A. Civil Code: Saint Louis University-College of Law Civil-Persons & Family Relations Reviewer

SAINT LOUIS UNIVERSITY- COLLEGE OF LAW Civil-persons & family relations reviewer
A. CIVIL CODE
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C. D. I. INTRODUCTION Derecho abstract science of law, it is the given, considered as an effect Ley specific law Human Positive Law reasonable rule of action, expressly or directly promulgated by competent human authority for the common good, and usually, but not necessarily, imposing a sanction in the case of disobedience Classification of Human Positive Laws According to whether a right is given 1. Substantive Law establishes rights 2. Remedial Law prescribes a manner of enforcing legal rights and claims According to scope or content of the law 1. private law regulates relationship of the members of the community with one another 2. public law governs relations of the individual with the State According to force or effect 1. Mandatory/Absolute those which have to be complied with 2. Permissive or suppletory laws those which may be deviated from Civil Law, defined. It is the branch of law that generally treats of the personal and family elations of an individual, his property and successional rights and the effects of his obligations and contracts. Effectivity of the Civil Code: (Lara v Del Rosario, 94 Phil. 778): August 30, 1950 or one year after the publication in the Official Gazette.
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II. EFFECT AND APPLICATIONS OF LAW A. Effectivity of Laws: Ordinary law 1. on the date expressly provided to take effect 2. after 15 days following the completion of publication in the Official Gazette or any newspaper of general circulation (Taada v Tuvera). It should be published in full otherwise the law would be void. Rule on publication is necessary if it is a law of general circulation, a law that is general or punitive or Except: laws that are internal in character or those issued within a department. The 15 days may not be shortened especially if the law is punitive in character. (Phil. International Trading Corp v Angeles, 21 October 1996) The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. (Phil. Veterans Bank Employees Union v Hon. Vega, 28 June 2001) While as a rule, laws take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in a newspaper of general circulation in the Philippines, the legislature has the authority to provide for exceptions, as indicated in the clause unless otherwise provided. The unless otherwise provided does not mean that the requirement of publication can be done away it only means that the effectivity after 15 days of a law may be lengthened. B. Ignorantia Legis Non Excusat Ignorance of the law excuses no one GR: It applies to all kinds of domestic laws whether civil or penal and whether substantive or remedial and only to mandatory or prohibitive laws Exceptions: 1. not to permissive or suppletory laws 2. not to foreign laws since there is no judicial notice of foreign laws 3. cannot be availed of by a judge Processual Presumption if a foreign law has not been properly alleged and proved, the presumption is that it is the same as our law Case of Yao Kee there was no solemnizing officer of the marriage made in China but no proof was presented in the Philippine Courts as to this custom and so it was presumed that rules in China was the same in the Philippines and the Court ruled that there was no marriage celebrated.
ALL RIGHTS RESERVED. SCHOOL YEAR 2008-2009 Kaye, Digs, yas, jing, Mae, grace, Lea, Les
Upon publication of the law there arises the Conclusive presumption that Ignorantia legis non excusat. It is not a valid defense for breach of law.
C. Lex, prospicit, Non Respicit GR: The law should be prospectively applied and not retrospectively Exception: (instances when the law can be retrospectively applied) 1. expressly provided in the law itself except if it impairs vested rights 2.the law is curative or remedial in character, even if without any express provision as long as vested rights are not impaired nor final judgments disturbed. 3.laws created with a time period provided 4.when the law creates substantive law for the first time. This is possible even if without any express provision. (Aruego Jr. v. Court of Appeals)- the Court ruled that an action for recognition filed while the Civil Code was in effect should not be affected by the subsequent enactment of the Family Code, because the right had already vested. (Bernabe v Alejo)-- illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are thus given the right to seek recognition (under Article 285 of the Civil Code) for a period of up to four years from attaining majority age. This vested right was not impaired or taken away by the passage of the Family Code. D. Mandatory/prohibitory Laws GR: violation of mandatory or prohibitory laws result in void contracts Exceptions: when violation of the law does not result to void contracts (1) when the makes the act not void but merely voidable (2) when the law makes the act valid but subject the wrongdoer to criminal responsibility (3) when the law makes the act itself void, but recognizes some legal effects flowing therefrom (4) when the law itself makers certain acts valid although generally they would have been void E. Waiver of Rights Art. III of the Constitution. Certain right may be waived except rights provided in
Requirements for a valid waiver: 1. the person waiving the right must be in actual possession of such right 2. the person waiving the right must have legal capacity 3. it should not be contrary to law, public policy, morals and good customs 4. and it should not prejudice third persons a. (Guy v CA): the waiver of the rights by the mother in behalf of her children with respect to inheritance was a void waiver because the children did not have legal capacity to waive the interest over the property and because the children were not proven to have actual possession of such right b. (People v Morial): The right of appellant to counsel was therefore completely negated by the precipitate departure of Atty. Tobias before the termination of the custodial investigation
F. Judicial Application and Interpretation of Laws Judicial Decisions of the Supreme Court form part of the law of the land (Art. 8, NCC) The full legal term is "stare decisis et quieta non movere" meaning "stand by decisions and do not move that which is still". Ratio Decidendi - is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. As a general rule, binding on courts of lower jurisdiction--through the doctrine of stare decisis. obiter dicta-- opinions not necessary to the determination of the case. They are not binding and cannot have judicial precedents. (Pesca v Pesca) It is in Santos when, for the first time, the Court has given life to the term, Psychological Incapacity. Molina, that followed, has
additionally provided procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. Molina has strengthened, not overturned, Santos. G. Rules on Application and Interpretation of Laws No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws (Art. 9, NCC) Dura Lex Sed Lex the law may be harsh but it is still the law a trial judge has no leeway to interpret unambiguous law nor refuse to promulgate the judgment based on law for his personal religious beliefs (Pp. v Veneracion) if the law is ambiguous use stare decisis or legal precedence by the Supreme Court only and in rare cases the Court of Appeals If there are no stare decisis the trial judge may refer to decisions of foreign courts or opinions of learned jurists. Other judicial aids: (1) legislative intent which is to presumed to be the interpretation that intended for right and justice to prevail (Art.10, NCC) (2) customs Cessante ratione legis, cessat ipsa lex," which loosely translated means "a law lacking rationality, ceases to be law." Interpret not by the letter that killeth but by the spirit that giveth life Cesario Ursua v CA --The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. Computation of Periods: CIR v. P rimetown Year = 365 days Month = count the days in the month Days = 24 hours Night = sunset to sunrise In computing the first day shall be excluded and the last included H. Applicability of Customs, Customs-- rule of human action establish by repeated acts, and uniformly observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding. Requirements: (1) alleged and written as an ordinary fact (2) not against public order, public policy, morals or law (3) there must be a juridical intention to make a rule of social conduct] (4) there must be sufficient lapse of time (5) proven by i. plurality number of persons observing the same custom ii. uniformity recognize standard as a norm to which they follow Kinds of Custom (1) propter legem in accordance with law (2) contra legem against the law
I. Ways on How Laws lose their effectivity

1. If the law has a definite period for its effectivity and such period has arrived. 2. ceases to be a law because it has been repealed a. express repeal made specifically in the law b. implied repeal there is inconsistency between a prior and subsequent law As in the case of CIR v Primetown, the Administrative Code of 1987 repealed Article 13 of the NCC Effect if the Repealing Law is itself Repealed a. if repealing law is express the law first repealed shall not be thereby revived b.repealing law is implied repeal of the repealing law revives the prior law, unless otherwise provided
3. declared unconstitutional or invalid. This judicial power of the Supreme Court is not an act asserting the supremacy of the Supreme Court but the supremacy of the Constitution. J. Binding Effects of Laws (Article 14) Generality Theory: laws and rules shall be obligatory upon all who live or sojourn in Philippine territory Territoriality Theory: any offense committed within our territory offends the state Except: (1) Principles of International Law (2) treaty stipulations
The fiction of ex-territoriality is in fact founded on a metaphor. A man in a foreign country or a ship in foreign waters is conceived as still within the limits of the original sovereignty to which he belonged.
Extra-territoriality like a Philippine embassy in a foreign country is still a territory of the Philippines
K. Theory of Statutes/Conflict of Law Rules Status is the place of an individual in society and consists of personal qualities and relationships, more or less permanent, with which the state and community are concerned. Capacity is merely a part of status and may be defined as the total of his rights and obligations. The Nationality Principle (Art. 15) laws relating to the family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad. Lex Rei Sitae (Art. 16) the particular place or situs of an event or transaction shall govern the rights and obligations of the parties EXCEPT those having to do with succession i.e. successional rights, order of succession, amount of successional rights and intrinsic validity of a will, which will be governed by the law of their nationality wherever the property may be found. Lex loci Celebrationis (Art. 17) the law of the country where the contract, will and other public instruments shall govern their forms and solemnities. If performed before the Philippine consulate or diplomatic offices abroad as if performed in the Philippines. Prohibitive laws governing Filipinos shall not be rendered valid by laws or judgments promulgated or by determinations or conventions agreed upon in a foreign country. Summary of Conflict of law rules: (1) Contacts, wills or marriages as to form and solemnities or extrinsic validity shall be governed by LEX LOCI CELEBRATIONIS. So long as valid in the place where it is celebrated then it is also valid from the Point of view of the Philippines. (2) Intrinsic Validity of the contracts shall be governed by LEX VOLUNTATIS or the law which the party intended to govern them. In case there is controversy, the law of the court which took first cognizance shall be applied. (3) As to wills intrinsic validity shall be determined by the national law of the testator and not by their heirs (4) As to the intrinsic validity of marriages including essential requisites it shall be governed by the law of the nationality of the parties. So that if a marriage was celebrated abroad but violates Art 35 or 36 of the Family Code it shall be VOID even if valid where celebrated.
L. Suppletory Application of the Civil Code of the Philippines; The NCC shall supply any
deficiency of the Code of Commerce and any special law.
III. HUMAN RELATIONS A. Human Rights 1. Definitions: a. Right legally enforceable claim
b. c. Injury-- the legal wrong to be redressed d.
Obligation a legal and/or moral duty
Damage-- the amount of money awarded by the court to compensate for the loss or injury suffered.
Purpose: It is awarded to compensate the plaintiff for the loss or damage that he suffered, not to enrich him, or to impose a penalty on the wrongdoer. Kinds: (MANTLE) a. moral damages b. actual or compensatory damages c. nominal damages d. temperate damages e. liquidated damages f. exemplary damages 2. Fundamental Human Rights. a. right to life b. right to liberty c. right to property 3. Characteristics/ Attributes of Human Rights a. inalienable it cannot be passed by the State or through certain contract. b.Inherent innate to human existence. c. Indivisible B. Standards/ Norms of Human Rights Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, 1. act with justice, 2. give everyone his due, and 3. observe honesty and good faith.
Elements of the Principle of Abuse of Rights:
there is a Legal right. 2. Exercise of such right in bad faith. 3. Intent to prejudice others Requirements for Actionable Wrong: a. there is an injury, loss or damage suffered by a person b. such injury, loss or damage is the proximate cause of anothers act or omission. c. such injury, loss or damage requires compensation or reparation. Damnum absque injuria (there is damage but no legal injury) o GR: The legitimate exercise of a persons right even if it causes loss to another, does not automatically result in an actionable injury. o Exception: 1. abuse of persons rights 2. exercise of this right is suspended or extinguished pursuant to a court order C. Liability Ex-Maleficio or Ex-Delicto: (Art. 20 in rel. to Art. 100 of the Revised Penal Code) Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. --This article punishes illegal acts whether done willfully or negligently.
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Civil liability for delict: Every person who, contrary to law, willfully (dolo) or negligently (culpa) causes damage to another, shall indemnify the latter for the same. ART. 100 RPC: Every person criminally liable for a felony is also civilly liable.
Civil liability for quasi-delict: Also, whoever by act or omission causes damage to another, there being fault or negligence, but no pre-existing contractual relation between the parties, is obliged to pay for the damage done (Art. 2176). D. Acts Contrary to Morals, Good Customs or Public Policy (Contra bonus mores) Art. 21. Any person who willfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. o Coverage: Any act or omission not contrary to law but contrary to morals, good customs and public policy.
o Misconduct: Implies a wrongful intention and not merely error in judgment. o Breach of promise to marry
General rule: Not an actionable wrong Exception: 1. When there has been sexual intercourse: a. The aggrieved party may ask the other to RECOGNIZE THE CHILD, should there be one, and PROVIDE SUPPORT to said child. b. Sue for MORAL DAMAGES, if there be criminal or moral seduction, but not if the intercourse was due to mutual lust; if the cause be the promise to marry, and the effect be the carnal knowledge, there is criminal or moral seduction. c. Sue for ACTUAL DAMAGES, should there be any, such as the expenses for the wedding preparations. 2. When there was no sexual intercourse: a. Sue for MORAL DAMAGES in case there has been a deliberate desire to inflict loss or injury or there has been an evident abuse of right. b. Sue for ACTUAL DAMAGES, should there be any, such as the expenses for the wedding preparations. QUALIFIED SEDUCTION a. there is a moral ascendancy b. the victim is virgin SIMPLE SEDUCTION a. no moral ascendancy b. the victim is no longer virgin but has a high reputation.
(Gashem Shookat Baksh v. CA, 219 S 115) X, single, and a pretty lass of good moral character and reputation met Y, an Iranian citizen in 1987. Y courted X and thereafter he proposed to marry the latter. X was a virgin before she began living with him. Nonetheless, Y started to maltreat and threatened to kill her, as a result she suffered injuries. She also found out that Y was already married to someone living in Bacolod City. Is the breach of promise to marry an actionable wrong? ANS: YES. As a general rule, breach of promise to marry per se is not an actionable wrong. However, the Supreme Court held that where a mans promise to marry is in fact the proximate cause of the acceptance of his love for a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in sexual congress, proof that in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and obtain her consent to the sexual act could justify the award of damages pursuant to Article 21 of the Civil Code, not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. Article 21 The act is contrary to morals, good customs or public policy The act is done willfully
Article 20 The act is contrary to law The act is done either willfully or negligently
E. Unjust Enrichment Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Art. 23. Even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.
Requisites of accion in rem verso:

1. 2. One party must be enriched. The other party suffered loss.
3. There must be a causal relation between the parties. 4. The enrichment must not be justifiable; otherwise, there can be no recovery. 5. There must be no other way to recover such as those based on contract, quasicontract or quasi-delict. 6. The indemnity cannot exceed the loss or enrichment, whichever is less.
Solution Indebiti -- the juridical relation which arises whenever a person unduly delivers a thing through mistake to another who has no right to demand it. (Article 2154, NCC)
Requisites of Solutio Indebiti:

