CURRICULUM VITAE OF ZENAIDA N.

ELEPANO

Hon. Zenaida N. Elepaño held the position of Deputy Court Administrator of

the Supreme Court of the Philippines for 11 years until 2007 year when she
was appointed as Court Administrator. She obtained her degree of
Bachelor of Arts at the University of Santo Tomas Summa Cum Laude, and
finished her law studies at the UST Faculty of Civil Law, class valedictorian,
Cum Laude.
A litigation lawyer for 31 years, CA Elepano taught law at the University of
Sto. Tomas, the Pamantasan ng Lungsod ng Maynila College of Law and
Graduate School of Law, the San Beda College School of Law, and the UP
College of Law. In 1988, she joined the Bench as Regional Trial Court Judge
and served as Executive Judge for two terms. In 1995, she was awarded by
the Foundation for Judicial Excellence the Justice Cayetano Arellano Award
as Most Outstanding RTC Judge of the Philippines. In 1995, she was
promoted to the Supreme Court Office of the Court Administrator. At OCA,
aside from conducting investigations of complaints filed against judges and
court personnel and recommending to the High Tribunal the proper action
to be taken on the complaints, she initiated several judicial reform
programs such as Caseflow Management for Trial Courts, the Justice on
Wheels System, the Small Claims Court System, and Regionalization of the
Office of the Court Administration.
She also co-chaired the Sub-Committee on Procedure for Family Courts that
drafted the Rules of Procedure for Child Witnesses, Declaration of Nullity of
Void Marriages and Annulment of Voidable Marriages, Juveniles in Conflict
with the Law, Juveniles Charged with Violation of the Comprehensive
Dangerous Drugs Act, and Violence Against Women and Children cases
under RA 9262, among other rules of procedure. When she retired in 2008,
she was engaged by Chief Justice Reynato Puno as Consultant for Judicial
Reforms. She was also engaged as Consultant for the European Union for a
Case Management project for the National Commission for Indigenous
People (NCIP).
She is a professorial lecturer of the Philippine Judicial Academy and the
Institute of Judicial Administration of the UP Law Center and at MCLE
seminars. A pre-bar reviewer in civil law and legal ethics, she was Bar
Examiner in Remedial Law in 1995, Legal Ethics in 2006, and Civil Law in
2009.
She has received several international study grants given by the United
States, Australia, Canada, Japan and Swedish governments, and successfully
attended a 6-week course on Comparative American and International Law
at the Southwestern Legal Foundation in Dallas, Texas and was selected to
deliver the valedictory address for the class. She has delivered numerous
lectures in national as well as international conferences on topics such as
The Philippine Judiciary, The Rule of Law and Judicial Independence,
Women’s and Children’s rights, Rules of Procedure for Family Courts, Court

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Administration and Case Management. She has likewise written, co-
authored and published several articles, lectures and monographs on these
topics. She is a Fellow of the Canadian Judicial Education Institute (CJEI).
She lectures for the UN Commission on Women, and continues to serve the
Philippine Judicial Academy as Professorial Lecturer and Resource Person
in orientation programs for newly appointed judges and clerks of court,
PHILJA’s Pre-Judicature Programs and its Career Enhancement Programs for
incumbent judges and court personnel, and at MCLE seminars all over the
country on Family Law, Women’s and Children’s Rights, Legal Writing and
Oral Advocacy, Legal Ethics, Pre-Trial and Trial Techniques, Conflict of Laws,
Legal English and Legal Reasoning, among other topics.
In 2012, she was awarded the UST Quadricentennial Award for Law and
Justice by the University of Santo Tomas.
In 2014, she was appointed by President Aquino as Commissioner of the
Legal Education Board.

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A 2019 SYLLABUS OF A REVIEW OF CIVIL LAW:
THE CIVIL CODE OF THE PHILIPPINES ON
GENERAL PROVISIONS, CONFLICT OF LAWS,
PERSONS, AND THE FAMILY CODE

(Prepared by LEB Comm. ZENAIDA N. ELEPANO)

1. TERMS-

Law – is an ordinance of reason promulgated for the

common good by one who has authority over society.
It is that mass of rules of conduct formulated by the
legitimate power of the State for common observance
and benefit.
Civil law is that mass of precepts which determines
and regulates the relations of assistance, authority and
obedience among members of a family, and those
which exist among members of a society for the
protection of private interests. (Tecson v. COMELEC,
#161434, 3Mar 04)
Law creates RIGHTS as well as OBLIGATIONS.
Where there is a right, there is also an obligation.
A Right is a legally demandable claim by a person
against another. Violation of a right entitles a person
to a remedy under the law.
An Obligation is a legal necessity to do or not to do an
act.
2. DEVELOPMENT OF THE CIVIL CODE –
Prior to the Civil Code of August 30, 1950 was the old
CiVil Code of 1889. This in turn was derived from the
Spanish Civil Code and the Napoleonic or French Civil
Code.
The CCP is composed of 4 Books:

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 Persons - General Provisions and Persons and
Family Relations (superseded by the Family Code.
The provisions on Adoption in Family Code were
replaced by the Domestic Adoption Act of 1998
and the Inter-Country Adoption Law)
Property, Ownership and its Modifications
Different Modes of Acquiring Ownership
Obligations and Contracts

3. GENERAL PROVISIONS -

A. Effect and Application of Laws – Civil Code

1. Effectivity of Laws – after 15 days following

completion of publication in OG or
newspaper of general circulation. (CCP, Art.
2). But the period may be shortened or
lengthened as provided by the law.

The term “To take effect immediately upon its

approval” is defective. Will not invalidate law
but law will take effect 15 days after
publication. (Farinas v. Exec. Sec., #147387,
10Dec03; BUT in PNB v. Vega, 28June01, the
clause was declared valid.)

2. Administrative rules and regulations must

be published and filed with the National
Administrative Register (located at the UP Law
Center).

B. Ignorance of the Law excuses no one. Mistake upon

a doubtful or difficult question of law may be the
basis of good faith. Ignorance or Mistake of Fact
may be excusable.– CCP, Art.3

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 In Dulalia Jr. v. Cruz, 27Apr07, a violation of the
FC is not excused simply because one was not aware
of the law as it took effect while the person was
abroad.

C. Prospectivity of Laws (and new Juridical

Doctrines) –

Laws have no retroactive effect. Except:

1. If the law expressly provides for
retroactivity
Except: penal laws, and laws that
impair vested rights.
2. Procedural Laws
3. Curative laws
4. Laws interpreting other laws
5. Laws creating new rights
6. Penal laws favoring the accused
7. Laws in the exercise of police
power. ( to promote health,
morals, peace, good order, safety
and general welfare. Ortigas v.
CA, 4Dec00,)

D. Acts done against mandatory or prohibitory

laws are void except when the law itself authorizes
their validity. Or when law provides for the validity of
the legal effects of the void act. (e.g. subsequent
marriage without registering the annulment or nullity
decree renders that marriage void, but the children
born of that are declared by law to be legitimate.)

E. Waiver of Rights - To be valid:

1) Right to be waived must exist;
2) Person waiving must have knowledge, actual
or constructive, of the right;

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 3) Person has clear actual intention to waive the
right.

Waiver is NOT ALLOWED when it is

1. contrary to law, public order, public policy,
morals or good customs
2. prejudicial to third persons with a right
recognized by law (e.g., repudiation of an
heir of his inheritance to the prejudice of his
creditors.)

F. Repeal of Laws: Express repeal and Implied

(Implied repeal is not favored and not allowed
unless the two laws are completely repugnant,
inconsistent and irreconcilable that they cannot
co-exist.)

G. Supremacy of the Constitution – two views:

Orthodox (all laws violative of the Constitution
are void), and Modern View (not all effects of a
void law may be declared inoperative.)

H. Administrative or executive acts, orders and

regulations are valid only if not contrary to the
Constitution. (Art. 7, CCP)

I. Judicial Decisions applying or interpreting the

Constitution form part of the legal system of
the Philippines. New judicial doctrines are
prospective in nature, and shall not apply to
parties who relied on the old doctrines.

Doctrine of Stare Decisis or Prior Jurisprudence

– once a case has been decided and a principle
formulated therein, all other cases on the same
issue should be decided similarly. Like cases
ought to be decided alike. (First Planters

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Pawnshop v. Comm. of the Internal Revenue,
#174134, 30Jul08.)

Law of the case – means that where an

appellate court has ruled on a question on
appeal and thereafter remands the case to the
lower court for further proceedings, the
question settled by the appellate court becomes
the law of the case –whatever is irrevocably
established as controlling rule between the same
parties in the same case, whether correct on
general principles or not, so long as the facts on
which the rule is predicated continue to be the
facts of the case before the court. (Vios v.
Pantangco, #163103, 6Feb09)

J. Silence or Obscurity of the Law - No judge

should decline to decide or resolve a case simply
because of the silence, insufficiency or obscurity
of the law. (Art. 9, CCP). Resolve the case by
applying the customs of the place,, if none, the
general principles of law and justice as it is
presumed that the legislators intended right and
justice to prevail. (Under the CRC: resolve
doubt in favor of the Child.)

The duty of the courts is to apply or interpret the

law, not of make or amend it. (Silverio v. Republic,
19 Oct 07)

Custom – a rule of conduct formed by the

repetition of acts, uniformly practiced as a social
rule, legally binding and obligatory. Must be
proven as a fact accdg. to rules of evidence.

Custom is recognized by the CCP – Art. 1306

provides that contractual stipulations should not

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 be contrary to law, good customs, morals and
public policy.

K. Computation of TIME – Year, Month, Day

and Night, unless specifically indicated or
named

4. CONFLICT OF LAWS –
Conflict of laws is that part of the law of each
state or nation which determines whether, in
dealing with a legal situation, the law of some
other state or nations will be recognized, given
effect or applied. (16 AmJur 2d)

CL is not part of public international law but of

the state’s municipal law.

The two constitutive parts of CL are: internal

law which governs the citizens who are domiciled in the
state; and conflict of laws for those who are domiciled
in foreign jurisdictions.

The general rule is that laws operate on the principle of

territoriality, based on territorial sovereignty.

Exceptions:
1. Penal laws and those of public security and safety
apply to those who are found within Philippine
territory (Exception: Public international law
principles; treaty stipulations.) Ex: a party who
entered into a bigamous marriage abroad cannot be
charged in the Philippines with bigamy.
2. Nationality Principle –Art. 15, CCP
3. Property- Art. 16 CCP
4. Succession – Art. 16

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5. Contracts – lex loci celebrationis (but trend now is
“the most significant relationship rule, Hasegawa v.
Kitamura, #149177, 23 Nov07)
6. Torts – lex loci; also most significant relationship
rule
7. Formalities of contracts, wills and other public
instruments (Art. 17; Art. 26 on place of marriage; lex
loci celebrations)
8. Public Policy – (Art. 17) e.g., marriage between 2
Filipinos cannot be dissolved abroad.

The principal provisions of the Civil Code on CL are:

Art. 15. CCP. - Laws relating to family rights and

duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines,
even though living abroad. (principle of “nationality”)
(Perez v. CA, 27Jan06)

Art. 16. - Real Property as well as personal property is

subject to the law of the country where it is situated
(principle of Lex Situs or Rei Sitae”).

Intestate and Testamentary succession, with respect to

order of succession, amount of successional rights and
intrinsic validity of the testamentary provisions are
governed by the national law of the person whose
succession is under consideration. (Under Art.1039,
CCP, capacity to succeed is governed by the national
law of the decedent).

Contracts as to forms and solemnities – lex loci

celebrationis. But the trend now is to consider “the
most significant relationship” rule, i.e., place of contract
execution or occurrence of tortuous injury, the domicile
or residence of the parties; in other words, the state most

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affected by the relationship. (PCL Shipping v. NLRC, 14
Dec 06, Hasegawa v.Kitamura, 23Nov.07)

Three instances where a state has to apply the law of

the forum (lex fori) when its courts have assumed
jurisdiction over a CL case:

a. If its law (lex fori) expressly so provides

in its conflicts provisions. Exception, if
it runs counter to the state’s public
policy; against universally accepted
moral principles; procedural matters;
penal or administrative in character;
works injustice to citizens of the
forum, or endanger vital interests of
the State; or involves property located
in the forum.

b. When the proper law has not been

pleaded and proven (Phil. courts do
not take judicial notice of foreign laws.
In this case, processual presumption
applies, i.e., the court of the forum
presumes foreign law is similar to its
municipal law so that the latter law
can be applied.); and

c. When the CL case falls under the

exceptions to the application of the
foreign law.

Theories justifying application of Foreign Law in a CL

case: Theory of Comity (basis is reciprocal courtesy);
Vested Right theory (rights once acquired should be
recognized and enforced anywhere); Local Law
Theory(local law requires a forum to apply foreign
law); Harmony of Laws Theory (identical problems

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require identical solutions), and Justice Theory (apply
foreign law to attain justice) .

Renvoi – means to refer back.

Four Options of Philippine courts when faced with a

Renvoi problem:
a. Reject renvoi
b. Accept
c. Refrain from applying national law of
deceased foreigner if that law follows
domiciliary theory, thus applying in the end,
the law of the forum.
d. Apply foreign court theory – do whatever the
Foreign court will do given the same case.

TORTS- generally, lex loci actus (where committed).

ut also “the most significant relationship rule” applies.
(Saudi Arabian Airlines v. CA. 8OCT98)

Art. 17. Prohibitive laws concerning persons, their

acts or property, and those which have for their object
public order, public policy and good customs shall not
be rendered ineffective by laws or judgements
promulgated or by determinations or conventions
agreed upon in a foreign country.

Article 26 – Marriage validly celebrated outside the

Philippines is recognized as valid here (unless contrary
to law, morals, good customs and public policy);
conversely, if invalid where celebrated, invalid here.

Divorce decree obtained abroad will be recognized

here in the Philippines subject to certain conditions.

.
6. PERSONS

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A. Persons – any being susceptible of rights and
obligations or of being the subject of legal
relations.: Natural or Juridical

B. Capacity - Juridical: the fitness to be the subject

of legal relations. Inherent in every person. The
aptitude for holding and enjoyment of rights.
Same for all persons.

Capacity to act – the power to do acts with legal

effect. Is acquired and may be lost. Varies from
one person to another because some may be
incapacitated to act.

Incapacity to act restricts or limits capacity to act

or the performance of certain acts or transactions.
These are based on subjective circumstances of
certain persons which compel the law to withhold
or suspend for a certain time the capacity to
perform certain acts with juridical effects, such as
age, citizenship, mental state, etc.

Disqualifications or prohibitions on the other

hand are based on reasons of morality. The
enjoyment or exercise of a right is restricted. The
person has the capacity to act BUT the law
prohibits the person from exercising the right on
moral grounds. E.g., incestuous marriages, or
marriages prohibited due to public policy (same
sex marriage).

C. Restrictions on Capacity or Incapacity to Act:

Minority Age, Insanity, Imbecility, Deaf-mutism,
Civil Interdiction, Prodigality (Guardianship) ,
Alienage, Insolvency, Absence.

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 D. NATURAL PERSONS –

1. Birth – determines personality. The

conceived child shall be considered born for
all purposes favourable to it provided it is
born with the conditions under Art. 41.

2. Birth for Civil Purposes; Foetus with intra-

uterine life of 7 months or more is
considered born if alive at time of complete
delivery from womb. If less than 7 months,
deemed born if it survives after 24 hrs. from
delivery. IF it dies within 24 hours from
complete delivery, regardless of cause of
death, not considered born, hence no
personality.

3. Death extinguishes personality.

While the Civil Code expressly provides that

civil personality may be extinguished by death, it does
not explicitly state that only those who have acquired
juridical personality could die.

Death has been defined as the cessation of life. Life is

not synonymous with civil personality. One need not
acquire civil personality first before one can die. Even
a child inside the womb already has life. No less than
the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the
life of the mother. If the unborn already has life, then
the cessation thereof even prior to the child being
delivered, qualifies as death. Continental Steel
v.Montano, 603 SCRA 621.

E. Survivorship Principles:

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 1. Under Art. 43, CCP. If there is doubt as
between 2 or more persons who are called to
succeed each other, as to who died first,
whoever alleges the death of one prior to the
other shall prove the same. In the absence of
proof, it is presumed that they died at the
same time and there shall be no transmission
of rights from one to the other.

2. Under Rule 131, Sec. 3jj, in case of death in

a calamity, when 2 persons perish in the
same calamity such as wreck, battle or
conflagration, and it is not shown who died
first, and there are no circumstances from
which it can be inferred, the survivorship is
determined from probabilities resulting from
the strength and age of the sexes, according
to certain rules.

3. Distinctions: Under Civil Code, death is not

necessarily by reason of a calamity. Under
the Rules, death is by calamity. Under CCP,
presumption is only for purposes of
succession. Under the Rules, not succession.
Under CCP, there is no presumption based
on probabilities due to strength or age. The
presumption is - both died at the same time.

4. In case of death under ordinary

circumstances, apply Art. 43 by analogy,
even for non-succession purposes.

F. DOMICILE OF:
Natural persons: place of habitual residence
Juridical persons: that fixed by law, or their
principal place of business

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 Residence: physical presence in a given place.
One’s abode, permanent or temporary
Domicile: Physical presence plus intent to stay
there. the place one returns to after being absent
from it.

One can have several residences but only one

domicile

G. MARRIAGE (FAMILY CODE)

1. Definition: It is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and
an inviolable social institution whose nature,
consequences and incidents are governed by law and
not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by law (Art.1, FC)

2. Characteristics: a) special contract

b) inviolable social institution

Notes:
Breach of promise to marry is not actionable, if it is the
sole cause of action. It is actionable if accompanied by a
claim for damages.

What damages?
Breach of Promise without sexual intercourse:
a) If it constitutes a quasi-delict – actual damages only
b) If it is unjust enrichment – actual damages only
c) Abuse of right – actual damages only
d) Violation of Art. 21 – actual and moral

B of P to Marry with Sexual intercourse:

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a) If a crime – actual and moral
b) NO crime but with deceit – actual and moral
c) No crime, no deceit, with pregnancy – actual only
d) No crime, no deceit, no pregnancy – no damages.

3. Essential Requisites:
a. Legal capacity of parties: Male and Female, 18
years old or over, and not under the impediments
mentioned in Arts. 37 (incestuous), and 38 (public
policy) (i.e., not disqualified nor prohibited by law) to
marry.

b. Consent freely given before the solemnizing

officer.

Absence of any of the essential requisites renders

marriage void. Defect renders it voidable.

4. Formal Requisites: a) authorized solemnizing

officer; b) marriage license; c) marriage ceremony
where parties appear before SO and profess their vows,
witnessed by 2 persons who are of legal age.

Absence of any formal requisite renders marriage void.

In case of irregularity in any of the formal requisites,
the Parties responsible for irregularity will be liable
civilly, criminally and administratively.

5. Who may solemnize a marriage? Art. 7, FC.

d. incumbent judge or justice
e. priest, rabbi, imam authorized and
registered with civil registrar general
f. ship captain or airplane chief, for
Marriage in articulo mortis
g. military commander in the absence of
a chaplain, in articulo mortis
h. consul general, consul or vice-consul

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 i. city and municipal mayors (under the
Local Government Code)

Who may solemnize marriages in articulo mortis?Any

of those authorized under the law,(Art. 7 FC and the
Local Govt. Code). BUT a Ship Captain, an airplane
chief (chief pilot) and a military commander can
solemnize only a MIAM.
Case:

G.R. No. 182438, July 02, 2014, RENE RONULO VS. PEOPLE OF THE
PHILIPPINES,

Petitioner, an Aglipayan priest, performed a ceremony despite having been

informed that the couple to be married had no marriage license. The couple
took their marriage vows before the petitioner and signed the marriage
certificate.

Petitioner was charged with violation of Article 352 of the Revised Penal
Code (RPC), as amended, for allegedly performing an illegal marriage
ceremony. While admitting that he conducted a ceremony, the priest insisted
that his act of blessing the couple was NOT tantamount to a solemnization of
the marriage as contemplated by law.

Convicted by MTC, RTC and CA. SC affirmed conviction.

Article 352 of the RPC, as amended, penalizes an authorized solemnizing
officer who shall perform or authorize any illegal marriage ceremony. The
elements of this crime are: (1) authority of the solemnizing officer; and (2) his
performance of an illegal marriage ceremony. Article 6, Family Code,
provides that “[n]o prescribed form or religious rite for the solemnization of
the marriage is required. It shall be necessary, however, that the contracting
parties 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.” Thus, the law only sets the minimum
requirements constituting a ceremony: first, there should be the personal
appearance of the contracting parties before a solemnizing officer; and
second, their declaration in the presence of not less than two witnesses
that they take each other as husband and wife.

6. Place of Solemnization of Marriage – within the

places designated by law; outside of such place, M is
valid but person officiating can be held
administratively liable.

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7. Irregularly issued marriage license – marriage is
valid, person responsible for issuance is
administratively liable.

If forged, fake or lapsed ML – marriage is void. No

license. (e.g., affidavit of cohabitation that falsely allege
5 years of cohabitation)

Case: G.R. No. 185374, March 11, 2015,

SIMPLICIA CERCADO-SIGA
AND LIGAYA CERCADO-BELISON, VS. VICENTE CERCADO, JR., et al.

To prove marriage between Vicente and Benita, petitioners presented among

other documents a Contrato Matrimonial or the marriage contract executed
allegedly in 1929; and a Certification dated 19 November 2000 issued by
Iglesia Filipina Independiente that it issued the marriage contract.

Respondents on the other hand alleged that Vicente and Leonora were
married in 1977 as evidenced by a marriage certificate registered with the
Local Civil Registrar of Binangonan, Rizal.

The RTC: marriage between Vicente and Benita was valid; subsequent
marriage between Vicente and Leonora was bigamous and therefore void.

The CA: The Contrato Matrimonial of Vicente and Benita, being a private
document, was not properly authenticated, hence, not admissible in evidence.
It reversed the Decision of the RTC.

Ruling by SC: The CA correctly ruled that the Contrato Matrimonial is a

private document. In U.S. v. Evangelista, “Church registries of births,
marriages and deaths executed subsequent to the promulgation of General
Orders No. 68 and the passage of Act No. 190 are no longer public writings,
nor are they kept by duly authorized public officials. They are private
writings and their authenticity must therefore be proved as are all other
private writings in accordance with the rules of evidence.”

Under Section 20, Rule 132, Rules of Court, before a private document is
admitted in evidence, it must be authenticated either by the person who
executed it, or the person before whom its execution was acknowledged, any
person who was present and saw it executed, or who after its execution, saw it
and recognized the signatures, or the person to whom the parties to the
instruments had previously confessed execution thereof. Petitioners failed to
present any one of such witnesses.

