Persons-and-Family-relations-summary-Sta.-Maria

Persons and Family Relations 2009 (Atty. Sta. Maria)

CIVIL CODE OF THE PHILIPPINES: Preliminary Title Article Summary Summarized Annotation: Article 1: Civil Code of the Philippines Art. 2: Laws shall take effect 15 - Civil code took effect on August 30, 1950 days following the completion - EO 200 was issued by President Aquino on June 1987 which of their publication provided that pursuant to the ruling in Tañada v. Tuvera publication need not be made in the Official Gazette, considering its erratic release and limited readership. - Newspapers for general circulation could better perform the function of communicating the laws to the people—more available, wider circulation, comes out regularly. - If a statute does not provide for its effectivity, it will only take effect 15days after the completion of its publication. (No one shall be charged under the statute until the completion of the publication.) - Statutes may provide for another number of days for publication. The statement “unless otherwise provided” refers only to the 15 days (which can be changed to a different number) and not the requirement of publication. —Publication is indispensable.

Art. 3: Ignorance of the law excuses no one

Art. 4: Laws shall not be retroactive unless provided

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Added Info:

Covered Under this Rule: - Presidential decrees and executive orders by the president in exercise of his legislative powers. - Administrative rules and regulations if their purpose is to enforce or implement existing law pursuant to a valid delegation. - City charter must be published even if it is only applicable to a portion of national territory * Interpretative regulation and those internal in nature need not be published.

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It is the presumption that every person knows the law. Ignorance cannot be put up as a defense because it can always be used causing disorder in society - This is the reason why publication is an essential element, so that no one can excuse himself or herself for not knowing. - Statutes are to be construed as having prospective or future operation only it is not meant to be applicable to the past unless it is expressly provided for or is clearly and necessarily implied from the law. Cases when the law may be given retroactive effect: 1. The law expressly provides 2. When the law is curative or remedial – meant to cure defects in order to enforce existing obligations. To enable people to carry into effect what they intended in the obligation but could not due

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Art. 5: Acts committed against mandatory and prohibitory laws shall be void.

Art. 6: Waiver of Rights

Art. 7: Repealed Laws

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to some statute. Not meant to impair obligation or affect vested rights. 3. When the law is procedural – when it deals with procedure it applies to all actions, which have accrued, or pending and future actions. Ex. When the legislature provides that all bills should under go 4 readings instead of 3. This affects all bills that have been created and even those already undergoing readings. 4. When the law is penal in character and is favorable to the accused. MANDATORY PROVISIONS OF LAWS: If one fails to commit certain acts that are mandatory in the law, it renders the proceeding or acts to which it relates as illegal or void. Ex. The law provides “ The action to revoke the donation under this article must be brought within 5 years from the time the decree of legal separation has become final.” (Article 64, Family Code) PROHIBITORY LAWS: Those that one is not supposed to do. Couched in negative terms. Ex. The law provides that “ No legal separation may be decreed unless the court has taken steps towards reconciliation.” (Article 59, Family Code) - Rights may be waived unless it is contrary to law, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. - The right must exist at the time of the waiver. Requisites: 1. The person knows that a right exists 2. Has adequate knowledge upon which to make an intelligent decision 3. Knowledge of the facts related to the right to be waived 4. Must be shown that the waiver is made knowingly and intelligently - Rights provided for in statutes can generally be waived unless the object of the statute is to protect or promote public interest - Laws are repealed only by subsequent ones - Between a law and the Constitution, the latter prevails

Examples of what cannot be waived: 1. Waiver against the right to purchase land. 2. Waive an action against future fraud 3. Waive right to receive less than the compensation a worker is to receive under the law.

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Administrative or executive acts are valid only when they are not contrary to laws or the Constitution REPEAL: legislative act of abolishing a previous statute through a new law - Where a portion of a statute is rendered unconstitutional and part is valid the arts may be separated if they can stand independently of one another. Art. 8: Judicial decisions form case laws Art. 9: Responsibility of the courts Art. 10: It is presumed that the lawmaking body intended right and justice to prevail Art. 11: Customs Art. 12: Customs must be proved accdg. to the rules of evidence. Art. 13: Years, days, months

Art. 14: Penal laws

- Judicial decisions, applying and interpreting laws and the Constitution, assume the same authority as laws. - Judges must not evade performance of their responsibility because of an apparent non-existence or vagueness of a law governing a particular legal dispute. - The court must first apply the law, only when there is ambiguity in its application should there be any kind of interpretation. - The interpretation should be in line with the intent of the legislature or the end sought to be attained. CUSTOM: a rule of conduct formed by repetition of acts, uniformly observed as a social rule, which is legally binding and has obligatory force. JURIDICAL CUSTOM: Can be a supplement/addition to a statutory law unlike a social custom, which cannot do so. Years: 365 days each Months: 30 days – if designated by their name, they shall be computed by the number of days that they respectively have Hour: 24 hours Nights: Sunset to sunrise - In computing a period first day exclude last day included - All citizens or foreigners who sojourner are subject to all penal laws and laws meant for public security and safety. -

Art. 15: Nationality rule

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Art. 16: Real & Personal

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Regardless of where a citizen of the Philippines might be he or she will still be governed by Philippine laws when it comes to family rights, duties, or to his or her legal status and legal capacity, Real and Personal Property are subject to the law of the country

Exception: Foreigners who are immune from suit and thus cannot be charged (diplomatic agents) Thus a Filipino cannot get a divorce even if he or she goes abroad, since divorce is not recognized in the Philippines

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Property

Art. 17: Forms and Solemnities of contracts/will, acts done before consular officials, prohibitive laws

Art. 18: Deficiency in the Code of Commerce and special laws

where it is found. However, when it comes to the order, amount, and intrinsic validity of the succession it shall be regulated by the law of the person whose succession is being considered regardless of where the property is to be found. Extrinsic validity: the laws shall govern the forms of contracts and wills where they are made. Thus a will made in the U.S. must follow the laws regarding the forms of wills in the U.S. Acts before Diplomatic and Consular Officials: Any act or contract made in a foreign country made before the diplomatic and consular officials must also conform to Philippine laws. This is because in the premises of a diplomatic office the foreign country waives its jurisdiction so the Philippine laws govern in the premises of the Philippine Diplomatic Office in foreign countries. Prohibitive Laws: Prohibitive laws concerning property, persons, their acts and those meant for public order, public policy, or good customs will continue to be in effect even if the person is in a different country with different laws. Ex. A Filipino gets married to 2 women in another country where bigamy is legal, the second marriage is void since bigamy is not permitted in the Philippines. -

When there are deficiencies in the Code of Commerce and Special Laws the civil code will govern such deficiency. Ex. In the Code of Commerce there is no stated prescription date for a certain act, thus the provisions on prescription in the civil code will govern. - However one must check the kind of transaction at hand and whether the civil code provision is applicable Ex. In a previous case, the Carriage of Goods by Sea Act there is a one year prescription for making a claim for loss or damage and the plaintiff believed that he could extend the prescriptive period by giving a written demand pursuant to Art. 1155 of the civil code, especially since the civil code is meant to be supplementary according to Art. 18. However the Supreme Court ruled that it was not applicable because when it comes to matters of goods in transport it is desirable that it be resolved at once taking into consideration the nature of the goods.

HUMAN RELATIONS

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Art. 19: Abuse of right doctrine

Art. 20: willfully or negligently causes damage to another

Art. 21: Contrary to good customs, morals, or public policy

Art. 22: One who comes into the possession of another is obliged to make restitution Art. 23: Even if the act was not due to ones fault or negligent he is still liable for indemnity if he was benefited. Art. 24: Protecting the rights of the disadvantage Art. 25: Extravagance during acute public want or emergency

Art. 26: Respect privacy of others. Respect for human dignity Art. 27: Public servant refuses or neglects to do his duty

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Meant to be a law of justice and fairness especially in instances wherein there is no specific law to prevent acts of abuse to another. - It is a rule of conduct that is meant to create a harmonious and orderly relation ship between people - Speaks of the general sanction for all other provisions of law, which do not especially provide their own sanction. - Designed to fill in the countless gaps in the statues, which leave many victims without recourse. Elements: 1. There is an act which is legal 2. But which is contrary to morals, good customs, public order, public policy 3. And it is done with intent to injure - Presupposes material or other loss which one may suffer as a result of another person’s act UNJUST ENRICHMENT: one should not unduly profit on something which he does not own - Thus if one is benefited at the expense of another, he must pay or indemnify the other for what he has gained.

*The three articles are related to each other and under these articles an act, which causes injury to another, may be made the basis for an award for damages.

It is the courts duty to render justice and give protection on account of those who are disadvantage due to moral dependence, ignorance, indigence (poverty), mental weakness, tender age or other handicap. The courts at the instance of the government or any private charitable institution can order one to stop extreme spending during times of emergency. Ex. There is a gasoline scarcity and a rich man buys tons and tons of gasoline to power his private amusement park. –the court may order him to seize such at the instance of the government or charitable institution to prevent such in times of emergency. - Meant to enforce the right of one to his privacy in one’s own home, religious freedom, prevent moral suffering, vexation, humiliation, - One may file an action for damages against the officer who does not perform his official duty without just cause.

*If the officer is no day off, then one cannot file an

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without just cause Art. 28: Unfair competition Art. 29: Civil action when guilt is not proved beyond reasonable doubt Art. 30: Civil obligation arising from a criminal offense Art. 31: Civil obligation not arising from the felony

Art. 32: Civil action for violation of constitutional rights Art. 33: Civil action for violation of private rights

Art. 34: Members of the Police Force

- A public officer who commits a tort or other wrongful act is still liable to the victim. - Necessary to promote a system of free enterprise and a fair chance for others to engage in business and earn a living. - If in a criminal case, the accused is not proven guilty beyond reasonable doubt a civil action may be made and the degree of proof necessary is only a preponderance of evidence which means that more evidence is adduced to prove the guilt of the accused compared to that to defend him. - A civil obligation arising from a criminal offense only needs a preponderance of evidence as the quantum of proof, - Usually a criminal proceeding, if commenced, must be terminated before a civil proceeding can begin. If a civil proceeding has begun and later on a criminal proceeding is filed, the civil proceeding is put on hold until the criminal proceeding has finished. However when the civil obligation is separate from the crime committed it may proceed independently of the criminal proceeding. - Certain injuries do not arise from the commission of a crime. Ex. A bus driver crashes the bus because he is drunk. The civil action here is based from the breach of the contractual obligation of all common carriers to take extra diligence in driving his passengers. The criminal action here is based on the driver’s criminal negligence. The first is governed by the civil code and the second is from the Revised Penal Code. - Necessary to have an absolute separate and independent civil action for the violation of civil liberties for the effective maintenance of democracy.

action against him.

- Principle is to allow the citizen to enforce his rights regardless of State action so that citizens will not depend upon the government for the vindication of their own private rights. - Includes fraud, defamation, physical injuries and are understood in their ordinary sense.

*Criminal negligence (reckless imprudence) is not included in this article, thus an independent action for such cannot be made independently from the criminal prosecution.

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When there is danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible. An independent civil action can be instituted wherein a preponderance of evidence is all that is required.

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Art 35: Reservation of civil action

- When a person claiming to be injured by a criminal offense, charges another but the judges fails to find any crime to have been committed or if the prosecuting attorney refuses/fails to institute criminal proceedings Art. 36: Prejudicial Questions - The general rule is that the criminal case takes precedence; an exception would be if there exist prejudicial questions, which should be resolved before the criminal case. PREJUDICIAL QUESTION: That which must precede the criminal action that which requires a decision before a final judgment is rendered in the principal action where the said question is closely connected. The resolution of the Prejudicial question will determine if the criminal action may proceed. Ex. A and B got married. B then married C. A filed a case for bigamy against B. B also filed a civil case against C (the second spouse) contending that she was intimidated into marrying C. The civil case to determine whether there was intimidation or not must necessary be resolved before the bigamy case. If B was indeed intimidated in marrying C, there is no bigamy. CIVIL PERSONALITY: GENERAL PROVISIONS Art. 37: Juridical Capacity and JURIDICAL CAPACITY: fitness to be the subject of legal relations, inherent in Capacity to Act. every person and is lost only through death. - Acquired when one is conceived (rights of the unborn child) CAPACITY TO ACT: power to do acts with legal effect, may be acquired of lost - Acquired when one reaches the age of majority, lost in cases like civil interdiction1. Art. 38: Restrictions on the Restrictions on the capacity to act: Minority, insanity or imbecility, state of being capacity to act a deaf-mute, prodigality, and civil interdiction are mere restrictions on the capacity to act. – Do not exempt the person from certain obligations. Art. 39: Modification or limit Modify/limit capacity to act: age, insanity, imbecility, the state of being a deafcapacity to act mute, penalty, prodigality, family relations, alienage, absence, insolvency, and trusteeship. NATURAL PERSONS Art. 40: Commencement of - Birth determines personality but the conceived child shall be considered Civil personality born for all purposes that are favorable to it. Provided that the conceived child is later born with the conditions in Art. 41. Art. 41: conditions to - The fetus is considered born if it is alive from the time it was completely

* Both men and women are qualified from all acts of civil life when they reach the age of majority (18 years old)

-For purposes of inheritance and succession, a child conceived at the time of death of the decedent can s

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An accessory penalty for the commission of an offense, which deprives the offender during the time of his sentence the rights of parental authority, or guardianship, right to manage his property and the right to dispose of such property by any act.

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determine when the child is considered conceived. Art. 42: Civil personality extinguished at death

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Art. 43: Doubt between the death of two or more persons

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JURIDICAL PERSONS Art. 44: Who are juridical persons Art. 45: What governs juridical persons Art. 46: Rights and obligations of juridical persons

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delivered from the mother’s womb. BUT if the fetus was alive in the womb for less than 7 months it is not deemed born if it dies within 24 hours it is delivered form the womb. Death puts an end to civil personality Dead person continues to have personality only through contract, will, or as determined by law. – Creditors can still claim from the estate of the deceased any obligation due to them. No human body shall be buried unless the proper death certificate has been presented and recorded however during an epidemic bodies may be buried provided that the death certificate be secured within 5 days after the burial. Applies to persons who are called to succeed each other like mother and child. (Necessary to determine the amount of inheritance one is to receive, transmission of rights, etc.) If there is no proof as to who died first, they are presumed to have died at the same time and thus no transmission of rights from one to the other. Proof of death cannot be established from mere inference or presumptions. It must be established by clear positive evidence.

JURIDICAL PERSON: Being of legal existence susceptible of rights and obligations. 1. State: organized corporate society under a government with the legal competence to exact obedience of its commands. It can enter into treaties and contracts. - The state cannot be sued without its consent (implied or expressed) 2. Political subdivisions: municipal corporations that consist of provinces, cities and municipalities. They can be sued because it is granted by their charters but they are generally not liable for torts committed in the discharge of their governmental functions. 3. Corporation: An artificial being created by operation of law and has the powers and attributes granted to it by the law, which created it. 4. Partnership: 2 or more persons bind themselves to make contributions to a common fund with the intention of dividing the profits among themselves. *Corporations, partnerships, and associations for private interest and purpose may be granted a separate and distinct personality from the shareholders or

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Art. 47: Dissolution of corporations

members (this is known as the veil of corporate fiction). However, this veil may be pierced, thus making the shareholders and members liable, when the fiction is used to defeat public convenience, justify wrong, protect fraud, defend crime, perpetrate deception, etc. *State and political subdivisions, other corporations, institutions, and entities for public interest or purpose are governed by the laws creating them. *Private corporations are regulated by laws of general application on the subject *Partnerships are governed by the provisions of this Code concerning partnerships *Juridical persons may acquire and possess property of all kinds and incur obligations in conformity with the laws and regulations of their organization. - Upon the dissolution of such entities mentioned above, their properties and other assets should be disposed of in pursuance of law or the charter creating it. - If there is nothing in the law, it shall be applied for a similar purpose for the benefit of the region/province/city it is in.

CITIZENSHIP AND DOMICILE Art. 48: Who are Citizens of the Philippines: citizens of the 1. Those who are citizens at the time of the adoption of the Philippine Philippines Constitution. 2. Those born in the Philippines, before the adoption of the said constitution, Art. 49: Naturalization with foreign parents who have been elected to public office in the and reacquisition of Philippines. loss citizenship 3. Those whose Fathers are Filipino 4. Those whose mothers are Filipino and elect Philippine Citizenship when Art. 50: Domicile of they reach the age of majority. natural persons 5. Those who are naturalized DOMICILE: Fixed permanent resident, a place wherein, although one may be absent from, one still has the intention of returning and remaining for an unlimited time. There is only one domicile. - A minor follows the domicile of his parents Change in Domicile: 1. An actual removal or an actual change or domicile 2. A bona fide intention of abandoning the former domicile and establishing a new one. 3. Act, which correspond with the purpose (physical presence in the area, move family in area, register as a voter in the area, etc.)