1. 2. 3. There must be payment or delivery made by one person to another; The person who made the payment or delivery was under no obligation to do so; The payment or delivery was made by reason of a mistake. SOLUTIO INDEBITI a. there is payment by mistake o ACCION IN REM VERSO a. no mistake in payment
The incapacity of the defendant to enter into contracts does not bar the accion in rem verso, so long as he has been unjustly enriched.
The indemnity does not include unrealized profits because defendants enrichment is the limit of his liability. Remedy: Restitution -- to return the thing acquired by mistake or without legal ground to possess.
F. Unfair Competition In contractual relations: Art. 24. In all contractual, property or other relations, when
one the parties as at a disadvantage on account of his moral dependencies, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.
o Protection of the underdog -- applicable in case of DOUBT as to the interpretation of law governing the conflict between parties where one is at the disadvantage. o Parens patriae. It literally means father or parent of his country; it is the
sovereign power of the state in safeguarding the rights of person under disability; it is the obligation to minimize the risk to those who, because of their disability, are as yet unable to take care of themselves, in case where the law is to be applied strictly. In Industrial, Agricultural and Commercial Enterprises including Labor (Prohibited Competition) Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to right of action by the person who thereby suffers damages. o Characteristics: it must involve an injury to a competitor or trade rival, and it must involve acts which are characterized as contrary to good conscience or unlawful. o Cutthroat competition: when a person starts an opposing place of business, not for the sake of profit to himself, but regardless of loss, and for the sole purpose of driving his competitor out of business so that later on, he can take advantage of the effects of his malevolent purpose. G. Thoughtless Extravagance Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Remedy: Injunction Filed by: Charitable Institution (either government or private)
H. Respect for Personality and Dignity of Others
Art 26. Every person shall respect the personal dignity, personality, privacy, peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and relief: 1.Prying into the privacy of anothers residence. 2.Meddling with or disturbing the private life or family relations of another. 3.Intriguing to cause another to be alienated from his friends. 4.Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. 5.Other similar acts. Remedies: a. damages b. prevention c. other relief
Right to Privacy-- The right to be left alone or the right to be free from unwarranted publicity, or disclosure and the right to live without unwarranted interference by the public in matters which the public is not necessarily concerned. o Constitutional Basis Sec 3 Article III of the Constitution. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Sec 2 Article III of the Constitution. The right of the people to be secure in their persons, houses and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable o Spheres of Privacy: a. person b. home/dwelling/residence c. papers and effects d. correspondence e. bank deposits o Limited whenever the circumstances show a reasonable interest on the part of the public in the conduct or affairs of persons who have become public characters and by the privilege similar to that of fair comment in the law of defamation.. Elements of alienation of affection between spouses: 1. Wrongful conduct of the defendant. 2. Loss of affection or consortium. 3. Causal connection between such conduct and loss. A stranger would be liable irrespective of his good motives, if he interferes with family relations, whereas a parent or close relative would not be liable unless there is malice proven by the plaintiff. A distant relative could escape liability if he proves good faith and honest motives.
(Conception v. CA, 31 January 2000) Petitioners position that the act imputed to him does not constitute any if those enumerated in Articles 26 and 2291. In this respect, the law is clear, the violations mentioned in the codal provisions are not exclusive but are merely examples and do not preclude other similar or analogous acts. Damages therefore are allowable to actions against a persons dignity, such as profane, insulting, humiliating, scandalous and abusive language. Hence moral damages may likewise be prayed for. I. Neglect or Refusal of Public Servant
Art. 27. Any person suffering material or moral loss because a public servant or employee refuse or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.
Non-feasance-- The omission of an act which a person ought to do. Requisites: 1. The defendant is a public official charged with the performance of official duties. 2. There is a violation of an official duty in favor of an individual. 3. There is willfulness or negligence in the violation of such official duty.
4. There is injury to the individual. o Defenses for non-performance 1. impossibility of performance; 2. contributory negligence of the plaintiff; 3. Ministerial officer with no discretion where the law places on him the imperative duty of obeying the order of a superior. Good faith or absence of malice is not a defense for non-performance. Misfeasance-- The improper doing of an act which a person might lawfully do. Malfeasance--The doing of an act which a person ought not to do at all. (Amonoy v. Spouses Gutierrez, 15 February 2001) Is the act of a sheriff in demolishing the house of the Gutierrez spouses constitute a ground for prayer of damages while a TRO has been issued and when an appeal is pending before the Supreme Court? ANS. Yes. Although the acts of petitioner may have been legally justified at the outset, their continuation after the issuance of TRO amounted to an insidious abuse of his rights. Indubitably, his action was tainted with bad faith. Had he not insisted on completing the demolition, respondent would not have suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an abuse of right but an invalid exercise of a right that had been suspended when he received the TRO from the court. By then, he was no longer entitled to proceed with the demolition. J. Action for Damages based on Crime or Delict Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in the case the complaint should be found malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Dependent Civil Action--The civil action is impliedly instituted in the criminal action once it was filed. Under Article 100 of the Revised Penal Code, a person criminally liable is also civilly liable. Parameters Parties involved Rules involved Quantum of evidence Purpose Criminal Aspect State v. defendant Criminal procedure/penal code Proof beyond reasonable doubt For punishment of the offender Civil Aspect Offended party v. defendant Civil procedure/civil code Preponderance of evidence For reparation of damages
Civil action not barred by acquittal: Art. 29:

o When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. o Evidence required - preponderance of evidence o Reason: The difference in the proceedings between the criminal and civil action.
Instances when civil action is barred by acquittal: 1. whenever the accused has been found to be not the author of an act, or 2. that that supposed act attributed to the accused did not exist
Also, a separate civil action may be brought to demand civil liability arising from a criminal offense even if no criminal proceeding is instituted (Art. 30). Furthermore, a civil action may also be brought even if no independent civil action and criminal action have been instituted (Art. 35). Rule 111, Section 1, 2000 Rules of Criminal Procedure: When the criminal action is instituted, the civil action for the recovery of civil liability arising from the offense
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charged shall be deemed instituted unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. Suspension of Separate Civil Action: Rule 111, Section 2, 2000 Rules of Criminal Procedure After the criminal action has been commenced, the separate civil action arising there from cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever state it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action During the pendency of the criminal action, the running period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. Effect of Acquittal a. If based on reasonable doubt (innocence), the civil liability is extinguished b. If due to justifying circumstances, civil liability is extinguished. Except: Avoidance of greater evil, in which case, civil liability remains. c. If due to exempting circumstances, civil liability remains. (Guaring v. CA, 269 S 283) It is now settled that acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi-delict. It is held that the civil case for damages was not barred since the cause of action brought about by the heirs was based on quasi-delict. (Manantan V. CA, 29 January 2001)The acquittal was based on reasonable doubt on the guilt of the accused. Article 29 of the Civil Code affirms that civil liability is not extinguished in criminal cases; hence, the accused is not exempted form civil liability which may be proved by preponderance of evidence only. K. Independent Civil actions Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. Other sources of obligation other than crime: 1. law 2. contract 3. quasi-contract 4. quasi-delict Independent Civil Action -- one that is brought distinctly and separately from a criminal case allowed for considerations of public policy because the proof needed for civil cases is less than that required for criminal cases. o Evidence Required: Preponderance of Evidence.
o Instances when the law grants independent civil action:

1. Art. 32 (breach of constitutional and other rights) 2. Art. 33 (in their generic sense: defamation; fraud; physical injuries) 3. Art. 34 (refusal or failure of a city/municipal police to give protection) 4. Art. 2177 (culpa-aquiliana) (Bonite v. Zosa, 162 S 173) X, a caminero was hit by a truck driven by Y. As a result, X died on that same day. A criminal complaint for Homicide through Reckless Imprudence was filed against Y. Prosecution actively participated in the criminal case. After trial, Y was acquitted for failure to prove his guilt beyond reasonable doubt. Can the heirs of X file an independent civil action for damages even if they failed to make reservation to file a separate civil action and actively participated in the prosecution in the criminal case? ANS. Yes. When the accused in a criminal case is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may still be instituted against him, and only preponderance of evidence is required to hold the accused liable. The civil liability is not extinguished by acquittal of the accused, where the acquittal is based on reasonable doubt. Their action can be founded on other sources of obligation such as quasi-delict.
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(Pp. v. Bayotas, 236 S 239) RB was charged with rape and eventually convicted. Pending appeal of his conviction, he died due to cardio respiratory arrest. As a consequence, the Court dismissed the criminal aspect of the appeal. As a general rule, death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. The claim for civil liability survives notwithstanding the death of the accused, if the same may be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission, to cite: law, contracts, quasi-contracts, quasi-delicts. Where the civil liability survives, as explained above, an action for recovery therefore may be pursued but only by way of filing a separate civil action. This separate civil action may be enforced either against the executor or administrator or the estate of the accused, depending on the source of obligation upon which the same is based. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with the provisions of Article 1155 of the Civil Code that should thereby avoid any apprehension on a possible deprivation of the right by prescription. Civil Liability for Violation of Constitutional Rights (Art. 32) -- requires a preponderance of evidence and the aggrieved party may ask for moral and exemplary damages but in the latter case, it depends upon the discretion of the court. Persons Responsible: Public officer or employee or any private individual. When Responsibility Demandable from a Judge:
o
o
Exception: Unless his act or omission constitutes a violation of the Penal Code or other penal laws (see Art. 204 207 of the Revised Penal Code). (Alcuaz v. PSBA, 161 S 7) In 1986, PSBA students staged noisy demonstrations in the premises of the school. The school took administrative sanctions upon them in view of their participation in the commission of the said tumultuous and anarchic acts. The sanctions vary form blacklisting, denial for enrollment, non-renewal of the semester to semester contract, dismissal and termination on the part of both teachers and students. Has there been deprivation of constitutional rights of expression and assembly and of due process of the students who have been barred from reenrollment? ANS. NO. The Court held that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in the courts of justice. This is so provided in paragraph 137 Manual of Regulations for Private Schools which the school and its students enter into as a contractthe student is deemed to submit himself to the rules and regulations and policies of the school. The court upheld that there is no denial of due process where all requirements of administrative due process were met by the school and the students were given the opportunity to be heard; and that the constitutional rights of expression and assembly are not absolute especially when parties are bound to certain rules, regulations and policies under a contract. (Non v. Dames, 185 S 523)Petitioner students of private school Mabini Colleges urged the Court to review and reverse the doctrine, to the effect that a college student, once admitted by the school, is considered enrolled only for one semester and, hence may be refused readmission after the semester is over, as the contract between the student and the school is terminated. Petitioners were not allowed to reenroll by the school administrators for the academic year 1988-1989 for leading or participating in student mass actions against the school form the preceding year. Is the contention of the students tenable? ANS. Yes. A school cannot refuse to enroll a student on a simple ground that his contract expires every end of a semester. The contract between the school and the student is not an ordinary contract. It is imbued with public interest, considering the high priority given by the constitution to education and grant to the State of supervisory and regulatory powers over all educational institutions. Civil Liability for Defamation, Fraud, Physical Injuries (In generic sense) (Art. 33)
General Rule: The responsibility herein set forth is not demandable from a judge.
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Defamation-- Any act, writing or utterance which tend to prejudice or humiliate another. It includes slander and libel. o Fraud Intentional deception to induce another to part with something of value or to surrender a legal right, like, estafa or swindling. o Physical InjuriesIt means bodily injury and not the crime of physical injuries. It includes attempted, frustrated or consummated homicide, murder, parricide and infanticide so long as there was physical injury. o (International Flavors v. Argo, 10 Sept. 2001) Petitioner IFFI is a corporation organized and existing under Philippine laws. A and B, general manager and commercial director, respectively of the fragrance division had serious differences with C, the managing director. In the years 1994 and 1995, A and B filed separate criminal and civil cases for libel and damages, which was consequently dismissed. On appeal, A and B sued petitioner IFFI for damages in an independent civil action based on subsidiary liability. Is the action of A and B in suing Petitioner Corporation correct? ANS. No. Article 33 of the New Civil Code provides specifically that in cases of defamation, a civil action for damages, entirely separate and distinct from the criminal action maybe brought by the injured party. Moreover, it contemplates an action against an employee in his primary civil liability. It does not apply to an action against the employer to enforce its subsidiary civil liability, because such liability arises only after the conviction of the employee in the criminal case when the employee is adjudged guilty of the wrongful act in a criminal action and found to have committed the offense in the discharge of his duties. (Marcia v. CA, 120 S 7) P was charged for Homicide and Serious Physical Injuries thru Reckless Imprudence when the bus he was driving collided with a jeep driven by C. The latter died while passengers E and R suffered injuries. P was convicted for the offense charged. While the case was on appeal, E and R filed to the RTC of Pampanga an action for damages against P. When the appellate court acquitted P on the ground that the incident was pure accident, such decision was forwarded to the RTC of Pampanga and consequently dismissed the civil action. Aggrieved E and R appealed such ruling alleging that the civil action is entirely separate and distinct from the criminal prosecution. Is the contention of E and R correct? ANS. No. The Court ruled that since the injuries suffered by the petitioners were not inflicted with malice and was a result of pure accident, the accused is not subjected to civil liability. The acquittal of P in the criminal action on the ground that the reckless imprudence or criminal negligence charged against him did not exist and that the collision was a cause of pure accident was a bar to the civil action for damages for the death of C. Civil Liability of Member of Municipal or City Police (Art. 34) o Primarily liable: The member of a city or municipal police force who refuses or fails to render aid or protection to any person in case of danger to life or property. o Subsidiarily liable: The city or municipal government shall be subsidiarily responsible in case of insolvency of said police officer. o The defense of exercise of due diligence in the selection and supervision of its employees, as provided under Art. 2180, cannot be used as this is available only to private employers. Quasi-Delict-- civil wrong, not a crime, because it is not caused by an intentional or malicious act, but by mere fault or negligence. There is no pre-existing contractual relation between the parties in such fault or negligence. It is independent of contract because if the said act or omission is in violation of s contract, then, it would be a breach of contract. Related provisions: Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. o Defenses that can be interposed in quasi-delict:
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a. Doctrine of Last Clear Chance: where both parties are negligent but the
negligent of one succeeds that of the other by an appreciable interval of time, the one who has the last reasonable opportunity to avoid the impending harm and fails to do so, is chargeable with the consequences, without reference to the prior negligence of the other b. Contributory Negligence: the defendant may claim that plaintiffs own negligence contributed to the injury. This defense will merely mitigate the award of damages. c. Proximate Cause of the Loss or Injury is the Negligence of Plaintiff. d. Defense of Due Diligence in the Selection and Supervision of Employees: only applicable in culpa aquiliana. e. Assumption of Risk: It will absolve the defendant from liability. Requisites: a. there must be knowledge as to the existence of the danger b. there must be an understanding and appreciation of the risk of such danger by the plaintiff. c. the plaintiff voluntarily expose himself to such danger. f. Prescription: If the action is filed beyond four years from loss or injury. o Res Ipsa Loquitor: (The thing speaks for itself)-- A Rule of Evidence. The fact of the injury is prima facie evidence of negligence. It can not be used with contributory negligence. Requisites: 1. the accident is one of a kind which does not ordinarily occur unless someone is negligent, 2. that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence, 3. That the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. o (Jose v. CA 18 January 2000) MCL Bus driven by J collided with a Ford Escort driven by M. As a result M died and R, a passenger was seriously injured and became blind on the left eye. A and the heirs of M filed their distinct suit for damages. On the other hand MCL filed a third party complaint against X, owner of the Ford Escort alleging that J was negligent and that he was the authorized driver of X. The suits for damages were dismissed while the third party complaint was granted. a. Does MCL fail to show that it exercised due diligence in the selection and supervision of its driver M? b. Is X liable to MCL and J? ANS.
a. No. It is an established principle that the negligence of the employee

gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and supervision of the employee. Article 2180 of the New Civil Code provides that the responsibility therein mentioned shall cease if the employers prove that they observe all the diligence of a good father of a family to prevent damages. Therefore, before the presumption of the employers negligence in the selection and supervision of its employees can arise, the negligence of the employee must first be established. While the allegations of negligence against the employee and that of the employer-employee relation in the complaint are enough to make out a case of quasi-delict under 2180 of the New Civil Code, the failure to prove the employees negligence during the trial is fatal to prove the employers vicarious liability. In this case, respondents failed to prove their allegation of negligence against J. b. No. Nowhere in the allegation that M was the son, ward, employee or pupil of X so as to make the latter vicariously liable for the negligence of John. The allegation that M was the authorized driver is not equivalent to the allegation that he was an employee of X. being an authorized driver simply means that M drove the car with the permission of X. Nor did MCL prevent any evidence to prove that X was the employer of M or that she is in any way liable for Ms negligence under 2180 of the Civil Code.
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o (Ramos v. CA, 29 December 1999)ER was scheduled to undergo a cholecystectomy