Petitioners insist that the marriage contract is a duplicate original, hence, the
original need not be produced. In Vallarta v. CA “ a signed carbon copy or
duplicate of a document executed at the same time as the original is
known as a duplicate original and maybe introduced in evidence without

18
accounting for the non- production of the original. But, an unsigned and
uncertified document purporting to be a carbon copy is not competent
evidence. It is because there is no public officer acknowledging the
accuracy of the copy.”

IS it an ancient document which need not be authenticated? NO. Section

21, Rule 132 defines an ancient document as one that: 1) is more than 30 years
old; 2) is produced from custody in which it would naturally be found if
genuine; and 3) is unblemished by any alteration or by any circumstance of
suspicion. The marriage contract was executed on 9 October 1929, hence it is
clearly more than 30-years old. On its face, there appears to be no evidence of
alteration. The contract however does not meet the second requirement.

Ancient documents are considered from proper custody if they come from a
place from which they might reasonably be expected to be found. Custody is
proper if it is proved to have had a legitimate origin or if the circumstances of
the particular case are such as to render such an origin probable. If a document
is found where it would not properly and naturally be, its absence from the
proper place must be satisfactorily accounted for. In Bartolome v. Intermediate
Appellate Court, the Court ruled that the requirement of proper custody
was met when the ancient document in question was presented in court by
the proper custodian thereof who is an heir of the person who would
naturally keep it.

The rule on authentication with respect to private documents is designed to

prevent the inclusion of spurious documents in the body of evidence that will
determine the resolutions of an issue.

9. Proof of Marriage

A. Presumption of existence of Marriage -

Peregrina Macua Vda de Avenido v. Tecla Hoybia Avenido, G.R.

No. 173540, 11 Januray 2014.
While a marriage certificate is considered primary evidence of a
marital union, it is not regarded as the sole and exclusive evidence
of marriage. The fact of marriage may be proven by relevant
evidence other than the marriage certificate such as testimony
of a living witness to the marriage and the priest who officiated
it. Moreover, every intendment of the law leans toward
legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed to be in fact married. Semper
prasumitar pro matrimonio. Always presume in favour of the
existence of marriage.

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G.R. No. 191936, June 01, 2016 ]VIRGINIA D. CALIMAG VS. HEIRS OF
SILVESTRA N. MACAPAZ, REPRESENTED BY ANASTACIO P. MACAPAZ,
JR.,

A canonical certificate of marriage is not a public document.

Church registries of births, marriages, and deaths made subsequent
to the promulgation of General Orders No. 68 and the passage of
Act No. 190 are no longer public writings, nor are they kept by
duly authorized public officials. They are private writings and their
authenticity must therefore be proved as are all other private
writings in accordance with the rules of evidence. The authenticity
and due execution of the canonical certificate of marriage of
Anastacio, Sr. and Fidela was not duly proven and cannot be
admitted in evidence. Other proofs however can be offered to
establish the fact of a solemnized marriage. Hence, even a person's
birth certificate may be recognized as competent evidence of the
marriage between his parents.

A certificate of live birth is a public document that consists of

entries (regarding the facts of birth) in public records (Civil
Registry) made in the performance of a duty by a public officer
(Civil Registrar)." Thus, being public documents, the respondents'
certificates of live birth are presumed valid, and are prima facie
evidence of the truth of the facts stated in them. Under Section 5
of Act No. 3753, the declaration of either parent of the new-
born legitimate child shall be sufficient for the registration of
his birth in the civil register, and only in the registration of
birth of an illegitimate child does the law require that the birth
certificate be signed and sworn to jointly by the parents of the
infant, or only by the mother if the father refuses to
acknowledge the child.

The certificates of live birth of the children of Anastacio, Sr.

and Fidela show that the two had openly cohabited as husband
and wife for a number of years, as a result of which they had
two children. This is admissible proof to establish the validity
of marriage. Court Resolution dated February 13, 2013 in GR.
No. 183262 entitled Social Security System (SSS) v. Lourdes S.
Enobiso had the occasion to state: In Trinidad vs. Court of
Appeals, et al., this Court ruled that proof of marriage may be:
a) testimony of a witness to the matrimony; b) the couple's
public and open cohabitation as husband and wife after the
alleged wedlock; c) the birth and baptismal certificate of

20
children born during such union; and d) the mention of such
nuptial in subsequent documents., in a catena of case. "Persons
dwelling together in apparent matrimony are presumed, in the
absence of any counter presumption or evidence special to the
case, to be in fact married.]

Case:
See above G.R. No. 185374, March 11, 2015, CERCADO-SIGA AND CERCADO-
BELISON, VS. VICENTE CERCADO, JR., et al.

B. A VALID MARRIAGE LICENSE:

1. A REQUIREMENT FOR A VALID MARRIAGE -

Case: RAQUEL G. KHO VS. REPUBLIC and VERONICA B. KHO. G.R. No.
187462, June 01, 2016

Raquel avers his marriage with Veronica is void due lack of marriage license
as he never went to the office of the Local Civil Registrar to apply for a
marriage license and had not seen, much less signed, any papers or documents
in connection with the procurement of such license.
Veronica says she and Raquel obtained a marriage license which they
presented to the solemnizing officer before their marriage was performed. The
OSG, on its part, that the presumption is always in favor of the validity of the
marriage and that any doubt should be resolved to sustain such validity.

Raquel presented a Certification issued by the Municipal Civil Registrar

attesting that the Office of the Local Civil Registrar "has no record nor copy
of any marriage license ever issued in favor of Raquel G. Kho [petitioner]
and Veronica M. Borata [respondent] whose marriage was celebrated on
June 1, 1972."

Ruling:- The marriage is void. The marriage was celebrated on June 1, 1972,
before the Family Code took effect. Hence, the Civil Code Art. 53 governs
their union: “ART 53. No marriage shall be solemnized unless all these
requisites are complied with:(1) Legal capacity of the contracting parties; (2)
Their consent, freely given; (3) Authority of the person performing the
marriage and
(4) A marriage license, except in a marriage of exceptional character.

On the basis of the Certification of the local CR, the presumed validity of the
marriage of the parties has been overcome and it becomes the burden of
Veronica to prove that their marriage is valid as it is she who alleges such
validity. She was not able to discharge that burden.

2. Marriages Exempt from License requirement –

a. In articulo mortis – at point of death of one or both
parties. Marriage remains valid even if party survives.

21
 b. In inaccessible place
c. Among Muslim or among ethnic cultural communities
provided solemnized in accordance with their customs,
rites or practices

Marriage by a Muslim husband who previously married

under the Civil Code without dissolution of first marriage
is bigamous, hence void. Muslim Code cannot apply
because it cannot override Civil Code which has already
bestowed certain rights on the previous marriage. Llave v
Republic, #169766,30Mar11.

For Muslim to be exempt from criminal liability for

bigamy, his two marriages must have been conducted in
accordance with the Code of Muslim Personal Laws or PD
1083. Nollora v. Republic #191425, 7Sept11

d. Cohabitation of parties for five years without

impediment to marry each other. They execute an
Affidavit of Cohabitation. If affidavit contains false
allegations, there is no valid marriage, because the
affidavit which substitutes for the license is fake,
containing false allegations.

e. Church ratification of a civil marriage.

Case: G.R. No. 204494, July 27, 2016 ]JO-ANN DIAZ-SALGADO AND HUSBAND
DR. GERARD C. SALGADO, PETITIONERS, VS. LUIS G. ANSON, RESPONDENT.

May the absence of a marriage license may be proven on the basis of a

marriage contract which states that no marriage license was exhibited to the
solemnizing officer because the marriage being of an exceptional character?

Held: Since the marriage between Luis and Severina was solemnized prior to
the effectivity of the Family Code, the applicable law to determine its validity
is the Civil Code, the law in effect at the time of its celebration on December
28, 1966. A valid license is a requisite of marriage under Article 53 of the
Civil Code, and the absence thereof, save for marriages of exceptional
character, renders the marriage void pursuant to its Article 80(3):

“Art. 80. The following marriages shall be void from the beginning: x x x x
(3) Those solemnized without a marriage license, save marriages of
exceptional character; x x x x. (Emphasis ours)”

22
"Under the Civil Code, marriages of exceptional character are: (1)
marriages in articulo mortis or at the point of death during peace or war,
(2) marriages in remote places, (3) consular marriages, (4) ratification of
marital cohabitation, (5) religious ratification of a civil marriage (6)
Mohammedan or pagan marriages, and (7) mixed marriages."

Considering that the absence of a valid marriage license is apparent on

the marriage contract itself, with a false statement therein that the
marriage is of an exceptional character, and no proof to the contrary was
presented, there is no other plausible conclusion other than that the
marriage between Luis and Severina was celebrated without a valid
marriage license and is thus, void ab initio. This means the marriage
contract should not only allege the marriage is exceptional but that the
kind of exceptionality should be alleged and shown in it.

3. Marriage License applied for by Foreigners – They must

first submit a certificate of legal capacity to contract marriage
issued by their diplomatic or consular officials. Stateless
persons shall submit an affidavit of circumstances showing
their capacity to contract marriage.

10. RECOGNITION OF FOREIGN DIVORCE DECREES -

Art. 26. par. 1 - Valid Marriage celebrated anywhere is

recognized as valid in the Philippines, except those prohibited
in Arts. 35, (1,4,5, and 6), 36, 37 and 38. (Conversely, if void
where celebrated, void in the Philippines.)

Art. 26, par.2 - Where a marriage between a Filipino citizen and

a foreigner is validly celebrated and a divorce is thereafter
validly obtained by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have the capacity to
remarry under Philippine law.

This provision recognizes absolute divorce decree obtained

outside of the Philippines on these conditions: Valid marriage
between Filipino and alien spouse; alien spouse obtains
absolute divorce decree abroad that capacitates him or her to
remarry. (See Orbecido: citizenship requirement present only
upon the filing of the divorce petition, not a the time of the
celebration of the marriage.) In Van Dorn and Pilapil, the
Court said that the alien husbands (spouses) divorced from

23
their Filipino wives (spouses) are no longer married to Filipinos
under their own national laws, hence they cannot claim rights
under Philippine law. (See however Manalo below.)

Case: An alien spouse who obtains an absolute divorce decree abroad does
not have to obtain a judicial declaration of his capacity to remarry. If the
Philippine court finds that the divorce decree capacitates him/her to remarry,
the court can declare that the Filipino spouse is also capacitated to remarry.
Corpus v. Sto. Tomas 186571, 11Aug10

1. To establish a valid foreign marriage: prove existence of the

foreign marriage law as a fact; then prove the alleged marriage.

Case: Fujiki v. Marinay et al., #196049, 26 June 2013

Paz married Fujiki in the Philippines. Fujiki left for Japan without Paz. A few
years later, Paz married another Japanese, Maekara, who brought her to
Japan and maltreated her and abused her physically and emotionally. Paz
got in touch with Fujiki and resumed her relationship with him as her
husband. Fujiki petitioned a Japanese Family Court to declare Paz’s
marriage to Maekara on the ground of bigamy, which was granted. Paz
and Fujiki returned to the Philippines. Fujiki filed a petition with RTC
entitled “Judicial Recognition of Foreign Judgment (or Decree of Absolute
Nullity of Marriage) praying that the Japanese decree of divorce of Paz from
Maekara be recognized, that the marriage of Paz and Maekara be nullified
due to bigamy, and the Japanese court decree of nullity be annotated in
the Certificate of Marriage of Paz and Maekara in the Civil Registry.

RTC dismissed petition because under the Rules, petitions for nullity shall
be filed only by either husband or wife, and for lack of jurisdiction, as the
court was not a family court.

Ruling: The Rule of Procedure for Declaration of Nullity of Void Marriages

(and of Annulment of Voidable Marriages) does not apply to a Petition to
recognize a foreign judgment relating to the status of a marriage where one
of the parties is a citizen of a foreign country. Neither does the Rule apply
that only the husband or wife can file a declaration of nullity or annulment
of marriage if the reason behind the petition for nullity is bigamy.

DAVID A. NOVERAS VS. LETICIA T. NOVERAS, G.R. No. 188289, August 20,
2014
The trial court erred in recognizing the divorce decree which severed the
bond of marriage between the parties. There was no valid showing that a
divorce decree was validly issued. Our courts do not take judicial notice of
foreign judgments and laws. A foreign judgment and its authenticity must
be proven as facts under our rules on evidence, together with the alien’s
applicable national law to show the effect of the judgment on the alien

24
himself or herself. The recognition may be made in an action instituted
specifically for the purpose or in another action where a party invokes the
foreign decree as an integral aspect of his claim or defense.

The requirements of presenting the foreign divorce decree and the national
law of the foreigner must comply with our Rules of Evidence. Specifically,
for Philippine courts to recognize a foreign judgment relating to the status
of a marriage, a copy of the foreign judgment may be admitted in evidence
and proven as a fact under Rule 132, Sections 24 and 25, in relation to Rule
39, Section 48(b) of the Rules of Court.

Under Section 24 of Rule 132, the record of public documents of a sovereign

authority or tribunal may be proved by: (1) an official publication thereof or
(2) a copy attested by the officer having the legal custody thereof. Such
official publication or copy must be accompanied, if the record is not kept in
the Philippines, with a certificate that the attesting officer has the legal
custody thereof. The certificate may be issued by any of the authorized
Philippine embassy or consular officials stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office. The
attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be, and must be under
the official seal of the attesting officer.

Recognition by Philippine courts of a foreign divorce decree does not by

itself authorize the cancellation of the entry in the civil registry. A petition
for recognition of foreign judgment is not the proper proceeding for
cancellation of entries in the civil registry. Rule 108, Rules of Court, applies.
Where a divorce decree is annotated on the alien’s marriage contract
without a court order recognizing the decree, the annotation is void and
cannot produce any legal effect. (Corpuz v, Sto. Tomas, 186571,
11Aug10)

11 . VOID MARRIAGE distinguished from VOIDABLE

MARRIAGE

Arts. 35, 36, 37, 38 and 53 – all void ab initio.

Voidable – Art. 45 and 46, FC, and subsequent marriage after
declaration of presumptive death. Valid until judicially
annulled.

A. VOID MARRIAGE UNDER ART. 36 FC

Psychological Incapacity to comply with the essential marital

obligations of marriage is based on 3rd par of Canon 1095, not
2nd par.

25
PI must be proven through evidence of : Juridical
Antecedence, Gravity, and Incurability or financial
incapability of afflicted person to submit to cure.

Cases –
So v. Valera, 588 SCRA 319 - No requirement that the psychologically
incapacitated spouse must be personally examined by a physician; there
must be evidence proving adequately the psychological incapacity.
(Najera v. Najera, 591 SCRA 541; Rumbaua v. Rumbaua 596
SCRA 157, Azcueta v. Republic, #180668, 26May09- Decree
granted!). Basis of Art. 36 is 3rd par of Canon 1095, not 2nd which refers
to grave lack of discretion of judgment re matrimonial rights, not on
psychological incapacity.

In Te v. Uy-Te, #161793, 13Feb09, courts should interpret Art. 36,

FC, on a case-to-case basis, using the totality of evidence rule.
Juridical Antecedence, Gravity and Incurability must be
proven. Rule is reiterated in Halili v. Halili, #165424, 09June09.
In both cases, dependent Personality disorder was proved, hence
petition for nullity was granted. Antonio v. Reyes, #155800, 10
Mar 06-Respondent wife a pathological liar;

Ferraris v. Ferraris, #162368, 17 July 06- epilepsy not evidence

of PI; Nullity Denied.

Buenaventura v. CA, # 127358 31 Mar 2005- moral damages can’t

be granted due to PI; Why? Because PI is not wilful or deliberate;

Republic v. Baguio #171042, 30 JUNE 2008; Paras v. Paras,

#147824, 2 Aug 2007; psychological incapacity must be proven in
court: Juridical Antecedence, Gravity; Incurability. Totality of
evidence rule prevails. PI to be decided on a case-to-case basis.

Robert F. Mallilin vs. Luz G. Jamesolamin and the Republic G. R

No. 192718, February 18, 2015 -
Art. 36 FC was lifted from Par 3 of Canon1095, not Par 2. Thus, if a marriage
is annulled by the Matrimonial Tribunal of the Catholic Church under Par.2
of the Canon, such has no bearing on a petition for nullity under Art 36.

The basis of the declaration of nullity of marriage by the NAMT in this case
was not the third paragraph of Canon 1095 which mentions causes of a
psychological nature similar to Article 36 of the Family Code, but the second
paragraph of Canon 1095 which refers to those who suffer from grave lack
of discretion of judgment concerning essential matrimonial rights and

26
obligations to be mutually given and accepted. The Appellate Matrimonial
Tribunal stated:
“Canon 1095. The following are incapable of contracting marriage:

1. those who lack sufficient use of reason;

2. those who suffer from a grave lack of discretion of judgment
concerning the essential matrimonial rights and obligations to be
mutually given and accepted;
3. those who, because of causes of a psychological nature, are unable
to assume the essential marital obligations of marriage.”

Valerio Kalaw v. Elena Fernandez, G.R. No. 166357, January

14, 2015 - The Supreme Court reiterated its categorical statement in a
2009 case, that “we are not suggesting the abandonment of Molina in this
case.” The set of guidelines in Molina, therefore, stays. The Court therefore
did not relax the rules when it reconsidered the Kalaw ruling. On the
contrary, the ruling falls under the ambit of the Molina guidelines.

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”. 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. They must accord weight to
expert testimony on the psychological and mental state of the parties in
cases for the declaration of the nullity of marriages, and must consider as
decisive evidence the expert opinion on the psychological and mental
temperaments of the parties.” In this case, the SC focused on expert
opinion.

12. Incestuous marriages – are those celebrated between

ascendants and descendants of any degree; between brothers
and sisters whether full or half-blood.

13. Marriages Void for Reasons of Public Policy:

1. between collateral relatives, legit or illeg, up to 4th
civil degree.
2. Between step parents and stepchildren
3. Parents-in-law and children-in-law
4. Adopting parent and adopted child
5. Surviving spouse of adopting parent and adopted
6. Surviving spouse of adopted child and adopter
7. Adopted child and legit child of adopter
8. Between adopted children of the same adopter
9. Between parties kills his/her spouse or the spouse
of another person for the purpose of marrying

27
 another or the other person’s spouse. (no criminal
conviction required)

These are exclusive. Thus, the following can marry each

other:
a. brother-in-law and sister-in-law
b. stepbrother and stepsister
c. guardian and ward
d. adopted child and illegit child of adopter
e. adopted child of the husband and adopted child of
the wife
f. parties convicted of adultery or concubinage, if there
are no impediments.

14 . Arts. 41 and 42, FC. A subsequent marriage while the

first has not been judicially declared null and void, is VOID.
Judicial declaration necessary for purposes of remarriage. Not
necessary for other purposes.

Without such judicial declaration and the spouse remarries,

Marriage is Void.

Cases:

NORBERTO A. VITANGCOL, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT. 1. [ G.R. No. 207406, January 13, 2016 ] - Persons intending
to contract a second marriage must first secure a judicial declaration of
nullity of their first marriage. If they proceed with the second without the
judicial declaration, they are guilty of bigamy regardless of evidence of
the nullity of the first marriage. The first was celebrated on July 17, 1987.
The second was entered into on December 4, 1994. Within a span of seven
(7) years, four (4) months, and 17 (seventeen) days, petitioner did not
procure a judicial declaration of the nullity of his first marriage. Even
while the bigamy case was pending, no decision declaring the first
marriage as spurious was presented. In other words, petitioner's belief
that there was no marriage license is rendered untrue by his own
actuations.
(Mere presentation of a certification from the civil registrar that the
marriage license cannot be found is not enough to discharge the burden of
proving that no such license was issued.)

G.R. No. 189607, April 18, 2016, RENATO A. CASTILLO vs. LEA P.
DE LEON CASTILLO, - A judicial declaration of absolute nullity of
marriage is now expressly required where the nullity of a previous one is

28
invoked for purposes of contracting a second marriage. Under the Family
Code, a second marriage contracted prior to the issuance of a declaration of
nullity is bigamous and void. Domingo v. Court of Appeals, explains:

“Marriage, a sacrosanct institution, declared by the Constitution as an

"inviolable social institution, is the foundation of the family;" as such, it
"shall be protected by the State." x x x So crucial are marriage and the
family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to
stipulation." As a matter of policy, therefore, the nullification of a marriage
for the purpose of contracting another cannot be done merely on the basis
of the perception of both parties or of one that their union is so defective
with respect to the essential requisites of a contract of marriage as to
render it void. Were this so, this inviolable social institution would be
reduced to a mockery and would rest on very shaky foundations indeed. x
x x For such a socially significant institution, an official state
pronouncement through the courts, and nothing less, will satisfy the
exacting norms of society.

The Court clarified in Apiag v. Cantero and Ty v. Court of Appeals, the

requirement of a judicial decree of nullity does not apply to marriages that
were celebrated before the effectivity of the Family Code, particularly if the
children of the parties were born while the Civil Code was in force.
Odayat, Mendoza and Aragon held that since the second marriage took
place and all the children thereunder were born before the promulgation of
Wiegel and the effectivity of the Family Code, there is no need for a judicial
declaration of nullity of the first marriage.

In this case, private respondent's second marriage to petitioner is valid. The

provisions of the Family Code cannot be retroactively applied to the present
case, for to do so would prejudice the vested rights of petitioner and of her
children. As held in Jison v. Court of Appeals, the Family Code has
retroactive effect unless there be impairment of vested rights. In the
present case, that impairment of vested rights of petitioner and the
children is patent.

LEONILA G. SANTIAGO VS. PEOPLE OF THE PHILIPPINES, G.R. No.

200233, July 15, 2015 ,

Leonila was charged with bigamy for having contracted a second

marriage without the existing first marriage having been judicially
nullified. She argued that her first marriage was a nullity because the
affidavit of cohabitation she and her first husband executed contained a
false allegation that they cohabited for 5 years. This rendered the
affidavit fraudulent and could not substitute for a valid marriage license.

Petitioner’s illegal acts of falsifying an affidavit of cohabitation cannot be

used by her to gain benefit from such illegal act. and, in the same breath,

29
adjudge her innocent of the crime. She should come to court with clean
hands.

