Persons Allen 1b
Persons Allen 1b
Persons Allen 1b
Republic Act No. 386 · 15 days after its publication- effectivity is on the 15th
June 18, 1949 day after such publication
The Civil Code of the Philippines · 15 days following it’s publication- effectivity shall be
on the 16th day
AN ACT TO ORDAIN AND INSTITUTE THE CIVIL
CODE OF THE PHILIPPINES · Publication is mandatory, even if the law provides for
PRELIMINARY TITLE it’s own effectivity and it must be published in full
· ‘Unless it is otherwise provided’ refers to effectivity
CHAPTER I date
EFFECT AND APPLICATION OF LAWS · 15 day period may be reduced or increased
· PDs, EOs, Administrative Rules and Regulations
Art. 1. This Act shall be known as the “Civil Code of the (whose purpose is to enforce or implement existing
Philippines.” (n) laws pursuant to a valid degulation). Monetary Board
· Code is a collection of laws of the same kind Circulars are included in laws that must be published.
· Civil Code is a collection of laws that regulate the
relations of the members of society, with respect to Art. 3. Ignorance of the law excuses no one from compliance
their rights, obligations, with reference to persons, therewith. (2)
things and civil acts.
· The first Civil Code of the Philippines was the Civil
· Everyone is presumed to know the laws due to the
publication
Code of Spain of 1889 by Royal Decree on July 31,
1889, which became effective on December 1, 1889. It · Legal maxim ‘ignoratia legis non excusat’
was followed by R.A. No. 386 on June 18, 1889, but · Covers Philippine Laws, and is limited to mandatory
does not cover all our civil laws which can be found in and prohibitive laws
other laws made by legislation · Not applicable to foreign laws, and if a foreign law is
· The sources of the Civil Code include: not properly pleaded and proven, it is presumed that
· The Spanish Civil Code such law is the same as our law (doctrine of procedural
presumption).
· Codes, Laws and Judicial decisions as well as other
laws made by jurists of other countries · However, ignorance of the fact can excuse someone
from the legal consequences of his conduct. In specific
· Doctrine laid down by the Supreme Court
instances, mistake as to difficult legal questions has
· Filipino Customs and Traditions been given the same effect as mistake of fact
· Philippine Statutes
· Code Commission
Art. 4. Laws shall have no retroactive effect, unless the
· The Civil Code contains 2270 articles divided into 4 contrary is provided. (3)
books (I-Persons; II- Property, Ownership and it’s
Modifications; III- Different Modes of Acquiring · Unless provided for, laws shall have only and be
Ownership; IV- Obligations and Contracts). However, construed as having only prospective effect (lex
the Family Code repeals Articles 52-104, 311-355, 397- prospicit, non respicit). Otherwise, it may cause an
406 of Book I of the Civil Code arbitrary exercise of legislative power
· The date of effectivity of the Civil Code was one year · Retroactive means that it shall affect transactions before
after the Official Gazette after publishing the Code for the law became operative
circulation, the said Codebeing released August 30, · Laws that shall have retroactive effect are the following
1949. · Laws that provide for its own effectivity (with the
· exception of the following laws)
Art. 2. Laws shall take effect after fifteen days following the · Ex post facto laws (makes a previous act criminal even
completion of their publication in the Official Gazette, or in though it was not during the time it was committed)
a newspaper of General Circulation, unless it is otherwise
provided. This Code shall take effect one year after such · When the law impairs the obligations of contracts (only
laws existing at the time that the contract is executed is
publication. (amended by E.O. 200)
applicable thereto)
· If the law does not provide for its effectivity or is silent, · Exercise of Police Power to regulate or govern certain
the law shall take effects 15 days following the activities or contracts is an exception to this rule.
completion of their publication · Penal laws favorable to the accused (as long as it is not
· Publication must be in the Official Gazette or in a a habitual delinquent)
newspaper of general circulation (must have a bona fide · Law is procedural or remedial laws(those that do not
subscriber base, published at regular intervals, and take away or create new vested rights)
published for dissemination of local news and general · Curative Laws (cures defects of a prior law or validates
information) legal proceedings. Instruments or acts of public
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authorities which would be void for want of conformity · Express repeals are those contained in a particular
with existing legal requirements) provision of a subsequent law while implied repeals are
· When the Law creates new substantive rights (as long those that are incompatible with a earlier law and there
as they are not prejudiced with another acquired right of is no express repeal
the same origin) · Implied repeals are not favored because it relies on the
· presumption because that the earlier and subsequent
Art. 5. Acts executed against the provisions of mandatory or laws are incompatible, there is an intent to repeal the
prohibitory laws shall be void, except when the law itself earlier law. All doubts must be resolved against any
authorizes their validity. (4a) implied repeal and that all efforts should be exerted to
harmonize and give effect to all laws on the subject
· Mandatory- commands something, Prohibitory-
· The requisites of an implied repeal are: 1) the laws
commands that something should not be done,
cover the same subject matter, 2) the latter is repugnant
Permissive or directory- directs that something should
to the earlier (irreconcilable inconsistency and
be tolerated or respected
incompatibility)
· Exceptions to this rule are:
· When there is conflict between special statute and
· When the law makes valid something that generally general laws, the special statute should prevail because
should have been void it makes it legislative intent clearer than the general
· When the law makes the act valid, but punishes the law, and shall be taken as an exception to the general
violator law in the absence of special circumstances forcing a
· When the law merely makes an act voidable contrary conclusion
· When the law declares the act void, but recognizes the · If the general law is enacted before the special law, the
legal effects arising from it latter is considered to be the exception to the general
law. If the special law is enacted before the general law,
the special law remains unless there is an express
Art. 6. Rights may be waived, unless the waiver is contrary
declaration to the contrary, there is clear, necessary and
to law, public order, public policy, morals, or good customs,
irreconcilable conflict, and that the general law covers
or prejudicial to a third person with a right recognized by
the whole subject and is clearly intended to replace the
law. (4a)
special law on that matter
· Rights have 3 elements: the subject (can be active- · When a law is expressly repealed, it shall be repealed
those who are entitled to demand the enforcement of and shall not be revived unless expressly so provided.
the right; can be passive- those who are duty bound to When a law is implied to be repealed, it shall be
suffer its enforcemcent) who are for persons for rights repealed and shall be thereby be revived unless the
which exist for persons only, the object which are repealing law provides otherwise
services or things; and the efficient clause which is the · If laws, administrate acts, orders and regulations are
fact that gives rise to legal relation. inconsistent with the Constitution, they shall be
· Political rights are those that refer to the participation of considered as unconstitutional and invalid by the
individuals in the government of the state. Civil rights Supreme Court. The former shall be void and the latter
include those not covered by political rights and are shall govern
classified into rights of personality (or human rights)
and family rights which may not be waived, and
Art. 8. Judicial decisions applying or interpreting the laws
patrimonial rights which may be waived,
or the Constitution shall form a part of the legal system of
· The requisites of a valid waiver are: 1) must have a the Philippines. (n)
right that he renounces, 2) must have the capacity to
make the renunciation, 3) renunciation must be made in · The Judicial department cannot enact laws since that is
a clear and unequivocal manner the duty of the legislative department. Judicial decisions
of the SC form part of the legal system, but they are not
laws.
Art. 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, · The doctrine of stare decisis means that once the SC has
or custom or practice to the contrary. laid down a law applicable to a certain set of facts in the
case, it shall adhere to that fact and apply it to all future
When the courts declared a law to be inconsistent with the cases that present the same set of facts.
Constitution, the former shall be void and the latter shall
govern.
Art. 9. No judge or court shall decline to render judgment
Administrative or executive acts, orders and regulations by reason of the silence, obscurity or insufficiency of the
shall be valid only when they are not contrary to the laws or laws. (6)
the Constitution. (5a)
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· If there is no law that punishes an act, the judge shall holiday in the place where the Court is located, the last
dismiss the case as per nullum crimen, nullum poena day shall be moved to the next working day.
sine lege.
· Under the Old Civil Code and current Civil Cod, if the Art. 14. Penal laws and those of public security and safety
law is silent, obscure or insufficient, the judge shall shall be obligatory upon all who live or sojourn in the
apply the customs of the place, or the general principles Philippine territory, subject to the principles of public
of the law in default thereof international law and to treaty stipulations. (8a)
· Embodies one of the principles of Criminal Law-
Art. 10. In case of doubt in the interpretation or application Generality
of laws, it is presumed that the lawmaking body intended
right and justice to prevail. (n)
· Exceptions to such rules are the following:
· Treaty Stipulations
· Follows the legal maxim dura lex, sex led meaning that · Laws of Preferential Application
the law may be harsh and unjust but that is what is · Principles of Public International Law
stated or intended by the law
· “Justice outside legality” applies only in cases of
absence of statutory or judicial rules of procedure Art. 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.
Art. 11. Customs which are contrary to law, public order or (9a)
public policy shall not be countenanced. (n)
· Divorce between Filipinos is not valid even if obtained
· Customs are rules of conduct that are formed by abroad
repetition of acts, uniformly observed as a social rule, · Divorce obtained by foreigners in their country may be
and legally binding and obligatory recognized by our country provided that they are valid
under their national law
Art. 12. A custom must be proved as a fact, according to the
· When a foreigner obtains a valid divorce abroad, he is
rules of evidence. (n) no longer is the spouse of the Filipino and therefore
· The requisites for the application of customs include: losses the standing to sue for adultery
· Plurality of acts, or various resolutions of a judicial · Under Art 26 of the FC, the foreign spouse can remarry
question raised repeatedly in life if he/she obtains a valid divorce, and the Filipino
· Uniformity, or identity of facts or various solutions to Spouse can remarry as well if they are capacitated to do
the judicial question so.
· General practice by a great mass of the social group
· Continued performance of these acts for a long period Art. 16. Real property as well as personal property is
of time subject to the law of the country where it is stipulated.
· General conviction that such practice corresponds to a However, intestate and testamentary successions, both with
juridical necessity or is obligatory respect to the order of succession and to the amount of
· The practice must not be contrary to public policy, successional rights and to the intrinsic validity of
morals or order testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
Art. 13. When the laws speak of years, months, days or whatever may be the nature of the property and regardless
nights, it shall be understood that years are of three hundred of the country wherein said property may be found. (10a)
sixty-five days each; months, of thirty days; days, of twenty- · Under the principle of lex rei sitae, even if the real and
four hours; and nights from sunset to sunrise. personal properties are involved in the matter of testate
If months are designated by their name, they shall be and intestate succession of a decedent, what shall
computed by the number of days which they respectively govern is the national law of the decedent in relation to
have. the order of succession, amount of successional rights,
and intristie validity of the will. The national law of the
In computing a period, the first day shall be excluded, and decedent also governs tha capacity to succeed as well.
the last day included. (7a) · The Renvoi doctrine refers to the issue when there is
· In an ordinary contract, the agreement of the parties doubt to whether a reference to a foreign law is a
shall prevail reference to the internal law of the said foreign law, or a
reference to the foreign law as a whole including its
· If it refers to the period prescribed by the rules of Court, conflict rules
and the last day falls on a Saturday, Sunday or legal
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Art. 17. The forms and solemnities of contracts, wills, and customs or public policy shall compensate the latter for the
other public instruments shall be governed by the laws of the damage.
country in which they are executed.
· The requisites for acts contra bonus mores are:
When the acts referred to are executed before the diplomatic · There is an act which is legal
or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine
· But contrary to morals, good customs, public order and
policy
laws shall be observed in their execution.
· Done with intent to injure
Prohibitive laws concerning persons, their acts or property, · Mere breach of promise to marry is not a ground for
and those which have, for their object, public order, public compensation, except under the following
policy and good customs shall not be rendered ineffective by circumstances
laws or judgments promulgated, or by determinations or
· There is deceit or fraud
conventions agreed upon in a foreign country. (11a)
· Expenses have actually been occurred
· Under lex loci celebrationis, the forms and solemnities · When the women has been forcibly abducted and raped
of wills, contracts, and other public instruments are · An action for damages arising from malicious
governed under the country to which they are executed prosecution is anchored upon Art. 21, 2217 and 2219
· The intrinsic validity of the contract is governed by the (8). However, the requisites must be satisfied to show
proper law of the contract (lex contractusi) which may there is malicious prosecution
either be the law of the place voluntary agreed upon by · The fact of the prosecution and the further fact that the
them (lex loci voluntaris) or the law of the place defendant himself was the prosecution, and that the
intended expressly or impliedly (lex loci intentionis) action was finally terminated with acquittal
· The intrinsic validity of a will shall be governed by the · In bringing the action, the prosecutor acted without
national law of the decedent probable cause
· The prosecutor was impelled or actualled with legal
Art. 18. In matters which are governed by the Code of malice that is sinister or improper malice
Commerce and special laws, their deficiency shall be
supplied by the provisions of this Code. (16a) Art. 22. Every person who through an act of performance by
· If there is no deficiency in abovementioned laws, then another, or any other means, acquires or comes into
the provisions of the Civil Code cannot apply. possession of something at the expense of the latter without
just or legal ground, shall return the same to him.
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· Private offended party opted to collect civil damages on following rights and liberties of another person shall be
the basis of the others criminal liability arising from liable to the latter for damages:
their offence under Article 100 RPC (1) Freedom of religion;
· They have opted to institute civil action , expressly or (2) Freedom of speech;
impliedly within he criminal action (3) Freedom to write for the press or to maintain a
· Accused was acquitted in criminal action based on periodical publication;
reasonable doubt as to their guilt. (4) Freedom from arbitrary or illegal detention;
· The ground for acquittal was clearly declared or (5) Freedom of suffrage;
inferred from the judgment of the court (6) The right against deprivation of property without due
process of law;
(7) The right to a just compensation when private
If in a criminal case the judgment of acquittal is based upon property is taken for public use;
reasonable doubt, the court shall so declare. In the absence (8) The right to the equal protection of the laws;
of any declaration to that effect, it may be inferred from the (9) The right to be secure in one’s person, house, papers,
text of the decision whether or not the acquittal is due to that and effects against unreasonable searches and
ground. seizures;
Art. 30. When a separate civil action is brought to demand (10) The liberty of abode and of changing the same;
civil liability arising from a criminal offense, and no criminal (11) The privacy of communication and correspondence;
proceedings are instituted during the pendency of the civil (12) The right to become a member of associations or
case, a preponderance of evidence shall likewise be sufficient societies for purposes not contrary to law;
to prove the act complained of. (13) The right to take part in a peaceable assembly to
petition the government for redress of grievances;
· Civil action is deemed to have been instituted within (14) The right to be free from involuntary servitude in
the criminal action unless such party has waived the any form;
civil action, reserves the right to institute such civil (15) The right of the accused against excessive bail;
action separately or prior to the criminal action (16) The right of the accused to be heard by himself and
· If civil action is instituted prior to civil action, the counsel, to be informed of the nature and cause of the
former shall be suspended in whatever stage it may be accusation against him, to have a speedy and public
until final judgment for criminal action is rendered trial, to meet the witnesses face to face, and to have
· When civil action is instituted but there is no criminal compulsory process to secure the attendance of
action, a preponderance of evidence shall be sufficient witness in his behalf;
to prove the act complained of. (17) Freedom from being compelled to be a witness
against one’s self, or from being forced to confess
guilt, or from being induced by a promise of immunity
Art. 31. When the civil action is based on an obligation not or reward to make such confession, except when the
arising from the act or omission complained of as a felony, person confessing becomes a State witness;
such civil action may proceed independently of the criminal (18) Freedom from excessive fines, or cruel and unusual
proceedings and regardless of the result of the latter. punishment, unless the same is imposed or inflicted in
· Article 31 does not provide for any independent civil accordance with a statute which has not been
action but an independent civil action based upon the judicially declared unconstitutional; and
same criminal act is provided for based on Articles 32- (19) Freedom of access to the courts.
34 In any of the cases referred to in this article, whether or not
the defendant’s act or omission constitutes a criminal
· A quasi-delict or culpa aquiliana (covers negligent and
offense, the aggrieved party has a right to commence an
voluntary acts) is a separate legal institution under the
entirely separate and distinct civil action for damages, and
Civil Code. There, acquittal or conviction in the
for other relief. Such civil action shall proceed independently
criminal case is irrelevant in the civil case. Acquittal on
of any criminal prosecution (if the latter be instituted), and
the criminal case does not extinguish civil liability
mat be proved by a preponderance of evidence.
under quasi-delict, which also covers acts which are
criminal in character, both intentional and voluntary, or
The indemnity shall include moral damages. Exemplary
negligent.
damages may also be adjudicated.
· The same negligent act causing damages may produce a
civil liability arising from a crime under Art. 100 RPC The responsibility herein set forth is not demandable from a
or may create an action for quasi-delict or culpa extra- judge unless his act or omission constitutes a violation of the
contractual under Art. 2174 to 2194 NCC. Penal Code or other penal statute.
· Reasons for the provision are:
Art. 32. Any public officer or employee, or any private · Threat to freedom arises from abuse of power of
individual, who directly or indirectly obstructs, defeats, government officials and peace officers
violates or in any manner impedes or impairs any of the
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· Even when prosecuting attorney filed a criminal action, · It comes into play when a civil and criminal action both
the requirment of proof beyone reasonable doubt come into play and that in the former an issue exists
prevented the appropriate punishment which must be preemptively resolved before the
· Direct and open violations of RPC are not as frequent criminal proceeding may continue
as the subtle, indirect, and clever ways which do not · The elements are:
come within pale of the RPC · Previously instituted civil action involves an issue that
· Good faith is not a defense under Art. 32 is similarly or intimately related to the subsequent civil
action
Art. 33. In cases of defamation, fraud, and physical injuries a · Resolution of such issue determines whether or not the
civil action for damages, entirely separate and distinct from criminal action can proceed
the criminal action, may be brought by the injured party. · A petition for the suspension of criminal action based
Such civil action shall proceed independently of the criminal on the pendency of a prejudicial question may be filed
prosecution, and shall require only a preponderance of in the office of the prosecutor or the court conducting
evidence. he preliminary investigation. When the criminala action
has been filed, the petition to suspend may be filed at
· Civil action for damages allowed to be instituted is ex any time before prosecution rests. The rule only
delicto. authorizes suspension and not dismissal.
· Physical injuries not only those in the RPC and also · Administrative case does not constitute a prejudicial
frustrated, attempted and consummated homicide question to a criminal action
· Criminal negligence is included under Article 33, civil · Criminal prosecution does not constitute a prejudicial
action may proceed independently even if the crime question to a administrative proceeding for the
charged is reckless imprudence disbarment or suspension of a lawyer
Art. 34. When a member of a city or municipal police force BOOK I:PERSONS
refuses or fails to render aid or protection to any person in
case of danger to life or property, such peace officer shall be Title I. - CIVIL PERSONALITY
primarily liable for damages, and the city or municipality CHAPTER 1
shall be subsidiarily responsible therefor. The civil action GENERAL PROVISIONS
herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice to Art. 37. Juridical capacity, which is the fitness to be the
support such action. subject of legal relations, is inherent in every natural person
Art. 35. When a person, claiming to be injured by a criminal and is lost only through death. Capacity to act, which is the
offense, charges another with the same, for which no power to do acts with legal effect, is acquired and may be
independent civil action is granted in this Code or any lost. (n)
special law, but the justice of the peace finds no reasonable
grounds to believe that a crime has been committed, or the · A person any being susceptible to rights and
obligations. Personality is the aptitude to be subject,
prosecuting attorney refuses or fails to institute criminal
proceedings, the complaint may bring a civil action for active or passive, of judicial relations
damages against the alleged offender. Such civil action may · Natural persons are human beings while juridical
be supported by a preponderance of evidence. Upon the persons are artificial beings susceptible of rights and
defendant’s motion, the court may require the plaintiff to file obligations or being the subject of legal relations
a bond to indemnify the defendant in case the complaint · Juridical capacity is static condition, indivisible, it is
should be found to be malicious. enough that the person exists, lost only in death, cannot
be limited or restricted
If during the pendency of the civil action, an information
should be presented by the prosecuting attorney, the civil
· Capacity to act is a dynamic condition, does not exist in
all men or is the same extent, intelligence and volition
action shall be suspended until the termination of the
is required and does not exist in the same extent in all
criminal proceedings.
men, may be lost, limited and restricted through certain
Art. 36. Pre-judicial questions which must be decided before means and circumstances,
any criminal prosecution may be instituted or may proceed,
shall be governed by rules of court which the Supreme Court
Art. 38. Minority, insanity or imbecility, the state of being a
shall promulgate and which shall not be in conflict with the
provisions of this Code. deaf-mute, prodigality and civil interdiction are mere
restrictions on capacity to act, and do not exempt the
· A prejudicial question is a one that arises during a case, incapacitated person from certain obligations, as when the
and that the resolution of such question is a logical latter arise from his acts or from property relations, such as
antecedent to the resolution of the case easements. (32a)
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Art. 39. The following circumstances, among others, modify favorable to it, provided it be born later with the conditions
or limit capacity to act: age, insanity, imbecility, the state of specified in the following article. (29a)
being a deaf-mute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship. The · Unless a being is born it is not considered a person
consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws. Art. 41. For civil purposes, the fetus is considered born if it is
Capacity to act is not limited on account of religious belief or alive at the time it is completely delivered from the mother’s
political opinion. womb. However, if the fetus had an intra-uterine life of less
A married woman, twenty-one years of age or over, is than seven months, it is not deemed born if it dies within
qualified for all acts of civil life, except in cases specified by twenty-four hours after its complete delivery from the
law. (n) maternal womb. (30a)
· Incapacities are restrictions or limitations on capacity to · Complete delivery means the cutting of the umbilical
act. They are however not exempted from certain cord
obligations. · Personality of a conceived child has two characteristics
· The following cannot give their consent in a contract: · It is essentially limited, for the purposes favorable to
· Unemancipated minor the child
· Deaf-mute who do know how to write · It is provisional or conditional, such that if the child is
not born alive, it is deemed to have never been existed
· Insane or demented persons
· A contract entered into by a minor without the consent
· The rights of an unborn child include the following
of a parent or guardian, is voidable (if one of the parties · Right to receive support from progenitors, even if such
is a minor, but can be ratified by the parents or guardian child is en ventre de sa mere
of the minor) or unenforceable (if both parties are · It may receive donations as prescribed under Art. 742
minors, ratification of the parents of guardian one of the NCC
parties makes the contract voidable) · It may not be ignored by the parent in his testament
· A contract can be annulled upon reaching age of
majority by a minor if such only engaged in passive Art. 42. Civil personality is extinguished by death.
misrepresentation of age, while active The effect of death upon the rights and obligations of the
misrepresentation removes the capacity to annul the deceased is determined by law, by contract and by will. (32a)
contract
Art. 43. If there is a doubt, as between two or more persons
· Insanity refers to someone whose mental faculties are
who are called to succeed each other, as to which of them
impaired while an imbecile is someone who is of
died first, whoever alleges the death of one prior to the other,
advanced age while still having the mental capacity of
shall prove the same; in the absence of proof, it is presumed
a 2 to 7 year old. Imbecile is exempted from all cases
that they died at the same time and there shall be no
of criminal liability and cannot give consent in a
transmission of rights from one to the other. (33)
contract while insane is not exempt acted during lucid
interval (only insanity preventing a person from · Not applicable when there is no question of succession
knowing the character of the act that he is performing). · Rules on succession
· Civil Interdiction is an accessory penalty imposed upon · If both are <15, the older is deemed to have survived
those who are sentenced penalty not lower than
reclusion temporal. It produces the following effects
· If both are >60, the younger is deemed to have survived
· Deprivation of rights of parental authority or
· If one is <15 and the other >60, the former is deemed to
have survived
guardianship
· Deprivation of marital authority
· If both are >15 and <60, and different sezes, the male is
deemed to have survived. If same sex, the older is
· Deprivation of right to manage property deemed to have survived
· Deprivation of the right to dispose his property by any · If one is <15 or >60, and the other in between those
act or conveyance inter vivos ages, the latter is deemed to have survived
· In prodigality, once an individual is under guardianship,
his capacity to act becomes restricted since he can only
enter a contract through the guardian CHAPTER 3
JURIDICAL PERSONS
CHAPTER 2
NATURAL PERSONS Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
Art. 40. Birth determines personality; but the conceived (2) Other corporations, institutions and entities for public
child shall be considered born for all purposes that are interest or purpose, created by law; their personality
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begins as soon as they have been constituted according TITLE I
to law;
(3) Corporations, partnerships and associations for MARRIAGE
private interest or purpose to which the law grants a
juridical personality, separate and distinct from that Chapter 1. Requisites of Marriage
of each shareholder, partner or member. (35a)
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the
preceding article are governed by the laws creating or Article 1. Marriage is a special contract of permanent union
recognizing them. between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the
Private corporations are regulated by laws of general foundation of the family and an inviolable social institution
application on the subject. whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage
Partnerships and associations for private interest or purpose
settlements may fix the property relations during the
are governed by the provisions of this Code concerning
marriage within the limits provided by this Code. (52a)
partnerships. (36 and 37a)
Art. 46. Juridical persons may acquire and possess property · Marriage is different from an ordinary contract based
of all kinds, as well as incur obligations and bring civil or on the following distinctions:
criminal actions, in conformity with the laws and regulations · It cannot be revoked, dissolved, or otherwise
of their organization. (38a) terminated by the parties, but only by the sovereign
power of the state
Art. 47. Upon the dissolution of corporations, institutions
and other entities for public interest or purpose mentioned in
· The nature, consequences and incidents of marriage are
governed by law and not subject to agreement,
No. 2 of Article 44, their property and other assets shall be
disposed of in pursuance of law or the charter creating them. · Only two persons of different sex may enter into a
If nothing has been specified on this point, the property and contract of marriage, and but only one such contract
other assets shall be applied to similar purposes for the may exist at the same time
benefit of the region, province, city or municipality which · Marriage is not just a contract but a social institution
during the existence of the institution derived the principal · Marriage is a permanent union between a man and a
benefits from the same. (39a) woman, it may only be dissolved by law (as in
annulment or declaration of nullity) or by death of
either party.
