts. 102 and 129;
4. The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as
beneficiary in the insurance policy whether or not
the designation is revocable;
5. The spouse who contracted the marriage in bad faith
shall be disqualified to inherit from the innocent
spouse by testate and intestate succession;
6. Donation propter nuptias.

GR: It shall remain valid.

XPN: If the donee spouse acted in bad faith, the donor

may revoke the donation.

Liquidation of Property if either spouse contracted

the marriage in bad faith

41
 Civil Law
Void v. Voidable marriages

VOID VOIDABLE MARRIAGE

BASIS
MARRIAGE
Status of marriage Void ab initio Valid until annulled
Petition filed Declaration of Nullity of Marriage Annulment of Marriage
GR: Solely by the husband or wife. GR: Offended Spouse

XPNs: Any real party in interest, only XPNs:

in the following cases: 1. Parents or guardians in cases of
1. Nullity of marriage cases insanity
commenced before the effectivity 2. Parents or guardians before the
of A.M. No. 02-11-10 - March 15, party reaches 21 years old on the
2003. ground of Lack of Parental
2. Marriages celebrated during the Authority
effectivity of the Civil Code (De
Who may file
Dios Carlos v. Sandoval, G.R. No.
179922, December 16, 2008).
3. A party to the previous marriage
may seek the nullity of the
subsequent marriage on the
ground that the subsequent
marriage is bigamous (Estrellita
Juliano-Llave v. Republic of the
Philippines G.R. No. 169766 March
20, 2011)
No prescriptive period GR: Within 5 years from discovery of
the ground

XPNs:
Prescriptive period 1. Lifetime of spouse in cases of
insanity
2. Before the party reaches 21 in cases
where parents or guardians may file
annulment
How may be impugned Either directly or collaterally Judicial declaration is necessary
GR: Illegitimate; Legitimate

XPNs: Those conceived or born of

marriages declared void under:
Children
1. Art. 36 (Psychological incapacity)
of the Family Code, or
2. Art. 52 in relation to Art. 53 of the
Family Code
GR: Property relations are governed by GR: Governed by rules on absolute
rules on co-ownership community

XPN: If the marriage is declared void by XPN: Unless another system is agreed
reason of non-compliance with Article upon in marriage settlement
Property
40 of the FC, the absolute community or
the conjugal partnership, as the case
may be, shall be dissolved and
liquidated (FC, Art. 43 (2), in relation to
Art. 50).
GR: There is no necessity to obtain a Necessary
judicial declaration
Judicial Declaration
XPN: For purposes of remarriage, one is
required.

42
 PERSONS AND FAMILY RELATIONS
III. VOIDABLE MARRIAGES
A voidable marriage is considered valid and produces all
its civil effects until it is set aside by final judgment of a
competent court in an action for annulment (Rabuya,
2006). Simply, a voidable marriage is valid until it is
annulled (Paras, 2016).
Determination of the unsoundness of mind as a
ground for annulment
It is essential that the mental incapacity must relate
specifically to the contract of marriage and the test is
whether the party at the time of the marriage was capable
of understanding the nature and consequences of the
marriage (Rabuya, 2006).
Fraud as a ground for annulment
Fraud, as distinguished from fraud as a ground for
annulment of contracts, refers to the non-disclosure or
concealment of some facts deemed material to the marital
relations (Rabuya, 2009).
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give ground for action for the annulment of
marriage (FC, Art. 46, last par.).
Circumstances constituting FRAUD under Art. 45(3)
(1996, 1997, 2002, 2003, 2006 BAR)
1. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude;
2. Concealment by the wife of the fact that at the time of
marriage, she was pregnant by a man other than her
husband;
3. Concealment of sexually transmitted disease,
regardless of nature, existing at the time of marriage;
or
4. Concealment of drug addiction, habitual
alcoholism, homosexuality and lesbianism(FC,
Art. 46).
NOTE: Where there has been no misrepresentation or
fraud, that is, when the husband at the time of the
marriage knew that the wife was pregnant, the marriage
cannot be annulled (Buccat v. Buccat, G.R. No. 47101, April
25, 1941)

Voidable marriages and its ratification

GROUND
(1999, 2003, 2006, 2007, RATIFICATION WHO MAY FILE WHEN TO FILE
2009 BAR)
Contracting party who failed By the contracting party Within 5 years after
to obtain parental consent: attaining the age of 21
Marriage of a party 18 years
Through free cohabitation
of age or over but below 21
after attaining the age of 21.
solemnized without the
consent of the parents,
NOTE: The parents cannot Parent, guardian, or person At any time before such
guardian or person having
ratify the marriage. The effect having legal charge of the party has reached the
substitute parental
of prescription on their part is contracting party age of 21
authority over the party, in
that they are barred from
that order
contesting it but the marriage
is not yet cleansed of its defect.
Insane spouse: Through free GR: Sane spouse who had no At any time before the
cohabitation after coming to knowledge of the other’s death of either party
reason. insanity
During a lucid interval or
XPN: after regaining sanity
Either party was of unsound Any relative, guardian or
mind person having legal charge of
the insane

Insane spouse during a lucid

interval or after regaining
sanity
Injured party: Through free Injured party Within 5 years after the
Consent of either party was cohabitation with full discovery of fraud
obtained by fraud knowledge of the facts
constituting the fraud.
Vices of consent such as Injured party: Through free Injured party Within 5 years from the
force, intimidation or undue cohabitation after the vices time the force,
influence have ceased or disappeared. intimidation or undue

43
 Civil Law
influence disappeared or
ceased
May not be ratified but action Only the potent spouse can Within 5 years after the
Impotence (impotencia may be barred by prescription file the action (,) and he or celebration of marriage
copulandi) and afflicted with only, which is 5 years after the she must not have been
STD found to be serious and marriage. aware of the other’s
appears to be incurable impotency at the time of the
marriage.

--- c. Drug addiction arises during

Q: Aurora prayed for the annulment of her marriage the marriage and not at the
with Fernando on the ground of fraud in obtaining her time of marriage.
consent after having learned that several months
prior to their marriage, Fernando had pre-marital ---
relationship with a close relative of his. According to Q: If drug addiction, habitual alcoholism, lesbianism
her, the "non-divulgement to her of such pre-marital or homosexuality should occur only during the
secret" constituted fraud in obtaining her consent marriage, would these constitute grounds for a
w/in the contemplation of Art. 46 of the FC. Is the declaration of nullity or for legal separation, or would
concealment by the husband of a pre-marital they render the marriage voidable? (2002 BAR)
relationship with another woman a ground for
annulment of marriage? A: If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage,
A: NO. The non-disclosure to a wife by her husband of his they will:
pre-marital relationship with another woman is not a 1. Not constitute grounds for declaration of nullity (FC,
ground for annulment of marriage. For fraud as a vice of Art. 36).
consent in marriage, which may be a cause for its 2. Not constitute grounds to render the marriage
annulment, comes under Art. 46 of the FC, the fraud, as voidable (FC, Arts. 45 and 46); and
vice of consent, is limited exclusively by law to those kinds 3. Constitute grounds for legal separation (FC, Art. 55).
or species of fraud enumerated in Art. 46 in relation to Art. ---
45(3). Vitiated consent as a ground for annulment of
--- marriage
Q: Under what conditions, respectively, may drug
addiction be a ground, if at all, for the declaration of There is vitiation of consent when:
nullity of marriage, annulment of marriage, and legal
separation? (1997 BAR) GR: Consent of either party was obtained by force,
intimidation or undue influence.
A:
a. The drug addiction must Force or violence – “There is violence when, in order to
amount to psychological wrest consent, serious or irresistible force is employed.”
incapacity to comply with the
Declaration of essential obligations of Intimidation – “There is intimidation when one of the
Nullity of marriage; contracting parties is compelled by a reasonable and well-
Marriage b. It must be antecedent grounded fear of an imminent and grave evil upon his
(existing at the time of person or property, or upon the person or property of his
marriage), grave and spouse, descendants, or ascendants, to give his consent”
incurable (.) (NCC, Art. 1335, par. 2,).
a. The drug addiction must be
concealed; Undue influence – control over one’s will
b. It must exist at the time of
marriage; XPN: However, if the same having disappeared or ceased,
Annulment of c. There should be no such party thereafter freely cohabited with the other as
Marriage cohabitation with full husband and wife.
knowledge of the drug
addiction; A threat to enforce one's claim through competent
d. The case is filed within five authority however, if the claim is just or legal, does not
(5) years from discovery. vitiate consent.
a. There should be no
condonation or consent to Impotence or physical incapacity
the drug addiction;
Legal Separation
b. The action must be filed Impotence (impotentia copulandi) refers to lack of power
within five (5) years from of copulation and not to mere sterility (impotentia
the occurrence of the cause. genrandi) which refers to ability to procreate. The test is
not the capacity to reproduce, but the capacity to copulate
(Paras, 2008). Although impotency carries with it sterility,
a sterile person is not necessarily impotent (Paras, 2016).

44
 PERSONS AND FAMILY RELATIONS

Requisites for impotence to be a ground for A: NO. Concealment of a sexually transmitted disease may
annulment of marriage annul the marriage if there was fraud existing in the party
concerned. In this case, there was no fraud because Joseph
1. Exists at the time of the Celebration of marriage; knew that Yvette was suffering from HIV when he married
2. Permanent (does not have to be absolute); her (FC, Art. 46, par. 3).
3. Incurable; ---
4. Unknown to the other spouse; and, Art. 45 v. 46 of the FC on STD as ground for annulment
5. The other spouse must not also be Impotent.
ARTICLE 45 ARTICLE 46
Presumption of potency of one spouse Affliction Concealment
Ground for Annulment
GR: Presumption is in favor of potency.
The act of concealing
The fact of being
XPN: Doctrine of triennial cohabitation. because it constitutes
afflicted
fraud
Doctrine Triennial cohabitation Concealment
Not necessarily Necessary
If after 3 years of living together with her husband, the Nature of the Disease
wife remained a virgin, the husband is presumed to be
Must be serious and Does not have to be
impotent (Rabuya, 2009). The husband will have to
incurable serious and incurable
overcome this presumption.
PRESENCE OF PROSECUTOR
Relative impotency may now be invoked as a ground for
annulment. The Committee has decided to include
Role of the prosecutor or Solicitor General in cases of
relative impotency of one party because there are cases
annulment and judicial declaration of nullity
where a person is impotent with respect to his spouse but
not with other men or women (Sempio Diy, 1995).
The prosecutor or Solicitor General shall take steps to
---
prevent collusion between the parties and to take care
Q: The day after John and Marsha got married, John
that evidence is not fabricated or suppressed. Even if
told her that he was impotent. Marsha continued to
there is no suppression of evidence, the public prosecutor
live with John for two years. Is Marsha now estopped
has to make sure that the evidence to be presented or laid
from filing an annulment case against John? (2007
down before the court is not fabricated. Only the active
BAR)
participation of the public prosecutor or the Solicitor
General will ensure that the interest of the State is
A: NO. Unlike the other grounds for annulment of
represented and protected in proceedings for declaration
voidable marriage which are subject to ratification by
of nullity of marriages by preventing the fabrication or
continued cohabitation, the law does not allow
suppression of evidence (FC, Art. 48).
ratification in case of impotency.
---
NOTE: The non-intervention of the prosecutor is not fatal
Requisites of affliction of a SEXUALLY TRANSMITTED
to the validity of the proceedings in cases where the
DISEASE (STD) as a ground for annulment
respondent in a petition for annulment vehemently
opposed the same and where he does not allege that
1. One of the parties is afflicted with STD;
evidence was suppressed or fabricated by any of the
2. STD must be:
parties (Tuason v. CA, G.R. No. 116607, April 10, 1996).
a. Existing at the time the marriage is celebrated;
b. Serious;
Collusion – Where for purposes of getting an annulment
c. Apparently Incurable;
or nullity decree, the parties come up with an agreement
3. The other spouse is not aware of the other’s
making it appear that the marriage is defective due to the
affliction; and,
existence of any of the grounds for the annulment of
4. The injured party must be free from STD.
marriage or the declaration of its nullity provided by law
---
and agreeing to represent such false or non-existent cause
Q: Yvette was found to be positive for HIV virus,
of action before the proper court (Sta. Maria, 2010).
considered sexually transmissible, serious and
incurable. Her boyfriend Joseph was aware of her
Actions prohibited in annulment and declaration of
condition and yet married her. After two (2) years of
absolute nullity of marriage cases
cohabiting with Yvette, and in his belief that she
would probably never be able to bear him a healthy
1. Compromise;
child, Joseph now wants to have his marriage with
2. Confession of judgment;
Yvette annulled on the ground that Yvette has STD.
3. Stipulation of facts;
Yvette opposes the suit contending that Joseph is
4. Summary judgment; and
estopped from seeking annulment of their marriage
5. Judgment on the pleadings.
since he knew even before their marriage that she
was afflicted with HIV virus. Can the action of Joseph
What the law prohibits is a judgment based exclusively or
for annulment of his marriage with Yvette prosper?
mainly on defendant's confession (Ocampo v. Florenciano,

