Persons and Family Relations Reviewer (Chan)

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2) Administrative Rules and Regulations

Civil Code
Exceptions:
Preliminary Title
a) Purely internal regulations
Chapter 1- Effect and Application of Laws b) Interpretative
Article 1
3) Monetary Board Circulars- even though
A code is a collection of laws of the same kind. they are just circulars, they amount to
First civil code was Civil Code of Spain in 1889. subordinate legislation because they
In RA No. 386, the Civil Code was enacted on affect third parties (People v Que Po Lay).
June 18, 1949. Civil Code was effective August 4) Municipal ordinances- although Article 2
30, 1950, one year after the release of the Code does not govern these. The rule is that
for circulation, not publication. ordinances will be effective 10 days after
the posting of such ordinances in one
Article 2
conspicuous place in the municipal hall,
If the law is silent, effectivity is after 15 days and in two conspicuous areas within the
following the completion of the publication. This locality.
is on the 16th day. If the law says 15 days 5) Supreme Court decisions are not required.
following the completion of the publication, Lawyers are presumed to be updated (De
then it is on the 15th day. Roy v CA).
In Askay v Cosalan, it was said that publication Article 3

was only needed when the law is silent about its
There is a conclusive presumption that everyone
effectivity. However, in Tanada v Tuvera, it was
is aware of the laws. Actual notice is not
uniformly stated by the Supreme Court that
necessary, otherwise, evasion of the law will
publication is a necessity for all laws, save for
render all laws nugatory.
those that are purely internal in nature. The
proviso unless otherwise provided refers only In Marbella-Bobis v Bobis, the accused was
to the date to be counted after the publication. To prosecuted of bigamy, and ignorance of Article
clarify, although the date may be shortened, it has 40 of the Family Code was not allowed as an
to be not unreasonable, according to the case of excuse.
Tanada. If a law says that it will be effective upon
approval, then it means that it will be effective Laws refer to mandatory and prohibitive laws
after publication, in the concurring opinion of (Consunji v CA). Permissive laws will not punish
Justice Feliciano. ignorance. These also refer to local laws, not
foreign laws. Not even the judiciary is required
Newspaper of General Circulation: notice of foreign laws. This is called the doctrine
of processual presumption.
1) Dissemination of local news or
information Ignorance of fact can be an excuse. Also, difficult
2) Bona fide subscription list of paying questions of law may allow someone to be
subscribers ignorant (Article 526). A lawyer cannot be
3) Published at regular intervals disbarred for an honest mistake or error of law.
It does not have to have the largest circulation. To Article 4
be included in the publication requirement are:
Laws shall have prospective effect unless
1) Presidential Decrees and Executive otherwise provided.
Orders
Persons and Family Relations Notes John Psalmuel Velarde Chan

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Since the law has yet to be made known to people Law that commands what it permits should be
of the past, there is no logical reason to impose it tolerated or respected- permissive or directory
upon them. Lex prospiscit, non respicit.
Exceptions:
Exceptions:
1) When the law authorizes the validity
1) If the law provides for it 2) When the law makes the act valid, but
2) Penal laws favorable to the accused, punishes the violator
provided he is not a habitual delinquent 3) Law makes the act voidable
3) Law is procedural 4) Law makes the act voidable, but
4) Law is curative recognizes the legal effects
5) Law creates new substantive rights
Article 6
Exceptions to the exception in Number 1:
Elements of a right:
1) Ex post facto law
1) Subject- persons
a) Refers to criminal matters
a) Active subject- one entitled to
b) Be retroactive in its application
demand its enforcement
c) Prejudicial to the accused
2) When the retroactive law will result to b) Passive subject- duty-bound to suffer
the impairment of the obligation of the enforcement
2) Object- things or services
contracts (Section 10 of Article 3 of the
1987 Constitution) 3) Efficient cause- fact that gives rise to the
legal relation
However, police power of the state can
necessarily impair obligations of contracts, if 3 Kinds of Civil Rights
necessary for the sake of public policy. This 1) Rights of personality
provision of police power is presumed to be 2) Family Rights
included in every contract. 3) Patrimonial Rights
a) Real right- power over a specific
With regard to procedural laws, the general rule
thing, without a passive subject
is that no vested right is attached nor may arise
against whom such right may be
from them.
exercised; it is enforceable against
Curative laws, by themselves, are retroactive. the whole world.
Exceptions are: b) Personal right- power to demand
from another, as a definite passive
a) Violation of constitutional provisions
subject, the fulfilment of a prestation
b) Destruction of vested rights of third
(if compliance is impossible, at least
persons the nearest attempt is required), to do
c) Affect judgements that have become or not to do.
final
Only number 3 is subject to waiver. Requisites:
Laws creating substantive rights can be
retroactive, provided they do not come into 1) He must have the right
conflict with existing substantive right. 2) He must have the capacity to make such
renunciation
Article 5 3) Renunciation should be clear and
Law that prohibits an act- prohibitory unequivocal
Law that mandates an act- mandatory

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Article 7 1) When a law expressly repeals the

repealing law, the first law will not be
2 ways to repeal laws: Express or Implied. A
revived unless expressly stated.
general statement like a repealing clause in every
2) When a law impliedly repeals the
law is an unnecessary codification of an implied
repealing law, the first law is revived,
repeal. In implied repeal, if we can harmonize, the unless otherwise prevented.
laws will not be deemed inconsistent. There
should be an unavoidable and irreconcilable We follow the operative fact doctrine when a law
inconsistency. is declared unconstitutional, as applied in De
Agbayani v PNB.
Interpretare et concordare lequibus est optimus
interpretendi- every law must be interpreted and Article 8
brought into accord with others as one system of
jurisprudence. Doubts shall be taken against Judicial decisions are not laws. In Floresca v
Philex Minig Corporation, Supreme Court said
implied repeal. Requisites:
that judicial decisions by the Supreme Court
1) Laws cover same subject matter become part of the law as of the date of its
2) The latter is repugnant to the earlier (Lex enactment. Only Supreme Court decisions may
posteriori derogat priori) form part of the legal system (Miranda v
Imperial), except those cases of first impression
When a special law comes after a general law, the
decided by the Court of Appeals which are not
special law cannot repeal the general law but
appealed to the Supreme Court.
instead becomes the exception.
Judicial decisions shall be prospective (Co v CA,
If the general law comes after the special law, the
People v Jabinal).
general law may not repeal the special law.
(Generalia specialibus non derogat) Article 9
Exceptions: This is inapplicable to criminal cases, which
applies nullum crimen, nullum poena sine lege.
1) There is an express declaration
2) There is clear, necessary and However, in civil cases, the court can resort to the
irreconcilable conflict custom of the place, or in default thereof,
3) The subsequent general law covers the generally accepted principles of law and justice.
whole subject and is clearly intended to
Article 10
replace the special law on the matter.
Dura lex sed lex- in cases of doubt, the
In Laguna Lake Development Authority v CA,
presumption of right and justice will prevail.
RA 4850 granted the LLDA the authority to use
What the laws grant, the law cannot deny (Go v
of all surface water for any projects in or affecting
Anti-Chinese League of the Philippines).
the region, including navigation, construction,
and operation of fish pens, fish enclosures, fish The resort to equity should only be done in the
corrals and the like. RA 7160, otherwise known absence of, not against, statutory law or judicial
as the Local Government Code, granted rules of procedure. In Article 9, equity may be
municipalities the authority to grant fishery applied.
privileges in municipal waters. RA 7160 cannot
be deemed to have repealed EO 927, because the Article 11 and 12
latter is a special law. According to the Supreme Court in In Re
Repeal of Repealing Laws: Authority to Use the Firm Name Ozaeta, Customs
are rules of conduct:

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1) Based on the repetition of acts policy, among others, shall not be rendered
2) Uniformly observed as a social rule ineffective by laws or judgements promulgated,
3) Legally binding and obligatory or by determinations or conventions agreed upon
in a foreign country.
Requisites in application of customs:
In Van Dorn v Romillio, Alice Reyes was
1) Plurality of acts
divorced by Richard Upton in Nevada. After the
2) Uniformity or identity of acts
divorce, Van Dorn wanted to have control over
3) General practice by great mass of the the conjugal assets because following Article 15
social group and his family law, he no longer is the spouse.
4) Continued performance for a long time
5) General conviction believing that it is In Pilapil v Ibay-Somera, Erich Geiling divorced
obligatory Pilapil in Germany. When Pilapil entered a
6) Not contrary to law, morals or public subsequent marriage, Geiling filed an action for
order adultery. Supreme Court did not agree because
according to his national law, he is already single
Note that customs are not subject to judicial
and is thus unable to have legal standing to sue
notice.
the previous spouse for adultery.
Article 13
Article 26 of the Family Code allows partial
Computing period, first day is excluded and last divorce.
day included. The last day may be suspended if In Insular Government v Frank, Frank entered a
that is a holiday or a Sunday, except in contracts.
contract with the Philippine Government as a
If in a court proceeding, Saturdays, Sundays and stenographer for 2 years. He only worked for 6
Holidays will not count as last days. months and went back to the US. He invoked
minority in the Philippines, but when we look at
Article 14 the place where the contract was celebrated, it
Penal laws are subject to all who live or sojourn was in Illinois, where he was perfectly
in the country. This is the generality principle. capacitated to enter into contracts.
Exceptions to the general application of penal Note that here, the legal capacity of a person is
laws: governed by his national law, not where the
contract is celebrated. It just so happened that the
1) Treaty stipulations contract was made in Illinois, and his national law
2) Laws of preferential application was also Illinois, granting him capacity anyway.
3) Principles of Public International Law If the contract was in the Philippines, ceteris
paribus, the Court might have acknowledged his
Article 15
defense as a minor.
Family rights and duties are binding upon citizens
Article 16
of the Philippines, even though living abroad.
Divorce obtained abroad is void due to Article 15 Lex rei sitae- real property is subjected to the law
and 17. of the country where they are placed.
In Tenchavez v Escano, Supreme Court said that The exceptions are:
Article 15 governs their family rights and duties.
And even if the laws do not explicitly disallow 1) Intestate succession
divorce, the recognition of such is against Article 2) Testate succession
17, which states that laws concerning public

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Included in the application of national law to legitimes. The Court chose not to apply the
these successions: internal law of California because those are for
citizens domiciled in the place.
1) Order of succession
2) The amount of successional rights Renvoi is also known as international football.
3) Intrinsic validity of the provisions of the Note that the formalities of the execution of the
will will shall be governed by lex loci celebrationis.
4) Capacity of the heir to succeed
Article 17
In the Testate Estate of Bohanan v Bohanan,
Formalities or extrinsic validity is to be governed
Bohanan, a Nebraskan who had properties in
by the place where the contract was executed.
California, who had residence in the Philippine
but had selected his hometown as his permanent Intrinsic validity of contracts is governed by lex
domicile, wrote a will giving most of his estate to contractus, either the place voluntarily agreed
upon (lex voluntatis), or the law of the place they
his grandson, brother and sister, leaving only a
small amount for his children and spouse. The intended expressly or impliedly (lex loci
intentionis). With regard to wills, intrinsic
surviving wife and surviving children asserted
validity is governed by national law.
Philippine law, where a huge amount of the estate
will be given to the legitimes. Supreme Court Article 18
followed the national law of Bohanan, which
allowed disposal of estate based solely on wills. Civil Code will have suppletory character to Code
of Commerce and other special laws. If there is
Bellis had some properties in both Texas and no deficiency, then it will not apply.
Manila. He wrote two wills, one for his Texas
property and one for his Philippine property. Both Chapter 2- Human Relations
excluded any succession rights for his illegitimate Article 19-21
children. Supreme Court ruled in favor of Bellis,
because he was a Texan, which means that both Damnun absque injuria means that a lawful
the wills are governed by his national law. The exercise of ones right that causes harm to another
argument that the Philippine will shall be is not actionable for damages. The limit is when
governed by Philippine law is false (Bellis v there is an abuse of the lawful exercise of rights.
Bellis).
Qui jure utitur nullum damnum facit- one who
In the Matter of the Testate Estate of the makes use of his own right does not make injury
Deceased Edward Christensen is an example of a (Pro Line Sports v CA).
case which applied the renvoi doctrine.
Volenti non fit injuria, there is no injury to a
Christensen was born in New York, migrated to
voluntary victim.
and California for 9 years, before becoming a
domiciliary of the Philippines until death. He was Article 19 is created to govern moral wrongs
Californian citizen, and his will acknowledge which statutes cannot simply predict all the time.
Maria Lucy, his natural daughter, as his only heir. The principle of abuse of rights allows a more
Helen Lucy, his acknowledged daughter, pleaded harmonized relationship with others, because no
to have a share to the estate. The Supreme Court one can just invoke the lawful exercise of his
referred to the national law of Christensen, only rights.
to know that the private international law of
California dictated that the law of the domicile Elements of abuse of right:
shall govern testate successions. Hence, based on 1) Legal right or duty
renvoi, Philippine laws apply, where 2) Exercised in bad faith
acknowledged daughters have to be given

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3) Sole purpose is to prejudice another 1) There is already an acquittal in a suit

brought by the defendant as the previous
Article 20 provides for the possibility of claiming
prosecutor
damages when there is a willful or negligent
2) In bringing such suit, there was no
exercise of a right that causes damage to another,
probable cause
contrary to law. Article 21 refers to contra bonus 3) The prosecutor was impelled by legal
mores. Elements are: malice
1) There is an act which is legal Articles 22-23
2) Contrary to morals, good customs, public
order or public policy Accion in rem verso is an action for recovery of
3) Done with intent to injure property acquired by another without just or legal
ground.
Note that Articles 19, 20, 21 punish intentional
acts, and only 20 extends this to negligence. This is different to solution indebtii in Article
2154, which means that if a person is paid more
In Globe Mackay Cable & Radio Corp. v CA,
than what the transaction was worth, there is an
Tobias, an employee of the said corporation, was obligation to return. Elements are 1) payment is
ordered a forced leave, not to communicate with done when there exists no binding relation
his office, leave his table drawers open, and to
between payor, who has no duty to pay, and the
leave the office keys. This was because Tobias
person who received such, and 2) payment was
reported anomaly inside the company, and
made through mistake.
ironically, became the number one suspect. When
he returned, his boss Herbert Hendry, called him In accion in rem verso, mistake of payment is not
a crook and a swindler. He was fired, and when necessary. Requisites are:
he was going to apply to Republic Telephone
1) Defendant has been enriched
Company (RETELCO), Hendry called the
2) Plaintiff has suffered a loss
employer and told the latter not to accept Tobias.
Supreme Court said that these acts constitute an 3) Enrichment is without just or legal
abuse of right, in violation of Articles 19 and 21. ground
4) No other action is possible in contract,
Note that the breach of promise to marry is not quasi-contract, or quasi-delict.
actionable. Congress deliberately removed this
provision from the Code, which was initially Note that even without fault or negligence, when
based from the Heart Balm suits in US. the person benefitted, there is a duty to give civil
indemnity (refer to Article 12, Paragraph 4 of the
Exceptions are:
Revised Penal Code).
1) When there is fraud or deceit (Gashem
Shookat Baksh v CA, Pe v Pe) Articles 24-25
2) Expenses are actually incurred (Wassmer If a person is unable to read, it has to be made sure
v Velez) that he understands every part of the contract he
3) Woman was forcibly abducted or raped is about to enter into.
(Bunag, Jr v CA). The man promised to
marry the woman he raped, only to leave Taking advantage of the limited education of a
her after both filed for a marriage license. farmer with regard to mortgage in lands is an
actionable wrong (Valenzuela v CA).
Elements of malicious prosecution:
Article 26

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The enumeration is not exclusive. Humiliating 1) Private offended party chose to recover
language can be subject to an action based on damages from the civil liability of
Article 26. offender
2) He opted to do so expressly or impliedly
Articles 27-28
with the criminal action
If a person of authority performs an act within the 3) Accused was acquitted based on
authority conferred to him by his office, there is reasonable doubt
no actionable wrong. There should be refusal or 4) Ground for acquittal is inferable from the
neglect. This does not cover malfeasance text.
(wrongful conduct by a public official), There is no need for a separate civil action
misfeasance (lawful act that is injurious), but (Padilla v CA). In the same criminal proceedings,
nonfeasance. Requisites:
the judge may grant relief for damages based on
1) Defendant is a public official charged civil liability, even if guilty of accused not
with the performance of his duties beyond reasonable doubt.
2) Violation of an official duty in favor of
Articles 30-31
an individual
3) Where is willfulness or negligence The civil action is deemed instituted in a criminal
4) There be an injury to an individual proceeding unless the person reserves the right to
institute civil action or is able to institute civil
Article 28 refers to:
action prior to the criminal case. What is deemed
1) Selling using a deceptive packaging instituted in the criminal action is liability based
identical to a competitors on delict.
2) Portraying to be offering the services of
Reservation should be prior to the presentation of
another
evidence by the prosecution. Without a
3) False statements to discredit the goods of
reservation, a civil action will be suspended after
another the institution of the criminal proceedings. What
Article 29 the offended party can do is to consolidate the
proceedings.
Under Article 100 of the RPC, anyone who is
liable for delict is civilly liable. Quasi-delict or culpa aquiliana is a separate legal
institution. It can also be called culpa extra-
General rule is that the acquittal in criminal case contractual if based on negligence.
does not lead to the acquittal in a civil case. The
exception is when the court finds evidence that Articles 32-34
the act or omission that gives rise to any possible
Independent civil actions are based from Articles
civil action is non-existent. 32, 33, 34 and 2176 of the Civil Code.
Instances where civil liability is not extinguished:
Note that violations of the constitutional rights in
1) Acquittal is based on reasonable doubt Article 32 are not dependent on good faith,
2) Where the court expresses that the because to do so would render the Article
liability is not criminal but civil purposeless.
3) Where the civil liability does not arise Article 33 provides a civil action ex delicto, so
from criminal liability that individuals who received damage can redeem
Requisites: themselves without waiting for the criminal
action to prosper.

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In Carandang v Santiago, Supreme Court said 3) Juridical capacity is indivisible,

that the term physical injuries is broad enough to irreducible. Capacity to act does not exist
include attempted, frustrated, and consummated in all people.
homicide. Criminal negligence resulting to any of 4) For the former, existence is enough. For
the crimes above can also lead to an independent the latter, intelligence and volition are
civil action. required.
5) Juridical capacity is only lost through
Articles 35-36 death. Capacity to act may be lost
Prejudicial question is a question arising from a through other means
case, the resolution of which is logical antecedent 6) Juridical capacity may not be limited.
of the issue involved in the said case. It is based Capacity to act is always modified.
on a fact distinct and separate from the crime but
Articles 38-39
so intimately connected. The determination of the
issue will see juris et jure if guilt in a criminal Restriction and modification is different from
case is present. disqualification and prohibition. The latter are
done in the name of morality.
Elements:
Obligations still arise from those who have
1) Previously instituted civil action involves
limited capacity, such as from his acts or property
an issue similarly or intimately connected
relations.
to the issue raised in a criminal action
2) The resolution will determine whether 1) Minority
the criminal action can proceed.
Contracts entered into by minors without aid of
Book One- Persons their parents are either voidable or unenforceable.
If both are incapacitated, contract is
Title 1- Civil Personality
unenforceable. If either parent ratified, the
Chapter 1- General Provisions contract becomes ratified. If only one is
incapacitated, then the contract is voidable,
Article 37 subject to ratification of the guardian.
Person is any being susceptible of rights and If minor passively or constructively
obligations. Personality is the aptitude to be misrepresents his age, he can still annul the
subject of juridical relations. contract after reaching the age of majority.
Juridical personality or juridical capacity is the Prescription time is 4 years. If there is active
fitness to be subject of legal relations. Capacity to misrepresentation, he is estopped.
act is the power to do acts with legal effects. Full 2) Insanity and imbecility
civic capacity means the presence of both.
Contracts they enter into are voidable. However,
Differences: if the lucid interval is present, and such is proven
1) Juridical capacity is static. Capacity to as a matter of fact, then the contract will be valid.
act is dynamic. 3) Deaf-mutism, only if he is unable to write
2) Juridical capacity is the abstract 4) Civil Interdiction
possibility of receiving legal effects,
Capacity to act is the power to give life to Accessory penalty imposed upon those convicted
acts of crimes punishable by reclusion temporal or
higher. It produces such effects:

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a) Deprivation of rights of parental A conceived child is deemed born, but to perfect

authority this provisional personality, it should be:
b) Deprivation of marital authority
1) Deemed born for purposes that are
c) Deprivation of the right to manage his
favorable to it
property
d) Deprivation of the right to dispose of his 2) Must be born later under the conditions
property by any act or any conveyance specified in Article 41
inter vivos. Failure to satisfy requisites means that the child
should be deemed not alive at all.
5) Prodigality
Rights of a conceived child:
Does not per se mean restricted capacity to
act. If the person is placed under guardianship, 1) Support from progenitors, even if said
then he is restricted. child is en ventre de sa mere
2) May receive donations (Article 742)
Chapter 2- Natural Persons 3) It may not be ignored by his parents in
Articles 40-41 their testament.
A person has to be born with the requisites In Quimiguing v Icao, Supreme Court said that a
provided by law to be granted civil personality. conceived child has the right of donation. The
case was remanded back to trial court so parties
However, for purposes favorable to it, the fetus is
given provisional personality. may adduce evidence.
In De Jesus v Syquia, Supreme Court upheld the
In Geluz v CA, Ozcar Lazo, the husband of Nita
Villanueva, seeks to claim damages from the right of the baby for progenitor support, provided
that the factual basis of the acknowledgement of
doctor who induced abortion to her wife. The
the child by his or her father is proved.
baby still do not have provisional capacity to sue
the doctor, or even if it did, it was gone after the Article 42
death as a result of the abortion. Note that
provisional personality requires that the baby be The estate of a deceased has legal personality
born alive. Had the baby survived abortion, it independent of his heirs.
would have been possible for a suit to prosper. Article 43
The parents may institute civil action, if the
damage was done to them. The father may not Rule on survivorship- this applies to those cases
claim damages because of his apparent where there is a question on succession.
indifference to the previous abortions made by his
If the issue is not about succession, the Rules of
wife. However, the inducement made by the
Court shall govern and not Article 43:
doctor can be subject to criminal charges. The
case was furnished to the DOJ and the Board of 1) If both are under 15, the older survived
Medical Examiners for their take. 2) If both are above 60, the younger
survived
If a baby is alive at the time of the completion of
3) If one is under 15 and one above 60, the
the delivery from the mothers womb, he or she
former survived.
is alive. However, this only applies to babies who
4) If both be over 15 and under 60, if sex is
had an intra-uterine life of at least 7 months.
different, the male survived. If sex is the
Absence of which would require being alive 24-
same, the older
hours after being completely delivered.

