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Black Font - lecture notes Dark Blue Font additional notes from codal Maroon Font additional notes from Albano Violet Font additional notes from UP Bar Ops reviewer Dark Green Font Sempio Dy

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Effect & Application of Laws

succession, obligations and the contracts he enters into 4 Books of the Civil Code I. Persons & Family Relations II. Property III. Succession IV. Obligations and Contracts Differentiations CIVIL LAW Form Where Statutory law Former Spanish Colonies

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What is Civil Law? -treats of a person, his family relations, property rights,

COMMON LAW (unwritten) case law US, UK

CIVIL LAW

COMMON LAW Compilation of all civil laws

Publication of Laws E.g. Jan 1 Congress approved the Anti-pornography Law Feb 1 signed by the President Feb 15 driver got a copy of the video tape and distributed it. Hayden Kho filed a case against the driver for violation of the Anti -Pornography Law? Q: Does Hayden Kho have a COA against the driver? A: No. The law has not yet been published. As a general rule, laws take effect 15 days after their publication, except where it is otherwise provided. Art 2 Effectivity of Laws GR: X: 15 days after publication in a when otherwise provided

newspaper of general circulation

GR: Publication is an indispensable requirement for a law to be effective (Tanada v. Tuvera) X: DILIM a. Municipal ordinance b. Internal in nature c. Letters of instruction d. Interpretative in nature o X to X: FED

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2. Enforces or implements an existing law 3. Diminishes a vested right e. Decisions of the Supreme Court (If the problem does not indicate the type of law, qualify your answer) Rationale for publication : Compliance with due process Cf: Lara v. Del Rosario The Civil Code took effect on Aug 30, 1950, one year from its circulation y The Code was approved on June 18, 1949, Publication of the Civil Code was on ____. But copies of the Civil Code were kept. They were circulated only on Aug 30, 1949. Assuming publication is indicated, find out where it is published. Where should publication be made? Publication is not o nly limited to the official gazette but it extends to a newspaper of general circulation. Elements of a newspaper of general circulation : 1. Regularity in the release 2. Does not cater to a particular group (s.t. the Financial Times is not a newspaper of gen. circulation) Reconcile the effectivity clause in the law with the publication requirement. y If the law contains an effectivity clause, apply it. o If the effectivity clause says, effective upon the signing of the President, it becomes effective on the date of publication . y If the law has no effectivity clause, apply the 15 day period. o Cf: Article 13: exclude the 1 st day of the period, include the last day.

Article 3 does not apply to foreign laws. Mistake of facts, not ignorance of law, applies to foreign laws. Doctrine of Processual Presumption If there is failure to prove the foreign law in court, the Court will presume that it is the same as Philippine law. Article 4: Art 4 Prospectivity of laws GR: X: Prospective application Retroactivity when the contrary is

provided GR: Prospectivity of Laws X: RP CECE 1. Remedial in nature 2. Penal Laws favorable to the accused e.g. Application of illegal possession of firearms to Robin Padilla

Art. 6

HRiIa XSH Sh T H SQQT HFG SFX XGT HRiIa fSG SHTSa r aSRHTQ VT IiFVFIg SRH QF SUTGaP SRH WaaT FH GSaXVIR SHTUIHIiSVVq fFVVT HTRH fTp e ie S HRiIaShIHGTH gP fSG SHTSa e d dc Ha Q b Ha WV`` SXF WVIUT SRH QF GFIHPHIH GF Y Y Y D C B A 827 5 ) 6 ) 5 2 2 1 1 1 4 1 3 10) @ )469 E (' "         & $  %     $ $   # " !  # " !        
C E ss s c F C F C c s c c c c c s c s s (FC 6) Eff y f h F s y : u u : , 88
y

(CC) c :

6 (FC)

Provided that the father is still alive (so as not to impair the vested rights of

the legitimate children) 7. Procedural Laws retrospective insofar as actions pending and undetermined at the time of their passage are concerned

Waiver of Righ

Waiver of rights

Elemen

of a Valid Waiver: VESTE Existing RIGHTS

1. Right should be existing at the time of the waiver Not yet existing 3. Waiver is voluntary Examples of void waivers: 1. Waiver of the right topresent and future support - because it is against the law and public policy. (Patricio v. Dario) 2. Waiver of grants of land by the government because it is against the Agrarian Reform Law. 3. Waiver of right to inheritance because it is not yet existing. The right to inheritance vests only upon death

2. Person waiving the right has knowledge of its existence

INCH ATE RIGHTS

vu

vu

Emergenc laws

GR: X:

Rights may be waived

1. Contrary toLaw, Public order, Public policy, Morals, Good customs - if contract belongs to a parties alone, and no third persons nor the general public are affected thereby, waiver of the right is not imbued with public policy considerations 2. Prejudicial to a third person with a right recognized by law

even if the actual extent of such share is not determined until liquidation of the estate. 4. Waiver of hereditary rights by the parent / guardian of an illegitimate child without a judicial intervention because repudiation of such right is tantamount to alienation. 5. Waiver of Political rights void by reason of public policy . Perpetual stipulation on the right to ownership e.g. a contract of sale with right to repurchase, with a prohibition against selling the property t o any other person except the heirs of the vendor a retro

Art. 8

Doctrine of Stare Decisis Et Non Quiere Movere what has been decided by the SC should not be changed but should be followed by the lower courts Kinds: VERTICAL Decisions of the high court shall be followed by the lower court Mandatory HORIZONTAL Decisions of one branch / division may be followed by another division Permissive Applicable only in collegial bodies (SC, CA) Obiter dictum opinion, incidental, nothing to do with the main issue in the case Stare Decisis Article 13 cf: 180, 120 and 300 days.

Arts 14, 15, 16, 17 Article 14 Art. 14 1. Penal Laws - obligatory upon all who live or sojourn in the Philippine territory - subject to the principles of public international law and to treaty stipulations.

Territoriality of: Penal Laws 2. Laws on Public Security and Safety y y

GR: Apply territorialit principle o X: jurisdiction of a State in which they presently reside, by virtue of a treaty stipulationto that effect Also applies to foreign Penal laws exemption of foreign persons from the laws and

1. Extra-territorialit

Judicial decisions applying or interpreting the laws or the Constitution

Form a part of the legal system of the Philippines

foreign persons and their things are exempted from the jurisdiction of a State on the theory that they form an extension of the territory of a foreign state  E.g. embassy

CAPACITY y Art. 15 laws

Apply nationalit principle

Nationality Principle for Personal

binding upon citizens of the Philippines, even though living abroad.

Art. 1

Lex Rei Sitae

law of the country where it is situated.

Types of Succession 1. Intestate 2. Testamentary governed by national law of the person whose succession is under consideration

Article 16

Propert

Article 15

Limited to FAMILY RIGHTS, DUTIES, STATUS, CONDITION, LEGAL

Laws relating to: family rights and duties status condition legal capacity of persons

GR: Applicable to: 1. Real property 2. Personal property X: Succession Aspects of succession are governed by the country of the decedent: 1. Order of succession 2. Amount of successional rights 3. Intrinsic validity of testamentary provisions 4. Capacity to succeed (Art. 1039) Regardless of: - nature of the property - country where property may be found.

y y y

GR: Lex Rei Sitae (law of the place where the property is situated will govern the property) Exception: Inheritance considering that inheritance is a family right, apply Art 15 regardless of where the property is located Application: Garcia v. Juico o Even if the last wish of the testator, the court cannot follow it if it is against Art 1 par 2 cf: Art 15

Transmission Theor Christiansen): y

= The Renvoi Doctrine (Aznar v. Garcia / Christiansen v.

Reverting back to the disposition of the issue to Philippine law (or forum of origin)

17

Lex Loci Celebrationis Formal / extrinsic validity executed laws

of the country in which they are

Formal Requisites of a contract: Lex Loci Celebrationis o Lex Loci Contractus - as a general rule, the law of the place where the contract is made governs, with respect to its nature and validity, obligation and interpretation (of private contracts)   Applicable whether or not the places where the contract was made and the place of execution are the same Where the last act was done

y TERM Cognovit

Essential elements (esp where legal capacity is involved): apply Art 15 DEFINITION Confession of judgment where a portion of the complaint is confessed by the defendant who denies the rest thereof

Borrowing statute

Article 17

cf: Art 15 & Art 1 par 2

Extrinsic validity: forms and solemnities of contracts, wills, and other public instruments X: executed before the diplomatic or consular Philippine laws shall be

officials of the Republic of the Ph ilippines in a foreign country observed in their execution

Laws of the State on jurisdiction used by another State in deciding conflicts questions involved in the choice of law. - directs the State of the forum to apply the foreign Statute of limitations to the pending claims

Characterization

Classification / qualification / assigning a disputed question to its correct legal directory

Doctrine of forum non-conveniens

Where the ends of justice strongly indicate that the controversy may be more suitably tried elsewhere, then jurisdiction should be declined and the parties relegated to relief to be sought in another forum

Long-arm statute

Authorized substituted service or process over persons or corporations which are non-residents of the State and which voluntarily go into the State directly or by agent / communicate w/ persons in the State for limited purpose, in actions which concern claims relating to performance or execution or those purposes

Conflicts case

Factual antecedents in a case which satisfactorily establish the existence of a foreign element

Example: y Marriage in Spain allows: o o o Marriage by proxy Marrying age is 14 for females, 1 for males. 2 Filipinos married by proxy in Spain. Is the marriage valid? provided not against Arts 35, 3 , 37, 3 8   Philippines. It is If Maria is only 1 , then the marriage will be void. Legal capacity, an essential requisite of marriage, is lacking. As regards legal capacity, the national laws of a person will apply, regardless of where he is. Dual Citizenship y y Also applies to: Reacquisition or Retention of Philippine Citizenship By mere taking of an oath of allegiance, political and civil rights are retained. o o As regards practice of profession Obtaining a decree of divorce   o Answer # 1: valid and binding if divorce decree was granted after naturalization (acquisition of foreign citizenship) Answer # 2: if motive for procuring foreign citizenship was so he could obtain a divorce  divorce decree not valid  Answer # 1: Lex Loci Celebrationis cf: Art 2 (FC) valid Answer # 2: Marriage ceremony is not valid and binding in the

Situation: Is the divorce decree valid? During marriage: Filipino citizens

 

Grant of decree of divorce: One already naturalized. Answer: Valid. Reckoning point is the nationality , not at the time of the marriage, but at the time of the grant of the decree of divorce. (Republic v. Orbecido) Art 15 applies. At the time of grant of the decree, already a foreigner. (His national law is now different) Both the divorce decree and the law of the alien must be alleged and proven according to laws on evidence of the Philippines (forum court). y y Best evidence of the judgment is the judgment itself. Our courts cannot take judicial notice of foreign laws.