45
 Civil Law
G.R. No. L-13553, February 23, 1960). Thus, stipulation of
facts or confession of judgment if sufficiently supported
by other independent substantial evidence to support the
main ground relied upon, may warrant an annulment or
declaration of absolute nullity.
PENDENCY OF ACTION
During the pendency of the action for annulment,
declaration of absolute nullity of marriage or legal
separation, the Court shall, in the absence of adequate
written agreement between the spouses, provide for the:
1. Support of the spouses;
2. Support and custody of the common children;
3. Visitation rights of the other parent (FC, Art.49).
_________________________________________________________________
LEGAL SEPARATION
_________________________________________________________________
Legal separation is a legal remedy available to parties in a
valid but failed marriage for the purpose of obtaining a
decree from the court entitling him or her certain reliefs
such as the right to live separately from each other
(without affecting the marital bond that exists between
them), the dissolution and liquidation of their absolute
community or conjugal partnership property regime and
the custody of their minor children.
Nature of legal separation
An action for legal separation which involves nothing
more than bed-and-board separation of the spouses is
purely personal. The Civil Code recognizes this by:
1. By allowing only the innocent spouse and no one
else to claim legal separation;
2. By providing that the spouses can, by their
reconciliation, stop or abate the proceedings and
even rescind a decree of legal separation already
granted (Lapuz v. Eufemio, G.R. No. L-31429, January
31, 1972).
GROUNDS FOR LEGAL SEPARATION (FC,ART.55)
(1997, 2002, 2003, 2006, 2007 BAR)
1. Repeated physical violence or grossly abusive
conduct against petitioner, common child, child of
petitioner;
2. Attempt to corrupt or induce petitioner, common
child, child of petitioner to engage in prostitution, or
connivance in such corruption or inducement;
3. Attempt by respondent against the life of petitioner;
4. Final judgment sentencing respondent to
imprisonment of more than 6 years, even if
pardoned;
5. Drug addiction or habitual alcoholism of respondent;
NOTE: It must exist after celebration of marriage
6. Physical violence or moral pressure to compel
petitioner to change religious or political affiliation;
7. Bigamous marriage subsequently contracted by
respondent in the Philippines or abroad
46
8. Sexual infidelity or perversion;
9. Lesbianism or homosexuality of respondent; and
NOTE: It must exist after celebration of marriage
10. Abandonment of petitioner by respondent without
justifiable cause for more than 1 year.
---
Q: If a man commits several acts of sexual infidelity,
particularly in 2002, 2003, 2004, 2005, does the
prescriptive period to file for legal separation run
from 2002? (2007 BAR)
A: The prescriptive period begins to run upon the
commission of each act of infidelity. Every act of sexual
infidelity committed by the man is a ground for legal
separation.
---
Q: Lucita left the conjugal dwelling and filed a petition
for legal separation due to the physical violence,
threats, intimidation and grossly abusive conduct she
had suffered at the hands of Ron, her husband. Ron
denied such and claimed that since it was Lucita who
had left the conjugal abode, then the decree of legal
separation should not be granted, following Art. 56
par. 4 of the FC which provides that legal separation
shall be denied when both parties have given ground
for legal separation. Should legal separation be
denied on the basis of Ron’s claim of mutual guilt?
A: NO. Art. 56 par. 4 of the FC does not apply since the
abandonment that is a ground for legal separation is
abandonment without justifiable cause for more than one
year. In this case, Lucita left Ron due to his abusive
conduct. Such act does not constitute the abandonment
contemplated in the said provision. Therefore, there is no
mutual guilt between them as there is only one erring
spouse (Ong Eng Kiam v. CA, G.R No. 153206, October 23,
2006).
---
NOTE: No criminal conviction is necessary to issue a
decree of legal separation. In legal separation,
preponderance of evidence is enough (Gandionco v.
Penaranda, G.R. No. 79284, November 27, 1987).
Acts considered as acts of violence under R.A. 9262
Causing, threatening to cause, or attempting to
cause physical harm to the woman or her child;
Threatening to cause the woman or her child
physical harm;
Attempting to cause the woman or her child
physical harm;
Placing the woman or her child in fear of
imminent physical harm;
Attempting to compel or compelling the woman
or her child to:
. Engage in conduct which the woman or her child
has the right to desist from; or
a. Desist from conduct which the woman or her
child has the right to engage in,
Attempting to restrict or restricting the
woman’s or her child’s freedom of movement or conduct
by:
Force, or
 PERSONS AND FAMILY RELATIONS
Threat of force;
Physical, or
Other harm, or
Threat of physical or other harm;
Intimidation directed against the
woman or child. This shall include, but not
limited to, the following acts committed with the
purpose or effect of controlling or restricting the
woman’s or her child’s movement or conduct:
Threatening to deprive or actually
depriving the woman or her child of custody to
her/his family;
Depriving or threatening to deprive
the woman or her children of financial support
legally due her or her family, or deliberately
providing the woman’s children insufficient
financial support;
Depriving or threatening to deprive
the woman or her child of a legal right;
Preventing the woman in engaging in
any legitimate profession, occupation, business
or activity or controlling the victim’s own money
or properties, or solely controlling the conjugal
or common money, or properties;
Inflicting or threatening to inflict physical harm
on oneself for the purpose of controlling her actions or
decisions;
Causing or attempting to cause the woman or
her child to engage in any sexual activity which does not
constitute rape, by:
a. Force, or
b. Threat of force;
c. Physical harm, or
d. Through intimidation directed against
the woman or her child or her/his
immediate family;
Engaging in purposeful, knowing, or reckless
conduct, personally or through another that alarms or
causes substantial emotional or psychological distress to
the woman or her child. This shall include, but not be
limited to, the following acts:
Stalking or following the woman or her child in
public or private places;
Peering in the window or lingering
outside the residence of the woman or her
child;
Entering or remaining in the dwelling
or on the property of the woman or her
child against her/his will;
Destroying the property and personal
belongingness or inflicting harm to animals
or pets of the woman or her child; and
Engaging in any form of harassment or
violence;
Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor children of access to the woman’s
child/children.
Protection Order
A protection order under R.A. 9262 is an order issued
under this act for the purpose of preventing further acts
47
of violence against a woman or her child and granting
other necessary relief.
The relief granted under a protection order serves the
purpose of safeguarding the victim from further harm,
minimizing any disruption in the victim’s daily life, and
facilitating the opportunity and ability of the victim to
independently regain control over her life. The provisions
of the protection order shall be enforced by law
enforcement agencies. The protection orders that may be
issued under this Act are the barangay protection order
(BPO), temporary protection order (TPO) and permanent
protection order (PPO).
Who may file Petition for Protection orders
1. The offended party;
2. Parents or guardians of the offended party;
3. Ascendants, descendants or collateral relatives
within the fourth civil degree of consanguinity or
affinity;
4. Officers or social workers of the DSWD or social
workers of local government units (LGUs);
5. Police officers, preferably those in charge of women
and children’s desks;
6. Punong barangay or Barangay Kagawad;
7. Lawyer, counselor, therapist or healthcare provider
of the petitioner;
8. At least 2 concerned responsible citizens of the city
or municipality where the violence against women
and their children occurred and who has personal
knowledge of the offense committed.
DEFENSES
Grounds for denial of petition for legal
separation(2006 BAR)
1. Condonation of the act complained of;
2. Consent to the commission of the offense/act;
3. Connivance in the commission of the act;
4. Collusion in the procurement of decree of LS;
5. Mutual Guilt;
6. Prescription: 5 yrs from occurrence of cause;
7. Death of either party during the pendency of the case
(Lapuz-Sy v. Eufemio, G.R. No. L-31429, January 31,
1972);
8. Reconciliation of the spouses during the pendency of
the case (FC, Art. 56).
Prescriptive period for filing a petition for legal
separation
An action for legal separation shall be filed within five
years from the time of the occurrence of the cause (FC, Art.
57). An action filed beyond that period is deemed
prescribed.
Failure to interpose prescription as a defense
When prescription was not interposed as a defense, the
courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of
marriage, involve public interest and it is the policy of our
 Civil Law
law that no such decree be issued if any legal obstacles
thereto appear upon the record.
This is an exception to the Rules of Court provision that
defenses not raised in the pleadings will not be
considered since provisions on marriage are substantive
in nature (Brown v. Yambao, G.R. No. L-10699, October 18,
1957).
---
Q: Rosa and Ariel were married in the Catholic Church
of Tarlac, Tarlac on January 5, 1988. In 1990, Ariel
went to Saudi Arabia to work. There, after being
converted into Islam, Ariel married Mystica. Rosa
learned of the second marriage of Ariel on January 1,
1992 when Ariel returned to the Philippines with
Mystica. Rosa filed an action for legal separation on
February 5, 1994.
a. Does Rosa have legal grounds to ask for legal
separation?
b. Has the action prescribed? (1994 BAR)
A:
YES, the abandonment of Rosa by Ariel for more
than one (1) year is a ground for legal separation
unless upon returning to the Philippines, Rosa agrees
to cohabit with Ariel which is allowed under the
Muslim Code. In this case, there is condonation. The
contracting of a subsequent bigamous marriage
whether in the Philippines or abroad is a ground for
legal separation under Art. 55 par. 7 of the FC.
Whether the second marriage is valid or not, Ariel
having converted into Islam, is immaterial.
NO. The aggrieved spouse must file the action
within 5 years from the occurrence of the cause (FC,
Art. 57). The subsequent marriage of Ariel could not
have occurred earlier than 1990, the time he went to
Saudi Arabia. Hence, Rosa has until 1995 to bring the
action under the FC.
---
COOLING-OFF PERIOD
An action for legal separation shall be in no case tried
before 6 months has elapsed since the filing of the
petition, to enable the contending spouses to settle
differences. In other words, it is for possible reconciliation
(FC, Art. 58).
GR: The 6 months cooling-off period is a mandatory
requirement. Petition shall not be granted if it is not
observed (Pacete v. Carriaga, G.R. No. L-53880 March 17,
1994).
XPN: There is no cooling-off period if the grounds alleged
are those under R.A. 9262 (Anti-Violence against Women
and Children Act). The court can immediately hear the
case.
RECONCILIATION EFFORTS
The Court is required to take steps toward the
reconciliation of the spouses and must be fully satisfied
48
that, despite such efforts, reconciliation is highly
improbable (FC, Art. 59).
CONFESSION OF JUDGMENT
Rule in rendering a judgment of legal separation
based upon a stipulation of facts or confession of
judgment
A decree of legal separation cannot be issued solely on the
basis of a stipulation of facts or a confession of judgment.
The grounds for legal separation must be proved. Neither
confession of judgment nor summary judgment is
allowed. In any case, the court shall order the prosecuting
attorney or fiscal to take steps to prevent collusion
between the parties and to take care that the evidence is
not fabricated or suppressed (FC, Art. 60).
What the law prohibits is a judgment based exclusively or
mainly on defendant’s confession (Ocampo v. Florenciano,
G.R. No. L-13553, February 23, 1960).
Filing of petition for legal separation
Who may file Husband or wife
Within 5 years from the time of the
When to file
occurrence of the cause
Family Court of the province or city
where the petitioner or the respondent
has been residing for at least 6 months
Where to file prior to the date of filing or in case of a
non-resident, where he may be found in
the Philippines, at the election of the
petitioner
EFFECTS OF FILING OF A PETITION FOR LEGAL
SEPARATION (FC, ART. 61)
The spouses shall be entitled to live separately from each
other.
In the absence of a written agreement between the
parties, the court shall designate either the husband or
the wife or a 3rd person to administer the absolute
community or conjugal partnership property.
Effect of death of a party during pendency
Being personal in character, it follows that the death of
one party to the action causes the death of the action itself
–actio personalis moritur cum persona (Rabuya, 2009).
Effect of death of a party before entry of judgment
The court shall order the case closed and terminated
without prejudice to the settlement of estate proper
proceedings in the regular courts (Sec. 21, A.M. 02-11-11-
SC).
Effect of death of a party after entry of judgment
 PERSONS AND FAMILY RELATIONS
If the party dies after the entry of judgment, the same shall
be binding upon the parties and their successors in
interest in the settlement of the estate in the regular
courts (Sec. 21, A.M. 02-11-11-SC).
---
Q: May the heirs of the deceased spouse continue the
suit (petition for decree of legal separation) if the
death of the spouse takes place during the pendency
of the suit?
A: NO. An action for legal separation is purely personal,
therefore, the death of one party to the action causes the
death of the action itself – action personalis moritur cum
persona.
---
NOTE: In cases where one of the spouses is dead, or
where the deceased’s heirs continue the suit, separation
of property and any forfeiture of share already effected
subsists, unless spouses agree to revive former property
regime.
EFFECTS OF LEGAL SEPARATION
1. Spouses entitled to live separately but the marriage
bond is not severed;
2. ACP/CPG shall be dissolved and liquidated. The share
of the offending spouse in the net profits shall be
forfeited in favour of:
a. Common children,
b. In default of the common children, children of
the guilty spouse by a previous marriage,
c. In default of common children and the children
of the guilty spouse, innocent spouse;
3. Custody of minor children is awarded to the innocent
spouse (subject to FC, Art. 213);
4. Offending spouse is disqualified to inherit from
innocent spouse by intestate succession;
5. Provisions in the will of innocent spouse which
favors offending spouse shall be revoked by
operation of law;
6. Innocent spouse may revoke donations he/she made
in favor of offending spouse; and
NOTE: Prescriptive period: 5 years from finality of
decree of legal separation
7. Innocent spouse may revoke designation of offending
spouse as beneficiary in any insurance policy, even
when stipulated as irrevocable.
---
Q: In case an action for legal separation is granted,
what will happen to a child below the age of seven? Is
the rule absolute?
A: As a rule, the custody of the child shall be awarded to
the innocent spouse, except if the child is below the age of
seven where the law says that the child cannot be
separated from the mother, except if there is a compelling
reason to do so.
The common-law relationship of a child's mother with a
married man is a ground to separate the child from the
mother, because such a situation will not afford the child
a desirable atmosphere where he can grow and develop
49
into an upright and moral-minded person (Cervantes v.
Fajardo, G.R. No. 79955, January 27, 1989).
---
Q: Which of the following remedies,
1. Declaration of nullity of marriage,
2. Annulment of marriage,
3. Legal separation, and/or
4. Separation of property,
Can an aggrieved spouse avail himself/herself of:
1. If the wife discovers after the marriage that her
husband has “AIDS”?
2. If the wife goes abroad to work as a nurse and
refuses to come home after the expiration of her
three-year contract there?
3. If the husband discovers after the marriage that
his wife has been a prostitute before they got
married?
4. If the husband has a serious affair with his
secretary and refuses to stop notwithstanding
advice from relatives and friends?
5. If the husband beats up his wife every time he
comes home drunk? (2003 BAR)
A:
a. ANNULMENT OF MARRIAGE
Since AIDS is a serious and incurable sexually
transmissible disease, the wife may file an action for
annulment of the marriage on this ground whether
such fact was concealed or not from the wife,
provided that the disease was present at the time of
the marriage. The marriage is voidable even though
the husband was not aware that he had the disease at
the time of marriage.
b. SEPARATION OF PROPERTY
If the wife refuses to come home for three (3) months
from the expiration of her contract, she is presumed
to have abandoned the husband and he may file an
action for judicial separation of property. If the refusal
continues for more than one year from the expiration
of her contract, the husband may file the action for
legal separation under Art. 55, par. 10 of the FC on the
ground of abandonment of petitioner by respondent
without justifiable cause for more than one year. The
wife is deemed to have abandoned the husband when
she leaves the conjugal dwelling without any
intention of returning (FC, Art. 101). The intention
not to return cannot be presumed during the 3-year
period of her contract.
c. NONE
If the husband discovers after the marriage that his
wife was a prostitute before they got married, he has
no remedy. No misrepresentation or deceit as to
character, health, rank, fortune or chastity shall
constitute fraud as legal ground for an action for the
annulment of marriage (FC, Art. 46).
d. LEGAL SEPARATION
The wife may file an action for legal separation. The
husband’s sexual infidelity is a ground for legal
separation (FC, Art. 55). She may also file an action for
judicial separation of property for failure of her
 Civil Law
husband to comply with his marital duty of fidelity
[FC, Art. 135(4), Art. 101].
e. LEGAL SEPARATION, AND SEPARATION OF
PROPERTY
The wife may file an action for legal separation on the
ground of repeated physical violence on her person
[FC, Art. 55(1)]. She may also file an action for judicial
separation of property for failure of the husband to
comply with his
marital duty of mutual respect [FC, Art. 135(4), Art.
101]. She may also file an action for declaration of
nullity of the marriage if the husband’s behavior
constitutes psychological incapacity existing at the
time of the celebration of marriage.
---
Effect to the donations made by the spouses to each
other
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 registries of property shall
be respected. The revocation of or change in the
designation of the insurance beneficiary shall take effect
upon written notification thereof to the insured.
The action to revoke the donation must be brought within
five years from the time the decree of legal separation has
become final (FC, Art. 64).
Revival of previous property regime after
reconciliation
Reconciliation does not automatically revive the former
property regime of the spouses. If the spouses want to
revive the previous property regime, they must execute
an agreement to revive the former property regime,
which agreement shall be submitted in court, together
with a verified motion for its approval (FC, Art. 67).
The agreement to revive must be under oath and 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
(Pineda, 2008).
Effects of reconciliation while the petition is being
heard by the court
If the spouses should reconcile, a corresponding
joint manifestation under oath duly signed by them shall
be filed with the court in the same proceeding for legal
separation.
The legal separation proceedings, if still
pending, shall thereby be terminated at whatever stage.

