TITLE 1 MARRIAGE Chapter 1 REQUISITES OF MARRIAGE 1. Marriage a. A special contract of permanent union b. Between a man and a woman c. Entered into in accordance with the law d. For the establishment of conjugal and family life It is the foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulation except that marriage settlements may fix the property relation during the marriage within the limits provided by this code Upon marriage, the husband and the wife become one single moral, spiritual and social being, not only for the purpose of procreation but also for the purpose of mutual help and protection physically, morally and materially The marital relation, unlike ordinary contractual relations, is regarded by the laws as the basis of the social organization The preservation of that relation is deemed essential to public welfare Marriage as a special contract cannot be restricted by discriminatory policies of private individuals or corporations Marriage is one of the cases of double status, in that the status therein involves and affects 2 persons The right to marry is a recognized fundamental human right under international law While a lawful marriage seeks to create a permanent union between man and woman, it does not shed the spouses’ integrity or their privacy as individuals 2. No marriage shall be valid, unless these essential requisites are present: A. Legal capacity of the contracting parties who must be a male and a female B. Consent freely given in the presence of the solemnizing officer The marrying age is 18 years old and above o This age is likewise the age of majority RA Salanga 1-A
Each contracting parties must be of different sex Free consent connotes that the contracting parties willingly and deliberately entered into the marriage
3. The formal requisites of marriage are: A. Authority of the solemnizing officer B. A valid marriage license except in the cases provided for in Chapter 2 of this Title C. A marriage ceremony—takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses of legal age It is not the presence or absence of the solemnizing officer which constitutes the formal requirement but it is the absence or presence of the authority of such solemnizing officer o Under the Local Government Code, the mayor of a city or municipality is empowered to solemnize a marriage A valid marriage license must be a. Issued by the local civil registrar of the place where the marriage application was filed b. Once issued, it has only a lifetime of 120 days from date of issue and is effective in any part of the Philippines o There is automatic cancellation after the lapse of 120 days c. Date of issue is the date of the signing of the marriage license by the local civil registrar The Family Code does not generally prescribe any particular form of a marriage ceremony o The minimum requirement of the law is found on (C) The absence of 2 witnesses of legal age in a marriage ceremony is merely an irregularity in the said formal requirement which, according to Art. 4, shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable Common-law marriages are not recognized in the Philippines o Common-law marriage—a non-ceremonial or informal marriage by agreement, entered into by a man and a woman having capacity to marry, ordinarily without compliance with such statutory formalities as those pertaining to marriage licenses
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4. Absence of any of the essential formal requisites shall render the marriage void ab initio, except as stated in Art. 35(2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. The practice of a judge of requiring the parties to sign the marriage contract first before solemnization of the marriage is highly improper and irregular, if not illegal, however, it does not invalidate the marriage because a marriage contract is not a formal requirement of valid marriage Mere breach of a promise to marry is not an actionable wrong o But, actual damages may be awarded for the expenses incurred relative to the preparation for the wedding 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. 7. Marriage may be solemnized by: A. Any incumbent member of the judiciary within the court's jurisdiction The jurisdiction of Court of Tax Appeals, Sandiganbayan, CA and SC is national in scope RA Salanga 1-A
If a marriage is solemnized by a judge beyond his jurisdiction, there is absence of a formal requisite, namely, the authority of the solemnizing officer; hence, the marriage in void unless either of the parties believed in good faith that such solemnizing officer has authority to conduct such marriage B. Any priest, rabbi, imam, or minister of any church or religious sect 1. Duly authorized by his church or religious sect 2. Registered with the civil registrar general 3. Acting within the limits of the written authority granted by his church or religious sect 4. Provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect Priest—one especially consecrated to the service of a divinity and considered as the medium through who worship, prayer, sacrifice, or other service is to be offered to the one being worshipped, and pardon, blessing, and deliverance, obtained by the worshipper C. Any ship captain or airplane chief only in the case mentioned in Art. 31 For a ship captain or airplane chief to be able to validly solemnize a marriage, the following requisites must concur: a. Marriage must be in articulo mortis (at least one of the parties is at the point of death) b. Marriage must be between passengers or crew members c. Generally, the ship must be at sea or the plane must be in flight Such marriages can be solemnized during stopovers at ports of call D. Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Art. 32; Requisites: a. He or she must be a military commander of a unit b. He or she must be a commissioned officer—rank must start from 2nd lieutenant c. A chaplain must be assigned to such unit d. Said chaplain must be absent at the time of marriage e. Marriage must be one in articulo mortis f. Contracting parties, whether members of the armed forces or civilians, must be within the zone of military operation ―unit‖—refers to a battalion
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―within the zone of military operation‖—implies a widespread military activity over an area and does not refer to a simulated exercise E. Any consul-general, consul or vice-consul in the case provided in Art. 10 They can solemnize marriage abroad only when the contracting parties are both Filipino citizens 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. This article is directory in nature Its non-observance will not invalidate a marriage 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. Non-compliance is merely an irregularity which will not render the marriage null and void 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: A. Full name of the contracting party; RA Salanga 1-A
B. C. D. E. F. G. H. I. J.
Place of birth; Age and date of birth; Civil status; If previously married, how, when and where the previous marriage was dissolved or annulled; Present residence and citizenship; Degree of relationship of the contracting parties; Full name, residence and citizenship of the father; Full name, residence and citizenship of the mother; and Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. Purpose of documentary requirements is to serve as proofs for the existence of marriage 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public
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official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in RA Salanga 1-A
both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. There is no more emancipation by marriage under the Family Code The contracting parties between 18 years old and above but below 21 years old of age must obtain the consent of the parents o Non-compliance will make the marriage annullable Preference is given to the father to give consent o If he cannot, the mother, surviving parent or guardian or persons having legal charge of them in the order mentioned shall give the consent 15. Any contracting party between the age of twenty-one and twentyfive shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.
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Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. Absence of parental advice for contracting parties between the age of 21 and 25 does not affect the marriage It does not even make the marriage annullable 17. The local civil registrar shall a. Prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. b. Notice shall be posted for 10 consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. c. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. d. The marriage license shall be issued after the completion of the period of publication. 18. In case of any impediment known to the local civil registrar or brought to his attention He shall note down the particulars thereof and his findings thereon in the application for marriage license But shall nonetheless issue said license after the completion of the period of publication Unless ordered otherwise by a competent court at his own instance or that of any interest party No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order Only court intervention directing the non-issuance of the marriage license can empower the local civil registrar to validly refuse to issue said license If, despite an injunction order from court, the local civil registrar nevertheless issues a marriage license and a marriage is solemnized on the basis of such marriage license, the marriage will still be valid RA Salanga 1-A
19. The local civil registrar shall Require the payment of the fees prescribed by law or regulations before the issuance of the marriage license No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license It shall, however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. 20. The license shall be Valid in any part of the Philippines For a period of 120 days from the date of issue Shall be deemed automatically canceled at the expiration of the said period if the contracting parties have not made use of it The expiry date shall be stamped in bold characters on the face of every license issued. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. A certificate of legal capacity is necessary because the Philippines adheres to the national law of the contracting parties with respect to their legal capacity to contract marriage
22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: A. The full name, sex and age of each contracting party; B. Their citizenship, religion and habitual residence; C. The date and precise time of the celebration of the marriage;
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D. That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title; E. That either or both of the contracting parties have secured the parental consent in appropriate cases; F. That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and G. That the parties have entered into marriage settlement, if any, attaching a copy thereof. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Art. 8. The primary or best evidence of a marriage is the marriage contract or the marriage certificate Failure to present a marriage certificate is not fatal in a case where a marriage is in dispute, as the parties can still rely on the presumption of marriage A marriage may be proved by parol evidence With respect to a marriage ceremony, testimony of an eye witness to be sufficient should disclose not only the performance of the ceremony by someone, but that all the circumstances attending it were such as to constitute it a legal marriage Legal status of a person to marry, his or her rights and duties are governed by law on contract and therefore can be a subject of a petition for declaratory relief
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24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. Any certification issued by the local civil registrar in connection with any matter involving the marriage of any particular individual within his or her jurisdiction is given high probative value 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. Common-law marriages obtained abroad by Filipinos are not valid here Same sex marriage of Filipinos abroad is invalid here in the Philippines Chapter 2 MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. Exemption from marriage license Reason: anchored on necessity and practicality such as in the case of marriages in articulo mortis
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28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. A sacred institution like marriage should always be encouraged Without this provision, illicit relationships may proliferate 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed inarticulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. The marriage will remain valid even if the ailing part subsequently survives 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.
