UP 2010 Civil Law Persons and Family Relations

Prof. Carolina Austria Faculty Editor

Anisah Azis Karen Torres Lead Writer Dana Crisostomo Jaimmie Hans Nathan Pico Zharmai Garcia Rowena Yang Margie Lim Jiselle Compuesto Mickey Chatto

Eden Mopia Faye Celso Mark Oyales Camille Umali JC Punongbayan Mary Beley Aboy Bayalan Welga Carrasco Joan Batimana Writers

CIVIL LAW Kristine Bongcaron Patricia Tobias Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE Lilibeth Perez

BAR CANDIDATES WELFARE Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

Chapter I. Civil Personality I.

II.

I.

CONCEPT AND CLASSES OF PERSONS A. NATURAL PERSONS B. JURIDICAL PERSONS CAPACITY AND RESTRICTIONS THEREON A. PRESUMPTIONS OF CAPACITY B. RESTRICTIONS 1. MINORITY 2. INSANITY 3. BEING DEAF-MUTE 4. PRODIGALITY 5. CIVIL INTERDICTION 6. FAMILY RELATIONS 7. ABSENCE

Concept and Classes of Persons

Concept of Persons—  Personality is the quality derived from being a person; it is an attribute of persons. Characteristics— 1. It is not a being, but a quality of certain beings. 1. It is not a physical element, but a juridical concept. 2. It is not an object of contract, or of possession, and cannot be impaired by agreement. 2. It is a matter of public interest. Article 37, Civil Code. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.

Kinds of Juridical Capacity— 1. Juridical Capacity:  aka as Legal Capacity/Personality = Fitness of man to be the subject of legal relations  It refers to the aptitude for the holding and enjoyment of rights.  It is inherent in every natural person and is lost only through death. This attaches to man by the mere fact of his being a man. 2. Capacity to Act:  It refers to the power to do acts with legal effect.  It is conditional and variable. It is acquired and may be lost. It requires both intelligence and will. Note: Juridical capacity can exist even without capacity to act; the existence of

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Chapter I. CIVIL PERSONALITY

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the latter implies that of the former. The capacity or incapacity of persons depends upon the law. Both juridical capacity and capacity to act are not rights but qualities of persons; hence, they cannot be renounced.

A. Natural Persons (asked in ’99 bar exam) General Rule: Birth determines personality (Art 40). Death extinguishes civil personality (Art 42). Exception: a “conceived child shall be considered born for all purposes that are FAVORABLE to it, provided it be born later” (Art 40, 2nd clause) with the following circumstances: a. From the time it is completely delivered from the mother's womb. b. But if the fetus had an intra-uterine life of less than seven months, it should survive for at least 24 hours after its complete delivery. (Art. 41, CC) Article 40, Civil Code. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.

Birth = complete removal of the fetus from the mother’s womb; before birth, a fetus is merely part of the mother’s internal organs Personality of Conceived Child— 1. Limited = only for purposes FAVORABLE to it 2. Conditional = it depends upon the child being born alive later Period of Conception = the first 120 days of the 300 days preceding the birth of the child A conceived child can acquire rights while still in the mother’s womb. It can inherit by will or by intestacy. Geluz v CA, (1961)— An aborted fetus had conditional personality but never acquired legal rights/civil personality because it was not alive at the time of delivery from the mother’s womb. No damages can be claimed in behalf of the unborn child. Article 41, Civil Code For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.


Complete respiration independent life

=

test/sign

of

4

Note: For a fetus that had an intra-uterine life of less than seven months, it is necessary that it lives for at least 24 hours, for it to be considered born. Article 42, Civil Code. extinguished by death.

Civil

personality

is

The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will.

People v. Tirol, (1981)— Criminal liability ends with death BUT civil liability may be charged against the estate. Article 43, Civil Code. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Note: Article 43 provides a statutory presumption when there is doubt on the order of death between persons who are called to succeed each other (only). Joaquin v. Navarro, (1948)— The statutory presumption of Article 43 was not applied due to the presence of a credible eyewitness as to who died first. Presumption in the Rules of Court (Rule 123, sec. 69, par. ii)— 1. 2. 3. 4.

5. 6.

Age Both under 15 Both above 60 One under 15, the other above 60 Both over 15 and under 60; different sexes Both over 15 and under 60; same sex One under 15 or over 60, the other between those ages

Presumed Survivor Older Younger One under 15 Male

Older One between 15 and 60

Note: Applicable only to two or more persons who perish in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred.

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B. Juridical Persons Juridical Persons (Art 44, Civil Code)— 1. The State and its Political subdivisions; 2. Other Corporations, Institutions and Entities for public interest or purpose, created by law; 3. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. Governing Laws (Art 45, Civil Code)— Juridical Person 1. State

2. 3. 4. 5.

Political Subdivision Public Corporation Private Corporation Partnerships

Governed by Constitution (defines organization and limits rights vis-à-vis citizens) Charter creating them

its its

Article 39, Civil Code. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law.

General Rule: Incapacitated persons are not exempt from certain obligations arising from his acts or property relations. ________________

Charter creating them

1. Minority Corporation Code, Articles of Incorporation and By-Laws Stipulations of the parties and suppletorily by the general provisions on partnership of the Civil Code

Rules— 1. Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (Art. 46, CC) 2. Upon dissolution of corporations or institutions and other entities for public interest, their property and assets shall be disposed of in pursuance of the law or charter creating them. (Art. 47, CC)

II. Capacity to Act and Restrictions Thereon A. Presumption of Capacity Standard Oil Co. v. Arenas, (1911)— Capacity to act is presumed until the contrary is proven, and that it be the reason for the specific act attributed. Proof of restriction: habituality, presence at the time, no other cause

B. Restrictions Article 38, Civil Code. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements.

RA 6809 (1989): An act lowering the age of majority from twenty-one to eighteen years. Effects on Contracts— a. they cannot give consent to a contract [Art 1327 (1), CC] b. a contract where one of the parties is a minor is voidable [Art 1390(1),CC] c. a contract is unenforceable when both of the parties are minors (incapable of giving consent) [Art 1403(3), CC] d. minority cannot be asserted by the other party in an action for annulment (Art 1397, CC) e. not obliged to make restitution except insofar as he has been benefited (Art 1399, CC) f. minor has no right to demand the thing/price voluntarily returned by him (Art 1426, CC) g. minor has no right to recover voluntarily paid sum or delivered thing, if consumed in good faith (Art 1427, CC) h. must pay reasonable amount for necessaries delivered to him (Art 1489, CC)

Mercado v. Espiritu, (1918)— Estoppel works against minors who misrepresent their ages in a contract and are compelled to comply with its terms. Bambalan v. Maramba, (1928)—


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When a minor made no active misrepresentation as to his minority and such minority is known to the other party, the contract is voidable (Art 1403) as to the minor. Braganza v. Villa Abrille, (1959)— Minors are obliged to make restitution insofar as they have been benefited (Art 1399) Effects on Marriage— a. May not yet contract marriage (Art 5, FC) b. marriages, where one of the parties is below 18, even with the consent of parents/guardians, are VOID (Art 35, FC)


c.

read personally by him or communicated to him by 2 persons (Art 807, CC) cannot be a witness to the execution of a will (Art 820, CC)

4. Prodigality Martinez v. Martinez, (1902)— A spendthrift or a prodigal is “a person, who, by excessive drinking, gambling, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering.” The acts of prodigality must show a morbid state of mind. Note: It is not the circumstance of prodigality, but the fact of being under guardianship that restricts capacity to act.

2. Insanity Insanity includes many forms of mental disease, either inherited or acquired. A person may not be insane but only mentally deficient (idiocy, imbecility, feeblemindedness). Effect on Contracts— a. incapacity to give consent to a contract [Art 1327(2), CC] b. contracts entered into during lucid intervals are valid (Art. 1328, CC) c. restitution of benefits (Art 1399, CC) Effect on Crimes— a. General rule: EXEMPTED from criminal liability b. Exception: acted during lucid interval Effect on Marriage— a. may be annulled if either party was of unsound mind unless the such party after coming to reason, freely cohabited with the other [Art 45(2), FC] b. action for annulment of marriage must be filed by the sane spouse who had no knowledge of the other’s insanity; or by any relative/guardian of the insane; or by the insane spouse during a lucid interval or after regaining sanity [Art 47(2), FC]

3. State of Being Deaf-Mute a. cannot give consent to a contract if he/she also does not know how to write [Art 1327(2), CC] b. can make a valid WILL, provided: the contents of the same have either been

5. Civil Interdiction a. It is an accessory penalty imposed upon persons who are sentenced to a principal penalty not lower than reclusion temporal (article 41, Revised Penal Code). b. offender is deprived of rights of parental authority, or guardianship, of marital authority, of the right to manage his property and of the right to dispose of such (Art 34, RPC) c. for the validity of marriage settlements, the participation of the guardian shall be indispensible (Art 123, CC) 6. Family Relations a. justifying circumstance if acted in defense of person/rights of spouse, ascendants, descendants, brothers/sisters, and other relatives up th to the 4 civil degree [Art 11(2), RPC] b. mitigating circumstance if acted in the immediate vindication of a grave offense/felony committed against his spouse, ascendants or relatives of the same civil degree [Art 12(5), RPC] c. incestuous and void marriages:  between ascendants and descendants of any degree;  between brothers and sisters, whether full or half-blood. (Art 37, FC) d. donations/grants of gratuitous advantage between spouses during the marriage shall be VOID, except moderate gifts during family occasions (Art 87, FC)


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e. descendants cannot be compelled to testify in a criminal case, against his parents and grandparents  UNLESS: crime was against the descendant OR by one parent against the other (Art 215, FC) f. spouses cannot sell property to each other, except:  absolute separation is agreed upon in the marriage settlements  judicial separation of property (Art 1490, CC) 7. Absence Article 390, Civil Code. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391, Civil Code. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Article 124, FC— a. administration and enjoyment of the CPG shall belong to both spouses jointly b. in case of disagreement, husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy c. if one spouse is incapacitated/unable to administer, sole powers of administration may be assumed by the other spouse. d. General Rule: This power does not include disposition/encumbrance.  Exception: judicial authority or written consent of other spouse



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Chapter II. CITIZENSHIP AND DOMICILE

Chapter II. Citizenship and Domicile (asked in ’75, ’81, ’87, ’93, ’05 and ’08 bar exams) I. II.

WHO ARE FILIPINO CITIZENS DOMICILE A. REQUISITES OF DOMICILE B. KINDS OF DOMICILE

I.

Who are Filipinos

1. Domicile of Origin  Domicile of parents of a person at the time he was born. 2. Domicile of Choice  Domicile chosen by a person, changing his domicile of origin.  A 3rd requisite is necessary – intention not to return to one’s domicile as his permanent place.

1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. (Art IV, §1, 1987 Philippine Constitution) Note: These have superseded the rules on citizenship enumerated in the Civil Code. Citizen = owes allegiance to the state and is entitled to its protection

II. Domicile For Natural Persons— the place of their habitual residence (Art. 50, CC). For Natural Persons— the place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (Art. 51, CC). Domicile vs. Residence— While domicile is permanent (there is intent to remain), residence is temporary and may be changed anytime (there is no necessary intent to remain). ________________

A. Requisites of Domicile (Callejo v. Vera) 1. Physical Presence 2. Intent to remain permanently manendi)

B. Kinds of Domicile

(animus

3. Domicile by Operation of Law (i.e., Article 69, domicile of minor)  Romualdez-Marcos vs. Comelec (1995)— A married woman does not lose her domicile to her husband.

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Chapter III. Marriage

Chapter III. MARRIAGE quasi-delict and is governed by the provisions of this Chapter.

DEFINITION AND NATURE OF MARRIAGE REQUISITES OF MARRIAGE A. ESSENTIAL REQUISITES B. FORMAL REQUISITES III. MARRIAGES SOLEMNIZED ABROAD IV. PRESUMPTION OF MARRIAGE



I.



I. II.

Definition and Nature of Marriage

(asked in ’91, ’92 and ’99 bar exams) Definition of Marriage (Art 1 FC)— What Who How Purpose Significance

SPECIAL CONTRACT of permanent union Between a MAN and a WOMAN Entered into in accordance with LAW Establishment of CONJUGAL and FAMILY life FOUNDATION of the family and an INVIOLABLE SOCIAL INSTITUTION whose nature, consequences and incidents are governed by law and not subject to stipulations EXCEPT that marriage settlements may fix the property relations during the marriage within the limits provided by this code.

Breach of Promise to Marry — (asked in ’09 bar exam) 1. As a general rule breach of promise to marry is not an actionable wrong (Tanjanco v CA, Wassmer v Velez) and cannot give rise to liability for damages in line with the principle of freedom of consent in marriage (Art 2(2) Family Code). (Reyes) 2. However damages may be claimed based on the principles laid down in Art 19-21 & 2176 of the CC Art. 19, Civil Code. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20, Civil Code. Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same. Art. 21, Civil Code. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Art. 2176, Civil Code. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a



EXPENSES or other incidents that directly arose from the contract to marry can be claimed IF the breach of promise was done in a manner considered as contrary to morals, good customs or public policy (cost of wedding preparations). (Wassmer v Velez) LOST WAGES arising from voluntary dismissal in anticipation of marriage can be sued for. (Tanjanco v CA) EXPENSES made for the renovation of an anticipated conjugal home can be sued for. (Piccininni v. Hajus-US Jurisprudence)

II. Requisites of Marriage (asked in ’76, ’82, ’89, ’90, ’99, ’02, ’04, ’07, and ‘09 bar exams)

A. Essential Requisites of Marriage Essential Requisites [LC]— 1. Legal Capacity of the contracting parties, who must be a male and a female 2. Consent (of the parties) freely given in the presence of a solemnizing officer. (Art. 2 FC) Legal Capacity— Male or female>=18, not under any impediments mentioned in Art 37 (incestuous marriage) & Art 38 (marriage against public policy), may contract marriage. (Art 5) Must be Male and Female— 1. Jones v Hallahan, (1973): Application for marriage license was denied since marriage is defined by law as a contract entered into between a man and a woman. 2. Silverio v Republic, (2007): Changing of gender in one’s birth certificate was denied; otherwise, it would result in confusion and would allow marriage between persons of the same sex which is in defiance of the law, as marriage is a union between a man and a woman. Note: The best source for citing the requirement (of male/female) is still statutory, as provided explicitly in the Family Code. Consent Freely Given— People v Santiago, (51 Phil 68): A marriage entered into by a person whose real intent is


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Chapter III. MARRIAGE

to avoid prosecution for rape is void for total lack of consent. The accused did not intend to be married. He merely used such marriage to escape criminal liability. Absence and Requisites— Effect Illustration

Defect

Absence VOID - marriage entered into by a person <18 (Art 35 (1)) - marriage entered into by persons of the same sex (Jones v Hallahan)

of

Essential

Defect VOIDABLE - consent of either party was obtained through fraud, force, intimidation or undue influence (Art 45 (3) (4)FC)

- marriage contracted through mistake of one contracting party as to the identity of the other (Art 35 (5))

d. A Military commander of a unit may solemnize marriages in articulo mortis between persons within the zone of military operation. (Art 7,32 FC) e. Consul-general, consul or vice-consul may solemnize marriages between Filipino citizens abroad. (Art 7,10 FC) f. Municipal and City Mayors (LGC sec 444 and 455) 2. Marriage is void when solemnized by any person not legally authorized to perform marriages unless either or both parties believed in good faith that the solemnizing officer had legal authority to do so. (Art 35 (2)) 3. Absence & Irregularity of Authority of a solemnizing officer