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Jus Sanguinis: Refers to citizenship by blood. This is the concept followed in the Philippines. Jus Soli: Refers to citizenship on the basis of the place of birth Acquisition of Citizenship: for a foreigner to be able to become a Philippine citizen, a proper petition shall be filed in the proper court. Ground for Reacquisition of Citizenship: 1.By naturalization 2.Repatriation of deserters of the Army, Navy or Air Corps. (Woman who has lost her citizenship by reason of marriage

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Art. 51: Domicile of juridical person

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RESIDENCE: Indicates a place of abode whether permanent or temporary, not necessarily the domicile. There may be more than one residence. - When the law creates or recognizes a juridical person but doesn’t fix the domicile it shall be understood to be the place where it has legal representation

to an alien may be repatriated after the termination of her marital status) 3.By direct act of congress

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THE FAMILY CODE OF THE PHILIPPINES: Took effect on August 3, 1988 signed by President Corazon Aquino (Executive Order 209) REQUISITES OF MARRIAGE: Article Summary of Annotation Additional Info/Exceptions/Connected with: Art. 1: Marriage is a special contract of permanent Nature of Marriage: *Marriage as a special union between a man and a woman entered into in -Marriage is one of the “basic civil rights of man.” The contract cannot be restricted accordance with the law for the establishment of freedom to marry has been recognized as a vital by discriminatory policies of conjugal and family life. personal right towards the pursuit of man’s happiness. private individuals or It is the foundation of the family and an inviolable -Still considered as a special civil contract regulated by corporations. social institution whose nature, consequences, and law due to the high state interest in protecting and incidents are governed by law and not subject to MAIL-ORDER BRIDE: safeguarding the family. stipulation, except that marriage settlements may fix -A contract to marry, unlike other contracts, cannot be considered as a criminal the property relations during the marriage within the modified or changed. Once it is executed a relation is offense because marriage is limits provided by the code. formed between the parties that cannot be altered. The vested with public interest. law steps in to hold or bind the parties together. (Connected with the Anti-A subsequent marriage between the rapist and raped Trafficking Act) victim extinguishes the criminal action or penalty of the Acts punished: rapist. In case of marital rape2 1. Carry on such a business 2. To advertise the promotion Marriage Status: Marriage creates a social status, of such acts. which the state is interested in protecting. It is a case 3. Solicit or attract or any where a double status is created, involves and affects Filipino woman to become a two persons. member in a club that matches women for marriage Marriage in International Law: men and women of full to foreign nationals for a fee. age without any limitation due to race, nationality or 4. Use the postal service to religion have the right to marry and found a family. promote the prohibited acts. 1. Universal Declaration of Human Rights 2. International Covenant on Economic, Social and VALIDITY OF MARRIAGE: Cultural Rights governed by the law effective 3. International Covenant on Civil and Political Rights. at the time of the celebration of the marriage. 2

Marital rape is now considered a crime wherein the legal husband is the offender and the wife is the victim. Prior to this marital rape was not considered a crime because it was considered the right of the husband to have sexual intercourse with his wife whenever he pleased.

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Constitutional Protection: The State recognizes the sanctity of family life and shall protect and strengthen it. The state also recognizes marriage as an inviolable social institution and the foundation of the family and shall be protected by the state. * The constitutional provisions on marriage however do NOT mean that legislature cannot enact a law allowing absolute divorce. Marriage is subject to the control of the legislature but it must not contravene mandates of Constitution.

Art 2: No marriage shall be valid unless these essential requisites are present: 1. Legal capacity of the contracting parties who must be a male and female. 2. Consent freely given in the presence of the solemnizing officer

Property Relations: Only property relations may be fixed and arranged in a marriage settlement prior to the marriage ceremony. However it must still follow the mandatory provisions of the Family Code. LEGAL CAPACITY: Marrying age is 18 years old and above, thus if one of the contracting parties is below 18 years of age, the marriage is void. - They cannot be related to each other as provided by Art. 37 and Art. 38 (incestuous marriages and those against public policy). - There should be no previous valid subsisting marriage; otherwise the subsequent marriage will be bigamous. DIFFERENT SEX: There should be a male and a female. Marriage is desirable due to the importance of procreation which is one of the reasons why same sex marriages are prohibited (due to the impossibility of reproduction)

Sex change: has not been shown that sex reassignment surgery would allow one to produce human beings. Thoughts to ponder: Marriage should no to be enjoyed only by heterosexual couples. The right to marry, found a family, identity, personality are all rights of human beings. *Parties must be personally present, proxy marriages is prohibited in the Philippines.

CONSENT: 1. Must be freely given 2. Made in the presence of the solemnizing officer - Absence of consent makes the marriage void. However if there is consent but such was obtained through force, fraud, undue influence, etc then it is only voidable.

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Art. 3: The formal requisites of marriage are: 1. Authority of the solemnizing officer 2. A valid marriage license except in the cases provided for in Chapter 2 of this title 3. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses of legal age.

AUTHORITY OF THE SOLEMIZING OFFICER: - Those enumerated in Article 7, he must have the authority. Thus a priest who has not renewed his license to marry does not have the authority and cannot be considered for marriage. - The Local Government Code (Jan. 1, 1992) provides that a mayor of a city or municipality may now solemnize marriages.

Art. 4: The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2) (when one of the contracting parties believed in good faith that the solemnizing officer had authority then the marriage is valid)

Chapter 2 Title 1 of Family Code: exempt from license 1. Article 27: Both parties are in articulo mortis marriage will be valid even if the ailing party survives. 2. Article 28: Residence is in a remote place  In both cases the solemnizing officer must state in an affidavit that the marriage was performed as such and that he took necessary steps to ascertain the ages and that there were no legal impediments to the marriage. 3. Article 33: Marriages among Muslims or ethnic cultural communities, as long as performed in accordance with their customs, rites, practices. 4. Article 34: Cohabitation by the couple for 5 years * Muslims are governed by Code of Muslim personal laws of the Philippines and not the Family code but the other ethnic groups must comply with the other requisites as they are governed by the Family code. 5. Article 34: Cohabitation between man and woman for at least 5 years with no legal impediment at time of marriage.

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. Art. 5: Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38 (incestuous marriages and those against public policy.) may contract marriage. Art. 6: No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses

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VALID MARRIAGE LICENSE: - Lasts for 120 days from the date of issue and effective

*Presumption leans towards the legality of the marriage thus the authority of the officer is presumed absence the showing any proof to the contrary. Merely Irregularities in marriage license: 1. Marriage license was made in a different place other than their residence. 2. Name stated therein is different or misspelled 3. Misrepresentation of age (but has to be emancipated—18 years and above) 4. Non-disclosure of prior marriage and divorce 5. Falsely stated that he or she had not been previously married. 6. Falsely swore that he or she is not under guardianship. * If the couple have a valid marriage license but forgot to bring it then marriage will be valid (but if they don’t have one and procured one after the marriage ceremony the marriage will be void)

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of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which hall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of marriage in articulo mortis, when the party is at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer.

Art. 7: Marriage may be solemnized by: 1. Any incumbent member of the judiciary within the court’s jurisdiction 2. Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered within the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect 3. Any ship captain or airplane chief in cases mentioned in Article 31 4. Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32 or 5. Any consul-general, consul or vice consul in

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within any part of the Philippines only. MARRIAGE CEREMONY: - Family code only recognizes ceremonial marriages but there is no prescribed form of marriage ceremony. - The minimum requirement is that the parties personally appear before the solemnizing officer and declare that they take each other in the presence of at least 2 witness of legal age. * Declaration does not have to be vocally expressed may be inferred by the words used, the manner the ceremony was made, etc. If a wedding took place there is a presumption that there was an exchange of vows. * The absence of 2 witnesses of legal age is merely an irregularity in the ceremony and does not affect the validity of the marriage.

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There is a need to limit the persons who can solemnize marriages since marriage is an important institution the state wants to safeguard and protect. - Because the state is interested in marriage, it becomes a party thereto by manifested in the consent required and granted to limited number of officers. JUDGES: they can only solemnize marriages within their jurisdiction and they must be incumbent. Court of Tax Appeals, Sandiganbayan, Court of Appeals, Supreme Court: National jurisdiction  Absence of jurisdiction would mean the absence of the authority of the solemnizing officer and thus the marriage will be null and void. PRIEST/MINISTER OF A CHURCH OR RELIGIOUS SECT: he should be authorized by the church to do so, he must be registered with the civil registry, and at least one of the contracting parties belongs to his or her

* Common law marriages, which are non-ceremonial, are not recognized in the Philippines.

* Stopovers during a flight or voyage are still considered part of the journey. *If the host country allows marriages to be solemnized by consuls then even if between a Filipino and nonFilipino, the marriage will still be valid in accordance with Art. 26, which recognizes international comity.

GOOD FAITH OF PARTIES: if the person who solemnized the marriage did not legally have the authority to solemnize a marriage, if both

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the case provided in Article 10.

Art. 8: The marriage shall be solemnized publicly in the chambers of the judge or in open court in the church, chapel or temple, or in the office of the consulgeneral, consul or vice-consul, as the case may be, and not elsewhere, except in the cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing

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church. SHIP CAPTIAN/PILOT: one of the parties must be at the point of death, the marriage must be between the passengers or crewmembers, and the ship or plane must be at sea or in flight.  An assistant pilot has no authority to solemnize marriages even if the main pilot dies. MILITARY COMMANDER: He or she should be a military commander of a unit, he or she must be a commissioned officer (his rank should start from second lieutenant), a chaplain should have been assigned to the unit and such chaplain is absent, the contracting parties must also be in articulo mortis either members of the military operation or civilians, must be within military zone (there should be widespread military activity not merely practice). CONSUL-GENERAL, CONSUL, OR VICE CONSUL: they can only solemnize marriages abroad when both the contracting parties are Filipino. * They also perform the duties of a local civil registrar (like issuing the license etc.) * No matter where they are the solemnities and requirements mandated by Philippine Law shall be observed. MAYOR: Pursuant to the Local Government Code, the mayor of a city or municipality can now solemnize marriages. * When the mayor cannot perform his duties, the acting mayor has the authority to solemnize marriages. - Not mandatory but directory in nature. - Its non-compliance will not make the marriage void but will only cause civil, criminal, or administrative liability. Exceptions to venue stated: 1. When the marriage is in articulo mortis 2. When the marriage is in a remote place (transportation etc. is difficult to come by)

or one of the contracting parties believed that such a person did have the authority the marriage will be valid. Ex. A priest did not renew his license to marry therefore does not have the authority to marry. If one of the contracting parties knew of this but the other did not the marriage is still valid. HOWEVER, they must be one of the people who can be authorized if they are not the marriage will be void (ignorance of the law excuses no one) Ex. A couple goes to a janitor to get married. Even if both parties are in good faith in thinking that a janitor can solemnize a marriage they should know who by law are authorized to.

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in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. Art. 9: A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. Art. 10: Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. Art. 11: Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: 1. Full name of the contracting parties 2. Place of birth 3. Age and date of birth 4. Civil Status 5. If previously married, how, when and where the previous marriage was dissolved or annulled 6. Present residence and citizenship 7. Degree of relationship of the contracting parties 8. Full name, residence and citizenship of the father 9. Full name, residence and citizenship of the mother 10. Full name, residence and citizenship of the guardian or person having charge, in case the contracting parties has neither father nor mother and is under the age of twenty one

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3. When requested by both parties in writing.

- The marriage license should be procured from the civil registrar of the city or municipality where either of them resides. However if they obtain it from another place it is merely an irregularity and does not affect the validity of the marriage. - The consular officials absorb the duties of the local civil registrar and the solemnizing officer when Filipinos wish to be married abroad. - The ceremony and requirements should be in accordance with Philippine law.

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Stating all relevant facts needed in order to determine legal capacity to marry and the eligibility of the parties. - Main purpose is to discourage deception, and relieve from doubt the status of parties who live together. - Provides evidence of the status and legitimacy of offspring. MARRIAGE APPLICATION: the civil registrar has to process and issue a marriage license. Even if the civil registrar knows of a legal impediment he cannot discontinue unless stopped by the court. (This is to prevent bribery and abuse by the civil registrar)

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years. The applicants, their parents or guardians shall not be required to exhibit their residence certificate in any formality in connection with the securing of the marriage license. Art. 12: The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality.

- Emancipation is obtained at 18; marriage no longer emancipates a child because they must be 18 years of age to marry. - Contracting parties 18 years old and above but BELOW 21 years of age must obtain the consent of their father, mother, surviving parent, or guardian in the order mentioned. (Non-compliance makes the marriage annullable)

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding

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articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications.

Art. 15: Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefore. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

- Absence of parental advice does not affect the marriage. - Only delays the issuance of the marriage license for 3 months but after 3 months the license must be issued.

Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph Art. 17: The local civil registrar shall prepare a notice, - It is the duty of the civil registrar to post a notice which shall contain the full names and residences of informing the public of the impending marriage. The the applicants for a marriage license and other data purpose of which is so that persons having knowledge given in the applications. The notice shall be posted for of any impediment to the marriage can inform the local ten consecutive days on a bulletin board outside the civil registrar. office of the local civil registrar located in a conspicuous - It is to be posted for 10 consecutive days on a bulletin place within the building and accessible to the general board outside the office public. This notice shall request all persons having - The civil registrar shall be issued after the period of knowledge of any impediment to the marriage to advise publication. the local civil registrar thereof. The marriage license shall be issued after the completion of the period of

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publication. Art. 18: In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. Art. 20: The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically canceled at the expiration of the said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued Art. 21: When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries

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- If an impediment is made known to the civil registrar he shall merely note it down but he must nonetheless issue the license. This is because the impediments may not be valid at all. - The purpose of which is to prevent graft and corruption on the part of the civil registry.

EXCEPTIONS: 1. The courts direct civil registry to refuse giving out the license 2. When the requited certificate of legal capacity of foreigners is not given (Art. 21)

- If the marriage license was issued despite court intervention, the marriage will still be valid but the parties responsible may be criminally or administratively liable.

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The marriage license is only valid within the Philippines and not abroad. It is good for 120 days from the date of issue.

A certificate of legal capacity is meant to show that a foreigner is capacitated to marry in his or her country. The Philippines adheres to the national law of the contracting parties with respect to their legal capacity to contract marriage. Ex. In the US 16 years old is the age when one can contract marriage. A 16-year-old US citizen may

* The civil registry cannot issue a license without the certificate of legal capacity however if the civil registry does issue the marriage will still be valid.

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shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

contract marriage in the Philippines provided that he gives a certificate from his embassy stating that 16 years old is the legal age to marry. - If both are citizens of a foreign country and they are married in their embassy there is no need to follow the requirement of marriage in the Philippines, only those of their country. -If one is a foreigner and one is a Filipino even if they marry in the consul of the foreigner the certificate of legal capacity and a marriage license is still necessary. Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: 1. The full name, sex and age of each contracting party 2. Their citizenship, religion and habitual residence 3. The date and precise time of the celebration of the marriage 4. That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title 5. That either or both of the contracting parties have secured the parental consent in appropriate cases 6. That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases and 7. That the parties have entered into marriage settlement, if any, attaching a copy thereof. Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Article 8.

Art. 24: It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits

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*Presumption is always in the validity of marriage. Proofs of marriage: 1. Marriage contract or certificate 2. Photocopies of the certificate or contract from the local civil registry 3. Family bible 4. Baptismal, birth certificates of kids 5. Judicial decisions 6. Testimonies of parties, witness, solemnizing officers 7. Cohabitation and conduct 8. Statement in a will * A certificate of marriage made years after the marriage is inadmissible as evidence.

- The local civil registrar is the government official charged with the preparation and the keeping of all the official documents.

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filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

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Art. 26 refers to formal requisites only, however the marriage must still be solemnized. - Marriages that are solemnized abroad and are recognized as valid there will also be recognized as valid here (international comity) Ex. If in Vietnam a doctor is authorized to solemnize a marriage and a Filipino couple gets married in Vietnam by a doctor such marriage will be considered valid in the Philippines. PROOF OF FOREIGN MARRIAGE: necessary to prove the foreign law and then prove the celebration of marriage. If the law of the other state is not pleaded nor proved the laws of the Philippines will be presumed to be similar to that of foreign laws. REMEMBER THE LAWS: ART. 15: laws relating to family rights and duties, or to the status, conditions and legal capacity of persons are binding upon citizens of the Philippines even living abroad. ART. 17: prohibitive laws concerning persons, their acts or property and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country

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EXCEPTIONS to international comity: -Either or both contracting parties are Filipinos and below 18 years of age -Polygamous and bigamous marriages recognized abroad will not be valid here. -Marriage abroad where there is mistake of identity of the other contracting party is not recognized here. -Marriage by a Filipino to one who is psychologically incapacitated is not valid here -Marriages that are incestuous are not valid here even if celebrated abroad and valid there. (Art. 37) -Marriages against public policy are not valid here either (Art. 38) -Common law marriages are not recognized here, the marriage must still be solemnized and not contracted. -Same sex marriages

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ABSOLUTE DIVORCE: Absolute divorce is not recognized in the Philippines; even if the couple was married abroad the divorce will not be recognized here if one of them is a Filipino. The divorce may be recognized in the foreign country where it was obtained but not in the Philippines. But the divorce of a foreign citizen abroad is recognized in the Philippines as the Philippines recognizes legal capacity of a foreign person. *If a Filipino changes citizenship then he can get a divorce and if he reacquires his Filipino citizenship after that the divorce will still hold. - If a Filipina marries a foreigner and the foreigner obtains a divorce, the Filipina can marry. - If the Filipina obtains a divorce although not recognized in the Philippines, it will be recognized against the foreigner and thus the foreigner will not have legal standing to sue for adultery or claim for property after the divorce. MARRIAGES EXEMPT FROM LICENSE REQUIREMENT Art. 27: In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. Art. 29: In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other

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between Filipinos are not valid even if done abroad. * If a Filipino contracts a foreign marriage which is null and void under the laws of the state where it has been solemnized then such marriage will likewise be null and void in the Philippines. *If a marriage celebrated abroad is invalid in that country but considered valid in the Philippines, the marriage will still be invalid. The law where the marriage has been solemnized shall apply.

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Solemnizing officers and the mayor are empowered to solemnize marriages even without a marriage license if either or both of the contracting parties are at the point of death. - Even if the ailing party survives after the marriage, the marriage will still be valid. - This envisions a situation wherein the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnize without a marriage license. - The solemnizing officer here are those authorized to solemnize under Article 7 and the mayor provided that they solemnize the

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person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. Art. 30: The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. Art. 31: A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.

marriage within their jurisdiction and within the authority given to them.

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Art. 32: A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.