· Juridical persons are artificial beings to which the law · Marriage is not only a civil contract, but a new relation,
grants a personality distinct and separate from the an institution whose maintenance of which the public is
personality of its individual members. deeply interested
· Sole proprietorship does not have a juridical personality · Best documentary evidence of marriage is a marriage
because its personality is the personality of its owner contract. Failure to present it however does not prove
· A corporation is deemed to have a juridical capacity if that no marriage took place. Testimony by one of the
its formed under the Corporation Code, and is deemed parties or one of the witnesses, or the solemnizing
incorporated from the date it receives its certificate of officer as eyewitness to the marriage is held to be
Incorporation under its official seal from the SEC admissible as proof of the fact of marriage
· Partnership are juridical persons provided that they · Testimony of witness to the marriage, the partners’
fulfill the following requisites public and open cohabitation as husband and wife after
· Two or more persons who bind themselves to the alleged wedlock, the birth and baptismal certificate
contribute money, property or industry to a common of the children born during such union, and mention of
fund the nuptial in the subsequent documents may be
presented as proof of such marriage.
· Intention on part of the partners to divide the profits
among themselves · The law favors the validity of the marriage
·
Art. 2. No marriage shall be valid, unless these essential
EXECUTIVE ORDER NO. 209 requisites are present:
THE FAMILY CODE OF THE PHILIPPINES
July 6, 1987 (1) Legal capacity of the contracting parties who must be
a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)
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(2) A valid marriage license except in the cases provided · The exceptions where a valid marriage license may be
for in Chapter 2 of this Title; and dispensed are the following:
(3) A marriage ceremony which takes place with the · In cases of articulo mortis
appearance of the contracting parties before the
solemnizing officer and their personal declaration that
· When the parties are located in remote place where
there are no means of transport available to obtain a
they take each other as husband and wife in the
valid marriage license
presence of not less than two witnesses of legal age.
(53a, 55a) · Marriage among Muslims and ethnic groups provided
they are solemnized in accordance with the customs,
rights and practices
· Legal capacity refers to the following requirements:
· Age Requirement
· Marriage Ceremony
· Solemnization of the marriage comprehends both
· Must be 18 and above, below 18 marriage is void ab
parties personal appearance before the person
initio
authorized to solemnize the marriage
· >18 and <21, Article 14 adds requirement of parental
· Common-law marriages and marriage by proxy are not
consent, lack of consent means marriage is voidable
recognized in the Philippines
· The age requirement must be complied on the date of
marriage celebration, Art. 4. The absence of any of the essential or formal
· Sex of the contracting parties requisites shall render the marriage void ab initio, except as
· Must be between a man and a woman stated in Article 35 (2).
· Absence of Legal Impediments based on Article 37 and A defect in any of the essential requisites shall not affect the
38 FC validity of the marriage but the party or parties responsible
· Consent for the irregularity shall be civilly, criminally and
· This must be mutual administratively liable. (n)
· Manifestation of consent is made only by both parties Art. 5. Any male or female of the age of eighteen years or
appearing before the solemnizing officer and their upwards not under any of the impediments mentioned in
personal declaration to take each other as husband and Articles 37 and 38, may contract marriage. (54a)
wife in the presence of at least 2 witnesses
· Bogus or simulated marriage is void ab initio Art. 6. No prescribed form or religious rite for the
· Under Art. 41, the subsequent marriage is void ab initio solemnization of the marriage is required. It shall be
if both parties acted in bad faith necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in the
· Consent must be free and voluntary, otherwise the presence of not less than two witnesses of legal age that they
marriage is voidable take each other as husband and wife. This declaration shall
· Authority of Solemnizing Office be contained in the marriage certificate which shall be signed
· If the solemnizing officer is not authorized, the by the contracting parties and their witnesses and attested by
marriage is void ab initio unless either or both parties the solemnizing officer.
believed in good faith that the officer had the authority
to solemnize the marriage In case of a marriage in articulo mortis, when the party at
the point of death is unable to sign the marriage certificate, it
· The following has the authority to solemnize marriage
shall be sufficient for one of the witnesses to the marriage to
· Any incumbent member of the judiciary within their write the name of said party, which fact shall be attested by
court’s jurisdiction; the solemnizing officer. (55a)
· Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or religious Art. 7. Marriage may be solemnized by:
sect (1) Any incumbent member of the judiciary within the
· Any ship captain or airplane chief only in the case of court’s jurisdiction;
articulo mortis (2) Any priest, rabbi, imam, or minister of any church or
· Any military commander of a unit to which a chaplain religious sect duly authorized by his church or
is assigned, in cases of articulo mortis; religious sect and registered with the civil registrar
· Any consul-general, consul or vice-consul in limited general, acting within the limits of the written
cases authority granted by his church or religious sect and
· Mayors provided that at least one of the contracting parties
· Valid Marriage License belongs to the solemnizing officer’s church or
religious sect;
· Absence of valid marriage license renders the marriage
(3) Any ship captain or airplane chief only in the case
void ab intio
mentioned in Article 31;
· Marriage celebrated 120 days after issuance of license
is void ab initio
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(4) Any military commander of a unit to which a certificates of the contracting parties or copies of such
chaplain is assigned, in the absence of the latter, during a documents duly attested by the persons having custody of the
military operation, likewise only in the cases mentioned originals. These certificates or certified copies of the
in Article 32; documents by this Article need not be sworn to and shall be
exempt from the documentary stamp tax. The signature and
(5) Any consul-general, consul or vice-consul in the case
official title of the person issuing the certificate shall be
provided in Article 10. (56a)
sufficient proof of its authenticity.
Article. 8. The marriage shall be solemnized publicly in the
If either of the contracting parties is unable to produce his
chambers of the judge or in open court, in the church, chapel
birth or baptismal certificate or a certified copy of either
or temple, or in the office the consul-general, consul or vice-
because of the destruction or loss of the original or if it is
consul, as the case may be, and not elsewhere, except in cases
shown by an affidavit of such party or of any other person
of marriages contracted on the point of death or in remote
that such birth or baptismal certificate has not yet been
places in accordance with Article 29 of this Code, or where
received though the same has been required of the person
both of the parties request the solemnizing officer in writing
having custody thereof at least fifteen days prior to the date
in which case the marriage may be solemnized at a house or
of the application, such party may furnish in lieu thereof his
place designated by them in a sworn statement to that effect.
current residence certificate or an instrument drawn up and
(57a)
sworn to before the local civil registrar concerned or any
Art. 9. A marriage license shall be issued by the local civil public official authorized to administer oaths. Such
registrar of the city or municipality where either contracting instrument shall contain the sworn declaration of two
party habitually resides, except in marriages where no witnesses of lawful age, setting forth the full name, residence
license is required in accordance with Chapter 2 of this Title. and citizenship of such contracting party and of his or her
(58a) parents, if known, and the place and date of birth of such
party. The nearest of kin of the contracting parties shall be
Art. 10. Marriages between Filipino citizens abroad may be preferred as witnesses, or, in their default, persons of good
solemnized by a consul-general, consul or vice-consul of the reputation in the province or the locality.
Republic of the Philippines. The issuance of the marriage
license and the duties of the local civil registrar and of the The presentation of birth or baptismal certificate shall not be
solemnizing officer with regard to the celebration of required if the parents of the contracting parties appear
marriage shall be performed by said consular official. (75a) personally before the local civil registrar concerned and
swear to the correctness of the lawful age of said parties, as
Art. 11. Where a marriage license is required, each of the stated in the application, or when the local civil registrar
contracting parties shall file separately a sworn application shall, by merely looking at the applicants upon their
for such license with the proper local civil registrar which personally appearing before him, be convinced that either or
shall specify the following: both of them have the required age. (60a)
(1) Full name of the contracting party; Art. 13. In case either of the contracting parties has been
(2) Place of birth; previously married, the applicant shall be required to
(3) Age and date of birth; furnish, instead of the birth or baptismal certificate required
(4) Civil status; in the last preceding article, the death certificate of the
(5) If previously married, how, when and where the deceased spouse or the judicial decree of the absolute
previous marriage was dissolved or annulled;
divorce, or the judicial decree of annulment or declaration of
(6) Present residence and citizenship; nullity of his or her previous marriage.
(7) Degree of relationship of the contracting parties; In case the death certificate cannot be secured, the party
(8) Full name, residence and citizenship of the shall make an affidavit setting forth this circumstance and
father; his or her actual civil status and the name and date of death
of the deceased spouse. (61a)
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian Art. 14. In case either or both of the contracting parties, not
or person having charge, in case the contracting party having been emancipated by a previous marriage, are
has neither father nor mother and is under the age of between the ages of eighteen and twenty-one, they shall, in
twenty-one years. addition to the requirements of the preceding articles,
exhibit to the local civil registrar, the consent to their
The applicants, their parents or guardians shall not be marriage of their father, mother, surviving parent or
required to exhibit their residence certificates in any guardian, or persons having legal charge of them, in the
formality in connection with the securing of the marriage order mentioned. Such consent shall be manifested in writing
license. (59a) by the interested party, who personally appears before the
Art. 12. The local civil registrar, upon receiving such proper local civil registrar, or in the form of an affidavit
application, shall require the presentation of the original made in the presence of two witnesses and attested before
birth certificates or, in default thereof, the baptismal any official authorized by law to administer oaths. The
personal manifestation shall be recorded in both applications
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for marriage license, and the affidavit, if one is executed parties, that is those who have no visible means of income or
instead, shall be attached to said applications. (61a) whose income is insufficient for their subsistence a fact
established by their affidavit, or by their oath before the
Art. 15. Any contracting party between the age of twenty-one
local civil registrar. (65a)
and twenty-five shall be obliged to ask their parents or
guardian for advice upon the intended marriage. If they do Art. 20. The license shall be valid in any part of the
not obtain such advice, or if it be unfavorable, the marriage Philippines for a period of one hundred twenty days from
license shall not be issued till after three months following the date of issue, and shall be deemed automatically canceled
the completion of the publication of the application therefor. at the expiration of the said period if the contracting parties
A sworn statement by the contracting parties to the effect have not made use of it. The expiry date shall be stamped in
that such advice has been sought, together with the written bold characters on the face of every license issued. (65a)
advice given, if any, shall be attached to the application for
Art. 21. When either or both of the contracting parties are
marriage license. Should the parents or guardian refuse to
citizens of a foreign country, it shall be necessary for them
give any advice, this fact shall be stated in the sworn
before a marriage license can be obtained, to submit a
statement. (62a)
certificate of legal capacity to contract marriage, issued by
Art. 16. In the cases where parental consent or parental their respective diplomatic or consular officials.
advice is needed, the party or parties concerned shall, in
Stateless persons or refugees from other countries shall, in
addition to the requirements of the preceding articles, attach
lieu of the certificate of legal capacity herein required,
a certificate issued by a priest, imam or minister authorized
submit an affidavit stating the circumstances showing such
to solemnize marriage under Article 7 of this Code or a
capacity to contract marriage. (66a)
marriage counselor duly accredited by the proper
government agency to the effect that the contracting parties Art. 22. The marriage certificate, in which the parties shall
have undergone marriage counseling. Failure to attach said declare that they take each other as husband and wife, shall
certificates of marriage counseling shall suspend the issuance also state:
of the marriage license for a period of three months from the
(1) The full name, sex and age of each contracting
completion of the publication of the application. Issuance of
party;
the marriage license within the prohibited period shall
(2) Their citizenship, religion and habitual
subject the issuing officer to administrative sanctions but
residence;
shall not affect the validity of the marriage.
(3) The date and precise time of the celebration of
Should only one of the contracting parties need parental the marriage;
consent or parental advice, the other party must be present (4) That the proper marriage license has been issued
at the counseling referred to in the preceding paragraph. (n) according to law, except in marriage provided for in
Chapter 2 of this Title;
Art. 17. The local civil registrar shall prepare a notice which
shall contain the full names and residences of the applicants (5) That either or both of the contracting parties have
for a marriage license and other data given in the secured the parental consent in appropriate cases;
applications. The notice shall be posted for ten consecutive
(6) That either or both of the contracting parties have
days on a bulletin board outside the office of the local civil
complied with the legal requirement regarding parental
registrar located in a conspicuous place within the building
advice in appropriate cases; and
and accessible to the general public. This notice shall request
all persons having knowledge of any impediment to the (7) That the parties have entered into marriage
marriage to advise the local civil registrar thereof. The settlement, if any, attaching a copy thereof. (67a)
marriage license shall be issued after the completion of the
period of publication. (63a) Art. 23. It shall be the duty of the person solemnizing the
marriage to furnish either of the contracting parties the
Art. 18. In case of any impediment known to the local civil original of the marriage certificate referred to in Article 6
registrar or brought to his attention, he shall note down the and to send the duplicate and triplicate copies of the
particulars thereof and his findings thereon in the certificate not later than fifteen days after the marriage, to
application for marriage license, but shall nonetheless issue the local civil registrar of the place where the marriage was
said license after the completion of the period of publication, solemnized. Proper receipts shall be issued by the local civil
unless ordered otherwise by a competent court at his own registrar to the solemnizing officer transmitting copies of the
instance or that of any interest party. No filing fee shall be marriage certificate. The solemnizing officer shall retain in
charged for the petition nor a corresponding bond required his file the quadruplicate copy of the marriage certificate,
for the issuances of the order. (64a) the copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the
Art. 19. The local civil registrar shall require the payment of
contracting party regarding the solemnization of the
the fees prescribed by law or regulations before the issuance
marriage in place other than those mentioned in Article 8.
of the marriage license. No other sum shall be collected in
(68a)
the nature of a fee or tax of any kind for the issuance of said
license. It shall, however, be issued free of charge to indigent
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Art. 24. It shall be the duty of the local civil registrar to performed in articulo mortis or that the residence of either
prepare the documents required by this Title, and to party, specifying the barrio or barangay, is so located that
administer oaths to all interested parties without any charge there is no means of transportation to enable such party to
in both cases. The documents and affidavits filed in appear personally before the local civil registrar and that the
connection with applications for marriage licenses shall be officer took the necessary steps to ascertain the ages and
exempt from documentary stamp tax. (n) relationship of the contracting parties and the absence of
legal impediment to the marriage. (72a)
Art. 25. The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a registry Art. 30. The original of the affidavit required in the last
book strictly in the order in which the same are received. He preceding article, together with the legible copy of the
shall record in said book the names of the applicants, the marriage contract, shall be sent by the person solemnizing
date on which the marriage license was issued, and such the marriage to the local civil registrar of the municipality
other data as may be necessary. (n) where it was performed within the period of thirty days after
the performance of the marriage. (75a)
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they Art. 31. A marriage in articulo mortis between passengers or
were solemnized, and valid there as such, shall also be valid crew members may also be solemnized by a ship captain or
in this country, except those prohibited under Articles 35 (1), by an airplane pilot not only while the ship is at sea or the
(4), (5) and (6), 3637 and 38. (17a) plane is in flight, but also during stopovers at ports of call.
(74a)
Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly Art. 32. A military commander of a unit, who is a
obtained abroad by the alien spouse capacitating him or her commissioned officer, shall likewise have authority to
to remarry, the Filipino spouse shall have capacity to solemnize marriages in articulo mortis between persons
remarry under Philippine law. (As amended by Executive within the zone of military operation, whether members of
Order 227) the armed forces or civilians. (74a)
· Under paragraph 1, the following marriages are Art. 33. Marriages among Muslims or among members of
prohibited and void ab initio even if they are allowed in the ethnic cultural communities may be performed validly
the country where the marriage is celebrated without the necessity of marriage license, provided they are
· Both are Filipino and either or both parties is under 18 solemnized in accordance with their customs, rites or
practices. (78a)
· If one of parties is Filipino and is under 18
· Marriage is bigamous or polygamous Art. 34. No license shall be necessary for the marriage of a
· There is a mistake in the identity of the party by the man and a woman who have lived together as husband and
other party wife for at least five years and without any legal impediment
to marry each other. The contracting parties shall state the
· One of the parties in a subsequent marriage is a party to
foregoing facts in an affidavit before any person authorized
a prior marriage but did not comply with article 52
by law to administer oaths. The solemnizing officer shall also
· One of the parties to the marriage is psychologically state under oath that he ascertained the qualifications of the
incapacitated contracting parties are found no legal impediment to the
· Incestuous marriage marriage. (76a)
· Marriage void by public policy
Chapter 3. Void and Voidable Marriages
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(extraordinary absence), where such person has a aell
founded belief that his/her absent spouse is already Jurisprudential Guidelines (Republic vs. CA and Molina, 26
dead, and after the absent spouse s judicially declared SCRA 198 (1997)):
to be presumed dead.
1. Burden of proof to show incapacity belongs to the plaintiff.
(5) Those contracted through mistake of one contracting
2. Root cause of psychological incapacity must be:
party as to the identity of the other; and
a. medically or clinically identified
(6) Those subsequent marriages that are void under
b. alleged in the complaint
Article 53.
c. sufficiently proved by experts
· provides that a person whose marriage has been d. clearly explained in decision
annulled may remarry as long as he complies with 3. Such incapacity must be proven to be existing at the time of
Art 52 which requires that after the marriage is the celebration of marriage.
annulled, the properties of the spouses must e 4. Such incapacity must be proven to be medically or clinically
partitioned and distributed and the presumptive permanent or incurable.
legitimes of the children be distributed. Furthermore, 5. Such illness must be grave enough to bring about the
the judgement of annulment or absolute nullity, the disability of the said party to perform the essential
partition and distribution of the spouses’ properties, obligations of marriage
and the delivery of the children’s presumptive 6. essential obligations of marriage must be those embraced by
legitimes must be recorded and in the appropriate Art. 68-71, 220, 221 and 225 FC.
civil registry and registries of property. Failure to 7. Interpretations give by the National Appellate Matrimonial
comply with these requisites will make the Tribunal of he Catholic Church in the Philippines, while not
subsequent marriage void ab initio. controlling or decisive, should be given great respect by our
• Conditions mentioned in Art 35 apply even if courts.
marriage is solemnized outside the territorial 8. The Trial Court must order the prosecuting attorney or fiscal
jurisdiction of our country, under the conditions for and the Solicitor General to appear as counsel for the state.
marriage prescribed by those countries. Article 35
are not exclusive to those conditions mentioned. Essential Marital Obligations- must be those embraced in Aricle
68 to 71 FC as regards to husband and wife and 220, 221 and
Art. 36. A marriage contracted by any party who, at the time 225 for parents and children,
of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, • burden of proof to show nullity of marriage belongs to the
shall likewise be void even if such incapacity becomes plaintiff.
manifest only after its solemnization. (As amended by • there shall be no awards of Moral Damages for
Executive Order 227) Psychological Incapacity
Psychological Incapacity- There is no exact definition, however
Divorce vs. Legal Separation
usually means a constant, protacted and senseless refusal to
perfom the essential marital obligations by either or both parties,
even if they are capable (Chi Ming Tsoi vs CA, 266 SCRA 234 Divorce
(1997)). • cuts the marital bond between spouses
Elements of Psychological Incapacity: • all the requisites for marriage are present
• reasons for the termination of the marital bond happen only
1. Mental Disposition after the celebration of the marriage
2. Applies to the person maritally contracted to another
3. Marriage entered into with volition Legal Separation
4. Failure to perform or comply the essential marital obligations
5. Such failure is chronic • all the requisites for marriage are present
6. Cause is serious and that there is juridical antecedence • reasons for the termination of the marital bond happen only
7. Incapacity results in failure in the marriage after the celebration of the marriage
• the marital bond is not severed between the spouses.
Characteristics:
1. Gravity- severe enough to cause incapacity to comply with Art. 37. Marriages between the following are incestuous and
essential marital obligations void from the beginning, whether relationship between the
2. Juridical antecedence- incapacity must have existed before parties be legitimate or illegitimate:
marriage celebration, even if symptoms manifested after the
ceremony (1) Between ascendants and descendants of any degree;
3. Incurability- cure is not possible or beyond the means and
available to the parties (2) Between brothers and sisters, whether of the full or
half blood. (81a)
· Full blood- same father and mother
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· Half blood- have the same mother but different father Other than for remarriage, there is no need for judicial
or vice versa action to declare a marriage an absolute nullity.
· A marriage contracted without the final judgement
Art. 38. The following marriages shall be void from the declaring nullity of the previous marriage shall be void
beginning for reasons of public policy: ab initio
· Applies to cases where previous marriage is void and
(1) Between collateral blood relatives whether legitimate or one of the parties contracted a subsequent marriage.
illegitimate, up to the fourth civil degree; · Applies to remarriages during the effectivity of the
· Collateral line is a series of degrees among persons who Family Code, regardless of the date of the first marriage
are not descendants or ascendants ·
· ascent is made to the common ancestor Art. 41. A marriage contracted by any person during
· (2) Between step-parents and step-children; subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
· void due to being relatives by affinity
prior spouse had been absent for four consecutive years and
· (3) Between parents-in-law and children-in-law; the spouse present has a well-founded belief that the absent
· scandalous and due to custom that parents-in-law treat spouse was already dead. In case of disappearance where
their children in-law as their real children there is danger of death under the circumstances set forth in
· (4) Between the adopting parent and the adopted child; the provisions of Article 391 of the Civil Code, an absence of
· adopted children are considered to be legitimate only two years shall be sufficient.
children For the purpose of contracting the subsequent marriage
· (5) Between the surviving spouse of the adopting parent under the preceding paragraph the spouse present must
and the adopted child; institute a summary proceeding as provided in this Code for
· relationship is more then between adopting parent and the declaration of presumptive death of the absentee, without
adopted child prejudice to the effect of reappearance of the absent spouse.
(83a)
(6) Between the surviving spouse of the adopted child and
General rule- any person who contracts a second or subsequent
the adopter;
marriage before the former marriage has been legally dissolved
· relationship is more than just between adopting parent or before the absent spouse has been declared as presumed dead
and adopting child by means of a judgement rendered in the proper proceedings is
guilty of bigamy
(7) Between an adopted child and a legitimate child of the
adopter; Exceptions are the conditions for the validity of a subsequent
bigamous marriage under Article 41:
(8) Between adopted children of the same adopter; and 1. Prior spouse of the contracting party must be absent for at
· they are considered to be legitimate siblings (par. 7 and least 4 years or, when there is danger of death during the
8) disappearance of the said spouse, 2 years.