Note: If first marriage contracted before effectivity of Family

Code, and the second marriage, after such effectivity, Art. 40
applies, i.e., there must be a judicial declaration of nullity. If
both marriages occurred prior to Family Code, still a judicial
declaration needed because of the retroactivity of the Family
Code Second marriage is invalid. However, there must be no
impairment of the vested rights of wife and children of second
marriage if any. Otherwise, second marriage without judicial
declaration of nullity of the first marriage is valid.

Exception: Declaration of presumptive Death in a summary

proceeding. There is no need for a prior declaration by court
of nullification of first marriage. (Requirements: The absent
spouse has been absent for 4 consecutive years and present
spouse has well-founded belief that absent spouse is already
dead. In case of disappearance in danger of death (lost at sea,
missing airplane, person in armed forces taking part in war
MIA for 4 years, in danger of death under other
circumstances, 2 years of absence is sufficient.)

A declaration of presumptive death qualifies present spouse to

remarry. Subsequent marriage is voidable, automatically
terminated with filing of affidavit of reappearance.

15. DECLARATION OF PRESUMPTIVE DEATH - is a

summary proceeding, therefore judgment is final and
executory. No appeal can be taken, except that a petition for
certiorari under Rule 65 for grave abuse of discretion can be
filed. Republic v. Tango, #161062, 31July09

G.R. No. 199194, February 10, 2016 REPUBLIC OF THE PHILIPPINES

VS. JOSE B. SAREÑOGON, JR., .

A petition for certiorari pursuant to Rule 65 of the Rules of Court is the

proper remedy to challenge a trial court's declaration of presumptive
death under Article 41 FC of the Philippines. Jose filed for the declaration
of presumptive death of his wife, Netchie who left for Hongkong to work
as as a domestic helper. He had no idea about her whereabouts despite
inquiries and search. Her relatives and friends did not know where she
was. He filed the Petition before the RTC so he could contract another
marriage pursuant to Article 41 of the Family Code. The RTC found that

30
Netchie had disappeared for more than four years, reason enough for
Jose to conclude that his wife was indeed already dead..The Republic
appealed.

The CA held that the Republic used the wrong recourse by instituting a
petition for certiorari under Rule 65 of the Revised Rules of Court. The
CA perceived no error at all in the RTC's judgment granting Jose's
Petition for the declaration of the presumptive death of his wife, Netchie.
The CA thus held in effect that the Republic's appeal sought to correct or
review the RTC's alleged misappreciation of evidence which could not
translate into excess or lack of jurisdiction amounting to grave abuse of
discretion

Held: Republic's petition is meritorious.

A petition for certiorari under Rule 65 of the Rules of Court is

the proper remedy to question the RTC's Decision in a summary
proceeding for the declaration of presumptive death

The 2005 case of Republic v. Bermudez-Lorino held that the

RTC's Decision on a Petition for declaration of presumptive
death pursuant to Article 4, FC, is immediately final and
executory. Thus, the CA has no jurisdiction to entertain a
notice of appeal pertaining to such judgment. The correct
remedy to challenge the RTC Decision was to institute a
petition for certiorari under Rule 65, and not a petition for
review under Rule 45.

FC, ART. 247 provides that in summary proceedings, the

judgment of the court shall be immediately final and executory.

REPUBLIC vs. YOLANDA CADACIO GRANADA, G.R. No. 187512 June 13,
2012
For marriages celebrated before the Family Code took effect, there is no
need for a judicial declaration of presumptive death, the law only requires
that the absent spouse has been absent for 7 consecutive years, that the
present spouse does not know that the absent spouse is alive, that the
absent spouse is reputed to be dead and the present spouse so believes. (
also in Valdez v. Republic, #180863, 08Sept09).

Celerina J. Santos vs. Ricardo T. Santos G.R. No. 187061, October

08, 2014
Ricardo filed for declaration of presumptive death of wife Celerina who he
alleged has been absent, whereabouts unknown. Petition was granted.
Celerina learned of the petition when she received copy of the decision at
her last known address. She filed case for annulment of judgment on the

31
ground of extrinsic fraud as she had been residing continuously in their
conjugal dwelling after Ricardo left her and her children. SC held that
Celerina’s suit is correct. The proper remedy for a judicial declaration of
presumptive death obtained by extrinsic fraud is an action to annul the
judgment. An affidavit of reappearance is not the proper remedy when the
person declared presumptively dead has never been absent.
16. Effects of Termination of Subsequent Marriage – (applies also to
Nullified and Annulled Marriages, as to Pars. 2-6)

a. Children conceived prior to termination are legitimate

b. ACP or CPG dissolved and liquidated. Spouse in bad faith
forfeits share in favour of common children, if none, children
of previous marriage, in default, the innocent spouse.
c. Donations propter nuptias remain. Donee in bad faith-
revocation by operation of law.
d. Innocent spouse may revoke beneficiary designation of bad
faith spouse in insurance policy even if irrevocable.
e. bad faith spouse disqualified to inherit from innocent
spouse.
f. if both in bad faith, subsequent marriage void ab initio,
children are legitimate (Art.54), property relations one of
void marriage; all donations propter nuptias and
testamentary dispositions made by one in favor of the other
are revoked by operation of law. (Art.44)

The rule that in case of a void marriage, the dcree of nullity will be issued
only after compliance with the requirements of Arts. 50 and 51 does not
apply to marriages nullified under Art. 36. Dino v. Dino, #178044,
19Jan11.

Compulsory heirs can question the validity of marriage only in an estate

proceeding filed before the regular courts. De Dios v. Sandoval,
#179922, 16Dec08

17. VOIDABLE MARRIAGE -

Can be attacked directly only by the parties, through an
action for annulment, within the prescribed period, under
grounds in Arts. 45 and 46., existing at the time of the
celebration of the marriage. The marriage however may be
ratified.

Grounds: Art. 45. Lack of parental consent, insanity, fraud,

consent obtained through force, intimidation or undue

32
 influence,, impotency, affliction with STD that is serious
and incurable.

Art. 46. Fraud: non-disclosure of previous conviction of

crime involving moral turpitude; concealment of
pregnancy; concealment of STD regardless of its nature;
concealment of drug addiction, habitual alcoholism,
homosexuality (Almelor v. RTC Las Pinas, 179620 26Aug 08)
or lesbianism. These are exclusive grounds.

18. Matters to be included in the final judgment of void

and voidable marriages:
liquidation, partition and distribution of properties
of spouses;
custody, support of common children; and
delivery of presumptive legitime of children.

Requirements before either spouse can remarry:

a. Recording in the Registry of Property of partition, distribution

of spouses’ properties,
b. delivery and recording of presumptive legitimes of children.
b. Recording in Civil Registry of Nullity or Annulment Decree.

If spouses do not comply with these requirements, neither one

can remarry other persons, otherwise, such marriage is void.
(The children are considered by law as legitimate, nevertheless.)

Where the petition for correction of entries or acknowledgement and

legitimation by subsequent marriage is filed as a special proceeding case
under Rule 108, but prays that the legitimation of the illegitimate child be
nullified because subsequent marriage is bigamous, the case falls within the
jurisdiction of Family Courts. (Braza v. City Civil Registrar of
Himamaylan City, # 181173, 04Dec09)

19. LEGAL SEPARATION –

Grounds:
1. Repeated physical violence or grossly abusive conduct
2. physical violence or moral pressure to change political
or religious affiliations

33
 3. attempt to corrupt or induce petitioner or child to
engage in prostitution
4. Final judgment of imprisonment of more than six years
5. Drug addiction or habitual alcoholism
6. Lesbianism or homosexuality
7. Bigamy
8. Sexual infidelity or perversion
9. attempt on the life of petitioner
10. abandonment without justifiable cause for more than
1 year

Defenses: Condonation or forgiveness, Consent, Connivance,

Recrimination Collusion, Prescription.

Some Notes:
Condonation must be attended with full knowledge of the
offense. Given after the offense.

Consent: Permission extended prior to the commission of the

offense.

Connivance: One spouse agrees with a third party to provide

ground for legal separation. Must be distinguished from
entrapment.

Recrimination: mutual guilt of the spouses.

Collusion: act to procure legal separation by agreeing to commit

or appear to commit a ground for legal separation or agreeing to
defend legal separation proceedings such as failing to appear in
court to contest the suit.

Prescription: suit is barred after 5 years from the occurrence of

the ground.

Action is abated by death of one of the parties, since the action

is purely personal.

No LegSep decree shall be issued unless court took steps towards

reconciliation; no trial within 6 months from filing of petition

34
(cooling off period); no decree based on stipulation of facts or
confession of judgment. Prosecutor must actively intervene.

Effects of filing of petition for Legal Separation:

a. spouses entitled to live separately
b. Absent a written agreement, court shall designate
administrator of ACP or CPG with powers and duties as a
guardian
c. support of spouses, support and custody of children similar to
provisions of Art. 49 (nullity and annulment cases)

Effects of Legal Separation:

a. Separation of bed and board, marital bonds
not severed, HENCE MARITAL FIDELITY STILL
EXISTS AND IS DEMANDED FOR BOTH THE
SPOUSES.

b. Right to support ceases.

c. ACP or CPG dissolved and liquidated.

Offending spouse no right to the net profits which
shall be forfeited accdg. to Art. 213 FC.

*Quiao v. Quiao, et al’ #176556 July 4, 2012 - Prior to the

liquidation of the conjugal partnership, the interest of each spouse in the
conjugal assets is inchoate, a mere expectancy, which constitutes neither a
legal nor an equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the liquidation and
settlement. The interest of each spouse is limited to the net remainder or
“remanente liquido” (haber ganancial) resulting from the liquidation of the
affairs of the partnership after its dissolution. Thus, the right of the husband
or wife to one-half of the conjugal assets does not vest until the dissolution
and liquidation of the conjugal partnership, or after dissolution of the
marriage, when it is finally determined that, after settlement of conjugal
obligations, there are net assets left which can be divided between the
spouses or their respective heirs.

For purposes of computing the net profits subject to forfeiture under Article
43, No. (2) and Article 63, No. (2), Article 102 (4) applies: Net profits “shall
be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market
value at the time of its dissolution.” Article 102(4) applies to both the

35
dissolution of the absolute community regime under Article 102 of the
Family Code, and to the dissolution of the conjugal partnership regime
under Article 129 of the Family Code.

What is forfeited in favour of the children is not the share of

the guilty spouse in the CP property but the net profits. Siochi
v.Gozon, #169900 18Mar10

i. Custody of children awarded to innocent

spouse.
ii.Offending spouse disqualified to inherit
intestate, and testamentary provisions, shall
be revoked by operation of law.
iii. Wife to continue using her name and
husband’s surname.
iv.After decree becomes final, innocent spouse
may revoke donations to offending spouse, or
designation of OS as beneficiary even if
irrevocable.

Effects of Reconciliation:
a. pending legsep proceedings terminate
b. a final decree shall be set aside
c. separation of property and forfeiture if any shall subsist,
unless spouses agree to revive former property regime..
d. These effects shall be recorded in athe proper civil
registries.
e. Agreement to revive former property regime shall be
under oath, filed with the legsep court, and the Order of
the court recorded in registry of property.

20. RIGHTS AND OBLIGATIONS OF HUSBAND AND

WIFE
Personal Obligations of Husband and Wife:
a. to cohabit/live together
b. observe mutual love and respect and fidelity
c. render mutual help and support

Domicile fixed jointly. In case of disagreement, court

fixes it.

Family Obligations:
a. manage household

36
 b. not to commit acts inimical to integrity of the
family

Either spouse may exercise a legitimate profession, without

consent of the other who may object on valid, serious and
moral grounds.

21. PROPERTY RELATIONS BETWEEN HUSBAND AND

WIFE

1. Property Relations of H and W are governed in the

following order by: marriage settlements executed
before the marriage; The Family Code; Local customs.

2. Property regimes: ACP, CPG, Complete Separation of

Property; or any other regime, all subject to the proviso
that these are not contrary to law, morals, good customs,
public order of public policy.

3. If spouses in their MS expressly reject ACP but do not

name the regime that will govern their property
relations, local customs will apply, if none, intention of
spouses,, if cannot be ascertained, co-ownership.

4. Modification of MS should be done before marriage. MS

must be registered in local civil registry and registry of
property.

Post marriage modification of the settlements is not allowed, except when:

a) the ACP or CPG was dissolved and liquidated by a legal separation
decree; b) the legally separated spouses reconciled and agreed to revive
their former property regime, c) judicial separation of property was due
to abandonment or failure to comply with family obligations; d) Judicial
separation under Art. 135; e) spouses jointly filed for voluntary
dissolution of ACP or CPG. Pana v. Juanite, #164201, 10 Dec12

5. Law governing property relations of Filipino spouses is

Philippine law. Not applicable where both spouses are
aliens, and with respect to extrinsic validity of contracts
executed in country where property outside the
Philippines is situated; and extrinsic validity of contracts
executed in Phil over property situated in another
country whose laws require different formalities for
extrinsic validity.

37
 6. MS provisions in consideration of marriage are void if
marriage does not take place. E.g. recognition of a
natural child.

7. Donations Propter Nuptias – made in consideration of

marriage, made before marriage in favour of one or both
future spouses; are valid and effective if done according
to the formalities of donations.

8. Art. 84. If the future spouses agree on regime other than

ACP, they cannot donate to each other in their MS more
than 1/5 of their present property. Excess thereof is void.

9. Donations propter nuptias of future property (that

which the donor cannot dispose of at the time of the
donation) are governed by testamentary succession
provisions and the formalities of wills, and become
effective upon the death of the donor.

10. Donations propter Nuptias of encumbered property are

valid. If sold for less than the amount secured, donee is not
liable for deficiency, if sold for more, donee is entitled to the
excess.

11. Grounds for revocation of DPN (not by operation of law,

but upon discretion of donor):
a. marriage is not celebrated or is judicially nullified (if
donation is in MS, Art. 81 shall apply);
b. marriage takes place without consent of parent or
guardian, the donor may revoke;
c. marriage is annulled and donee acted in bad faith;
d. Upon legal separation, donee is guilty spouse;
e. Donation with a resolutory condition and condition is
complied with.;
f. donee committed an act of ingratitude as enumerated
in Art. 765 of Civil Code;

12. Donations between spouses during marriage VOID, except

moderate gifts. Applies to live-in partners.

38
22. ABSOLUTE COMMUNITY OF PROPERTY -
Consists of ALL property owned by the spouses at the
time of the celebration of the marriage or acquired
thereafter.

a. When ACP governs:

1. When MS stipulates
2. Regime agreed upon is void
3. No marriage settlements
4. Under a partial separation of property, the . rest
not covered belongs to ACP.
No waiver of rights or effects of ACP.

b. Rules on co-ownership in CCP apply suppletorily.

c. Presumptions on property acquired during marriage

(prove first that property was acquired during marriage):
1. if property regime is ACP, property acquired during
marriage is presumed to belong to ACP.
2. If CPG, property so acquired belongs to CPG.

A certificate of title that bears the name “______ married to

______” is not proof that property was acquired during
marriage.

d. Charges against ACP (Art. 94FC) –those that redound

to the benefit of the family, the spouses, common children,
legitimate children of either spouse.

e.. If obligation was contracted by both or by one spouse

with consent of the other, creditor need not prove debt
redounded to benefit of the family. If without consent of the
other spouse, ACP liable only to the extent family benefited.
Separate prop of debtor answers to debts that -family did not
benefit from.
f. In case of Insufficiency of ACP properties to pay for debts,
spouses are solidarily liable with their separate properties.

g. Losses in gambling borne by loser spouse. Winnings

belong to ACP.

39
 h. Ownership, Administration, Enjoyment and Disposition of
ACP. – Spouses jointly; in case of disagreement, husband
prevails but wife an go to court. If one spouse is incapacitated or
otherwise unable to participate in administration of common
properties, the other spouse may administer but disposition or
encumbrance of property has to be authorized by court or with
written consent of other spouse. Otherwise, VOID.

i. Either spouse may dispose of interest in ACP by will. No

donation without consent of the other, except moderate ones.

j. Dissolution of ACP. – Caused by Death of either spouse;

legal separation; nullity or annulment of marriage; judicial
separation of property.

k. Separation in fact of H and Q does not affect ACP. But,

guilty spouse who leaves home loses right to support; judicial
authorization is needed in case when consent of other spouse is
needed; if ACP is insufficient, separate property of spouses liable
solidarily.

l. Art. 101 on abandonment – where spouse without just

cause leaves the other with no intention to return, and there is
cessation of marital relations, rights and duties. In separation in
fact, spouses may still support each other and their children.

m. Prima facie presumption of abandonment if spouse left

conjugal dwelling for 3 months or failed within this same period
.
n. Remedies of present spouse in case of abandonment:
1. receivership of ACP
2. court appointment as administrator
3. for judicial separation of property
4. if abandonment without just cause has
been for a year or more, file legal
separation suit.
5. File any action for relief if spouse’s
actions tend to bring dishonour to family.

40
 o. Procedure in Liquidation of ACP
Prepare inventory of ACP and exclusive properties of
spouses
Pay ACP obligations
Deliver exclusive property of spouses
Divide and deliver net assets of ACP to each of
spouses
Deliver presumptive legitimes to children

Conjugal dwelling and lot are adjudicated accdg. to MS. Absent

agreement, to spouse with majority of children; if no majority,
court decides in the best interest of the children.

p. Liquidation in same estate proceeding of the deceased

spouse. If no judicial settlement is instituted surviving spouse
must liquidate ACP (or CPG) either judicially or extra-judicially
within 1 year from death of spouse. Otherwise, any disposition
or encumbrance of ACP property is void as to he heirs who did
not consent to transaction.

q. Remarriage of surviving spouse without complying with

requirements of judicial settlement will observe complete
separation of property.

23. CONJUGAL PARTNERSHIP OF GAINS

1. H and W place in a common fund:

a. proceeds, products, fruits and income of their separate
properties;
b. what is acquired by both or either spouses through their
own efforts;
c. what is acquired by either or both by chance.

Spouses are not co-owners of CPG. Only an expectancy. No

title to it unless there are assets upon dissolution and
liquidation. Upon dissolution, net gains divided equally,
unless another formula for sharing is stipulated in the MS.

2. CCP is governed by rules on contract of partnership not in

conflict with MS or provisions of FC.

41
 What constitutes separate exclusive property of Spouses: a)
that brought into CCP as capital or paraphernal; b) that
acquired during marriage thru gratuitous title; c) that
acquired by right of redemption, barter or exchange with
property belonging to only one of the spouses; d) purchased
with exclusive money of a spouse.

Spouses exercise ownership, administration and enjoyment

of exclusive property. Administration over it may be
transferred to the other during marriage by public
instrument recorded in the Reg of Prop in place where prop
is located.

3. Property Donated or left by Will to the Spouses

jointly, is exclusive to each spouse: if there is designation, this
governs share; if no share designation, I/2 sharing.
In donations, if one spouse refuses o accept, is incapacitated to
accept, or dies before perfection of donation, the other spouse
gets the share by accretion.

If by will, the donee spouse’s renunciation or incapacity to

receive or death before testator, accretion also occurs.

4. Onerous donations chargeable to each spouse, not the

CPG.

5. Benefits of retirement, pensions, gratuities, usufructs, if

gratuitous are exclusive; if onerous, CPG.

6. Life annuities where premiums paid for by CPG, belong to

CPG.

7. ALL PROPERTY ACQUIRED DURING MARRIAGE are

presumed conjugal even if registered in the name of one
or both spouses, unless contrary is proved. Party who
invokes presumption must first prove property was
acquired during the marriage. This sine qua non.

8. Acquisition of title is different for registration of title.

Registration confirms title. Not confers it.

42
 9. What constitutes property of the CPG?
a. acquired by onerous title during marriage at the
expense of the common fund (even if acquisition is for the CPG
or for only one spouse)
b. obtained thru labor or industry of either or both
spouses.
c. fruits of CPG property and net fruits of exclusive
property
d. share of spouse in hidden treasure
e. acquired thru occupation such as fishing or hunting
f. livestock in excess of number brought into the marriage
g. acquired by chance.

10. If property is bought on instalments - owned by buyer

spouse if full ownership vests BEFORE marriage; if during
marriage, then to CPG. With reimbursement if advanced by
other spouse or the CPG. If bought on instalments by exclusive
money, it belongs to the buyer regardless of when ownership
vested.

11. Credits owned by spouse: payments collected during

belong to that spouse. Interests due during marriage go to CPG.

12. Improvements on separate property at the expense of

CPG or efforts of one or both spouses belong to:
a. CPG, including property, if cost of improvement and
increase in value exceed value of property at time of
improvement, subject to reimbursement of the value of
the property of owner-spouse at time of improvement.

b. to Owner-Spouse, if cost of improvement and

increase in value does not exceed value of property at
time of improvement. Subject to reimbursement

In either case, ownership vests at time of reimbursement, i.e.,

liquidation of CPG.

13. Rules on CPG similar to ACP in terms of :

43
a. Primary Obligations (if property is insufficient, separate
properties are solidarily liable.)
1. support
2. debts contracted during marriage for benefit of family;
3. expenses for self- improvement
4. taxes, minor repairs on separate prop.(ACP-if used by
family.), for litigation (unless groundless)

b. Secondary obligations such as ante-nuptial debts w/out

benefit to family, support for illegitimate, children, gambling
losses, fines and indemnities on either spouse, but only if
separate property is insufficient. Reimbursable during
liquidation of CPG.

c. Ownership, administration, enjoyment of CPG property.

d. Dissolution and Liquidation

VIRGINIA OCAMPO, PETITIONER, VS. DEOGRACIO OCAMPO, RESPONDENT.

G.R. No. 198908, August 03, 2015 ]

Virginia was granted her Petition for Declaration of Nullity of her marriage
with Deogracio under Art. 36, FC. Their children remained legitimate and
their custody awarded to Virginia. The decision became final. The parties
were ordered to submit a project of partition of their inventoried
properties. Having failed to agree, the parties adduced evidence at a
hearing called for the purpose of determining the disposition of properties.
The court ordered that the properties declared by the parties shall belong
to each one of them on a 50-50 sharing. Virginia appealed. Court of
Appeals denied the appeal.

Virginia asked the SC whether respondent should be deprived of his share

in the conjugal partnership of gains by reason of bad faith and psychological
perversity. SC said No. The Family Code provisions on conjugal partnerships
govern the property relations between Deogracio and Virginia even if they
were married in 1978 before the effectivity of the Family Code.