EFFECTS OF RECONCILIATION

As to the Decree:
During the pendency of the case: LS
proceedings terminated at whatever stage
After the issuance of the decree: Final
decree of LS to be set aside (FC, Art. 66).

As to the Property Regime:

GR: In case there had been already separation of

property and forfeiture of the share of the guilty
spouse, the same shall be maintained (Pineda, 2008).

XPN: The parties, however, can come into an

agreement to revive their previous regime. Their
agreement must be under oath and must contain a
list of the properties desired to be returned to the
community or conjugal property and those which
will remain separate, a list of creditors and their
addresses.

As to capacity to succeed: The Family Code does

not provide for the revival of revoked provisions in a
will originally made in favor of the offending party as
a result of the LS. This absence gives the innocent
spouse the right to choose whether the offending
spouse will be reinstituted.

As to the forfeited shares: Those given to the

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

50
 PERSONS AND FAMILY RELATIONS

Difference of Declaration of Nullity of Marriage, Annulment and Legal Separation

BASIS DECLARATION OF NULLITY OF MARRIAGE ANNULMENT LEGAL SEPARATION

Marriage Dissolved Dissolved No effect, marriage

bond bond remains

GR: Illegitimate Legitimate

Status of XPN: Children conceived or born of marriages before
children declaration of nullity under Arts. 36 and 53 of the FC
considered legitimate

GR: Governed either by Article 147 or Article 148 of the ACP/CPG shall be dissolved & liquidated.[FC,
Family Code FC. Thus, property regime shall be liquidated Art.43(2)]
pursuant to the ordinary rules on co-ownership.
Share of spouse, who contracted the subsequent
XPN: Marriages declared void under Article 40 which shall be marriage in bad faith, in the net profits of the
liquidated in accordance with Article 43 par. 2 (Valdes v. RTC, community property or conjugal partnership,
Property G.R. No. 122749. July 31, 1996). shall be forfeited in favor of the common children,
relations or

If there are none, the children of the guilty spouse

by a previous marriage, or

In default of children, the innocent spouse.

GR: Donations propter nuptias are revocable at the instance GR: Shall remain valid [FC, Art.43(3)].
of the donor
XPN:
XPN: 1. If donee contracted the marriage in bad faith,
ii. If the donation propter nuptias is embodied in a marriage such donations made to said donee shall be
settlement, the donation is void under Article 86 par. 1 of revoked by operation of law.
the FC. 2. If both spouses to the marriage acted in bad
iii. If the subsequent marriage is judicially declared void by faith, all donations propter nuptias shall be
reason of Art. 40 of the FC, the donation remains valid revoked by operation of law.
Donations
propter
XPN to the XPN:
nuptias
1. If the donee spouse contracted the marriage in bad faith,
all donations are revoked by operation by law.
2. When both parties to a subsequent marriage contracted in
bad faith under Article 44 of the FC, all donations propter
nuptias are revoked by operation by law.

If the subsequent marriage is judicially declared by void by If one spouse acted in bad faith, innocent spouse
reason of Article 40 of the FC, the innocent spouse may revoke may revoke his designation as beneficiary in the
Insurance such designation if the beneficiary spouse acted in bad faith, insurance policy even if such designation be
even if such designation be stipulated as irrevocable stipulated as irrevocable[FC, Art.43(4)].

51
 Civil Law

Intestate Succession: The parties cannot inherit from each If one spouse contracted the marriage in bad faith,
other by way of intestate succession since they are no longer he shall be disqualified to inherit from innocent
considered as spouses spouse by testate and intestate succession [FC,
Art.43(5)].
Testate Succession:
GR: Any Testamentary provision by one in favor of the other
shall remain valid
XPN:
1. If the subsequent marriage is rendered void by non-
compliance with Article 40 of the Family Code FC, the
spouse who contracted the subsequent marriage in bad
faith is disqualified to inherit from the innocent spouse
Succession
2. If the marriage is void by reason of the bad faith of both
parties under Article 41 of the Family Code FC, all
testamentary dispositions made by one in favor of the
other are revoked by operation of law

NOTE: The parties are not disqualified to institute each other

as voluntary heir in their respective wills to be executed after
the judicial declaration of nullity

___________________________________________________________ intercourse with the husband if he resorts to

abnormal or perverse practices.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND b. The wife can also refuse to have sexual
WIFE intercourse with the husband if she is ill, if it
__________________________________________________________ would endanger her health, or if he is suffering
from some venereal disease.
c. If the husband forces the wife to have sexual
ESSENTIAL OBLIGATIONS
intercourse with him against her will, he may be
charged with coercion (Sempio-Diy, 1995).
Rights and obligations of the spouses (2010 BAR)
2. Fix the family domicile (FC, Art. 69);
1. Essential marital obligations (LOR) (FC, Art. 68):
a. Live together which includes consortium
NOTE: In case of disagreement the Court shall decide.
(cohabitation) and copulation (sexual
intercourse),
3. Jointly support the family (FC, Art. 70);
b. Observe mutual love, respect, fidelity, and
a. Expenses shall be paid from the community
c. Render mutual help and support
property,
b. In the absence thereof from the income or fruits of
NOTE: It is true that the Family Code, obligates the spouses
their separate properties,
to love one another but this rule sanctions affection and
c. In the absence or insufficiency thereof from their
sexual intimacy, as expressions of love, that are both
separate properties
spontaneous and mutual and not the kind which is
unilaterally exacted by force or coercion. Further, the
4. Manage the household (FC, Art. 71);
delicate and reverent nature of sexual intimacy between a
5. Not to neglect duties, or commit acts which tend to
husband and wife excludes cruelty and coercion. When
bring danger, dishonor, or injury to family (FC, Art. 72);
sexual intimacy it is egoistically utilized to despoil marital
6. Either spouse may practice any legitimate
union in order to advance a felonious urge for coitus by
profession/business, even without the consent of the
force, violence or intimidation, the Court will step in to
other.
protect its lofty purpose, vindicate justice and protect our
laws and State policies. Besides, a husband who feels
NOTE: The other spouse may object on valid, serious
aggrieved by his indifferent or uninterested wife's absolute
and moral grounds. In case of disagreement, the court
refusal to engage in sexual intimacy may legally seek the
shall decide whether:
court's intervention to declare her psychologically
incapacitated to fulfill an essential marital obligation. But he
a. Objection is proper; and
cannot and should not demand sexual intimacy from her
b. Benefit has accrued to the family prior to the
coercively or violently (People v. Jumawan, G.R. No. 187495,
objection or thereafter. If the benefit accrued
April 21, 2014). Therefore:
prior to the objection, the resulting obligation
shall be enforced against the community
a. The right to sexual intercourse involves normal
property. If the benefit accrued thereafter,
intercourse. The wife may refuse to have sexual
such obligation shall be enforced against the