2. The present spouse had a well-founded belief that the absent
(9) Between parties where one, with the intention to marry spouse is already dead
the other, killed that other person’s spouse, or his or her own 3. There is a judicial declaration of the presumptive death of the
spouse. (82 absent spouse for the purpose of the spouse present can
institute a summary proceding in court to ask for that
Art. 39. The action or defense for the declaration of absolute declaration. (under the Family Code, otherwise the
nullity of a marriage shall not prescribe. (As amended by subsequent marriage will be deemed void ab initio).
Executive Order 227 and Republic Act No. 8533)
· After obtaining the judicial declaration of the
• The phrase “However, in case of marriage celebrated before presumptive death of the absent spouse, the absentee
the effectivity of this Code and falling under Article 36, spouse shall be presumed dead and the present spouse
such action or defense shall prescribe in ten years after this may contract a subsequent marriage
Code shall taken effect” has been deleted by Republic Act
No. 8533 [Approved February 23, 1998]). Art. 42. The subsequent marriage referred to in the
Art. 40. The absolute nullity of a previous marriage may be preceding Article shall be automatically terminated by the
invoked for purposes of remarriage on the basis solely of a recording of the affidavit of reappearance of the absent
final judgment declaring such previous marriage void. (n) spouse, unless there is a judgment annulling the previous
· Nullity of the previous marriage must be sought for the marriage or declaring it void ab initio.
purposes of remarriage is the sole basis for the freedom A sworn statement of the fact and circumstances of
of legal impediments of the previous marriage is the reappearance shall be recorded in the civil registry of the
final judgment declaring the previous marriage void. residence of the parties to the subsequent marriage at the
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instance of any interested person, with due notice to the · Annulment is the judicial or legal process of
spouses of the subsequent marriage and without prejudice to invalidating a voidable marriage.
the fact of reappearance being judicially determined in case · Characteristics of voidable marriage
such fact is disputed. (n)
· valid until otherwise declared by court
· The mere reappearance of the absent spouse does not · defect which serves as ground for annulment must be
terminate the subsequent marriage. Only after the present during the celebration of the marriage
recording of the affidavit of reappearance (can be filed · cannot be assailed collaterally except by direct
by anyone who is interested) by the Civil Registrar can proceeding
the subsequent marriage be terminated automatically · can only be assailed during the lifetime of either party
· Affidavit must state the facts surrounding the · only parties to the marriage can assail it
reappearance of the absentee spouse and it must be
· action for annulment is subject to prescription
recorded by the Local Civil Registrar where the spouse
resides · defect is subject to ratification except for ground in par.
5 and 6 of Art. 45
· prescription period- period of time allowed to file
Art. 43. The termination of the subsequent marriage action for annulment
referred to in the preceding Article shall produce the · Ratifiation is the act or virtue of which efficacy is given
following effects: to a contract which suffers from the vice of curable
(1) The children of the subsequent marriage conceived nullity. Ratification extinguishes the action to annul a
prior to its termination shall be considered legitimate; voidable contract
· Custody and support of such children may be subject to · For ratification to be effective it must satisfy the
the agreement between the spouses of the subsequent following requisites:
marriage, or by a court in proper proceeding in case of · Contract is tainted with a vice that is susceptible to
dispute being cured
(2) The absolute community of property or the conjugal · Ratification is effected by the person who is entitled to
partnership, as the case may be, shall be dissolved and do it under law
liquidated, but if either spouse contracted said · Effected with the knowledge of the vice or defect of the
marriage in bad faith, his or her share of the net contract
profits of the community property or conjugal
partnership property shall be forfeited in favor of the · Cause of the nullity or defect should have already
disappeared
common children or, if there are none, the children of
(1) That the party in whose behalf it is sought to have the
the guilty spouse by a previous marriage or in default
marriage annulled was eighteen years of age or over
of children, the innocent spouse;
but below twenty-one, and the marriage was
(3) Donations by reason of marriage shall remain valid,
solemnized without the consent of the parents,
except that if the donee contracted the marriage in
guardian or person having substitute parental
bad faith, such donations made to said donee are
authority over the party, in that order, unless after
revoked by operation of law;
attaining the age of twenty-one, such party freely
(4) The innocent spouse may revoke the designation of
cohabited with the other and both lived together as
the other spouse who acted in bad faith as beneficiary
husband and wife;
in any insurance policy, even if such designation be
stipulated as irrevocable; and · parental consent is required to be given by ‘father,
(5) The spouse who contracted the subsequent marriage mother, surviving parent or guardian or persons with
in bad faith shall be disqualified to inherit from the legal charge’
innocent spouse by testate and intestate succession. (n) · action for annulment may be filed by (1) contracting
party whose parental consent is required (only in cases
Art. 44. If both spouses of the subsequent marriage acted in where said party which has not reached 21) or (2) by
bad faith, said marriage shall be void ab initio and all the party whose parent did not give consent (only in
donations by reason of marriage and testamentary cases where said party has already reached 21)
dispositions made by one in favor of the other are revoked by · prescriptive period is: for (1) before the party (from
operation of law. (n) whom no parental consent was given) reaches 21; for
(2) is five years after reaching 21
Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage: · It is subject to ratification. In this case if the party
whose parent did not give consent, after reaching 21,
· Voidable marriages are those that have defects in the freely cohabits with the other as husband and wife
essential requisite. Such marriage will remain valid and (2) That either party was of unsound mind, unless such
produces valid civil effecs until it is set aside for final party after coming to reason, freely cohabited with the
judgement by a competent court in an action for other as husband and wife;
annulment.
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· Mental incapacity must be related specifically to the (4) That the consent of either party was obtained by
contract of marriage, the party at the time of marriage force, intimidation or undue influence, unless the
was capable of understanding the nature and same having disappeared or ceased, such party
consequences of the marriage, and the insanity must thereafter freely cohabited with the other as husband
have existed at the time of the marriage and wife;
· Sanity is presumed in absence of proof for insanity. The · There is violence when serious and irresistible force
burden of proof rests upon the party alleging insanity was used in order to obtain consent. There is
and seeks to avoid an act on account of it, and there intimidation when one of the parties was compelled by
must be a preponderance of evidence. reasonable and well grounded fear against his person or
· The people who may file for annulment are (1) any property or his spouse’s, descendants’ and ascendants’
relative or guardian or person having legal charge over person or property to obtain consent.
the insane and (2) the insane spouse during the period · Requisites by which duress (force and intimidation)
of lucidity or regained sanity may vitiate consent and render the contract voidable:
· Prescription period- before the death of either party · It must be the determining cause of the contract
· It can be ratified only by the insane person during a · It must be unjust
lucid interval by freely cohabiting with the other spouse · It must be serious or grave
as husband and wife · It must produced reasonable and well-grounded fear
(3) That the consent of either party was obtained by that the person from whom such fear came has the
fraud, unless such party afterwards, with full necessary means to inflict threatened injury
knowledge of the facts constituting the fraud, freely · Action for annulment may be filed by injured party or
cohabited with the other as husband and wife; the party that was subject to duress.
· Fraud- refers to the non-disclosure of or concealment of · Prescriptive period- five years from the time force was
some facts deemed material to marital obligation used
· The following constituted fraud (and the grounds for · It can be ratified only by the injured party by freely
annulment): cohabiting with the guilty spouse as husband and wife
· Non-disclosure of previous conviction (5) That either party was physically incapable of
· There must be conviction by final judgement consummating the marriage with the other, and such
· Crime must involve moral turpitude (contrary to justice, incapacity continues and appears to be incurable; or
honesty, modesty and good morals) · Physical incapacity for marriage imports total want of
· Concealment of pregnancy power for copulation and only necessary incident
· Concealment of such fact during the time of the thereto the ability for procreation. Copulate means the
marriage ceremony act of gratification of sexual desire by means of the
union of two biological organs
· Bride not aware she was pregnant or groom was aware
she was pregnant is not fraud · Barrenness or sterility (inability to procreate),
impotence (physical inability o perform sexual
· Concealment of sexually transmitted diseases intercourse), sexual frigidity or weakness, are not
· If it is incurable grounds for annulment
· Curable but concealed by the afflicted party during the · Potency is presumed and the burden of proof to prove
time of the marriage impotence rests upon the party alleging the existence of
· Party afflicted was not aware that they has STD, no such condition
fraud · The following are the requisites in order that such
· Concealment of Drug Addiction, Habitual Alcoholism, incapacity be a ground for annulment:
Homosexuality or Lesbianism · Incapacity existed at the time of the marriage
· If not concealed, no fraud exists celebration
· Not a ground for legal separation in the case of the · Continues up to the time of filing for annulment
latter since causes or grounds must exist after the · Appears to be incurable
marriage.
· Must be unknown to the other party
· Condonation of these acts is a defense for legal
separation
· Only the injured party may file for annulment
· Only the injured party can file for annulment · Prescription period must be five years after the
celebration of marriage
· Prescriptive period is five years after discovery of the
fraud
· It cannot be ratified due to the complete failure of the
consideration of the contract of marriage (gratification
· It can be ratified only by the injured party by freely of sexual desire)
cohabiting with the other spouse as husband and wife (6) That either party was afflicted with a sexually-
after gaining full knowledge of the facts concerning the transmissible disease found to be serious and appears
fraud to be incurable. (85a)
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· The grounds is not the concealment but the existed of force, intimidation or undue influence disappeared or
the STD that is serious and incurable, and the other ceased;
party was not aware of the existence of such disease (5) For causes mentioned in number 5 and 6 of Article 45,
· The requisites for the validity of the grounds for by the injured party, within five years after the
annulment: marriage. (87a)
· STD must have existed at the time of the marriage Art. 48. In all cases of annulment or declaration of absolute
celebration
nullity of marriage, the Court shall order the prosecuting
· It is found to be serious attorney or fiscal assigned to it to appear on behalf of the
· It is appears to be incurable State to take steps to prevent collusion between the parties
· It must be unknown to the other party at the time of the and to take care that evidence is not fabricated or
marriage suppressed.
· The party who is not afflicted with the STD and not In the cases referred to in the preceding paragraph, no
aware of its existence is the only one allowed to file for judgment shall be based upon a stipulation of facts or
annulment confession of judgment. (88a)
· Prescriptive period is five years after the celebration of
Art. 49. During the pendency of the action and in the absence
the marriage
of adequate provisions in a written agreement between the
· It cannot be ratified but action for annulment can be spouses, the Court shall provide for the support of the
barred by prescription spouses and the custody and support of their common
children. The Court shall give paramount consideration to
Art. 46. Any of the following circumstances shall constitute the moral and material welfare of said children and their
fraud referred to in Number 3 of the preceding Article: choice of the parent with whom they wish to remain as
(1) Non-disclosure of a previous conviction by final provided to in Title IX. It shall also provide for appropriate
judgment of the other party of a crime involving visitation rights of the other parent. (n)
moral turpitude;
(2) Concealment by the wife of the fact that at the time of
· The procedure governing the declaration of absolute
nullity of void marriages or annulment of marriages is
the marriage, she was pregnant by a man other than
now governed by A.M 02-11-10-SC and 02-11-12-SC
her husband;
(3) Concealment of sexually transmissible disease, · Family courts have exclusive Jurisdiction to hear and
regardless of its nature, existing at the time of the decide complaints for annulment and declaration of
marriage; or nullity of marriage
(4) Concealment of drug addiction, habitual alcoholism · Venue for petition must be the Family Court where the
or homosexuality or lesbianism existing at the time of petitioner or respondent has been residing for at least 6
the marriage. months prior to the date of filing, or where he may be
No other misrepresentation or deceit as to character, health, found in the Philippines if party is a foreigner
rank, fortune or chastity shall constitute such fraud as will · The Contents and form of the petition
give grounds for action for the annulment of marriage. (86a) · Petition shall contain complete facts constituting course
Art. 47. The action for annulment of marriage must be filed of action. In cases of Art 36, petitioner must
by the following persons and within the periods indicated specifically allege the complete facts showing that
herein: either or both parties were psychologically
incapacitated from performing the essential obligations
(1) For causes mentioned in number 1 of Article 45 by the of marriage at the time of the marriage celebration.
party whose parent or guardian did not give his or her · Must contain the names and ages of the common
consent, within five years after attaining the age of children of the parties and the regime governing their
twenty-one, or by the parent or guardian or person property relations. If there is no adequate agreement
having legal charge of the minor, at any time before between the parties, the petitioner may apply for a
such party has reached the age of twenty-one; provisional order for spousal support, custody and
(2) For causes mentioned in number 2 of Article 45, by support of common children, visitation rights,
the same spouse, who had no knowledge of the other’s administration of common or conjugal property and
insanity; or by any relative or guardian or person oher matters requiring urgent attention
having legal charge of the insane, at any time before · Petition must be verified (be signed personally by
the death of either party, or by the insane spouse petitioner) and accompanied by a certification against
during a lucid interval or after regaining sanity; forum shopping (can be authenticated by a consul
(3) For causes mentioned in number 3 of Article 45, by general, vice-consul, consul or consular agent if the
the injured party, within five years after the discovery petitioner is in another country
of the fraud;
(4) For causes mentioned in number 4 of Article 45, by · Shall be filed in 6 copies, where a copy shall be served
to the OSG, Office of the City or Provincial Prosecutor,
the injured party, within five years from the time the
within five days from the date of filing and and submit
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to the court proof of such service within the same where the marriage was recorded and the Fam. Court
period. Failure to comply with this may be a ground for granting the petition.
the dismissal of the petition · No appeal shall be made unless the parties, the pub.
· The service of summons shall be governed by Rule 14 pros, OSG has filed a motion for reconsideration within
of the Rules of Court. If the respondent cannot be 15 days from notice of judgment. Appeal shall be made
located, the service of summons shall be served to him by filing of a notice of Appeal within 15 days
via publication of once a week for 2 weeks of the · Upon receipt of petition, the Family Court shall proceed
summons in a newspaper of general circulation in the with the Liquidation, Partition and Distribution of
Philippines, a copy shall also be sent to the last known Properties, including custody, common children support
address of the petitioner via registered mail or means and deliverance of presumptive legitimes pursuant to
deemed fit by the Court. Art 50 and 51.
· The contents of the newspaper publication shall be: 1) · Failure to comply with Art 50 and 51 shall render the
title of the case, 2) docket number, 3) nature of the subsequent marriage null and void
petition, 4) principal grounds for the petition and reliefs · Decree shall be issued after compliance with the
prayed for, 5) a directive for the respondent to answer following requisites
within 30 days from the last issue of publication
· Registration of entry of judgment in the Local Civil
· When no answer is filed or the answer does not tender Registry where the marriage was recorded and the Fam.
an issue, the court shall order the public prosecutor to Court granting the petition
investigate whether collusion exists between the parties,
and shall submit such report (noting if there is collusion
· Registration of approved partition and distribution of
properties of the spouses in the Registry of Deeds
or none) within one month following the receipt of such
where property is located
order and shall furnish copies for the parties and their
counsel. · Delivery of Childrens presumptive legitimes in cash,
property or sound securities
· The parties shall file their comments on the finding
collusion within 10 days from receipt of report. The · The court shall quote in the decree the dispositive
court shall set the report for hearing and shall dismiss portion of the judgment entered and attach the decree of
the petition if it is found that there was collusion approved partition of property
· If there is no collusion, then the court shall set the case · The court shall order the LCR to issue new birth
for pre-trial. It shall be the duty of the Public Prosecutor certificates indicating the new status of the children,
to appear on behalf of the State on the pre-trial. except in cases of Art. 36 an 53
· If petitioner fails to appear during the pre-trial, the case · The prevailing party shall cause the registration of the
shall be dismissed unless his counsel or representative Decree in the Local Civil Registry where the marriage
appears and provides a valid excuse for the petitioner’s was recorded and the Fam. Court granting the petition,
absence. If the respondent files his answer but fails to and in the NSO. They shall report compliance within 30
appear, the pre-trial shall continue and the prosecutor days from the receip of the copy of the decree. Failure
shall investigate the non-appearance of the respondent to register the decree shall render the subsequent
marriage null and void
· The court shall not allows compromise on prohibited
matters such as: 1) civil status of persons, 2) The · If the party dies before entry of judgment, the court
validity of the marriage or of a legal separation, 3) any shall have the case closed and terminated, without
ground for legal separation, 4) future support, prejudice to the settlement of the estate in proper
5)jurisdiction of courts, and 6) future legitimes proceedings in regular courts. Void marriages can still
be assailed after the death of either party/ If the party
· If the court grants the petition, it shall declare the dies after the entry of judgment, the judgment shall be
decree of absolute nullity or annulment be issued only
binding upon the parties and their successors in the
after compliance of Art. 50 and 51. The parties
interest in the settlement of the estate in a regular court
including the OSG and the public prosecutor shall be
served copies of decision personally or by registered · Upon receipt of a verified petition, the court may issue
mail. If respondent summoned via newspaper did not provisional remedies or protection order with or
appear, the dispositive part of the decision shall be without hearings, and may be enforced immediately
published once in a newspaper of gen. circ. with or without a bond for a period of time the court
deems necessary
· Decision becomes final and executory upon 15 days
from the notice to the parties. Entry of judgment shall · In determining spousal support, the courts may be
be made if there is no motion for reconsideration or guided by:
new trial, or appeal is filed by any of the parties, the · In absence of written agreement, the support shall be
pub. pros, OSG. The Court shall issue the provided from the property of absolute community or
corresponding decree if the parties have no property. If conjugal relationship
they have, then the rules of Liquidation, Partition and · Based on the standard of living of either parties, the
Distribution of Properties shall be observed. Entry of court may award support in such amount of time and
Judgment shall be made in the Local Civil Registry amount as deemed fit
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· Or based on the following factors: · May be awarded to the parent who was not awarded
· Custodian of child and not able to seek employment provisional custody unless court declares it unfit or
· Time for education and training for spouse to seek disqualified by the court
employment · Hold Departure Order
· Duration of marriage · Psnding resolution, no child may be brought out of the
· Comparative resources and earning capacity of the country without prior order from the court, and may
spouses issue under moto proprio or under application of oath
ex-parte a hold departure order address to
· Needs and obligations of each spouse BImmigDeport of DoJ, directing not to allow the
· Contribution of each spouse to the marriage, including departure of the child without permission of court. Such
services rendered order shall be furnished to BID and DFA within 24
· Age and health of spouses hours from issuance using the fastest means available
· Physical and emotional conditions of each spouse · Shall contain:
· Any other factor deemed by the court to be just and · the name, place of birth, and last place of residence of
equitable person against whom the hold departure order is issued,
· The Family Court may direct the deduction of · complete title and docket number of the case in which
provisional support from the salary of the spouse. the hold departure order was issued
· Child Support shall be provided from the property of · specific nature of the case
absolute community or conjugal relationship or based · date of hold departure order
on the following factors”
· If availablee a recent photograph of the person
· Financial resources of the parents and of the child · The court can recall the order moto proprio or upon
· Physical, emotional health, and special needs and verification of any of the parties after summary hearing,
aptitudes of the child subject to conditions for the best interest of the child
· Standard of living the child is accustomed to · Order of Protection
· Non-monetary contributions that the parent will make · May be issued against any person by the Court
toward the care and well being of the child
· Administration of Common Property
· Child Custody hall be based on what the court deems fit
taking into consideration the health, best interests and
· If a spouse without just cause abandons the other or
fails to comply with the obligations to his/her family,
well being of the child. Or it may be based on
the court may, upon the application of the aggrieved
· Agreement between the parties, party, to issue a provisional order appointing the
· Desire and ability of the parent to foster a loving and applicant or a third person as a receiver or sole
open relationship between parent and child administrator of the common property subject to the
· Child’s health, saferty and welfare, precautionary conditions it may impose
· History of child and spousal abuse Art. 50. The effects provided for by paragraphs (2), (3), (4)
· Nature and frequency of contact between both parties and (5) of Article 43 and by Article 44 shall also apply in the
· Habitual use of alcohol or regulated substances proper cases to marriages which are declared ab initio or
· Marital misconduct annulled by final judgment under Articles 40 and 45.
· Most suitable physical, emotional, spiritual The final judgment in such cases shall provide for the
psychological or educational environment liquidation, partition and distribution of the properties of the
· Preference of child if over 7 years of age and has spouses, the custody and support of the common children,
sufficient discernment, unless chosen parent is unfit and the delivery of third presumptive legitimes, unless such
· Provisional custody may be awarded to: matters had been adjudicated in previous judicial
· Both parents jointly proceedings.
· Either parent taking into consideration under foregoing All creditors of the spouses as well as of the absolute
paragraph, especially choice of child if over 7 years of community or the conjugal partnership shall be notified of
age and has sufficient discernment, unless chosen the proceedings for liquidation. In the partition, the conjugal
parent is unfit dwelling and the lot on which it is situated, shall be
· Surviving grandparent, or preference of child if over 7 adjudicated in accordance with the provisions of Articles 102
years of age and has sufficient discernment, unless and 129.
chosen grandparent is unfit · The General rule is that if the marriage is void ab initio,
· Oldest brother or sister over 21 years of age, unless then it is ipso facto void without need for any judicial
unfit or disqualified declaration (needed only in cases for remarriage)
· To any other person deemed by the court suitable to
provide proper care and guidance · Judicial declaration of nullity of marriage retroacts to
the date of the marriage celebration insofar as the
· Visitation Rights vindicum between the spouses.
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· Children born outside a valid marriage are illegitimate, The delivery of the presumptive legitimes herein prescribed
unless the law itself gives them legitimate status as in shall in no way prejudice the ultimate successional rights of
cases of Art 36 and 53 which gives the children the children accruing upon the death of either of both of the
legitimate status. Article 54 also provides exception to parents; but the value of the properties already received
children born under Article 36. They shall be under the under the decree of annulment or absolute nullity shall be
parental authority of their mother, even if the father considered as advances on their legitime. (n)
admits paternity.
· Decree for declaration of absolute nullity or annulment
· One of the effects of the declaration of nullity of of marriage shall not be issued unless these
marriage is the separation of the property of the spouses requirements following are complied with. Failure to
according to the applicable property regime. In a void comply with these requirements shall render the
marriage, the property relation of either parties during subsequent marriage null and void, partition and
the period of cohabitation is governed by the provisions distribution of the properties of marriage shall not affect
under 137 and 138, as the case may be. In the third persons
liquidation and partition of the property owned in o Registration of the entry of judgement granting
common by the parties in a void marriage, the the petition for declaration of absolute nullity
provisions on co-ownership under the NCC applies, not or annulment of marriage in the Civil Registrar
Art. 50-52 in relation to 102 and 129 FC. Article 50 where the Family Court is located
makes explicit terms to the applicability of provisions
under Art. 43 par. 2 to avoid marriages under Art. 40. o Registration of the approved petition and
distribution of the properties of the spouses., in
· For donations propter nuptias, if the marriage is the proper Registry of Deeds where the
declared judicially void ab initio, the donor may revoke properties are located.
the donation. However, if the donation was made in the
marriage settlement, then the same shall be void if the o Delivery of the children’s presumptive
marriage is declared voud ab initio. If the marriage is legitimes in cash, property or sound securities/
declared void under Art. 40 (declaration of · After the forementioned requirements have been
nullitysubsequent marriage contracted by a spouse of a complied, the prevailing party shall be entitled to issue
prior valid marriage before the latter is declared a Decree for declaration of absolute nullity or
judicially void), then the provisions under Art. 43 par. 2 annulment of marriage. He/she is required however to
apply on this case. If the marriage is void under Art. 44 cause the registration of the Decree in the Local Civil
(both spouses acted in bad faith), then all the donations Registrar where the marriage was celebrated, where the
shall be revoked by operation of law. Family Court is located, and on the National Census
· Under the Insurance Code, the beneficiary designated and Statistics Office. The registered decree shall be the
cannot be changed if the policy declares it as best proof for the declaration of absolute nullity or
irrevocable. However, if marriage is declared void annulment of marriage.
under Art. 40, then the provisions of Art. 43, par. 3 · If the children were born before the judgement becomes
apply, hence the insured can revoke the rights of the final and executory, declaring the marriage null and
beneficiary even if it is irrevocable. void, they are legitimate. Children born of void
· On the matter of right to inherit, if marriage is declared marriages are illegitimate except in Article 53 and 36,
void, the parties have no right to be the legal heir to where they are considered legitimate. The Family Court
each other except when they are collateral blood shall order the Local Civil Registrar to issue an
relatives within the 5th civil degree. However, if amended birth certificate showing the new status of the
marriage is declared void under Art. 40, then the children, except as mentioned in Art. 53 and 36.
provisions of Art. 43, par. 5 apply. If spouse contracted Art. 52. The judgment of annulment or of absolute nullity of
marriage in bad faith, then he/she shall be disqualified the marriage, the partition and distribution of the properties
from inheriting from the innocent spouse by testate and of the spouses and the delivery of the children’s presumptive
intestate succession. If marriage is void under Art 44, legitimes shall be recorded in the appropriate civil registry
testamentary dispositions are revoked under operation and registries of property; otherwise, the same shall not
of law. affect third persons. (n)
Art. 51. In said partition, the value of the presumptive Art. 53. Either of the former spouses may marry again after
legitimes of all common children, computed as of the date of compliance with the requirements of the immediately
the final judgment of the trial court, shall be delivered in preceding Article; otherwise, the subsequent marriage shall
cash, property or sound securities, unless the parties, by be null and void.
mutual agreement judicially approved, had already provided
for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
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Art. 54. Children conceived or born before the judgment of place. Adultery in this case only a single act of sexual
annulment or absolute nullity of the marriage under Article intercourse by a wife with another man not her husband.