Article 105 of the Family Code explicitly mandates that the Family Code
shall apply to conjugal partnerships established before the Family Code
without prejudice to vested rights already acquired under the Civil Code or
other laws. Thus, if the properties are acquired during the marriage, the
presumption is that they are conjugal. Hence, the burden of proof is on the
party claiming that they are not conjugal. The applicable law on liquidation
of the conjugal partnership assets and liability is concerned, is Article 129 of
the Family Code in relation to Article 147. In a void marriage, as in those

44
declared void under Article 36 FC, the property relations of the parties
during the period of cohabitation is governed either by Article 147 or Article
148 of the Family Code. Article 147 of the Family Code provides:

Article 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 mariage, their wages and salaries shall
be owned by them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the rules on co-
ownership.

When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of
their common children. In case of default of or waiver by any or all of the
common children or their descendants, each vacant share shall belong to
the respective surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the forfeiture shall
take place upon termination of the cohabitation.

Metrobank v. Nicholson Pascual, #163744, 29Feb2008 -

Acquisition of property during marriage gives rise to presumption that
property is conjugal. It is not required to prove that the property was
acquired through conjugal funds for the presumption to attach.
Termination of the CPG does not ipso facto end the conjugal nature of the
property, and the nature continues to subsist until and after the liquidation
and partition of the CPG.

Liabilities under a tort or crime cannot be charged to the CPG unless the
crime or quasi-delict redounded to the benefit of the CPG. Slander does not
redound to the benefit of the CPG. Buado v. CA, 586SCRA39

If it is not proved that the property was not acquired during the marriage,
sale of such property by the registered owner without the consent of the
spouse is valid. De La Pena v. Avila # 187490, 08Feb12.

When a wife may bind conjugal partnership: Only when she purchases
things necessary for the support of the family, or when she borrows money
for that purpose because of failure of her husband to deliver the needed
sum, when the administration of the CPG is transferred to the wife by the
courts or by the husband, or when the wife gives moderate donations to
charity. Francisco et al, v.Sps Gonzales, #177667, 17 Sept08

Beumer vs. Amores #195670, Dec. 3, 2012 - RTC declared marriage

between Willem Beumer and Avelina Amores null and void. The CPG was
dissolved. RTC awarded all land of the CPG to Avelina, and declared two
residential structures built on the lands as co-owned. Buemer protested

45
saying that the lands were acquired by him through his own money and
that these were registered in the name of his wife only because of
constitutional constraints on foreigners owning land in the Philippines.
Thus, he should be reimbursed at least one-half of the value of the lands.
The Supreme Court, citing In re: Separation of Property -Elena B.Muller vs.
Helmut Muller, #149615, Aug29/06, said that Muller cannot seek
reimbursement on the basis of equity in view of the Constitutional
prohibition against foreigners of Philippine land. Beumer obviously
intended to skirt this prohibition by registering the lands in his wife’s name.
He cannot claim equity if he has come to court with unclean hands. He
never acquired any interest over the lands in dispute. A contract that
violates the constitution is null and void and cannot create rights nor
obligations. The law will not aid parties to an illegal contract and will leave
them where it finds them. Neither can Beumer claim unjust enrichment on
the part of Avelina. This does not apply if the act done is prohibited by the
Constitution.
(See also Taylor v. Amores #164584, 22June09)

24. JUDICIAL SEPARATION OF PROPERTY

A. During marriage, separation of property shall take place only

by virtue of
a. a declaration in the MS
b. by judicial order through:

1. a voluntary agreement of spouses by verified petition

in court for voluntary dissolution of ACP or CPG and separation
of common properties; (EXTRAJUDICIAL separation or
separation without judicial approval is VOID.)

2. The agreement is for sufficient cause: a spouse is civilly

interdicted; an absentee; has abandoned the petitioner or failed
to comply with marital, parental or property obligations; has
abused administrative powers; spouses are separated in fact for
at least one year and reconciliation is highly improbable. Or as
an incident of legal separation.

c. by operation of law – as the property regime of a

subsequent marriage of a spouse who has not liquidated ACP or
CPG of previous marriage.

B. Effects of Separation of Property:

46
 1. Previous property regime is dissolved
2. Exclusive powers over exclusive property
3. Obligation of support each other and the children
continues
4. Creditors are not prejudiced.

C. Revival of former property regime:

1. by Motion before same court
2. Grounds:
a. termination of civil interdiction
b. appearance of absent spouse
c. court is satisfied administration powers will not be
abused anymore
d. abandoning spouse returns
e. parental authority judicially restored
f. reconciliation and resumption of common life
g. if voluntary dissolution of ACP or CPG, spouses agree to
revive former regime, but, no more granting of
voluntary dissolution later on.

D. Transfer of administration of separate property to the other

spouse my be ordered by the court when
1. one spouse becomes guardian of the other
2. one spouse is declared absentee
3. spouse is under civil interdiction
4. spouse is fugitive from justice

E. REGIME OF SEPARATION OF PROPERTY

Spouse retains ownership, management and control of
property brought into or acquired during marriage plus all fruits
and accessions, under the obligation to contribute
proportionately to the family expenses. Liability to creditors is
solidary.

i.Governed by MS if any, if none, the FC.

ii.This is NOT judicial separation of property
iii.may be total or partial

47
25. PROPERTY REGIMES OF UNIONS WITHOUT MARRIAGE

1. Coverage of Art, 147.

a. union between a man and a woman capacitated to
marry but do not marry, and are living exclusively
together as husband and wife;
b. union between man and woman under a void
marriage (lack of essential or formal requisites.)

2. Rules governing property relations:

a. Wages and Salaries earned
separately – owned in equal shares.
b. Property acquired by both thru
work or industry - co-ownership
c. Property acquired thru donation,
succession or as exchange with
exclusive property – exclusive
property
d. If obtained by joint efforts – owned
in equal shares.
e. If one party did not participate in
acquisition but efforts consisted in
managing household, caring and
maintaining family, deemed to
have contributed equally – hence,
equal share.
f. Management of co-owned
properties – joint
g. Encumbrance or disposition –with
consent of the other.

3. Forfeiture rules:
b. one party is in good faith: share of party in bad
faith go to common children or descendants,
c. in default, to respective surviving descendants;
d. absence of descendants – to innocent party.

3. Coverage of Art. 148 -

a. adulterous relationships
b. bigamous marriages

48
 c. all other unions not falling under Art. 17 such as multiple
relationships

4. Rules:
a. Only properties acquired through actual joint
Contributions of money, property or industry are
owned in common, in proportion to contribution.
b. Management and care of household does not constitute
joint industry or effort.
b. Property acquired separately before
union is separate.
c. Wages and Salaries are separate property.
d. If one party is in bad faith (married validly to another),
share in the co-ownership goes to ACP or CPG of valid
marriage.
e. If party who acted in bad faith is not validly married to
another share is forfeited as in Art. 147. Both parties in
bad faith, same rule of forfeiture.

Under Art. 148, FC, if an alien purchases land and registers it in the name of
his married Filipino partner, he has the right to assign his rights over the
land and the assignee acquires the rights as against the registered Filipino
owner who has no rights over the land. Such adulterous relationship
disqualifies the Filipino partner who has not actually contributed to the
acquisition of the property from having rights over said property.
Registration is not a mode of acquiring property it is a means of confirming
the fact of its existence with notice to the world at large. Borromeo v.
Descallar, #159310, 24Feb09

26. THE FAMILY

1. An Institution – governed by law. No custom nor practice

derogatory and destructive to family shall be recognized and
given effect.
2. Constitutional Basis of concepts of Family - Sec. 12, Art. II of
1987 Constitution; Art. XV, on The Family.

3. Family relations: Husband and Wife; Parents and

Children; Ascendants and Descendants; Brothers and Sisters,
whether full or half-blood.

49
 4. No suit between family members shall prosper without
efforts at reconciliation.
No compromise however as to civil status, validity of marriage
or legal separation, ground for legal separation, future support,
future legitime, jurisdiction of courts. (Art. 2035,CCP)

5. THE FAMILY HOME –

a. Constituted jointly by H and W, or unmarried head of the

family, it is the dwelling house, including the land where the
family resides, from the time of occupation as residence. (But
if on rented land, or by tolerance of owner, no)
b. Exempt from execution, forced sale or attachment, except
as provided for by law.
c. continues to be such as long as any beneficiary resides
therein
d. Beneficiaries are H and W, unmarried person as head of
family, and their parents, ascendants, descendants, brothers
and sisters living therein and dependent on head of family for
legal support.
e. May be constituted on ACP or CPG property
f. separate property of spouse who consents
g. own property of unmarried head of family
h. property on conditional sale by instalment where title is
reserved by owner only as security for payment.
i. FH continues despite death of one or both spouses or
unmarried head of family, for 10 years or for as long as there is a
minor beneficiary living in FH.
j. Liability of FH to creditors (who obtains a judgement in
his favour and not one under exempted circumstances): who
have reasonable ground to believe that value of FH is more than
maximum amount. Creditor may apply to court granting him
judgment. Excess after application of purchase price in sale shall
belong to the judgment debtor.

A dwelling house constructed on a land judicially declared to be the

property of another person cannot be deemed a family home if the
continued stay on the land was by tolerance of the owner . Cabang v.
Basay, #180587, 20Mar09.

50
27. PATERNITY AND FILIATION.

1. Paternity –the relation of father to child.

Maternity – the relation of mother to child
Filiation – relation of child to parents

2. Kinds of filiation:
by nature: Legitimate or illegitimate
by adoption

3. Legitimate children are conceived OR born during the

marriage of their parents. Thus, conceived before but
born during marriage –legitimate. Conceived during
marriage but born after termination of marriage –
legitimate.

4. Conceived through artificial insemination of wife, with

sperm of husband or donor or both are legitimate if: a) Both H
and Q authorized or ratified insemination in a written
instrument executed and signed by both of them before the
birth of the child;
b) instrument is recorded in civil registry before the birth of
the child.

5. Child is legitimate even if mother declared against legitimacy

or sentenced as adulteress.

6. Rules in case of termination of marriage and child is born

thereafter:

a. when mother has not remarried –

1. If child is born within 300 days from termination of
marriage, presumed legitimate.
2. If born after 300 days following termination of marriage -
legitimacy to be proven by whoever alleges status of child.
(Art. 169, FC)

b. when mother remarried after 300 days following termination

of marriage:

51
 1. If born within second marriage, a legitimate child of second
marriage.
2. If born before second marriage, apply rule in Art. 169.

c. When mother contracted another marriage within 300 days

after termination of marriage, child is considered of the former
marriage if born before 180 days after solemnization of
subsequent marriage but born within 300 days after termination
of former marriage.

d. Child is considered conceived of subsequent marriage if born

after 180 days following celebration of subsequent marriage
even if born within 300 days after termination of former
marriage.

e. By express provision of law, legitimate if

1. conceived or born before finality of judgment of
annulment, nullity under Art. 36.
2. conceived or born of subsequent marriage under Art. 53
(void m due to failure to comply with registration, delivery of
presumptive legitime, etc)
3. born of marriage under Art. 41-42 (spouse of a previous
marriage declared presumptively dead) but conceived before its
termination due to reappearance of presumptively dead spouse.

RA NO. 10655, March 15, 2015 ]REPEALING THE CRIME OF

PREMATURE MARRIAGE UNDER ARTICLE 351 OF ACT NO. 3815,
OTHERWISE KNOWN AS THE REVISED PENAL CODE:

SECTION 1. Without prejudice to the provisions of the Family

Code on paternity and filiation, Article 351 of Act No. 3815,
(Revised Penal Code), punishing the crime of premature
marriage committed by a woman, is hereby repealed.

28. RIGHTS OF LEGITIMATE CHILDREN

a. bear surname of father and mother
b. receive support
c. to legitime and other successional rights

52
8. HOW TO IMPUGN LEGITIMACY
Grounds:
a. physical impossibility of husband to have sexual intercourse
with wife within the first 120 days of the 300 days immediately
preceding birth of child. This may mean impotency (not sterility)
or the husband and wife were living separately that sexual
intercourse was impossible.

b. biological or scientific reasons militate against child being

that of the husband except in case of artificial insemination.

9. Who may impugn: Generally, only the husband. However,

heirs may impugn if husband dies: before prescriptive period;
after filing of complaint without withdrawing it; child was born
posthumous.

10. Legit child cannot impugn legitimacy by claiming the he is the

illegitimate child of another. A child born within a marriage is presumed
legitimate. He cannot choose his own filiation. Impugning the legitimacy
of a child is a strictly personal right of a husband or in exceptional cases, his
heirs, as he is the one directly confronted with the scandal and ridicule
which his unfaithful wife caused. If the husband does not impugn the
legitimacy of the child, then the legitimate status of the child is fixed. Li-
Yao vs, Li-Yao, #138961, 07Mar02

11. PROOF OF FILIATION of LEGITIMATE CHILDREN –

a. Primary Evidence – Record of Birth in a Civil Registry or a
Final Judgement; or Admission of legitimate filiation in a public
document or a private handwritten instrument and signed by
the parent concerned.
b. Secondary Evidence - open, continuous possession of status of
legitimate child. Or any other means allowed by the Rules of Court and
special laws (baptismal certificate, a judicial admission, a family Bible in
which the name has been entered, common reputation of pedigree,
admission by silence, testimonies of witnesses, etc. DNA testing may be
used to prove filiation (Estate of Ong. v. Diaz, #71713, 13 Dec07)

12. ILLEGITIMATE CHILDREN - conceived and born outside a

valid marriage.
Exceptions: The following are legitimate:
a. Conceived or born before finality of judgment of
annulment or nullity due to Psycho. Incapacity.

53
 b. conceived or born of subsequent marriage under
Art. 53.
c. children of subsequent marriage under Arts. 41-42,
conceived before its termination by reappearance of
presumptively dead spouse.

13. How to establish Illegitimate Filiation - same way and same

evidence as legitimate children, within same period to claim
legitimacy. May by filed by the child during lifetime, or child’s
heirs if child dies during minority or in a state of insanity – within
5 years from death. BUT, IF ACTION IS BASED ON SECONDARY
EVIDENCE, THE ACTION MUST BE BROUGHT DURING THE
LIFETIME OF THE ALLEGED PARENT.

Puno v.Puno Enterp, 599 SCRA 585: Certificate of Live Birth merely
identifying the father is not competent evidence of paternity unless there is
showing the putative father had a hand in the preparation of the certificate.
Baptismal Certificate is merely evidence of the administration of the
sacrament of baptism but not as to the child’s paternity.

Fidel v. CA, #168263, 21July08, the Court ruled: Parish priests continue
to the legal custodians of the parochial books kept during the former
sovereignty, and as such may issue certified copies of the entries contained
therein in the same manner as do keepers of archives.

Lack of participation of supposed father in the preparation of baptismal

certificate renders the document incompetent to prove paternity. Perla
v. Baring, #172471, 12Nov12

A prima facie case exists if a woman declares –with corroborative evidence

– that she had sexual relations with the putative father of her child. The
burden shifts to the father to prove otherwise. Gotardo v.Buling,
165166, 15Aug12.

RODOLFO S. AGUILAR VS. EDNA G. SIASAT, G.R. No. 200169, January 28,
2015 ]

DNA Evidence – Lucas v. Lucas, #190710, June 6, 2011- Is a

prima facie showing necessary before a court can issue a DNA testing
order? Section 4 of the Rule on DNA Evidence merely provides for
conditions that are aimed to safeguard the accuracy and integrity of the
DNA testing. Section 4 states that the court may, at any time, either motu

54
proprio or on application of any person who has a legal interest in the
matter in litigation, order a DNA testing upon a showing that:

(a) A biological sample exists that is relevant to the

case;

(b) The biological sample: (i) was not previously

subjected to the type of DNA testing now
requested; or (ii) was previously subjected to DNA
testing, but the results may require confirmation
for good reasons;

(c) The DNA testing uses a scientifically valid

technique;

(d) The DNA testing has the scientific potential to

produce new information that is relevant to the
proper resolution of the case; and

(e) The existence of other factors, if any, which the

court may consider as potentially affecting the
accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without

need of a prior court order, at the behest of any party,
including law enforcement agencies, before a suit or
proceeding is commenced.

This does not mean, however, that the order will be issued as
a matter of right if the conditions are established. In some
states in the US, the applicant must first establish a prima
facie case or a reasonable possibility of paternity or “good
cause” for the holding of the test. In these states, a court
order for blood testing is considered a “search,” which, under
their Constitutions (as in ours), must be preceded by a finding
of probable cause in order to be valid. As a preliminary
matter, before the court may issue an order for compulsory
blood testing, the moving party must show that there is a
reasonable possibility of paternity. The same condition
precedent should be applied in our jurisdiction to protect the
putative father from mere harassment suits. Thus, during the
hearing on the motion for DNA testing, the petitioner must
present prima facie evidence or establish a reasonable
possibility of paternity. The issuance of a DNA testing order
remains discretionary upon the court. The court may, for
example, consider whether there is absolute necessity for the
DNA testing. If there is already preponderance of evidence to
establish paternity and the DNA test result would only be

55
 corroborative, the court may, in its discretion, disallow a DNA
testing.

14. Rights of Illegitimate Children –

a. To bear surname of mother, but may use the surname of
the father if expressly recognized by father through record of
birth appearing in the civil registry, or admission in a public
document, or a private handwritten instrument made by the
father. (RA 9255). Father can institute action to prove non-
filiation during his lifetime.
b. To be under parental authority of the Mother.
c. To receive support (also from father – Montefalcon v.
Vasquez, #165016, 17Jun08)
d. to legitime of ½ of share of a legitimate child.

14. LEGITIMATED CHILDREN –

are those who are conceived and born outside of wedlock of

their parents who, at the time of the child’s conception were not
disqualified by any impediment to marry each other, or who
were disqualified only because either or both of them were
below 18 years of age.

RA 9858 – If at the time of conception, one or both parents were

below 18 years of age, and later on they marry, child is
legitimated. Why? Impediment was due merely to minority. Law
was approved on Dec. 20,2009

"Art. 177. Children conceived and born outside of wedlock of

parents who, at the time of conception of the former, were not
disqualified by any impediment to marry each other, or were so
disqualified only because either or both of them were below
eighteen (18) years of age, may be legitimated."

If the parents were already married at the time of the birth of

the child, child is legitimate under Art. 164 FC.

Legitimation takes place upon a subsequent valid marriage of

the parents. Effects retroact to the time of the child’s birth.
Annulment later on of such marriage will not affect legitimation.

56
Declaration of nullity will render legitimation void (unless null
under Art. 36)

Legitimation of children who died before the celebration of the

marriage shall benefit the descendants.

Legitimation may be impugned within 5 years from death of the

alleged parent because it is only then that the impugner’s
successional rights are vested.
of 1998.

BBB VS. AAA, G.R. No. 193225, February 09, 2015

The deletion from the PPO of the directive of the RTC and the CA relative to
the award of support is not warranted. While CCC is not BBB’s biological
son, he was legitimated under the latter’s name. Like DDD and EEE, CCC is
entitled to receive support from BBB.

Article 177 of the Family Code provides that “[o]nly children conceived and
born outside of wedlock of parents who, at the time of the conception of
the former, were not disqualified by any impediment to marry each other
may be legitimated.” Article 178 states that “[l]egitimation shall take place
by a subsequent valid marriage between parents.”

In the case at bar, the parties do not dispute the fact that BBB is not CCC’s
biological father. Such being the case, it was improper to have CCC
legitimated after the celebration of BBB and AAA’s marriage. Clearly then,
the legal process of legitimation was trifled with. BBB voluntarily but falsely
acknowledged CCC as his son. Article 1431 of the New Civil Code pertinently
provides:

Art. 1431. Through estoppel an admission or representation is rendered

conclusive upon the person making it, and cannot be denied or disproved as
against the person relying thereon.

At least for the purpose of resolving the instant petition, the principle of
estoppel finds application and it now bars BBB from making an assertion
contrary to his previous representations. He should not be allowed to
evade a responsibility arising from his own misrepresentations. He is bound
by the effects of the legitimation process. CCC remains to be BBB’s son, and
pursuant to Article 179 of the Family Code, the former is entitled to the
same rights as those of a legitimate child, including the receipt of his
father’s support. Notwithstanding the above, there is no absolute
preclusion for BBB from raising before the proper court the issue of CCC’s
status and filiation. However, BBB cannot do the same in the instant
petition before this Court now. In Tison v. CA,[33] the Court held that “the

57
civil status [of a child] cannot be attacked collaterally.” The child’s
legitimacy “cannot be contested by way of defense or as a collateral issue in
another action for a different purpose.”[34] The instant petition sprang out
of AAA’s application for a PPO before the RTC. Hence, BBB’s claim that CCC
is not his biological son is a collateral issue, which this Court has no
authority to resolve now.

Action for acknowledgment and support - Verceles v. Posada

#159785, 27 April 2007. No damages may be awarded to petitioner
mother of illegitimate child for having been impregnated by respondent,
because she was a consenting adult at the time the illicit affair took place.
Neither can damages be awarded to the parents of the petitioner mother.
Actual expenses for birth however may be claimed.

Best Interest of the Child Rule - In Gamboa-Hirsch v. Court of

Appeals (Res.), G.R. No. 174485, 11 July 2007, 527 SCRA the Court
ruled that the Convention on the Rights of the Child provides that “in all
actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration
(emphasis suppliedThe so-called “tender-age presumption” under Article
213 of the Family Code may be overcome only by compelling evidence of
the mother’s unfitness: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child, insanity,
or affliction with a communicable disease. (See also Tonog v. Daguimol, #
122906, 7Feb02.) Natural child under custody of maternal grandmother was
placed under custody of father temporarily until the mother returned from
work. Best interest doctrine prevailed.

Perez v. Court of Appeals, 325 Phil. 1014 (1996). For children over
seven, custody decisions are guided by the standard of “best interest of the
child.”

Pablo-Gualberto v. Gualberto V, G.R. No. 154994, 28 June

2005, 461 SCRA 450, 471-472. Fathers may tend to argue
against this by claiming “unfair state intervention” but this
complaint can very well be defended on the ground of “patria
potestas”.

Habeas Corpus petition involving a child also involves determining who has
the rightful custody over a child. - The child’s welfare is the most important
consideration. The court is not bound by any legal right of a person over
the child. Bagtas v. Santos, G.R. No. 166682, 27 November 2009.

INFANT JULIAN YUSAY CARAM, REPRESENTED BY HIS MOTHER, MA.

CHRISTINA YUSAY CARAM VS. ATTY. MARIJOY D. SEGUI, et al G.R. No.