operation based on the recommendation of Dr. O. Nonetheless, bluish discoloration of the nail bed of the left hand of the patient was noticed after anesthesia was administered to her. After several months, she was rebased but since then she had been in comatose condition. Are the doctors responsible for the comatose condition of ER? ANS. Yes. Res Ipsa Loquitor, a Latin maxim that means, The thing speaks for itself, is applicable in this case. It is the maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. This is a simply recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. Requisites: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence. 2. It is caused by an instrumentality within the exclusive control of the defendant/s; and 3. The possibility of contributory conduct which would make the plaintiff responsible is eliminated. Obviously in the present case, ER sustained an injury which does not normally occur in the process of a gall bladder operation. All instruments used on her were under the complete and exclusive control of the doctors. o Jarco Marketing v. CA, 21 December 1999) Since negligence maybe a felony and a quasi-delict and required discernment as a condition of liability either criminal or civil, a child UNDER 9 years of age is by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one under our law. L. Prejudicial Questions Art 36. Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. Prejudicial question-- One which must be decided before any criminal prosecution may be instituted or may proceed, because a decision therein is vital to the judgment in the criminal case. o It is that which arises in a case, the resolution of which question is logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. o Rule 111, Secs. 6-7 of 2000 Rules of Criminal Procedure Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. Elements 1. The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. 2. The resolution of such issue determines whether or not the criminal action may proceed. o Effect: It will suspend the proceeding in the criminal action. Prejudicial questions shall be governed by the Rules of Court which the Supreme Court shall promulgate and which shall not be in conflict with the Civil Code.
(Beltran v. People, 20 June 2000) H and W were married in 1973. After 24 years of marriage, H filed a petition for nullity of marriage on the ground of psychological incapacity. W subsequently filed a criminal complaint for concubinage against H. the latter filed a
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Motion to Defer Proceedings alleging that the pendency of the civil case for declaration of nullity of marriage posed a prejudicial question to the determination of the criminal case. Is the civil case for the declaration of nullity of a previous marriage constitutes a prejudicial question to a concubinage case? ANS. No. To be considered prejudicial to a criminal action as to cause the suspension of the latter pending the final determination of the civil case, it must appear in the resolution of the issue/s raised in the civil action, the guilt or the innocence of the accused would necessarily be determined. The accused need not present a final judgment declaring his marriage void for he has adduced evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void. Moreover, a subsequent pronouncement that his marriage is void from the beginning is not a defense. (City of Pasig v. COMELEC, 10 September 1999) The City of Pasig issued Ordinance No. 52 was passed creating Barangay Napico. Upon learning thereto, the Municipality of Cainta moved to suspend the plebescite and filed petitions with the COMELEC on the ground that a pending case before the RTC of Antipolo for settlement of boundary dispute involving City of Pasig and Municipality of Cainta. Is the boundary dispute between the Municipality of Cainta and the City of Pasig presents a prejudicial question which must be first decided before plebiscite for the creation of the proposed barangay may be held? ANS. Yes. The boundary dispute between the Municiaplity of Cainta and the City of Pasig is a prejudicial question which must be first decided before plebiscites for the creation of the proposed barangay may be held. First and foremost, any uncertainty in boundaries of local government units will sow costly conflicts in the exercise of governmental powers, which ultimately will prejudice the peoples welfare. Further, where territorial jurisdiction is an issue raised in a pending civil case, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangay would only be an exercise in futility. Finally, while it may be general rule that a prejudicial question contemplates a civil and criminal action and does not come into play where both cases are civil, in the interest of good order, the Supreme Court can very well suspend action on one case pending the final outcome of another case closely interrelated or linked to the first.
IV. PERSONS AND PERSONALITY A. Juridical Capacity vs. Capacity to Act (Art. 37) Juridical capacity is the fitness to be the subject of legal relations, while capacity to act is the power to do acts with legal effect. Juridical capacity (capacidad juridical) Passive Inherent Lost only through death Can exist even without capacity to act Unlimited/cannot be restricted Capacity to act (capacitas de obrar) Active Acquired Lost through death and other means Always exist with juridical capacity Limited/can be restricted by circumstances
Restrictions or Modifications on Capacity to Act (Arts. 38 and 39) Minority Family relations Insanity Alienage Imbecility Absence State of being deaf-mute Insolvency Prodigality Trusteeship Civil interdiction Penalty (Catalan vs. Basa, July 31, 2007) Principle: Although Schizophrenia can result in a dementing illness similar to Alzheimers disease, it does not however necessarily lose his competence to intelligibly dispose of his property, there must be a proof that at the time of the donation the donor must be suffering from total loss of control of his competence to intelligently to dispose of his property. Mere allegations without proof that at the time of the donation the donor no longer possesses such intelligence, no such allegation can stand. The declaration of the trial court of such loss is not the time to reckon such loss but at the time of the donation. (Domingo vs. CA, Oct. 17, 2001) and (Mendezona vs. Ozamiz, Feb. 6, 2002) Principle: The general rule is that a person is not incompetent to contract merely because of advanced years or by reason of physical infirmities. However, when such age or
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infirmities have impaired the mental faculties so as to prevent the person from properly, intelligently, and firmly protecting her property rights then she is undeniably incapacitated. B. Classes of Persons 1. Natural persons human beings created by God through the intervention of the parents. 2. Juridical persons those created by law. C. Personality of Natural Persons Birth (Art. 41) o Determines personality o Kinds of birth: Ordinary birth--- For civil purposes, the fetus with an intra-uterine life of seven months or more is considered born if it is alive at the time it is completely delivered from the mothers womb Extra-ordinary birth-- if the fetus had an intra-uterine life of less than seven (7) months, it is not deemed born if it dies within twenty-four (24) hours after its complete delivery from the maternal womb o Presumptive Personality (Art. 40)--the unborn child is for all intents and purposes favorable to it, is with civil personality commencing from the time of his conception, Provided that it be born later with the conditions specified in Art. 41. (Geluz vs. CA, 2 SCRA 801) Principle: The father of the aborted fetus is not entitled to actual damages for injury to the rights of the aborted fetus of its rights to life and physical integrity because as it is unborn, it is not yet endowed with personality. However, they may be entitled to moral damages for the disappointment of his parental expectations and to exemplary damages, if the circumstances so warrant. Death (Art. 42)--extinguishes civil personality o Effect of death upon the rights and obligations of the deceased is determined by: a. Law b. Contract, and c. Will o (People vs. Bayotas, 236 SCRA 239) X was convicted by the trial court. Pending appeal of conviction X died. What is the effect of the death of X on his criminal and civil liabilities? ANS: Death of the accused extinguished his criminal liability and the civil liability based solely on the act complained of, i.e. rape. Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict, like law, contracts, quasi-contracts or quasi-delicts (Art.1 1157 NCC). Survivorship ( Art. 43) o If there is doubt, as between two or more persons who are called to succeed each other, as to which of them died first, the following rules shall be considered: 1. Whoever alleges the death of one prior to the other shall prove the same; 2. In the absence of proof, it is presumed that they died at the same time. Thus, there shall be no transmission of rights from one to the other. D. Juridical Persons Classification (Art. 44) (a) The state and its political subdivisions; (b) Other corporations, institutions and entities - for public interest or purpose, created by law; - their personality begins as soon as they have been constituted according to law. (c) Corporations, partnerships and associations - for private interest or purpose - to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. Governing law (Art. 45) - (a) and (b) juridical persons are governed by the laws creating or recognizing them.
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- Private corporations regulated by laws of general application on the subject. - Partnerships and associations for private interest are governed by the provisions of the Civil Code on partnerships (Title IX, Art. 1767-1867) Powers (Art. 46 in relation to Art. XII, (2) and (3) 1987 Constitution) a) Acquire and possess properties of all kinds b) Incur obligations, and c) Bring civil or criminal actions d) Private corporations may lease alienable lands of the public domain, in accordance with the requirements set forth under the Constitution o Powers of the State under the Constitution: i) Power of control and supervision over exploration, development and utilization (EDU) of natural resources; ii) Directly undertake EDU or enter into co-production, joint venture, or production sharing agreements; iii) Power to protect the nations marine wealth iv) President may enter into agreements with foreign-owned corporations for large-scale EDU. v) Congress to determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor. V. DOMICILE Domicile more or less permanent a person can have generally only one domicile denotes a fixed permanent residence to which when absent, one has the intention of returning domicile is residence coupled with the intention to remain for an unlimited time Residence more or less temporary a person can have several places of residence Denotes a place of abode residence is not domicile
Definition: a. domicile refers to the legal relation of a person to a place b. Residence refers to the physical relationship of a person to a place Kinds Of Domicile 1. Domicile of origin place of birth 2. Constructive domicile that which is assigned by law to minors, incapacitated persons, married women (under the Civil Code, but not under the Family Code) 3. Domicile of choice Domicile chosen by the person Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. Domicile of juridical persons (Art. 51)-- If the law creating or recognizing them, or any other provision does not fix their domicile, it shall be the place where their legal representation is established or where they exercise their principal functions. (Marcos vs. COMELEC, 248 SCRA 300) Principles: (a) For political purposes residence is used synonymously with domicile which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. (b) An individual does not lose his domicile even if he has lived and maintained residences in different places. The absence from legal residence and domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. (c) Minor follow the domicile of the parents. (d) Domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: a. An actual removal or an actual change of domicile; b. A bona fide intention of abandoning the former place of residence and establishing a new one; and c. Acts which correspond with the purpose.
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B. THE FAMILY CODE