36 has become final and executory shall be considered However Article 55, Sec 8 now allows for legal
legitimate. Children conceived or born of the subsequent separation solely on a single act of sexual intercourse by
marriage under Article 53 shall likewise be legitimate. either spouse as sexual infidelity
• perversion unusual or abnormal sexual practices which
TITLE II may be offensive to the feelings or decency of either
husband or wife. Usage of physical force, harm or
LEGAL SEPARATION intimidation against the wife also falls or constitutes a
Legal Separation- legal remedy available to parties in a valid but crime under R.A. 9262
failed marriage for the purpose of obtaining a decree from the (9) Attempt by the respondent against the life of the
court entitling them to certain reliefs such as living separately petitioner; or
from each other. • required is the intent to kill
(10) Abandonment of petitioner by respondent without
Legal Separation does not sever the marriage bond unlike justifiable cause for more than one year.
annulment and divorce, the reasons for separation happen after • voluntary separating from one another with no intent of
the marriage like that of divorce. In annulment, the reasons exist returning to live together as husband and wife, and must
during the celebration of the marriage be 1) under unjustifiable cause, 2) must be for more than
1 year
Art. 55. A petition for legal separation may be filed on any of For purposes of this Article, the term “child” shall include a
the following grounds: child by nature or by adoption. (9a)
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a Art. 56. The petition for legal separation shall be denied on
child of the petitioner; any of the following grounds:
• same is true if physical violence is in the form of an (1) Where the aggrieved party has condoned the offense
attempt on the life of the petitioner or act complained of;
- psychological, sexual and repeated verbal abuse also fall • conditional forgiveness or remission of one spouse of
under grossly abuse conduct the matrimonial spouse of the other
- sexual violence are acts which are sexual in nature, • cohabitation as husband and wife, after the commission
committed against the women or children of the offense, with knowledge or belief on the part of
(2) Physical violence or moral pressure to compel the injured party, will amount to conclusive evidence to
petitioner to change religious or political affiliation; cohabition
• must be directed against the petitioner (2) Where the aggrieved party has consented to the
(3) Attempt of respondent to corrupt or induce the commission of the offense or act complained of;
petitioner, a common child, or a child of the • agreement or conformity of one party to the
petitioner, to engage in prostitution, or connivance in commission of the act which would be a ground for legal
such corruption or inducement; separation
(4) Final judgment sentencing the respondent to (3) Where there is connivance between the parties in the
imprisonment of more than six years, even if commission of the offense or act constituting the
pardoned; ground for legal separation;
(5) Drug addiction or habitual alcoholism of the • agreement of both parties to the commission of the act
respondent; which would be a ground for legal separation
• must not be concealed and must have existed after the • must be in the act of mind before the commission of the
celebration of the marriage marital offense
(6) Lesbianism or homosexuality of the respondent; (4) Where both parties have given ground for legal
• must not be concealed and must have existed after the separation;
celebration of the marriage • the petition for legal separation must be dismissed
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or (5) Where there is collusion between the parties to obtain
abroad; decree of legal separation; or
• remedy of the spouse in the prior marriage • agreement between husband and wife to commit, or to
(8) Sexual infidelity or perversion; be represented in court to have committed, for the
• must be in the form of adultery (wife) or concubinage purpose of obtaining of a divorce or legal separation
(husband) (6) Where the action is barred by prescription. (100a)
• under Civil Code concubinage must either 1) keep the • within five years from the time of the occurance of the
mistress in the conjugal dwelling, 2) have sexual cause, otherwise prescription is barred
intercourse, under scandalous circumstances, with a
woman who is not his wife, 3) cohabit with her under any
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Death shall cause the case to be closed and terminated to the support of the spouses and the custody and support of
without prejudice to the settlement of the estate proper the common children. (105a)
proceedings in the regular courts.
Art. 57. An action for legal separation shall be filed within · The Court the court may issue provisional remedies or
five years from the time of the occurrence of the cause. (102) protection order with or without hearings, and may be
enforced immediately with or without a bond for a
Art. 58. An action for legal separation shall in no case be period of time the court deems necessary, similar to
tried before six months shall have elapsed since the filing of what is mentioned in Article 49.
the petition. (103)
· refers to the cooling period in order for the court to take
Art. 63. The decree of legal separation shall have the
steps to have the parties reconcile. The court shall
following effects:
remain passive and is precluded from hearing the suit
Art. 59. No legal separation may be decreed unless the Court (1) The spouses shall be entitled to live separately from
has taken steps toward the reconciliation of the spouses and each other, but the marriage bonds shall not be
is fully satisfied, despite such efforts, that reconciliation is severed;
highly improbable. (n) (2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending
Art. 60. No decree of legal separation shall be based upon a spouse shall have no right to any share of the net
stipulation of facts or a confession of judgment. profits earned by the absolute community or the
In any case, the Court shall order the prosecuting attorney conjugal partnership, which shall be forfeited in
or fiscal assigned to it to take steps to prevent collusion accordance with the provisions of Article 43(2);
between the parties and to take care that the evidence is not (3) The custody of the minor children shall be awarded to
fabricated or suppressed. (101a) the innocent spouse, subject to the provisions of
Article 213 of this Code; and
· based on the fact of that the institution of marriage is · Shall be the parent designated by the Court, based on
sacred and that marriage is more than a mere contract all the relevant considerations, especially the child’s
between parties choices when >7 y.o., unless chosen parent is unfit
· Confession of judgement takes place when the · No child under 7 y.o. shall be separated from the
defendant appears in court and confesses the right of mother unless he court finds a compelling reason for
the plaintiff to judgement or files a pleading expressly such
agreeing to the plaintiff’s demand
· When no answer is filed by the respondent in a legal (4) The offending spouse shall be disqualified from
separation case, the prosecuting attorney shall take inheriting from the innocent spouse by intestate
steps to prevent collusion between parties, and to see to succession. Moreover, provisions in favor of the
it that the evidence is not fabricated or suppressed, offending spouse made in the will of the innocent
which must be done within one month following the spouse shall be revoked by operation of law. (106a)
receipt of such order and shall furnish copies for the · Does not affect validity of donations propter nuptias by
parties and their counsel. The parties shall file their innocent spouse in favor of the offender spouse
comments on the finding collusion within 10 days from · Mutual support between spouses ceases upon finality of
receipt of report. The court shall set the report for decree for legal separation. The court may however
hearing and shall dismiss the petition if it is found that order the guilty spouse to provide support for the
there was collusion. If there is no collusion, then the innocent spouse.
court shall set the case for pre-trial. It shall be the duty
of the Public Prosecutor to appear on behalf of the State
· Surname will remain the same
on the pre-trial.
Art. 64. After the finality of the decree of legal separation,
the innocent spouse may revoke the donations made by him
Art. 61. After the filing of the petition for legal separation, or by her in favor of the offending spouse, as well as the
the spouses shall be entitled to live separately from each designation of the latter as beneficiary in any insurance
other. policy, even if such designation be stipulated as irrevocable.
The revocation of the donations shall be recorded in the
The court, in the absence of a written agreement between the
registries of property in the places where the properties are
spouses, shall designate either of them or a third person to
located. Alienations, liens and encumbrances registered in
administer the absolute community or conjugal partnership
good faith before the recording of the complaint for
property. The administrator appointed by the court shall
revocation in the registries of property shall be respected.
have the same powers and duties as those of a guardian
The revocation of or change in the designation of the
under the Rules of Court. (104a)
insurance beneficiary shall take effect upon written
Art. 62. During the pendency of the action for legal notification thereof to the insured.
separation, the provisions of Article 49 shall likewise apply
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The action to revoke the donation under this Article must be TITLE III
brought within five years from the time the decree of legal
separation become final. (107a) RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE
Art. 65. If the spouses should reconcile, a corresponding
joint manifestation under oath duly signed by them shall be Art. 68. The husband and wife are obliged to live together,
filed with the court in the same proceeding for legal observe mutual love, respect and fidelity, and render mutual
separation. (n) help and support. (109a)
· While proceeding is pending, proceeding is terminated · Cohabitation or living together as husband and wife is a
· After granting petition but before issuance, the court basic ground rule for marriage. It is the public
shall immediately issue a decree of Reconciliation assumption that they live together as husband and wife
declaring the proceeding set aside and specifying the · It also includes the right to sexual intimacy from the
revival of the previous property regime other spouse, as one of the essential marital obligations
· Spouses are entitled to join custody of children is the procreation of children through sexual
cooperation. If they are legally separated, the husband
· Spouses are entitled to inherit by intestate
can be sued for rape if he attempts to make his wife
· Provisions in the will favoring the innocent spouse shall submit to him
be revived automatically
· Revocation of donation shall not be set aside
Art. 69. The husband and wife shall fix the family domicile.
· Separation of property and any forfeiture in favor of the
In case of disagreement, the court shall decide.
guilty pouse already effected shall subsist unless parties
agree to revive their old property regime The court may exempt one spouse from living with the other
if the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such
Art. 66. The reconciliation referred to in the preceding
exemption shall not apply if the same is not compatible with
Articles shall have the following consequences:
the solidarity of the family. (110a)
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and · The spouse who refuses to live with the other without
(2) The final decree of legal separation shall be set aside, just cause is not entitled to separate maintenance or
but the separation of property and any forfeiture of support
the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their former Art. 70. The spouses are jointly responsible for the support
property regime. of the family. The expenses for such support and other
conjugal obligations shall be paid from the community
The court’s order containing the foregoing shall be recorded property and, in the absence thereof, from the income or
in the proper civil registries. (108a) fruits of their separate properties. In case of insufficiency or
Art. 67. The agreement to revive the former property regime absence of said income or fruits, such obligations shall be
referred to in the preceding Article shall be executed under satisfied from the separate properties. (111a)
oath and shall specify:
· Expenses of the family are chargeable with the
(1) The properties to be contributed anew to the restored following:
regime; · community property and, in the absence thereof,
(2) Those to be retained as separated properties of each · the income or fruits of their separate properties
spouse; and
(3) The names of all their known creditors, their
· the separate properties of the spouses
addresses and the amounts owing to each. · Expenses of the family are to be managed by both
The agreement of revival and the motion for its approval husband and wife based on the FC
shall be filed with the court in the same proceeding for legal
separation, with copies of both furnished to the creditors Art. 71. The management of the household shall be the right
named therein. After due hearing, the court shall, in its and the duty of both spouses. The expenses for such
order, take measure to protect the interest of creditors and management shall be paid in accordance with the provisions
such order shall be recorded in the proper registries of of Article 70. (115a)
properties.
Art. 72. When one of the spouses neglects his or her duties to
The recording of the ordering in the registries of property the conjugal union or commits acts which tend to bring
shall not prejudice any creditor not listed or not notified, danger, dishonor or injury to the other or to the family, the
unless the debtor-spouse has sufficient separate properties to aggrieved party may apply to the court for relief. (116a)
satisfy the creditor’s claim. (195a, 108a)
· When spouse leaves conjugal dwelling:
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· Our laws have no provision to compel the wife to live TITLE IV
with the husband. However the husband may avail of
the option under Article 198 FC. As such, the husband PROPERTY RELATIONS BETWEEN HUSBAND AND
can cut the support of his wife if she refuses to live with WIFE
him without just cause and without any moral or legal
obstacle Chapter 1. General Provisions
· If there is no intent to return, then the remaining spouse
may petition the court for receivership wherein there
Art. 74. The property relationship between husband and
will be judicial separation of property or the remaining
wife shall be governed in the following order:
spouse shall be the sole administrator of the conjugal
property (1) By marriage settlements executed before the
· When spouse commits acts of sexual infidelity marriage;
· May be a ground for legal separation, as well as (2) By the provisions of this Code; and
grounds for criminal liability of concubinage or (3) By the local custom. (118)
adultery. The aggrieved spouse may also ask the court
for injunction to stop the other spouse from further · The law allows the spouses to fix their property
disposition of property aside from judicial separation of relations during the marriage through a device known
property or the remaining spouse shall be the sole as marriage settlement subject only to the condition that
administrator of the conjugal property (in cases where a whatever settlement they may have must be within the
philandering spouse squanders the family property) limits provided by this Code.
· When spouse sells conjugal or community property · In the absence of a marriage settlement or when the
without the other’s consent property regime agreed upon by the spouses in their
· The aggrieved spouse may also ask the court for marriage settlement is void, the provisions in the
injunction to stop the other spouse from further Family Code shall govern the property relations
disposition of property without the other’s consent between the spouses.
aside from receivership for the judicial separation of · The future spouses may agree upon the regime of
property or for the remaining spouse to be the sole absolute property, conjugal partnership of gains,
administrator of the conjugal property complete separation of property, or any other regime
· When spouse commits violation of R.A. 9262 that is not contrary to law, customs, public order and
public policy.
· The wife may obtain protection orders from the
barangay or the court to prevent further violent acts · Prior to the Family code, the system of relative
against her, her children and to provide other reliefs community or conjugal property governs in absence of
under Article 8 of RA. 9262 or the “Anti-Violence a marriage settlement. Now, the system of absolute
against Women and Their Children Act of 2004” community or conjugal property governs in absence of
a marriage settlement or if the settlement is void.
Art. 73. Either spouse may exercise any legitimate Art. 75. The future spouses may, in the marriage settlements,
profession, occupation, business or activity without the agree upon the regime of absolute community, conjugal
consent of the other. The latter may object only on valid, partnership of gains, complete separation of property, or any
serious, and moral grounds. other regime. In the absence of a marriage settlement, or
when the regime agreed upon is void, the system of absolute
In case of disagreement, the court shall decide whether or community of property as established in this Code shall
not: govern. (119a)
(1) The objection is proper; and
Art. 76. In order that any modification in the marriage
(2) Benefit has occurred to the family prior to the settlements may be valid, it must be made before the
objection or thereafter. If the benefit accrued prior to the celebration of the marriage, subject to the provisions of
objection, the resulting obligation shall be enforced Articles 66, 67, 128, 135 and 136. (121)
against the separate property of the spouse who has not
Art. 77. The marriage settlements and any modification
obtained consent.
thereof shall be in writing, signed by the parties and
The foregoing provisions shall not prejudice the rights of executed before the celebration of the marriage. They shall
creditors who acted in good faith. (117a) not prejudice third persons unless they are registered in the
local civil registry where the marriage contract is recorded
as well as in the proper registries of properties. (122a)
Art. 78. A minor who according to law may contract
marriage may also execute his or her marriage settlements,
but they shall be valid only if the persons designated in
Article 14 to give consent to the marriage are made parties to
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the agreement, subject to the provisions of Title IX of this o If there is contrary stipulation in the marriage
Code. (120a) settlement
Art. 79. For the validity of any marriage settlement executed o With respect to the extrinsic validity of
by a person upon whom a sentence of civil interdiction has contracts affecting property not situated in the
been pronounced or who is subject to any other disability, it Philippines and executed in the country where
shall be indispensable for the guardian appointed by a the property is located; and
competent court to be made a party thereto. (123a) o With respect to the extrinsic validity of
contracts entered into in the Philippines but
· A marriage settlement or ante nuptial contract is a affecting property situated in a foreign country
contract which is entered into before, but in whose laws require different formalities for its
consideration and contemplation of marriage, where the extrinsic validity.
property relations of marriage are fixed and determined. · The future spouses are free to stipulate in their
· The marriage settlement itself or its modifications settlement what laws shall govern their property
thereto must be made prior to the celebration of relations especially if they are residents in a foreign
marriage. It is however possible for the parties to country. However, that with respect to the mandatory
modify their agreement in their settlement by resorting provisions of the FC, that shall govern since the
to complete separation of property pursuant to the freedom of the spouses to stipulate must be gone within
provisions of Art. 135 or 136 FC. Also, if one of the the limits provided by the FC
parties to the marriage is suffering from civil · Philippine laws shall not apply to contracts in relations
interdiction or any incapacity to give consent, it is properties not located in the Philippines, Following
indispensable for the guardian appointed by a Art. 16 NCC, the issues relating property, whether
component court to be made a part of party thereto, personal or real, shall be governed by the law where
otherwise the settlement is void such property is located.
· The law requires that the settlements and any · Above provisions also apply if one of the parties in the
modifications to be made be done in writing. Prior to marriage is a Filipino citizen.
the FC, marriage settlements were governed by Art. 122
NCC. Notwithstanding express provisions in the Art. 81. Everything stipulated in the settlements or contracts
present article, the marriage settlements and its referred to in the preceding articles in consideration of a
modifications shall be governed by Statute of Frauds future marriage, including donations between the
under Art.1403, par 2 sub-par C: “Any agreement made prospective spouses made therein, shall be rendered void if
in the consideration of the marriage, other than a mutual the marriage does not take place. However, stipulations that
promise to marry. do not depend upon the celebration of the marriages shall be
· A contract that infringes the Statute of Frauds is not valid. (125a)
void but unenforceable, it must be ratified. An oral
marriage contract is unenforceable since its existence · The celebration of marriage is a condition sine qua non
cannot be proven without a written agreement. for the validity of the marriage settlement.
· For a marriage settlement to affect third persons, it is · In donations propter nuptias, the fact that the marriage
necessary that it be in writing and registered in the local did not take place does not render the donation void,
civil registry and proper registries of property. except if the donation is contained in the marriage
settlement itself, it only gives rise to the cause to revoke
to which if not revoked shall remain valid
Art. 80. In the absence of a contrary stipulation in a · The rule does not apply to any provision where the its
marriage settlement, the property relations of the spouses validity does not depend on the celebration of the
shall be governed by Philippine laws, regardless of the place marriage.
of the celebration of the marriage and their residence.
This rule shall not apply: Chapter 2. Donations by Reason of Marriage
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts Art. 82. Donations by reason of marriage are those which are
affecting property not situated in the Philippines and made before its celebration, in consideration of the same,
executed in the country where the property is located; and in favor of one or both of the future spouses. (126)
and
(3) With respect to the extrinsic validity of contracts · Donations propter nuptias are those made before the
entered into in the Philippines but affecting property celebration of marriage, in consideration of the same
situated in a foreign country whose laws require and in favor of one or both spouses
different formalities for its extrinsic validity. (124a) · The following requisites are required before a donation
can be considered as donation propter nuptias:
· This rule shall not apply in these cases: o Must be made before the celebration of the
marriage
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o Must be made in the consideration of the and feelings of the other to acquire property from the
marriage latter
o Must be in favor of one or both spouses · Donations propter nuptias for future property are not
· The marriage is a consideration but not necessary to prohibited, however they will be governed by
give birth to the obligation (Art. 86 par 1 FC). This provisions on testamentary succession and formalities
donation would remain valid if the proper action were of wills which are effective after the death of the
not instituted or not instituted before the lapse of the spouse.
statutory period for prescription
Art. 85. Donations by reason of marriage of property subject
Art. 83. These donations are governed by the rules on to encumbrances shall be valid. In case of foreclosure of the
ordinary donations established in Title III of Book III of the encumbrance and the property is sold for less than the total
Civil Code, insofar as they are not modified by the following amount of the obligation secured, the donee shall not be
articles. (127a) liable for the deficiency. If the property is sold for more than
the total amount of said obligation, the donee shall be
· Under the Civil Code, the donations propter nuptias entitled to the excess. (131a)
were governed under the Statute of Frauds under Art.
122 NCC. Under the Family Code, the same’s formal · Donations propter nuptias are subject to encumbrance
requirements must follow Articles 748 and 749 NCC, since it does not divest the ownership of the property
otherwise such donations shall be void. donated. In case of foreclosure, if the proceeds of the
· If what is donated is personal property has a value that sale of property are not sufficient. The donee is not
exceeds than 5,000 pesos, the law requires that such liable to the donor’s creditor sice the donee is not the
acceptable also be in writing, otherwise the donation is debtor. If the proceeds are in excess, the donee is
void. If donations are real property, the law requires entitled to the excess since he is now owner of the
that the acceptance must be in a public instrument and property
if it is made in a separate instrument, there is an
additional requirement that the donor be notified in an Art. 86. A donation by reason of marriage may be revoked
authentic form and this step should be noted in both by the donor in the following cases:
instruments, otherwise the donations shall be void
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
Art. 84. If the future spouses agree upon a regime other than settlements, which shall be governed by Article 81;
the absolute community of property, they cannot donate to · Donations propter nuptias are valid except if made in
each other in their marriage settlements more than one-fifth the marriage settlement
of their present property. Any excess shall be considered
void. · Non-celebration of the marriage only gives grounds for
revocation of such donations
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of (2) When the marriage takes place without the consent of
wills. (130a) the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted
· Donations propter nuptias must be made by either or in bad faith;
both of the spouses, (4) Upon legal separation, the donee being the guilty
· If the donation is to be made by one of the future spouse;
spouses in favor of the other in a marriage settlement, (5) If it is with a resolutory condition and the condition is
such donation must not exceed one fifth of the present complied with;
property of the donor, if the property regime agreed (6) When the donee has committed an act of ingratitude
upon in the marriage settlement is other than absolute as specified by the provisions of the Civil Code on
community. The excess shall be void. If it is absolute donations in general. (132a)
community, then there is no limitation. The reason is · If marriage is judicially declared void ab initio,
that in absolute community, both spouses are co-owners donations shall remain valid but such grounds gives rise
of all the property at the time of the marriage or for revocation. If it is declared void ab initio under Art.
thereafter, unless otherwise provided in Art. 92 or in the 40 FC, then such donations is revoked under operation
marriage settlement. of law (due to Art. 50 making Art. 43 and 44 applicable
· In the situation where he future spouses agreed upon a for marriages void under Art. 40)
regime other than absolute community but the donation · If marriage is annulled, the donee in bad faith gives
propter nuptias by one spouse in favor of the other is grounds for the donor to revoke the donation. To give
not contained in the marriage settlement, the one fifth rise to a cause for revocation, the rule is that voidable
rules shall apply as long as the regime is not absolute marriage must be annulled.
community. The reason based on the policy that no
spouse should be allowed to take advantage of the love
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· If there is legal separation, the innocent spouse has the Chapter 3. System of Absolute Community
right to revoke donation.
