Reviewer Property Onwards

CIVIL LAW REVIEW
Notes and Cases in Persons and Family Relations Part II
Compiled by Lianne Tan
Notes and Cases by Butch San Juan and Annie del Rosario
Edited and Updated by Rodell A. Molina
_______________
V. PROPERTY RELATION BETWEEN HUSBAND AND WIFE
A. IN GENERAL
Art. 74. The property relations between husband and wife shall be governed
in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local customs.
Balane: The husband and wife can agree on anything they want. This follows the
principle of autonomy of contract. Note the order given in Art 74: (1) the marriage
settlement; (2) the provisions of the Family Code; (3) local custom.
In the absence of a marriage settlement, or when such marriage settlement is void,

the ACP regime governs.
An exception to the immediately preceding rule is when the 1st marriage is

dissolved by reason of death, and the 2nd marriage was entered into before the liquidation
of the 1st....the Code requires a mandatory separation of property (130(3))
All modifications to the marriage settlement must be made before the marriage is
celebrated, except: Art. 66, 67, 128, 135 and 136.
General rule: once marriage is celebrated, there is already a property regime and this
cannot be changed: Except:
(1) legal separation (ACP/CPG is dissolved)
(2) revival of former property regime upon reconciliation
(3) petition of one spouse for separation in case of abandonment or failure to comply with
marital obligations
(4) judicial dissolution of regime: joint petition or petition by one spouse for cause. (Art
135/136)
Art. 75. The future spouses may, in the marriage settlements, agree upon the
regime of absolute community, conjugal partnership of gains, complete separation of
property, or any other regime. In the absence of marriage settlements, or when the
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Butch, Annie and RAM
regime agreed upon is void, the system of absolute community of property as

established in this Code shall govern.
- ACP
CPG
SOP
Other if none or void - ACP
Art. 76. In order that any modification in the marriage settlements may be
valid, it must be made before the celebration of the marriage, subject to the
provisions of Articles 66, 67, 128, 135 and 136.
Art. 66. The reconciliation referred to in the preceding Article shall have
the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be
terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to revive their former property
regime.
The court order containing the foregoing shall be recorded in the proper
civil registries.
Art. 67. The agreement to revive the former property regime referred to
in the preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the
amounts owing to each.
The agreement of revival and the motion for its approval shall be filed
with the court in the same proceeding for legal separation, with copies of both
furnished to the creditors named therein. After due hearing, the court shall, in its
order, take measures to protect the interest of creditors and such order shall be
recorded in the proper registries of properties.
The recording of the order in the registries of property shall not prejudice
any creditor not listed or not notified, unless the debtor-spouse has sufficient
separate properties to satisfy the creditor's claim.
Art. 128. If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved spouse may petition
the court for receivership, for judicial separation of property, or for authority to
be the sole administrator of the conjugal partnership property, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer
to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or she has left
the conjugal dwelling without intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has failed within the same period
to give any information as to his or her whereabouts shall be prima facie presumed
to have no intention of returning to the conjugal dwelling.
Art. 135. Any of the following shall be considered sufficient cause for
judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a penalty which
carries with it civil interdiction;
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(2) That the spouse of the petitioner has been judicially declared an
absentee;
(3) That the loss of parental authority of the spouse of the petitioner has
been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to
comply with his or her obligations to the family as provided for in Article 101.
(5) That the spouse granted the power of administration in the marriage
settlements has abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact
for at least one year and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the presentation of
the final judgment against the guilty or absent spouse shall be enough basis for the
grant of the decree of judicial separation of property.
Art. 136. The spouses may jointly file a verified petition with the court for
the voluntary dissolution of the absolute community or the conjugal partnership of
gains, and for the separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of
gains, as well as the personal creditors of the spouse, shall be listed in the petition
notified of the filing thereof. The court shall take measures to protect the creditors
and other persons with pecuniary interest.
Art. 77. The marriage settlements and any modification thereof shall be in
writing, signed by the parties and executed before the celebration of the marriage.
They shall not prejudice third persons unless they are registered in the local civil
registry where the marriage contract is recorded as well as in the proper registries of
property.
Baviera: Marriage settlement/ modification

1. in writing
2. signed by the parties
3. executed before the marriage
4. not prejudice 3Ps unless registered
Balane:
formal requirement of a marriage settlement:

in writing
in a public or private instrument
to bind third persons, it must be recorded in the registry of property.
Art. 78. A minor who according to law may contract marriage may also enter
into marriage settlements, but they shall be valid only if the persons designated in
Article 14 to give consent to the marriage are made parties to the agreement, subject
to the provisions of Title IX of this Code.
Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of 18 and 21, they shall,
in addition to the requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother, surviving parent or
guardian, or persons having legal charge of them, in the order mentioned. Such
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consent shall be manifested in writing by the interested party, who personally

appears before the proper local civil registrar, or in the form of an affidavit made
in the presence of two witnesses and attested before any official authorized by law
to administer oaths. The personal manifestation shall be recorded in both
applications for marriage license, and the affidavit, if one is executed instead, shall
be attached to said applications.
Title IX (Parental Authority)
Balane: The rule here remains unchanged by R.A. 6809...a minor between 18-21 can enter
into a marriage settlement but the parents or guardians must sign.
A creditor is entitled to assume that the property regime is ACP if the marriage
settlement is not recorded...except where the creditor had actual knowledge.
Art. 79. For the validity of any marriage settlements executed by a person
upon whom a sentence of civil interdiction has been pronounced or who is subject to
any other disability, it shall be indispensable for the guardian appointed by a
competent court to be made a party thereto.
Art. 80. In the absence of a contrary stipulation in a marriage settlements, the

property relations of the spouses shall be governed by Philippine laws, regardless of
the place of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not
situated in the Philippines and executed in the country where the property is located;
and
(LEX SITUS- contract - abroad - property - abroad)
(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting property situated in a foreign country whose laws require
different formalities for their extrinsic validity.
(LEX SITUS - contract - Philippines - property - abroad)

Balane: Does this article imply that the couple can validly stipulate that a foreign law
shall govern their relation?
Art. 80(3) seems inconsistent with Art. 17 (1) NCC....Balane believes that this article
(80(3)) should be suppressed.
Art. 81. Everything stipulated in the settlements or contracts referred to in

the preceding articles in consideration of a future marriage, including donations
between the prospective spouses made therein, shall be rendered void if the marriage
does not take place.
However, stipulations that do not depend upon the celebration of the
marriage shall be valid.
Balane: This article is inconsistent with Art. 86(1)
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Suppose that donation propter nuptias are made but the marriage is not celebrated...what
happens to the donations:
Art. 81...Void
Art. 86...revocable
Balane: if the marriage is not celebrated, the DPN should be void.
Donation Propter Nuptias (requisites)

(1) made before marriage
(2) in consideration of marriage
-consideration must be understood in layman's terms, i.e. what motivates one to make the
donation.
(3) in favor of one or both of the betrothed.
recipient may be one or both of the betrothed

donor can be anybody.
B. CAPACITY TO EXECUTE MARRIAGE SETTLEMENT
MINOR
Art. 78. A minor who according to law may contract marriage may also enter
into marriage settlements, but they shall be valid only if the persons designated in
Article 14 to give consent to the marriage are made parties to the agreement, subject
to the provisions of Title IX of this Code.
- Art. 14 - father, mother, surviving parent or guardian, or persons having legal charge of
them, in the order mentioned.
- Title IX - Parental authority
CIVIL INTERDICTION
Art. 79. For the validity of any marriage settlements executed by a person
upon whom a sentence of civil interdiction has been pronounced or who is subject to
any other disability, it shall be indispensable for the guardian appointed by a
competent court to be made a party thereto.
C. FORMALITY
Art. 76. In order that any modification in the marriage settlements may be
valid, it must be made before the celebration of the marriage, subject to the
provisions of Articles 66, 67, 128, 135, and 136.
writing, signed by the parties, and executed before the celebration of the marriage.
registry where the marriage contract is recorded as well as in the proper registries of
property.
D. CONFLICT OF LAW
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Art. 80. In the absence if a contrary stipulation in a marriage settlement, the

property relations of the spouses shall be governed by Philippine laws, regardless of
the place of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not
situated in the Philippines and executed in the country where the property is located;
and
(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting properties situated in a foreign country whose laws require
different formalities for their extrinsic validity.
E. EFFECT OF MARRIAGE NOT TAKING PLACE

between the prospective spouses made therein, shall be rendered void if the marriage
does not take place. However, stipulations that do not depend upon the celebration of
the marriage shall be valid.
F. DONATIONS BY REASON OF MARRIAGE
1. before the celebration of marriage

2. in consideration of marriage
3. in favor of one or both of the future spouses
1. Nature
Art. 82. Donations by reason of marriage are those which are made before its
celebration, in consideration of the same, and in favor of one or both of the future
spouses.
Solis v. Barroso
Art. 1279 cannot be applied to donation propter nuptias. Donation propter nuptias
are governed by the rules of ordinary donations. Under Art. 633, for donations of real
property to be valid, it must be contained in a public instrument.(not exceptions in Art.
633 and 622). Art. 1279 presupposes a valid contract...it cannot apply to a donation
propter nuptias conveying real property where form is essential for validity. It may be
inferred from Art. 1333 that there may be a valid DPN even if marriage does not take
place...insofar as it provides that a ground for "revoking" a DPN is that the marriage does
not take place.
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Art. 85. Donations by reason of marriage of property subject to

encumbrances shall be valid. In case of foreclosure of the encumbrance and the
property is sold for less than the total amount of the obligation secured, the donee
shall not be liable for the deficiency. If the property is sold for more than the total
amount of said obligation, the donee shall be entitled to the excess.
Baviera Case:
SERRANO V. SOLOMON [105 P 998 (1959)] - Before the marriage, the future husband
executed a purported donation propter nuptias which provides that (1) he donates all his properties
to his future children, if any; or (2) if there are none and he dies before his wife, one-half of his
properties and those acquired during the marriage shall go to his brothers and sisters; or (3) if
there are no children and his wife dies before him, one half of all his properties and those acquired
during the marriage shall go TO THOSE WHO REARED HIS WIFE (plaintiff). The wife prede-
ceased him and plaintiff filed an action to enforce the donation. There is no valid donation propter
nuptias. While the donation was made before the marriage, it was not made in consideration of
marriage, because marriage was not the only consideration for the donation since other conditions
were imposed; and even if in consideration of the marriage, it was not in favor of one or both of
the spouses, but IN FAVOR OF 3Ps or persons other than the spouses. It is not a valid donation
inter vivos because it was not accepted by the donee in the same or a different instrument. It is not
a donation mortis causa because it did not comply with the formalities of wills. Hence, the
donation is void.
2. Form
Art. 83. These donations are governed by the rules on ordinary donations
established in Title III of Book III of the Civil Code, insofar as they are not modified
by the following articles.
Art. 84. If the future spouses agree upon a regime other than the absolute
community of property, they cannot donate to each other in their marriage
settlements more than one-fifth (1/5) of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.
Art. 748. The donation of a movable may be made orally or in writing.

An oral donatiion requires the simultaneous delivery of the thing or of the document
representing the right donated.
If the value of the personal property donated exceeds five thousand pesos (P5,000), the
donation and the acceptance shall be made in writing. Otherwise, the donation shall be void. (Civil
Code.)
Art. 749. In order that the donation of an immovable may be valid, it must be made
in a public document, specifying therein the property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified
thereof in an authentic form, and this step shall be noted in both instruments.
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Balane: This article applies only if the regime agreed upon is one other than the ACP. If
the regime is ACP, there is really no sense in making DPN's to each other, because DPN's
made between the two become community property. In a CPG and a regime of Absolute
Separation, DPN's made are not communalized.
The ordinary limitations to donations apply. i.e. one cannot donate all of his/her property,
leaving nothing to him/herself.
With regard to future property, a donation may be made only by will, and only as to the
disposable portion.
3. Distinguished from donations inter vivos
a. Consideration and Donee
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect,

between the spouses during the marriage shall be void, except moderate gifts which
the spouses may give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as husband and wife without a
valid marriage.
Balane: This article does not refer to donation propter nuptias.
Matabuena v. Cervantes
The prohibition under Art. 133 of the CC regarding donations made between
spouses during the marriage must apply likewise to a common-law relationship. The
policy behind the law, i.e. to protect the would-be donor spouse from the exercise of
undue and improper pressure and influence by the other spouse, is equally or even more
applicable to the case of common-law relationships.
Art. 82. Donations by reason of marriage are those which are made before its
celebration, in consideration of the same, and in favor of one or both of the future
spouses.
Baviera Cases:
NAZARENO V. BIROG [45 O.G. No. 5, p. 268 (1947)] - A donation made to a grandchild of a
wife by a previous marriage falls under the prohibition Article 133 of the Civil Code (Art. 87,
FC). Said prohibition applies notwithstanding the fact that the provision mentions only legitimate
children. (9 Manresa 236).
MATABUENA V. CERVANTES [38 S 284 (1971)] - While Art. 133 of the Civil Code (Art. 87
FC) considers as void a "donation between the spouses during the marriage," policy considerations
of the most exigent character as well as the dictates of morality require that the same prohibition
should apply to a common-law relationship. Citing Buenaventura v. Bautista, if the policy of the
law is to prohibit donations in favor of the other consort and his descendants because of fear of
undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our
ancient law, then there is every reason to apply the same prohibitive policy to persons living
together as husband and wife without the benefit of nuptials. For it is not to be doubted that assent
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to such irregular connection for thirty years bespeaks greater influence of one party over the other,
so that the danger that the law seeks to avoid is correspondingly increased. Moreover, it would not
be just that such donation should subsist, lest the condition of those who incurrd guilt should turn
out to be better. So long as marriage remains the cornerstone of our family law, reason and
morality alike demand that the disabilities attached to marriage should likewise attach to
concubinage.
b. Revocation
Art. 765. The donation may also be revoked at the instance of the donor, by reason
of ingratitude in the following cases:
(1) If the donee should commit some offense against the person, honor or the
property of the donor, or of his wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal offense, or any act involving
moral turpitude, even though he should prove it, unless the crime or the act has been
committed against the donee himself, his wife or children under his authority;
(3) If he unduly refuses to give him support when the donee is legally or morally
bound to give support to the donor.
Art. 760. Every donation inter vivos, made by a person having no children or
descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be
revoked or reduced as provided in the next article, by the happening of any of these events:
(1) If the donor, after the donation, should have legitimate or legitimated or
illegitimate children, even though they be posthumous;
(2) If the child of the donor, whom the latter believed to be dead when he made the
donation, should turn out to be living;
(3) If the donor should subsequently adopt a minor child. (Civil Code.)
Art. 86. A donation by reason of marriage may be revoked by the donor in

the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio
except donations made in the marriage settlements, which shall be governed by
Article 81;

between the prospective spouses made therein, shall be rendered void if the
marriage does not take place. However, stipulations that do not depend upon the
celebration of the marriage shall be valid.
(2) When the marriage takes place without the consent of the parents or
guardian as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the
provisions of the Civil Code on donations in general.
Baviera: Art. 86 FC compared to Art. 43 FC

Even if marriage does not take place, can be revoked
Need for action to revoke because the law says "may"
If in bad faith, no need for action to revoke, Art. 60 FC, by operation o law.
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Mateo v. Lagua
A donation propter nuptias may be revoked for being inofficious. It is wrong to

say that a donation propter nuptias has an onerous consideration, the marriage in this case
being merely the occasion or motive, not the causa. Being liberalities, they remain subject
to reduction for being inofficious upon the donor's death if it infringes on the legitime of
any of the donor's heirs. The DPN in this case was not annuled in its entirety, but only to
the extent that it infringed on the legitime of the donor's heir.
Note that under Art 43(3), a donation is revoked by operation of law, under the
circumstances therein provided. However, Art. 86(1) provides that any revocation in
elective, not automatic.
Balane: For acts of ingratitude, refer to Art. 765 of the NCC.
Art. 43. The termination of the subsequent marriage referred to in the

preceding Article (Marriage after declaration of presumptive death of absent spouse)
shall produce the following effects:
xxx
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law.
Art. 50. The effects provided for by paragraphs (2), (3), (4), and (5) of Article
43, and 44 shall also apply in the proper cases to marriages which are declared void
ab initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of the
common children, and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the
conjugal partnership shall be notified of the proceedings for liquidiation.
In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102 and 129.
Baviera Case:
SOLIS V. BARROSO [53 P 912 (1928)] - A donation propter nuptias of lands in a private instru-
ment is not valid because the law requires donations of real property to be made in a public
instrument. A donation propter nuptias is not onerous and thus must necessarily be contained in a
public instrument. While the marriage is indeed its consideration it is not so in the sense of being
necessary to give birth to the obligation. In fact, a donation propter nuptias remains valid even if
the marriage does not take place provided it is not revoked within the period allowed by law. The
marriage in donation propter nuptias is rather a resolutory condition which as such presupposes the
existence of the birth of the obligation.
c. Extent of Property Donated
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- as to spouses, not > 1/5 of present property

- as to 3Ps, not limit provided not officious (Art. 750 CC)
Art. 752. The provisions of article 750 notwithstanding, no person may give or
receive, by way of donation, more than he may give or receive by will.
The donation shall be inofficious in all that it may exceed this limitation. (Civil
Code.)
- donee beware that donation revocable!
Art. 750. The donation may comprehend all the present property of the donor, or
part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of the acceptance of the donation, are
by law entitled to be supported by the donor. Without such reservation, the donation shall be
reduced on petition of any person affected. (Civil Code.)
Art. 751. Donations cannot comprehend future property.

By future property is understood anything which the donor cannot dispose of at the
time of the donation. (Civil Code.)
Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing,
and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of
the sum which is disposable by will. (Civil Code.)
Art. 84. If the future spouses agree upon a regime other than the absolute
community of property, they cannot donate to each other in their marriage
settlements more than one-fifth of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.
Baviera Case:
MATEO V. LAGUA [29 S 865 (1969)] - Donations propter nuptias are without onerous
considerations, the marriage being merely the occasion or motive for the donation, not its causa.
Being liberalities, they remain subject to reduction for inofficiousness upon the donor's death, if
they should infringe upon the legitime of a forced heir.
G. ABSOLUTE COMMUNITY
Balane:
There is ACP when:

-there is no marriage settlement
-there is a marriage settlement and the parties agree on ACP
-the marriage settlement is void.
When commences
Art. 88. The absolute community of property between spouses shall

commence at the precise moment that the marriage is celebrated. Any stipulation,
express or implied, for the commencement of the community regime at any other
time shall be void.
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- importance: see Art. 92 (1)
Waiver not allowed
Art. 89. No waiver of rights, interests, shares and effects of the absolute
community of property during the marriage can be made except in case of judicial
separation of property.
When the waiver takes place upon a judicial separation of property, or after
the marriage has been dissolved or annulled, the same shall appear in a public
instrument and shall be recorded as provided in Article 77.
registry where the marriage contract is recorded as well as in the proper registries
of property.
The creditors of the spouse who made such waiver may petition the court
to rescind the waiver to the extent of the amount sufficient to cover the amount of
their credits.
Co-ownership
Art. 90. The provisions on co-ownership shall apply to the absolute

community of property between the spouses in all matters not provided for in this
Chapter.
What Constitutes Community Property
Art. 91. Unless otherwise provided in this Chapter or in the marriage

settlements, the community property shall consist of all the property owned by the
spouses at the time of the celebration of the marriage or acquired thereafter.
Exceptions
Art. 92. The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either
spouse, and the fruits as well as the income thereof, if any, unless it is expressly
provided by the donor, testator or grantor that they shall form part of the
community property;
(2) Property, for personal and exclusive use of either spouse. However,
jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who has
legitimate descendants [under CC - children only, but JBL loved his grandchildren] by a
former marriage, and the fruits as well as the income, if any, of such property.
Baviera: Relate to Art. 51 and 53
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Balane: Suppose A and B married under the Family Code. A inherited from his father
before the marriage and this becomes community property. If A inherits from his mother
during the marriage, this becomes paraphernal property.
The fruits of separate property remain separate under the ACP but become community
property under the CPG.
The following example illustrates an instance where the CPG regime is stricter:
A marries B (ACP). They bring nothing into the marriage. All that they inherit,
they get during the marriage. The property thus inherited is separate, and the fruits thereof
are likewise separate.
Given the same set of facts, except that the governing regime is CPG, what the
spouses inherit during the marriage is separate, but the fruits are communalized. It is in
this sense that the CPG regime is stricter.
Presumption
Art. 93. Property acquired during the marriage is presumed to belong to the
community, unless it is proved that it is one of those excluded therefrom.
Charges Upon and Obligations of the Absolute Community
Art. 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate
children of either spouse; however, the support of illegitimate children shall be
governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator- spouse for the benefit of the community, or by both
spouses, or by one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of
the other to the extent that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs,
upon the community property;
(5) All taxes and expenses for mere preservation made during marriage upon
the separate property of either spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional
or vocational course, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the
benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of
their common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-improvement;
(9) Antenuptial debts of either spouse other than those falling under
paragraph (7) of this Article, the support of illegitimate children of either spouse,
and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case
of absence or insufficiency of the exclusive property of the debtor-spouse, the
payment of which shall be considered as advances to be deducted from the share of
the debtor-spouse upon liquidation of the community; and
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(10) Expenses of litigation between the spouses unless the suit is found to be
groundless.
If the community property is insufficient to cover the foregoing liabilities,
except those falling under paragraph (9), the spouses shall be solidarily liable for the
unpaid balance with their separate properties.
Balane: Liabilities of the ACP.
94.1 in case of illegitimate children of either spouse, the community is only subsidiarily
liable.
94.2 all that is required in this case is a determination of the purpose of the obligation
contracted
Luzon Surety v. De Garcia
Any debt contracted by the husband-administrator with the intention of binding

the community property, must redound to the community property's benefit. Any
obligation incurred by the husband to be chargeable against the community property, must
be incurred in the legitimate pursuit of his career, profession, business, and with an honest
belief that he is doing right for the benefit of the family.
Gelano v. C.A.
It was an error for the court to hold the spouses liable jointly and severally on an
obligation that redounded to the benefit of the community. The community partnership, as
a single and separate entity, should be liable for the obligation.
G-Tractors v. C.A.
The obligation incurred here redounded to the benefit of the community

partnership, and thus was a partnership obligation. The land where the logging concession
was located belonged to the family and not to the husband exclusively. Furthermore, the
obligation was incurred to enhance productivity for the logging business, a commercial
enterprise for gain, which the husband, as administrator had every right to enter into on
behalf of the community partnership. The realization of actual profits and benefit on the
part of the partnership is not required, it being sufficient to show that the transaction
normally benefits the partnership.
Gambling
Art. 95. Whatever may be lost during the marriage in any game of chance,
betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited
by law, shall be borne by the loser and shall not be charged to the community but
any winnings therefrom shall form part of the community property.
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Ownership, Administration, Enjoyment and Disposition of the Community Property
Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly. In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract implementing such
decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other spouse may
assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the written
consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is withdrawn by either or both
offerors.
Baviera: Better: unenforceable until ratified

void tapos = continuing offer - weird (Baviera)
Balane: Ownership, administration, enjoyment and disposition of Community

property...all joint responsibility and right of both spouses. In case of a spouse's
unjustified refusal to give his/her consent, the other may go to court.
There is no provision on alienation and encumbrance but it is understood that the same is
included.
Art. 97. Either spouse may dispose by will of his or her interest in the
community property.
Art. 98. Neither spouse may donate any community property without the
consent of the other. However, either spouse may, without the consent of the other,
make moderate donations from the community property for charity or on occasions
of family rejoicing or family distress.
Balane: All donations must be made jointly, except moderate donations.
Dissolution of Absolute Community Regime
Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under
Articles 134 to 138.
Art. 134. In the absence of an express declaration in the marriage

settlements, the separation of property between spouses during the marriage shall
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not take place except by judicial order. Such judicial separation of property may
either be voluntary or for sufficient cause.
absentee;
(3) That loss of parental authority of the spouse of petitioner has been
decreed by the court;
comply with his or her obligations to the family as provided for in Article 101;
the court for receivership, for judicial separation of property or for authority to be
the sole administrator of the absolute community, subject to such precautionary
conditions as the court may impose.
to give any information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal dwelling.
In the cases provided for in Numbers (1), (2) and (3), the presentation of
the the final judgment against the guilty or absent spouse shall be enough basis for
the grant of the decree of judicial separation of property.
Art. 137. Once the separation of property has been decreed, the absolute
community or the conjugal partnership of gains shall be liquidated in conformity
of this Code.
During the pendency of the proceedings for separation of property, the
absolute community or the conjugal partnership shall pay for the support of the
spouses and their children.
Art. 138. After dissolution of the absolute community or of the conjugal

partnership, the provisions on complete separation property shall apply.
Balane: Note that dissolution of the ACP is not synonymous with dissolution of the
marriage. In cases involving 99.2 and 99.4, there is dissolution of the ACP although the
marriage is not dissolved.
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But dissolution of the marriage automatically results in dissolution of the ACP.
Note that when a marriage is declared as a nullity, there is no ACP to dissolve.