I. INTRODUCTION A. The Family Code of the PhilippinesExecutive Order No. 209 signed by President Corazon Aquino B. Effectivity Date: August 1988 C. Retroactive Application (Aruego, Jr. vs. CA, 254 SCRA 711) and (Bernabe vs. Alejo, Jan. 21, 2002) Facts: An action for compulsory recognition (based on open and continuous possession of the status of an illegitimate child) under the Family Code may be brought during the lifetime of the putative parent. However, under the Civil Code on Persons such may be brought during the lifetime of the presumed parents except when the mother or the father died during the minority of the child, in which case, it may be filed within 4 years from attaining majority age. M filed an action during the advent of the Civil Code, but during pendency the FC took effect. May the FC be given retroactive effect? ANS: NO. The FC cannot be given retroactive effect as its application will prejudice the vested right of the child to have her case decided under the Civil Code. The right was vested to her upon the filing of the action under the Civil Code. II. MARRIAGE
A.
Definition (Art. 1) Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by the Code.
B.
Marriage In relation to Art. XV, Constitution Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the state. Sec. 3. That state shall defend: 1. The right of the spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; 2. The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development; 3. The right if the family to a family living wage and income; and 4. The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. Sec. 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security. D. Nature of the contract of marriage (Estrada vs. Escritor, 408 SCRA 1) Y, a stranger to both H and W filed a complaint against W on the ground that W was cohabiting with H, not her husband, and without the benefit of marriage and that as a Court Interpreter such act tarnishes the image of the Court. W, on the other hand claimed that when she entered the judiciary her husband has already been dead and that she has been cohabiting with H for 20 years under a Declaration of Pledging Faithfulness which is a conjugal agreement recognized as valid by their religious organization, Jehovahs Witness. Can the agreement be recognized as valid compliance with the law? ANS: SC did not rule on the matter yet because there is a question of Ws Constitutional Freedom on the Free Exercise Clause. However, the SC held that the issue should be subjected to the Compelling State Interest Test which provides that the state interest must not merely be any colorable state interest, but it must be paramount and compelling as to override
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the free exercise clause. Thus, it ordered the Solicitor General to intervene and gave the opportunity to: b) Examine the sincerity and centrality of Ws claimed religious belief and practice; c) To present evidence on the States compelling interest to override her religious belief and practice; d) To show that the means the State adopts in pursuing its interest is the least restrictive to Ws religious freedom. (Ancheta vs. Ancheta, March 4, 2004) The 1997 Rules of Procedure provides that no default can be rendered in an action for annulment of marriage or legal separation because marriage is not a mere contract but a social institution in which the state is vitally interested. Thus, if the defendant fails to appear, the court shall order the prosecuting attorney to investigate whether or not there is collusion. If there is none, the State is ordered to intervene to see to it that the evidence presented is not fabricated. (People vs. Borromeo, 133 SCRA 106) H was found guilty of parricide. On appeal, he alleged that he could not be held guilty of parricide because he was not legally married to the victim. However, he clearly testified in open court that they were married. Persons living together in apparent matrimony are presumed to be in fact married. This is the common order of society such that if they were not what they thus hold themselves out as being, they would be living in violation of decency and the law. The law presumes morality, marriage and legitimacy .(Corpus vs. Corpus, 85 SCRA 567) M and W deporting themselves to the public as husband and wife are presumed to be married and s such children born inside such presumed marriage are considered legitimate and that things are considered to have happened according to the ordinary course of nature and the ordinary habits of life. (Rivera vs. IAC, 182 SCRA 322) A person stranger to the deceased cannot intervene in the probate of the will of the latter. In this case, Jose Rivera was not allowed to intervene because he was not found to be a child of the deceased Venancio Rivera and Maria Jocson, as he was in fact the son of another Venancio Rivera who was married to Maria Vital. Besides, in the birth certificate of both Venancio Rivera, it showed that they were born of different parents. Thus, Jose has no relationship whatsoever with the deceased. (Abadilla vs. Tabiliran, 249 SCRA 447) This is an administrative complaint against a judge allegedly on the ground of gross immorality for, among others, cohabiting with a woman not his wife during the subsistence of a prior marriage. Judge alleged that he could not be held liable because when he started cohabiting with GF, his wife had already left the conjugal home (1966) and her whereabouts are unknown. Is the Judge guilty of gross immorality? ANS: YES! A Judges act of cohabiting with a woman not his wife during the existence of his marriage constitutes gross immorality. Records showed that when he started cohabiting with the GF in 1970, the seven years requirement under the Rules of Court and Art. 390 Civil Code, from 1966, on absence has not yet elapsed. Thus, during the four years cohabitation with GF (1966-1970), Judge was still validly married to his wife. E. Presumption in Favor of Existence and Validity of Marriage A man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. This legal presumption may be rebutted by evidence showing that marriage did not actually take place. (Eugenio vs. Velez, 185 SCRA 425) Question: Is a common law husband (also married to another at the time of cohabitation) entitled to the legal custody of the dead body of his common law wife, as against the siblings of the wife? ANS: NO. The common law husband is not entitled because he is not lawfully married to her and neither is he legally capacitated to marry her. Thus, the Siblings are entitled to the legal custody of the body of the deceased. (Garcia vda. De Chua vs. CA, March 5, 1998) Man and woman cohabited without marriage and begot two minor children. Man died intestate. W filed a petition for Guardianship over the properties of the minor and as administrator of the properties of the deceased. Y opposed alleging that she is the legal wife of M and showed a photocopy of their alleged marriage contract. Can such photocopy be admitted as evidence of marriage? ANS: NO. The best proof of marriage is a marriage contract which Y failed to produce. The lower court correctly disregarded the photocopy of the marriage certificate, this being a violation of the best evidence rule, together with other worthless pieces of evidence. Besides,
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the LCR concerned certified that the alleged marriage was not registered and the judge who allegedly solemnized the marriage said in a letter that he has not solemnized said marriage. E. REQUISITES OF A VALID MARRIAGE 1. Essential Requisites: a. Legal Capacity of the contracting parties who must be a male and a female.
Includes: 1. Age any male or female of the age of 18 years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. Be it remembered that formerly, the marriageable age was 14 years for females and 16 years for males. 2. Gender must be a male and a female. 3. No legal impediment
there must be no prior subsisting marriage must not be incestuous (Art. 37) must not be a void marriage by reason of public policy (Art. 38).
When either or both of the contracting parties are CITIZENS OF A FOREIGN COUNTRY, it shall be necessary for them before a marriage license can be obtained, to submit a CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE, issued by their respective diplomatic or consular officials.
STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES shall, in lieu of the certificate of legal capacity herein required, submit an AFFIDAVIT SHOWING SUCH CAPACITY TO CONTRACT. The legal capacity of a foreigner to marry, as determined by the law of the country of which he is a citizen, is recognized by our laws. This is in accordance with the nationality theory under Article 15 of the Civil Code. Under Article 35(1): a marriage contracted by any party below 18 years of age EVEN with the consent of parents or guardians shall be void ab initio.
(Silverio vs. Republic, 22 October 2007)Can a man who underwent sex reassignment surgery in order to posses a female genetalia qualified to marry another man? May his petition for change of name or sex be granted? ANS. No. Marriage is a special contract between a man and a woman. One of its essential requisite is the legal capacity of the contracting parties who must be a MALE and a FEMALE. A persons sex is an essential factor in marriage and family relations. Its a part of a persons legal capacity and civil status. There is no such special law in the Philippines governing sex reassignment and its effects. Likewise, his petition for change of name or sex cannot be granted. To grant the changes in name and sex sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relationsit will allow the union of a man and with another man who has undergone sex reassignment. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. Likewise, his petition is lacks merit because persons first name cannot be changed due to the following: 1. Persons first name cannot be changed on the ground of sex reassignment; and 2. There is no law allowing the change of entry in the birth certificate as to sex on the ground of sex reassignment.
(Weigel vs. Sempio-Dy 143 SCRA 499) E and L were allegedly forced to enter into marital union in 1972. Later on 1973, L and K got married. When K learned about the first marriage of L, he filed an action for nullity of their marriage. Is the first marriage void?
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ANS.: No. The first marriage is merely voidable. The rule is that the marriage vitiated by force or intimidation is voidable, valid until annulled. Therefore, if the first marriage has not yet been annulled, a second marriage contracted by one of the parties to the first marriage is void.
(Atienza vs. Brillantes 243 SCRA 32) Judge B was alleged of cohabiting with Y despite that the former is married to Z with whom he has five children. He denied of having been married to Z for the reason that they were not able to apply for marriage license at that time. Is the contention of Judge B tenable? ANS.: No. Absolute nullity may be invoked only after judicial declaration that such previous marriage is void. It has a retroactive effect being procedural in nature. Hence, it cannot be said that Judge B is capacitated to marry for failure to judicially declare the nullity of his previous marriage. b. Consent freely given in the presence of the solemnizing officer. Consentmust be: Freely given before a solemnizing officer and in the presence of at least two witnesses of legal age. real and not vitiated or rendered defective by any of the vices of consent voluntary, intelligent and personally given. Hence, the marriage may be annulled if the consent of either party was obtained by fraud, (Art. 45, par. 3), or if the consent of either party was obtained by force, intimidation or undue influence (Art. 45, par. 4). 2. Formal Requisites: a. Authority of the solemnizing officer. Who can solemnize marriage: Any incumbent member of the judiciary within the courts jurisdiction;. Any priest or minister of any church or religious sect Any ship captain or airplane chief Any military commander of a unit. Any consul-general, consul, or vice-consul. Incumbent Mayor of a city/municipality (see sec. 444 and 445 of the Local Government Code).
Hence, the marriage shall be void if it shall be solemnized by any person not legally authorized to perform marriages, UNLESS such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. Requisites for authority of a priest to solemnize marriage: 1. He must be registered in the office of the Civil Registrar General (not the local civil registrar). 2. He must have written authority to solemnize marriages given by his church or religious sect. 3. He must act within the limits of such authority. 4. Both or one of the parties to the marriage must belong to his church or sect.
Requisites for authority of a ship captain or airplane pilot to solemnize marriage: 1. The marriage must be in articulo mortis, and 2. It must be solemnized while the ship is at sea or the plane is in flight or during stopovers at ports of call. Requisites for authority of a military commander to solemnize marriage: 1. The marriage must be in articulo mortis 2. It must be solemnized only in the absence of a chaplain; 3. The military commander must be commisoned officer; and 4. It must be solemnized within the zone of military operations.
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void.
A marriage solemnized by a judge outside his territorial jurisdiction is
(Beso v. Judge Daguman, January 28, 2000) On August 28, 1997, Z and B got married and Judge D, an MTCT judge of Tarangnan-Pagsanjan, Samar, solemnized the marriage in his residence in Calbayog City, Samar. When the marriage turned sour, B inquired upon the existence of their Marriage Contract in Calbayog. To her surprise, she found out that her marriage was not registered. a.Is the judge liable for solemnizing a marriage outside of his jurisdiction? b.Is he likewise liable in not retaining a copy and not registering the marriage before the Office of the LCR? ANS.: a. Yes. As a presiding judge of the MCTC Tarangnan-Pagsanjan, Samar, the authority to solemnize marriage is only limited to those municipalities under his jurisdiction. Clearly, Calbayog City is no longer within his area of jurisdiction when he celebrated the marriage of Z and B. b. Yes. In this case he committed non-feasance in office and undermined the very foundation of marriage. As a holder of such sensitive position, he is expected to be conscious in handling official documents. (Beso v. Judge Daguman, January 28, 2000) b. A valid marriage license except in the cases provided for in Articles 27, 28, 31 34. Marriage Licensean imprimatur given by the local civil registrar that would signify the consent of the State in the intended marriage between the parties. Purpose of the Marriage License --The best proof of the presence of legal capacity of the contracting parties.
Where to applyin the Local Civil Registrar of the city or municipality where either contracting party habitually resides. Enforceability of the license-- valid in any part of the Philippines for a period of 120 days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. Probative Value: Prima facie. It is the best proof that the parties are legally capacitated to marry. Marriages which are exempt from license requirement
1. Marriages in articulo mortis or at the point of death (Art. 27, FC) 2. Marriages in remote places (Art. 28, FC) 3. Marriages between Muslims or among members of the ethnic cultural communities (Art. 33, FC) 4. Legal ratification of marital cohabitation. (Art. 34, FC) 5. Marriages solemnized outside the Philippines where no marriage license is required by the country where it was solemnized. No. 3 is governed by the Islamic Law on family relations embodied in P.D. No. 1083.
Contents of Marriage License (Art. 11) 1. Full name of the contracting party; 2. Place of birth; 3. Age and date of birth; 4. Civil status; 5. If previously married, how, when and where the previous marriage was dissolved or annulled; 6. Present residence and citizenship; 7. Degree of relationship of the contracting parties; 8. Full name, residence, and citizenship of the father; 9. Full name, residence, and citizenship of the mother; and
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10. Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. Is the requirement of parental consent indispensable for the validity of the marriage? Yes. According to Article 14 of the FC, in case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of 18 and 21, they shall, in addition to other requirements, exhibit to the local registrar the consent to their marriage of their father, mother surviving parent or guardian, or persons having legal charged of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before ant official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license and the affidavit, if one is executed instead, shall be attached to said applications. (Article 14, FC) Is the requirement of parental advice indispensable for the validity of the marriage? Yes. According to Article 15 of the FC, any contracting party between the age of 21 and 25 shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after 3 months following the completion of the publication of the application therefore. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (Article 15, FC) Marriage Counseling It is required for the issuance of marriage license under the FC in cases where the parties need parental consent or parental advice. If only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling. Purpose: to enable the parties to find out if they are compatible before they get married. Who will counsel: the priest or minister of the church or religious sect to which the party concerned belongs, or a marriage counselor accredited by the proper government agency may do the counseling. Effect of absence: Same effect as the lack of parental advice. The issuance of the marriage license is suspended for 3 months.
c.
A marriage ceremony takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses.
Form: No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and DECLARE in the presence of not less than 2 witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed and attested to. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. Since it is neither an essential nor a formal requisite, an unsigned or unattested marriage certificate does not invalidate the marriage.
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Where the marriage shall be solemnized publicly, and not elsewhere: 1. In the chambers of the judge 2. In open court 3. In the church, chapel or temple 4. In the office of the consul-general, consul or vice consul, and not elsewhere 5. Except in cases of marriages contracted at the point of death or in remote places 6. Where both of the parties request in which case the marriage may be solemnized at a house or place designated by them. 7. All marriages solemnized OUTSIDE the Philippines in accordance with the laws in force in the country where they were solemnized and valid there as such, shall also be valid in this country, except those void foreign marriages. Instances when marriage may be solemnized by a judge outside his chamber or at a place than his sala: 1. when either or both of the contracting parties is at the point of death 2. when the residence of either party is located in a remote place 3. where both of the parties requested the solemnizing officer in writing, in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. effects of absence or defect or irregularities in the requisites: 1. The absence of essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). 2. A defect in any of the essential requisites shall render the marriage voidable as provided in Art. 45. 3. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be held civilly, criminally or administratively liable. 4. A marriage contracted by a party who is 18 21 years old without parental consent is voidable. F. Rules on Marriage by proxy: If performed here in the Philippines, the marriage is void because physical presence of both parties is required.
If performed abroad, whether between Filipinos or foreigners or mixed, and valid there as such, the marriage should be considered valid in the Philippines as mentioned under Art. 26. G. Marriages celebrated Outside of the Philippines Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by the consular official. Notes on the provision: separate filing of the parties for such license; Parties/parents/guardians shall not be required to exhibit their residence certificates. Marriages solemnized in a foreign country in accordance with the laws of that foreign country shall be valid in the Philippines. o Exceptions: Either or both parties did not have the legal capacity to get married. The marriage is immoral being bigamous or polygamous. Consent of one party is lacking because of mistake as to the identity of the other. One of the parties is psychologically incapacitated at the time of the marriage. Incestuous marriage. Void marriages by reason of public policy.
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Subsequent marriages which are considered void due to lack of recording under Art. 53. H. Duties of the local civil registrar 1. Receive the application for marriage license. 2. Require the presentation of original birth/baptismal certificates which shall be duly attested by the persons having custody of the originals (these certificates need not be sworn to, because the signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity, and shall be exempt from the documentary stamp tax).
The presentation of this certificate shall not be required a. if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application b. Or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. c. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of this certificate, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case of default, an affidavit for such matter shall suffice. 3. Receive current residence certificate or an affidavit in lieu of default to present birth certificate. Such instrument shall contain the sworn declaration of 2 witnesses of lawful age. 4. Prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the application. The notice shall be posted for 10 consecutive days. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereon. 5. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order. 6. Require the payment of the fees prescribed by law or regulation before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar. 7. Prepare the documents required and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with the applications for marriage licenses shall be exempt from documentary stamp tax. 8. Enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. 9. Issue proper receipts to the solemnizing officer transmitting copies of the marriage certificate. I. Duties of the solemnizing officer: 1. To prepare marriage certificate: one for the contracting parties; 2 for the LCR who must receive it within 15 days after the celebration of the marriage; one for the solemnizing officer. 2. In the cases provided under Art. 27 (marriage in articulo mortis) and 28 (marriage in remote places), the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed under such circumstances stated in said articles, and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage.
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3. 4.
The affidavit of the solemnizing officer required by this article takes the place of the marriage license and constitutes an assurance that the parties are of the proper ages and that there is no impediment to their marriage. The original of the affidavit required above, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the LCR of the place where it was performed within the period of 30 days after the performance of the marriage. For marriages involving ratification of marital cohabitation, the solemnizing officer shall state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. o
J. Marriage certificate Probative Value: It is the fact of celebration of marriage issued by the solemnizing officer. Failure to register does not invalidate the marriage. Contents: the full name, sex, and age of each contracting party 2. their citizenship, religion and habitual residence 3. the date and precise time of the celebration of the marriage; 4. that the proper marriage license has been issued according to law, subject to some exceptions 5. that either or both of the contracting parties have secured the parental consent in appropriate cases 6. that either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and 7. that the parties have entered into a marriage settlement, if any, attaching a copy thereof.
Duty of the solemnizing officer-- Furnish either the contracting parties the original of the marriage certificate and to send the duplicate and triplicate copies of the certificate not later than 15 days after the marriage to the local civil registrar of the place where the marriage was solemnized.
K. Foreign Divorces
Art. 26, Par 2.--where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. Inapplicability of Art. 26, par. 2 : o A divorce obtained by a Filipino abroad from his or her Filipino spouse, which divorce is void because divorce is not allowed in this country, and a Filipino is governed by his national law wherever he goes. o A divorce obtained by a former Filipino who had been naturalized in another country, after his naturalization, as it might open the door to rich Filipinos obtaining naturalization abroad for no other reason than to be able to divorce their Filipino spouses.
(San Luis v. San Luis, 514 SCRA 294) Validity of divorce is determined by the national law of the party obtaining the divorce Mitigation of Consequences PrincipleFor as long as the foreign divorce is validly obtained by the foreign spouse, Philippine Courts must mitigate the consequences of the divorce to the Filipino Spouse. The courts must apply equity and justice. (Van Dorn v. Romillo 139 SCRA 139)
L.
Distinctions: o
Void Ab Initio Marriages Void and Voidable Marriage
As to Nature
Void marriages Void from the time of its celebration
Voidable marriages Valid until annulled by a competent court
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No ACP or CPG; coownership shall govern Children are illegitimate except for children born under Art 36 and Art 35 (6) How marriage a. may be attacked may be impugned directly or collaterally. But for the purpose of remarriage, there must be a judicial declaration of nullity . b. can still be impugned even after death of parties.
o Declaration of Nullity and Divorce
As toSusceptibility of Ratification As to Effect on property As to Effect on children
Cannot be validated
Can be ratified either by free cohabitation or prescription Absolute community exists unless other system is agreed upon in marriage settlement Children are legitimate if conceived or born before decree of annulment a. cannot be collaterally attacked. Only directly (there must be a decree of annulment) b. can no longer be impugned after death of one of the parties.
Marriages that are void ab initio 1. if either or both of the parties are below the age of 18, their marriage shall be void even if celebrated abroad 2. (Art. 37 and A.38) incestuous, quasi-incestuous or against public policy i.e. those ensuing from parricide 3. bigamous or polygamous marriages (Art. 35 (4)) o Elements: a. prior subsisting marriage b. prior marriage has not be terminated or dissolved c. a party contracts a subsequent second marriage d. second marriage would have been valid were not for the existing prior one o Exception to the bigamous marriages a. those celebrated under Muslim code (S27 The Code of Muslim Personal Laws: notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife unless he can deal with them with equal companionship and treatment as enjoined by Islamic law and only in exceptional cases.) b. (Art. 41 in conseq.)VALID BIGAMOUS MARRIAGE Requisites the spouse has been absent for 2 years if there is danger of death or 4 years ordinary absence There is a well founded belief that the absent spouse was already dead. Serious and diligent efforts must be exerted which means obtaining police assistance1 sending out letter to friends, relatives and acquaintances2, accompanied by actual physical searching3. Judicial declaration of presumptive death by way of summary proceeding and indicating that it is for the purpose of remarriage registration with the LCR to capacitated surviving spouse to contract marriage The Supreme Court stated that the declaration of presumptive death is NOT a special proceeding it is an ordinary proceeding which cannot be subject to multiple appeals. The declaration of the court is therefore immediately final and executory and cannot be subject of an appeal. The effects of the first marriage which includes the rights and obligations between husband and wife and as parents, is merely suspended. The second one is a conditional marriage upon the confirmation of death or reappearance of the absent spouse
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The subsequent marriage shall be automatically terminated upon the recording of the affidavit or reappearance of the absent spouse which shall serve as a notice in rem. Effects of termination children of the subsequent marriage conceived prior to its termination shall be considered LEGITIMATE ACP or CGP dissolve and liquidate assets If one of the spouse is in bad faith forfeited in favor of the common children the children of the guilty spouse by a previous marriage the innocent spouse donations by reason of marriage shall remain valid except if in bad faith the donations are revoked by operation of law innocent spouse may revoke the designation of bad faith spouse in an insurance policy even if stipulated as irrevocable bad faith spouse shall be disqualified to inherit from the innocent spouse c. (Art. 26) RELATIVE DIVORCE (MITIGATION OF CONSEQUENCES PRINCIPLE) Requisites: (a) mixed marriage originally (b) alien spouse who obtained the divorce (c) divorce is valid in accordance with law of the alien spouse (d) the effect is to dissolve marital bonds and capacitating the parties to contract subsequent marriage. (SAN LUIS v SAN LUIS, February 6, 2007) Facts: Felicisimo San Luis contracted 3 marriages. The first marriage was terminated on 1963 because the wife died. Felicisimo marred Merry Lee on 1968. Merry Lee filed a complaint for Divorce in Hawaii on 1971. On 1974 married Felicidad (respondent). The horny toad died on 1992. Issue: Does Felicidad have a cause of action or an interest in the estate of HT? Ruling: There is no need to apply the Family Code retroactively because there is the case of Van Dorn which was promulgated at the time of the third marriage. The divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimos surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo. The Court found that the latter has the legal personality to file the subject petition for letters of administration, as she may be considered the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their cohabitation. Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article 144 of the Civil Code by expressly regulating the property relations of couples living together as husband and wife but are incapacitated to marry. 4. When consent has been vitiated because either of the parties is suffering from Psychological Incapacity o Consent should be freely, voluntarily and intelligently given o Presence of psychological incapacity at the time of the celebration of the marriage is a ground for nullity of marriage because it shows that at the time of the celebration of marriage either or both of the parties were incapacitated to comply with their marital rights and obligations o Definition of Psychological Incapacity, Characteristics: (Santos v CA and Chi Ming Tsoi v CA) 1. grave and serious 2. incurable or permanent 3. juridical antecedent (Republic v CA and Molina)
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1. burden of proof to show the nullity of the marriage belongs to the plaintiff, and any doubt must be resolved in favor of the existence if the marriage and against its nullity 2. the root cause of the psychological incapacity must be (1) medically or clinically identified (2) alleged in the complaint (3) sufficiently proven by experts (4) clearly explained in the decision 3. the incapacity must be proven to be existing at the time of the celebration of marriage although the manifestation need not be perceivable at such time. (rooted on history of the family or natal or supervening disability) 4. the incapacity must also be shown to be medically or clinically permanent or incurable, although the incurability may be relatively only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, the incapacity must be relevant to the assumption of marital obligations, not to those not related to the marriage. 5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage (mental, behavioral or personality disorder that renders the party incapable of performing or understanding obligations. It is a cognitive defect. Refusal or neglect to perform obligations is not psychological incapacity) 6. The essential marital obligations must be those embraced under Arts. 68-71 of the husband and wife, and Arts. 20-225 in regard to parent and their children 7. Interpretation given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling should be given great respect by the courts (the decision of the Vatican is not binding to the courts) 8. The trial court must order the fiscal and Sol-Gen to appear as counsel for the State. (This requirement has been relaxed and the Sol-Gens recommendation is not absolutely binding to the court) The following are not psychological incapacity: drunkenness, drug addiction per se, immaturity, joblessness, sexual infidelity, prefers to be with his or her friends and not the family, abandonment. INDIVIDUALLY they cannot be considered psychological incapacity but they may be taken as manifestations of psychological incapacity. (Marcos v Marcos): it is enough that only one of the parties undergo psychological testing (Perez-Ferraris v Ferraris) The Court found that respondents alleged mixed personality disorder, the leaving-the-house attitude whenever they quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family were not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage. 5. When there is no authority of the solemnizing officer to conduct marriage o VOID if both of the parties are in bad faith and they have no intention to be bound, sham marriage o If one of the parties believed that the person solemnizing the marriage had authority it remains to be a VALID marriage o If the solemnizing officer has the authority according to the place of the celebration, then it is also valid from perspective of the Philippine Courts 6. When there is no valid marriage license o Exceptions to the requisite of marriage license lex loci celebrationis exceptional circumstances articulo mortis in a remote place lack of means of transportation or accessibility to the LCR customs of members of indigenous communities and Muslims
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ratification of cohabitation by a man and a woman who have been cohabitating for 5 years without any legal impediments to marry each other (Affidavit of Cohabitation to be presented to Solemnizing Officer) o (Manzano v Judge Sanchez): Judge Sanchez solemnized a bigamous marriage as the marriage contract clearly stated that the first wife and the husband were separated. Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage he did not know that husband was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit Held: For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. The fact that husband and first wife had been living apart from their respective spouses for a long time already is immaterial because the marriage bonds are not severed. . Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar. Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. 7) When there is no marriage ceremony held o (Morigo v People): In 1990, Lucia Barette came back to the Philippines and proposed to petitioner LUCIO MORIGO to join her in Canada. Both agreed to get married, thus they were married on August 30. Lucia reported back to Canada. On 1991, Lucia filed with the Ontario Court a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. On 1992, Morigo married again. On 1993, accused filed a complaint for judicial declaration of nullity of marriage in the RTC of Bohol. Subsequently thereafter he was charged with Bigamy in an Information. He was found guilty of bigamy. He appealed the conviction. While the appeal was pending before the appellate court, the trial court rendered a decision in Civil Case declaring the marriage between Lucio and Lucia void ab initio since no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory. Issue: whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid. Held: In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage 8. When the second Marriage is contracted in violation of arts. 40, 52-53 o This presupposes that there was a prior marriage that was declared annulled or a void ab initio by a court of competent jurisdiction. However, such judgment of nullity or annulment was not recorded before the proper local civil registrar prior to the conduct of the subsequent second marriage
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The non-recording of the judgment prior to the remarriage is the ground that makes the subsequent marriage void marriage. Action for Declaration of Nullity of Marriage o Who may Bring the action: A.M. NO. 02-11-10-SC states that only the husband and wife may file for the declaration of absolute nullity of void marriages and annulment of voidable marriages. But according to jurisprudence, a petition for the declaration although may be termed petition is an ordinary action and therefore the Rules of Court regarding real party-in-interest should apply thus anyone who has an interest in the proceedings, the person who stands to be benefited or injured may file for the declaration of the nullity of marriage. (Catalan v CA, 6 February 2007): Husband married wife1 they subsequently obtained a divorce decree. Husband married again to Wife2. Wife1 filed for a petition for the declaration of the nullity of the second marriage because it was a bigamous marriage. Husband filed a motion to dismiss because wife1 is not the real party in interest. Held: True, under the New Civil Code which is the law in force at the time the respondents were married, or even in the Family Code, there is no specific provision as to who can file a petition to declare the nullity of marriage; however, only a party who can demonstrate "proper interest" can file the same. A petition to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action (Ninal v Badayog, 14 March 2000): the Court held that the children have the personality to file the petition to declare the nullity of the marriage of their deceased father to their stepmother as it affects their successional rights.phi1.net o Prescriptive Period: an Action or defense for the declaration of absolute nullity of void marriage shall not prescribe. o (Mallion v Alcantara, 506 SCRA 336) Husband filed for nullity of marriage under Article 36. it was denied for lack of sufficient evidence. He later on filed for declaration of nullity of marriage because his marriage was void for lack of marriage license. Supreme Court: there is res judicata because there is identity of parties, identity of subject matter and identity of cause of action. In both petitions, petitioner has the same cause - the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondents marriage. o Appearance of the State/ Prohibition against Default judgment The court shall order the prosecuting attorney or fiscal assigned to it appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. No judgment shall be based upon a stipulation of facts or confession of judgment. o Right to Support and Custody During Pendency of Action The court shall provide for the support of the spouses and the custody and support of their common children. Custody for a child under seven years old mother unless the court finds compelling reason to do otherwise Custody for a child over seven years old own choice unless found by the court to be unfit The court shall arrange also appropriate visitation rights of the other parent o Necessity of final judgment/ Requirements for Remarriage o
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(Cari no v Carino, 2 February 2001) to reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage, otherwise, the second marriage would also be void. o Effects of declaration of nullity of marriage a. children of the subsequent marriage conceived prior to its termination shall be considered ILLEGITIMATE Status of children from Art 36. Legitimate Status of children from Art. 53 Legitimate b. one of the spouse is in bad faith forfeited in favor of the common children the children of the guilty spouse by a previous marriage the innocent spouse c. donations by reason of marriage shall remain valid except if in bad faith the donations are revoked by operation of law d. innocent spouse may revoke the designation of bad faith spouse in an insurance policy even if stipulated as irrevocable e. bad faith spouse shall be disqualified to inherit from the innocent spouse f. both spouses are in bad faith void ab intio and all donations are revoked (Art 43-44) g. In VOID Marriages, properties are merely co-owned so the rule on liquidation of properties shall be applicable M. Voidable/ Annullable Marriages A voidable or annullable marriage is valid until annulled. Before its annulment, the marriage considered as valid. Grounds for the annulment of marriage (Art. 45): 1. the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order 2. That either party was of unsound mind,
PSYCHOLOGICAL INCAPACITY (Art 36) A ground for voidable marriage A ground for declaration of nullity of marriage A mere mental defect Broader in scope: it includes mental, physical and psychological personality A mere restriction on persons capacity There is capacity to act and incapacity to act pertains only to understand and fulfill marital obligations
3. That the consent of either party was obtained by fraud, o grounds for fraud is limited only to Art 46 o What constitutes fraud? (Art 46) a. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude. Moral Turpitude- must be based on the nature of the crime and it is reflective of the character of the person Requirements: that there is prior final judgment of conviction involving moral turpitude such fact was not revealed to the other party at the time of celebration of marriage b. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband.
INSANITY (Art 45 (2))
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(Buccat v. Buccat, 72 Phil. 19) BF and GF got married but at the time of the celebration of the marriage GF was already 6 months pregnant by a man other than the BF. After which BF filed a petition in court for the annulment of his marriage with GF on the ground that at the time of celebration of marriage she concealed the fact that she is pregnant by a man other than him. Will the action prosper? ANS: No, the action will not prosper. The present condition of the woman was already evident at the time of marriage. In fact it is only on the 6th month of pregnancy that the enlargement of the womans abdomen reaches a height above the umbilicus, making the roundness of the womans abdomen more general and apparent. The woman, as a matter of fact, does not even have to tell BF of her pregnancy. c. Concealment of a STD, regardless of its nature, existing at the time of the marriage. d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of the marriage. o No other misrepresentation or deceit as to character, health, rank, fortune, or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. 4. That the consent of either party was obtained by force, intimidation, or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife. o Violence- when in order to wrest consent, serious or irresistible force is employed. o Intimidation -when one of the contracting parties is compelled by a reasonable and well-grounded fear of imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. o Undue influence- when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice.(Control over ones will; Taking advantage of ones position by reason of moral ascendancy resulting from family relations, moral or spiritual relations, indigence etc.) 5. That either party was physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable. Requisites for physical incapacity: a. That the incapacity exists at the time of the celebration of the marriage. b.That such incapacity continues to the time when the case for annulment is being tried. c. That it appears to be incurable. d.It must be unknown to the other contracting party. o The physical incapacity referred to by law as a ground for annulment of marriage is Impotence or that physical condition of the husband or the wife in which sexual intercourse with a normal person of the opposite sex is impossible. o Impotence is the lack of power to copulate, the absence of the functional capacity for the sexual act, and not merely sterility: a pathological condition which negatives reproduction. o Absolute impotency: lack of power to copulate with anyone not only to the wife. o Relative impotency: physical incapability of one party to consummate the marriage with the other. Relative incapacity pertains only to the inability of the spouse to copulate with respect to the wife only but not to any other person o Doctrine of triennial cohabitation: if the wife remains a virgin after living together with her husband for 3 years, the presumption is that the husband is impotent, and he will have to overcome this presumption. o Distinction: Impotencia Copulandi vs. Impotencia Generandi
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Impotencia Copulandi (Impotence) Impotencia Generandi (Sterility) 1. Lack of power to copulate 1. Pathological condition that negatives reproduction 2. A ground for annulment 2. Does not affect marriage 3. Impotency carries with it sterility 3. Sterility does not necessary carries with it impotency
6. That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. o Affliction of STD as a ground for annulment under Article 45 (6) v. Affliction of STD as constituting fraud under Article 46 (3). Art. 45 (6) Art. 46 (3) One party is afflicted with STD found to be serious and appears to be incurable The disease is present at the time of the marriage Concealment is immaterial; the disease may be known to the other party One party is afflicted with a STD regardless of its nature The disease is present at the time of the marriage Concealment is material
Modes of Ratifying/ convalidating a Voidable Marriage 1. Free Cohabitation as Husband and Wife- Free cohabitation must be something more than mere living together in the same house or even occupying the same bed; it is the living together of the parties as husband and wife, including sexual relations. 2. By Prescription
Ground Lack of parental consent
Persons who may sue
Prescriptive period
a. before party concerned reaches a. by parent who did not give the age of 21 consent b. by spouse b. within 5 years after reaching the age of 21
Insanity
Fraud Force, intimidation or undue influence Impotence or STD
a. by sane spouse b. guardian or parent of insane Must be filed at anytime during spouse the lifetime of either spouse c. insane spouse during lucid intervals Within 5 years from the discovery By the injured party of the fraud Within 5 years from the time the By the injured party force, intimidation, or undue influence ceased Within 5 years from celebration of By the injured party marriage
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Appearance of the State-- in all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. No judgment shall be based upon a stipulation of facts or confession of judgment. o Reason for the appearance of the state- because marriage is not just a contract between the parties but a social institution, in the preservation of which, the State is interested.
Right to Support and Custody during the Pendency of the Action o Right to Support- during the pendency of the action for annulment of marriage the court shall provide for the support of the spouses and that of their children. o Custody of children- the court shall give paramount consideration to the moral and material welfare of the children
Art 213: a. if child is below 7 years old- custody must be given to the mother, unless the court finds compelling reasons to order otherwise; b. if child is above 7 years old- the choice of the child must be given consideration, unless the parent chosen is unfit
Necessity of Final Judgment/ Requirements for Marriage -- For purposes of remarriage the final decree of annulment can be invoked (Art 40); provided that the decree of annulment, the partition and distribution of the properties of the spouses and the delivery of the presumptive legitimes shall be recorded in the appropriate civil registry and registries of properties; otherwise the same shall not affect third persons (Art 52). o The subsequent remarriage of either spouse is null and void if the above has not been complied with (Art 53). Effects of the Decree of Annulment of Marriage Marital bond between spouses is severed and marital obligations between them is also extinguished Children conceived or born before the decree of annulment shall retain their status as legitimate and shall be entitled to support by the parents and their presumptive legitimes be delivered Custody of children refer to Art 213 above Absolute community of property or conjugal partnership of gains shall be dissolved and liquidated Guilty spouse cannot inherit from the innocent spouse Donations inter vivos/ propter nuptias and designation as beneficiary of the guilty spouse in any insurance policy is revoked. N. Legal Separation The marriage bond between the husband and wife is not severed. The parties are merely separated from bed and board. Distinctions: ANNULMENT LEGAL SEPARATION
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- Marriage is defective from the beginning
- There was no defect in the marriage from the beginning - ground must already be in existence at the - the ground arises only after the celebration time of celebration of marriage of marriage - there are 7 grounds - there are 10 grounds - has the effect of severing marital bond; - mere separation from bed and board; cannot parties can remarry again remarry A Vinculo Matrimonii v. A Mensa et Thoro A VINCULO MATRIMONII - marital ties are severed; absolute divorce - either spouse can remarry A MENSA ET THORO - separation from bed and board; marital bond not severed - neither spouse can remarry
Legal Separation v. Separation of Property Legal Separation a.) Must be done thru the court. Separation of Property a.) 1.) If one prior to marriage-may be done thru the marriage settlement. 2.) If done during the existence of the marriagemust be done thru the courts. b.) Always involves also separation of b.) May exist with or without legal separations. property. c.) May be considered, in a sense, as a c.) May be considered, in a sense as one of the cause of separation of property. effects of legal separation. d.) The spouses persons are necessarily d.) The spouses persons are NOT necessarily separated. separated. Legal Separation (Art. 55) v. Separation De Facto (Art. 100-101) In legal separation, the same must be done thru the court. In separation de facto, there is no decree of legal separation. The separation in fact between husband and wife shall not affect the regime of absolute community except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share.
Grounds (Art. 55)