Kinds of Divorce 1. Absolute Divorce (vinculo matrimonti) terminates the marriage 2. Limited Divorce (mensa et thoro) suspends the marriage and leaves the bond in full force 3. Interlocutory decree a conditional/provisional judgment of divorce similar to a separation from bed and board, although an absolute divorce may follow after lapse of a prescribed period during which no reconciliation takes place

Derivative Citizenship y y The children will automatically acquire the nationality reacquired by their father. Only applies to a minor child who is legitimate, legitimated, adopted

Human Relations
Article 19-28 Art. 19 Abuse of right: Everyone must, in the 1. Exercise of rights 2. Performance of duties

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Every persons obligation to: 1. Act with justice 2. Give everyone his due 3. Observe honesty and good faith

cf: Art. 20 Indemnification for: Acts contrary to law Elements: 1. Person causes damage 2. Through an act contrary to law 3. Done willfully or negligently Art. 21 Compensation for damage for: Acts contra bonus mores contrary to - morals - good customs - public policy Elements: 1. Person causes damage 2. Through an act contrary to morals, good customs, or public policy 3. Done willfully

also related to: Art. 23 Liability for indemnity for damage to property Elements: 1. Act / event caused damage to another's property 2. Defendant was benefitted 3. Damage was not due to his fault or negligence

Art. 2

Damages for lack of respect for neighbors and other persons i. Dignity ii. Personality iii. Privacy iv. peace of mind

Causes of action for damages, prevention, other relief: 1. Disturbance of privacy 1. prying into privacy of residence 2. meddling with private life/ family relations 2. Alienation of affection (intriguing to cause alienation from friends)

3. Vexing or humiliating on account of religious beliefs, lowly station in life, place of birth, physical defect, other physical condition Art. 27 Damages for refusal of public servant or employee to perform official duty Without prejudice to disciplinary action Art. 28 Right of action for damages for unfair competition by the person who thereby suffers . Unfair competition in 1. Enterprises (Agricultural, Commercial or Industrial) or Labor 2. Through the use of FID-MO: Force, Intimidation, Deceit, Machination, Other unjust, oppressive or highhanded method Elements of COA for damages or other relief: 1. Public servant or employee refuses or neglects to perform his official duty 2. Without just cause 3. Person suffered material or moralloss

Abuse of Right y y y Apply only where there is Abuse of right Vs. Damnum Absque Injuria injury without damages because you are simply exercising your right Examples of Abuse of Right 1. Breach of promise to marr  Nothing can be rescinded. Neither can there be specific performance because it will be tantamount to vitiated consent, which is ground for a voidable marriage. (Wassmer v. Velez) o Exceptions:   o 2. Volenti Non Fit Injuria - a person who exposes himself to risk, even if later on he suffers injury or humiliation, cannot be awarded damages. o 3. MWSS case If there is deceit If there are damages

1. Solutio indebiti Getting something that unjustly belongs to you, thereby causing injury to the real owner of the property (unjust enrichment) y Collection of full rental rate despite the fact that lessor was already occupying one room in the house

2 important doctrines

is not actionable.

Lacson v. Lacson an uncle does not have any obligation to support his nephew, therefore, he has every right to demand reimbursement from the biological father. Otherwise, the father will be unjustly enriched.

Art. 22

Obligation to return thing

Elements: 4. Person acquires / comes into possession of something 5. He acquires the thing without just or legal ground . Such acquisition was through anothers act or performance or at his expense

2. Negotiorum GestioAdministration of property of a 3 rd person without any contract with him (quasi-contract)

Art. 25

Thoughtless extravagance in expenses may be stopped upon court order.

Elements: a. Thoughtless extravagance b. Done for pleasure or display c. During a period of acute public want or emergency d. Person seeking to stop it must be a government or private charitable institution

Q: Can you file an independent civil action without need of reservation? To answer, determine: Where does the civil liability arise? (source of obligation) 1. Civil liability arising from a delict:Articles 29, 30, 35 cf Rule 111 (ROC) and

Art 100 (RPC) Civil action for damages for act or Art. 29 omission arising from a crime Elements:    Bond for damages

Act or omission arising from a crime Proven by preponderance of evidence Although accused acquitted because guilt was not proven beyond reasonable doubt

Bond for damages y y in case the complaint found malicious upon plaintiffs motion Shall be declared by the court Inferred from the text of the decision, in the

Acquittal based on reasonable doubt

y y

absence of declaration. Art. 30 Preponderance of evidence: Quantum of proof in a separate civil action arising from a criminal offense y Elements: y y Criminal offense Separate civil action to demand civil liability arising therefrom No criminal proceedings instituted during the pendency of the civil case Art. 35 A civil action for damages may be brought where no independent civil action is allowed. o Subject to suspension of the civil action if an information is filed during its pendency (presented by prosecuting attorney), until the termination of the criminal proceedings civil action for damages against the alleged offender may be supported by a preponderance of evidence. Court may require plaintiff to file a Bond for damages y y in case the complaint found malicious upon defendants motion o o Elements: o o A person was injured by a criminal offense No independent civil action is granted (by the Civil Code or special law) for the criminal offense No reasonable ground to believe that a crime was committed or The prosecuting attorney refuses or fails to institute criminal proceedings

GR: Every criminal action gives rise to a civil action. y y (basis: a person who is criminally liable is also criminally liable [RPC]; delict is a source of obligation [NCC]) X: a. Waiver b. Civil case filed prior to the criminal case c. Reservation to file an independent civil action before prosecution presents evidence Will the dismissal of the criminal case dismiss the civil case? y y If the dismissal is based on a finding that there is no crime, YES. (no basis for civil action as well) If the dismissal is based on a finding that there is no proof of guilt beyond reasonable doubt, NO. (civil liability is only based of preponderance of evidence)

Will death extinguish the accuseds civil liability? y If the accused dies, criminal and civil liability will be extinguished. Civil liability can only proceed provided it arises from other sources of obligati on: law, contract, quasi-contract, quasi-delict. (Sendaydiego & Bayotas cases) o In which case, the deceaseds estate will be the defendant. The estate is considered a juridical person. 2. Quasi-delicts which give rise to an Independent civil action:Articles 31, 32,

33, 34, 2177 of the Civil Code Art. 31 Independent civil action may proceed independently and regardless of the results of criminal proceedings. Art. 32 Liability for damages forviolation of fundamental rights and liberties Requirement: y civil action is based on an obligation not arising from the act or omission complained of as a felony Elements: y Act/omission by: o Public officer / employee  Judge act or omission should constitute a violation of the RPC or other penal statute. Private individual

o y

Direct / indirectly obstruction, defeat, violation, impediment or impairment of:

(1) Freedom of religion; Freedom of expression (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; Right to due process (also eminent domain) and equal protection ( ) The right against deprivation of property without due process of law; (7) The right to a just compensation when private

property is taken for public use; (8) The right to the equal protection of the laws; Right against unreasonable searches and seizures: (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; Freedom of association (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; Freedom from involuntary servitude (14) The right to be a free from involuntary servitude in any form; Rights of the accused (15) The right of the accused against excessive bail; (1 ) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (right against self-incrimination)

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts Independent civil action for violation of fundamental rights and liberties o o if act/omission constitutes a crime, aggrieved party has a right to file a separate & distinct civil action may be proven by preponderance of evidence included in the indemnity: o o Art. 33 Independent civil action for: o o o Art. 34 Defamation Fraud Physical injuries* Elements: o o o A person is in case of danger to life or property Refusal or failure to render aid or protection Of a member of a city or municipal police force only a preponderance of evidence is necessary to support this independent civil action o o moral damages Exemplary damages

entirely separate and distinct from the criminal action, only a preponderance of evidence is required

Independent civil action for: Liability for damages for refusal or failure of peace officer to render aid or protection o o Primary Liability: Peace officer Subsidiary liability: Municipality

* The term physical injuries, used in its generic sense, is interpreted to include death. Art. 36 Prejudicial Question Exception: Ejectment and cadastral proceeding case

GR: 1 civil and 1 criminal question y Elements: 1. The civil case was filed before the criminal case. 2. Issue in civil case is intimately related to the issue in the criminal case y y Such that one of the elements in the criminal case will be affected E.g. o o Annulment of sale & estafa cases element of deceit affected Declaration of nullity & bigamy different effect:  1st marriage sought to be nullified not a prejudicial question. (will not affect 1st element of bigamy: contracted by a married person) judicial declaration of nullity is required for purposes of remarriage

facts existing as of the time of the commission of the crime are material  2
nd

marriage sought to be nullified ground: lack of marriage license prejudicial question to the bigamy case; 2nd element affected: contracted a 2nd valid marriage Ground: psychological incapacity no prejudicial question. y Psychological incapacity is not an element of marriage. o Which is why children will become legitimate.