The dissolution in this case is governed by the rules on co-ownership.
In case of liquidation, the following provisions apply:
(1) dissolution under 99.1...Art 103 governs liquidation

(2) dissolution under 99.2...Art 63 and 64 apply (3) dissolution under 99.3...Art 50-52
apply
(4) dissolution under 99.4...Art 134-137 apply
Effect of separation in fact
Art. 100. The separation in fact between husband and wife shall not affect the
regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required
by law, judicial authorization shall be obtained in a summary proceeding;
(added in FC)
(3) In the absence of sufficient community property, the separate property of

both spouses shall be solidarily liable for the support of the family. The spouse
present shall, upon proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other
spouse and use the fruits or proceeds thereof to satisfy the latter's share.
(note: need for judicial authority)
Art. 101. If a spouse without just cause abandons the other or fails to comply
with his or her obligations to the family, the aggrieved spouse may petition the court
for receivership, for judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such precautionary conditions
as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to
marital, parental or property relations.
( Baviera - even if husband gives support)
A spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without intention of returning. The spouse who has left the
Liquidation of the Absolute Community Assets and Liabilities
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How liquidated
Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the
absolute community and the exclusive properties of each spouse.
(2) The debts and obligations of the absolute community shall be paid out of
its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable
for the unpaid balance with their separate properties in accordance with the
provisions of the second paragraph of Article 94.
(Forfeiture of net profits)
Art. 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate
children of either spouse; however, the support of illegitimate children shall be
governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the community, or by both
spouses, or by one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent
of the other to the extent that the family may have been benefitted;
(4) All taxes, liens, charges and expenses, including major or minor
repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during marriage
upon the separate property of either spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a
professional or vocational course, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to
the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of
their common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-
improvement;
(9) Antenuptial debts of either spouse other than those falling under
paragraph (7) of this Article, the support of illegitimate children of either spouse,
and liabilities incurred by either spouse by reason of a crime of a quasi-delict, in
case of absence or insufficiency of the exclusive property of the debtor-spouse, the
payment of which shall be considered as advances to be deducted from the share of
the debtor-spouse upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the suit is found to
be groundless.
If the community property is insufficient to cover the foregoing liabilities,
except those falling under paragraph (9), the spouses shall be solidarily liable for
the unpaid balance with their separate propertied.)
(3) Whatever remains of the exclusive properties of the spouses shall

thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between husband and wife,
unless a different proportion or division was agreed upon in the marriage
settlements, or unless there has been a voluntary waiver of such share as provided in
this Code. For purposes of computing the net profits subject to forfeiture in
accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the
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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.
Art. 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership, as
the case may be, shall be dissolved and liquidated, but if either spouse contracted
said marriage in bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in favor of the
common children or if there are none, the children of the guilty spouse by a
previous marriage or, in default of children, the innocent spouse.
Art. 63. The decree of legal separation shall have the following effects:
xxx
(2) The absolute community or the conjugal partnership shall be dissolved
and liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of Article 43 (2).
xxx.)
(5) The presumptive legitimes of the common children shall be delivered

upon partition, in accordance with Article 51.
Art. 51. In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment of the trial court,
shall be delivered in cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already provided for such matters.
The children or their guardian, or the trustee of their property may ask
for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no
way prejudice the ultimate successional rights of the children accruing upon the
death of either or both of the parents; but the value of the properties already
received under the decree of annulment or absolute nullity shall be considered as
advances on their legitime. )
(6) Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is no such majority, the court
shall decide, taking into consideration the best interests of said children.
Balane: Basic steps in liquidation:
1) inventory (Art. 102)

-3 sets: community property
list of separate property of wife
list of separate property of husband
2) payment of community debts

pay out of community assets first...if not enough, then pay out of separate property...the
husband and the wife shall be solidarily liable
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3) deliver to each spouse his or her respective share
4) division of the net community assets

-note the special rule with regard to the family home...also take note that even after
death,the family home remains undivided.
5) delivery of presumptive legitimes
The presumptive legitimes are given in the following cases:

1) reappearance of former spouse (102.5; 43.2) which terminates the second marriage
2) annulment, not the declaration of nullity, of the marriage
3) legal separation (102.5;63.2)
4) other cases of dissolution of the ACP/CPG
Effect of death
Art. 103. Upon the termination of the marriage by death, the community
property shall be liquidated in the same proceeding for the settlement of the estate of
the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall
liquidate the community property either judicially or extra-judicially within one year
from the death of the deceased spouse. If upon the lapse of the said period, no
liquidation is made, any disposition or encumbrance involving the community
property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without
compliance with the foregoing requirements, a mandatory regime of complete
separation of property shall govern the property relations of the subsequent
marriage.
Balane: Liquidation of the ACP may be done in the settlement proceedings of the
deceased spouse's estate. Liquidation in such a case (death) may likewise be done
judicially or extrajudicially. The law requires that liquidation be done within one(1) year
from death...if not: any disposition or encumbrance is VOID (103.2) and the subsequent
marriage shall be made subject to a mandatory regime of separation of property...the 2nd
marriage shall be valid, but subject to mandatory absolute separation of property.
Art. 104. Whenever the liquidation of the community properties of two or

more marriages contracted by the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits and income of each
community shall be determined upon such proof as may be considered according to
the rules of evidence. In case of doubt as to which community the existing properties
belong, the same shall be divided between the different communities in proportion to
the capital and duration of each.
Baviera: No actual case yet
Balane: The application of this article is possible only for marriages contracted before 3
August 1988.
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E.G.
1955 A married B
A died
ACP/CPG was not liquidated
1965 B remarried to C
1995 C died
B wants to liquidate both marriages. He will then have to apply Art. 104. For property
whose origin he is unsure of, the ratio/proportion; peso/years formula may be used.
x = no. of years of marriage 1

y = capital of marriage 1
A = duration of marriage 2
B = capital of marriage 2
x = 8 years
y = P2 M
A = 30
B = P3 M
formula:
xy
x value of the property = share of marriage 1
xy + AB
AB
x value of the property = share of marriage 2
xy = AB
Note that in cases of marriages under the Family Code made subject to mandatory absolute
separation, Art. 104 will never apply.
H. CONJUGAL PARTNERSHIP OF GAINS
General Provisions
Art. 105. In case the future spouses agree in the marriage settlements that the
regime of conjugal partnership of gains shall govern their property relations during the
marriage, the provisions in this Chapter shall be of supplementary applicaion.
The provisions of this Chapter shall also apply to conjugal partnerships of gains
already established between spouses before the effectivity of this Code, without prejudice to
vested rights already acquired in accordance with the Civil Code or other laws, as provided
in Article 256.
Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil Code or
other laws.
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Art. 106. Under the regime of conjugal partnership of gains, the husband and wife
place in a common fund the proceeds, products, fruits and income from their separate
properties and those acquired by either or both spouses through their efforts or by chance,
and upon dissolution of the marriage or of the partnership, the net gains or benefits
obtained by either or both spouses shall be divided equally between them, unless otherwise
agreed in the marriage settlements.
Balane: Note that at the start of the marriage, the common fund is at 0 balance.
Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal
partnership of gains.
Art. 88. The absolute community of property between spouses shall

commence at the precise moment that the marriage is celebrated. Any stipulation,
express or implied, for the commencement of the community regime at any other
time shall be void.
Art. 89. No waiver of rights, interests, shares and effects of the absolute
community of property, or after the marriage has been dissolved or annulled, the
same shall appear in a public instrument and shall be recorded as provided in
Article 77. The creditors who made such waiver may petition the court to rescind
the waiver to the extent of the amount sufficient to cover the amount of their
credits.
Art. 77. The marriage settlements and any modificayion thereof shall be in
They shall not prejudice third persons unless registered in the local civil registry
where the marriage contract is recorded as well as in the proper registries of
property.
Art. 108. The conjugal partnership shall be governed by the rules on the contract of
partnership in all that is not in conflict with what is expressly determined in this Chapter
or by the spouses in their marriage settlements.
Ansaldo v. Sheriff
The bank accounts garnished herein were conjugal property and the same may not be
levied upon to pay for personal obligations. The money in the bank accounts were earned as
fruits derived from paraphernal property. As such, they became assets of the conjugal
partnership. No proof was shown here that the obligations were contracted for the benefit of the
partnership. Furthermore, the sheriff may not levy on 1/2 of the amount in these accounts as the
supposed share of the husband. A spouse's share in the conjugal assets is merely inchoate and
cannot be determined until after dissolution of the partnership.
Exclusive Property of Each Spouse
Art. 109. The following shall be the exclusive property of each spouse:
(1) That which is brought to the marriage as his or her own; [PLATA V. YATCO]
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(2) That which each acquires during the marriage by gratuitous title;
(3) That which is acquired by right of redemption, by barter or by exchange with
property belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband.
Castillo v. Pasco
The fishpond is 1/6 paraphernal and 5/6 conjugal. The first P1000 was paid out of the
paraphernal property of the wife. Of this amount, P600 was a debt owed to the wife by the
vendor. It is presumed that this debt could bind only the wife since there was no showing that
the husband authorized the wife to contract this debt. The P400 was paid out of proceeds from
the sale of the wife's paraphernal property. The rest of the purchase price was paid out of
partnership funds. The fact that the loan entered into to pay this purchase price was secured by
mortgages over paraphernal property belonging to the wife did not make these obligations (loans)
paraphernal. The mortgage was merely an accessory obligation. The principal obligation which
is the loan pertained to the conjugal partnership.
Balane: Although the terms are used interchangeably, the technical definitions of the following
terms are as follows:
paraphernal property: exclusive property of the wife

capital: exclusive property of the husband.
The owner has absolute dominion over his separate property.
With regard to separate property, the owner spouse may sue alone. With regard to the fruits of
such separate property, since the same belongs to the partnership, both spouses must join in ini-
tiating suit.
e.g. In a case where the separate property is being leased out...the owner spouse may sue alone
for eviction, but must be joined by the other spouse in a suit over rentals.
Art. 110. The spouses retain ownership, possession, administration and enjoyment
of their exclusive properties.
Either spouse may, during the marriage, transfer the administration of his or her
exclusive property to the other by means of a public instrument, which shall be recorded in
the registry of property of the place where the property is located.
Ong v. CA
The mere use of the surname of the husband in the tax declaration of the subject property
is not sufficient proof that said property was acquired during the marriage and is therefore conju-
gal. It is undisputed that the subject parcel of land was declared solely in the wife's name,
although the house built thereon was declared in the name of the spouses. Under such circum-
stances, the Court held that the subject lot was the paraphernal property of the wife and thus
liable for her personal debts.
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Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of
his or her exclusive property, without the consent of the other spouse, and appear alone in
court to litigate with regard to the same.
Lim Queco v. Cartagena (Spanish case)
Palanca v. Smith Bell
When a loan is negotiated by a husband upon property belonging to his wife, with the
consent of the latter, the money becomes conjugal property, and if the funds are later invested in
the construction of a house, the building is likewise conjugal property and is liable for debts of
the husband. The property in question was a parcel of land belonging to the wife which was
given by the husband as a guaranty for a loan contracted by him. The money obtained through
the loan was later used for the construction of the house.
Balane: The proceeds of the loan pertain to the borrower. The borrower in this case was the
partnership, regardless of the fact that the separate property of the wife was used as a security in
obtaining the loan.
Art. 112. The alienation of any exclusive property of a spouse administered by the
other automatically terminates the administration over such property and the proceeds of
the alienation shall be turned over to the owner-spouse.
Art. 113. Property donated or left by will to the spouses, jointly and with
designation of determinate shares, shall pertain to the donee-spouse as his or her own
exclusive property, and in the absence of designation, share and share alike, without
prejudice to the right of accretion when proper.
Art. 753. When a donation is made to several persons jointly, it is understood to be in equal
shares, and there shall be no right of accretion among them, unless the donor has otherwise
provided.
The preceding paragraph shall not be applicable to donations made to the husband and
wife jointly, between whom there shall be a right of accretion, if the contrary has not been provided
by the donor. (Civil Code.)
Accretion - The right of heirs or legatees to unite or aggregate with their shares or
portions of the estate the portion of any co-heir or legatee who refuses to accept it, fails to
comply with a condition, becomes incapacitated to inherit, or dies before, the testator. (Black's
Law Dictionary, p. 19)
Art. 114. If the donations are onerous, the amount of the charges shall be borne by
the exclusive property of the donee-spouse, whenever they have been advanced by the
conjugal partnership of gains.
Art. 115. Retirement, benefits, pensions, pensions, annuities, gratuities, usufructs

and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as
may be proper in each case.
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Conjugal Partnership Property
Art. 116. All property acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved.
Torela v. Torela
While it is true that all property acquired during the marriage is presumed to be conjugal,
as above stated, nonetheless, the party who invokes the presumption must first prove that the
property was acquired during the marriage. This proof is a condition sine qua non for the
application of the presumption.
Mendoza v. Reyes
The presumption of conjugality is a strong one. Proof of acquisition of the property in

dispute during the marriage suffices to render the statutory presumption operative.
Magallon v. Montejo
The presumption of conjugality does not apply in a case where there is no proof of
marriage between the spouses.
Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense of the
common fund, whether the acquisition be for the partnership, or for only one of the
spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of
the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage
from the common property, as well as the net fruits from the exclusive property of each
spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the
number of each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or
betting.
However, losses therefrom shall be borne exclusively by the loser-spouse.
Cheesman v. IAC
Even if the wife used conjugal funds to purchase the lot in question, petitioner, who is an
alien, cannot recover or hold the lot so acquired in view of the constitutional prohibition against
aliens acquiring residential lots other than by hereditary succession. He therefore had no
personality to question the subsequent sale of the same property by his wife on the theory that in
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so doing, he is merely exercising the prerogative of a husband in respect to conjugal property.

To sustain such a theory would permit indirect controversion of the constitutional prohibition.
Balane: Under 117.1, where conjugal funds were spent, then the property acquired belongs to the
partnership
except: 109.3 (pacto de retro acquisition where the right to redemption belongs to one spouse)
Art. 118. Property bought on installments paid partly from exclusive funds of either
or both spouses and partly from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed by the owner or or owner's
upon liquidation of the partnership.
Art. 118
Notes: in case of property bought on installment, partly from exclusive property and partly
from conjugal funds, the test to determine ownership is to look at when ownership vested.
If ownership vested before marriage, then the property is exclusive

if ownership vested after marriage, then property is conjugal.
e.g.
1985 - A buys property from BF payable in installments...A pays installments with
exclusive property
1990 - A marries B. The subsequent amortizations on the property are then paid with
conjugal funds.
Test: when title was vested.

if title was vested before 1990, then the property is exclusive.
if title was vested only after full payment of amortizations, then the property is conjugal.
Art. 119. Whenever an amount or credit payable within a period of time belongs to
one of the spouses, the sums which may be collected during the marriage in partial
payments or by installments on the principal shall be the exclusive property of the spouse.
However, interests falling due during the marriage on the principal shall belong to the
conjugal partnership.
Balane: Test os when is payment due.
Suppose: A lent P1M to B

in the promissory note, it is stipulated that payment shall be on 100 equal monthly
installments and that interest shall be at 20% p.a.
payments start on Oct 1985
A marries B in August 1986
all installments due before August 1986 are paraphernal

for installments due after August 1986:
principal is exclusive property
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interest during the marriage pertain to the partnership...

already civil fruits.
Art. 120. The ownership of improvements, whether for utility or adornment, made
on the separate property of the spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the
original owner-spouse, subject to the following rules:
When the cost of the improvement made by the conjugal partnership and any
resulting increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the owner-spouse at
the time of the improvement; otherwise, said property shall be retained in ownership by
the owner-spouse, likewise subject to reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal
partnership.
Caltex v. Felias
A lot belonging to the parents and later donated by them to their daughter is
paraphernal property, and the rule applicable with respect to the building constructed
thereon before the donation is that of accessory following the principal. The donation
transmitted to her the rights of a landowner over a building constructed on it.
Padilla v. Padilla
The mere construction of a building from common funds does not automatically
convey the ownership of the wife's land (paraphernal) to the conjugal partnership. The
ownership of the land is retained by the wife until she is paid the value of the lot as a result
of the liquidation of the conjugal partnership. The partnerhip maintains a usufructuary
right over the said property during the marriage and until liquidation.
Padilla v. Paterno
The separate properties in this case never became conjugal because the conjugal
improvements constructed thereon were destroyed before the value of the paraphernal land
on which these improvements were erected was paid to the spouse who owned the
paraphernal land. As held in Padilla v. Padilla, payment of such value occurs only at final
liquidation.
Canullas v. Fortun
Where a conjugal house is constructed on land belonging exclusively to the

husband, the land ipso facto becomes conjugal, but the husband is entitled to
reimbursement of the value of the land. The conversion from paraphernal to conjugal
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assets should be deemed to retroact to the time the conjugal buildings were first
constructed thereon. They cannot be considered to have become conjugal only as of the
time their values were paid to the estate of the widow because by that time, the conjugal
partnership no longer existed and it could not acquire the ownership of said properties.
Balane: 'Plus value' refers to what the improvement contributes to the increase in the
value of the whole thing.
Suppose: land P3M

irrigation ditches P2M
but because of the irrigation ditches, the value of the land increases to P4.8M
the plus value in this case is P1.8M
the net value of the improvement in P3.8 M
in this case, the entire property becomes conjugal.
Under the Family Code, the value to be paid as reimbursement shall be such value at the
time of improvement...in this sense, the Family Code departs from the Padilla ruling
Whether or not the FC modifies the Padilla ruling insofar as it held that ownership shall
vest only after full payment at the time of liquidation...Balane is unsure.
Art. 120 applies only on the assumption that the improvement exists at the time of
liquidation...if the property is destroyed before liquidation, then 120 does not apply.
If prior to dissolution, the property and the improvement thereon is sold--then the right of
the CPG under 120 follows the property...the right of the CPG under 120 is inchoate.
Notes:
The following are the steps to be followed in liquidating the CPG:
1. inventory of CP assets
2. restitution of advances made to each spouse e.g. Art. 122.3
3. payment of debts to each spouse e.g. Art. 120
4. payment of obligations to 3rd parties
5. delivery of exclusive properties
6. payment of losses and deterioration of movables belonging to each spouse
reason: CPG is a mere usufructuary of separate properties...not true for ACP
7. division
8. delivery of presumptive legitimes
Charges Upon and Obligations of the Conjugal Partnership
Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouses, their common children, and the legitimate children
of either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator- spouse for the benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the
other to the extent that the family may have been benefited;
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(4) All taxes, liens, charges and expenses, including major or minor repairs upon
the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon
the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional,
vocational, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit
of the family;
(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-improvement; and
groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the
spouses shall be solidarily liable for the unpaid balance with their separate properties.
Mariano v. CA
The action filed by plaintiff was incidental to the business in which the defendant
was engaged. The conjugal partnership of defendant Esther and Daniel was liable for
debts and obligations contracted by Esther in her business since the income derived
therefrom, having been used to defray some of the expenses for the maintenance of the
family and the education of the children, had redounded to the benefit of the partnership.
Art. 122. The payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal partnership except
insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged
to the partnership.
However, the payment of personal debts contracted by either spouse before the
marriage, that of fines and indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced against the partnership assets after
the responsibilities enumerated in the preceding Article have been covered, if the exclusive
property or if it should have no exclusive property or if it should be insufficient; but at the
time of the liquidation of the partnership, such spouse shall be charged for what has been
paid for the purposes above-mentioned.
People v. Lagrimas
Fines and pecuniary indemnities imposed upon the spouses may be charged
against the partnership assets even before the liquidation of the partnership. The
termination of the conjugal partnership is not contemplated as a prerequisite before such
obligations should be paid. If made payable only after liquidation, then the effect would be
to exempt the accused from civil liability and the heirs of the offended party would be
made to suffer still further.
Art. 123. Whatever may be lost during the marriage in any game of chance, or in
betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by
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law, shall be borne by loser and shall not be charged to the conjugal partnership but any
winnings therefrom shall form part of the conjugal partnership property.
Administration of the Conjugal Partnership Property
Art. 124. The administration and enjoyment of the conjugal partnership property
shall belong to both spouses jointly. In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for proper remedy, which must be
availed within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in
the administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance
which must have the authority of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the offer is withdrawn by either or
both offerors.
Art. 125. Neither spouse may donate any conjugal partnership property without
the consent of the other. However, either spouse may, without the consent of the other,
make moderate donations from the conjugal partnership property for charity or on
occasions of family rejoicing or family distress.
Dissolution of Conjugal Partnership Regime
Art. 126. The conjugal partnership terminates:

(3) When the marriage is annulled or decreed void;
(4) In case of judicial separation of property during the marriage under Articles
134 to 138.
Art. 134. In the absence of an express declaration in the marriage

settlements, the separation of property between spouses during the marriage shall
not take place except by judicial order. Such judicial separation of property may
either be voluntary or for sufficient cause.
absentee;
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In the cases provided for in Numbers (1), (2), (3), the presentation of the
final judgment against the guilty or absent spouse shall be enough basis for the
community or the conjugal partnerhsip of gains shall be liquidated in conformity
with this Code.

partnership, the provisions on complete separation of property shall apply.
regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just
cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property
of both spouses shall be solidarily liable for the support of the family. The spouse present
shall, upon petition in a summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share.
Art. 128. If a spouse without just cause abandons the other or fails to comply with
his or her obligations to the family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for authority to be the sole
administrator of the conjugal partnership property, subject to such precautionary
marital parental or property relations.
conjugal dwelling without intention of returning. The spouse who has left the conjugal
dwelling for a period of 3 months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling.
Partosa-Jo v. CA
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Abandonment implies a departure by one spouse with the avowed intent never to
return, followed by a prolonged absence without just cause, and without in the meantime
providing in the least for one's family although able to do so. There must be absolute
cessation of marital relations, duties and rights, with the intention of perpetual separation.
In this case, physical separation, coupled with the refusal by the private respondent to
give support to the petitioner, sufficed to constitute abandonment as a ground for judicial
separation of their conjugal property.
Liquidation of the Conjugal Partnership Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal partnership regime, the following
conjugal partnership and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal debts
and obligations of either spouse shall be credited to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the
acquisition of property or for the value of his or her exclusive property, the ownership of
which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable
for the unpaid balance with their separate properties, in accordance with the provisions of
paragraph (2) of Article 121.
Art. 121. xxx

If the conjugal partnership is insufficient to cover the foregoing liabilities,
the spouses shall be solidarily liable for the unpaid balance with their separate
properties.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the family, belonging to either spouse,
even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the
profits, which shall be divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as provided in this Code.
(8) The presumptive legitimes of the common children shall be delivered upon
partition in accordance with Article 51.
The children or their guardian, or the trustee of their property, may ask
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advances on their legitime.)
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is
situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the age
of seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking into
consideration the best interests of said children.
Art. 130. Upon the termination of the marriage by death, the conjugal partnership
property shall be liquidated in the same proceeding for the settlement of the estate of the
deceased.
liquidate the conjugal partnership property either judicially or extra-judicially within one
year from the death of the deceased spouse. If upon the lapse of the said period no
liquidation is made, any disposition or encumbrance involving the conjugal partnership
Should the surviving spouse contract a subsequent marriage without compliance
with the foregoing requirements, a mandatory regime of complete separation of property
shall govern the property relations of the subsequent marriage.
Art. 131. Whenever the liquidation of the conjugal partnership properties of two or
more marriages contracted by the same person before the effectivity of this Code is carried
out simultaneously, the respective capital, fruits and income of each partnership shall be
determined upon such proof as may be considered according to the rules of evidence. In
case of doubt as to which partnership the existing properties belong, the same shall be
divided between and among the different partnerships in proportion to the capital and
duration of each.
Art. 132. The Rules of Court on the administration of estates of deceased persons
shall be observed in the appraisal and sale of property of the conjugal partnership, and
other matters which are not expressly determined in this Chapter.
Art. 133. From the common mass of property support shall be given to the
surviving spouse and to the children during the liquidation of the inventoried property and
until what belongs to them is delivered; but from this shall be deducted that amount
received for support which exceeds the fruits or rents pertaining to them.
1. Exclusive Properties of Each Spouse
Art. 109. The following shall be the exclusive property of each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by gratuitous title;
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(3) That which is acquired by right of redemption, by barter or by exchange with

property belonging to only one of the spouses; [PLATA V. YATCO] and
(4) That which is purchased with exclusive money of the wife or of the husband.
Art. 110. The spouses retain ownership, possession, administration and enjoyment
of their exclusive properties.
Either spouse may, during the marriage, transfer the administration of his or her
exclusive property to the other by means of a public instrument, which shall be recorded in
the registry of property of the place where the property is located.
Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of
his or her exclusive property, without the consent of the other spouse, and appear alone in
court to litigate with regard to the same.
Art. 112. The alienation of any exclusive property of a spouse administered by the
other automatically terminates the administration over such property and the proceeds of
the alienation shall be turned over to the owner-spouse.
Art. 113. Property donated or left by will to the spouses, jointly and with
designation of determinate shares, shall pertain to the donee-spouse as his or her own
exclusive property, and in the absence of designation, share and share alike, without
prejudice to the right of accretion when proper.
Art. 753. When a donation is made to several persons jointly, it is understood to be in

equal shares, and there shall be no right of accretion among them, unless the donor has otherwise
provided.
The preceding paragraph shall not be applicable to donations made to the husband and
wife jointly, between whom there shall be a right of accretion, if the contrary has not been provided
by the donor. (Civil Code.)
Accretion - The right of heirs or legatees to unite or aggregate with their shares or
portions of the estate the portion of any co-heir or legatee who refuses to accept it, fails to
comply with a condition, becomes incapacitated to inherit, or dies before, the testator. (Black's
Law Dictionary, p. 19)
Art. 114. If the donations are onerous, the amount of the charges shall be borne by
the exclusive property of the donee-spouse, whenever they have been advanced by the
conjugal partnership of gains.
Art. 115. Retirement, benefits, pensions, pensions, annuities, gratuities, usufructs