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1. Repeated physical violence or grossly abusive conduct. 2. Physical violence or moral pressure. 3. Attempt or connivance to corrupt or induce to engage in prostitution. 4. Final judgment of imprisonment of more than 6 years: even if subsequently judicially pardoned. 5. Drug addiction or habitual alcoholism. 6. Lesbianism or homosexuality. 7. Subsequent bigamous marriage. 8. Sexual infidelity or perversion. 9. Attempt against the life: no need for criminal conviction. 10. Abandonment without justifiable cause for more than 1 year. Defenses Against Legal Separation 1. Condonation - means forgiveness, express or implied. It comes AFTER, not, the offense. Implied condonation may come in the form of voluntary sexual intercourse after knowledge of the cause. the innocent spouse must have full knowledge of the act being condoned 2. Consent- that the aggrieved spouse agreed to the commission of the marital offense; comes before offense is committed 3. Connivance- the act of one spouse in consenting to the commission of the offense or act constituted the ground for legal separation the other spouse entered into an agreement with third person in order to induce the spouse to commit a marital offense constituting the ground for legal separation 4. Mutual guilt/Recrimination- this means that both parties are in pari delicto, there is no offended spouse who deserves to bring the action. 5. Collusion- an agreement between the spouses whereby one will pretend to have committed the ground relied upon. A legal separation obtained thru collusion is void. 6. Prescription- the action for legal separation is barred by mere lapse of time. (must be within 5 years from occurrence of the cause. Art 57) Procedure in an Action for legal Separation o filing of a Petition for Legal Separation in the Family Court where one of the spouses is a resident appropriate summons must be given to the respondent spouse o petition shall not be tried after the lapse of 6 months cooling-off period from the filing of the petition
Cooling-off period: an action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition. it is the duty of the court to effect reconciliation between the spouses (Art.59) o hearing pursues if the situation is irreconcilable action is adversarial in nature court must adduce independent evidence to find out whether or not there was collusion between the spouses (Art 60) o no stipulation of facts or confession of judgment o judgment: either to deny petition or to grant it Effect of Filing a Petition for Legal Separation 1. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other 2. The court shall also provide for the support of the spouse and the children as well as their custody (Art 62 in rel. to Art 49 and Art 213) Effects of the decree of Legal Separation 1. The spouses are entitled to live separately, but the marriage bonds shall not be severed. 2. The property regime shall be dissolved and liquidated but the offending party shall have no right to any share of the net profits earned by the property regime, and shall be forfeited in accordance with Art. 43 (2): this is included in effects of reappearance under Art. 42. 3. The custody of the minor children shall be awarded to the innocent spouse with respect to Art 213.
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4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. If, however, the offended spouse executes another will in favor of the offending spouse after the decree of legal separation, the will shall be valid. The conviction of the wife of adultery does not disqualify her to inherit from the offended husband, if there is no decree of legal separation between them. Accordingly, the guilty spouse shall not be disqualified from inheriting unless the innocent spouse files a case for legal separation. 5. Art. 64: the innocent spouse may revoke the donations made by him or her in favor of the offending spouse, as well as the designation of the guilty party as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The action to revoke donation must be brought within 5 years from the time the decree of legal separation has become final.
RECONCILIATION-- should the spouses reconcile, the corresponding joint manifestation under oath duly signed by them shall be filed with the Court in the same proceeding for legal separation (Art 65) o Effects of reconciliation:
On Pending Case- legal separation proceedings, if still pending, shall thereby be terminated in whatever stage.(Art 66 (1)) On final decree of legal separation- such shall be set aside (Art 66 (2)) On Property Relations- the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime (Art 66 (2)). Agreement to revive former property regime (Art 67)- the spouses shall be executed under oath and shall specify: The properties to be contributed anew to the restored regime. Those to be retained as separated properties of each spouse. The names of all their known creditors, addresses and corresponding credits. The agreement of revival and the motion for its approval shall be filed with the Court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the Court shall take measures to protect the interest of creditors and such order shall be recorded in the proper registry of property. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate property to satisfy the creditors claim.
O. Rights and obligations Between Husband and Wife Rights and obligations between husband and wife are not subject to stipulations as they are governed by law. Specific Rights and Obligations 1. The husband and wife are obliged to live together o Such includes right to consortium, cohabitation including marital sexual relations o As a consequence of such obligation, husband and wife are obliged to fix the family domicile; in case of disagreement, the court shall decide. o The wife has the duty to live with her husband, but she may refuse to do so in certain cases: If the place chosen by the husband as family residence is dangerous to her life. If the husband subjects her to maltreatment or abusive conduct or insults, making common life impossible. If the husband compels her to live with his parents, but she cannot get along with her mother-in-law and they have constant quarrels. If the husband has no fixed residence and lives a vagabond life as a tramp. When the husband is carrying on a shameful business at home.
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If the husband is immoderate or barbaric in his demands for sexual intercourse (Goitia v. Campos-Rueda, 35 Phil 252). o (Ilusorio v. Ilusorio, May 12, 2000). In cases where a husband or a wife abandons the conjugal home without justifiable cause, neither the other spouse can compel him or her to come home under the pain of contempt of court o (Arroyo v. Vasquez- Arroyo, 42 Phil 54) Cohabitation is a purely personal obligation, and to compel a spouse to comply with such obligation would be a violation of his/her personal liberty as well as his/her freedom of abode which are guaranteed by the Constitution. The only remedy of the abandoned wife of husband is to withhold the support given to the abandoning spouse 2. Observe mutual love, respect and fidelity towards each other o Some consequences of this duty are as follows: If one spouse commits acts which tend to bring danger, dishonor, or injury to the other, the aggrieved spouse may apply to the Court for relief The unfaithful spouse may be charged criminally with adultery or concubinage. Both spouses are obliged to administer the family property, and to excercise joint parental authority over their minor children, both over their persons and property. Sexual infidelity and perversion are also grounds for legal separation, and so is repeated physical violence or grossly abusive conduct directed against a spouse by the other, which shows lack of love and respect for the former. 3. Render mutual help and support o The spouses are jointly responsible for the support of the family and the management of the household. o The sources of expenses for support and conjugal obligations are: a. community property b. if above is not sufficient, then from the income or fruits of separate properties of each spouses c. in above is not sufficient, then from the separate properties of the spouses 4. Exercise of Profession/ Business o General rule: either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious and moral grounds. o Exception: in case of disagreement, the Court shall decide whether or not: a. The objection is proper. b. Benefit has accrued to the family prior to the objection thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the community property. If benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has not obtained consent. o The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (Go. V. CA, 272 SCRA 752) W is engaged in the business of videotaping (VHS videotape) occasions like weddings and birthdays. She then entered into a contract of videotaping the wedding of BF and GF. When BF and GF went to Ws office to get the video coverage of their wedding, the latter cannot produce it because it was erased. Consequently, W together with her husband H were sued. Is H liable? ANS.: NO, H is not liable. W is the only one liable because she entered into such business without the consent of H and there is no showing that H participated in any way to the business of W. 5. Rules of Evidence on Marriage o The Marriage Privilege Rule (Rule 130 (Sec.22) of the Rules of Court)-- A husband cannot be examined for or against his wife without her
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consent; nor the wife for or against her husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other. o The Marital Communication Rule (Rule 130 (Sec.24a) of the Rules of Court)-- The husband or the wife during the marriage or afterwards, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage. P. Property Relations Between Spouses Shall be governed in the following order: 1. By marriage settlements executed before the marriage, 2. By the provisions of the NCC as amended by the FC; and 3. By the local customs. (Art. 74, FC.) Marriage Settlement-a contract entered into by persons who are about to be united in marriage for the purpose of fixing the condition of the conjugal partnership with regard to present and future property. (9 Manresa 106) o Requisites: 1. Must be made BEFORE the celebration of the marriage and even modification must also be made BEFORE the celebration of the marriage except conversion into the complete separation of property regime, which would be allowed provided that there is judicial approval and no prejudice to creditors. 2. Must not contain provisions contrary to law , good morals, good customs, public order, and public policy (Art.1306, Civil Code), or against the dignity of either spouse. 3. Must generally confine itself only to property relations. 4. Must be in writing and signed by the parties. (Note: The marriage settlement shall not prejudice third person with respect to real properties unless the settlement is registered in the LCR where the marriage contract is recorded as well as in the proper registries of property) 5. For those executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. o Modifications/ Qualifications/ Altereations Must be made before the celebration of the marriage, subject to the following provisions : Art.66, on consequences of reconciliation of the spouses in legal separation Art.67, on conditions for revival of the former property regime in legal separation Art.128, on petition for sole administratorship of the conjugal partnership in case of abandonment by a spouse or failure to comply with his or her obligations to the family Art.135, on grounds for judicial separation of property Art.136, joint petition of spouses for dissolution of property regime governing their relation Shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the LCR where the marriage contract is recorded as well as in the registries of property. o Applicability of Philippine Laws--in the absence of contrary stipulations, regardless of the place of the celebration of the marriage and their residence. Exceptions: Where both spouses are aliens; With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and
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With respect to the extrinsic validity of contracts entered into the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.(Art.80, FC.) Donations Propter Nuptias-- are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. o Requisites: 1. Must be made before the celebration of the marriage; 2. Must be made in consideration of the same; and 3. Must be made in favor of one or both of the future spouses. (Art.82, FC.) If one of the requisites is not complied with, it may still be valid as an ordinary donation (provided that all other essential requisites are complied with), but not as a donation propter nuptias o Prohibition against Donation to Each Other Before MarriageThe General Rule is that future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void). Exception: If they are governed by Absolute Community Property. During Marriage-- Spouses cannot donate to each other, directly or indirectly (donations made by spouses during the marriage are VOID). Exception: 1. Moderate gifts on the occasion of any family rejoicing. 2. Donation mortis causa Rationale for Prohibition 1. To protect unsecured creditors from being defrauded 2. To prevent stronger spouse from imposing upon the weaker one the transfer of the latters property to the former 3. To prevent indirect modification of the marriage settlement. o Revocation-- a donation by reason of marriage is not revocable, save in the following cases where the donor may revoke said donation. 1. If the marriage is not celebrated, or judicially declared void ab initio except donations made in the marriage settlements which shall be governed by art.81 of the FC; 2. When the marriage takes place without the consent of the parents or guardian as required by law; 3. When the marriage is annulled, and the donee acted in bad faith; 4. Upon legal separation, the donee being the guilty spouse; 5. If it is with a resolutory condition and the condition is complied with; 6. When the donee has committed an act of ingratitude as exemplified by the provisions of the NCC on donations in general.(Art.86, FC) (Arcaba v. Batocael, 370 SCRA 414) A, the prospective husband, gave a donation propter nuptias of a parcel of land to X, his prospective wife. Due to a quarrel, the marriage was called off. Is the donation automatically revoked? ANS. I distinguish, If the donation propter nuptias was incorporated in the marriage settlement of X and Y, if one had been executed, the donation is rendered void by the non-celebration of the marriage.(art.81, FC.) However, if the donation propter nuptias was made independently of the marriage settlement, the donation is revocable only at the instance of the donor. (Art.86,par.1, FC.) (Matabuena vs. Cervantes, 38 SCRA 284) Tony, a widower, executed a Deed of Donation Inter Vivos over a parcel of land in favor of his common law wife Leila, who accepted in the same instrument. When Tony died intestate without any issue, his nephews and nieces filed for declaration of nullity of donation. The suit was anchored on the ground that Leila was the common-law wife of Tony, and that the donation made to her by Tony is void under Article 87 of the Family Code.Was the donation void? ANS. YES. Art.87, FC. Expressly provides that every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband wife without a valid marriage. Since Tony, the donor,
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and Leila, the donee, lived together as husband and wife without a valid marriage, the inescapable conclusion is that the donation made by Tony in favor of Leila is void under Art.87., FC. Prescriptive Period for Filing Action for Revocation If marriage is not celebrated (Except donations contained in the marriage 5 years from the time marriage is not settlement which are automatically rendered solemnized on the fixed date void if the marriage does not take place) If marriage is judicially declared void, it depends: (a)If subsequent marriage is void pursuant to By operation of law if donee-spouse Art. 40 in relation to Arts. 52 and 53, contracted subsequent void marriage in bad because contracted by a spouse before prior faith void marriage is judicially declared void (b) Judicially declared void on grounds other than Art. 40 in relation to Arts. 52 and 53 When marriage takes place without the required parental consent If resolutory condition is complied with When marriage is annulled and donee acted in bad faith If donee commits an act of ingratitude In cases of legal separation o Distinctions: DONATION Donations Propter nuptias v. Ordinary Donations BASES DONATION PROPTER NUPTIAS Governed by the rules on ordinary donations except that if the future property is donated, it must conform with formalities of wills Both present and future properties may be donated If present property is donated, and property regime is not ACP, limited to 1/5 Express acceptance is NOT necessary FOR Art.86, FC ORDINARY DONATION Governed by rules on donatios (Art. 725-773, NNC) 5 years from finality of judicial declaration of nullity ( if action to recover property) 5 years from the time of discovery 5 years from happening of condition 5 years from finality of decree 1 year from the time of discovery 5 years from final judgment
FORMALITIES EXTENT LIMITATION ACCEPTANCE GROUNDS REVOCATION
Only present properties may be donated No limit, provided legitimes are not impaired Express acceptance is necessary Art.760,764,765, NCC
Property Regimes 1. System of Absolute Community of Property-- The property regime of the spouses in the absence of a marriage settlement. 2. System of Conjugal Property of Gains-- It is that formed by a husband and his
wife whereby they place in a common fund their separate property, and the income from their work or industry, the same to be divided between them EQUALLY (as a general rule ) upon the dissolution of the marriage or partnership. 3. System of Separation of Property-- It is that matrimonial property regime agreed upon in the marriage settlement by the future spouses whereby each spouse shall own, dispose of possess, administer, and enjoy his or her own separate estate and earnings without the concern of the other (Art.145, FC), with each spouse proportionately bearing the family expenses (Art. 146) proportionate to their earnings and profits of their respective property.
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System of Absolute Community vs. System of Conjugal Partnership of Gains ACP CPG Shall be governed by the rules on partnership in all that is not in conflict with what is expressly determined by law or by the spouses in their marriage The provisions of co-ownership settlement. shall apply between the spouses APPLICABILITY OF OTHER in all matters not provided for in The Rules of Court on the LAWS Chapter 3, Title 4, FC. administration of estates of deceased persons shall be observed in the appraisal and sale of the conjugal partnership, and other matters which are not expressly determined by law. 1.Fuits of conjugal property due or received during the marriage and net fruits of separate property 2. Those occupation INCLUDED PROPERTIES acquired through
All the property owned by the 3.Livestock in excess of what spouses at the time of the was brought to the marriage celebration of the marriage or acquire thereafter. 4. Those acquired during the marriage with conjugal funds 5.Share in hidden treasure 6.Those obtained from labor, industry, work, or profession of either or both spouse 1. Those acquired before the marriage by either spouse who has legitimate descendants by a former marriage and its fruits and income 7. Those acquired by chance 1.That which is brought into the marriage as his/her own 2.That acquired during marriage gratuitously the
EXCLUSIVE PROPERTIES
2. Those for personal and 3. That acquired by redemption, exclusive use except jewelry barter or exchange with exclusive (ordinary jewelry is excluded) property 3. Those acquired during the 4. That purchased with exclusive marriage by gratuitous title, money or spouse except when the donor, testator, or grantor expressly provides otherwise Mutual trust and confidence Not primarily based on mutual between the spouses which will, trust and confidence between thus, foster unity between them spouses, and does not enhance the presumption of solidarity between them The spouses do not retain any Each spouse retains his or her property acquired before properties acquired prior to the marriage and all properties they marriage but the fruits and own at the time of marriage and income of such properties form all properties they own at the part of the conjugal properties
BASIS
RETENTION OF PROPERTY
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UPON DISSOLUTION METHOD OF LIQUIDATION
time of marriage become part of the community property. There are no exclusive properties of the spouses are returned, the spouses or their heirs equally divide the net remainder of the properties of the absolute community Will entail identification and return of exclusive properties of the spouses
during the marriage The exclusive properties of the spouses are returned, the spouses or heirs equally divide only the net profits of the partnership Lot easier, since its net remainder is merely divided equally between the spouses or their heirs
Illustrations: Anton and Lily married under the absolute community property regime. During the marriage, Lily inherited P250,000 from her mother. From said amount, she used 50,000 to buy a diamond ring. Is the diamond ring included in the community property? ANS. There are two views. Under Art.92 par.1 of the Family Code, the property acquired by inheritance is expressly excluded from the community property. The diamond ring, having been bought with the money received by Lily as inheritance, is therefore excluded. This is because there was only substitution of values which does not change the character of the property as an inheritance. Under Art.92 par.2 of the Family Code, however, jewelry forms part of the community property. Since the diamond ring is a jewelry, the same forms part of the community property. It is respectfully submitted that the first view is the better view because it is more accord with law. Luis and Annie married under the absolute community property regime. During the marriage, Luis sold their farm lot to Juanito without the consent of Annie. 1. Is the sale void or voidable? 2. What if there is amicable settlement before the barangay lupon between Annie and Juanito, is there ratification to the unconsented sale? 3. What if Annie actively participated in the negotiations of the sale, will it make the sale valid? ANS. (a) VOID. The nullity of such contract of sale is premised on the absence of Annies consent to such sale. To constitute a valid contract, the Civic Code requires the concurrence of the following elements: (1) cause; (2) object; and (3) consent; the last element being indubitably absent in the case at bar. The contract properly falls within the ambit of Art. 124 of the Family Code which provides, among others, that the sale of conjugal property must have the written consent of the other spouse. In the absence of such written consent or authority, the disposition or encumbrance of conjugal property is void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.(HSLB vs. Dailo, GR.No. 153802, March 11, 2005) (b) NONE. The deed of sale executed by Luis cannot be ratified, even by an amicable settlement. The participation by some barangay officials in the amicable settlement cannot validate an invalid act. Moreover, it cannot be denied that the amicable settlement entered into by Annie and Juanito is a contract. By express provision of law, such contract is also void. Art.1422, NCC provides that a contract which is a result of a previous illegal contract is also void and inexistent.(Guiang vs. CA,291 SCRA 372) (c) NO. Even granting that Annie actively participated in negotiating for the sale of the subject property, her written consent to the sale is required by law for its validity. Annie may have been aware of the negotiations for the sale of their
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community property. However, being merely aware of a transaction is not consent. In relation to the above example, Luis asked the Court to compel Annie to give her consent to the sale on the premised that it is for the betterment of family wealth. Will the action prosper? ANS. NO. Court Authorization under Art.124, FC. Is only resorted to in cases where the spouse who does not give his or her consent is incapacitated. In this case, Luis failed to allege and prove that Annie was incapacitated to give her consent to the contract of sell. In the absence of such a showing of the wifes incapacity, court authorization cannot be sought. (Jader-Manalo vs. Camaisa, 374 SCRA 498). Separation of Property o General Rule: There can be no separation of property between spouses during the marriage except by virtue of a judicial order. (Art.134, FC.) o Exception: complete separation of property shall govern the property relations between the spouses only in the following cases: When it is expressly provided for in the marriage settlements; and When it is so decreed by a competent court. Mandatory regime of complete separation of property. (Art.103,par.3, FC., Art.130, par.3, FC.) o Sufficient Causes for judicial Separation of Property Petitioners spouse has been sentenced to a penalty which carries with it civil interdiction Petitioners spouse has been declared an absentee Loss of parental authority of petitioners spouse has been decreed by the court Abandonment by petitioners failure to comply with family obligations Spouse granted the power of administration in marriage settlement has abused that power At the time of petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable o Property Regime of Unions without Marriages Two Classes of Unions without marriage 1. Art. 147when a man and woman who are capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage; 2. Art. 148when a man and a woman who are not capacitated to marry each other live exclusively as husband and wife without the benefit of marriage or under a void marriage. Art. 147 Requisites for application: 1. there must be a man and woman who are capacitated to marry each other and who are living together exclusively with each other as husband and wife but they are not married or the marriage is void from the beginning 2. during the cohabitation, properties should have been acquired by either or both of them through their work or industry or their wages and salaries; 3. the relationship between the man and woman should not be adulterous or bigamous Governing rule: Rules on Co-ownership
Presumption on equal sharesa party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consist in the care and maintenance of the family and the household.
Alienation or encumbrance by one spousecan not be done without the consent of the other spouse if the alienation or encumbrance is done during the cohabitation
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Distribution and forfeiture of the shareswhen only one of the parties to a void marriage is in good faith, the share of the party in bad faith shall be forfeited in favor of the following persons in the following order: 1. common children; or 2. surviving descendants; or 3. innocent spouse the forfeiture shall take place upon the termination of the cohabitation Art. 148 Governing rules 1. only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned in common in proportion to their respective contributions; 2. there is a prima facie presumption of equality of shares if there is no proof of actual joint contribution; 3. if one spouse is validly married to another, his or her share in the co-ownership shall accrue to the Absolute Community or Conjugal Partnership of Gains existing in such valid marriage; 4. if the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in accordance with the same rule above-stated.
Rules 1 and 2 are applicable to joint deposits of money and evidence of credits The rules on forfeiture applies even if both parties are in bad faith Proof of joint actual contribution must be proven as the actual joint contribution of one party is his or her actual share in the partnership or co-ownership If this is not proven, the presumption of law is that whatever is acquired is equally shared by the spouses/ parties o Distinction: Art. 147 vs. Art. 148 Basis Art. 147 Art. 148 As to governing rules The Rule on simple co- There must be proof of Actual ownership automatically applies joint Contribution before the rules on co-ownership applies As to the application of the The law presumes that the shares If there is no proof of actual joint presumption of equal shares are equal if there is no proof of contribution, no presumption of actual joint contribution equal shares will arise as there will be no entitlement to the proertyall would inure to the ACP or CPG of the existing marriage III. THE FAMILY A. Familya natural and social institution founded on the conjugal union, binding together the individuals composing it for the common accomplishment of the individual and spiritual ends of life, under the authority of the original ascendants who heads it. Coverage of Family Relations 1. between husband and wife; 2. between parents and children; 3. among other ascendants and descendants; and 4. among brothers and sisters whether of the full or half-blood. Rules regarding suits between the same family members o General Rule: no suit between members of the same family shall prosper unless it should appear from a verified complaint of petition that earnest efforts towards a compromise have been made, and the same has failed o Exception: the rule shall not apply to cases which may not be the subject of compromise
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B.
Prohibited compromises: Civil status of persons; Validity of marriage or legal separation; Any ground for legal separation; Future support; Jurisdiction of courts Future legitime Family homethe dwelling house where the husband and wife or unmarried head of the family and their family reside and the land on which it is situated Who can constitute 1. the husband and wifethe family home becomes part of the ACP or CPG 2. unmarried head of the family o
When is it deemed constitutedfrom the time it is occupied as family residence and continues to be such from the time of its constitution and so long as any of its beneficiaries actually reside therein Beneficiaries 1. the husband and wife or the unmarried head of the family; 2. their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate who are living in the family home and who depend upon the head of the family for legal support
Benefitsthe family home shall be exempt from: 1. execution 2. attachment, and 3. forced sale
(Guerrero v. RTC) H and W purchased a house and lot in 1995. However in 1990 a case for quasi-delict was filed against the spouses. In 2001a judgment holding the spouses liable to pay the amount of P100,000 for the damages suffered by the victim was rendered. The victim filed for a writ of execution over the house and lot of the spouses. Is the action of the victim tenable? ANS. Yes, the action of the victim is tenable and the sheriff can levy on the family home and subject the same for execution sale as the family home is not exempt from the execution due to the judgment debt although the judgment became final onbly in 2001 as the debt was actually incurred prior to the constitution of the family home of more specifically, it was contracted in 1990.
When is the family home liable (Exceptions to the exemption/ benefits) non-payment of taxes debts incurred prior to the constitution of the family home debts secured on mortgages on the premises before or after such constitution if a mortgage was contracted after the constitution of the family home, it is deemed that the benefits were waived by those constituting the family home 4. debts due to laborers, mechanics or architects, builders, material men and others who have renders service or furnished material for the construction of the building; 5. it its actual value at the time of constitution exceeds P300,000 in urban areas or P200,000 in rural areas or such amounts as may be fixed by law Urban areasincludes chartered cities and municipalities whose annual income at least equals that legally required for chartered cities In execution sale, no bid below the allowed value of the family home shall be considered 1. 2. 3.
Effect of death of those who constituted the family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten (10) years or for as long as there is a minor beneficiary and the heirs cannot partition the same unless the court finds compelling reasons therefore. IV. PATERNITY AND FILIATION A. Definitions:
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Paternity and Filiations- is the relationship between the parent and the child. It is created by nature, or by imitation of nature in case of adoption. It is either illegitimate or illegitimate. Paternity- is the civil status of the father with regard to the child Maternity- is the civil status of the mother with regard to the child Filiation- is the civil status of a child with regard to the parents B. Kinds of Filiation 1. naturallegitimate,and illegitimate 2. artificialadoption C. Kinds/ Status of Child 1. Legitimate children o Who are legitimate children 1. children conceived or born during a valid marriage (Article 64) 2. conceived as a result of artificial insemination Requisites: i. both spouses authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child ii. the instrument shall be recorded in the civil registry together with the birth certificate of the child 3. children born of a voidable marriage before decree of annulment 4. children conceived or born before judgment of absolute nullity under Art. 36 (psychological incapacity) becomes final & executory 5. conceived or born of a subsequent marriage under Art. 53 (failure to record the judgment, partition and distribution of properties, and delivery of childrens presumptive legitime) 6. legally adopted o Action to Impugn Legitimacy Grounds 1. It was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: a. Physical incapacity of the husband to have sexual intercourse with his wife b. The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible, or c. Serious illness of the husband which absolutely prevented intercourse 2. If its proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the case of children conceived through artificial insemination 3. In case of children conceived through artificial insemination, when the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence
Who May File: General Rule: Only the husband can impugn the legitimacy of a child Exceptions: The heirs of the husband may impugn the childs
filiation in the following cases: a. If the husband dies before the expiration of period for filing the action b. If the husband dies after filing without desisting c. If the child was born after the death of the husband Within What Period 1. If the husband (or his heirs, in proper cases) resides in the SAME city or municipality: within 1 year from knowledge of the birth OR its recording in the civil register 2. If the husband (or his heirs) does not reside in the city or municipality where the childs birth took place or was recorded but his residence is IN THE PHILIPPINES: within 2 years
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3. If the childs birth took place or was recorded in the Philippines while the husband has his residence abroad, or vice-versa: within 3 years The period shall be counted from the knowledge of the childs birth or its recording in the civil register. However, if the childs birth was concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the act of registration of said birth, whichever is earlier. o Action to Claim Legitimacy The child can bring the action during his lifetime If the child dies after reaching majority without filing an action, his heirs can longer file the action after death If the child dies during minority in the state of insanity, his heirs can file the action for him within 5 years form the childs death If the child dies after commencing the action, the action will survive and his heirs will substitute for him If the child is a minor, incapacitated or insane, his guardian can bring the action in his behalf o Proof of Legitimacy General Rule: Filiation of legitimate (or illegitimate) children is established by any of the following: 1. The record of birth appearing in the civil register or a final judgment; or 2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument and signed by the parent concerned Exception: (Para. 2, Art.172) In the absence of these evidences, the legitimate filiation may be proved by: 3. Open and continuous possession of the status of a legitimate (or illegitimate) child 4. Any other evidence allowed by the Rules of Court and special laws For illegitimate children when the action is based on the para. 2 of Art. 172, the action may be brought ONLY during the lifetime of the alleged parent. o (Gerardo Conception vs CA) A child born inside a valid marriage is legitimate. Hence a child born inside a bigamous marriage which is void is the child of the first marriage which has not been nullified or annulled. An agreement by parties as to the status of a child is void. Only the law determines legitimacy or illegitimacy. Thus, an admission in pleadings by the wife and his second husband that the child is their legitimate son cannot stand in the face of proof that the first valid marriage of the wife was not annulled or nullified and hence the child is the legitimate child in the eyes of the law of the first husband. Any declaration of the mother that her child is illegitimate has no probative value. 2. Illegitimate Children o Who are illegitimate children: 1. children born of couples who are not legally married or of common-law marriages 2. children born of incestuous marriages 3. children born of bigamous marriages 4. children born of adulterous relations between the parents 5. children born of marriages which are void for reasons of public policy under Art. 38 6. children born of couples below 18 years, whether married or not 7. children of other void marriages under Art. 35 (1-5) o Voluntary Recognition of Illegitimate Children: Cabatania vs. Court of Appeals 441 SCRA 96 (2004) A certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of said certificate. The local civil registrar has no authority to record the paternity of an illegitimate child on the information of a third person. While a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the d ate specified but not the veracity of the entries with respect to the childs paternity.
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Thus, certificates issued by the local civil registrar and baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same. The fact that Florencias husband is living and there is a valid subsisting marriage between them gives rise to the presumption that a child born within marriage is legitimate even though mother may have declared against legitimacy. Presumption of legitimacy doesnt flow out of a declaration in statute but is based on broad principles of natural justice. (Eceta vs. Eceta 428 SCRA 204 (2004) The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. o DNA Test: Probative Value in Paternity Cases (Arnel Agustin v CA G.R. No. 162571, June 5, 2005 ) DNA Testing is a valid means of determining paternity. It is not against the Constitutional right against self-incrimination nor against the right to privacy. (Rosendo Herrera v Alba G.R. No. 148220 June 15, 2005) Trial Courts should require at least 99.9% as the minimum value of DNA Test Result on Probability of Paternity prior to a paternity inclusion. This rebuttable presumption of paternity is subject to the Vallejo Test People v. Vallejo G.R. No. 144656, May 9, 2002 Vallejo Test: Factors to consider as to probative value of DNA evidence: a. how samples were collected b. how they were handled c. possibility of contamination of samples d. procedures followed in analyzing the samples e. whether the proper standards and procedures were followed in conducting the test f. qualification of analyst who conducted the test o Rights Of Legitimate And Illegitimate Children Surname LEGITIMATE Use of father mothers surname ILLEGITIMATE
Legitimes
Support
Action for illegitimacy
claim
for
legitimacy
and Use of mothers surname NOTE: RA 9255 amended Art.176 of FC as of March 19, 2004 can use fathers surname Entitled to legitime and Entitled only to of other successional rights legitime of legitimate granted to them by the child NCC Entitled to receive Receive support support from parents, according to the provision ascendants, and in proper of the FC cases, brothers and sisters under Art.174 or His/her whole lifetime His/her whole lifetime regardless of type of regardless of type of proofs provided under proofs provided under Art.172 Art.172 para. 1 ONLY lifetime of alleged parent for Art.172
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para. 2
Transmissible to heirs under Art.173?
Yes
No
Right to inherit ab intesto
Yes
No right to inherit ab intesto from legitimate children and relative of father and mother under Art.992 of
3. Legitimated Children o Children who, because of the subsequent marriage of the parents to each other are by legal fiction considered legitimate o Legitimationa remedy by means of which those who in fact were not born in wedlock and should therefore be considered illegitimate, are by fiction considered legitimate, it being supposed that they were born when their parents were already married. Requisites For Application: 1. The child was conceived and born outside of wedlock; 2. The parents, at the time of childs conception, were not disqualified by any impediment to marry each other 3. There is a valid marriage subsequent to the childs birth Effect of legitimation: 1. Confers on the child the rights of legitimate children 2. Retroacts to the time of the childs birth may be impugned only by those who are prejudiced in their rights within 5 years from the time the cause of action accrues (death of parents of legitimated child) 4. Adopted children o Adoptionthe Juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation Who May Adopt and their qualifications: a. Filipino citizen 1. of legal age 2. in possession of full civil capacity and legal rights 3. of good moral character 4. has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, 5. At least 16 years older than the person to be adopted, unless: The adopter is the natural parent of the child to be adopted, or The adopter is the spouse of the legitimate parent of the person to be adopted 6. In possession of full civil capacity and legal rights 7. In a position to support and care for his legitimate and illegitimate children, in keeping with the means of the family b. Alien 1. possessing the same qualifications as above stated for Filipino nationals 2. his/her country has diplomatic relations with the Philippines 3. certified by his/ her diplomatic or consular office or any appropriate government agency that he/ she has the legal capacity to adopt in his or her country 4. he/she has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered EXCEPT when:
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i. a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or ii. one who seeks to adopt the legitimate child of his/her Filipino spouse; or iii. one who is married to a Filipino citizen and seeks to adopt jointly with his/her within the 4th degree of consanguinity or affinity of the Filipino spouse; c. Guardian - with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities Who May Be Adopted a. Any person below 18 years of age who has been administratively or judicially declared available for adoption; b. Legitimate son/daughter of one spouse by the other spouse; c. Illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; d. Person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter as his/her own child since minority; e. Child whose adoption has been previously rescinded; or f. Child whose biological or adoptive parents have died provided that no proceedings shall be initiated within 6 months from the time of death of said parents. Effects Of Adoption: a. Severance of all legal ties between the biological parents and the adoptee and the same shall then be vested on the adopters EXCEPT in cases where the biological parent is the spouse of the adopter b. Deemed a legitimate child of the adopter c. Acquired reciprocal rights and obligations arising from parent-child relationship d. Right to use surname of the adopter e. In legal and intestate succession, the adopters and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. Recission of Adoption Granted only to the adoptee and not to the adopter The adopters may disinherit the adoptee for causes provided in Art. 919 of the NCC Grounds for Recission 1. Repeated physical and verbal maltreatment by the adopters despite having undergone counseling 2. Attempt on the life of the adoptee 3. Sexual assault or violence 4. Abandonment and failure to comply with parental obligations. V. SUPPORT A. What is included everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. B. Kinds of support As to amount: Natural (bare necessities of life)
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Civil (in accordance with financial standing) As to source of obligations: Legal (from provision of law) Voluntary (from agreement or from provision of a will) Special kind alimony pendente lite
C. Who are liable to give and entitled to support The following are obliged to support each other 1. The spouses 2. Legitimate ascendants and descendants 3. Parents and their legitimate children and the legitimate and illegitimate children of the latter 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter 5. Legitimate brothers and sisters, whether of full or half-blood 6. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimants fault or negligence.
D. Actual Need v. Capacity to Pay