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33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. 2 essential requirements to be exempt: a. They must live as husband and wife for at least 5 years characterized by exclusivity and continuity that is unbroken b. They must be without legal impediment to marry each other o The legal impediment must be construed to refer only to the time of the actual marriage celebration Chapter 3 VOID AND VOIDABLE MARRIAGES Void ab initio Considered as having never to have taken place and cannot be the source of rights Can be attacked collaterally Can be questioned even after death of either party Any proper party may attack Can never be ratified or cured
Voidable or Annullable Valid until otherwise declared by the court Cannot be assailed collaterally Can be assailed only during the lifetime of the parties and not after death of either Only parties can assail
35. The following marriages shall be void from the beginning: A. Those contracted by any party below eighteen years of age even with the consent of parents or guardians B. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or
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both parties believing in good faith that the solemnizing officer had the legal authority to do so C. Those solemnized without license, except those covered the preceding Chapter D. Those bigamous or polygamous marriages not failing under Art. 41 E. Those contracted through mistake of one contracting party as to the identity of the other F. Those subsequent marriages that are void under Article 53 A void marriage is not valid from its inception Stepbrothers and stepsisters can validly marry each other GR: Good faith and bad faith is immaterial in determining whether or not a marriage is null and void Exceptions: 1. In believing that a solemnizing officer has authority to solemnize the marriage 2. A person whose spouse disappears for 4 years or 2 years, in the proper cases, the present spouse may validly marry again if he or she a. Has a well-founded belief that his or her spouse is dead b. Procures a judicial declaration of presumptive death c. At the time of the subsequent marriage ceremony, is in good faith together with the subsequent spouse Good faith and bad faith are material in determining the disposition of properties Direct attack—filing a case precisely putting forth as principal issue the nullity of the marriage o Under this, only the husband and the wife can file an action 3 cases where direct attack, not collateral attach, on the nullity of marriage must first be undertaken: 1. For purposes of remarriage on the basis solely of a final judgment declaring such marriage void 2. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of the child, settlement of estate, dissolution of property regime, or a criminal case where a final declaration of nullity is necessary 3. If a donor desires to revoke a donation propter nuptias, it is important that a judicial declaration of nullity of the marriage must first be obtained
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―putative marriage‖—a matrimonial union which has been solemnized in due form and good faith on the part of one or of both of the parties but which by reason of some legal infirmity is either void or voidable ―good faith‖—an honest and reasonable belief that the marriage was valid at its inception, and that no legal impediment exists to impair its validity ―mistake in identity‖—an instance of fraud which makes the marriage void which covers only those situations in which there has been a mistake as to the actual physical identity of the other party
36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. The determination is left solely with the court on a case-to-case basis Psychological incapacity must relate to the compliance with the essential marital obligations o Lack of understanding of the essential obligations of marriage o A mental disposition that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which include their mutual obligations to live together, observe love, respect and fidelity and render help and support o Psychological incapacity must be characterized by: a. Gravity b. Juridical antecedence c. incurability o Psychological impotence = selective impotency – a person may be psychologically impotent with one but not with another o The incapacity consists of the following d. A true inability to commit oneself to the essentials of marriage e. This inability must refer to the essential obligations of marriage f. The inability must be tantamount to a psychological abnormality Insanity v. psychological incapacity Insanity Psychological incapacity Ground for voidable marriage Ground for void ab initio marriage Curable and there are lucid intervals Incurable Vices of consent Not a species of vices of consent
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Indicators of psychological incapacity: a. Fear of a wife, who is afraid of children, to engage in sexual intercourse b. Unreasonable attachment by a spouse to his or her family or friends such that the importance and devotion which should be given to his or her spouse and children are subordinated c. A woman who submits herself to sexual intercourse just because she is obliged to do so, and this happened right from the beginning of marriage d. Narcissistic personality 6 elements necessary to the mature marital relationship: 1. Permanent and faithful commitment to the marriage partner 2. Openness to children and partner 3. Stability 4. Emotional maturity 5. Financial responsibility 6. An ability to cope with the ordinary stresses and strains of marriage Psychological conditions that might lead to the failure of a marriage: a. Antisocial personality with its fundamental lack of loyalty to persons or sense of moral values b. Hyperesthesia, where the individual has no real freedom or sexual choice c. Inadequate personality where personal responses consistently fall short of reasonable expectations Court may or may not accept the testimony of the psychologist or psychiatrist because the decision must be based on the totality of evidence Guidelines in invoking and proving psychological incapacity: 1. Burden of proof to show nullity of marriage belongs to the plaintiff 2. The root cause of the incapacity must be a. Medically or clinically identified b. Alleged in the complaint c. Sufficiently proven by experts d. Clearly explained in the decision 3. Incapacity must be proven to be existing at the time of the celebration of marriage, however, the manifestation of the illness need not be perceivable at such time 4. Such incapacity must also be shown to be medically or clinically permanent or incurable RA Salanga 1-A
5. Such illness must be grave 6. Essential marital obligations must be those under Arts. 68 to 71 7. 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 8. Trial court must order the prosecuting attorney or fiscal and the Sol Gen to appear as counsel for the state, however, the certification of the Sol Gen is not anymore needed 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: A. Between ascendants and descendants of any degree; and B. Between brothers and sisters, whether of the full or half blood. Incestuous marriage is universally condemned as grossly indecent, immoral and inimical to the purity and happiness of the family and the welfare of future generations Reasons: 1. Abhorrent to the nature of not only civilized but of barbarous and semi-civilized people 2. Tend to confuse rights and duties incident to family relations 3. Science and experience have established that such intermarriages very often result in deficient and degenerate offsprings 38. The following marriages shall be void from the beginning for reasons of public policy: A. Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; B. Between step-parents and step-children; C. Between parents-in-law and children-in-law; D. Between the adopting parent and the adopted child; E. Between the surviving spouse of the adopting parent and the adopted child; F. Between the surviving spouse of the adopted child and the adopter; G. Between an adopted child and a legitimate child of the adopter; H. Between adopted children of the same adopter; and I. Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.
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Reason: it is the policy of the state to foster a normal, peaceful, and wholesome integral nuclear family unit which would constitute the very foundation of society The law does not provide that marriages between collateral blood relatives by the half-blood are prohibited Affinity—a connection formed by marriage which places the husband in the same degree of nominal propinquity to the relatives of the wife as that in which she herself stands towards them, and give the wife same reciprocal connection with the relations of the husband An adopted can validly marry the parents, illegitimate child, and other relatives, whether by consanguinity or affinity, of the adopter
39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Essential elements of Bigamy: 1. Offender has been legally married 2. Marriage has not been legally dissolved r in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code 3. Offender contracts a second marriage 4. Second or subsequent marriage has all the essential requisites for validity 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a wellfounded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of RA Salanga 1-A
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Circumstances are when: a. Absent spouse was on a vessel and the same was lost during a sea voyage b. Absent spouse was on an airplane which was missing c. Absent spouse who was in the armed forces has taken part in the war d. Absent spouse has been in danger of death under other circumstances 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. Judicial declaration of presumptive death is without prejudice to the effect of reappearance of the absent spouse because the fact of death is not really established If the reappearing spouse does not file any sworn statement of reappearance, the subsequent marriage remains valid and subsisting, while the first marriage is likewise considered subsisting o As between the 2 marriages, the law or the state shall continue to protect the second marriage rather than the first 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: A. The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; B. The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership
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property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; C. Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; D. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and E. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Children conceived during the subsequent marriage under Art. 41, in cases of presumptive death, and before the termination of the same shall be considered legitimate o This status will be maintained even if one of the contracting parties is in bad faith 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: A. That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; B. That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; To successfully invoke this ground, there must be such a derangement of the mind to prevent the party from comprehending RA Salanga 1-A
C.
D.
E.
F.
the nature of the contract and from giving to it his free and intelligent consent That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife Fraud—non disclosure or concealment of certain circumstances which materially affect the essence of marriage That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave peril upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent To determine degree of intimidation, age, sex and condition of the person shall be borne in mind That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable Permanent inability on the part of one of the spouses to perform the complete act of sexual intercourse An incurable nervous disorder on the part of the wife known as vaginismus which renders sexual coition impossible is good indicator of inability to perform the marital act Impotency—permanent and incurable incapacity of one of the parties to the marriage contract to perform the complete act of sexual intercourse When the wife remains a virgin for at least 3 years from the time the spouses started cohabiting, the husband must show that he was not impotent during the said period and the burden will be upon him to overcome the presumption of impotence Sterility is not impotency, hence, not a ground for annulment Ratification is made if the ―injured‖ party freely cohabits with the guilty party in the proper situations provided by law That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable
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Free cohabitation will not ratify the annullable marriage under this ground
46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: A. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude Generally, the crimes punishable under the RPC are crimes involving moral turpitude B. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband Concealment must have been done in bad faith If a woman misrepresented to her fiancé that she was pregnant for the purpose of inducing him to marry her when in fact she was not pregnant, such fiancé cannot annul the marriage considering that there was in fact no pregnancy concealed C. Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or D. Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. The enumeration is exclusive 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: A. For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; B. For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; RA Salanga 1-A
C. For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; D. For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; E. For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. Jurisdiction depends upon the nationality or domicile of the parties and not the place of the celebration of marriage Prescriptive period—time within which a case can be filed in court Ground Party to File the Suit Prescription Period No parental Parent or guardian having Anytime before ―noConsent legal charge of ―no-consent‖ consent‖ party reaches the party age of 21 ―No consent‖ party Within 5 years after attaining 21 Insanity Sane spouse without Any time before death of knowledge of insanity either party Relative, guardian or person Any time before death of having legal charge of insane either party Insane spouse During lucid interval or after regaining sanity Fraud Injured party Within 5 years after discovery of fraud Vitiated Injured party Within 5 years from time consent force, intimidation, or undue influence disappeared or ceased Incapability to Injured party Within 5 years after consummate / marriage ceremony STD 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.