and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as
may be proper in each case.
Baviera Case:
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PLATA V. YATCO [12 S 718 (1964)] - Where the wife, during the marriage reacquired paraphernal
property previosly sold before the marriage, and mortgaged the same to a 3P, with the husband as co-
mortgagor, and later the property was extrajudicially foreclosed by the mortgagee who filed an illegal
detainer case against the husband alone, the wife is not bound by the detainer judgment against her
husband.
(1) The conveyance of paraphernal property of the wife to a third person and its reconveyance
back to her several months afterwards, does not transform it to conjugal property, in the absence of proof
that the money paid in the reconveyance came from conjugal funds.
(2) Where a piece of land is paraphernal in origin, the fact that the husband signed a mortgag
deed thereof as a co-mortgagor does not by itself alone suffice to convert it into conjugal property.
(3) An illegal detainer judgment against the husband alone over a piece of land paraphernal in
character can not bind nor affect the wife's possession thereof.
(4) A wife not made party defendant to an eviction suit against the husband over possession of
land which is paraphernal property of the wife, could validly ignore the judgment of eviction against her
husband, and it was no contempt of court for her to do so, because the writ of execution was not lawful
against her.
a. Property acquired by right of redemption or exchange with exclusive property of spouse
Baviera Case:
ROSETE V. PROV. SHERIFF [96 P 560 (1954)] - Where the husband was a judgment debtor and
conjugal property consisting of lands were levied upon, and the wife redeemed the same with funds
borrowed from her father, such properties have become paraphernal and could no longer be subject of
levy for the second time. The wife redeemed the properties, not in behalf of her husband, but as successor
in interest in the whole or part of the property, it being then conjugal. The term "successor-in-interest"
includes one who succeeds to the interest of the debtor by operation of law or the wife as regards her
husband's homestead by reason o the fact that some portion of her husband's title passes to her.
2. Conjugal Property
Art. 116. All property acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved.
Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense of the common
fund, whether the acquisition be for the partnership, or for only one of the spouses;
[ZULUETA V. PANAM]
(2) Those obtained from the labor, industry, work or profession of either or both of the
spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from
the common property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found; [accretion]
(5) Those acquired through occupation such as fishing or hunting;
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(6) Livestock existing upon the dissolution of the partnership in excess of the number
of each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting.
However, losses therefrom shall be borne exclusively by the loser-spouse.
Baviera Cases:
CASTILLO V. PASCO [11 S 102 (1964)] - Where the wife and her third husband purchased a fishpond
for the amount of P6,000, the P1,000 coming partly from the wife's funds and partly as set-off of a debt
owing to her, the P2,000 coming from a loan obtained by the spouses with the fishpond as collateral, and
P3,000 coming from a loan obtained by both spouses secured by the wife's properties, and upon the death
of the husband, the heirs of the husband (by a previous marriage) filed an action for partition and
accounting, the SC held that 1/6 of the fishpond belongs to the wife as her paraphernal property, and 5/6
as conjugal property since the funds were obtained from loans secured by both spouses.
(1) Under the Spanish Civil Code, the property acquired for onerous consideration during the
marriag was deemed conjugal or separate property depending on the source of the funds employed for its
acquisition, irrespective of whose name the property was acquired.
(2) Property acquired partly with paraphernal property and partly with conjugal funds is held to
belong to both patrimonies in common, in proportion to the contributions of each of the total purchase
price.
(3) The payment by the widow, after her husband's death, wh her private funds of a loan to the
conjugal partnership secured by her paraphernal property, the proceeds of which were used to acquire
property during coverture under the Old Civil Code, does not result in increasing her share in said
property but only in creating a LIEN in her favor over the undivided share of the conjugal partnership in
the property so acquired for the repayment of the amount she had advanced.
ZULUETA V. PANAM [49 S 1 (1975)] - Where the Zulueta family filed an action for breach of contract
of carriage against an airline company and won, but pending appeal the wife entered into a compromise
agreement with the airline company for P50,000, such agreement is not binding on the conjugal
partnership without the husband's consent. However, the court ordered that the amount paid to the wife
be deducted from the aggregate award made in favor of plaintiffs, since upon liquidation of the conjugal
partnership, such amount would be due her anyway. Considering that the damages arose out of a breach
of contract of carriage for which plaintiffs paid their fare with funds presumably belonging to the
conjugal partnership, the said damages fall under the enumeration of conjugal property acquired by
onerous title during the marriage at the expense of the common fund.
a. Bought on installments (NA TO PAYMENTS IN FULL)
Art. 118. Property bought on installments paid partly from exclusive funds of either
or both spouses and partly from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the conjugal partnership if such
ownership was vested during the marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed by the owner or owner upon
liquidation of the partnership.
Baviera Cases:
JOVELLANOS V. CA [210 S 126 (1992)] - Where during the first marriage, the husband purchased a
house and lot and paid the installments from conjugal funds, and remarried when his first wife died, and
continued to make installment payments during the second marriage during which a Deed of Absolute
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Sale was issued in his name, the property belongs to the conjugal partnership of the second marriage,
subject to reimbursements for the amounts paid from the conjugal funds of the first marriage.
Baviera: Unfair because the rights of the heirs of the first marriage became vested upon the death
of their mother, the property should have been divided accordingly. Although subject to
reimbursement, the property was already part of the first CPG.
Historical Background:
PLATA V. YATCO, supra - In this case, the wife purchased property not on installment basis but on full
payment basis, the property thus becoming her paraphernal property. The mere fact that she sold it
previous to the marriage and reacquired it during the marriage does not transform paraphernal property to
conjugal property in the absence of proof that the funds used to repurchase the property came from the
conjugal funds.
ALVAREZ V. ESPIRITU [14 S 893 (1965)] - Where the wife acquired land under the Friar Lands Act
by installment, and continued making payments during her marriage from conjugal funds, during which
she completed the payments, the property remains her paraphernal property because of the exceptiona
provision in the Friar Lands Act that ownership vests upon the payment of the first installment. Hence,
the conjugal partnership would only be entitled to reimbursement for the installments paid by the
conjugal partnership during liquidation. (Lorenzo v. Nicolas, 91 P 686).
Baviera: As distinguished from the Jovellanos case, which involved a PACTUM RESERVATI
DOMINI, or contractual reservation of title, where there is a stipulation that even if property is
delivered to the buyer, ownership remains with the seller until full payment of the price is made.
b. Improvements at expense of conjugal funds or through work or industry of a spouse
Art. 120. The ownership of improvements, whether for utility or adornment, made
on the separate property of the spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the
original owner- spouse, subject to the following rules:
When the cost of the improvement made by the conjugal partnership and any
resulting increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the owner-spouse at
the time of the improvement; otherwise, said property shall be retained in ownership by
the owner-spouse, likewise subject to reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal
partnership.
Baviera Cases
HISTORICAL BACKGROUND
VITUG V. MONTEMAYOR [93 P 939 (1953)] - Where during the second marriage, the second wife
inherited land valued at P9,000 which was converted into a fishpond and sold at profit (P116,000), the
proceeds of which were used to buy 30 parcels of land, the latter lands belong to the conjugal partnership,
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and the heir of the husband by his first marriage shall be entitled to one-half of such lands. Since the
value of the improvements on the paraphernal property of the wife exceeded its original value, the entire
property became conjugal property subject to reimbursement of the value of the paraphernal property at
the time of liquidation of the conjugal partnership.
MARAMBA V. LOZANO [20 S 474 (1967)] - Since there is no showing that the property was acquired
during the marriage, the fact that the title is in the wife's name determines that it is paraphernal property.
The construction of a house built from conjugal funds on the exclusive property of one of the spouses
does not automatcally make it conjugal. It is true that in the meantime, the conjugal partnership may use
both the land and the building, but it does not so as owner but in the snse of the right of usufruct.
The land belonging to one of the spouses upon which the spouses have built a house becomes conjugal
property only when the conjugal partnership is LIQUIDATED and the INDEMNITY PAID to the owner
of the land.
However, see CANULLAS V. FORTUN
CALTEX V. FELIAS [108 P 873 (1960)] - Where the husband and wife constructed a building on land
belonging to her parents, and the land was later donated to the wife, the building and the lot are not
conjugal property. Article 1404 par. 2 of the OCC (Art. 158 CC, now Art. 120 FC) refers to a building
constructed on LAND BELONGING TO ONE OF THE SPOUSES, however at the time the building was
constructed, the lot belonged to the parents of the wife. The rule applicable with respect to the building
constructed thereon before the donation is that of accessory following the principal. The donation
transmitted to her the rights of a landowner over a building constructed on it. As such, the lot and the
building are not answerable for the obligations of the husband.
DOMINADO V. DERAYUNAN [49 S 452 (1926)] - To the owner of realty also belongs, by right of
accession, the improvements made thereon. Buildings, crops and other improvements upon the land
belong to the owner of the realty. To this rule there is an exception in case of married persons. Par. 2 of
Art. 1404 CC (now Art. 120, FC) provides that buildings constructed during the marriage, on land
belonging to one of the spouses, are conjugal property, but the owner of the realty shall be entitled to
credit for the value of the land. This exception, however, is limited to buildings and does not apply to
crops and other improvements, with respect to which the general rule applies. Expenses incurred in
making such crops and improvements are conjuga expenses, for which the conjugal property must be
reimbursed. [Tabotabo v. Molero, 22 P 418]
NOTE: ART. 120 only refers to "BUILDINGS" not crops
CANULLAS V. FORTUN [129 S 675 (1984)] - The Canullas family lived in a house owned by the hus-
band's father. When the latter died, the husband inherited the land, but later abandoned his family to live
with a concubine to whom he sold the land. Upon the husband's death, the concubine filed an action to
quiet title, which the wife opposed on the ground that the house and coconut trees planted on the land
came from conjugal funds and therefore became conjugal property. The SC annulled the sale to the
concubine, considering that the construction of the house on the exclusive property of the husband IPSO
FACTO made the land conjugal property, with the conjugal partnership liable to the husband for the
value of the land, to be reimbursed at liquidation of the CPG.
The better rule than Maramba v. Lozano, is Padilla v. Paterno, which held that the conversion of
the paraphernal properties to conjugal assets should be deemed to retroact to the time the conjugal
buildings were first constructed thereon or at the very least, to the time immediately before the death of
the owner spouse that ended the conjugal partnership. They can not be considered to have become
conjugal property only as of the time their values were paid to the estate of the deceased spouse because
by that time the conjugal partnership no longer existed and it could not acquire the ownership of said
properties. The acquisition by the partnership of these properties was subject to the suspensive condition
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that their values would be reimbursed to the owner spouse at the liquidation of the conjugal partnership;
once paid, the effects of the fulfillment of the condition should be deemed to retroact to the date the
obigation was constituted. [Art. 1187, NCC].
Baviera: This cannot be applied because there is no conjugal partnership of the first marriage
which has been dissolved, nor has there been a reimbursement yet. But the SC made a
somersault to do justice and remove the land from the hands of the concubine. The cited decision
in Padilla was taken out of context since it was not even the ratio but a mere statement of JBL
Reyes.
3. Obligations and Charges of Conjugal Partnership
Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouses, their common children, and the legitimate children
of either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator- spouse for the benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the
other to the extent that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs upon
the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon
the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional,
vocational, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit
of the family;
(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-improvement; and
groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the
spouses shall be solidarily liable for the unpaid balance with their separate properties.
Art. 123. Whatever may be lost during the marriage in any game of chance, or in
betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by
law, shall be borne by the loser and shall not be charged to the conjugal partnership but
any winnings therefrom shall form part of the conjugal partnership property.
a. Contractual Obligations assumed by either spouse
Art. 122. The payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal partnership except
insofar as they redounded to the benefit of the family.
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Neither shall the fines and pecuniary indemnities imposed upon them be charged
to the partnership.
However, the payment of personal debts contracted by either spouse before the
marriage, that of fines and indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced against the partnership assets after
the responsibilities enumerated in the preceding Article have been covered, if the exclusive
property or if it should have no exclusive property or if it should be insufficient; but at the
time of the liquidation of the partnership, such spouse shall be charged for what has been
paid for the purposes above-mentioned.
Baviera Cases:
CUATICO V. MORALES [61 O.G. 869 (1964)] - Where the husband contracted a loan, signing the
promissory note alone, and where no benefit to the family was shown, in a collection suit later filed
against the husband, where the creditor won and sought to attach the husband's salaries, the SC held that
the salaries of the spouses constitute part of the conjugal partnership which may answer only for charges
upon and liabilities of the conjugal partnership. In order to make the conjugal partnership liable for the
personal obligations of the spouses, it must be shown that the debt was contracted during the marriage by
the husband for the benefit of the conjugal partnership. Under the New Civil Code, there is NO
PRESUMPTION that debts and obligations contracted during the marriage by the husband are conjugal.
(De la Cruz v. De Gula). As long as the conjugal partnership subsists, there can be no one-half share of
the husband or wife. Only when the conjugal partnership is liquidated, and there is a net remainder, may
the same be divided equally between husband and wife. The interest of each in the conjugal partnership
property is inchoate and is a mere expectancy. Any levy on the conjugal partnership property to satisfy
the money judgment against the husband is null and void. (Ansaldo v. Sheriff of Manila)
LUZON SURETY V. AQUINO [30 S 111 (1969)] - The conjugal partnership is not liable on an
indemnity agreement executed by the husband to accomodate a third party in favor of a surety company
in the absence of proof of any benefit to the conjugal partnership.
PEREZ V. LANTIN [23 S 367 (1968)] - Where the husband purchased shoe leather in connection with
his business, and for failure to pay the same, a collection suit was filed against him, and judgment was
held for the creditor, the shares of stocks owned by the husband can be attached for the satisfaction of the
judgment debt. All properties of the marriage are presumed to belong to the conjugal partnership unless it
is proved otherwise. The party who invokes this presumption must first prove that the property was
acquired during the marriage. Hence, proof of acquisition during the coverture is a condition sine qua non
for the operation of the presumption. Since in this case, there is no evidence as to when the shares of
stocks were acquired, the fact that they are registered in the name of the husband alone is an indication
that the shares belong exclusively to him.
B. Charges upon conjugal partnership
Art. 122, par. 3. However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities imposed upon them, as well as the
support of illegitimate children of either spouse, may be enforced against the partnership
assets after the responsibilities enumerated in the preceding Article have been covered, if
the spouse who is bound should have no exclusive property or if it should insufficient; but
at the time of the liquidation of the partnership, such spouse shall be charged for what has
been paid for the purposes above-mentioned.
Baviera Cases:
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ALVAREZ V. LIM [61 O.G. 1529 (1964)] - The illegitimate children of the husband should be sup-
ported from his exclusive property. In the absence of exclusive property of the husband or in case of its
insufficiency, the support of said illegitimate children may be imposed against the partnership assets after
the responsibilities enumerated in Art. 161 CC (Art. 121 FC) have been covered, provided that at the time
of the liquidation of the partnership the husband shall be charged for what has been paid for the purpose.
PEOPLE V. LAGRIMAS [29 S 153 (1969)] - Fines and indemnities imposed upon either husband or
wife may be enforced against partnership assets after the responsibilities imposed in Art. 161 CC (Art.
121 FC) have been covered, if the spouse who is bound should have no exclusive property or if it should
be insufficient. The reason is that if they were allowed to be enforced only after liquidation, the effect
would be to exempt the accused from civil liability and the heirs of the offended party would be made to
suffer still further.
4. Administration of Conjugal Partnership
availed within five years from the date of the contract implementing such decision.
the absence of such authority or consent, the disposition shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the offer is withdrawn by either or
both offerors.
Art. 125. Neither spouse may donate any conjugal partnership property without the
consent of the other. However, either spouse may, without the consent of the other, make
moderate donations from the conjugal partnership property for charity or on occasions of
family rejoicing or family distress.
5. Dissolution
Art. 126. The conjugal partnership terminates:

(3) When the marriage is annulled or decreed void;
(4) In case of judicial separation of property during the marriage under Articles
134 to 138.
Art. 134. In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be voluntary or for
sufficient cause.
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absentee;
In the cases provided for in Numbers (1), (2), (3), the presentation of the
final judgment against the guilty or absent spouse shall be enough basis for the
community or the conjugal partnerhsip of gains shall be liquidated in conformity
with this Code.

regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just
cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property
of both spouses shall be solidarily liable for the support of the family. The spouse present
shall, upon petition in a summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share.
Art. 128. If a spouse without just cause abandons the other or fails to comply with
his or her obligations to the family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for authority to be the sole
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administrator of the conjugal partnership property, subject to such precautionary

marital parental or property relations.
conjugal dwelling without intention of returning. The spouse who has left the conjugal
dwelling for a period of 3 months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling.
6. Liquidation of the Conjugal Partnership Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal partnership regime, the following
conjugal partnership and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal debts
and obligations of either spouse shall be credited to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the
acquisition of property or for the value of his or her exclusive property, the ownership of
which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable
for the unpaid balance with their separate properties, in accordance with the provisions of
paragraph (2) of Article 121.
Art. 121. xxx

If the conjugal partnership is insufficient to cover the foregoing liabilities,
the spouses shall be solidarily liable for the unpaid balance with their separate
properties.)
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the family, belonging to either spouse,
even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.
( e.g. car, even if lost due to FE, unlike in ordinary usufruct)
(7) The net remainder of the conjugal partnership properties shall constitute the
profits, which shall be divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as provided in this Code.
(8) The presumptive legitimes of the common children shall be delivered upon
partition in accordance with Article 51.
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The children or their guardian, or the trustee of their property, may ask
advances on their legitime.
Baviera: Presumptive only; collationable, considered as donations because of collation

- actual computation at the time of death of the parent; legitime at the time of death can even be
less than the presumptive legitimes.)
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is
situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the age
of seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking into
consideration the best interests of said children.
Art. 130. Upon the termination of the marriage by death, the conjugal partnership
property shall be liquidated in the same proceeding for the settlement of the estate of the
deceased.
liquidate the conjugal partnership property either judicially or extra-judicially within one
year from the death of the deceased spouse. If upon the lapse of the said period no
liquidation is made, any disposition or encumbrance involving the conjugal partnership
Should the surviving spouse contract a subsequent marriage without compliance
with the foregoing requirements, a mandatory regime of complete separation of property
shall govern the property relations of the subsequent marriage.
Art. 131. Whenever the liquidation of the conjugal partnership properties of two or
more marriages contracted by the same person before the effectivity of this Code is carried
out simultaneously, the respective capital, fruits and income of each partnership shall be
determined upon such proof as may be considered according to the rules of evidence. In
case of doubt as to which partnership the existing properties belong, the same shall be
divided between and among the different partnerships in proportion to the capital and
duration of each.
Art. 132. The Rules of Court on the administration of estates of deceased persons
shall be observed in the appraisal and sale of property of the conjugal partnership, and
other matters which are not expressly determined in this Chapter.
Art. 133. From the common mass of property support shall be given to the
surviving spouse and to the children during the liquidation of the inventoried property and
until what belongs to them is delivered; but from this shall be deducted that amount
received for support which exceeds the fruits or rents pertaining to them.
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E. Separation of Property
1. During Marriage
Art. 134. In the absence of an express declaration in the marriage settlements, the
separation of property between the spouses during the marriage shall NOT take place
except by judicial order. Such judicial separation of property may either be voluntary or
for sufficient cause.
Toda v. Court of Appeals
The separation of property is not affected by the mere execution of the contract or
agreement of the parties but by the decreee of the court approving the same. The conjugal
partnership is dissolved only upon the issuance of a decree of separation of property.
Balane: A petition may be filed for the dissolution of the AC or the CP by:
both spouses: voluntary dissolution (134/136)
petition for sufficient cause (135)
cannot dissolve extrajudicially during subsistence of marriage
Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries
with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been declared by
the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply
with his or her obligations to the family as provided for in Article 101;
the court for receivership, for judicial separation of property or for authority to be
the sole administrator of the absolute community, subject to such precautionary
(5) That the spouse granted the power of administration in the marriage settlements
has abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at
least one year and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the presentation of the final
judgment against the guilty or absent spouse shall be enough basis for the grant of the
decree of judicial separation of property.
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Balane: Under Art. 135.4, Balane believes that Art. 128 should be included here.
Art. 136. The spouses may jointly file a verified petition with the court for the
voluntary dissolution of the absolute community or the conjugal partnership of gains, and
for the separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains, as
well as the personal creditors of the spouse, shall be listed in the petition notified of the
filing thereof. The court shall take measures to protect the creditors and other persons with
pecuniary interest.
community or the conjugal partnership of gains shall be liquidated in conformity with this
Code.
During the pendency of the proceedings for separation of property, the absolute
community or the conjugal partnership shall pay for the support of the spouses and their
children.

Art. 139. The petition for separation of property and the final judgment granting
the same shall be recorded in the proper local civil registries and registries of property.
Art. 140. The separation of property shall not prejudice the rights previously
acquired by creditors.
Art. 141. The spouses may, in the same proceedings where separation of property
was decreed, file a motion in court for a decree reviving the property regime that existed
between them before the separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of
administration in the marriage settlements will not again abuse that power, authorizes the
resumption of said administration;
(4) When the spouse who has left the conjugal home without a decree of legal
separation resumes common life with the other;
(5) When the parental authority is judicially restored to the spouse previously
deprived thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile and
resume common life; or
(7) When after voluntary dissolution of the absolute community of property or
conjugal partnership has been judicially decreed upon the joint petition of the spouses,
they agreed to the revival of the former property regime. No voluntary separation of
property may thereafter be granted.
The revival of the former property regime shall be governed by Article 67.
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Art. 67. The agreement to revive the former property regime referred to
in the preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the
amounts owing to each.
The agreement of revival and the motion for its approval shall be filed
with the court in the same proceeding for legal separation, with copies of both
furnished to the creditors named therein. After due hearing, the court shall, in its
order, take measures to protect the interest of creditors and such order shall be
recorded in the proper registries of properties.
The recording of the order in the registries of property shall not prejudice
any creditor not listed or not notified, unless the debtor-spouse has sufficient
separate properties to satisfy the creditor's claim.
Art. 142. The administration of all classes of exclusive property of either spouse
may be transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil
interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in
a criminal case.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or
any other just cause, the court shall appoint a suitable person to be the administrator.
3. Regime of Separation of Property
Art. 143. Should the future spouses agree in the marriage settlements that their
property relations during the marriage shall be governed by the regime of separation of
property, the provisions of this Chapter shall be of suppletory application.
Art. 144. Separation of property may refer to present or future property or both. It
may be total or partial. In the latter case, the property not agreed upon as separate shall
pertain to the absolute community.
Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or
her own separate estate, without need of the consent of the other. To each spouse shall
belong all earnings from his or her profession, business or industry and all fruits, natural,
industrial or civil, due or received during the marriage from his or her separate property.
Art. 146. Both spouses shall bear the family expenses in proportion to their
income, or, in case of insufficiency or default thereof, to the current market value of their
separate properties.
The liability of the spouses of creditors for family expenses shall, however, be
solidary.
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VII. Union without marriage
Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed by the
rules on co-ownership.
[no provision in OCC, judicial decisions only; only in NCC; Baviera says the use of the
words "capacitated" and "void marriage" is malabo; jigsaw puzzle provision]
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint effortsm work or industry,
and shall be owned by them in equal shares. For purposes of this Article, a party who did
not participate in the acquisition by the other party of any property shall be deemed to
have contributed jointly in the acquisition thereof if the former's efforts consisted in the
care and maintenance of the family and of the household.
[basis: MAXEY V. CA - H & W, equality of the sexes]
Neither party can encumber or dispose by acts inter vivoc of his or her share in the
property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their cohabitation.
[Baviera - so that it won't be better than legal relationships]
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. [Baviera - there is a right of representation
even by the grandchildren]
Maxey v. CA
The marriage law of 1903 does not recognize the validity of a marriage that is
celebrated in "military fashion". In this case, the couple got married only on Feb. 16, 1919
after living as common-law spouses before that. Under Art. 144 of the NCC, co-
ownership arises even if the common-law wife is not gainfully employed, or does not
work.
Notes: as in the case of Maxey, a common-law wife who is not gainfully employed
contributes to the co-ownership as a homemaker.
the law in this case provides for a special kind of co- ownership...which cannot be
terminated, and wherein the share may not be encumbered or disposed of without the
consent of the other.
Art. 148. In cases of cohabitation not falling under the preceding Article, only the
properties acquired by both of the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in proportion to their respective
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contributions. In the absence of proof to the contrary, their contributions and

corresponding shares are presumed to be equal. The same rule and presumption shall
apply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-
ownership shall accrue to the absolute community or conjugal partnership existing in such
valid marriage. If the party who acted in bad faith is not validly married to another, his or
her share shall be forfeited in the manner provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad
faith.
Baviera: If no common children, no surviving descendant, kanino ngayon? apply exclusive

property
Baviera Cases:
YAPTINCHAY V. TORRES [28 S 489 (1969)] - Where a married man and his mistress lived together
for 19 years, and the mistress seeks to repossess their love nest in Forbes Park, she must show her actual
contribution in the construction of the house during the cohabitation inorder for the rules on co-ownership
to apply. Her unsupported assertions cannot override the prima facie presumption that the house, having
been constructed on the lot of the man during his marriage to his legitimate wife constitutes conjugal
property.
JUANIZA V. JOSE [89 S 306 (1979)] - A married man is the registered owner of a jeepney which was
involved in an accident and was held liable for damages. His common-law wife cannot claim co-
ownership over the jeepney because Art. 144 CC (Art. 147 FC) applies only when the parties are not
incapacitated to marry. Hence, the jeepney belongs to the conjugal partnership with the lawful wife. The
common-law wife not being the registered owner cannot be held liable for damages caused by its
operation.
Baviera disagrees, there is no need that there bee no impediment because Art. 147 FC
covers even void marriages.
MAXEY V. CA [129 S 187 (1984)] - Under Art. 144 CC (Art. 147 FC), co-ownership arises
even if a common-law wife does not work or is not gainfully employed. The Filipino woman
traditionally runs the household and holds the family purse even if she does not contribute
thereto.
xxx
The marriage law of 1903 does not recognize the validity of a marriage that is
celebrated in "military fashion". In this case, the couple got married only on Feb. 16, 1919
after living as common-law spouses before that. Under Art. 144 of the NCC, co-
ownership arises even if the common-law wife is not gainfully employed, or does not
work.
Balane: As in the case of Maxey, a common-law wife who is not gainfully employed
contributes to the co-ownership as a homemaker.
the law in this case provides for a special kind of co- ownership...which cannot be
terminated, and wherein the share may not be encumbered or disposed of without the
consent of the other.
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VII. The Family
A. As an Institution
Art. 149. The family, being the foundation of the nation, is a basic social institution
which public policy cherishes and protects. Consequently, family relations are governed by
law and no custom, practice or agreement destructive of the family shall be recognized or
given effect.
Alavado v. City Gov't
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. The reason
is that such is the common order of society, and if the parties were not what they thus hold
themselves out as being, they would be living in the constant violation of decency and of
law.
Art. 150. Family relations include those:

(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-blood.
Balane: The enumeration under 150 of who is a member of a family is exclusive for the
purpose stated in Art. 151
Art. 151. No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a compromise
have been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.
Balane: If on either side of the litigation, a third party is present in addition to the family
member, then Art. 151 does not apply.
Family Home
Notes: The main change from the provisions of the NCC is that under the FC, there is de
facto or automatic constitution of the family home
The rationale behind this is to protect the family from the tragic consequence of
losing the dwelling to creditors.
Gayon v. Gayon
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Art. 222 of the CC (Art. 151 NCC) is an exception to the general rule and should
thus be construed strictly. Inasmuch as a sister-in-law, nephew, niece is not included in
the enumeration contained in Art. 217, then it follows that this case does not fall within
Art. 222...failure to seek a compromise before the filing of the complaint does not bar the
action.
Wainright v. Versoza
Compromise on future support is proscribed. An attempt to compromise future

support is not a condition precedent to the filing of a suit therefor and it need not be
alleged in the complaint. A showing of previous efforts to compromise future support
would be superfluous.
Magbaleta v. Gonong
Where one of the parties to a civil litigation is not a member of the family some of
whose members are adverse parties to the said suit, lack of earnest efforts to reach a
compromise should not be considered a jurisdictional requisite to the maintenance of an
action.
De Guzman v. Genato
Substantial compliance of the requirement of earnest efforts towards a compromise

is enough. It is not necessary that the plaintiff should expressly use the terms of the
statute, i.e. "that earnest efforts towards a compromise have been made, but that the same
have failed" in his pleadings in order to comply with the requirement.
O'Lao v. Co Cho Chit
Earnest efforts towards a compromise is a condition precedent to filing of suits

between members of the same family, non- compliance of which, the complaint is
assailable at any stage of the proceedings for lack of cause of action.
Art. 2035. No compromise upon the following questions shall be valid:

(1) The civil status of persons;
(2) The validity of marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (Civil Code.)
( also refer to rules on pre-trial, Katarungang Pambarangay Law)
Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents
and grandparents, except when such testimony is indispensable in a crime against the descendant or
by one parent against the other.
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The Family Home
Art. 152. The family home, constituted jointly by the husband and the wife or by
an unmarried head of a family, is the dwelling house where they and their family reside,
and the land on which it is situated.
Balane: An unmarried head of a family may constitute a family home
Art. 153. The family home is deemed constituted on a house and lot from the time it
is occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt
from execution, forced sale or attachment except as hereinafter provided and to the extent
of the value allowed by law.
MANACOP V. CA [215 SCRA 773] - reiterating Modequillo v. Breva, "xxx It does not mean
that Articles 152 and 153 FC have a retroactive effect such that all existing family residences are
deemed to have been consitituted as family homes at the time of their occupation prior to the
effectivity of the FC and are exempt from execution for the payment of obligations incurred
before the effectivity of the FC. Art. 162 simply means that all existing family residences at the
time of the effectivity of the FC, are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the FC. Art. 162 does not state that the provisions
of Chapter 2, Title V have a retroactive effect.
Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by by mortgages on the premises before or after such
constitution;
(4) For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or furnished material for the construction of the
building.
Art. 156. The family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive properties of either spouse with
the latter's consent. It may also be constituted by an unmarried head of a family on his or
her own property.
Nevertheless, property that is the subject of a conditional sale on installments where
ownership is reserved by the vendor only to guarantee payment of the purchase price may
be constituted as a family home.
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Art. 157. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of three hundred thousand (P300,000) in urban areas and two
hundred thousand (P200,000) in rural areas, or such amounts as may hereafter be fixed by
law.
In any event, if the value of the currency changes after the adoption of this Code,
the value most favorable for the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for chartered
cities. All others are deemed to be rural areas.
Balane: Under the NCC, there was no provision for adjustment of the value of the family
home. The ceiling was pegged at P30,000. Under the FC, this ceiling was increased. The
FC further provided for a flexibility clause under Art. 157.2 "value most favorable for the
constitution of a family home shall be the basis..."
Art. 158. The family home may be sold, alienated, donated, assigned or
encumbered by the owner or owners thereof with the written consent of the person
constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In
case of conflict, the court shall decide.
Balane: Although this article states that the consent of the head and a majority of the
beneficiaries is required before alienation/encumbrance of the family home, the law is not
clear as to the consequences of not obtaining such consent. Under 1403, it would seem as
if the contract shall be unenforceable.
Art. 159. The family home shall continue despite the death of one or both spouses
or of the unmarried head of the family for a period of ten years or for as long as there is a
minor beneficiary, and the heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply regardless of whoever owns the property
or constituted the family home.
Art. 160. When a creditor whose claim is not among those mentioned in Article 155
obtains a judgment in his favor, and he has reasonable grounds to believe that the family
home is actually worth more than the maximum amount fixed in Article 157, he may apply
to the court which rendered the judgment for an order directing the sale of the property
under execution. The court shall so order if it finds that the actual value of the family home
exceeds the maximum amount allowed by law as of the time of its constitution. If the
increased actual value exceeds the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of the beneficiaries, the
same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in Article 157, and
then to the liabilities under the judgment and the costs. The excess, if any, shall be
delivered to the judgment debtor.
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Balane: Art. 160 provides the remedy of the creditor where the value of the family home
is in excess of the ceiling
The family home will be sold (but replacement should exist)