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Art. 33: Marriages among Muslims or among members of the ethnic cultural communities may be performed

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A pilot or ship captain may solemnize only marriages at the point of death while the plane is in flight or the ship is at sea even during stopovers (it is still considered part of the flight/voyage). They can only solemnize marriages between their passengers and crew members The military commander must be a commissioned officer (his/her rank should start from 2nd lieutenant, ensign and above) He should be a commander of a unit. There should be a chaplain assigned to the unit The marriage should be at the point of death and in the absence of the chaplain assigned The marriage must be solemnized within the zone of military operations. The contracting parties may either be member of the armed forces or civilians. Marriages between parties that belong to ethnic groups, pagans or Muslims are exempt

* If something happens to the main or principal pilot the second in command cannot solemnize marriages. (They are not authorized to by law)

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validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. -

Art. 34: No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage.

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only from procuring a marriage license. The marriage must still be solemnized in accordance with their customs, rites and practices. Muslims are governed by the Code of Muslim Personal Laws of the Philippines thus they are not governed by the Family Code unlike other ethnic groups who do not have separate laws. Persons cohabiting for at least 5 years living together as husband and wife are exempt from obtaining a marriage license. At the time of marriage, they should be without any legal impediment to marry each other. Thus during the 5 year period, it is not necessary that there is no legal impediment it is only necessary at the time of marriage that there is none. The parties shall state the fact of their cohabitation and the absence of any legal impediment to marry in an affidavit under oath.

*The solemnizing officer shall also state under oath that he ascertained the qualifications of the parties and that he found no legal impediment. The fact that the officer to investigate shall not invalidate the marriage.

Matters that don’t affect the validity of the marriage: Article 18: if the civil registry gives the license despite the courts ordering an injunction to order the civil registry not to give the marriage license. Article 21: if the civil registry gives the license despite absence of certificate of legal capacity of foreigners. Article 35: When the solemnizing officer failed to investigate whether or not there was an impediment to the marriage in marriages after 5 years of cohabitation.

MARRIAGES VOID AB INITIO: Not valid from its inception. No rights can flow from it and can never be ratified. (Judicial declaration of nullity). Art. 35: The following marriages shall be void from the Article 2, 3, 4: when all the essential and formal requisites of a marriage are absent beginning: - Only marriages declared by the legislature, as void should be treated as such. (1) Those contracted by any party below eighteen There can be no other void marriage except those provided by law.

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years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53.

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Void Marriage Can’t be a source of rights Can’t be ratified

Voidable Can be source of rights Ratified by prescription or cohabitation Can only be attacked directly Only assailed during lifetime of parties Action prescribes

Can be attacked collaterally. Can be questioned after death of parties Action for nullity has no prescription - Estoppel or acquiescence does not apply to remedy the infirmity of a void marriage. Thus if one of the parties stated under oath that they were 25 when they were actually 16 the marriage is void despite the oath. - Good faith and bad faith generally is immaterial in void marriages except: when either of the parties believed in good faith that the solemnizing officer had the authority to solemnize the marriage when in fact he had none. Second, in case the spouse disappears for 4 years or 2 years in proper cases the present spouse may marry again if there is a judicial declaration of presumptive death and at the time of the celebration of marriage either spouse is in good faith that the absent spouse is still absent. Ex. W is married to H and W disappears for 4 years and is judicially declared presumptively dead. H later on is to marry W2. W2 however sees W the day before the wedding but does not tell H. As long as H is in good faith and does not know of the presence of W the marriage will still be valid. - Generally evidence other than a judicial declaration of nullity can be presented except (direct attack needed) for purposes of remarriage, validity of marriage is essential to the determination of the case, and when a donor desires to revoke a donation propter nuptias. BELOW 18 YEARS OF AGE: not capacitated to marry even if with parental consent. History: 14 male, 12 female: minimum age for effective procreation 16 male, 14 female: Maturity and responsibility were taken into consideration. Gender Roles: ability of men to provide and ability of women to care for the household. 18 for both: No significant difference in terms of maturity of male and female. Science shows below 18 leads to unsafe pregnancies. NON-AUTHORITY OF SOLEMNIZER: Exception: If EITHER or both of the contracting parties believed in good faith that he had

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Art. 36: A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

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such authority. The good faith of the party is what is referred to not the solemnizing officer. - Unless it was ignorance of the law then the marriage will be void. The person must be one of the people in Article 7 thus if a couple is married by a janitor, them believing that a janitor can celebrate a marriage, the marriage will be void. Exception: Marriage was done abroad and such officer is valid in that country BIGAMOUS OR POLYGAMOUS MARRIAGE: law prohibits married men or women from contracting a subsequent marriage when their consort is still alive. Exception: - That mentioned in Article 41 regarding appearance of a spouse after a declaration of presumptive death. - Those provided for under the Muslim code. - When the first marriage was actually void with a judicial declaration of nullity. Without judicial declaration of nullity then 2nd marriage will be void under Article 40. MISTAKE IN IDENTITY: An instance of fraud, which is a ground for the nullity of the marriage. Here the contracting party absolutely did not intend to marry the other, as the same is not the person he or she actually knew before the marriage. Does not include: mistake in name, character of person, attributes, age, social standing, religion, pedigree, pecuniary means, temperaments, acquirements, condition in life, previous habit. VOID UNDER ARTICLE 53: Marriages that have annulled or declared null and void must undertake the liquidation, partition and distribution of their properties, delivery of presumptive legitimes, etc. to be able to remarry. Psychological incapacity to comply with the essential P.I. Insanity marital obligation of marriage at the time of marriage, Cannot be Can be even if it becomes manifest after the solemnization of cured cured the marriage. No consent Consent can - Not defined and thus left on a court-to-court present be given basis. A person may actually be efficient in since he during lucid doing other things such as his profession but does not interval with regards to his married life it can be know the different. true meaning - Not just stubborn refusal but attributed to of marriage psychological causes (not necessarily insane) - Lacking in the exercise of the judgment not PROOF to show P.I.: lack of judgment 1. Observe of duties

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True inability to commit oneself to the essentials of marriage – psychosexual disorders or other personality disorders Inability to commit to the essentials of marriage – procreation, education of offspring, community of life and love

Must be characterized by: 1. Gravity- grave or serious 2. Juridical antecedence – rooted in history of the party and may manifest after the marriage. 3. Incurability

Art. 37: Marriages between the following are

Jurisprudential Guidelines (CA v. Molina): 1. Burden of proof to show the nullity of marriage belongs to the plaintiff. 2. Root cause must be medically or clinically identified, alleged in the complaint, sufficiently proven by experts, clearly explained by the decision, must be psychological not physical. 3. Proven to be existing at the time of the celebration of the marriage 4. Must be incurable (may be absolute or relative to the given spouse) 5. Must be grave 6. Essential marriage obligations are those embraced in articles 68 to 713 and Articles 220, 221, 225 with regards to parents and children. 7. Interpretations in National Appellate Matrimonial tribunal of Catholic Church though not binding are persuasive Reasons to Condemn Incestuous Marriages:

(living together, etc.) 2. Procreation 3. Obligation of parents to children. 4. Senseless and protracted refusal to have intercourse 5. Unreasonable attachment to ones other family or barkada 6. Transvestism 7. Indulgence of private fantasy 8. Alcohol/substance abuse 9. Extreme immaturity

* The relationship being

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Article 68: husband and wife are obliged to live together, observe mutual love, respect, and fidelity, and render mutual help and support. Article 69: Husband and wife shall fix the domicile and in case of disagreement the court shall decide. Article 70: spouses are jointly responsible for the support of the family and the expenses for such support and other conjugal obligations shall be paid from community property, income or fruits of separate property, or separate property. Article 71: management of household shall be right and duty of both spouses.

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incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. Art. 38: The following marriages shall be void from the beginning for reasons of public policy (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

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1. 2. 3. 4. 5.

Abhorrent to nature legitimate or illegitimate is Brings about confusion of rights and duties immaterial Deficient and degenerate offspring Control sex rivalries within families To guide one towards the creation of new nuclear family 6. Brings about confusion with status - Simulates blood relations although legal fiction (bond created by law, against public policy) COLLATERAL BLOOD RELATIVES: may cause the same reasons as Art. 37 but to a lesser degree. COLLATERAL HALF-BLOOD RELATIVES BY CONSANGUINITY: the law does not provide that marriages between collateral blood relatives by the half-blood are prohibited. Case Law: In Re: Simms Estate - Because of specification in brothers and sisters and no specification with uncles and nieces, marriage between uncles and nieces are not prohibited - Unlike ruling in Audley where it deemed it was unnecessary - Marriage between uncles and nieces who are half-blood is valid due to the presumption in favor of marriage. RELATIONSHIP BY AFFINITY (made through marriage): The only marriages by affinity prohibited in the Family Code are marriages between stepparents and stepchildren and parents-in-law and children-in-law. (May destroy the peacefulness in family relations)  Stepbrother and stepsister can marry each other since not included in the prohibition. *In the event that the marriage is annulled or nullified or in the event that the marriage is terminated by death affinity is terminated and thus those that were prohibited due to affinity can now marry each other. Unless there are living issues (children) in whom the blood of the parties continue to commingle. ADOPTIVE RELATIONSHIP: Who they cannot marry: Adopter Adopted The adopted The adopter The surviving spouse of the adopted The surviving spouse of adopter (Envisions that the marriage was (Envisions that the marriage was terminated due to death. But if the terminated due to death. But if the marriage was terminated after the finality marriage was terminated after the finality of a nullity or annulment decree then they of a nullity or annulment decree then they

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can get married)

Who can they marry: Adopter Children of adopted Natural parent Other relatives Spouse of adopted if alive and not married to adopted

can get married) Legitimate children of adopter Other adopted children of the adopter

Adopted Parents of adopter Illegitimate child of the adopter Other relatives Spouse of adopter if alive and not married to adopter

INTENTIONAL KILLING OF SPOUSE: The guilty party must be animated by an intention to marry the other person, if not then not considered against public policy. Ex. A wanted to marry B. B was married to C. A kills C because C stole from A. Then A later on marries B. Such a marriage is valid. *No criminal conviction is necessary mere preponderance of evidence is required to prove the killing. Art. 39: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe

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Art. 40: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

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Time to file an action for declaration of nullity of a marriage or to invoke such nullity as a defense does not prescribe. Either party in a void marriage can file a nullity case even though such party is the wrongdoer. Only husband and wife can file a court case declaring the marriage void. But it can still be collaterally attacked by any interested party in any proceeding where the determination of the validity of marriage is necessary to give rise to certain rights. A judicial declaration of marriage is the only acceptable proof so that a party can contract a subsequent valid marriage. Without it the subsequent marriage will be considered void. In connection with it, Articles 52 and 53 which

* The subsequent marriage is not considered bigamous since the first marriage is not valid. In a bigamous marriage the first subsisting marriage is

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In relation to: Art. 52: The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. Art. 53: Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

Art. 41: A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a wellfounded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Art. 43: The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be

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has to do with the liquidation, partition and distribution of the properties without which the marriage will likewise be void. BIGAMY: Committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved or before the absent spouse has been declared presumptively dead by judgment. - Marriage becomes void not because of bigamy but because of certain impositions in law that must be done before contacting a second marriage. *Without article 40 one cannot perform Article 52. - A declaration of presumptive death is needed for the absentee in order to contact a new marriage. Article 42: The subsequent marriage made will become void with the recording of the affidavit of reappearance of the subsequent spouse. Such notice will be filed in the civil registry of the residence of the parties in subsequent marriage, and give them due notice- ONLY CASE WHERE MARRIAGE IS TERMINATED EXTRAJUDICIALLY. Any interested party can file for the affidavit of reappearance. Exception to 42: if the affidavit is fraudulent then it is ineffectual.

- Applies to Article 40, Article 41 and voidable marriages. STATUS OF CHILDREN: Children conceived during the subsequent marriage contemplated in Art. 41 are legitimate even if one of the contracting parties is in bad faith. EFFECT OF TERMINATION ON THE PROPERTY REGIME: The property regime shall be dissolved and

valid. Bigamy envisions 2 valid marriages. If the first or the second marriage is void then there can be no bigamy.

Exception: Prior spouse has been absent for 4 consecutive years and there is a well founded belief (must exercise due diligence to ascertain whereabouts or if she is dead or alive) that absent spouse is dead (2 years will suffice if there was danger of death)

*Donation made between persons who are guilty of adultery or concubinage at the time of the donation is void.

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dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

Art. 44: If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law.

liquidated. After the payment of all debts, the spouses shall divide the net profits of the property equally or in accordance with the stipulated sharing. If a spouse acted in bad faith, the guilty spouse shall not get his share in the net profits (his/her share will be forfeited in favor of the common children, if none the children of the guilty spouse by a previous marriage, if none to the innocent spouse. DONATIONS BY REASON OF MARRIAGE: If both parties are in good faith, the donation shall be valid. If the donee acted in bad faith in contracting the marriage, the donation by reason of marriage is terminated by operation of law. If both are in bad faith neither can recover what they have given. DESIGNATION AS BENEFICIARY IN INSURANCE POLICY: The innocent spouse has the choice of revoking the beneficiary in an insurance policy even if the policy is irrevocable. (Should inform the insurance company) DISQUALIFICATION AS TO INHERITANCE: The spouse who acted in bad faith shall be disqualified to inherit from the innocent spouse. If both spouses are in bad faith according to Article 44 the marriage is void and the parties cannot inherit. - The marriage shall be considered void only if both spouses in the subsequent marriage are in bad faith. - The good faith of the spouse must be present up to the time of the celebration of the subsequent marriage.

VOIDABLE MARRIAGES: valid up to the point when they are annulled. These are the only grounds, which can be considered for annulment (exclusive). Article Annotation Exception/ Filing: Article 45: Must exist at the time of - The parents of the child can annul the Party to file suit: Parent or guardian before the marriage marriage at any time prior to the time the child child reaches 21 and the party who did not

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1. That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife 2. That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife

3. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife Article 46: Fraud: existing at time of marriage 1. Non-disclosure of previous conviction by final judgment of a crime involving moral turpitude. 2. Concealment of the wife of the fact that she was pregnant at the time of marriage by another man. 3. Concealment of STD regardless of its nature existing at the time of the marriage.

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reaches the age of 21.

obtain consent within 5 years after reaching 21.

Ratification: Through cohabitation after reaching the age of 21 years old.

- Must be clear that illness is serious that cannot understand marriage contract at the time of the marriage.

* If the spouse knew that the spouse was insane prior to the celebration of the marriage she cannot annul the marriage.

Ratification: Through cohabitation by the person with the unsound mind after he has come to reason *Once ratified the marriage will be valid and no longer annullable even if the insanity comes back.

Party to file suit: Sane spouse without knowledge before the death of either party, relative or guardian of insane at any time before the death of either party, and insane spouse before the death of either party.

*No other misrepresentations will be acceptable to constitute fraud to annul a marriage. PREVIOUS CONVICTION: No need for investigation on the part of the party but there must be a final judgment. CONCEALMENT OF PREGNANCY: Concealment must be done in bad faith. Thus, if the woman truly believed she was not pregnant when she was the marriage cannot be annulled. - Misrepresentation that she was pregnant to induce the man to marry her when she was in fact not pregnant is not considered for annulment. CONCEALMENT OF STD: Nature or gravity is

Exception to 46(2): If the woman was unchaste and the man knew of her unchaste character. Exception to 46(2): If woman did not inform the man but pregnancy was apparent. Party to file suit: Injured party within 5 years after the discovery of fraud

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4. Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the time of the marriage.

4. That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

5. That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable

irrelevant; the fact that it was concealed was enough. CONCEALMENT OF ADDICTIONS: No exact meaning but has been defined as persistent habit of becoming intoxicated, irresistible habit. *Does not need to get drunk all the time, the habit of becoming periodically drunk and being unable to resist when the opportunity arises. CONCEALMENT OF GENDER PREFERENCE: considers the effect on the injured spouse in performing his/her marital duties. Mental fitness, health, etc. Does not nurture a natural and wholesome family, Ratification: Cohabitation after the innocent spouse has full knowledge of the facts constituting the fraud - Violence here may be physical or moral. - Intimidation is when there is a reasonable and well-rounded fear of an imminent and grave evil upon his person or property. Ratification: Cohabitation after the cause of the vitiated consent ceases. - Permanent inability on the part of one of the spouses to perform the complete act of sexual intercourse (must be incurable). - Can originate from a psychological problem, which affects the physical. - Must exist at the time of the marriage. - May be caused both by husband and wife.

Party to file the suit: Injured party within 5 years from the time the force, intimidation or undue influence disappeared or ceased.

Exception: Sterility is not considered impotency because he can still engage in sexual coition. Organs for conception not necessary because there is still passion. Party to file the suit: Within 5 years after the marriage ceremony

NO RATIFICATION by cohabitation Rule of triennial cohabitation: presumption of impotence arises when wife remains a virgin after 3 years from the time of marriage.

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6. That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable Art. 48: In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment Art. 49: During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. Art. 50: The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous

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No ratification by cohabitation

-

-

-

-

The state will ensure the prevention of collusion between the parties (who may make up a ground to annul the marriage) and to ensure that the evidence is not fabricated No judgment shall be based on a confession and a stipulation of facts only.

While trial is on going the support of the spouses and custody of the children shall be governed by whatever agreement the parties have made. If none then they shall be supported from the absolute community of property or conjugal partnership of gains. The court may however make the necessary adjustments in case the agreement is inadequate.

Article 43: effects of termination of subsequent marriage (liquidation, disposition, donation, insurance, inheritance) Article 44: Both spouses of the subsequent marriage are in bad faith the marriage shall be void Article 40: Final judgment declaring a marriage was void for a subsequent marriage.

* In nullity cases, if the marriage is deemed to be void then the one who got support should return it with legal interest to the person who furnished support since such person was not entitled to the support there being no marriage.

*The judgment and decree of nullity or annulment will become final upon the expiration of 15 days from the receipt of the parties of the decision. (Thus any marriage prior to the 15 days may be considered bigamous since the marriage is still subsisting at that time.)