52
 PERSONS AND FAMILY RELATIONS
separate property of the spouse who has not
obtained consent (FC, Art. 73 as amended by
R.A. 10572).
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
Other obligations of spouses
1. Exercise the duties and enjoy the rights of parents;
2. Answer for civil liability arising from injuries caused
by children below 18;
3. Exercise parental authority over children’s property
(Republic v. CA, Molina, G.R. No. 108763, February 13,
1997).
Essential marital obligations cannot be compelled by
court
GR: Performance of essential marital obligation under Art.
68 of the FC cannot be compelled by court because it will be
a violation of personal liberty.
XPN: Giving support. (Arroyo v. Arroyo, G.R. No. L-17014,
August 11, 1921)
Reasons when the Court may exempt one spouse from
living with the other
If one spouse should live abroad.
Other valid and compelling reasons.
NOTE: The Court shall not grant the exemption if it is not
compatible with the solidarity of the family.
_________________________________________________________________
PROPERTY RELATIONS OF THE SPOUSES
_________________________________________________________________
The property relations shall be governed by the ff. in the
stated order:
1. Property relation agreed and embodied in the
marriage settlement
2. Provisions of the FC
3. Local custom (FC, Art. 74).
Commencement of Property Regime
A property regime commences at the precise moment of
the celebration of the marriage (i.e. actual time the marriage
is celebrated on a certain date).
Any stipulation, express or implied, for the commencement
of the community regime at any other time shall be void (FC,
Art. 88).
Laws that will govern the property relations of the
spouses
GR: Philippine laws shall govern, regardless of place of
celebration of marriage and residence of spouses, in the
absence of contrary stipulation in a marriage settlement
(FC, Art. 80).
XPN: Lex rei sitae applies:
53
a. Where both spouses are aliens;
b. 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;
or
c. With respect to 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 (FC, Art. 80).
Rule on waiver of rights over the share in the
community or conjugal property
GR: Cannot be waived during the marriage.
XPN: In case of judicial separation of property.
NOTE: The waiver must be in a public instrument and
recorded in the office of the local civil registrar where the
marriage contract was recorded as well as in the proper
registry of property.
Property regime governing the property relations of
spouses in the absence of marriage settlement or when
regime agreed upon is void (1992, 1995, 2005 BAR)
GR: Absolute Community Property (FC, Art. 75)
XPNs:
For marriages contracted prior to the effectivity of
the FC on August 3, 1988, conjugal partnership of gains shall
govern the property relations because Art. 119 of the NCC
will apply. The provisions of the FC shall have no retroactive
effect because it shall impair vested rights.
Subsequent marriage contracted within one year
from the death of the deceased spouse without liquidation
of the community property or conjugal partnership of gains,
either judicially or extra-judicially, as required under
Arts.103 and 130 of the FC. In such case, a mandatory
regime of complete separation of property shall govern the
subsequent marriage (Rabuya, 2009).
---
Q: Marriage being a contract, may the parties enter into
stipulations which will govern their marriage?
A: The nature, consequences and incidents of marriage are
governed by law and not subject to stipulation between the
spouses. This, however, is not an absolute rule. The law
allows the spouses to fix their property relations during the
marriage through a device known as “marriage settlement”
subject only to the condition that whatever settlement they
may have must be within the limits provided by the Family
Code.
MARRIAGE SETTLEMENT
It is a contract entered into by a man and a woman who
intend or plan to get married fixing the property regime that
will govern their present and future properties during their
marriage. It is also called as Ante-nuptial Agreement
(Sempio-Diy, 1995).
Requisites of a valid Marriage Settlement (FC,Art. 77)
(1991, 2005 BAR) (W-SER)
 Civil Law
a. In Writing;
b. Signed by the parties; Those donations which are made before the celebration of
c. Executed before the celebration of marriage; the marriage, in consideration of the same, and in favor of
d. Registration (to bind 3rd persons) one or both of the future spouses.

The provisions in the marriage settlement must be in The formalities of the donation propter nuptias follows the
accordance with law, morals or public policy; otherwise same formalities as set forth in the law on donations.
such agreement is void (Paras, 2008).
NOTE: Donations of future property are governed by
A marriage settlement need not be notarized. The law is provisions on testamentary succession and formalities of
clear that the marriage settlements and any modification wills.
thereof shall be in writing signed by the parties and
executed before the celebration of the marriage (FC, Art. Donation propter nuptias (DPN) v. Ordinary Donation
77). The law merely requires it to be in writing; it does not
require that it be in a public instrument for purposes of its BASIS DONATION ORDINARY
validity (Albano, 2013). PROPTER DONATION
NUPTIAS
The marriage settlements must be registered in the proper
local civil registry where the marriage contract was Donations of future Governed by
recorded as well as in the proper registries of property in property are Title III, Book
order that they may prejudice or bind third persons (FC, Art. governed by the III of the NCC.
77). provisions on
testamentary
Additional requirements for validity of the MS succession and the
As to formalities
formalities of wills
ADDITIONAL [FC, Art. 84(2)].
FACTUAL SITUATION
REQUIREMENT

The ff. must be made a

If one of both of the parties
party to the MS,
are: Present property There is no
otherwise the MS is void:
may be donated up limit except
to 1/5 of the that the donor
Parents; or donor’s present shall leave
18-21 years old those required to give property if the sufficient
consent future spouses property for his
have chosen a support and
Sentenced with civil Guardian appointed by the regime other than that of all
interdiction court absolute relatives
community of entitled to
Guardian appointed by the As to inclusion of
Disabled property (FC, Art. support from
court present property
84). him (NCC, Art.
750) and
Modification of the marriage settlement (FC, Art. 76) further no
(2005 BAR) legitimes of
compulsory
For any modification in the MS to be valid: heirs shall be
1. The requisites for a valid MS must be present; impaired (NCC,
2. There must be judicial approval; Art. 752).
3. Subject to the provisions of Arts. 66, 67, 128, 135, and
136 of FC.
Future property Future
Effect on the ante-nuptial agreement in case the may be included property
marriage is not celebrated (FC, Art. 81) provided the cannot be
As to inclusion donation is mortis included (NCC,
GR: Everything stipulated in the settlements or contracts in causa [NCC, Art. Art. 751).
consideration of the marriage shall be rendered void. of future
property 84(2)].
XPN: Those stipulations not dependent upon, or are not
made in consideration of, the marriage, subsist.

DONATION PROPTER NUPTIAS OR DONATION BY

REASON OF MARRIAGE (FC, ART.88)

54
 PERSONS AND FAMILY RELATIONS

Grounds for Grounds for The prescriptive periods in other provisions of the Civil
revocation are revocation are Code should apply, depending on the ground of revocation
Revocation found in Art. 86 of found in law in Except for the action to revoke a donation to the guilty
FC. donations. spouse in case of a legal separation, which the second
paragraph of Art. 64 of the Code states must be brought
within 5 years from the time of the decree of legal
Requisites for Donation Propter Nuptias separation has become final, there is no other provision in
the Family Code on the period of prescription of the action
a. Made before celebration of marriage; to revoke a donation proper nuptias (Sempio-Diy, 2010).
b. Made in consideration of the marriage; and
c. Made in favor of one or both of the future spouses. PRESCRIPTIVE PERIOD
GROUNDS (FC, Art. 86)
Requisites if the DPN is made by one spouse in favor of (Reckoning Point)
the other
1. Marriage is not celebrated. 5 yrs
There must be a MS stipulating a
property regime other than AC; XPN: Those automatically From the time the
Donation in the MS be not more than 1/5 rendered void by law. marriage was not
of the present property; and solemnized on the fixed
There must acceptance by other spouse. date (FC, Art. 1149).

Rule regarding DPN made between spouses

2. Marriage is Ground for Revoked by operation of
GR: Future spouses cannot donate to each other more than judicially nullity: law.
1/5 of their present property and any excess from which declared
shall be considered void. void. a. Contracted
subsequent
XPN: If they are governed by ACP, then each spouse can marriage
donate to each other in their marriage settlements present before
property without limit, provided there is sufficient property prior
left for their support and the legitimes are not impaired. marriage
has been
Effect of donations of encumbered property judicially
declared
Such donations are valid. In case of foreclosure of the void.
encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be
liable for the deficiency. If the property is sold for more than
the total amount of the obligation, the donee shall be
entitled to the excess (FC, Art. 85). b. Any other 5 yrs
grounds.
Donations that may be revoked by the donor (FC, Art. Finality of judicial
86) declaration of nullity (if
action is to recover
A donation by reason of marriage may be revoked by the property).
donor in the following cases:
3. Marriage took place without 5 yrs
1. GR: Marriage is not celebrated or is judicially declared consent of parents or
void ab initio. guardian, when required by Time the donor came to
law. know that the required
XPN: donations made in the marriage settlements parental consent was not
obtained.
2. Marriage takes place without the required consent of
parents or guardians.
3. Marriage is annulled and donee acted in bad faith. 4. Marriage is annulled and 5 yrs
4. Upon legal separation, the donee being the guilty donee acted in bad faith.
spouse. Finality of decree.
5. If with a resolutory condition which was complied
with. 5. Upon legal separation (LS), 5 yrs
6. Donee has committed an act of ingratitude. donee being the guilty
spouse. Time decree of L.S has
Grounds for filing an action for revocation of a DPN and become final.
their respective prescriptive periods

55
 Civil Law

5 yrs
6. Donation subject to Rule regarding donations between spouses during the
resolutory condition which marriage (FC, Art. 87)
Happening of the
was complied with.
resolutory condition.
GR: Every donation or grant of gratuitous advantage, direct
or indirect, between spouses is considered void.
1 yr
XPN: Moderate gifts on the occasion of any family rejoicing.
7. Donee committed an act of
From donor’s knowledge
ingratitude. The aforementioned rules also apply to common law
of the commission of an
act of ingratitude. spouses (Matabuena v. Cervantes, G.R. No. L-28771, March
31, 1971).

Acts of ingratitude: (FC, Art. 765) __________________________________________________________________

1. Commission of an offense against the person, honor or PROPERTY RELATIONS OF SPOUSES

property of the donor, his wife or his children under
his parental authority;
2. GR: Imputation to the donor any criminal offense or
any act involving moral turpitude;
XPN: if the crime was committed against the donee
himself, his wife or his children under his authority
3. Undue refusal to support the donor when he is legally
or morally bound to give such support.
DONATIONS DURING THE MARRIAGE
___________________________________________________________________
Different property regimes which may be adopted by
future spouses
I. Absolute Community of Property (ACP);
II. Conjugal Partnership of Gains (CPG);
III. Absolute Separation of Property (ASOP);
IV. A combination of the above regimes;
V. Any other regime within limits provided by
the FC.
The rule against donation to one another between the
spouses does not include a spouse being a beneficiary of an
insurance contract over the life of the other (Gercio v. Sun
Life Assurance Co., of Canada, G.R. No. 23703, September 28
1925).

ACP v. CPG v. CSOP

ABSOLUTE COMMUNITY CONJUGAL PPARTNERSHIP COMPLETE SEPARATION

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

All the properties owned by the
spouses at the time of marriage
become community property.
Composition
Each spouse retains his/her property
before the marriage and only the fruits
and income of such properties become
part of the conjugal properties during
the marriage.

Effect of Separation In Fact

The separation in fact shall not affect the regime of ACP, but:
1. The spouse who leaves the conjugal home or refuses to live therein, without
just cause, shall not have the right to be supported;

56
 PERSONS AND FAMILY RELATIONS
2. When consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding.
3. In case of insufficiency of community or conjugal partnership property,
separate property of both spouses shall be solidarily liable for the support
of the family. Spouse present shall, upon proper petition in a summary
proceeding, be given judicial authority to administer or encumber any
specific separate property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter’s share (FC, Arts. 100 & 127).

Upon dissolution and liquidation of
the community property, what is
divided equally between the spouses
or their heirs is the net remainder of
the properties of the ACP.
Effect of Dissolution
Upon dissolution of the partnership, the
separate properties of the spouses are
returned and only the net profits of the
partnership are divided equally
between the spouses of their heirs.

Grounds for revival of former property regime Properties included in the absolute community

1. Civil interdiction of the prisoner-spouse terminates;
2. Absentee spouse reappears;
3. Court authorizes resumption of administration by
the spouse formerly exercising such power;
4. Spouse who has abandoned the conjugal home
returns and resumes common life with the other;
5. Parental authority is judicially restored to the spouse
previously deprived thereof;
6. Reconciliation and resumption of common life of
spouse who had been separated in fact for at least 1
year;
7. Spouses agree to revive their former property
regime.
Grounds for transfer of administration of the
exclusive property of each spouse
When one spouses:
1. Is sentenced to penalty with civil interdiction;
2. Becomes fugitive from justice or is hiding as an
accused in a criminal case;
3. Is judicially declared absent
4. Becomes guardian of another
NOTE: Transfer of administration of the exclusive
property of either spouses does not confer ownership
over the same (Rodriguez v. De la Cruz, G.R. No. 3629,
September 28, 1907).
I. ABSOLUTE COMMUNITY OF PROPERTY (ACP)
A property regime wherein the spouses are considered
co-owners of all property brought into the marriage, as
well as those acquired during the marriage, which are not
otherwise excluded from the community either by the
provisions of the Family Code or by the marriage
settlement (Rabuya, 2009).
Laws that govern the absolute community of
property
1. All the property owned by the spouses:
a. At the time of the celebration of the marriage; or
b. Acquired thereafter;
2. Property acquired during the marriage by gratuitous
title, if expressly made to form part of the community
property by the donor, testator or grantor;
3. Jewelry or properties with monetary value;
4. Winnings in gambling.
Properties excluded in the Absolute Community
1. Property acquired during the marriage by gratuitous
title and its fruits as well as income thereof unless the
grantor expressly provide they shall form part of the
community property;
2. Property for personal and exclusive use of either
spouse but jewelleries shall form part of the ACP
because of their monetary value;
3. Property acquired before the marriage by one with
legitimate descendants by former marriage and its
fruits and income, if any;
4. Those excluded by the marriage settlement (FC, Art.
92).
Presumption of inclusion in the absolute community
In absence of evidence, property acquired during the
marriage is presumed to belong to the community, unless
proven otherwise by strong and convincing evidence (FC,
Art. 93).
The sale or encumbrance of a conjugal property requires
the consent of both the husband and the wife (Guiang v.
CA, G.R. No. 125172, June 26, 1998). The absence of the
consent of one renders the entire sale or encumbrance
null and void, including the portion of the conjugal
property pertaining to the husband who contracted the
sale. Neither would the conjugal partnership be liable for
the loan on the ground that it redounded to the benefit of
the family (Homeowners Savings & Loan Bank v. Dailo, G.R.
No. 153802, March 11, 2005).