· If a donation is subject to a resolutory condition and the Section 1. General Provisions
condition is fulfilled, the donor acquires a right to Art. 88. The absolute community of property between
revoke the donation spouses shall commence at the precise moment that the
· Donations are revocable by reason of ingratitude based marriage is celebrated. Any stipulation, express or implied,
on presumed will of the donor as a penalty for failing to for the commencement of the community regime at any
observe the moral imperatives that devolve upon him other time shall be void. (145a)
by virtue of benefit received from donation. Such acts Art. 89. No waiver of rights, shares and effects of the
are those referred in Art. 765 NCC (Offense against the absolute community of property during the marriage can be
person, the honor or property of the donor, or of his made except in case of judicial separation of property.
wife, children under his parental authority; donor
imputes to the donor criminal offense of moral When the waiver takes place upon a judicial separation of
turpitude, even though he should prove it unless crime property, or after the marriage has been dissolved or
is against the donee, his wife or children under his annulled, the same shall appear in a public instrument and
parental authority; unduly refusal of the donee to shall be recorded as provided in Article 77. The creditors of
support the donor even though he is legally and morally the spouse who made such waiver may petition the court to
bound to do so) rescind the waiver to the extent of the amount sufficient to
· Except those under Art, 86(4) and 64, the FC does not cover the amount of their credits. (146a)
give a prescription period for actions to revoke Art. 90. The provisions on co-ownership shall apply to the
donations. Under Art. 64, the innocent spouse may absolute community of property between the spouses in all
revoke the donations made by him in favor of the matters not provided for in this Chapter. (n)
offending spouse after the finality of the declaration of
legal separation, where it must be within 5 years after · In absolute community, the spouses are considered co-
the decree is final. For acts of ingratitude under Art. 86 owners of all property brought into and acquired
(6), the period is one year for revocation of donations during the marriage which are not excluded from the
and donations p.n. community by either provision of the FC or by the
marriage settlement. This regime governs in the
Art. 87. Every donation or grant of gratuitous advantage, following circumstances:
direct or indirect, between the spouses during the marriage · If the regime in the settlement is absolute community,
shall be void, except moderate gifts which the spouses may then the provisions of the settlement shall govern the
give each other on the occasion of any family rejoicing. The property relations between spouses as long as they do
prohibition shall also apply to persons living together as not violate mandatory provisions of the FC and are not
husband and wife without a valid marriage. (133a) contrary to public morals and policy. In all matters
outside the FC, the provisions under Art. 484 to 501
· Donating to each other is prohibited during the shall also apply.
marriage. However, such rule is not absolute as it
recognizes the validity of moderate gifts during family · If the regime in the settlement applies to the spouses by
default and persuant to provisions of Art. 75, then the
rejoicing.
provisions on the FC regarding absolute community
· Husband and wife are prohibited from selling property shall govern and the provisions of the NCC on co-
to each other, such sale is deemed void, except under ownership shall apply in a supplementary manner.
Art. 1490 NCC under the following conditions (due to
the remoteness of danger of fraud in contracts of sale · Whether A.C of property is agreed upon in the
settlement or by default, it shall apply automatically the
that may be celebrated between husband and wife):
precise moment the marriage is celebrated. Any
o When a separation of property was agreed agreement that this regime shall commence at any other
upon in the marriage settlements
time is void
o Where there has been a judicial separation of
property under Art. 135 and 136 FC · In Abalos vs. Macatangay Jr, the court explained the
nature of interest of each spouse in the conjugal
· Such exceptions do not apply in the prohibition partnership prior to liquidation.
between spouses from donating to each other under Art.
87 unless their regime is complete separation of
o The interest of each spouse is limited to the net
remainder or remanente liquid (haber
property or otherwise.
ganancial) resulting from the liquidation of the
· The spouses are prohibited from leasing each other affairs of the partnership after its dissolution.
parcels of land as stated in Art. 1646 NCC. Thus the right of the spouse to one-half of the
conjugal assets does not vest until the
dissolution and liquidation of the conjugal
partnership, or after the dissolution of the
marriage, it is finally determined that there are
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net assets left (after settlement of conjugal community must relate to all properties and not just
obligations) which can be divided between those acquired after the marriage.
spouses or their respective heirs. · In conjugal partnership to be presumed operating in
· The same principle may likewise apply in regime of favor of conjugality under Art. 116 FC, it must be
absolute community with respect to the share of each necessary that the party invoking this presumption must
spouse in the community prior to dissolution and prove such property in controversy was acquired during
liquidation. marriage. Proof of acquisition during the coverture is a
· The right of each spouse to the remaining assets of the condition sine qua non for the operation of the
community already ripens to a title after payment of presumption in favor of the conjugal partnership
obligation and thus subject to valid renunciation. Such · In absolute community, all properties of the spouses are
waiver of interest of share in the AC of property after included in the community property. In this case, it is
dissolution of marriage or its annulment or in the case submitted as a rule that the proof of acquisition must
of judicial declaration of property, as required by the not be considered a condition sine qua non for the
Code, must be in a public instrument and recorded in operation in presumption of in favor of absolute
the LCR where the marriage contract is recorded and in community.
the proper registries of property. This is so as to protect · The separate and exclusive properties are those which
the interests of third persons who may be prejudiced by are not included in the absolute community over which
such waiver the spouse-owner retain ownership, possession,
administration and enjoyment. The following are
Section 2. What Constitutes Community Property considered as separate and exclusive:
Art. 91. Unless otherwise provided in this Chapter or in the o Properties acquired by either spouse before the
marriage settlements, the community property shall consist marriage which have been excluded from the
of all the property owned by the spouses at the time of the absolute community in the marriage settlement
celebration of the marriage or acquired thereafter. (197a) o Property acquired during the marriage through
gratuitous title by either spouse, and its fruits
· The spouses may agree to exclude from their and income, unless provided by donor, testator
community property those properties they have at the or grantor that they shall be part of the
time of their marriage celebration and include only community property
properties they acquire after the marriage. The fruits o Property for personal and exclusive use by
and income of these properties shall be included in the either spouse, except jewelry that shall form
community property if there is a lack of agreement that part of community.
is stipulated in their marriage settlement. o Property acquired before the marriage by the
spouse through a legitimate descendants by a
Art. 92. The following shall be excluded from the community former marriage and fruits and income of such
property: property
(1) Property acquired during the marriage by gratuitous
· All properties acquired during the marriage belong to
the community property except:
title by either spouse, and the fruits as well as the
income thereof, if any, unless it is expressly provided o They must be acquired during the marriage
by the donor, testator or grantor that they shall form o They must be acquired by either spouse
part of the community property; o Donor, testator or grantor expressly provides
(2) Property for personal and exclusive use of either that they shall form part of the community of
spouse. However, jewelry shall form part of the property.
community property; · For properties acquired through gratuitous title to be
(3) Property acquired before the marriage by either considered as separate and exclusive, the following
spouse who has legitimate descendants by a former requisites are required:
marriage, and the fruits as well as the income, if any, · Par. 1 of Art 92 excludes property acquired through
of such property. (201a) gratuitous title excluded from absolute community only
if acquisition is made by either spouse. Such property
Art. 93. Property acquired during the marriage is presumed shall be governed by Art. 113 NCC if it is conjugal and
to belong to the community, unless it is proved that it is one by Art. 753 if it is conjugal. The fruits shall remain
of those excluded therefrom. (160) separate
· Presumption in favor of community property should not
· Only properties acquired during the subsequent
marriage shall be included in the community property.
only include the properties acquired during the
Properties acquired from a legitimate descendant by a
marriage. By the nature of this regime, which consists
prior marriage are excluded and cannot be included in
of all properties of the spouses, which acquired before
absolute community by marriage settlement due to the
or during the marriage, the presumption in favor of the
limits set forth by the Family Code
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· Proceeds of separate property of either spouse that is · Includes either spouse and their common legitimate
sold or exchanged for another shall be part of the children
community property following Art. 91 if the property is (7) Ante-nuptial debts of either spouse insofar as they
excluded by marriage settlement and in the absence of have redounded to the benefit of the family;
any agreement. However, if the properties are separate · The absolute community shall be liable only if it can
by reason of mandatory provisions of law especially be proven that such debt has redounded to the
under Art. 92, the proceeds shall remain separate from benefit of the family. And the burden of proving
the community property. that such debt has redounded to the family’s benefit
lies with the creditor claiming such
(8) The value of what is donated or promised by both
Section 3. Charges and Obligations of the Absolute spouses in favor of their common legitimate children
Community for the exclusive purpose of commencing or
Art. 94. The absolute community of property shall be liable completing a professional or vocational course or
for: other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those
(1) The support of the spouses, their common children, falling under paragraph (7) of this Article, the support
and legitimate children of either spouse; however, the of illegitimate children of either spouse, and liabilities
support of illegitimate children shall be governed by incurred by either spouse by reason of a crime or a
the provisions of this Code on Support; quasi-delict, in case of absence or insufficiency of the
· Support of illegitimate children of either spouse exclusive property of the debtor-spouse, the payment
shall come from the exclusive property of the of which shall be considered as advances to be
illegitimate-parent spouse, and in case of deducted from the share of the debtor-spouse upon
insufficiency or absence of exclusive property, shall liquidation of the community; and
be taken from the community property and will be (10) Expenses of litigation between the spouses unless the
considered as advances to be deducted from the suit is found to be groundless.
share of each parent upon liquidation of the absolute
community If the community property is insufficient to cover the
(2) All debts and obligations contracted during the foregoing liabilities, except those falling under paragraph
marriage by the designated administrator-spouse for (9), the spouses shall be solidarily liable for the unpaid
the benefit of the community, or by both spouses, or balance with their separate properties. (161a, 162a, 163a,
by one spouse with the consent of the other; 202a-205a)
· The absolute community shall be liable for the
following debts and obligations contracted during
the marriage: Art. 95. Whatever may be lost during the marriage in any
o Designated administrator-spouse for the game of chance, betting, sweepstakes, or any other kind of
benefit of the community gambling, whether permitted or prohibited by law, shall be
o Both spouses borne by the loser and shall not be charged to the
o Either spouse with the consent of the other community but any winnings therefrom shall form part of
o Either spouse without the consent of the the community property. (164a)
other to the extent that the family may have
benefited,
· The following are obligations are chargeable to the
exclusive properties of the debtor-spouse:
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the o Support of illegitimate children
family may have been benefited; o Debts contracted by designator
(4) All taxes, liens, charges and expenses, including major administrator-spouse during the marriage
or minor repairs, upon the community property; that did not benefit the community
· For taxes and expenses incurred during the marriage o Ante nuptial debts of either spouse that did
not redound to the benefit of the family
for the preservation of the property of a separate
property of the spouse (not improvements and o Debts contracted during the marriage by
embellishments, even if used by the family), the either spouse without the consent of the
same shall be charged if such separate property has other that did not redound to the benefit of
been used by the family the family
(5) All taxes and expenses for mere preservation made o Taxes and expenses incurred for the
during marriage upon the separate property of either preservation of the of a separate property
spouse used by the family; of either spouse which is not being used by
(6) Expenses to enable either spouse to commence or the family
complete a professional or vocational course, or other o Civil liability of either spouse arising from
activity for self-improvement; crime or quasi-delict
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o Expenses of litigation between spouses, if disposition or encumbrance without the authority of
suit is found to be groundless court or written consent of the other spouse.
o Losses during the marriage in any game of · Neither spouse can dispose of their respective
chance, betting, sweepstakes, or any kind interest in the community property by way of
of gambling disposition inter vivos. The rule under Art. 393
NCC does not find application in this case for the
interest of either spouse in the community assets is
Section 4. Ownership, Administrative,
inchoate which constitutes neither a legal nor an
Enjoyment and Disposition of the Community Property
equitable estate, and does not ripen until it appears
that there are assets in the community as a result of
Art. 96. The administration and enjoyment of the the liquidation and settlement
community property shall belong to both spouses jointly. In Art. 97. Either spouse may dispose by will of his or her
case of disagreement, the husband’s decision shall prevail, interest in the community property. (n)
subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the · Such disposition shall take effect upon the death of
date of the contract implementing such decision. the spouse when in such case, the community
property is terminated
In the event that one spouse is incapacitated or otherwise Art. 98. Neither spouse may donate any community property
unable to participate in the administration of the common without the consent of the other. However, either spouse
properties, the other spouse may assume sole powers of may, without the consent of the other, make moderate
administration. These powers do not include disposition or donations from the community property for charity or on
encumbrance without authority of the court or the written occasions of family rejoicing or family distress. (n)
consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third Section 5. Dissolution of Absolute Community Regime
person, and may be perfected as a binding contract upon the Art. 99. The absolute community terminates:
acceptance by the other spouse or authorization by the court
(1) Upon the death of either spouse;
before the offer is withdrawn by either or both offerors.
(2) When there is a decree of legal separation;
(206a)
(3) When the marriage is annulled or declared void; or
· In the following situations, one of the spouses may (4) In case of judicial separation of property during the
assume sole powers of administration of the marriage under Articles 134 to 138. (175a)
common property · Complete separation of property is the only one of
o One spouse is incapacitated or otherwise the three (ACP, CPG, CSP) allowed to commence
incapable in participating in the during the marriage. The Code allows only a shift to
administration, the other spouse may CSP during marriage as either an incident of the
assume sole powers without the need for decree of legal separation, or pursuant to a petition
consent or approval. for judicial separation under Art. 135 or 136
o During the pendency of a legal separation
case, the court hearing the case may Art. 100. The separation in fact between husband and wife
designate either spouse as the sole shall not affect the regime of absolute community except
administrator of the absolute community that:
where said administrator shall have the (1) The spouse who leaves the conjugal home or refuses to
same powers as those of a guardian under live therein, without just cause, shall not have the
the Rules of Court right to be supported;
o If either spouse abandons the other without (2) When the consent of one spouse to any transaction of
just cause or fails to comply with his or her the other is required by law, judicial authorization
obligations to the family, the aggrieved shall be obtained in a summary proceeding;
spouse may petition the court for authority (3) In the absence of sufficient community property, the
to be the sole administrator of the separate property of both spouses shall be solidarily
community liable for the support of the family. The spouse
· Alienation (transfer of property from one person to present shall, upon proper petition in a summary
another) of community property must have written proceeding, be given judicial authority to administer
consent of the other spouse or the authority of the or encumber any specific separate property of the
court, without which disposition or encumbrance other spouse and use the fruits or proceeds thereof to
shall be void. The same rule applies even if satisfy the latter’s share. (178a)
disposition is made by administrator spouse because
sole power of administration does not include
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· Separation de facto refers to situation where spouses (1) An inventory shall be prepared, listing separately all
simply separate without the benefit of a decree of the properties of the absolute community and the
legal separation. exclusive properties of each spouse.
o They retain their right to consortium (2) The debts and obligations of the absolute community
because under the eyes of the law they are shall be paid out of its assets. In case of insufficiency
not entitled to live separately of said assets, the spouses shall be solidarily liable for
o It does not affect the regimes of ACP or the unpaid balance with their separate properties in
CPG accordance with the provisions of the second
o The spouses continue to be the legal heir of paragraph of Article 94.
each other via intestate succession (3) Whatever remains of the exclusive properties of the
o There is neither guilty nor innocent spouse spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
· Judicial authorization may be obtained in a community shall constitute its net assets, which shall
summary proceeding when the consent of one
be divided equally between husband and wife, unless a
spouse to any transaction of the other is required by
different proportion or division was agreed upon in
law. ACP or CPG shall continue to be liable for all
the marriage settlements, or unless there has been a
obligations mentioned in Art. 92 and 121, and in
voluntary waiver of such share provided in this Code.
absence of sufficient ACP or CPP, the separate
For purpose of computing the net profits subject to
properties of one or both spouses shall be solidarily
forfeiture in accordance with Articles 43, No. (2) and
liable for the support of the family.
63, No. (2), the said profits shall be the increase in
value between the market value of the community
Art. 101. If a spouse without just cause abandons the other
property at the time of the celebration of the marriage
or fails to comply with his or her obligations to the family,
and the market value at the time of its dissolution.
the aggrieved spouse may petition the court for receivership,
(5) The presumptive legitimes of the common children
for judicial separation of property or for authority to be the
shall be delivered upon partition, in accordance with
sole administrator of the absolute community, subject to
Article 51.
such precautionary conditions as the court may impose.
(6) Unless otherwise agreed upon by the parties, in the
The obligations to the family mentioned in the preceding partition of the properties, the conjugal dwelling and
paragraph refer to marital, parental or property relations. the lot on which it is situated shall be adjudicated to
the spouse with whom the majority of the common
A spouse is deemed to have abandoned the other when her or children choose to remain. Children below the age of
she has left the conjugal dwelling without intention of seven years are deemed to have chosen the mother,
returning. The spouse who has left the conjugal dwelling for unless the court has decided otherwise. In case there
a period of three months or has failed within the same period in no such majority, the court shall decide, taking into
to give any information as to his or her whereabouts shall be consideration the best interests of said children. (n)
prima facie presumed to have no intention of returning to Art. 103. Upon the termination of the marriage by death, the
the conjugal dwelling. (178a) community property shall be liquidated in the same
· If separation de facto is attended by abandonment, proceeding for the settlement of the estate of the deceased.
the following effects are likewise produced: If no judicial settlement proceeding is instituted, the
o The spouse, who leaves the conjugal home surviving spouse shall liquidate the community property
or refuses to live therein without just cause, either judicially or extra-judicially within six months from
shall not have the right to be supported. the death of the deceased spouse. If upon the lapse of the six
o The aggrieved spouse may petition the months period, no liquidation is made, any disposition or
court for receivership, for judicial encumbrance involving the community property of the
declaration of separation of property or terminated marriage shall be void.
authority to be sole administrator, subject
to such precautionary conditions which the Should the surviving spouse contract a subsequent marriage
court may impose without compliance with the foregoing requirements, a
o The aggrieved spouse may petition the mandatory regime of complete separation of property shall
court for legal separation if such govern the property relations of the subsequent marriage.
abandonment lasts for more than 1 year. (n)
Art. 104. Whenever the liquidation of the community
Section 6. Liquidation of the Absolute Community properties of two or more marriages contracted by the same
Assets and Liabilities person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of
each community shall be determined upon such proof as may
Art. 102. Upon dissolution of the absolute community be considered according to the rules of evidence. In case of
regime, the following procedure shall apply: doubt as to which community the existing properties belong,
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the same shall be divided between the different communities · Such regime shall commence only at the precise
in proportion to the capital and duration of each. (189a) moment the marriage is celebrated. Any agreement
between spouses that this regime shall commence at
· The termination of the absolute community is
any other time is void. Spouses who are legally
produced ipso jure by any of the cases mentioned in
separated may not adopt conjugal partnership as
Art. 99. Liquidation, meanwhile, involves some
their new regime in case of reconciliation, although
positive act on the part of the spouses or of the
the same seems to be permitted under provisions of
surviving spouse, in case of death of the spouse.
Sec. 23 (c) and 24 (a) on the Rules of Legal
Liquidation of ACP is mandatory if marriage is
Separation
terminated by death of either spouse. If upon the
lapse of one year upon death of either spouse, and · In Abalos vs. Macatangay Jr, the court explained the
no liquidation is made, any disposition or nature of interest of each spouse in the conjugal
encumbrance involving the community property of partnership prior to liquidation.
the terminated marriage is declared by law to be o The interest of each spouse is limited to the
void. If the surviving spouse contracts a subsequent net remainder or remanente liquid (haber
marriage without compliance to the foregoing ganancial) resulting from the liquidation of
requirements, the subsequent marriage shall be the affairs of the partnership after its
governed by CSP dissolution. Thus the right of the spouse to
one-half of the conjugal assets does not
· Under the law, the rights to the succession are
vest until the dissolution and liquidation of
transmitted from the moment of death of the
the conjugal partnership, or after the
decedent. As a consequence, a co-owner has the
dissolution of the marriage, it is finally
right to alienate his pro indiviso share in the co-
determined that there are net assets left
owned property even without the consent of the co-
(after settlement of conjugal obligations)
owners.
which can be divided between spouses or
· If no liquidation takes place one year after the death their respective heirs.
of one spouse and the surviving spouse contracts a
subsequent marriage without compliance to the
foregoing requirements, the subsequent marriage Art. 107. The rules provided in Articles 88 and 89 shall also
shall be governed by CSP, even if the spouses agree apply to conjugal partnership of gains. (n)
to ACP or CPG in their settlement. Art. 108. The conjugal partnership shall be governed by the
rules on the contract of partnership in all that is not in
conflict with what is expressly determined in this Chapter or
Chapter 4. Conjugal Partnership of Gains by the spouses in their marriage settlements. (147a)
Section 1. General Provisions
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marriage applying by analogy the provisions · If the property is donated or left by will to the spouses
of Art. 92, No. 3 jointly and with designation of determinate shares the
· Livestock shall continue to be exclusive property of the share of each in the said property shall be considered
spouses. Only the excess in number of each kind · If a donation is made jointly to persons who are not
brought into the marriage which shall be determined at husband and wife, the rule is there is no accretion,
the dissolution of the partnership shall be considered as accretion taking place only when so expressly provided
conjugal property. for the donor.
(2) That which each acquires during the marriage by Art. 114. If the donations are onerous, the amount of the
gratuitous title; charges shall be borne by the exclusive property of the donee
· The only difference from ACP is that even the income spouse, whenever they have been advanced by the conjugal
and fruits and income of such property shall also be partnership of gains. (151a)
deemed exclusive
(3) That which is acquired by right of redemption, by · Refers to those donations where a burden or changes
barter or by exchange with property belonging to only inferior in value compared to the property donated is
one of the spouses; and imposed by the donee
· Even if the money used to redeem is from the CP, it · If a donation is made during the marriage in favor of
shall still be the exclusive property of the redemptor the husband but the donor imposes a burden or charges
spouse subject to the condition that such spouse inferior in value to the property donated, such property
reimburse said amount to the CP by the redemptor shall remain exclusive of the donee spouse although
spouse. conjugal funds were used for the burden or charges, in
(4) That which is purchased with exclusive money of the such case the conjugal property shall be reimbursed by
wife or of the husband. (148a) the donee spouse for the amount advanced.
Art. 115. Retirement benefits, pensions, annuities, gratuities,
Art. 110. The spouses retain the ownership, possession, usufructs and similar benefits shall be governed by the rules
administration and enjoyment of their exclusive properties. on gratuitous or onerous acquisitions as may be proper in
each case. (n)
Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the other · If one spouse obtains such benefit through liberality of
by means of a public instrument, which shall be recorded in grantor, rule on Art. 109 applies. However, if the
the registry of property of the place the property is located. benefit is simply and accumulation or deduction from
(137a, 168a, 169a) money earned during the marriage or from the salaries
of either spouse, then the rules in Art. 117 (2) applies,
· The same shall not prejudice third persons the benefit is part of the conjugal property.
· In case of transfer of administration, such
administration does not include the power to dispose or
encumber without the consent of the owner-spouse or Section 3. Conjugal Partnership Property
of the authorization of the court, otherwise, the
administration is terminated and the proceeds of the
alienation shall be returned to the owner-spouse. Art. 116. All property acquired during the marriage,
Art. 111. A spouse of age may mortgage, encumber, alienate whether the acquisition appears to have been made,
or otherwise dispose of his or her exclusive property, without contracted or registered in the name of one or both spouses,
the consent of the other spouse, and appear alone in court to is presumed to be conjugal unless the contrary is proved.
litigate with regard to the same. (n) (160a)
· Requires only the participation of the owner-spouse. · Such presumption applies even if “the acquisition
appears to have been made, contracted or registered in
the name of one or both spouses”. What is important is
Art. 112. The alienation of any exclusive property of a spouse that the acquisition is made during the marriage.
administered by the other automatically terminates the However, when there is no showing as to when the
administration over such property and the proceeds of the property alleged to be conjugal was acquired, the
alienation shall be turned over to the owner-spouse. (n) presumption does not operate. Proof of the acquisition
Art. 113. Property donated or left by will to the spouses, is a condition sine qua non for the operation of the
jointly and with designation of determinate shares, shall presumption in favor of the conjugal partnership.
pertain to the donee-spouses as his or her own exclusive · Such presumption is rebuttable with strong, clear,
property, and in the absence of designation, share and share categorical, and convincing evidence that such property
alike, without prejudice to the right of accretion when belongs exclusively to one of the spouses and the
proper. (150a) burden of proof rests on the party asserting it.
Art. 117. The following are conjugal partnership properties:
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(1) Those acquired by onerous title during the marriage Art. 118. Property bought on installments paid partly from
at the expense of the common fund, whether the exclusive funds of either or both spouses and partly from
acquisition be for the partnership, or for only one of conjugal funds belongs to the buyer or buyers if full
the spouses; ownership was vested before the marriage and to the
· If funds are sourced from the exclusive property of the conjugal partnership if such ownership was vested during
spouse, then it is exclusive property of the spouse. If the marriage. In either case, any amount advanced by the
funds are sourced from the conjugal funds, then it is partnership or by either or both spouses shall be reimbursed
conjugal property. by the owner or owners upon liquidation of the partnership.