- In all other cases of a void marriage the property regime will be governed by Art. 147 (wages and salaries owned by them in equal

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judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Art. 51: In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. Art. 54: Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent

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shares property governed by co-ownership) Art. 148 (properties acquired through joint contributions only and divided in proportion to their contributions)

Presumptive Legitime: Part of the property of the testator, which cannot be disposed of because the law has reserved it for certain compulsory heirs. The decree of annulment or nullity of marriage provides for the delivery of the presumptive legitimes this is in order to protect the legitime of the children from subsequent marriage. Ex. If A husband of B dies, their child C will inherit a legitime from A’s properties. In this case there is no death thus the legitime is presumed (what A’s properties would be if he died at this time) and that is what is given to C.  In the event that the either or both parents die later on the presumptive legitime given is considered an advance on their legitime and are just given the remaining balance due them.  In void marriages other than that provided for in Art. 40, the presumptive legitime is not delivered. - Generally, children conceived and born outside a valid marriage or inside a void marriage are illegitimate except those coming from a marriage void due to psychological incapacity and those due to lack of judicial

* The children or the guardian may seek the enforcement for the delivery of the presumptive legitime.

* If the child is conceived prior to the marriage and the marriage is terminated under Art. 36 or 53 child will be illegitimate (the subsequent void marriage even under these articles will not legitimate them)

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marriage under Article 53 shall likewise be legitimate.

decree of nullity or liquidation or dissolution of property.

LEGAL SEPARATION: Does not affect the marital status of the couple, merely a separation of bed and board. (Exclusive list) Violence Against Women and Children (VAWC RA 9262): includes spouse, girlfriends, and even one-night stands (level of intimacy). Men can file on behalf of children. Many articles of VAWC encompass legal separation and if this is so the required cooling off period is no longer necessary. Included as part of VAWC such as corruption (#3) included as violence, even psychological violence (bigamy, sexual infidelity). - The children included in VAWC are those under the care of the women even those of the respondent’s child from a previous marriage. Article 55: Happens after marriage ceremony Physical violence here is measured not by the * Does not include a ground for legal 1. Repeated physical violence or grossly severity but by the frequency. However if it is separation when the respondent-spouse abusive conduct directed against the not repeated or is not physical violence it may inflicts violence on his/her own child from a petitioner, a common child, or a child of the be considered as grossly abusive conduct. previous marriage but may cause to suspend petitioner or terminate parental authority. Grossly abusive conduct need not be repeated Art. 231 (1): Parental authority can be but more of a serious act: rely on suspended when the parent treats the child proportionality and abusive conduct to what with excessive harshness or cruelty was committed. - Continued indifference or aversion to spouse and persistent neglect of duties incident to marital relation, etc. - Use of offensive and abusive language with intent and fixed purpose of causing unhappiness. - Other acts of corruption, which do not fall under prostitution. 2. Physical violence or moral pressure to - There should be unity in the family and thus *Enforce human rights through acceptance of compel the petitioner to change religious or the couple should learn to live with each the other’s right political affiliation other’s political ideas. 3. Attempt of respondent to corrupt or induce - The children here may or may not be * Other forms of corruption can fall under grave the petitioner, a common child, or a child of the emancipated. abuse of conduct petitioner, to engage in prostitution, or - The corrupt act here refers to prostitution connivance in such corruption or inducement only, a mere attempt is enough the respondent need not be successful at the corruption or inducement. - There is no cause of action when the child

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4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned

5. Drug addiction or habitual alcoholism of the respondent

6. Lesbianism or homosexuality of respondent

7. Respondent contracts a subsequent bigamous marriage

8. Sexual infidelity or perversion

9. Attempt by the respondent against the life of the petitioner

involved is that of the respondent from another marriage. - The crime need not be against the other spouse. It can be against anyone. - The fact that the crime had been pardoned doesn’t matter as long as there is a final judgment. - The extent and nature of such is the same, as those in annulment cases but such grounds may exist even after the marriage ceremony unlike annulment. - Considered as a form of cruelty or mental anguish - Must engage in homosexual acts - Illegally contracting a marriage despite full knowledge that the first marriage still validly exists or without obtaining a judicial declaration of presumptive death. - Other acts of sexual infidelity short of concubinage and adultery are enough as long as they constitute a clear betrayal of trust. - Sexual perversion can be done to ones own wife. - Must come from an evil design or unlawful cause - No nee for any criminal conviction, preponderance of evidence is enough. (If there is a criminal conviction, the other spouse can be disinherited even if there is no legal separation case filed) Willfully left the dwelling without intention of returning. *There must be a wrongful intent to desert, continued for the statutory period.

10. Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption Article 56: Denial of legal separation if they fall on the following grounds

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*Whether the marriage was done in the Philippines or abroad is immaterial.

Exception: If the wife condones sexual perversion with her husband then it cannot be a ground for legal separation.

Exception: when it is for self-defense (or some other justifiable reason) Exception: Spouse caught the other in flagrante delicto

*If there is an unjustifiable for leaving then it is not considered abandonment.

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1. Where the aggrieved party has condoned the offense or act complained of

- May be expressed or implied forgiveness - Not looking for an erring wife after she commits an offense does not mean forgiveness.

2. Where the aggrieved party has consented to the commission of the offense or act complained of 3. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation

Either spouse agreed or did not object to the offense BEFORE it was committed. - Where the spouses agree that one spouse will commit the offense to give grounds for legal separation. - Where one of the parties employed a 3rd party to induce the other spouse to commit the offense to give grounds. - Corrupt consenting - When two persons acted in bad faith, they should be considered as having acted in good faith. - In collusion the couple makes it appear that there is a ground for legal separation but actually there is none. - Corrupt agreement - The act need not actually happen - An action for legal separation must be filed within 5 years from the occurrence of the cause. - From the time the act occurred not the discovery of the cause of action. - The defendant is required to answer the petition 15 days from the date of the receipt of the complaint. However whether or not the defendant files an answer or not there should be no hearing on the merits by the court until after a 6-month cooling-off period is terminated.

4. Where both parties have given ground for legal separation 5. Where there is collusion between the parties to obtain decree of legal separation

6. Where the action is barred by prescription

Art. 58: An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition

Art. 59: No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.

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- The court must try to salvage the marriage by taking steps towards reconciliation.

Exception: if after the condonation the guilty spouse repeats the offense then can still file for legal separation.

Art. 57: An action for legal separation shall be filed within five years from the time of the occurrence of the cause *Failure to observe the 6month cooling off period is a ground to set aside a decision granting legal separation. *Other incidents may be heard during the 6-month period such as support and custody. * However even if there is no trial the couple may choose not to live together. They cannot be forced to live

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Art. 60: No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.

-

Art. 61: After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. Art. 62: During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. Art. 63: The decree of legal separation shall have the following effects: 1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; 2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); 3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and 4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.

-

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-

If the defending party fails to answer he or she cannot be defaulted and the court shall order the prosecuting attorney to investigate whether there is collusion or not between the parties. Even if the party answers the fiscal is still mandated to make sure there is no collusion and that the evidence is genuine. In the absence of a written agreement between the spouses, the court shall designate who shall administer the properties (it can be a third person).

together. * If the case is vehemently opposed and contested and it is clear that the litigation is a no-holds barred contest and not collusion the nonintervention of the prosecuting attorney is not fatal to the validity of the proceedings. * Death of the plaintiff before the final decree in an action for legal separation terminates the case.

Art. 49: During the pendency of the action and in the absence of a written agreement, the court will provide for the support and custody. - Though the spouses are entitled to live separately the marriage bond shall not be severed. They are still married to each other. - The property shall be liquidated, the offending spouse shall have no share or right to the profits earned and shall be forfeited in favor of the common children if none the children of the guilty spouse if none then to the innocent spouse. - The innocent spouse shall generally have custody of the children however the major consideration is always the paramount interest of the children. - The offending spouse shall be disqualified from inheriting form the innocent spouse by intestate succession furthermore provisions in favor of the offending spouse made in the will of the innocent

* No children below 7 years old shall be separated from the mother unless the court finds compelling reasons to order otherwise (Tender Years Doctrine)

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Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. Art. 64: After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. Art. 65: If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation.

Art. 66: The reconciliation referred to in the preceding Articles shall have the following consequences: 1. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and 2. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shall be recorded in the proper civil registries. Art. 67: The agreement to revive the former property

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spouse shall be revoked by operation of law.

The law gives the option to innocent party whether to revoke or not the donation of the guilty party in an insurance. - The revocation must be made within 5 years from the time the decree of legal separation has become final. * The revocation of or change in the designation of insurance beneficiary shall take effect after written notification to the insurer not the insured since it makes more sense however the law states notification should be given to the insured thus that should be followed. -

If the case is still pending then it shall be terminated, if the decree has been issued then it shall be set aside. - Separation of properties will still subsist, but the parties can enter into an agreement to revive the prior property regime. - Generally the law provides that one can only fix the property regime before the marriage celebration but the rules now set forth that the adoption of another property regime can be made aside from that which they had previously existing during their marriage. EFFECT OF REVIVAL: 1. If creditors are notified they should file opposition on properties if they have debts that should be paid by either spouse. 2. If creditors are notified but they don’t file -

* The creditors should be informed of the changes with regard to the property etc.

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regime referred to in the preceding Article shall be executed under oath and shall specify: 1. The properties to be contributed anew to the restored regime 2. Those to be retained as separated properties of each spouse; and 3. The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim.

they cannot get from the properties that will be placed in co-ownership in the revival. 3. If creditors are not notified then they can collect from properties co-owned. 4. If creditors are not notified but there are separate properties they can’t get from coowned properties.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Art. 68: The husband and wife are obliged to Reason: So couples wont abandon each other live together, observe mutual love, respect and based on their whims and caprices fidelity, and render mutual help and support. - Procreation is also an essential marital obligation. - A court cannot compel the spouses to live together, observe mutual love, respect and fidelity. RAPE: 1. Committed by a man against a woman who shall have carnal knowledge of her through force, intimidation or threat; when she is deprived of reason or consciousness, machinations or grave abuse of authority. 2. Even if none of the circumstances are present if woman is below 12 or demented. 3. Any person who inserts any foreign object

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* Remedy if other spouse is not living with you: seek relief from court so that you do not have to give him support. 

A husband can be liable for raping his wife however the subsequent forgiveness by the wife to the offended party shall extinguish the criminal action. BEFORE: Matrimonial exemption from rape 1. Man and woman become 1 so man cannot rape himself 2. Marriage contract means wife consents to all and any sexual intercourse with husband. REBUT:

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into genital or anal orifice (rape can be committed against a man) 4. Any person who inserts penis into oral or anal orifice. Art. 69: The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. Art. 70: The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. Art. 71: The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. Art. 72: When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.

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1. Woman has certain rights and liberties, which separate her from the man. 2. Absolute consent is not sound since marriage itself is revocable.

The domicile of natural persons is the place of their habitual residence, where parties intend to have their permanent residence. - In case of disagreement between the husband and the wife the court shall decide. - The spouse not living in the domicile must prove the intent of husband is for solidarity of family. EXPENSES FOR SUPPORT AND OTHER CONJUGAL OBLIGATIONS: 1. From the community property 2. In absence thereof income of fruits of the separate properties 3. If insufficient or absent from the separate properties themselves. -

Shall be the right and duty of both spouses regardless of what the property regime is. - In the event that one of the spouses neglects his or her duties or commits acts that endanger or dishonor the family he aggrieved party may apply to the court for relief. FORMS OF RELIEF: 1. Legal separation 2. Psychological incapacity 3. Petition for receivership judicial, separation of property to become sole -

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administrator of property.

Art. 73: Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: 1. The objection is proper; and 2. Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.

PROPERTY RELATIONS Art. 74: The property relationship between husband and wife shall be governed in the following order: 1. By marriage settlements executed before the marriage; 2. By the provisions of this Code; and 3. By the local custom.

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Based on presumption, despite objection (before or after) it will still go to family. - VAWC: If husband prevents you from doing a right then punishable by law. - The objection must be all valid, serious, and on moral grounds at the same time. - If it is an isolated activity—contract— without consent of other spouse, the conjugal spouse can’t be liable GENERAL RULE: 1. Obligations incurred before or after the marriage but redounding to the benefit of the family shall be charged to the conjugal properties 2. Spouse’s job redounds to the benefit of the family thus obligations can be satisfied from the conjugal property. 3. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.

Exceptions: For the separate properties to be liable the other spouse must have no knowledge of the immoral activity and therefore could not give an objection even if benefit accrues to the family.

Marriage Settlements: must be in writing signed by the parties, and made prior to the celebration of the marriage if it is not in writing it shall be unenforceable. - If there is no marriage settlement agreed upon or if the same is void, then the absolute community if

EFFECT OF NO MARRIAGE SETTLEMENT: 1. If the mortgage was registered then the new spouse’s property will also be liable. 2. If the mortgage was not registered the new spouse will not be liable but the mortgage will be impaired and the

-

Exception liability against separate property: If the creditor did not know of the immoral activity or thought it was to be used for a legitimate business, creditor can collect from conjugal properties.

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Art. 75: The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. Article 76: Modifications in marriage settlement must be made before the celebration of the marriage.

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property will prevail. EFFECT OF MARRIAGE SETTLEMENT: 1. Property in marriage settlement is registered did not redound to family, creditor cant get from co-owned 2. If marriage settlement is not registered, can get from co-owned 3. If redounded to benefit of family can get from co-owned even if not registered. *Marriage settlement must be fair, they must exercise good faith in contracting the marriage settlement. However if the agreement is not fair as long as the disadvantaged spouse shows that he/she understood it then the marriage settlement shall be maintained. LOCAL CUSTOMS: rule of conduct formed by repetition of acts uniformly observed as a social rule, legally binding and obligatory. - If a marriage settlement is absent or property regime agreed upon is void, Absolute community of property will govern.

Art. 77: The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties. (Oral marriage settlement is VOID)

debtor spouse will loose the right to make use of the period.  Must give new securities so as not to loose the period. * If the marriage settlement does not particularize any valid property regime such provision is void and thus the absolute community of property shall prevail.

Exception under Article 66 and 67: Revival or adoption of new property regime when those legally separated have reconciled. Exception under Article 128: in case of abandonment of a spouse other spouse can petition for receivership or administration of properties or judicial decree of separation of properties Exception under Article 135: Further

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grounds for judicial separation of property Exception under Article 136: voluntary and verified petition in court of both spouses to modify regime into separate community of property regime. 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 the agreement, subject to the provisions of Title IX of this Code. Art. 79: For the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. Art. 80: In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence This rule shall not apply: 1. Where both spouses are aliens; 2. With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and 3.With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. Art. 81: Everything stipulated in the

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- Now a minor or a person below 18 years old cannot contract to a marriage. An 18-year-old person deciding to get married can execute a marriage settlement without obtaining consent.

- It is mandatory that a person with civil interdiction must have a guardian appointed by the court to be involved in making the marriage settlement CIVIL INTERDICTION: deprives the offender during the sentence, rights in marriage, parental rights, and administration of property. Extrinsic validity: The form of the contract has to follow whatever is the law in the country for changes to be made (change title etc.)

- The reason for the marriage settlement is the

* Donations in marriage settlements are

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settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriages shall be valid. VOID MARRIAGE SETTLEMENTS ARTICLE 76 Article 76

Article 80 Article 81

Effects on creditors Marriage settlements

No marriage settlements: Absolute community of property.

Those not written, signed and made before the celebration Those that stipulate that neither local custom nor absolute community of property will govern without stipulating any other kind of property regime. Those made by a person upon who a sentence of civil interdiction is given Those stipulated in marriage settlement or contracts made in consideration of marriage (donations) will be void if marriage does not take place

- Only needs to be registered in order to bind third parties. If registered third parties cannot go after conjugal property If there is no marriage settlement: 1. If property is registered then spouse is bound by mortgage 2. If property is not registered then property is impaired and the debtor looses period of loan.

DONATIONS Art. 82: Donations by reason of marriage are those, which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. Art. 83: These donations are governed by the

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marriage itself thus if it does not take place the marriage settlement shall not be valid. - The provisions in a marriage settlement are separable thus if there are provisions which are invalid then only the invalid provisions will be ineffectual while the rest will be enforced.

revoked by operation of law.

Exception: unless a guardian appointed made by a competent court is made party thereto Exception: stipulations that don’t depend on the celebration of the marriage shall remain valid.

Exception to third party rule: If indebtedness benefited to the family then can go after community of property. Exception to impairment of property: if debtor immediately gives new property equally satisfactory or get consent of X to the security or collateral already established, then he does not loose period of loan.

DONATIONS PROPTER NUPTIAS: 1. Donations are to be made prior to the celebration of marriage 2. Must be made in favor of 1 or both of the spouses. Can be made by a third party in the settlement. Donation between spouses:

Procedure--Movable: 1. Accepted personally or representative 2. Made in lifetime of donor and donee 3. Can be orally given as long as

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rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. Art. 84: If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

Article 85: Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess.

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1. A valid marriage settlement must stipulate another regime than Absolute Community of Property (ACP) 2. Donation cannot be more than 1/5 of the present property of the donee spouse. 3. Must be accepted and comply with other. Exception: 1/5 rule will not apply if donation is in a separate deed, provided he has enough to support himself and those relying on him.

with simultaneous delivery or document representing right of donated (if above 5000 then must be in writing) Procedure--Immovable: 1.must be in public document 2. Acceptance made in that document or separate 3. Must be made in lifetime of donor. DONATIONS EXCLUDED: 1. Made in favor of the spouses after the celebration of the marriage 2. Executed in favor of the future spouses but not in consideration of marriage 3. Granted to persons other than the spouses even though they may be founded on the marriage.

ENCUMBRANCE: Anything that impairs the use or transfer of property (burdened) - If the object of the donation is encumbered it is still valid but the donee’s rights is still subject to the encumbrance. IN CASE OF ENCUMBRANCE OF PROPERTY: 1. Donee wont be liable for insufficiency of property to creditor. The donor will still be liable for that. 2. Donee can keep excess if property more than satisfies the debt. 3. Donee cannot ask for reimbursement from donor if mortgage is foreclosed. - But wont be liable for deficiency, and gets the excess if sold for more than amount.