The value for such replacement should be set aside
Any excess shall accrue to the creditor.
Paternity and Filiation
paternity: includes maternity

means the relationship or status of a person with respect to his or her child filiation
means the status of a person with respect to his or her parents
Note that under the Family Code, there are no more subdistinctions under the classification
of illegitimate children.
Art. 161. For purposes of availing of the benefits of a family home as provided for
in this Chapter, a person may constitute, or be the beneficiary of, only one family home.
Art. 162. The provisions in this Chapter shall also govern existing family
residences insofar as said provisions are applicable.
Baviera/ Balane Case:
MODEQUILLO V. BREVA [185 S 766 (1990)] - Under the Family Code, a family home is
deemed constituted on a house and lot from the time it is occupied as a family residence. There is
NO NEED to constitute the same judicially or extrajudicially as required in the Civil Code. If the
family actually resides in the premises, it is, therefore, a family home as contemplated by law.
Thus, the creditors should take the necessary precautions to protect their interest before extending
credit to the spouses or head of the family who owns the home.
Art. 162 FC simply means that all existing family residences at the time of the effectivity of the
Family Code (AUGUST 3, 1988), are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family Code. Art. 162 FC does not state that
the provisions of Chapter 2, Title V have a retroactive effect.
IX. Paternity and Filiation
1. Legitimate Children
Art. 163. The filiation of children may be by nature or by adoption. Natural

filiation may be legitimate or illegitimate.
Art. 164. Children conceived or born during the marriage of the parents are
legitimate.
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Children conceived as a result of artificial insemination of the wife with the sperm
of the husband or that of a donor or both are likewise legitimate children of the husband
and his wife, provided, that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth certificate of the
child.
Balane: Legitimate: conceived or born during the marriage

the presumption is always in favor of legitimacy
Artificial insemination:
3 ways permissible:
1. artificial insemination husband (AIH)--using the sperm of the husband--homologous
2. artificial insemination donor (AID) -- heterologous
3. artificial insemination combined (AIC)
Requirements:
authorization/ratification of both spouses
written instrument
the document should be executed and signed before the child's birth
registration in the Civil Registry is not a requirement for validity.
Presumption of Legitimacy
the presumption of legitimacy is an example of a quasi-conclusive presumption. This
presumption may be rebutted only on the grounds provided in Art. 166.
To impugn legitimacy, show that during the 1st 120 days of the 300 days preceding the
birth, there was physical impossibility of access between husband and wife.
Physical impossibility of access may be shown by preponderance of evidence:

may show impotence
that the spouses were living separately and sexual intercourse was not possible
or serious illness making sexual intercourse impossible.
Art. 166.1 has no application when the conception is by artificial insemination.
Suppose the consent or ratification was obtained through the means mentioned in 166.3
but the semen used was that of the husband...will this rebut the quasi-conclusive
presumption?
Art. 165. Children conceived and born outside a valid marriage are illegitimate,
unless otherwise provided in this Code.
Art. 166. Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse
with his wife within the first 120 days of the 300 days which immediately preceded the
birth of the child because of:
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(a) the physical incapacity of the husband to have sexual intercourse with
his wife;
(b) the fact that the husband and wife were living separately in such a way
that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual
intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could
not have been that of the husband, except in the instance provided in the second paragraph
of Article 164 (artificial insemination); or
(3) That in case of children conceived through artificial insemination, the written
authorization or ratification of either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence.
ANDAL V. MACARAIG [100 SCRA 73]
F: The H died on 1/1/43. The boy whose legitimacy is in question was born on 6/17/43. If
the boy is deemed legitimate, then he is entitled to inherit the land in question. Lower court
declared the boy as the legitimate child of the H and owner of the land.
HELD: The boy is presumed to be the legitimate son of said H and his W, he having been born
w/in 300 days following the dissolution of the marriage. The presumption can only be rebutted
by proof that it was physically impossible for the H to have access to her W during the first 120
days of the 300 days next preceding the birth of the child. The fact that the wife has committed
adultery cannot overcome this presumption. Although the H was suffering from serious
tuberculosis, yet there is no evidence of impotence nor does it preven carnal intercourse. And
there are cases when the tuberculous is reputed to be more erotic. RR.
MACADANGDANG V. CA [100 SCRA 73] - The child Rolando is presumed to be the

legitimate son of resp. and her spouse. This presumption becomes conclusive in the absence of
proof that there was physical impossibility of access between the spouses in the first 120 days of
the 300 days w/c preceded the birth of the child.
Art. 167. The children shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.
CHUA KENG GIAP V. IAC [158 SCRA 18] - In the case of Sy Kao v. CA, Sy Kao flatly and
unequivocably declared that she was not the petitioner's mother.
xxx
Who better than Sy Kao herself would know if Chua Keng Giap was really her son? More
than any one else, it was Sy Kao who could say-- as indeed she has said these many years-- that
Chua Keng Giap was not begotten of her womb.
Art. 168. If the marriage is terminated and the mother contracted another marriage
within three hundred days after such termination of the former marriage, these rules shall
govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the
subsequent marriage is considered to have been conceived during the former marriage,
provided it be born within three hundred days after the termination of the former
marriage;
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(2) A child born after one hundred eighty days following the celebration of the
subsequent marriage is considered to have been conceived during such marriage, even
though it be born within the three hundred days after the termination of the former
marriage.
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days
following the termination of the marriage shall be proved by whoever alleges such
legitimacy or illegitimacy.
Art. 170. The action to impugn the legitimacy of the child shall be brought within
one year from the knowledge of the birth or its recording in the civil register, if the
husband or, in a proper case, any of his heirs, should reside in the city or municipality
where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of birth as
defined in the first paragraph or where it was recorded, the period shall be two years if
they should reside in the Philippines; and three years if abroad. If the birth of the child has
been concealed from or was unknown to the husband or his heirs, the period shall be
counted from the discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.
LIM V. IAC [166 SCRA 451] - The finding of the trial court and the CA that Violeta Cabatbat
was not born of Esperanza Cabatbat is a factual finding based on the evidence presented at the
trial, and hence, it is conclusive upon Us.
Petitioner's recourse to Art. 263, NCC, now Art. 170, FC is not well-taken. This legal
provision refers to an action to impugn letigimacy. It is inapplicable to this case bec. this is not
an action to impugn the legitimacy of a child, but an action of the prvt resps. to claim their
inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner
Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's
child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child
by legal fiction of Esperanza, Violeta is not a legal heir of the deceased.
Art. 171. The heirs of the husband may impugn the filiation of the child within the
period prescribed in the preceding article only in the following cases:
(1) If the husband should die before the expiration of the period fixed for bringing
his action;
(2) If he should die after the filing of the complaint, without having desisted
therefrom; or
(3) If the child was born after the death of the husband.
Balane: Art. 170-171 .Anent who can impugn the legitimacy of a child--the period for
such must be reckoned from knowledge of either the birth or the recording of such
birth...choice of reckoning point...except when birth is concealed, then the reckoning
period is from discovery or knowledge of birth or discovery or knowledge of recording,
whichever is earlier.
2. Proof of Filiation
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Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Balane: With regard to open and continuous possession of the status of a legitimate
child...the possession in this case of such status must not be sporadic or intermittent
possession of such status for an appreciable time is sufficient...it need not be for the
lifetime of the child.
DIAZ V. CA [129 SCRA 621] - Absence of maternal surname of the decedent in his certificate
of admission to the Phil. Bar does not disprove legitimacy, as dropping of maternal surname in
documents is commonplace.
xxx
Although the last will and testament cannot prove pedigree, it is not considered as
independent evidence but collectively w/ other evidence on record to prove decedent's
legitimacy.
Art. 173. The action to claim legitimacy may be brought by the child during his or
her lifetime and shall be transmitted to the heirs should the child die during minority or in
a state of insanity. In these cases, the heirs shall have a period of five years within which to
institute the action.
The action already commenced by the child shall survive notwithstanding the death
of either or both of the parties.
Balane: The action in this case is generally intransmissible except when the child dies
during minority, or the child dies in a state of insanity or the child dies pendente lite
MARQUINO V. IAC [233 SCRA 348] - Under Art. 285 (Civil Code), the right of
action for the acknowledgment of natural children can never be transmitted: her death
tolled the action. In an action for compulsory recognition, the party in best position to
oppose the same is the putative parent himself. (However, Art. 285 was already superseded
by Art. 173, FC, Child can now bring the action during his lifetime even after the death of
parents. But Art. 173 cannot be given retroactive effect because it will prejudice the
vested rights of the heirs of the putatuve parent transmitted to them after the latter's death.
DLC: The action for compulsory recognition commenced by the illegitimate child during
the lifetime of the putative parent is abated by the death of such parent.
Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the
provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper cases,
their brothers and sisters, in conformity with the provisions of this Code on Support;
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(3) To be entitled to the legitime and other successional rights granted to them by
the Civil Code.
3. Illegitimate Children
Art. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same evidence as legitimate children.
Baviera: The action must [MAY - typo error corrected by Baviera] be brought within the same
period specified in Article 173, except when the action is based on the second paragraph of
Article 172, in which case the action may [MUST - Baviera] be brought during the lifetime of the
alleged parent.
Balane: The FC rules were meant to liberalize the rules of the NCC on illegitimacy...there
is no more need for recognition (which was required under the NCC) proof of illegitimacy
is now sufficient.
JAO V. CA [152 SCRA 359] - Blood grouping tests are conclusive as to non-paternity
but not as to paternity. The fact that the blood type of the child is a possible product of the
mother and the alleged father does not inconclusively prove that the child is born by such
parents; but if the blood type of the child is not the possible blood type when the blood of
the mother and the alleged father are crossmatched, then the child cannot possibly be that
of the alleged father.
The cohabitation between the mother and the supposed father cannot be a ground
for compulsory recognition if such cohabitation could not have produced the conception of
the child. This would be the case, for instance, if the cohabitation took place outside of
the period of conception of the child. Likewise, if it can be proved by blood tests that the
child and the supposed father belong to different blood groups, the cohabitation by itself
cannot be a ground for recognition.
UYGUANGCO V. CA [178 SCRA 684] - Case cites Art. 172 (2nd par.): when the
action is based on second par. of Art.172, the action may be brought during the lifetime of
the alleged parent. 2nd par of 172: In the absence of the foregoing evidence, the legitimate
filiation shall be proved by: a)open and continuous possession, 2) other means allowed by
the Rules of Court.
While PR admits that he has none of the documents mentioned in par.1, he insists
that he has nevertheless been in "open and continuous possession of the status of a
legitimate child." The problem of PR is that since he seeks to prove his filiation under par.
2, he is now barred because of his alleged father's death in 1975. The putative father's
death in 1975, made the Civil Code applicable to him and not the Family Code. Thus, PR
cannot prove his illegitimate filiation because of his father's death.
MENDOZA V. CA [201 SCRA 675] - To establish "the open and continuous possession of the
status of an illegitimate child," it is necessary to comply w/ certain jurisprudential requirements.
"Continuous" does not mean that the concession of status shall continue forever but only that it
shall not be of an intermittent character while it continues. The possession of such status means
that the father has treated the child as his own, directly and not through others, spontaneously
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and w/o concealment though w/o publicity (since the relation is illegitimate.) There must a
showing of permanent intention of the suppose father to consider the child as his own, by
continuous and clear manifestation of affection and care.
Art. 173. The action to claim legitimacy may be brought by the child during his or
her lifetime and shall be transmitted to the heirs should the child die during minority or in
a state of insanity. In these cases, the heirs shall have a period of five years within which to
institute the action.
The action already commenced by the child shall survive notwithstanding the death
of either or both of the parties.
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
( - DURING LIFETIME OF CHILD - )
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
[ - DURING LIFETIME OF PARENT (Tayag. v. CA) - ]
Art. 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in conformity with this
Code. The legitime of each illegitimate child shall consist of one half of the legitime of a
legitimate child.
Balane: Anent the right of an illegitimate child in compulsory and intestate

succession...the illegitimate child shall be entitled to 1/2 of the share of the legitimate
child.
4. Legitimated Children
Art. 177. Only 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.
Balane: Anent legitimated children...the parents of the child must not be disqualified from
marrying one another at the point of conception.
So if the parents of the child, at the latter's conception, were 16 and 15 years old, the child
may not be legitimated.
Art. 178. Legitimation shall take place by a subsequent valid marriage between
parents. The annulment of a voidable marriage shall not affect the legitimation.
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Art. 179. Legitimated children shall enjoy the same rights as legitimate children.
Art. 180. The effects of legitimation shall retroact to the time of the child's birth.
Art. 181. The legitimation of children who died before the celebration of the
marriage shall benefit their descendants.
Art. 182. Legitimation may be impugned only by those who are prejudiced in their
rights, within five years from the time their cause of action accrues.
Baviera Cases:
TAYAG V. CA [209 S 588 (1992)] - Under Art. 285 of the Civil Code, if the mother or father died
during minority, an action for recognition of natural based on oral proof may be brought by the child
before the expiration of four years from attainment of majority. However, under Art. 175 of the Family
Code, if the action is based on oral proof, it must be filed during the lifetime of the parent. The Family
Code cannot be given retroactive effect because it will impair vested rights. The right of action of the
child has already vested by the filing of the case under the Civil Code, before the enactment of the
Family Code . Such right can no longer be prejudiced or impaired by the enactment of a new law.
BENITEZ V. CA [229 S 468 (1994)] - The claim for inheritance of a child who is not the biological or
adopted child of deceased was denied, on the ground that Articles 164, 166, 170, and 171 of the Family
Code do not contemplate a situation where a child is alleged not to be the child by nature or biological
child of a certain couple. Rather, these articles govern a situation where the husband or his heirs denies as
his own a child of his wife.
RULE 99
ADOPTION AND CUSTODY OF MINORS
RULE 100
RESCISSION AND REVOCATION OF ADOPTION
WHAT IS ADOPTION?
A fiction created by law to give (establish) a relation of people where none previously
existed.
A juridical act, proceeding in rem, which creates between two persons a relationship
similar to that which results of legitimate paternity and filiation.
Adoption, in modern trends, is deemed not merely an act to establish the relation of
paternity and filiation but one which gives the child a legitimate status.
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It is in this sense that adoption is now defined as a "juridical act which creates between
two persons a relationship similar to that which results from legitimate paternity and filiation.
Since adoption establishes the relationship of paternity and filiation, it must as a conse-
quence involve two perspectives - from that of the adopting parent and from that of the adopted
child.
As used in the family law the relationship of paternity and filiation is that which exists
between parents and their children. This tie or relationship may arise only either from nature,
when a child is born, or by legal fictioon, as when a child is legally adopted.
Paternity is the state or condition of being a father, whereas "filiation" is the descent of
son or daughter, with regard to his or her father, mother, and their ancestors.
Under family law, "paternity" generally includes "maternity" which is the status of being
a mother.
PURPOSE OF ADOPTION
To provide homes, parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family in the person of the adopter, and at
the same time, allow childless couples or persons to experience the joys of parenthood and give
them legally a child in the person of the adopted for the manifestation of their natural parental
instincts
Promotion of the best interest and welfare of the child
NATURE OF ADOPTION PROCEEDING
Adoption as a juridical act is a proceeding in rem.

Proceedings in rem are court actions where the whole world is a party, whether within or
without the territorial jurisdiction of the forum, such that the decree made is binding on all
persons, whether personally notified or merely through constructive notice.
Consequently, no court may entertain a petition for adoption unless it has jurisdiction, not only
over the subject matter of the case and over the parties, but also, over the res - i.e., the personal
status of both the person to be adopted and person adopting.
Testamentary and extrajudicial adoptions practiced in some countries are not recognized
in this jurisdiction.
WHO MAY ADOPT
Art. 183. A person of age and in possession of full civil capacity and legal rights
may adopt, provided he is in a position to support and care for his children, legitimate or
illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases where the adoption of a person of
majority age is allowed in this Title
In addition, the adopter must be atleast sixteen years older than the person to be
adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the
legitimate parent of the person to be adopted.
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1. a person of age and in possession of full civil capacity and legal rights
2. in a position to support and care for his children, legitimate or illegitimate, in keeping with the
means of the family
3. the adopter must be at least sixteen years older than the person to be adopted, unless the adopt-
er is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to
be adopted. (Art. 183, FC)
Balane: This article gives the basic rule: the adopter need not be married and need not be
childless...the adopter may still adopt so long as he is able to support his legitimate or
illegitimate children.
only a minor may be adopted

exception:
Art. 182 3rd paragraph... and the case where prior to adoption, the child had
already been de facto adopted.
Art. 185. Husband and wife must jointly adopt, except in the following cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other.
REPUBLIC V. CA [227 SCRA 401] - DLC: In cases where the spouses are required to
jointly adopt, both of them must be qualified to adopt.
While James, a natural born US citizen, is not permitted to adopt under any of the
exceptional cases enumerated in par. 3 of Art. 184, Lenita, however, can qualify pursuant to par.
3 (a) of the same Art. The problem in her case lies, however, w/ Art. 185 w/c requires H & W to
adopt jointly, a condition that must be read along together w/ Art. 184. The spouses who are
required by law to adopt jointly must both be qualified to so adopt. In this case, while Lenita is
qualified, James is not. Hence, they cannot adopt.
Art. 186. In case husband and wife jointly adopt or one spouse adopts the
legitimate child of the other, joint parental authority shall be exercised by the spouses in
accordance with this Code.
WHO MAY NOT ADOPT
Art. 184. The following persons may not adopt:

(1) the guardian with respect to the ward prior to the approval of the final accounts
rendered upon the termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by consanguini-
ty;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse;
or
(c) One who is married to a Filipino cvitizen and seeks to adopt jointly with
his or her spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in
accordance with the rules on inter-country adoption as may be provided by law.
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Balane: Anent the disqualification of an alien from adopting

RA 8043 provides for inter-country adoption. The Implementing Rules and Regulations
have already been approved (Dec.26, 1995)...even if alien is not in the Philippines, he may
now adopt under ICAL
Suppose A is a foreigner and B is a former Filipina...B has a nephew
B can adopt X under Art. 184.3. But under Art. 185, B cannot adopt X without joining her
husband (Republic v. Toledano)
Art. 184 should be read together with Art. 185
REPUBLIC V. TOLEDANO [233 SCRA 9] - DLC: In case the husband and wife are
required by law to adopt jointly, both of them must be qualified to and not disqualified to adopt.
There can be no question that Alvin Clouse (a natural born US citizen) is not qualified to
adopt under any of the exceptions found in Art. 184. In the first place, he is not a former Filipino
citizen. In the second place, Solomon is neither his relative by consanguinity nor the legitimate
child of his spouse.
Evelyn, on the other hand, appears to qualify pursuant to par. 3 (a) of Art. 184. She was
a former Filipino citzen who seeks to adopt a brother. Unfortunately, the petition for adoption
cannot be granted in her favor alone w/o violating Art. 185 w/c mandates that H and W should
adopt jointly. Art. 185 requires a joint adoption by the H & W, a condition that must be read
along w/ Art. 184.
WHO MAY BE ADOPTED
1. only minors
except in cases when the adoption of a person of majority age is allowed by the FC
WHO MAY NOT BE ADOPTED
Art. 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the adopter or his
or her spouse, or prior to the adoption, said person had been consistently considered and
treated by the adopter as his or her own child during minority.
(2) An alien with whose government the Republic of the Philippines has no
diplomatic relations; and
(3) A person who has already been adopted unless such adoption has been
previously revoked or rescinded.
Balane: Suppose a child has been previously adopted, but is to be adopted now by the
spouse of the previous adopter.
Applying Art. 187.3...the spouse may not adopt
There is a need to reconcile the apparent conflict between Art. 185 and Art. 187.3
WHERE FILED
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Sec. 1, Rule 99. Venue. A person desiring to adopt another or have the custody of a minor
shall present his petition to the CFI of the province, or the municipal or justice of the peace court of
the city or municipality in which he resides.
In the City of Manila, the proceedings shall be instituted in the JDRC.
PROCEDURE
Sec. 2, Rule 99. Contents of petition. The petition for adoption shall contain the same
allegations required in a petition for guardianship, to wit:
(a) The jurisdictional facts;
(b) The qualifications of the adopter;
(c) That the adopter is not disqualified by law;
(d) The name, age, and residence of the person to be adopted and of his relatives or of the
persons who have him under their care;
(e) The probable value and character of the estate of the person to be adopted.
Sec. 3, Rule 99. Consent to adoption. - There shall be filed with the petition a written
consent to the adoption signed by the child, if fourteen years of age or over and not incompetent,
and by the child's spouse, if any, and by each of its known living parents who is not insane or
hopelessly intemperate, or has not abandoned such child, or if there are no such parents by the
general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan
asylum, children's home, or benevolent society or person, by the proper officer or officers of such
asylum, home, or society or by such person; but if the child is illegitimate and has not been
recognized, the consent of the father to the adoption shall not be required. If the person to be
adopted is of age, only his or her consent and that of the spouse, if any, shall be required.
Art. 188. The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the proper
governmental instrumentality;
(3) The legitimate and adopted childrem, ten years of age or over, of the adopting
parent or parents;
(4) The illegitimate children, ten years of age or over, of the adopting parent, if
living with said parent and the latter's spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted.
Balane: 188.2 will not apply to the father of an illegitimate child...who has no parental
authority over the child.
Sec. 4, Rule 99. Order for hearing. - If the petition and consent filed are sufficient in form
and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place
for the hearing thereof, which date shall not be more than six (6) months after the entry of the
order, and shall direct that a copy of the order be published before the hearing at least once a week
for three (3) successive weeks in some newspaper of general circulation published in the province,
as the court shall deem best.
Sec. 5, Rule 99. Hearing and judgment. - Upon satisfactory proof in open court on the date
fixed in the order that such order has been published as directed, that the allegations of the petition
are true, and that it is a proper case for adoption and the petitioner or petitioners are able to bring
up and educate the child properly, the court shall adjudge that thenceforth the child is freed from
all legal obligations of obedience and maintenance with respect to its natural parents, except the
mother when the child is adopted by her husband, and is, to all legal intents and purposes, the child
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of the petitioner or petitioners, and that its surname is changed to that of the petitioner or
petitioners.
The adopted person or child shall thereupon become the legal heir of his parents by
adoption and shall also remain the legal heir of his parents.
In case of death of the adopted person or child, his parents and relatives by nature, and not
by adoption, shall be his legal heir.
Sec. 6, Rule 99. Proceedings as to child whose parents are separated. Appeal. - When
husband and wife are divorced or living separately and apart from each other, and the question as
to the care, custody, and control of a child or children of their marriage is brought before a CFI by
petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be
pertinent, shall award the care, custody, and control of each such child as will be for its best
interest, permitting the child to choose which parent it prefers to live with if it be over ten years of
age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity,
habitual drunkenness, incapacity, or poverty.
If, upon such hearing, it appears that both parents are improper persons to have the care,
custody, and control of the child, the court may either designate the paternal or maternal grandpar-
ent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge
of such child, or commit it to any suitable asylum, children's home, or benevolent society.
The court may in conformity with the provisions of the Civil Code order either or both
parents to support or help support said child, irrespective of who may be its custodian, and may
make any order that is just and reasonable permitting the parent who is deprived of its care and
custody to visit the child or have temporary custody thereof.
Either parent may appeal from an order made in accordance with the provisions of this
section.
No child under five (5) years of age shall be separated from its mother, unless the court
finds there are compelling reasons therefor. (as amended by PD 603)
Sec. 7, Rule 99. Proceedings as to vagrant or abused child. - When the parents of any
minor child are dead or by reason of long absence or legal or physical disability have abandoned it,
or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it,
or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause or
allow it to engage in begging, or to commit offenses against the law, the proper CFI, upon petition
filed by some reputable resident of the province setting forth the facts, may issue an order requiring
such parents to show cause, or, if the parents are dead or cannot be found, requiring the fiscal of
the province to show cause, at a time and place fixed in the order, why the child should not be taken
from its parents, if living; and if upon the hearing it appears that the allegations of the petition are
true, and that it is for the best interest of the child, the court may make an order taking it from its
parents, if living; and committing it to any suitable orphan asylum, children's home, or benvolent
society or person to ultimately placed, by adoption or otherwise, in a home found for it by such
asylum, children's home, society, or person.
Art. 162, PD 603. Adoption of Dependent or Abandoned or Neglected Child. - Upon the
filing of an application by any person to adopt a dependent, abandoned or neglected child in the
custody of any institution or individual mentioned in Article 156, it shall be the duty of the
provincial or city fiscal, any recognized legal association, or any appointed de officio counsel upon
being informed of such fact, to represent the DSWD in the proceedings. The costs of such
proceedings shall be de officio.
dependent child - one who is without a parent, guardian or custodian; or one whose parents,
guardian or other custodian for good cause desires to be relieved of his care and custody; and is
dependent upon the public for support.
abandoned child - one who has no proper parental care or guardianship, or whose parents or
guardians have deserted him for a period of at least six continuous months.
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Neglected child - one whose basic needs have been deliberately unattended or inadequately
attended. Neglect may occur in two ways:
a) physical neglect - when the child is malnourished, ill clad and without proper shelter.
A child is unattended when left by himself without provisions for his needs and/or
without proper supervision.
b) emotional neglect - when children are maltreated, raped or seduced; when children are
exploited, overworked or made to work under conditions not conducive to good health; or are
made to beg in the streets or public places, or when children are in moral danger, or exposed to
gambling, prostitution and other vices.
Art. 156, PD 603. Legal Custody. - When any child shall have been committed in
accordance with the preceding article and such child shall have been accepted by the
DSWD or any duly licensed child placement agency or individual, the rights of his natural
parents, guardian, or other custodian to exercise parental authority over him shall cease.
Such agency or individual shall be entitled to the custody and control of such child
during his minority, and shall have authority to care for, educate, train and place him out
temporarily or for custody and care in a duly licensed child placement agency.
Such agency or individual may intervene in adoption proceedings in such manner
as shall best inure to the child's welfare.
Sec. 8, Rule 99. Service of judgment. - Final orders or judgments under this rule
shall be served by the clerk upon the civil registrar of the city or municipality wherein the
court issuing the same is situated.
PD 603 THE CHILD AND YOUTH WELFARE CODE
Art. 32. Hurried decisions. - In all proceedings for adoption, steps should be taken
by the court to prevent the natural parents from making hurried decisions caused by strain
or anxiety to give up the child, and to ascertain, that all measures to strenghten the family
have been exhausted and that any prolonged stay of the child in his own home will be
inimical to his welfare and interest.
Art. 33. Case Study. - No petition for adoption shall be granted unless the DSWD
has made a case study of the child to be adopted, his natural parents as well as the
prospective adopting parents, and has submitted its report and recommendations on the
matter to the court hearing such petition.
The DSWD shall intervene on behalf of the child if it finds, after such case study,
that the petition should be denied.
Art. 34. Procedure. - The proceedings for adoption shall be governed by the Rules
of Court in so far as they are not in conflict with this Chapter.
Art. 35. Trial Custody. - No petition for adoption shall be finally granted unless
and until the adopting parents are given by the court a supervised trial custody period of at
least six months to assess their adjustment and emotional readiness for the legal union.
During the period of trial custody, parental authority shall be vested in the
adopting parents.
The court may, upon its own motion or on motion of the petitioner, reduce or
dispense with the trial custody period if it finds that it is to the best interest of the child.
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In such case, the court shall state its reasons for reducing or dispensing with the
said period.
An alien not permanently residing in the Philippines adopting a Filipino child shall
complete the supervised trial custody period to ensure the child's adjustment to a new
family life and culture, save in those cases provided for in Article 27* hereof (As amended
by EO 91, Dec. 17, 1986)
* Art. 27-31 repealed by Art. 254 of EO 209, as amended, the Family Code
Art. 36. Decree of Adoption. - If, after considering the report of the DSWD or duly licensed
child placement agency and the evidence submitted before it,
the court is satisfied that the petitioner is qualified to maintain, care for, and educate the
child, that the trial custody period has been completed, and that the best interests of the child will
be promoted by the adoption, a decree of adoption shall be entered, which shall be effective as of
the date of the original petition was filed.
The decree shall state the name by which the child is henceforth to be known.
Art. 37. Civil Registry Record. - The adoption shall be recorded in the local civil register
and shall be annotated on the record of birth, and the same shall entitle the adopted person to the
issuance of an amended certificate of birth.
Art. 38. Confidential Nature of Proceedings and Records. - All hearings in adoption cases
shall be confidential and shall not be open to the public.
All records, books and papers relating to the adoption cases in the files of the court, of the
DSWD, and of any other agency or institution participating in the adoption proceedings, shall be
kept strictly confidential.
Subject to the provisions of Article 7, in any case in which information from such records,
books and papers is needed, the person or agency requesting the release of the information may file
a petition to the court which entered the decree of adoption for its release.
If the court finds that the disclosure of the information is necessary for purposes connected
with or arising out of the adoption and will be for the best interests of the child, the court may
permit the necessary information to be released, restricting the purposes for which it may be used.
Arts 39-42. (Repealed by Art. 254 of EO 209, as amended, the Family Code)
EFFECTS OF ADOPTION
Art. 189. Adoption shall have the following effects:

(1) For civil purposes, the adopted child shall be deemed to be a legitimate child of
the adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname of
the adopters;
(2) The parental authority of the parents by nature over the adopted shall
terminate and be vested in the adopters, except that if the adopter is the spouse of the
parent by nature of the adopted, parental authority over the adopted shall be exercised
jointly by both spouses;
(3) The adopted shall remain an intestate heir of his parents and other blood
relatives.
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LAZATIN V. CAMPOS [92 SCRA 440] - Adoption is a juridical act, a proceeding in

rem, which creates between two persons a relationship similar to that which results from
legitimate paternity and filiation. Only an adoption made through the court, or in
pursuance with the procedure laid down under Rule 99, RC is valid in this jurisdiction. It
is not of natural law at all, but is wholly and entirely artificial. To establish the relation,
the statutory requirements must be carried out, otherwise, the adoption is an absolute
nullity.
The fact of adoption is never presumed, but must be affirmatively proved by the
person claiming its existence. On the contrary, the absence of a record of adoption raises
the presumption of its non-existence. Secondary evidence is admissible only after
establishing the prior existence of the instrument lost or destroyed. Declarations of the
deceased, made in his lifetime, of any intention to adopt is not sufficient to establish the
fact of adoption.
(Note: Records of a court order granting adoption even if not registered with the civil
registry, proves such adoption, and cannot be collaterally attacked in an intestate
proceeding.)
Art. 190. Legal or intestate succession to the estate of the adopted shall be governed
by the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving spouse
of the adopted shall inherit from the adopted, in accordance with the ordinary rules of
legal or intestate succession;
(2) When the parent, legitimate or illegitimate, or the legitimate ascendants of the
adopted concur with the adopters, they shall divide the entire estate, one-half to be
inherited by the parents or ascendants and the other half, by the adopters;
(3) When the surviving spouse or the illegitimate children of the adopted concur
with the adopters, they shall divide the entire estate in equal shares, one-half to be
inherited by the spouse or the illegitimate children of the adopted and the other half, by the
adopters.
(4) When the adopters concur with the illegitimate children and the surviving
spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be
inherited by the illegitimate children, one-third by the surviving spouse, and one-third by
the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the ordinary
rules of legal or intestate succession shall apply.
Balane: this provision is defectively drafted. It only gives rules with regard to intestate
succession...it does not give rules on legitimes...who are the adopted's compulsory heirs
and how much are their legitimes.
RESCISSION AND REVOCATION OF ADOPTION
WHO MAY FILE PETITION FOR RESCISSION OR REVOCATION?
- A minor or other incapacitated person, through a guardian or guardian ad litem

grounds: for the same causes that authorize deprivation of parental authority
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- The adopter
grounds:
(a) If the adopted person has attempted against the life of the adopter;
(b) When the adopted minor has abandoned the home of the adopter for more than three (3)
years;
(c) When by other acts the adopted person has repudiated the adoption.
(Sec. 1, Rule 100)
Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be
judicially rescinded upon petition of any person authorized by the court or proper
government instrumentality acting on his behalf, on the same grounds prescribed for loss
or suspension of parental authority. If the adopted is at least eighteen years of age, he may
petition for judicial rescission of the adoption on the same grounds prescribed for
disinheriting an ascendant.
Art. 192. The adopters may petition the court for the judicial rescission of the
adoption in any of the following cases:
(1) If the adopted has committed any act constituting a ground for disinheriting a
descendant; or
(2) When the adopted has abandoned the home of the adopters during minority for
at least one year, or, by some other acts, has definitely repudiated the adoption.
PROCEDURE
Sec. 2, Rule 100. Order to answer. - The court in which the petition is filed shall issue an
order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a
copy thereof.
The order and copy of the petition shall be served on the adverse party in such manner as
the court may direct.
Sec. 3, Rule 99. Judgment. - If upon trial, on the day set therefor, the court finds that the
allegations of the petition are true, it shall render judgment ordering the rescisson or revocation of
the adoption, with or without costs, as justice requires.
Sec. 4, Rule 100. Service of judgment. - A certified copy of the judgment rendered in
accordance with the next preceding section shall be served upon the civil registrar concerned,
within thiry (30) days from rendition thereof, who shall forthwith enter the action taken by the
court in the register.
Sec. 5, Rule 100. Time within which to file petition.- A minor or other incapacitated person
must file the petition for rescission or revocation of adoption within the five (5) years following his
majority, or if he was incompetent at the time of the adoption, within five (5) years following the
recovery from such incompetency.
The adopter must also file the petition to set aside the adoption within five (5) years from
the time the cause or causes giving rise to the rescission or revocation of the same took place.
EFFECTS
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Art. 193. If the adopted minor has not reached the age of majority at the time of
the judicial rescission of the adoption, the court in the same proceeding shall reinstate the
parental authority of the parents by nature, unless the latter are disqualified or
incapacitated, in which case the court shall appoint a guardian over the person and
property of the minor.
If the adopted person is physically or mentally handicapped, the court shall
appoint in the same proceeding a guardian over his person or property or both.
Judicial rescission of the adoption shall extinguish all reciprocal rights and
obligations between the adopters and the adopted arising from the relationship of parent
and child. The adopted shall likewise lose the right to use the surnames of the adopters and
shall resume his or her surname prior to the adoption.
The court shall accordingly order the amendment of the records in the proper
registries.
XI. Support
Art. 194. Support comprises everything indispensable for sustenance, dwelling,

clothing, medical attendance, education and transportation, in keeping with the financial
capacity of the family.
The education of the person entitled to be supported re ferred to in the preceding
paragraph shall include his schooling or training for some profession, trade or vocation,
even beyond the age of majority. Transportation shall include expenses in going to and from
school, or to and from place of work.
Art. 195. Subject to the provisions of the succeeding articles, the following are
obliged to support each other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children
of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children
of the latter; and
(5) Legitimate brothers and sisters, whether of the full or half-blood.
Art. 196. Brothers and sisters not legitimately related, whether of the full or half-
blood, are likewise bound to support each other to the full extent set forth in Article 194,
except only when the need for support of the brother or sister, being of age, is due to a cause
imputable to the claimant's fault or negligence.
Art. 197. For the support of legitimate ascendants, descendants, whether legitimate
or illegitimate, and brothers and sisters, whether legitimately or illegitimately related, only
the separate property of the person obliged to give support shall be answerable provided
that in case the obligor has no separate property, the absolute community or the conjugal
partnership, if financially capable, shall advance the support, which shall be deducted from
the share of the spouse obliged upon the liquidation of the absolute community or of the
conjugal partnership.
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Balane: Support of a legitimate child should come from community property...this article
speaks of legitimate descendants other than legitimate children
Art. 198. During the proceedings for legal separation or for annulment of marriage,
and for declaration of nullity of marriage, the spouses and their children shall be supported
from the properties of the absolute community or the conjugal partnership. After final
judgment granting the petition the obligation of mutual support between the spouses ceases.
However, in case of legal separation, the court may order that the guilty spouse shall give
support to the innocent one, specifying the terms of such order.
LERMA V. CA [61 SCRA 440] - Adultery is a good defense against a petition for
support. TA petition in bad faith, such as that filed by one who is himself or herself guilty
of an act which constitutes the ground for legal separation, can't be considered as within
the intendment of the law granting separate support. Under Art. 303, the obligation to
give support shall cease when the recipient, be he a forced heir or not, has committed some
act which gives rise to disinheritance; and under Art. 291, one of the causes for
disinheriting a spouse is when the spouse has given cause for legal separation. The right
to separate support or maintenance, even from the conjugal partnership property
presupposes the existence of a justifiable cause for the spouse claiming such right to live
separately.
REYES V. INES-LUCIANO [88 SCRA 803] - While it is true that the adultery of the
wife is a defense in an action for support, the alleged adultery must be established by
competent evidence. Mere allegation that the wife has committed adultery will not bar her
from the right to receive support pendente lite. During the hearing of the application for
support pendente lite, adultery must be properly proved to defeat the action for support.
(Note: But if both spouses are guilty of infidelity or if there has been consent or
condonation of the acts constituting infidelity, the right to support remains.)
Art. 199. Whenever two or more persons are obliged to give support, the liability
shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree;
(4) The brothers and sisters.
Balane: It is important to remember the order of preference given in this article.
Art. 200. When the obligation to give support falls upon two or more persons, the
payment of the same shall be divided between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge may order
only one of them to furnish the support provisionally, without prejudice to his right to claim
from the other obligors the share due from them.
When two or more recipients at the same time claim support from one and the same
person legally obliged to give it, should the latter not have sufficient means to satisfy all
claims, the order established in the preceding article shall be followed, unless the concurrent
obligees should be the spouse and a child subject to parental authority, in which case the
child shall be preferred.
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Balane: Art. 200 establishes the order for recipients of support
Suppose: X is being asked for support by different people

he should:
1. satisfy all if possible
2. if he does not have enough to satisfy all, then he should go by the order under Art. 200
Art. 201. The amount of support, in the cases referred to in Articles 195 to 196,
shall be in proportion to the resources or means of the giver and to the necessities of the
recipient.
Art. 195. Subject to the provisions of the succeeding articles, the

following are obliged to support each other to the whole extent set forth in the
preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of the full or half-blood.
Art. 196. Brothers and sisters not legitimately related, whether of the
full or half-blood, are likewise bound to support each other to the full extent set
forth in Article 194, except only when the need for support of the brother or sister,
being of age, is due to a cause imputable to the claimant's fault or negligence.
Art. 202. Support in the cases referred to in the preceding article shall be reduced
or increased proportionately, according to the reduction or increase of the necessities of the
recipient and the resources or means of the person obliged to furnish the same.
Art. 203. The obligation to give support shall be demandable from the time the
person who has a right to receive the same needs it for maintenance, but it shall not be paid
except from the date of judicial or extra-judicial demand.
Support pendente lite (See Rule 61) may be claimed in accordance with the Rules of
Court.
Payment shall be made within the first five days of each corresponding month.
When the recipient dies, his heirs shall not be obliged to return what he has received in
advance.
Balane: There are two basic rules with regard to support: (1) demandable when needed
and (2) payable when demanded
Demand for support may either be judicial or extrajudicial
Suppose:
X needed support from his father Y from 1 Jan 1996

But X only calls his father on 1 April 1996
On 1 June 1996, he files a suit against the father for support
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The Court orders support to be given
The entitlement for support shall retroact to 1 April 1996, date when extra-judicial
demand was made
Suppose no extra-judicial demand was made...then the reckoning date shall be the
date when the suit is filed...judicial demand.
Suppose demand is made but subsequently the claimant is able to support

himself...then he is entitled to support during such time that he was unable to support
himself...even if payment for such support is made after he had already recovered and been
able to support himself.
Balane: support in arrears...being an ordinary civil action, may be renounced...however,

the right to receive support may not be renounced
Art. 204. The person obliged to give support shall have the option to fulfill the
obligation either by paying the allowance fixed, or by receiving and maintaining in the
family dwelling the person who has a right to receive support. The latter alternative cannot
be availed of in case there is a moral or legal obstacle thereto.
Art. 205. The right to receive support under this Title as well as any money or
property obtained as such support shall not be levied upon an attachment or execution.
Art. 206. When, without the knowledge of the person obliged to give support, it is
given by a stranger, the latter shall have a right to claim the same from the former, unless
it appears that he gave it without intention of being reimbursed.
Art. 207. When the person obliged to support another unjustly refuses or fails to
give support when urgently needed by the latter, any third person may furnish support to
the needy individual, with right of reimbursement from the person obliged to give support.
This Article shall apply particularly when the father or mother of a child under the age of
majority unjustly refuses to support or fails to give support to the child when urgently
needed.
Art. 208. In case of contractual support or that given by will, the excess in amount
beyond that required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever
modification is necessary due to changes in circumstanced manifestly beyond the
contemplation of the parties.
RULES OF COURT
RULE 61
SUPPORT PENDENTE LITE
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Rule 61, Sec. 1. Application. - The plaintiff, at the commencement of the proper action, or
at any time afterwards but prior to final judgment, may file an application for support pendente
lite, stating the grounds for the claim and the financial conditions of both parties, and shall be
accompanied by affidavits, depositions or other authentic documents in support thereof.
Rule 61, Sec. 2. Notice. - Notice of the application shall be served upon the adverse party
who shall have three (3) days to answer, unless a different period of time is fixed by the court.
Rule 61, Sec. 3. Answer. - The answer shall be in writing and accompanied by affidavits,
depositions or other authentic documents supporting the same.
Rule 61, Sec. 4. Hearing. - After the answer is filed, or after the expiration of the time for
its filing, a day will be set for hearing. The facts in issue shall be proved in the same manner as is
provided in connection with motions.
Rule 61, Sec. 5, Order. - The court shall determine provisionally the pertinent facts, and
shall render such order as equity and justice may require, having due regard to the necessities of
the applicant, the means of the adverse party, the probable outcome of the case, and such other
circumstances as may aid in the proper elucidation of the question involved. If the application is
granted, the court shall fix the amount of money to be provisionally paid, and the terms of payment.
If the application is denied, the trial of the principal case on its merits shall be held as early as
possible.
Rule 61, Sec. 5. Enforcement of order. - If defendant fails to comply with an order granting
support pendente lite, he must be ordered to show cause why he should not be punished for
contempt. Should the defendant appear to have means to pay support and refuses to pay, either an
order of execution may be issued or a penalty for contempt may be imposed, or both.
XII. Parental Authority
General Provisions
Art. 209. Pursuant to the natural right and duty of parents over the person and
property of their unemancipated children, parental authority and responsibility shall
include the caring for and rearing of such children for civic consciousness and efficiency
and the development of their moral, mental and physical character and well-being.
MEDINA V. MAKABILI [27 SCRA 502] - While the law recognizes the right of a parent to
the custody of his/her child, courts must not lose sight of the basis principle that in all question
on the care, custody, education and property of the children, the latter's welfare shall be
paramount, and that for compelling reasons, even a child uinder seven may be ordered separated
from the mother.
Patria potestas has been transformed from "jus vitae ac necis (the right of life and death)
of the Roman Law, under which the offspring was virtually a chattel of his parents into a
radically different institution. The obligational aspect of parents to rear and care for their
children is now supreme. The right of parents to the company and custody of their children is
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but ancillary to the proper discharge of parental duties to provide the children with adequate
support, education, moral, intellectual and civic training and development.
The best interest of the minor can override the right of parents to the custody of their children the
parent/s is/are proved to be remiss in these sacred duties.
UNSON V. NAVARRO [101 SCRA 183] - Mother of child is having an affair with brother-in-
law. With this premise in view, it is in the best interest of the child to be freed from the
obviously unwholesome, not to say immoral influence that the mother has plced herself. The
situation might affect the moral and social outlook of the child who is in her formative years and
most impressionable stage in her life.
Art. 210. Parental authority and responsibility may not be renounced or

transferred except in the cases authorized by law.
SANTOS V. CA [242 SCRA 407] - The right of custody accorded to parents springs from the
exercise of parental authority. Parental authority or patria potestas in Roman Law is the
juridical institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latter's needs. It is a mass of rights and
obligations w/c the law grants to parents for the purpose of the children's physical preservation
and dev't, as well as the cultivation of their intellect and the education of their hearts and senses.
As regardas parental authority, "there is no power, but a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust for the welfare of the minor.
Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. The right attached to parental authority, being
purely personal, the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children's home or an orphan institution. When a parent entrusts
the custody of a minor to another, such as a friend or godfather, even in a document, what is
given is merely temporary custody and it does not constitute a renunciation of parental authority.
Even if a definite renunciation is manifested, the law still disallows the same.
The father and mother, being the natural guardians of unemancipated children, are
duty-bound and entitled to keep them in their custody and company. xxx
xxx
Only in cases of the parent's death, absence or unsuitability may substitute parental
authority be exercised by the surviving grandparent.
Art. 211. The father and the mother shall jointly exercise parental authority over
the persons of their common children. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.
Children shall always observe respect and reverence toward their parents and are
obliged to obey them as long as the children are under parental authority.
Art. 212. In case of absence or death of either parent, the parent present shall
continue exercising parental authority. The remarriage of the surviving parent shall not
affect the parental authority over children, unless the court appoints another person to be
the guardian of the person or property of the children.
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Art. 213. In case of separation of the parents, parental authority shall be exercised
by the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the parent
chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.
HONTIVEROS V. IAC [132 SCRA 745]
SC relates Art.213 with Art.363 (CC) and Art. 17 (PD 603, CYWC).
A363: In all questions on the care, custody, education and property of children, the latter's
welfare shall be paramount. No mother shall be separated from her child under 7 years of age,
unless the court finds compelling reasons for such measures.
A17: In case of separation of his(her) parents, no child under five years of age shall be separated
from his (her) mother, unless the ct. finds compelling reasons to do so.(PD 603, dated Dec.
10,1974)
Art.213 (FC): In case of separation of the parents, parental authority shall be exercised by the
parent designated by the court. The court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit.
ESPIRITU V. CA [242 SCRA 362] - Whether a child is under or over seven years of age, the
paramount criterion must always be the child's interest. Discretion is always given to the court to
decide who can best assure the welfare of the child, and award the custody on the basis of that
consideration.
Art. 214. In case of death, absence or unsuitability of the parents, substitute

parental authority shall be exercised by the surviving grandparent. In case several survive,
the one designated by the court, taking into account the same consideration mentioned in
the preceding article, shall exercise the authority.
Art. 215. No descendant shall be compelled, in a criminal case to testify against his
parents and grandparents, except when such testimony is indispensable in a crime against
the descendant or by one parent against the other.
Substitute and Special Parental Authority
Art. 216. In default of parents or a judicially appointed guardian, the following

persons shall exercise substitute parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
Art. 214. In case of death, absence or unsuitability of the parents,

substitute parental authority shall be exercised by the surviving grandparent. In
case several survive, the one designated by the court, taking into account the same
consideration mentioned in the preceding article, shall exercise the authority.
(2) The oldest brother or sister, over twenty one years of age, unless fit or
disqualified; and
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(3) The child's actual custodian, over twenty one years of age, unless unfit or
disqualified.
Whenever the appointment of a judicial guardian over the property of the child
becomes necessary, the same order of preference shall be observed.
Art. 217. In case of foundlings, abandoned, neglected or abused children and other
children similarly situated, parental authority shall be entrusted in summary judicial
proceedings to heads of children's homed, orphanages and similar institutions duly
accredited by the proper government agency.
Art. 218. The school, its administrators and teachers, or the individual, entity or
institution engaged in child care shall have special parental authority and responsibility
over the minor child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside
or outside the premises of the school, entity or institution.
EXCONDE V. CAPUNO [101 P 843] - Capuno, a student and a Boy Scout, attended a
Rizal Day parade, drove a jeep recklessly resulting in the death of two passengers. Father
was held solidarily liable for damages. SC, in an obiter, exculpated the school (not a party
to the case) on the ground that it was not a school of arts and trades. Justice JBL Reyes,
with whom Padilla concurred, dissented arguing that it was the school authorities who
should be held liable. Liability under this rule, he said, was imposed on (1) teachers in
general; and 2)heads of schools of arts and trades in particular. The modifying clause "of
establishment of arts and trades should apply only to "heads" and not to "teachers".
MERCADO V. CA [109 P 414] (elaborates on the Exconde decision)

A student cut a classmate with a razor blade. Parents of victim sued the culprit's parents
for damages. SC held in an obiter again (school not a party again) that the school was not
liable; it's not an establishment of arts and trades. Custody requirement had not been
proved as this "contemplates a situation where the student lives and boards with the
teacher, such that the control, direction and influence on the pupil supersedes those of the
parents.
PALISOC V. BRILLANTES [41 SCRA 548] (supersedes obiter in Exconde and

Mercado) A 16 year old student killed by classmate with fist blows in the school
laboratory. Although wrongdoer was already of age and was not boarding with the school,
head and teacher were held solidarily liable with him. The phrase "so long as (the students)
remain in their custody" means the protective and supervisory custody that the school and
its heads exercise over the pupils and students for as long as they are at attendance in the
school, including recess time. There is nothing in the law that requires that for such
liability to attach, the pupil or student who commits the tortious act must live and board in
the school as erroneously held by the lower court, and the dicta in Mercado (as well as in
Exconde on w/c it relied) w/c must now be deemed to have been set aside.
Note: (By JBL) Even students already of age were covered by the provision since they
were equally in the custody of the school and subject to its discipline.
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AMADORA V. CA [160 SCRA 315] - Amadora's son was shot to death by Daffon, a
classmate at school auditorium. The son was in school to submit physics project. The school
contends that the semester had already ended.
HELD: It is immaterial whether the semester has already ended for students were there for a
legitimate purpose. He was still in the custody of the school authorities. Even the mere savoring
of the company of his friends in the school premises is a legitimate purpose w/c would also bring
him in the custody of the school. The school principal and dean are not liable bec. not teachers-
in-charge, but are merely exercising general authority, not direct control and influence. But even
the teacher-in-charge is not liable bec. there is no showing that the teacher was negligent in
enforcing discipline upon Daffon nor had he waived observance of school rules and regulations.
His absence when the tragedy happened cannot be considered against him bec. he was not
supposed or required to report to school on that day. So who is liable here? It's probably the
dean of the boys. He had earlier confiscated an unlicensed gun from one of the students and
returned it to the latter w/o taking disciplinary action or reporting the matter to higher authorities.
But while he was clearly negligent, it does not necessarily link him to the shooting since it was
not shown that the gun was the one used to kill petitioner's son. Who is really liable here?
Nobody, since none of them was found to have been charged w/ the custody of the offending
student, or has been remiss in the discharge of his duties. While the court deeply sympathizes w/
the petitioners, the court cannot extend material relief as a balm to their grief.
PASCO V. CFI [160 SCRA 784] - Art. 2180, NCC w/c refers to liability of teachers or heads
of establishments of arts and trades for damages caused by students who are in their custody,
does not apply to the school or the university itself or to educational institutions which are not
schools of arts and trades. The provision concerned speaks only of "teachers or heads."
YLARDE V. AQUINO [163 SCRA 697] - As regards the principal, We hold that he cannot be
made responsible for the death of child Ylarde, he being the head of an academic school and not
a school of arts and trades. xxx Under Art. 2180, it is only the teacher and not the head of an
academic school who should be answerable for torts committed by their students. This Court
went on to say that in a school of arts and trades, it is only the head of the school who can be
held liable.
Where the school is academic rather than technical or vocational in nature, responsibility
for the tort committed by the student will attach to the teacher in charge of such student
following the first par. of the provision. This is the gen. rule. In the case of establishments of
arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the
gen. rule. In other words, teachers in general shall be liable for the acts of their students except
where the school is technical in nature, in w/c case it is the head thereof who shall be
answerable.
SALVOSA V. IAC [166 SCRA 274] - Under the penultimate par. of Art. 2180, teachers or
heads of establishments of arts and trades are liable for "damages caused by their pupils and
students or apprentices, so long as they remain in their custody." The rationale of such liability
is that so long as the student remains in the custody of a teacher, the latter "stands, to a certain
exten, in loco parentis (as to the student) and (is) called upon to exercise reasonable supervision
over the conduct of the (student.) Likewise, "the phrase used in (Art. 2180)-- so long as the
(students) remain in their custody' means that the protective and supervisory custody that the
school and its heads and teachers exercise over the pupils and students for as long as they are at
attendance in the school, including recess time.
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Art. 219. Those given the authority and responsibility under the preceding Article
shall be principally and solidarily liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding paragraph shall not
apply if it is proved that they exercised the proper diligence required under the particular
circumstances.
All other cases not covered by this and the preceding articles shall be governed by
the provisions of the Civil Code on quasi-delicts.
Balane: Art. 218 and 219

Five (5) points to remember:
1. the rules are not limited to schools of arts and trade...now "all schools"
2. authority and responsibility applies to activities inside and outside...provided
the activity is an authorized one
3. the liability of the school administrators and/or teachers is solidary and
primary...the liability of the parents is subsidiary
4. negligence is presumed...the burden is on the school/teacher to prove diligence
5. scope of liability of school...extends only to damage caused by the child in the
course of an authorized school activity.
Suppose the injuries were inflicted on the student by persons other than fellow
students...then do not apply 219 nor 2180NCC
The school is liable in such a case base on culpa contractual (PSBA v. CA)...school is
liable for injury caused by elements coming from outside of the school
Liability for injuries caused by students:
a. below 18 (RA 6809)
1. school admi/teachers are principally and solidarily liable

negligence is prima facie presumed
2. parents/guardian is subsidiarily liable
b. 18 and above
(Art 2180 NCC continues to apply)
1. applies to academic and non-academic institutions
a. academic institutions: liability attaches to teacher

b. non-academic institutions: liability attaches to head of establishment.
Effect of Parental Authority Upon the Persons of the Children
Art. 220. The parents and those exercising parental authority shall have with
respect to their unemancipated children or wars the following rights and duties:
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(1) To keep them in their company, to support, educate and instruct them by right
precept and good example, and to provide for their upbringing in keeping with their
means;
(2) To give them love and affection, advice and counsel, companionship and
understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of citizenship;
(4) To enhance, protect, preserve and maintain their physical and mental health at
all times;
(5) To furnish them with good and wholesome educational materials, supervise
their activities, recreation and association with others, protect them from bad company,
and prevent them from acquiring habits detrimental to their health, studies and morals;
(6) To represent them in all matters affecting their interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be required under the circumstances; and
(9) To perform such other duties as are imposed by law upon parents and
guardians.
LUNA V. IAC [137 SCRA 7] - The manifestation of the child Shirley that she would kill
herself or run away from home if she should be taken away from the petitioners (grandparents)
and forced to live w/ her natural parents is a circumstance that would make the execution of the
jugment in the special proc. inequitable, unfair, unjust, if not illegal. The threat may be proven
empty, but Shirley has a right to a wholesome family life that will provide her w/ love, care and
understanding, guidance and couselling, and moral and material security. But what if the threat
is for real. Besides, in her letters to the members of the court, Shirley depicted her biological
parents as selfish and cruel and who beat her often; and that they do not lover her. To return her
to the custody of the private resps. would be traumatic and cause irreparable damage to the child.
Art. 221. Parents and other persons exercising parental authority shall be civilly
liable for the injuries and damages caused by the acts or omissions of their unemancipated
children living in their company and under their parental authority subject to the
appropriate defenses provided by law.
Art. 222. The courts may appoint a guardian of the child's property, or a guardian
ad litem when the best interests of the child so require.
Art. 223. The parents or, in their absence or incapacity, the individual, entity or
institution exercising parental authority, may petition the proper court of the place where
the child resides, for an order providing for disciplinary measures over the child. The child
shall be entitled to the assistance of counsel, either of his choice or appointed by the court,
and a summary hearing shall be conducted wherein the petitioner and the child shall be
heard. However, if in the same proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the circumstances so warrant, the court
may also order the deprivation or suspension of parental authority or adopt such other
measures as it may deem just and proper.
Art. 224. The measures referred to in the preceding article may include the
commitment of the child for not more than thirty days in entities or institutions engaged in
child care or in children's homes duly accredited by the proper government agency.
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The parent exercising parental authority shall not interfere with the care of the
child whenever committed but shall provide for his support. Upon proper petition or at its
own instance, the court may terminate the commitment of the child whenever just and
proper.
Effect of Parental Authority Upon the Property of the Children
Art. 225. The father and the mother shall, jointly exercise legal guardianship over
the property of their unemacipated common child without the necessity of a court
appointment. In case of disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amount as the
court may determine, but not less than 10% of the value of the property or annual income,
to guarantee the performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the
place where the child resides, or, if the child resides in a foreign country, in the proper
court of the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all
incidents and issues regarding the performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the
child is under substitute parental authority, or the guardian is a stranger, or a parent has
remarried, in which case the ordinary rules on guardianship shall apply.
PINEDA V. CA [226 SCRA 754] - It is clear from Art. 225 that regardless of the value of the
unemancipated common child's property, the father and mother ipso jure become the legal
guardian of the child's property. However, if the market value of the prop. or the annual income
of the child exceeds P50,000, a bond has to be postedby the parents concerned to guarantee the
performance of the obligations of a general guardian. It must, hoewever, be noted that the 2nd
par. of Art. 225 speaks of the market value of the property or the annual income of the child,"
w/c means, therefore, the aggregate of the child's prop. or annual income; if this exceeds P50T, a
bond is required. There is no evidence that the share of each of the minors in the proceeds of the
group policy in question is the minor's only property. W/o such evidence, it would not be safe to
conclude that, indeed, that is his only property.
Art. 226. The property of the unemancipated child earned or acquired with his
work or industry or by onerous or gratuitous title shall belong to the child in ownership
and shall be devoted exclusively to the latter's support and education, unless the title or
transfer provides otherwise.
The right of the parents over the fruits and income of the child's property shall be
limited primarily to the child's support and secondarily to the collective daily needs of the
family.
Art. 227. If the parents entrust the management or administration of any of their
properties to an unemancipated child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly allowance in an amount not less than
that which the owner would have paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole
or in part shall not be charged to the child's legitime.
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Balane: This article refers to profectitious property property owned by the parents and
given to the child for administration
Ownership belongs to parents, Usufruct belongs to parents