Effect

Illustration

B. Formal Requisites of Marriage Formal Requisites [AVC]— 1. Authority of Solemnizing Officer 2. A Valid marriage License 3. Marriage Ceremony (Art 4 FC) Authority of Solemnizing Officer— 1. Who may solemnize marriage: (JCSPAMM) a. Incumbent member of the Judiciary within his jurisdiction. (Art 7 FC) b. Priest, Rabbi, Imam or Minister of any Church or Religious Sect. Must be:  Duly authorized by his church or religious sect  Registered with the civil registrar general  Acting within the limits of the written authority granted to him by his church or religious sect.  At least one of the contracting parties belongs to the solemnizing officer’s church or religious sect. (Art 7 FC) c. Ship Captain or Airplane Chief may solemnize a marriage in articulo mortis between passengers or crew members (Art 7,31 FC)

Absence VOID

Marriage is void when solemnized by a priest not duly authorized by his Church to solemnize marriage. (Art 7 FC)

Irregularity No effect on validity but party responsible will be liable. lack of valid notification of both parties desiring a ceremony in a remote place was held to be only a mere IRREGULARITY (Navarro vs. Domagtoy 1996)

Marriage License— 1. Marriages Exempt from marriage license requirement (AREC) a. Marriage in Articulo mortis (Art. 27, FC) b. Marriage in Remote and inaccessible places (Art. 28, FC) c. Marriages by Muslims and Ethnic cultural minorities provided they are solemnized in accordance with their customs, rites or practices. (Art. 33, FC) d. Marriage by parties who have Cohabited for at least 5 years without any legal impediment. (Art. 34, FC, Ninal v Badayog (2000)) 2. Absence & Irregularity of Marriage License Effect

Illustration

Absence VOID

Issuance of the Civil Registrar of a CERTIFICATE

Irregularity No effect on validity but party responsible will be liable. mere IRREGULARITIES in the marriage license, such as a


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Absence DUE SEARCH AND INABILITY TO FIND the application of a marriage license means its absence, thus rendering the marriage VOID. (Republic v CA)

Chapter III. MARRIAGE Irregularity typographical error, do not affect the validity of a marriage. (Alcantara v Alcantara)

Before a marriage can be solemnized, a valid marriage license MUST FIRST BE PRESENTED, otherwise the marriage is VOID. (Moreno v Bernabe)

3. Things to do at the local civil registrar: a. File an application of marriage license at the proper local civil registrar. (Art. 11, FC) b. Present birth or baptismal certificate. (Art. 12, FC) c. If aged 18-21 years, present parental consent. (Art. 14, FC) d. If aged 21-25, present parental advice. (Art. 15, FC) e. If aged 18-25, present certificate of marriage counseling from your priest. (PD 965) f. Pay the required fees. (Art 19, FC) g. If foreigner, present certificate of legal capacity issued by diplomat or consular officials. (Art. 21, FC) Marriage Ceremony— 1. No prescribed form or religious rite for the solemnization of marriage is required. (Art. 6, FC  The couple's written agreement where they declare themselves as husband and wife, signed by them before a judge and two capable witnesses, even though it was independently made by them, still counts as a valid ceremony. (Martinez v Tan, 12 Phil 731) 2. Minimum requirements prescribed by law: (AP-PMS)

a. Appearance of contracting parties personally before the solemnizing officer (Art 3 FC) b. Personal declaration that they take each other as husband and wife. (Art 3 FC) c. Presence of at least two witnesses of legal age. (Art 3 FC) d. The declaration shall be contained in the Marriage certificate. (Art 6 FC) e. Marriage certificate shall be Signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC) Note: In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2) 3. Places where marriage SHALL be solemnized: (CCO) a. Chambers of Judge or an open court b. Church, Chapel or Temple c. Office of the consul general, consul or vice consul (Art. 8, FC) Exception: a. Marriages in articulo mortis b. Marriages in remote places c. Written request from both parties.

III. Marriages Solemnized Abroad General Rule— Marriages solemnized abroad in accordance with the laws in force in that country shall be valid in the Philippines. (Art 26 FC) Exceptions— 1. Marriage between persons below 18 years old – Art. 35(1) 2. Bigamous or polygamous marriage – Art. 35(4) 3. Mistake in identity – Art. 35 (5) 4. Marriages void under Article 53 – Art. 35 (6) 5. Psychological incapacity – Art. 36 6. Incestuous marriages – Art. 37 7. Marriage void for reasons of public policy – Art. 38

IV. Presumption of Marriage 1. Presumption in favor of a valid marriage ( Art 220 CC)


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2. The presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage is satisfactory if uncontradicted. (Sec. 3 (aa), Rule 131, ROC) 3. In marriages of exceptional character, the existence of the marriage is presumed, even in the TOTAL ABSENCE of a marriage license. (Vda. De Jacob v CA, 1999) 4. if a marriage certificate is missing, and all means HAVE NOT YET BEEN EXHAUSTED to find it, then the marriage is presumed to exist (Sevilla v Cardenas, 2006) 5. Absence of a marriage certificate is not proof of absence of marriage. To prove the fact of marriage, the following would constitute competent evidence: (1) the testimony of witnesses to matrimony; (2) the couple’s public cohabitation; and (3) birth and baptismal certificates of children born during the union. (Trinidad v CA, 1998)

Chapter III. MARRIAGE


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Chapter IV. VOID MARRIAGES

clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision.

Chapter IV. Void Marriages I. II.

GROUNDS PERIOD TO FILE ACTION DEFENSE III. EFFECTS OF NULLITY

I.

OR

RAISE

Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a condition sine qua non for proof of psychological incapacity. The root cause may be proven by the totality of evidence in actual trial.

Grounds

Art. 4(1): The absence of any essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (a). VOID AB INITIO MARRIAGES:

A. Article 35 (Void from the Beginning) 1. Contracted by any party below eighteen years of age even with the consent of parents or guardians 2. 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. Note: One’s belief in good faith that the solemnizing officer has the required authority is a mistake of fact, and not of law. 3. Solemnized without license, except in marriages under exceptional circumstances 4. Bigamous or polygamous marriages not falling under Article 41 (Art. 41: subsequent marriage by present spouse who obtained a declaration of presumptive death for absent spouse prior to the subsequent marriage) 5. There is a mistake as to the identity of the other contracting party 6. Subsequent marriages that are void under Article 53 (Art 53: a subsequent marriage is null and void if prior to its celebration, it has not recorded in the civil registry and registries of property the items in Art. 52)

B. Article 36 (Psychological Incapacity) 



Contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization Republic v. Molina, (1997) a. The burden of proof to show the nullity of the marriage belongs to the plaintiff. b. The root cause of the psychological incapacity must be: (a) medically or

c.

The incapacity must be proven to be existing at “the time of the celebration” of the marriage. d. Such incapacity must also be shown to be medically or clinically permanent or incurable. e. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. f. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. g. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. h. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory. 



Santos v. Bedia-Santos, (1995): Laid down 3 characteristics for determining psychological incapacity: gravity, antecedent, and incurability. Tsoi v. CA, (1997) Refusal of husband to have sex was interpreted to be PI. “A man who can but won’t is PI”


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

 

Marcos vs. Marcos (2000) Psychological incapacity maybe established by the totality of the evidence presented. Personal medical examination could be dispensed with. Republic vs. San Jose (2007) There is no requirement that the respondent be medically examined first. Antonio v. Reyes, (2006): “pathological liar”, Molina guidelines met.

C. Article 37 (Incestuous) 1. Between ascendants and descendants of any degree, legitimate or illegitimate 2. Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate

D. Article 38 (Against Public Policy) 1. Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 2. Between step-parents and step-children. Note: Stepbrothers and stepsisters can marry because marriages between them are not among those enumerated in article 38. 3. Between parents-in-law and children-inlaw. 4. Between adopting parent and 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. Relationships outside of Art. 37 and 38 which are not impediments to marriage: brother-in-law with sister-in-law, stepbrother with stepsister, guardian with ward, adopted with illegitimate child of the adopter, adopted son of the husband with adopted daughter of the wife, parties who have been convicted of adultery.


E. Article 41 (Bigamous Marriages, Absentee Spouse and Presumptive Death) General Rule— Marriage contracted by any person during the subsistence of a previous marriage is void. Exceptions: The following subsequent marriage of the present spouse is valid: 1. Subsequent marriage due to ordinary absence where: a. the prior spouse had been absent for 4 consecutive years; b. the spouse present had a well-founded belief that absent spouse is dead; and c. judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). 2. Subsequent marriage due to extraordinary absence where: a. the prior spouse had been missing for 2 consecutive years; b. there is danger of death attendant to the disappearance; c. the spouse present had a well-founded belief that the missing person is dead; and d. judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). Note:  Institution of a summary proceeding is not sufficient. There must also be a summary judgment. (BALANE)  Only the deserted spouse can file or institute an action a summary proceeding for the declaration of presumptive death of the absentee (Bienvenido case)  There must have been diligent efforts on the part of the deserted spouse to locate the absent spouse. These diligent efforts correspond to the requirement of the law for a well-founded belief. Exception to the exception— When both parties to the subsequent acted in bad faith (Art. 44) Connected Provisions— Art. 390, Civil Code. After an absence of 7 years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the


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purpose of opening his succession till after an absence of 10 years. If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his succession may be opened. Art. 391, Civil Code. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (SAAD) 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Note:  Although seven years is required for the presumption of death of an absentee in the Civil Code, Art. 41 of the Family Code makes an exception for the purpose of remarriage by limiting such requirement to four years.  Art. 41 also limits the required four years in Art. 391 for absence under exceptional circumstances to only two years.

F. Article 44 (Present spouse contracts marriage in bad faith)





Atienza v. Brillantes, (243 SCRA 32) A judge’s first marriage contracted in 1965 was void for not having a marriage license, but the requirement for a judicial declaration of nullity in Art. 40 applies for his subsequent marriage contracted in 1991.



Apiag v. Cantero, (1997) Where both marriages were contracted prior to the effectivity of the FC, the requirement of Art. 40 does not apply to the second marriage where a right is already vested and which the FC cannot have retroactive effect.



Judicial declaration of nullity of a marriage is now an absolute requirement: a. For the validity of any subsequent marriage b. For the subsequent marriage not to be considered as bigamous



Domingo v. CA, (1993) The judicial declaration of nullity can be invoked for purposes other than remarriage. Article 40 was interpreted as being a requirement for purposes of remarriage but not limited for that purpose. Separation of property is also a valid purpose for filing for a judicial declaration of nullity.



Borja-Manzano v. Sanchez, (2001) Legal separation does not severe marital bonds. Cohabitation under Art. 34 merely exempts the spouses from obtaining a marriage license, and is not met when there exists legal impediment to marry during the period of cohabitation.

who

Both spouses of a subsequent marriage acted in bad faith in case where a previous spouse was an absentee

G. Article 53 (Non-Recording) Subsequent marriage of spouses where the requirements of recording under Art. 52 for void marriages shall not have been complied with

H. Article 40 Nullity)

(Judicial

Terre v. Terre, (1998) A lawyer was disbarred for grossly immoral conduct by convincing the other party that a judicial declaration of nullity was not required and subsequently contracting another marriage while his first marriage was subsisting.

Declaration

of

Art. 40, Civil Code. 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.

Under the Civil Code (superseded by the Family Code), there was no need for a judicial declaration of nullity of a previous marriage for a subsequent marriage to be valid (People v. Mendoza). However, Article 40 of the FC now requires a final judgment to declare a previous marriage void for a subsequent marriage to be valid. (Terre v. Terre, Atienza v. Brillantes)

II. Period to Defense

File

Action

or

Raise

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (as amended by R.A. 8533) 

The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after


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



this Code shall taken effect" has been deleted by Republic Act No. 8533 [Approved February 23, 1998]). It must be noted that under the new Supreme Court Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003, nullity of the marriage can still be collaterally attacked. As to the parties allowed to file the action – Enrico v. Heirs of Sps. Medinaceli (2007): Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and, hence, can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. (also reiterated in Carlos vs. Sandoval, 2008)

III. Effects of Nullity Effects of Termination of Bigamous Marriage (Art. 43 and 44)— 1. Children – conceived prior to its termination considered legitimate 2. Property Regime – dissolved and liquidated (party in bad faith shall forfeit his/her share in favor of the common children or if there are none, children of the guilty spouse by a previous marriage, and in case there are none, to the innocent spouse) 3. Donation propter nuptias – remains valid, (but if the donee contracted marriage in bad faith, donations will be revoked) 4. Insurance benefits – innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is stipulated as irrevocable 5. Succession Rights – Party in bad faith disqualified to inherit from innocent spouse, whether testate or intestate 6. Donations - If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked (Art. 44)


Effects of Other Void Marriages— 1. 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 [Art. 50(1)] 2. Final judgment in such cases shall provide for the liquidation, partition, and distribution of the: a. properties of the spouses b. custody and support of the common children c. delivery of their presumptive legitimes  unless such matters had been adjudicated in previous judicial proceedings [Art. 50(2)]  all creditors (of the spouses/property regime) shall be notified of the proceedings for liquidation [Art. 50(2 and 3)] 3. In the partition, the conjugal dwelling and lot shall be adjudicated to the spouse with whom majority of the common children remain (Art. 102 and 129) [Art. 50(4)] 4. Presumptive legitimes, computed as of the date of the final judgment, shall be delivered in cash, property or sound securities a. unless the parties, by mutual agreement judicially approved, had already provided for such [Art. 51(1)] b. the children/guardian/trustee may ask for the enforcement of the judgment [Art. 51(2)] c. the delivery of the presumptive legitimes shall not prejudice the ultimate successional rights, but the value of the properties already received shall be considered as advances on their legitime [Art. 51(3)] 5. Either of the former spouses may marry again AFTER compliance with the requirements of Article 52, otherwise, the subsequent marriage is void (Art. 53) Requirement (Art. 52)— recording in the appropriate civil registry AND registries of property: a. judgment of annulment/absolute nullity of marriage b. partition and distribution of the properties of the spouses c. delivery of the children’s presumptive legitimes otherwise, these shall not affect third persons


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6. Generally, children born or conceived within void marriages are illegitimate.  Exception:  children conceived or born before the judgment under Article 36 has become final and executory  children conceived or born of subsequent marriages under Article 53  Niñal v. Badayog, (2000) Children of first marriage assailed the validity of the second marriage contracted by their father without a marriage license and after the latter’s death. Void marriages can be attacked collaterally and do not prescribe 

De Castro v. Assidao-de Castro, (2008) Validity of marriage was attacked collaterally in an action for support for determining legitimacy of the child.



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Chapter V. VOIDABLE MARRIAGES

consummating the marriage (impotence; this is different from sterility).

Chapter V. Voidable Marriages (asked in ’75, ’76, ’78, ’83, ’86, ’90, ’91, ’93, ’94, ’95, ’96, ’97, ’02, ’03, ’04, ’07, and ‘09 bar exams) GROUNDS FOR ANNULMENT A. EXPLANATION B. WHO MAY FILE, PRESCRIPTION, RATIFICATION C. MARRIAGES NOT SUBJECT TO RATIFICATION II. WHEN ONE SPOUSE IS ABSENT A. REQUIREMENTS FOR SUBSEQUENT MARRIAGE TO BE VALID WHEN PRIOR SPOUSE IS ABSENT B. EFFECT OF REAPPEARANCE OF ABSENT SPOUSE III. EFFECTS OF PENDING ACTION/DECREE IV. VOIDABLE VS. VOID V. VOIDABLE VS. LEGAL SEPARATION VI. JURISDICTION

S

6. Either party has a serious and incurable sexually-transmissible disease, even if not concealed.*

I.