Persons

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Person a being, natural or artificial, capable of possessing legal rights and obligations 2 Kinds of Persons 1. Natural y Presumptive (or provisional) personalit acts favorable to it o conclusive cf: Art 41   o Code Art. 40 Commencement of civil personality Birth determines personality The conceived child shall be considered born for all purposes that are favorable to it o Provided born later, subject to requirements of Article 41 Art. 41 When a fetus is considered born GR: if it is alive at the time it is completely delivered from the mother's womb X: if fetus had an intra-uterine life of < 7 mos deemed born if alive for at least 24 hours after complete delivery Intra-uterine life less than 7 months: should survive for at least 24 hours after delivery 7 months or more: sufficient that it be born alive If the problem is general, qualify: simply reiterate Art 41 of the Civil applicable to a fetus for all

Birth determines personality (Art 40)

Dependent upon the birth of the child for the personality to be

o o

2.

Juridical 1. Upon the creation of the charter: local government 2. Upon issuance of the SEC by the certificate of registration: private corporations o In case of failure to file the reportorial requirements, the certificate can be revoked and the corporation ceases to be a juridical person o The Roman Catholic church is a juridical person, a corporation sole. Therefore it can acquire property and sue and be sued.

When personality begins:

JURIDICAL CAPACITY Fitness to be the subject of juridical relations Passive

CAPACITY TO ACT Power to do acts with legal effect Active

Inherent Lost only through death Can exist without capacity to act

Acquired Also lost through death, but may be restricted by other causes Exists with juridical capacity

not exclusive E.g. Restrictions relative to the person o Geluz v. CA: An unborn fetus is not endowed with personality. Parents of an unborn fetus cannot sue for damages on its behalf as the fetus, having no personality, does not have rights which it can pass on.

Art. 38

Restrictions on capacity to act do not exempt the incapacitated person from certain obligations (e.g. from his acts or from property relations [easements]).

Art. 39

Circumstances which modify or limit capacity to act, consequences of which are governed by the Civil Code, Rules of Court and in special laws

7. 8. 9. 10. 11.

religious belief or political opinion. Marriage of a woman (A married woman, twentyone years of age or over, is qualified for all acts of civil life, except in cases specified by law)

Prodigality state of squandering money or property with a morbid desire to prejudice the heirs of a person

Arts 3 -39

Enumeration of Restrictions on Capacit to Act

Circumstances which restrict capacity to act 1. 2. 3. 4. 5. act: 1. 2. 3. 4. 5. . Age Insanity Imbecility state of being a deaf-mute penalty prodigality family relations alienage absence insolvency trusteeship. Minority insanity or imbecility state of being a deaf-mute prodigality civil interdiction

Circumstances which modify or limit capacity to

Capacity to act is not limited on account of:

Civil interdiction penalty given when the penalty of imprisonment is for 12 yrs and 1 day or more y y Effects: Deprivation of parental / marital authority o Deprivation of the right to be the guardian of the person and property of a ward o o Deprivation of his property by acts inter vivos Deprivation of the right to manage ones properties

y y Art. 43

Rules on transmission of rights of persons called to succeed each other, who died at the same time.

Residence & Domicile Domicile y y Residence y Art. 50 Element of temporariness For 1. 2. Art. 51 Rules to determine place of domicile of juridical persons 1. exercise of civil rights fulfillment of civil obligations Law creating or recognizing them, or any Place where you intend to return Element of permanence

Domicile of natural persons: Place of habitual residence

Art. 43 cf

Rule 131 S.3 (disputable presumptions)

Apply only if the parties involved are called to succeed each other Remember who are the compulsory heirs Situation: Two or more persons called to succeed each other died at the same time Doubt as to which died first Rules: 1. Proof required from the one who alleges the death of one prior to the other 2. In the absence of proof: Presumption: they died at the same time Effect: no transmission of rights from one to the other.

Determined by: other provision

2. a. b.

If not fixed therein: Place where their legal representation is Where they exercise their principal

established functions.

Family Code: REQUISITES of marriage5/30/2009 1:02:00 AM

Effectivity date of FC: August 3, 1988 MARRIAGE          Special contract Permanent union Between a man & a woman Entered into in accordance with law Purpose: For the establishment of conjugal & family life Foundation of the family Inviolable social institution Nature, consequences and incidences are governed by law, not subject to stipulation as a general rule. Except that parties may enter into marriage settlements within the limits of the Family Code. (Art 1) y Marriage is a special contract stipulation. o Only one instance wherein couple can enter into a stipulation : antenuptial agreement y y Canon Law submits to civil law Validity of marriage: All requirements should be present at the time of the marriage and not on installment basis. o The law favors the validity of a marriage because the State is interested in the preservation of the family & the sanctity of the family is a Constitutional concern. y Presumption of marriage exists when: o o o A man and a woman deport themselves as husband and wife They are known in the community as such Existence of a marriage contract is not necessary. parties cannot enter into any kind of

CHECKLIST of ELEMENTS REQUISITES FORMAL ESSENTIAL ABSENCE Void Void DEFECT Voidable No effect on validity but responsible party will be liable IRREGULARITY

ESSENTIAL REQUISITES cf: Art 15 (Nationality Theory) 1. Legal Capacity Age (18); Sex (M & F)

m
1

Elements from the Definition

Silverio case v. Cagandahan case Silverio case Intentional: Sex reassignment Petition for correction of entry in BC. Sex reassignment what should determine are the circumstances happening at the time of the actual birth of the child, not changed by any scientific intervention. Cagandahan case Natural: Congenital Adrenal Hyperplasma Petitioner has congenital adrenal hyperplasia (CAH) where he has two sexes (hermaphrodite). In this case, SC cannot intervene with what nature dictates. SC allowed the change of name and entry of sex. The petitioner has the choice of sex.

2.

Consent Freely Given in the presence of a solemnizing officer between the two

contracting parties (not consent of their parents) Parental Consent 18-21yrs old not an essential element of marriage ground to make the marriage voidable Parental Advice 21-25yrs old will not affect the validity of the marriage will simply delay the issuance of the marriage license(issued 3 mos after completion of publication) if the marriage license is still issued, marriage there is merel an irregularit valid

FORMAL REQUISITES all of the requisites should be present at the time of marriage y cf: Art 17 NCC in the event of: o o Filipinos contracting marriage abroad A Filipino contracting marriage with a foreigner

1.

Authority of the Solemnizing officer expressio unios rule applies except: mayors a. Priests / Ministers / Rabbi / Imam o o o

(LGC of 1991 which became effective on Januar 1, 1992 ) Duly authorized by his church / religious sect Registered with the civil registrar general Acting within limits of the written authority granted by his church / sect

o b. Judges o o

At least one of the parties belongs to such church / sect

Within the courts jurisdiction. Although A judge who celebrated his marriage outside of his territorial jurisdiction is merely considered an irregularity. (Navarro v. Domagto ) Justice Sempio-Dy disagrees with this  Ruling could also be applied to mayors.

c. Mayors o A mayor who solemnized a marriage in 1991 did not have authority to solemnize marriage  Will not apply: Belief of the parties in good faith that he had the authority refers to a mistake of law Good faith of the parties in believing that the person who solemnized their marriage had authority referring to a mistake of fact, not a mistake of law y Basis: Ignorance of the law excuses no one from compliance therewith Example of belief in good faith that the solemnizing officer had authority that is a mistake of fact: y Former seminarian who solemnized a marriage, misrepresenting himself to be a priest o priest had authority (vs. mayor who did not have authority as of 1991) Good faith should onl be connected to mistake of fact, not mistake of law o A vice-mayor solemnizing a marriage   o  Personal capacity marriage is not valid Acting as mayor marriage is valid The Civil Code was still in effect

A mayor who solemnized marriage on Aug 1, 1988 valid

d. Ship captain, military commander y Military commander elements have to concur: o o o o ONLYWithin a military zone One of the parties is in articulo mortis Parties may either be members of the armed forces or civilians No chaplain

Airplane / ship captain o o During voyage or stop-over One of the parties is in articulo mortis

 o

The presence of a priest will not divest the captain of his authority.

Related to exceptions to the requirement of a marriage license

Marriages of exceptional character: 1. If one of the contracting parties is in articulo mortis Physical condition of contacting parties at time of marriage is controlling Solemnizing officer should issue an affidavit that the marriage was performed in articulo mortis, and that he took steps to determine the capacity to marry of the contracting parties. Affidavit shall be sent to the local civil registrar of the municipality where marriage was performed. Marriage remains valid even if the ailing party subsequently survives 2. No means of transportation from the residence (due to its location) of either party to the local civil registrar for purposes of appearing personally  Solemnizing officer should issue an affidavit that there is no means of transportation from the residence of either party to the local civil registrar due to the formers location (specifying the barrio/brgy), and that he took steps to determine the capacity to marry of the contracting parties.  Affidavit shall be sent to the local civil registrar of the municipality where marriage was performed. 3. Marriage between Muslims/ members of ethnic cultural communities Provided the marriage was solemnized in accordance with their customs, rites or practices 4. Cohabitation for 5 yrs  3 doctrines: Ninal case the 5 yr period should be continuous, exclusive, uninterrupted by any legal impediment (including age) Manzano case affidavit of cohabitation: there should be no impediment as of the time of the celebration of the marriage, regardless of the existence of an impediment before y Rationale: to encourage those with common-law relationships to marry Republic v. Dayot the 5 yr period should be counted from the celebration backwards. It should be continuous, exclusive and uninterrupted by any legal impediment.