1. Family Code A wife, by affixing her signature to a deed of sale on the

2. Civil Code provisions on co-ownership space provided for witnesses, is deemed to have given her
implied consent to the contract of sale. The consent need

57
 Civil Law
not always be explicit or set forth in any particular
document so long as it is shown by acts of the wife that
such consent or approval was in fact given (Pelayo v.
Perez, G.R. No. 141323, June 8, 2005).
When the sale was entered into prior to the effectivity of
the FC Art.173, in relation to Art. 166 of the NCC will apply
if there was a finding of lack of the wife's consent. Under
said provisions, the sale would have been merely
voidable, and not void.
The use of the jurat, instead of an acknowledgment, does
not elevate the marital consent into the level of a public
document but instead consigns it to the status of a private
writing. Hence, the presumption of regularity does not
apply and the wife still needs to prove its genuineness and
authenticity as required under the rules of evidence (Pan
Pacific Industrial Sales Co., Inc. v. CA, G.R. No. 125283,
February 10, 2006).
The fact that the document contains a jurat, and not an
acknowledgment, should not affect its genuineness or
that of the related document of conveyance itself, the
Deed of Absolute Sale. In this instance, a jurat suffices as
the document only embodies the manifestation of the
spouse's consent, a mere appendage to the main
document (Pan Pacific Industrial Sales Co., Inc. v. CA, G.R.
No. 125283, February 10, 2006).
A. CHARGES UPON AND OBLIGATIONS OF THE
ABSOLUTE COMMUNITY PROPERTY
Charges upon the ACP
1. The support of
a. The spouses
b. Their common children
c. Legitimate children of either spouse;
NOTE: Support of illegitimate children of either
spouse is chargeable to exclusive property of the
illegitimate parent (FC, Art. 197).
2. All debts and obligations contracted during the
marriage by:
a. the designated administrator-spouse for the
benefit of the community
b. by both spouses
c. by one spouse with the consent of the other;
3. Debts and obligations contracted by either spouse
without the consent of the other to the extent that
the family may have been benefited;
4. All taxes, liens, charges and expenses, including
major or minor repairs, upon the community
property;
5. All taxes and expenses for mere preservation made
during marriage upon the separate property of
either spouse used by the family;
6. Expenses to enable either spouse to commence or
complete a professional or vocational course, or
other activity for self-improvement;
7. Ante-nuptial debts of either spouse insofar as they
have redounded to the benefit of the family; (2007
BAR)
58
NOTE: For ante-nuptial debts, those contracted by
one spouse without the consent of the other during
the marriage and those contracted by the
administrator-spouse, the burden of proof that such
debts were contracted for the benefit of the
community or of the family lies with the creditor-
party litigant claiming as much (Rabuya, 2009).
8. The value of what is donated or promised by both
spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
completing a professional or vocational course or
other activity for self-improvement;
9. Payment, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, of:
a. Ante-nuptial debts of either spouse which did
not redound to the benefit of the family;
b. The support of illegitimate children of either
spouse;
c. Liabilities incurred by either spouse by reason
of a crime or quasi-delict;
NOTE: The payment of which shall be considered as
advances to be deducted from the share of the
debtor-spouse upon liquidation of the community
10. Expenses of litigation between the spouses.
However, if suit is found to be groundless, it cannot
be charged against the ACP (FC, Art. 94).
ACP v. CPG as to charges
ACP (FC, Art. 84) CPG (FC, Art. 121)
Support of the spouses, their common children, and
legitimate children of either spouse.
Debts and obligations contracted during
marriage:
a. By the administrator spouse designated in the
marriage settlement/appointed by court/one
assuming sole administration;
b. By one without the consent of the other;
c. By one with the consent of other; or
d. By both spouses
e. For (a) and (b), creditor has the burden of
proving benefit to the family and ACP/CPG
chargeable to the extent of benefit proven,
otherwise, chargeable to the separate property of
the obligor spouse.
f. For (c) and (d), real (Rul) benefit to family is
presumed.
All taxes, liens, charges and expenses including minor
repairs upon ACP or CP.
Expenses to enable either spouse to
commence/complete a professional, vocational or
other activity for self-improvement.
Value donated/promise by both spouses in favor of
common legitimate children for exclusive purpose of
commencing or completing professional or vocational
course or other activity for self-improvement.
 PERSONS AND FAMILY RELATIONS
Expenses of litigation between spouses unless the suit
is found to be groundless.
For illegitimate
For illegitimate children, support from
children, support from separate property of
separate property of person obliged to give
person obliged to give support. In case of
support. In case of insufficiency or absence
insufficiency or absence of of separate property, CP
separate property, ACP shall advance support,
shall advance support, chargeable to share of
chargeable to share of parent upon liquidation,
parent upon liquidation. but only after
obligations in Art. 121
have been covered (FC,
Art. 21).
Taxes and expenses for
Taxes and expenses for mere preservation
preservation during during marriage upon
marriage upon separate separate property of
property of either spouse either spouse,
used by family. regardless of whether
used by the family
because the use and
enjoyment of separate
property of the spouses
belong to the
partnership.
There is no presumption that the obligations incurred by
one of the spouses during the marriage are charged
against their community of property. Before any
obligation may be chargeable against the community of
property, it must first be established that such obligation
is among the charges against the same (Wong, et al, v. IAC,
G.R. No. 70082, August 19, 1991).
---
Insufficiency of the community property to cover
liabilities
GR: The spouses shall be solidarily liable for the unpaid
balance with their separate properties.
XPN: Those falling under paragraph 9 of Art. 94. of the
Family Code (Ante-nuptial debts, support of illegitimate
children, liabilities incurred by spouse by reason of a
crime or quasi-delict) –in which case the exclusive
property of the spouse who incurred such debts will be
liable. However, if the exclusive property is insufficient,
payment will be considered as advances to be deducted
from share of debtor-spouse (FC, Art. 94 [9]).
B. OWNERSHIP, ADMINISTRATION, ENJOYMENT
AND DISPOSITION OF THE ABSOLUTE
COMMUNITY PROPERTY
Administration of Community Property

For ante-nuptial debts, GR: The administration of community property belongs

1. Ante-nuptial debts are same as ACP but in case to both spouses jointly.
chargeable to ACP if of insufficiency of
they redounded to the separate property,
benefit of family. obligations enumerated XPN:
2. Personal debts not in Art. 121 must first be 1. Agreement that only one of the spouses shall
redounding to benefit satisfied before such administer the community property;
of the family such as debts may be 2. If one spouse is incapacitated or otherwise unable to
liabilities incurred by chargeable to the CP participate in the administration of the common
reason of crime or (FC, Art. 12). properties – capacitated or able spouse may assume
quasi-delict are
sole powers of administration without the need of
chargeable to the
court approval or authorization;
separate property of
3. If a spouse without just cause abandons the other or
the debtor spouse.
fails to comply with his or her obligations to the
3. In case of insufficiency
family, the aggrieved spouse may petition the court
of separate property,
for sole administration;
chargeable to ACP but
4. During the pendency of the legal separation case, the
considered advances
court may designate either of the spouses as sole
deductible from the
administrator.
share of the debtor-
spouse upon
NOTE: But such powers do not include:
liquidation.
1. Disposition;
2. Alienation; or
---
3. Encumbrance of the conjugal or community
Q: An individual, while single, purchases a house and
property.
lot in 1990 and borrows money in 1992 to repair it. In
1995, such individual is married while the debt is still
"Court authorization" in the sale of conjugal
being paid. After the marriage, is the debt still the
properties
responsibility of such individual? (2007 BAR)
Court authorization is resorted to in cases where the
A: NO. Ante-nuptial debts of either spouse shall be
spouse who does not give consent is incapacitated. If
considered as the liability of the absolute community of
there is no showing that the spouse is incapacitated, court
property insofar as they have redounded to the benefit of
authorization cannot be sought (Manalo v. Fernandez, G.R.
the family.
No. 147928, January 23, 2002).