I.

Grounds for Annulment (Art. 45, FC)

Marriage may be annulled on the ff grounds existing at time of marriage: P I F F I S P

1. One of the parties is 18 or above but below 21, and there is no parental consent.

I

2. Either party was of unsound mind (insanity).

F

3. The consent of either party was obtained through fraud (different from mistake in identity): a. through non-disclosure of a previous conviction of a crime involving moral turpitude; b. through concealment by the wife of the fact at the time of the marriage that she was pregnant by another man; c. through concealment of a sexually-transmitted disease, regardless of its nature, existing at the time of marriage; d. through concealment of drug addiction, habitual alcoholism or homosexuality/lesbianism. (Art.46, FC)

F

4. The consent of either party was obtained through force, intimidation, or undue influence.

I

5. Either party is physically incapable of

TOLENTINO Action to Annul: action in rem, concerns status of parties; res is relation bet parties or marriage tie; jurisdiction depends on nationality or domicile not the place of celebration

A. Grounds for Annulment explained: 1. Lack of parental consent a. 18<=x<21 w/o parental consent b. Ratified upon free cohabitation upon reaching 21. c. TOLENTINO: parents whose consents were wanting may ratify before 21; this right can be waived; however, the Code Commission believes that no such ratification can be made by the parent. 2. Insanity a. mental incapacity or insanity is a vice of consent; insanity (1) of varying degrees, (2) curable being an illness, capable of ratification or convalidation, (3) has lucid intervals, (4) ground only for annulment in many countries b. can be ratified by cohabitation after insane is cured c. mere mental weakness is not a ground for annulment, but if found grave enough may amount to psychological incapacity. d. intoxication, somnambulism where one had no mental capacity to give consent is equivalent to insanity e. must EXIST AT THE TIME of the celebration of the marriage. f. law presumes SANITY, burden of proof on party alleging insanity 3. Fraud a. only those enumerated in Art. 46 FC  non-disclosure of previous CONVICTION by final judgment of a crime involving MORAL TURPITUDE  concealment by wife at the time of marriage, that she was pregnant by another man  concealment of STD regardless of nature existing at time of marriage  concealment of drug addiction, habitual alcoholism, homosexuality, lesbianism existing at time of marriage


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b. No other misrepresentation or deceit of CHARACTER, HEALTH, RANK, FORTUNE OR CHASTITY shall constitute FRAUD c. TOLENTINO: fraud must relate to fact material to the marital relation; PRINCIPLE OF ENUMERATION; no other cases of fraud can be ground for annulment; INCLUSIO UNIUS EST EXCLUSIO ALTERIUS d. Conviction of Crime: requisites are  moral turpitude  conviction e. Concealment of Pregnancy  fraud against very essence of marriage; importance of procreation of children; an assault to the integrity of the union by introducing ALIEN BLOOD  If husband knew of pregnancy, the marriage cannot be annulled on the ground of concealment. Three (3) months after the celebration of the marriage, a baby was born. Annulment was refused because of advanced stage of pregnancy, which must be patent to the husband (Buccat v Mangonon)  If there was coitus before marriage & wife was pregnant at time of marriage although he may not be the father, marriage cannot be annulled because man knows wife is unchaste. Principle: one cannot go to court with unclean hands. Prof. Balane: An isolated case and is not doctrinal. f. Marriage cannot be annulled on ground that wife concealed the fact that she had been lewd & corrupt and had illegitimate child (Shrady v Logan) g. Maybe ratified upon cohabitation after knowledge of fraud 

Buccat v Buccat, 72 Phil. 19 Wife gave birth 3 months after marriage celebration. Husband filed for annulment. Ground: concealment of non-virginity. Court held that it was unbelievable that wife could have concealed 6 months of pregnancy.



Aquino v Delizo, 109 Phil. 21 The Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was “naturally plump,” Aquino could hardly be expected to know, by


mere looking, whether or not she was pregnant at the time of the marriage. 

Almelor v. RTC, (2008) It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage.



Corpuz v. Ochoterena, (2004) In a legal separation or annulment case, the prosecuting attorney must first rule out collusion as a condition sine qua non for further proceedings. A certification by the prosecutor that he was present during the hearing and even crossexamined the plaintiff does not suffice to comply with the mandatory requirement.



STD: Art. 45 vs. Art. 46

Art. 45 STD Ground for annulment

Does not have to be concealed Must be serious and incurable The STD itself is the ground for annulment



Art. 46 STD The STD is a type of fraud which is a ground for annulment Must be concealed Need not be serious nor incurable It is the concealment that gives rise to the annulment

Effect of Cure to Fraud in Art. 46: Recovery or rehabilitation from STD, drug addiction, and habitual alcoholism will NOT BAR ACTION for annulment; defect: not the disease, but the FRAUD which VITIATED CONSENT

4. Force, intimidation, undue influence a. FORCE must be one as to prevent party from acting as a free agent; will destroyed by fear/compulsion b. INTIMIDATION must be one as to compel the party by reasonable/wellgrounded fear/evil imminent upon person/properties c. DEGREE OF INTIMIDATION: age, sex, condition of person borne in mind d. A threat to enforce claim thru competent authority, lawful or not, does not vitiate consent e. VIOLENCE or INTIMIDATION annul obligation even if by third person (Art. 1336, CC) f. UNDUE INFLUENCE when improper advantage of his power over the will of


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another, depriving freedom of choice. (Art. 1337, CC)  EXAMPLE: confidentiality, family relations, suffering from mental weakness, in financial distress g. Threat to FILE A CASE OF immorality on bar candidate where he does not marry a girl who he has impregnated does not vitiate consent (Ruiz v Atienza) h. Threat or intimidation as no to act as FREE AGENT; threatened of armed demonstrations by brother is ANNULLABLE (Tiongco v Matig-a) i. Man rapes a girl, marries her & has no intention to live with the girl; marriage is annullable (People v Santiago) j. Committee added “undue influence”, maybe compelled to enter out of REVERENTIAL FEAR e.g., fear of causing distress to parents, grandparents, etc 5. Impotency a. should exist at the time of celebration marriage b. should continue to the time of trying annulment case c. should appear incurable d. should be unknown to the other party e. physical condition: sexual intercourse with a person of the opposite sex is impossible, not mere sterility f. only potent spouse can file action (principle: one cannot come to court with unclean hands) g. must exist at time of marriage, must be continuous, must be incurable; thus if removable by operation, NOT ANNULLABLE (Sarao v Guevarra, CA, 40 O.G. 155 Supp. 263) h. both spouses impotent, marriage cannot be annulled because neither spouse is aggrieved i. impotency due to old age, marriage cannot be annulled j. POTENCY PRESUMED; party who alleges impotency has burden of proof (Jimenez v Canizares) k. Although potency is presumed, there is a doctrine in England called TRIENNIAL COHABITATION that if wife remains virgin after 3 yrs, husband presumed impotent & has burden to prove otherwise (Tompkins v Tompkins) l. REFUSAL of wife to be examined DOES NOT PRESUME impotency because Filipino women are inherently shy & bashful; TC must order physical examination because w/o proof of


m.

n.

o.

p.

impotency, she is presumed potent; to order her to undergo physical exam does not infringe constitutional rights against self-incriminating (Jimenez v Canizares) Villanueva vs. CA (2006): Absence of cohabitation is not a ground for annulment. NOTE: if wife continues to refuse to undergo physical exam, she can be held for CONTEMPT & ordered to be confined in jail until she does so RELATIVE IMPOTENCY: may now be invoked because there are cases where one is impotent with respect to his spouse but not with other men or women. EXAMPLE: penile erection to other women possible; unusually large penis can fit with abnormally large vagina

6. Sexually-transmissible disease serious and incurable a. should exist at the time of the marriage b. should be found serious c. should appear to be incurable d. Should be unknown to other party e. reason: danger to the health of spouse & offspring/s f. same as incurable impotency g. Ratification or Convalidation of Voidable Marriages: by cohabitation or prescription cannot be ratified or convalidated:  prior subsisting marriage; would result in anomalous relationship  vitiated by impotency remains as long as afflicted  vitiated by affliction of STD remains as long as afflicted  Affliction of STD is unknown to the other spouse (BALANE)  The other spouse must also be free from a similar STD. (BALANE) h. 2 & 3 prescribe w/in 5 yrs by Art. 47(5)


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B. Who may File, Prescription, Ratification Who can file (Art. 47) 1. Underage party 2. Parent or guardian Insanity

1. Sane spouse with no knowledge of the other’s insanity 2. Legal guardian of insane party 3. Insane party

Fraud

Injured party (defrauded party)

Force, intimidation, undue influence

Injured party

Impotence

Healthy party

STD

Healthy party

C. Marriages Not Subject Ratification/Convalidation

Prescription (Art. 47) 1. 5 years after attaining 21. 2. Before child reaches 21. 1. Any time before the death of either party

2. During lucid interval or after regaining sanity, and before death Five years after discovery of fraud Five years after disappearance of force or intimidation Five years after marriage Five years after marriage

Ratification (Art. 45) Free cohabitation after attaining age of 21.

Free cohabitation of insane party after insane party comes to reason

Free cohabitation after having full knowledge of fraud Free cohabitation after the force has ceased or disappeared Deemed ratified when action prescribes Deemed ratified when action prescribes

to

B. Effect of Reappearance of Absent Spouse:

1. One spouse is incurably impotent (Art. 47 – prescription: 5 years) 2. One spouse has an incurable STD (Art. 47 – prescription: 5 years) 3. Sane spouse marries an insane spouse w/o knowledge of insanity 4. Prior subsisting marriage

General Rule— The subsequent marriage remains valid. Exception— It is automatically terminated by the recording of the affidavit of reappearance of the absent spouse. Exception to the Exception— If there is a judgment annulling the previous marriage or declaring it void ab initio. (Art. 42, FC)

II. Marriage When One Spouse Absent A. Requirements for Subsequent Marriage to be Valid When Prior Spouse is Absent (Art. 41, FC): 1. The prior spouse had been absent for 4 consecutive years, or 2 years in cases under Art. 391 CC. 2. The spouse present has a well-founded belief that the absent spouse was already dead. 3. The spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. __________

TOLENTINO Status of Subsequent Marriage: generally considered bigamous & void EXCEPT par. 2 of this article; good faith w/o falling under par. 2 will render marriage VOID When Voidable: must act in GOOD FAITH and 1. absent spouse not heard from 7 consecutive yrs 2. although absent for less than 7 yrs, generally considered dead 3. presumed to be dead after 4 yrs when occurrence of death in A391 Judicial Declaration Unnecessary: purpose of validity of marriage, missing spouse need not be judicially declared an absentee, enough required


Ground (Art. 45) Lack of parental consent

period elapsed from time the absentee was last heard not from judicial declaration. After 7 years, presumptive death arises w/o need for judicial declaration Prior Voidable Marriage: UNLESS final judgment or dissolved by death, subsequent marriage NULL & VOID Status of Subs Marriage: during subsisting marriage, remarriage is BIGAMOUS & VOID. EXCEPT: 1. absentee four years or for two under special circumstances 2. absence gives rise to presumption of death w/c is required to be declared in SUMMARY PROCEEDING to enable to remarry Period of Absence: 1. GENERALLY, under CC, 7 years required for declaration of presumptive death For REMARRIAGE, reduced to 4 years by FC 2. EXCEPT in cases, CC 4 years & FC 2 years IF a. ON BOARD VESSEL lost at sea voyage, airplane b. ARMED FORCES in war c. DANGER OF DEATH under other circumstances, existence not known Good Faith: PERIOD of absence for PRESUMPTIVE DEATH is MANDATORY thus cannot be shortened by good faith and if be done so will be VOID Burden of Proof: two successive marriages, nd presumption on validity of 2 marriage and ND burden on party ATTACKING VALIDITY OF 2 MARR. PRESUMPTION in favor of INNOCENCE prevails over PRESUMPTION of ST CONTINUANCE OF LIFE OF 1 SPOUSE & MARITAL RELATIONS. Meaning of “Absent” spouse 1. Absent for 4 years having well-founded belief of death 2. period of 4 years reduced to 2 years in danger of death in A391 CC where: a. on board vessel lost at sea or airplane (includes all kinds of watercraft & aircraft) b. armed forces in war (all military operations involving armed fighting; does not apply to nurses, doctors, reporters or cameramen) c. danger of death

(includes earthquakes, fires, explosions, dangerous


expeditions, landslides, volcanic eruptions) 3. 2-year period counted from event of death presumed 4. Republic v. Bermudez-Lorino, (2005) The RTC rendered a decision declaring the presumptive death of respondent’s absent spouse based on Art. 41, FC. The Republic appealed the decision to the CA. Applying Art. 247 FC, the SC ruled that the CA did not have jurisdiction over the appeal because summary proceedings are immediately final and executory, and therefore unappealable. Difference between Absence in the Civil Code and Family Code— Family Code As to period

4 years under normal circumstances; 2 years under special circumstances

Civil Code Absent for at least 7 years; 4 years under special circumstances

As to In order to remarry, Declaration of remarriage summary presumptive death proceeding is is not necessary necessary As to who can institute the action

Can be instituted by The spouses the present spouse, themselves any interested party, and the subsequent spouse

As to Subsequent effect on marriage is subsequen automatically t marriage terminated by the recording of an affidavit of reappearance of the absent spouse As to ground

Upon reappearance, judicial proceeding is necessary to declare marriage null and void

Well founded belief Generally believed that the absent to be dead spouse is dead

III. Effects of Pending (Art. 49, FC)

Actions/Decree

1. The court shall provide for the support of the spouses, 2. The custody and support of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain. 3. The court shall also provide for visitation rights of other parent.


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Art. 363 (CC): No child under 7 years shall be separated from the mother unless there is a compelling reason to do so.

Art. 48 (FC): To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State.

IV. Voidable v. Void Marriage

Nature Convalidation Effect on property

Legitimacy of children

Voidable Marriage VALID until annulled by court CAN be convalidated by prescription or free cohabitation ACP exists unless another system is instituted through marriage settlement Children are LEGITIMATE if conceived before decree of annulment

How to impugn

Can only be DIRECTLY (there Annulment Decree)

Effect of death of parties

Can no longer be impugned after death of parties

V. Voidable v. Legal Separation Voidable Marriage ground for annulment at the time of marriage terminates marital bond once final, cannot be set aside to restore marital relation

Legal Separation causes after the celebration of marriage does not terminate marital bond marital relations can resume upon reconciliation

VI. Jurisdiction Tamano v. Ortiz, (1998)— PD No. 1083 (Code of Muslim Personal Laws of the Philippines) does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Hence, the Regional Trial Courts have jurisdiction over such cases.

attacked must be

Void Marriage INEXISTENT from the beginning CANNOT be convalidated No Community Property, only Coownership General rule: Children are ILLEGITIMATE (Art. 165, FC) Exception: In void marriages by reason of psychological incapacity (Art. 36) or non-partition of properties in a previous marriage (Art. 53), children are considered LEGITIMATE May be attacked DIRECTLY or COLLATERALLY, except for purpose of remarriage (there must be Judicial Declaration of Nullity) May still be impugned after death of parties


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Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION

Chapter VI. Legal Separation, Divorce and De Facto Separation I. GROUNDS FOR LEGAL SEPARATION II. DEFENSES III. WHEN TO FILE/TRY ACTIONS A. PRESCRIPTION B. RECONCILIATION PERIOD C. ATTEMPTS ON RECONCILIATION D. CONFESSION E. COLLUSION IV. EFFECTS OF FILING PETITION FOR LEGAL SEPARATION V. EFFECTS OF DECREE FOR LEGAL SEPARATION VI. RECONCILIATION A. HOW DONE B. EFFECTS OF RECONCILIATION VII. DIVORCE VIII. DE FACTO SEPARATION

I.