· If the property is purchased by installments prior to the (n)
marriage, then it will depend on the time where full Art. 119. Whenever an amount or credit payable within a
ownership becomes vested. period of time belongs to one of the spouses, the sums which
may be collected during the marriage in partial payments or
(2) Those obtained from the labor, industry, work or by installments on the principal shall be the exclusive
profession of either or both of the spouses; property of the spouse. However, interests falling due during
(3) The fruits, natural, industrial, or civil, due or received the marriage on the principal shall belong to the conjugal
during the marriage from the common property, as partnership. (156a, 157a)
well as the net fruits from the exclusive property of
each spouse; Art. 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the
· The fruits referred to include:
spouses at the expense of the partnership or through the acts
o Natural- spontaneous products of the soil or efforts of either or both spouses shall pertain to the
o Industrial- produced by lands through conjugal partnership, or to the original owner-spouse,
cultivation or labor
subject to the following rules:
o Civil- rents of building, price of leases on land
and other property, and the amount of When the cost of the improvement made by the conjugal
perpetual or life annuities or other similar partnership and any resulting increase in value are more
income than the value of the property at the time of the
· Any interest income falling due during the marriage on improvement, the entire property of one of the spouses shall
credit payable on installment and belonging to one of belong to the conjugal partnership, subject to
the spouses belongs to the conjugal partnership. Any reimbursement of the value of the property of the owner-
sum collected on the principal shall remain exclusive spouse at the time of the improvement; otherwise, said
property of the creditor-spouse property shall be retained in ownership by the owner-spouse,
(4) The share of either spouse in the hidden treasure likewise subject to reimbursement of the cost of the
which the law awards to the finder or owner of the improvement.
property where the treasure is found; In either case, the ownership of the entire property shall be
(5) Those acquired through occupation such as fishing or vested upon the reimbursement, which shall be made at the
hunting; time of the liquidation of the conjugal partnership. (158a)
· By seizure of things which have no owner and with
intention of acquiring them according to the rules laid · Applies to the case where an exclusive property is
down by the law: subject to improvement at the expense of the conjugal
o There must be a seizure partnership or through the acts or efforts of either or
o The things must be corporeal both spouses.
o There must be intention to appropriate · For Art. 120 to apply, the following requisites must
o The things must not be owned by anybody apply:
o The rules laid down by the law must be o Property is exclusively owned by either spouse
fulfilled o Said property has been subject to
(6) Livestock existing upon the dissolution of the improvement, whether utility or adornment
partnership in excess of the number of each kind o The improvements were made at the expense
brought to the marriage by either spouse; and of the conjugal partnership or through the acts
· Livestock shall continue to be exclusive property of the or effects of either or both spouses
spouses. Only the excess in number of each kind · In determining the ownership
brought into the marriage which shall be determined at o When the cost of the improvement made by
the dissolution of the partnership shall be considered as the conjugal partnership and any resulting
conjugal property increase in value are more than the value of
(7) Those which are acquired by chance, such as winnings the property at the time of the improvement,
from gambling or betting. However, losses therefrom the entire property of one of the spouses shall
shall be borne exclusively by the loser-spouse. (153a, belong to the conjugal partnership, subject to
154a, 155, 159). reimbursement of the value of the property of
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the owner-spouse at the time of the · Under CPG, the law established a complete separation
improvement of capitals, all of which constitutes an unsurmountable
o When the cost of the improvement made by obstacle to the presumption of solidarity between
the conjugal partnership and any resulting spouses. Conjugal partnership is not liable for the
increase in value are less than the value of the individual liabilities of debtor-spouse (in Alipio vs. CA
property at the time of the improvement, the the Court ruled that a creditor cannot sue the surviving
entire property of one of the spouses shall spouse of a decedent for the collection of money
belong to the conjugal partnership, said chargeable against the conjugal property)
property shall be retained in ownership by the · If contracted by both spouses or either spouse with the
owner-spouse, likewise subject to consent of the other, such debt is considered to have
reimbursement of the cost of the improvement redounded for the benefit of the family, and in such
· Ownership shall be vested in favor of the conjugal case the creditor no longer has the burden to prove the
property upon the reimbursement. Similarly, the debt was contracted for the benefit of the partnership or
conjugal partnership is required to make an the family.
reimbursement only at the time of the liquidation of the · In case of debt contracted by designated administrator-
conjugal partnership, there is however nothing spouse without consent of the other spouse or prior to
preventing the partnership from reimbursement prior to marriage, the conjugal partnership shall be liable only if
liquidation it can be proven by that the debt redounded to the
benefit of the conjugal partnership or the family.
Section 4. Charges Upon and Obligations of Burden of proof to show that debt was credited for the
the Conjugal Partnership benefit of the CPG lies with the creditor-party litigant
claiming as such (Ei incumbit probation qui dicit, non
qui negat- he who asserts, not he who denies, must
Art. 121. The conjugal partnership shall be liable for: prove)
(1) The support of the spouse, their common children,
and the legitimate children of either spouse; however, Art. 122. The payment of personal debts contracted by the
the support of illegitimate children shall be governed husband or the wife before or during the marriage shall not
by the provisions of this Code on Support; be charged to the conjugal properties partnership except
(2) All debts and obligations contracted during the insofar as they redounded to the benefit of the family.
marriage by the designated administrator-spouse for
the benefit of the conjugal partnership of gains, or by Neither shall the fines and pecuniary indemnities imposed
both spouses or by one of them with the consent of the upon them be charged to the partnership.
other; However, the payment of personal debts contracted by either
(3) Debts and obligations contracted by either spouse spouse before the marriage, that of fines and indemnities
without the consent of the other to the extent that the imposed upon them, as well as the support of illegitimate
family may have benefited; children of either spouse, may be enforced against the
(4) All taxes, liens, charges, and expenses, including partnership assets after the responsibilities enumerated in
major or minor repairs upon the conjugal partnership the preceding Article have been covered, if the spouse who is
property; bound should have no exclusive property or if it should be
(5) All taxes and expenses for mere preservation made insufficient; but at the time of the liquidation of the
during the marriage upon the separate property of partnership, such spouse shall be charged for what has been
either spouse; paid for the purpose above-mentioned. (163a)
(6) Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity Art. 123. Whatever may be lost during the marriage in any
for self-improvement; game of chance or in betting, sweepstakes, or any other kind
(7) Ante-nuptial debts of either spouse insofar as they of gambling whether permitted or prohibited by law, shall be
have redounded to the benefit of the family; borne by the loser and shall not be charged to the conjugal
(8) The value of what is donated or promised by both partnership but any winnings therefrom shall form part of
spouses in favor of their common legitimate children the conjugal partnership property. (164a)
for the exclusive purpose of commencing or
completing a professional or vocational course or
other activity for self-improvement; and Section 5. Administration of the
(9) Expenses of litigation between the spouses unless the Conjugal Partnership Property
suit is found to groundless.
If the conjugal partnership is insufficient to cover the Art. 124. The administration and enjoyment of the conjugal
foregoing liabilities, the spouses shall be solidarily liable for partnership shall belong to both spouses jointly. In case of
the unpaid balance with their separate properties. (161a) disagreement, the husband’s decision shall prevail, subject to
· Rules under Art. 94 and 95 apply recourse to the court by the wife for proper remedy, which
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must be availed of within five years from the date of the based in Homeowners Savings and Loan Bank vs.
contract implementing such decision. Dailo shall be void such that the contract of
partnership shall govern in all that is not in conflict
In the event that one spouse is incapacitated or otherwise
with the FC.
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of · Any disposition of the spouses respective shares or
administration. These powers do not include disposition or interest in the conjugal partnership shall be void
encumbrance without authority of the court or the written since such right to one-half of the conjugal assets
consent of the other spouse. In the absence of such authority does not vest until the liquidation of the conjugal
or consent, the disposition or encumbrance shall be void. partnership. Nemo dat qui habet (No one can give
However, the transaction shall be construed as a continuing what he has not)
offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court Section 6. Dissolution of Conjugal Partnership Regime
before the offer is withdrawn by either or both offerors.
(165a)
Art. 126. The conjugal partnership terminates:
Art. 125. Neither spouse may donate any conjugal
(1) Upon the death of either spouse;
partnership property without the consent of the other.
(2) When there is a decree of legal separation;
However, either spouse may, without the consent of the
(3) When the marriage is annulled or declared void; or
other, make moderate donations from the conjugal
(4) In case of judicial separation of property during the
partnership property for charity or on occasions of family
marriage under Articles 134 to 138. (175a)
rejoicing or family distress. (174a)
Art. 127. The separation in fact between husband and wife
· In the following situations, one of the spouses may shall not affect the regime of conjugal partnership, except
assume sole powers of administration of the that:
common property (1) The spouse who leaves the conjugal home or refuses to
o One spouse is incapacitated or otherwise live therein, without just cause, shall not have the
incapable in participating in the right to be supported;
administration, the other spouse may (2) When the consent of one spouse to any transaction of
assume sole powers without the need for the other is required by law, judicial authorization
consent or approval. shall be obtained in a summary proceeding;
o During the pendency of a legal separation (3) In the absence of sufficient conjugal partnership
case, the court hearing the case may property, the separate property of both spouses shall
designate either spouse as the sole be solidarily liable for the support of the family. The
administrator of the absolute community spouse present shall, upon petition in a summary
where said administrator shall have the proceeding, be given judicial authority to administer
same powers as those of a guardian under or encumber any specific separate property of the
the Rules of Court other spouse and use the fruits or proceeds thereof to
o If either spouse abandons the other without satisfy the latter’s share. (178a)
just cause or fails to comply with his or her · Separation de facto refers to situation where spouses
obligations to the family, the aggrieved simply separate without the benefit of a decree of
spouse may petition the court for authority legal separation.
to be the sole administrator of the o They retain their right to consortium
community because under the eyes of the law they are
· Sole power of administration does not include not entitled to live separately
disposition or encumbrance without the authority of o It does not affect the regimes of ACP or
court or written consent of the other spouse since CPG
these two acts are in nature strict acts of ownership. o The spouses continue to be the legal heir of
Alienation means transfer of property from one each other via intestate succession
person to another. o There is neither guilty nor innocent spouse
· In Civil Code, the husband is sole administrator of · Judicial authorization may be obtained in a
property. But in the FC both spouses are summary proceeding when the consent of one
administrators of the conjugal property so in case spouse to any transaction of the other is required by
one spouse is incapacitated or unable to administer law. ACP or CPG shall continue to be liable for all
the conjugal property, the other spouse may file for obligations mentioned in Art. 92 and 121, and in
sole administration. absence of sufficient ACP or CPP, the separate
· If either spouse disposes or encumbers a conjugal properties of one or both spouses shall be solidarily
property without the consent of the other spouse or liable for the support of the family.
without court authorization, such transaction as
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Art. 128. If a spouse without just cause abandons the other (9) In the partition of the properties, the conjugal
or fails to comply with his or her obligation to the family, the dwelling and the lot on which it is situated shall,
aggrieved spouse may petition the court for receivership, for unless otherwise agreed upon by the parties, be
judicial separation of property, or for authority to be the sole adjudicated to the spouse with whom the majority of
administrator of the conjugal partnership property, subject the common children choose to remain. Children
to such precautionary conditions as the court may impose. below the age of seven years are deemed to have
chosen the mother, unless the court has decided
The obligations to the family mentioned in the preceding
otherwise. In case there is no such majority, the court
paragraph refer to marital, parental or property relations.
shall decide, taking into consideration the best
A spouse is deemed to have abandoned the other when he or interests of said children. (181a, 182a, 183a, 184a,
she has left the conjugal dwelling without intention of 185a)
returning. The spouse who has left the conjugal dwelling for Art. 130. Upon the termination of the marriage by death, the
a period of three months or has failed within the same period conjugal partnership property shall be liquidated in the
to give any information as to his or her whereabouts shall be same proceeding for the settlement of the estate of the
prima facie presumed to have no intention of returning to deceased.
the conjugal dwelling. (167a, 191a)
If no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the conjugal partnership
property either judicially or extra-judicially within six
Section 7. Liquidation of the months from the death of the deceased spouse. If upon the
Conjugal Partnership Assets and Liabilities lapse of the six-month period no liquidation is made, any
disposition or encumbrance involving the conjugal
Art. 129. Upon the dissolution of the conjugal partnership partnership property of the terminated marriage shall be
regime, the following procedure shall apply: void.
(1) An inventory shall be prepared, listing separately all Should the surviving spouse contract a subsequent marriage
the properties of the conjugal partnership and the without compliance with the foregoing requirements, a
exclusive properties of each spouse. mandatory regime of complete separation of property shall
(2) Amounts advanced by the conjugal partnership in govern the property relations of the subsequent marriage.
payment of personal debts and obligations of either (n)
spouse shall be credited to the conjugal partnership as
an asset thereof. · The termination of the conjugal partnership is
(3) Each spouse shall be reimbursed for the use of his or produced ipso jure by any of the cases mentioned in
her exclusive funds in the acquisition of property or Art. 130. Liquidation, meanwhile, involves some
for the value of his or her exclusive property, the positive act on the part of the spouses or of the
ownership of which has been vested by law in the surviving spouse, in case of death of the spouse.
conjugal partnership. Liquidation of ACP is mandatory if marriage is
(4) The debts and obligations of the conjugal partnership terminated by death of either spouse. If upon the
shall be paid out of the conjugal assets. In case of lapse of six months upon death of either spouse, and
insufficiency of said assets, the spouses shall be no liquidation is made, any disposition or
solidarily liable for the unpaid balance with their encumbrance involving the community property of
separate properties, in accordance with the provisions the terminated marriage is declared by law to be
of paragraph (2) of Article 121. void. If the surviving spouse contracts a subsequent
(5) Whatever remains of the exclusive properties of the marriage without compliance to the foregoing
spouses shall thereafter be delivered to each of them. requirements, the subsequent marriage shall be
(6) Unless the owner had been indemnified from governed by CSP
whatever source, the loss or deterioration of movables · Under the law, the rights to the succession are
used for the benefit of the family, belonging to either transmitted from the moment of death of the
spouse, even due to fortuitous event, shall be paid to decedent. As a consequence, a co-owner has the
said spouse from the conjugal funds, if any. right to alienate his pro indiviso share in the co-
(7) The net remainder of the conjugal partnership owned property even without the consent of the co-
properties shall constitute the profits, which shall be owners.
divided equally between husband and wife, unless a · If no liquidation takes place one year after the death
different proportion or division was agreed upon in of one spouse and the surviving spouse contracts a
the marriage settlements or unless there has been a subsequent marriage without compliance to the
voluntary waiver or forfeiture of such share as foregoing requirements, the subsequent marriage
provided in this Code. shall be governed by CSP, even if the spouses agree
(8) The presumptive legitimes of the common children to ACP or CPG in their settlement.
shall be delivered upon the partition in accordance
with Article 51.
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Art. 131. Whenever the liquidation of the conjugal Art. 135. Any of the following shall be considered sufficient
partnership properties of two or more marriages contracted cause for judicial separation of property:
by the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits and · If separation of property is not in the marriage
income of each partnership shall be determined upon such settlement, it may be resorted by:
proof as may be considered according to the rules of o Filing a petition for legal separation
evidence. In case of doubt as to which partnership the o Filing a petition for separation of property
existing properties belong, the same shall be divided between either voluntary or for sufficient cause
the different partnerships in proportion to the capital and (1) That the spouse of the petitioner has been sentenced
duration of each. (189a) to a penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
Art. 132. The Rules of Court on the administration of estates declared an absentee;
of deceased persons shall be observed in the appraisal and
· Even if spouse is absent for required 2 years, if the
sale of property of the conjugal partnership, and other person is the administrator of such property the
matters which are not expressly determined in this Chapter. requirement to be declared as absentee is 5 years.
(187a) (3) That loss of parental authority of the spouse of
Art. 133. From the common mass of property support shall petitioner has been decreed by the court;
be given to the surviving spouse and to the children during (4) That the spouse of the petitioner has abandoned the
the liquidation of the inventoried property and until what latter or failed to comply with his or her obligations to
belongs to them is delivered; but from this shall be deducted the family as provided for in Article 101;
that amount received for support which exceeds the fruits or · Those referred to under Art. 68 to 71 with regards to
rents pertaining to them. (188a) husband and wife, and 220, 221 and 225 in regards
to parents and children.
Chapter 5. Separation of Property of the (5) That the spouse granted the power of administration
Spouses and Administration of Common Property by in the marriage settlements has abused that power;
One Spouse During the Marriage and
· It is necessary that the power of administration must
Art. 134. In the absence of an express declaration in the be granted to the spouse in the marriage settlement
marriage settlements, the separation of property between itself, otherwise this section shall not apply.
spouses during the marriage shall not take place except by (6) That at the time of the petition, the spouses have been
judicial order. Such judicial separation of property may separated in fact for at least one year and
either be voluntary or for sufficient cause. (190a) reconciliation is highly improbable.
· Separation of properties between spouses shall take In the cases provided for in Numbers (1), (2) and (3), the
place only in the following circumstances: presentation of the final judgment against the guilty or
o When the future spouses have agreed in absent spouse shall be enough basis for the grant of the
their marriage settlement that their property decree of judicial separation of property. (191a)
relations during marriage shall be governed
Art. 136. The spouses may jointly file a verified petition with
by the regime of separation of property
the court for the voluntary dissolution of the absolute
o When the surviving spouse to a previous community or the conjugal partnership of gains, and for the
marriage terminated by death of the other separation of their common properties.
spouse contracts a subsequent marriage
without compliance to the requirement of · The spouses may agree to voluntarily dissolve their
liquidation within one year, the subsequent ACP or CPG however such agreement will not
marriage shall be governed by CSP produce any legal effect if the same is not approved
o Upon finality of a decree for legal by the courts. The courts may not disapprove any
separation, the ACP or CPG regime shall petition for separation of property on the grounds
be dissolved and liquidated, and what shall that the court is not satisfied with the reasons of the
govern is the CSP parties.
o When the court approves the joint petition
of the spouses for the voluntary dissolution
All creditors of the absolute community or of the conjugal
of the ACP or CPG, CSP shall govern
partnership of gains, as well as the personal creditors of the
o When the court decrees the separation of spouse, shall be listed in the petition and notified of the filing
the spouses following the petition of the
thereof. The court shall take measures to protect the
spouses following the petition of one of the creditors and other persons with pecuniary interest. (191a)
spouses for such separation based on the
grounds provided on Art. 135
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Art. 137. Once the separation of property has been decreed, spouses, they agree to the revival of the former
the absolute community or the conjugal partnership of gains property regime. No voluntary separation of property
shall be liquidated in conformity with this Code. may thereafter be granted.
The revival of the former property regime shall be governed
During the pendency of the proceedings for separation of
by Article 67. (195a)
property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and Art. 142. The administration of all classes of exclusive
their children. (192a) property of either spouse may be transferred by the court to
the other spouse:
Art. 138. After dissolution of the absolute community or of
the conjugal partnership, the provisions on complete (1) When one spouse becomes the guardian of the other;
separation of property shall apply. (191a) (2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which
Art. 139. The petition for separation of property and the
carries with it civil interdiction; or
final judgment granting the same shall be recorded in the
(4) When one spouse becomes a fugitive from justice or is
proper local civil registries and registries of property. (193a)
in hiding as an accused in a criminal case.
Art. 140. The separation of property shall not prejudice the If the other spouse is not qualified by reason of
rights previously acquired by creditors. (194a) incompetence, conflict of interest, or any other just cause,
the court shall appoint a suitable person to be the
· The decree of separation of property shall have the administrator. (n)
following effects
o Once the separation of property has been · Transfer may be by agreement or by order of the
decreed, the absolute community or the court. Also, under Art. 110 the transfer is allowed
conjugal partnership of gains shall be by means of public instrument which shall be
liquidated in conformity with the recorded in the registry of property where the
provisions of Art. 102 and 129 of this property is located
Code. · If transfer is by court order, it may be done based
o After dissolution of the absolute only on the following reasons:
community or of the conjugal partnership, o Owner spouse is under guardianship
the provisions on complete separation of o Owner spouse is judicially declared an
property shall apply. absentee
o In order to bind third persons, the petition o Owner spouse is sentenced to a penalty
and final judgment for separation of which carries with it civil interdiction
property must be recorded in the proper o Owner spouse becomes a fugitive from
LCR and registries of property. However, justice or is in hiding as an accused in a
the rights which are previously acquired by criminal case.
creditors prior to the judicial separation of · It is shall be transferred to the other spouse unless
property shall not be prejudiced by the the they are not qualified due to incompetence,
judicial decree of separation of property conflict of interest or any other just cause. In such
Art. 141. The spouses may, in the same proceedings where case, the court shall appoint a suitable person as
separation of property was decreed, file a motion in court for administrator.
a decree reviving the property regime that existed between
them before the separation of property in any of the Chapter 6. Regime of Separation of Property
following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears; Art. 143. Should the future spouses agree in the marriage
(3) When the court, being satisfied that the spouse settlements that their property relations during marriage
granted the power of administration in the marriage shall be governed by the regime of separation of property,
settlements will not again abuse that power, the provisions of this Chapter shall be suppletory. (212a)
authorizes the resumption of said administration; Art. 144. Separation of property may refer to present or
(4) When the spouse who has left the conjugal home future property or both. It may be total or partial. In the
without a decree of legal separation resumes common latter case, the property not agreed upon as separate shall
life with the other; pertain to the absolute community. (213a)
(5) When parental authority is judicially restored to the
spouse previously deprived thereof; Art. 145. Each spouse shall own, dispose of, possess,
(6) When the spouses who have separated in fact for at administer and enjoy his or her own separate estate, without
least one year, reconcile and resume common life; or need of the consent of the other. To each spouse shall belong
(7) When after voluntary dissolution of the absolute all earnings from his or her profession, business or industry
community of property or conjugal partnership has and all fruits, natural, industrial or civil, due or received
been judicially decreed upon the joint petition of the
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during the marriage from his or her separate property. · Shall only apply in the case of psychological
(214a) incapacity, lack of marriage license or similar
Art. 146. Both spouses shall bear the family expenses in reasons.
proportion to their income, or, in case of insufficiency or · The properties acquired during the cohabitation
default thereof, to the current market value of their separate shall be distributed as follows:
properties. o Wages and salaries shall be owned by them
in equal shares, even if only one of them
The liabilities of the spouses to creditors for family expenses contributes to wages and salaries
shall, however, be solidary. (215a) o Property acquired by both through work or
industry shall be governed by the rules on
Chapter 7. Property Regime of Unions Without Marriage co-ownership. In absence of proof to the
· Except in marriages declared void ab initio under contrary, properties acquired while
Art. 40, the property regime that shall govern in a together shall be presumed to have been
void marriage shall not be CPG or ACP but the obtained through joint efforts, even if only
provisions under Art. 147 and 148 one party participated in the acquisition of
such properties
o The share of the party on the co-ownership
Art. 147. When a man and a woman who are capacitated to
in void marriage who is in bad faith shall
marry each other, live exclusively with each other as
be forfeited in favor of their common
husband and wife without the benefit of marriage or under a
children, surviving descendants for the
void marriage, their wages and salaries shall be owned by
vacant share in case the former defaults or
them in equal shares and the property acquired by both of
waives their share, or to the innocent party
them through their work or industry shall be governed by
in absence of descendants. Such forfeiture
the rules on co-ownership.
shall take place upon the termination of the
In the absence of proof to the contrary, properties acquired cohabitation
while they lived together shall be presumed to have been o Neither party can dispose or encumber by
obtained by their joint efforts, work or industry, and shall be acts inter vivos of his or her share of he
owned by them in equal shares. For purposes of this Article, property acquired during the cohabitation
a party who did not participate in the acquisition by the and owned in common, without the consent
other party of any property shall be deemed to have of the other until the termination of he
contributed jointly in the acquisition thereof if the former’s cohabitation. In other words, disposal of
efforts consisted in the care and maintenance of the family share in co-ownership shall be allowed is
and of the household. by way of mortis causa, or inter vivos if
there is consent of the other spouse
Neither party can encumber or dispose by acts inter vivos of
Art. 148. In cases of cohabitation not falling under the
his or her share in the property acquired during
preceding Article, only the properties acquired by both of
cohabitation and owned in common, without the consent of
the parties through their actual joint contribution of money,
the other, until after the termination of their cohabitation.
property, or industry shall be owned by them in common in
When only one of the parties to a void marriage is in good proportion to their respective contributions. In the absence
faith, the share of the party in bad faith in the co-ownership of proof to the contrary, their contributions and
shall be forfeited in favor of their common children. In case corresponding shares are presumed to be equal. The same
of default of or waiver by any or all of the common children rule and presumption shall apply to joint deposits of money
or their descendants, each vacant share shall belong to the and evidences of credit.
respective surviving descendants. In the absence of
If one of the parties is validly married to another, his or her
descendants, such share shall belong to the innocent party.
share in the co-ownership shall accrue to the absolute
In all cases, the forfeiture shall take place upon termination
community or conjugal partnership existing in such valid
of the cohabitation. (144a)
marriage. If the party who acted in bad faith is not validly
· Shall only apply in the following conditions: married to another, his or her shall be forfeited in the
o capacitated (refers to legal capacity to manner provided in the last paragraph of the preceding
marry) to marry each other Article.
o live exclusively with each other as husband The foregoing rules on forfeiture shall likewise apply even if
and wife both parties are in bad faith.
o living without the benefit of marriage or
under a void marriage · Shall apply in the following cases
· Shall not only apply in the following conditions: o Bigamous marriages
o Minors who lived exclusively as husband o Adulterous relationships
and wife o Relationships in state of concubinage
o Void as first cousins under Art. 38
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o Relationships where both man and woman · Our family law is based on the policy that marriage is
are married to other people not a mere social contract but a social institution which
o Multiple alliances of the same married man the state is vitally interested
o Common law spouses suffering from legal · Senator Tolentino clarifies that only the external aspect
impediment to marry each other of family relations is contemplated in the rules stated in
o Does not live exclusively with each other the second sentence because it is only here that third
as husband and wife persons and public interest are concerned.