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5) If one be under 15 or over 60, and the cannot be forbidden to marry on basis of race or
other between those ages, the latter political inclinations.
survived.
It is not a contract within the meaning of the
Chapter 3- Juridical Persons Constitution which prohibits the impairing of
such.
Article 44-47
Marriage cannot be restricted by discriminatory
Personality begins the moment the law creates
policies of private individuals or corporations.
them.
Women cannot be disqualified from labor just
Corporation is a juridical person. It may incur because they contracted marriage (Philippine
obligations and bring civil or criminal action. The Telegraph and Telephone Company v NLRC).
incorporation happens when the Securities and
Article 350 punishes individuals who contract
Exchange Commission issues a certificate of
marriage knowing that there are legal
incorporation.
impediments. Section 37 to 45 of the Marriage
Partnership refers to two or more persons Law (Act. No 3631) penalized erring solemnizing
contributing to a common fund, with the intention officers.
of dividing it to themselves. Oral constitution Mail-order brides are against public policy (RA
may suffice unless 1) real property is contributed, 6965). Punishes recruitment, advertising,
or 2) capital is more than 3,000.
carrying out a business, usage of postal services
Sole proprietorship does not constitute a separate in consideration of above-mentioned offense are
legal personality, unlike the two above. punishable. RA 9208 (Anti-Trafficking of
Women) considers these acts as trafficking.
Article 49-51
Marriage between rapist and victim admits the
Domicile can be attained in three ways: guilt, but extinguishes criminal liability. A rapist
1) Domicile of origin husband, when forgiven, is also absolved of
2) Constructive domicile liability, provided that the marriage is not
3) Domicile of choice declared void ab initio.
A condition for the validity of a civil marriage,
Family Code particularly a subsequent religious marriage after
the civil marriage, cannot be stipulated by parties,
Title I- Marriage because the civil marriage itself is binding to
Chapter 1- Requisites of Marriage them. This may be fraud, but it doesnt fall to the
grounds for annulment in relation to fraud under
Article 1 Article 46 of the Family Code.
Husband and wife become one single moral, Right to marry is a fundamental human right as
spiritual and social being, not only for procreation, according to Article 16 of UNDHR, which gives
but mutual help and protection (Saclolo v CAR). every human being the right to marry and to
found a family, without discrimination to race,
Marriage is one of the basic civil rights of men
nationality, or religion.
(Skinner v State of Oklahoma)
Right to marry, establish a home and bring up
Recognized as one of the vital personal rights to
children is a central part of liberty protected by
the orderly pursuit of happiness (Loving v
the equal protection clause (Zablocki v Redhail).
Virginia). Equal protection is given to people and

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The Constitution does not prohibit a law on not violate vested rights granted during the old
absolute divorce, in recognition of instances law. Note that Article 256 of the Family Code is
where marriage-bound couples cannot create a a general provision, and does not expressly
proper marital life after all. validate invalid marriages before.
Privacy and integrity of individuals are preserved Ex. Mistake of identity is a ground for annulment
(Zulueta v CA), as spouses cannot ransack the under the Civil Code. The effectivity of the
office of the other to find evidence of the Family Code, and the conversion of mistake of
existence of a paramour. The right to privacy of identity into a ground for void marriage, does not
communication and correspondence is inviolable, affect the status of marriages contracted prior to
unless there is a lawful order from a court or when the Family Code.
public safety or order requires.
Articles 2 to 6
Neither can testify against the other without
Article 39 of the Civil Code provides that
consent, unless the civil or criminal case is
specifically initiated by one against the other. capacity to act is limited by family relations,
which is to be read with Article 37 and 38.
Neither can also be examined.
Duncan v Glaxo allows companies to remove The phrase male and female was only for
emphasis, because even in its absence, the term
employees who have relationships by
contracting parties will not include marriages
consanguinity or affinity with the employees of a
of the same sex. In Silverio v Republic, it was said
competing drugstore. Of course, conflict of
that sex is immutable, and is acquired during birth.
interest has to be proven by the company first.
Of course, this is without prejudice to possible
The marriage of two employees from the same
corporation, however, does not justify the recognition of sex-reassignment by Congress.
Republic v Cagandahan allowed a hermaphrodite
removal of one or both (Star Paper Corporation v
Simbol) (Congenital Adrenal Hyperplasia) to choose a sex,
provided it is more obvious. Philippine statutes
Marriage restricts some property rights, such as do not recognized a no-mans land, one has to be
the execution of a last will and testament giving either female or male. Hence, Cagandahan is an
ones property to a spouse. This is not allowed exception, sex is determined after reaching the
unless there are three witnesses to the execution age of majority. The Supreme Court also allowed
of the will. the change of name from Jennifer to Jeff, not as a
matter of right, but judicial discretion. In the US,
Future spouses can stipulate agreed property
transsexualism can enable a person to reassign
regime in a marriage settlement, but cannot
decide when the regime starts other than exactly Requirements of consent are: 1) it should be given
after the marriage ceremony. (Article 107 in freely, and 2) must be in the presence of a
relation to Article 88 of the Family Code). Any solemnizing officer. Should the parent force the
modifications after the marriage can only be done child to marry another, the marriage is voidable,
with the approval of the courts. because there was consent, but it was not free.
The person must deliberately and willingly
The law governing at the time of the contracting contract the marriage, with full capability of
of the marriage governs it (Gomez v Lipana). A
intelligence to understand the nature and
marriage void in toto cannot be made only
consequences of marriage.
voidable by a subsequent statute. Also, repealing
a statute prohibiting certain marriages does not Proxy marriages are not allowed (Article 2 and
validate marriages that were celebration in Article 6).
contravention of the previous law. An expressed
provision shall be the exception, provided it does

12
Note that it is not the presence, but the authority they declare each other as husband and wife and
of the solemnizing officer that is the formal sign the contract (Karganilia v Familiar).
requirement. The mayor is now authorized under
Failure to sign the marriage certificate will not
the Local Government Code. The presumption of
make the marriage void or voidable (Madridejo v
authority is given in the absence of any showing
to the contrary (Goshen v Stonington). The De Leon).
officer is not required to investigate presence of The absence of one witness, or the absence of the
license (People v Janssen). However, in legal age of the witnesses will be an irregularity.
marriages without need of licenses, the This is in line with the policy of the state to
solemnizing officer has to ascertain the uphold the marriage. However, the Supreme
qualifications of the parties. Court did not directly discuss the issue of the
validity of marriages that do not fulfill the witness
Act No. 3613, Section 28, criminalized
requirement (Balogbog v CA). Simply put, if
solemnizing officers who facilitate ceremonies
there was a marriage ceremony where there was
without authority. Punishment is imprisonment
an exchange of vows, the marriage will be upheld.
for 1 month to 2 years. Endorsing fake authority
to solemnize marriages is also punishable under Common law marriages are not recognized here
the law. Members of religious sects who (Enriquez v Enriquez).
solemnized marriages without authority shall, in
addition to the punishment, be banned from An expired license is not valid because the
solemnizing marriages for 6 months to 6 years. absence of any formal or essential requisite will
render the marriage void.
Only the 120-day allowance is mandatory to
couples who would like to marry. Others will be Defects in the essential requirements will make it
irregularities, such as getting a license from a voidable or annullable. These are enumerated in
place where no one party habitually resides Article 45 and 46 of the Family Code.
(People v Janssen). The falsification of his own Irregularities in the formal requisites do not affect
name by one party to obtain a license, shall not the validity, except when the consent of parents is
invalidate a marriage conducted on authority of absent. This will make the marriage voidable.
such license, without prejudice to liabilities.
A judge should look for the marriage license
Falsely representing age, which is however above before solemnizing, otherwise it is an improper
18, to circumvent the parental-consent act. If the parties left the license at home, the
requirement, does not invalidate the marriage. marriage will subsist. If they really do not have
However, such marriage can be voidable, if there one, the marriage is void. Any irregularity caused
is really no such consent (Payne v Payne). Of by the judge e.g. not signing the contract, not
course, if the concealed fact is in such a way a furnishing copies of the contract to parties or not
ground for the void marriages, then the marriage forwarding such contract to the local civil
is null. For instance, same-sex marriage (Jones v registrar will be administratively held against the
Hallahan). judge (Cosca v Palaypayon).
No prescribed form is needed. The minimum Following do not affect validity:
requirement is that the contracting parties appear
personally to the solemnizing officer and they 1) Absence of two witnesses of legal age
declare each other as husband and wife. (Meister v Moore)
2) Absence of certificate
The approval need not be vocally express, other 3) Marriage solemnized in another place
manifestations or signs can do. If the solemnizing other than in the chambers of the judge or
officer fails to ask both parties, it is sufficient that in open court (Alcantara v Alcantara)

13
4) Unsworn application for marriage license 2) Act within the limits of the written
5) Failure of contracting parties from 18 to authority granted to him
21 to exhibit consent of parents to the 3) Must be registered with the civil registrar
civil registrar. general
6) No marriage counselling 4) At least one of the contracting parties is a
7) No posting of notice from civil registrar member of the church or religious sect.
8) Issuance of license prior to the
completion of the 10-day publication The written authorization may limit the scope of
the jurisdiction of a priest. The Catholic Church
period (Alcantara v Alcantara).
follows a community-based approach.
Breach of promise to marry may not give a cause
of action for one party (Hermosisima v CA), Requisites for an airplane chief to be authorized:
unless the breach has civil damages to him or her. 1) Marriage must be in articulo mortis
In Wassmer v Velez, breach of promise to marry 2) Must be between passengers or crew
was suable because of the moral and actual members
damages against the other party. 3) Ship must be at sea or in flight
Article 7- those authorized to solemnize Assistant pilot has no authority to solemnize a
marriages marriage. If the chief dies, the assistant cannot
assume command. Note that such marriages can
The consent of the state is manifested or granted
be solemnized during stopovers or ports of call.
vicariously when the solemnizing officers
This was allowed due to the minutes of the
solemnize a marriage.
Family Code Commission.
Judges can only solemnize a marriage within their
Requisites for a military commander:
jurisdiction. Even when the contracting parties
submit in writing a request for the marriage to be 1) Must be a military commander of a unit
held somewhere, the scope is limited to the place 2) Commissioned officer
of the jurisdiction of the judge (Navarro v 3) Chaplain is assigned to such unit
Domagtoy). Only justices of the Supreme Court, 4) Said chaplain must be absent
Court of Appeals, Sandiganbayan and Court of 5) Marriage in articulo mortis
Tax Appeals have nationwide jurisdiction. 6) The contracting parties must be in the
The Supreme Court held that the marriage of the zone of military operation.
individuals solemnized by Judge Domagtoy is Lowest rank for eligibility is a 2nd lieutenant, and
valid, when he did so outside his jurisdiction. the word unit refers to a battalion, because
However, this is an administrative and not a civil chaplains are assigned per battalion. Note that the
case. Hence, it should not create a precedent commander can solemnize a marriage even
because it was a mere obiter dictum. Solemnizing though the parties are not from his unit.
a marriage outside your jurisdiction means that no
authority was conferred. Only consul-general, consul and vice-consul can
solemnize a marriage. Consular agents are not.
The judge may not ask for frees after solemnizing They can only solemnize a marriage when both
a marriage (Dysico v Dacumos). parties are Filipinos. Philippine laws shall apply
pursuant to Article 17 of the Civil Code. Parties
Requirements for priests, imam, rabbi or minister
can request the consuls to solemnize the marriage
to solemnize a marriage:
at their house.
1) Duly authorized by his church or
If the marriage is between a foreigner and a
religious sect
Filipino, the consul does not have authority and

14
the marriage will be generally void. However, if Absence of consent will render the marriage
the marriage is valid in the place of celebration, voidable under Article 45(1).
then Article 26 will operate. Note that
Articles 15-16
solemnizing officers can only solemnize a
marriage abroad. Non-advice is not a ground for annulment. This is
just to induce more mature deliberation,
Mayors are now allowed pursuant to the Local
according to the Family Code Committee.
Government Code which took effect January 1,
1992. If the mayor is incapacitated or absent, the Article 17
vice-mayor, as acting mayor, can do so.
The notice shall be posted 10-days consecutively
Article 8 on a bulletin board outside the office located
within the building and accessible to the general
Directory in nature. The non-observance will not
public.
void the marriage. Exceptions are:
If there is negative or the absence of advice, a 3-
1) Marriage in articulo mortis
month suspension shall be rendered.
2) Those in remote places
3) Both requested the officer in writing Articles 18-19
Article 9 Note that the local civil registrar can only note
down the particulars of any impediments
The license should be obtained from a place
discovered. The registrar can investigate, but
where either party habitually resides. If it is
cannot withhold the issuance of the license after
obtained in a random place, it will be an
the designated waiting period. This power was
irregularity (People v Janssen).
not granted to the registrar to avoid extortion.
Article 10 However, in the presence of a court order, the
registrar can refuse. The registrar can directly file
Consular officers will now have to be both
a case in court.
solemnizing offers and the civil registrar with
regard to marriage processes. If interested parties are to file for a case, there will
be no filing fee or corresponding bond.
Article 11
If despite an injunction, the registrar issues a
Purpose of documentation is to secure a stable
license, then the marriage will be valid, without
institution (Kilburn v Kilburn).
prejudice to sanctions to the registrar.
Anyone can obtain a marriage application. Once
Two provisions of the Marriage Law of 1929 are
it is signed and sworn to, the registrar has no
still subsisting:
choice but to accept and process the same. If he
has knowledge of any impediment, he cannot 1) Influencing parties to either marry or not
discontinue the processing and still continue issue marry under the authority of any
the license. Only the court can stop the issuance. religious sect.
2) Issuance or non-issuance of marriage
Articles 12-14 license, as the case may be. Punishment
There is no such a thing as emancipation by is not less than one month and not more
marriage. A person can only be emancipated by than 2 years, or by a fine of not less than
age. two hundred pesos nor more than two
thousand pesos.
Parental consent does not concern legal capacity
as people over 18 years of age can already marry.

15
Article 20 Any evidence of the validity of marriage will do.

The best evidence, however, is the marriage
The license is valid in the Philippines and not
certificate. However, a Photostat of a certificate
abroad. The date of the issuance of the license is
is worthless (Vda. De Chua v CA). However, if
the first day of the 120-day grace period.
the Photostat is stamped by the registrar, it will be
Failure to use the license in the period allotted admissible as evidence. Note that without any
will make it void. Any subsequent marriage will contradiction from another party, the Photostat
be void. copy will be deemed sufficient proof of the
marriage (Sy v CA).
Article 21
Baptismal certificates, birth certificates, judicial
Certificate or Affidavit of legal capacity is decisions, family bible in which the names of the
required for citizens of a foreign country. This is spouses are entered as married can be evidence
so the registrar can be notified of the existing (Trinidad v CA).
national laws of the persons applying for
marriage license. A minor who is capacitated to However, Transfer Certificates of Title,
marry by his or her personal laws will be allowed Residence Certificates, Passports, and other
to marry here, provided that the certificate of similar documents cannot suffice especially so
legal capacity has been acquired. when the judge testified that he did not solemnize
such marriage (Vda. De Chua v CA).
This is an exception to the prohibition to the
registrar to not issue a marriage license. A marriage certificate made many years after the
marriage may be inadmissible, especially when
Assuming no certificate was presented, but a there was no record of the marriage (Gaines v
license was released, the marriage will still Relf).
subsist.
Note that failure to present certificate will not
Should the persons be stateless or are refugees, overturn the presumption of marriage, unless of
they shall have to present an affidavit of legal course with competent evidence from impleading
capacity. party.
If they marry in front of their consul-general, and Testimony of contracting parties, witnesses or the
the marriage will be valid in their own country, solemnizing officer involved can suffice as
then Article 26 will operate, even without a evidence to strengthen the presumption.
marriage license.
Mere cohabitation is not a direct proof of
Articles 22-23 marriage, if not backed up with other documents
A man and a woman deporting themselves to (Santiago v Cruz).
have been lawfully wedded will have the Since the presumption is strong, a statement of
presumption of marriage unless contradicted. the civil status of a person in a certificate of title
In Pittinger v Pittinger, the Colorado Supreme issued to him will not be reach the threshold.
Court ruled that the law presumes morality and The Court, however, allowed a new issue to be
not immorality, marriage and not concubinage, presented in an attempt to appeal the decision of
legitimacy and not bastardy. the lower court to uphold the marriage. When the
The doctrine is semper presumitur pro issue of psychological incapacity was not given
matrimonio. Burden of proof will always be on merit by the lower court, the Supreme Court said
the hands of the impleading party. that the subsequent attack on their marriage by
proving that no license was present when they

16
married is a proof that the marriage was void (Sy Therefore, marriages without license abroad, or
v CA). even proxy marriages between Filipinos abroad
will be valid. These are not against public policy.
A license issued not in the place of habitual
residence of either party will not affect the A foreign marriage solemnize by a professor or
validity of a marriage, but this raises the question law, who is given authority based on the national
of the spuriousness or the non-existence of an laws of the parties, will be valid.
actual license, albeit irregularly issued.
*Is this not a violation of the lex loci celebrationis
In Republic v CA and Castro, the Supreme Court rule?
upheld the invalidating effect of a certification
If a foreigner who is under 18, but is legally
from the registrar, after due search, that there was
no record can be found with regard to the issuance capacitated to marry under his own law, marries
of the license. a Filipino abroad, this should be valid under our
law. This is the exception to Article 35(1), even
Declaratory Relief may be filed by parties to though the provision says that any party under
ascertain whether they are able to marry under the 18 shall render the marriage void. Otherwise, it
law. will be better for such couple to marry here in the
Philippines, after the foreigner gets a certificate
Articles 24-25
of legal capacity to marry, because he will be
The civil registrar shall keep a Marriage Register allowed to do so. This inconsistency should be
of all individuals who were issued licenses upon, prevented.
and the list of all who are married in their locality.
Sta. Maria argued that common law marriages
Article 26 shall not be recognized in the Philippines, even if
contracted abroad by parties. Article 26 mentions
The Philippines recognizes marriages validly of solemnization, meaning that a ceremony
solemnized abroad, unless it violates Article must have been conducted. However, public
35(1), (4), (5), and (6), 36, 37, and 38. policy does not explicitly disallow such marriage
To avoid limping marriages, presumption of if contracted abroad. The argument of the author
marriage is awarded to those who contracted is based on the usage of the word solemnization,
marriage abroad. This is dictated by international which was then phrased as contracted (General
comity. Order No. 68), and replaced to performed
during the effectivity of the Civil Code. The
Same-sex marriages between Filipinos will not be Family Code Commission replaced it with
allowed even if completely legal in the foreign solemnized, which should give us a hint about
state, because the legal capacity of Filipinos will the intent of the framers.
be governed by our Civil Code. Hence, this
provision only contemplates to allow those who However, marriages solemnized abroad should
are legally capacitated to marry and who married be proven as a question of fact (Ching Huat v Co
validly under the laws of another state, provided Heong). There is necessity for it to be 1) pleaded
that no violations to the prohibited marriages are and 2) proved.
observed. In Yao Kee v Sy-Gonzales, Supreme Court said
No state is bound to comity to give effect to that the burden to prove validity rests on the
marriages against public policy (Brimson v person arguing for the validity of marriage. This
Brimson). implies that the presumption of marriage is not
given to foreign marriages. However, this was
overturned in Board of Commissioners v Dela
Rosa. The presumption of marriage is given to