Grounds for Legal Separation

(asked in ’75, ’76, ’79, ’80, ’82, ’89, ’94, ’96, ’97, ’02, ’03, ’06, and ’07 bar exams) (Art. 55, FC) [V A P I D H B I L A] Note: The grounds for legal separation are exclusive. V

1. Repeated physical violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner.

A

2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation.

P

3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement.

I

4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party).

D

5. Drug addiction or habitual alcoholism of respondent. a. When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. b. When it occurred only after the marriage, it is only a ground for

c.

legal separation, whether concealed or not. Drug addiction or habitual alcoholism may be supervening.

H

6. Lesbianism or homosexuality of respondent.  Same as rules on drug addiction

B

7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad.

I

8. Sexual infidelity or perversion. a. No conviction is required.

L

9. Attempt on the life of petitioner by respondent. a. There is no need for criminal conviction. Only a preponderance of evidence is required.

A

10. Abandonment of petitioner by respondent without justifiable cause for more than one year.



People v. Zapata and Bondoc, 88 Phil 688 (1951)— Adultery is not a continuing crime, but is consummated and exhausted at the moment of carnal union. As such, every sexual act is a ground for legal separation.



Gandioco v Peñaranda, 155 SCRA 725 (1989)— In sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage.



Lapuz Sy v. Eufemio, 43 SCRA 177 (1972)— The death of one party in a legal separation case abates the action. This is because the death of either spouse automatically dissolves the marriage. An action for legal separation is also purely personal between the spouses.



Dela Cruz. v. Dela Cruz 22 SCRA 333— Abandonment is not mere physical estrangement but also financial and moral desertion. There must be an absolute cessation of marital relations, duties, and rights with the intention of perpetual separation.


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II. Defenses Grounds for denying legal separation (Art. 56, FC) [4CMPRD]— 1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense 3. Connivance between parties in the commission of the offense 4. Mutual guilt or Recrimination between spouses in the commission of any ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation (Art. 57: 5 years from occurrence of the cause of action) 7. Reconciliation of parties during pendency of action (Art. 66 par.1) 8. Death of either party during pendency of action (Lapuz-Sy v Eufemio, supra) 

Bugayong v. Ginez, 100 Phil. 616 (1956) — Continued cohabitation despite full knowledge of the spouse’s infidelity constitutes implied condonation.

III. When to File/Try Actions A. Prescription Action prescribes after five years from the occurrence of the cause (Art. 57, FC)

B. Reconciliation Period Action cannot be tried before six months have elapsed from the filing of the petition (Art. 58. FC) Note: without prejudice to judicial determination of custody of children, alimony, and support pendente lite

C. Attempts on Reconciliation Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59, FC)

D. Confession No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1. FC)

Note: Art. 60 par. 1 applies only if the judgment was based solely on the stipulation of facts. Thus, if other grounds were used, Art. 60 par. 1 is not applicable. (BALANE)

E. Collusion The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art. 60, par. 2, FC)

IV. Effects of Filing Petition for Legal Separation (LAC) 1. The spouses are entitled to Live separately, but the marital bond shall not be severed. (Art. 61, par. 1. FC). 2. Administration of Community or Conjugal Property – If there is no written agreement between the parties, the court shall designate one of them or a third person to administer the ACP or CPG. (Art. 61, par. 2, FC) 3. Custody of children – The court shall give custody of children to one of them, if there is no written agreement between the spouses. It shall also provide for visitation rights of the other spouse. (Art. 62, cf. Art. 49. FC)

V. Effects of Decree Separation (LACIDIMS)

for

Legal

1. The spouses can Live separately (Art. 63. FC) 2. The ACP or CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse, in that order (Art. 63. cf. Art. 43, par. 2). 3. Custody of the minor children shall be awarded to the innocent spouse (Art. 63. FC, cf. Art 213) 4. Guilty spouse shall be disqualified from Inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty party in the will of the innocent spouse shall also be revoked by operation of law. (Art. 63, FC) 5. Donations in favor of the guilty spouse may be revoked (Art. 64. FC) 6. Innocent spouse may also revoke designation of guilty spouse as beneficiary


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in an Insurance policy, even if such stipulations are irrevocable (Art. 64. FC, cf. PD 612, sec. 11). 7. Obligation for Mutual support ceases, but the court may order the guilty spouse to support the innocent spouse. (Art. 198, FC) 8. The wife shall continue to use the Surname of the husband even after the decree for legal separation. (Art. 372, CC)

VI. Reconciliation



Art. 26(2), Civil Code. 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 Philippines law.



Valid Foreign Divorce a. valid marriage between a Filipino citizen and a foreigner b. divorce is validly obtained by the alien spouse c. alien spouse becomes capacitated to remarry Result: the Filipino spouse shall likewise have the capacity to remarry under Philippine law



Van Dorn v. Romillo, 139 SCRA 139 (1985) Before the effectivity of the FC, the SC applied Article 15 of the CC, from the foreigner’s perspective, to decree the validity of a divorce with respect to the Filipino spouse to prevent the unjust result to the Filipino spouse as the alien spouse is already capacitated to remarry.



Quita v. Dandan, 300 SCRA 406 (1998) The time of obtaining foreign citizenship is necessary to determine the validity of divorce obtained by the spouse who applied for foreign citizenship. It must be ascertained that when that spouse obtained the divorce, he/she was no longer bound by Philippine domestic law



Llorente v. CA, 345 SCRA 592 (2000) nd A 2 marriage obtained by a Filipino who is already a US citizen at the time of the nd divorce and the remarriage makes the 2 marriage completely valid.



Garcia v. Recio, 366 SCRA 437 (2001) Philippine courts do not take cognizance of foreign laws. The foreign law granting divorce as well as the nature of the divorce granted (w/n it was absolute) must be proven.



Republic vs. Orbecido, (2005) The period of reckoning to determine citizenship for the purpose of the application of Art.26 par.2 is the time of securing a divorce.

A. How Done Should the spouses reconcile, they should file a corresponding joint manifestation under oath of such reconciliation. (Art. 65, FC)

B. Effects of Reconciliation 1. Proceedings for legal separation shall be terminated at whatever stage. (Art. 66, FC) 2. If there is a final decree of legal separation, it shall be set aside. (Art. 66, FC) 3. The separation of property and forfeiture of share of guilty spouse shall subsist, unless the spouses agree to revive their former property regime or to institute another property regime. ( Art. 66 cf. Art. 67, FC) 4. Joint custody of children is restored. 5. The right to intestate succession by guilty spouse from innocent spouse is restored. The right to testamentary succession depends on the will of the innocent spouse.

VII. Divorce (asked in ’87, ’90, ’96, ’97, ’99, ’02, ’06 bar exams) General Rule— Divorce is not allowed in the Philippines and even for Filipinos abroad. Exception— Foreign and Muslim divorces. Foreign Divorces (asked in ’09 bar exam)— Art. 15, Civil Code. Laws relating to family rights and duties, or to the status, condition and legal capacity of the persons are binding upon citizens of the Philippines, even though living abroad.



The Nationality Theory of Jurisdiction / Nationality Principle applies to personal rights.

Effect: Filipinos living abroad could not obtain a valid divorce even in countries where divorce is legally permissible.


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Muslim Divorces— Presidential Decree 1083 (Code of Muslim Personal Laws)

2. Judicial authorization may be obtained when the consent of one spouse is required by law for any transaction of the other (subject to Art. 239), and



3. The separate property of both spouses shall be solidarily liable for the support of the family in the absence of sufficient community property. The spouse present shall be given judicial authority to administer or encumber any specific separate property of the absent spouse and use the fruits thereof to satisfy the latter’s share.





7 forms of Muslim divorces (Art. 45) (TFKILTZ) a. talaq- repudiation of the wife by the husband b. ila- vow of continence by the husband c. zihar- injurious assimilation of the wife by the husband d. li’an- acts of imprecation e. khul’- redemption by the wife f. tafwid- exercise by the wife of the delegated right to repudiate g. faskh- judicial decree Grounds for faskh (Art. 52) a. The marriage bond shall be severed and the spouses may contract another marriage b. The spouses shall lose their mutual rights of inheritance c. The custody of children shall be determined in accordance with Article 78 of the code d. The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or onehalf thereof if effected before its consummation e. The husband shall not be discharged from his obligation to give support in accordance with Article 67 f. The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated. Yasin v. Sharia District Ct, 241 SCRA 606 (1995) A Muslim divorce dissolves the marital bond and therefore a woman may use her maiden name and surname without any special proceeding in court.

VIII.

De Facto Separation

Rules applicable to De Facto Separation— Art. 100, Family Code. De Facto Separation shall not affect the regime of absolute community, except that: 1. The spouse who abandons the conjugal home without just cause is not entitled to support,

Art. 127. Same rules as above, but for Conjugal Partnership of Gains Procedural Rules for Art. 100/127, par. 2: 1. In the case of Art 100/127 par. 2, a verified petition may be filed in court, attaching the proposed deed or description of the transaction and the reason why the other spouse’s consent has not been secured. (Art. 239) 2. Court shall issue a notice for the initial conference and shall notify the other spouse to show cause why petition should not be granted. (Art. 242) 3. If the petition is not resolved at the initial conference, then the court shall decide in a summary hearing. (Art. 246) 4. Its decision shall be final and executory. (Art. 247)



Perez v. CA, 255 SCRA 661 (1996) Applicability of the tender years presumption of Art. 213 (No child under 7 years of age shall be separated from the mother) to de facto separation, save for compelling reasons such as neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of child, insanity, communicable disease.


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consent (Art. 73 [Omission corrected on Nov. 8, 1968])

Chapter VII. Rights and Obligations Between Husband and Wife (asked in ’75, and ’84 bar exams) I. OBLIGATION OF SPOUSES II. RIGHTS OF SPOUSES III. USE OF SURNAME

I.

III. Use of Surname 

Obligations of Spouses (Arts. 68-71, FC) Live together (cohabitation – Art. 68)  Exemption: One spouse living abroad or there are valid and compelling reasons (Art. 69, Par 2)  Exemption to Exemption: Incompatibility with the solidarity of the family (Art. 69, Par. 2) Observe mutual love, respect, and fidelity Render mutual help and support (Art. 68) Fix the family domicile.  In case of disagreement, the court shall decide. (Art. 69, Par. 1) Jointly support the family. (Art. 70)  From the conjugal property/income of the fruits of their separate properties  In case of absence/insufficiency, from their separate properties (liable in proportion to their properties) Manage the household. (Art. 71)

Yasin v. Shari’a District Court, (1995)— The woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. Moreover, when her husband dies, the woman can revert to her old name without need for judicial declaration. 

Widows A widow may use the deceased husband’s surname as though he were still living. (Art. 373, CC)



Mistresses The Supreme Court allowed the mistress to use her live-in partner’s name, since everyone already knew that she was a mistress, so as to avoid confusion. (Legamia v. IAC (1984))



Divorcees The Supreme Court allowed the mistress to use her live-in partner’s name, since everyone already knew that she was a mistress, so as to avoid confusion. (Tolentino v. CA (1988))

II. Rights of Spouses (Arts. 72-73, FC) 



In case the other spouse neglects his or her duties or commit acts which tend to bring danger, dishonor or injury to the family, the aggrieved party may apply the court for relief. (Art. 72)  Injury contemplated is physical, moral, emotional, or psychological, not financial. Either spouse may exercise any legitimate profession, without need for consent of the other.  The other spouse may only object on valid, serious, and moral grounds.  In case of disagreement, the Court shall decide whether o the objection is proper, and o benefit has accrued to the family before OR after the objection. If BEFORE, enforce resulting obligation against the community property. obligation against the separate property of the spouse who has not obtained

Married Women: (Art. 370, CC) A married woman may use: a. Her maiden first name and surname and add her husband's surname, or b. Her maiden first name and her husband's surname or c. Her husband's full name, but prefixing a word indicating that she is his wife, such as “Mrs.”


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Chapter VIII. Property Relations Between Spouses I. GENERAL PROVISIONS II. DONATIONS BY REASON OF MARRIAGE III. ACP A. IN GENERAL B. WHAT CONSTITUTES COMMUNITY PROPERTY C. CHARGES UPON THE ACP D. ADMINISTRATION, OWNERSHIP AND DISPOSITION OF THE ACP E. DISSOLUTION OF THE ACP F. LIQUIDATION OF ASSETS AND LIABILITIES IV. CPG A. WHERE IT APPLIES B. HUSBAND AND WIFE PLACE IN COMMON FUND C. EXCLUSIVE PROPERTIES OF THE SPOUSES D. WHAT CONSTITUTES THE CPG E. RULES F. CHARGES UPON CPG G. ADMINISTRATION OF THE CPG H. DISSOLUTION OF THE CPG I. LIQUIDATION OF ASSETS AND LIABILITIES V. SEPARATION OF PROPERTIES DURING MARRIAGE VI. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

I.

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

settlement applies to all Filipinos, regardless of the place of the marriage and their residence. Exceptions— 1. Where both spouses are aliens 2. As to the extrinsic validity of contracts 3. Contrary stipulation Requirements for Marriage Settlements (Art. 77, FC) (WiSER)— 1. Must be in writing (public or private) 2. Signed by the parties 3. Executed before the celebration of the marriage 4. Must be registered in local civil registry – to affect third persons (If not registered, will not prejudice third persons, ACP will apply) 5. If party needs parental consent (age 18-21), parent/guardian must be a party to the settlement (Art. 78) 6. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party (Art. 79) 



General Provisions

(asked in ’76, ’86, ’91, ’92, ’94, ’95, ’96, ’97 and ’05 bar exams) Order to be followed (Arts. 74, 75, FC)— 1. Marriage settlements before marriage – spouses can agree to whatever regime they want (ACP, CPG, complete separation or any other property regime to be agreed upon prior to the celebration of the marriage). 2. Family Code – If there are no marriage settlements, or if the regime agreed upon is void, the Absolute Community of Property will be followed 3. Local Customs General Rule (Art. 80, FC)— Property relations between Filipino spouses are governed by Philippine laws, regardless of the place of marriage and their residence (Nationality Rule- Art 15, NCC). Hence— The rule that ACP is the default mode of property relations absent any marriage



General Rule: All modifications to the marriage settlement must be made before the marriage is celebrated. (Art. 76) Exceptions:  Legal Separation (Art. 63 (2), FC) o The property regime is dissolved.  Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2))  A spouse may petition the court for: o Receivership o Judicial separation of property, or o The authority to be the sole administrator of the conjugal partnership  If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128)  Judicial Dissolution (Arts. 135 and 136) Furthermore: Marriage settlements are considered ACCESSORY to the marriage  Stipulations in consideration of future marriage and donations will be void if the marriage does NOT take place. (Art. 81, FC)


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II. Donations by Reason of Marriage Requisites of donations propter nuptias: (Art. 82, FC)— a) Made before the celebration of marriage. b) Made in consideration of the marriage. c) In favor of one or both spouses. d) The donor must be one of the betrothed or any third person Donations excluded— 1. Ordinary wedding gifts given after the celebration of the marriage 2. Donations in favor of future spouses made before marriage but not in consideration thereof 3. Donations made in favor of persons other than the spouses even if founded on the intended marriage Who may donate— 1. Spouses to each other 2. Parents of one or both spouses rd 3. 3 persons to either or both spouses 



Moreover, in donations propter nuptias, the marriage is really a consideration but not in the sense of giving birth to the obligation. There can be a valid donation even if the marriage never took place. However, the absence of marriage is a ground for the revocation of the donation. (Solis v. Barroso, (1928)) Donations propter nuptias are without onerous consideration, marriage being merely the occasion or motive for the donation, not its cause. Being liberalities, they remain subject to reduction for inofficiousness upon the donor’s death, if they should infringe the legitime of a forced heir. (Mateo v. Lagua, (1969))

Rules to Follow in Donation Propter Nuptias— 1. Family Code provisions (Arts. 82-87) 2. Ordinary Donation provisions (Art. 83, FC; Title III of Book III of the NCC) 3. Provisions on testamentary succession and the formalities of wills for donations on future property (Art. 84, par. 2) Distinguished from Ordinary Donations— DONATIONS PROPTER NUPTIAS Does not require express acceptance

ORDINARY DONATIONS Express acceptance necessary

DONATIONS PROPTER NUPTIAS May be made by minors (Art. 78) May include future property If present property is donated and property is not absolute community, limited to 1/5 (Art. 84) Grounds for revocation In Art. 86

ORDINARY DONATIONS Cannot be made by minors Cannot include future property No limit to donation of present property provided legitimes are not impaired Grounds for revocation in donation laws

Rules— 1. Before Marriage General Rule: Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84, FC) Exception: If they are governed by ACP 2. During Marriage General Rule: Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87, FC) Exception: Moderate gifts on the occasion of any family rejoicing. 