59
 Civil Law
Disagreement in the administration of community
property (FC, Art. 96)
In case of disagreement, the decision of the husband shall
prevail but subject to recourse to the court by the wife for
proper remedy.
NOTE: Prescriptive period for recourse is within 5 years
from the date of the contract implementing such decision.
Sale or Disposition of Community Property
Alienation or encumbrance of community property must
have the written consent of the other spouse or the
authority of the court without which the disposition or
encumbrance is VOID. However, the transaction shall be
construed as a continuing offer on the part of the
consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors (FC, Arts. 96
and 124; Sps. Antonio and Luzviminda Guiang v. CA, et al.,
G.R. No. 125172, June 26, 1998).
The absence of consent of one of the spouses renders the
entire sale null and void, including the sale of the portion
of the conjugal property pertaining to the spouse who
contracted the sale.
The consent of one spouse regarding the disposition does
not always have to be explicit or set forth in any particular
document, so long as it is shown by acts of the said spouse
that such consent or approval was indeed given (Sps.
Cirelos v. Sps. Hernandez, et al. G.R. No. 146523, June 15,
2006). However, even if the other spouse actively
participated in negotiating for the sale of the property,
that other spouse's written consent to the sale is required
by law for its validity. Being aware of a transaction is not
consent (Jader-Manalo v. Camaisa, G.R. No. 147978,
January 23, 2002).
---
Q: Marco and Gina were married in 1989. In 1999,
Gina left Marco and lived with another man, leaving
the two children of school age with Marco. When
Marco needed money for their children’s education
he sold a parcel of land registered in his name,
without Gina’s consent, which he purchased before
his marriage. Is the sale by Marco valid, void, or
voidable? Explain with legal basis. (2015 BAR)
A: The sale is VOID. The parties were married in 1989. In
the absence of a marriage settlement, the parties shall be
governed by ACP whereby all the properties owned by the
spouses at the time of the celebration of the marriage as
well as whatever they may acquire during the marriage
shall form part of the absolute community. In ACP, neither
spouse can sell or encumber property belonging to the
ACP without the consent of the other. Any sale or
encumbrance made by one spouse without the consent of
the other shall be void although it is considered as a
continuing offer on the part of the consenting spouse
upon authority of the court or written consent of the other
spouse.
---
60
Q: Does the prohibition cited above include lease by
the husband over properties of the community of
property without the consent of the wife?
A: YES. In the contract of lease, the lessor transferred his
right of use in favor of the lessee. The lessor's right of use
is impaired therein. He may even be ejected by the lessee
if the lessor uses the leased realty. Therefore, the lease is
a burden on the land. It is an encumbrance on the land.
Moreover, lease is not only an encumbrance but also a
qualified alienation, with the lessee becoming, for all
intents and purposes, and subject to its terms, the owner
of the thing affected by the lease (Roxas v. CA, G.R. No.
92245, June 26, 1991).
---
Donation of a community property by a spouse
GR: A spouse cannot donate any community property
without the consent of the other.
XPN: Moderate donations for charity or on occasion of
family rejoicing or distress (FC, Art. 98).
Separation in fact between husband and wife (FC, Art.
100)
GR: Such separation does not affect the regime of absolute
community
XPNs:
1. Spouse who leaves the conjugal home or refuses to
live therein without just cause has no right to be
supported;
2. When consent of one spouse to any transaction of the
other spouse is required by law, judicial
authorization must be obtained;
3. If community property is insufficient, the separate
property of both spouses shall be solidarily liable for
the support of the family.
Abandonment (1999, 2003 BAR)
If a spouse without just cause abandons the other or fails
to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for:
1. Receivership;
2. Judicial separation of property;
3. Authority to be the sole administrator of the absolute
community (FC, Art. 101).
Presumption of Abandonment
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 (Pineda,
2008).
The presumption is rebuttable by the presentation of
clear, strong and convincing evidence that the absent
spouse did not intend to leave the present spouse and
family (Pineda, 2008).
 PERSONS AND FAMILY RELATIONS
Prohibition against the sale of property between
spouses
GR: Spouses cannot sell property to each other.
XPNs:
1. When a separation of property was agreed upon in
the marriage settlement;
2. When there has been a judicial separation of
property under Articles 135 and 136 of the Family
Code (NCC, Art. 1490).
NOTE: The proscription against the sale of property
between spouses under Art. 1490 of the New Civil Code
applies even to common law relationships. In an earlier
ruling, the SC nullified a sale made by a husband in favor
of a concubine, after he had abandoned his family and left
the conjugal home where his wife and children lived, and
from whence they derived their support, for being
contrary to morals and public policy. The sale was
regarded by the court as subversive of the stability of the
family, a basic social institution which public policy
cherishes and protects (Ching v. CA, G.R. No. 165879,
November 10, 2006).
C. DISSOLUTION OF ABSOLUTE COMMUNITY
REGIME
Dissolution of Absolute Community Property (2009
BAR)
Absolute Community Property is terminated by: (FC, Art.
99)
1. Death of either spouse;
NOTE: If the surviving spouse contracts another
marriage without compliance with the foregoing
requirement, a mandatory regime of complete
separation shall govern the property relations of the
subsequent marriage.
Upon lapse of the one-year period and liquidation is
made, any disposition or encumbrance involving the
community property of the terminated marriage
shall be void (FC, Art. 103).
The reason for the law is that, the law seeks to protect
the children's interest in the first marriage (Albano,
2013).
2. Legal separation;
3. Annulment;
4. When the marriage is declared void under Art.40 of
the Family Code;
5. Judicial separation of property during marriage (FC,
Art. 99).
NOTE: The absolute community of property or the
conjugal partnership is considered dissolved only upon
the issuance of the judicial decree of separation, not at the
moment when the parties enter into a compromise
agreement in the course of the proceedings for separation
of property (Albano, 2013).
61
D. LIQUIDATION OF THE ABSOLUTE
COMMUNITYASSETS AND LIABILITIES
Procedure in case of dissolution of ACP
1. Inventory of all properties of the ACP, listing
separately the communal properties from exclusive
properties of each spouse;
2. Payment of community debts;
NOTE: First, pay out of the community assets. If not
enough, husband and the wife are solidarily liable for
the unpaid balance with their separate properties.
3. Delivery to each spouse of his/her remaining
exclusive properties;
4. Equal division of net community assets
Unless there is:
a. An agreement for a different proportion; or
b. A voluntary waiver of such share;
5. Delivery of the presumptive legitimes of the common
children;
6. Adjudication of conjugal dwelling and custody of
common children (FC, Art. 102).
Applicable procedure in the dissolution of the ACP in
case the marriage is terminated by death
Community property shall be liquidated in the same
proceeding for the settlement of the estate of the
deceased.
If no judicial proceeding is instituted, the surviving
spouse shall, judicially or extra-judicially, liquidate the
community property within 1 year from the death of the
deceased spouse (FC, Art. 103).
Consequences of failure to liquidate within 1 year
1. Failure to liquidate the community property within 1
year from the death of the deceased spouse contrary
to Art. 103 of the Family Code, would render any
disposition or encumbrance involving community
property of the terminated marriage void.
2. If the surviving spouse contracts a subsequent
marriage without compliance with the foregoing
requirements, the subsequent marriage shall be
governed, mandatorily, by a regime of complete
separation of property (Rabuya, 2006).
II. CONJUGAL PARTNERSHIP OF GAINS (CPG)
It is the property relation formed by the husband and the
wife by placing in a common fund: (FC, Art. 106)
1. The proceeds, product, fruits and income of their
separate properties;
2. Those acquired by either or both of them through:
a. Effort;
b. Chance.
Commencement of CPG
CPG shall commence at the precise moment when the
marriage ceremony is celebrated.
 Civil Law
Law that governs the conjugal partnership
The rules on the contract of partnership in all that is not
in conflict with what is expressly determined in the FC
and by the spouses in their marriage settlements (FC, Art.
108).
Only inchoate right over conjugal property
The interest of the spouses in the conjugal properties is
only inchoate or a mere expectancy and does not ripen
into title until it appears the dissolution and liquidation of
the partnership that there are net assets (Sempio-Diy,
1995).
EXCLUSIVE PROPERTY OF THE SPOUSES (FC, ART.
109)
1. Those brought into the marriage as his/her own;
NOTE:
(a) A property purchased before the marriage and
fully paid during the marriage remains to be a
separate property of either spouse (Lorenzo v.
Nicolas, G.R. No. L-4085, July 30, 1952).
(b) Fruits and income of said properties shall be
included the conjugal partnership
(c) Those included therein in the marriage
settlement, subject to the 1/5 limitation under
Article 84 and the rule in Article 92(3) of the
Family Code which apply by analogy
2. Those acquired during the marriage by
gratuitous title;
NOTE:
1. Pensions will not form part of the conjugal
partnership of gains when it is given to him
voluntarily and he is not entitled as a matter of
right such as a fruit of industry or labor.
2. Proceeds of life insurance policy will not form
part of the conjugal partnership of gains when
the beneficiary of the life insurance is the estate
and the premiums are sourced from the
separate property of the spouse.
3. Retirement Benefits will not form part of the
conjugal partnership of gains when it is given to
him voluntarily and he is not entitled as a matter
of right such as a fruit of industry or labor.
3. Those acquired by right of redemption, barter or
exchange with exclusive property;
NOTE: In right of redemption, for it to form part of
the exclusive property of the spouse, the ownership
over such property must still pertain to the said
spouse.
4. That purchased with exclusive money of either
spouse.
NOTE: The controlling factor is the source of the
money used, or the money promised to be paid.
Alienation of exclusive properties of either spouse
62
Either spouse may mortgage, encumber, alienate or
otherwise dispose of his or her exclusive property (FC,
Art. 111 as amended by R.A. 10572).
Rules in cases of improvement of exclusive property
(FC, Art. 120)
1. Reverse accession – If the cost of the improvement
and the value of the improvement is more than the
value of the principal property at the time of the
improvement, the entire property becomes conjugal.
NOTE: For reverse accession to apply, the separate
property must be owned by a spouse exclusively at
the time of the introduction of the improvement
neither it will apply if the property is partly owned
by a spouse and partly owned by a third person.
2. Accession– If the cost of the improvement and the
value of the improvement isequal to or less than the
value of the principal property, the entire property
becomes the exclusive property of the respective
spouse.
NOTE: In either case, there shall be reimbursement
upon the liquidation of the conjugal partnership and
ownership of entire property shall be vested only
upon reimbursement.
---
Q: A parcel of land is owned by the father of W. With
his permission, H and W constructed their house over
the said parcel of land. After some time, the father of
W died leaving W as his sole heir. Who now owns the
parcel of land and the improvements introduced by
the H and W? Assume that the property regime of the
H and W is conjugal partnership of gains.
A: The wife will now own both the parcel of land the house
introduced by H and W. Reverse Accession under Article
120 of the Family Code will not apply since at the time of
the introduction of the improvement the parcel of land is
owned by the father of W which she inherited it when her
father died. What will apply here instead is the ordinary
rule of accession. However, the conjugal partnership of
gains will still enjoy the said property as a usufructuary
and W will be the naked owner thereof.
---
Presumption of inclusion of property in the Conjugal
Partnership of Gains
GR: All property acquired during the marriage, whether
the acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is
presumed to be conjugal.
XPN: Unless the contrary is proved.
Obligations Chargeable to Separate Property
1. Support of illegitimate children;
2. Liabilities incurred by reason of a crime or quasi-
delict;
3. Expenses of litigation between the spouses if found
to be groundless;
 PERSONS AND FAMILY RELATIONS
4. Debts contracted during the marriage by the
administrator-spouse which does not benefit the
community;
5. Debts contracted during the marriage without the
consent of the other which did not benefit the family;
6. Ante-nuptial debts by either spouse which did not
benefit the family;
7. Taxes incurred on the separate property which is not
used by the family;
8. Expenses incurred during the marriage on a separate
property if the property is not used by the family and
not for its preservation.
CONJUGAL PARTNERSHIP PROPERTY
Composition of CPG (1995, 1998, 2004, 2005, 2008
BAR) (FC, Art. 117)
1. Those acquired by onerous title during the marriage
with conjugal funds;
NOTE: Requisites:
a. Acquisition is made during the marriage,
b. Thru onerous title,
c. At the expense of common fund;
2. Those obtained from labor, industry, work or
profession of either or both spouses;
3. Fruits of conjugal property due or received during
the marriage and net fruits of separate property;
NOTE: Net fruits refer to the remainder of the fruits
after deducting the amount necessary to cover the
expenses of administration of said exclusive
property.
4. Share of either spouse in hidden treasure;
5. Those acquired through occupation such as hunting
or fishing;
6. Livestock in excess of what was brought to the
marriage;
7. Those acquired by chance such as winnings in
gamblings and bettings (FC, Art. 117).
Property bought through instalment (FC, Art. 118)
Requisites:
1. Property is bought on installment prior to the
marriage; and
2. Paid partly from exclusive funds and partly from
conjugal funds.
Rules in determining ownership:
1. If full ownership was vested before the marriage – it
shall belong to the buyer spouse.
2. If full ownership was vested during the marriage – it
shall belong to the conjugal partnership.
NOTE: In either case, any amount advanced by the
partnership or by either or both spouses shall be
reimbursed by the owner/s upon liquidation of the
partnership.
---
Q: Yamane asserts that the parcel of land, which was
purchased at auction, belonged to the conjugal
partnership of him and his late wife. In the title, his
63
name appeared to be merely descriptive of the civil
status of the registered owner, his late wife. The
purchase took place prior to the advent of the Family
Code. Is the property conjugal or paraphernal
property of his late wife?
A: CONJUGAL. In this case, the provisions of the NCC
would apply since the purchase took place before the FC
took effect. Under Art. 160 of the NCC, all property of the
marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains
exclusively to the husband or the wife. In this case, there
was no proof that the property had been acquired
exclusively by Yamane's late wife. The mere registration
of a property in the name of one spouse does not destroy
its conjugal nature in the absence of strong, clear and
convincing evidence that it was acquired using the
exclusive funds of said spouse (Spouses Go v. Yamane, G.R.
No. 160762, May 3, 2006).
---
Q: Dolores seeks to recover a parcel of land, alleging
that she and her husband acquired such during their
marriage, that it formed part of their conjugal
properties and that he sold it without her consent. She
presents as evidence their marriage contract and the
initial tax declaration over the property.
A: RECOVERY IS NOT WARRANTED. The rule is all
property of the marriage is presumed to be conjugal in
nature. However, for this presumption to apply, the party
who invokes it must first prove that it was acquired during
the marriage. Here, Dolores' evidence consisted of her
marriage contract and the initial tax declaration over the
property. She did not identify when she and her husband
first occupied and possessed the land. Neither did she
present any witness to prove that they first occupied the
property during their marriage and that they both worked
on the land (Pintiano-Anno v. Anno, G.R. No. 163743,
January 27, 2006).
The presumption of conjugality of the properties of the
husband and wife applies only when there is proof that
the property was acquired during the marriage. If there is
no showing as to when the properties alleged to be
conjugal were acquired, the presumption does not apply
(Francisco v. CA, G.R. No. 102330, November 30, 1998).
Proof of acquisition during the coverture is a condition
sine qua non to the operation of the presumption in favor
of the conjugal partnership (Pintiano-Anno, v. Anno, et al.,
G.R. No. 163743, January 27, 2006).
---
Effect if properties were registered during the
marriage
The fact that the properties were registered in the name
of the spouses is no proof that the properties were
acquired during the marriage. It is well-settled that the
registration does not confer title but merely confirms one
already existing (Jocson v. CA, G.R. No. L-55322, February
16, 1989).
---
Q: H & W got married on October 1926. H
subsequently cohabited with X. During the
cohabitation of H with X, H acquired certain
properties and places his status as single. What is the
 Civil Law
nature of said properties?
A: THEY ARE CONJUGAL PROPERTIES. Whether a
property is conjugal or not is determined by law and not
by the will of one of the spouses. No unilateral declaration
by one spouse can change the character of conjugal
property. The clear intent of H in placing his status as
single is to exclude W from her lawful share in the
conjugal property. The law does not allow this. The
cohabitation of a spouse with another person, even for a
long period, does not sever the tie of a subsisting previous
marriage. H and X’s cohabitation cannot work to the
detriment of W as the legal spouse. The marriage of H and
W continued to exist regardless of the fact that H was
already living with X. Hence, all property acquired from
the date of their marriage until the death of W are
presumed conjugal. It was neither claimed nor proved
that any of the subject properties was acquired outside or
beyond this period (Villanueva v. CA, G.R. No. 143286, April
14, 2004).
---
Q: Suppose a property was acquired by one spouse
while they were living separately, is this property
conjugal or not?
A: It is presumed to be conjugal. All property acquired
during the marriage regardless of whether the spouses
are living together or not, are presumed to be conjugal
property (Flores v. Escudero, G.R. No. L-5302, March 11,
1953).
---
A. CHARGES UPON AND OBLIGATIONS OF THE
CONJUGAL PARTNERSHIP OF GAINS (CPG)
1. Support of the spouses, their common children and
the legitimate children of either spouse;
2. Debts and obligations contracted by one without the
consent of the other to the extent that the family
benefited;
3. Debts and obligations contracted during the
marriage by an administrator-spouse, both spouses
or one with the consent of the other;
4. Taxes, liens, charges, expenses, including major or
minor repairs upon conjugal property;
5. Taxes and expenses for mere preservation made
during the marriage of separate property;
6. Expenses for professional, vocational or self-
improvement courses of either spouse;
7. Ante-nuptial debts to the extent the family has been
benefited;
8. Value of what is donated or promised to common
legitimate children for professional, vocation or self-
improvement courses;
9. Expenses of litigation between the spouses unless
the suit is found to be groundless (FC, Art. 121).
NOTE: If the conjugal partnership is insufficient to cover
the foregoing liabilities, spouses shall be solidarily liable
for the unpaid balance with their separate properties.
Charges against the Separate Property that may be
charged upon the CPG
Requisites:
64
1. All the responsibilities of the partnership have
already been covered; and
2. The spouse who is bound has no exclusive properties
or the same are insufficient.
Charges:
1. Personal debts of either spouse contracted before the
marriage which did not redound to the benefit of the
family;
2. Support of the illegitimate children of either spouse;
3. Fines and indemnities arising from delicts and quasi-
delicts.
If levy was made on the conjugal property by reason of the
husband being a guarantor, the levy is improper. The
payment of personal debts contracted by the husband or
the wife before or during the marriage shall not be
charged to the conjugal partnership except as they
redounded to the benefit of the family (FC, Art. 122).
(2000, 2005 BAR)
---
Q: If one of the spouses committed the crime of
slander and was held liable for damages in a damage
suit, is it chargeable against the conjugal partnership?
A: NO. Unlike in the system of absolute community where
liabilities incurred by either spouse by reason of a crime
or quasi-delict is chargeable to the absolute community of
property, in the absence or insufficiency of the exclusive
property of the debtor-spouse, the same advantage is not
accorded in the system of conjugal partnership of gains.
To reiterate, conjugal property cannot be held liable for
the personal obligation contracted by one spouse, unless
some advantage or benefit is shown to have accrued to the
conjugal partnership (Go v. Yamane, G.R. No. 160762, May
3, 2006).
---
B. ADMINISTRATION OF THE CONJUGAL
PARTNERSHIP OF GAINS (ART. 124)
GR: The right to administer the conjugal partnership
belongs to both spouses jointly.
XPN:
1. If one spouse is incapacitated or otherwise unable to
participate in the administration of the common
properties – capacitated or able spouse may assume
sole powers of administration.
2. If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court
for sole administration.
3. During the pendency of a legal separation case, the
court may designate either of the spouse as sole
administrator.
But such powers do not include:
1. Disposition;
2. Alienation; or
3. Encumbrance of the conjugal or community
property.
---
Q: A and B are husband and wife who were under de
facto separation. Two of their conjugal properties
were subject of a deed of sale. B, the wife, presented
 PERSONS AND FAMILY RELATIONS
an SPA executed by A, her husband, authorizing her to
sell the properties. Spouses C and D agreed entered
into a deed of sale with B and agreed with the terms
of the payment covering the two parcels of land of
Spouses A and B. However, when B already needed to
turn over the owner’s duplicate copies for both lands,
she was able to turn over only one. Thereafter, the
spouses found out that said copy of title for the other
parcel of land was in the hands of A’s brother. The
spouses C and D met with A’s brother, E, who told
them that he is the one with the power to sell the
property and not Ma. Elena. Nevertheless, spouses C
and D complied with the terms of payment with B. A,
upon knowledge of the sale made by his wife B
commenced an action nullifying the deed of sale
contending that there was no authority on the part of
B to sell the subject lots. Is A’s contention correct?
A: YES. A is correct. The Court ruled that the sale of
conjugal property without the consent of the husband was
not merely voidable but void; hence, it could not be
ratified. The relevant part of Article 124 of the Family
Code provides that: xxx 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
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 (Aggabao v.
Parulan Jr. and Parulan, G.R. No. 165803, September 1,
2010) (BERSAMIN, J.).
---
Disagreement in the administration of the CPG
In case of disagreement, the decision of the husband shall
prevail subject to recourse to the court by the wife for
proper remedy.
NOTE: Prescriptive period for recourse is 5 years from
the date of the contract implementing such decision.
(2000, 2002 BAR)
C. DISSOLUTION OF CONJUGAL PARTNERSHIP OF
GAINS
Conjugal partnership is terminated by:
1. Death of either spouse;
2. Legal separation;
3. Annulment or Declaration of Nullity;
4. Judicial separation of property during marriage (FC,
Art. 126).
D. LIQUIDATION OF THE CONJUGAL PARTNERSHIP
ASSETS AND LIABILITIES
1. Inventory of all the properties;
2. Restitution of advances made to each of the spouses;
3. Reimbursement for use of exclusive funds;
4. Debts and obligations of the CP are paid;
5. Delivery of exclusive properties;
6. Payment of losses and deterioration of movables
belonging to each of the spouses;
7. Division of the net conjugal partnership;
65
8. Delivery of the common children’s presumptive
legitimes;
9. Adjudication of conjugal dwelling and custody of
common children (FC, Art. 129).
Liquidation of community property if the termination
of the marriage by death
Upon termination of marriage by death, the community
property shall be liquidated in the same proceeding for
the settlement of the estate of the deceased spouse (FC,
Art. 130).
Support to the surviving spouse and to the children
during liquidation
The support to be given to the surviving spouse and to the
children during liquidation shall come from the common
mass of property and shall be particularly charged against
the fruits, rents or income pertaining to their shares to the
inventories property. But where the support given
exceeds the fruits, rents or income pertaining to their
shares, the excess shall be deducted from their respective
shares as these are deemed advances from the
inventoried property (FC, Art. 133).
Liquidation of community property in the absence of
a judicial settlement proceeding (FC, Art. 130)
In the absence of a judicial settlement proceeding, the
surviving spouse shall liquidate the community property
either, judicially or extra-judicially within 1 year from the
death of the deceased spouse.
If during the liquidation of the CP, the conjugal
partnership assets are less than the conjugal partnership
liabilities, the surviving spouse and the children shall not
be entitled to support.
Effects if the community property is not liquidated
(FC, Art. 130)
1. Any disposition or encumbrance made by the
surviving spouse involving community property of
the terminated marriage shall be void.
2. Should the surviving spouse contract a subsequent
marriage a mandatory regime of complete
separation of property shall govern the property
relations of the subsequent marriage.
III. COMPLETE SEPARATION OF PROPERTY
(CSOP)
The system of complete separation of property will
govern the property relations between the spouses only
in the following cases:
1. When it is expressly provided for in the marriage
settlement
2. When it is so decreed by a competent court
3. Mandatory regime of complete separation of
property
4. By failure of the surviving spouse to liquidate the
absolute community or conjugal partnership of gains
of a previous marriage which has been terminated by
death within the one-year period required by law
 Civil Law
prior to contracting another marriage. The
subsequent marriage is mandatorily governed by a
regime of complete separation.
Rules governing the regime of separation of property
1. Marriage settlement
2. Family Code in supplemental character (FC, Art. 149)
Kinds of separation of property
1. As to extent: (FC, Art. 144)
a. Total
b. Partial – In this case, the property not agreed
upon as separate shall pertain to the absolute
community.
2. As to kinds of property: (FC, Art. 144)
a. Present property
b. Future property
c. Both present and future property
Instances when separation of property is allowed
(FC, Art. 134)
1. By agreement through marriage settlement
2. By judicial order
Sufficient causes for judicial separation of property
1. Civil interdiction of the spouse of petitioner;
2. Judicial declaration of absence;
3. Loss of parental authority as decreed by the court;
4. Abandonment or failure to comply with family
obligation; (2003 BAR)
5. Administrator spouse has Abused authority;
6. Separation in fact for one year and reconciliation is
highly improbable (FC, Art. 135).
NOTE: In cases provided in 1, 2 and 3, the presentation of
the final judgment against the guilty or absent spouse
shall be enough bases for the grant of the decree of judicial
separation of property.
Effects of judicial separation of property between
spouses
1. The absolute community or conjugal partnership is
dissolved;
2. The liability of the spouses to creditors shall be
solidary with their separate properties;
3. Mutual obligation to support each other continues
except when there is legal separation;
4. Rights previously acquired by creditors are not
prejudiced.
In case of voluntary agreement for the separation of
property, the law does not require specific reasons to
justify the Court in approving the same. The law leaves the
matter to the discretion of the court (Sempio-Diy, 1995).
(2005 BAR)
Rights of the spouses under the regime of separation
of property
66
1. Each spouse shall own, dispose of, administer,
possess, and enjoy his or her own separate property,
without need of the consent of the other.
2. Each spouse shall own all earnings from his or her
profession, business or industry and all fruits,
natural, industrial or civil, due or received during the
marriage from his or her separate property (FC, Art.
145).
Liabilities of the spouses for family expenses under
the regime of separation of property (FC, Art. 146)
GR: Both spouses shall bear the family expenses in
proportion to their income.
XPN: In case of insufficiency or default thereof, to the
current market value of their separate properties.
Revival of previous property regime
If the spouses opted for voluntary separation of property,
the parties may agree to the revival even in the absence of
a reason/ground. However, a subsequent voluntary
separation of property is no longer allowed.
If the separation of property is for a sufficient cause, the
revival of the previous property regime depends upon the
cessation of the ground which was the basis of the judicial
order. A subsequent judicial separation of property for a
sufficient cause may be allowed so long as there is a new
ground to rely on.
The procedure of the revival of previous property regime
is the same as those followed upon reconciliation of the
spouses after the finality of legal separation.
Transfer of Administration of Exclusive Property to
another Spouse during the Marriage
(a) By agreement
Requisites:
1. By means of a public instrument;
2. To be recorded in the registry of property of
the place where the property is located.
(b) By order of the court upon petition
Based on these grounds:
1. Other spouse becomes the guardian of the
other;
2. The other spouse is judicially declared an
absentee;
3. Other spouse is sentenced to a penalty which
carries with it civil interdiction; or
4. Other spouse becomes fugitive from justice
or hiding as an accused in a criminal case (FC,
Art. 142).
 PERSONS AND FAMILY RELATIONS
IV. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