58
193652, August 05, 2014 ] Christina filed Petition for the issuance of a writ
of amparo to regain parental authority and custody of Julian, her natural
child with Marcelino , from the officers of the DSWD. Christina had
voluntarily surrendered her baby by Voluntary Commitment to the DSWD.
When Marcelino died, Christina disclosed to Marcelino’s family that she
and the deceased had a son that she gave up for adoption due to financial
distress and initial embarrassment. Marcelino’s family vowed to help her
recover and raise the baby. DSWD, declared Baby Julian as “Legally
Available for Adoption ” and Baby Julian was “matched” with the Medina
Spouses. In 2010, Christina changed her mind about the adoption and asked
DSWD to suspend Baby Julian’s adoption proceedings. DSWD refused
because the certificate declaring Baby Julian legally available for adoption
had attained finality.

DSWD complied with the writ but prayed that the petition be denied for
being the improper remedy to avail of in a case relating to a biological
parent’s custodial rights over a child.

RTC denied Christina’s petition being the wrong remedy because the
Supreme Court intended the writ of amparo to address the problem of
extrajudicial killings and enforced disappearances. The Court upheld RTC
decision. The writ covers only cases of extralegal killings and enforced
disappearances or threats thereof. What is involved in this case is is the
issue of child custody and the exercise of parental rights over the child,
who, for all intents and purposes, has been legally considered a ward of the
State. Thus, the Amparo rule cannot be properly applied.

SHERYL M. MENDEZ, PETITIONER, VS. SHARIA DISTRICT COURT, 5 th SHARI'A

DISTRICT, COTABATO CITY, ET AL., RESPONDENTS. G.R. No. 201614, January
12, 2016 - The Shariah circuit court (ShCC) confirmed the talaq (divorce)
between Sheryl and John, awarding custody off their minor child to John
and ordering him to give a mut'a (consolatory gift) to Sheryl.

Sheryl and John were married under Muslim rites. Their marriage,
however, soured shortly after their wedding. John filed with the ShCC a
petition for the judicial confirmation of talaq from Sheryl with a prayer for
the grant of probational custody of their daughter pending the resolution of
the case.

ShCC granted John probational custody and because of his social, financial
and religious standing, and considering that she was then under his care,
that he raised her as a good Muslim daughter as evidenced by her
appearance; and that her parents were married under Islamic rites.

ShCC partially reconsidered its initial order by granting the right of

visitation to Sheryl. Arbitration before the Agama Council failed, hence the
ShCC confirmed the talaq and awarded custody of Fatima to her father.

59
Sheryl appealed to the Shariah District Court (ShDC) on the ground of lack
of jurisdiction by the ShCC over custody issues and that no hearing was
done to give her a chance to present evidence to oppose the petition of
John on the issue of custody.

RULING -
ShCC has power to hear and decide civil actions relating to a talaq or
divorce. The issue of custody is a necessary consequence of a divorce
proceeding. Article 54 of P.D. No. 1083 provides: Article 54. Effects of
irrevocable talaq or faskh. A talaq or faskh, as soon as it becomes
irrevocable, shall have the following effects:

(a) The marriage bond shall be severed and the spouses may contract
another marriage in accordance with this Code;
(b)The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance with Article
78 of this Code;
(d) The wife shall be entitled to recover from the jusband her whole dower
in case the talaq has been effected after the consummation of the
marriage, or one-half thereof if effected before its consummation in
accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage settlements, shall
be dissolved and liquidated.

Though Article 54 does not directly confer jurisdiction to the ShCC to rule on
the issue of custody nevertheless it grants the ShCC ancillary jurisdiction to
resolve issues related to divorce. Article 78 of the law states that the care
and custody of children below seven whose parents are divorced shall
belong to the mother, and the minor above seven but below the age of
puberty may choose the parent with whom he/she wants to stay.
Therefore, the ShCC, in cases involving divorce, possesses the power to
resolve the issue of custody, it being a related issue to the main cause of
action.

A distinction must be made between a case for divorce where custody is an

ancillary issue and a case where it is the main issue. Jurisdiction in the
former, as discussed above, lies with the ShCC, as the main cause of action
is divorce. The latter on the other hand, where the main cause of action is
custody, the same must be filed with the ShDC, pursuant to Article 143 of
P.D. No. 1083.

Sheryl was not given the chance to present evidence to oppose John’s
petition fore custody over the child, hence the award of custody to John
was void as it violated the constitutional right of Sheryl to due process.
Both the custody orders of the ShCC and the ShDC were without
evidentiary basis because no hearing was actually conducted prior to the
issuance of the order.

60
Note: The custody of a child below 7 years old shall be awarded
to the mother, BUT when the child reaches 7, the child has the
right to choose who of her/his parents should have custody over
her/him. The right of the child to choose who of the parents
shall have custody over him/her belongs only to a legitimate
child.

28. FAMILY RELATIONS

The “continuing affinity view.” Under Article 332 of the Revised Penal Code,
the State waives its right to hold the offender criminally liable for the
simple crimes of theft, swindling and malicious mischief and considers the
violation of the juridical right to property committed by the offender
against certain family members as a private matter and therefore subject
only to civil liability. The waiver does not apply when the violation of the
right to property is achieved through (and therefore inseparably
intertwined with) a breach of the public interest in the integrity and
presumed authenticity of public documents. For, what is involved is no
longer simply the property right of a family relation but a paramount public
interest. Intestate Estate of Gonzales vda. De Carungcong v.
People and William Sato # 181409, 11 Feb10

29. ADOPTION -
- A juridical act which creates between two Parties a
relationship similar to that which results from legitimate
paternity and filiation. Hence, a person may adopt a relative or
a total stranger.

- Who may adopt? -

1. Any Filipino citizen
a. of legal age
b. full civil capacity
c. of good moral character
d. Not convicted of crime involving moral turpitude
e. emotionally and psychologically capable of caring for the
child
f. at least 16 years older than the adopted (waived if
biological parent or is spouse of the adoptee’s parent
g. financially able to support and care for all of the
children within the means of the family.

61
 2. Any alien, same qualifications as Filipino adopter,
provided: resident of the Philippine for at least 3 years
before filing of adoption; alien’s country has diplomatic
relations with Philippines; certified by consular official
to have legal capacity to adopt and his country allows
adopted to enter as such.
3. The requirements of residency and certification are
waived if adopter is former Filipino and adoptee is
relative within 4th degree of consanguinity; adopter
seeks to adopt legitimate child of Filipino spouse;
adopter is married to Filipino citizen and adopts jointly
with spouse a relative of gthe latter within 4th degree
of consanguinity or affinity.

4. Guardian with respect to ward after termination of

guardianship and clearing of accountabilities

5. A non-resident alien or Filipino permanently residing

abroad, under the Inter-country Adoption Act, if
qualified.

- Exception to the rule that spouses should adopt jointly:

a. one seeks to adopt legitimate child of the other spouse.
(joint parental authority)
b. one seeks to adopt illegitimate child, with the consent
of the other. (joint parental authority)
c. when spouses are legally separated.

If adopting parents are a Filipino and a foreigner, the foreigner

must also have the qualifications to adopt. Otherwise, if only the
Filipino spouse is qualified and the alien spouse is not, the
adoption will not prosper.

- Who May Be Adopted?

a. any (Filipino) person below 18 yrs of age declared
available for domestic adoption.
b. Legitimate child of one spouse, by the other spouse
c. Illegitimate child of a qualified adopter
d. person of legal age if prior to adoption, was consistently
treated by adopter as his/her own child since minority.

62
 e. child whose former adoption was rescinded
f. if the child’s biological or adoptive parents have died,
adoption proceedings to take place 6 months after such
death.

20. Whose Consent to adoption is necessary? Adoptee, if 10

years old or over; biological parents, or legal guardian or govt.
agency with legal custody over child; legit and adopted
children 10 years old or over of adopter and adoptee; illegit
children 10 yrs or over of adopter if living with the latter and
the latter’s spouse; spouse of adopter and adoptee.

21. Effects of Adoption –

h. Legal ties between adopted and bio

parents are severed. (except if bio
parent is spouse of adopter). Thus,
it would seem that successional
rights between adopted and bio-
parents under the Family Code have
been impliedly repealed by RA
8552.
i. Adopter exercises parental
authority over adopted
j. Adopted is legitimate child of
adopter. Relationship does not
extend to relatives of adopter.
k. Adopted does not assume
citizenship of adopter.
l. Successional rights in legal and
intestate succession, adopter and
adoptee have reciprocal rights of
succession.
m. If adoptee and bio parents left a
will, law on testamentary
succession applies. Adopted is
considered a compulsory heir in
direct line of adopter. Omission of
adopted in the adopter’s will results
in preterition.

63
 22. Recission of Adoption: Only adoptee may rescind. If
minor, shall be assisted by legal guardian or DSWD.
Adopter can disinherit adoptee.

23. Grounds for recission:

a. repeated maltreatment by the adopters
b. attempt on life of adoptee by adopters
c. sexual assault or violence
d. abandonment and failure to comply with parental
obligations

24. Effects of recission:

a. reciprocal rights and obligations cease
b. parental authority of parents or DSWD restored if
adoptee is still a minor
c. Court shall order the civil registrar to cancel
amended birth certificate and restore the original
d. Succession rights revert to status prior to adoption
as of the date of judicial recission. Vested rights
prior to recission shall remain.

Under the Inter-Country Adoption Act, aliens otherwise

disqualified to adopt Filipino children under the Domestic
Adoption Act are allowed to adopt provided all the requisites
have been complied with. The adoption proceeding occurs in
the country of the alien adopters, not in the Philippines where
only the preparatory steps to qualify adopter and adopted child
are done.

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, VS. COMMISSION ON

ELECTIONS AND ESTRELLA C. ELAMPARO, G.R. No. 221697, March 08, 2016 ;
MARY GRACE NATIVIDAD S. POE-LLAMANZARES VS. COMMISSION ON
ELECTIONS, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D.
VALDEZ, [G.R. Nos. 221698-700]

When petitioner foundling was five (5) years old, she was adopted celebrity
spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora
Poe (a.k.a. Susan Roces) the petitioner's adoptive mother discovered only
sometime in the second half of 2005 that the lawyer who handled
petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate

64
of Live Birth indicating petitioner's new name and the name of her adoptive
parents Without delay, petitioner's mother executed an affidavit attesting
to the lawyer's omission which she submitted to the OCR-Iloilo. Thus, OCR-
Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
Natividad Sonora Poe.

To deny full Filipino citizenship to all foundlings and render them stateless
just because there may be a theoretical chance that one among the
thousands of these foundlings might be the child of not just one, but two,
foreigners is downright discriminatory, irrational, and unjust.

Domestic adoption laws also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions,
legal capacity of persons are binding on citizens of the Philippines even
though living abroad." Adoption deals with status, and a Philippine court
will have jurisdiction only if the adoptee is a Filipino.

In Ellis and Ellis v. Republic, a child left by an unidentified mother was

sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem,
which no court may entertain unless it has jurisdiction, not only over the
subject matter of the case and over the parties, but also over the res, which
is the personal status of Baby Rose as well as that of petitioners herein. Our
Civil Code (Art. 15) adheres to the theory that jurisdiction over the status of
a natural person is determined by the latter's nationality. Pursuant to this
theory, we have jurisdiction over the status of Baby Rose, she being a
citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies
on the Adoption of Filipino Children and For Other Purposes" (otherwise
known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-
6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children"
and include foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a
foundling leading to the issuance of a foundling certificate under these laws
and the issuance of said certificate are acts to acquire or perfect Philippine
citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who

65
are citizens of the Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship." In the first place, "having
to perform an act" means that the act must be personally done by the
citizen. In this instance, the determination of foundling status is done not
by the child but by the authorities. Secondly, the object of the process is the
determination of the whereabouts of the parents, not the citizenship of the
child. Lastly, the process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the
1935 Constitution, which is an act to perfect it.

Rosario Mata Castro et. al., vs.. Jose Gregorio et al., No. 188801,
October 15, 2014

Republic Act No. 8552, The Domestic Adoption Act, applies. It requires that
the adoption by the father of a child born out of wedlock obtain not only
the consent of his wife but also the consent of his legitimate children.
Under Article III, Section 7 of Republic Act No. 8552, the husband must first
obtain the consent of his wife if he seeks to adopt his own children born out
of wedlock. In the absence of any decree of legal separation or annulment,
Jose and Rosario remained legally married despite their de facto
separation. For Jose to be eligible to adopt Jed and Regina, Rosario must
first signify her consent to the adoption. Jose, however, did not validly
obtain Rosario's consent. His submission of a fraudulent affidavit of consent
in her name cannot be considered compliance of the requisites of the law.
Had Rosario been given notice by the trial court of the proceedings, she
would have had a reasonable opportunity to contest the validity of the
affidavit. Since her consent was not obtained, Jose was ineligible to adopt.

The law also requires the written consent of the adopter's children if they
are 10 years old or older under Art III, Sec 9 of Republic Act No. 8552.
JayRose was never asked to give her consent.

QUESTION: Suppose the adoption petitioner dies while the case

is pending? ANSWER: The case will proceed until terminated. If
granted, the adoption retroacts to the filing of the petition.

Suppose it is the child sought to be adopted who dies during the

pendency of the case?

30. SUPPORT
- comprises everything that is indispensable for
sustenance: dwelling, clothing, medical attendance,
education (profession, trade or vocation even beyond age of

66
 majority) and transportation, in keeping with the financial
capacity of the family (includes funeral expenses.)

The right to receive support is personal, intransmissible,

cannot be renounced nor be subject of compromise; is free
from attachment or execution (Support by contract or will:
excess in amount can be levied or attached); is reciprocal,
and is a running issue (although it may be fixed by the courts,
this can be changed according to state of finances of the
supporter and supported.)

- Who has the obligation to give support?

a. spouses support each other
b. legitimate ascendants and descendants
*parents and legit children and the latter’s
Legit and illegit children
*parents and their illegit children and the
Later’s legit and illegit children
c. legit brothers and sisters, full or half blood
d. brothers and sisters not legitimately related,
except when need for support is due to
claimant’s fault or negligence.

- Preference of Support –
Whenever 2 or more persons are obliged to give support,
liability shall be in the following order of preference:
a. spouse
b. descendants in the nearest degree
c. ascendants in the nearest degree
d. brothers and sisters

- Concurrence of Support - when obligation to support falls on

two or more persons, payment to be shared in proportion to the
resources of each. When 2 or more are recipients of support
from one person, and the latter’s resources are insufficient, the
order of preference shall be observed. Between a parent and a
child under parental authority, the child is preferred.

In case of legal separation, annulment or nullity of marriage

proceedings, spouses and children are supported by ACP or CPG,

67
pendente lite. A final judgment granting the decree prayed for
terminates the right of spouses to support each other, except in
legal separation where the court may order guilty spouse to give
support to innocent spouse.

Amount of support depends on needs and means, and may be

reduced or increased as the case may require.

Options of Obligor:
a. pay the amount fixed
b. maintain in family dwelling the person to be
supported unless there is a moral or legal
obstacle.

NORMA A. DEL SOCORRO, FOR AND IN BEHALF OF HER MINOR CHILD

RODERIGO NORJO VAN WILSEM, PETITIONER, VS. ERNST JOHAN BRINKMAN
VAN WILSEM, RESPONDENT. G.R. No. 193707, December 10, 2014]

1. Does a foreign national have an obligation to support his minor child

under Philippine law?

2. Can a foreign national be held criminally liable under R.A. No. 9262 for
his unjustified failure to support his minor child?

Respondent is not obliged to support petitioner’s son under the Family

Code of the Philippines as a consequence of the Divorce Covenant obtained
in Holland. This does not, however, mean that, in this particular case,
respondent is not obliged to support petitioner’s son altogether. In
international law, the party who wants to have a foreign law applied to a
case has the burden of proving the foreign law. It is incumbent upon
respondent to plead and prove that the national law of the Netherlands
does not impose upon the parents the obligation to support their
child. Like any other fact, they must be alleged and proved. Because of
respondent’s failure to prove the national law of the Netherlands on
support, the doctrine of processual presumption shall govern. Under this
doctrine, if the foreign law involved is not properly pleaded and proved, our
courts will presume that the foreign law is the same as our local or
domestic or internal law. Thus, respondent’s failure to prove Netherlands
law on support, it is presumed to be the same with Philippine law, which
enforces the obligation of parents to support their children and penalizing
the non-compliance therewith.

Even if Netherlands law does not impose a a parental obligation to support

68
a child, when the foreign law, judgment or contract is contrary to a sound
and established public policy of the forum, the said foreign law, judgment
or order shall not be applied. Moreover, foreign law should not be applied
when its application would work undeniable injustice to the citizens or
residents of the forum.

Based on the foregoing legal precepts, respondent may be made liable

under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to
give support to petitioner’s son, because the deprivation or denial of
financial support to the child is considered an act of violence against
women and children.

In addition, considering that respondent is currently living in the

Philippines, the Territoriality Principle in criminal law, in relation to Article
14 of the Civil Code, applies, which provides that:“[p]enal laws and those of
public security and safety shall be obligatory upon all who live and sojourn
in Philippine territory, subject to the principle of public international law
and to treaty stipulations.”

Respondent’s argument that his criminal liability has been extinguished on

the ground of prescription of crime does not hold. Section 24 of R.A. No.
9262, which provides that acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)( 2) and (i) of R.A.
No. 9262 is a continuing offense, which in this case started in 1995 but is
still ongoing at present. Accordingly, the crime charged in this case has not
prescribed.

31. PARENTAL AUTHORITY - consists of all rights obligations a

parent has to the person and property of their children until
emancipation or even beyond under certain circumstances.

Constitutional and Legal Basis of Parental Authority: Sec. 12, Art.

II, 1987 Constitution; Title X, Family Code (paraphrases
constitutional provision).

Features or Characteristics:
a. Natural right of parents
b. Includes caring and rearing children for civic

69
 Consciousness and efficiency; development of moral,
mental and physical character and well-
being
c. cannot be renounced
d. jointly exercised by parents over common children, but
in case of disagreement, decision of father prevails. In
case of death of one parent, the surviving continues t32.
o exercise authority over the children. Remarriage does
not affect this unless court appoints a 3rd person to be
guardian over person and property of the children. In
case of separation of parents, court shall designate who
shall have parental authority. No child under 7 years of
age shall be separated from the mother unless for
compelling reasons. 7years and above may choose the
parent with whom to live.

e. demands the concomitant obligation of children

to respect, show reverence to and obey their parents as
long as they are under parental authority.

Substitute Parental Authority – in case of death, absence or

unsuitability of parents, exercised by the grandparents.
Whether maternal or paternal, must be in the best interest of
the child.

Who May Exercise Substitute Parental Authority?

a. surviving grandparent
b. oldest brother or sister over 21 years, unless unfit or
disqualified
c. actual custodian, over 21 years, fit and qualified.

Liability of substitute parents is subsidiary

Disadvantaged Children:
a. foundling
b. abandoned
c. neglected
d. abused
e. other children similarly situated

70
 - parental authority entrusted via
summary proceedings to
- children’s homes, orphanages, or
similar institutions accredited by the
proper government agency.
-

SPECIAL PARENTAL AUTHORITY –

a. schools, their administrators and teachers,
b. individuals, entities or institutions engaged in child
care.
c. Exercised concurrently with parents. Principally and
solidarily liable for damages caused by the
unemancipated minor
This applies to all authorized activities inside or outside school
premises.

Liability of substitute and special parents may be resisted by the

defense of proper diligence required under the circumstances.

Effect of Parental Authority over Person of Children:

a. Rights and Duties towards Unemancipated Children:
1. To keep them company, support and educate
2. Give love and affection
3. provide them with moral and spiritual guidance
4. supervise their activities, recreation, ets
5. represent them in their interests
6. demand respect and obedience from them
7. discipline them
8. perform duties imposed by law as parents and
guardians.

Civil liability – parents and those exercising parental authority

over unemancipated children are civilly liable for damages
caused to others provided children are living with them and
under their parental authority.

Courts may appoint a guardian over child’s property or a

guardian ad litem in the best interest of the child.

71
 Effect on Property of Child - Joint exercise of legal guardianship
(acts of administration only. Disposition must be with court
approval) over common child’s property, provided child is
unemancipated, without any court appointment. Disagreement?
Father’s decision prevails

Guardianship Bond is required, not less than 10% of value of

property or its annual income.

Property of child earned by his work or industry or onerous or

gratuitous title belongs is owned by the child and shall be
devoted exclusively to support and education. Limited Usufruct
over fruits and income of child’s property: primarily to child’s
support and secondarily to collective daily needs of family.

GROUNDS FOR SUSPENSION OR TERMINATION OF PARENTAL

AUTHORITY

A. Permanent Termination: death of parent or child;

emancipation of child.
B. Temporary Termination: adoption, appointment of a general
guardian, declaration of abandonment,
Judicial divestment of parental authority, judicial declaration of
absence or incapacity of person exercising parental authority.

C. Suspension - Automatic upon conviction of parent of a crime

with civil interdiction (reinstated upon service of penalty or
pardon or amnesty). Judicial suspension due to excessively
harsh or cruel treatment of child; giving child corrupting orders,
advice or example; compelling child to beg; committing or
allowing acts of lasciviousness on the child. These grounds are
not exclusive.

D. Deprivation of Authority - Permanent if parent is guilty of

child sexual abuse.

42. EMANCIPATION – Attainment of age of majority. i.e., 18

years of age. Person is capacitated to perform acts with legal
effect without the assistance of parent or guardian, except

72
when contracting marriage where parental consent until 21
years old is required.

Vicarious Liability – Parents and guardians remain liable for

damages caused by their children or wards below 21 years old
who live in their company.

43. UNDER THE CRC:

Best Interest of the Child Rule - In Gamboa-Hirsch v. Court of

Appeals (Res.), G.R. No. 174485, 11 July 2007, 527 SCRA the
Court ruled that the Convention on the Rights of the Child
provides that “in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration (emphasis
supplied

The so-called “tender-age presumption” under Article 213 of the

Family Code may be overcome only by compelling evidence of
the mother’s unfitness: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment
of the child, insanity, or affliction with a communicable disease.

Habeas Corpus petition involving a child also involves determining who has
the rightful custody over a child. - The child’s welfare is the most important
consideration. The court is not bound by any legal right of a person over
the child. Bagtas v. Santos, G.R. No. 166682, 27 November 2009.

44. FAMILY RELATIONS

The “continuing affinity view.” Under Article 332 of the Revised
Penal Code, the State waives its right to hold the offender
criminally liable for the simple crimes of theft, swindling and
malicious mischief and considers the violation of the juridical
right to property committed by the offender against certain
family members as a private matter and therefore subject only
to civil liability. The waiver does not apply when the violation of
the right to property is achieved through (and therefore
inseparably intertwined with) a breach of the public interest in
the integrity and presumed authenticity of public documents.