The child is entitled to reasonable allowance...not less than what a 3rd person would get if
management was entrusted to such 3rd person, administration belongs to the child.
Suspension or Termination of Parental Authority
Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;
(2) Upon the death of the child;
(3) Upon emancipation of the child.
Art. 229. Unless subsequently revived by a final judgment, parental authority also
terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the
purpose;
(4) Upon final judgment of a competent court divesting the party concerned of
parental authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising
parental authority.
Art. 230. Parental authority is suspended upon conviction of the parent or the
person exercising the same of a crime which carries with it the penalty of civil interdiction.
The authority is automatically reinstated upon service of the penalty or upon pardon or
amnesty of the offender.
Art. 231. The court in an action filed for the purpose or in a related case may also
suspend parental authority if the parent or the person exercising the same; (1) Treats the
child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg, or
(4) Subject the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted
from culpable negligence of the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child so demands, the
court shall deprive the guilty party of parental authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived
in a case filed for the purpose or in the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated.
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CHUA V. CABANGBANG [27 SCRA 792] - F: This is a petition for habeas corpus by Pacita
Chua against Mr. and Mrs. Bartolome Cabangbang to recover custody of Betty Chua alias "Grace
Cabangbang," the natural daughter of Pacita, who was a hostess.
HELD: Abandonment is one of the grounds for depriving parents of parental authority over their
children.
xxx
Petitioner surrendered the custody of her child to the Cabangbangs in 1958. She waited
until 1963, or after the lapse of a period of 5 long years, before she brought action to recover
custody. Her claim that she did not take any step to recover her child bec. the Cabangbangs were
powerful and influential, does not deserve any modicum of credence. xxx
For 5 long yrs. and thereafter, she did not once move to recover the child. She
continuously shunned the natural and legal obligations w/c she owed to the child; completely
withheld her presence, her love, her care, and the opportunity to display maternal affection; and
totally denied her support and maintenance. Her silence and inaction have been prolonged to
such a point that her abandonment of the child and her total relinquishment of parental claim
over her, can and should be inferred as a matter of law.
Art. 232. If the person exercising parental authority has subjected the child or
allowed him to be subjected to sexual abuse, such person shall be permanently deprived by
the court of such authority.
Art. 233. The person exercising substitute parental authority shall have the same
authority over the person of the child as the parents.
In no case shall the school administrator, teacher or individual engaged in child
care exercising special parental authority, inflict corporal punishment upon the child.
XII. EMANCIPATION AND AGE OF MAJORITY
Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise
provided, majority commences at the age of eighteen years. (as amended by RA 6809)
[Emancipation also takes place:

(1) By the marriage of the minor; or
(2) By the recording in the Civil Register of an agreement in a public instrument executed by the
parent exercising parental authority and the minor at least 18 years of age. Such emancipation
shall be irrevocable.]
Tolentino: RA 6809 provides that its effectivity on existing wills, bequests, donations, grants,
insurance policies and similar instruments containing references and provisions favorable to
minors will not retroact to their prejudice.
Art. 235. (Repealed by RA 6809)
Art. 236. Emancipation shall terminate parental authority over the person and
property of the child who shall then be qualified and responsible for all acts of civil life,
save the exceptions established by existing laws in special cases.
Contracting marriage shall require parental consent until the age of 21.
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Nothing in this Code shall be construed to derogate from the duty or responsibility
of parents and guardians for children and wards below 21 years of age mentioned in the
second and third paragraphs of Article 2180 of the Civil Code (as amended by RA 6809)
Tolentino: Requisites of Marriage.-- A marriage of a person bet. 18 and 21 years will still
require parental consent, w/o w/c the marriage will be viodable. This is an anomalous situation.
An emancipated person, who can enter into any contract and qualified for all acts of civil life, is
still required to have parental consent for marriage. The provisions on marriage should have
been adjusted.
Quasi-delicts of Children.
Art. 2180. xxx The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are
under their authority and live in their company. (Civil Code.)
Tolentino: The last par. of Art. 236 is even more anomalous. Upon emancipation of a child after
reaching 18 years, parental authority ceases, and yet responsibility for his torts continues until he
reaches 21 years of age. This is a case of responsibility w/o authority.
Balane: Under the present law, there are 2 classifications of emancipation: Perfect
emancipation where the emancipated is qualified for all acts of civil life. Perfect emancipation is
attained upon reaching the age of 21 yrs. old.
Imperfect Emancipation. An 18 yr-old, although emancipated needs parental consent for
marriage. Parents or guardians continue to be liable under Art. 2180 until he reaches the age of
21 yrs. old.
BALANE CASE:
BALIWAG TRANSIT V. CA [169 S 849] - F: On 4/10/85 a complaint for damages arising from
breach of contract of carriage was filed by pvt. resps., the sps. Sotero Cailipan, Jr. and Zenaida Lopez,
and their son George, of legal age, against petitioner Baliwag Transit. The complaint alleged that George
who was a paying passenger on a Baliwag bus on 12/17/83, suffered multiple serious physical injuries
when he was thrown off said bus driven in a careless and negligent manner by Leonardo Cruz, the
authorized bus driver of Baliwag. As a result, he was confined in the hospital for treatment, incurring
medical expenses, w/c were borne by his parents.
Thereafter Fortune Insurance (insurance co. of Baliwag) and Baliwag filed Motions to Dismiss on
the ground that George, in consideration of P8,020.50 had executed a "Release of Claims" w/c motions
were denied as they were filed beyond the time for pleading and after the answer has already been filed.
A motion to admit amended ans. w/c incorporated the affirmative defense of release was then admitted.
The RTC-Bulacan dismissed the compalaint and the 3rd party complaint on the ground of release. The
CA set aside the order of RTC.
ISSUE: The legal effect of the Release of Claims executed by George during the pendency of
the case.
HELD: We hold that since the suit is one for breach of contract of carriage, the Release of
Claims executed by him, as the injured party, discharging Fortune Insurance and Baliwag from
any and all liability is valid. He was then of legal age, a graduating student of Agricultural
Engineering, and had the capacity to do acts w/ legal effect (Art. 37 in relation to Art. 402.)
Thus, he could sue and be sued even w/o the assistance of his parents.
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XIV. SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
Scope of Application
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title
shall apply in all cases provided for in this Code requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical rules.
Separation in Fact Between Husband and Wife
Art. 239. When a husband and wife are separated in fact, or one has abandoned the
other and one of them seeks judicial authorization for a transaction where the consent of
the other spouse is required by law but such consent is withheld or cannot be obtained, a
verified petition may be filed in court alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying the transaction, and,
if none, shall describe in detail the said transation and state the reason why the required
consent thereto cannot be secured. In any case, the final deed duly executed by the parties
shall be submitted to and approved by the court.
Art. 240. Claims for damages by either spouse, except costs of the proceedings, may
be litigated only in a separate action.
Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other
spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in
the regional trial court or its equivalent, sitting in the place where either of the spouses
resides.
Art. 242. Upon the filing of the petition, the court shall notify the other spouse,
whose consent to the transaction is required, of said petition, ordering said spouse to show
cause why the petition should not be granted, on or before the date set in said notice for the
initial conference. The notice shall be accompanied by a copy of the petition and shall be
served at the last known address of the spouse concerned.
Art. 243. A preliminary conference shall be conducted by the judge personally

without the parties being assisted by counsel. After the initial conference, if the court deems
it useful, the parties may be assisted by counsel at the succeeding conferences and hearings.
Art. 244. In case of non-appearance of the spouse whose consent is sought, the court
shall inquire into the reasons for his failure to appear, and shall require such appearance,
if possible.
Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not
secured, the court may proceed ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall endeavor to protect the interests of
the non-appearing spouse.
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Art. 246. If the petition is not resolved at the initial conference, said petition shall
be decided in a summary hearing on the basis of affidavits, documentary evidence or oral
testimonies at the sound discretion of the court. If testimony is needed, the court shall
specify the witnesses to be heard and the subject matter of their testimonies, directing the
parties to present said witnesses.
Art. 247. The judgment of the court shall be immediately final and executory.
Art. 248. The petition for judicial authority to administer or encumber specific
separate property of the abandoning spouse and to use the fruits or proceeds thereof for
the support of the family shall also be governed by these rules.
Incidents involving Parental Authority
Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving
parental authority shall be verified.
Art. 223. The parents or, in their absence or incapacity, the individual, entity or
institution exercising parental authority, may petition the proper court of the place where
the child resides, for an order providing for disciplinary measures over the child. The child
shall be entitled to the assistance of counsel, either of his choice or appointed by the court,
and a summary hearing shall be conducted wherein the petitioner and the child shall be
heard. However, if in the same proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the circumstances so warrant, the court
may also order the deprivation or suspension of parental authority or adopt such other
measures as it may deem just and proper.
Art. 225. The father and mother shall, jointly exercise legal guardianship over the
property of their unemancipated common child without the necessity of a court
appointment. In case of disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amount as the
court may determine, but not less than 10% of the value of the property or annual income,
to guarantee the performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the
place where the child resides, or, if the child resides in a foreign country, in the proper
court of the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all
incidents and issue regarding the performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the
child is under substitute parental authority, or the guardian is stranger, or a parent has
remarried, in which case the ordinary rules on guardianship shall apply.
Art. 250. Such petitions shall be filed in the proper court of the place where the
child resides.
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Art. 251. Upon the filing of the petition, the court shall notify the parents or in their
absence or incapacity, the individuals, entities or institutions exercising parental authority
over the child.
Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings
under this Chapter insofar as they are applicable.
Other Matters Subject to Summary Proceedings
Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Article 41, 51, 69, 73, 96, 124 and 217, insofar as they
applicable.
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years and the spouse present had a
well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
Art. 51. In said partition, the value of the presumptive legitimes of all common chil-
dren, computed as of the date of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death of either
or both of the parents; but the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their legitime.
Art. 69. The husband and wide shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.
Art. 73. Either spouse may exercise any legitimate profession, occupation, business
or activity without the consent of the other. The latter may object only on valid, serious,
and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the
benefit accrued prior to the objection, the resulting obligation shall be enforced against the
separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith.
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Art. 96. The administration and enjoyment of the community property shall belong
to both spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed of
within five years from the date of the contract implementing such decision.
the administration of the common properties, the other spouse may assume sole powers of
the absence of such authority or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon
the acceptance by the other spouse or authorization by the court before the offer is
withdrawn by either or both offerors.
availed of within five years from the date of the contract implementing such decision.
the absence of such authority or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon
the acceptance by the other spouse or authorization by the court before the offer is
withdrawn by either or both offerors.
Art. 217. In case of foundlings, abandoned, neglected or abused children and other
children similarly situated, parental authority shall be entrusted in summary judicial
proceedings to heads of children's homes, orphanages and similar institutions duly accred-
ited by the proper government agency.
FINAL PROVISIONS
Art. 254. (Repeal of provisions)
Art. 255. If any provision of this code is held invalid, all the other provisions not
affected thereby shall remain valid.
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws.
Art. 257. Effectivity (August 3, 1988)
XVI. CARE AND EDUCATION OF CHILDREN
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Art. 363. In all questions on the care, custody, education and property of children, the
latter's welfare shall be paramount. No mother shall be separated from her child under seven
years of age, unless the court finds compelling reasons for such measure.
FLORES V. ESTEBAN [51 O.G. 9, p. 4525 (1955)] - As against the paternal grandparent, the
maternal grandparent may be given substitute parental authority if it will be for the best interest
and welfare of the child. It should be considered that the maternal grandmother is almost a
mother to the child since he was 20 days old, and there exists mutual love between the
grandmother and the child. This is without prejudice to the obligation of the father to contribute
to his maintenance.
LUNA V. IAC [137 S 7 (1985)] - In child custody cases, an execution of final judgment of
appellate courts awarding child custody to the child's biological parents may be stayed where
during hearings on execution the child manifests that she will kill herself and escape if given to
custody of her biological parents. In child custody cases, the child's welfare and future is
paramount and execution of a final judgment which may run contrary thereto may be set aside.
XVII. USE OF SURNAMES
Tolentino: Concept of Name.-- A name is a word or combination of words by w/c a person is

known and identified, and distinguished from others, for the convenience of the world at large in
addressing him, or in speaking of or dealing w/ him. (Balane quotes Tolentino on this.)
Characteristics of Name.-- (1) It is absolute, intended to protect the individual from being
confused w/ others; (2) it is obligatory in certain respects, for nobody can be w/o a name; (3) It
is fixed, unchageable, or immutable, at least at the start, and may be changed only for good cause
and by judicial proceedings; (4) it is outside the commerce of man, and, therefore, inalienable
and intransmissible, by act inter vivos or mortis causa; (5) it is imprescriptible. (Balane quotes
Tolentino on this.)
Balane: Surname.-- A surname is that w/c identifies the family from w/c a person belongs and
is passed from parent to child.
Basic Principles:
(1) A person's real name is that w/c appears in the Civil Registry.
(2) If you want to change your real name, you have to go through judicial proceedings, a petition
for change of name.
(3) However, a person can use other names w/c are authorized by CA 142 as amended by RA
6085 (re: use of pseudonym.)
(4) Some guidelines regarding change of name
(a) In a petition for change of name, courts are generally strict. You have to show
sufficient cause;
(b) However, in a petition for injunction or in a criminal case for violation of CA 142,
courts will generally be more liberal (Legamia v. IAC, infra. Tolentino v. CA, infra.) provided it
does not cause confusion, there is no fraud or BF;
(c) In case of adoption where the woman adopts alone, it is the middle name that should
be given the child. (Johnston v. Republic, infra.)
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Art. 364. Legitimate and legitimated children shall principally use the surname of
the father.
BALANE CASES:
NALDOZA V. REPUBLIC [112 S 568] - F: Zosima Naldoza was married to Dionesio

Divinagracia on 5/30/70. They begot 2 children named Dionesio, Jr. and Bombi Roberto. Zosima's
husband left her after she confronted him w/ his previous marriage w/ another woman. He never returned
to the conjugal abode. He allegedly swindled Cong. Maglana in the sum of P50, 000, and other persons.
The classmates of Dionesio, Jr. and Bombi allegedly teased them about their father being a swindler.
Two criminal cases for estafa were filed in court against the father.
Desirous of obliterating any connection bet. her 2 minor children and their scapegrace father,
Zosima, on 8/10/78, filed in CFI-Bohol a petition wherein she prayed that the surname of their 2 children
be changed from Divinagracia to Naldoza, her surname. After due publication and hearing, the trial court
dismissed the petition.
ISSUE: W/n two minors should be allowed to discontinue using their father's surname and
should use only their mother's surname.
HELD: No. We hold that the trial court did not err in denying the petition for change of name.
The 2 minors, who are presumably legitimate, are supposed to bear principally the
surname Divinagracia, their father's surname (Art. 364.)
To allow them, at their mother's behest, to bear only their mother's surname and to
discard altogether their father's surname, thus removing the prima facie evidence of their paternal
provenance or ancestry, is a serious matter in w/c, ordinarily, the minors and their father should
be consulted. The mother's desire should not be the sole consideration.
The change of name is allowed only when there are proper and reasonable causes for
such change. Where, as in this case, the petitioners are minors, the courts should take into
account whether the change of name would redound (to) their welfare or would prejudice them.
To allow the change of surname would cause confusion as to the minors' parentage and
might create the impression that the minors are illegitimate since they would carry the maternal
surname only. That would be inconsistent w/ their legitimate status as indicated in their birth
records.
REPUBLIC V. MARCOS [182 S 223] - F: On 3/30/68, a verified petition was filed by pvt. resp
Pang Cha Quen alleging that she is a citizen of Nationalist China, married to Alfredo de la Cruz, a
Filipino; that she had resided in Baguio City since her birth on 1/29/30; that by a previous marriage to Sia
Bian alias Huang Tzeh Lik, a citizen of Nationalist China, she gave birth to a daughter, May Sia alias
Manman Juang on 1/28/58 in the city of Mla.; that on 1/12/59, she caused her daughter to be registered as
an alien under the name of Mary Pang, i.e., using the maternal surname, bec. the child's father had
abandoned them; that her daughter has always used the name Mary Pang at home and in the
Baguio Chinese Patriotic School where she studies; that on 8/16/66, petitioner Pang Cha Quen
married Alfredo de la Cruz; that as her daughter has grown to love and recognize her stepfather
as her own father, she desires to adopt and use his surname "De la Cruz" in addition to her name
"Mary Pang" so that her full name shall be Mary Pang De la Cruz; that Alfredo De la Cruz gave
his conformity to the petition by signing at the bottom of the pleading. Finding the petition
meritorious, resp. Judge issued an order on 2/12/69 authorizing the name of the minor, May Sia
alias Manman Huang also known as Mary Pang, to be changed to Mary Pang de la Cruz.
ISSUES: (1) W/n resp. Judge had acquired jurisdiction over the case; and
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(2) W/n resp. Judge erred in granting the petition although pvt. resp. Pang Cha Quen
failed to adduce proper and reasonable cause for changing the name of the minor "May Sia" alias
"Manman Huang."
HELD: (1) The trial court did not acquire jurisdiction over the subject of the proceedings, i.e.,
the various names and aliases of the petitioner w/c she wished to change to "Mary Pang De la
Cruz/" The omission of her other alias-- "Mary Pang"-- in the captions of the court's order and
of the petition defeats the purpose of the publication. For a publication of a petition for a change
of name to be valid, the title thereof should include, first, his real name, and second, his aliases,
if any." (Jesus Ng Yao Sing v. Republic, 16 S 483.) [T]he reason for the rule requiring the
inclusion of the name sought to be adopted and the other names or aliases of the applicant in the
title of the petition or in the caption of the published order is that the ordinary reader only
glances fleetingly at the caption of the published order or the title of the petition in a spec. proc.
for a change of name. Only if the caption or the title strikes him bec. one or all of the names
mentioned are familiar to him, does he proceed to read the contents of the order.
(2) The court erred in granting a change of name. The reasons offered for changing the
name of petitioner's daughter are: (1) that "her daughter in law grew up w/, and learned to love
and recognize Alfredo De la Cruz as her own father"; (2) to afford her daughter a feeling of
security; and (3) that Alfredo de la Cruz agrees to this petition.
Clearly, these are not valid reasons for a change of name. The general rule is that a
change of name should not be permitted if it will give a false impression of family relationship to
another where none actually exists. [O]ur laws do not authorize legitimate children to adopt the
surname of a person not their father, for to allows them to adopt the surname of their mother's
husband, who is not their father, can result in confusion of their paternity.
Another reason for disallowing the petition for change of name is that it was not filed by
the proper party. The petition must be filed by the person desiring to change his/her name, even
if it may be signed and verified by some other person in his behalf. In this case, however, the
petition was filed by Pang Cha Quen not by May Sia.
Hence, only May Sia herself, alias Manman Huang, alias Mary Pang, when she shall
have reached the age of majority, may file the petition to change her name. The decision to
change her name, the reason for the change, and the choice of a new name and surname shall be
hers alone to make. It must be her personal choice.
Art. 365. An adopted child shall bear the surname of the adopter.
BALANE CASE:
JOHNSTON V. REPUBLIC [7 S 1040] - F: On 6/24/60, petitioner-appellant Isabel Valdes

Johnston, filed a petition for the adoption of one Ana Isabel Henriette Antonio Concepcion Georgiana, 2
yrs. and 10 mos. old, then under the custody of the Hospicio de San Jose. After hearing, the lower court
rendered a decision granting the petition. The petitioner-appellant filed a motion on 10/24/60, praying
that the surname given to the minor be "Valdes Johnston," instead of "Valdes" only, but this motion was
denied by the lower court. Hence this appeal.
HELD: We agree w/ the decision of the LC authorizing or prescribing the use of the surname
Valdez by the adopted child. The provision of law (341, par. 2) w/c entitles the adopted minor to
the use of the adopter's surname, refers to the adopter's own surname and not to her surname
acquired by virtue of marriage. Petitioner-appellant's real surname is Valdes and not Johnston,
and as she made the adoption singly w/o the concurrence of her H, and not as a married woman,
her name as adopter was her maiden name. The adoption created a personal relationship bet. the
adopter and the adopted, and the consent of Isabel Valdes' H, to the adoption by her individually,
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did not have the effect of making him an adopting father, so as to entitle the child to the use of
Johnston's own surname.
Since adoption gives the person adopted the same rights and duties as if he were a
legitimate child of the adopter (341, par. 1, NCC), much confusion would indeed result, if the
minor child herein were allowed to use the surname of the spouse who did not join in the
adoption.
Art. 366. A natural child acknowledged by both parents shall principally use the
surname of the father. If recognized by only one of the parents, a natural child shall
employ the surname of the recognizing parent.
Tolentino: This rule applies even when the recognition was made first by the mother and later by
the father, bec. no distinction is made in the law.
In view of the elimination in the Family Code of the "Natural Child" as a class of
children, this provision should apply to all illegitimate children.
BALANE CASE:
LLANETA V. AGRAVA [57 S 29] - F: Teresita's mother, Anatacia Llaneta, was once married to
Serafin Ferrer w/ whom she had but 1 child. In 1942 Serafin F. died and about 4 yrs. later Anatacia had
relations w/ another man out of w/c Teresita was born. Shortly after Teresita's (T) birth, Atanacia (A)
brought her to Mla. where all of them lived w/ A's mother-in-law, Victoria vda. de Ferrer. T was raised
in the household of the Ferrers, using the surname of Ferrer in all her dealings and throughout her
schooling.
When she was about 20 yrs. old, she applied for a copy of her birth cert. in Irosin, Sorsogon, where she
was born, as she was required to present it in connection w/ a scholarship granted to her. It was then that
she discovered that her registered surname is Llaneta-- not Ferrer-- and that she is the illegitimate child of
A and an unknown father.
On the ground that her use thenceforth of the surname of Llaneta, instead of Ferrer, w/c she had
been using since she acquired reason ,would cause untold difficulties and confusion, T petitioned the
court below for change of name. After trial, resp. Judge, denied her petition. Hence, the present
recourse.
HELD: The petition is granted.