Concurring requisites: 1. Man & woman must have been living together as husband & wife for at least 5yrs before marriage 2. Parties must have no legal impediment to marry each other, and at the time of marriage 3. Parties must execute an AFFIDAVIT stating they have lived together for at least 5yrs 4. Solemnizing officer must execute a SWORN STATEMENT that: y y he ascertained the parties qualifications he found no legal impediment

e. Consul o In the place where the place where the marriage will be celebrated cf: exterritoriality principle o Both parties are Filipinos  If between a Filipino and a foreigner, celebrated in the Philippine embassy Answer # 1: Not valid. Based on the Family Code Answer # 2: Valid. Authority of the solemnizing officer is merely a formal requisite. If it is valid in the place of celebration, it will also be valid in the Philippines.

2.

Marriage License valid for 120 days y y y should be applied for in the local civil r egistrar of the place where one of the parties resides(if not irregularity) irregularity) 10-day posting requirement should be complied with (if not should be signed by the Civil Registrar o o signed by an employeew/ the Civil Registrars authority irregularity without the Civil Registrars authority as if no marriage license marriage will be void y For foreigners, the ff: is required for application for marriage license: o Foreigners certificate of capacity from their diplomatic / consular officials o Stateless persons affidavit stating circumstances showing capacity to contract marriage y vs. a Marriage Contract o o o o Does not affect the validity of the marriage Registration is simply notice to the public Best evidence of the celebration of a marriage Other evidence:  Listing in church

Listing of the judge

3.

Marriage Ceremony both contracting parties should be physically present in y Should be celebrated in the chambers / church o Venue, however, is not one of the formal requisites

front of a solemnizing officer

Defective Marriages
NULLITY1 STATUS OF MARRIAGE REAL PARTY IN INTEREST GR: Either of the spouses (p. 39 NCC ) - no such thing as an injured / aggrieved party / party in BF forced to marry Exception: The injured spouse - If the ground is bigamy, the spouse with a valid subsisting marriage is in BF PRESCRIPTION The action does not prescribe. Any of the relatives of the insane person5 GR: 5yrs from: a. The time of the celebration of the marriage7 OR b. The time of the Exceptions: Parent who did not give parental consent4 defrauded spouse
3 2

5/30/2009 1:02:00 AM

ANNULMENT Voidable (valid until annulled) GR: Aggrieved / Injured spouse / party

LEGAL SEPARATION Valid GR: The injured party

Void Ab Initio

5yrs from the existence of the ground

Connect with:  Who has the authority to celebrate marriage  Article 15 NCC 2 The heirs can no longer file a petition for declaration of nullity. (Enrico v. Heirs of Nina Celi) 3 Prior to the Rules, the children can file a declaration of nullity of marriage (Ninal v Badayog) 4 If the contracting party is between 18-21 5 In the alternative, the party who is not insane / insane person during a lucid interval could also file the petition for annulment 6 Original version of the Family Code: within 10yrs from the effectivity of the Family Code 7 For grounds: 1. Impotency 2. Sexually intransmissible disease 8 Ground: Fraud 1

discovery of the fraud8 OR c. Disappearance of intimidation/force 9

X: 1. When the child is still between 18-2110 X to X: 5yrs from the age of 2111 2. During the lifetime of the spouses 12 X to X: During lucid interval 13 GROUNDS Art. 35: Prohibited marriages 1. Contracted by a party below 18 (even w/ guardians consent) 2. Lack of authority of solemnizing officer (X: either/both parties in GF of formers legal authority [mistake in fact] 3. W/o a marriage license (X: Exceptional marriages) 4. Bigamous / polygamous (X: subsequent marriage of present spouse of an absentee) 5. Mistake of a contracting Art. 45 1. Lack of parental consent when required 2. Either party was of unsound mind 3. Fraud Fraud limited to CONCEALMENT (Art. 4 ): a. Of homosexuality
14

Art. 55 1. Repeated physical violence or Grossly abusive conduct - against petitioner, his/her child, or a common child** 2. Physical violence / moral pressure to compel change in religious / political affiliation 3. Attempt to corrupt / induce engagement in prostitution or connivance thereto** 4. Final judgment sentencing respondent to imprisonment of more
15

b. That 1 has a sexually transmissible disease c. Of pregnancy by another man [X: pregnancy is of an ADVANCED STATE] d. Of previous conviction by final judgment of a crime involving moral turpitude (regardless of nature)

10

Ground: Undue influence Ground: Lack of parental consent (filed b y the parent who did not give consent) 11 Ground: Lack of parental consent (filed by the spouse whose parent did not give consent) 12 Ground: Insanity (filed by the relatives of the insane person / the sane spouse) 13 Ground: Insanity (filed by the insane person) 14 If no concealment, it is a ground for annulment. 15 If no concealment, it is a ground for annulment. 16 Distinguish:  Four months there is concealment (Bucat v. Aquino)  Seven months there is NO concealment (Delizo case) 2

physical identity . Subsequent marriages where either/both spouses failed to partition & distribute presumptive legitimes to children from previously annulled / - should have been registered in the proper civil registry / registry of property to affect third persons Art 3 nullified marriage ACP/CPG & deliver

4. Consent vitiated by force17, intimidation 18 or undue influence 5. Impotency incurable& continuous . Sexually transmissible sexual disease serious & incurable *5 & are not ratifiable
19

pardoned) 5. Drug addiction / habitual alcoholism . Lesbianism / homosexuality respondent of a subsequent bigamous marriage (in Phils or abroad) 8. Sexual infidelity20 or perversion 9. Attempt against the life of the petitioner 10. Abandonment 21 without justifiable cause for more than one year

7. Contracting by

7. Psychological Incapacity (Art. 3 ) Art. 37: Bigamous marriages 8. Ascendants & descendants 9. Siblings full/half blood Art. 38: Void due to Public Policy

17

Violence exists when in order to wrest consent, serious / irresistible force is employed 18 Intimidation exists when, to give his consent, one of the parties is compelled by a reasonable & well-grounded fear of an imminent & grave evil on the person or property of his spouse, descendants, ascendants or himself. Age, sex & condition of the person determines the degree of intimidation. [A threat to enforce one s just / legal claim through competent authority does not vitiate consent] 19 Undue influence when one takes improper advantage of his power over another s will, depriving the latter of a reasonable freedom of choice. 20 Final judgment of conviction is not necessary; only preponderance of evidence is needed. 21 At least 1 yr 3

party as to the others

than

yrs (even if

10. Collateral blood relatives up to 4th deg legit / illegit 11. Step-parents & stepchildren 12. Parents-in-law & children-in-law 13. Adopter & adoptee 14. Surviving spouse of adopter & adoptee 15. adopter & surviving spouse of adoptee 1 . Adoptee & a legit child 17. Adoptees of the same adopter 18. Parties where one, with the intention to marry the other, killed the latters spouse or his/her own spouse REQUIREMENTS 1. Psychological Incapacity22 should be: a. Medical proven b. Permanent c. Incurable Sempio-Dys Buzzwords: a. Gravity b. Juridical antecedence c. Incurability (Totality of evidence presented) 2. Petitioner / Respondent Instances for denial: (Art. 5 ) 2. Consent27 to the commission of the offense / act 3. Connivance in the commission of the offense / act 4. Both parties gave ground for legal sep 5. Collusion to obtain the decree . Prescription28

22 26

Republic v. Molina Forgiveness express / implied (e.g. sleeping together after full knowledge of the offense; X: if purpose is to save the marriage, but attempt failed)
e.g. putting into writing an agreement that the other spouse can have another

27

relationship

1. Condonation 2

of the adopter

/ Both could be declared psychologically incapacitated 3. It is not necessary that the psychologist should personally interview, but the psychological incapacity should be based on other evidence.
23

4. Relative psychological incapacity A person might be psychologically incapacitated towards his spouse, but not towards another person.24 5. No person likes to be psychologically incapacitated. Thus damages are not recoverable from him25. . Signs of psychological incapacity: prolonged refusal to have sexual intercourse b. Sexual infidelity, perversion & abandonment do NOT

a. Protracted and

must be raised in the answer, but courts can take cognizance thereof; every adulterous act has its own prescription 23 Marcos v. Marcos case 24 Alternative argument: However, remember that psychological incapacity is relative and incurable. 25 Buenaventura case 5

28

by themselves constitute psychological incapacity c. NEITHER could emotional immaturity and irresponsibility be equated with psychological incapacity. d. There must be complete inability to discharge the essential obligations of the marital state. EFFECTS What happens to the The marriage bond? The marriage bond is dissolved. The marriage bond remains.29(merely a separation from bed & board) The status of the children? GR: The children are illegitimate
30 31

If born before the annulment: The children are legitimate. If born after: The children are illegitimate

The children remain legitimate (regardless of whether born before or after the decree of legal separation)

X: If grounds are : 1. Psychological incapacity 2. Failure to deliver presumptive legitimes (Art. 52 & 53) Custody? Property Relationship? GR: Art. 147 Maternal Preference Rule

Dissolution of the property regime: Co-ownership

Dissolution of the property regime: Art. 148 Party in BF loses his SHARE in the net PROFITS

X: Bigamous marriages (Art. 148)

Donation Propter Nuptia Between

Revoked by operation of law

Revocable within 5yrs from finality of decree

29 30

Therefore, the obligation to remain faithful still remains. Regardless of whether the children were born before or after the declaration of nullity 31 If the child was born before the declaration of nullity, the child will remain legitimate. If after, the child will be illegitimate 6

Spouses? Right to Inheritance? The insurance policy (if you are a beneficiary of one)? Notes: Spouse may revoke designation as beneficiary Revoked by operation of law

(by the injured spouse)