17
foreign marriages, and the legitimacy of children The previous laws stated that the Muslims and
born out of such marriages. ethnic groups need not comply with the formal
requisites laid down in the Civil Code. Such is not
Divorce initiated by a Filipino citizen is against
the case anymore, because only the Muslims and
public policy (Cang v CA). Divorced between
the ethnic groups in the Cordillera Administrative
two Filipinos abroad is void (Garcia v Recio). Region are exempted from the jurisdiction of the
Filipina wife who obtained divorce abroad is not Family Code, because they have their own laws.
divorced in the Philippines (Tenchavez v Escano). In fact, marriages solemnized between members
of tribes in the Cordillera will be valid as long as
In Republic v Orbecido, a naturalized American it is in accordance with their customs (Article X,
citizen was allowed to divorce their marriage, Section 2). All the other ethnic groups are
because the reckoning day of validity based on exempted from the marriage license requirement,
citizenship is the day of the divorce, not the day but not the other essential and formal requisites.
of the marriage.
Ratification of marital cohabitation requires that
A Filipino spouse who obtained divorce abroad, the individuals have to 1) live as husband and
and who previously became naturalized as an wife for 5 years characterized by exclusivity and
American, shall be allowed to remarry in the continuity that is unbroken, and 2) they must be
Philippines by virtue of his national law. without legal impediment to each other. They
*If a Filipino obtains a divorce abroad while have to concur, but do not qualify each other.
being a Filipino, the divorce is void under Hence, the legal impediment should only be
Philippine law. But if the Filipino naturalized absent at the time of the marriage. This is the
himself as an American thereafter, and decided to ruling in Republic v Dayot, Manzano v Sanchez.
remarry in the Philippines, will it be allowed? The Chapter 3- Void and Voidable Marriages
question pertains to the respect to his national law,
which is now American laws. Article 35
Void and voidable marriages under foreign law There can be no other void marriages unless those
shall also be such and such here. specified by law. Stepbrothers and stepsisters, or
a court-appointed guardian can marry each other.
Chapter 2- Marriages Exempt from License
Requirement More than one grounds can coincide in one case
of judicial declaration of nullity. Nonetheless,
Articles 27-34 there can be only one cause of action (Mallion v
Except for Muslims who are governed by the Alcantara).
Code of Muslim Personal Laws, the various A void marriage can be assailed collaterally, but
ethnic groups must comply with all the other a voidable marriage cannot be. Voidable
essential and formal requisites of marriage. The marriages cannot be assailed when one has
solemnizing officer must also be valid, and the already died, as the period for assailing the
marriage should be void under Articles 35, 36, 37, validity of void marriages does not prescribe.
38, 40, 41, 44 and 54. Both can only be assailed by either of the spouse,
Far areas will be exempted from marriage license pursuant to the Supreme Court en banc
requirement. Also, note that all solemnizing Resolution in 2003, except in some voidable
officers are authorized to solemnize marriages in marriage where the parents may intervene.
articulo mortis, without prejudice to other Children conceived out of void marriages are
requirements. illegitimate. Children out of voidable marriages
are legitimate, and are subject to either absolute

18
community of property, or conjugal partnership 3) If the donor desires to revoke a donation

of gains (Ninal v Bayadog). propter nuptias (in consideration of
marriage), there must first be a
Void marriages do not contemplate estoppel or
declaration of nullity.
acquiescence. The unclean hands rule does not
apply in void marriages. Good faith marriages are referring to the parties,
not to the solemnizing officers. Since this is
In Mallion v Alcantara, the Supreme Court did
allowed by law, it is not a putative marriage,
not allow for a second cause of action filed by the which is a subsisting marriage that has a risk of
party whose petition for judicial declaration of being declared void or annulled.
nullity on ground of Article 36 was initially
dismissed. This violated the rule on splitting-a- Justice Carpio and Justice Caguioa, some of the
cause of action, that the rule of res judicata framers of the Family Code, would not
applied and that the petitioner waived the effect. distinguish between mistakes of fact and mistakes
Not invoking all grounds during the first case is of law. However, Dr. Arturo Tolentino has a
an implied waiver of the other grounds. different view.
The psychologically incapacitated one can apply In bigamous marriages, these are void unless the
for a judicial declaration of marriage. Unclean person is a Muslim, or it is under Article 41. Even
hands rule do not apply here, but as a matter of if the first marriage is void, if without a judicial
fact, this is only judge-made. declaration of nullity, the subsequent marriage
will be void pursuant to Article 40.
Although bad faith and good faith are not material
in the ratification of a void marriage, these can be Mistake in identity can render a marriage void,
essential when damages are already being raised and no other mistakes can qualify as under this
by either party. However, the two exceptions are provision. Hence, when the person you intended
under 1) Article 35(2), where good faith of either to marry, turns out to have a different name, it will
or both parties can validate a marriage even if the not render the marriage void.
solemnizing officer had no authority, and 2)
Article 43, where a spouse who has a well- Article 36
founded belief that his spouse is already dead can Determination of psychological incapacity
ask for a judicial declaration of presumptive death. depends on the facts of the case (Republic v
In a case for support, the children can attack the Dagdag).
validity of marriage collaterally, without having However, the law clarifies that psychological
to institute another proceeding for judicial incapacity should be qualified by the failure to
declaration of nullity. comply with the essential marital obligations.
Exceptions: Hence, the malady should prevent these
obligations from being fulfilled. A senseless,
1) If a spouse wants to remarry, there must protracted, and constant refusal to comply with
first be a judicial declaration of nullity. the essential marital obligations although
He/she cannot assail the validity of his physically capable can be ground (Chi Ming Tsoi
first marriage, say, in a bigamy case v Chi Ming Tsoi).
(Article 40).
The first case decided on ground of Article 36 is
2) In Ninal v Bayadog, Supreme Court
Santos v CA. It was decided that the
added that in case a need arises, the
psychological incapacity must be characterized
judicial declaration of nullity may be
required by the courts. by gravity, incurability and judicial antecedence.

19
Psychological incapacity must be no less than a 6) Essential obligations unfulfilled are those
mental (not physical) incapacity that causes a found in Articles 68 and 220, 221 and
party to be truly incognitive of the basic marital 225 of the Family Code.
covenants that concomitantly must be assumed 7) Interpretations of the National Appellate
and discharged. Matrimonial Tribunal shall be persuasive
8) The trial court must order the prosecuting
The Constitution does not establish the attorney or fiscal and the Solicitor
parameters of state protection to the institution, General to appear as counsel for the State.
and the establishment of Article 36 is not for the
This has already been overturned in the
destruction of the institution, but for the
Supreme Court en banc resolution in
protection of marriage (Antonio v Reyes).
A.M. 00-11-01-SC.
The fear of a wife to have children may constitute
However, in Te v Te, and the separate opinions in
psychological incapacity, according to the
Republic v Molina, it was stressed that each case
Minutes of Civil Law and Family Code
should be treated independently.
Committees.
There is no bad faith on the part of the party who
Separation and abandonment are not conclusive
was known to be psychologically incapacitated.
grounds for psychological incapacity (Republic v
Hence, no damage can be awarded to the other
Quintero Hamano).
spouse (Buenaventura v CA).
The opinions of experts shall be highly regarded
Article 37
(Hernandez v CA). However, there is no need for
psychological tests to be conducted if the totality Incest creates not only an immoral institution of
of the evidence suffice (Marcos v Marcos). incest, but also confusion in social placement.
There is also a scientific explanation to
Pathological lying can lead to psychological
prohibiting incest.
incapacity. Even if the psychiatrists do not
personally examine the party, the analysis made Article 38
on pertinent data regarding the subject may be
It is the policy of the state to foster a normal,
accepted in court (Antonio v Reyes).
peaceful, and wholesome integral family unit
The decisions of the National Appellate which will constitute the very foundation of
Matrimonial Tribunal shall not be binding but society.
persuasive, because Canon Law was the source of
Marriages between collateral half-bloods are not
Article 36.
only allowed when between brothers and sisters.
Jurisprudential Guidelines in Republic v Molina: There are two views with regard to half-blood
nieces and uncles, or nephews and aunts:
1) Burden of proof should be with the
plaintiff a) They are incestuous and void (Audley v
2) The root cause of the psychological Audley)
incapacity must be: b) In in Re Simms Estate, it was allowed
a) Medically or clinically identified because had the legislature wanted to
b) Alleged in the complaint qualify the prohibition as between half-
c) Sufficiently proven by experts blood nieces and uncles, they would have
d) Clearly explained in the decision done so, same way with how brothers and
3) Judicial antecedence sisters of half-blood or full blood were
4) Such must be incurable not allowed due to public policy.
5) It should be grave enough

20
In affinity relationships, the husband creates an The Code took effect August 3, 1988, which
affinity to all the consanguinity of the wife, and meant that marriage prior to the Family Code
vice versa. However, all relative of consanguinity should be assailed before August 1, 1998.
of the both parties do not have relationships of However, assailing marriages held after the
affinity towards each other. effectivity of the Family Code will not prescribe.
In Padlock v Wells, it was said that the death of Note that the validity can be assailed collaterally
one spouse will terminate the relationship by by any person, as long as the main issue is not the
affinity, except when there are issues. In Carman validity of marriage, and its resolution is
v Newell, it was said that the relationship will not necessary for the resolution of the lis mota of the
be terminated regardless if there are children r not. case.
In cases of an adopting parent and the adopted Article 40
child, they cannot marry, and they cannot marry
A subsequent marriage will be void without the
the spouses of another. But, the adopted can
marry the illegitimate child of the adopter, the judicial declaration of nullity. This will apply to
marriages falling under 40, 52 and 53. In fact
parents, or the relative of the adopter, whether by
additional requirements are given for the three
consanguinity or affinity. If the adopter or the
articles, one of which is the registration of the
adopted dies, the surviving spouse of the
judicial declaration, inter alia, to the local civil
deceased cannot marry the one surviving.
registrar. Otherwise, the subsequent marriage will
However, with a declaration of nullity, it might
be possible. be void.
*Is there a need to file for a judicial declaration or
The killing of ones spouse, or the spouse of the
paramour for purposes of remarrying will not be nullity if the spouse is dead?
allowed. However, killing your spouse due to Judicial background of the judicial declaration of
self-defense, will of course allow you to marry nullity:
the lawyer who have helped you with the criminal
case. In this paragraph, a mere preponderance of 1) After 1954 and 1957, Supreme Court
evidence will suffice. No conviction is required. ruled that there was no need for judicial
declaration of nullity (People v Mendoza
Article 39 and People v Aragon).
The judicial decree does not dissolve the marriage, 2) In Gomez v Lipana and Conseguera v
it only affirms the voidness, non-existence or Conseguera, 1970 and 1971 respectively,
the Supreme Court reversed the doctrine.
incipient invalidity of the marriage.
3) In Odayat v Amante and Tolentino v
Supreme Court said in Ninal v Bayadog that if Paras, the Supreme Court went back to
death extinguishes the cause of action, then it will the original doctrine (1977 and 1983).
not be imprescriptible. This was overturned when 4) Wiegel v Sempio Diy reversed the
Supreme Court released a resolution A.M. No. doctrine and required a judicial
02-11-10 which said that after the death of one declaration again in 1986.
party, the marriage cannot be assailed. Moreover, 5) In the same year, the Court reverted back
the heirs cannot file the nullity of the marriage of to the original (Yap v CA).
their parents or of their parents with their step-
The Family Code took effect on August 3, 1988,
parent (Enrico v Heirs of Medinaceli).
which required it. Hence, the ruling doctrine was
Before, psychological incapacity had a that of Gomez v Lipana.
prescription date of 10 years, if the marriage was
held prior to the effectivity of the Family Code.

21
In Domingo v CA (1993), the Supreme Court more distinction between Article 40 and Article
explained that the reason for such decision by the 41 of the Family Code.
Family Code Committee was to remove the
Article 40 and Criminal Bigamy- Bigamy under
power to decide the validity, or invalidity for that
Article 349 of the Revised Penal Code requires
matter, from the hands of the individuals. The
proposal was from Justice Caguioa. that a subsequent marriage is solemnized prior to
the dissolution of the first marriage or the
The Code Commission agreed to limit the declaration of presumptive death of the spouse.
necessity of a judicial declaration to remarriage, Hence, there should be a valid or annullable
because collateral attacks to the marriage should marriage, because the phrase is dissolution.
still be allowed. Moreover, the second marriage should be void on
ground that it was bigamous, not any other reason.
Also note that the word solely does not mean that
If there are other reasons, then there is no bigamy.
the judicial declaration may be invoked only for
purposes of remarriage. It is the other way around. In Mercado v Tan, Supreme Court ruled that the
The ability to remarry may only be invoked on petitioner was guilty of bigamy, because a
basis of a judicial declaration. judicial declaration of marriage has yet to be
acquired when he married another person. Hence,
This is necessary to ensure that the inviolable
this ruling implies that the crime of bigamy is
institution of marriage is not reduced to mockery
committed not on basis of the validity of the first
(Domingo v CA). Moreover, this is to do away
marriage, but the absence of a judicial declaration
with any continuing uncertainty on the status of of nullity of the first marriage.
the second marriage (Valdes v RTC).
Justice Vitug stressed a strong dissent in the case.
The validity of the marriage can be collaterally The phrase legally dissolved only referred to a
attacked on an issue for support (De Castro v De
valid or an annullable marriage and said that the
Castro), but this ruling reiterated that for purposes judicial declaration of nullity is not a requirement
of remarriage, the only acceptable proof is a
contemplated in the Revised Penal Code. In fact,
judicial declaration of nullity of marriage.
in People v Aragon, Supreme Court said that a
Article 40 and bigamy- there are two sets of judicial declaration of nullity is not necessary to
provisions that declare a subsequent marriage defend one from a charge of criminal bigamy.
void on ground of the first marriage. These are: Other proof or evidence may suffice.
1) Articles 40, 52 and 53- first marriage is The comment of Justice Sempio-Diy found in her
void Handbook on the Family Code of the Philippines,
2) Articles 35(4) and 41- bigamy said that Article 40 was created to require a
spouse to acquire a judicial declaration of nullity
The subsequent marriage under Article 40, 52 and of his or her first marriage, in order to protect him
53 is void, but it should not be bigamous, because or her from being charged with bigamy.
there are specific provisions that concern
bigamous marriages. Note that bigamous The converse meaning of this comment is that
marriages need a valid or annullable marriage. anyone who is unable to get a judicial declaration,
who whereby enters a second marriage, can be
However, in Carino v Carino (2001), the Supreme prosecuted of bigamy under the Revised Penal
Court ruled that the subsequent marriage is a Code. This should not be the case. Looking at the
bigamous marriage, because the previous elements of bigamy:
marriage, although solemnized without a license,
was still presumed to be valid. Hence, there is no 1) Offender is legally married

22
In People v Mendoza, Supreme Court said that a was yet to be acquired, then this implies that the
prosecution based on a void marriage cannot lie. first marriage is definitely valid. This may impair
This was reiterated in People v Aragon. the right of one to question the validity of the first
marriage. But then, he is not allowed to do so,
2) The marriage has not been legally
because the criminal case of bigamy cannot be
dissolved or in case the spouse is absent, suspended for the declaration of nullity of the first.
the absent spouse has yet to be declared
presumptively dead. Articles 41-42
3) The offender contracts a second or
subsequent marriage Bigamous marriages are generally null and void
4) The subsequent marriages has all the (Gomez v Lipana). However, a bigamous
requisites of validity marriage can exist if the first spouse has been
declared presumptively dead, allowing the
Hence, a person who contracts a subsequent present spouse to remarry.
marriage without a judicial declaration of nullity,
even if the first one is void, will not be guilty of Note that a summary proceeding is already
required. This was not required in the Civil Code
bigamy, because the subsequent marriage is void
(Valdez v Republic).
not because of bigamy, but because of Article 40,
52 and 53. However, he can be subject to criminal If the spouse reappears and files an affidavit of
liability under Article 350 of the RPC, which is reappearance in the civil registry, then the
about contracting a subsequent marriage without marriage is extra-judicially terminated. Of course,
fulfilling the requirements of law, but not Article when the reappearance is disputed, a judicial
349. proceeding will decide the question of fact.
In People v Aragon, Supreme Court said that had Should the absent spouse reappear but not file an
the legislature intended the necessity of a judicial affidavit, a bigamous marriage will exist.
declaration of nullity to be a requisite to be safe
from a bigamy charge under Article 349, they After the judicial declaration of presumptive
would have said so. If there are doubts, we death, the liquidation of the first marriage should
construe it in favor of an accused. occur. If there is no liquidation, the property of
complete separation will govern the second
The rulings in Aragon and Mendoza do not come marriage.
into conflict with the ruling in Domingo, which
stated that a judicial declaration of nullity is the Sta. Maria:
only admissible proof of the nullity of the former However if there were a liquidation, the parties
marriage. Note that the issue in Domingo is civil, may agree in the settlement as to what type
not criminal. Hence, any implication in the case of property regime will govern their marital
of Domingo, suggesting that bigamy cases need a relationship and, in the absence of such marriage
judicial declaration of nullity to be defended, is a settlement or when the latter is void, the spouses
mere obiter dictum. shall be governed by the absolute community of
*The requirement of a judicial declaration of property regime. If the marriage is void, then the
nullity to defend a bigamy case is self-defeating. rules of co-ownership will apply and the
In the rulings of the Supreme Court in Te v CA, properties will be liquidated in accordance with
Mercado v Tan, suggested that the civil case of the said rules.
judicial declaration of nullity cannot be a Note that the issue on succession of the absent
prejudicial question to a bigamy case. If the spouse may only be opened after an absence of 10
Supreme Court argued that the bigamy case was years (Article 390 of the Civil Code). If above 75,
consummated at the time where the declaration 5 years is sufficient. Should the person be gone

23
due to reasons laid down in Article 391, four Articles 43-44

years will be sufficient.
Children conceived during the subsequent
In Republic v Nolasco, Supreme Court reiterated marriage are legitimate. Despite the non-
the necessity of a well-founded belief that the observance of Article 40, 52 and 53, Article 41
absent spouse is already dead. This was not presents a case where a valid subsequent marriage
required in the Civil Code, as the absence of news or a valid bigamous marriage may bear a child.
will suffice. The present spouse should search for Regardless of existence of bad faith to one of the
the wife with due diligence, and in the case, he parties, the child will be legitimate. However, if
went to Liverpool instead of London, contrary to the marriage was conducted in bad faith by both
existing leads. The failure to show the efforts to parties, then the child will be illegitimate.
inquire about friends, relatives, or government
The property regime shall be dissolved and
authorities raises a doubt as to the due diligence
liquidated. All debts of the property regime shall
Nolasco gave.
be paid first, before being divided to spouses,
The judicial declaration of nullity is the best unless one waives his right.
evidence to prove a well-founded belief, and is a
Net profit is defined as the value of the property
shield against bigamy, adultery, or concubinage
during the solemnization of the marriage minus
causes (Manuel v People).
the value of it during the dissolution.
The sworn statement of reappearance can be filed
If both parties acted in good faith, then donations
by any interested party, and the subsequent
are valid. If the donor acted in bad faith, the
marriage of the present spouse shall be terminated
donation will still be valid. If the donee acted in
after the recording of such sworn statement.
bad faith, the donation is ipso jure revoked (by
The view of Sta. Maria is that when the authentic operation of law). If both acted in bad faith, all
reappearance of the absent spouse is verified, donations are revoked.
then the judicial declaration of presumptive death
should be rendered functus officio. In Article 44, it is said that if both acted in bad
faith, testamentary dispositions made by one in
On the issue of the possibility of a bigamous favor of the other are revoked ipso jure. In this
marriage, the State shall protect the second wife case, the spouse who contracted the marriage in
more, because had the first wife wanted to assert bad faith shall also be unable to receive
her rights, it would have been easy for her to file inheritance, whether testate or intestate. Even
an affidavit of reappearance. though the provision only talks about
testamentary dispositions, the mere fact that the
Is there a possibility for the subsequent spouse to
marriage is void means intestate succession is
file sexual infidelity to the spouse who continued
also legally impossible.
to have relationships with the previous one, to
whom he or she is validly married anyway? Suppose the would-be spouse of the present
spouse saw the absent spouse, but the present
Article 349 of the Revised Penal Code
spouse still had the well-founded belief that the
provides that the penalty of prision mayor shall
absent spouse is dead. Will the marriage be void?
be imposed upon any person who shall contract a The answer is no, because Article 44 requires bad
second or subsequent marriage before the former faith on both parties.
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively Article 45
dead by means of a judgment rendered in the
proper proceeding. The remedy of annulment is provided by the
legislature to balance the public interest in