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In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. Procedure: 1. Filing of complaint in the proper RTC 2. After filing, defendant shall be given 15 days from receipt of summons and a copy of complaint within which to file an answer 3. In the event that defendant answers, court shall order the hearing of the case 4. In the event that defendant fails to answer, court shall order prosecuting attorney to investigate whether there is collusion 5. Annulment suit cannot be terminated by way of a compromise agreement 6. Full-blown hearing must be undertaken The task of fiscal is to determine if the parties colluded or fabricated their evidence to get a nullity or annulment of marriage Collusion—parties come up with an agreement making it appear that the marriage is defective due to existence of any grounds for annulment or nullity and agreeing to represent such false or nonexistent cause of action before the proper court 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. RA Salanga 1-A
All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. Legitime—part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are called compulsory heirs Presumptive legitime shall be computed as of the date of the final judgment of trial court In void marriages, delivery of the presumptive legitime is generally not required except only in the void subsequent marriage resulting from the non-observance of Art. 40 in relation to Arts. 52 and 53 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. In case of nullity, the properties shall be liquidated in accordance with the ordinary rules of co-ownership
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If there were pre-nuptial agreement providing that separation of property regime governed the marriage, there is no need for liquidation and partition Recording in the civil registry and registry of property is necessary to a. Bind third parties b. Be able to validly contract a subsequent marriage If a surviving spouse subsequently remarries without liquidating the community or conjugal properties of the first marriage, the mandatory regime of complete separation of property shall govern the property regime of the subsequent marriage 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. Legitimate children—conceived or born inside an annullable or voidable marriage Illegitimate children—conceived and born outside a valid marriage or inside a void marriage Children conceived or born inside under Art. 36 before finality of the judgment of nullity and those in a marriage which does not comply with Art. 52 in relation to Art. 53 shall be considered legitimate TITLE II LEGAL SEPARATION 55. A petition for legal separation may be filed on any of the following grounds: A. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner This does not include repeated physical violence upon the child of the respondent or the guilty spouse RA Salanga 1-A
Physical violence—connotes the infliction of bodily harm The act may constitute grossly abusive conduct B. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation One incident of physical violence or moral pressure to compel the change in religious affiliation or the change in political affiliation can be a ground for legal separation C. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement Both the moral act and the inducement must refer to prostitution only A mere ―attempt‖ is enough to be a ground for legal separation D. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned E. Drug addiction or habitual alcoholism of the respondent; F. Lesbianism or homosexuality of the respondent; G. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad Bigamy—the act of illegally contracting a second marriage despite full knowledge that the first marriage is still validly existing or without obtaining the needed judicial declaration of presumptive death of the first spouse If the bigamous marriage were committed abroad, guilty party cannot be criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial in nature H. Sexual infidelity or perversion Adultery and concubinage are included in acts of sexual infidelity Other acts of sexual infidelity are enough so long as said acts would constitute a clear betrayal of the trust of his or her spouse by having intimate love affairs with other persons Sexual perversion—include sexual perversion with one’s spouse and other sexual practices like oral sexual intercourse but that if one condones sexual infidelity or perversion, he is estopped from raising it as a ground I. Attempt by the respondent against the life of the petitioner The attempt on the life of the spouse must proceed from an evil design and not from any justifiable cause
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J. Abandonment of petitioner by respondent without justifiable cause for more than one year Abandonment or desertion must be willful Act is willful when there is a design to forsake the other spouse intentionally, or without cause and, therefore, break up the marital union Abandonment implies a total renunciation of his or her duties A separation in which both parties willingly concur is not, in any sense of the word, a willful desertion of one by the other For purposes of this Article, the term "child" shall include a child by nature or by adoption. A decree of legal separation or relative divorce does not affect the marital status o It does not dissolve the marriage o It involves nothing more than bed-and-board separation o The decree is terminable at the will of the parties by merely filing a manifestation in court Divorce—dissolution of the bond of matrimony for some cause arising after the marriage Annulment proceeding—for some cause existing at the time of marriage ceremony, the marriage is terminable The grounds for legal separation are exclusive o They may or may not exist at the time of the marriage ceremony since they usually occur after 56. The petition for legal separation shall be denied on any of the following grounds: A. Where the aggrieved party has condoned the offense or act complained of Condonation—the act of forgiving the offense after its commission B. Where the aggrieved party has consented to the commission of the offense or act complained of There is consent when either of the spouses agreed to or did not object, despite full knowledge, to the act of giving rise to a ground for legal separation, before such act was in fact committed Consent may be deduced from the acts of the spouses
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C. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation Connivance or procurement—denotes direction, influence, personal exertion, or other action with knowledge and belief that such action would produce certain results and which results are produced D. Where both parties have given ground for legal separation He who comes into equity must come with clean hands When 2 persons acted in bad faith, they should be considered as having acted in good faith E. Where there is collusion between the parties to obtain decree of legal separation Collusion—corrupt agreement Connivance—corrupt consenting F. Where the action is barred by prescription. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. Whether or not the defendant files an answer to the complaint, no hearing on the merits shall be set by the courts for 6 months o Failure to observe the 6-month cooling off period is a ground to set aside a decision granting legal separation This 6-month period is designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them—cooling off period The cooling off period can be dispensed with if the ground for legal separation involves violence against the woman or the child What is prevented from being heard during the 6 month period is the hearing on the merits with respect to the validity or invalidity of the ground for legal separation
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o Any other incident such as the determination of the custody of the children, alimony and support pendent lite may be heard inside the 6month cooling off period 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. 63. The decree of legal separation shall have the following effects: A. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed A spouse can still be held criminally liable for bigamy, concubinage or adultery if he or she commits the act B. The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2) C. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code
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The court may award the custody of the child to a third person if the court believes that both spouses are not fit to take care of the child D. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law Under Art. 921(4), a person can disinherit his or her spouse in a will if the latter has given cause for legal separation even if he or she has not yet been found guilty of committing such cause Under Art. 922, the disinheritance in a will shall be rendered ineffectual upon the mutual reconciliation of the spouses 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. If the donation is void, in the case of a donation in violation of Art. 87, the right to bring an action does not prescribe The revocation of, or change in, the designation of the insurance beneficiary shall take effect upon written notification thereof to the insurer and not to the insured 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation.
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If the legal separation case is still pending, it shall be terminated If the decree has been issued already, with finality or not, it shall be set aside
66. The reconciliation referred to in the preceding Articles shall have the following consequences: A. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and B. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shall be recorded in the proper civil registries. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: A. The properties to be contributed anew to the restored regime; B. Those to be retained as separated properties of each spouse; and C. The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtorspouse has sufficient separate properties to satisfy the creditor's claim. TITLE III RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
Procreation is also an essential marital obligation considering that procreation of children through sexual cooperation is the basic end of marriage Except for support, a court cannot validly issue a decision compelling the spouses to live together, observe mutual love, respect and fidelity There can be no action for damages merely because of a breach of marital obligation o Other remedies can be availed of under Arts. 19, 20 and 21 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. Domicile of a natural person is the place of his or her habitual residence A minor follows the domicile of his or her parents 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.
68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.
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73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: A. The objection is proper; and B. Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. The law does not make it a requirement that a spouse has to get the prior consent of the other before entering into any legitimate profession, occupation, business or activity If the husband compels the wife, the purpose or effect of controlling or restricting her movement or conduct, these are considered acts of violence against women under RA 9262 which is punishable TITLE IV PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. In weighing the fairness and reasonableness of the provision, the following must be considered: a. Relative situation of the parties b. Respective ages, heath and experience c. Their respective properties d. Their family ties and connections e. Spouses’ needs and such factors as tend to show that the agreement was understandingly made 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties
Chapter 1 GENERAL PROVISIONS 74. The property relationship between husband and wife shall be governed in the following order: A. By marriage settlements executed before the marriage; B. By the provisions of this Code; and C. By the local custom The agreement must be in writing, signed by the parties, and made prior to the celebration of the marriage The contracting parties can stipulate or agree on any arrangement in their marriage settlement that is not contrary to law and public policy and is within the limits provided in the Family Code Custom—as a rule of conduct formed by repetition of acts uniformly observed as a social rule, legally binding and obligatory 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, RA Salanga 1-A
78. A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. The phrase ―a minor who according to law may contract marriage‖ has been impliedly repealed considering that no minor now may contract a valid marriage 79. For the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto.