73
For, what is involved is no longer simply the property right of a
family relation but a paramount public interest. Intestate Estate
of Gonzales vda. De Carungcong v. People and William Sato #
181409, 11 Feb10

45. Summary Proceedings under the Family Code:

a. incidents involving ACP or CPG
b. incidents involving separate property of an
abandoning spouse
d. declaration of presumptive death of spouse
e. Delivery of presumptive legitime
f. Fixing family domicile
g. Grant of parental authority over foundlings

46. USE OF SURNAMES - No person shall use different

names and surnames except pen names or stage names in
good faith without injury to others.

a. No change of name or surname without judicial

authority, or administrative authority in case of
change of first name. Usurpation of name and
surname entitles person affected to damages and
other relief. Pen names and stages names may
not be usurped.
b. Unauthorized or unlawful use of surname of
another person gives a right of action against the
usurper.
c. Legit and legitimated children can principally use
father’s surname. Adopted uses surname of
adopter.
d. Illegitimate children shall bear mother’s surname
unless illegitimate father allows use of his
surname through express acknowledgment of
child in a record of birth at the civil registry.
Admission in a public document, or private
handwritten instrument made by him.
e. In case of identity of names, the younger person
shall use an additional name to avoid confusion,
viz., Junior,

74
 f. Grandsons and other direct male descendants
may add a middle name or mother’s surname or
a Roman numeral.
g. Surname of a married woman – her maiden name
and/or that of her husband, or first name and
husband’s surname, or husband’s full name but
with “Mrs.” before the name. OR retain her
maiden first and surname. Use of Husband’s
surname is OPTIONAL.
h. In case of annulment, if guilty party, revert to
maiden name. If innocent party, may use
husband’s surname, or resume maiden name,
unless court otherwise decrees or she remarries
another person.
i. Legal separation – continues to use name before
legal separation.
j. Widowhood- husband’s name
k. Valid Divorce – use maiden name, or that of ex-
husband even over objection of latter’s present
wife. (Tolentino v, CA, June 10, 1988) A woman
cannot represent falsely that she is wife of a
certain man. This is usurpation of status, and is
actionable.

47. REVISED IMPLEMENTING RULES AND REGULATIONS OF

REPUBLIC ACT NO. 9265. (An Act Allowing illegitimate Children
to Use the Surname of Their Father, Amending for the Purpose
Article 176 of Executive Order No. 209. Otherwise Known as the
"Family Code of the Philippines"
(As mandated by Republic Act No. 10625, the Civil Registrar
General promulgates the Revised Implementing Rules and
Regulations of Republic Act No. 8255 based on the Supreme
Court Ruling in the case of "Grande vs. Antonio", G.R. 206246
dated February 18, 2014).

48. CHANGE OF NAME - Only with judicial authority. To change

name, present justification – a proper and reasonable cause and
show he/she is prejudiced by the use of official name, and not
for a fraudulent purpose. Grounds:

75
 a. name is ridiculous or embarrassing or
dishonourable
b . legitimation
c. change will avoid confusion
d. continuous use of Filipino name, unaware
of alien parentage
e. sincere desire to use Filipino name

A petition for change of name under Rule 103 of the Rules of Court may not
be used to effect a change in one’s civil status from legitimate to
illegitimate. Thus, an order granting change of name should not include the
deletion of the petitioner’s parent’s date of marriage and of the name of
his father from the entries in his birth certificate as these would change the
status of petitioner from legitimate to illegitimate. (Republic v.
Magpayo,#189476, 2Feb11). Wife legally separated continues to bear
surname of husband.

Surgical or sex change is not ground to change first name or change of sex in
birth certificate. Considering that there is no law recognizing sex
reassignment, the determination of a person’s sex made at the time of birth
is immutable if it is not attended by error. (Silverio v. Republic,#174689
22 Oct’07)

Where a person is biologically or naturally intersex (such as a condition of

congenital adrenal hyperplasia), the determining factor in his gender
classification would be what the individual having reached the age of
majority thinks of his.her sex. (Republic v. Cagandahan, 166676,
12Sept08.

Alias is a name or names used by a person or intended to be

used by him/her publicly and habitually usually in business
transactions in addition to his registered real name at birth or
baptism or a substitute name authorized by a competent
authority. The repeated use of an alias for one day cannot be
deemed to be habitual because it does not amount to a
customary practice or use. (Peo. V Estrada, #164368-69,
02Apr09)

*****
49. ABSENCE - that special legal status of a person not in
his/her domicile, whose whereabouts are unknown and it is
uncertain if dead or alive.

76
 * Stages of Absence:
a. Provisional – disappearance form domicile, whereabouts
unknown, no administrator over his property. Court may appoint
administrator.
b. Declared Absence – judicially after 2 years since last news
from him, or 5 years if he left an administrator.
c. Presumptive Death – after lapse of period provided by
law.

*Any interested party or relative of friend may ask for

appointment of administrator over property of absentee. Spouse
is preferred (unless legally separated) , if none, any competent
person.
DECLARATION OF ABSENCE - By the court, after the lapse of 2
years without news about absentee, or since receipt of last news
about him.

a. If absentee left an administrator of his property, 5 years

must lapse before declaration of absence.
b. The spouse, instituted heirs, intestate heirs or those who
have some right over the property subordinated to the condition
of absentee’s death may ask for declaration of absence.
c. Termination of administration – reappearance of absentee;
proof of death of absentee and heirs appear; third person
appears and proves acquisition of absentee’s property.

PRESUMPTION OF DEATH –

A. Ordinary Circumstances -
1. after 7 years except for succession and remarriage.
2. For succession – 10 years. If at time of
disappearance, absentee was 75 years old, 5 years
of absence is sufficient to open succession.
3. Remarriage – 4 years absence and present spouse
has well-founded belief that absent spouse is
already dead.

B. Dangerous or Extraordinary Circumstances –

1. for ALL purposes except remarriage –

77
 a. on board a vessel lost at sea or a missing
airplane , who has not been heard of for 4
years since loss of vessel or aircraft.
b. In the armed forces, has taken part in was
and MIA for 4 years
c. In danger of death under other
circumstances, existence unknown for 4
years.
d. For remarriage, 2 years.

50. CIVIL REGISTER - Place where all acts, events concerning the
civil status of persons are recorded: Births, Marriages, Deaths,
Legal separation, annulments and declarations of nullity,
legitimations, adoptions Acknowledgement of natural children,
naturalization, loss as well as recovery of citizenship, civil
interdiction, judicial determination of filiation, voluntary
emancipation of minor, change of name.

Civil Register documents are Public Documents – and prima facie

evidence of facts contained therein.

No entry in civil register can be changed without judicial order.

Under RA9048, city or municipal civil registrars or consul
generals can, without court order:
a. correct clerical or typo error or mistake in writing, or typing
or transcribing an entry in the civil register, that is harmless,
innocuous, misspelled, etc and can be corrected by
reference to another existing record.
b. Change of name – only for convincing reasons i.e.,
ridiculous or embarassing name, as a result of adoption or
legitimation, to avoid confusion, continuous use and
unaware of alien parentage, sincere desire to have a
Filipino name in good faith without prejudice to anybody,
c. Change of name only by and adversarial judicial proceeding;
(widow can use maiden name without judicial proceeding)
d. No change in civil status, i.e., from legitimate to
illegitimate.

78
ONDE VS. THE OFFICE OF THE LOCAL CIVIL REGISTRAR OF LAS PIÑAS CITY,
G.R. No. 197174, September 10, 2014 ]

Petitioner filed a petition for correction of entries in his certificate of live

birth alleging he is the illegitimate child of his parents Guillermo and
Matilde, but his birth certificate stated that his parents were married. His
birth certificate also stated that his mother’s first name is Tely and that his
first name is Franc Ler. He prayed that the following entries on his birth
certificate be corrected as follows:

Entry From To
1) Date and place of marriage of his December 23, Not married
parents 1983 – Bicol
2) First name of his mother Tely Matilde
3) His first name Franc Ler Francler

In its Order dated October 7, 2010, the RTC dismissed the petition for
correction of being insufficient in form and substance, that the
proceedings must be adversarial since the first correction is substantial in
nature and would affect petitioner’s status as a legitimate child, and that
the correction in the first name of petitioner and his mother can be done by
the city civil registrar under Republic Act (R.A.) No. 9048, entitled An Act
Authorizing the City or Municipal Civil Registrar or the Consul General to
Correct a Clerical or Typographical Error in an Entry and/or Change of First
Name or Nickname in the Civil Registrar Without Need of a Judicial Order,
Amending for this Purpose Articles 376 and 412 of the Civil Code of the
Philippines.

Ruling:.

1.The first name of petitioner and his mother as appearing in his birth
certificate can be corrected by the city civil registrar under R.A. No.
9048. Section 1 of R.A. No. 9048 provides that clerical or typographical
errors on entries in a civil register can be corrected and changes of first
name can be done by the concerned city civil registrar without need of a
judicial order. In Silverio v. Republic,[6] under R.A. No. 9048, jurisdiction
over applications for change of first name is now primarily lodged with
administrative officers. The intent and effect of said law is to exclude the
change of first name from the coverage of Rules 103 (Change of Name) and
108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules
of Court.. The remedy and the proceedings regulating change of first name
are primarily administrative in nature, not judicial. In Republic v.
Cagandahan, we said that under R.A. No. 9048, the correction of clerical or
typographical errors can now be made through administrative proceedings
and without the need for a judicial order. The law removed from the ambit
of Rule 108 of the Rules of Court the correction of clerical or typographical

79
errors. Thus petitioner can avail of this administrative remedy for the
correction of his and his mother’s first name.

2. Correcting the entry on petitioner’s birth certificate that his parents were
married on December 23, 1983 in Bicol to “not married” is a substantial
correction requiring adversarial proceedings. Said correction is substantial
as it will affect his legitimacy and convert him from a legitimate child to an
illegitimate one. In Republic v. Uy, we held that corrections of entries in the
civil register including those on citizenship, legitimacy of paternity or
filiation, or legitimacy of marriage, involve substantial
alterations. Substantial errors in a civil registry may be corrected and the
true facts established provided the parties aggrieved by the error avail
themselves of the appropriate adversary proceedings.

3. Petitioner no longer contested the RTC ruling that the correction he

sought on his and his mother’s first name can be done by the city civil
registrar. RTC’s dismissal is without prejudice, as petitioner can avail of
the administrative remedy for the correction of his and his mother’s first
name. He can also file a new petition before the RTC to correct the alleged
erroneous entry on his birth certificate that his parents were married on
December 23, 1983 in Bicol. This substantial correction is allowed under
Rule 108 of the Rules of Court. As reiterated in Eleosida v. Local Civil
Registrar of Quezon City:
x x x This is our ruling in Republic vs. Valencia where we held that even
substantial errors in a civil registry may be corrected and the true facts
established under Rule 108 [of the Rules of Court] provided the parties
aggrieved by the error avail themselves of the appropriate adversary
proceeding. x x x

It is true in the case at bar that the changes sought to be made by petitioner
are not merely clerical or harmless errors but substantial ones as they
would affect the status of the marriage between petitioner and Carlos
Borbon, as well as the legitimacy of their son, Charles Christian. Changes of
such nature, however, are now allowed under Rule 108 in accordance with
our ruling in Republic vs. Valencia provided that the appropriate procedural
requirements are complied with. x x x

JURISPRUDENTIAL DEVELOPMENT OF
PSYCHOLOGICAL INCAPACITY UNDER
ARTICLE 36 OF THE FAMILY CODE
By;
Hon. Zenaida N. Elepano

80
 Retired Court Administrator
Professorial Lecturer II, PHILJA
Supreme Court
Commissioner, Legal Education Board

1. Introduction:

In Republic v. Galang, (G.R. No. 168335, June 6, 2011) the

High Court pronounced that

“the Constitution set out a policy of protecting and

strengthening the family as the basic social institution, and
the marriage was the foundation of the family. Marriage,
as an inviolable institution protected by the State, cannot
be dissolved at the whim of the parties. In petitions for
declaration of nullity of marriage , the burden of proof to
show the nullity of marriage lies with the plaintiff. Unless
the evidence presented clearly reveals a situation where
the parties, or one of them, could not have validly entered
into a marriage by reason of a grave and serious
psychological illness existing at the time it was celebrated,
the Court is compelled to uphold the indissolubility of the
marital tie.”

II. Nullity of Marriage – Psychological Incapacity

“Canon 1095. The following are incapable of contracting

marriage:

8. those who lack sufficient use of reason;

9. those who suffer from a grave lack of discretion of
judgment concerning the essential matrimonial
rights and obligations to be mutually given and
accepted;
10. those who, because of causes of a psychological
nature, are unable to assume the essential
obligations of marriage.

81
Robert F. Mallilin vs. Luz G. Jamesolamin and the Republic G.
R No. 192718, February 18, 2015: THe source of 36 was
par. 3 of Canon 1095 of the Canon of the Catholic Church.

Court of Appeals denied declaration of nullity of marriage

of Robert and Luz, despite the decision of the NAMT of the
Catholic Church.

Ruling: The CA is correct. The intendment of the law has

been to confine the meaning of "psychological incapacity"
to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage. The basis of the
declaration of nullity of marriage by the NAMT was NOT
the third paragraph of Canon 1095 which mentions causes
of a psychological nature similar to Article 36 of the
Family Code, but the second paragraph of Canon 1095
which refers to those who suffer from grave lack of
discretion of judgment concerning essential matrimonial
rights and obligations to be mutually given and accepted.

Leonen, J., dissenting: x x x On Canon 1095, the

marriage in Antonio v. Reyes was also annulled by the
Metropolitan Tribunal. That marriage was affirmed with
modification by the National Appellate Matrimonial
Tribunal, finding that “respondent was impaired by a lack
of due discretion”. (Note: Antonio appears to confuse Par. 2
of the Canons on lack of due discretion, with Par. 3 on
psychological incapacity.)

III. HOW JURISPRUDENCE ON ARTICLE 36 HAS EVOLVED:

1. LEOUEL SANTOS 
vs.
CA & JULIA BEDIA-SANTOS, G.R.

No. 112019, January 4, 199

Julia left her husband after 2 years of marriage and one

son, and never returned. Is she psychologically
incapacitate to comply the essential marital obligations of
marriage?

Canons and Commentaries on Marriage, by Ignatius Gramunt,

Javier Hervada and LeRoy Wauck:

82
Psychological incapacity consists of the following: (a) a
true inability to commit oneself to the essentials of
marriage. X x x This particular type of incapacity consists
of a real inability to render what is due by the contract. (b)
this inability to commit oneself must refer to the essential
obligations of marriage: the conjugal act, the community of
life and love, the rendering of mutual help, the procreation
and education of offspring; (c) the inability must be
tantamount to a psychological abnormality. The mere
difficulty of assuming these obligations, which could be
overcome by normal effort, obviously does not constitute
incapacity. The canon contemplates a true psychological
disorder which incapacitates a person from giving what is
due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987).
However, if the marriage is to be declared invalid under
this incapacity, it must be proved not only that the person
is afflicted by a psychological defect, but that the defect did
in fact deprive the person, at the moment of giving consent,
of the ability to assume the essential duties of marriage
and consequently of the possibility of being bound by
these duties.

"Psychological incapacity" should refer to a mental (not

physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants.

Petition Denied. Insufficient evidence to prove PI. But see

dissent of Mr. Justice Padilla.

2. LEONILO ANTONIO 
v.
MARIE IVONNE F. REYES. G.R. No.

155800, Mar. 10, 2006

Marie Ivonne was medically found to be a congenital liar,

which incapacitated her to comply with the essential
marital obligations because she generated
untrustworthiness, so vital to a married life.

The Court ruled: Psychological incapacity "is a malady so

grave and permanent as to deprive one of awareness of the
duties and responsibilities of the matrimonial bond one is
about to assume."

83
"The judge (should) interpret the provision on a case-to-
case basis, guided by experience, in the findings of experts
and researchers in psychological disciplines, and by
decisions of church tribunals which, although not binding
on the civil courts, may be given persuasive effect since the
provision was taken from Canon Law."

In Republic v. Dagdag (G.R. No. 109975, 9 February 2001,

351 SCRA 425) - Each case must be judged, not on the
basis of a priori assumptions, predilections or
generalizations but according to its own facts in regard to
psychological incapacity as a ground for annulment of
marriage.

Molina Guidelines As Applied in This Case

1) The 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 Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must
also be stated in the petition, proven by evidence and
included in the text of the decision.

7) Interpretations given by the National Appellate

84
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts.

8). An additional requirement in Molina of an OSG

certification was dispensed with in A.M. No. 02-11-10-SC,
or the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages.

3. Maria Armida Perez-Ferraris vs. Brix Ferraris, G.R>

No.16238, July 17, 2006.

RTC and CA denied nullification of marriage on the ground

of PI. Evidence of leaving the house whenever spouses
quarrelled, violent tendencies during epileptic attacks,
sexual infidelity, abandonment and lack of support, are
not rooted on some debilitating psgological condition, but
a mere refusaltor unwillingness to assume essential
obligations of marriage.

4. Reynaldo Navales v. Nilda Navales, G. R. No. 167523,

June 27, 2008

Nilda neglected caring for her husband, was an inveterate

flirt, went out with other men, was sexually promiscuous,
refused to have children with husband Reynaldo. RTC
declared her psychologically incapacitated for marriage
and nullified her marriage. CA affirmed, SC reversed.
Totality of evidence showed that the requirements of proof
of PI were not satisfied – gravity, antecedence, and
incurability. Strict application of the requirements is
demanded because any doubt should be resolved in
favour of the validity of marriage and the indissolubility of
the marital vinculum.

5. Suazo vs. Suazo, G. R. Bo. 164493, Mar. 10, 2010.

Expert’s finding: Angelito had Anti Social Personality

Disorder, serious and severe, chronic and long-standing
and incurable.
The RTC annulled the marriage. CA reversed. SC
affirmed CA reversal.

85
Cases cited in Suazo:

Santos v. Court of Appeals declared that psychological

incapacity must be characterized by (a) gravity; (b)
juridical antecedence; and (c) incurability.

Molina merely expounded on the basic requirements of

Santos. Marcos v. Marcos clarified that there is no
requirement that the defendant/respondent spouse
should be personally examined by a physician or
psychologist as a condition sine qua non for the declaration
of nullity of marriage based on psychological incapacity. It
is no longer necessary to introduce expert opinion in a
petition under Article 36 of the Family Code if the totality
of evidence shows that psychological incapacity exists and
its gravity, juridical antecedence, and incurability can be
duly established.

Pesca v. Pesca (#136921, April 17, 2001) clarified that the

Molina guidelines apply even to cases then already
pending. Husband convicted of slight physical injuries. He
was violent, cruel, a drunkard. He would threaten wife and
children with harm, beat his wife black and blue in front of
their children. Wife filed for nullity of marriage under Art.
36. Denied, evidence not sufficient to prove antecedence,
gravity and incurability.

On March 15, 2003, the Rule on Declaration of Absolute

Nullity of Void Marriages and Annulment of Voidable
Marriages (A.M. No. 08-11-10 SC, Rules) promulgated by
the Court took effect. Section 2(d) of the Rules pertinently
provides:

(d) What to allege. A petition under

Article 36 of the Family Code shall
specifically allege the complete facts
showing that either or both parties were
psychologically incapacitated from
complying with the essential marital
obligations of marriage at the time of the
celebration of marriage even if such

86
 incapacity becomes manifest only after its
celebration.

The complete facts should allege the

physical manifestations, if any, as are
indicative of psychological incapacity at the
time of the celebration of the marriage but
expert opinion need not be alleged.

Section 12(d) of the Rules requires a pre-trial brief

containing all the evidence presented, including expert
opinion, if any, briefly stating or describing the nature and
purpose of these pieces of evidence.

Section 14(b) requires the court to consider during the

pre-trial conference the advisability of receiving expert
testimony and such other matters as may aid in the
prompt disposition of the petition.

Under Section 17 of the Rules, the grounds for the

declaration of the absolute nullity or annulment of
marriage must be proved.

Te v. Yu-Te (G.R. No. 161793, February 13, 2009, 579 SCRA

193).
revisited the Molina guidelines.

The FC Committee did not define nor give examples of PI

for fear that by so doing, it would limit the applicability of
the provision under the principle of ejusdem generis; the
courts should interpret the provision on a case-to-case
basis, Te thus assumes it a basic premise that the law is so
designed to allow some resiliency in its application.

Tuason v. Court of Appeals, ruled that the findings

of the trial court are final and binding on the
appellate courts.

Tsoi v. Court of Appeals, explained the Court, aware

of parallel decisions of Catholic marriage tribunals,
ruled that the senseless and protracted refusal of

87
one of the parties to fulfill the marital obligation of
procreating children is equivalent to psychological
incapacity.

Te attacked Molina. It has become a strait-jacket, forcing

all sizes to fit into and be bound by it; wittingly or
unwittingly, the Court, in conveniently applying Molina,
has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage.

Te then enunciated the principle that each case must be

judged, not on the basis of a priori assumptions,
predilections or generalizations, but according to its own
facts. Courts should interpret the provision on a case-to-
case basis, guided by experience, the findings of experts
and researchers in psychological disciplines, and by
decisions of church tribunals.

Ting v. Velez-Ting (G.R. No. 166562, March 31, 2009)

follows Te’s lead when it reiterated that Te did not
abandon Molina; far from abandoning Molina, it simply
suggested the relaxation of its stringent requirements.

Hernandez v. Court of Appeals emphasizes the

importance of presenting expert testimony to
establish the precise cause of a party’s
psychological incapacity, and to show that it
existed at the inception of the marriage. Verily, the
evidence must show a link, medical or the like, between
the acts that manifest psychological incapacity and the
psychological disorder itself.

IN Ting vs. Velez-Ting, the intention of the law to confine

the application of Article 36 to the most serious cases of
personality disorders. Mere difficulty, refusal or neglect in
the performance of marital obligations or ill will on the
part of the spouse is different from incapacity rooted in
some debilitating psychological condition or illness;
irreconcilable differences, sexual infidelity or perversion,
emotional immaturity and irresponsibility and the like, as
the same may only be due to a persons refusal or

88
unwillingness to assume the essential obligations of
marriage.

6. Valerio Kalaw v. Elena Fernandez, G.R. No. 166357 (J.

Bersamin), January 14, 2015.

In the 1997 case of Republic vs. Court of Appeals and

Roridel Olaviano Molina (G.R. No. 108763), eight guidelines
on psychological incapacity under Art. 38 were laid out.