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Art. 86: A donation by reason of marriage may be revoked by the donor in the following cases: 1. If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; 2. When the marriage takes place without the consent of the parents or guardian, as required by law; 3. When the marriage is annulled, and the donee acted in bad faith; 4. Upon legal separation, the donee being the guilty spouse; 5. If it is with a resolutory condition and the condition is complied with; 6. When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general.

Art. 87: Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to

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1. Marriage is not celebrated or is void ab initio (including art. 52-53) Prescription: - Marriage is void: 5 years from Judicial Declaration of Nullity (if doesn’t want to give it back, prescribe after 8 years for movable, 30 years for immovable) - Marriage not celebrated: 5 years from when it was not celebrated 2. Marriage takes place without consent of parents Prescription: - 5 years from the time he had knowledge that consent was not obtained, after the marriage. 3. Upon legal separation when donee is the guilty spouse Prescription: - 5 years from finality of decree. 4. When there is a resolutory cause and the condition has been complied with Prescription: 5 years from the happening of the resolutory condition. 6. Acts of ingratitude: - Donee commits an offense against the person or property of the donor, his wife, or children - Donee imputes to the donor any criminal offense involving moral turpitude unless it against the donee - Donee unduly refuses to support donor when he is legally or morally bound to give support. Prescription: - 1 year from the time the donor had knowledge of the fact of ingratitude - What constitutes a moderate gift depends on the financial capacity of the donor. - Under the last sentence of Art. 87it must be shown that the donation was made at a time when they were still living together as husband and wife without the benefit of marriage.

Exception: If the donation is in the marriage settlement it will be revoked by operation of law. Exception: If the marriage is void due to Article 40, or Article 44, then automatically revoked

Exception: if the ground for legal separation is infidelity in the form of adultery or concubinage it will be automatically void. Exception: between husband and wife prescription does not run.

Void Donations: (considered indirect donations to the spouse) 1. To a stepchild who has no compulsory or legal heirs 2. To a common child who has o compulsory or legal heirs

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persons living together as husband and wife without a valid marriage.

Property Regime Absolute community of property Art. 88: The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void

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What included All properties owned before and after. Art. 91: Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

Validity of donation or transfer cannot be challenged by anyone unless those that will be affected by the donation. RESERVA TRONCAL: the ascendant who inherits from his descendant any property which the later may have acquired by gratuitous title from another ascendant or sibling is obliged to reserve such property for the benefit of relatives within the 3rd degree and who belong to the same line. Ex. H is married to W and has a son S. H has a brother B. H dies and donates to S his property. After which, S dies without any heirs and thus the property goes to W. If W dies the property does not go to her heir but to B so that the property stays in the same line of the original owner (once owed by H) and is within the third degree of S. -

What excluded Article 92: 1.provided in marriage settlement 2. Personal and exclusive use of either spouse (except jewelry) - However if exclusive property is used to purchase something else such property becomes part of ACP 1.Property acquired by gratuitous title including the fruits and income UNLESS the guarantor expressly said they will form part of ACP - Must be a valid donation

Notes Art. 89: No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such

3. To the parents of the other spouse 4. To the other souse’s adopted child 5. To common adopted child who has no other compulsory and or legal heirs.

Charges Article 94: 1. Support (spouses, common & legitimate children) - Even beyond age of majority 2. Debts & obligations made by both, administrator, or with consent of other spouse (even if did not redound) 3. D & O without consent but redounded. 4. Expenses for community property (taxes, liens, charges) 5. Taxes & expenses for preservation during

Liquidation process Termination: Art. 97: Either spouse may dispose by will of his or her interest in the community property. Art. 98: Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community

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(Default regime if nothing stipulate – exception: subsequent marriage after death will automatically be CSP if there was no proper liquidation of the properties of the previous marriage) Art. 90: The provisions on coownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter.

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Art. 93: Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.

(cant be donation made by one spouse to another) 2.Property acquired by either spouse who has legitimate descendants and the fruits of that property *Winnings from gambling (losses borne by looser)

waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. * No waiver of rights, interests, shares, and effects without judicial separation or dissolution or annulment of marriage – shall appear in a public instrument (creditors may rescind waiver up to extent of the debt) Art. 96: The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of

marriage of separate property used by family 6. Expenses for selfimprovement or profession. 7. Antenuptial debts redounding to family 8. Donation made by both spouses for children to pursue vocation or selfimprovement 9. For illegitimate children, fines for crimes/quasi delict in case of insufficiency. (Advances) 10. Expenses for litigation * Solidary liability does not include ante-nuptial debts not redounding, support of illegitimate, liabilities thru crime/delict. Art. 95: Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property.

property for charity or on occasions of family rejoicing or family distress Article 99: 1. Death - Same proceeding as settlement of estate. Spouse shall liquidate property if no judicial settlement proceeding within 1 year. After 1 year cannot may encumbrance on property. 2. Legal separation 4. Annulled or void (governed by art. 147 & 148 except if void under Article 40) 5. Judicial separation of property 6. Reappearance of a spouse presumed dead. Procedure: Article 102: 1. Inventory (separate and community) 2. D&O of ACP shall be paid out, in case of insufficiency solidarily liable with separate property.

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ACP

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SEPARATION IN FACT: Art. 100: The separation in fact between

administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. * Spouses administer and enjoy property jointly. Husband decision prevails subject to recourse of wife within 5 years from date of contract implementing decision. BUT if wife ratifies contract express or implied cant annul anymore. - If disposition is made without knowledge or consent of other person no prescription. - Abandonment is different from separation in fact. Abandonment has to do with total abdication of all marital

3. Exclusive prop delivered. 4. Net remainder of ACP divided equally unless different proportion in settlement or waiver. 5. Delivery of presumptive legitimates 6. Conjugal dwelling with spouse with most children

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husband and wife shall not affect the regime of absolute community except that:

ACP

1.The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2.When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; 3. In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. Art. 101: If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

and parental authority. - If the spouse left with a valid cause he or she can still be supported from the ACP. - The ACP can still be liable for obligations incurred by the separating spouse that may redound to the benefit of the family. - Even the guilty spouse can compel the sale of property, which will redound to the benefit of the family. - Only the present spouse is given standing by the law to file a petition to encumber or administer the property of the other spouse.

ABANDONMENT: Implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause. - Should not only be physical but also financial and moral desertion.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the

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Conjugal Partnership of Gains: Art. 105: In case the future spouses agree in the marriage settlements that the regime of conjugal partnership gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in

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same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Article 106: Article 109: - Proceeds, products, 1. Brought into the fruits and income marriage as his or her from their separate own properties 2. Acquired by - Those acquired by gratuitous title their efforts or chance - By way of - Income and fruits by succession gratuitous title (diff - Honorarium (given in from ACP) appreciation for - Annuity: retirement services rendered) on an annuity 3. Acquired by right of (received as a matter redemption, barter, of right) exchange -Pension: serious - Even if money used previously rendered to redeem is conjugal for which full and (reimbursement) adequate 4. Bought with compensation was exclusive money of not received at the either spouse. time. *Onerous donations Article 117: *Designated share in 1. Acquired by donation onerous title using *Gratuity (amount common funds. given by gob’s for 2. Obtained by labor previous work) or industry or work Art. 110: The spouses 3. Fruits, natural, industrial, or civil due retain the ownership, possession, received during administration and marriage from enjoyment of their common prop - Net fruits of exclusive properties.

Art. 107: The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. Art. 108: The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. Prohibition on waiver. *Properties brought into the marriage by the contracting parties belong to each of them exclusively. - Either spouse can transfer admin of prop to other spouse thru public instrument. Art. 118: Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership

Article 121: 1.support of spouse common and legitimate children 2.D&O by admin, both or either spouse with consent of other. 3.D&O without consent of other but redounding. 4.expenses for conjugal prop (taxes, liens) 5.taxes and expenses for preservation of separate property (no need for use) 6.expenses for spouse for profession or selfimprovement. 7.Antenuptial debts redounding to family. 8.donation of both for children for profession or self-improvement. 9.expenses of litigation between spouses Not to be paid by cpg: Article 122: -Payment of personal debts contracted by the husband or wife before or during the marriage unless they redounded to the benefit of the family. However, fines and

Termination: Article 126: 1.Death 2.Legal Separation 3. Annulled or declared void. 4.Judicial Separation Article 127 and 128: -Provisions on separation in fact and abandonment has the same application as in ACP article 100 and 101. Procedure: Article 129: 1.Inventory of separate and conjugal prop 2.Payment of advances 3.Reimbursement to the spouses. 4.D&O paid out by CPG, insufficiency solidarily liable. 5.exclusive prop delivered 6.loss or deterioration of movables paid from CPG 7.Net remainder to be

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accordance with the Civil Code or other laws, as provided in Article 256. Presumption is that all property acquired during marriage even if in the name of one spouse is conjugal unless otherwise provided.

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exclusive property BUT personal damages are not conjugal. 4. Share in hidden treasure 5. Fishing and hunting 6. Excess livestock (those brought in to the marriage by one will reimbursed 7. Acquired by chance

Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located.

was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. Property bought before but title registered after marriage: still considered exclusive property even if spouse is made co-owner in title (considered a trust) Separate property plus conjugal funds to buy a new property: new property will be considered conjugal. Property bought on installment partly from exclusive and partly from conjugal: when title was vested will govern, then reimburse (Art. 119) Principal payments and interest paid to a spouse during marriage: principal amt is exclusive while interest is conjugal.

indemnities imposed support of illegitimate children can be paid by the assets AFTER the payment of obligations provided in Art. 121. But at the time of liquidation the spouse who used such funds will be charged. If charges are paid, and no property or insufficient CPG pays: -Fines, debts before the marriage -Support of illegitimate *Subject to reimbursement (ACP no need to pay out all charges first) Article 120 1.If improvement made by cp is more than value of the property, entire property will be conjugal –reimburse spouse. 2. If amount is not more than it will still be separate property subject to reimbursement to CPG. (Ownership will vest upon reimbursement) Art. 123: Whatever may be lost during the marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling

divided (unless MS or waiver) 8.Delivery of presumptive legitimes 9.Conjugal dwelling Article 130: in case of death the liquidation proceeding will be in the same proceeding as the settlement of the estate of the deceased. (Same application as in ACP article 103) Art. 133: From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them.

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CPG

Art. 110: The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located.

CPG

CPG

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Art. 111: A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. Art. 112: The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. Art. 113: Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the doneespouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper.

whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property. - Each spouse is to retain ownership, administration, possession and enjoyment of their exclusive properties. - Administration includes entering into contracts, engaging in litigation, and collection of fruits, profits and income arising from separate property. - The owner spouse can transfer administration of the property not only to the other spouse but also to any third person without the consent of the other spouse. - Art. 111 is no longer necessary, as the age of marriage is also the age of emancipation. - If the owner-spouse alienates his property the administration by the other spouse over such property will cease and the proceeds will go to the owner. - The owner-spouse cannot revoke a judicially approved administration by the other spouse of his property by alienating it. Thus to alienate the property he must get the consent of the administrator-spouse or court approval. - The donor may donate whatever he wishes to whomever he wants. Thus he may donate a piece of property to both spouses jointly or may specify how much of the property should go to the husband and how much should go to the wife. ACCRETION: addition of property to another property

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Art. 114: If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains. Art. 115: Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. CPG

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Art. 124: The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a)

General rule: in a joint donation one cannot accept independently of his co-donee unless it is stipulated or unless it is between husband and wife. Ex. D donates land to H and W who are married. D donates 1/3 to W and 2/3 to H. If W does not accept the donation it will be considered added on to the share of the husband. However if it is a specific designation such as H will get a car and W will get a horse, accretion will not apply. - In the case of wills for accretion to take effect, the nature of the inheritance must be pro indivisio (not divided, the terms ½ or in equal shares is does not make it divided). - Any alienation made by either spouse without the consent of the other is invalid. - In case the husband disposes of property over the objection of the wife, the wife may file a case to annul the entire contract or part of it.

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Separation of property Art. 134: In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (Can be stipulated in MS which shall govern and FC will only be supplementary in nature, in the absence therein it cannot take place during the marriage except by judicial

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Art. 125: Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. - They own everything separately but still liable for family expenses in proportion to their income or in default thereof in proportion to separate prop. But liability to their creditor is still solidary. Article 135: Sufficient cause for judicial separation of property: 1. Civil interdiction 2. Absentee spouse -2 years from last news about absentee, or 5 years if an administrator has been left. 3. Loss of parental authority decreed by court (termination or deprivation not mere suspension) -Over legitimate or illegitimate child whether of previous or present marriage 4. Abandonment or failure to comply with his or her obligations 5. Abused power of administration 6. Separation in fact for at least 1 yr Art. 137: Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. Art. 138: After dissolution of the absolute

Article 136: Voluntary Separation -Spouses may agree on the separation of their properties with court approval, no reason needed. (But if reason is stated and it is against public policy the court will reject it) -Division of property must be equal unless there is a different proportion agreed in MS or waiver. -Takes effect after judicial order of decree (not signing of agreement) -Creditors will be listed in petition and notified) -In process delivery of presumptive legitimes is not necessary. *Art. 142: Admin of exclusive prop of either spouse may be transferred by court to other spouse or if not qualified to another person when: 1.spouse becomes the guardian 2.the other is judicially declared an absentee 3.civil interdiction 4.fugitive from justice, hiding as an accused Art 143: If the couple wants a regime of separation of property they have to enter into a valid marriage settlement prior to the marriage stipulating such regime. Art. 145: Administration is left with each spouse with regard to his/her own property without the need for the consent of the other. Earnings of each shall also belong to each spouse. Art. 146: Both spouses shall bear the family expenses in

Revival: Article 141: 1.termination of civil interdiction 2.Absentee reappears 3.court satisfied that administration will not be again abused 4.Resumption of common life with other spouse 5.parental authority restored 6.reconciliation of those separated in fact 7.For those who voluntarily separated property, agree to revive former property regime (but after that can’t separate property anymore) - Art. 67 revival: Agreement under oath will state: 1.properties to be

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order) -May refer to present or future property or both -May be partial or total -Those not agreed as separate will be ACP

community or of the conjugal partnership, the provisions on complete separation of property shall apply. Art. 144: Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community.

proportion to their income or their separate property. Liability of spouses to creditors to family expenses are solidary (they are both liable to the creditor for the whole amount if the creditor seeks it from one of them. Such spouse is entitled to reimbursement from the other spouse). * Even if there is an agreement on proportion of sharing etc, it wont affect the creditors.

Marriage without unions (governs void marriages)

Art. 147: When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in

Requisites: 1.Capacitated to marry each other -Not capacitated: incestuous, against public policy, under 18, bigamous marriage 2.live exclusively with each other as husband and wife 3.Without benefit of marriage or under a void marriage. *Includes marriages of psychological incapacity, reappearance of wife, non-liquidation of property, absence of formal requisites. Structure: 1. Salaries and wages shall be owned by equal shares 2. Property acquired with exclusive funds is owned by them exclusively 3. Property acquired through work or industry governed by co-ownership 4. Property acquired while they live together will be owned by them in equal shares. (Contribution can be in the form of care and maintenance of family, household) 5. Fruits of separate property not part of coownership 6. Conjugal home will be owned equally. -Can’t encumber or dispose of his/her share without consent of the other or after cohabitation. -Can alienate in favor of the other his or her share BUT cant waive any interest in co-ownership

D. Sobrepeña

contributed 2.those to be retained as separate 3.names of known creditors

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favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

Marriage without unions (governs void marriages)

D. Sobrepeña

Art. 148: In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith

-Void marriage: net share of bad faith is forfeited to: 1. Common children 2. Waiver of common children, descendants 3. Absence of descendants, innocent party Void marriages included: Art. 36: psychological incapacity Art. 44: bad faith of both spouses in a subsequent marriage Art. 53: non-liquidation, dissolution, distribution of prop. Those where there is absence of consent, authority of solemnizer, license, marriage ceremony. Requisites: - Cohabitation not falling under article 147. Structure: - Parties are co-owners of property acquired during cohabitation only upon proof that each of them made an actual contribution. 1. Salaries and wages are separately owned; if either is married the salaries go to that marriage. 2. Property acquired by the money of one, belongs to that person exclusively 3. Only properties acquired by both of them through joint contribution will be owned by the in common in proportion to what they gave (money, property, or industry – but cant be mere care and maintenance of family/household). (Presumption is that shares over property owned is equal shares but can be rebutted through proof showing otherwise. 4. If one of the parties is validly married, that person’s share in the co-ownership will accrue to the marriage. Bad faith: net share of bad faith is forfeited to: 1. Common children 2. Waiver of common children, descendants 3. Absence of descendants, innocent party - If both are in bad faith they shall be considered as in

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good faith and their shares shall go to them. Exception to insolvency: if redounded to the benefit of the family then the property can be assigned for payment of insolvency - Administration is joint by both spouses, husbands decision will prevail subject to recourse by the wife within 5 years from the contract implementing the decision. Contract will be a continuing offer upon acceptance by other spouse or court order.

THE FAMILY AS AN INSTITUTION Art. 149: The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. Art. 150: Family relations include those: 1. Between husband and wife; 2. Between parents and children; 3. Among brothers and sisters, whether of the full or half-blood. Art. 151: No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. This rules shall not apply to cases which may not be the subject of compromise under the Civil Code

D. Sobrepeña

-

Paramount importance is given to the family as provided in the 1987 constitution. Family relations are governed t law and no custom or practice destructive of the family will be recognized.