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Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property, and of the right to dispose of such property by any act or any conveyance inter vivos
80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: A. Where both spouses are aliens B. With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located C. With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriages shall be valid Chapter 2 DONATIONS BY REASON OF MARRIAGE 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses These are called donation propter nuptias It is indispensable for the donation to be valid to follow this article
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83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles The donee must accept the donation personally, or through an authorized person with a special power of attorney for the purpose, with a general or sufficient power; otherwise, the donation shall be void The acceptance must be made during the lifetime of the donor and the donee Oral donation requires simultaneous delivery of the thing or of the document representing the right donated If the value of the thing donated exceeds P5000, the donation and the acceptance shall be in writing; otherwise, it is void In donations of immovable, it must be made in a public instrument, specifying the property donated and the value of the charges which the donee must satisfy 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. Donation propter nuptias of future property may be handwritten, however, it must entirely be handwritten, dated and signed by the donor The ―not more than 1/5 limitation‖ is not applicable in case the donation propter nuptias is made in a separate deed of donation 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess Donation—act of liberality
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If the object of the donation is subject to an encumbrance, the donation is still valid
86. A donation by reason of marriage may be revoked by the donor in the following cases: A. If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; B. When the marriage takes place without the consent of the parents or guardian, as required by law; C. When the marriage is annulled, and the donee acted in bad faith; D. Upon legal separation, the donee being the guilty spouse; E. If it is with a resolutory condition and the condition is complied with; F. When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. Moderate gifts will depend on a case-to-case basis especially considering the financial capacity of the donor The validity of the donation or transfer cannot be challenged by those who bore absolutely no relation to the parties to the transfer at the time it occurred and had no rights or interests inchoate, present, remote, or otherwise, in the property in question at the time transfer occurred Reserve troncal—it provides that the ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came
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Chapter 3 SYSTEM OF ABSOLUTE COMMUNITY Section 1 GENERAL PROVISIONS 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. All properties owned by the contracting parties before the marriage ceremony and those which they may acquire thereafter shall comprise the absolute community of property regime The spouses become co-owners of all the properties in an absolute community of property regime An alien married to a Filipino cannot have any interest in the community or partnership property 89. No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. Section 2 WHAT CONSTITUTES COMMUNITY PROPERTY 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.
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92. The following shall be excluded from the community property: A. Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; B. Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; C. Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property 4 excluded properties from ACP: 1. Under marriage settlement 2. By gratuitous title which includes fruits as well as income of the subject matter acquired 3. For Personal and Exclusive Use 4. Properties from previous marriage 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. Section 3 CHARGES UPON AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY 94. The ACP shall be liable for: 1. Support a. Spouses b. Their common children c. Legitimate children of either spouse The support of illegitimate children shall be governed by the provisions of this Code on Support The support of illegitimate children shall be taken from the separate property of the parent-spouse 2. Debts and obligations—contracted during the marriage by the a. Designated administrator-spouse for the benefit of the community b. Both spouses c. One spouse with the consent of other RA Salanga 1-A
3. Debts and obligations—contracted by either spouse without the consent of the other to the extent that the family may have been benefited If it were contracted prior to the marriage o ACP shall be liable for as long as it redounded to the benefit of the family o Separate property shall be liable if it did not redound to the benefit of the family 4. Taxes, liens, charges and expenses a. Including major or minor repairs upon the community property Can be done even without the consent of the other spouse following the rules on co-ownership 5. Taxes and expenses for mere preservation of separate property of either spouse used by the family 6. Self-improvement a. Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for selfimprovement 7. Antenuptial 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 self-improvement; The donation must be made by both of the spouses to make it a valid donation 9. Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article a. the support of illegitimate children of either spouse b. liabilities incurred by either spouse by reason of a crime or a quasi-delict In case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community The separate property of the erring spouse shall be liable to pay the obligation or debt arising from crime or quasi-delict, but if the
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separate property is insufficient, the ACP shall pay but as an advance to be deducted from the share of the debtor upon liquidation of the ACP Quasi-delict—whoever by act or omission cause damage to another, there being fault or negligence where there is no pre-existing contractual relation between parties, is obliged to pay for the damage done 10. Expenses of litigation between the spouses unless the suit is found to be groundless. Provided that the suit is between the husband and the wife and that the case is not groundless. ACP will also be liable in suits not involving cases between spouses for as long as the suit benefits the family If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. Solidary obligations—those where several creditors or debtors or both concur, and where each creditor has the right to demand and each debtor is bound to perform, in its entirety, the prestation constituting the object of obligation Insolvency of spouses o So long as the ACP subsists, its property shall not be among the assets to be taken possession of by the assignee for the payment of the insolvent debtor’s obligations, except insofar as the latter have redounded to the benefit of the family o If both spouses maintain their joint administration, and one of them becomes insolvent, the right of the insolvent spouse to jointly administer may be legally curtailed by the court, thereby making the other non-insolvent spouse the sole administrator 95. Game of chance, betting, sweepstakes or any kind of gambling, whether permitted or prohibited by law Whatever may be lost during the marriage shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property RA Salanga 1-A
but if the ticket was given to a spouse by gratuitous title, the ―income‖ thereof should belong to the separate property of the said spouse
96. The administration and enjoyment of the community property shall belong to both spouses jointly. Spouses are co-owners of the properties they introduced into the marriage and acquired thereafter except those as may be excluded in the marriage settlement and those listed in Art. 92 Joint administration does not require that the spouses always act together None of the co-owners shall, without the consent of the other, make alterations in the thing owned in common, even though benefits for all would result therefrom In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision the paternal favor is only to prevent a void or vacuum in case disagreement arises In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration A summary proceeding is need if the other spouse is absent, separated in fact, abandoned, or the consent is withheld If the subject spouse is ―incompetent‖, the proper remedy is a judicial guardianship and not a summary proceeding under the Family Code: Comatose or semi-comatose Victim of stroke Cerebrovascular accident without motor and mental faculties Diagnosis of brain stem infarct These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other
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spouse or authorization by the court before the offer is withdrawn by either or both offerors The sale of property by the registered owner to the third person, who is an innocent purchaser-for-value and who is in good faith, cannot be voided But if the buyer acted in bad faith—the sale can be voided 97. Either spouse may dispose by will of his or her interest in the community property Will—an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death Legitime—part of the testator’s property which cannot be disposed of because the law has reserved it for certain heirs who are therefore called compulsory heirs A spouse can validly dispose any of his or her specific separate properties in a will provided it will not infringe on the legitime of the compulsory heirs In community property, the spouse can only dispose of his or her interest in the community property and not a specific property 98. Neither spouse may donate any community property without the consent of the other The prohibition intends to protect the latter’s share from the prodigality of a reckless or faithless spouse Even with the consent of the other, a spouse cannot make a substantial donation, direct or indirect, to the consenting spouse during the marriage However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress Whether a donation is moderate or not depends upon the financial situation of the spouses and the ACP regime
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Section 5 DISSOLUTION OF ABSOLUTE COMMUNITY REGIME 99. The ACP terminates: The termination of ACP does not necessarily mean the termination of the marriage 1. Upon the death of either spouse; Civil personality is extinguished by death Upon the termination of marriage by death, the ACP shall be liquidated in the same proceeding for the settlement of the estate of the deceased (Art. 103) 2. When there is a decree of legal separation; ACP shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned which shall be forfeited in accordance with Art. 43(2) 3. When the marriage is annulled or declared void Annulment: o shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitime o The spouse who acted in bad faith shall be forfeited to acquire his/her share in the net profits Nullity: o There is no ACP in a void marriage o Shall be liquidated in accordance with the rules on co-ownership provided in the Civil Code o The spouse who acted in bad faith shall be forfeited to acquire his or her share in the net profits 4. In case of judicial separation of property during the marriage under Articles 134 to 138 Judicial separation of property may be o Voluntary the parties can file the agreement for separation of property in court to obtain the necessary court approval after approval, the parties can nevertheless file a revival of their property regime, and once revived, no voluntary separation of property may thereafter be granted o Involuntary—it must be for a sufficient cause and must likewise have court approval sentence of a penalty with civil interdiction
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judicially declared an absentee loss of parental authority abandonment abuse of power of a spouse granted with the power of administration separation in fact for at least 1 year with improbable reconciliation