The petitioner has established that she has been using the surname Ferrer for as long as
she can remember; that all her records in school and elsewhere, put her name down as T. Ferrer;
that her friends and associates know her only as T. Ferrer; and that even the late Serafin F.'s
nearest of kin have tolerated and still approve of her use of the surname Ferrer. Indeed, a sudden
shift at this time by the petitioner to the name of T Llaneta (in order to conform to that appearing
in the birth cert.) would result in confusion among the persons and entities she deals w/ and
entail endless and vexatious explanations of the circumstances of her new name. The petitioner
has established that she has been using the surname Ferrer for as long as she can remember; that
all her records in school and elsewhere, put her name down as T. Ferrer; that her friends and
associates know her only as T. Ferrer; and that even the late Serafin F.'s nearest of kin have
tolerated and still approve of her use of the surname Ferrer.
The resp. court places reliance on the decisions of this court w/c disallowed such change
of name as would give the false impression of family relationship. The principle remains valid
but only to the extent that the proposed change of name would in great probability cause
prejudice or future mischief to the family whose surname it is that is involved or to the
community in general.
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Art. 367. Natural children by legal fiction shall principally employ the surname of
the father.
Art. 368. Illegitimate children referred to in article 287 shall bear the surname of
the mother.
Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname;
(2) Her maiden first name and her husband's surname; or
(3) Her husband's full name, but prefixing a word indicating that she is his wife,
such as "Mrs."
Tolentino: Husband's Surname Optional.-- The word "may" is used, indicating that the use of
the husband's surname by the wife is permissive rather than obligatory. We have no law w/c
provides that the wife shall change her surname to that of the husband upon marriage. It seems,
therefore, that a married woman may use only her maiden name and surname. She has an option,
but not a duty, to use the surname of the husband in any of the ways provided by this article.
Right of Wife not Exclusive.-- The wife cannot claim an exclusive right to use the husband's
surname. She cannot be prevented from using it; but neither can she restrain others from using it.
BALANE CASES:
TELMO V. REPUBLIC [73 S 29] - F: Milagros Llerena was admitted to the bar in 1923. In her
atty.'s oath, she used the name Milagros Llerena-Telmo. In 1930 or '31 she married Pedro M. Telmo.
They begot 4 sons, now all of age, who were baptized w/ the surname "Telmo" but who since
kindergarten days have been using the surname "Thelmo." When the Telmo spouses sojourned in the US,
Pedro T., following the American style, changed the spelling of his name to "Thelmo." In his diploma as
mechanical and marine engr. issued by the Univ. of Michigan, his surname is allegedly spelled "Thelmo."
Mrs. Thelmo was appointed justice of the peace of Zamboanga and later as a midnight Judge of CFI but
was unable to exercise the functions of that office. She admitted in the administrative cases filed against
her when she was still a justice of the peace some complainants used the name "Telmo" and others used
"Thelmo."
On 2/15/64, she filed a petition in the CFI of Zamboanga City praying that her husbands's
surname "Telmo" be changed to "Thelmo." Her H did not join her as a co-petitioner. But he executed an
affidavit wherein he manifested that he interposed no objection to his wife's petition. Two of her 4 sons
executed a joint affidavit expressing conformity to their mother's petition.
The lower court granted the petition. Hence, this appeal.
HELD: The appeal may be upheld on a jurisdictional ground. Mrs. Telmo in the title of her
petition did not indicate that she wanted her surname to be changed to "Thelmo." The published
order setting her petition for hearing reproduced the defective title thereof. That publication was
invalid and ineffective.
A change of name is a proc. in rem. Jurisdiction to hear and determine the petition for
change of name is acquired after due publication of the order containing certain data, among w/c
is the name sought to be adopted, w/c should be indicated in the title of the petition
The reason for the rule is that the ordinary reader "glances fleetingly at the captions of
the published orders or the titles of the petitions. Only if the caption or the title strikes him does
the reader proceed to read on. And the probability is great that the reader does not at all notice
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the other names and/or aliases or the applicant if these are mentioned only in the body of the
order or petition.
As the tile of the petition in this case and the order setting it for hearing were deficient,
the lower court did not acquire jurisdiction over the proc.
On the issue of w/n there is ample justification to allow Mrs. Telmo to change the
spelling of her husband's surname, the SC held in the negative.
A married woman may use her husband's surname. It is axiomatic that if she desires
judicial authorization to change the spelling of his surname, her H should initiate the proceeding.
In the instant case, the anomaly is that the H did not ask for judicial authority to change the
spelling of his surname. It was his wife who filed the petition. The irregularity in the petition is
obvious.
It is true that the wife submitted to the court her H's affidavit of conformity to the
change in the spelling of his surname. But that would not prevent him and their children from
using the old spelling. And in that event, confusion and error might arise.
Moreover, the court has arrived at the conclusion that those reasons adduced by Mrs.
Telmo for a change in the spelling of her H's surname are not substantial and cogent enough to
sustain her petition.
TOLENTINO V. CA [162 S 66] - F: Resp. Consuelo David was legally married to Arturo
Tolentino (AT) on 2/8/31. Their marriage was dissolved and terminated pursuant to the law during the
Japanese occupation on 9/15/43 by a decree of absolute divorce granted by the CFI-Mla. on the ground of
desertion and abandonment by the wife. The trial court granted the divorce. Thereafter, AT married a
certain Pilar Adorable who died soon after their marriage. AT subsequently married Constancia on
4/21/45. Consuelo David, on the other hand, continued using the surname of Tolentino after the divorce
and up to the time of the filing of this complaint. The 3rd party def. in his ans., admitted that the use of
the surname Tolentino by pvt. resp. was w/ his and his family's consent.
ISSUE: W/n a divorced woman may continue using the surname of her former husband.
HELD: Yes. There is no merit in the petitioner's claim that to sustain the private resp.'s stand is
to contradict Articles 370 and 371 of the NCC. It is significant to note that Sen. Tolentino
himself in his commentary on Art. 370 states that "the wife cannot claim an exclusive right to
use the husband's surname. She cannot be prevented from using it; but neither can she restrain
others from using it."
Art. 371 is not applicable to the case at bar bec. Art. 371 speaks of annulment while the
case before us refers to absolute divorce where there is a severance of valid marriage ties. The
effect of divorce is more akin to the death of the spouse where the deceased woman continues to
be referred to as the Mrs. of her H even if the latter has remarried rather than to annulment since
in the latter case, it is as if there had been no marriage at all.
The pvt. resp. has established that to grant the injunction to the petitioner would be an
act of serious dislocation to her. She has given proof that she entered into contracts w/ 3rd
persons, acquired prop. and entered into other legal relations using the surname Tolentino. The
petitioner, on the other hand, has failed to show that she would suffer any legal injury or
deprivation of legal rights inasmuch as she can use her H's surname and be fully protected in case
the resp. uses the surname Tolentino for illegal purposes.
There is no usurpation of the petitioner's name and surname in this case so that the mere
use of the surname Tol. by pvt. resp cannot be said to have injured the petitioner's rights. The
usurpation of name implies some injury to the interests of the owner of the name. It consists in
the possibility of confusion of identity xxx bet. the owner and the usurper. It exists when a
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person designates himself by another name. xxx. The following are the elements of usurpation
of a name: (1) there is an actual use of another's name by def.; (2) the use is unauthorized; and
(3) the use of another's name is to designate personality or identify a person. None of these
elements exists in the case at bar and neither is there a claim by petitioner that the pvt resp.
impersonated her.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she
shall resume her maiden name and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise; or

(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.
Tolentino: This is so bec. her married status is not affected by the separation, there being no
severance of the vinculum.
Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with article 370.
Tolentino: Inasmuch as there is no more vinculum actually existing w/ the deceased husband,
and considering that the widow has her own independent personality, the use of the former
husband's surname is optional, and not obligatory, for her.
Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word "Junior" can be used only by a son. Grandsons and other direct
male descendants shall either:
(1) Add a middle name or the mother's surname; or
(2) Add the Roman numerals II, III, and so on.
Art. 376. No person can change his name or surname without judicial authority.
Tolentino: Sufficient Cause Necessary.-- Examples of sufficient causes are: (1) when the
name is ridiculous, or tainted with dishonor, or extremely difficult to write or pronounce; (2)
when the right to a new name is a consequence of a change of status, such as when a natural child
is acknowledged or legitimated; (3) when the change is necessary to avoid confusion; (4)
having continuously used and been known since childhood by a Filipino name, unaware of his
alien parentage; (5) A sincere desire to adopt a Filipino name to erase signs of a former alien
nationality w/c unduly hamper social and business life. (Republic v. Marcos, supra.)
The imposition in a will or donation of the condition that the beneficiary change his
name is not sufficient cause.
Effect of Change on Children.-- When a father changes his name, this will not affect the names
of his children. The children who are of age are independent of the father, and their names can
be changed only upon their own petition. The names of the minor children, however, may be
changed on petition of the father, if the same justification exists w/ respect to them.
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For legal purposes, the true or official name of a person is that w/c is recorded in the civil
register.
BALANE CASES:
REPUBLIC V. AVILA [122 S 483] - F: Pvt. resps., who are brothers and sisters, prayed that their
names be changed as follows: Tan Cheng Beng to Johnny Yap Tan; Tan Ay Kim to Jeanette Yap Tan;
Tan Cheng Keng to Jimmy Yap Tan; and Tan Ay Gho to Jennifer Yap Tan. The petition was published
once a week for 3 consecutive weeks in a newspaper of gen. circ. in the city and province of Cotabato
where the pvt. resps. reside. xxx It appears that pvt. resps. are the legitimate children of the sps. Lim
Heong Ho and Yap Kun, both Chinese. Their mother, Yap Kun, was already dead when this petition was
filed. xxx The present names of the pvt. resps. are what appear in their certs. of birth, in the records of
the Bureau of Immigration, their certs. of registration, and in their school records. The reasons adduced
by pvt. resps. for wanting the change of their names are as follows: (1) Having been born in the Phils.
and having learned to love and adopt the traits and traditions of the Filipino people, they desire to change
their Chinese names to Christian or Filipino names; (2) to avoid embarrassment and confusion in their
social and business dealings, they having been known by their friends and acquaintances by the names
they wish to adopt; (3) in the case of pvt. resp Tan Ay Gho, to avoid ridicule, inasmuch as such name in
Muslim dialect means "running nose." CFI-Cotabato granted the petition. Hence this appeal.
HELD: We find merit in the appeal taken by herein petitioner to seek a reversal of the
questioned order of the resp. court.
A change of name is a mere privilege and not a matter of right. It should not be abused
nor allowed for trivial and flimsy reasons. To justify a change of name, there must exist a proper
and reasonable cause or compelling reason.
The reasons given by the pvt. resps. do not impress us as sufficient and valid justification
for the desired change of their names.
xxx The grant of change of name of resps. would not eliminate but enhance confusion as
they would be having not only 2 names but 3, including the names they are seeking. xxx Pvt.
resps. do not only want to legalize their use of American names, by w/c they claim they are
usually known, but also a new family name (Yap Tan) w/c includes that of their mother but w/c
they never used before. It becomes confusion worse compounded it is considered that the pvt.
resps. are not using the family name of their father (Lim), but that of the first husband of their
mother who was surnamed Tan.
xxx The supposed ugly meaning of the name of resp.Tan Ay Gho is not enough reason
to justify change of name. xxx The alleged offensive-sounding name, being a given name, was
chosen for her, and not one imposed by law as in the case of a family name.
YASIN V. SHARI'A [241 S 606] - F: On 5/5/90, Hatima Yasin filed in the Shari'a District Court-
Zamboanga City a "Petition to resume the use of maiden name." Such petition was denied on the ground
that petition was substantially a change of name and that compliance w/ the provisions of R 103 ROC on
change of name is necessary if the petition is to be granted.
ISSUE: W/n a petition for resumption of maiden name and surname is also a petition for change
of name.
HELD: The court rules in the negative. The true and real name of a person is that given to him
and entered in the civil register. While it is true that under Art. 376 of the NCC, no person can
change his name or surname w/o judicial authority, nonetheless, the only name that may be
changed is the true and official name recorded in the Civil Register.
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Petitioner's registered name is Hatima Centi y Saul. In the instant petition, petitioner
does not seek to change her registered maiden name but instead, prays that she be allowed to
resume the use of her maiden name in view of the dissolution of her marriage to Hadji Idris
Yasin, by virtue of a decree of divorce granted in accordance w/ Muslim Law.
Even under the NCC (w/c applies suppletorily to the Code of Muslim Personal Laws),
the use of the H's surname during the marriage, after annulment of the marriage and after the
death of the H is permissive and not obligatory except in case of legal separation.
xxx When a woman marries a man, she need not apply and/or seek judicial authority to
use her H's name by prefixing the word "Mrs." before her H's full name or by adding her H's
surname to her maiden first name. The law grants her such right. Similarly, when the marriage
ties or vinculum no longer exists as in the case of death of the H or divorce, the widow or
divorcee need not seek judicial confirmation of the change in her civil status in order to revert to
her maiden name as the use of her former husband's name is optional and not obligatory for her.
Art. 377. Usurpation of a name and surname may be the object of an action for
damages and other relief.
Tolentino: The usurpation of name implies some injury to the interests of the owner of the name.
It consists in the possibility of confusion of identity, or the appearance of some family relations
between the owner and the usurper.
Elements of Usurpation.-- (1) that there is an actual use of another's name by the defendant;
(2) that the use is unauthorized; (3) and the use of another's name is to designate personality or
identity of a person.
Art. 378. The unauthorized or unlawful use of another person's surname gives a
right of action to the latter.
Tolentino: This article would seem to cover cases where one's name is used by another, but not
for the purpose of designating personality or identifying a person.
Art. 379. The employment of pen names or stage names is permitted, provided it is
done in good faith and there is no injury to third persons. Pen names and stage names
cannot be usurped.
Tolentino: A pseudonym is a "conventional fictitious name freely chosen by a person to disguise

his personality." It designates a person in a particular activity, and his reputation and the value
of his work are reflected in such designation.
Bec. a pseudonym is intended only to be used in connection w/ a particular activity--
literary, artistic, scientific or professional-- it should not be employed in any other sphere of
activity. It can never be used in relations w/ the State.
When Entitled to Protection.-- A pen or stage name is protected only when it is well known as
the designation of a particular writer or artist, such that it can be considered as practically
indicating his person in the field of activity where it is used.
Art. 380. Except as provided in the preceding article, no person shall use different
names and surnames.
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Tolentino: It is the duty of a person in dealing w/ the govt and its agents, to use his true name.
In private relations, however, this is not obligatory, provided there is no wrongful or unlawful
purpose.
Alias Names in Business.-- The law permits the use of assumed or alias names for business
purposes, provided that such names are duly registered.
BALANE CASE:
LEGAMIA V. IAC [131 S 479] - F: Corazon Legamia lived w/ Emilio Reyes for 19 yrs.-- from
11/8/55 to 9/26/74, when Emilio died. During their live-in arrangement they produced a boy. From the
time Corazon (C) and Emilio (E) lived together until the latter's death, C was known as Corazon L.
Reyes; she styled herself as Mrs. Reyes; and E introduced her to friends as Mrs. Reyes. E was Branch
Claim Manager, Naga Branch, of the Agri. Cr. Admin. when he died. On 10/29/74, or shortly after E's
death, C filed a letter claim in behalf of Michael (their son) w/ the Agr. Cr. Admin. for death benefits.
The letter was signed "Corazon L. Reyes." For using the name Reyes although she was not married to E,
Felicisima Reyes who was married to E filed a complaint w/c led to C's prosecution. She was convicted
by the trial court. The CA upheld the conviction.
ISSUE: W/n the petitioner violated the law (CA 142 re use of an alias) in the light of the facts
abovestated.
HELD: No. In the case at bar, C had been living w/ E for almost 20 yrs. He introduced her to
the public as his wife and she assumed that role and his name w/o any sinister purpose or
personal material gain in mind. She applied for benefits upon his death not for herself but for
Michael who as a boy of tender years was under her guardianship. Surely, the lawmakers could
not have meant to criminalize what C had done especially bec. some of them probably had their
own Corazons.
XVIII. ABSENCE
Tolentino: Concept of Absence.-- Juridically, the absence referred to in the Code, is that
special legal status of one who is not in his domicile, his whereabouts being unknown, and it is
uncertain whether he is dead or alive. (Balane quotes Tolentino on this.)
Where the absentee disappeared under normal circumstances and w/o apparent danger,
there is ordinary absence; but where the disappearance was under extraordinary circumstances,
or with apparent danger, it is called qualified absence.
Balane (quoting Castan): Absence has legal consequences w/c vary according to the degree or
stage of absence.
Stages of Absence:
(1) Temporary or provisional absence w/c happens as soon as a person disappears from
his domicile and his whereabouts are unknown, leaving no administrator of his prop. (Articles
381-383);
(2) Normal or declared absence w/c is one juridically declared after 2 yrs. since the last
news was heard from him, or 5 yrs if he left an administrator (Articles 384-389);
(3) Definite or presumptive death w/c takes place when after the period provided by law,
a person is presumed dead; the period varies according to circumstances. (Articles 390-396.)
(a) ordinary presumptive death
(b) qualified presumptive death
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PROVISIONAL MEASURES IN CASE OF ABSENCE
Art. 381. When a person disappears from his domicile, his whereabouts being
unknown, and without leaving an agent to administer his property, the judge, at the
instance of an interested party, a relative, or a friend, may appoint a person to represent
him in all that may be necessary.
This same rule shall be observed when under similar circumstances the power
conferred by the absentee has expired.
Balane: Requisites for Provisional Absence: (1) Absence for an appreciable period w/c
depends upon the circumstances; (2) Immediate necessity for his representation in some specific
urgent matter; (3) Absentee left no agent or the agency has expired
Art. 382. The appointment referred to in the preceding article having been made,
the judge shall take the necessary measures to safeguard the rights and interests of the
absentee and shall specify the powers, obligations and remuneration of his representatives,
regulating them, according to the circumstances, by the rules concerning guardians.
Art. 383. In the appointment of a representative, the spouse present shall be

preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent
person may be appointed by the court.
Tolentino: Appointment Necessary.-- Unless the wife has been appointed an administratrix or
trustee of the properties of her absent husband, she has no capacity to maintain an action to
recover possession of such properties.
DECLARATION OF ABSENCE
Art. 384. Two years having elapsed without any news about the absentee or since
the receipt of the last news, and five years in case the absentee has left a person in charge of
the administration of his property, his absence may be declared.
Tolentino: Computation of Period.-- If there has been no news of or from the absentee since
his disappearance, the period must be computed from the date of disappearance. But if there has
been news from or about him, the period should be counted from the time referred to by the
news, or the time when the news was sent.
Balane: The declaration of absence is has for its sole purpose to enable the taking of necessary
precautions for the administration of the prop. (of the absentee.) (quoting Jones v. Hortiguela, 64
P 179.)
A general power of administration is granted w/c is broader than that granted for a mere
provisional absence. Notice that in provisional absence, the power of administration is for a
specific matter.
BALANE CASE:
REYES V. ALEJANDRO [141 S 65] - F: In a petition filed on 10/25/69, Erlinda Reynoso prayed
for the declaration of the absence of her husband Roberto L. Reyes alleging that her H had been absent
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from their conjugal dwelling since 4/62 and since then had not been heard from and his whereabouts
unknown. The petition further alleged that her H left no will or any prop. in his name nor any debts.
After hearing, the court a quo dismissed the petition on the ground that since Roberto Reyes left
no prop there was no necessity to declare him judicially an absentee.
HELD: The need to have a person judicially declared an absentee is when he has properties w/c
have to be taken cared of or administered by a representative appointed by the Court (384) ; the
spouse of the absentee is asking for separation of prop (191, NCC) or his wife is asking the court
that the administration of all classes of prop. in the marriage be transferred to her (196, NCC.)
The petition to declare the husband an absentee and the petition to place the management of the
conjugal properties in the hands of the wife may be combined and adjudicated in the same
proceedings.
Art. 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated
to the condition of his death.
Art. 386. The judicial declaration of absence shall not take effect until six months
after its publication in a newspaper of general circulation.
Art. 387. An administrator of the absentee's property shall be appointed in

accordance with article 383.
Art. 388. The wife who is appointed as an administratrix of the husband's property,
cannot alienate or encumber the husband's property or that of the conjugal partnership,
without judicial authority.
Art. 389. The administration shall cease in any of the following cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or intestate heirs
appear;
(3) When a third person appears, showing by a proper document that he has
acquired the absentee's property by purchase or other title.
In these cases the administrator shall cease in the performance of his office, and the
property shall be at the disposal of those who may have a right thereto.
PRESUMPTION OF DEATH
Tolentino: Judicial Declaration Not Necessary.-- The presumption of death is created by law,
and arises w/o any necessity of a judicial declaration. The presumption can be availed of in any
action or proc.; but there can be no independent proceeding for the express purpose of securing
a judicial declaration that a person is presumptively dead, except for purposes of re-marriage
under the Family Code.
Balane: Under the NCC, no action was allowed for the declaration of presumptive death bec. it
becomes res judicata w/c is illogical when the person declared dead turns out to be alive. But
this is no longer true under the FC w/c requires a declaration of presumptive death for purposes
of remarriage. (see Art. 41.)
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Art. 390. After an absence of seven years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose of opening his succession
till after an absence of ten years. If he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his succession may be opened.
Tolentino: For Re-Marriage of Spouse Present.-- Under the FC (41), if a spouse has been
absent for 4 yrs and the spouse present has a well-founded belief that the spouse is already dead,
the former can ask for the declaration of presumptive death of the latter, in a summary
proceeding.
Balane: Q: When Does Presumptive Death Set In?

A: It depends on the age of the person.
In normal presumptive death (the absentee was 75 or below), 7 years is required for all
purposes except for succession, e.g., for insurance, suspensive condition, retirement benefits, etc.
and 10 years for purposes of succession.
In qualified presumptive death (the absentee is over 75), one single period of 5 yrs. for
all purposes. Notice 390 states that only 5 yrs. of absence is required in order that succession
may be opened. But what if succession is not involved? If only 5 yrs. is required in cases
involving succession, w/ more reason should 5 yrs. only be required if succession is not
involved.
Art. 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs;
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing
for four years;
(3) A person who has been in danger of death under other circumstances and his
existence has not been known for four years.
Tolentino: Modification under the FC.-- For purposes of securing a decl of presumptive death
under these circumstances, under the FC for purposes of remarriage of a spouse present, an
absence of 2 yrs of the absent spouse will be enough.
Presumptive Death of Missing Persons.-- The persons presumed dead under this article cannot
be considered as merely absentees; they are more properly called missing persons. xxx [T]he
presumptive date of death is fixed on the very day of the occurrence of the event from w/c the
death is presumed; and if such date cannot be fixed, the court determines the middle of the period
in w/c the event could have happened.
Loss of Vessel or Aeroplane.-- These terms must be understood in their broad meanings.
Vessels will include all watercraft, and aeroplanes will include all aircraft.
The loss of the vessel must be during a sea voyage w/c include not only voyages in the
open sea but also passage along the mouth or river, canals, etc. in the course of such voyage.
However, trips w/c are only inland waters are not included.
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Missing in War.-- The term "war" is construed generally; it is not limited to war as understood
in international law, but includes all military operations or undertakings in armed fighting. The
presumption in case of persons missing in war, applies not only to soldiers, but also to those who
are employed by or render services to the armed forces (such as nurses, doctors, etc.), those who
render voluntary service (such as guides and guerrillas), and those who follow or stay w/ the
armed forces (such as reporters, photographers, etc.) It is however, necessary that such
disappearance be during military operations.
In Danger of Death.-- The death should be considered to have taken place on the day of the
danger. xxx If the danger continues for several days, xxx the more logical view seems to be that
the period should be computed from the last day of such danger; in cases of expeditions or
similar ventures of w/c nothing is heard after it has started, the date when it should have been
completed, if favorably concluded, is to be taken into account.
BALANE CASE:
EASTERN SHIPPING V. LUCERO [124 S 425] - F: On 2/16/80, the petitioner co. received 3
radio messages from Capt. Lucero on board M/V Eastern Minicon, the last of w/c, received at 9:50 P.M.
of that day, was a call for immediate assistance in view of the existing "danger;" "sea water was entering
the hatch;" the vessel "was listing 50 to 60 degrees port," and they were "preparing to abandon the ship
any time." After this message, nothing more has been heard from the vessel or its crew until the present
time.
On 7/16/80, Mrs. Lucero filed a complaint w/ the National Seamen Board for payment of her
accrued monthly allotment w/c the Co. had stopped since 3/80 and for continued payment of said
allotments until M/V Minicon shall have returned to the port of Mla.
On 5/19/81, the Board rendered judgement in favor of Mrs. L and held that the presumption of
death could not be applied bec. the 4-yr period [Art. 391(1)] had not yet expired. On appeal, the NLRC
affirmed said decision.
HELD: We are unable to agree w/ the reasoning of the resp. NLRC.

There is enough evidence to show the circumstances attending the loss and disappearance
of the M/V Eastern Minicon and its crew. The foregoing facts, quite logically, are sufficient to
lead us to a moral certainty that the vessel had sunk and that the persons aboard had perished w/
it. Upon this premise, the rule on presumption of death under Art. 391(1) must yield to the rule
of preponderance of evidence. Where there are facts, known or knowable, from w/c a rational
conclusion can be made, the presumption does not step in, and the rule of preponderance of
evidence controls. (Joaquin v. Navarro, 93 P 257.)
Art. 392. If the absentee appears or without appearing his existence is proved, he
shall recover his property in the condition in which it may be found, and the price of any
property that may have been alienated or the property acquired therewith; but he cannot
claim either fruits or rents.
Tolentino: The rights of the possessors of the absentee's prop. are dependent upon the presumed
death of the latter; hence, if he reappears, those rights cease. For this reason, the possession is
conditional and cannot be the basis of prescription. Neither will the action of the absentee to
recover his prop. prescribe.
EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE
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Art. 393. Whoever claims a right pertaining to a person whose existence is not
recognized must prove that he was living at the time his existence was necessary in order to
acquire said right.
Tolentino: For the acquisition of rights by an absentee, life is not presumed before the date of
presumptive death.
Art. 394. Without prejudice to the provision of the preceding article, upon the
opening of a succession to which an absentee is called, his share shall accrue to his co-heirs,
unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an
inventory of the property.
Art. 395. The provisions of the preceding article are understood to be without
prejudice to the action or petition for inheritance or other rights which are vested in the
absentee, his representative or successors in interest. These rights shall not be extinguished
save by lapse of time fixed for prescription. In the record that is made in the Registry of the
real estate which accrues to the co-heirs, the circumstance of its being subject to the
provisions of this article shall be stated.
Art. 396. Those who may have entered upon the inheritance shall appropriate the
fruits received in good faith so long as the absentee does not appear, or while his
representatives or successors in interest do not bring the proper actions.
Art. 43. If there is doubt, as between two or more persons who are called to succeed
each other, as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights from one to the other.
Rule 107, Rules of Court - ABSENTEES
Sec. 1. Appointment of representative. - When a person disappears from his domicile, his
whereabouts being unknown, and without having left an agent to administer his property, or the
power conferred upon the agent has expired, any interested party, relative or friend, may petition
the Court of First Instance of the place where the absentee resided before his disappearance, for the
appointment of a person to represent him provisionally in all that may be necessary. In the City of
Manila, the petition shall be filed in the Juvenile Domestic Relations Court.
Sec. 2. Declaration of absence; who may petition. - After the lapse of two (2) years from his
disappearance and without any news about the absentee or since the receipt of the last news, or of
five (5) years in case the absentee has left a person in charge of the administration of his property,
the declaration of his absence and appointment of a trustee or administrator may be applied for by
any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic copy of the same;
(c) The relatives who would succeed by the law of intestacy; and
(d) Those who have over the property of the absentee some right subordinated to the
condition of his death.
Sec. 3. Contents of petition. - The petition for the appointment of a representative, or for
the declaration of absence and the appointment of a trustee or an administrator, must show the
following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be
presented, and of the relatives who would succeed by the law of intestacy,
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(c) The names and residences of creditors and others who may have any adverse interest
over the property of the absentee;
(d) The probable value, location and character of the property belonging to the absentee.
Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the ap-
pointment of a representative, or for the declaration of absence and the appointment of a trustee or
administrator, is filed, the court shall fix a date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for the hearing shall be served upon the
known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before
the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to
the time designated for the hearing, in a newspaper of general circulation in the province or city
where the absentee resides, as the court shall deem best.
Sec. 5. Opposition. - Anyone appearing to contest the petition shall state in writing his
grounds therefor, and serve a copy thereof on the petitioner and other interested parties on or
before the date designated for the hearing.
Sec. 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4
of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court
shall issue an order granting the same and appointing the representative, trustee or administrator
for the absentee. The judge shall take the necessary measures to safeguard the rights and interests
of the absentee and shall specify the powers, obligations and remuneration of his representative,
trustee or administrator, regulating them by the rules concerning guardians.
In case of declaration of absence, the same shall not take effect until six (6) months after its
publication in a newspaper of general circulation designated by the court and in the Official
Gazette.
Sec. 7. Who may be appointed. - In the appointment of a representative, the spouse present
shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse
present is a minor or otherwise incompetent, any competent person may be appointed by the court.
In case of declaration of absence, the trustee or administrator of the absentee's property
shall be appointed in accordance with the preceding paragraph.
Sec. 8. Termination of administration. - The trusteeship or administration of the property of