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Any person not included in the enumeration cannot be considered as within the term “family relations.” - Before a suit can be filed by people belonging to the same family as provided in Art. 150, earnest efforts must be made to settle the case amicably. *Earnest effort s meant for civil actions only. The following are excused from criminal liability (only civil liability incurred) for theft, swindling or malicious mischief: 1. Spouses, ascendants, and descendents or relatives by affinity in the same line. 2. The widowed spouse with respect to the property of the deceased BEFORE someone else possess it. 3. Brothers and sisters and brothers-in-law and sisters-in-law if they are living together.  Exemption is not applicable to strangers participating therein. Prescription does not run between husband and wife, parents and children during the latter’s minority or insanity, and between guardian and ward during the guardianship.

Exception to earnest efforts: - Earnest effort is not required if included in the suit between family members is a stranger not of the same family. - Does not apply to cases, which may not be compromised. - Does not apply to settlement of estate guardianship, custody of children, and habeas corpus

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THE FAMILY HOME Art. 152: The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.

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Art. 153: The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. Art. 154: The beneficiaries of a family home are: 1. The husband and wife, or an unmarried person who is the head of a family; and 2. Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support Art. 155: The family home shall be exempt from execution, forced sale or attachment except: 1. For nonpayment of taxes; 2. For debts incurred prior to the constitution of the family home; 3. For debts secured by mortgages on the premises before or after such constitution; and 4. For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building. Art. 156: The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.

D. Sobrepeña

-

-

Home is deemed constituted form the time it is actually resided upon and occupied by the family. No need for judicial or extrajudicial requirement, deemed constituted by operation of law. There must be the element of permanence (thus a boat on water cannot be considered a family home) Must be constituted by both husband and wife jointly, the unmarried head of the family, or the occupancy of beneficiaries in a home can be constituted as a family home. The family home is exempt from execution, forced sale or attachment as provided by law

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The actual occupancy of the beneficiaries in a home may constitute the same as a family home as long as they have the consent of the husband or wife who own the house and lot even if the owners do not reside in them.

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The whole value of the family home may be used to pay obligations under Art. 155.

* Exemption from execution is not absolute as it is subject to certain limitation such as indebtedness in certain instances (to be discussed in the next articles)

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The family home must be constituted at a place where there is a fixed and permanent connection with the persons constituting it. Not considered: 1. Boat or vessel

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Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. Art. 157: The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. Art. 158: The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide Art. 159: The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. Art. 160: When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the

D. Sobrepeña

2. Apartment or house being rented 3. House on another’s property Considered: Property where ownership is reserved to the one making the family home. - Those above the amount stipulated (300,000 in urban, 200,000 in rural) will not be exempt from execution forced sale or attachment. - Prior to the family code constitution of a family home was not automatic there was a need to file for such. If prior to the family code there are certain houses falling under the value of a family home at the time of the constitution of the family code (Aug. 3, 1988) provided for the family home is deemed automatically constituted.

Written consent needed for the disposition of the family home: 1. Persons constituting the family home 2. Latter’s spouse 3. Majority of beneficiaries of legal age -

Security of the family is the concern of the law thus they provide for a 10 year period despite the death of the person who constituted the family home. Furthermore the heirs cannot partition the same unless the court finds compelling reasons therefore.

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Bidders cannot bid below the amount of 300,000 If the house is sold, 300,000 is given to the owner of the house and the balance to the creditor to satisfy his debt. This happens even if the debt is not fully satisfied. (Idea is to give 300,000 so that the debtor can buy a house) This however does

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sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

not apply when if the creditor is one of those mentioned in Article 155 (the debt must be satisfied even if nothing is left with the owner).

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. Art. 161: For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. Art. 162: The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. LEGITIMATE Children conceived or born during the marriage

ILLEGITIMATE Children born or conceived outside a valid marriage or in a void marriage unless otherwise provided

Children as a result of artificial insemination are legitimate provided that both authorized or ratified the insemination in a written instrument signed by both of them before the birth of the child (registered with the birth certificate). I

NOTES

If the requisites are not followed and the father does not impugn the legitimacy of the child, the child shall still be considered legitimate.

If husband is able to impugn legitimacy with regards to him child will simply not be related, but in relation to the mom the child will be considered illegitimate PATERNITY AND FILIATION Art. 163: The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or

D. Sobrepeña

- Paternity and filiation refer to the relationship or tie, which exists between parents and their children.

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illegitimate. Art. 164: Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. Art. 165: Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. Art. 166: Legitimacy of a child may be impugned only on the following grounds: 1. That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse; 2.That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or 3. That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through

D. Sobrepeña

-

Illegitimate children are those conceived and born outside a valid marriage or inside a void marriage. ARTIFICIAL INSEMINATION: wife is artificially impregnated with the semen of her husband or with the semen of a third person. - Child of artificial insemination is considered legitimate provided that both the husband and wife authorize or ratify such insemination in a written instrument and signed by them before the birth of the child and that it is recorded in the civil registry together with the birth certificate of the child. - If the requirements given are not followed and the husband does not impugn the legitimacy of the child on grounds provided by law within the prescriptive period the child will still be considered legitimate. Grounds to impugn legitimacy of the child: 1. Physically impossible for husband to have sexual intercourse with wife within the first 120 days of the 300 days immediately preceding the birth of child due to: a. Physical incapacity b. Living separately: must be living in such a way that sexual intercourse is impossible. (Mere remoteness is not sufficient) c. Serious illness - When a child is born inside a marriage, sexual intercourse is presumed to have occurred between the husband and wife within the first 120 days of the 300-day period before the birth of the child. (Longest gestation period) 2. Biological or scientific reasons the child could not have been that of the husband (except for artificial insemination)—if for biological reasons offspring could not have been that of the husband like if the child was a different race from the father’s. - Vasectomy is not enough proof because there are times

Art. 167: The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. *Even if wife impugns legitimacy, child is still legitimate, only husband and in proper cases the heirs can impugn the legitimacy. Unless: she did not deliver the child herself, or did not come from her own womb.

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mistake, fraud, violence, intimidation, or undue influence.

when the sperm can re-channel itself and effect fertilization. 3. In case of artificial insemination the authorization or ratification was obtained through mistake, fraud, violence or intimidation or undue influence. * In the event that any of the grounds are proven, the child will not be considered legitimate or illegitimate but that simply the husband and child are not related. In so far as the mother is concerned the child will be considered illegitimate. - Presumption is in favor of legitimacy.

Art. 168: If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: 1. A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; 2. A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. Art. 169: The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. Art. 170: The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality

* Merely suppletory, if there is better proof then such should be accepted. - Sexual intercourse is presumed between spouses during their marriage. IN CASE OF 2 MARRIAGES: - If child is born within 180 days after the second marriage and within 300 days after the termination of the first marriage the child shall be considered to have been conceived of the first marriage unless other proof is given. - If the child is born after 180 days after the second marriage the child shall be considered to have been conceived of the second marriage unless other proof is given. *But either way the child is still legitimate.

D. Sobrepeña

- If there is no subsequent marriage after 300 days after the termination of the marriage there is no presumption and thus convincing proof is necessary. Prescription for impugning the legitimacy of the child 1. Within one year from the knowledge of the birth or its recording if husband resides in city where birth took place or recorded. 2. Within 2 years, if the husband lives elsewhere in

*It is from the knowledge of the child’s birth not the knowledge that it is not his child.

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where the birth took place or was recorded.

the Philippines. 3. Within 3 years, if he lives abroad 4. If the birth of the child has been concealed, prescription will begin from the discovery or knowledge of birth of child or the fact of registration of the birth (whichever is earlier).

*Even if the birth was concealed, if it was registered and the father did not impugn the child’s legitimacy during the period provided then the child is legitimate. (Cannot impugn since registry is earlier)

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. Art. 171: The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: 1. If the husband should died before the expiration of the period fixed for bringing his action; 2. If he should die after the filing of the complaint without having desisted therefrom; or 3. If the child was born after the death of the husband. PROOF OF FILIATION Art. 172: The filiation of legitimate children is established by any of the following: 1. The record of birth appearing in the civil register or a final judgment; or 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws.

- The record of birth appearing in the civil registry should have the husband’s signature and such birth certificate signed by the parents is adequate proof of paternity without need for further court action. - Admission in public or private handwritten document is a complete act of recognition without need for court action  A mere instrument not in the handwriting o the parent or not a public instrument will not qualify. - Open continuous possession means the father treats the child as his own directly and not through others, spontaneously and without concealment  Must be spontaneous and uninterrupted

Proofs from rules of the court or special law: 1. Baptismal certificate 2. Judicial admission 3. Family bible 4. Common reputation 5. Admission by silence 6. Testimony of witness

Art. 173: The action to claim legitimacy may be

Action to claim legitimacy by the child

Article 175: Illegitimate

D. Sobrepeña

- Legitimacy cannot be collaterally attacked or impugned. Principally only the husband can file a direct action to impugn the legitimacy of the child even if the child is not his. - The heirs are mere substitutes of the husband and cannot file the action if the husband himself failed to file such action despite knowledge of the illegitimacy within the prescribed period.

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brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

May be brought by the child during his or her lifetime and may be transmitted to heirs if the child dies during minority or in a state of insanity or after it has already been instituted by the child and child dies. Heirs have five years to institute action

Article 176: Rights of an illegitimate child 1. Bear the surname of the mother  Even if paternity is certain, mother surnames unless father admits that is his child and lives with them then surname of father can be used. 2. Be under the parental authority of the mother, entitled to support from her  Even if paternity is certain, if father is not living with them he cannot have parental authority.  If the father acknowledges the child and cohabits, he will be vested with parental authority. Even if he leaves after that it will not be considered a waiver of his parental authority unless violated legal grounds provided for termination of parental auth. (he will also be vicariously liable for damages caused by the child) 3. Legitime will be ½ of the legitime of a legitimate child 4. Can get support only up to the

Article 174: Legitimate children shall have the right: 1. To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; 2. To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and 3. To be entitled to the legitimate and other successional rights granted to them by the Civil Code.

D. Sobrepeña

child -Same as legitimate children except when proof is through open and continuous relationship or other rules of court in which case it may only be brought during the lifetime of the alleged parent. Exception: if the child is born in a valid marriage though different man, he cannot claim illegitimacy. The man in the marriage must first impugn the legitimacy of the child

- A legitimate child has his or her whole lifetime to file an action to claim his or her legitimacy.

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grandparents, and no right of representation (if parent dies cant inherit straight from grandparents) 5. Illegitimate child has his or her lifetime to file an action to claim illegitimacy if he/she has proof under Art. 172 (claim for his status in not transmissible to his heirs) Art. 177: Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. Art. 178: Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. Art. 179: Legitimated children shall enjoy the same rights as legitimate children. (272a) Art. 180: The effects of legitimation shall retroact to the time of the child's birth.

Art. 181: The legitimation of children who died before the celebration of the marriage shall benefit their descendants. Art. 182: Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues.

D. Sobrepeña

Legitimated Children (legitimate by operation of law) Requirements: 1. Children conceived and born outside wedlock 2. Of parents who had no legal impediments to marry at that time the child was conceived and 3. They get married later on. (The fact that it is a voidable marriage will not affect the legitimation, but if it is a void marriage then illegitimate)  IF the child dies before the celebration of the marriage, it will still benefit their descendants.  Only by those who are prejudiced in their rights within 5 years from the time their cause of action accrues. (Refers basically to inheritance rights but if the creditors are really prejudiced they must show how legitimation affected such—vested rights prior to legitimation then those rights will not be taken from them)  Right of action accrues only upon death of parents when legitimes will vest  Adopted children can be prejudiced with regards to adopter parents or even natural parents. - In effect gives the children what they should have enjoyed during the lifetime of their father or mother. -

*Shall enjoy same rights as legitimate children, shall retroact to their birth. *No need for the acknowledgment of the father unlike the civil code. *Legitimation will not affect property rights already vested. *If there is a legal impediment at the time of conception the remedy is adoption. Exception: those born through adulterous relationship and bigamous marriage cannot be legitimated.

Contemplates inheritance or successional rights, creditors (commercial or property rights) are excluded unless it can be shown that the legitimation affected their rights and they are really prejudiced.

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SUPPORT Art. 194: Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. Art. 195: Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: 1. The spouses; 2. Legitimate ascendants and descendants; 3. Parents and their legitimate children and the legitimate and illegitimate children of the latter; 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and 5. Legitimate brothers and sisters, whether of full or half-blood

Art. 196: Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister,

D. Sobrepeña



Everything indispensable for sustenance, dwelling, clothing, medical attendance, education, and transportation (in keeping with the financial capacity of the family) Schooling or training shall be applicable even beyond the age of majority Transportation includes going to and from school and place of work Can be given even beyond the age of majority Support is never final (no res judicata) can be changed

Art. 205: right to give or obtain support shall not be levied upon on attachment or execution. - Cannot be made to satisfy any judgment against the recipient. Except: the excess beyond required for legal support in a will or contractual supports hall be subject to levy or execution. (Contractual support is subject to adjustment whenever modification is necessary)

1. Spouses 2. Legitimate ascendant and descendants 3. Parents and their legitimate children and their illegitimate/legitimate grandchildren 4. Parents and their illegitimate children and their illegitimate/legitimate grandchildren 5. Legitimate brothers and sisters whether whole or half blood 6. Brothers and sisters not legitimately related are also obliged to support unless if he/she is of age and is due to claimants fault or negligence no support. - A child inside a womb is already considered born thus entitled to all benefits that accrue to him/her provided that the child is born after.

*Adopted children only up to parents for support. Others aren’t obliged to support. (If the adopter dies or abandons then the state takes over) *Mandatory and essential cannot be transmitted to a 3rd person nor can it be waived. (Prohibition against any compromise of the right to future support) *If relationship between one to be supported and the one to support is in issue, status of the parties should be established first.

   

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They are no longer bound when the child is above the age of majority or due to the negligence.

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being of age, is due to a cause imputable to the claimant's fault or negligence. Article 197: In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership Art. 198: During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. Art. 199: Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: 1. The spouse; 2. The descendants in the nearest degree; 3. The ascendants in the nearest degree; and 4. The brothers and sisters. Art. 200: When the obligation to give support falls upon two or more persons, the payment of the

D. Sobrepeña



  

 



Support for legitimate ascendants, descendants (legitimate or illegitimate), brothers and sisters (legitimate or illegitimately related) shall be taken from separate property If no separate properties from ACP or CPG (advancement). But if it is the illegitimate children, insufficiency is enough to make ACP liable and insufficiency plus payment of charges to make CPG liable. For spouses, generally from ACP or CPG absence of then from fruits of ACP or CPG insufficiency or absence of from the separate properties themselves. Support pending litigation generally obtain from ACP or CPG In case of support between husband and wife where validity of marriage is in issue, aggrieved cannot be given support pendent elite by the other spouse (from his separate property) Legal separation or annulment: spouses shall be supported by ACP or CPG.



*IF the legitimate descendants are the common children then ACP and CPG shall be principally charged. *Support can’t be taken from the children’s property unless there was no need or demand from recipient. (If this happens can forfeit bond made by guardian parent over property-art. 225)

*After declaration of nullity or annulment no more obligation to support *In legal separation support ceases unless guilty spouse is ordered to support innocent. *If wife is adulterous it can be a defense in an action for support against separate property of the spouse but wife can still get support from ACP or CPG.

The list is in order of priority of who should support first. The others are not obliged to give support if those higher on the list are present.

Art. 200:if the liability to support falls on 2 people it will be divided between them in the proportion of their resources. -But in case of urgency, the judge may order only one of them to give and then just get reimbursed from the other after. -When there are two or more people claiming for support

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same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. Art. 201: The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Art. 202: Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. Art. 203: The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days

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and the one obliged to give doesn’t have enough, order will be followed except when the one who needs support is a spouse and a child in which case the child shall be preferred. (Wife is preferred when it is an illegitimate child)

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Support can be increased or decreased depending on the needs of the recipient and the resources of the person obliged to give it. Judgment for support does not become final

Demanding support  Demandable from the time person who has the right to receive it needs it (need for support is not presumed, must be established).  No support given without judicial or extrajudicial demand. (Made within the first 5 years of every month)  Demand is essential shows manifestation of needs.

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of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. Art. 204: The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. Art. 205: The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. Art. 206: When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. Art. 208: In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution

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How to provide support  Can be by giving the money or allowance  Or by allowing the person to stay in family dwelling unless there is a legal or moral obstacle (usually refers to illegitimate children who are generally not allowed to get from ACP or CPG) 

The right to receive support and the money or property obtained as such support cannot be made to satisfy any judgment against the recipient

Art. 206 Requisites:  There is a need to be supported and without knowledge of person obliged to give support it is given by another, he can reimburse unless he has no intention of being reimbursed.  If person obliged to give support unjustly refuses a third person can give it with right of reimbursement. Art. 207 Requisites: 1. Urgent need to be supported on the part of the recipient 2. The person obliged to support unjustly refuses or fails to give support. 3. Third person furnishes the support to the needy individual *If all are present 3rd person shall have right to reimbursment. - This is different from legal support, which cannot be levied upon; contractual support however is not mandated by law. - The excess in amount of legal support shall be subject to levy on attachment or execution.

* However in case of contractual support or that given by will, the excess amount beyond that required for legal support can be subject of execution. Quasi-contract: juridical relation which arises from certain lawful, voluntary and unilateral acts to the end that no one shall be unjustly enriched or benefited at the expense of another (basis for reimbursement of one who gives support)

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PARENTAL AUTHORITY Art. 209: Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. Art. 210: Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 211: The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212: In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of

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Natural affection between the parents and the offspring has always been recognized as an inherent and natural right. Parental authority involves a mass of rights and obligations.

Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. Parental authority and responsibility cannot be renounced or transferred

Except when provided by law (Cases of adoption, guardianship and surrender to a children’s home or orphanage) -When a parent gives authority to another it merely temporary custody not renunciation.

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In case of disagreement the father’s decision shall prevail unless there is a judicial order.  Children should observe respect and are obliged to obey them as long as they are under their parental authority  Applies to both legitimate and illegitimate Requisites for it to apply to illegitimate: 1. Paternity is knows or the father is certain. 2. Illegitimate is living with the father and mother who are cohabiting without the benefit of marriage. (If one of the requisites are missing only mother has parental authority) *Father’s subsequent separation does not mean a renunciation. Once parental authority is vested cannot be waived.  If a spouse dies, the other spouse still has parental authority  Remarriage does not affect the parental authority

*New spouse does not get parental authority by the fact of marriage. New spouse must

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the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. Art. 213: In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

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 Art. 214: In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. Art. 215: No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other.