100. The separation in fact between husband and wife shall not affect the regime of absolute community except that: Generally, the ACP will not be affected by the separation in fact between spouses 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported If the spouse left with a valid cause o he or she can still be supported from the ACP o ACP can still be held liable for all obligations incurred by the separating spouse that may redound to the benefit of the family If the spouse left without a valid cause o he or she will not be supported by the ACP o however, ACP may still be held liable for the expenses he or she might have incurred for the benefit of the family 2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding Any of the spouses, whether or not he/she was the one who left the conjugal home without a valid cause, can seek judicial relief 3. In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share The authority is limited to only one purpose: RA Salanga 1-A
o To enable the present spouse to satisfy the other spouse’s share in the obligations used to support the family which should be totally paid by the ACP had it not been for its insufficiency 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the ACP, subject to such precautionary conditions as the court may impose Failure to comply also include abuse Abuse—connotes willful and utter disregard of the interest of the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling Abandonment—implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in the least for one’s family able to do so Abandonment must not only be physical estrangement but also amount to financial and moral desertion Section 2 LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES 102. Upon dissolution of the ACP regime, the following procedure shall apply: 1. Inventory shall be prepared o listing separately all the properties of the ACP and the exclusive properties of each spouse
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In the appraisal of the properties, it is not the purchase but the market or, in default thereof, the assessed value at the time of the liquidation that must be taken into account 2. Debts and obligations of the ACP o shall be paid out of its assets o In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with Art. 94(2) 3. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them 4. Net remainder of the properties of the ACP o shall constitute its net assets, which shall be divided equally between spouses, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code o For purpose of computing the net profits subject to forfeiture in accordance with Art. 43(2) and Art. 63(2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution 5. The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Art. 51 Presumptive legitime is delivered only after the finality of a judicial decree of annulment on grounds of Art. 45 or of nullity of a subsequent void marriage under Art. 40 in relation to Arts. 52 and 53 Delivery of presumptive legitime need not be made in cases of legal separation or in case of a judicially declared void marriage other than in a subsequent void marriage as a result of non-observance of Art. 40 6. Conjugal dwelling and lot o shall be adjudicated to the spouse with whom the majority of the common children choose to remain o Unless otherwise agreed upon by the parties Children below the 7 years old are deemed to have chosen the mother, unless the court has decided otherwise o In case there in no such majority, the court shall decide, taking into consideration the best interests of said children RA Salanga 1-A
103. Upon the termination of the marriage by death, the ACP shall be liquidated in the same proceeding for the settlement of the estate of the deceased Termination by death: ACP shall be inventoried, administered and liquidated and the debts thereof paid If the dead spouse left no will and there is no debt Heirs of legal age or minors duly represented by their judicial or legal representatives may, without securing letters of administrator from the court, divide the estate among themselves o If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the ACP either judicially or extra-judicially within 6 months from the death of the deceased spouse o If upon the lapse of the 6 months, no liquidation is made, any disposition or encumbrance involving the ACP of the terminated marriage shall be void Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. 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 Simultaneous liquidation of the community properties of each of the two marriages contracted prior to Aug. 3 1988 Five scenarios: 1. Duration—equal Actual assets—unknown Inventoried assets—known (P15 000) P15 000 will be divided equally to each marriage because the duration is the same
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2. Duration—known Actual assets—unknown Inventoried assets—known (P15 000)
already acquired in accordance with the Civil Code or other laws, as provided in Art. 256
If 1st marriage lasted for 2 years, it will get 2/5 of P15 000 If the 2nd marriage lasted for 3 years, it will get 3/5 of the P15 000 3. Duration—equal Actual assets—known Inventoried assets—known (P 15 000) If the value of actual asset of 1st marriage is P1000, it will get 1/3 of P15 000 If the value of actual asset of 2nd marriage is P2000, it will get 2/3 of P15 000 4. Duration—known Actual assets—equal Inventoried assets—known (P15 000) If the 1st marriage lasted for 2 years, it will get 2/5 of P15 000 If the 2nd marriage lasted for 3 years, it will get 3/5 of P15 000 5. Duration—known Actual assets—known Inventoried assets—known (P15 000) 1st marriage: duration (2 years) multiply by actual asset (P1000), it will get 2/8 of P15 000 2nd marriage: duration (3 years) multiply by actual asset (P2000), it will get 6/8 of P15 000 Chapter 4 CONJUGAL PARTNERSHIP OF GAINS Section 1 GENERAL PROVISIONS 105. Regime of conjugal partnership of gains In case the future spouses agree in the marriage settlements that CPG will govern their property relations, the provisions in this Chapter shall be of supplementary application This shall also apply to CPG already established between spouses before the effectivity of this Code, without prejudice to vested rights RA Salanga 1-A
106. Under the regime of CPG the husband and wife place in a common fund the o proceeds o products o fruits o income from their separate properties those acquired by either or both spouses through their efforts or by chance upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements Regime of CPG shall place in common fund the fruits their separate properties and the income from their work or industry Fruits of paraphernal properties—separate property of the wife, form part of the assets of the CPG and are therefore subject to the payment of the debts and expenses of the spouses, but not to the payment of the personal obligation of the husband, unless it be proved that such obligations were productive of some benefit to the family ―effort‖—an activity or undertaking which may or may not be rewarded ―chance‖—activities like gambling or betting 107. The rules provided in Arts. 88 and 89 shall also apply to conjugal partnership of gains Art. 88—The application of CPG shall commence at the precise moment when the marriage ceremony is celebrated Art. 89—No waiver of rights, interests, shares, and effects of the CPG can be made during the marriage except upon judicial separation of property 108. The CPG shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements
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Section 2 EXCLUSIVE PROPERTY OF EACH SPOUSE 109. The following shall be the exclusive property of each spouse: (that which is) 1. Brought to the marriage as his or her own all properties brought into the marriage by the contracting parties belong to each of them exclusively hence, they can exercise all rights of dominion or of ownership over these exclusive properties 2. Acquired during the marriage by gratuitous title Anything received by each spouse from any source by way of an act of liberality of the giver, such as donation or a gift, shall belong exclusively to the spouse-recipient and will not belong to the CPG These include moderate gifts given by one spouse to another during family occasions However, the income and the fruits of the property acquired by gratuitous title shall be considered conjugal 3. Acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses Redemption—the property shall belong to the spouse who has the right to redeem regardless of whether or not he or she uses personal funds o When conjugal funds are used, the spouse making the redemption shall be liable to the CPG for the reimbursement of the amount used to redeem his or her exclusive property o Absence of proof on the right to redemption—presumption is to form part of the CPG 4. purchased with exclusive money of the wife or of the husband 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties Either spouse may, during the marriage o transfer the administration of his or her exclusive property to the other by means of a public instrument—recorded in the registry of property of the place the property is located even when there is a transfer of administration, the owner-spouse may still donate, encumber, or otherwise alienate the property RA Salanga 1-A
he/she may also transfer the administration to a stranger even without the consent his/her spouse
111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same not a valid law anymore because of lowering the age of majority and the age of emancipation to 18 y/o 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse 113. Property donated or left by will to the spouses a. jointly and with designation of determinate shares b. absence of designation, share and share alike, without prejudice to the right of accretion when proper shall pertain to the donee-spouses as his or her own exclusive property Accretion—incorporation or addition of property to another Scenarios for right of accretion to apply: 1. A donor provided that ¼ of the property will go to the wife and ¾ will go to the husband; but when the wife does not accept, the husband, through right of accretion, gets the entire property 2. If the spouses were validly given a property in a will which provided that ¼ will go to the wife and ¾ will go to the husband; and if the wife renounces, the husband, through right of accretion, gets the entire property because the inheritance is still pro indiviso (not divided) Scenarios for right of accretion not to apply: 1. If the donor provides in the deed that no right of accretion shall be available 2. If the designation is not of determinate shares but of determinate properties like a house or a car 3. If the testator gives the spouses the school buildings where the building in Manila will go to the wife and the building in Cebu to the husband, the right of accretion will not apply because the inheritance is not pro indiviso
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114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the done-spouse, whenever they have been advanced by the conjugal partnership of gains If CPG is used to pay the obligations attached to an onerous donation, the done-spouse shall reimburse the CPG but the property remains to be his/her exclusive property However, taxes and expenses for mere preservation upon the separate properties made during the marriage shall be chargeable to the CPG 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case Gratuity—act of liberality; separate property Annuity—recipient is entitled to it as a matter of right; hence, it is not a gratuity and is part of CPG Pensions—nature of compensation for services previously rendered; not considered as donations or gratuities and are part of the CPG Section 3 CONJUGAL PARTNERSHIP PROPERTY 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved Proof of acquisition during the coverture is a condition sine qua non for the operation of the presumption in favor of conjugal ownership 117. The following are CPG properties: 1. Acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses Acquisition by onerous title from common fund belongs to the CPG 2. Obtained from the labor, industry, work or profession of either or both of the spouses It also includes those acquired through occupation such as fishing or hunting RA Salanga 1-A