Matabuena v Cervantes, (1971) The donation between common-law spouses falls within the provision prohibiting donations between spouses during marriage.



Harding v. Commercial Union, (1918) The prohibition on donations can only be assailed by persons who bear such relation to the parties or the property itself, that their rights are being interfered with. Here, the insurance company of the donated car cannot assail the validity of the donation. In addition, the codal exception of “moderate gifts” depends on the income class of the spouses and a car could be considered a “moderate gift” that does not infringe the prohibition of donation between spouses.



Sumbad v. CA, (1999) The donation made by a man to a woman was held valid because no proof was shown that they were still living in a common-law relationship at the time of the donation.

Donation of Property Encumbrances—

Subject

to


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1. Are considered valid. 2. In case of foreclosure a. if property value < obligation, donee shall not be liable b. if property value > obligation, donee shall be entitled to the excess (Art. 85, FC) Grounds for Revocation of Donation Propter Nuptias (Art. 86, FC) (CAVaLRI)— 1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in settlements. 2. When the marriage takes place without the consent of the parents or guardians, as required by law. 3. When the marriage is annulled, and the donee acted in bad faith. 4. Upon legal separation, if the donee is the guilty spouse. 5. If there is a resolutory condition, and it is not complied with. 6. When donee has committed an act of ingratitude: (Art. 765, CC) (PCS) a. An offense against person or property of donor, or his wife or children under parental authority. b. An imputation to the donor of any criminal offense, or any act involving moral turpitude, even if proven, unless the crime is committed against the donee, his wife or children under his authority. c. Refusing to support the donor, if he/she is legally required to do so. *The action for filing for revocation of donation prescribes.

III. Absolute Community of Property A. In General (Asked in ’98 and ’07 bar exams) When it commences— At the precise moment of the celebration of the marriage (Art. 88, FC). However, if the marriage is celebrated before the Family Code took effect (1988), the default property regime is the Conjugal Partnership of Gains (CPG). Waiver of Rights (Art. 89, FC)—  General Rule: NOT ALLOWED  Exceptions a. When there is judicial separation of property b. When there is legal separation


c.

When the marriage is dissolved (by death of one of the spouses) d. When the marriage is annulled Supplementary Rules to Follow— Co-ownership (Art. 90, FC)

B. What Constitutes Community Property What it consists— All the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91, FC) Under the ACP, spouses cannot exclude specific properties from the regime. What is Excluded (BGM) (Art. 92, FC)— 1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate and intestate succession, including the fruits of such properties EXCEPT: When it was expressly provided by the donor or testator that the property shall form part of the ACP 2. Properties for personal use EXCEPT: Jewelry - they form part of the ACP 3. Properties acquired before the marriage, for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage) Presumption— All properties acquired during the marriage form part of the ACP, unless it be proven that they are excluded. (Art. 93, FC)

C. Charges Upon the ACP (Art. 94, FC) (4 debts, 2 taxes, 2 expenses, support, donation) (asked in ’76 bar exam) 1. Support  Spouses  Even if not living together except when a spouse leaves conjugal home without just cause  Even during pendency of action for legal separation or annulment of marriage  Common children  Legitimate children of previous marriage


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

2.

3.

4. 5.

6. 7.

8.

9.

10.

Illegitimate children - follow the provisions on Support and (9) Debts and Obligations Contracted During Marriage  Either by both spouses or one of them, with the consent of the other.  In (2) and (3), creditors need not prove that the debts benefited the family. Debts Contracted by one Spouse Without Consent of the other  ACP liable only to the extent that the debt benefited the family. Tax, Liens, Repairs on Community Property  Includes both major and minor repairs Taxes and Expenses for Mere preservation of Separate properties  Applies only to separate properties by either spouse being used by the family, not those that do not benefit the family.  Expenses limited to minor repairs. Expenses for professional, Vocational, or Self-Improvement Course of Spouses Ante-nuptial Debts that Benefited the Family  If the ante-nuptial debt did not benefit the family, applicable rule is (9). Donations by Both Spouses to Common Legitimate Children  Purpose: professional, vocational courses or activities for selfimprovement Ante-Nuptial Debts not under (7), Support of Illegitimate Children, Liabilities of Either Spouse Arising from Crime or Quasi-Delict  Only ff the debtor-spouse has no exclusive property or his or her property is insufficient.  The payments by the ACP are deemed advances to be deducted from the share of the guilty spouse upon the liquidation of the absolute community. Expenses of Litigation between Spouses  Except when suit is groundless

If community property is insufficient except in (9), spouses are solidarily liable for the unpaid balance from their separate properties. Gambling losses shall be borne by the losing spouse’s separate property, winnings shall accrue to the community property. (Art. 95, FC)

D. Administration, Ownership Disposition of ACP

and

Administration of property— Belongs to both spouses jointly. If they disagree the husband’s decision prevails. However, the wife has five years from the date of the decision to go to court for recourse. Otherwise, it is

presumed that she agreed with the husband’s decision. (Art. 96, FC) Except— When the other spouse is incapacitated, or unable to participate in the administration (e.g. when abroad). The powers refer solely to administration; disposition or encumbrance requires consent of the absent or incapacitated spouse. Homeowners Savings & Loan Bank v. Dailo (2005)— In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void. Disposition of Property— Either spouse may, through a will, dispose his/her interest in the community property. (Art. 97, FC) However, the will should refer only to his/her own share in the community property Donation of Property—  General Rule Donation of one spouse without the consent of the other is not allowed (Art. 98, FC)  Exceptions a. Moderate donations to charity due to family rejoicing or distress; b. Moderate gifts by each spouse to the other due to family rejoicing. (Note: What’s moderate depends on the socioeconomic status of the family)

E. Dissolution of ACP ACP terminates upon (Art. 99, FC)— 1. Death of either spouse – follow rules in Art. 103 2. Legal Separation – follow rules in Arts. 63 and 64 3. Annulment or judicial declaration of nullity – follow rules in Arts. 50 to 52 4. Judicial separation of property during marriage – follow rules in Arts. 134 to 138 Rules on De Facto Separation (ART. 100, FC)— De facto separation does not affect the ACP; EXCEPT that: 1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family. 2. If consent is necessary for transaction but is withheld or otherwise unobtainable,


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3. 4. 5.

6.


authorization may be obtained from the court. Support for family will be taken from the ACP. If ACP is insufficient, spouses shall be solidarily liable. If it is necessary to administer or encumber separate property of spouse who left, spouse present may ask for judicial authority to do this. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on support.

Abandonment (Art. 101, FC)— Present spouse may petition the court for: 1. receivership; 2. judicial separation of property; or 3. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose. Spouse is prima facie considered to have abandoned the other spouse and the family if: 1. he/she has left for a period of three months, 2. he/she has failed to inform his/her whereabouts for a period of three months.

F. Liquidation of Assets and Liabilities

the provisions of law on forfeitures and delivery of presumptive legitimes. 6. After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes. Rules in Case of Termination of Marriage by Death of One of the Spouses (Art. 103, FC)— 1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. a. If no liquidation is made within the period, any disposition or encumbrance involving community property of the terminated marriage shall be void. b. Non-compliance with liquidation procedures would mean that a subsequently contracted marriage will follow a regime of complete separation of property.

(asked in ’89 and ’99) Process of liquidation of ACP (Art. 102, FC)— 1. Inventory of assets of ACP and of spouses, with market values. 2. Obligations are paid with community property, and separate obligations not charged to ACP paid by respective assets of spouses. a. If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after the separate properties of the spouses, which are solidarily liable for the deficiency. 3. Delivery of whatever exclusive property.

remains

in

their

4. Balance, or net remainder is divided equally between the spouses, irrespective of how much each brought into the community. 5. If personal obligations of a spouse exceed his/her separate property, creditor can go after the share of the spouse on the net remainder of the ACP, without prejudice to

Procedure for Liquidation of Community Properties of Two Marriages (Art. 104, FC)— 1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each.  Onas v. Javillo, (1934) Javillo contracted 2 marriages. SC ruled that each absolute community should be considered owner of the parcels of land acquired during its existence. Death discontinues ACP.  Vda. De Delizo v. Delizo, (1976 In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each.


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IV. Conjugal Partnership of Gains

34

(Asked in ’79 bar exam) CPG Exists with the mere fact of marriage

1. Existence 2. Purpose, duration, rules 3. Profits

and

4. Equality

5. Personality 6. Commencement 7. Regulation 8. Purpose 9. Causes dissolution

for

10. Effect of death of a partner 11. Division of properties 12. Management

1. Property acquired before marriage. 2. Property acquired during marriage 3. Upon dissolution of marriage 4. Basis

5. Liquidation

Predetermined by legislator, the law fixing its conditions. Divided equally between spouses, irrespective of the amount of capital that they bring into marriage No equality between spouses in control, management, and disposition, because the law grants the husband some predominance. No juridical personality At precise moment of celebration of marriage By law

Ordinary partnership Comes into existence according to agreement between parties Determined by will of partners.

Depends upon respective capitals of partners, or upon their agreement General rule is that all partners have equal rights in administration, management, and control of partnership. Considered a juridical person At the time agreed upon by partners

Joint; in case of disagreement, the husband’s decision shall prevail, wife has recourse to courts

By agreement of parties; subsidiarily, by law For profit Death, insolvency, civil interdiction, termination of term, express will of any partner, etc. (Arts 1830-1931) Surviving partners may choose to continue partnership There can be division of profits without dissolution Same as individual partners, except when one or more partners designated as managers.

CPG Each spouse retains his/her property; only fruits part of conjugal property Part of conjugal property

ACP Properties become part of community property Becomes community property

Separate properties are returned; net profits divided between spouses or heirs Capital and properties of spouses kept separate and distinct from benefits; insurmountable obstacle to presumption of solidarity Exclusive properties will have to be identified and returned, and sometimes, identification is difficult.

Net remainder of ACP divided equally between spouses or heirs

Not particularly for profit Death, legal separation, annulment, JDN, judicial separation of property Dissolution of partnership Only upon dissolution

A. Where It Applies (Art. 105) 1. For marriages before the implementation of the Family Code. 2. For marriages after the Family Code, if agreed to by the parties through a marriage settlement.

Mutual trust and confidence between spouses; fosters oneness of spouses

Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs.

Note: CPG begins at the precise moment the marriage celebrated (Art 107)

PERSONS AND FAMILY RELATIONS

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B. Husband and Wife Place in Common Fund (PIPF-EC) (Art. 106)


C. Exclusive Properties of the Spouses

4. Share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found 5. Acquired through occupation such as fishing or hunting 6. Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage 7. Acquired by chance, such as winnings from gambling or betting

1. Art 109



1. The proceeds, products, fruits, and income of their separate properties; 2. Everything acquired by them within marriage through their own efforts; 3. Everything acquired by them by chance

Directly acquired or originally exclusive Property by substitution

(OGRE) (1) Property brought into marriage by each spouse as his/her own (2) Property acquired by either spouse during the marriage by gratuitous title (3) Property acquired by right of redemption, by barter, or by exchange with property belonging to either spouse (4) Property purchased with exclusive money of either spouse

2. Other Separate Property: (CSI) a. Collection of credits belonging to one spouse exclusively but the interests shall belong to the CPG (Art 119) b. Sale of separate property of a spouse c. Indemnity paid in case of expropriation of separate property or under an insurance policy covering separate property. 

 

Spouses retain the ownership, possession, administration and enjoyment of their exclusive properties (Art 110, par 1.) Possession by one spouse of the separate property the other spouse does not affect ownership Transfer of administration of a spouse’s exclusive property to the other spouse must be made in a public instrument recorded in the registry of property of the place where the property is located (Art 110, FC) but ownership is not conferred to the administrator – spouse (Rodriguez v. de la Cruz, 1907).

D. What Constitutes the CPG (Art. 117) (asked ’75, ’76, ’78, ‘85’, and ’87 bar exams) (OLF-N-HOLC) 1. Acquired by Onerous Title during the Marriage at Expense of Common Fund 2. Acquired through the Labor, Industry, Work, Profession of Either or both Spouses 3. Fruits from common property and net fruits of exclusive property of each spouse



Moral damages arising from a contract paid from CPG are also awarded to the CPG (Zulueta v. Pan-Am, 1973). Loans contracted during the marriage are conjugal, and so is any property acquired therefrom (Mendoza v. Reyes, 1983).

E. Rules 1. presumption that property is conjugal: all property acquired during the marriage, whether made, contracted, or registered in the name of one spouse, are presumed conjugal unless the contrary is proven (Art. 116, FC).  As a condition sine qua non for the operation of the presumption in favor of the conjugal partnership the party who invokes the presumption must first prove that the property was acquired during the marriage. (Acabal v. Acabal, 2005)  "X married to Y" as it appears in land titles is not conclusive of the conjugal status of the property (Jocson v. CA, 1989).  Exclusive property brought into a second marriage remains exclusive property of that spouse under CPG regime; ACP is not retroactive for marriages celebrated under the Civil Code (Francisco v. CA, 1998). 2. property purchased by installment (paid partly with conjugal funds and partly with exclusive funds) – Art. 118:  conjugal property if full ownership was vested during the marriage – CPG shall reimburse the owner-spouse  exclusive property if full ownership was vested before the marriage – ownerspouse shall reimburse the CPG Exclusive property brought into a second marriage remains exclusive property under CPG regime. ACP is not retroactive for marriages celebrated under the Civil Code (Castillo v. Pasco, 1964). Even if the installment is completed after the marriage, the property is exclusive if


CIVIL LAW REVIEWER

ownership was vested in one spouse before the marriage (Lorenzo v. Nicolas, 1952). 3. rules on improvement on exclusive property: (Art. 120)  accession - if original value is greater than new value (value of land + value of improvements + net change in value), then land remains exclusive property of the owner-spouse; subject to reimbursement of the cost of improvement  reverse accession - if original value is less than new value, then land becomes conjugal property; subject to the reimbursement of the value of the property of the owner-spouse at the dissolution of the CPG. Change of ownership takes place at the time when the improvements are made (Calimlim-Canullas v. Fortun, 1984). 4. If winning ticket is bought by conjugal funds, prize is conjugal; otherwise, it is exclusive property of spouse who owns the ticket. 5. Property belonging to one spouse converted into another kind totally different in nature from its original form during marriage becomes conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse, subject to reimbursement of the value of the original property from the conjugal partnership 6. Money received under the Social Security Act is not conjugal, although the employee-spouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law. 7. Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or invents or discovers it. 8. Business property (e.g. trade-marks, trade names, service marks, business goodwill) are merely accessories to some commercial establishment or product, so that if such establishment or product is separate property of one spouse, then the business property is separate property; but all benefits or earnings derived from these different kinds of property during the marriage should belong to the conjugal property (Tolentino, id., citing the same authority).