24
preserving the sanctity of marriage, but also However, if the wife discloses the pregnancy to
balancing public welfare. the husband, and fools him into thinking that the
child was his, but the man knew that the wife was
There should be clear and undeniable proof
unchaste, cannot claim annulment (Foss v Foss).
(Buccat v Buccat).
Note that a woman who induces a man to marry
Unsound mind means that the person has a mental
her because of a made-up pregnancy resulting to
incapacity to understand or assent the marriage
the sexual intercourse between them, the fraud
contract. Other mental incapacities irrelevant to will not constitute a ground for annulment.
consent will not be acceptable under Article 45.
A person who has a fixed habit of getting drunk
Fraud contemplated in Article 45 is restricted to
is guilty of habitual alcoholism (Lewis v Lewis).
those enumerated in Article 46. The list is There is no need to be drunk all the time.
exclusive (Anaya v Palaroan), and even though
other acts may constitute fraud, graver ones at Homosexuality or lesbianism are grounds for
that, so long as they do not fall to the list provided annulment not because they cannot perform
by the Family Code, there is no claim for marital obligations per se, but because the
annulment under this paragraph. opposite-sex relationship contemplated in
marriage requires physical and psychological
Concealment of a conviction involving moral
constitution of both parties, and might not be
turpitude is fraud. Turpitude means inherent
possible given that they are not attracted to the
baseness, vileness or depravity in the private and
opposite sex. Note that there has to be
social duties which a man owes to his fellow men
concealment of this sexual preference or
or to society in general, in contrary to accepted
orientation.
rule of right and duty between man and man,
comprehended by the intentional taking of human Vitiated consent can be a ground for marriage, but
life contrary to law (In Re Basa). there has to be a preponderance of evidence. A
husband claiming to be in a marriage with vitiated
The burden of disclosure falls to the ex-convict. consent, but is overwhelmed by evidence they
There is no necessity for the innocent party to have been living as a husband and wife for more
search for criminal records. than 5 years, cannot be granted annulment
Concealment of pregnancy as ground for fraud is (Donato v Luna).
necessary to avoid a marriage where a man takes In Villanueva v CA, Supreme Court said that the
care of a child who is not his. Note that creation of a reasonable or a well-founded fear of
concealment has to be made in bad faith. A
a grave and imminent danger to his life and safety,
woman who had sexual relations with a man prior
without the clear proof of intimidation, cannot lie.
to marrying another, who was diagnosed to be
Given that the petitioner is a security guard, and
barren, but turned out to be impregnated the
that there were a lot of instances where he could
previous lover is not guilty of concealment. have reported the incident to authorities, failure
If a woman does not inform a husband of the to do so amounts to a free consent.
pregnancy, albeit the supposed obviousness, the
Physical incapacity is not just impotence, because
pregnancy being at the 7th month, the man cannot impotence is a limited term. For one, women
claim to have been fooled (Buccat v Buccat). cannot be impotent, because the term is only for
However, in Aquino v Delizo, where a naturally
males. Note that psychogenic causes causing
plump woman was four months pregnant at the physical incapacity can fall here (Alcazar v
time of the marriage did not disclose the existence
Alcazar). The extensive sensibility of the female
of such pregnancy to the husband, the Court ruled
organ, rendering the impossibility of
against the woman.
consummation because of great pain on the part

25
of the woman, can also be a ground. If the wife 3) For fraud, after the knowledge of fraud,
got the physical incapacity after the marriage, the injured party cohabited with his or her
then no annulment can happen under this spouse.
paragraph. Further, the incapacity must be 4) For force, intimidation or undue
continuous and incurable. influence, after such things stop, and the
injured party cohabited, the marriage is
Selective impotency can occur. This is why the presumed to have been ratified.
provision refers to incapacity with the other
spouse. Using the rule of triennial cohabitation, Note that for numbers 5 and 6, physical
if no consummation occurs, the presumption of incapacity and sexually transmitted disease, it is
potency may be overturned, causing a prescription and not cohabitation, which ratifies
presumption of impotency, if the wife remained the marriage.
to be virgin after 3 years.
Article 47
*Does this refer to being a virgin overall, or only
with respect to the husband? Annulment proceedings are actions in rem for
they concern both the parties and the world.
Sterility is not the same as impotency. A man who Hence, the RTC can only have jurisdiction if
is sterile can still engage in sexual coition either of the parties is Filipino. The exception is
(Menciano v San Jose). that if the national law of the spouses would
renvoi back to the law of the domicile. In any case,
Sexually transmitted disease as a ground for
we do not follow the lex loci celebrationis in
annulment is to ensure that transmission will not
annulment case (Rayray v Chae Kyung Lee).
occur not only to the spouse but also to the
children. A parent may never file a case for annulment
except those that fall under Article 45 (1) and (2).
Ratification:
But even in these cases, the parent has to allege
1) A wife who married her husband the benefit of such annulment to him or her, not
between the age of 18 and 21 without the just to their children (Siman v Leus).
consent of parents, who after reaching the
In a marriage with an insane spouse, if the sane
age of 21, freely cohabited with him as spouse already knew of the insanity prior to the
husband and wife, provided that the marriage, he will be estopped.
parents did not institute annulment
proceedings prior to her reaching the age
of 21.
2) If an insane party, after coming to reason
temporarily or permanently, freely
cohabited with the sane party. Following
this logic, a sane spouse who found out
that the other party was insane after the
marriage, and who has freely cohabited
with the latter, cannot be considered as
ratification. He/she has the right to annul
the marriage until such time that the
insane party has come to reason and
ratified the marriage. After such, no
annulment can happen.

26
In the cases provided in Article 45(3), (4), (5) and The desire of the defendant for the divorce to
(6), the person who has the standing is the injured happen and makes no defense, is not by itself
party. collusion.
However, if there is cohabitation, anywhere in the A judge who does not order the fiscal to
5-year prescriptive period under those grounds investigate for collusion may be administratively
that can be subjected to cohabitation, the legal liable (Corpus v Ochotorena).
standing is erased.
With regard to support in Article 49, the parties
Articles 48-49 shall be supported from the properties of the ACP
or the CPG. Support pendente lite and custody
This procedure is governed by Supreme Court en
pendente lite may be invoked.
banc resolution A.M. No. 00-11-01-SC (March
15, 2003). Article 213 of the Family Code states that no
child under 7 years of age shall be separated from
Upon filing of the case, the impleaded party shall
his or her mother. Exception is if there is
be given 15 days from the receipt of summons.
compelling reason.
Failure to file an answer will not declare the case
in default. The State will have to see if collusion Articles 50-51
is present, and the case will proceed. Failure or
deliberate refusal to answer may be an evidence The dispositive conclusion of the judge shall state
the factual and legal basis of the judgement. No
to collusion, but it does not ipso facto prove it.
relief can be granted which is not based on the
Note that a declaration in default, albeit allegation. Should a court render a judgement not
erroneously declared, is still a valid judgement. based on the allegation, it is void for being coram-
non-judice. However, if such judgement is not
No compromise agreement can be valid
assailed in a motion for reconsideration or on
(Mendoza v CA). Article 48 prohibits judgement
appeal, then it will be effective (Lam v Chua).
based on stipulation of facts by parties or by
confession of judgement. In Tuason v CA, Supreme Court ruled that the
findings of the trial court with regard to
While Article 48 does not mention of the Solicitor
psychological incapacity will be binding to the
General, he can definitely intervene as
Supreme Court, unless it can be shown that the
representative of the State. The fiscal or the State
trial courts proceedings are erroneous.
can either defend a marriage or expose an invalid
one. No separate civil action to settle the incidental
issues of the annulment is required (Domingo v
The agreement with regard to the separation of
CA).
property is not collusion.
Since the provisions of Article 43(2), (3), (4), (5)
The absence of a collusion may be ascertained
apply to Article 40, and Article 40 is an instance
from the adversarial behavior of both parties, who
where the subsequent marriage is only void
are vigorous in presenting adversarial pieces of because of the lack of a judicial declaration of
evidence to state their claims.
nullity, the property shall be governed by ACP or
Article 48 (and Article 60 for legal separation) CPG. This is the exception to the general rule that
should not be strictly construed. If there is no only void marriages are governed by co-
evidence of collusion, and the fiscal did not ownership.
intervene, this shall not affect the validity of the
The ruling in Nicdao Carino v Carino is erroneous
legal proceedings (Tuason v CA). because it said that since the subsequent marriage
without a judicial declaration of nullity of the

27
previous marriage is void under Article 40 3) Delivery of the presumptive legitimes

because it is bigamous, then co-ownership will
This is necessary to bind third persons. Again,
rule. However, in this case, the provision of the
note that the third number is not required for void
Family Code under Article 50 with regard to
marriages not under Article 40 in relation to
delivering presumptive legitimes will be rendered
useless. Articles 52 and 53.
If the marriage is terminated by death, the
In other marriages rendered void, the conjugal
dwelling will be co-owned, in the absence of requirements for remarriage reverts back to
proof that it is the exclusive property of one. The Articles 2 and 3. Failure to liquidate will only
void marriage in Article 50 and 51 in relation to result to a property regime of complete separation
Article 40 will award the dwelling to the spouse of property to the subsequent marriage.
where majority of the children choose to remain. The proper local civil registry is the same place
where the judicial judgement was rendered and
The rights of creditors shall be protected, such
that for instance, when a party in a conjugal the local civil registry where the marriage was
solemnized.
partnership of gains waives his rights to the
partition in favor of the other spouse violates Children conceived or born out of void marriages
some debt, it cannot be done. are illegitimate, except those conceived or born
under Article 54.
In annulment cases or in judicial declarations of
nullity, there has to be a motion for If a child was conceived and born before the
reconsideration filed before the 15-day grace marriage, then it is legitimate. However, the
period. Failure to file such motion will disable the marriage of the spouses will render him
parties to file an appeal. legitimate.
Presumptive legitimes are instituted to protect Supreme Court En Banc Resolution A.M. 02-
children of the marriage, so that they will have a 11-10-SC
share of the property even when the parent
subsequently enters into a marriage under the Only the husband or the wife can file for a petition
absolute community of property regime. It is for absolute nullity of marriage. This may be filed
given when the marriage is annulled, or when the in a family court.
marriage is void under Article 40 in relation to
Articles 52 and 53. The other grounds for void
marriages will not have this requirement.
Articles 52-54
Valdes v RTC is the doctrinal case with regard to
partition of property and delivery of presumptive
legitimes in cases of marriages declared void
under Article 40 in relation to 52 and 53.
The following shall be recorded in the civil
registry and registry of property:
1) Judicial declaration of nullity or
annulment
2) Partition and distribution of the ACP or
the CPG

28
Title II- Legal Separation With regard to corrupting or inducing a child to

engage in prostitution, the child may be or not be
Article 55
emancipated. The only immoral act
Also called relative divorce, but there is no contemplated in Article 55(3) is prostitution,
severance of the vinculum (Laperal v Republic). nothing else. Note that an attempt is enough to
There is a separation of bed and board or a mensa invoke legal separation.
et thoro, and it can be revoked upon manifestation
The fourth ground is a final judgement involving
of both spouses in court. a penalty with more than six years. The penalty
The grounds for legal separation follow the contemplated here is prision mayor. It does not
maxim of expressio unius est exclusio alterius, matter if the spouse is pardoned, the fact of the
and no other ground may be invoked outside the conviction will not be erased.
enumeration. This is in line with the policy of the Drug addiction, habitual alcoholism, lesbianism,
State for the preserving of the marriage bond.
homosexuality- these can exist even after the
The ground of repeated violence does not include marriage has started. Drug addiction and
violence against the child of the guilty spouse. alcoholism are grounds because they affect the
Legal separation may not be invoked if the judgement and behavior of the spouse.
violence is not against the child of the petitioner, Lesbianism and homosexuality are do not affect
their common children, or the petitioner the mental state of spouses. They are not
himself/herself. afflictions, but the law probably presumes that
having a homosexual and heterosexual in a
*Although legal separation may not be invoked, relationship may not work.
termination of parental authority (Article 231 of
the Family Code) or other causes of action may For bigamy, it does not matter if the subsequent
be existing. marriage is conducted abroad. This can be a
ground for legal separation upon judicial
The frequency, and not the severity, is the cognizance of the fact. However, if the marriage
determinative factor for repeted physical violence. is contracted abroad, then guilty spouse may not
However, the phrase grossly abusive conduct, be prosecuted for criminal bigamy.
being general itself, can include a single but very
severe act of violence e.g. slander by deed, For the ground of sexual infidelity, the infidelity
choking, etc. must be sexual. But sexual might not necessarily
mean sexual intercourse. Intimate love affair
*As a lawyer, a grossly abusive conduct may be might do. It does not necessarily have to be
a manifestation of psychological incapacity under concubinage or adultery, because those felonies
Article 36. require proof beyond reasonable doubt. Mere
In American jurisprudence, even verbal abuse can preponderance of evidence of sexual infidelity
be cause for divorce. This can fall under grossly may be cause for legal separation. The grounds
abusive conduct. for concubinage, for instance, are:
Article 55(2) talks about violence used to force a 1) Maintaining a mistress in the conjugal
change in religious or political affiliation. Here, dwelling
the violence can be done once, but if the objective 2) Sexual intercourse with another woman
of which is to make the spouse sacrifice his/her under scandalous circumstances; and
political/religious identity, then it can be invoked 3) Cohabiting with her in any other place
as a ground. In Tenchavez v Escano, the fact that the Filipino
wife obtained a divorce abroad and married a

29
foreigner constituted intercourse with a person back to the conjugal dwelling cannot be
other than her husband. ascertained (Wright v Wright).
Sexual perversion towards the spouse or any Article 56-57
other person can be ground for legal separation.
This Article refers to acts that nullify the grounds
However, if the other spouse condones the sexual
for legal separation.
perversion, then it cannot be invoked by that
spouse. Examples are bestiality or even anal sex. Condonation refers to the act of forgiving the
offense AFTER its commission. It is possible for
An attempt on the life of a spouse can be a ground,
the offended spouse to give conditional
but malice or dolo must be present. For instance,
condonation, that if the offending spouse goes
attempting to kill the other because he or she was
caught in flagrante delicto having carnal back to the bad behavior again, it can revive the
knowledge with a neighbor cannot be invoked by offense.
the infidel. In Ocampo v Florenciano, SC said that failure of
the husband to look for adulterous wife does not
Is a criminal conviction necessary? No, a
preponderance of evidence that proves the mean condonation. It is not the duty of the
attempt on the life of the other can do. husband to look for the wife. Hers is the duty to
return.
In the case of abandonment, it must be willfully
Providing support and the absence of an action
done. There must be a complete disregard of the
spouse intentionally. Mere severance of the against the erring spouse can imply condonation.
Sexual intercourse is not required to mean
relation is not sufficient (Tipton v Tipton). If for
condonation, but sexual intercourse means
instance, the wife left the husband for work, or
condonation (Almacen v Baltazar).
because she was a battered wife, the Supreme
Court said that the husband cannot invoke this Note that if the aim of reconciliation is only to
ground (Ong v Ong). save the marriage, and not to forgive, there is no
condonation.
If the spouse who left the conjugal home still
supports the family, then it the leaving of the Consent means that both parties agreed, or did not
house will not fall into the meaning of object, for an act to be done. If both parties agreed
abandonment. In the case of Partosa-Jo v CA, to an open marriage, then sexual infidelity cannot
the SC defined abandonment as an absolute be invoked. Consent does not mean verbal or
cessation of marital relations, duties, and rights, written only, it can be implied from acts.
with the intention of perpetual separation. It
implies a total renunciation of his or her duties. The third ground, connivance, implies collective
planning from both spouses. When one spouse
If both spouses decide that they live separately, agrees to the objective of an act, then any harm
the other spouse who is left in the conjugal home that will come to him or her cannot be invoked.
cannot suddenly invoke abandonment (Smythe v This is the principle of volenti non fit injuria, also
Smythe). called the doctrine of unclean hand.
In a scenario where one abandoned the other, but When both spouses have equal guilt or
became insane after 6 months, can the other recrimination, a ground for legal separation may
spouse invoke legal separation by the time the not be invoked. They are in pari delicto, because
abandonment reaches a year? No, the 6 months one who comes into equity must come with clean
where the absent spouse was insane cannot be hands. Assuming both acted in bad faith, then it
counted, because the willful intention not to go can be seen as both as acting in good faith.

30
In Ong v Ong, the husband sought the dismissal Act). When abuse and violence is alleged to exist,
of a legal separation case by the wife because she there is no point waiting for 6 months. This may
abandonment him, but after knowing that the put the mother and the child to peril.
cause of the abandonment was physical beating,
Assuming the judge continued with the trial and
the Supreme Court said that there was no mutual
guilt, but even a valid ground for the wife to did not wait for 6 months, will the decision be
invoke legal separation because of abuse. valid? No, the Supreme Court said in Pacete v
Carrianga that non-compliance, except when the
Collusion is closely related to connivance, case falls to the exception, will mean infirmity of
because both mean deliberate planning. The test the decision.
is to see if the goal of the plan is to obtain legal
separation itself. If yes, it is collusion. Do note that what is prohibited during the 6-
month moratorium is the hearing of the validity
*If in a legal proceeding for legal separation, the of the ground for legal separation, other
wife said that after what her husband has done, peripheral issues may be discussed, such as a
she already liked to obtain the legal separation, claim for support pendente lite.
does this mean collusion or connivance? No,
Can a civil case for legal separation because of
there must be proof that a prior agreement was
adultery push through, even if a criminal case for
made.
the same felony is being undergone in another
An action for legal separation must be filed within court? Yes, the issue in the civil case is not to
5 years from the occurrence of the cause. Hence, enforce liability arising from the offense (Rule
a later discovery of the fact cannot move the start 111, Section 3 of the Rules on Criminal
of the prescriptive period. Procedure), but to achieve legal separation.
Article 58-62 Of course, when the petition for legal separation
is denied, this does not mean that the couples
Supreme Court Resolution En Banc, A.M. No.
cannot live separately in fact. Even the
00-11-01 SC governs the procedure for legal declaration of legal separation cannot stop the
separation. Upon filing, there is a 15-day period couples from seeing each other still, anyway.
for the other spouse to receive the petition and the
summons. If the other party defaults, the During the course of the suit, the court shall
prosecuting attorney must be order to look into designate either of the spouses or any third person
the possibility of collusion. to administer their ACP or CPG. This will only
occur if there is no prior written agreement
However, if it is seen that there is vehement
between the two.
adversity between them, then it may be presumed
that collusion does not exist. The non- In case where the other party dies during the
investigation will not mean the dismissal of the pendency of the legal separation case, then the
case, if other evidence can prove that collusion case will die also. Actio personali moritur cum
did not exist (Tuason v CA). persona. Hence, effects of legal separation, such
as the loss of right by the offending spouse to any
Even if the other party does not answer, the trial
share of the profits of the conjugal partnership,
will not proceed until after 6 months. This is the may not be tried after the death of either spouse.
cooling-off period. This allows both spouses to Given that the decree is not handed down by the
heal because the State would want the marriage
court, then the rights that might arise after such
to be preserved as much as possible. decree cannot be fought for.
There is an exception to the cooling-off period, Article 63
and this is provided in RA 9262 (Anti-VAWC

31
In Macadangdang v CA, the Supreme Court said insured, to ensure that the insured will not get any
that once the decree has been handed down, and benefit from the source.
the time for appeal has lapsed, then the legal
*The remedy might be to give both written notice
separation becomes final. Even if the effects have
to the offending spouse (insured), and the
yet to be settled i.e. dissolution and liquidation of
property, the legal separation itself is binding insurance company.
already. Article 65-67
Note that the marriage bond is not severed. Hence, Reconciliation can occur through joint
the commission of bigamy, concubinage or manifestation in court. It can be done prior to the
adultery may be commenced, because both of decree of legal separation, or after. Upon such
them are still tied to the marriage. manifestation after the decree, the property
In a legal separation decree, the offending spouse relations will remain the same. There is another
required agreement to revive the former regime.
shall have no right to the profits of the ACP or the
CPG, and it shall be forfeited in favor of the In case of revival of the former regime, the right
common children, the child of the guilty spouse, of the creditors must be protected. In Supreme
or the wife. The innocent spouse shall be given Court En Banc Resolution A.M. No. 02-11-12, it
the custody of the child, but this is not an absolute was stated that a new regime may be adopted by
rule. The best interest child principle is still the spouses. According to Sta. Maria, this may be
paramount. This should be read in conjunction a departure to the substantive limitations
with Article 213 of the Family Code, where the provided by Articles 66 and 67.
child shall not be separated from the other if
below 7 years old. The first view is against the application of this
new procedural rule decided by the Supreme
In legal separation, the offending spouse shall be Court. Looking at Article 88 and Article 107 of
disqualified in both testate and intestate the Family Code, the framers intended that the
succession. Upon reconciliation, the law does not regimes of ACP and CPG cannot commence at
say whether the right to inherit will also be any time during the marriage. It can be argued
revived. In Article 921(4) of the Civil Code, once that allowing an adoption of a new regime is ultra
the spouse disinherits the other because of a vires.
ground for legal separation, such disinheritance
will be rendered ineffectual upon mutual The second view allows for more liberality in
reconciliation. construing Article 66(2). Although it talks about
reviving the old property regime, it does not talk
Article 64 about a restriction to the possibility of adopting a
new one. To not disallow is to allow. However,
Acts of liberty involving insurance benefits spent
even this view is not fully applicable. A couple
for the offending spouse may be revoked, even if
the contract says its irrevocable. who entered into ACP cannot switch into CPG or
vice-versa, because Article 88 and 107 will
In valid donations, the offended spouse should prohibit such. Hence, they can choose to adopt a
file for a revocation of the donations within 5 regime other than what they initially had, so long
years after the decree. However, if the donation is as it is not switching to ACP or CPG. Most likely,
void under Article 87, the right to recover the this will be a self-devised regime.
donation will not prescribe.
On the issue of inheritance, the Family Code does
The written notice of the revocation must be not provide whether the provisions of a will
given to the insurer of the benefit, and not to the revoked by operation of law after the decree of

32
legal separation will automatically be revived possibility of a wife forgiving the husband for
upon the reconciliation of the spouses. rape, means that rape inside marriage can still
occur.
Note that the revival must be recorded in the
proper civil registry in order to prejudice creditors. Prior to RA 9262 and the amendment of Article
This should be coupled by listing of the creditors, 226-C or the RPC by RA 8353, there was no
and the notification of the creditors. Without concept of marital rape, even if the husband used
these, creditors can foreclose properties even if force to have carnal knowledge of his wife.
the spouses decided to include such properties to Justifications are: 1) they are not separate legal
their ACP or CPG. existence. The husband cannot rape himself
(State v Smith), or 2) upon marriage, there is
A.M. No. 02-11-11 SC already consent from the wife to have sexual
Only the husband or wife can file a petition for intercourse anytime.
legal separation. The venue shall be the place
Matrimonial exemption from the crime of rape is
where either of the spouses have resided for 6 already repudiated, given the recognition of
months.
womens rights in Philippine law. Women are not
Title III- Rights and Obligations between thought of being one as their husband, as personal
Husband and Wife liberty is recognized. The reclassification of rape
as a crime against persons and the indication that
Article 68 marital rape can exist was done under RA 8353.
The basic end of marriage is procreation (Chi Article 69
Ming Tsoi v CA).
The domicile of natural persons is the place of
The court cannot compel one to live together, their habitual residence (Article 50 of the Civil
observe mutual love, respect and fidelity to the Code). Hence, they can only have one domicile
other spouse. The only compellable duty is but many residences.
support. Hence, this Article compels spouses
because of a moral, not a legal obligation. However, the decision of domicile should be
made by both spouses, and this is a change in the
In Lacson v San Jose-Lacson, Supreme Court concept of womens rights (Romualdez-Marcos v
said that the obligation to fulfill marital duty is a COMELEC).
very personal one.
The court can exempt one spouse from living with
Hence, a wife that leaves the conjugal dwelling the other upon discovery of a valid ground.
may not be compelled to go home. The remedy
for the husband is legal separation. Articles 71-72
Breach of marital obligation is not actionable for Spouses are jointly responsible for the support of
civil damages (Ty v CA). This is absurd, because the family. Article 94 and Article 121 of the
the husband will be paying the wife with conjugal Family Code said that the regimes are liable for
funds. However, the individual is not bereft of the support of the family. In case of legal
legal remedy. If the property regime is separate, separation, petition for annulment or declaration
the offended spouse can invoke Article 19, 20 or of nullity, the ACP or the CPG shall support the
21, instead of Article 68. The abuse of right spouses and their children.
doctrine can be used to ask for damages. This is In the absence of ACP or CPG, the income or the
what happened in Tenchavez v Escano.
fruits, or the separate properties will be liable for
It is possible for marital rape to exist. The fact that the support of the spouses and their children. The
Article 226-C of the RPC recognizes the spouses will be solidarily liable in this case.