3. The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse Net fruits—that which remained from the fruits after payment of debts 4. Share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found Hidden treasure—artifacts or objects which have undergone transformation from their original raw state such as earrings, necklaces, bracelets and the like Treasure—any hidden and unknown deposit of money, jewelry or other precious objects, the lawful ownership to which does not appear (Art. 439 of the Civil Code) Art. 519 of the Civil Code provides that ―mining claims and rights and other matters concerning minerals and mineral lands are governed by special laws‖ Gold nuggets, precious stones in their raw state, oil and the like are not treasures 5. Those acquired through occupation such as fishing or hunting 6. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse 7. Acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loserspouse Gross income—includes prize and winnings derived from whatever source 118. Property bought on installments o paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage in this instance, the conjugal funds would only be entitled to reimbursement for the expense upon liquidation of partnership to the conjugal partnership if such ownership was vested during the marriage
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in this instance, the spouse who contracted the purchase shall have the right to be reimbursed by the CPG upon liquidation In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership 119. Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse A third person borrowed P1M from Ann, wife of Harold, and agreed to pay it within 10 months with 2% interest each month The P1M will belong exclusively to Ann However, interests falling due during the marriage on the principal shall belong to the conjugal partnership But, the sum of P20 000, which constitutes the 2% interest for 10 months, shall belong to the CPG contemplated as fruits of such property 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules: a. When the cost of the improvement made by the CPG and any resulting increase in value are more than the value of the property at the time of the improvement—the entire property of one of the spouses shall belong to the CPG subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement Example: The wife owned a land worth P50 000. She and her husband constructed a house on the land using the conjugal fund which cost P20 000, and after construction, the house and lot costs P110 000. The sum of improvement (P20 000) and increase in value of the property (P40 000) is P60 000 which is more than the value of the property at the time of the improvement, so it will belong to the CPG RA Salanga 1-A
b. Otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement Example: The wife owned a land worth P50 000. She and her husband constructed a house on the land using the conjugal fund which cost P20 000, and after construction, the house and lot costs P90 000. The sum of improvement (P20 000) and increase in value of the property (P20 000) is P40 000 which is less than the value of the property at the time of the improvement, so it will belong to the owner-spouse In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the CPG In above cases, reimbursement should be made to determine the full ownership of the properties Section 4 CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP 121. The conjugal partnership shall be liable for: 1. Support a. Spouse b. their common children c. legitimate children of either spouse d. 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 a. designated administrator-spouse for the benefit of the conjugal partnership of gains b. both spouses c. 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;
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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 self-improvement 9. Expenses of litigation between the spouses unless the suit is found to groundless For debts and obligations o Liabilities shall only be chargeable to the CPG if it benefits the same o The burden of proof that a debt was contracted for the benefit of the CPG lies with the creditor o The benefit must be a direct result of the obligation and cannot be a by-product or a spin-off of the obligation or loan itself o No presumption can be inferred that, when a husband enters into a contract of surety or accommodation agreement, it is ―for the benefit of the CPG‖ o However, if both spouses signed the surety agreement, then the CPG shall be liable 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 If the CPG is insufficient, the creditors may demand payment from either or any separate properties of the spouses He who made the payment may claim from his spouse only the share which corresponds to each, with the interest for the payment already due 122. The payment of personal debts contracted by the either spouses before or during the marriage shall not be charged to the CPG except insofar as they redounded to the benefit of the family Neither shall the fines and pecuniary indemnities imposed upon them be charged to the CPG
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This is with regard to fines and pecuniary indemnities imposed on either of the spouses before the marriage or during the marriage which did not redound to the benefit of the family However, the payment of personal debts contracted by either spouse before the marriage that of a. fines and indemnities imposed upon them b. support of illegitimate children of either spouse o may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered if the spouse who is bound should have no exclusive property or if it should be insufficient but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose abovementioned 123. Any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law whatever may be lost during the marriage shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings shall form part of the CPG Section 5 ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY 124. The administration and enjoyment of the conjugal partnership— 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 In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void
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However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors Identically similar with Art. 96 In case the buyer knew that the property is conjugal but they bought it from the husband without the consent of the wife, SC said that the sale was totally void and the purchase price had to be returned 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress Identically similar with Art. 98 Section 6 DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME 126. The conjugal partnership terminates: 1. Upon the death of either spouse; 2. There is a decree of legal separation; 3. The marriage is annulled or declared void 4. In case of judicial separation of property during the marriage under Arts. 134 to 138 Identically similar with Art. 99 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that: 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported 2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding 3. In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family RA Salanga 1-A
The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share Identically similar with Art. 100
128. If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling Identically similar with Art. 101 Section 7 LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: 1. Inventory shall be prepared listing separately all the properties of the CPG and the exclusive properties of each spouse 2. Amounts advanced by the CPG shall be credited to the CPG as an asset thereof for payment of personal debts and obligations of either spouse 3. Each spouse shall be reimbursed for the use of his or 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.
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4. Debts and obligations of the CPG shall be paid out of the conjugal assets In case of insufficiency, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions Art. 121(2). 5. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them 6. Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any 7. The net remainder of the conjugal partnership properties shall constitute the profits which shall be divided equally between husband and wife o unless a different proportion or division was agreed upon in the marriage settlements o unless there has been a voluntary waiver or forfeiture of such share as provided in this Code 8. The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Art. 51. 9. Conjugal dwelling and the lot o shall be adjudicated to the spouse with whom the majority of the common children choose to remain o unless otherwise agreed upon by the parties Children below the 7 y/o are deemed to have chosen the mother, unless the court has decided otherwise o In case there is no such majority, the court shall decide, taking into consideration the best interests of said children CPG may be liquidated by extrajudicial settlement, ordinary action of partition, or by way of testate or intestate proceedings 130. Upon the termination of the marriage by death, the CPG shall be liquidated in the same proceeding for the settlement of the estate of the deceased If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either
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judicially or extra-judicially within 6 months from the death of the deceased spouse o If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage Identically similar to Art. 103 131. Whenever the liquidation of the CPG of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them Only the surviving spouse and the children are entitled to get the allowances for support Allowances for support to the children and the spouse of the deceased pending liquidation of the estate are subject to collation and deductible from their share of the inheritance insofar as they exceed what they are entitled to as fruits or income
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Chapter 5 SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE MARRIAGE 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause Spouses cannot alter their property relations after the marriage without judicial approval Separation of Property shall not prevail unless expressly stipulated in the marriage settlement before the union is solemnized or by judicial decree during the existence of marriage 135. Any of the following shall be considered sufficient cause for judicial separation of property: (that the spouse of the petitioner has been) 1. Sentenced to a penalty which carries with it civil interdiction Deprivation of rights: a. Parental authority or guardianship—person or property of any ward b. Marital authority c. Manage his own property d. Dispose his property by any act or any conveyance inter vivos 2. Judicially declared an absentee Declaration may be made if: o 2 years have elapsed without any news o 5 years in case the absentee has left a person in charge of the administration of his property The judicial declaration shall not take effect until 6 months after its publication in a newspaper of general circulation 3. Loss of parental authority decreed by the court The law does not distinguish what type of child 4. Abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101 Abandoned the conjugal dwelling without intention of returning and with an intent to absolutely forego his/her family duties 5. Abused the power of administration granted in the marriage settlements RA Salanga 1-A
Abuse connotes willful and utter disregard of the interests of the partnership evidenced by a repetition of deliberate acts and/or omission prejudicial to the latter 6. At the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property 136. Voluntary dissolution of the ACP or CPG or for the separation of their common properties The spouses may jointly file a verified petition with the court for the Need not state any reason for the conversion Agreement of the parties is enough The agreement for voluntary separation of property takes effect from the time of the judicial order decreeing the separation of the properties and not from the signing of the agreement In case of waiver of one spouse, any creditor of such spouse may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of the credit 137. After the SP has been decreed - ACP or CPG shall be liquidated - however, the delivery of presumptive legitime need not be complied with, as such delivery specifically applies only in case the marriage is either judicially annulled under Art. 45 or declared void for non-observance of Art. 40 During pendency, the ACP or CPG shall pay for the support of the spouses and their children 138. After dissolution of the ACP or CPG, the provisions on SP shall apply 139. The petition and final judgment granting the SP shall be recorded in the proper civil registries and registries of property 140. The SP shall not prejudice the rights acquired by creditors