F. Charges upon CPG

36

(asked in ’87 and ‘04 bar exams) Art. 121, Family Code. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support;* (2) All debts and obligations contracted during the marriage by the designated administratorspouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; * (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; (4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property; * (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement; * (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement;* and (9) Expenses of litigation between the spouses unless the suit is found to groundless.: If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

* Same as the rule governing ACP Categorization of CPG Charges— (Pangalangan notes) Debts & Obligations (2) Debts incurred: (a) by administratorspouse for the benefit of the family; (b) by both spouses; (c) by one spouse with the consent of the other (3) by one spouse without the consent of the other for the

Taxes & Expenses (4) maintenance of CPG properties

Support

(5) mere preservation of all exclusive

(6) education of spouses, absolute

(1) support of spouses and common children


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benefit of the family (7) antenuptial debts for the benefit of the Family

 








Properties (9) litigation expenses, unless the suit is groundless

(8) education of common children, only for value of donation

Debts incurred in the exercise of a spouse’s profession are charged on the CPG (Javier v. Osmeña, 34 PHIL 336). Debts incurred during the marriage are presumed to be conjugal and thus are charged on the CPG (Cobb-Perez v. Lantin, 23 SCRA 637) Loan contracts signed by both spouses are conjugal, and they are jointly liable for payment, even if only one spouse signs a subsequent promissory note (DBP v. Adil, 161 SCRA 307). Debts incurred for the benefit of third persons are not charged on the CPG (Luzon Surety Co. v. De Garcia, 30 SCRA 111).

G. Administration of the CPG (asked in ’75, ’77, ’02 and ’06 bar exams) 1. 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 5 years from the date of the contract implementing such decision (Art. 124, par.1).  Sale by the husband of property belonging to the conjugal partnership without the consent of the wife when there is no showing that the latter is incapacitated is void ab initio. (Abalos v. Macatangay, Jr, 2004) 2. Disposition or encumbrance of conjugal property requires: (Art. 124, par. 2) a. The consent or approval by both spouses; OR b. Judicial authority secured in court 



Donation of CPG must be with the consent of the other spouse except moderate donations for charity, on occasions of family rejoicing, or family distress (Art 125, cf. Art 98) Mere awareness of a transaction is NOT consent (Jader-Manalo v. Camaisa, 2002)

Homeowners Savings & Loan Bank v. Dailo (2005) In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void.

H. Dissolution of the CPG 1. Termination of CPG Art. 126 (cf. Art. 99) (DLAJ) a. Death b. Legal Separation c. Annulment or declaration of nullity d. Judicial separation of property 2. CPG not affected by de facto Separation Art. 128 (cf. Art. 100) 3. Abandonment and Absence (cf. Art. 101)  Ayala Investment v. Ching, (1998) The Supreme Court ruled that indirect benefits that might accrue to a husband in signing as a surety or guarantee agreement not in favor of the family but in favor of his employer corporation are not benefits that can be considered as giving a direct advantage accruing to the family. Hence, the creditors cannot go against the conjugal partnership property of the husband in satisfying the obligation subject of the surety agreement. A contrary view would put in peril the conjugal partnership by allowing it to be given gratuitously as in cases of donation of conjugal partnership property, which is prohibited.

I.

Liquidation of Assets and Liabilities (asked in ’87 and ’89 bar exams)

1. Procedure (Art. 129) IAR-DRIN-PC a. Prepare an inventory of all properties b. Amounts advanced by CPG in payment of personal debts and obligations shall be credited to CPG c. Reimburse each spouse for the use of his/her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. d. Debts and obligations of CPG shall be paid out of the conjugal assets, otherwise both spouses are solidarily liable with their exclusive property. e. Remains of the exclusive properties shall be delivered to respective ownerspouses


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f.

Indemnify loss or deterioration of movables belonging to either spouse, even due to fortuitous event, used for the benefit of the family g. Net remainder of CPG shall the constitute the profits which shall be divided equally between husband and wife except when: o A different proportion or division was agreed upon in the marriage settlements o There has been a voluntary waiver or forfeiture of such share as provided in the FC h. Presumptive legitimes delivered to common children per Art. 51 i. Conjugal dwelling goes to: o Spouse with whom majority of common children choose to remain (below 7yrs deemed to have chosen the mother) o Whoever the court chooses in case of lack of majority 2. Rules  Property must be recorded in the registry of property in order to affect third persons dealing with registered property.  Spouses are not co-owners of CPG during the marriage and cannot alienate the supposed ½ interest of each in the said properties. The interest of the spouses in the CPG is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets. (De Ansaldo v. Sheriff of Manila, 1937)  Rules on liquidation upon death and liquidation of CPG of 2 or more marriages same as in ACP (Art. 103 & 104)  Support to surviving spouse & children during liquidation is charged against the fruits or income of their shares in the properties. (Art. 133)  Personal debt acquired during marriage of either spouse is not chargeable against community property (Go v. Yamane, 2006)


V. Separation Marriage

of

Properties

During

38

Art. 134, Family Code. 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.



Judicial separation of property may either be (1) voluntary or (2) for sufficient cause.

A. Sufficient Causes and Grounds for Return to Previous Regime Sufficient Causes for Judicial Separation of Property (Art. 135) (CALASA) (1) Spouse of petitioner has been sentenced to a penalty which carries with it civil interdiction (2) Spouse of petitioner is judicially declared an absentee (3) Loss of parental authority of the spouse of petitioner has been decreed by the court (4) Spouse of petitioner has abandoned the latter or failed to comply with his or her obligations to the family (5) The spouse granted the power of administration in the marriage settlements has abused that power

(6) At the time of the petition, the spouses have been separated in fact for at least 1 year and reconciliation is highly improbable.

Grounds for Return to Previous Regime (Art. 141) (1) Termination of the civil interdiction

(2)

Reappearance absentee spouse

of

(5) Restoration of parental authority to the spouse previously deprived of it (4) When the spouse who left the conjugal home without legal separation resumes common life with the other (3) When the court, being satisfied that the spouse granted the power of administration in will not again abuse that power, authorizes the resumption of said administration (6) Reconciliation and resumption of common life of the spouse who have separated in facts for at least 1 year

(7) When after voluntary dissolution of the ACP or CPG has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property


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4. rights previously acquired by creditors are not prejudiced (Art. 140)

regime. No voluntary separation of property may thereafter be granted.

D. Transfer of Administration to the Other Spouse (Art. 142) (GACA)

B. Rules

When one spouse. 1. Becomes the guardian of the other. 2. Is judicially declared an absentee. 3. Is sentenced to a penalty which carries with it civil interdiction. 4. Becomes a fugitive from justice or is in hiding as an accused in a criminal case.

1. Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146 par. 1) 2. Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2) 

Abandonment is defined as the lack of intention to return to the conjugal home, without justifiable cause (Dela Cruz v. Dela Cruz)

C. Effects of separation between spouses

of

If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. In Re: voluntary dissolution of CPG of spouses Bernas, 14 SCRA 237 A voluntary separation of properties is not perfected by mere consent but upon the decree of the court approving the same. The petition for voluntary separation of property st was denied because the children of the 1 nd and 2 marriages were not informed; the separation of property may prejudice the rights and shares of the children.

property

1. ACP or CPG is dissolved and liquidated (Art. 137) 2. Provisions on complete separation of property applies after dissolution of ACP/CPG (Art. 138) a. Liability spouses to creditors shall be solidary with their separate properties b. mutual obligation to support each continues except when there is legal separation 3. Petition and final judgment of separation of property must be filed in the appropriate registries (Art. 139)

Maquilan v. Maquilan, (2007) A compromise agreement with judicial recognition is valid, pending petition for declaration of nullity of marriage.

VI. Property regime of unions without marriage (asked in ’79, ’87, ’98, ’00 and ’09 bar exams) Art. 147

Art. 148

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 coownership.

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.

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 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. (144a)

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.


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Applicability

Salaries and wages Properties acquired through exclusive funds Properties acquired by both through work or industry

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES Art.147 1. man and woman 2. living together as husband and wife 3. with capacity to marry (Art.5 without any legal impediment) a. at least 18 years old b. not Art. 37 (incestuous void marriage) c. not Art. 38 (void marriage by reason of public policy) d. not bigamous 4. other void marriages due to absence of formal requisite Owned in equal shares

Art.148 1. 2. 3. 4. 5. 6. 7.

man and woman living together as husband and wife NOT capacitated to marry (Art.35(1) under 18 years old) adulterous relationship (e.g. concubinage) bigamous/polygamous marriage (Art.35(4)) incestuous marriages under Art.37 Void marriages by reason of public policy under Art.38

Separately owned by parties

Remains exclusive provided there is proof

Remains exclusive

Governed by rules on co-ownership

Owned in common in respective contribution



Owned in equal shares since it is presumed to have been acquired through joint efforts if one party did not participate in acquisition, presumed to have contributed through care and maintenance of family and household

Properties acquired while living together



Forfeiture

When only one of the parties is in good faith, the share of the party in bad faith shall be forfeited: 1. In favor of their common children 2. 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 3. In the absence of such descendants, such share belongs to the innocent party



Yaptinchay v. Torres, (1969) Application of Article 148; there was no proof of actual contribution, while there was a subsisting marriage apart from the union without marriage, therefore, the N. Forbes house goes to the CPG of subsisting marriage



Juaniza v. Jose, (1979) Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the marriage, and the other party cannot be held jointly/severally liable for it



Villanueva v. CA, (2004) Transfer of certificate and tax declarations are not sufficient proof of joint contribution.



proportion

to

No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing If one party is validly married to another his/her share in the co-owned properties will accrue to the ACP/CPG of his/her existing valid marriage If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147 The same rules on forfeiture shall apply if both parties are in bad faith

Joaquino v. Reyes (2004) Prohibitions against donations between spouses must likewise apply to donations between persons living together in illicit relations;


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Chapter IX. The FAMILY and the FAMILY HOME

Chapter IX. The Family and the Family Home I.

II.

I.

FAMILY A. FAMILY RELATIONS B. GENERAL RULE C. EXCEPTIONS FAMILY HOME A. GENERAL RULE B. EXCEPTIONS C. BENEFICIARIES OF THE FAMILY HOME D. REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER ARTICLE 160

Family

(asked in ’91 bar exam) Basic social institution which public policy cherishes and protects hence, no suit between members of the family shall prosper unless compromise between parties has failed.

stranger takes the case out of the ambit of FC 151.

II. Family Home (asked in ’94 and ’07 bar exam) Dwelling place of a person and his family Guidelines— 1. It is deemed constituted from time of actual occupation as a family residence 2. It must be owned by person constituting it 3. It must be permanent 4. Rule applies to valid and voidable and even to common-law marriages under Arts.147 and 148 5. It continues despite death of one or more spouses or unmarried head of family for 10 years or as long as there is a minor beneficiary (Art.159) 6. Can only constitute one family home

A. Family relations include: 1. 2. 3. 4.

Between husband and wife Between parents and children Among other ascendants and descendants Among brothers and sisters, full or half blood.

B. General Rule For a suit between members of the same family to prosper, the following are required: 1. Earnest efforts towards a compromise have been made 2. Such efforts have failed 3. Such earnest efforts and the fact of failure must be alleged Note: The case will be dismissed if it is shown that no such efforts were made.

C. Exceptions (VJLAFF)

to

the

general

A. General Rule The family home is exempt from (EFA): 1. Execution 2. Forced sale 3. Attachment

B. Exceptions in the exemption of the family home from execution (Art. 156) 1. Nonpayment of taxes. 2. Debts incurred prior to the constitution of the family home. 3. Debts secured by mortgages on the premises before or after such constitution. 4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.

rule

1. 2. 3. 4. 5. 6.

Civil status of persons, Validity of marriage or a legal separation, Any ground for legal separation, Future support, Jurisdiction of courts, Future legitime



Hontiveros v. RTC, (1999) Whenever a stranger is a party in a case involving family members, the requisite showing of earnest efforts to compromise is no longer mandatory, as such inclusion of a

C. Beneficiaries of the family home (Art. 154) 1. Husband and wife, or an unmarried person who is the head of the family 2. Parents (may include parent-in-laws), ascendants, descendants, brothers and sisters (legitimate/illegitimate), who are living in the family home and who depend on the head of the family for support Requisites to be a beneficiary (RLD)— 1. The relationship is within enumerated 2. They live in the family home

those


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3. They are dependent for legal support on the head of the family Requirements for the sale, alienation, donation, assignment, or encumbrance of the family home— 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age

Chapter IX. The FAMILY and the FAMILY HOME



Versola v. Mandolaria, (2006) The proof that the house is the family home must be alleged against creditors; Applied the rule in Art. 160, FC.



Patricio v. Dario III, (2006) WON the grandson of the deceased is a beneficiary according to Art. 154 FC. The beneficiary should satisfy all requisites; he must be dependent on the head of the family.



Arriola v. Arriola, (2008) This case involves half brothers and a second wife; the family home includes the land it is built on. The rule in Art. 159 of the FC regarding the 10 year period is applied, the parties involved must wait.

Note: If there is a conflict, the Court will decide. In case of death (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 as long as there is a minor beneficiary. - The heirs cannot partition the home unless the court finds compelling reasons therefor.

D. Requisites for creditor to avail of the right under Article 160 Requisites— 1. He must be a judgment creditor; 2. His claim is not among those excepted under Article155, and 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Article 157 Procedure to avail of right under Article 160— 1. The creditor must file a motion in the court proceeding where he obtained a favorable for a writ of execution against the family home. 2. There will be a hearing on the motion where the creditor must prove that the actual value of the family home exceeds the maximum amount fixed by the FC either at the time of its constitution or as a result of improvements introduced thereafter its constitution. 3. If the creditor proves that the actual value exceeds the maximum amount the court will order its sale in execution. 4. If the family home is sold for more than the value allowed, the proceeds shall be applied as follows: a. First, the obligation enumerated in Article 155 must be paid b. Then the judgment in favor of the creditor will be paid, plus all the costs of execution c. The excess, if any, shall be delivered


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Chapter X. PATERNITY and FILIATION

b. And under Art. 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children). (SEMPIO-DIY)

Chapter X. Paternity and Filiation I. II. III. IV. V.

KINDS OF FILIATION IMPUGNING LEGITIMACY PROOF OF FILIATION LEGITIMATION RIGHTS OF LEGITIMATE OR ILLEGITIMATE CHILDREN

I.

Kinds of Filiation



De Castro v. Assidao-De Castro, (2008) Common children born before the annulment are legitimate, and therefore entitled to support from each of the spouses.