33
The management of the household is a joint Title IV- Property Relations between Husband
responsibility, even though it is only owned by and Wife
one spouse. Relief may be applied for if the other
Chapter 1
spouse fails to do so.
General Provisions
Article 73
No prior consent is needed in order to practice a Article 74-77
legitimate profession. In fact, compulsion not to Marriage attempts to create a complete
engage in a legitimate business may be a form of community of existence (Saclolo v CAR).
violence against women in RA 9262.
Husband and wife cannot sell property to each
In Ayala Investment v CA, the Supreme Court other. Exceptions: 1) there is a complete
said that a legitimate profession of either spouse separation of property regime, and 2) there is a
does not necessarily mean that the benefit of such judicial declaration of separation of property
will redound to the family. Hence, the liability of
the ACP or the CPG will not always be present, if In cases of donation made to another, the right to
the profits of the legitimate profession will not accretion as a general rule does not exist.
have a direct benefit to the family. However, Article 753 of the Civil Code allows for
the right to exist, if the donation is given to a
When there is a disagreement, the objection must husband and wife.
be based on valid and serious grounds. The courts
shall decide if the disagreement is based on a Oral marriage settlement is not valid even if
valid cause. It can be judicially stopped if proved particle execution or non-objection is argued.
to be immoral or seriously dishonorable to the Under Article 88 and 107, the parties are barred
family. from deciding that their property regime will
In case of disagreement, the Court will also commence at a time other than their marriage.
decide whether the benefit from the profession No donation can be given to your spouse during
has accrued to the family prior to the objection or marriage (Article 87).
after. If the objection occurred after the benefit
has accrued, the obligation should be enforced Article 103 and 130 prohibit a surviving spouse
against the separate property of the person who who did not liquidate their previous property
has not obtained consent. This is because the from entering into any other property regime
other spouse is presumed not to have known except the complete separation of property
about the benefit, and the objection was made regime.
against the immoral profession. However, if the
Marriage settlements only cover property rights,
objection is already made prior to the benefit, it
but not personal rights and duties of the spouses.
cannot be said that he did not know of the usage
Children may not be divested off their legal rights.
of the funds for the benefit of the family. Hence,
With this, prospective-spouses can create any
the ACP or the CPG should be liable for the
property regime which will not contravene the
obligations arising from the profession.
law.
It is notable, however, that the initial intent was
In order to prejudice third persons, they must
to make the community property liable if the
register the marriage settlement to the proper
benefit has already redounded before the
registries of property. If they fail to register, and
objection, and to make the separate property
a third person to whom one had an exclusive debt
liable if the objection has already been made. An
which did not benefit the family, for instance, was
error in printing might have been made, but the
not prejudiced to assume that a property can be
law is the law.

34
foreclosed although it was included by the Article 78-79

spouses in their community property, then the
Article 78 is impliedly repealed by RA 6809,
debtor-spouse shall pay the community property
which raised the age of majority to 18. Hence, an
with the value of the foreclosed property. Note
18-year old can validly enter a marriage
that this case happens when the exclusive debt
does not redound to the family. settlement without parental consent. Of course,
his or her marriage is subject to the consent of his
If no marriage settlement exists, then the absolute or her parents, otherwise, the marriage is voidable
community regime will govern. If A for instance under Article 45.
incurred debt from B by mortgaging his property,
payable after 5 years, and A married X without In cases where person is convicted with a
settlement, then the mortgaged property will be punishment that carries with it civil interdiction,
the marriage settlement should include the
co-owned. Since this will impair the loan, the
guardian appointed by court as party in the
time for paying the loan will be presumed to have
contract.
expired. Its either A gets the consent of X to
allow B to foreclose their community property, or A person guilty of a felony punishable by
A has to find new securities of the same value, or reclusion perpetua or reclusion temporal will also
the creditor can file to collect the amount of loan. be punished by civil interdiction for the duration
If A is proven to be out of exclusive property, of the sentence.
then B can take from the absolute community
regime under Article 94(9). However, when the Article 80
property regime gets liquidated, such deduction Where the property is located abroad, or will
from the community regime will be considered affect a property located abroad, the formalities
advances to As part in the liquidation. Of course, and extrinsic validity of the contract will be
when there the loan redounded to the family, then governed by the law of the place where the
B can execute immediately on the community contract is located (Article 16). Also, if both
property. parties are aliens, then their national laws shall
Any settlement must be signed freely, voluntarily, govern their settlement validity. However, when
and intelligently. The burden of proof of both are married in the Philippines, then
invalidating a pre-nuptial agreement is on the Philippine laws will apply.
assailant, but if the contract is seemingly *For the last sentence, does Philippine law mean
unreasonable, then the other party would be property relations or extrinsic validity only?
burdened to prove the validity.
Article 81
Instances where a change in the settlement may
be done: Articles 66, 67, 128, 135 and 136 of the In a contract, there are three elements:
Family Code. However, all must be judicially consideration, object and consent. In a marriage
approved. The purpose is to disallow the settlement, the consideration is the marriage itself.
conversion of some community properties into The absence of which will render the settlement
separate properties to relieve them of being used void.
to settle community debts.
Provisions in the marriage settlement are
If the individuals stipulate that customs should separable, the declaration that one provision is
apply, or that the absolute community regime void does not nullify the whole document.
should not apply, then local customs may be used, Stipulations that do not pertain to the
provided they have to be stipulated as a fact when consideration of marriage will also be valid.
necessary.
Chapter 2- Donations by Reason of Marriage

35
Article 82-84 donors name shall sign every page on the left
margin except the last. The upper part of the page
Donations propter nuptias are without onerous
should be numbered in letters. The attestation
consideration, because marriage is only the
clause shall include the number of pages, and the
motive, not the cause. The donation can be
fact that the donor signed all the pages (or
reduced upon the donors death if such grant allowed another to sign every page in his presence
infringes the legitime of the donors forced heir by his express direction with the presence of at
(Mateo v Lagua). least 3 witnesses). This should be notarized.
The donation must benefit either or both of the Donations propter nuptias are useless if the
spouses. A deed of donation that requires the regime is absolute community. The only
marriage to be childless, or that is directed to the exception for absolute community of property is
parents of the wife and not the wife, among others,
Article 92 and if there is, provisions in a marriage
is not considered a donation propter nuptias
settlement.
(Serrano v Solomon). These donations do not fall
under donations propter nuptias: Requisites of donation propter nuptias:
1) Donations after the celebration 1) Valid marriage settlement
2) Donations prior to the marriage but not in 2) Marriage settlement must stipulated a
consideration of it regime other than absolute community
3) Donation to persons other than the wife 3) Donation must not be more than one-fifth
though the consideration might be the of present property
marriage itself 4) Donation must be accepted by would-be
spouse
Requisites for the donation to be valid: 5) Comply with the provisions in Title III of
1) Donee must accept it personally or Book III of the Civil Code
through an authorized person
If donation is not in the marriage settlement, but
2) Acceptance must be made during lifetime the settlement indicates a regime other than
3) Donation of a movable can be made absolute community, the one-fifth limitation will
orally or in writing not apply. Article 750 does not restrict amount,
Note that if the value of the movable property but the donor has to leave something to support
exceeds 5000, then it has to be made in writing. his own and his family.
If orally done, the granting of the donation must Moreover, Article 752 restricts him from
come simultaneously. Donation of real property
donating more than what he can by will. Hence,
requires a public instrument, in which the
you cannot donate the part of your estate that has
acceptance of the donee may be appended. If the
to go to your forced heirs.
acceptance is made through a separate document,
the donor should be notified. Donations are barred during marriage in order to
prevent the stronger spouse from exerting
Donations governing future property is governed
influence over the weaker spouse. Prior to the
by the formalities of a will. If the document is
marriage, the spouse is only limited to give not
handwritten, it must be entirely handwritten dated more than one-fifth of his or her property if there
and signed by donor. If it is not handwritten, is a marriage settlement. This is to ensure that the
subscription must be at the end. His name can also
stronger spouse cannot exert influence in the
be written by a person authorized, in his presence, negotiating table. However, there is no necessity
by his express direction, in the presence of three
to extend the limitation to donations outside the
or more witness attesting and subscribing to the
settlement, because the likelihood of exerting
document. The person authorized to write the
influence is sparse.

36
Article 85 choice to revoke the donation regardless

if bad faith is present or not.
Donation with encumbrance will not prejudice
4) In a bigamous marriage, the innocent
the donee. If the property is foreclosed to pay for
spouse in the subsequent marriage may
the debt of the donor, the donee will not be liable
revoke his or her donation by choice,
if the property is sold at a lower price. If the after the declaration of nullity of the
property is sold at a higher price, the excess will bigamous marriage. The donation of the
go to the donee. Note that the donee cannot ask guilty spouse to the other spouse may be
for reimbursement of the property from the donor.
void if they are both guilty of
Article 86 concubinage or adultery at the time of the
Pursuant to Article 81, donations included in the donation (Article 739[2]). If at the time of the
settlement will be void if the marriage does not donation they were living as husband and wife,
take place. If the donation is outside the the donation is also void. If the marriage of A and
settlement, the choice is upon the donor. There is B is void but without judicial declaration, and A
no prescriptive period in Title III of Book III of marries another, then their donation can only be
the Civil Code, but Article 1149 generally revoked after a judicial declaration of nullity for
provides a 5-year prescriptive period right after their marriage (Article 40 of the Family Code).
the right of action arises. Hence, the date of the Note that if the donation was made prior to their
supposed marriage is the reckoning date. subsequent marriage, while they were living as
However, if the donation is void because of husband and wife, then it is void under Article 87
Article 81, there is no prescriptive period. of the Family Code.
Note that donations independent of the marriage, 5) If they both acted in good faith, the
regardless if in a settlement or in a public option is still available under Article 86
document, are valid. If they fail to register the liquidated property in
For void marriages, there are the possibilities: the proper registry, the subsequent marriage is
void under Article 52. The prescriptive period is
1) Pursuant to Article 40, or in relation to 5 years, and any of the spouse may revoke the
Articles 52 and 53 donation.
In the case of Valdes v RTC, if donee contracted For marriages without parental consent, Articles
subsequent marriage in bad faith, donations 14, 45 and 236 of the Family Code make the
propter nuptias are automatically revoked by marriage voidable. The donor may revoke the
operation of Article 50 in relation to 40, and 43(3). donation propter nuptias. In this case, there is no
The prescriptive period for movable property is 8 need for the marriage to be annulled first.
years (Article 1140). For real estate, 30 years In annulled marriages where the donee acted in
(Article 1141). The starting date is the declaration bad faith, Article 86(3) and Article 50 in relation
of nullity of the second marriage. to Article 43(3) have conflicting remedies.
2) If both parties acted in bad faith for a For Sta. Maria, the latter provision is, as a general
subsequent marriage after a declaration rule, the provision that expresses the latter intent
of presumptive death of ones spouse of the framers (State ex tel. Gen v Toledo), but
(Article 41), this is void pursuant to the earlier provision is more in line with state
Article 44 interest.
3) In cases where the marriage is void not
under the preceding numbers, Article Observe that not all annullable marriages are
86(1) will apply. The donor will have a based on the bad faith. The aggrieved party does

37
not necessarily have a spouse in bad faith. If this 1) To a stepchild who has no compulsory
is the case, the donation propter nuptias may not legal heirs other than the other spouse at
be revoked under Article 50 in relation to 40 or the time of the donation
Article 43(3) of the Family Code. 2) To a common child with the same
situation above
In legal separation, there is only 5 years from the 3) Parents of the other spouse
declaration of the finality of legal separation for 4) To the adopted child of a spouse with the
the spouse to revoke his or her donation. However, same situation as the first number
in Article 739(1) of the Civil Code, a donation
5) To a common adopted child with the
made to a spouse who is guilty of concubinage
same situation as the first number
and adultery is void.
Giving donations to a common child is legitimate
A resolutory condition can extinguish the
if it is for the pursuit of a profession. However,
obligation on contracts. For instance, a condition
giving donations to a common child who does not
that the donation will not be revoke if the spouses
have a compulsory heir is not allowed, if not for
stay in the country is extinguished once they
the reason mentioned. The amount of which shall
migrate. be chargeable to the ACP or the CPG.
Acts of ingratitude are under Article 765 of the
Only individuals who have an interest to the
Civil Code. Examples are offenses against
donation can challenge (Harding v Commercial
persons, honor, property, of a spouse or of a child,
Union Assurance, Co.)
imputing a spouse of a criminal offense, refusal
to support, etc. If the person commits any of these In Rodriguez v Rodriguez, the mother sold her
acts, the other spouse can do it one year after the property to her daughter, who later sold the same
commission. However, mortgages and to the father. However, since the parties are in
alienations effected before the complaint are pari delicto, no recovery was allowed for the
valid (Article 766). guilty party.
Donations given to a spouse who commits The concept of Reserva Troncal provided in
concubinage or adultery are void (Article 739). Article 891 of the Civil Code means that an
ascendant who acquires inherits property from a
Article 87
descendant must reserve such property for the
Any donation in violation of Article 87 is void. benefit of relatives of the descendant within the
The exceptions are moderate gifts on the occasion third degree and who belong to the line from
of family rejoicing. Ancient law according to which the said property came, if the property
Justice J.B.L. Reyes prevents undue influence of inherited is acquired by gratuitous title from
one to the other. another ascendant, or a brother or sister. This is to
ensure that the money stays within the bloodline.
In Matabuena v Cervantes, the prohibition was
extended even to couples who live without the Chapter 3- System of Absolute Community
benefit of marriage. In Agapay v Palang, the
Section 1. General Provisions
Supreme Court prohibited the act of selling the
husbands property to the wife of a subsequent Article 88
bigamous marriage in order to circumvent the
All properties acquired prior to the marriage and
effects of Article 148. It was said that the
those acquired thereafter are part of the ACP. In
conveyance was by way of donation, still.
a separation of property regime, those that were
This article includes: not agreed to be separate belong to the ACP by
operation of law (Article 144). Spouses become

38
co-owners, but waiver of rights may not be made 2) Those acquired by gratuitous title
except in the case of judicial separation of
It must be a gratuitous acquisition during the
property.
marriage. If done before, it will form part of the
The only articles not included in the absolute ACP upon marriage. The fruits and income of
community are those in Article 92, and those that such will also be included in the exceptions.
are excluded by spouses in their marriage
The exception herein is when the testator or the
settlement.
donor expressly says that the property be included
In both ACP and CPG, an alien cannot have any in the ACP, or only the income and fruits.
interest in the property regime. In Matthews v
3) Personal and exclusive use
Taylor, a Filipina spouse was allowed to enter
into lease agreement without the consent of the The exception is jewelry. Otherwise, items that
alien spouse. Allowing the spouse to have an are for personal use, either acquired prior or
interest in the property regime will circumvent during marriage, form part of the separate
the prohibition in the Constitution against alien property. However, if the property is of high
acquisition of property. value, even if it is for exclusive use, then it forms
In the Constitution, alien are prohibited from part of the ACP.
acquiring lands, private or public, except by 4) Property from previous marriage
virtue of inheritance. In Cheesman v IAC, the
wife sold a land registered under her name to a Property acquired from a previous marriage
third person without knowledge of the petitioner. where legitimate descendants are present will not
The Supreme Court said that the foreigner did not be included in the ACP. This includes fruits and
acquire any right over the land when the purchase income thereof, if any. Do note that descendants
was made. Hence, the selling of the property was mean children, grandchildren, etc. that are of
valid. legitimate line.
Any stipulation about the commencement of the If the child is born out of a void marriage other
ACP or CPG not during the precise moment of than those declared as void under Article 36, 53
marriage is void. and 53, then the property acquired during that
marriage will form part of the ACP of the next.
Articles 89-93 The law protects the presumptive legitime of the
legitimate descendants.
This is a special type of co-ownership. The use of
the property may be made provided it does not Also, if the previous marriage is terminated by
injure the interest of the co-owner. Here, no death, and no liquidation occurs, a complete
waiver of rights may be made, except during separation of property will govern pursuant to
judicial separation of property. The reason is that Article 103.
the rights of co-owners are still inchoate.
Under Article 109(4) of the Family Code,
Whenever there is a judicial separation of property acquired by use of exclusive property
property, legal separation, etc. where one spouse will not form part of the conjugal partnership.
may waive his right over his share of the property, There is no such provision for absolute
and creditors may have an interest over that share, community. Hence, any purchase made using the
they can petition for the rescission of the waiver exclusive property will now form part of the ACP,
only to the extent that covers the obligation. unless such property falls within the excluded
properties. Even property from a previous
There are four excluded properties from the ACP:
marriage with legitimate descendants, when used
1) Marriage settlement

39
to purchase new property, will form part of the preservation of separate property that is used by
ACP. the family can be chargeable to the ACP.
Section 3- Charges upon and Obligations of Expenses or donation for self-improvement must
the Absolute Community be done by both spouses if being given to the
child. If only one spouse donates, and the child
Article 94
does not have descendants, this can be an indirect
Support is the most sacred of all obligations. donation to the other spouse which is prohibited
Other charges may fail but this one cannot fail under Article 87.
(Sumulong v Cembrano). It will encompass
Note that liabilities as a result of crime or quasi-
everything that is necessary for sustenance.
delict are chargeable only to the separate property
The support of illegitimate children is governed of the convict.
by the provision on support in the Family Code.
In case of suit in between spouses, the ACP shall
Such will be taken from the separate property of
be liable, provided that the suit is not groundless.
the parent-spouse. In case of insufficiency, the
ACP can advance the payment for support, In the event that the ACP is the one thats
subject to reimbursement during liquidation. insufficient, then both spouses shall be solidary
liable. The exceptions are ante-nuptial debts that
If the administration of the property is given to did not redound to the family, the support of
one spouse, and he or she contracted a debt, the
illegitimate children, and liability incurred as a
ACP is liable. Of course, there must be proof that result of a crime or quasi-delict. This means that
the benefit redounded to the family. Otherwise, it
if the separate property of an offender-spouse is
will be charged upon that administrators separate
insufficient, and the ACP is not able to cover the
property.
liability, the separate property of the other spouse
If the debt is acquired as a result of the act of both may not be liable.
spouses, or the act of one but with the consent of
If the separate property of one spouse becomes
the other, there is no need to prove that the benefit
insolvent because of debts incurred, and these
redounded to the family. The ACP is liable.
debts did not redound to the ACP, the ACP is
Assuming the debt is incurred by one without the shielded against encumbrance by the creditors. In
consent of the other, then the ACP is liable only these cases, the power to administer the ACP may
to the extent where it benefitted. be transferred to the other spouse to ensure that
Even debts incurred prior to the marriage, if the insolvent-spouse does not use the ACP to pay
proven to have redounded to the family, can be off the debts.
chargeable upon the ACP. If it did not, then the *What if the husband used the ACP to pay off his
debtor-spouse is liable alone. In the instance that debts that did not redound to the benefit of the
his properties are not sufficient, then the ACP will
family? This may not be advanced by the ACP.
advance the payment of the debt, without
Hence, there is a debt incurred from the ACP, and
prejudice to reimbursement upon liquidation.
there might be no need to wait for liquidation for
A loss resulting from the exercise of a profession reimbursement.
or business shall be chargeable to the ACP (Ayala
Article 95
Investment v CA).
What may be lost shall be incurred solely by the
Taxes, liens, charges, repairs will be chargeable
separate property, but what may be won belongs
to the ACP, with or without the consent of the
to the ACP.
other spouse. Taxes, expenses for the