The amount of support shall be in proportion to the resources or means of the giver (capacity to pay) and to the necessities (actual need) of the recepient. E. When Demandable and when paid The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first 5 days of each corresponding month, or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. Money or property obtained as support shall be exempt form levy and attachment (Art 205)
F. Sources of support
1. for the legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related- the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership.(Art 197) 2. Support from others a. From stranger When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have the right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. b. From a third person When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. c. Contractual support or Support in a Will In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties.
G. Option in giving support the person obliged to give support shall have the option to fulfill the obligation either:
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1. by paying the allowance fixed, or 2. by receiving and maintaining in the family dwelling the person who has a right to receive support-- cannot be availed of in case there is a moral or legal obstacle thereto. H. Order of support Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: 1. The spouse 2. The descendants in the nearest degree 3. The ascendants in the nearest degree 4. The brothers and sisters VI. PARENTAL AUTHORITY AND CUSTODY Parental Authority (Patria Potestas) the sum of rights and obligations which parents have in relation to the person and property of their children, until their majority age or emancipation, and under certain circumstances.
A.
B.
Characteristic of Parental Authority 1. It is a natural right and duty of the parents (Art. 209) 2. It cannot be renounced, transferred or waived, except in cases authorized by law (Art 210) Exceptions - Waivable in the following cases: When there is guardianship approved by the court When there is adoption approved by the court When there is emancipation by concession When there is a surrender of the child to an orphanage 3. It is jointly exercised by the father and the mother (Art. 211) 4. It is purely personal and cannot be exercised through agents C. Rules as to the Exercise of Parental Authority 1. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary (Art.211) 2. If the child is illegitimate, parental authority is with the mother even if child was subsequently recognized by the father. 3. In case of absence or death of either parent, the present/surviving parent shall exercise parental authority over the child, notwithstanding the subsequent remarriage of the former 4. In case of annulment of marriage and legal separation, both parents still shall exercise parental authority over the child. However, in case of custody of the child the following must be observed: i. if the child is above 7 years old, his choice must be of paramount consideration, unless the parent chosen is unfit ii. if the child is below 7 years old, custody must be awarded to the mother, unless unfit D. Substitute Parental Authority In case of death, absence or unsuitability of both parents, the surviving grandparent shall exercise substitute parental authority Order of Preference of Substitute Parental Authority -- In default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: 1. The surviving grandparent: in case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned under Art. 213, shall exercise the authority. 2. The oldest brother or sister, over 21 years of age, unless unfit or disqualified. 3. The childs actual custodian, over 21 years of age, unless unfit or disqualified. E. Duties of Children Children shall always: 1. observe respect and reverence towards their parents and; 2. are obliged to obey them as long as the children are under parental authority.
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F. Filial Privilege Rule No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. Under the Rules on Evidence: No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Rule 130, sec. 25). Thereupon, should a conflict arise between this provision and civil code provision, the latter prevails, since a procedural rule cannot impair substantive law. G. Special Parental Authority Exercised by: the minor children must be under their supervision, instruction and custody of 1. school 2. administrators 3. teachers 4. individual, entity, or institution engaged in child care When applicable-- Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. Liabilities of those execising special parental authority 1. They are principally and solidarily liable for damages caused by the acts or missions of the child while under their supervision, instruction or custody. HOWEVER, this liability is subject to the defense that the person exercising parental authority exercised proper diligence. 2. The parents and judicial guardians of the minor or those exercising substitute parental authority over the minor are subsidiarily liable for said acts and omissions of the minor. o The above rules apply only if the tortfesor is a minor not when he/she is of legal age. o If tortfesor is a person of legal age the basis of the action must be breach of contract and/or quasi-delict for failure of the above persons and entities exercising special parental authority to provide adequate protection over the student. Liability of parents for torts committed by their minor children o Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their minor PROVIDED the children are living in their company and under their parental authority -- This is subject to the appropriate defenses provided by law : Observed due diligence in the supervision of their child
H. Effect of Parental Authority over the property of the minor child 1. The father and mother shall jointly exercise legal guardianship over the property of the minor child without court appointment 2. In case of disagreement, the fathers decision shall prevail, unless there is judicial order to the contrary 3. If the market value of the property or the annual income of the child exceeds P50,000, the parent is required to furnish a bond of not less than 10% of the value of the childs property or income I. Grounds for the permanent termination of parental authority 1. Death of parents 2. Death of child 3. Emancipation of child 4. Parents exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse (Jocelyn Pablo Gualberto vs. Crisanto Rafaelito Gualberto G.R. No. 154994 June 28, 2005 ) Lesbianism is not compelling reason to deprive the mother of a child below seven years of age. To deprive the wife custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care.
J.
When Parental Authority may be Revived