(Arts. 163, 164, 165 FC) 1. Natural a. Legitimate b. Illegitimate 2. Legal Fiction (Adoption) Legitimate Children— (asked in ’79, ’82, ’84, ’85, ’99 and ’03 bar exams) Conceived or born during the marriage of parents May be thru natural means or by artificial insemination. 1. Natural/Biological Liyao v. Liyao, (2002): A child conceived or born during a valid marriage is presumed to belong to that marriage, regardless of the existence of extramarital relationships. 2. Artificial Insemination (Art. 164) Requisites for children conceived through artificial insemination to be considered legitimate: a. Artificial insemination made on wife b. Sperm comes any of the following:  Husband  Donor  husband and donor c. In case of donor sperm, husband and wife must authorize/ratify insemination in a written instrument  Executed & signed by husband and wife before the birth of the child.  Recorded in the civil registry together with the birth certificate of the child. Illegitimate Children— (asked in ’80, ’82, ’83, ’84, ’90, ’93, ’99, ’00, ’07, ’08 and ’09 bar exams)  General Rule: Those conceived and born outside of a valid marriage.  Exceptions: a. Children of marriages void under Art.36 (psychological incapacity).

II. Impugning Legitimacy (Art. 166) A. Grounds Thus the grounds for impugning the legitimacy of a child are: 1. Physical impossibility for sexual intercourse within the first 120 days of the 300 days which immediately preceded the child's birth due to: 2. Other biological or scientific reasons, except Artificial Insemination. 3. And in case of Artificial Insemination, the consent of either parent was vitiated through fraud, violence, mistake, intimidation, or undue influence. Macadangdang v. CA, (1980) Only a proximate separation between the spouses is not sufficient physical separation as grounds for impugning legitimacy. Andal v. Macaraig, (1951) Serious illness of the husband which absolutely prevented him from having sexual intercourse with his wife, like if the husband was already in comatose or a vegetable, or sick with syphilis in the tertiary stage so that copulation was not possible. But tuberculosis, even in its most crucial stage, does not preclude copulation between the sick husband and his wife. Jao v. CA, (1987) Blood-type matching is an acceptable means of impugning legitimacy, covered by Art. 166(2), under "biological or other scientific reasons." But this is only conclusive of the fact of non-paternity.

B. Action for Impugning Legitimacy (Arts. 170 and 171) The action for impugning the legitimacy of a child may be brought within 1, 2, or 3 years from the knowledge of the birth, or the knowledge of registration of birth.


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1. Within 1 year  if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded. 2. Within 2 years  if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded 3. Within 3 years  if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines If the birth of the child has been concealed or was unknown to the husband, the above periods shall be counted: 1. from the discovery or knowledge of the birth of the child, or 2. from the discovery or knowledge of its registration, 3. whichever is earlier. Sayson v. CA  Legitimacy can only be attacked directly  General Rule: Only the husband can impugn the legitimacy of a child. If he does not bring action within the prescribed periods, he cannot file such action anymore thereafter, and this is also true with his heirs.  Exception: That the heirs of the husband may file the action or continue the same if it has already been filed a. If the husband died before the expiration of the period fixed for bringing his action b. If he should die after the filing of the complaint without having desisted c. If the child was born after the death of the husband.

III. Proof of Filiation (Arts. 172 and 175 (1)) (asked in ’85, ’95, ’05 and ’06 bar exams)

A. Rules Legitimate or illegitimate children may prove their filiation in the same way and on the same evidence. General Rule: They may only prove their status using the following pieces of evidence: 1. 2.

3. 4.

Their record of birth appearing in the civil registry. An admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by said parent or parents. (SEMPIO-DIY) Proof of open and continuous possession of status as legitimate or illegitimate child Any other means stated by the rules of court or special laws


Mendoza v. Melia, 17 SCRA 788 Baptismal certificates are given probative value only for births before 1930. Birth certificates must be signed by the parents and sworn for it to be admitted as evidence. Baluyut v. Baluyut, (1990) Unsigned birth certificates are not evidence of recognized filiation. Acebedo v. Arquero, (2003) Baptismal certificates are only conclusive of the sacrament administered, and cannot be used as proof of filiation. Lim v. CA, (1975) Marriage certificates cannot be used as proof of filiation. Jison v. CA, (1998) Rule 130, Sec. 40 is limited to objects commonly known as family possessions reflective of a family's reputation or tradition regarding pedigree like inscriptions on tombstones, monuments, or coffin plates. Eceta v. Eceta (2004) Signature of the father on the birth certificate is considered as an acknowledgement of paternity and mere presentation of a duly authenticated copy of such certificate will successfully establish filiations. Heirs of Rodolfo Bañas v. Heirs of Bibiano Bañas, (1985) "Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual paternity. Signature on a report card under the entry of "Parent/Guardian" is likewise inconclusive of open admission. De Jesus v. Syquia, (1933) By "open and continuous possession of the status of a legitimate child" is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child, like bearing the paternal surname, treatment by the parents and family of the child as legitimate, constant attendance to the child's support and education, and giving the child the reputation of being a child of his parents. Agustin v. CA, (2005) DNA evidence can be used as proof of paternity. De Jesus v. Estate of Decedent Juan Gamboa Dizon (2001) The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing, is


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in itself a consummated act of acknowledgement of the child, and no further court action is required. Gono-Javier vs. Court of Appeals, (1994) Mere possession of status as an illegitimate child does not make a recognized illegitimate child but is only a ground for bringing an action to compel judicial recognition by the assumed parent. Herrera v. Alba, (2005) In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: a. How the samples were collected, b. How they were handled, c. The possibility of contamination of the d. e. f.

samples, The procedure followed samples, Whether the proper procedures were followed tests, and the qualification of conducted the tests.

because either or both of them were below eighteen (18) years of age at the time of child’s conception may be legitimated. Grounds for impugning legitimation— 1. 2. 3.

V. Rights of Legitimate and Illegitimate Children (SSS) 1. Surname a. b.

in analyzing the standards and in conducting the

a.

the analyst who

B. Action for Claiming Filiation (Arts. 173 and 175 (2))



The child can bring the action during his or her lifetime and even after the death of the parents. The action does not prescribe as long as he lives. If the child is a minor, or is incapacitated or insane, his guardian can bring the action in his behalf.

IV. Legitimation (Arts. 177 and 182)

b. a. b.

2.

The child was conceived and born outside of wedlock. General rule: The parents, at the time of the child's conception, were not disqualified by any impediment to marry each other.

Exception: RA 9858 - Children born to parents who were so disqualified only

Legitimate and legitimated: in accordance to provisions in the family code Illegitimate: entitle to support but support will come from separate properties of parent.



Republic v. Vicencio, (1998) A legitimate child's use of the father's surname is mandatory.



De Asis v. CA, (1999) Obligation to support a legitimate child cannot be waived or compromised.



David v. CA, (1995) Parental authority over an illegitimate child belongs to the mother.



Tonog v. CA, (2002) However, this may be temporarily denied to the mother by reason of her incapacity.



Mossesgeld v. CA, (1998) The father cannot force the use of his surname without first establishing legitimacy.



Under RA 9255, only an acknowledgment by the father is necessary for the use of the father's surname.



Capote v. CA, (2007) An illegitimate child already given the father's surname without the latter's acknowledgment, must revert to using the mother's surname.

Requisites for legitimation— 1.

Legitimate and legitimated: those granted in Civil Code Illegitimate: ½ the share of a legitimate child

3. Support

(asked in ’82, ’90, ’92, ’04 ’08 and ’09 bar exams) "Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are, by legal fiction, considered legitimate.

Legitimate and legitimated: Surname of father and mother Illegitimate: uses surname of mother but the father’s surname may be used if father has explicitly recognized the child as his (RA 9255, Revilla Law)

2. Succession (asked in ’09 bar exams)

Estate of Rogelio Ong v. Diaz, (2007) DNA evidence can still be used even after the death of the parent.



The subsequent marriage of the child's parents is void. The child allegedly legitimated is not natural. The child is not really the child of the alleged parents. (SEMPIO-DIY)


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Chapter XI. ADOPTION

Chapter XI. Adoption I.

R.A. 8552 A. WHO MAY ADOPT B. WHO MAY BE ADOPTED II. ADOPTION PROCEDURE UNDER RA 8552 IRR A. PRE-ADOPTION SERVICES B. EFFECTS OF ADOPTION C. RESCISSION OF ADOPTION D. EFFECTS OF RESCISSION E. RECTIFICATION OF SIMULATED BIRTHS III. R.A. 8043: INTER-COUNTRY ADOPTION ACT OF 1995 A. WHO MAY ADOPT B. WHO MAY BE ADOPTED C. WHERE TO FILE APPLICATION D. DOCUMENTS TO SUPPORT APPLICATION E. INTER-COUNTRY ADOPTION BOARD F. TRIAL CUSTODY

ADOPTION (Asked in ‘76, ‘77, ‘85, ‘94, ‘95, ‘96, ‘00, ‘01, ‘03, ‘04, ‘05, ‘07, ’08 bar exams) LEGITIMATION The law merely makes legal what exists by nature

Persons affected

Only children

Procedure

Extrajudicial acts of parents Only by both parents

Who applies

Effect

I.

natural

Same status and rights with that of a legitimate child not only in relation to the legitimizing parents but also to other relatives

ADOPTION The law merely creates by fiction a relation which did not in fact exist Generally applies to strangers Always by judicial decree Husband and wife adopt jointly with exceptions (RA8552) Creates a rel. only between the child and the adopting parents

RA 8552: Domestic Adoption Act of 1998

A. Who May Adopt (Sec.7) 1. Filipino Citizens a. Of legal age b. In possession of full civil capacity and legal rights c. Of good moral character

d. Has not been convicted of any crime involving moral turpitude e. Emotionally and psychologically capable of caring for children f. At least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptee’s parent g. In a position to support and care for his/her children in keeping with the means of the family 2. Aliens a. Possession of the same as the qualifications for Filipinos b. His/her country has diplomatic relations with the Philippines c. Has been living continuously for 3 years (provided that absences not exceeding 60 days per 1 year for professional, business, or emergency reasons are allowed) in RP prior to the filing of application and maintains such residence until the decree is entered d. Has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country e. His/her government allows the adoptee to enter his/her country as his/her adoptee f. Has submitted all the necessary clearances and such certifications as may be required **Items numbers c, d and e may be waived under the following circumstances: a. Adopter is a former Filipino Citizen who th seeks to adopt a relative within the 4 degree of consanguinity or affinity b. One who seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse c. One who is married to a Filipino Citizen and seeks to adopt jointly with his/her th spouse a relative within the 4 degree of consanguinity or affinity of the Filipino spouse 3. Guardians With respect to theirs ward after the termination of the guardianship and clearance of his/her accountabilities. Husband and wife shall adopt jointly; Except— 1. if one spouse seeks to adopt the legitimate child of the other


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B. Who May Be Adopted (Sec. 8) 1. Any person below 18 years old who has been administratively or judicially declared available for adoption 2. The legitimate child of one spouse by the other spouse 3. An illegitimate child by a qualified adopter to improve the child’s status to that of legitimacy 4. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her child since minority 5. A child whose previous adoption has been rescinded 6. A child whose biological or adoptive parent(s) has died, provided that no proceedings shall be initiated within 6 months from the time of death of said parent(s) Consent Necessary for Adoption (Sec. 9)— 1. The prospective adoptee if 10 years or older 2. The prospective adoptee’s biological parents, legal guardian or the government instrumentality or institution that has custody of the child 3. The prospective adopters’ legitimate and adopted children who are ten years or over and, if any, illegitimate children living with them 4. The spouse, if any, of the person adopting or to be adopted. Note: A decree of adoption shall be effective as of the date the original petition was filed. It also applies in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee. Child to be Adopted Biological parent signs a Deed of Voluntary Commitment (Rescissible within 6 months) Voluntary Commitment: Declaration of Availability for Adoption Involuntary Commitment: (1) Announcement of

Adopter Inquiry at DSWD

Attendance of DSWD Adoption Fora and Seminars (include counseling)

Missing Child Tri-Media (2) Declaration Abandonment (3) Declaration Availability Adoption Case Study Report

in

47

of of for Application for Adoption Case Study Report Matching Placement Supervised Trial Custody Home Study Report Recommendation and Consent Petition for Adoption Adoption Decree

II. Adoption Procedure under RA 8552 IRR (Secs. 10-32) (as discussed in Prof. Elizabeth Pangalangan’s class)

A. Pre-Adoption Services The DSWD shall provide for the following services: 1. Counseling services for the biological parents, prospective parents, and prospective adoptee 2. Exhaust all efforts to locate the biological parents, if unknown

B. Effects of Adoption (Secs. 16-18) 1. Parental Authority All legal ties between biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter. 2. Legitimacy The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind. 3. Succession Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern.


2. if one of the spouse seeks to adopt his/her illegitimate child provided that other spouse has signified his/her consent 3. if spouses are legally separated from each other ** if spouses jointly adopt, parental authority shall be exercised jointly

C. Rescission of Adoption (Sec. 19) Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). Adopted may request for rescission, with the assistance of DSWD, if a minor, or over 18 but incapacitated, based on the ff grounds: 1. repeated physical and verbal maltreatment despite having undergone counseling 2. attempt on life of adoptee 3. sexual assault or violence 4. abandonment or failure to comply with parental obligations However, the adopter(s) may disinherit the adopted based on causes as enumerated in Art. 919 of the NCC.

D. Effects of Rescission (Sec. 20) 1. The parental authority of the adoptee's biological parents, if known, OR the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated. 2. The reciprocal rights and obligations of the adopters and the adoptee to each other shall be extinguished. 3. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. 4. Successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

E. Rectification of Simulated Births (Sec. 22) A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, 1. That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: 2. That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: 3. That such person complies with the procedure for Legal Adoption as specified in this Act, which includes the Child and Home Study Report of DSWD to determine if alleged conditions in the application for


rectification exist, and other requirements as determined by the Department. Tamargo v. CA (1992) Where the petition for adoption was granted after the child had shot and killed a girl, the Supreme Court did not consider that retroactive effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortuous act that they could not have foreseen and which they could not have prevented would be unfair and unconscionable. Lazatin v. Campos, (1979) Adoption is a juridical Act, proceeding in rem. Because it is artificial, the statutory requirements in order to prove it must be strictly carried out. Petition must be announced in publications and only those proclaimed by the court are valid. Adoption is never presumed. Santos v. Aranzanso, (1966) Validity of facts behind a final adoption decree cannot be collaterally attacked without impinging on that court’s jurisdiction. DSWD v. Belen, (1997) Participation of the appropriate government instrumentality in performing the necessary studies and precautions is important and is indispensable to assure the child’s welfare. Landingin v. Republic, (2006) Consents for adoption must be written and notarized. Sayson v. CA. (1992) Adopted children have a right to represent their adopters in successional interests. (I don’t know the basis for this doctrine but according to SCRA and my notes, the decision in this case was: “Although an adopted child shall be deemed to be a legitimate child and have the same rights as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the


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adopting parents and the adopted child. It does not extend to the blood relatives of either party.”)

III. RA 8043: Inter-Country Adoption Act of 1995 INTER-COUNTRY ADOPTION refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines.

A. Who May Adopt (Sec. 9) Any foreign national or a Filipino citizen permanently residing abroad who has the qualifications and none of the disqualifications under the Act may file an application if he/she: 1. Is at least 27 years of age and at least 16 years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent 2. If married, his/her spouse must jointly file for the adoption 3. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country 4. Has not been convicted of a crime involving moral turpitude 5. Is eligible to adopt under his/her national law 6. Is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted 7. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act 8. Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws


B. Who May Be Adopted (Sec. 8) 1. Only a legally-free child may be the subject of inter-country adoption. 2. A legally-free child is one who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child and Youth Welfare Code. 3. No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. 4. In order that such child may be considered for placement, the following documents must be submitted to the Board: a. Child study b. Birth Certificate / Foundling Certificate c. Deed of Voluntary Commitment/ Decree of Abandonment/ Death Certificate of parents d. Medical Evaluation / History e. Psychological Evaluation, as necessary f. Recent photo of the child

C. Where to File Application (Sec.10) Application shall be filed with the Philippine Regional Trial Court having jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.