40
However, if what was given to the spouse is a If for instance, the wife had knowledge of the
winning ticket in the lottery, with consideration, pending sale of their land, and the husband sold it
winnings shall belong to the separate property, even without the consent of such wife, then the
because it can be considered as gratuitous title. sale will be voidable. The wife shall have 5 years
from the implementation of the contract to annul
Section 4- Ownership, Administration of the it (Ravina v Abrille).
Absolute Community
When one spouse is incapacitated to administer
Article 96 the property, the other spouse may assume the
It may be possible to validly delegate the sole authority. If the case is abandonment, a
administration of the absolute community to one summary judicial proceeding must be undertaken.
spouse via marriage settlement. However, if the cause is an incapacitating
sickness, then a judicial guardianship proceeding
Normally, both of them shall administer the should be undertaken (Uy v CA).
absolute community. However, it does not mean
that they have to act together always. For instance, Such sole administration does not include the
the certificate for non-forum shopping need not power to encumber or alienate property, which
be signed by both spouses. still require the written consent of the
incapacitated spouse, or judicial authorization.
When it comes to repairs of their property, one Otherwise, it will be void, and shall be a
can act without the prior consent of the other continuing offer until consent or authorization is
because of the necessity of action. Note that secured.
repairs are different from improvements and
alterations, which would necessitate prior consent Article 97
regardless if the improvements will benefit the
A will is an act where a person is able to control
property.
the disposition of his property after his death,
In cases of disagreement, the decision of the subject to limitations provided by law. The
husband will prevail to avoid a vacuum, but this legitime is that part of the estate of the deceased
is without prejudice to a judicial recourse by the which is reserved for the compulsory heirs.
wife. In an ACP, a spouse can dispose of his or her own
Note that the power to administer does not separate property, and his interest in the co-
include alienation, encumbrance or disposition, ownership.
because these require prior consent or
Article 98
authorization.
This prohibition of donation without the consent
If one sells a property without consent of the other,
of the other is to secure the property from
or without judicial authorization, then the prodigality (Estate of McNutt). If both consent,
disposition is void. Prior to the Family Code, the then the donation is valid, without prejudice to
contract is voidable only (Vda. de Ramones v rescission if the donation infringes upon the
Agbayani).
presumptive legitimes of their heirs.
However, if there is good faith on the part of the Section 5- Dissolution of the Absolute
buyer, and in cases of fictitious representation by Community
a spouse in the TCT as single, then the sale cannot
be void. The remedy of the aggrieved spouse is to Article 99
compel the erring spouse to account for the
proceeds (PNB v CA). Dissolution of the ACP does not mean dissolution
of the marriage. Under Article 99, there are four

41
ways by which the co-ownership may be Another case where the property regime is
dissolved. dissolved and liquidated is when a spouse who
was presumptively declared as dead files a
By the death of one spouse, the ACP shall be
certificate of reappearance. This will terminate
dissolved. This shall be liquidated in the same
the valid second marriage, and property
proceedings as the settlement of the estate of the dissolution will follow. Again, if one spouse was
deceased. in bad faith, his or her share will be forfeited in
Upon decree of legal separation, the ACP should favor of the common children, his or her children,
also be liquidated. The offender spouse will have or the innocent spouse.
no right over the net profits earned by the ACP or Article 100
the CPG, and shall be forfeited in accordance
with Article 43(2). Of course, this is subject to The ACP shall remain intact upon the separation
revival pursuant to Article 63(2). in fact of spouses. However, exceptions are
provided under Article 100:
Annulment will also dissolve the property, but if
one spouse acted in bad faith, then his or her share 1) The spouse who left the conjugal home
of the net profits will be forfeited in favor of the will not be eligible for support. However,
common children, his children from a previous fault must be proved. Note that only
marriage, or the innocent spouse. support is withdrawn, and under Article
94, the spouse is still eligible for support
In a void marriage, there is no ACP or CPG as a
for any expense to enable him or her to
general rule. It is governed by Article 147 or 148.
commence or complete a professional or
Hence, the provisions on co-ownership of the
vocational training. Debts incurred that
Civil Code will govern and not the Family Code. may redound to the family can still be
However, if one spouse is in bad faith, his share
charged to the ACP.
over the net profits will again be forfeited. 2) When the consent cannot be secured, the
Note that ACP or CPG can govern a void present spouse may ask for court
marriage if done under Article 40. In Valdes v authorization
RTC, Supreme Court said that this is pro hac vice. 3) In cases where they are solidarily liable,
the spouse may again ask for judicial
In Carino v Carino, the Court said that since the authorization to encumber separate
marriage is bigamous, it falls into Article 148 and properties of the absent spouse to satisfy
thus, is not governed by ACP or CPG. According the liability of both spouses.
to Sta. Maria, this is a wrong ruling, because if
this interpretation is followed, then there will be Article 101
no void marriage that still makes use of the ACP
Article 101 and Article 128 are the same in a
or the CPG regimes. This will make Article 99(3)
sense that a spouse who abandons the other,
nugatory. proven by the absence of the intent to return and
Judicial separation of property is also one ground the evidence of absolute cessation of marital
for the dissolution of the ACP. It may be relations, duties and rights, may give rise for a
voluntary or involuntary. If agreed upon by both, right of action for the aggrieved spouse.
then it will need judicial approval under Article The possible recourse of the spouse is to ask for a
136. This privilege may only be used once
judicial separation of property, right of
(Article 141[7]). If involuntary, it falls under receivership, or to be the sole administrator of the
Article 135 of the Family Code.
property.

42
Abandonment must mean financial, moral and Section 2, Rule 73 of the Rules of Court provides
physical desertion (Dela Cruz v Dela Cruz). that the liquidation of the property shall be made
in the same estate or intestate proceedings of the
A spouse who also fails to comply with marital
deceased.
obligations may give rise to a cause of action
under this Article. Example is when the sole However, if the decedent left no will and no debts,
administrator abuses his authority. However, it and the heirs are all of age, or the minors are
has been held in Dela Cruz v Dela Cruz that legally represented, the parties may divide the
failure or refusal to inform the other spouse of the estate among themselves as they see fit using a
progress of the family business does not by itself public instrument. It should be filed in the register
constitute abuse. of deeds. In case of disagreement in this situation,
they can file for an ordinary action for partition.
Section 6- Liquidation of the Absolute
Community Assets and Liabilities If after a lapse of one year, no liquidation is made,
then any encumbrance or disposition is void.
In a voluntary judicial separation of property, the Likewise, a disposition of the property prior to the
parties may provide for the procedure of the
liquidation in the estate proceedings will also be
liquidation, provided it is approved by the Court.
void because of prematurity.
An inventory is made where all property of both
Upon the death of a spouse, the rights of his or
spouses, separate or ACP, is listed, itemized and
her heirs vest. The ACP between the two spouses
usually valued. In appraising properties, it is not
will evolve into a co-ownership between the
the purchase but the market, or in default thereof,
surviving spouse and the heirs of the deceased
the assessed value at the time of the liquidation
(Marigsa v Macabuntoc). Hence, upon the death,
that must be taken into account (Prado v an heir can attach his interest to the property over
Natividad).
which he or she exercises dominion. Again, this
Since an inventory takes a lot of time, an update cannot be encumbered until the interest has
may be made as long as all the property is updated. become an actual right over the property upon
inheritance.
Debts are paid upon liquidation of the ACP.
However, here, the advanced may be the ACP Upon death of a spouse, the ACP or CPG is
should be paid out by the separate property. After dissolved. No complaint for the collection of
which, the exclusive properties of both spouses indebtedness may be raised against the regime.
shall be delivered to them. The net assets of the No claim may be raised against the surviving
ACP is also equally divided unless a previous spouse, unless they are solidarily liable. The
agreement is made. Relevantly, if one is in bad recourse is to claim against the estate of the
faith in an annulment or legal separation decree, deceased.
then his or her share over the net profit will be
If the surviving spouse validly marries without
forfeited. securing a liquidation, and registering the same to
The next part will be the delivery of the the proper registries, then the next marriage will
presumptive legitimes of the compulsory heirs. be under a mandatory complete separation of
However, this will only happen if the case is property regime. Even if the subsequent valid
annulment, or a declaration of nullity under marriage stipulates in the marriage settlement that
Article 40 in relation to Articles 52 and 53. ACP or CPG shall govern, it will be void for not
Otherwise, there is no need for the delivery. being within the limits set out by law. This is to
avoid confusion over the property from the first
Article 103 marriage and the subsequent one, no matter how
valid the second marriage is.

43
Article 104 Any stipulation that excludes a partner from a

share of any property that belongs to the
This refers to two marriages contracted prior to
partnership is void.
August 3, 1988, and the ACP of both marriages
are to be liquidated simultaneously. In the case of Baloloy v Hular and Adlawan v
Determination of where the property belongs will Adlawan, the Supreme Court said that not all co-
depend on the proof presented by contending owners need to be co-plaintiff in a case because
claimants in accordance with the rules of the suit of one to benefit the interest of the CPG
evidence. is presumed to be for the benefit of all.
In case of doubt, then it shall be partitioned based Section 109
on capital and duration of each marriage.
All respective properties brought into the
marriage belong to the spouses exclusively. The
partnership does not produce a merge (National
Chapter 4- Conjugal Partnership of Gains
Bank v Quintos).
Section 1- General Provisions
In the event that a property was bought before
Articles 105-106 marriage, but the title of which as only perfected
during marriage, the property is still exclusive.
In the CPG property regime, the spouses place in The test is to see whether the transfer of
a common fund the fruit of their separate ownership occurred prior or during marriage,
properties and the income from their work and regardless of the pending formalities (Plata v
industry. Yatco).
The fruits of the paraphernal property of the wife In the event that the CPG is insufficient to pay off
can be used for the payment of the expenses of conjugal debts, then the exclusive property of
the family, but not for the payment of the both spouses shall be solidarily liable under
obligations of the husband, insofar as it does not Article 121(2).
redound to the benefit of the family (Quitos v
Sheriff of Manila). Property acquired by gratuitous title also belongs
to the exclusive property of the donee-spouse,
The proof of acquisition of property during the because these are acts of liberality made by a
marriage suffices to render statutory presumption donor/testator, and his or her will must be
of conjugality to attach (Go v Yamane). Any one respected in the process of the donation or
spouse cannot dictate that such property belongs inheritance.
or does not belong to the CPG.
*Does an honorarium fall under the exclusive
Article 107 property of the receiver? Yes, these are titles
In the same way as the ACP, CPG shall given based on voluntary donation (Santiago v
commence at the precise time of marriage. No COA).
waiver of rights may also be made, except during Note that in CPG, as different from ACP, the
judicial separation of property under Article 136 fruits or income of property acquired by
of the Family Code. gratuitous title are conjugal. In ACP, unless the
Article 108 testator or the donor provides that the fruits or
income of a donation shall belong to the
CPG is like a special type of partnership, wherein community, it is presumed to be separate.
the rules on partnership apply in a suppletory
manner. Property acquired by redemption, barter and
exchange shall also be separate property. In fact,

44
if the right of redemption belongs to one spouse, administrator-spouse, because there is already
even of conjugal funds are used to redeem such judicial authorization.
property, it shall be exclusive, subject to
Articles 113-144
reimbursement that should be made by the
separate property in favor of the CPG upon If a donor donates to one of the spouses, it shall
liquidation. be considered as his or her separate property.
However, in the absence of such designation, it
In the absence of proof that the right to
redemption exists, then property re-acquired shall form part of the separate property of both
during marriage shall be presumed to be conjugal and shall be equally shared, unless a proportion is
(Zulueta v Pan American World Airways, Inc.) provided by the donor.
Property acquired by exchange (barter) shall The right to accretion in case of donation is
remain to be separate. However, if the property is possible if made for a conjugal partnership. This
is an exception because the right to accretion is
used for the purchase price of a new property,
then it shall become conjugal, subject to the right usually not allowed unless expressly provided. In
normal donation, a co-donee cannot
to reimbursement upon liquidation.
independently accept accretion (Genato v De
Article 110 Lorenzo). If the wife does not accept the donation,
then the husband may by right of accretion accept
The transfer of administration may occur in a
the part donated to the wife.
marriage, but that does not exclude the owner-
spouse from encumbering, alienating, disposing If conjugal funds are used to pay for the interest
of his or her own property. of onerous donations, the property will still be
separate, subject to reimbursement after
If the property of the wife was wrongfully
liquidation of the conjugal partnership.
attached by the Sheriff to pay for the obligations
of the husband, then the wife can petition for the Article 115
annulment of the sale (Naguit v CA).
Pensons, annuities, retirement benefits will be
Articles 111-112 conjugal or separate depending on the
circumstances.
Article 111 is already superfluous since it is
impossible to have the right to encumber property It was held in Mendoza v Dizon that any act of
while being a minor, since the capacity to marry liberality from the government in recognition of
is bestowed upon reaching the age of majority. the performance of their employees shall belong
to the separate property. However, if it is acquired
Assuming the other spouse has the right to
as a matter of right, it is not a gratuity (Heirs of
administer some of the property of one spouse,
Berganon v Imperial).
once he or she sells his property, this in effect
terminates the authority of the other to administer If the pension is an accumulation of the work one
such property. has made, then there is no act of liberality from
the pension. It shall form part of the conjugal
However, a limitation is imposed upon Article
partnership (Eclar v Eclar).
112. In case where the spouses are separated in
fact, and one is allowed to become administrator Section 3- Conjugal Partnership Property
of the separate property of the absent spouse in
order to pay off conjugal debts in case of Article 116
insufficiency of the conjugal funds, his In Jocson v CA, the SC said that for the
disapproval will not terminate the authority of the presumption in favor of the conjugal funds to

45
operate, there must be proof first that the property This contemplates a situation where the
was indeed acquired during the marriage. installment deal was initiated prior to the
marriage. The determinative test is when the title
If a land is purchased, and it is named before both
was vested to one of the spouses. Regardless of
spouses, it is presumed to be conjugal. But of
the proportion of the expense paid out by the
course, upon liquidation, it must be noted that this conjugal funds in relation to the separate property
may just be an act of love, even though the of a spouse, the test will be decisive. The caveat
ownership really belongs to one spouse. is that wherever the ownership is vested, it shall
In Wong v IAC, the Supreme Court said that a have the responsibility of reimbursing the other
property proven to be acquired during marriage upon liquidation.
shall enjoy the presumption unless there is a clear Friar lands bought by the woman before her
and convincing evidence to prove the contrary.
marriage, even if conjugal funds are used to finish
Article 117 the purchase, still belong to the separate property
(Lorenzo v Nicolas). If the ownership shall vest
Damages granted by the court in favor of any of only upon the last payment in the installment
the spouses arising out a contract solely financed scheme, then it is conjugal (Jovellano v CA).
by the conjugal partnership belongs to the
conjugal funds. However, if the damages are In case where the property is bought during
given based on a quasi-delict committed to one of marriage using separate property and the conjugal
the spouses, then it shall form part of the separate funds, the Supreme Court said that it will be
property. A civil indemnity given to a wife partly conjugal and partly exclusive, its
because of a scar caused by an automobile proportion depending on how much was paid out
accident is personal and exclusive to her (Lilius v by the respective funds. (Castillo, Jr. v Pasco).
Manila Railroad Co.) However, this is questionable under the current
Family Code, because property acquired during
Anything acquired through the labor, work, marriage should enjoy the presumption of being
profession or industry of any spouse belongs to purely conjugal, subject of course to
the conjugal partnership. reimbursement.
Net fruits of separate property will also be Article 119
conjugal.
In a situation where one spouse has in his favor
Those that are acquired from hidden treasures, or credit payable by installment, payment done by
shares out of the sale of hidden treasures, shall be the third parties during marriage will still fall into
conjugal. the exclusive property. However, the interest of
In case of livestock, those that are in excess of the such credit will belong to the conjugal funds.
original number shall belong to the partnership. Article 120
In deciding which of which belongs to the
separate property, the general rule is that the If the value of the improvement and any resulting
debtor cannot offer the worst, while the creditor increase in the value of the separate property are
cannot demand the best. more than the value of the separate property at the
time of the improvement, then the property will
If a person gives one spouse a winning lotto ticket be transferred to the conjugal partnership, subject
without consideration, then the winnings to reimbursement.
therefrom shall belong to the conjugal partnership
as it falls under income. Can the surviving spouse claim a share of the
property sold by the deceased spouse to a third
Article 118 person, where conjugal funds were used for the

46
improvements thereof? No, the Supreme Court husband as a guarantor in a contract entered into
said in Ferrer v Ferrer that the cause of action by his friend. Such does not directly benefit the
arises only during the time where the husband still family, and any liability should be paid out by his
owned the separate property. exclusive property.
Note that under this Article, the conjugal In Pelayo v Perez, the signing of the wife as
partnership owns the property only as a matter of witness in a contract meant that she impliedly
usufruct. Hence, the land is still owned by the consented to the contract of sale made by the
separate property, until the value of the land is husband.
paid, and this payment can only be demandable
upon liquidation (Maramba v Lozano). Note that so long as the separate property of each
spouse is solvent, the conjugal partnership cannot
Hence, the owner-spouse still owns the separate be made to pay for their exclusive obligations,
property even if the improvements and the except insofar as it redounded for the benefit of
resulting increase in the property exceed the value the family.
of the separate property, and such is exempted
Article 122
from levying to satisfy a conjugal debt (Maramba
v Lozano). For the third paragraph of Article 122 to operate,
it must be proven that obligations under Article
In the case of In Re Padilla, the Supreme Court
121 have already been covered, and that the
clarified that the building of an establishment
exclusive property of debtor-spouse has already
over a paraphernal lot does not extinguish the
been exhausted.
ownership of the wife over such parcel of land.
In Lacson v Diaz, the Supreme Court said that it
Section 4- Charges upon the Conjugal
is incumbent for the spouse who seeks to use the
Partnership
conjugal funds to advance the payment to show
Article 121 that the requisites have already been satisfied.
The only difference between the charges upon the Fines and indemnity imposed upon either spouse
absolute community regime and the conjugal are chargeable upon the conjugal funds after
partnership is that the support for illegitimate complying with Article 122.
children, liabilities arising from crimes and quasi-
The difference of this Article with the provisions
delict are placed in a separate Article because of
on absolute community is that the absolute
a different rule.
community can be liable if it is proven that the
Note that in proving that the debt incurred by one separate property of the spouse is insufficient,
spouse without the consent of the other, the regardless if the obligations are all taken care of.
burden of proof shall belong to the creditor. It
cannot be a spin-off or a by-product. It must be In Spouses Buado v CA, the Supreme Court
direct. There is a protection given by the law to allowed a husband, as a third party, to question
the conjugal partnership (Ayala Investment & the execution of their conjugal properties as a
result of a slander committed by a wife. This is
Development Corporation v CA).
because the obligation did not redound to the
If the husband incurs debts to improve his benefit of the family. There is no benefit,
business, which is used for the benefit of the obviously, because the obligation was incurred
family, it cannot be said that the liability is because of a quasi-delict.
exclusive (Cobb-Perez v Lantin).
Article 123
The best example of a debt that does not redound
to the family directly, is the participation of the

47
Whatever may be won in games of chance shall Do note that the leaving of one spouse does not
belong to the partnership. justify non-liability of the CPG to instances
where it should be liable. The only except, again,
Section 5- Administration of the Conjugal
is support.
Partnership Property
Article 128
Articles 124-125
Same as Article 101
Note that if the conjugal partnership does not
provide for equal sharing of the conjugal funds Section 7- Liquidation of the Partnership
because of a stipulation from the marriage Assets and Liabilities
settlement, it does not affect the equal footing
Article 129
guaranteed by the law for both spouses in
administering the same. The conjugal partnership may be liquidated by
extrajudicial settlement, ordinary action, or by
When a spouse alienates a conjugal property
way of testate or intestate proceedings (Villocino
without the consent of the other, it is invalid
v Doyon).
insofar as the share of the prejudiced spouse is
concerned (Baello v Villanueva). However, since After inventory, credits in favor of the CPG shall
their shares are inchoate, it may be hard to be reimbursed. Reimbursement in favor of the
determine the exact part of a wife or a husband. spouses shall follow, in case where the CPG was
Hence, a petition for nullity of the sale shall not advanced by their separate properties in solidary
only be a partial annulment, but can be an liability.
absolute annulment of the sale. This is why in
Homeowners Savings & Loan Bank v Dailo, the After such reimbursement, that is the only time
Supreme Court ruled that selling without the where the debts and obligations of the partnership
consent of the other is void. are paid out. Here, the tombstone or the
mausoleum of the married spouse shall be paid
In case of an act of administration, and the wife is out by the conjugal fund.
informed of such sale but withheld consent, then
the act is merely annullable within 5 years from After which, what is left of the exclusive
the implementation of the contract. properties is delivered to the spouses. What
follows is the division of the net remainder of the
In Spouses Antonio v CA, the husband who sold conjugal fund. This shall be equally divided
conjugal property while the wife was unable to unless a prior agreement has been made with
participate because of a job hunt in Manila, the regard to the proportion.
Supreme Court ruled that such sale was null and
void pursuant to Article 124. The delivery of presumptive legitime, again, shall
only occur if the dissolution of the partnership is
Section 6- Dissolution of the Conjugal a result of a void or an annulled marriage under
Partnership Regime Articles 40 and 45, respectively, in relation with
Article 126 Article 51.
The conjugal dwelling shall be awarded to the
Death will dissolve the regime, because it is
spouse where majority of the children are stayin.
impossible to protect the rights of the deceased
and that the cause that made the partnership in the Article 130
first place is already terminated.
In Estonia v CA, the Supreme Court said that in
Article 127 the absence of proof that a property was acquired
during marriage, it shall be assumed to be
Article 127 is the same as Article 100.