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1. 2. 3. 4. 5.
Adoption of child Appointment of general guardian Judicial declaration of abandonment Final judgment divesting parental authority Judicial declaration of absence or incapacity or person exercising parental authority
K. Grounds for Suspension of Parental Authority 1. Conviction of parent for crime with accessory penalty of civil interdiction 2. Treats child with excessive harassment and cruelty 3. Gives corrupting orders, counsel or example 4. Compels child to beg 5. Subjects to or allows acts of lasciviousness The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefore has ceased and will not be repeated VII. EMANCIPATION AND AGE OF MAJORITY A. R.A. 6809 Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exception established by existing laws in special cases. Contracting marriage shall required parental consent until the age of 21. Emancipation takes place by attainment of majority. Unless otherwise provided, majority commences at the age of 18 years. B. Effects terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. VIII. SURNAMES A. Rules on the Use of Surnames Legitimate and legitimated children shall principally use the surname of the father. An adopted child shall bear the surname of the adopter. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Natural children by legal fiction shall principally employ the surname of the father. Illegitimate children referred to in article 287 shall bear the surname of the mother. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. B. Surnames of a married woman A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs." In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. A widow may use the deceased husband's surname as though he were still living, in accordance with article 370. C. Rules in case of Identity of Names and Surnames In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.
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In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, or (2) Add the Roman numerals II, III, and so on. D. Other rules regarding Surnames No person can change his name or surname without judicial authority.
E. Usurpation of a name and surname may be the subject of an action for damages and other
relief. (A. 377 in rel to CA 142) 4. The unauthorized or unlawful use of another person's surname gives a right of action to the latter. A. 378 5. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped. A. 379 6. Except as provided in the preceding article, no person shall use different names and surnames. A. 380
IX.
ABSENCE A. Definition--a special legal status of one who is not in his domicile, his whereabouts being unknown, and it is uncertain whether he is dead or alive. B. Distinction: Ordinary and Qualified Absence EXTRAORDINARY/ QUALIFIED ABSENCE For all purposes including those of opening succession, a period of 4 years and for purposes of remarriage of the spouse present, a period of 2 years is sufficient under the following circumstances: 1. Person on board a vessel lost during a sea voyage or an aeroplane which is missing; period is counted from the loss of the vessel or aeroplane. 1. Person in the armed forces who has taken part in war 2. Person in danger of death under other circumstances and his existence has not been known
ORDINARY ABSENCE 7 YEARS, person presumed dead for all purposes except for those of opening succession 10 YEARS, person presumed dead for purposes of opening succession except if he disappeared after the age of 75, in which case, a period of 5 years is sufficient. 4 YEARS, person presumed dead for purposes of remarriage of the spouse present.
C. Stages of Absence 1. Provisional/Temporary 2. Normal/Declared 3. Definite Absence or Presumptive Death D. Provisional Absence When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property Remedies: 1. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. 2. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. 3. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. Who May Be Appointed Provisional Representative:
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1. the spouse present shall be preferred when there is no legal separation. 2. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. E. Declared Absence Period 1. Two years having elapsed without any news about the absentee or since the receipt of the last news, and 2. five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. Who May File 1. The spouse present; 2. The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who may succeed by the law of intestacy; 4. Those who may have over the property of the absentee some right subordinated to the condition of his death. Effectivity Date The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. Appointment and Powers of Administrator o An administrator of the absentee's property shall be appointed in accordance with article 383 o The wife who is appointed as an administratrix of the husband's property cannot alienate or encumber the husband's property, or that of the conjugal partnership, without judicial authority Termination of Administration
1. When the absentee appears personally or by means of an agent; 2. When the death of the absentee is proved and his testate or intestate heirs appear; 3. When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. o In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. (190) Contingent Rights of the Absentee o Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. o Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. o The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. o Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. Periods when to declare a person presumptively dead
F. Presumptive Death:
1. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. 2. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years.
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3. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Who can be presumed dead The following shall be presumed dead for all purposes, including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years. Recovery of Property by Absentee o If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. It is because succession has not really taken place. The fruits or rents are not to be returned due to presumption of good faith in favor of the possessor.