D. Application Should Be Supported By The Following Documents Written And Officially Translated In English (Sec. 10) 1. Birth Certificate of applicants 2. Marriage Contract and Divorce decree, if applicable 3. Written consent of their biological or adoptive children above 10 years of age in the form of sworn statement, 4. Physical, medical and psychological evaluation by a duly licensed physician and psychologist 5. Income Tax Returns or any document showing the financial capability of the applicant 6. Police Clearance 7. Character reference from the local church/minister, applicant’s employer and a member of the immediate community who have known the applicant for at least 5 years 8. Recent postcard-sized pictures of the applicant and his immediate family


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E. Inter-Country Adoption Board

F. Trial Custody (Sec. 14) 1. The governmental agency or the authorized and accredited agency in the country of the adoptive parents shall be responsible for the trial custody and the care of the child. It shall also provide for counseling and other related services. 2. The trial custody shall be for a period of 6 months from the time of placement. 3. It starts upon actual physical transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child 4. The adopting parents shall submit to the governmental agency or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child's adjustment. The progress report shall be taken into consideration in deciding whether or not to issue the decree of adoption.


1. as the central authority in matters relating to inter-country adoption 2. Ensures that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child

Chapter XII. Support

Chapter XII. SUPPORT



(asked in ‘84, ‘85, ‘05, ’08 bar exams) I.

GENERAL PROVISIONS A. KINDS B. CHARACTERISTICS C. HOW SUPPORT IS GIVEN II. WHO ARE OBLIGED TO SUPPORT EACH OTHER III. PROPERTIES ANSWERABLE FOR SUPPORT IV. ORDER OF SUPPORT A. IF THERE ARE MULTIPLE OBLIGORS B. IF THERE ARE MULTIPLE RECIPIENTS

I.

Support



Consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Art. 194).



The right and duty to support, especially the right to education, subsists even beyond the age of majority (Art. 194).



The amount of support is in proportion to the means of the provider and the needs of the receiver, and can be reduced or increased if such circumstances change (Arts. 201 202).



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 PAYABLE except from the date of judicial or extra-judicial demand (Art. 203).



When, WITHOUT THE KNOWLEDGE of the person obliged to give support, it is given by a stranger, the stranger has the right to claim the same from the person obliged, unless it appears that he gave it without intention of being reimbursed (Art. 206).





When the person obliged to give support UNJUSTLY REFUSES OR FAILS to give support when urgently needed, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This particularly applies when the father or mother of a minor child unjustly refuses to support or fails to give support to the child when urgently needed (Art. 207). Future support cannot be the subject matter of a compromise; such are void (Art. 2035, CC).



Refusal to support children or descendants without justifiable cause is a sufficient condition for the disinheritance of parents or ascendants, whether legitimate or illegitimate (Art. 920, CC). Unjustified refusal to support one’s children or spouse is a sufficient cause for disinheriting a spouse (Art. 921, CC).



Spouses are jointly responsible for the family's support. Support expenses shall be paid from the CP, or in absence thereof, the income/fruits of their separate properties, or in insufficiency/absence of such, from the separate properties (Art. 70). ___________

A. Kinds of Support 1. Legal – that which is required to be given by law 2. Judicial – that which is required to be given by court order whether pendente lite or in a final judgment 3. Voluntary or Conventional – by agreement

B. Characteristics of Support (PREVIEW) 1. Personal 2. Intransmissible 3. Not subject to waiver or compensation with regard to future support 4. Exempt from attachment or execution, except if support is contractual or given by will. In such cases, any excess legal support can be subject to levy on attachment or execution. 5. Reciprocal on the part of those who are by law bound to support each other 6. Variable

C. How Support is Given (Art. 204) 1. Payment of the amount; 2. Accepting the recipient in the home of the provider, unless there is a legal or moral obstacle from doing so.

II. Who are Obliged to Support Each Other (Art. 195) 1. Spouses; 2. Legitimate ascendants and descendants; 3. Parents and their children (legitimate and illegitimate) and the children of the latter (legitimate and illegitimate);


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4. Legitimate brothers and sisters, whether of full or half-blood; 5. Illegitimate brothers and sisters, EXCEPT when the need for support of one (of age) is due to a cause imputable to his/her fault or negligence (Art. 196). [NOTE: Both legitimate and illegitimate children are entitled to support.]

III. Properties Answerable for Support (Art. 197-198) 1. From the separate property of the obligor. If no separate property, the ACP/CPG (if financially capable) shall advance the support, to be deducted from the obligor’s share upon liquidation of such regime. 2. Pending legal separation or annulment, support (pendente lite) for spouses and children will come from the ACP/CPG. After final judgment granting the petition, mutual support obligation between spouses ceases. (But in legal separation court may order guilty spouse to give support to innocent spouse.) [NOTE: De facto separation does not affect the ACP, except that the spouse who leaves the conjugal home without just cause shall not be entitled to support (Art. 100).]

IV. Order of Support (SDAB) A. Order of support if there are multiple obligors (2 or more; Art. 199) 1. 2. 3. 4.

Spouses Descendants, nearest in degree Ascendants, nearest in degree Brothers and Sisters



When two or more are obliged to give support, the payment shall be divided between them IN PROPORTION to their resources; Also, in case of URGENT NEED and by special circumstances, judge may order only one obligor to furnish support without prejudice to reimbursement from other obligors of the share due from them (Art. 200).



Chapter XII. SUPPORT

B. Order of priority if there are multiple recipients (Sempio-Diy) 1. Observe order in Article 199 (SDAB); 2. But if the concurrent obligees are the spouse and a child subject to parental authority, the child shall be preferred. [NOTE: Tolentino says that the above preference given to a child under parental authority over the spouse should prevail only if the person obliged to support pays it out of his own separate property. So if the support comes from ACP or CPG, the above rule of preference for the child does not apply.] 

Pelayo v. Lauron, (1909) Even if the parents-in-law were the ones who called for the physician’s services for the childbirth of their daughter-in-law, it is the woman’s husband who is bound to pay the fees due to the physician.



Lacson v. Lacson, (1968) Man is still liable for support in arrears since the mother advanced it from a stranger (the uncle of the daughters).



Lacson v. Lacson, (2006) Acknowledgment of and commitment to comply with support obligation through a note in his own handwriting is proof that a demand was made.


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Chapter XIII. Parental Authority I.

PARENTAL AUTHORITY – GENERAL PROVISIONS A. CUSTODY B. OTHER RIGHTS AND DUTIES IN EXERCISE OF PARENTAL AUTHORITY II. SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY III. SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY IV. RIGHTS AND DUTIES OF CHILDREN

I.

Parental Authority

(asked in ’94, ‘03 and ’05 bar exams) (patria potestas): It’s the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances (Manresa). Parental authority includes (Art. 209 FC): 1. The caring for and rearing of children for civic consciousness and efficiency; 2. The development of the moral, mental and physical character and well-being of said children Rules as to the exercise of parental authority: 1. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary (Art. 211 FC) 2. If the child is illegitimate, parental authority is with the mother (Art.176 FC; see also Chapter 10). Cases when parental authority and responsibility may be transferred or renounced:  Adoption;  Guardianship; or  Commitment of the child in an entity or institution engaged in child care or in a children’s home Characteristics of parental authority: 1. It is a natural right and duty of the parents (Art. 209 FC) 2. It cannot be renounced, transferred or waived, except in cases authorized by law (Art 210 FC) 3. It is jointly exercised by the father and the mother (Art. 211 FC)

Chapter XIII. PARENTAL AUTHORITY

4. It is purely personal and exercised through agents 5. It is temporary ________________

cannot

be

A. Custody Parental Preference Rule— The natural parents, who are of good character and who can reasonably provide for the child, are ordinarily entitled to custody as against all persons (Santos v CA, 1995). Who exercises authority in cases of death, absence, remarriage, or separation of parents—  In case one parent is absent or already dead, the present or surviving parent (Art. 212 FC)  Remarriage shall not affect the parental authority over the children (Art. 212 FC)  In case of a void/annulled marriage, and there is no agreement bet. spouses, the parent designated by the court (Art. 43 FC par 1; Art. 49 FC).  Innocent spouse gets custody of minor children in legal separation (Art. 63 FC par 3).  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 (Art. 213 FC par 1). Tender Years Presumption— NO child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Art. 213 FC par 2; Gamboa v. CA, 2007) Examples of compelling reasons are:  When the mother is insane;  with a communicable disease that might endanger the life or health of the child;  is maltreating the child; or  has another child by another man who lives with her. (Cervantes v. Fajardo, 1989) [NOTE: Prostitution or infidelity to husband does not make a mother unfit as parent.]

B. Other Rights and Duties in Exercise of Parental Authority Rights of Parents upon their children—  To have them in their custody (Art. 220 FC par 1)  To represent them in all matters affecting their interests (Art. 200 FC par 6)  Demand respect and obedience and impose discipline on them (Art. 200 FC par 7&8; see also People v Silvano, 1999)


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 

 


Administer the property of a child for her/his support and education, unless title/transfer provides otherwise (Art. 226 FC par 1) Administer the fruits and income (ONLY) of the children’s property primarily to support the child and secondarily to use for the daily needs of the family (Art. 226 FC par 2) To give or withhold consent on marriage, pre-nuptial, donation propter nuptias, adoption, and employment To disinherit them for just cause

Duties of Parents upon their children—  Support and upbringing in accordance to their means (Art. 220 par 1)  Educate, instruct, and provide them with moral and spiritual guidance, and love and understanding (Art. 220 par 3  Defend them against unlawful aggression  Answer for damages caused by their fault or negligence, and for civil liability for crimes committed by them (Art. 221 FC)  Give their lawful inheritance Liability of parents for torts committed by their minor children (Art. 221 FC; Art. 2180 CC)—  Parents and other persons exercising parental authority are civilly liable for the torts of their unemancipated children:  Provided they are living in their company, and  Subject to the appropriate defenses provided by law, like observing the diligence of a good father of a family to prevent the damage (Libi v. IAC, 1992)  If the minor child is, therefore, not living with the parents but has been entrusted to the care of other persons, or is an intern in school, the liability does not apply.  This liability of the parents and those exercising parental authority over the child is solidary and primary and direct, not subsidiary

II. Substitute Authority

and

Special

Parental

(Asked in 2003 bar exam) Substitute parental authority exercised by (in order): 1. The surviving grandparent (Art. 214 FC) 2. Oldest brother or sister, over 21 years old, unless unfit or unqualified (Art. 216 FC par 2).

3. Child’s actual custodian, over 21 years old, unless unfit or unqualified (Art. 216 FC par 3) [NOTE: The same order applies to the appointment of judicial guardian] Special parental authority exercised by (Art. 218 FC)— 1. School, its administrators and teachers, or 2. The individual, entity or institution engaged in child care. Substitute Parental Authority It is exercised in case of death, absence, or in case of unsuitability of parents.



Special Parental Authority

It is exercised concurrently with the parental authority of the parents and rests on the theory that while the child is in the custody of the person exercising special parental authority, the parents temporarily relinquish parental authority over the child to the latter.

St. Mary’s Academy v. Carpitanos, (2002) The special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution.

Liability of those exercising special parental authority over the child (Art. 219 FC)— 1. They are principally and solidarily liable for damages caused by the acts or missions of the minor child while under their supervision, instruction or custody. HOWEVER, this liability is subject to the defense that the person exercising parental authority exercised proper diligence. 2. The parents and judicial guardians of the minor or those exercising substitute parental authority over the minor are subsidiarily liable for said acts and omissions of the minor. Effects of Parental Authority Upon the Property of the Child (Art. 225 FC)—  The Father and Mother shall jointly exercise legal guardianship over the property of the minor child without court appointment  In case of disagreement, the father’s decision shall prevail, unless there is judicial order to the contrary  If the market value of the property or the annual income of the child exceeds P50,000, the parent is required to furnish a bond of not less than 10% of the value of the child’s property or income


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Termination

of

Grounds for Suspension of Parental Authority (CLEBC; Art. 230-31 FC)— 1. Conviction of parent for crime punished w/ civil interdiction 2. Treats child with excessive harassment and cruelty 3. Gives corrupting orders, counsel or example 4. Compels child to beg 5. Subjects or allows acts of lasciviousness Parental Authority Permanently Terminates (Art. 228 FC)— 1. Upon death of parents 2. Upon death of child 3. Upon emancipation of child 4. If the parents exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse (Art. 232 FC) Termination of parental authority which can be revived by final judgment (Art. 229 FC)— 1. Upon adoption of the child; 2. Upon the appointment of a general guardian for the child; 3. Upon judicial declaration

IV. Rights and Duties of Children Art. 356, NCC—  parental care  receive at least elementary education  be given moral and civil training by parents or guardian  live in an atmosphere conducive to his physical, moral, and intellectual development Art. 3, PD603—  to be born well  right to a wholesome family life  right to a well-rounded development  right to a balanced diet, adequate clothing, shelter, proper medical attention, and all basic physical requirements of a healthy life  raised in an atmosphere of morality and rectitude  education commensurate to his abilities  full opportunities for a safe and wholesome recreation  protection against exploitation and other bad influences  right to the care, assistance and protection of the State  right to an efficient and honest government



right to grow up as a free individual

55 Duties of Children: Art. 357, NCC—  obey and honor his parents or guardian  respect old relatives and persons holding substitute parental authority  exert his utmost for his education and training  cooperate with the family in matters for his own good Art. 4, PD603—  strive to live an upright and virtuous life  love, obey, respect his parents and cooperate with them in strengthening the family  extend his love to his brothers and sisters  exert his utmost to develop his potentials


III. Suspension or Parental Authority


Chapter XIV. FUNERALS

Chapter XIV. Funerals I.

General Guidelines

Art. 305, Civil Code. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 306, Civil Code. Every funeral shall be in keeping with the social position of the deceased. Art. 307, Civil Code. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. Art. 308, Civil Code. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. Art. 309, Civil Code. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral.

Guidelines in making funeral arrangements—  The persons who preferred in the right to make funeral arrangements may waive the right expressly or impliedly in which case the right and duty immediately descend to the person next in the order  It must be in keeping with the social position of the deceased.  Law shall prevail over the will of the persons who have the right to control the burial of deceased – exhumation, evidential purpose, disposition of corpse by deceased, mutilation of corpses and autopsies.  Corpses which are to be buried at public expenses may also be used for scientific purposes under certain conditions.  Expressed wishes of the deceased is given priority provided that it is not contrary to law and must not violate the legal and reglamentary provisions concerning funerals and disposition of the remains (time, manner, place or ceremony)  In the absence of expressed wishes, his religious beliefs or affiliation shall determine the funeral rights.  In case of doubt, the persons in Art. 199 shall decide.  Any person who disrespects the dead or interferes with the funeral shall be liable for material and moral damages.

Art. 310, Civil Code. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses.

Duty and Right to make funeral arrangements (in relation to Art. 199 FC)— 1. Spouse 2. Descendants in nearest degree 3. Ascendants in nearest degree 4. Brothers and sisters 5. Municipal authorities – if there are no persons who are bound to support or if such persons are without means

- end of Persons and Family Relations -


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