1. The declaration of nullity of marriage may be for purposes other than remarriage, e.g. support, recovery of custody of children or separation of properties 2. 2 Kinds of Bigamous marriages a. Void previous valid subsisting marriage b. Voidable (valid until annulled) previous marriage is merely suspended: when the pouse in the first marriage 32 is presumed dead (Art. 41)  Requisites: 1. if the absent spouse disappeared 33 for 4 yrs34 o or 2 consecutive yrs under extra-ordinary circumstances e.g. if missing spouse was:    on board a missing airplane / vessel lost during a voyage a member of the armed forces & had taken part in war in danger of death under other circumstances 2. Present spouse wishes to remarry 3. Present spouse has a well-founded belief that the absent spouse is dead 4. Present spouse files a summary proceeding for DECLARATION OF PRESUMPTIVE DEATH of the deceased Otherwise, the present spouse contracting a 2 nd marriage may be convicted of bigamy35

The 1st marriage is merely suspended. Therefore, the 2nd marriage is really bigamous but authority to marry is granted by the court. 33 Distinguish: Disappearance v. Abandonment. Disappearance should be under unusual / fortuitous events. 34 File a judicial declaration for the presumptive death of the absent spouse 35 Art. 349 of the RPC penalizes a person for bigamy if he contracts a 2nd marriage before the absent spouse has been declared presumptively declared by means of a judgment rendered in the proper proceedings.
32

If the absent spouse reappears, he should file an AFFIDAVIT OF REAPPEARANCE 3 . o o To be recorded in civil registry of parties of the subsequent marriage Effects of recording:   Subsequent marriage is automatically terminated Unless there is a judgment declaring previous marriage null & void / annulled (Art. 42)

3. There can be no default in annulment of marriage cases because such would be fraught with dangers of collusion. 4. To protect the interest of the family during annulment or declaration of nullity, the courts should: a. Order the prosecuting attorney or fiscal to ensure there is no collusion and that evidence is not fabricated nor suppressed (Art 48) i. Sol Gen (or his office) - not barred from intervening b. Provide for support & custody of the children, if theres no agreement to the same i. Paramount considerations: 1. Moral & material welfare of children 2. Childrens choice of parent ii. Subject to appropriate visitation rights (Art. 49) LEGAL SEPARATION 5. No decree of legal separation could be effected based on a stipulation of facts / confession of judgment. (Art. 0) . Reconciliation 37 a. Effects (Art. 7): i. On decree 1. Terminates proceedings 2. Sets aside decree of legal separation & a decree of reconciliation shall be issued instead 3. If already issued, decree of legal separation becomes ineffective ii. On property relations 1. Forfeiture & separation of property subsists

The 1st marriage resumes. To be able to remarry, the 1st marriage should be declared null & void. 37 Mere friendly relations without actual living together is not reconciliation
36

X: spouses agree to REVIVE their former property regime b. Agreement to revive former property regime (this is not automatic!) o o o o Executed under oath Agreement & motion for approval shall be filed with the court Copies furnished to creditors After due hearing creditors) o Order to be recorded in proper registers of property   o Creditors not listed / notified shall not be prejudiced X: Debtor-spouses separate property is sufficient to satisfy the creditors claim Court order (w/ measures to protect interest of

RIGHTS AND OBLIGATIONS in marriage5/30/2009 1:02:00 AM

RIGHTS AND OBLIGATIONS in marriage Obligations 1. Obligation to live together y And o o y observe mutual love, respect & fidelity render mutual help & support GR: Fixed by husband & wife X: By court, in case of disagreement

Fixing of family domicile: o o

The decision to live together is personal to the husband and the wife, although the Family Code states that the spouses should live together, there are some exceptions: (Bilner v. Bilner) o o Professional reasons Compelling reasons  Exception to the exception: if not compatible with the solidarity of the Family

2. Obligation to have sex y Consummation of the marriage: there should be a sexual act. (Ching Ming Choi case) o Cf: Definition of marital rape

3. Mutual Support expenses for support & conjugal obligations shall be paid from (in the ff order): y y y Community property Income / fruits of separate property Separate properties

4. Joint Management of the Household

5. Exercise of LEGITIMATE profession, occupation, business or activity y y y Even without the consent of the other spouse Subject to other spouses PROPER objection on valid, serious and moral grounds (Art 73) Disagreement: Courts shall decide whether objection is proper o Benefit accrued to family prior to the objection The obligation shall be enforced against the separate property of spouse who has not obtained consent o Liabilities / obligations were incurred  PRIOR to the objection COMMUNITY of property shall be answerable

Cf

Propert

Relationship

 y

AFTER the objection

shall be answered by the SEPARATE

property of the spouse engaging in business Rights of creditors acting in GF will not be pr ejudiced

Remedies for y y non-fulfillment of Marital Obligations commission of acts which tend to bring danger, dishonor or injur

1. Action for damages 2. Stop giving support 3. Ask for sole administration of the property

Property Relations
1. Marriage settlements executed before marriage 2. Family Code y

5/30/2009 1:02:00 AM
(Art 74):

In the absence of contrary stipulation in the marriage settlement, Philippine laws shall govern property relations, regardless of place of celebration of marriage & residence of the spouses. (Art 80) o Exceptions: 1. Both spouses are aliens 2. With respect to extrinsic validity of contracts affecting property situated in a foreign country a. and contract was executed where the property is located or b. whose laws require different formalities for its extrinsic validity, although the contract wasentered into in the Philippines

3. Local customs y Note: the word local has been inserted in the FC

Parties cannot make any stipulation except in an ante-nuptial agreement. (marriage settlements) y May contain provisions on: 1. Property regime between spouses 2. Recognition of a fetus y y Will remain valid even if the marriage is not celebrated In writing(notarization / public instrument not required for purposes of validity) two views: o Tolentino: If not in writing, valid but merely unenforceable ( failure to comply with requirements of the Statute of Frauds) o Sta Maria &Sempio Dy: If not in writing, it is void. The FC mandates that the marriage settlement shall be reduced into writing. Thus, a written ante-nuptial agreement is mandatory - Filed together with the application for marriage license y To prejudice / bind third persons, should be registered in the Local Civil Registry where the Marriage Certificate is registered(Art 77)

DONATIONS Donation Propter Nuptias donations made in consideration of the marriage in favor of one or both of the prospective spouses, executed before its celebration (Art 82) y y Given before the celebration of the marriage o If given on the day of the marriage, it is an ordinary gift / donation In consideration of the marriage

Propert Relations between spouses are governed b

DONATIONS PROPTER NUPTIAS Acceptance Donation by minors Donation of future property Limits on donation of present property Does not require express acceptance May be made by minors May include future property If present property is donated and property regime is not absolute property, limited to 1/5 Grounds for revocation 1. Marriage is not celebrated / void ab initio donor may yrs [oral], 10yrs [written] X: donations in marriage settlements donations are rendered VOID 2. marriage w/o consent of parents / guardians as required by law(w/n 4 yrs) 3 & 4. annulment / legal sepn of marriage & donee acted in BF 5. Resolutory condn complied with . Donee commited an act of ingratitude revoke [Art 8 ]w/n

ORDINARY DONATIONS Express Acceptance required Cannot be made by minors Cannot include future property No limit, provided legitimes are not impaired Art 739 NCC

Revocation of the donation: y y Between Spouses recovery of the donation is allowed If the marriage does not push through, the donation may be revoked

If property donated was subject to an encumbrance and is later foreclosed (Art 85): y y Sold for less than obligation secured donee NOT LIABLE for DEFICIENCY donee ENTITLED to excess Sold for more than total amount of obligation

Donations Between Husband and Wife GR: Prohibited VOID y y X: 1. During family rejoicing 2. Separate property regime 3. Making the other spouse the beneficiary in an insurance contract over the life of insured spouse Rationale: To avoid any undue influence over the wealthier spouse, to the extent of prejudice of heirs or creditors of the donor Applicable to common-law relationships (Art 87)

Kinds of Propert Regimes 1. Absolute Community y y Shift from CPG APC (due to the effectivity of the Family Code) cannot be given a retroactive application because it impairs vested rights Commences at the precise moment that the marriage is celebrated. Stipulation (express / implied) that it shall commence at any other time shall be VOID. (Art 88) rules also applies to CPG 2. Conjugal Partnership of Gains Property (proven to be) acquired during the marriage are presumed to be conjugal / community property y y Regardless of WON spouses are living together Even though the registration of properties is in the name of only one spouse o Conversely, the fact that property was registered in the name of spouses is not proof it was acquired during the marriage. ABSOLUTE COMMUNITY OF GAINS In the absence of antenuptial agreements MEMORIZE: Properties considered as exclusive property: 1. Paraphernal (wife) 2. Capital (husband) Default property regime in the FC Art 92 1. Acquired during the marriage by gratuitous title (X: express provision by donor/testator/ grantor for property to belong to ACP) 2. For personal and exclusive use (X: jewelry [part of ACP) y CONJUGAL PARTNERSHIP OF GAINS Default property regime before the effectivity of the FC Art 109 Property by direct acquisition 1. Brought to the marriage as his/her own 2. Acquired during the marriage by gratuitous title Onerous charges will be borne by the donee-spouse, when

3. Property ( & fruits & income) acquired before the marriage by either spouse w/ legitimate descendants by a former marriage

advanced by the CPG (Art 114) Property by substitution 3. Acquired by right of redemption, barter or exchange with exclusive property 4. Purchased with exclusive money *Test: Origin of money

Inclusion of property before marriage

All properties owned by the spouses at the time of marriage become part of the ACP

Property before marriage are retained, only fruits and income become part of CPG Only NET PROFITS of CPG are divided equally between spouses / heirs Transfer of administration of exclusive property: via a PUBLIC INSTRUMENT recorded in the registry of property where property is located (Art 110) Alienation automatically terminates such administration (Art 112)