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141. The spouses may file a motion for a decree to revive the property regime that existed between them before the SP in any of the following instances: a. Civil interdiction terminates b. Absentee spouse reappears c. The court is satisfied that the spouse granted the power of administration will not again abuse the said power d. When the spouse who left resumes common life with the other e. Parental authority is judicially restored f. When the spouses who separated in fact for at least one year, reconcile and resume common life g. When the dissolution was voluntary, after the revival of the former property regime, no voluntary SP may thereafter be granted The agreement to revive the former property regime shall be executed under oath and shall specify: a. Properties to be contributed anew to the restored regime b. Those to be retained as separate c. The names of all their creditors, their addresses and the amounts owing to each 142. Transfer of administration when one spouse: a. becomes the guardian of the other - the law obliges the spouse to live with and take care of his/her spouse b. judicially declared an absentee c. sentenced to a penalty with civil interdiction d. becomes a fugitive from justice or is hiding as an accused in a criminal case - fugitive from justice o one who flees to avoid punishment if the other spouse is not qualified by reason of incompetence, conflict of interest, or any just cause, the court shall appoint a suitable person to be the administrator
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Chapter 6 REGIME OF SEPARATION OF PROPERTY 143. If the property relation is SP, the provisions of this Chapter shall be suppletory 144. SP may refer to present or future property or both. It may be total or partial. If it is partial, the property not agreed upon as separate shall pertain to the absolute community 145. Administration of property in SP: a. shall own, dispose of, possess, administer and enjoy his or her own separate estate without need of the consent of the other b. shall belong all earnings from his/her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his/her separate property 146. Obligations: a. both spouses shall bear the family expenses in proportion to their income, or in case of insufficiency, to the current market value of their separate properties b. liability of the spouses to creditors for family expenses shall be solidary Articles 147 and 148 of the Family Code of the Philippines are the governing laws on property relations between a man and a woman in a live-in relationship. Chapter 7 PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE 147. Structure of Property Relations: a. salaries and wages shall be owned by them in equal shares b. property acquired by either spouse exclusively by his/her own fund belongs to such party c. property acquired by them through their work or industry shall be governed by the rules on co-ownership; either spouse may alienate in favor of the other his/her share in the property d. property acquired while they live together shall presumed to have been obtained by their joint efforts, work or industry and shall be owned by them in equal shares
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e. a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly if the former’s efforts consisted in the care and maintenance of the family and of the household f. fruits of the couple’s separate property are not included in the co-ownership g. property acquired by any of the parties after separation shall be exclusively owned by the party who acquired it h. neither party can encumber or dispose by acts inter vivos of his/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 i. no one can donate or waive any interest in the co-ownership that would constitute an indirect or direct grant of gratuitous advantage to the other which is void pursuant to art. 87 j. when only one of the parties to a void marriage is in good faith, the share of the property in bad faith in the co-ownership shall be forfeited in favor of their common children Requisites to qualify under art. 147: The man and the woman must a. be capacitated to marry each other b. live exclusively with each other as husband and wife c. be without the benefit of marriage or under a void marriage The Supreme Court held in Valdes vs. Regional Trial Court, Br. 102, Quezon City, to wit: This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term “capacitated” in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any “male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Article 37 and 38” of the Code. Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal coRA Salanga 1-A
ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.” 148. Cohabitation not falling under art. 147 Relationships contemplated: a. not capacitated to marry b. adulterous marriage even if it occurred prior to the effectivity of the Family Code c. bigamous or polygamous marriage d. incestuous void marriages under art. 37 e. void marriages by reason of public policy (art. 38) Structure of the Property: a. salaries and wages are separately owned and if any of the parties is married, it shall form part of the property of such legitimate marriage b. property acquired solely by funds of any of the parties shall belong to that party c. only properties acquired by both of the parties through their actual joint contribution shall be owned by them in common in proportion to their respective contributions d. the respective shares over properties owned in common are presumed to be equal. Proof is needed to show their contribution and respective shares are not equal. Without proof, there can be no presumption of co-ownership and equal sharing e. the rule and presumption mentioned above shall apply to joint deposits of money and evidences of credit f. if one, who is not validly married, acted in bad faith his/her share shall be forfeited in the manner provided in the last paragraph of art. 147. This shall also apply even if both acted in bad faith In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship,
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respectively, the Supreme Court ruled that proof of actual contribution in the acquisition of the property is essential. The claim of co-ownership of the petitioners therein who were parties to the bigamous and adulterous union is without basis because they failed to substantiate their allegation that they contributed money in the purchase of the disputed properties. Also in Adriano v. Court of Appeals, the Court ruled that the fact that the controverted property was titled in the name of the parties to an adulterous relationship is not sufficient proof of co-ownership absent evidence of actual contribution in the acquisition of the property. The case of Saguid vs. Court of Appeals, G.R. No. 150611, June 10, 2003 illustrates how the Supreme Court applied Article 148: Seventeen-year old Gina S. Rey was married, but separated de facto from her husband, when she met petitioner Jacinto Saguid in Marinduque, sometime in July 1987. After a brief courtship, the two decided to cohabit as husband and wife in a house built on a lot owned by Jacinto’s father. Their cohabitation was not blessed with any children. Jacinto made a living as the patron of their fishing vessel “Saguid Brothers.” Gina, on the other hand, worked as a fish dealer, but decided to work as an entertainer in Japan from 1992 to 1994 when her relationship with Jacinto’s relatives turned sour. Her periodic absence, however, did not ebb away the conflict with petitioner’s relatives. In 1996, the couple decided to separate and end their 9-year cohabitation. On January 9, 1997, private respondent filed a complaint for Partition and Recovery of Personal Property with Receivership against the petitioner with the Regional Trial Court of Boac, Marinduque. She alleged that from her salary of $1,500.00 a month as entertainer in Japan, she was able to contribute P70,000.00 in the completion of their unfinished house. Also, from her own earnings as an entertainer and fish dealer, she was able to acquire and accumulate appliances, pieces of furniture and household effects, with a total value of P111,375.00. She prayed that she be declared the sole owner of these personal properties and that the amount of P70,000.00, representing her contribution to the construction of their house, be reimbursed to her. RA Salanga 1-A
Private respondent testified that she deposited part of her earnings in her savings account with First Allied Development Bank. Her Pass Book shows that as of May 23, 1995, she had a balance of P21,046.08. She further stated that she had a total of P35,465.00 share in the joint account deposit which she and the petitioner maintained with the same bank. Gina declared that said deposits were spent for the purchase of construction materials, appliances and other personal properties. In his answer to the complaint, petitioner claimed that the expenses for the construction of their house were defrayed solely from his income as a captain of their fishing vessel. He averred that private respondent’s meager income as fish dealer rendered her unable to contribute in the construction of said house. Besides, selling fish was a mere pastime to her; as such, she was contented with the small quantity of fish allotted to her from his fishing trips. Petitioner further contended that Gina did not work continuously in Japan from 1992 to 1994, but only for a 6-month duration each year. When their house was repaired and improved sometime in 1995-1996, private respondent did not share in the expenses because her earnings as entertainer were spent on the daily needs and business of her parents. From his income in the fishing business, he claimed to have saved a total of P130,000.00, P75,000.00 of which was placed in a joint account deposit with private respondent. This savings, according to petitioner was spent in purchasing the disputed personal properties. It is not disputed that Gina and Jacinto were not capacitated to marry each other because the former was validly married to another man at the time of her cohabitation with the latter. Their property regime therefore is governed by Article 148 of the Family Code, which applies to bigamous marriages, adulterous relationships, relationships in a state of concubinage, relationships where both man and woman are married to other persons, and multiple alliances of the same married man. Under this regime, “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 ... Proof of actual contribution is required.
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In the case at bar, although the adulterous cohabitation of the parties commenced in 1987, which is before the date of the effectivity of the Family Code on August 3, 1998, Article 148 thereof applies because this provision was intended precisely to fill up the hiatus in Article 144 of the Civil Code. Before Article 148 of the Family Code was enacted, there was no provision governing property relations of couples living in a state of adultery or concubinage. Hence, even if the cohabitation or the acquisition of the property occurred before the Family Code took effect, Article 148 governs.
extent of the parties’ respective contribution, their share shall be presumed to be equal. Here, the disputed personal properties were valued at P111,375.00, the existence and value of which were not questioned by the petitioner. Hence, their share therein is equivalent to one-half, i.e., P55,687.50 each.
As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the opponent’s defense. This applies with more vigor where, as in the instant case, the plaintiff was allowed to present evidence ex parte. The plaintiff is not automatically entitled to the relief prayed for. The law gives the defendant some measure of protection as the plaintiff must still prove the allegations in the complaint. Favorable relief can be granted only after the court is convinced that the facts proven by the plaintiff warrant such relief. Indeed, the party alleging a fact has the burden of proving it and a mere allegation is not evidence.