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of the parent. Lesbianism not a ground to deprive of custody.

adopt the children to have parental authority.

In case of separation the court shall designate a parent to have parental authority (taking into consideration choice of those 7 and above) No child below 7 shall be separated from mother unless there is compelling reason not to do so. (Age is considered from when the decision is made or when custody is given) Custody may also be given to 3rd persons if the situation so warrants. In case of death, absence or unsuitability of the parents substitute parental authority shall be exercised by the surviving grandparent. In case several grandparents survive, the court will decide.

*This does not mean that the other parent has no more PA. *Habeas corpus is proper remedy to get custody of a child from the other parent or 3rd persons.

No descendant shall be compelled in a criminal case to testify against his parents or grandparents unless the crime is against the descendant or by one parent against the other. Husband and wife during or after the marriage cannot be examined without the consent of the other (marital privilege). Except: in a civil case by one against the other, in a criminal case by one against the other or to the latter’s descendant or ascendant.

*Not mandatory in nature so if the child wants to he can do so voluntarily.

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY Art. 216: In default of parents or a judicially 1st: parents exercise parental authority then a judicially appointed guardian, the following person shall appointed guardian in default of such guardian: exercise substitute parental authority over the child 1. Surviving grandparent

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*They will have the rights and responsibilities of a parent enumerated in art. 220 onwards.

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in the order indicated: 1. The surviving grandparent, as provided in Art. 214; 2. The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and 3. The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. Art. 217: In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency.

Art. 218: The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. Art. 219: Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated

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2. Oldest brother or sister over 21 3. Child’s actual custodian over 21 * The list is merely a guideline, fitness, capabilities, etc must still be considered.

In case of no family members (foundling, abandoned, neglected or abused children and other children similarly situated) - Parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages, etc. Transfer of parental authority: 1. Involuntary: by DSWS who files with court to have custody over the child. 2. Voluntary: parent or child commits to the DSWS (surrendered in writing by parents, if only 1 and the other is dead or abandoned for at least 1 year 1 parent authorization is enough)  School, administrators, teachers, individuals or entities engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction, custody. (This authority applies to authorized activities inside or outside the premises)  Those given special authority shall be principally and solidariliy liable (civil liability) for damages caused by the acts or omissions of the minor. (Must be teacher in charge etc).  Parents or those who have substitute parental authority shall be subsidiarily liable (if persons with special authority cannot cover the liability)

*Order is not mandatory: paramount interest

Except: no liability by those with special parental authority if it can be proven that such person exercised the proper diligence in the circumstances. Parents can’t use diligence as a defense (imputed liability flows from filial relation). *Can be an academic or nonacademic school.

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minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable.

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Under the civil code, article 2180, teachers etc can still be held liable when children are not anymore minors subject to the defense of proper diligence.

The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN Art. 220: The parents and those exercising Rights and duties of parents: parental authority shall have with the respect to 1. Support, educate and instruct them, provide for their unemancipated children on wards the their upbringing in keeping with their means. following rights and duties: 2. Love and affection, advice, counseling, 1. To keep them in their company, to support, companionship, and understanding educate and instruct them by right precept and 3. Moral and spiritual guidance good example, and to provide for their upbringing in 4. Physical and mental health keeping with their means; 5. Good and wholesome educational materials and 2. To give them love and affection, advice and prevent them from bad company counsel, companionship and understanding; 6. Represent them in all matters affecting their 3. To provide them with moral and spiritual interest. guidance, inculcate in them honesty, integrity, self7. Demand respect and obedience discipline, self-reliance, industry and thrift, stimulate 8. Impose discipline their interest in civic affairs, and inspire in them 9. Others imposed by law compliance with the duties of citizenship; Disciplinary Actions: parents may inflict a reasonable 4. To furnish them with good and wholesome measure of corporal punishment. educational materials, supervise their activities, (Read Child and Youth Welfare Code –Rights of the recreation and association with others, protect child) them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; 5. To represent them in all matters affecting their interests;

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*Cases in the US would show that support can be withheld from the child as a disciplinary sanction if the child refuses to obey the father. (But mere disagreements or delinquent behavior does not generally terminate support). ROE V. DOE.

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6. To demand from them respect and obedience; 7. To impose discipline on them as may be required under the circumstances; and 8. To perform such other duties as are imposed by law upon parents and guardians. Art. 221: Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. Art. 222: The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires.

Art. 223: The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper.

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Parents are primarily liable (civilly) for injuries and damages caused by the acts and omissions of their unemancipated children living in their company and under their parental authority.

Exception: if parents can show that they exercised the diligence of a good father, then no liability.

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Court may appoint a guardian for purposes of the lawsuit when the best interest of the child requires it. GUARDIANSHIP: trust relation of the most sacred character.  Person who has parental authority may seek the assistance of the court to discipline the child and with a counsel shall undergo a summary hearing.  If the court finds that it is the petitioner at fault, the court may suspend or deprive him of parental authority.  During the commitment of the child the parent cannot interfere with the care of the child but will provide support.  The court may terminate the commitment of the child whenever just and proper.

Art. 224: The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper.

EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN Art. 225. The father and the mother shall jointly  No need for a judicial court to appoint

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exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

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parents as guardians. It is presumed that the parents act for the best interest of the child. Prohibition (cases where a parent cannot be the administrator of the property): 1. When a parent is disinherited and his/her child inherits from the child’s grandparents his share of the compulsory inheritance, the parent cannot administer such property. The parent however can administer whatever is given to the child by way of voluntary will. 2. When the parent is unfit to administer the property and thus a guardian is needed. - Parent’s authority over the estate of the ward as a legal-guardian would not extend to acts of encumbrance or disposition, as distinguished from acts of management or administration. 1. if the market value of total property or income of child is more than P50k, the parent has to give a bond not less than 10% of value of property to guarantee performance of the obligations prescribed for general guardians. (to be sure that guardians don’t abuse their authority and do what they are required to do) 2. rules on guardianship apply supplementary to parents, but if child is under substitute parental authority or guardian is a stranger then rules on guardianship apply. *parent’s authority over the estate does not include alienation or encumbrance, or compromise or waiver (void). – authority is needed from court.  Child’s salary still for his/her exclusively used for benefit of child but child also has obligation to support ascendants thus salary can be used.  Parent’s cannot use property for personal use.

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The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family.

-the child shall own exclusively whatever he earns or by onerous or gratuitous title. -the fruits of such can only be used by the parents for the support of the child and secondarily for the support of the family.  Parents who engage their unemancipated child to take care of their properties are to give their child a monthly allowance taken from the gross proceeds of the property for the month. Such will not be charged to the child’s legitime.  The net proceeds or the balance left after the payment of the allowance and expenses will go to the parents

Art. 227: If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime. SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY Art. 228: Parental authority terminates permanently:  The court upon the death of the parents can 1. Upon the death of the parents; appoint a guardian on petition of a relative, 2. Upon the death of the child; or family friend, or DSWD. 3. Upon emancipation of the child.  These situations extinguishes parental authority Art. 229: Unless subsequently revived by a final Grounds for termination: judgment, parental authority also terminates: 1. Adoption – all legal ties are severed an are 1. Upon adoption of the child; vested on the adopter. 2. Upon appointment of a general guardian; 2. appointment of guardian 3. Upon judicial declaration of abandonment of the 3. abandonment of child (upon judicial child in a case filed for the purpose; declaration in a case filed for the purpose) 4. Upon final judgment of a competent court divesting 4. final judgment from court depriving parental the party concerned of parental authority; or authority 5. Upon judicial declaration of absence or incapacity of 5. judicial declaration of absence or incapacity the person exercising parental authority. of person Art. 230: Parental authority is suspended upon - parental authority is suspended upon conviction of conviction of the parent or the person exercising the the parent of a crime that has civil interdiction (loss of same of a crime which carries with it the penalty of rights of parental authority, guardianship to person civil interdiction. The authority is automatically and property of ward, marital authority, right to reinstated upon service of the penalty or upon pardon manage his property and right to dispose of such. or amnesty of the offender.

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*parental authority cannot be revived in these cases.

*for the reinstatement of parental authority judicial declaration is needed for reinstatement of parental authority.

*parental authority is automatically reinstated upon service of sentence or pardon.

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Art. 231: The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same: 1.Treats the child with excessive harshness or cruelty 2. Gives the child corrupting orders, counsel or example; 3. Compels the child to beg; or 4. Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases, which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. Art. 232: If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.

Art. 233: The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher of

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Suspension of parental authority (can be from a case related, offshoot of another case. Does not have to be case filed for the purpose) 1. treats the child with excessive harshness or cruelty 2. gives child corrupting orders, example or counsel 3. Compels the child to beg 4. Subjects or allows him to be subject to acts of lasciviousness (not actual sexual act, force or intimidation with lewd design) * This may include cases where the parent was negligent or didn’t do anything about the situation.

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If the person exercising parental authority has subjected the child or allowed him to be subjected (culpable negligence of a parent) to sexual abuse parental authority will be permanently deprived Under RPC: any person entrusted with parental authority of a child under 16 years of age to deliver, gratuitously or in consideration of a price, such child to vagrant or beggar, employs children in exhibitions (circus, carnival, etc.) Corporal punishment of those with special parental authority: - those exercising substitute parental authority will have all the same rights and authorities

*if the degree or seriousness so warrants parent may be deprived of authority. *Parental authority may be revived in a case filed for its purpose or in the same proceeding if the court finds that the cause has ceased.

*parental authority cannot be revived for sexual abuse. *RPC: parental authority can be deprived or suspended up to the discretion of the courts.

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individual engaged in child care exercising special parental authority inflict corporal punishment upon the child.

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over the child (can inflict corporal punishment) those with special parental authority cannot inflict corporal punishment on the child. (schools can impose certain measures of disciplinary action but cannot inflict any physical punishment)

Criminal liability of parents: 1. conceals or abandons the child with intent to make him/her loose his civil status 2. abandons child depriving him of the love, care, and protection he needs 3. sells or abandons child for a valuable consideration 4. neglects the child by not giving him the education which the family can afford 5. fails or refuses without justifiable reason to enroll child 6. causes, abates, or permits truancy of the child. (absence without cause for more than 20 days, not necessarily consecutive) 7. exploits child by using him for begging, etc. 8. inflicts cruel and unusual punishment 9. encourages or causes child to lead an immoral or dissolute life 10. permits child to use or carry dangerous weapons 11. allows or requires child to drive without a license.

EMANCIPATION Art. 234: Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen. Art. 236: Emancipation for any cases shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil of life, save the exceptions established by existing laws in special cases. Contracting marriage shall require parental consent until the age of 21. Nothing in this code shall be construed to

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Emancipation is attained upon reaching 18 years of age. Marriage is no longer a ground for emancipation since now one can only contract a marriage when they marry.

Parental consent is more in keeping with Filipino culture and tradition. - Once emancipated he/she can sue or be sued alone, and is responsible and qualified for all acts of civil life Parent’s liability: - The father and in case of death or incapacity the mother are responsible for the damages caused by the children between 18 and 21 who live in their company. - Parents are also subsidiary liable for the acts or -

*Illegitimate children: liability is with the mother; the father is only relied upon for support.

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derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the civil code.

omission of their emancipated child living in their custody, Guardian’s liability: - Guardians are liable for damages if the person is under their authority and live in their company.

Summary proceedings: - claims for damages by either spouse must be done in a separate action. - Preliminary conference: done by judge with the parties w/o counsel. But if the court deems it necessary, they can be assisted by counsel after. - Decisions become final and executory immediately (no more lapse of 15 days etc) however aggrieved party can still appeal to higher courts on the basis of denial of due process. Family courts: - shall establish family courts in every province and city. If the city is the capital of the province then in the municipality with the highest number of people. Jurisdiction over: 1. criminal cases of those 9-18 years of age (but all cases concerning determination of age still with family courts) 2. petitions for guardianship, custody, habeas corpus 3. adoption and revocation thereof 4. annulment, nullity, relating to marital status, property relations, dissolution of CPG 5. support and acknowledgment 6. summary judicial proceedings 7. declaration of status of children, commitment of children, suspension termination or restoration of parental authority. 8. Constitution of family home 9. Cases against minors (dangerous drugs act) 10. Violations of 7610 11. Violations against VAWC (unless becomes criminal in which case offender will be subject to criminal proceedings) *if any become an incident to a case pending in the regular courts it shall be decided there. Funerals: - same arrangement established for support (spouses, descendants then ascendants in the nearest degree, brothers and sisters above 21)  Brothers and sisters or descendants –oldest are preferred, ascendants – paternal is preferred. - In keeping with the social position of the deceased, and in accordance to the expressed wishes of the deceased, in the absence religious beliefs, in case of doubt shall be decided upon by the person making the arrangements after consultation with the family. - Human remains can’t be disposed or exhumed without the consent of the persons in arrangement. - A person who allows disrespect to the dead will be liable to the family for moral and material damages.

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Mausoleum or a tomb is part of funeral expenses, which shall be chargeable to the property regime if the spouse is making arrangements.

USE OF SURNAMES Art. 364: Legitimate and legitimated children shall principally use the surname of the father. Art. 365: An adopted child shall bear the surname of the adopter.

Art. 366: A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Art. 367: Natural children by legal fiction shall principally employ the surname of the father.

Art. 368: Illegitimate children referred to in Article 287 shall bear the surname of the mother.

Art. 369: Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.

Art. 370: A married woman may use: 1. Her maiden first name and surname and add her husband's surname, or 2. Her maiden first name and her husband's

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Legitimate, legitimated children use surname of their dad

Adopted children are considered the legitimate child of the adopter for all intents and purposes and thus is entitled to all the rights and obligations provided by law. - Adopted children bear the name of their adopter. Art. 176: illegitimate children shall use the surname of the mother and shall be under their parental control. - Art. 176 however does not apply if the father of the illegitimate child is certain as when the said father categorically admits that the illegitimate common child is his and at the same time such father lives with the illegitimate child and the mother. -

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Illegitimate children shall principally use the name of the mother

Exception: father is certain or recognizes illegitimate child and the father lives with the illegitimate child and mother. Then can use fathers surname

Children conceived before the decree annulling a voidable marriage shall use surname of father. - Decree of annulment is final 15 days after it is made thus even if the child was born during that 15 day period the child will still be legitimate. Married woman may use: 1. Her own name 2. maiden first name, surname and husbands surname -

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surname or 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."

3. maiden name and her husbands surname 4. husbands full name plus “Mrs.” * Option is give to the woman.

Art. 371: In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: 1. The court decrees otherwise, or 2. She or the former husband is married again to another person.

In case of annulment: 1. wife is guilty: shall resume her maiden name 2. innocent: resume her maiden name or continue using her husbands name unless the court decrees otherwise or if either of them remarries. In case of legal separation: wife will continue to use the name she used prior to separation Widow: may continue to use deceased husband’s surname

Art. 372: When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373: A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374: In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.

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If there are similar names, the younger will be obliged to use additional names If between ascendants and descendants the word “junior” can only be used by a son.

Grandsons and direct male descendants will use: 1. add middle name or mothers surname add roman numerals

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No change in name or surname without judicial

Exception: if it is for merely

Art. 375: In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: 1. Add a middle name or the mother's surname, or 2. Add the Roman Numerals II, III, and so on. Art. 376: No person can change his name or

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surname without judicial authority.

Art. 377: Usurpation of a name and surname may be the subject of an action for damages and other relief. Art. 378: The unauthorized or unlawful use of another person's surname gives a right of action to the latter. Art. 379: The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.

authority Reasons for change in surname: 1. ridiculous name 2. change of civil status 3. to avoid confusion *laws do not permit a legitimate child of another to adopt the surname of another person even if that person is exercising parental authority. But if it is an illegitimate child, change of surname is permitted - change of name does not alter family relations, rights or duties, legal capacity, civil status or citizenship.   

The usurpation or use of a name and surname without authority could result in a claim for damages Unauthorized or unlawful use of another’s name also gives right for an action to the latter. Pen names and stage names permitted as long as done in good faith and no one gets injured.

changing clerical or typographical error no need for judicial authority (must not involve a change in nationality, age, status, or sex) Change in nickname: 1. ridiculous, tainted with dishonor, difficult to pronounce 2. habitually used and known by other people as that 3. change will avoid confusion. *usurpation means some injury to the interests of the person (possibility of confusion of identity etc)

*stage names cannot be usurped as the people have vested rights in them as well.

Art. 380: Except as provided in the preceding article, no person shall use different names and surnames.

Absence: - at the instance of an interested party the judge may appoint a person to represent him - judge shall take necessary measures to safeguard rights and interests of absentee (specify powers, regulations etc.) –spouse is preferred if no legal separation. Declaration of absence - 2 yrs if no news about the absentee - 5 yrs if absentee left someone in charge Who may seek *judicial declaration shall not take effect until 6 - spouse present declaration of absence months after its publication. - heirs instituted in a will

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Some of its effects

Termination of administration Presumption of death through absence Presumption of death in dangerous situations

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-

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relatives who may succeed by the law of intestacy (legitimate, illegitimate relatives, collateral relatives) those who have right to the property subordinated to the condition of his death cause for involuntary judicial separation basis for termination of property regime transfer of exclusive properties to the present spouse termination of parental authority when absentee appears of his agent death of the absentee is proved and his heirs appear 3rd person appears with a right over the property 7 years for intents and purposes except succession 10 yrs for purposes of opening succession if disappeared after the age of 75, 5 years enough on board a lost vessel during sea voyage, airplane that is missing and has not been heard of in 4 years since loss. (if there is a wreckage and person is missing, not 4 years) Person in the armed forces engaged in war and is missing for 4 years Person in danger of death and existence has not been known for 4 years.