Liquidation

NET REMAINDER of ACP properties are dissolved & liquidated

Administration

Joint Disagreement: H, subject to Ws recourse (to question contract) w/n 5 yrs

Remedies in case of abandonment 1. Left conjugal dwelling for 3 mos 2. Failed to give info about her whereabouts during same period

Petition for 1. Receivership 2. Judicial separation of propert 3. Sole administration

*GR: No waiver of rights, interests, shares / effects in ACP & CPG may be made (FC Art 89 & 107) y X: Judicial separation of property by way of a PUBLIC INSTRUMENT, recorded in the local civil registry (where marriage certificate was registered) o Creditors of spouse who made the waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover their credits

CONJUGAL PARTNERSHIP Juridical Personality Commencement None At precise moment of celebration of marriage similar to ACP Regulation Division of profits By law Equally (generally) No division of profits until after dissolution Dissolution Upon death of one of the spouses

ORDINARY PARTNERSHIP Juridical personality Any time agreed upon by the parties By agreement (subsidiarily by law) According to capital contribution Profits may be divided even without dissolution May be continued despite death of a partner

For sales that took effect before the effectivity of the family code, the FC cannot be applied retroactively since the vested right of the purchaser will be impaired. y Prior to the effectivity of the Family Code o the other spouse o sale y During the effectivity of the Family Code o Sale is void ab initio (Art 9 & 124 FC), in the absence of written consent of the other spouse  Transaction shall however 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 9 )  Court authorization could be resorted to in cases where there is a showing that the spouse who does not give consent is incapacitated. o y Imprescriptive period to nullify sale VOID Sale / encumbrance of community property by the surviving spouse without liquidating the same within one year from death of the other spouse (Art 103) Sale is voidable (Art 1 NCC), in the absence of written consent of

Non-consenting spouse has a 10-yr prescriptive period to nullify the

*spouses only have inchoate right over conjugal property until the dissolution and liquidation of the partnership if there are net assets y Debts o If the loan redounded to the benefit of the family, the creditor could run after the conjugal / community property under the ACP / CPG private creditor of a spouse cannot attach/levy of the joint account

Sale/encumbrance(includes lease)of conjugal propert

Benefit to the family must be direct, cannot be a mere by-product or a spin-off  E.g. Debts for the exercise of the industry or profession which contributes for the support of the family cannot be deemed exclusive / private.  Benefit need not be quantified into pesos or real property ; discernible advantage or good to the conjugal partnership is sufficient. Guarantee of a third partys debt is for the benefit of such 3 rd party, not the family.

y Gambling y y

Burden of proof belongs to the creditor

Winnings redound to the benefit of the family so will belong to conjugal / community property Losses borne by the spouse alone

Contract to Sell v. Contract of Sale to spouses CONTRACT TO SELL Contract entered into before the marriage Subject to a condition where ownership will be transferred upon full payment of contract price Effect of Full Payment of Contract Price During the Marriage Lease with conditional sale upon full payment of rentals entered into in the 1
st

CONTRACT OF SALE Even if by installment, ownership of the property may already be transferred Exclusive Property (CPG)

Conjugal Property

Full ownership vested in the 2nd marriage property in the 2 nd marriage (Retroactive effect of the FC since no vested rights were impaired) may be claimed as conjugal

marriage

Improvements on Exclusive Propert o y

If value of improvements > value of the property improvement o

Subject to reimbursement of the value of the property at the time of the Otherwise, ownership of property shall be retained, subject to reimbursement of cost of improvement

y o

Ownership to be vested upon the reimbursement to be made at the time of the liquidation of the CPG (Art 120)

If value of property > value of improvements property remains exclusive

Effect of separation in fact on ACP / CPG o Separation in fact will not affect the conjugal partnership

considered as conjugal property

fact, for as long as there is no dissolution of conjugal property, the legal wife could validly run after the property in the name of the common law wife. o Unless the common law wife could prove actual contribution to the value of the property. Liquidation of ACP/CPG (Arts 102, 129) One marriage: 1. Inventory of exclusive and community / conjugal properties 2. Payment of debts and obligations of ACP/CPG. If community / conjugal assets are insufficient, separate property of spouses will be solidarily liable for unpaid balances. 3. Delivery of remainder of exclusive properties 4. Net remainder of properties shall constitute net assets in the ACP (net profits for CPG; net profits = increase in market value of properties between time of liquidation & celebration of marriage) y y GR: divided equally X: o o Different proportion / division agreed on in marriage settlement Voluntary waiver of share as provided in the FC

5. Delivery of presumptive legitimes to common children (upon partition) . Adjudication of the conjugal dwelling and lot to spouse with whom majority of children remain (according to best interests of the children) y X: contrary agreement

Liquidation 2 marriages carried out simultaneously o o According to proof In case of doubt (no mathematical certainty): Existing properties shall be divided between/among different communities in proportion to capital&duration of each (Art. 104)

3. Complete Separation of Property o o Cannot be converted to any other regime Property relationship that governs spouses after the dissolution of the ACP / CPG (Art. 138) Kinds of Separation of Property (Art. 144) y Extent o o Total Partial e.g. property not agreed upon as separate shall be ACP (unless parties otherwise agree) y Kinds of property o o o Present Future Both

During the marriage:

o y 132) o

May not be agreed on during the marriage

Otherwise, separation of property shall take place only by judicial order (Art. Valid causes:       o Civil interdiction * Judicial declaration of absence* Loss of parental authority* Abandonment** Abuse of power of administration by the spouse granted such power in the marriage settlement** Separation in fact for at least 1 yr & reconciliation is improbable** * Final judgment against the guilty / absent spouse is enough basis to grant decree of judicial separation of property (Art 135) o o **Proof of causes necessary Spouses may jointly file a verified petition for the voluntary dissolution of ACP / CPG (Art. 13 ) y y o ACP / CPG shall pay for support of the spouse & children during pendency (Art 137) Publication is not prescribed. A motion to revive the property regime may be filed by spouses in the same proceeding in instances due to the cessation of the valid causes for the petition. (Art. 141) y o Reconciliation between spouses does not mean automatic revival of their former regime. Petition & final judgment shall be recorded in the proper local civil registries & registries of property. (Art. 139) y y Shall not prejudice rights vested rights of creditors. (Art. 140) o WON they were notified of / attended the hearing. After the dissolution has been judicially decreed, spous es may still agree to the revival of the former property regime. (Art. 141) o No voluntary separation may be granted thereafter.

Transfer of exclusive property of one spouse to the other by judicial decree (Art 142) o X: Appointment of a suitable person as administrator  If one spouse is not qualified (incompetence, conflict of interest, other cause) SEPARATION OF PROPERTY ACP / CPG Without need of court authorization 1. If the other spouse is incapacitated 2. When one spouse is

Spouses administration of the other spouses exclusive property Grounds

May only be by judicial decree 1. Guardianship of one spouse over the other 2. Judicial declaration of

absence 3. Civil interdiction of one spouse 4. Hiding as an accused in a criminal case / fugitive from justice (Art 142)

incapable of participating in the administration of their common properties (Art 9 & 124)

Subsequent marriage: y Complete separation of property is the mandatory regime when a surviving spouse contracts a subsequent marriage without complying with requirement to liquidate the community property within one year from the death of the deceased spouse (Art 103) o Rationale: To protect the interest of children in the first marriage.

4. Mixture E.g. Partial separation of property: property not agreed upon as separate shall be ACP (unless parties otherwise agree)

5. Co-ownership o o Rules on co-ownership shall apply suppletorily to ACP (Art 90) Applies to property regimes of unions without marriage: 147 Similar Application: Common-law relationships Marriages Parties do not have legal impediment to marry each other - cohabitation must be real and exclusive There is a legal impediment to marry. E.g. 1. adulterous relationships 2. concubinage 3. both are married 4. multiple appliances of the same married man Void marriages Ground does not have any bad faith on any contracting parties E.g. psychological incapacity Wages & salaries Ownership of Property Owned by them in equal shares No need for proof of actual contribution - efforts in care & maintenance of the family Proof of actual contribution required - efforts in care & maintenance of the family Ground does not have any bad faith on any contracting parties E.g.voidBigamous marriages 148

Co-ownership in Common-law relationships and Void

are regarded as contributions (Art 147) Encumbrance / disposition of property in the co-ownership Share of party in BF - party in BF is the one aware of the ground that renders their marriage void but did not communicate it to the other party Forfeited in favor of: 1. common children 2. Descendants of child who predeceases the party in BF X: No transmission if descendant dies ahead of the common child 3. Right of representation of descendants applies even in case of repudiation by a common child of his / her share 4. No children: to the party in GFr GR: Consent required X: After the cohabitation

are NOT regarded as contributions

1. If one party is validly married to another: y His share in the coowned properties will accrue to the ACP / CPG of his / her existing valid marriage 2. If not validly married to another: y Apply rules in 147

3. If both are in BF: same rules of forfeiture: y in pari delicto does law not appl in famil

10

Family & the Family Home

cherishes and protects (Art 149)

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FAMILY the foundation of the nation, a basic social institution which public policy the natural and social institution, founded on the conjugal union , binds together individuals composing it, for common accomplishment of material & spiritual ends of life, under the authority of the original ascendant who heads it y Family relations are governed by law. (No custom, practice or agreement destructive of the family shall be recognized or given effect) Constitutional provisions seeking to protect & strengthen the famil

1. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution . (Art II, Sec 12, last sentence, 1987 Consti) 2. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. (Art XV, Sec 1, 1987 Consti) Who are considered members of the Family? - EXCLUSIVE ENUMERATION (other relatives are merely MEMBERS OF THE HOUSEHOLD) of family relations: 1. Husband & wife 2. Parents & children 3. Ascendants & descendants 4. Brothers & sisters full or half-blood (At 150) y y y y Even if not living together Illegitimate children are not included in family relations (they have their own families) Does not include brother-in-law/sister-in-law Cf: concept of the Family Home o Rationale for Protection of the Family Home from Attachment for the state to protect members of the family (if they have a place where they can stay) y Cf: Marital Disqualification Rule o o Rationale: To avoid friction between spouses N/A if: there is already an existing conflict between spouses

Earnest Effort Requirements to resolve conflicts between members of the Family requirement to amicably settle before filing a case in court(Art 151) y Should be invoked in the original action, not in an action to revive judgment (Santos v. Santos-Guerrero) o Failure to allege in the original action may be cured because the requirement is merely procedural. o Certification to file action by the barangay chairman is sufficient compliance with Art 151.