In Kalaw, the Supreme Court reiterated its categorical

statement, made in a 2009 case, that “we are not
suggesting the abandonment of Molina in this case.” The
set of guidelines in Molina, therefore, stays. The Court
therefore did not relax the rules when it reconsidered
the Kalaw ruling. On the contrary, the ruling falls under
the ambit of the Molina guidelines.

J. Bersamin, speaking for the Court in resolving the MR,

said that Article 36 of the Family Code must not be so
strictly and too literally read and applied; instead, 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”. 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.
They must accord weight to expert testimony on the
psychological and mental state of the parties in cases for
the declaration of the nullity of marriages, and must
consider as decisive evidence the expert opinion on the
psychological and mental temperaments of the parties.”
(In this case, the SC focused on expert opinion.

(But read J Castillo’s dissent: The courts are duty-bound to

assess not only the correctness of the experts’ conclusions,
but also the factual premises upon which such conclusions
are based. The expert’s conclusions, like any other
opinion, must be based on certain assumptions or
premises. It is the court’s job to assess whether those
assumptions or premises are in fact true or correct, and
supported by evidence on record. The soundness of

89
experts’ conclusions lie in the quantity and quality of the
input they received in making their conclusions. This is
precisely where the courts take the reins from these
experts.

7. Glenn Vinas vs. Mary Grace Vinas, G.R. No. 208790,

January 21, 2015

Mary Grace, according to the psychologist, exhibited

narcissistic personality disorder with anti-social traits.
To make conclusions and generalizations on the condition
of the respondent Mary Grace based only on one side is
tantamount to admitting hearsay evidence. The
documentary evidence offered did not sufficiently prove
root cause, gravity and incurability and antecedence.
Petition Denied.

8. Ma. Theresa B. Tani-De La Fuente vs. Rodolfo De La

Fuente, G.R. No. 188400, March 08, 2017 -

Expert witness, a clinical psychologist, testified that

Rodolfo had "paranoid personality disorder manifested by
damaging behavior like reckless driving and extreme
jealousy; his being distrustful and suspicious; his severe
doubts and distrust of friends and relatives of [Maria
Teresa]; his being irresponsible and lack of remorse; his
resistance to treatment; and his emotional coldness and
severe immaturity, most probably caused by a pathogenic
parental model. Rodolfo's family background showed that
his father was a psychiatric patient, and Rodolfo might
have developed psychic contamination called double
insanity, a symptom similar to his father's. Dr. Lopez
further claimed that Rodolfo's disorder was serious and
incurable because of his severe paranoia.

RTC granted the petition for declaration of nullity of

marriage. OSG appealed. CA reversed. SC reversed and
affirmed RTC decision declaring the marriage a nullity ab
initio.

90
9. Mirasol Castillo vs, Republic and Felipe Impas, G. R. No.
214064, Feb. 6, 2017.



In her complaint for declaration of nullity of marriage

under Art. 36, Mirasol alleged her husband Felipe's
infidelity, irresponsible acts like cohabiting with another
woman, not communicating with her, and not supporting
their children. RTC declared the marriage null and void.
OSG appealed, the CA reversed and Mirasol elevated the
case to the SC. SC affirmed CA decision.

Irreconcilable differences, sexual infidelity or perversion,

emotional immaturity and irresponsibility and the like, do
not by themselves warrant a finding of psychological
incapacity under Article 36, as the same may only be due
to a person's refusal or unwillingness to assume the
essential obligations of marriage. In order for sexual
infidelity to constitute as psychological incapacity, the
respondent's unfaithfulness must be established as a
manifestation of a disordered personality, completely
preventing the respondent from discharging the essential
obligations of the marital state; there must be proof of a
natal or supervening disabling factor that effectively
incapacitated him from complying with the obligation to
be faithful to his spouse.

Leonen, J.,dissenting. - Mirasol has sufficiently proven that

Felipe is psychologically incapacitated. The totality of
evidence confirms that Felipe's marital infidelity is a
manifestation of a grave psychological order.

The courts, in determining the presence of psychological

incapacity as a ground for annulment, must essentially
"rely on the opinions of experts in order to inform
themselves on the matter." Courts are "not endowed with
expertise in the field of psychology"; resorting to expert
opinion enables them to reach an "intelligent and
judicious" ruling. The totality of the behavior of one spouse
during the cohabitation and marriage is generally and
genuinely witnessed mainly by the other.

It is time that this Court operate within the sphere of reality.

91
The law is an instrument to provide succor. To force
partners to stay in a loveless marriage, or a spouseless
marriage as in this case, only erodes the foundation of a
family.

10. Republic vs. Danilo Pangasinan, 214077 Aug 10 2016

It is not necessary that the person alleged to be

psychologically incapacitated be examined by a
psychologist or psychiatrist. The totality of evidence
should prove gravity, juridical antecedence and
incurability.

11. Nicolas Matudan vs. Republic and Marilyn Matudan,

G.R. No. 203284, November 14, 2016 -

A case where expert witness found both parties to be

psychologically incapacitated under Art. 36. Psychologist
found that petitioner is suffering from Passive-Aggressive
Personality Disorder and respondent has Narcissistic
Personality Disorder with Antisocial Traits: negativistic
attitude, passive resistance, lacks the ability to assert his
opinions and has great difficulty expressing his feelings.
The root cause of his personality condition can be
attributed to his being an abandoned child.

As for respondent, the manifestation of her disorder are as

follows: Pre-occupation with pursuing matters that would
make her happy; has a high sense of self-importance;
wants to have her way and disregards her husband's
opinions; lacks empathy; wants to have a good life.

The CA affirmed the RTC judgment denying nullity for

insufficient evidence. SC affirmed. Indeed, "[w]hat is
important is the presence of evidence that can adequately
establish the party's psychological condition." [T]he
complete facts should allege the physical manifestations, if
any, as are indicative of psychological incapacity at the
time of the celebration of the marriage."

'Psychological incapacity,' as a ground to nullify a marriage

92
under Article 36 of the Family Code, should refer to no less
than a mental – not merely physical – incapacity that
causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so
expressed in Article 68 of the Family Code, among others,
include their mutual obligations to live together, observe
love, respect and fidelity and render help and support.

12. Republic vs. Reghis M. Romero II and Olivia Lagman

Romero, G.R. NO. 209253, February 24, 2016.;

RTC and CA declared the marriage of Reghis M. Romero II

and Olivia Lagman Romero void due to psychological
incapacity pursuant to Article 36 of the Family Code of the
Philippines. Reghis testified that he married Olivia not out
of love but out of the desire to please the latter's parents
who were kind and accommodating to him. Reghis further
maintained that he was not prepared to comply with the
essential marital obligations at the time, as his mind was
geared towards finishing his studies and finding
employment to support his parents and siblings

His expert witness testified that Reghis suffered from

Obsessive Compulsive Personality Disorder (OCPD, a
behavioral disorder of a strong obsession for whatever
endeavour one chooses, such as his work, to the exclusion
of other responsibilities and duties such as those
pertaining to his roles as father and husband.

OSG appealed to SC on the ground of insufficient evidence

to prove PI. Petition granted.

The policy of the Constitution is to protect and strengthen

the family as the basic autonomous social institution, and
marriage as the foundation of the family. As such, the
Constitution decrees marriage as legally inviolable and
protects it from dissolution at the whim of the parties.
Thus, it has consistently been held that psychological
incapacity should refer to the most serious cases of
personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance
to the marriage.

93
"Mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as
root causes. The illness must be shown as downright
incapacity or inability, not a refusal, neglect or difficulty,
much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse
integral element in the personality structure that
effectively incapacitates the person from really accepting
and thereby complying with the marital obligations.

13. RACHEL A. DEL ROSARIO 
vs.
JOSE O. DEL ROSARIO and

COURT OF APPEALS, G.R. No. 222541, February 15. 2017.

In September 2011, Rachel filed a petition11 for

declaration of nullity of marriage alleging that Jose was
psychologically incapacitated to fulfill his essential marital
obligations. Expert witness found that Jose suffered from
Antisocial Personality Disorder (APD) characterized by:
(a) his lack of empathy and concern for Rachel; (b) his
irresponsibility and his pleasure-seeking attitude that
catered only to his own fancies and comfort; (c) his
selfishness marked by his lack of depth when it comes to
his marital commitments; and (d) his lack of remorse for
his shortcomings.1

RTC declared the marriage void. Jose appealed to CA. CA

reversed the ruling of the RTC, stating that at best, the
findings of the expert showed that Jose was irresponsible,
insensitive, or emotionally immature which nonetheless
do not amount to the downright incapacity that the law
requires. SC affirmed CA ruling.

In the Dedel case, Respondent’s immaturityy could not be

equated with psychological incapacity as it was not shown
that these acts are manifestations of a disordered
personality. In Taring v. Taring,50 the Court emphasized that
"irreconcilable differences, sexual infidelity or perversion,
emotional immaturity and irresponsibility, and the like, do
not by themselves warrant a finding of psychological
incapacity, as [these] may only be due to a person's
difficulty, refusal, or neglect to undertake the obligations
of marriage that is not rooted in some psychological

94
illness.

Singson vs. Singson [ G.R. No. 210766, January 08,

2018 ]

In her petition to declare her marriage to Benjamin a

nullity under Art. 36, Conception alleged that their
marriage produced four children, all of whom are now
of legal age; that when they started living together,
petitioner noticed that respondent was "dishonest,
unreasonably extravagant at the expense of the
family's welfare, extremely vain physically and
spiritually,"[7] and a compulsive gambler; that
respondent was immature, and was unable to perform
his paternal duties; that respondent was also
irresponsible, an easy-going man, and guilty of
infidelity; that respondent's abnormal behavior made
him completely unable to render any help, support, or
assistance to her; and that because she could expect no
help or assistance at all from respondent she was
compelled to work doubly hard to support her family as
the sole breadwinner.

Petitioner also averred that at the time she filed this

Petition, respondent was confined at Metro Psych
Facility,[8] a rehabilitation institution in Pasig City; and
that respondent's attending psychiatrist, diagnosed
Benjamin to be suffering from Pathological Gambling:
preoccupation with gambling, thinking of ways to get
money with which to gamble as seen in his stealing and
pawning jewelries and appliances;
committed illegal acts such as forging the signature of his
wife, issuing bouncing checks in order to finance his
gambling; relies on his parents, his wife, and siblings to
provide money to relieve a desperate financial situation
caused by gambling;

Such pattern is inflexible and pervasive and has led to

significant impairment in social, occupational and
interpersonal relationship. this has persisted for several
years, and can be traced back tohis adolescent years when
he started gambling while in high school. He is therefore
diagnosed to be suffering from Personality Disorder.
Respondent came from a "distraught" family and had a
"dysfunctional" childhood; that respondent had all the

95
love, care, and protection of his parents as the youngest
child for some time; but that these parental love, care and
protection were, however, transferred to his youngest
brother who was born when respondent was almost five
years old; and that these factors caused respondent
emotional devastation from which he never recovered.

RTC granted the Petition. CA overturned the RTC, and held

that the totality of evidence presented by petitioner failed
to establish respondent's alleged psychological incapacity
to perform the essential marital obligations, which in this
case, was not at all proven to be grave or serious, much
less incurable, and furthermore was not existing at the
time of the marriage.

"A cause has to be shown and linked with the

manifestations of the psychological incapacity.
x x x "Unless the evidence presented clearly reveals a
situation where the parties or one of them, by reason of a
grave and incurable psychological illness existing at the
time the marriage was celebrated, was incapacitated to
fulfill the obligations of marital life (and thus could not
then have validly entered into a marriage), then we are
compelled to uphold the indissolubility of the marital tie."
This is the situation here. SC affirmed CA.
Petition DENIED.

IV. CONCLUSION:

SOME SIGNIFICANT ISSUES SPAWNED BY ART. 36

1. Does PI have to be incurable? The Code Committee,

taking off from an opinion of Dr. Gerardo Veloso,
adds the the incurability provision that “if curable, it
is beyond the means of the psychologically
incapacitated person to have it cured” is equivocal,
an oxymoron. Is it incurable or is it not? Molina says
“The incapacity must also be shown to be medically
or clinically permanent or incurable” and the
intention of the law is to confine the incapacity to the
ost serious personality disorders. Even experts
opine that it is incurable.

96
2. If incurable, will it prevent the afflicted person from
re-marrying? Some members of the Code Committee,
e.g., Sempio Diy, Caguioa, Puno, Luciano (selective
impotency) believe that it is not so, that PI is
marriage specific. Puno observes that PI may be
absolute or relative, thus, one may have PI in
relation to the present spouse, but not, with another
spouse. But if PI is incurable, how can there be PI in
one marriage, but none in another?

3. How should our courts interpret Psychological

incapacity: In its liberal sense, on in a restrictive
sense?

The intent of the law, as seen from the discussions of

the Code Committee members in the Minutes of the
Proceedings, is to liberalize the interpretation. This
is why the law does not provide a definition of
psychological incapacity, a precept expressed by the
Supreme Court in Salita vs. Magtolis ( #106429, June
13, 1999). The Committee, instructed the Court,
would like the judge to interpret the provision on a
case-to-case basis, guided by experience, the findigns
of experts and researchers in psychological
disciplines, and by decisions of church tribunals
which although not binding of the civil courts, may be
given persuasive effect since the provision was taken
from Canon law.

But this goes against the grain of Constitutional

policies on marriage and the family, where the State
is mandated to protect and strengthen the family as
the basic social institution, and the marriage as the
foundation of the family. Thus the courts are bound
to preserve marriage rather than destroy it, unless
for very serious reasons that compel the dissolution
of marriage

97
A CRITIQUE OF THE DECISION IN

REPUBLIC vs. MARELYN TANEDO MANALO, G. R. No.

221029, April 24, 2018.

By:

HON. ZENAIDA N. ELEPANO

Commissioner, Legal Education Board
Philippine Judicial Academy,
Supreme Court

I. In this case, our Supreme Court changes the interpretation

of the second paragraph of Article 26 of the Family Code
which reads:

Art. 26. All marriages solemnized outside the Philippines in

accordance with the laws in force in the country where they are
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5)
and (6), 36. 37, and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have the capacity to
remarry under Philippine law.

In her Handbook on the Family Code, the first

commentary written on the Family Code, Justice Alicia
Sempio-Diy a member of the FC Committee that drafted the
law, enumerated and explained the requirements for a divorce
decree obtained abroad for it to be recognized and enforced
in the Philippines, namely:

a. a valid marriage is celebrated between a Filipino and

a foreigner
b. a divorce decree is obtained abroad by the foreigner
spouse
c. the decree capacitates the alien spouse to remarry.

98
If these requirements are met, the Filipino spouse is
capacitated to remarry. This has always been the accepted
interpretation of this provision.

In other words, for a foreign divorce decree to be recognized

in the Philippines, there must be a valid marriage between a
Filipino and a foreigner (Initially, the interpretation was that
the citizenship difference must exist at the time of the celebration
of the marriage, but the case of Orbecido III changed it to be at
the time of the filing of the petition for divorce.) This meant
that if the spouses are both Filipinos, the divorce decree
obtained abroad by any one of the spouses cannot be recognized
in the Philippines. It also meant that if it was the Filipino spouse
and not the foreign spouse who obtained the decree abroad,
the foreign divorce decree will not be recognized here.

This was so because Art. 15 of the Civil Code establishes the

nationality rule, a principle in private international law, that
the national law of a person follows that person wherever
he/she goes. Art. 15 of the Civil Code states: ”Laws relating to
family rights and duties or to status, condition and legal
capacity of persons are x x x binding upon citizens of the
Philippines even though living abroad.”

The case of MANALO presents an issue that has already been

resolved several times in the past: May a foreign divorce
decree obtained by a Filipino who is married to a foreigner be
recognized and enforced in the Philippines?

The Supreme Court has now changed its position and

resolved the issue in the affirmative. Yes, it said, speaking
through the ponente J. Diosdado Peralta, the divorce obtained
by a Filipino spouse abroad against the foreigner spouse is
recognizable in the Philippines. Justice A. B. Caguioa, in his
opening statement in his dissenting opinion succinctly says:

“ The ponencia holds that Article 26, (2) permits the

blanket recognition under Philippine law of a divorce decree
obtained abroad by a Filipino against his/her foreigner
spouse.“

Considering the provision of the second paragraph of Art.

26, is the ruling of the Supreme Court in Manalo correct? Of

99
course the Supreme Court is always correct. But is it correctly
correct?

II. To answer this, let me first trace the jurisprudential

development of the second paragraph of Art. 26 – how the
Supreme Court has interpreted the provision, that is, before
this Manalo case.

Two cases are considered as precursors of par. 2 of Art. 26.

These are Van Dorn vs. Romillo, (139SCRA139) and Pilapil vs,
Ibay Somera. (174 SCRA653) promulgated by the High Court
before the Family Code took effect in 1988.

These 2 cases recognized the legal effect of a foreign divorce

obtained abroad. It did not take into account who among the
spouses, one a Filipino, the other foreigner, obtained the
divorce decree. In Van Dorn, Filipino Alice Reyes and her
American husband Richard Upton were divorced by a Nevada
court in the US. Thereafter, Richard sought to enforce before
the Pasay City RTC what he considered still his right to
continue managing the conjugal property he had with Alice,
claiming that Philippine law does not recognize absolute
divorce. Our Supreme Court threw out his claim. When the
German Eric Geiling who divorced his Filipino wife Imelda
Pilapil filed a case for adultery against his ex-wife before the
RTC, the Supreme Court also dismissed the case because he
was no longer an aggrieved husband, and therefore had no
locus standi.

Then came the Republic vs. Iyoy case (507 Phil 845) decided in
2005. Here, a Filipino wife divorced her American husband in
the US before she became an American citizen. Our Supreme
Court denied recognition of the foreign divorce because she
was still a Filipino citizen when she filed for divorce. Under the
nationality principle, Philippine law still applied to her even if
living abroad or wherever she was.

Republic vs Orbecido III (#154380) followed 10 days later – on

Oct. 5 2005. Here the High Court ruled that if a Filipino
spouse had become a citizen of another country (US) and as
citizen of such country filed for divorce against the Filipino
spouse, the divorce will be recognized by Philippine law. The

100
reason is that when the divorce was filed the Filipino spouse
was no longer a Filipino citizen, therefore, the nationality law
of his/her new country applies. The reckoning of the
citizenship differentiation must be as of the time the petition
for divorce was filed, not at the time of the celebration of the
marriage.

Dacasin (#168785, Feb 5 2010) came next, five years later.

Herald, an American, and Sharon, a Filipino, got married.

Sharon filed for and was granted a divorce decree by an Illinois
court. Custody over child was awarded to Sharon. Illinois court
retained jurisdiction over the case over post decree issues
related to the decision.

Thereafter, in Manila, the ex-spouses entered into a Joint

Custody Agreement over their only child. They stipulated that
jurisdiction over any dispute arising from the Agreement was
to be exercised by Philippine courts. Herald undertook to
obtain from US Illinois court that granted the divorce a court
order relinquishing jurisdiction over the issue of child custody
to Philippine courts. He did not do so.

Herald instead sued Sharon in the Philippines for enforcement

of the custody agreement because Sharon was exercising sole
custody over their daughter. The RTC dismissed his case for
lack of jurisdiction because Illinois court had retained
jurisdiction over post-decree matters.

SC ruling: Divorce is binding only Herald following the

nationality rule. Sharon is not bound by the decree, as she is a
Filipino citizen. Thus, Philippine laws apply to her. Agreement
on joint custody over the child is void as it contravenes Art. 213
of FC awarding custody of child below 7 yrs old to the mother.
It also contravenes the Civil Code provision that jurisdiction
of courts cannot be subject to compromise..

Bayot vs. CA, 2013 591 Phil 452 – 2008 -

Filipino Vicente and American Rebecca married in the

Philippines. Rebecca obtained a divorce and a conjugal
property settlement from the courts of the Dominican
Republic. Then she filed a case for nullity of marriage in the

101
Philippines due to PI of Vicente. Vicente filed motion to dismiss
because of the earlier divorce decreed by a foreign court.

Issue: Is the Dominican Republic divorce valid?

Held: Yes. Under 26 FC Rebecca was an American citizen
when she filed the petition for divorce.

(My comment: Wrong remedy used by Rebecca. Either she or

Vicente should have filed for recognition and enforcement of
the foreign divorce decree before the courts in the Philippines.)

Fujiki vs. Marinay #196049, 712 Phil 524, 2013 – Paz Marinay
married Fujiki in Philippines but who left for Japan without
her. Without dissolving this marriage, Paz married a Japanese
Maekara in Philippines, but when she was brought to Japan
and was physically abused by her new husband, she renewed
ties with Fujiki, and she divorced her second husband in Japan
on the ground of her bigamy. She and Fujiki returned to
Philippines, Fujiki filed for recognition of the divorce decree
between Paz and 2nd husband, because he wanted to know
what was his status in relation to Paz, and that marriage
between Paz and Maekara be voided due to bigamy.

Issue: Was Fujiki married to Paz or not?

SC ruled: He was married to Paz. Paz’s 2nd marriage was

void.

Medina vs Koike, 2016, #791 P 645 – Joint petition for divorce

filed in Japan by a Filipino and Japanese couple was granted.
This was considered by our Supreme Court as covered by
Art. 26 par 2. because the foreign spouse was a petitioner in
the case. It didn’t matter if the Filipino spouse was also a
petitioner.

Morisono vs Morisono #22613,, July 2, 2018. - Filipino

Luzviminda and Japanese Ryoji got married. Later on, Luz
obtained divorce from Japanese court, can she remarry? Yes,
because of the Manalo ruling.

So, what is the Manalo case all about?

102
III. REPUBLIC OF THE PHILIPPINES v. MARELYN
TANEDO MANALO, G.R. No. 221029, April 24, 2018

Facts: Filipino Marelyn married in the Philippines a

Japanese national MINORO. She obtained a divorce decree
from a Japanese court. Then, she filed a petition for
recognition and enforcement of the divorce decree before an
RTC.
The trial court denied the petition, citing Art. 15 of the Civil
Code on nationality law, and the Orbecido case.

On appeal, the RTC decision was overturned by the CA:

“Article 26 of the Family Code of the Philippines (Family
Code) is applicable even if it was Manalo who filed for divorce
against her Japanese husband because the decree they obtained
makes the latter no longer married to the former, capacitating
him to remarry. Conformably with Navarro, et al. v. Exec.
Secretary Ermita, et al. ruling that the meaning of the law
should be based on the intent of the lawmakers and in view of
the legislative intent behind Article 26, it would be the height of
injustice to consider (Marelyn) Manalo as still married to the
Japanese national, who, in turn, is no longer married to her. “
x x x.