*spouse can’t alienate/encumber property without judicial authority.

*if the absentee appears or his existence is proven he shall recover all his property in the condition they are in but cannot claim the fruits or rents. *if the absentee is the heir, his share shall accrue to his co-heirs, unless hi has heirs or a representative. (right of representation). If absentee reappears he has claim to get what was supposed to be his from those that got it within the prescriptive period.

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ADDITIONAL NOTES AND REVIEW AIDS: Adoption: Right to create relationship of parent and child between persons who are not related exists only by virtue of statute. Domestic adoption - Policy of the state to ensure that child is provided with love, care and remains with parents and only when the child can’t be placed with extended family shall adoption by unrelated person be considered. In accordance with tenets of: 1. UN Convention on Rights of a Child 2. UN Declaration of Social and Legal Principles Relating to the Protection and Welfare of Children 3. Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. State Policy: 1. Safeguard biological parents from making hurried decisions. (Counseling, no commitment to a potential adopter before birth, etc.) 2. Prevent child from unnecessary separation from parents 3. Protect adoptive parents from disturbance of their parental authority over adopted. 4. Promote sensitive environment for adoption through campaigns and public information 5. Government has sufficient capacity to provide for adoption properly. 6. Encourage domestic adoption and make inter-country adoption a last resort. - Being a statutory creation, all requirements must be met with if not, no rights may flow from this. Pre-Adoption Services: Counseling for natural parents, adopter, and adoptee. Eligibility: 1. Filipino citizen of legal age with full civil capacity and legal rights. a. Not convicted of a crime involving moral turpitude b. Emotionally/Psychologically capable of caring for children c. At least 16 years older then the adoptee (unless adopter is the biological parent or spouse of the biological parent) d. In a position to support and care for 2. Aliens with same qualifications plus a. Country has diplomatic relations with Philippines b. Living in the Philippines for at least 3 continuous years i. Residency requirement is waived if the adopter was: 1. Former Filipino citizen who seeks to adopt a relative with in the 4th degree of consanguinity or affinity 2. Seeks to adopt legitimate child of Filipino spouse 3. One who is married to a Filipino and seeks to adopt jointly with her a relative within the 4 th degree of consanguinity or affinity of Filipino spouse. c. Foreign country will allow the adoptee to enter such country d. Certified to be legally capacitated to adopt

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3. Guardian with respect to ward (after clearance of finances Husband and wife shall jointly adopt except: 1. One spouse seeks to adopt legitimate child of other 2. One spouse adopts his/her own illegitimate child provided other spouse signifies consent to this 3. Spouses are legally separated Who may be adopted: 1. Below 18, judicially/administratively declared available for adoption 2. Legitimate child of one spouse by the other 3. Illegitimate child by qualified adopter to improve status 4. A person of legal age of when younger was treated as adopter’s child since minority 5. A childe whose adoption has been previously rescinded 6. Child where parents have died (no proceeding until after 6 months from time of death) Consent needed: To make sure everyone knows and accepts the adoption 1. The adoptee if 10 years and over 2. Who ever has legal custody of the child (parent, guardian, gov’t.) 3. Legitimate and adopted children of adoptee (10 years and above) 4. Illegitimate children if living with adopter (10 years or over) 5. Spouse of adopter - No consent can be given prior to birth of child. 6-month period to revoke consent by parent after decision has been made. After that consent is binding. Procedure: 1. Court needs proof that there wasn’t a hurried decision. 2. Social worker should make case study of adopter and adoptee prior to any hearing for adoption 3. Before adoption decree becomes final there is 6 month custody period - Only a direct attack in cases of adoption, can’t be collaterally attacked - Decree becomes effective as of the date petition was filed  Retroacts except when it comes to vicarious liability - Hearing in adoption cases will be considered confidential and not open to public. Effects of Adoption: 1. Parental authority – all legal ties between biological parent and adoptee severed (unless biological is the one adopting) 2. Legitimacy – for all intents and purposes adoptee is considered legitimate child a. Relationship established is only between parent and child, does not extend to other relatives unless expressly provided by law 3. Succession - adopter and adoptee become legitimate/ legal heirs of one another (entitled to legitime), biological parents won’t get anything. - No right of representation (Meaning if adopter dies, adoptee can’t get from parents of adopter) - Does not inherit form the other relatives, etc. - However if something is left by will the adoptee/biological parent can inherit (from the free portion)

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Rescission of adoption: by adoptee or guardian: 1. Repeated physical or verbal maltreatment 2. Attempt on the life of the adoptee 3. Sexual assault or violence 4. Abandonment and failure to comply with parental obligations - Adopter cannot rescind adoption (can only disinherit) - If adoption is rescinded then parental authority of biological parents or Department of Social Welfare will be restored if adoptee is still a minor. But adopter and adoptee relationship extinguished. Inter-country Adoption: - Socio-legal process of adopting a Filipino Child by a foreign national or Filipino Citizen residing abroad where petition for adoption is filed Inter-country adoption board: act as central authority for all matters relating to inter-country adoption - Board shall ensure that adoption in family code has been exhausted and inter-country adoption is in the best interest of the child. - The board upon recommendation of the placement committee shall only approve matching of a child to a foreign adoptive family. Functions of Board: 1. Rules and regulations 2. Guidelines for the convening of inter-country adoption placement committee 3. Guidelines for Matching/Collection 4. Fees and Charges to be executed 5. Form and Contents of application 6. Formulate policies etc to protect children 7. Prevent improper financial gain 8. Promote development of adoption service 9. Accredit/authorize foreign adoption agency 10. Ensure confidentiality of records 11. Prepare/Modify agreements 12. Assist other agencies 13. Others Who may be adopted: Only a legally free child (voluntarily or involuntarily committed) Who may adopt: Any alien or Filipino citizen residing abroad provided: 1. At least 27 years old and 16 years older then the adopted unless adopter is biological parent. If married, they must jointly file adoption. 2. Has capacity to act and assume rights and responsibilities of a parent under his national laws. Also has undergone counseling form an accredited counselor in his/her country 3. Not been convicted of a crime involving moral turpitude 4. Eligible to adopt under his nationality laws 5. Able to give proper care and support 6. Agrees to uphold basic rights of child

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7. Comes from a country that the Philippines has diplomatic ties with. (Philippine maintains authorized and accredited agency, adoption is allowed under his or her laws) - To be filed with the RTC or the board through an agency. Matching: Judicious pairing of the applicant and the child to promote a mentally satisfying parent-child relationship. - No matching arrangement between applicant and parents before the committee’s proposal unless it is relative or it is for the child’s best interest. - Applicant must fetch child within 30 days after notice of issuance of visa. Trial custody: 6 months with submission of progress reports before adoption decree becomes final. - If pre-adoptive relationship is unsatisfactory, it will be terminated and Board may choose from roster of applicants a qualified family, absence the foreign agency may propose. Executive Agreement: DFA upon representation of the Board shall cause the preparation of Executive Agreements with countries of the foreign adoption agencies. Illegal Adoption (presumed): 1. Consent for adoption acquired through or attended by force, coercion, etc. 2. No authority from board 3. Procedures and safeguards not complied with 4. Child exposed to danger, abuse and exploitation - Attempt to commit offense punishable - Acts punishable above considered child trafficking RA 7610: Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act. - State shall intervene when person who is supposed to protect a child cannot or if those acts are being committed by the parent against the child. Children 18 years or below or those above 18 but are unable to protect themselves from exploitation/discrimination due to physical or mental disability. Child Abuse: habitual or non-habitual maltreatment 1. Psychological or physical abuse (neglect, cruelty emotional maltreatment, sexual abuse) 2. Acts by deeds or words, which degrades or demeans intrinsic worth or human dignity of child. 3. Unreasonable deprivation of basic needs 4. Failure to give immediate medical treatment when needed. Circumstances, which gravely threaten or endanger survival and normal development: 1. Living in an area affected by armed conflict 2. Working under conditions hazardous to life, safety, morals 3. Living or fending for themselves without the care of anyone 4. Living in an area lacking basic services (indigenous cultural community, extreme poverty, underdeveloped area) 5. Victim of calamity 6. Analogous situations.

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Child prostitution and other sexual acts/abuse: For any consideration or through coercion or influence indulge in sexual acts. Attempt to commit: Any person who is in a secluded area with a child and such person is not a relative. Child trafficking: trading, dealing, buying, and selling of children Attempt to commit: Child travels alone to foreign country without reason or clearance form DSWS, pregnant women consents to adoption for a consideration, establishment which recruits women to bear children. Person engaged in finding children from low-income families. Obscene publications and indecent shows: perform obscene exhibitions in shows, video or model and sells/distributes this. Other acts of abuse: use coercion, force or intimidation to make a child beg, traffic drugs, or conduct other illegal activities - Establishments where these acts are done will be closed and their license to operate will be canceled. Working Children: below 15 years of age can work provided: 1. Work permit from DOLE 2. Employer shall ensure protection, health, safety, morals 3. Prevent exploitation or discrimination 4. Continuous training of child - Cant employ child in commercials for alcohol, tobacco, violence Children of Indigenous Cultural Communities: - Institute an alternative education for children which is culture specific and relevant to their needs - Delivery of basic social services. Situations of Armed Conflict: - Policy of state to resolve such for best interest of children 1. Shall not be object of attack; entitled to special respect 2. Not recruited in army 3. Delivery of basic social services 4. Public infrastructures (schools, hospitals) not to be used 5. Facilitate reunion of families Children arrested for reasons of armed conflict: 1. Separate detention cells from adults unless they are family. 2. Immediate free legal assistance 3. Immediate notice to parents 4. Release within 24 hours to DSWD or other Who may file: offended parents/ guardians, ascendants, relative within the 3rd degree of consanguinity social worker of DSWS or other, Barangay chairman, 3 citizens of the place where it occurred.

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Article 86: Donor may revoke donation by reason of marriage in the following cases

Article 87

5. Marriage is not celebrated or is void ab initio (including art. 52-53) Prescription: - marriage is void: 5 years from Judicial Declaration of Nullity (if doesn’t want to give it back, prescribe after 8 years for movable, 30 years for immovable) - marriage not celebrated: 5 years from when it was not celebrated 6. Marriage takes place without consent of parents Prescription: - 5 years from the time he had knowledge that consent was not obtained, after the marriage. 7. Upon legal separation when donee is the guilty spouse Prescription: - 5 years from finality of decree. 8. When there is a resolutory cause and the condition has been complied with Prescription: 5 years from the happening of the resolutory condition. 6. Acts of ingratitude: - donee commits an offense against the person or property of the donor, his wife, or children - donee imputes to the donor any criminal offense involving moral turpitude unless it against the donee - donee unduly refuses to support donor when he is legally or morally bound to give support. Prescription: - 1 year from the time the donor had knowledge of the fact of ingratitude -husband and wife can’t donate to each other -also those who cohabitate with each other

Exception: If the donation is in the marriage settlement it will be revoked by operation of law. Exception: If the marriage is void due to Article 40, or Article 44, then automatically revoked

Exception: if the ground for legal separation is infidelity in the form of adultery or concubinage it will be automatically void. Exception: between husband and wife prescription does not run.

Exception: can give moderate gifts.

Revoked by operation of law: 1. Article 43: Donations made in subsequent marriages without judicial declaration of nullity or in case of reappearance if the donee acted with bad faith.

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2. Article 44: When both spouses acted with bad faith then all donations and testamentary dispositions shall be revoked. 3. Article 64: (Legal separation) the offending spouse will be disqualified from inheriting from innocent spouse in intestate succession, provisions in favor of the offending spouse in the will of the innocent spouse shall be revoked by operation of law. 4. Article 81: Donations and other stipulations made in the marriage settlement by reason of marriage shall be revoked by operation of law is marriage is not celebrated 5. Article 87: Donations between husband and wife (direct or indirect), or those who cohabit = void a. Even if made by both spouses for a purpose other than vocational or professional. 6. Donations given to one by another when they have committed adultery or concubinage is void and revoked by operation of law. CHILDREN: Rights under title 12 of civil code 1. entitled to parental care 2. receive at least elementary education 3. moral and civic training 4. live in an atmosphere conducive to his physical, moral and intellectual development duties of the child 1. obey and honor his parents or guardian 2. respect his grandparents, old relatives and those with substitute parental authority. 3. Exert his utmost for his education and training. 4. Cooperate with the family

Legitimate Those conceived in the 15-day period prior to the finality of the decree of annulment. Conceived or born before a voidable marriage is terminated Children conceived or born in a void marriage pursuant to article 40, 52, and 53 Children conceived or born in a void marriage because of psychological incapacity *but if child was conceived and born prior to the marriage, marriage does not make child legitimate Children conceived and born prior to the marriage if there are no legal impediments at that time then the subsequent marriage will make them legitimate.

Illegitimate Children born in a valid marriage but is impugned by the father Children conceived or born in a void marriage Cannot be legitimated: when from an adulterous relationship or bigamous marriage.

Exception to when parents cannot administer property:

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1. children and descendants of he person disinherited shall take his place and shall preserve rights of compulsory heirs with respect to legitime. i. Article. 919: following shall be sufficient causes for disinheritance of children, descendants 1. Child or descendant has been found guilty of an attempt against the life of the testator his or her spouse, descendants or ascendants. 2. When the child, descendant has accused the testator of a crime, which the law prescribes imprisonment for 6 years or more, if it is found to be groundless. 3. When a child or d has been convicted with adultery or concubinage with the spouse of the testator. 4. When a child or d by fraud, violence, intimidation, or undue influence causes the testator to make a will or change one he has already made. 5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant 6. Maltreatment of the testator by word or deed by the child or d 7. Child or descendant leads a dishonorable or disgraceful life 8. Conviction of a crime with civil interdiction ii. Article 920: following shall be sufficient causes for disinheritance of parents or ascendants, whether legitimate or illegitimate 1. When parents have abandoned their children, induced their daughters to live corrupt or immoral life, or attempted against their virtue 2. Parent or ascendant has been convicted of an attempt against the life of the testator his or her spouse, descendants or ascendants. 3. Accused testator of a crime… 4. Parent or ascendant convicted of concubinage with spouse of testator 5. Parent or ascendant by fraud, violence, undue influence causes new will or change will 6. Loss of parental authority 7. Refusal to support children or descendants without justifiable cause. 8. Attempt of one of the parents against the life of the other, unless there has been reconciliation iii. Article 921: disinheriting a spouse 1. Spouse convicted of attempt against.. 2. Spouse accused testator of crime… 3. Spouse by fraud, intimidation… 4. Spouse has given cause for legal separation 5. When the spouse has given grounds for loss of parental authority. 6. Unjustifiable refusal to support the children or other spouse 2. When parent is incapacitated to succeed one due to unworthiness: i. Art. 1032: unworthiness 1. Parents abandoned their children, or induced their daughters to live a corrupt or immoral life, attempted against her virtue

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2. Convicted of an attempt against the life of the testator, his spouse, or descendants or ascendants. 3. Accused of a crime… 4. Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer within a month unless authorities have already taken action. (not applicable wherein law there is no obligation to make an accusation. 5. Person convicted or adultery or concubinage with the spouse of the testator 6. Cause testator to make or change will 7. By same means, prevents one from making will, revoking will, or concealing will 8. Falsifies or forges will of decedent b. Incapable of succeeding i. Art. 1027: the following are incapable of succeeding 1. Priest etc who hear confession of testator during his last illness or minister who extended spiritual aid to him 2. Relatives of 1 within the fourth degree, the church or institution to which such minister may belong 3. Those made to a guardian by his ward before the final accounts have been approved unless guardian is ascendant, descendant, brother or sister or spouse 4. Any attesting witness to the execution of a will, the spouse, parents or children or an one claiming under such witness, spouse, parents or children. 5. Physician, surgeon, nurse, etc who took care of testator during last illness 6. Individuals, associations, corporations not permitted by law to inherit.



Prohibited compromise: matters which cannot be negotiated nor set by agreement:  Civil status  Validity of marriage or of a legal separation  Ground for legal separation  Future support  Jurisdiction of the courts  Future legitimes

Abandonment: he or she has left the conjugal dwelling without intention of returning. A spouse who has left the conjugal dwelling for a period of 3 months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (physical, financial and moral desertion) - spouse can seek for receivership, judicial separation of property, and sole administration - abandonment for more than one year can lead to legal separation

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Deadlines: Article Article 30 Article 38 Article 47 *If ratified then can no longer be annulled. Article 47 Article 47 Article 47 Article 47 Article 47 Article 50-51 Article 57 Article 58 Article 61 Article 61 Article 64

Article 182

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Contents Marriage certificate with affidavit for marriages in articulo mortis or remote residence Action or defense for absolute nullity (anyone can file)

Deadlines/prescriptions Within 30 days after the performance of the marriage Does not prescribe

For one who obtains a marriage without prior consent after he reaches the age of 21

- Any time between 18-21 years old by parents - 5 years after reaching 21 by the party.

By the sane spouse without knowledge of insanity, relative, guardian, or person having legal charge By the insane during a lucid interval Consent through fraud Consent through intimidation, force, undue influence For STD and physical incapacity Entry of judgment and decree of nullity become final Prescription of action for legal separation Legal separation trial (during trial they are entitled to live separately already) After filing of complaint respondent should answer but is not in default if not answered Action for legal separation Revocation by choice of the innocent spouse of donations after decree of legal separation

Anytime before the death of either party.

Impugning legitimacy by those who are prejudiced

Anytime before the death of either 5 years after having knowledge 5 years after it ceases 5 years after the marriage 15 days from receipt of the parties of the decision 5years from the occurrence of the cause. After the laps of 6 months after the filing of the petition. 15 days after receipt of summons Terminates upon death of either spouse 5 years after the decree of legal separation becomes final. (Unless the donation is actually void Art. 87) 5 years from the time their cause of action accrues

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Persons-and-Family-relations-summary-Sta.-Maria

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