the absentee shall cease upon order of the court in any of the following cases:
(a) When the absentee appears personally or by means of an agent;
(b) When the death of the absentee is proved and his testate or intestate heirs appear;
(c) When a third person appears, showing by a proper document that he has acquired the
absentee's property by purchase or other title.
In these cases the trustee or administrator shall cease in the performance of his office, and
the property shall be placed at the disposal of those who may have a right thereto.
XIX. FUNERALS
Tolentino: Juridical Nature of Corpse.-- The corpse cannot be the subject of rights, bec.
juridical personality is extinguished by death. Evidently, it is an object or a thing, but it is not
prop.; it is not susceptible of appropriation.
Purposes of Legal Protection: (1) to protect the feelings of those related to the deceased; (2)
to avoid dangers to the health of the living; and (3) to allow scientific investigation and study.
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Right to the Corpse.-- The corpse is outside the commerce of man. A contract for valuable
consideration disposing of the corpse, except when expressly permitted by law, would be void as
contrary to morals.
xxx There is, however, a certain right to the possession of the corpse, for the purpose of
decent burial, and for the exclusion of intrusion by third persons who have no legitimate interest
in it.
Any person charged by law w/ the duty of burying the body of a deceased person is entitled
to the custody of such body for the purpose of burying it, except when an inquest is required by law
for the purpose of determining the cause of death; and, in case of death due to or accompanied by a
dangerous communicable disease, such body shall until buried remain in the custody of the local
board of health or local health officer, or if there be no such, then in the custody of the municipal
council. (Sec. 1104, Revised Admin. Code.)
Art. 305. The duty and the right to make arrangements for the funeral of a relative
shall be in accordance with the order established for support, under Art. 199 of the Family
Code. In case of descendants of the same degree, or of brothers and sisters, the oldest shall
be preferred. In case of ascendants, the paternal shall have a better right.
Art. 199. Whenever two or more persons are obliged to give support, the liability
shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree;
(4) The brothers and sisters. (Family Code.)
Tolentino: Right to make funeral arrangements.-- If there are no persons who are bound to
support the deceased, or if there are but they are w/o means to defray the funeral expenses, the
duty of burial shall devolve upon the municipal authorities.
Same; Subject to waiver.-- The persons who are preferred in the right may waive this right
expressly or impliedly, in w/c case the right and duty immediately descend to the person next in
the order prescribed by law.
Extent of Right.-- Under our law, it seems that the person entitled to the custody of the corpse
cannot exclude the friends and other relatives of the deceased; such exclusion, w/o just cause,
would be an abuse of right prohibited by Art. 19, NCC, or an act contrary to good customs under
Art. 21. The members of the family of the deceased, of course, cannot be excluded, bec. they
would have an inherent right to witness the interment.
BALANE CASE:
Eugenio v. Velez [185 S 425 (1990)] -- F: Unaware of the death on 8/28/88 of Vitaliana Vargas
(VV), her full blood brothers and sisters (Vargases) filed on 9/27/88, a petition for habeas corpus alleging
that VV was forcibly taken from her residence and confined by herein petitioner in his palatial residence.
Resp. court issued the writ but the writ was returned unsatisfied. Petitioner (Pet.) refused to surrender the
body of VV to resp. sheriff on the ground that a corpse cannot be the subject of habeas corpus (hc)
proceedings; besides, according to him, he had already obtained a burial permit from the Undersec. of
DOH, authorizing the burial at his palace quadrangle. Pet. also alleged that VV died of heart failure due
to toxemia of pregnancy. As her common law husband, pet. claimed legal custody of her body. Pet. (as
resp. in the SP) filed an urgent motion to dismiss the petition therein. Bef. resolving the motion, the
Vargases were granted leave to amend their petition. Claiming to have knowledge of the death of VV
only after the filing of the petition for hc, pvt. resps. alleged that pet., who is not in any way related to
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VV was wrongfully interfering w/ their duty to bury her (invoking Arts. 305, 308, NCC.) On the other
hand, petitioner claims, he is the spouse contemplated under Art. 294, NCC, the term spouse used therein
not being preceded by any qualification. The RTC ruled for the respondents in this case.
HELD: We hold that the provisions of the NCC unless expressly providing to the contrary as in
Art. 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Philippine Law
does not recognize common law marriage. Petitioner vis-à-vis Vitaliana was not a lawfully-
wedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime (being
himself legally married to another woman.)
Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers
and sisters. Sec. 1103 (b) of the Rev. Admin. Code provides:
"If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burial
shall devolve upon the nearest of kin of the deceased, if they be adults and within the Phils. and in the
possession of sufficient means to defray the necessary expenses."
Art. 306. Every funeral shall be in keeping with the social position of the deceased.
Tolentino: This article does not provide for a sanction for its enforcement. However, the
sanctions may be found in other provisions of the law.
Art. 307. The funeral shall be in accordance with the expressed wishes of the
deceased. In the absence of such expression, his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon
by the person obliged to make arrangements for the same, after consulting with the other
members of the family.
Art. 308. No human remains shall be retained, interred, disposed of or exhumed

without the consent of the persons mentioned in Art. 199 of the Family Code and 305 (of
the Civil Code.)
Tolentino: Exhumation of Corpse For Evidential Purposes.-- Although the present art.
prohibits exhumation w/o the consent of the persons obliged to support the deceased in life, the
right of such persons must yield to public interests when the exhumation appears to be absolutely
essential to the administration of justice such as where there is no other way to prove a material
fact except by exhumation of a body w/c has been interred.
Disposition of Corpse by Deceased.-- Although a person cannot dispose of his corpse by act
inter vivos or mortis causa as prop., he may provide the manner in w/c it shall be disposed of by
those called upon to do so.
RA 349 recognizes the validity of an authorization given by a person to use parts of his
corpse for medical, surgical, and scientific purposes.
Corpses w/c are to be buried at public expense may also be used for scientific purposes,
under certain conditions.
Performance of Autopsies.-- An autopsy may either be private or official. If it is private, it

cannot be performed w/o the consent of the persons having a right to the corpse. On the other
hand, in the higher interests of the State, official autopsies may be performed regardless of the
wishes of the persons entitled to the corpse.
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Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes
with a funeral, shall be liable to the family of the deceased for damages, material and
moral.
Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of

the funeral expenses, and shall be chargeable to the conjugal partnership property, if the
deceased is one of the spouses.
XX. CIVIL REGISTER
Art. 407. Acts, events and judicial decrees concerning the civil status of persons
shall be recorded in the civil register.
Balane: Correlate Art. 407 w/ Art. 7, PD 603.
Sec. 7. Non-disclosure of Birth Records. - The records of a person's birth shall be kept
strictly confidential and no information relating thereto shall be issued except on the request of any
of the following:
(1) The person himself, or any person authorized by him;
(2) His spouse, his parent or parents, his direct descendants, or the guardian or institution
legally-in-charge of him if he is a minor;
(3) The court or proper public official whenever absolutely necessary in administrative,
judicial or other official proceedings to determine the identity of the child's parents or other
circumstances surrounding his birth; and
(4) In case of the person's death, the nearest of kin.
Any person violating the prohibition shall suffer the penalty of imprisonment of at least two
months or a fine in an amount not exceeding five hundred pesos, or both, in the discretion of the
court. (P.D. 603, The Child and Youth Welfare Code.)
Art. 408. The following shall be entered in the civil register:

(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriages;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgements of natural children;
(10) naturalization;
(11) loss or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) change of name.
Art. 409. In cases of legal separation, adoption, naturalization and other judicial
orders mentioned in the preceding article, it shall be the duty of the clerk of the court
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which issued the decree to ascertain whether the same has been registered, and if this has
not been done, to send a copy of said decree to the civil registry of the city or municipality
where the court is functioning.
Art. 410. The books making up the civil register and all documents relating thereto
shall be considered public documents and shall be prima facie evidence of the facts therein
contained.
BALANE CASE:
Sermonia v. CA [233 S 155 (1994)] -- F: In an info. filed on 5/26/92, petitioner Jose Sermonia was
charged w/ bigamy before RTC-Pasig for contracting marriage w/ Ma. Lourdes Unson on 2/15/75 while
his prior marriage w/ Virginia Nieverra remained valid and subsisting. Pet. moved to quash the info. on
the ground that his crim. liab. for bigamy has been extinguished by prescription. His motion was denied.
MFR was likewise denied. Pet. challenged the above orders bef. the CA through a petition for certiorari
and prohibition. His petition was dismissed for lack of merit.
In this course, pet. contends that his crim. liab. for bigamy has been obliterated by prescription.
He avers that since the 2nd marriage was duly registered w/ the Office of the Civil Registrar in 1975,
such fact of registration makes it a matter of public record and thus constitutes notice to the whole world.
The offended party is considered to have had constructive notice of the 2nd marriage as of 1975; hence,
the corresponding info. for bigamy should have been filed on or before 1990 and not only in 1992.
HELD: (1) The rule on constructive notice cannot apply in the crime of bigamy notwithstanding
the possibility of its being more favorable to the accused. As the CA succinctly explains--
xxx [T]he principle of constructive notice should not be applied in regard to the crime of
bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by
the offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage
is generally entered into in a place where the offender is not known to be still a married person, in order
to conceal his legal impediment to contract another marriage.
xxx [T]he criminal cases cited by the petitioner wherein constructive notice was applied
involved land or prop. disputes and certainly, marriage is not prop.
The non-application to the crime of bigamy of the prin. of constructive notice is not contrary to
the policy that penal laws should be construed liberally in favor of the accused. To compute the
prescriptive period for the offense of bigamy from registration thereof would amount to almost absolving
offenders thereof for liab. therefor. xxx
(2) The rule on constructive notice will make de rigueur the routinary inspection or
verification of the marriages listed in the National Census Office and in various local civil
registries all over the country to make certain that no subsequent marriage has been contracted
w/o the knowledge of the legitimate spouse.
(3) More importantly, while Sec. 52 of PD 1529 (Prop. Reg. Dec.) provides for
constructive notice to all persons of every conveyance, mortgage, lease, lien, etc. affecting
registered land filed or entered in the office of the Register of Deeds for the province or city
where the land to w/c it relates lies from the time of such registration, there is no counterpart
provision either in Act 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413, NCC, w/c
leads to the conclusion that there is no legal basis for applying the constructive notice rule to
documents registered in the Civil Register.
Art. 411. Every civil registrar shall be civilly responsible for any unauthorized
alteration made in any civil register, to any person suffering damage thereby. However, the
civil registrar may exempt himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration.
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Art. 412. No entry in a civil register shall be changed or corrected, without judicial
order.
Tolentino: Changes or corrections in entries in the Civil Registry may be sought by 2 different
procedures: (1) summary procedure for the correction of clerical errors, and (2) adversary,
litigious, or contentious procedure for changes of a substantial character.
Corrections to be made in the civil register may be either clerical or substantial. The
proceeding under Art. 412 and Rule 108 of the Rules of Court may either be summary or
adversary in nature. Even substantial or material errors in the civil register may be corrected
provided the appropriate remedy is availed of.
The Rules of Court provides:
RULE 108 - CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
Sec. 1, Who may file petition. - Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in the civil register, may file a
verified petition for the cancellation or correction of any entry relating thereto, with the Court of
First Instance of the province where the corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected;
(a) births;
(b) marriage;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of marriage;
(f) judgments declaring marriages void from the beginning;
(g) legitimations;
(h) adoptions;
(i) acknowledgments of natural children;
(j) naturalization;
(k) election, loss or recovery of citizenship;
(l) civil interdiction;
(m) judicial determination of filiation;
(n) voluntary emancipation of a minor, and
(o) changes of name.
Sec. 3. Parties. - When cancellation or correction of an entry in the civil register is sought,
the civil registrar and all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceeding.
Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order,
fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to
the persons named in the petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in the province.
Sec. 5. Opposition. - The civil registrar and any person having or claiming any interest
under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice
of the petition, or from the last date of publication of such notice, file his opposition thereto.
Sec. 6. Expediting proceedings. - The court in which the proceeding is brought may make
orders expediting the proceedings, and may also grant preliminary injunction for the preservation
of the rights of the parties pending such proceedings.
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Sec. 7. Order. - After hearing, the court may either dismiss the petition or issue an order
granting the cancellation or correction prayed for. In either case, a certified copy of the judgment
shall be served upon the civil registrar concerned who shall annotate the same in his record.
Balane: Recapitulate.-- An error in an entry in the Civil Register can only be corrected by court
order. The proper action to file depends on whether the error is merely clerical or substantive. If
merely clerical, summary proceeding for correction is enough; if substantive, adversary
proceeding is required.
BALANE CASES:
Barreto v. Civil Registrar of Manila [74 S 257 (1976)] -- F: According to the Civil Register of
Mla, a female child named Rosario Barreto was born on 6/29/44 to spouses Faustina Barreto and King
Lian, both natives of Amoy, China. On the other hand, according the record of baptisms of the
Parroquia de Chinos in Mla., a child born on 6/29/44 to the Barreto spouses was baptized w/ the name of
Domingo Sy Barreto. xxx In 1967, Domingo B. requested the local civil registrar of Mla. to issue a
certified copy of his birth record w/c he needed in connection w/ his application for a marriage license.
He discovered that his name in the record of birth is Rosario, a female. Bec. of that discrepancy, he was
not able to secure a license. Thereafter, he filed a petition in the CFI-Mla. for the correction of the
alleged entries in his birth record regarding his name and sex. Initially, his petition was dismissed. But
finally, his amended petition was granted on the ground that the error sought to be corrected was "merely
typographical or clerical error, and not controversial." The Republic appealed through the Sol-Gen.
ISSUE: W/n the supposed erroneous entry as to the sex of Rosario B., as indicated in the birth
record, is a clerical error that may be changed by means of a petition for correction filed by one
Domingo B. who claims to be the same person as Rosario B.
HELD: We hold that the petition is not warranted bec. under the facts of this case, the alleged
error is not clerical in nature. If the name in the record of birth were Domingo B. and his sex
was indicated therein as female, it might be argued that the error would be clerical. But that is
not the fact in the case. The situation is more complicated. A person named Domingo B. claims
he is Rosario B. and that the word "female" in the latter's birth record is a mistake.
It is settled that the summary proc. for correction of entries in the civil registry under Art.
412, NCC and R 108, ROC is confined to "innocuous or clerical errors, such as misspellings and
the like, errors that are visible to the eyes or obvious to the understanding" or corrections that are
not controversial and are supported by indubitable evidence.
A clerical error is one made by a clerk in transcribing or otherwise, and, of course, must
be apparent on the face of the record, and capable of being corrected by reference to the record
only.
The alleged error in this case cannot be determined by reference to the record. There is a
need to determine w/n Rosario B. and Domingo B. are one and the same person and to ascertain
why Domingo was registered in the record of birth as Rosario.
Republic v. Valencia [141 S 462 (1986)] -- F: Resp. Leonor Valencia, for and in behalf of her
minor children, Bernardo Go and Jessica Go filed w/ the CFI-Cebu a petition for the cancellation and/or
correction of entries of birth of her 2 minor children in the Civil Registry of Cebu. The petition seeks to
change the nationality or citizenship of Bernardo Go and Jessica Go from "Chinese" to "Filipino" and
their status from "Legitimate" to "Illegitimate," and changing also the status of the mother from
"married" to "single." The Local Civil Registrar of Cebu filed a motion to dismiss on the ground that the
corrections sought are not merely clerical but substantial. The lower court denied the motion to dismiss.
From the decision of the lower court, oppositor-appellant Republic appealed.
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HELD: [I]f the subject matter of a petition is not for the correction of clerical errors of a
harmless and innocuous nature, but one involving nationality or citizenship, w/c is indisputably
substantial as well as controversial, affirmative relief cannot be granted in a proceeding summary
in nature. However, it is also true that a right in law may be enforced and a wrong may be
remedied as long as the appropriate remedy is used. This court adheres to the principle that even
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 proceeding.
xxx
What is meant by appropriate adversary proceeding? Black's Law Dictionary defines
"adversary proceeding" as follows:
"One having opposing parties; contested, as distinguished from an ex parte application, one of
w/c the party seeking relief has given legal warning to the other party, and afforded the latter an
opportunity to contest it. xxx"
xxx
Provided that the trial court has conducted proceedings where all relevant facts have been
fully and properly developed, where opposing counsel have been given opportunity to demolish
the opposite party's case, and where the evidence has been thoroughly weighed and considered,
the suit or proceeding is "appropriate."
xxx
[T]he persons who must be made parties to a proceeding concerning the cancellation
or correction of an entry in the civil register are-- (1) the civil registrar, and (2) all persons
who have or claim any interest w/c would be affected thereby. Upon the filing of the petition, it
becomes the duty of the court to-- (1) issue an order fixing the time and place for the hearing of
the petition, and (2) cause the order for hearing to be published once a wk for 3 consecutive
weeks in a newspaper of gen. circ. in the province. The following are likewise entitled to oppose
the petition-- (1) the civil registrar, and (2) any person having or claiming any interest under the
entry whose cancellation or correction is sought.
If all these procedural requirements have been followed, a petition for correction and/ or
cancellation of entries in the record of birth even if filed and conducted under R 108, ROC can
no longer be described as "summary." There can be no doubt that when an opposition to the
petition is filed either by the Civil Registrar or any person having or claiming any interest in the
interest in the entries sought to be cancelled and/ or corrected and the opposition is actively
prosecuted, the proceedings thereon become adversary proceedings.
In this case, the court took note of the fact that all the procedural requirements have been
followed and hence the recorded proceedings that actually took place could very well be regarded
as that proper suit or appropriate action.
xxx In the instant case, a pet. for cancellation and/or correction of entries of birth of Bernardo
Go and Jessica Go in the Civ. Reg.- Cebu City was filed by resp. L. Valencia on 1/27/70, and pursuant to
the order of the trial court dated 2/4/70, the said pet. was published once a wk for 3 consecutive wks. in
the Cebu Advocate, a newspaper of gen. circ. in the City of Cebu. Notice thereof was duly served on the
Sol-Gen., the Local Civ. Registrar and Go Eng. The order likewise set the case for hearing and directed
the local civ. registrar and the other resps. or any person claiming any interest under the entries whose
corrections were sought, to file their opposition to the said pet. An opposition to the pet. was
consequently filed by the Rep. on 2/26/70. Thereafter, a full blown trial followed w/ resp. L. Valencia
testifying and presenting her documentary evi. in support of her pet. The Rep. on the other hand, cross-
examined resp. L.V.
Republic v. Flojo [152 S 550] -- F: It appears that herein pvt resp. Inocencio P. Carag filed a
verified pet. w/ CFI-Cagayan to correct an entry in his register of birth wherein he was erroneously
registered as a "Chinese" instead of a Filipino citizen. Named resp. was the Local Registrar of Aparri,
Cagayan. After due notice to the Sol-Gen and publ. of the notice of hrng., dated 8/22/78, in the Cagayan
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Weekly Journal, the parties were heard. At the hrng., it was established that the petitioner herein, I.
Carag, was born in Aparri, Cagayan on 3/15/47, to sps. Vicente Carag Tan, a natural child of Eugenia
Baquiran who is a Filipino citizen, and Anastacia Pe. Accordingly, the resp. Judge found, and so ruled
that I. Carag is a Filipino citizen so that the necessary correction shld be made in his record of birth.
The Republic now questions the order on the ground that it is "contrary to the well-settled
doctrine that only mistakes in the entries in the Civ. Reg. w/c can be corrected under Art. 412 and R 108,
ROC are those that are merely clerical in nature and not those w/c affect the civil status or citizenship of
the person involved."
HELD: The contention is w/o merit. While the Court has, indeed previously ruled that changes
or corrections authorized under Art. 412, w/c envisions a summary proc., relate only to harmless
and innocuous alterations, such as misspellings or errors that are visible to the eyes or obvious to
the understanding and that changes in the citizenship of a person or his civil status are substantial
as well as controversial, w/c can only be established in appropriate adversary proc., the rule has
been relaxed in the case of Rep. v. Valencia.
xxx
In the instant case, there is no doubt that the proc. conducted in the lower court was an
adversary proc. and "appropriate" in that "all relevant facts have been fully and properly
developed, where the opposing counsel have been given the opportunity to demolish the opposite
party's case, and where the evidence has been thoroughly weighed and considered." The
questioned order states in part:
xxx After the required publ. of the order of Notice of hrng. dated 8/22/78 in the Cagayan Valley
Weekly Journal, has been complied w/ and notice to the Sol-Gen, petitioner adduced evidence on
10/17/78. No written opposition was interposed by resp. but at the hrng. , Asst. Prov. Fiscal Gonzales
appeared for and in behalf of the Sol-Gen.
Republic v. Bautista [155 S 1] -- F: In her verified pet. filed before the lower court, pvt. resp.
Imelda Mangabat Sorensen sought to correct and change the word "American" into the word "Danish" in
the birth certificate of her minor son, Raymund M. Sorensen to reflect the true nationality of Bo Huage
Sorensen, her husband and the father of said minor child. The Rep. opposed the pet. and moved for the
dismissal on the ground that a correction of entry in the Civ. Reg. is allowed only when the same refers to
mere clerical errors or mistakes, but not to substantial changes affecting the civil status, nationality or
citizenship of the person concerned. The court a quo rendered in favor of petitioner (pvt. resp. herein.)
Hence, this pet. by the Rep.
HELD: We are constrained to deny the instant pet. for review. The issue now bef. us has been
resolved in the case of Rep. v . Valencia wherein the court held that the proceedings under Art.
412 and Rule 108, ROC may either be summary or adversary in nature. If the correction sought
to be made in the civ. reg. is clerical, then the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial,
and the procedure to be adopted is adversary.
xxx
In Rep. v. Valencia, we postulated that the appropriate remedy may well be a pet. filed
by way of SP for the cancellation and/or correction of substantial entries in the civ. reg. w/ the
requisite parties, notices, publications and the proceedings to be taken thereafter pursuant to
Secs. 3, 4 and 5 of R108 bec. then the proc. will be adversary in character.
In the present case, the records show that the Pasay City Local Civ. Reg. and the Sol-
Gen. were made parties to the pet. The proper notice was published once a wk for 3 consecutive
wks. in the Rizal Weekly Bulletin, a newspaper of gen. circ. The Rep. appeared thru a trial atty.
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of the Office of the Sol-Gen. who was present and did not object to the presentation of evidence,
xxx.
Republic v. Carriaga [159 S 12] -- F: Pvt. resp., Antonio Tan Lim, filed w/ the CFI-Cotabato a
pet. for the correction of entries in the birth certificates of his children as follows:
"(1) xxx Frederick Sespene-Lim: The father's nationality shld be changed from Chinese to
Filipino. The father's religion shld be changed from Catholic to Islam. The father's race should be
brown not yellow. The date of marriage of the parents should be 4/28/57 and not 2/1/58.
(2) xxx Patrick Sespene-Lim: The name Patrick shld be spelled Patrick Sespene-Lim. The date
of marriage of child's parents is 4/28/57, not 2/1/58.
(3) xxx Janebelle Sespene-Lim: The name looks tampered, hence, it shld be ordered written
clearly as Janebelle.
(4) xxx Antonio Sespene-Lim: The name of the child's mother is wrongly written Leyte. It
shld. be Letty."
The Rep. filed an opposition w/c was not acted upon positively. Resp. court granted the pet.
Hence the petitioner filed this petition before us raising the sole issue of w/n the supposed erroneous
entries in the birth certs. are merely clerical errors that can be changed or altered by means of a petition
for correction of entry under R 108, ROC.
HELD: We reiterate our ruling in Rep. v. Valencia.

xxx
In the case at bar, not only have the procedural requirements been complied w/ but a trial
was duly conducted wherein the pvt. resp. was given the chance to present his evidence while the
fiscal was likewise given every opportunity to present his opposition. The safeguards in Rep. v.
Valencia were followed.
True, the City Fiscal decided not to submit any evidence in opposition to the averments
in the petition, but the pvt. resps submitted satisfactory evidence to prove his case.
Republic v. CFI [161 S 681] -- F: In a pet. filed on 5/15/71, w/ resp. CFI-Camarines Sur, the pvt.
resp. Reynaldo C. Neola sought the correction of the entries appearing in the original cert. of birth of
Reynaldo Balance Neola, Jr., in the records of the Local Civ. Reg. of Naga City. Specifically, the pvt.
resp., a policeman, prayed for the striking out from the records of the following: (a) all info. referring to
him as the father of Reynaldo Balance Neola, Jr.; (b) the surname "Neola, Jr., " and (c) the child is
legitimate and his parents are married. On 5/26/72, the City Fiscal, for the Sol-Gen., filed an opposition
and moved for the dismissal of the pet. on the ground that the rectification sought was not on mere
clerical errors. He argued that this correction must be obtained in an appropriate adversary proc. The
resp. court granted the petition. Hence, this petition by the Rep.
HELD: We affirm the trial court's decision.

xxx (The court reiterated the ruling in Rep. v. Valencia.)
In the instant case, we hold that an appropriate adversary proc. has taken place. xxx
The controverted order dated 3/31/73, by itself, indicates sufficient compliance w/ the
requirements of an appropriate adversary proc. The publ. requirement has been complied w/. In
the hrng., the pvt. resp. presented his evidence. Opposition by the petitioner thereto was received
by the court. And from this proc., it was conclusively established that no marriage bet. pvt. resp.
and Dolores D. Balance, mother of the child, took place on 1/7/69; that the pvt. resp. hardly
knew Dolores and never had any extramarital relations w/ her; and that he is very much a married
man and his wife is still living. The record of the case does not show any rebuttal of the
evidence of the pvt. resp.
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Zapanta v. Civil Registrar [237 S 25] -- F: The pet. alleges that petitioner Gliceria S. Zapanta is the
widow of the late Florencio B. Zapanta; xxx that said deceased on 8/5/65, was admitted and confined at
the San Pedro Hospital, Davao City, and met his untimely demise on 8/11/65; that after traditional church
ceremonies at the Sta. Ana Church, the remains of the deceased was entombed at the mun. cemetery of
Davao City on 8/12/65; that when petitioner requested the Local Civ. Reg. of Davao City a certified true
copy of the death cert. of her late husband, she discovered to her dismay and surprise, that the name
indicated in said death cert. was "Flaviano Castro Zapanta," albeit the date of death and all other
circumstances and information reflected therein clearly and conclusively revealed that the person referred
to therein was no other than her late husband. Hence, petitioner prays that, after due notice and hrng., an
order be issued directing the Local Civ. Reg. to correct the death cert. of her deceased husband by
changing his name from "Flaviano Castro Zapanta" to "Florencio B. Zapanta." The court a quo
dismissed the pet. reasoning that the correction of the name "Flaviano Castro Z." to "Florencio B. Z," was
not merely clerical but substantial in nature and that it thereby did not have the power to grant the relief
prayed for.
HELD: The trial court committed reversible error.

xxx (The court reiterated the ruling in Rep. v. Valencia.)
xxx The records show that the publ. requirement has already been complied w/. The
next step would thus be for the court a quo to consider the pet. before it to be, in substance, an
adversary proc. and to allow petitioner and all adverse and interested parties their day in court.
Art. 413. All other matters pertaining to the registration of civil status shall be
governed by special laws.
(See Act No. 3613, as amended)
115

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CIVIL LAW REVIEW

Notes and Cases in Persons and Family Relations Part II

Compiled by Lianne Tan

Edited and Updated by Rodell A. Molina

V. PROPERTY RELATION BETWEEN HUSBAND AND WIFE

In the absence of a marriage settlement, or when such marriage settlement is void,

An exception to the immediately preceding rule is when the 1st marriage is

regime agreed upon is void, the system of absolute community of property as

Baviera: Marriage settlement/ modification

formal requirement of a marriage settlement:

consent shall be manifested in writing by the interested party, who personally

Title IX (Parental Authority)

Art. 80. In the absence of a contrary stipulation in a marriage settlements, the

(LEX SITUS- contract - abroad - property - abroad)

(LEX SITUS - contract - Philippines - property - abroad)

Art. 81. Everything stipulated in the settlements or contracts referred to in

Balane: This article is inconsistent with Art. 86(1)

Donation Propter Nuptias (requisites)

recipient may be one or both of the betrothed

B. CAPACITY TO EXECUTE MARRIAGE SETTLEMENT

Art. 80. In the absence if a contrary stipulation in a marriage settlement, the

E. EFFECT OF MARRIAGE NOT TAKING PLACE

Art. 81. Everything stipulated in the settlements or contracts referred to in

F. DONATIONS BY REASON OF MARRIAGE

1. before the celebration of marriage

Art. 85. Donations by reason of marriage of property subject to

Art. 748. The donation of a movable may be made orally or in writing.

3. Distinguished from donations inter vivos

a. Consideration and Donee

Art. 87. Every donation or grant of gratuitous advantage, direct or indirect,

Balane: This article does not refer to donation propter nuptias.

Art. 86. A donation by reason of marriage may be revoked by the donor in

Art. 81. Everything stipulated in the settlements or contracts referred to in

Baviera: Art. 86 FC compared to Art. 43 FC

A donation propter nuptias may be revoked for being inofficious. It is wrong to

Balane: For acts of ingratitude, refer to Art. 765 of the NCC.

Art. 43. The termination of the subsequent marriage referred to in the

c. Extent of Property Donated

- as to spouses, not > 1/5 of present property

- donee beware that donation revocable!

Art. 751. Donations cannot comprehend future property.

There is ACP when:

Art. 88. The absolute community of property between spouses shall

- importance: see Art. 92 (1)

Waiver not allowed

Art. 90. The provisions on co-ownership shall apply to the absolute

What Constitutes Community Property

Art. 91. Unless otherwise provided in this Chapter or in the marriage

Baviera: Relate to Art. 51 and 53

Charges Upon and Obligations of the Absolute Community

Art. 94. The absolute community of property shall be liable for:

Balane: Liabilities of the ACP.

Luzon Surety v. De Garcia

Any debt contracted by the husband-administrator with the intention of binding

The obligation incurred here redounded to the benefit of the community

Ownership, Administration, Enjoyment and Disposition of the Community Property

Baviera: Better: unenforceable until ratified

Balane: Ownership, administration, enjoyment and disposition of Community

Balane: All donations must be made jointly, except moderate donations.

Dissolution of Absolute Community Regime

Art. 99. The absolute community terminates:

Art. 134. In the absence of an express declaration in the marriage

Art. 138. After dissolution of the absolute community or of the conjugal