48
separate property. After the death of the spouse, Article 229, Article 231(3), and Article 232 of the
the property shall be owned by the surviving Family Code enumerate the ground for the
spouse and the heirs. This means that attachment termination of parental authority.
to the property can only be to the extent of the part
The concept of abandonment is the same as what
owned by the surviving spouse.
was defined under Article 101. This ground also
Article 131 includes the failure to fulfil marital obligations.
There are three:
Same as the provision in Article 104.
1) Marital
Articles 132-133
2) Property
During the liquidation of the estate of the 3) Parental
deceased, the would-be heirs have a right to get
When an administrator-spouse abuses his
certain amounts from what they technically will
authority over the property, it can be ground for
receive after the settlement of the estate.
revocation and judicial separation of property. Do
Allowances given to the children during the note that mere injurious acts to the interest of the
period of litigation can be deductible from their other spouse do not constitute abuse. There must
inheritance (Lesaca v Lesaca). Grandchildren are be willful and utter disregard of the responsibility,
now allowed to get the property in advance evidence by repeated prejudicial acts to the
(Babao v Villavicencio). conjugal partnership and to the other spouse.
Chapter 5- Separation of Property For separation of fact to be invoked as a ground,

there must be separation for 1 year, and that
Article 134 reconciliation should be highly improbable.
If the husband and wife, prior to the marriage, had Article 136
not provided that a separation of property will
govern their regime, then changing to a There is also a choice to voluntarily separate the
separation of property regime during the marriage property. This will take effect upon court decree
requires court approval. The reason behind, as (Toda, Jr. v CA).
said in Garcia v Manzano, is to discourage In this case, all the creditors must be listed and
separation of property as a regime. notified, so that their rights will be protected.
Article 135 When one waives his rights over the property and
it may prejudice the rights of creditors, they may
The final decision of the court convicting the petition for a rescission of the waiver only to the
spouse guilty of a crime that comes with civil extent necessary for the credit to be paid.
interdiction as an accessory penalty is enough for
a judicial separation to be approved ipso facto. When such separation of property becomes final
and executory, the fact that creditors were not
The absence of a person may be declared after notified will not invalidate the agreement (De
two years have elapsed without any news of him Ugalde v De Yasi). However, it will not prejudice
or her. If he or she left an administrator of the or bind the creditors.
property, 5 years is required (Article 384 of the
Civil Code). Article 137
Loss of parental authority can also be cause for The process laid down in Article 102 and Article
judicial separation of property, and the law does 137 must be observed upon liquidation.
not distinguish whether the child is a legitimate or
A partial separation of property may be possible,
illegitimate child.
if approved by the court (Maquillan v Maquillan).

49
Article 138 Article 144

Complete separation of property will only apply Separation may be present of future property and
after the decree from court, and shall not retroact it can also be partial or total. If partial, then those
from the time of the filing of the petition. not included in the agreement will be ACP.
Articles 139-140 It is invalid for the would-be spouses to declare
that ACP or CPG shall only be effective for a
The recording of the decree in the proper
certain time, and such will be substituted by the
registries will ensure that creditors may know
separation of property regime thereafter. The only
whether a property is conjugal or separate. It shall
way for separation of property during marriage
also now prejudice the right acquired by creditors.
can occur is by way of court approval.
Article 141
Articles 145-146
When the cause under Article 135 has abated,
Each spouse shall have the authority to administer
spouses may decide to go back to their previous
their property without need of consent from the
regime.
other.
Note that for voluntary separation of property, it
Chapter 7- Property Regime of Unions
can only be used once.
without Marriage
Judicial proceeding includes filing of a motion in
Article 147
the same court where the separation was decreed.
The agreement must be submitted under oath and This applies to void marriages (not falling under
shall include: 1) the properties to be contributed Article 140) where both spouses are capacitated
anew to the restored regime, 2) those to be to marry each other.
retained as separate, and 3) the list of creditors.
This is called an informal civil relationship
*Is it possible to voluntarily revive the previous (Lesaca v Lesaca). Requisites:
regime even if the cause for the decree allowing
1) Both must live exclusively with each
the separation still subsists under Article 135 and
other
not under Article 136?
2) Must be capacitated to marry each other
Article 142 3) Be without the benefit of marriage
When one spouse is designated as guardian, he The structure of the relations is as follows:
may be designated as administrator of the
1) Salaries and wages owned by them in
property of the spouse.
equal shares
If the spouse is not qualified by reason of 2) Property acquired using exclusive funds
incompetence or conflict of interest, it may be is exclusive, provided there is proof
possible to appoint a third party. 3) Property acquired by work or industry
shall be governed by the rules on co-
Chapter 6- Regime of Separation of Property
ownership. They may encumber these
Article 143 property exclusively
4) Property acquired while they live
The marriage settlement shall principally govern together are presumed to be jointly
such regime, because the absence of the marriage acquired. If the others contribution is in
settlement will lead to ACP being the default the form of maintenance of the family,
regime. These provisions shall be of suppletory then the person is still entitled.
character.

50
5) Fruits of the separate property are not 2) Adulterous relationship even if it

included in the co-ownership (Valdes v occurred prior to the effectivity of the
RTC). Family Code (Atienza v De Castro).
6) Property acquired after separation in fact 3) Bigamous or polygamous marriage
will be exclusively owned 4) Incestuous marriage
7) Neither can dispose inter vivos his 5) Void by reason of public policy under
property acquired during the cohabitation. Article 38
Donation between them shall also be
Here, it is a limited co-ownership:
void under Article 87
8) When one is in bad faith and the other is 1) Salaries and wages are separately owned
not, the share of the party in bad faith in by the parties, and it the party is married,
the co-ownership shall be forfeited in it will form part of the ACP or the CPG
favor of the common children or their of the valid marriage
descendants, or the innocent party. 2) Property acquired by exclusive funds will
belong to exclusive property
The liquidation of the separate property upon
separation shall be based on the provisions of co- 3) Property acquired by both parties through
ownership in the Civil Code, provided they are joint effort shall be proportionally
distributed based on efforts
not in conflict with Articles 50, 51 and 52 in
relation to Articles 102 and 129. 4) Respective shares over properties owned
in common are equal. Proof may be
Articles 102(6) and 129(9) will not apply to a shown to prove that theyre not equal.
void marriage. The conjugal home, hence, shall
Note that without proof of contribution, there can
be co-owned and be divided equally.
be no presumption of equal sharing or co-
In fact, the Valdes v RTC ruling clarified that the ownership (Villanueva v CA).
procedure under paragraphs (2), (3), (4) and (5)
5) Rule and presumption above will apply
of Article 43 relates only to void marriage under
to joint deposits
Article 40 and voidable marriages under Article
6) If one is validly married to another, his or
45. That is why when a party is in bad faith in a
her share will belong to the ACP or CPG
void marriage under Article 40, only his or hers
of such marriage. If he is in bad faith, it
share in the net profits are forfeited. If a party is
will be forfeited in accordance with
in bad faith in a void marriage other than Article
40, all his share in the co-ownership is forfeited. Article 147.
In Juaniza v Jose, a woman living in a bigamous
Article 148
relationship was sought to be held liable for an
If the marriage does not fall within the ambit of accident involving a vehicle driven by the
Article 147 and Article 40, it will fall under bigamous husband. Supreme Court said that since
Article 148. Parties may be co-owner of the the property belonged to the previous marriage,
property upon showing of proof that they actually the woman cannot be held liable.
made contributions for such. Administering the
property does not prove co-ownership (Tumlos v In Agapay v Palang, the Supreme Court ruled that
only those property that are jointly acquired shall
Fernandez). The relationship is as follows:
be owned by them in common in proportion to
1) A man and a woman living together as their contributions. It is not the same with Article
husband and wife, without benefit of 147, where maintaining the household can be
marriage, but are not capacitated to marry invoked as a contribution.

51
If there is a bigamous marriage, then Article 148 Collateral relatives who are not brothers or sisters
governs. But if there is a void marriage, and the are also not included (Mendez v Eugenia).
second one is voided because of the absence of a
Before a suit between members of the same
judicial declaration of nullity for the first one, Sta.
family may prosper, an amicable settlement must
Maria claims that such void marriage can have an
ACP or CPG regime. Note that in the case of first be attempted. Otherwise, the suit must be
Nicdao Carino v Carino, the Supreme Court used dismissible. The wisdom behind is that a suit
Article 148 in a case of a void marriage under between family members are more tragic than
usual suits.
Article 40.
Title V- The Family There are cases where no earnest efforts for
compromise are required nor allowed:
Chapter 1- The Family as an Institution
1) Civil status of persons
Article 149 2) Validity of the marriage or of a legal
separation
Destructive agreements are void for being
3) Any ground for legal separation
contrary to public policy. An agreement that 4) Future support
allows both spouses to engage in concubinage or 5) Jurisdiction of courts
adultery is void.
6) Future legitime
According to Section 4, Rule 3 of the 1997 Rules
*Earnest efforts for compromise is not required
of Court, the husband and the wife must sue and nor allowed in legal separation, yet there must be
be sued jointly, except when the law provides
6 months before the court can proceed with trial?
otherwise. This is because they are impleaded as
representatives of the CPG or the ACP (Alipio v In Manalo v CA, it was ruled that in cases of settle
CA). of guardianship, custody of children, and habeas
corpus, the rule on earnest efforts does not apply.
However, in the case of Carandang v Heirs of
Quirino A. De Guzman, the Supreme Court ruled Committing theft, swindling or malicious
that in a CPG, the other party is not indispensable mischief against a family member shall be
in a case of recovery of property for the CPG. exempt from criminal liability. However, civil
liability shall still persist (Article 332 of the RPC).
Also, a spouse may appear alone in litigation if
The following are:
what is involved is his or her separate property
(Article 111). 1) Spouses, ascendants, and descendants, or
relatives by affinity in the same line
It is not necessary that they act together always.
2) Widowed spouse with respect to the
It is just recommended. In Docena v Lapesura,
property which belonged to the deceased
signing the non-forum shopping certification spouse prior to the transfer of ownership
does not require the other spouse. 3) Brothers and sisters and brothers-in-law
Articles 150-151 and sisters-in law, if living together.
In Gayon v Gayon, it was ruled that the Chapter 2- The Family Home
enumeration in the Article should be strictly
Articles 152-153
construed. Anyone not in the list is a stranger
from the perspective of family relations. There is The family home is constituted ipso facto. It will
no need for earnest efforts to compromise in case be constituted at the time of occupation (Arriola
of the involvement of a stranger in the suit. v Arriola). There is a required house and land on
which it is built.

52
Residing in the family home is a real right. There Article 155

is no constructive residence, otherwise, it will not
There are obligations that may be imposed upon
be a family home (Patricio v Dario III).
the family home. One of them is taxes. Being the
Staying temporarily in the US, while an overseer lifeblood of government (CIR v Goodrich), and
is staying in the house, cannot justify the the chief source of revenue (CIR v Yuseco), these
constitution of a house as a family home. must be paid immediately without delay.
By operation of law, all houses that may fall Debts existing prior to the constitution need not
under the definition of a family home were secure court judgement for them to be imposable
constituted into one during the effectivity of the upon the family home. This is used in its generic
Family Code on August 3, 1988. However, if sense. It can include money claims arising from
there are debts demandable prior to August 3, tort (People v Chavez).
1988, the Family Code may not be given
Article 156
retroactive effect.
There must be a fixed or permanent location. It
In case of married spouses, they must jointly
constitute the family home. Only an unmarried must be part of the ACP or the CPG, or the
head of a family may constitute the family home exclusive properties of either spouse with the
latters consent.
alone. However, in cases of legally separated
couples or those that are separated de facto, then A house erected on the property of another, or one
the occupancy of the beneficiaries can constitute that is rented, cannot constitute a family home.
the family home. However, a land subject to conditional sale can be
where the family home is constituted.
The most important benefit of the family home is
that it is exempted from execution, forced sale, or Article 157
attachment, and shall be so long as any of its
beneficiaries reside therein (Modequillo v Breva). Since actual occupancy is the operative fact of
constitution, then such must be less than 300
Article 154 thousand in urban areas, and 200 thousand in
rural areas, upon constitution.
Even if the said owners do not reside therein, the
presence of beneficiaries in the family home can Since the value of the law has not changed, any
keep its status (Manacop v CA). home worth more than 200 or 300 thousand, as
the case may be, is not a family home and may
To be a beneficiary, the following must concur:
therefore be subject to attachment, forced sale or
1) Among the relationships under Article execution.
154
The aim of the law is to protect the middle class,
2) Live in the family home
because they are the ones who can barely afford
3) Depend on the head of the family for
one decent home. The people who are rich do not
support
need the protection.
A grandson who is not dependent upon the head
Note that the value of the family home may
of the family, who is the grandfather, is not a
increase after constitution, no matter how huge
beneficiary because he depended on his father
(Patricio v Dario III). the increase is.
Article 158
Note that consent must be secured from all
beneficiaries of legal age before the house may be
disposed of by the owner.

53
The owner may choose to dispose, alienate, or Illegitimate children are those born outside of a
encumber the property, but the consent of the valid marriage or inside a void marriage. The
following must be obtained: exceptions are Articles 52, 53 and 54 and the
cases cited therein.
1) Person constituting the same
2) Latters spouse There are two types of artificial insemination-
3) Majority of the beneficiaries of legal age homologous and heterologous. The first one is
called AIH, while the second is AID (Artificial
Article 159 Insemination Donor). The second may be
Even after the death of the owner of the family consensual or nonconsensual. The recognition of
home, such will continue for a period of 10 years artificial insemination does not approve of its
or for as long as there is a minor beneficiary. The legality or morality, but only recognized its
heirs cannot partition unless the court finds existence.
compelling reasons therefore.
In the absence of authorization or ratification
*Does the prohibition for partition include the from both spouses, and the recording of such to
prohibition on selling, disposing of, or alienating the civil registry, the child will still be legitimate.
the family home, even if the required consent This can only give rise for the impugning of the
from different persons is secured? legitimacy of the child.
Article 160 A wife who had herself inseminated without the

consent of the husband cannot be incriminated for
Before the judgement creditor can avail of the adultery.
privilege under Article 160, there must be court
approval. Article 166-167
In any case, the minimum amount for the bid Only the husband, and in proper cases, his heirs
should be 300,000 for urban areas and 200,000 may impugn the legitimacy of the child. The
for rural areas. If the property is sold at an amount, legitimacy can likewise be questioned by
the minimum must be given to the family attacking the validity of the marriage, provided it
members first. does not fall under Article 36 or Article 53 of the
Family Code.
Articles 161-162
If the legitimacy is impugned, the child will
There can only be one family home. neither be legitimate or illegitimate in the eyes of
Title VI- Paternity and Filiation the husband, but they will just be unrelated with
each other. However, insofar as the mother is
Articles 163-165 concerned, the child is illegitimate.
The status of children can never be compromised The mother cannot question filiation, because we
(Baluyut v Baluyut). The policy of the Family are sure of the maternity. However, if the mother
Code is to liberalize the investigation of paternity, assails that fact that the child came from her
especially for illegitimate children. Prior to the womb, then it must be allowed (Benitez-Badua v
effectivity of the Family Code, there are five CA).
distinctions among illegitimate children. Before,
these were natural, natural by legal fiction, In the leading case of Macadangdang v CA, the
acknowledged or recognized natural, spurious, Supreme Court ruled that the presumption of
and adulterous children. Filiation is proved by legitimacy is conclusive in the absence of proof
ties and not left to the discretion of the husband to the contrary. It must be shown beyond
and wife nor the midwives (Angeles v Maglaya). reasonable doubt that there was no access or there

54
was physical impossibility for the couple to have There must be impossibility for sexual
sexual intercourse. intercourse to happen.
Impotence refers to the inability to copulate. In 4) Serious illness
the case of Menciano v San Jose, sterility and
If the illness is so serious such that physical
impotence were differentiated.
intercourse may be impossible, it can impugn the
In the case of Andal v Macaraig, a husband who legitimacy of the child.
had tuberculosis and was bedridden was not
5) Biological and scientific reasons may
believed to have been fully incapable of having
suffice
sexual intercourse with the wife.
If it can be proven that the child was of a different
The child is still presumed to be legitimate
race, it might be possible to impugn such
although the mother may have declared against it,
legitimacy. However, there must be absolute
or if the mother is convicted as an adulterer. First,
certainty that the family line of either spouses do
because anger against the husband may be the
not have that racial gene.
cause of such declaration, and that the status of
the child should not be at the mercy of his or her 6) Sterility
parents.
It must be shown that the husband was completely
However, if the husband can prove that he is sterile at the time the child was conceived. Even
impotent, or that access was impossible, then the a very low sperm count (100 to 150 per cubic
conviction of adultery of the wife may be a meter) as compared to the normal 60 million per
ground for impugning the legitimacy of the child cubic meter cannot impugn the legitimacy of the
(Craven v Selway). child. The sterility should be absolute at the time
of the conception (Shepherd v Shepherd).
In the Family Code, what is provided is a
declaration of legitimacy or illegitimacy, not 7) Vasectomy
mere presumptions.
This fact does not impugn the legitimacy of the
These are the grounds for impugning the child right there and then. Removal of the vas
legitimacy of the child: deferens can still be circumvented by the sperms
1) 120-300 day period when they use other pathway to impregnate the
woman.
Approximately, a woman carries the child for
Tests such as the A-B-O test can only disprove
270-280 days. Gestation period will not exceed
paternity, but not prove it.
300 days. Hence, if the child is born within that
period, the sexual intercourse is presumed to have The Human Leukocyte Antigen (HLA) Test can
been done in the first 120 days. The reason is that only prove the probability of paternity with 98%
the earliest a child may come out from the womb accuracy. DNA testing is already proven to be
is 6 months. Hence, the intercourse must have useful for determining filiation. A DNA result
been done any time during the four-month period. that excludes paternity is conclusive. In proving
paternity, a 99.9% match can only result into a
2) Physical incapacity
refutable presumption. Any lower than that is
The cutting of the penis of the man may not be inconclusive even for a presumption.
sufficient to impugn the legitimacy of the child,
8) Vitiated Consent
considering that it might still be possible to have
sexual intercourse (Tarleton v Thompson). In case of vitiated consent, it may be done by the
spouses against each other, or by third persons
3) Living separately

55
against either or both spouses. Only the husband, In an action for partition, the legitimacy of the
or in a proper case, his heirs, can impugn such child may not be impugned (De Jesus v De Jesus).
legitimacy.
However, if the issue is inheritance, and the child
When a mother is subjected to force, undue may possibly be a stranger, the legitimacy may be
influence, etc. she cannot impugn the legitimacy impugned (Spouses Fidel v CA).
of the child because it came out of her own womb.
She is not given legal standing by law.
As much as possible, the policy of the law is to
If the husband acceded to artificial insemination,
avoid attacks against the legitimacy of the child
and went through the process required by law, he
(Russell v Russell).
may no longer impugn the legitimacy of the child.
There are three prescriptive periods for the
Article 168
husband, or in the proper case, his heirs:
Access is presumed prior to termination of
1) One year from the knowledge of the birth
marriage. After the termination of such, there is
or from the recording in the civil register,
no more presumption of access.
if the impugner resides in the same area
When there is a second marriage, the rules in where the baby was born or registered.
Article 168 will be used, but only in the absence 2) Two years, if outside the municipality or
of proof to the contrary. city but inside the Philippines
3) Three years if the impugner is abroad
If a child is born during the first 180 days after
the solemnization of marriage, even if it falls If the birth was concealed, then the countdown
within 300 days after the termination of the first will start from the discovery of the birth, or the
marriage, the child is presumed to belong to the recording of such birth, whichever is earlier.
first marriage. If born more than 180 days after
The starting period is not from the suspicion of
the solemnization, it will be presumed to be that
non-paternity.
of the second, even if it be born within the 300
days after the termination of marriage. Chapter 2- Proof of Filiation
Note that this can only apply in the absence of Lineage cannot depend on similarity alone (Chun
proof to the contrary. Chong v Collector of Customs). It can be a strong
evidence if accompanied by other proof, whether
Article 169
direct or circumstantial (Tijing v CA).
The legitimacy of a child born after 300 days
following the termination of marriage shall be Article 172 can be applicable to proving
illegitimacy to, subject to some restrictions.
proved by whoever alleges legitimacy or
illegitimacy. The documents in Article 172 are not as
Articles 170-171 significant as the declaration of legitimacy or
illegitimacy if the child is proved to be conceived
Impugning the legitimacy of the child is a or born in a marriage, or conceived and born
personal right. It cannot be set up by way of a outside of it. However, the probative value of
defense or as a collateral issue (Rosales v Castillo such documents are strong when proving the
Rosales). filiation of the child born after 300 days following
the termination of a marriage, if no subsequent
A paramour cannot assert paternity over a child
marriage follows.
who was conceived and born out of the marriage
of his lover and the husband. 1) Record of birth