· The properties acquired during the cohabitation
shall be distributed as follows: Art. 150. Family relations include those:
o Wages and salaries earned by each party (1) Between husband and wife;
shall be owned by them exclusively (2) Between parents and children;
o Only property acquired by both of them (3) Among brothers and sisters, whether of the full or
through their actual joint contribution of half-blood. (217a)
money, property or industry shall be owned · The extent of the term ‘family relations includes those
in common and in proportion to their defined in Art. 150 as well as ascendants and
respective contributions. If actual descendants.
contribution is not proved, then there can
· Such enumeration is exclusive and defines the
be no co-ownership. Hence, mere
operation of this article
cohabitation without proof of contribution
will not result in co-ownership
Art. 151. No suit between members of the same family shall
o The share of the party validly married to prosper unless it should appear from the verified complaint
another shall accrue to the property regime or petition that earnest efforts toward a compromise have
of the existing marriage been made, but that the same have failed. If it is shown that
In Belcodero vs. CA, the court no such efforts were in fact made, the same case must be
held that property acquired by a dismissed.
man whole living with a common
law wife during the subsistence of This rules shall not apply to cases which may not be the
his marriage is conjugal property, subject of compromise under the Civil Code. (222a)
even when property was titled in · The policy of the state regarding the Family under Sec.
the name of the common law 1 Art. XV of the Constitution is exemplified and given
wife. In such cases, a constructive flesh in the provisions of this Article in the FC which
trust is deemed to have been requires that earnest efforts towards a compromise be
created under Article 1456 NCC exerted first before action or suit between or among
over the property which lawfully members of the same family may be given course.
pertains to the conjugal
· The Civil Code Commission explains the reason for
partnership of the subsisting
such a requirement which is as follows: “This rule is
marriage.
introduced because it is difficult to imagine a sadder
o If the party who has acted in bad faith is and more tragic spectacle than a litigation between
not validly married, his or her share in shall members of the same family”
be forfeited in the manner therefore
expressed. The foregoing rules of forfeiture
· Requirement is mandatory that the complaint or
petition, which must be verified, should allege that
shall apply even if both parties acted in bad
earnest efforts towards a compromise have been made
faith.
but that the same failed, so that if shown that no such
efforts were made, the case must be dismissed.
TITLE V · Members of the family under Art. 151 should be
construed as those referring to Art. 150. Thus hose not
THE FAMILY included shall not be considered as members of the
family.
Chapter 1. The Family as an Institution
Chapter 2. The Family Home
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· A family home is the dwelling place of a person and his hundred thousand pesos in urban areas, and two hundred
family thousand pesos in rural areas, or such amounts as may
· hereafter be fixed by law.
Art. 153. The family home is deemed constituted on a house In any event, if the value of the currency changes after the
and lot from the time it is occupied as a family residence. adoption of this Code, the value most favorable for the
From the time of its constitution and so long as any of its constitution of a family home shall be the basis of evaluation.
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced For purposes of this Article, urban areas are deemed to
sale or attachment except as hereinafter provided and to the include chartered cities and municipalities whose annual
extent of the value allowed by law. (223a) income at least equals that legally required for chartered
cities. All others are deemed to be rural areas. (231a)
· It is not only the spouses who may constitute the family
Art. 158. The family home may be sold, alienated, donated,
home on the properties of ACP or CPG, or on exclusive
assigned or encumbered by the owner or owners thereof with
property of either with the other’s consent. Even an
the written consent of the person constituting the same, the
unmarried head of family may constitute a family home
latter’s spouse, and a majority of the beneficiaries of legal
on his/her own property.
age. In case of conflict, the court shall decide. (235a)
· The law does not prohibit the alienation or
encumbrance of the family home. However, the law
Art. 154. The beneficiaries of a family home are: requires written consent of the following persons in the
(1) The husband and wife, or an unmarried person who is sale, alienation, donation or encumbrance of the family
the head of a family; and home:
(2) Their parents, ascendants, descendants, brothers and · The person constituting the family home
sisters, whether the relationship be legitimate or · The latter’s spouse
illegitimate, who are living in the family home and · Majority of the beneficiaries of legal age.
who depend upon the head of the family for legal
support. (226a) · However, when the family home is part of the AC or
CP, its alienation or encumbrance during the marriage
· This article also includes in-laws where the family without the consent of the other shall be void.
home is constituted jointly by the husband and wife,
maids and overseers are however not included.
Art. 159. The family home shall continue despite the death of
Art. 155. The family home shall be exempt from execution, one or both spouses or of the unmarried head of the family
forced sale or attachment except: for a period of ten years or for as long as there is a minor
(1) For nonpayment of taxes; beneficiary, and the heirs cannot partition the same unless
(2) For debts incurred prior to the constitution of the the court finds compelling reasons therefor. This rule shall
family home; apply regardless of whoever owns the property or
(3) For debts secured by mortgages on the premises constituted the family home. (238a)
before or after such constitution; and · Under Art. 153 and 159, the following rules shall apply
(4) For debts due to laborers, mechanics, architects, in the event of the death of the person or persons who
builders, materialmen and others who have rendered constitute the family home:
service or furnished material for the construction of · The family home continues as such for as long as there
the building. (243a) is a minor beneficiary actually residing therein
· This exemption is effective from the time of the · But if there is no minor beneficiary, the family home
constitution of the family home as such and lasts so continues to be as such only for a period of ten years
long as any of the beneficiaries resides therein
provided that a beneficiary of legal age actually resides
therein,
Art. 156. The family home must be part of the properties of
the absolute community or the conjugal partnership, or of · As a rule, any one of the co-owners may demand
the exclusive properties of either spouse with the latter’s partition at any time. However, so long as the family
consent. It may also be constituted by an unmarried head of home constitutes as such pursuant to the provisions of
a family on his or her own property. this article, the heirs are prohibited from partitioning
the family home unless the court finds a compelling
Nevertheless, property that is the subject of a conditional reason therefore
sale on installments where ownership is reserved by the
vendor only to guarantee payment of the purchase price may
be constituted as a family home. (227a, 228a) Art. 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor,
Art. 157. The actual value of the family home shall not and he has reasonable grounds to believe that the family
exceed, at the time of its constitution, the amount of the three home is actually worth more than the maximum amount
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fixed in Article 157, he may apply to the court which except those marriages declared void under Art. 36 and
rendered the judgment for an order directing the sale of the 53.
property under execution. The court shall so order if it finds · The law does not recognize as valid the use of a
that the actual value of the family home exceeds the surrogate mother, as such the child will be considered
maximum amount allowed by law as of the time of its as illegitimate unless the child is adopted by the
constitution. If the increased actual value exceeds the spouses.
maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the
person or persons constituting the family home, by the Art. 165. Children conceived and born outside a valid
owner or owners of the property, or by any of the marriage are illegitimate, unless otherwise provided in this
beneficiaries, the same rule and procedure shall apply. Code. (n)
At the execution sale, no bid below the value allowed for a Art. 166. Legitimacy of a child may be impugned only on the
family home shall be considered. The proceeds shall be following grounds:
applied first to the amount mentioned in Article 157, and
then to the liabilities under the judgment and the costs. The · Children born to a valid marriage are presumed
excess, if any, shall be delivered to the judgment debtor. legitimate. Such presumption applies even if the mother
(247a, 248a) declares against its legitimacy (due to first, such
declaration may have been adopted in a fit of anger or
Art. 161. For purposes of availing of the benefits of a family to arouse jealousy of the husband; and second, as a
home as provided for in this Chapter, a person may guaranty in favor of the children whose condition
constitute, or be the beneficiary of, only one family home. (n) should not be under the mercy of the passions of their
Art. 162. The provisions in this Chapter shall also govern parents). However, such presumption is not conclusive
existing family residences insofar as said provisions are and may be overthrown by evidence to the contrary.
applicable. (n) Such ground for impugning the legitimacy of a chold
are enumerated in this article.
· As a rule, impugning the legitimacy of a child is strictly
the personal right of a husband for the simple reason
TITLE VI that he is the one directly confronted with the scandal
and ridicule which the infidelity of the wife produces
PATERNITY AND FILIATION and he should be the one to decide whether to conceal it
or expose it in view of economic and moral interest
Chapter 1. Legitimate Children involved.
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aid of situations presented, since to reject said result is marriage shall be proved by whoever alleges such legitimacy
to deny progress or illegitimacy. (261a)
· Blood tests eliminates all possibility that the putative
father is the father of a child, if none of the father’s
· Applies to a situation where marriage is terminated and
a child is born after 300 days following termination of
phenotypes are present in the child’s blood type. But
the marriage, which gives rise to the issue of the status
the reverse does not hold true such that the absence of
of the child. As such, the law leaves the burden of proof
the former’s phenotype in the latter would have made
to whoever may allege such legitimacy or illegitimacy.
his paternity biologically untenable (as ruled in Co Tao
vs. CA and Jao vs CA)
· DNA testing- If the man does not have the DNA types Art. 170. The action to impugn the legitimacy of the child
in his profiles match the paternal types in the child, he shall be brought within one year from the knowledge of the
is excluded as a father. Otherwise, he is included as a birth or its recording in the civil register, if the husband or,
possible father. in a proper case, any of his heirs, should reside in the city or
(3) That in case of children conceived through artificial municipality where the birth took place or was recorded.
insemination, the written authorization or ratification If the husband or, in his default, all of his heirs do not reside
of either parent was obtained through mistake, fraud, at the place of birth as defined in the first paragraph or
violence, intimidation, or undue influence. (255a) where it was recorded, the period shall be two years if they
· Even if it is the wife’s authorization which was should reside in the Philippines; and three years if abroad. If
obtained through mistake, fraud, violence, intimidation the birth of the child has been concealed from or was
or undue influence, she has no right to impugn the unknown to the husband or his heirs, the period shall be
legitimacy of the child. The proper party to impugn the counted from the discovery or knowledge of the birth of the
child’s legitimacy is the husband since the right is child or of the fact of registration of said birth, whichever is
strictly personal to him. In exceptional cases, it may be earlier. (263a)
exercised by his heirs.
· It is submitted that this section should refer only to Art. 171. The heirs of the husband may impugn the filiation
situations where the sperm of the donor is used in the of the child within the period prescribed in the preceding
artificial insemination of the wife. article only in the following cases:
(1) If the husband should died before the expiration of the
Art. 167. The child shall be considered legitimate although period fixed for bringing his action;
the mother may have declared against its legitimacy or may (2) If he should die after the filing of the complaint
have been sentenced as an adulteress. (256a) without having desisted therefrom; or
Art. 168. If the marriage is terminated and the mother (3) If the child was born after the death of the husband.
contracted another marriage within three hundred days (262a)
after such termination of the former marriage, these rules · The issue of legitimacy cannot be collaterally attacked.
shall govern in the absence of proof to the contrary: · The rationale for such rule is based on the fact there is
presumption of legitimacy in the FC. As such, it fixes
· Applies to marriages that are terminated by whatever the status of children born out of wedlock and such
reason. Thus the problem arises to which marriage the status cannot be attacked collaterally. The legitimacy
child belongs. As such the provisions of this article of child can only be impugned by direct action brought
provides the following presumptions: for that purpose, by the proper parties within the period
(1) A child born before one hundred eighty days after the limited by law. Only the husband can impugn the
solemnization of the subsequent marriage is legitimacy of a child as it is strictly the personal right of
considered to have been conceived during the former a husband for the simple reason that he is the one
marriage, provided it be born within three hundred directly confronted with the scandal and ridicule which
days after the termination of the former marriage; the infidelity of the wife produces and he should be the
(2) A child born after one hundred eighty days following one to decide whether to conceal it or expose it in view
the celebration of the subsequent marriage is of economic and moral interest involved. Only in
considered to have been conceived during such exceptional cases can heirs of the husband exercise can
marriage, even though it be born within the three impugn the child’s legitimacy.
hundred days after the termination of the former · The prescriptive period for filing action
marriage. (259a)
· One year, counted from the knowledge of birth of the
· Such presumption may be rebutted by proof to the child or recording of such birth in the civil register, if
contrary, and as such the presumption only applies if the husband or in cases provided by Art. 171, any of his
there is absence of proof to the contrary. heirs resides in the place where the birth took place or
was recorded
Art. 169. The legitimacy or illegitimacy of a child born after
three hundred days following the termination of the · Two years, counted from the knowledge of the birth of
the child or recording of such birth in the civil register,
if the husband or in his default, all his heirs do not
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reside in the place of birth or where it was recorded, if (2) Any other means allowed by the Rules of Court and
they live in the Philippines special laws. (265a, 266a, 267a)
· Three years, counted from the knowledge of the birth of · Physical resemblance but not always the case (Tijing
the child or recording of such birth in the civil register, vs. CA and Cabatania vs. CA)
if he husband or in his default, all of his heirs reside · Blood Tests
abroad. · DNA Tests
· If the birth of the child has been concealed from or was · Other proof (not family portrait or pictures)
unknown to the husband or the heirs, the period shall be
counted from the discovery or the knowledge of the
birth of the child or of the fact of registration of said Art. 173. The action to claim legitimacy may be brought by
birth, whichever is earlier. the child during his or her lifetime and shall be transmitted
· Upon the expiration of the foregoing periods, the action to the heirs should the child die during minority or in a state
to impugn the legitimacy of the chold can no longer be of insanity. In these cases, the heirs shall have a period of
brought. five years within which to institute the action.
· Provisions of Art. 170 and 171 apply in the cases of · The right to claim legitimacy is strictly belonging to the
doubt if a child is indeed a man’s child by his wife and child during his or her lifetime. Only under exceptional
the husband (or in proper cases, his heirs) denies the causes may it be exercised by his heirs, as in cases of
child’s filiation · An action to establish illegitimate filiation may be
brought by the child within the same period as stated in
Chapter 2. Proof of Filiation this article, except when action is brought about by
· Paternity or filiation, or lack of it, is a relationship that reasons provided in second paragraph of Art. 172 in
must be judicially established and it is for the court to which case the action must be brought during the
declare its existence or absence, thus it cannot be left to lifetime of the alleged parent. Hence if the reasons are
the will of the parties. based on (1) and (2) of Art. 172, the same may be
brought by the child at any time during his/her lifetime.
Art. 172. The filiation of legitimate children is established by · The putative parent is given a chance to dispute this
claim, considering that illegitimate children are usually
any of the following:
begotten and raised in secrecy and without the
(1) The record of birth appearing in the civil register or a legitimate children being aware of their existence.
final judgment; or
· It is necessary that the putative father must have a Art. 174. Legitimate children shall have the right:
participation in its preparation. It is not indispensable (1) To bear the surnames of the father and the mother, in
that the same be signed by the putative father. conformity with the provisions of the Civil Code on
· Baptismal certificate is not a conclusive proof as it does Surnames;
not have the same probative value as the birth · Illegitimate children shall principally use the surname
certificate. of their mother. They may only be allowed to use the
surname of their father in such exceptional
(2) An admission of legitimate filiation in a public circumstances (which appears to be governed by Art.
document or a private handwritten instrument and 172 without the need for judicial proceeding).
signed by the parent concerned. · Their illegitimate filiation has been expressly
· The admission must be made personally by the parent recognized by their father through the record of birth
himself/herself. The public document contemplated appearing in the civil registry
under this article is purposely executed as an admission · When an admission of paternity is made by putative
of filiation and not for other purposes. father in a public instrument or a private handwritten
instrument.
In the absence of the foregoing evidence, the legitimate (2) To receive support from their parents, their
filiation shall be ascendants, and in proper cases, their brothers and
proved by: sisters, in conformity with the provisions of this Code
on Support; and
(1) The open and continuous possession of the status of a
legitimate child; or · Illegitimate children are entitled to support from their
parents. However, only the separate property of the
· To prove by open and continuous status of an person obliged to give support shall be answerable. In
illegitimate child, there must be evidence of the
the case that such person has no exclusive properties,
manifestation of the permanent intention of the
the ACP or CPG shall advance support if financially
supposed father to consider the child as this, by
capable, which shall be deducted from the share of the
continuous and clear manifestations of parental
spouse obliged upon liquidation of the ACP or CPG
affection and care, which cannot be attributed to pure
charity.
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(3) To be entitled to the legitimate and other successional Art. 178. Legitimation shall take place by a subsequent valid
rights granted to them by the Civil Code. (264a) marriage between parents. The annulment of a voidable
· Illegitimate children are considered as compulsory and marriage shall not affect the legitimation. (270a)
legal heirs with respect to their parents. Their legitime
is one-half of the legitime of a legitimate child
· No additional acts are needed on the part of the children
or the parents
· There are 3 kinds of heirs under the law of succession: · It is essential that the marriage must be valid or at least
· Voluntary- as those in the express will of the testator in voidable, to which the annulment shall not affect the
the latter’s will and testament legitimation that took place upon the celebration of
· Legal or intestate- called by law to the succession in the marriage.
absence of voluntary heirs designated by the testator · Marriages void ab inition shall not consider
· Compulsory- those who are entitled to legitime and legitimation since the marriage is deemed never o have
cannot be deprived thereof by the testator unless taken place.
properly disinherited by testator.
Art. 179. Legitimated children shall enjoy the same rights as
Chapter 3. Illegitimate Children legitimate children. (272a)
Art. 177. Only children conceived and born outside of In addition, the adopter must be at least sixteen years older
wedlock of parents who, at the time of the conception of the than the person to be adopted, unless the adopter is the
former, were not disqualified by any impediment to marry parent by nature of the adopted, or is the spouse of the
each other may be legitimated. (269a) legitimate parent of the person to be adopted. (27a, E. O. 91
and PD 603)
· Any impediment to marry is a legal obstacle to
contracting a valid marriage. This may include being
under age of 18 or impediments under Art 37 and 38. Art. 184. The following persons may not adopt:
The child may not be legitimated if the impediment
exists at the time of conception of the child. If it existed (1)The guardian with respect to the ward prior to the
after the child is conceived, then the child may be approval of the final accounts rendered upon the
legitimated. termination of their guardianship relation;
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(2)Any person who has been convicted of a crime involving • (4) The illegitimate children, ten years of age or
moral turpitude; over, of the adopting parent, if living with said
parent and the latter's spouse, if any; and
(3)An alien, except:
• (5) The spouse, if any, of the person adopting or to
(4) (a) A former Filipino citizen who seeks to adopt a be adopted. (31a, E. O. 91 and PD 603)
relative by consanguinity; (b) One who seeks to adopt the
legitimate child of his or her Filipino spouse; or (c) One
who is married to a Filipino citizen and seeks to adopt Art. 189. Adoption shall have the following effects:
jointly with his or her spouse a relative by consanguinity • (1) For civil purposes, the adopted shall be deemed
of the latter. to be a legitimate child of the adopters and both
shall acquire the reciprocal rights and obligations
Aliens not included in the foregoing exceptions may adopt arising from the relationship of parent and child,
Filipino children in accordance with the rules on inter- including the right of the adopted to use the
country adoptions as may be provided by law. (28a, E. O. 91 surname of the adopters;
and PD 603) • (2) The parental authority of the parents by nature
over the adopted shall terminate and be vested in
Art. 185. Husband and wife must jointly adopt, except in the the adopters, except that if the adopter is the spouse
following cases: of the parent by nature of the adopted, parental
authority over the adopted shall be exercised jointly
• (1) When one spouse seeks to adopt his own by both spouses; and
illegitimate child; or
• (2) When one spouse seeks to adopt the legitimate • (3) The adopted shall remain an intestate heir of his
child of the other. (29a, E. O. 91 and PD 603) parents and other blood relatives. (39(1)a, (3)a, PD
603)
Art. 188. The written consent of the following to the adoption • (4) When the adopters concur with the illegitimate
shall be necessary: children and the surviving spouse of the adopted,
• (1) The person to be adopted, if ten years of age or they shall divide the entire estate in equal shares,
over, one-third to be inherited by the illegitimate children,
• (2) The parents by nature of the child, the legal one-third by the surviving spouse, and one-third by
guardian, or the proper government the adopters;
instrumentality;
• (5) When only the adopters survive, they shall
• (3) The legitimate and adopted children, ten years of inherit the entire estate; and
age or over, of the adopting parent or parents;
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• (6) When only collateral blood relatives of the • R.A. 8552 governs domestic adoption, regardless of whether or
adopted survive, then the ordinary rules of legal or not adopter is a citizen or alien, while R.A. 8043 govers
intestate succession shall apply. (39(4)a, PD 603) adoptions of Filipino children by adopter who may not be
qualified to adopt under the FC or R.A. 8552
- When the obligation for support falls upon two or more - Where the duty to provide support is admitted but fails to do
persons, the same shall be divided equally among them, and so causing the need for the other party to seek judicial
the judge may order only one of them to provide in case of intervention, the person obliged to provide support shall pay
urgency subject to the right to reimbursement of the other reasonable attorney’s fees incurred by the other.