That it was Manalo who filed the divorce case was

inconsequential. Cited as similar to this case was Van Dorn v.
Judge Romillo, Jr. where the marriage between a foreigner and
a Filipino was dissolved through a divorce filed abroad by the
latter. The Republic appealed to the Supreme Court.

ISSUE: Should the divorce obtained by Marelyn in Japan be

recognized in the Philippines?

THE DECISION: Yes.

REASONS:

1. To maintain that under our laws, Marelyn has to be

considered still married to private respondent and still subject
to a wife's obligations under Article 109 of the Civil Code
cannot be just. She should not be obliged to live together with,
observe respect and fidelity, and render support to private

103
respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not
be discriminated against in her own country if the ends of
justice are to be served. (True. But the unjustness or justness
or wisdom of the law cannot be cured or remedied by the
courts, Dura lex sed lex. Amendatory legislation by Congress
is the correct measure.)
In addition, the fact that a validly obtained foreign divorce
initiated by the Filipino spouse can be recognized and given
legal effects in the Philippines is implied from Our rulings in
Fujiki v. Marinay, et al. and Medina v. Koike. (Wrong. This is a
loose and therefore dangerous statement because it will open
the floodgates to similar implications leading to
misapplications of the rule on stare decisis. To use an obiter as
a doctrinal pronouncement and then imply a meaning from it
is totally wrong. These two cases do not permit an implication
or even inference that they may be applicable to the issue of
Manalo. I will discuss why later on.)

2. Paragraph 2 of Article 26 speaks of "a divorce x x x validly

obtained abroad by the alien spouse capacitating him or her to
remarry. " Based on a clear and plain reading of the provision,
it only requires that there be a divorce validly obtained abroad.
The letter of the law does not demand that the alien spouse should
be the one who initiated the proceeding wherein the divorce decree
was granted. It does not distinguish whether the Filipino spouse is
the petitioner or the respondent in the foreign divorce proceeding.
The Court is bound by the words of the statute; neither can We
put words in the mouths of the lawmakers. The legislature is
presumed to know the meaning of words, to have used words
advisedly, and to have expressed its intent by the use of such
words as are found in the statute. (Wrong: The ponencia
conveniently ignored the phrase in the sentence x x x a divorce
validly “obtained by the foreign spouse” capacitating him or
her to remarry. Why? Obviously, to suit its finding.)

3. "Fundamental rights" whose infringement leads to strict

scrutiny under the equal protection clause are those basic
liberties explicitly or implicitly guaranteed in the Constitution.
It includes the right of procreation, the right to marry.
(Comment: The right to marry is not absolute. It may be
regulated by the State for reasons of good customs and public
policy. Every human being has the natural or inherent right to

104
marry, but many laws all over the world, including the
Philippines REGULATE marriage in its various aspects and
effects.) Paragraph 2 of Article 26 violates one of the essential
requisites of the equal protection clause. Particularly, the
limitation of the provision only to a foreign divorce decree
initiated by the alien spouse is unreasonable as it is based on
superficial, arbitrary, and whimsical classification.
(My Comment: This constitutionality of this provision has not
been directly challenged. Thus, it remains constitutional. This
is why J Leonen was cautious on the matter. He opined in his
concurring opinion, as an obiter, that the 2nd par of Art. 26
may be unconstitutional.

If the Court deems the provision to be unwise, the Court has

no business overturning it, and replacing it with what it
considers wise, for it cannot challenge the wisdom of a statute.
It can however recommend to the legislature which passed the
law to amend it.)

4. There is no real and substantial difference between a

Filipino (married to an alien spouse) who initiated or filed a
foreign divorce proceedings and a Filipino who obtained a
divorce decree upon the instance of his or her alien spouse.

(The meaning of “upon the instance of” . . . is ambiguous: it

may mean the alien spouse filed the petition, or, the alien
spouse directed the Filipino spouse to file “in his /her behalf”
which is a ridiculous silly thing to do. Nonetheless, THERE IS
A BIG DIFFERENCE. In the first, the Filipino initiated the
divorce proceedings, which if divorce is granted, will not be
recognized in the Philippines insofar as the Filipino spouse is
concerned. In the second, if the filing was done by or upon the
instance or direction of the alien spouse and the Filipino spouse
filed or acted in behalf of the alien spouse, the divorce will be
recognized in the Philippines. There is no evidence however
that Marelyn filed the divorce “upon the instance of her
Japanese husband”. She admitted that she filed it on her own.)

QUESTION: If a divorce decree obtained abroad by a

Filipino who is married to a Filipino is void on ground of
nationality principle, why should a divorce decree obtained
abroad by a Filipino against an alien spouse be valid under the

105
Manalo rule??? Why should not the nationality principle also
be applied to the Filipino, i.e., that the divorce decree obtained
by him/her is void as well ? Isn’t this discriminatory?)

Under Philippine and foreign laws, where one is married to a

foreigner and files for divorce, and one who is married to a
foreigner but it is the latter who filed for divorce, the Filipino
spouses have the same rights and obligations in an alien land.
The circumstances surrounding them are alike. Hence, to
make a distinction between them based merely on the
superficial difference of whether they initiated the divorce
proceedings or not is utterly unfair. Indeed, the treatment
gives undue favor to one and unjustly discriminate against the
other.

(Wrong: The difference is not superficial. The alien spouse is

governed by his national law. The Filipino is not. This
difference goes right into the core of the issue of absolute
divorce. Of course one can say that the law is unjust, unwise,
unfair! Sorry, folks, but dura lex sed lex. If you want a wiser,
more just and reasonable law, go to Congress and ask that the
present law be amended. Do not go to court to question the
wisdom of the law and ask the court for a wiser, more just, and
reasonable interpretation and application. Courts cannot do
that, they only interpret the law as it is worded. If the law is
clear, there is no need to interpret and go beyond the words to
look at the spirit behind it. It is only when the law is ambiguous
can the courts resort to statutory construction which provides
for definite rules of interpretation, which do not go beyond
judging and tread into the forbidden realm of legislation.)

I. U.S. Supreme Court: "We begin with the familiar canon

of statutory construction that the starting point for
interpreting a statute is the language of the statute
itself. Absent a clearly expressed legislative
intention to the contrary, that language must
ordinarily be regarded as conclusive.:" Consumer
Product Safety Commission et al. v. GTE Sylvania,
Inc. et al.,447 U.S. 102 (1980). "[I]n interpreting a
statute a court should always turn to one cardinal
canon before all others. . . .[C]ourts must presume
that a legislature says in a statute what it means
and means in a statute what it says there."
Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146,

106
 1149 (1992). Indeed, "when the words of a statute
are unambiguous, then, this first canon is also the
last: 'judicial inquiry is complete.'" 503 U.S. 249,
254.

II. Arkansas Supreme Court: "When reviewing issues

of statutory interpretation, we keep in mind that the
first rule in considering the meaning and effect of a
statute is to construe it just as it reads, giving the
words their ordinary and usually accepted meaning
in common language. When the language of a
statute is plain and unambiguous, there is no need
to resort to rules of statutory construction. A
statute is ambiguous only where it is open to two
or more constructions, or where it is of such
obscure or doubtful meaning that reasonable
minds might disagree or be uncertain as to its
meaning. When a statute is clear, however, it is
given its plain meaning, and this court will not
search for legislative intent; rather, that intent must
be gathered from the plain meaning of the
language used. This court is very hesitant to
interpret a legislative act in a manner contrary to
its express language, unless it is clear that a
drafting error or omission has circumvented
legislative intent." Farrell v. Farrell, 365 Ark. 465,
231 S.W.3d 619. (2006)

Court of Appeals of Maryland: "[ Of course, the cardinal

rule is to ascertain and effectuate legislative intent. x x x
To this end, we begin our inquiry with the words of the
statute and, ordinarily, when the words of the statute are
clear and unambiguous, according to their commonly
understood meaning, we end our inquiry there also."
Chesapeake and Potomac Telephone Co. of Maryland v.
Director of Finance for Mayor and City Council of
Baltimore, 343 Md. 567, 683 A.2d 512 (1996)

5. The 1987 Constitution expresses that marriage, as an

inviolable social institution, is the foundation of the family and
shall be protected by the State. Nevertheless, it was not meant
to be a general prohibition on divorce. Quoted hereunder:

107
(Bernas, Joaquin G, S.J., THE INTENT OF THE 1986 CONSTITUTION
WRITERS, 1995 Edition, pp. 1132, citing V RECORD 40, 44.

“MR. GASCON. Mr. Presiding Officer, that was not primarily

my intention. My intention was primarily to encourage the
social institution of marriage, but not necessarily discourage
divorce. But now that he mentioned the issue of divorce, my
personal opinion is to discourage it, Mr. Presiding Officer.

FR. BERNAS. No. my question is more categorical. Does this

carry the meaning of prohibiting a divorce law? MR.
GASCON. No. Mr. Presiding Officer.
 FR. BERNAS. Thank
you.” x x x

(Comment: This is a non-issue insofar as the constitutional

concept of marriage and family is concerned. Whether it is
constitutional or not to allow divorce in our country goes
beyond the issue of recognition of a divorce decree obtained
abroad by a Filipino citizen.
As a matter of fact, the reason why par 2 of Art. 26 was
allowed and has never been constitutionally challenged shows
that, as the proceedings of the 1987 Constitution expressed, the
article on marriage and the family was not meant to be a
general prohibition against divorce.)

6. J. Leonen concurred by arguing on the basis

of equal protection of law, i.e., “That interpretation
(of the dissent) may be unconstitutional. Article II, Section 14
of our Constitution provides:

Section 14. The State recognizes the role of women in

nation-building, and shall ensure the fundamental equality
before the law of women and men.

This constitutional fiat advances the notion of gender equality

from its passive formulation in Article III, Section 12 to its
more active orientation.

Article III, Section 1 simply states that "nor shall any person
be denied the equal protection of the laws."

THE DISSENT OF MR. J. ALFREDO BENJAMIN S.

CAGUIOA -

The Supreme Court x x x aims to adopt a liberal construction

of statutes. By liberal construction of statutes is meant that

108
method by which courts from the language used, the subject
matter, and the purposes of those framing laws, are able to find
out their true meaning. There is a sharp distinction, however,
between construction of this nature and the act of a court in
engrafting upon a law something that has been omitted which
someone believes ought to have been embraced. The former is
liberal construction and is a legitimate exercise of judicial
power. The latter is judicial legislation forbidden by the
tripartite division of powers among the three departments of
government, the executive, the legislative, and the judicial.1

On the basis of the Court's rulings in Van Dorn v. Romillo, Jr.

(Van Dorn), Republic of the Philippines v. Orbecido III
(Orbecido), and Dacasin v. Dacasin (Dacasin), the ponencia
holds that Article 26 (2) of the Family Code permits the blanket
recognition, under Philippine law, of a divorce decree obtained
abroad by a Filipino citizen against the latter's foreigner
spouse.

I disagree.
At the outset, it bears to emphasize that the public policy
against absolute divorce remains in force. At present, there
exists no legal mechanism under Philippine law through which
a Filipino may secure a divorce decree upon his own initiative.
Accordingly, it is the Court's duty to uphold such policy and
apply the law as it currently stands until the passage of an
amendatory law on the subject.
As members of the Court, ours is the duty to interpret the law;
this duty does not carry with it the power to determine what
the law should be in the face of changing times, which power,
in turn, lies solely within the province of Congress.

REASONS FOR THE DISSENT (concurred with by Justices

del Castillo and Bernabe).

1. The public policy against absolute divorce remains in

force. At present, there exists no legal mechanism under
Philippine law through which a Filipino may secure a divorce
decree upon his own initiative. It is the Court's duty to uphold
such policy and apply the law as it currently stands until the
passage of an amendatory law on the subject. As members of
the Court, ours is the duty to interpret the law; this duty does

109
not carry with it the power to determine what the law should
be (compared to what it is) in the face of changing times, which
power, in turn, lies solely within the province of Congress.

2. Article 26(2) of the Family Code is an exception to the

nationality principle under Article 15 of the Civil Code.
Article 26(2) was introduced during the meetings of the
Joint Civil Code and Family Law Committee (the Committee)
to address the effect of foreign divorce decrees on mixed
marriages between Filipinos and foreigners. The provision,
as originally worded, and the rationale for its introduction,
appear in the deliberations:

In a mixed marriage between a Filipino citizen and a

foreigner, both capacitated to marry under Philippine law,
in case the foreigner should obtain a valid divorce
abroad, capacitating him to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine
law.

However, subsequent deliberations show that the

Committee ultimately resolved to delete the provision and
defer action until absolute divorce is determined in
future legislation:

Finally, it was agreed that the applicable rule (whether Article 15

of the Civil Code on one hand, or Article 26[2] of the Family Code
on the other), is determined by (i) the law upon which the
divorce decree had been issued; (ii) the party who obtained the
divorce decree; (iii) the nature of the action brought before the
Philippine courts; and (iv) the law governing the personal status
of the party seeking relief.

The legislative intent behind Article 26(2) is, primarily, to

recognize foreign divorce decrees secured by foreign nationals
insofar as they affect Filipinos who would otherwise be
precluded from invoking such decrees in our jurisdiction, and,
as well, to recognize those foreign divorce decrees obtained by
Filipinos insofar as they affect their foreign spouses whose
national laws allow divorce.

IN the deliberations of the FCC, Justice Reyes remarked that this

article is an implicit recognition of foreign divorce, with which
Justice Caguioa concurred. Prof. Bautista and Prof. Romero
pointed out that the article will only cover exceptional cases and
special situations and that there is a reasonable and substantial

110
basis for making it an exception. (Emphasis and underscoring
supplied)

Consistent with the foregoing, the Court held in Iyoy:

At the time she filed for divorce, Fely was still a Filipino citizen,
and pursuant to the nationality principle embodied in Article 15
of the Civil Code of the Philippines, she was still bound by
Philippine laws on family rights and duties, status, condition, and
legal capacity, even when she was already living abroad.
Philippine laws, then and even until now, do not allow and
recognize divorce between Filipino spouses. Thus, Fely could not
have validly obtained a divorce from respondent Crasus.21
(Emphasis and underscoring supplied)

2. Article 26(2) of the Family Code merely recognizes the

classification previously made pursuant to the nationality
principle.

The classification under Article 26(2), (that is, between Filipinos in

mixed marriages and Filipinos married to fellow Filipinos) was
created as a matter of necessity, in recognition of the
classification between Filipinos and foreign nationals which had
been created by Article 15 of the Civil Code decades prior.

Hence, to characterize Article 26(2) as unconstitutional in such

respect would be to disregard the nationality principle and the
reasons which render the adoption thereof necessary; it would be
tantamount to insisting that Filipinos should be governed with
whatever law they choose.

3. Article 26(2) of the Family Code rests on substantial and

reasonable distinctions

It has been argued that the verba legis interpretation of Article

26(2) of the Family Code violates the equal protection clause, and
that the application of the provision in this manner would not only
be oppressive, but likewise unconstitutional.

It bears to stress, however, that the guarantee of equal protection

under the Constitution does not require that all laws
indiscriminately operate with equal force with respect to all
subjects at all times; the guarantee does not preclude

111
classification provided they are reasonable and based on
substantial distinctions.

4. The guaranty of equal protection of the laws is not a

guaranty of equality in the application of the laws upon all
citizens of the state. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does
not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object
to which it is directed or by the territory within which it is to
operate.

The equal protection of the laws clause of the Constitution allows

classification. All that is required of a valid classification is that it
be reasonable, which means that the classification should be
based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law;
that it must not be limited to existing conditions only; and that it
must apply equally to each member of the class.

There should be no dispute on the existence of substantial

distinctions between Filipinos in mixed marriages and those who
are married to fellow Filipinos. In fact, several of these distinctions
were highlighted in the ponencia, thus:

A Filipino who is married to another Filipino is not similarly

situated with a Filipino who is married to a foreign citizen. There
are real, material and substantial differences between them. Ergo,
they should not be treated alike, both as to rights conferred and
liabilities imposed. Without a doubt, there are political, economic,
cultural, and religious dissimilarities as well as varying legal
systems and procedures, all too unfamiliar, that a Filipino national
who is married to an alien spouse has to contend with. More
importantly, while a divorce decree obtained abroad by a
Filipino against another Filipino is null and void, a divorce decree
obtained by an alien against his or her Filipino spouse is
recognized if made in accordance with the national law of the
foreigner.

112
Originally the wording by the FCC: Where a marriage between a
Filipino citizen and a foreigner is validly celebrated abroad and a
divorce is thereafter validly obtained abroad capacitating such
foreigner to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law. Article 26(2) did not
appear in the initial version of the Family Code under Executive
Order (EO) 209 which was signed into law by then President
Corazon Aquino on July 6, 1987. Days later, or on July 17, 1987,
President Aquino issued EO 227 which incorporated, among
others, Article 26(2). Thus, when the Family Code finally took
effect on August 3, 1988, Article 26, in its entirety, read as follows:

ART. 26. All marriages solemnized outside the

Philippines, in accordance with the laws in force in the
country where they were solemnized, and valid there as
such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine
law.

While Article 26(2) was reinstated by executive fiat, it is

nevertheless clear that the true spirit behind the provision
remains explicit in the Committee deliberations — Article 26(2)
had been crafted to serve as an exception to the nationality
principle embodied in Article 15 of the Civil Code, which states:

ART. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad.

As the deliberations indicate, the exception provided in Article

26(2) is narrow, and intended only to address the unfair situation
that results when a foreign national obtains a divorce agst a
Filipino citizen, leaving the latter stuck in a marriage without a
spouse.

113
The prohibition against absolute divorce only applies to Filipino
citizens. Accordingly, it cannot be invoked by a foreign national to
evade the effects of a divorce decree issued pursuant to his
national law. To reiterate, a divorce decree issued by a foreign
court remains binding on the foreign spouse in the Philippines,
regardless of the party who obtained the same provided that
such decree is valid and effective under the foreign spouse's
national law.

In essence, the applicable rule (whether Article 15 of the Civil

Code on one hand, or Article 26[2] of the Family Code on the
other), is determined by (i) the law upon which the divorce
decree had been issued; (ii) the party who obtained the divorce
decree; (iii) the nature of the action brought before the
Philippine courts; and (iv) the law governing the personal status
of the party seeking relief.

There should be no dispute on the existence of substantial

distinctions between Filipinos in mixed marriages and those who
are married to fellow Filipinos. In fact, several of these distinctions
were highlighted in the ponencia, thus:

A Filipino who is married to another Filipino is not similarly

situated with a Filipino who is married to a foreign citizen. There
are real, material and substantial differences between them. Ergo,
they should not be treated alike, both as to rights conferred and
liabilities imposed. Without a doubt, there are political, economic,
cultural, and religious dissimilarities as well as varying legal
systems and procedures, all too unfamiliar, that a Filipino national
who is married to an alien spouse has to contend with. More
importantly, while a divorce decree obtained abroad by a
Filipino against another Filipino is null and void, a divorce decree
obtained by an alien against his or her Filipino spouse is
recognized if made in accordance with the national law of the
foreigner.28 (Emphasis supplied)

4. Respondent's case falls outside of the scope of Article 26(2)

of the Family Code.

114
It has been established that (i) the respondent is a Filipino citizen
who married a Japanese national; (ii) it was the respondent who
subsequently obtained a divorce decree against her Japanese
husband from a Japanese court; and (iii) the respondent
thereafter filed a Petition for Recognition and Enforcement of a
Foreign Judgment30 before the RTC. It is clear that respondent
is, and has always been, a Filipino citizen. Pursuant to the
nationality principle, respondent's personal status is subject to
Philippine law which, in turn, prohibits absolute divorce.

Hence, the divorce decree which respondent obtained under

Japanese law cannot be given effect, as she is, without dispute, a
national not of Japan, but of the Philippines. Nevertheless, the
verba legis application of Article 26(2) does not deprive the
respondent of legal remedies, as she may pray for the severance
of her marital ties before the RTC in accordance with the
mechanisms now existing under the Family Code.

Attacking the wisdom of statutes governing marriage and

personal status is something the Court cannot do without
interfering with the powers of Congress..

To note, Article 26(2) of the Family Code has remained

unchanged since the issuance of EO 227. The blanket recognition
of absolute divorce overturns the Court's unequivocal
interpretation of the provision as laid down in the cases of
Pilapil, Iyoy, Orbecido, Dacasin, Bayot, Fujiki and Medina, which
span a period of nearly three decades. Ascribing a contradictory
interpretation to the provision, under the guise of equal
protection, essentially re-writes Article 26(2) and gives it a
meaning completely different from the framers' intention.

I find that the prohibition remains, and thus, must be faithfully

applied. To my mind, a contrary ruling will subvert not only the
intention of the framers of the law, but also that of the Filipino
people, as expressed in the Constitution. The Court is bound to
respect the prohibition, until the legislature deems it lit to lift
the same through the passage of a statute permitting absolute
divorce.

As recognized by the ponencia, there are currently four bills on

the subject of divorce and severance of marriage pending before

115
the 17th Congress: (i) House Bill No. 116 (HB 116) and House Bill
No. 2380 (HB 2380) which propose different grounds for the
issuance of a judicial decree of absolute divorce; (ii) House Bill
No. 1062 (HB 1062) which proposes the inclusion of separation in
fact as an additional ground for annulment of marriage; and (iii)
House Bill No. 6027 (HB 6027) which proposes additional
grounds for dissolution of marriage. These bills have been
consolidated and substituted by House Bill No. 730335 (HB
7303), which, at present, is awaiting deliberations before the
Senate.

These movements towards the passage of a divorce law

illustrate that the difficulty which results from the absolute
prohibition against marriage is being addressed by the 17th
Congress through a statute specifically crafted for the purpose.
That the legislature has seen it necessary to initiate these
proposed laws is a clear delineation of the Court's role — that is,
to simply apply the current law and not for it to indulge in
judicial legislation.

III. The latest case on the matter is Morisono vs Morisono

#22613, 7/2/18. -

Luzviminda and Ryoji were married, Luz obtained divorce from

Japanese court, can she remarry? Yes, Under the Manalo
ruling.

The decision was penned by J. Bernabe who had no choice but to

follow Manalo. The Court ordered a remand to the trial court to
see if the Japanese divorce decree was valid in that it conformed
to the requirements of Japanese law on divorce.

J. Caguioa concurred in the remand, but subject to his dissent in

Manalo.

116
117