56
These are government records and prima facie of Before, canonical records are not proof of
the facts contained therein (Malicdem v filiation. At present, they may be used together
Republic). with other evidence to prove filiation. Judicial
admission, a family Bible, etc. can be used. To
If the father signed the record of birth, these are
qualify, a baptismal certificate cannot be used as
consummated acts of acknowledgement of a proof if the father did not participate in the
paternity. As such, there is no more need to file preparation of such (Fernandez v CA).
for an action for acknowledgement (Montefalcon
v Vasquez). DNA testing is now a valid form or proving the
possibility or disproving paternity (Agustin v
Do note that if the father had not signed the record CA). A 99.9% DNA result is still a refutable
of birth, it is an incompetent evidence of the proof evidence of paternity. If it is less than 99.9%, it
of filiation (Reyes v CA).
can only be corroborative evidence. Note that a
*Can spouses agree in a contract with regard to perfect DNA result can only not exclude the
the status of a child? No. it is for the court to person as the father of the child, but it cannot
determine. However, the fact that the father stand alone in decisively proving paternity.
signed an agreement can be a possible evidence
Article 173
to prove filiation.
Claiming legitimacy is a personal right. Hence, it
2) Admission in a public or private
may be claimed during the lifetime of the child.
handwritten document
When he dies, the claim is lost, except in case
This is a complete act of recognition (De Jesus v
where the child died during minority, or while
De Jesus). If it is not handwritten, it is not a proof
insane, or while the action has already been
of filiation (Reyes v CA). It must also be signed
initiated. The heirs may now claim legitimacy.
by the father. Even student permanent records in
school duly signed by the father may be proof of The right to claim also provides the right to
filiation. disclaim legitimacy.
3) Open and continuous possession of the Article 174
child
The Court acknowledges that the greatest
Continuous does not mean forever. An preferential treatment is given to the child.
intermittent character of possession open to the
The illegitimate children can only claim
public may suffice (Mendoza v CA).
legitimacy during their lifetime if the proof used
There must be clear and convincing proof, and the is any of the first two. If they use the last two
possession should not be merely because acts of proof, then the duration will only last until the
liberality on the part of the person. father dies.
A father who gave his child allowance for four An illegitimate child cannot inherit ab intestate
different times in the life of the child did not from legitimate children and relatives of his
continuously possess the child (Ong v CA) to be father or mother. Such cannot inherit by
sufficient to prove his filiation. representation (inheriting from a grandfather
when the father predeceased him).
4) Evidence allows by the Rules of Court
Article 175- Illegitimate Children
Pictures, typewritten letters, memorabilia, are not
proof of filiation. Using the surname of the father When a child is born out of a concubinage, then
without his consent is also not proof (Ferrer v it will be illegitimate. He may claim illegitimacy
Inchausti). from the putative father. However, say, for

57
instance, that the concubine had a spouse herself, Briones ruling, it can be said that the father can
then the child will be a legitimate child of that exercise authority over the illegitimate child if 1)
valid marriage. The child may not claim there is an express recognition, and 2) that the
illegitimacy from the putative father because he father is living with the mother and the child
is a legitimate child of a different family insofar (Dempsey v RTC).
as the law is concerned. Prior to claiming
illegitimacy, the child must still be impugned by Once it is vested, authority may not be waived
the husband of the concubine. except in cases provided by law.
Declaring pedigree may be admitted as proof If the father expressly recognize the child, then he
under the evidence allowed by the Rules of Court. may use the surname of the father.
The requisites are: Chapter 4- Legitimated Children
1) Declarant is dead or unable to testify Articles 177-180
2) Pedigree must be in issue
3) Declarant must be a relative of the person Legitimate is a legal fiction, because it is a purely
whose pedigree is in issue statutory creation. Since these are remedial in
4) Declaration must be made before the character, it may be applied retroactively. It must
controversy also be liberally construed (Cardenas v Cardenas).
5) Relationship between the declarant and Requisites:
the person whose pedigree is in issue
must be shown other than the declaration 1) Parent do not suffer from a legal
impediment or are disqualified merely
The phrase the like in the evidence allowed by because they were not yet 18 at the time
the Rules of Court follows the maxim of ejusdem of conception.
generis. Meaning, only those that show joint 2) Child is illegitimate
family statement or belief as to the pedigree of a 3) They enter into a valid marriage
person may be used.
Hence, those that fulfill the requisites prior to the
A love letter may qualify as a private handwritten effectivity of the Family Code, even though not
instrument (Verceles v Posada). recognized by their father, become legitimated
Article 176 upon the effectivity of the Code. This may not
affect vested rights, of course, like property
The rights of an illegitimate child are not equal to already partitioned.
that of a legitimate child. They generally use the
surname of the mother, and his or her legitime Can a child out of an adulterous marriage be
only consists one-half of that of the legitimate. legitimated? No, at the time of the conception,
there is an impediment other than non-age.
Here, the authority is vested to the mother. In Children of bigamous marriage are also
Briones v Miguel, it was said that the father is not illegitimate (De Santos v Angeles).
given authority although he recognized the child.
The reason is to ensure that no one can just Legitimation creates a relationship to all the
exercise authority over the child, even if it can relatives of the father, as if a legitimate child. This
turn out that the person is indeed not the putative is unlike adoption.
father. Article 181
However, in Article 211, it is stated that both Here, even if the child dies before the marriage,
parents shall exercise joint parental authority over he will still be legitimated, and his descendants
their common children. To reconcile this to the shall benefit.

58
Article 182 For a prospective adopter to be disqualified, there

must be a conviction of a crime involving moral
Only heirs to property rights may impugn the
turpitude. Even if pardon is given, the fact that
legitimation of the child. The prescriptive period
moral turpitude is proved can be harmful to the
is 5 years from the date their cause of action
possibility of being able to adopt.
accrues. These refer to successional rights and no
other. As a general rule, age different must be 16 years.
Currently, aliens may already adopt domestically
Title VII- Adoption or inter-country. For domestic adoption, these are
For Sta. Maria, all provisions on adoption are the added requirements:
already repealed. Refer to Rabuya or Paras for
1) Home country must have foreign
per Article discussions. relations with the Philippines
If the requirements for adoption are not met, the 2) Must have been living here for at least 3
decree of the judge will be null. years prior to the filing of the application
3) Certification of legal capacity to adopt
There is no presumption in favor of the rights
between the adopter and the adoptee. There must These may be waived in the following cases:
be proof that all requirements have been met. 1) Former Filipino citizen who seeks to
Note that irregularities are different from not adopt a relative within the 4th degree of
meeting the requirements. Here, we give a less consanguinity of affinity
strict interpretation (Santos v Aranzanso). 2) One who seeks to adopt the legitimate
child of Filipino spouse
Counselling sessions need to be undertaken by 3) One who wants to jointly adopt the
the natural parents, the adoptee, and the adopters. relative within the 4th degree of affinity
This is to ensure that they will jive with each other. or consanguinity of his or her Filipino
Should the location of biological parents be spouse
unknown, there must be an attempt to locate such Waiver of the requirements is still discretionary.
so that free consent or reconciliation may be The best interest of the child will still be the
achieved. ultimate test.
There are two phases in adoption: 1) When a Filipino adopts an alien, the child will not
administrative and 2) judicial. Once the child is acquire Filipino citizenship. Naturalization, and
declared legally available for adoption, the not adoption, is the recourse (Ching Leng v
administrative phase ends. Galang).
Relatives by blood or affinity are not excluded In a guardian-ward relationship, the guardian may
from becoming the adopters of their minor only adopt the ward after the relationship has
relatives, so long as the requirements for been terminated, and that the payment for the
qualifications are met. There is no limit for services has already been given. This ensures that
adoption (Hofilena v Republic). An elder sister there must be proof of good faith, because if the
can adopt a younger brother, and a stepfather can property of the ward has not been administered
also adopt the stepdaughter. properly, then this may be used against the
The law frowns upon terminating the authority of prospective adopter.
the biological parents, so adoption should only In case of spouses adopting, they must adopt
occur when the childs best interests are better off jointly. In case of conflict, the fathers decision
in an adoptive family. will prevail.

59
Note that only minors may be adopted as a middle name. The mother was unmarried and
general rule, except when the child is the gave her consent to the adoption.
illegitimate child of the adopter, the child is the
The original birth certificate must be replaced
legitimate child of the spouse, and when child has
without any indication that the adoption occurred.
been treated as such ever since.
Once the adoption decree is secured, there is
For consent, there is no need for every one of
severance of parental ties between the natural
them to appear in court. It is possible for their
signatures to be attached to the petition, whereby parents and the child.
the prospective adopter simply has to testify that The adopted child becomes a legitimate child of
he obtained the consent of the required the adopter. Upon the death of the adopter, the
individuals. ties between the natural parents and the adopted
Note that if the natural parents have abandoned child will not be reestablished (Shepherd v
Murphy).
the child, the consent must be obtained from the
guardian ad litem or the proper government The children of the adopted child are not
agency. If there is still communication, then the descendants of the adopter. Relatives of the
consent of the parent is still required. adopter are not relatives of the child, except of
course if they are relatives in the first place.
Prior to the adoption decree, is it possible to
withdraw consent? Yes. There is a 6-month grace There is reciprocal intestate succession between
period. After which, estoppel will kick in. the adopter and the adoptee. The biological
However, if the childs best interest prove that the parents will not get anything from the adopted
parent who withdrew the consent is a better parent child because all ties are severed.
over the prospective adopter, it may be possible
for the court to allow such withdrawal. The right of representation is not given to the
adoptee nor the adopter. Since there is only a
Is a private adoption agreement valid? No, parent-child relationship, it may be impossible for
adoption is a judicial act, because it is a one to represent the other as heir to a person
proceeding in rem. Constructive notice is possible whom one is not considered a relative.
because it is a proceeding in rem (Santos v
Aranzanso). If there is a will, then the biological parents can
still inherit from the adoptee, and vice versa. In
Once the decree of adoption is issued, it cannot testate succession, preterition is allowed as in
be attacked collaterally. The decree retroacts normal circumstances. He may choose not to give
from the filing of the petition. However, the any part of the free portion to the adoptee by
vicarious liability of the adoptive parent will start excluding him or her from the will.
after the decree if retroactivity will prejudice his
right. In Tamargo v CA, an adoptive parent whose At present, only the adoptee is granted the legal
petition was approved was saved from the standing to rescind the adoption. If minor, the
retroactivity of his parental authority with regard adoptee will be assisted by the DSWD. Note that
to incurring liability as a result of the death of before, the adopter was given the standing to
third party killed by the adoptee during the rescind the adoption. Now, the only remedy
proceedings. available to the adopter is to disinherit the adoptee
on valid grounds.
After which, registration must follow. In the case
of In the Matter of the Adoption of Stephanie In rescission, the adoption merely terminates,
Nathy Astorga, the Supreme Court allowed the meaning it is valid and will only stop when
child to use the surname of the mother as her declared so. If the adoption is void, any interested
party may have the standing to do so.

60
The grounds are: In Elcano v Hill, Supreme Court said that an

emancipated minor by marriage but was under 21,
1) Maltreatment
who commits a tort against another, is still under
At the first instances of this, the adopter shall be the parental authority of the father. The father,
subjected to counselling. If it continues, the therefore, under Article 2180(2), can be liable for
adoption may be assailed. the torts. This is because 1) the minor cannot be
sued or sue in court without assistance of the
2) Attempt on life father, and 2) the minor cannot borrow or alienate
3) Sexual assault or violence property without parental consent. This was
4) Abandonment possible because Article 399 of the Civil Code
While the adopter cannot seek to terminate the provided that the child may not sue or be sued
adoption, he can disinherit the adoptee (Article without the assistance of the father. Since Article
919 of the Civil Code). 399 was not carried over to the Family Code, the
conclusion is that a child over 18 is completely
*************************************** emancipated. Parents are not anymore liable for
their torts.
Title X- Emancipation and Age of Majority
To conclude, the last paragraph of Article 236,
Article 234-237
which says that the parents still have
Marriage is not any more a ground for responsibility to their emancipated child, is now
emancipation. In Article 399 of the Civil Code, a without legal basis. Article 2180, hence, should
married but unemancipated child was restricted in be construed only to put liability to parents who
terms of borrowing of money, or encumbering his have unemancipated children.
or her property, but such is now deleted in the
In attempting to avoid rendering the last
Family Code.
paragraph of Article 236 as surplusage, it may be
In Article 236, parental consent for marriage of possible to construe it as only putting liability on
parties under 21 is required, but such is only to parents or guardians if their children or wards are
recognized Filipino tradition and culture. It is living with them and are under their authority
neither a formal nor an essential requisite of (above 18 but under 21).
marriage, but the absence of which can render the
Title XI- Summary Judicial Proceedings in the
marriage voidable.
Family Law
Liabilities of Parents for the Torts of their
Chapter 1- Scope of Application
Emancipated Children
Article 238
Article 236 intended to highlight the exceptions
established by existing laws to the complete Rules in this Code will govern summary
emancipation of the child. This is in recognition proceedings unless modified by the Supreme
of Article 2180 of the Civil Code, which puts to Court.
the parents liability for the torts and damages
committed by their children under 21 years of age. Chapter 2- Separation in Fact between
Husband and Wife
However, Article 2180 has already been
superseded by Article 236, which absolves the Article 239
parents of liability for their emancipated children Spouses who enter into conjugal partnership or
above 18 but below 21. absolute community are partners or co-owners of
the property, and one cannot alienate, sell, or

61
encumber the property without the consent of the Affidavits can suffice to allow the judge to decide
other. on the case. Testimonies may be heard, but all are
based on the discretion of the judge.
If they are separated in fact, or one has abandoned
the other, the remedy is for a summary judicial Article 247
proceeding.
Decision is final and executory. No need to wait
Article 240 for 15 days after the receipt of the decision.
However, an appeal may be taken to a higher
Claims of damages between spouses must be
court if due process is violated. This is in the
done in a separate proceeding.
interest of speedy disposition of cases in the
Article 241 Family Code. Note that while the appeal is being
taken, the decisions are still executory in the
RA 8369, or the Family Courts Act of 1997, rests absence of an injunction.
to the Family Courts the jurisdiction over cases in
the Family Code Article 248
Article 242 This Article recognized Article 100 and 127,

which allows the petitioner-spouse to use the
The other party has the right to show-cause why separate property of the absent-spouse to satisfy
the petition should not be granted. When the their solidary liabilities.
respondent agrees, except in some cases, then the
petition is granted and the case becomes moot and Chapter 3- Incidents involving Parental
academic. Authority
Article 243 Article 249
The parties will not be assisted by counsel during Article 233 deals with seeking disciplinary
the preliminary conference. This is to ensure that measures over the child. Article 225 deals with
the case will be amicably settled, if possible, by cases for the approval of bond required of parents
allowing the judge to talk to the parties alone in who are entitled to administer the property of
court. However, if the judge finds out that it will their minor children. Article 235 has already been
be hard to settle it, he can authorize lawyers to repealed, however.
come to aid. Article 250
Article 244
On issues involving parental authority, the cases
Due process is about the right to notice and the shall be filed in the place where the child lives.
right to be heard. The court is required to inquire.
Article 251
Article 245
The best interest of the child is an inflexible
Ex parte proceedings can be done in summary criterion, but the people who exercise authority
judicial proceedings. The judgement will be shall be invited to court for probing.
based on the facts presented by the petitioner. Of
Article 252
course, protection of the interest of the non-
appearing spouse is still present. The procedures in Chapter 2 are applicable. This
is to ensure that measures are laid out as quickly
Article 246
as possible.
Chapter 4- Other Matters Subject to
Summary Proceedings

62
Article 253 Invalidity of one provision will not affect others,

except those which are inextricably linked to it.
The procedures in Chapters 2 and 3 shall govern
RA 6809, changing the age of majority to 18,
the following Articles: 41, 51, 69, 73, 96, 124 and
rendered some of the phrases in Article 14 as
217, insofar as applicable.
surplusage. This includes Article 68 which refers
Article 41- declaration of presumptive death to minors who may contract marriage, and Article
111 which refers to spouses of age.
Article 51- delivery of presumptive legitime
Article 256
Article 69- judicial determination of family
domicile Jovellanos v CA stated that the Family Code has
retroactive effect in general, insofar as it does not
Article 73- objection to the profession of the other violate any vested right. When a husband entered
spouse into a marriage in 1955, entered into a conditional
*Article 96- annulment of the husbands decision sale in installment of a property, paid out the last
in the administration and enjoyment of the ACP installment on 1975 (after he got married to the
second wife on 1967), is retroactively governed
*Article 124- annulment of the husbands by the Family Code. Even though he used
decision in the administration and enjoyment of separate funds and part of the conjugal funds from
the CPG the first marriage, the mere fact that the
installment was fully paid out in 1975 (and thus
Article 217- granting of authority for entities,
the ownership and the vested right were only
concerning abandoned, foundling, abused, or
transferred by then), the property belonged to the
neglected children.
conjugal partnership of the second marriage
*Concerning the appointment of one spouse as pursuant to Article 118 of the Family Code. No
the sole administrator, this can be done in a vested right was violated because he did not own
summary proceeding only if the other abandons the property until 1975 anyway.
the petitioner, or that they are separated in fact, or
In Atienza v Brillantes, a judge entered into a void
the consent is withheld. Incompetence of the
marriage in 1965. In 1991, he entered into a
other as a ground to have sole administratorship
marriage without obtaining a judicial declaration
will not invoke Article 253, but Rules 93 of the
of nullity, the Supreme Court rendered his second
1964 Revised Rules of Court (Uy v CA).
marriage void under Article 40 because of this.
Title XII- Final Provisions The Code retroacted.
Article 254 A vested right is an immediate fixed right of

present and future payment, which is the
This solidified the Family Code as the principal exception to the retroactivity of the Family Code.
law governing family relations. The provisions It is to be distinguished from an expectant right or
hereunder are expressly repealed, regardless if a contingent right. These are absolute, fixed,
they are in conflict with the Family Code. For unalterable, complete, and unconditional. If it is
those impliedly repealed, an irreconcilable no longer open to doubt, it has already
conflict must exist (Iloilo Palay v Feliciano). transitioned from potential to contingent to fixed
Title XIII (Surnames) of the Civil Code has not (Jovellanos v CA).
been expressly repealed, but some are in In Republic v CA 205 SCRA 356, if the adoption
irreconcilable conflict with the Family Code. was filed by only one spouse pursuant to PD 603
Article 255 (Child and Youth Welfare Code), prior to the
effectivity of the Family Code, if the judgement

63
of approval was already rendered prior to 1988, 3) Decision of the person obliged to make
then this is a vested right that cannot be nullified, arrangements
even though the Family Code requires both
The funeral shall be in keeping with the social
spouses to file a petition for adoption jointly.
position of the deceased. Give the deceased the
In the same way, the prescriptive period for the right due him, and the funeral can represent such.
claim of illegitimacy under the Civil Code was
Articles 308-309
governed by Article 285, and not Article 175 of
the Family Code (Tayag v CA, and Bernabe v Damages can be sought, moral or actual, from
Alejo). The vested right was acquired by the those who wrongfully interfere with the funeral,
claimant during his birth, and he can claim or disturb the dead.
illegitimacy after the death of the father if the
putative father died during the formers minority. Article 310
If a husband and wife were married in 1979 just If the person is married, the conjugal partnership
before the previous marriage of the husband was will be liable for the erection of the tombstone or
declared null by the Court, Article 40 was not the mausoleum.
made to retroact because even though no vested
right was present under the Civil Code, the
prevailing doctrine did not required a previous
declaration of nullity for the first void marriage.
Article 257
Effectivity of the Family Code was 1 year after its
publication in the Official Gazette. It was
published in the Manila Chronicle on August 4,
1987. Hence, it took effect August 3, 1988.
Civil Code
Title X- Funerals
Article 305
Article 294 of the Civil Code is now Article 199
of the Family Code, which puts on the spouse the
first responsibility to arrange funerals. In default,
it will be the descendants in the nearest degree; in
the absence of such, the ascendants in the nearest
degree. Without them, it will be the brothers or
the sisters.
Articles 306-307
Kinds of funeral will depend on, in order of
preference:
1) Wish of the deceased
2) Religious beliefs of affiliation

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1

2) Administrative Rules and Regulations

In Askay v Cosalan, it was said that publication Article 3

Persons and Family Relations Notes John Psalmuel Velarde Chan

Law that mandates an act- mandatory

Persons and Family Relations Notes John Psalmuel Velarde Chan

Article 7 1) When a law expressly repeals the

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

3) Sole purpose is to prejudice another 1) There is already an acquittal in a suit

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

In Carandang v Santiago, Supreme Court said 3) Juridical capacity is indivisible,

Persons and Family Relations Notes John Psalmuel Velarde Chan

a) Deprivation of rights of parental A conceived child is deemed born, but to perfect

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Article 20 Any evidence of the validity of marriage will do.

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

community of property, or conjugal partnership 3) If the donor desires to revoke a donation

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

due to reasons laid down in Article 391, four Articles 43-44

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

previous marriage is void under Article 40 3) Delivery of the presumptive legitimes

Persons and Family Relations Notes John Psalmuel Velarde Chan

Title II- Legal Separation With regard to corrupting or inducing a child to

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

foreclosed although it was included by the Article 78-79

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Article 85 choice to revoke the donation regardless

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan

Article 104 Any stipulation that excludes a partner from a

Persons and Family Relations Notes John Psalmuel Velarde Chan

Persons and Family Relations Notes John Psalmuel Velarde Chan