The requirement does not include illegitimate relationships nor in-laws because they are not included within the term family relations.

Rationale: o It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. o Lawsuits between close relatives generate deeper bitterness than between strangers.

Exceptions: 1. Civil status of persons 2. Validity of a marriage / legal separation 3. Any ground for legal separation 4. Future support 5. Jurisdiction of courts . Future legitime

FAMILY HOME the dwelling house where the family resides and the land on which it is situated, as constituted: y y Jointly by the husband & wife By the unmarried head of the family (Art 152) o Beneficiaries may not constitute the Family Home

Constitution of the famil home y deemed constituted from the time it is occupied as a family residence o o y y there must be ACTUAL occupancy constitution is not affected even if the marriage is nullified

only one family home may be constituted (a person may be the beneficiary of only one family home) must be part of: (Art. 15 ) 1. Conjugal / Absolute community property or 2. Exclusive properties of either spouse with the consent of the other or 3. Own property of the unmarried head of the family or  May be constituted on property subject of a conditional sale on installments, where vendor reserves ownership only to guarantee payment of the purchase price

y y

may not be constituted on a house constructed on land belonging to another value limited to P300K (urban areas) / P200K (rural areas) at time of constitution, or amounts as may be fixed by law (Art 157) o If in excess of such limits, a creditor, may apply to the court for the excess of the actual value less the maximum allowed value.  Creditor must be: A judgment creditor Not among those excepted in Art. 155

With reasonable grounds to believe that the family home is worth more than the maximum amounts   No bid below the value allowed for a family home may be considered at the execution sale Application of proceeds: 1st: claims of those who may attach / levy the family home 2nd: judgment liabilitiesand costs excess (if any): judgment debtor Beneficiaries of the famil home (Art 154) 1. Husband & wife / unmarried head of the family 2. Parents, Ascendants, Descendants, Brothers & Sisters y legitimate or illegitimate o o y y y includes in-laws excludes overseers, household help, other relatives

living in the family home dependent on the head of the family for legal support majority of the beneficiaries of legal age must give WRITTEN CONSENT for the sale, alienation, donation, assignment or encumbrance of the family home (Art 158) o indemnity for the family home in cases of loss / expropriation must be used for the construction / acquisition of a new one

GR: Family Home exempt from attachment, executionor forced sale y y y Right to exemption is a personal privilege of the judgment debtor. Claim for exemption must be set up and proved to the sheriff. Failure to do so would estop the party from later claiming the exemption. Rationale for the right: to encourage the building of the family home, which is the seat & symbol of family affection. X: Cases when the Family Home cannot be exempted from attachment: (Art 155) a. Non-payment of taxes: Family Home could not be exempt from attachment for non-payment of taxes. o only refers to non-payment of real estate tax b. Debts to laborers: Exempt from attachment X to X: If laborers were the ones who constructed the Family Home / furnished material for its construction o Tolentino & Sempio Dy: reconstruction, renovation, improvement and repair NOT INCLUDED c. Debts PRIOR to the constitution of the family home d. Debts secured by mortgage on premises BEFORE/AFTER its constitution

If spouses / family obtained a loan prior to the effectivity of the Family Code, the provision on the constitution of the Family Home under the Family Code could not be given a retroactive effect Rationale: it will impair the vested rights of the creditor.

Period as to when Family Home could be preserved (Art 159): 1. 10 years after death of spouses / unmarried head of the family OR 2. For as long as there is a minor beneficiary living therein AND 3. Heirs cannot partition the same (unless the Court finds compelling reasons therefore)

SUPPORT comprises everything indispensable forin keeping with the financial capacity of the family 1. Sustenance 2. Dwelling 3. Clothing 4. Medical attendance 5. Education includes:
y

schooling / training for some profession, trade / vocation, even beyond the age of majority

6. Transportation includes expenses going to & from school / place of work CHARACTERISTICS OF SUPPORT
y y y y y y y y

right cannot be validly waived because such would be against public policy also refers to MORAL support Personal Non-assignable GR: Not subject to attachment or execution by creditors (Art 205)
y

X: support in arrears

Never fixed (always subject to attachment depending on NEEDS of recipient & MEANS of giver) Reciprocal Demandable
y y

From time needed (although payable only from time of demand) Even if recipient is
o o

beyond age of majority already married

MEMORIZE:(Art 195) 1. Who have the obligation to give support?

2. Who have the right to receive support? i. Spouses No limits in degree ii. Legitimate ascendants & descendants o iii. Parents & legitimate children & the latters legitimate & illeg children iv. Parents & illegitimate children & the latters legitimate & illeg children v. Siblings full / half blood o o Legitimate Illegitimate (Art 19 )   GR: Full extent X: Sibling of age Need for support due to a cause imputable to the claimants fault / negligence PERSONS LIABLE TO GIVE SUPPORT 1. Spouses 2. Common children of spouses 3. Children of a spouse by another marriage 4. Illegitimate children of either spouse 1. Separate property of the parent-spouse 2. If insufficient: Advances from Absolute community (to be paid at time of liquidation) 5. Legitimate ascendants, other descendants (whether legitimate or illegitimate) and brothers and sisters whether legitimate or illegitimate 1. Separate property of the parent-spouse 2. If insufficient, but CPG is financially capable: CPG (to be deducted from share at time of liquidation) Same as 1 Same as 1 PROPERTIES LIABLE FOR THE SUPPORT OF RELATIVES ACP Absolute community Same as 1 CPG Conjugal property Same as 1

1. Separate property of the parent / obligor-spouse 2. If insufficient, but ACP/CPG is financially capable: ACP/CPG (to be deducted from share at time of liquidation)

Order of support(Art 199) when 2/more persons are obliged to give support 1. Spouse 2. Descendants in nearest degree

3. Ascendants in nearest degree 4. Brothers & sisters y Tolentino: rules of preference do not apply if support comes from ACP / CPG of obligor When the obligation to give support falls on two / more persons (Art 19 ) : y y payment divided between them in proportion to the resources subject to right to claim the share due from other obligors The judge may order only one of them to furnish the support provisionally,

CRITERIA FOR SUPPORT measure & limitation 1. FinancialCapacity of the giver s.t. when the obligation to give support falls on 2/more persons, the payment shall be divided between them in proportion to the resources of each 2. Indispensability of the support KINDS OF SUPPORT y As to extent distinction abolished by the Family Code 1. Natural limited to what is absolutely indispensable (bare necessities of life) 2. Civil according to social position / standing of the family y As to source 1. Legal required to be given by law 2. Judicial required to be given by court order (pendent elite / final judgment)  Judgment to give support is never final as courts may modify it according to (Art 202) y y  resources / means of giver necessities of the recipient (Art 201)

3. Voluntary / conventional Inter vivos by contract y Subject to adjustment when necessary due to changes in circumstances beyond the contemplation of the parties (Art 208)  Mortis causa by will y If in excess of the amount required for legal support, may be subject to levy on attachment / execution (Art 208) WAYS TO PAY SUPPORT (Art 204)  Paying allowance y y  y Within the 1 st 5 days of each corresponding month Advanced payment of support - heirs not obliged to return (Art 203) X: moral / legal obstacle to do so exists

Receiving and maintaining the person with right to support in the family dwelling

WHEN REIMBURSEMENT FOR PAYMENT OF ANOTHERS OBLIGATION FOR SUPPORT IS DUE (Quasi-Contract): 1. When the judge orders only one of those on whom the obligation to give support falls, to furnish the support provisionally, subject to right to claim the share due from other obligors (Art 19 ) 2. Stranger pays support without the knowledge of the obligor (Art 20 ) y y y y y y Person obliged fails to furnish Support given was really needed by the recipient Support was given w/o the knowledge of the obligor Support was given without any intention NOT to be reimbursed. Person obliged to give support UNJUSTLY failed or refu sed to give it Support was urgently needed by the recipient

3. Third person furnishes support when the obligor refuses or fails to give it (Art 207)

Paternity and Filiation

Paternity civil status of a father wrt to the child Filiation civil status of a child wrt to his parents No woman can negate that the child belongs to her. 120-180-300 day rule: y y y 120 / 30 = 4 mos 300 / 30 = 10 mos H1s baby Husband 1s death (from 2
nd

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marriage)

Rationale:

Ovulation Period = Fertile June 1 7 14 21 28

1. Impossibility of sexual contact between spouses

Q: Maria, mother of a 4-yr-old child filed a petition for compulsory recognition, presenting a birth certificate wherein the name of Juan dela Cruz appears as the father. If you were the judge, decide the petition. A: If the child is already dead and died in a state of minority or insanity, then Maria could be considered as a real party in interest, presuming that such action was filed within five years from the death of the child. If the birth certificate presented was signed, it could be accepted as proof. If it were unsigned, while as a general rule, it may not be accepted as proof of filiation, it may however be accepted if the details contained therein were supplied by the biological father himself.