BASIS ART. 147(1997, 2000, 2006, 2009, 2010 BAR) ART. 148(1992, 1998, 2000, 2006, 2009 BAR)
1. Parties without legal impediment to marry; With legal impediment caused by:
2. Void marriage on the ground of psychological 1. Adulterous relationships
incapacity. 2. Bigamous/polygamous marriages
Applicability 3. Incestuous void marriages under Art. 37
4. Void marriages by reason of public policy (FC,
Art. 38).

1. The man and the woman must be capacitated 1.
to marry each other;
2. live exclusively with each other as husband
and wife; and
As to requisites 3. their union is without the benefit of marriage 2.
or their marriage is void (Mercado-Fehr v. Fehr,
G.R. No. 152716, October 23, 2003
Salas, Jr. v. Aguila, G.R. No. 202370, 2013).
The man and the woman must be
incapacitated to marry each other or they do
not live exclusively with each other as
husband and wife; and
Their union is without the benefit of marriage
or their marriage is void (FC, Art. 148).

Owned in equal shares Separately owned by the parties. If any is

married, his/her salary pertains to the CPG of
Salaries & wages
the legitimate marriage.

Belongs to party Belongs to such party

Property exclusively
upon proof of acquisition through exclusive funds
acquired
Property acquired by Governed by rules of co-ownership Owned in common in proportion to their
both through their respective contributions
work or industry
Property acquired while living together No presumption of joint acquisition.
presumed obtained by their joint efforts, work
or industry and owned by them in equal shares. Actual joint contribution of money, property or
industry shall be owned by them in common
If one party did not participate in acquisition: proportion.
Presumption
presumed to have contributed through care
and maintenance of family and household However, their contributions are presumed
(Buenaventura v. Buenaventura, G.R. No. equal, in the absence if proof to the contrary.
127358, March 31, 2005).

When only one of the parties to a void marriage If one of the parties is validly married to another,
is in good faith, the share of the party in bad faith his/her share in the co-ownership shall accrue to
in the co-ownership shall be forfeited in favor of: the ACP or CPG existing in the marriage.