- When two or more persons who are seeking support from one - Judgment in action for support is immediately executory and
who is obliged to but has insufficient means, the order cannot be stayed by an appeal
provided for under Art. 199 shall be followed unless the - Characteristics of right to support
concurrent obligees are the spouse and the children in which 1. Cannot be levied upon or made attachment or execution,
case the children shall be preferred which would defeat the purpose of the same
Art. 200. When the obligation to give support falls upon two 2. Cannot be renounced or transmitted to a third preson
or more persons, the payment of the same shall be divided 3. Cannot be made subject of a future inheritance
between them in proportion to the resources of each. 4. Cannot be subject to compensation
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Art. 205. The right to receive support under this Title as well children until their majority age of emancipation, and even
as any money or property obtained as such support shall not after this in certain circumstances
be levied upon on attachment or execution. (302a) - Parental authority is exercised over unemacipated children
and may be exercised notwithstanding the age of majority of
Art. 206. When, without the knowledge of the person obliged their children as in the case of parental consent for marriage
to give support, it is given by a stranger, the latter shall have when one of the parties is below 21 years old
a right to claim the same from the former, unless it appears
that he gave it without intention of being reimbursed. Consequences of parental authority
(2164a) 1. Right to have the children in their custody or company
2. Right to be obeyed and respected
Art. 207. When the person obliged to support another
unjustly refuses or fails to give support when urgently 3. Right to impose discipline as may be required by the
circumstances
needed by the latter, any third person may furnish support
to the needy individual, with right of reimbursement from 4. Right to give and withhold consent in certain matters
the person obliged to give support. This Article shall 5. Right to exercise legal guardianship over the property of the
particularly apply when the father or mother of a child unemancipated children
under the age of majority unjustly refuses to support or fails 6. Limited right to usufruct over the children’s properties
to give support to the child when urgently needed. (2166a) 7. Duty to support, educate and instruct them by right precept
and good example, and to provide for their upbringing in
- the term stranger refers to the third person who has no keeping with their means
obligation to provide support to the person entitled to receive 8. Duty to give them love and affection, advice and comfort,
it companionship and understanding
- The obligation to reimburse arises out of quasi-contract 9. Duty to provide them with moral and spiritual guidance,
- inculcate in them honesty, integrity, self-discipline, self-
Art. 208. In case of contractual support or that given by will, reliance, industry and thrift, stimulate their interest in civic
the excess in amount beyond that required for legal support affairs, and inspire in them compliance with the duties of
shall be subject to levy on attachment or execution. citizenship
10. Duty to furnish them with good and wholesome
Furthermore, contractual support shall be subject to educational materials, supervise their activities, recreation and
adjustment whenever modification is necessary due to association with others, protect them from bad company, and
changes of circumstances manifestly beyond the prevent them from acquiring habits detrimental to their health,
contemplation of the parties. (n) studies and morals;
11. Duty to represent them in all matters affecting their
- contractual support arises from the will of the obligor, which interests;
is usually in a will, or the agreement of the parties 12. Duty to perform such other duties as are imposed by
- the recipient need not be mutually obliged to give support law upon parents and guardians.
unlike in legal support
- the excess beyond what is necessary for legal support, in - The rights and duties of parental authority cannot be
case of a will, shall be subject to levy on attachment or renounced or waived except only in cases of adoption,
execution guardianship, surrender of children in children’s home or
- Contractual support may be waived or renounced orphan’s institution
- If there is a need to impose disciplinary measures on the
TITLE IX child, the same may be obtained through petition with the
PARENTAL AUTHORITY court which may be granted by way of commitment of the
Chapter 1. General Provisions child in an institution for not more than 30 days, but the
parents shall still provide support.
Art. 209. Pursuant to the natural right and duty of parents
over the person and property of their unemancipated Art. 210. Parental authority and responsibility may not be
children, parental authority and responsibility shall include renounced or transferred except in the cases authorized by
the caring for and rearing them for civic consciousness and law. (313a)
efficiency and the development of their moral, mental and
physical character and well-being. (n) Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common
children. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.
- Parental authority is the mass of rights and obligations which
the parents have in relation to the person and property of their Children shall always observe respect and reverence towards
their parents and are obliged to obey them as long as the
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children are under parental authority. (311a) chan robles - Compared to Sec. 25, Rule 130
virtual law library Art. 215 Sec. 25, Rule 130
Art. 212. In case of absence or death of either parent, the Applies only to criminal cases Both civil and criminal
parent present shall continue exercising parental authority.
The remarriage of the surviving parent shall not affect the Invoked by descendants Both descendants and
parental authority over the children, unless the court ascendants
appoints another person to be the guardian of the person or
property of the children. (n) Criminal cases against parents Both civil and criminal, and
and grandparents likewise against other direct
- While parental authority is jointly exercised, there are cases ascendants, children and
where the exercise of parental authority is primarily lodged other descendants
with the father (see Art. 14 and Art. 78) in case of legitimate
Not absolute if testimony is Absolute with no exceptions
children
indispensible in a crime against
- Parental authority over illegitimate children shall be exercised the descendants, or by one parent
by the mother regardless of whether or not the father admits against the other
paternity and filiation
- Visitation rights may be granted to non-custodial parents
Art. 213. In case of separation of the parents, parental -
authority shall be exercised by the parent designated by the Chapter 2. Substitute and Special Parental Authority
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven Art. 216. In default of parents or a judicially appointed
years of age, unless the parent chosen is unfit. (n) guardian, the following person shall exercise substitute
parental authority over the child in the order indicated:
No child under seven years of age shall be separated from • (1) The surviving grandparent, as provided in Art.
the mother unless the court finds compelling reasons to 214;
order otherwise • (2) The oldest brother or sister, over twenty-one
years of age, unless unfit or disqualified; and
- The award of custody to the innocent spouse does not mean
deprivation of parental authority of the guilty spouse • (3) The child's actual custodian, over twenty-one
- Compelling reasons for separation of mother from child does years of age, unless unfit or disqualified.
not necessarily mean that if the wife is the guilty spouse, the
child will be separated from her Whenever the appointment or a judicial guardian over the
- Compelling reasons include property of the child becomes necessary, the same order of
- Neglect, abandonment preference shall be observed. (349a, 351a, 354a)
- Unemployment, immorality
- Habitual drunkenness - Due to the deep ties that bind parents to child, the mother or
- Drug addiction, maltreatment of child, insanity and father, if suitable, is entitled to the custody of the child over
communicable diseases all other persons even their grandparents
- Husband must prove that such reasons have had an adverse - Parental preference rule may not be invoked by the father of
effect on the welfare of the child or have distracted the spouse an illegitimate child in case of death, absence or
from exercising proper parental care unsuitability of the mother since Art. 176 provides that the
illegitimate child is not under the parental authority of the
- If child is over 7 years old, they may make their own choice father. Hence in case of death of both mother and father, the
but the court shall not be bound by the same
grandparents on the maternal side shall be entitled to the
custody of the child
Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by
Who may exercise substitute parental authority
the surviving grandparent. In case several survive, the one
designated by the court, taking into account the same 1. Grandparents as provided for under Art. 214
consideration mentioned in the preceding article, shall 2. Older brother or sister, over 21 years old, unless unfit or
exercise the authority. (355a) disqualified
3. The child’s actual custodian, over 21 years old, unless unfit or
Art. 215. No descendant shall be compelled, in a criminal disqualified
case, to testify against his parents and grandparents, except
when such testimony is indispensable in a crime against the Art. 217. In case of foundlings, abandoned neglected or
descendant or by one parent against the other. (315a) abused children and other children similarly situated,
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parental authority shall be entrusted in summary judicial Upon the Persons of the Children
proceedings to heads of children's homes, orphanages and
similar institutions duly accredited by the proper Art. 220. The parents and those exercising parental
government agency. (314a) authority shall have with the respect to their unemancipated
children on wards the following rights and duties:
- “Foundling” refers to a deserted or abandoned infant or (1) To keep them in their company, to support, educate and
child whose parents, guardian or relatives are unknown; or a instruct them by right precept and good example, and to
child committed to an orphanage or charitable or similar provide for their upbringing in keeping with their means;
institution with unknown facts of birth and parentage and (2) To give them love and affection, advice and counsel,
registered in the Civil Register as a “foundling.” companionship and understanding;
- “Abandoned child” refers to one who has no proper parental
care or guardianship or whose parents have deserted him for (3) To provide them with moral and spiritual guidance,
a period of at least six (6) continuous months and has been inculcate in them honesty, integrity, self-discipline, self-
judicially declared as such. reliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of
- “Neglected child” is one whose basic needs have been citizenship;
deliberately not attended to or inadequately attended to,
physically or emotionally, by his parents or guardian, which
(4) To furnish them with good and wholesome educational
can be physical neglect or emotional neglect (see Art. 141,
materials, supervise their activities, recreation and
No 3, PD 603)
association with others, protect them from bad company,
and prevent them from acquiring habits detrimental to their
Art. 218. The school, its administrators and teachers, or the
health, studies and morals;
individual, entity or institution engaged in child are shall
have special parental authority and responsibility over the
minor child while under their supervision, instruction or (5) To represent them in all matters affecting their interests;
custody.
(6) To demand from them respect and obedience;
Authority and responsibility shall apply to all authorized
activities whether inside or outside the premises of the (7) To impose discipline on them as may be required under
school, entity or institution. (349a) the circumstances; and
Art. 219. Those given the authority and responsibility under (8) To perform such other duties as are imposed by law upon
the preceding Article shall be principally and solidarily parents and guardians. (316a)
liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the Art. 221. Parents and other persons exercising parental
persons exercising substitute parental authority over said authority shall be civilly liable for the injuries and damages
minor shall be subsidiarily liable. caused by the acts or omissions of their unemancipated
children living in their company and under their parental
The respective liabilities of those referred to in the preceding authority subject to the appropriate defenses provided by
paragraph shall not apply if it is proved that they exercised law. (2180(2)a and (4)a )
the proper diligence required under the particular
circumstances. Art. 222. The courts may appoint a guardian of the child's
property or a guardian ad litem when the best interests of
All other cases not covered by this and the preceding articles the child so requires. (317)
shall be governed by the provisions of the Civil Code on
quasi-delicts. (n) Parental rights as provided for and protected by law and statutes
1. Custody of child, and in case of custodial parent includes the
- Special parental authority is granted by law to certain day to day care and companionship of the child
persons, entities or institutions in view of their special a. Ancillary to the proper discharge of parental duties to
relation to children under their supervision, instruction or provide the children with adequate support, education,
custody moral, intellectual and civic training and development
- Those who may exercise special parental authority include b. Such rule applies to legitimate children only since
- The School illegitimate children is under sole parental authority of
the mother
- Its administrators and teachers
2. Right to discipline the child, which covers both the moral and
- The individual, entity or institution engaged in ethical standards
child rearing
3. Right to control and manage the child’s earnings
4. Right to be supported by the adult child
Chapter 3. Effect of Parental Authority 5. Right to have child bear the parents name
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6. Right to prevent adoption without parents consent thirty days in entities or institutions engaged in child care or
in children's homes duly accredited by the proper
- Duty of the parents to provide support to their children is government agency.
not necessarily terminated upon the emancipation of the
same The parent exercising parental authority shall not interfere
with the care of the child whenever committed but shall
- Parents have a duty to represent their unemancipated
provide for his support. Upon proper petition or at its own
children in all matters affecting their interests, as well as in
instance, the court may terminate the commitment of the
court litigations as provided in Sec. 5, Rule 3, RoC
child whenever just and proper. (391a)
- Parents also have the duty to give their unemancipated
children proper advice and counsel, and may be extend to
giving consent even beyond the age of emancipation, like in - Under both the provisions of the NCC and the FC, parents
case of parental consent in case of marriage where parties may impose disciplinary measures to the extent required by
are of age 18 to 21. the circumstances
- Under the law, children below 15 years of age shall not be Chapter 4. Effect of Parental Authority Upon
employed unless the child is under the sole responsibility of the Property of the Children
his or her parents or legal guardian and where there are only
members or his/her family are employed Art. 225. The father and the mother shall jointly exercise
- A child below 15 years old may likewise be employed in the legal guardianship over the property of the unemancipated
public entertainment or information, provided that the common child without the necessity of a court appointment.
employment contract is concluded with the parents or legal In case of disagreement, the father's decision shall prevail,
guardian, with the child’s express agreement if possible, and unless there is a judicial order to the contrary.
with the approval of the DSWD Where the market value of the property or the annual
- In order to be liable for quasi delict under Art. 221, the income of the child exceeds P50,000, the parent concerned
requisites are shall be required to furnish a bond in such amount as the
- the minor is living under the custody of the parent court may determine, but not less than ten per centum (10%)
- the minor is under the custody of the parent of the value of the property or annual income, to guarantee
- the parents failed to exercise due diligence of a the performance of the obligations prescribed for general
good father of a family to prevent the damage guardians.
- Art. 2180 also imposes civil liability on the father, or the A verified petition for approval of the bond shall be filed in
mother in case of the father’s death for any quasi-delict
the proper court of the place where the child resides, or, if
committed by the minor children who lives with them as
the child resides in a foreign country, in the proper court of
long as the same is under 21 years old
the place where the property or any part thereof is situated.
- Liability of parents for crimes committed by their children is
governed by Art. 101 of the RPC, as well as civil liability The petition shall be docketed as a summary special
arising from criminal offenses committed by their minor proceeding in which all incidents and issues regarding the
children performance of the obligations referred to in the second
- The liability of the parents under said provisions of law are paragraph of this Article shall be heard and resolved.
primary and not subsidiary
The ordinary rules on guardianship shall be merely
Art. 223. The parents or, in their absence or incapacity, the suppletory except when the child is under substitute parental
individual, entity or institution exercising parental authority, authority, or the guardian is a stranger, or a parent has
may petition the proper court of the place where the child remarried, in which case the ordinary rules on guardianship
resides, for an order providing for disciplinary measures shall apply. (320a)
over the child. The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the court, and a Art. 226. The property of the unemancipated child earned or
summary hearing shall be conducted wherein the petitioner acquired with his work or industry or by onerous or
and the child shall be heard. gratuitous title shall belong to the child in ownership and
shall be devoted exclusively to the latter's support and
However, if in the same proceeding the court finds the education, unless the title or transfer provides otherwise.
petitioner at fault, irrespective of the merits of the petition,
or when the circumstances so warrant, the court may also The right of the parents over the fruits and income of the
order the deprivation or suspension of parental authority or child's property shall be limited primarily to the child's
adopt such other measures as it may deem just and proper. support and secondarily to the collective daily needs of the
(318a) family. (321a, 323a)
Art. 224. The measures referred to in the preceding article Art. 227. If the parents entrust the management or
may include the commitment of the child for not more than administration of any of their properties to an
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unemancipated child, the net proceeds of such property shall (4) Subjects the child or allows him to be subjected to acts of
belong to the owner. The child shall be given a reasonable lasciviousness.
monthly allowance in an amount not less than that which the The grounds enumerated above are deemed to include cases
owner would have paid if the administrator were a stranger, which have resulted from culpable negligence of the parent
unless the owner, grants the entire proceeds to the child. In or the person exercising parental authority.
any case, the proceeds thus give in whole or in part shall not If the degree of seriousness so warrants, or the welfare of the
be charged to the child's legitime. (322a) child so demands, the court shall deprive the guilty party of
parental authority or adopt such other measures as may be
- Under the FC, father and mother shall exercise joint legal proper under the circumstances.
guardianship over the property of the unemancipated
common child, without need of a court appointment. The suspension or deprivation may be revoked and the
However, when the property or annual income exceeds parental authority revived in a case filed for the purpose or
50,000 pesos, the law requires the parents to furnish a bond in the same proceeding if the court finds that the cause
equivalent to the market value of the property of the annual therefor has ceased and will not be repeated. (33a)
income.
- Properties earned or acquired by the minor child through Art. 232. If the person exercising parental authority has
onerous or gratuitous title shall be considered as owned by subjected the child or allowed him to be subjected to sexual
the child, but things given as part of support or necessities abuse, such person shall be permanently deprived by the
shall be considered as owned by the parent and do not court of such authority. (n)
belong to the child. However, clothing furnished through
funds by parents for general purposes. without specific Art. 233. The person exercising substitute parental authority
instructions as to the appropriation, shall be not considered shall have the same authority over the person of the child as
as property of the parent the parents.
- Parents have a limited right of usufruct over the property of
the minor child, and only for the following purposes In no case shall the school administrator, teacher of
individual engaged in child care exercising special parental
- Primarily for the child’s support authority inflict corporal punishment upon the child. (n)
- Secondarily, for the family’s collective needs
Grounds of the termination of parental authority
Chapter 5. Suspension or Termination of Parental Authority Permanent
Art. 228. Parental authority terminates permanently:
1. Death of parents
(1) Upon the death of the parents; a. Unless one of the parents survive, and unless the court
(2) Upon the death of the child; or will appoint another person
(3) Upon emancipation of the child. (327a) b. If both parents die, substitute parental authority shall be
exercised by persons designated
Art. 229. Unless subsequently revived by a final judgment, 2. Death of child
parental authority also terminates: 3. Emancipation of child
1) Upon adoption of the child; a. There are still some rights and obligations not
(2) Upon appointment of a general guardian; extinguished by the emancipation of the child
(3) Upon judicial declaration of abandonment of the child in Temporary and may be revived by court judgment
a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the
1. Adoption of child
party concerned of parental authority; or a. Permanent unless rescinded based on the grounds under
(5) Upon judicial declaration of absence or incapacity of the the DAA.
person exercising parental authority. (327a) 2. Appointment of a general guardian (Grounds)
a. Death, absence or incapacity of parents
Art. 230. Parental authority is suspended upon conviction of b. Suspension, deprivation or termination of parental
the parent or the person exercising the same of a crime authority
which carries with it the penalty of civil interdiction. The c. Remarriage of minor’s surviving parent if found
authority is automatically reinstated upon service of the unsuitable to exercise parental authority
penalty or upon pardon or amnesty of the offender. (330a)
d. When best interests of minor so require
Art. 231. The court in an action filed for the purpose in a 3. Judicial declaration of abandonment of the child in a case
related case may also suspend parental authority if the filed for that purpose
parent or the person exercising the same: a. There must be an intention to abandon the child,
expressly or impliedly which is apparent from the
(1) Treats the child with excessive harshness or cruelty; conduct and intent of the parent respecting the child
(2) Gives the child corrupting orders, counsel or example; 4. Final judgment of the competent court divesting the party
(3) Compels the child to beg; or concerned of parental authority
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a. When the best interests of the child so require
5. Judicial declaration of absence or incapacity of the person TITLE XI
exercising parental authority SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW
a. Even without judicial declaration if child is placed under Chapter 1. Prefatory Provisions
guardianship
Art. 238. Until modified by the Supreme Court, the
Other grounds for suspension of parental authority
procedural rules provided for in this Title shall apply as
1. Treats child with excessive harshness or cruelty regards separation in fact between husband and wife,
2. Gives child corrupting orders, counsel or example abandonment by one of the other, and incidents involving
3. Compels child to beg parental authority. (n)
4. Subjects the child or allows the same to be subjected to acts of
lasciviousness Chapter 2. Separation in Fact
If person exercising parental authority has subjected or allowed
the child to be subjected to sexual abuse, the person shall be Art. 239. When a husband and wife are separated in fact, or
deprived permanently of parental authority by the court one has abandoned the other and one of them seeks judicial
authorization for a transaction where the consent of the
TITLE X other spouse is required by law but such consent is withheld
EMANCIPATION AND AGE OF MAJORITY or cannot be obtained, a verified petition may be filed in
court alleging the foregoing facts.
Art. 234. Emancipation takes place by the attainment of The petition shall attach the proposed deed, if any,
majority. Unless otherwise provided, majority commences at embodying the transaction, and, if none, shall describe in
the age of eighteen years (as amended by R.A. 6805). detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case, the
Art. 235. (Repealed by. R.A. 6809 final deed duly executed by the parties shall be submitted to
and approved by the court. (n)
Art. 236. Emancipation shall terminate parental authority
over the person and property of the child who shall then be Art. 240. Claims for damages by either spouse, except costs
qualified and responsible for all acts of civil. life, save for of the proceedings, may be litigated only in a separate action.
exceptions established by existing laws in special cases. (n)
(412a)
Art. 241. Jurisdiction over the petition shall, upon proof of
Contracting parties shall require parental consent until the notice to the other spouse, be exercised by the proper court
age of twenty one. authorized to hear family cases, if one exists, or in the
regional trial court or its equivalent sitting in the place
Nothing in this Code shall be construed to derogate from the where either of the spouses resides. (n)
duty or responsibility of the parents and guardians for
children and wards below twenty-one years of age mentioned Art. 242. Upon the filing of the petition, the court shall notify
in the second and third paragraphs of Art. 2160 of the Civil the other spouse, whose consent to the transaction is
Code (as amended by R.A. 6805) required, of said petition, ordering said spouse to show cause
why the petition should not be granted, on or before the date
Art. 237. (Repealed by R.A. 6805) set in said notice for the initial conference. The notice shall
be accompanied by a copy of the petition and shall be served
- Emancipations means freeing the child form the parental at the last known address of the spouse concerned. (n)
custody and authority of, and from the obligation to
render services to the parent, and thereby render the child Art. 243. A preliminary conference shall be conducted by the
qualified and responsible for all acts of civil life judge personally without the parties being assisted by
counsel. After the initial conference, if the court deems it
Instances where rights and obligations are retained by parents useful, the parties may be assisted by counsel at the
even after parental authority is terminated succeeding conferences and hearings. (n)
1. Securing parental consent in marriage when parties are below
21 Art. 244. In case of non-appearance of the spouse whose
2. Securing parental advice when spouses are below 25 consent is sought, the court shall inquire into the reasons for
3. Consent of parent as a party concerned in case of marriage his failure to appear, and shall require such appearance, if
settlement prior to the celebration of marriage possible. (n)
4. Obligation to support the children is not co-terminus with the
exercise of parental authority Art. 245. If, despite all efforts, the attendance of the non-
5. Parents still liable for quasi-delict of children below age of 21 consenting spouse is not secured, the court may proceed ex
under Art. 236, last paragraph FC parte and render judgment as the facts and circumstances
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may warrant. In any case, the judge shall endeavor to 5. Disagreement as to the administration and enjoyment of the
protect the interests of the non-appearing spouse. (n) AC or CP under Art. 96 and 124
6. Alienation or encumbrance of the AC or CP in case one
Art. 246. If the petition is not resolved at the initial spouse is absent or unable to participate in its administration
conference, said petition shall be decided in a summary 7. Spouses separated in fact, or abandoned the other where the
hearing on the basis of affidavits, documentary evidence or other spouse seeks to conduct a transaction requiring the
oral testimonies at the sound discretion of the court. If consent of the other in case such consent is withheld or unable
testimony is needed, the court shall specify the witnesses to to be obtained (Art. 236 in relation to Art. 100 (2) and 127 (c)
be heard and the subject-matter of their testimonies, 8. Separation in fact or abandonment, the other spouse may
directing the parties to present said witnesses. (n) petition the court for the administration and encumbrance of
the specific property of the other and use the fruits or
Art. 247. The judgment of the court shall be immediately proceeds thereof for the support of the family
final and executory. (n) 9. Foundling, abandoned, neglected, abused and other children
similarly situated, parental authority shall be entrusted to
Art. 248. The petition for judicial authority to administer or heads of children’s homes, orphanages, and other similar
encumber specific separate property of the abandoning institutions duly accredited by the government
spouse and to use the fruits or proceeds thereof for the 10. Petition of order for disciplinary measures on the child
support of the family shall also be governed by these rules. 11. Petition for application for bond in case the property or
(n) annual income of the unemancipated child exceeds 50,000
pesos, in an amount as the court may determine
TITLE XII
FINAL PROVISIONS
Chapter 3. Incidents Involving Parental Authority
Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1
Art. 249. Petitions filed under Articles 223, 225 and 235 of of Republic Act No. 386, otherwise known as the Civil Code
this Code involving parental authority shall be verified. (n) of the Philippines, as amended, and Articles 17, 18, 19, 27,
28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No.
Art. 250. Such petitions shall be verified and filed in the 603, otherwise known as the Child and Youth Welfare Code,
proper court of the place where the child resides. (n) as amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof,
Art. 251. Upon the filing of the petition, the court shall notify inconsistent herewith are hereby repealed.
the parents or, in their absence or incapacity, the
individuals, entities or institutions exercising parental Art. 255. If any provision of this Code is held invalid, all the
authority over the child. (n) other provisions not affected thereby shall remain valid.
Art. 252. The rules in Chapter 2 hereof shall also govern Art. 256. This Code shall have retroactive effect insofar as it
summary proceedings under this Chapter insofar as they are does not prejudice or impair vested or acquired rights in
applicable. (n) accordance with the Civil Code or other laws.
Chapter 4. Other Matters Subject to Summary Proceedings Art. 257. This Code shall take effect one year after the
completion of its publication in a newspaper of general
Art. 253. The foregoing rules in Chapters 2 and 3 hereof circulation, as certified by the Executive Secretary, Office of
shall likewise govern summary proceedings filed under the President.
Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are
applicable. (n) Done in the City of Manila, this 6th day of July, in the year
of Our Lord, nineteen hundred and eighty-seven.
Matters which are subject to summary proceedings under the
Family Code
1. Summary proceeding for declaration of presumptive death for
purpose of contracting subsequent marriage under Art. 41
2. In case of disagreement as to the fixing of the family domicile
under Art. 69, the matter shall be decided by the Family Court
3. Under Art. 69, the court may exempt one spouse from living
with the other if the latter should live abroad or if there are
compelling reasons
4. Under Art. 69, either spouse may validly exercise any
legitimate profession, business or activity without the consent
of the other, and the other spouse may object only on valid,
serious and moral grounds
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