[NOTE: THE FOOTNOTES ARE VERY IMPORTANT] Action Action to Impugn Legitimacy / Illegitimacy must be a direct attack (not collateral) Action for compulsory recognition / Action to claim legitimacy / illegitimacy

Grounds for impugning legitimac

Menstrual C cle

180 / 30 =

mos

H2s baby

Second Marriage

180 days 300 days

Real party-in-interest

GR: ONLY the husband 38 X: Relatives of the husband39

GR: Child should file the action40 X: Relatives of the child41 GR: Any time during the lifetime of the child X: Five years from the death of the child43

Prescription

3 Important Periods from the registration of the birth certificate or knowledge of the birth of the child
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1. One year if the place of birth of the child is also the place of residence of the father 2. Two years - if the place of birth of the child is different the place of residence of the father 3. Three years if the child is born in the Philippines and the

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Liao case: The action to impugn one s legitimacy/illegitimacy is strictly personal to the husband. It cannot be filed by any other person. (A petition were the child impugns his legitimacy should be denied because he is not the real party-in-interest)
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3 EXCLUSIVE Grounds (Art. 171): 1. If after filing the action, the husband died 2. If the child was born after the death of the husband 3. If the husband died before the expiration of th e period to bring action during the

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If the child is claiming illegitimacy: continuous, open, possession (COP) lifetime of the putative father
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2 EXCLUSIVE Grounds: 1. If the child died during a state of insanity 2. If the child died during a state of minority Note the places of birth and residence of the father If the relatives of the child are the ones filing the case 2

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father is outside the Philippines Grounds / Proof presented Art. 1. Physical impossibility to have sexual intercourse within the 1st 120 days of the 300 days w/c immediately preceded the birth of the child because of: a. Physical incapacity of the husband to have sexual intercourse with the wife b. Living separately husband, which absolutely prevented intercourse
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Art. 172: Primar proof of filiation: 1. Birth certificate47 2. Public or private document e.g. Public document: y ante-nuptial agreement with a provision acknowledging the child y notarial will of the father acknowledging the child as his own Private document should be: y y handwritten signed by the parent concerned e.g. SSS Secondar proof of filiation: 1. Baptismal certificate 2. DNA exam lower

c. Serious illness of the

2. Biological or scientific reasons (Art. 1 4) 3. Artificial insemination without written consent, or obtained through MVIUF before the birth of the child, attached to the birth certificate of the child, registrar where the child is born 1 ) filed in the local civil

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X: If the spouses have access to each other.

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Even if the husband has chronic tuberculosis, such sickness could not be us ed as a ground to impugn legitimacy of the child. (Antal case) X: If the body is paralyzed.

Effect of written consent was given after the birth of the child: Remedy adopt the child 3

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(Art.

courts are encouraged to accept results of DNA exams48 IF through saliva, scraped skin, hair with roots 3. Pictures if several and a very important occasion in the childs life

Rights of the Legitimate and Illegitimate Child

Law Allowing the Illegitimate Child to Use the Fathers Surname y Retroactive application allowed for as long as the father is still alive so as not to impair vested rights of the child.

LEGITIMATED CHILDREN 2 Kinds of Illegitimate Children in the 1950 Civil Code

1. Spurious Child - parents had legal impediment to marry each other 2. Natural Child parents had no legal impediment to marry each other Now Onl One Kind of Illegitimate Child

Steps: 1. Parent should execute an affidavit that at the time the child was conceived AND born, they were not married, but later on, they got married attached to the birth certificate

GR: If unsigned by the putative father, cannot be accepted as a proof of filiation. (Roces case) X: Even if the birth certificate birth certificate is unsigned, it can still be used as proof of filiation where it was proven that the biological father was the one who gave all of the details in the birth certificate. (Ilano case) 48 Hospitals allow if (Makati Med, NBI, St Luke s): Written consent on the part of both parents Conducted simultaneously 4

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a. Only a natural child by legal fiction can be legitimated by subsequent marriage. Q: When the child was conceived, there was a legal impediment, but such impediment disappeared at the time of birth. Can the child be legitimated? A: y Option 1: No. The Family Law is clear and should be strictly construed. The child can only be legitimated if no legal impediment exists at birth AND conception. y Option 2: J. Vitug: Can be legitimated if the impediment disappeared at the time of birth. (Art. 177) The legitimation of the child can be impugned within a 5yr prescriptive period. 2. No new birth certificate will be issued. An annotation will simply be made to the old birth certificate.

Adoption
ADOPTION

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A child should first be declared as LEGALLY AVAILABLE FOR ADOPTION / a LEGALLY FREE CHILD. Judicially incorporate in the prayer Extra-judicially e.g. DSWD Adoption is strictl personal to the adopting parent and the adoptee After the adoption, a new birth certificate is issued. y y There should be no trace that the child was adopted Generally: It retroacts to the birth of the child. o Exception: if it would involve obligations/responsibilities incurred by the child prior to the granting of the adoption, because at that time the biological parents were still the ones actually exercising parental authority over the child. (Tamargo case) Who has the capacit to adapt? y Alien can now adopt under the New Domestic Adoption Act and Inter -country Adoption rule. (whereas, an alien cannot adopt as a general rule in the Family Code) 1. Same qualifications as Filipino citizens a. Age gap between the adopter and the adopted child: 1 yrs (previously 15 yrs)  so.  Family name of the biological mother could be adopted as the middle name because the childs maternal lineage is traced through the childrens middle name. The family name of the adopted child was the adopters (a single lady) family name. (In re: Stephanie Astorga) 2. 3yr residency requirement o Exception: 1. Former Filipino citizen& adoptee is a relative by consanguinity / affinity within the 4th civil degree A MINOR child whether legitimate, illegitimate or adopted, could acquire the citizenship of his parents, who reacquired Filipino nationality by virtue of DERIVATIVE CITIZENSHIP in the DUAL CITIZENSHIP ACT. X: If the adopter is the biological parent of the adoptee

b. A single person could adopt for as long as he has financial capacity to do

Citizenship, however, is a political right, and the child does not automatically acquire the citizenship of his parents. He has to be NATURALIZED.

2. Adoptee is a child of the adopter. 3. Adoptee is the child of his spouse who is a Filipino citizen 3. Diplomatic relationship between the Philippines and the aliens country. Who should give consent to the adopt ion? y Legitimate and illegitimate children of the adopter if they are 10yrs old and above o Reason: inheritance

Who can be adopted? 1. Minors y X: If the adopter is the biological requirement of the adoptee 2. A child declared as LEGALLY AVAILABLE FOR ADOPTION / a LEGALLY FREE CHILD. y y Judicially incorporate in the prayer Extra-judicially e.g. DSWD

Does the adopting parent have a right to revoke the adoption? y NO. (Not anymore) o REMEDY: Disinherit the child EXPRESSLY in the last will and testament. y Only the adoptee could revoke the adoption

Foreigners in an alien country - Inter-country adoption o Petition could be filed abroad through an inter -country adoption board, in cooperation with the Philippine embassy

Filipinos / Aliens in the Philippines New Domestic Adoption Act

Applicable Law

Parental Authority
y y person

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authority of a parent over the:

properties of the child e.g. if the child becomes an instituted heir

1. Special parental authority exercised by the school, administrator, teacher (cf: 2180 NCC vicarious liability) y The school has no more liability (only its head will be liable ) o o y NCC: Arts & Trade SC: All educational institutions

The child should be a minor (under the Family Code, but no such requirement in 2180) o 2180 requires that the damages should be caused by pupils / students/ apprentices in the custody of teachers / heads of arts & trades establishment

Liability o o Solidary with the parents of the child Principal  The parents are only subsidiarily liable.

2. Substitute parental authority49 grandmother, grandfather, older sibling, guardian

A: Only the parental and special parental authority (the latter is merely temporary) y Parental and substitute parental authority could NOT exist together. 1. If both parents are absent 2. If a parent is absent but there are compelling reasons when the child could not be given to his/her custody (Tonog case) 1. Neglect 2. Abandonment 3. Unemployment 4. Immorality 5. Habitual Drunkenness . Drug addiction 7. Maltreatment of the child 8. Insanity 9. Affliction of a communicable disease

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Cf: Parental Preference Rule 1

Which can co-exist together?

Kinds of Parental Authorit

Definition Parental Authorit

a. NCC 1. Marriage 2. Age of majority b. Family Code

1. Reaching the age of majority = Emancipation i. RA 6 09: If a child 18-21yrs old but still living with the parents, the parents can still be held liable for the childs acts. But if the child is already over 21, but still living wi th the parents, the parent has no more responsibility over the acts of the child. Cf: ii. Famil Code Art 221 parents & other persons exercising parental authority are civilly liable for torts of UNEMANCIPATED children: 1. Living in their company 2. Subject to appropriate defenses (due diligence of a good father or a family)

Maternal Preference Rule, Tender Age Presumption & Parental Preference Rule 1. Maternal Preference Rule If the child is below 7yrs old, custody is automatically awarded to the mother y From: pains of the mother during pregnancy o o Mater mother Office responsibility

2. Tender Age PresumptionThe child can be properly raised by the mother if the child is of tender years. 3. Parental Preference Rule 50 Parents have preferential right over custody of the child (versus grandparents, or any other person)

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Cf: Substitute Parental Authority 2

Termination of Parental Authorit

Clerical Error Act cf: R. 108 (ROC)

Correction of: 1. first name (but not surname) a. Humiliating name b. 2. nickname 3. clerical error

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Go to the local civil registrar where the birth certificate is registered. Cagandahan & Silverio cases change of name sought in the cases are substantial