1. their common children If the party who acted in BF is not validly

Forfeiture 2. in case of default of or waiver by any or all of married to another or if both parties are in BF,
the common children or their descendants, such share be forfeited in manner provided in
each vacant share shall belong to the respective the last par. of Art. 147
surviving descendants
3. In the absence of descendants, such share shall
belong to the innocent party.
Proof of actual Not necessary Necessary
contribution

NOTE: For as long as it is proven that s property was
acquired during marriage, the presumption of conjugality
will attach regardless in whose name the property is
registered.
The presumption is not rebutted by the mere fact that the
certificate of title of the property or the tax declaration is
in the name of one of the spouses (Villanueva v. CA, G.R.
No. 143286, April 14, 2004).
Property regime in case the marriage is declared
null and void on the ground of psychological
incapacity
The property relation between the parties is governed by
Art. 147 of the Family Code. Property acquired by both
spouses through their work and industry shall be
governed by the rules on equal co-ownership. Any
property acquired during the union is prima facie
presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition
of the property shall still be considered as having

67
 Civil Law
contributed thereto jointly if said party's "efforts
consisted in the care and maintenance of the family
household." Unlike the conjugal partnership of gains, the
fruits of the couple's separate property are not included
in the co-ownership.
---
Q: Miko and Dinah started to live together as husband
and wife without the benefit of marriage in 1984. 10
years after, they separated. In 1996, they decided to
live together again, and in 1998 they got married. On
February 17, 2001, Dinah filed a complaint for
declaration of nullity of her marriage with Miko on
the ground of psychological incapacity. The Court
rendered the following decision:
1. Declaring the marriage null and void;
2. Dissolving the regime of Absolute Community of
Property; and
3. Declaring that a decree of absolute nullity of
marriage shall only be issued after liquidation,
partition, and distribution of the parties’ properties
under Art, 147.
Dinah filed a Motion for Partial Reconsideration
questioning the portion of the decision on the
issuance of a decree of nullity of marriage only after
the liquidation, partition and distribution of
properties under Article 147. If you are the judge,
how will you decide the petitioner’s Motion? Why?
(2014 BAR)
A: I will grant the partial reconsideration. If the marriage
is declared void under Art. 36, the provisions of the Family
Code on liquidation, partition and distribution of the
properties on absolute community or conjugal
partnership will not apply but rather Art 147 or Art. 148
depending on the presence or absence of the legal
impediment between them.
Art. 50 of the Family Code, and Sec. 19 of the Rules on
Declaration of Nullity applies only to marriages which are
declared void ab initio or annulled by final judgement
under Art. 40 and 45 of the Family Code. Art. 50 does not
apply to marriages which are declared void ab initio
under Art. 36 which should be declared void without
waiting for the liquidation of the properties of the parties.
In this case, petitioner’s marriage to respondent was
declared void under Art. 36 of the FC and not under Art.
40. Thus, what governs the liquidation of property owned
in common by petitioner and respondent are the rules on
co-ownership under Art. 496 of the NCC. Partition may
be made by agreement between the parties or by judicial
proceedings. It is not necessary to liquidate the property
of the spouses in the same proceeding for declaration of
nullity of marriage(Dino v. Dino, G.R. No. 178044, January
19, 2011).
---
Co-ownership under 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
68
them in equal shares and the property acquired by both
of them through their work or industry shall be governed
by the rules of 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, worker industry,
and shall be owned by them in equal shares. 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.
Under this article, there is a presumption that the
properties which they acquired during their cohabitation
were acquired through their joint efforts, work or
industry. It further provides that a party who did not
participate in the acquisition thereof shall be deemed to
have contributed jointly in the acquisition thereof if his or
her efforts consisted in the care and maintenance of the
family and of the household.
Co-ownership under Art. 148
Co-ownership may ensue in case of cohabitation where,
for instance, one party has a pre-existing valid marriage,
provided that the parties prove their actual joint
contribution of money, property or industry and only to
the extent of their proportionate interest thereon
(Francisco v. Master Iron Works Construction Corp., G.R.
No. 151967, February 16, 2005).
---
Q: Romeo and Juliet lived together as husband and
wife without the benefit of marriage. During their
cohabitation, they acquired a house. When they broke
up, they executed an agreement where he agreed to
leave the house provided Juliet will pay his entire
share in their properties. She failed to do so but she
also ignored his demand for her to vacate. Romeo
sued her for ejectment which the court granted. Was
the court correct in granting the same?
A: NO. Under Art. 147 of the Family Code, the property is
co-owned by the parties. In the absence of proof to the
contrary, any property acquired by common-law spouses
during their cohabitation is presumed to have been
obtained thru their joint efforts and is owned by them in
equal shares. Their property relationship in such a case is
essentially governed by the rules on co-ownership. Thus,
Romeo cannot seek the ejectment of Juliet therefrom. As a
co-owner, she is as much entitled to enjoy its possession
and ownership as him (Abing v. CA, G.R. No. 146294, July
31, 2006).
---
Q: Bert and Joe, both male and single, lived together
as common law spouses and agreed to raise a son of
Bert’s living brother as their child without legally
adopting him. Bert worked while Joe took care of
their home and the boy. In their 20 years of
cohabitation they were able to acquire real estate
assets registered in their names as co-owners.
Unfortunately, Bert died of cardiac arrest, leaving no
will. Bert was survived by his biological siblings, Joe
and the boy.
 PERSONS AND FAMILY RELATIONS
a. Can Article 147 on co-ownership apply to Bert and
Joe, whereby all properties they acquired will be
presumed to have been acquired by their joint
industry and shall be owned by them in equal shares?
b. If Bert and Joe had decided in the early years of
their cohabitation to jointly adopt the boy, would
they have been legally allowed to do so? Explain with
legal basis
A:
a.NO, Article 147 of the Family Code cannot apply to Bert
and Joe because the law only applies to a man and a
woman who are capacitated to marry each other who live
together as husband and wife without the benefit of
marriage or under a void marriage. In the case of Bert and
Joe, they are both men so the law does not apply.
b. NO, because joint adoption is allowed between husband
and wife. Even if Bert and Joe are cohabiting with each
other, they are not vested with the right to jointly adopt
under the Family Code or even under the Domestic
Adoption Act (Sec. 7, R.A. 8552).
---
Q: Benjamin is married to Azucena. While Azucena is
out of country, Benjamin developed a romantic
relationship with Sally, but her father was against
this. In order to appease her father, Sally convinced
Benjamin to sign a purported marriage contract.
Eventually, their relationship ended a few years later.
Benjamin asked the court for the partition of the
properties he acquired with Sally in accordance with
Article 148 of the FC, for his appointment as
administrator of the properties during the pendency
of the case. Among the 44 properties which were the
subject of the partition, 7 were enumerated by
Benjamin while Sally named 37 properties in her
answer. Is Benjamin’s contention correct?
A: YES. The property relations of Benjamin and Sally is
governed by Article 148 of the Family Code. They
cohabitated without the benefit of marriage. Thus, only
the properties acquired by them through their actual joint
contribution of money, property, or industry shall be
owned by them in common in proportion to their
respective contributions. Thus, the 37 properties being
claimed by Sally is excluded as part of her conjugal
properties with Benjamin because Sally was not legally
married to Benjamin. As regards the seven remaining
properties, only one of them is registered in the names of
the parties as spouses. The other four were registered in
the name of either one of them with the description
“married to” and the last two were named to Sally as an
individual. The words “married to” preceding the name of
a spouse are merely descriptive of the civil status of the
registered owner, which do not prove co-ownership.
Without proof of actual contribution from either or both
spouses, there can be no co-ownership under Article 148
of the Family Code (Go-Bangayan v. Bangayan, Jr., G.R. No.
201061, July 3, 2013).
---
Retroactive application of Art. 148 of the Family Code
Although the adulterous cohabitation of the parties or the
acquisition of the property occurred before the effectivity
69
of the Family Code on August 3, 1998, Article 148 applies
because the said provision was intended precisely to fill
up the hiatus in Article 144 of the NCC. Before Article 148
of the Family Code was enacted, there was no provision
governing property relations of couples living in a state of
adultery or concubinage (Atienza v. De Castro, G.R. No.
169698, November 29, 2006).
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THE FAMILY UNDER THE FAMILY CODE
_________________________________________________________________
THE FAMILY AS AN INSTITUTION
Being the foundation of the nation, it is a basic social
institution which public policy cherishes and protects.
(FC, Art. 149).
Family relations include:
1. Between husband and wife;
2. Between parents and children;
3. Among other ascendants and descendants;
4. Among brothers and sisters, whether of the full or
half-blood (FC, Art. 150).
A suit between a brother-in-law and a sister-in-law is not
within the coverage of the law, hence, the failure of the
plaintiff to allege earnest efforts to effect a compromise is
not necessary. The relationship is based on consanguinity,
except that of the husband and wife (Gayon v. Gayon, G.R.
No. L-28394, November 26, 1970). The enumeration of
brothers and sisters as members of the same family does
not comprehend brothers- or sisters-in-law (Guerero v.
RTC, G.R. No. 109068, January 10, 1994).
Rules to remember:
1. Family relations exists even if they are not living
together
2. Illegitimate children are not included in the family
relations under this Article because they have their
own families.
3. Adopted children are included (Minutes of Committee
Meeting of August 24, 1985).
Rules governing family relations
Family relations are governed by law. No custom, practice
or agreement destructive of the family shall be recognized
or given effect (FC, Art. 149).
NOTE: Even if not all forms of extra-marital relations are
punishable under penal law, the sanctity of marriage is
constitutionally recognized and likewise affirmed by our
statutes as a special contract of permanent union.
Accordingly, the Court has had little qualms with
penalizing judicial employees for their dalliances with
married persons or for their own betrayals of the marital
vow of fidelity (Concerned Employee v. Mayor, A.M. No. P-
02-1564, November 23, 2004).
Requisites before a suit between members of the
same family may prosper
 Civil Law
1. Earnest efforts toward a compromise have been
made;
2. Such efforts failed;
3. The fact that earnest efforts toward a compromise
have been made but the same have failed appears in
the verified complaint or petition (FC, Art. 151).
This rule shall not apply to cases which may not be subject
of compromise under the Art. 2035 of the New Civil Code.
The following cannot be compromised:
1. Civil status of persons;
2. Validity of a marriage or legal separation;
3. Any ground for legal separation;
4. Future support;
5. Jurisdiction of courts; and
6. Future legitime (NCC, Art. 2035).
NOTE: A sister-in-law or a brother-in-law is not covered
by these two provisions. Being an exception to the general
rule, Art. 151 of the Family Code must be strictly
construed (Gayon v. Gayon, G.R. No. L-28394, November 26,
1970).
THE FAMILY HOME
It is the dwelling house where the husband and wife and
their family reside, and the land on which it is situated. It
is constituted jointly by the husband and the wife or by an
unmarried head of a family (FC, Art. 152).
Constitution of Family Home (FH)
The FH is deemed constituted on a house and lot from the
time it is occupied as a family residence FC, (Art. 153).
Guidelines in the constitution of the Family Home
1. FH is deemed constituted from the time of actual
occupation as a family residence;
2. Only 1 FH may be constituted;
3. Must be owned by the person constituting it;
4. Must be permanent;
5. Same rule applies to both valid and voidable
marriages and even to common law spouses; (FC,
Arts. 147 and 148)
6. It continues despite death of one, both spouses, or an
unmarried head of the family for 10 years or as long
as there is a minor beneficiary (FC, Art 159).
The heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted
the FH (FC, Art 159).
The FH must be part of the properties of the absolute
community or the conjugal partnership or the exclusive
properties of either spouse, with the latter’s consent. It
may also be constituted by an unmarried head of a family
on his or her own property (FC, Art 156).
NOTE: Property that is subject of a conditional sale on
instalments where ownership is reserved by the vendor
to guarantee payment of the purchase price may be
70
constituted as a FH.
Beneficiaries of a Family Home (FC, Art. 154)
1. Husband and wife, or
2. Unmarried head of the family,
3. Parents (may include parents-in-law),
4. Ascendants,
5. Descendants
6. Brothers and sisters (legitimate or illegitimate)
living in the FH and dependent on the head of the
family for support.
Requisites to be considered as beneficiary (FC, Art
156)
1. They must be among the relationships enumerated
in Art. 154 of the Family Code;
2. They live in the FH; and
3. They are dependent for legal support upon the head
of the family.
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Q: On March 30, 2000, Mariano died intestate and was
survived by his wife, Leonora and children, Danilo
and Carlito. One of the properties he left was a piece
of land in Alabang where he built his residential
house. After his burial, Leonora and Mariano’s
children extra-judicially settled his estate.
Thereafter, Leonora and Danilo advised Carlito of
their intention to partition the property. Carlito
opposed invoking Art. 159 of the Family Code. Carlito
alleged that since his minor child Lucasstill resides in
the premises, the family home continues until the
minor beneficiary becomes of age.
Is the contention of Carlito tenable? (2014 BAR)
A: NO. To qualify as beneficiary of the FH the person must
be among those mentioned under Art. 154 of the Family
Code, he/she must be actually living in the FH and must
be dependent for legal support upon the head of the
family (Patricio v. Darion, G.R. No. 170829, November 20,
2006). While Lucas satisfies the first and second
requisites, he cannot, however, directly claim legal
support from his grandmother, Leonora because the
person primarily obliged to give him support is his father
Carlito. Thus, the partition may be successfully claimed by
Leonora and Danilo.
Occupancy of the FH either by the owner thereof or by
“any of its beneficiaries” must be actual. That which is
“actual” is something real, or actually existing, as opposed
to something merely possible, or to something which is
presumptive and constructive. Actual occupancy,
however, need not be by the owner of the house. Rather,
the property may be occupied by the “beneficiaries”
enumerated by Art. 154 of the Family Code (Manacop v.
CA, G.R. No. 97898, August 11, 1997).
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NOTE: This enumeration may include the in-laws where
the FH is constituted jointly by the husband and wife. But
the law definitely excludes maids and overseers.
Effect of death of one or both spouses or of the
unmarried head of the family upon the family home