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A. Civil Code: Saint Louis University-College of Law Civil-Persons & Family Relations Reviewer

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SAINT LOUIS UNIVERSITY- COLLEGE OF LAW Civil-persons & family relations reviewer

I. Ways on How Laws lose their effectivity

b. c. Injury-- the legal wrong to be redressed d.

Obligation a legal and/or moral duty

Elements of the Principle of Abuse of Rights:

Requisites of accion in rem verso:

Requisites of Solutio Indebiti:

H. Respect for Personality and Dignity of Others

Civil action not barred by acquittal: Art. 29:

o Instances when the law grants independent civil action:

a. No. It is an established principle that the negligence of the employee

o (Ramos v. CA, 29 December 1999)ER was scheduled to undergo a cholecystectomy

B. THE FAMILY CODE

A marriage solemnized by a judge outside his territorial jurisdiction is

Void Ab Initio Marriages Void and Voidable Marriage

Void marriages Void from the time of its celebration

Voidable marriages Valid until annulled by a competent court

As toSusceptibility of Ratification As to Effect on property As to Effect on children

INSANITY (Art 45 (2))

Ground Lack of parental consent

Persons who may sue

Fraud Force, intimidation or undue influence Impotence or STD

- Marriage is defective from the beginning

Grounds (Art. 55)

FORMALITIES EXTENT LIMITATION ACCEPTANCE GROUNDS REVOCATION

UPON DISSOLUTION METHOD OF LIQUIDATION

Action for illegitimacy

Transmissible to heirs under Art.173?

Right to inherit ab intesto

D. Actual Need v. Capacity to Pay

When Parental Authority may be Revived

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