149. Family Foundation of the nation Basic social institution o Which public policy cherishes and protects Family Relations Governed by law No custom, practice or agreement destructive of the family shall be recognized or given effect
In the case at bar, the controversy centers on the house and personal properties of the parties. Private respondent alleged in her complaint that she contributed P70,000.00 for the completion of their house. However, nowhere in her testimony did she specify the extent of her contribution. What appears in the record are receipts in her name for the purchase of construction materials on November 17, 1995 and December 23, 1995, in the total amount of P11,413.00. On the other hand, both parties claim that the money used to purchase the disputed personal properties came partly from their joint account with First Allied Development Bank. While there is no question that both parties contributed in their joint account deposit, there is, however, no sufficient proof of the exact amount of their respective shares therein. Pursuant to Article 148 of the Family Code, in the absence of proof of RA Salanga 1-A
TITLE V THE FAMILY Chapter 1 THE FAMIILY AS AN INSTITUTION
150. Family relations include those: (between/among) a. Husband and wife b. Parents and children c. Other ascendants and descendants d. Brothers and sisters, whether of the full or half-blood Does not include relatives by affinity and by consanguinity not covered by the above provision A strict provision, wherein only those listed are deemed to by ―family members‖, in relation to the next article 151. Suit Only implies civil actions Does not apply to settlement of estate guardianship, custody of children, and habeas corpus a. None shall prosper between members of the same family unless it should appear from the verified complaint or petition that earnest efforts towards a compromise have been made, but that the same have failed
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o Duty to engage in ―earnest efforts to compromise‖ is not required if one of the parties in the suit is not a ―family member‖ b. If shown that no such efforts were in fact made, the case must be dismissed o Complaint or petition must be verified. If unverified, the case will not be dismissed but the court will require the party to have it verified c. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code 1. Civil status of persons 2. Validity of a marriage or of a legal separation 3. Any ground for legal separation 4. Future support 5. Jurisdiction of courts 6. Future legitime Exempt from criminal liability, not civil liability, in crimes against property: 1. Theft 2. Swindling or malicious mischief Committed or caused mutually by: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line 2. Widowed spouse with respect to the property of the deceased spouse before the same shall have passed into the possession of another 3. Brothers and sisters, and brothers-in-law and sisters-in-law, if living together No prescription for: 1. Husband and wife → even with decree of separation of property 2. Parents and children → during minority or insanity of the latter 3. Guardian and ward → during continuance of guardianship
Chapter 2 THE FAMILY HOME 152. Family Home Constituted jointly by the husband and the wife or by an unmarried head of a family a. Dwelling house where the family reside b. The land where it is situated Not affected by the type of property regime or if the marriage has been nullified 153. Family home deemed constituted on a house and lot from the time it is occupied as a family residence o element of permanence o occupancy must be actual and not constructive o constituted by operation of law but prior to Family Code, it must be constituted judicially or extra-judicially continues to be such and is exempt from execution, forced sale or attachment long as any of its beneficiaries actually resides therein o except as hereinafter provided and to the extent of the value allowed by law. 154. Beneficiaries of a family home are: 1. husband and wife, or an unmarried head of the family 2. their parents, ascendants, descendants, brothers or sisters, whether legitimate or illegitimate a. who live in the family home b. who depend upon the head of the family for legal support occupancy of (2) must be with the consent of (1) if the owner decides to sell the family home, he must obtain the consent of a majority of the beneficiaries of legal age the enumeration may include ―in-laws‖ if constituted jointly by the husband and the wife Requisites to be a beneficiary: 1. must be among the relationships enumerated in Art. 154
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2. they live in the Family home 3. they are dependent for legal support upon the head of the family 155. Family home is exempt from execution, forced sale or attachment, except for: 1. non-payment of taxes being the chief source of revenue for the government to keep it running, it must be paid immediately and without delay 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 debt includes money judgment arising from tort 156. Family home: a. must be part of the ACP or the CPG, or the exclusive property of either spouse with the latter’s consent b. may be constituted by an unmarried head of the family on his/her own property c. property that is subject of a conditional sale on installment may be constituted as a family home not an apartment or a house that is merely rented or ha house built on a property of another 157. Value of the Family home: (at the time of its constitution) a. shall not exceed 300k in urban areas and 200k in rural areas, or such amounts as may hereafter be fixed by law i. urban area → includes chartered cities and municipalities whose annual income at least equals that legally required for chartered cities ii. all others are deemed to be rural areas if the value is more than the value fixed by law, such home is not a family home, and is not exempt from execution, forced sale or attachment
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b. if the value of the currency changes after the adoption of this code, the value most favorable for the constitution of a family home shall be basis of the evaluation i.e. before the effectivity of the Family Code, a house worth 250k was not judicially constituted as a family home, at the time or after the effectivity, the value is still the same, it automatically becomes a family home; or it was 300k then, and after effectivity it became 400k, it can be considered as a family home because the 300k is more favorable 158. Family home may be: sold, alienated, donated, assigned or encumbered by the owner or owners with the written consent: a. of the persons constituting the same b. the latter’s spouse c. majority of the beneficiaries of legal age in case of conflict, the court shall decide. 159. Death of one or both spouses or of the unmarried head of the family: the family home shall continue for a period of 10 years or for as long as there is a minor beneficiary the heirs cannot partition the same unless the court finds compelling reasons therefor this rule shall apply regardless of whoever owns the property or constituted the family home 160. Creditor whose claim is not under Art. 155 obtains a judgment in his favor and has reasonable belief that the family home is actually worth more than the amount fixed in Art. 157, he may apply to the court for an order directing the sale of the property under execution o the court shall order if it finds that:
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i. the actual value exceeds the maximum amount allowed by law as of the time of its constitution ii. the increased actual value exceeds the maximum allowed in Art. 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home at the execution sale, no bid below the value allowed for a family home shall be considered o proceeds shall be applied first to the amount mentioned in Art. 157 and then to the liabilities under the judgment and costs o excess shall be delivered to the judgment debtor i.e. the debt is 500k, the family home ‗s current actual value is 1M, the bid will start at 300k in an urban area. If it sold for 700k, the 300k will be given to the debtor to be able to build a new family home, then the 400k to the judgment creditor; but if it is under Art. 155, the 500k debt will be given first, then, whatever is left, 200k will be for the judgment debtor 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home 162. The provisions in this Chapter shall also given family residences insofar as said provisions are applicable All existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. This has no retroactive effect
Paternity and Filiation—refer to the relationship or tie which exists between parents and their children a. By nature Natural filiation: Legitimacy or illegitimacy are fixed by law and cannot be left to the will of the parties or the declaration of any physician or midwife Legitimate Illegitimate b. By adoption 164. Legitimate children 1. Born and conceived during the marriage of the parents 2. Conceived by artificial insemination of the wife with the sperm of the husband or that of the donor provided that both of them authorized or ratified such in a written instrument executed and signed by them before the birth of the child Types of artificial insemination: 1. Homologous - the wife is artificially impregnated with the semen of her husband, AIH (Artificial Insemination Husband) 2. Heterologous - Artificial insemination of the wife by the semen of a thirdparty donor, AID (Artificial Insemination Donor) a. Consensual – with the consent of the husband b. Nonconsensual – without the consent of the husband Non-observance of procedure for artificial insemination shall constitute a ground to impugn the legitimacy of the child presumption of legitimacy can only arise upon the convincing proof of: the legality of marriage of the parents and that conception or birth occurred during that marriage
TITLE VI PATERNITY AND FILIATION Chapter 1 LEGITIMATE CHILDREN 163. Filiation of children: Status of the children can never be compromised RA Salanga 1-A
165. Illegitimate children Conceived and born outside of a valid marriage, unless otherwise provided in this Code Conceive and born outside a valid marriage or inside a void marriage Persons and Family Relations
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Exceptions: (Art. 54) 1. children conceived or born before the judgment of annulment or of absolute nullity of the marriage, where the ground for the latter is psychological incapacity, has become final and executory 2. children born from a subsequent void marriage due to contracting parties‘ failure to comply with articles 52 and 53
166. Grounds for impugning the legitimacy of a child: 1. Physical impossibility for the husband to have sexual intercourse within 120 of the 300 days which immediately preceded the birth of the child because of: a. Physical incapacity of the husband to have sexual intercourse with his wife Impotence—inability of the male organ to copulate, to perform its proper function; physical inability to perform the act of sexual intercourse The proof of impotency must be clear, satisfactory and convincing, irresistible or positive Sterility—inability to procreate b. The fact that they were living separately c. Serious illness of the husband, which absolutely prevented sexual intercourse The illness must be serious and that will absolutely prevent him from engaging in sexual intercourse 2. Proven by biological or other scientific reasons that the child could not have been that of the husband except in par. (2) of Art. 164 Vasectomy—removal of about an inch of the tubes or vas deferens which is the passage way of the sperm from the testicle to the urethra and trying the remaining ends Scientific tests: 1. A-B-O Test—blood grouping test is accurate only in excluding paternity 2. HLA Test—Human Leukocyte Antigen Test is a tissue typing test that has shown to prove identity RA Salanga 1-A
between the child and the father with a probability exceeding 98% 3. DNA Test—if the probability of paternity resulting from DNA is 99.9%, it is refutable 3. In case of artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence In the event that the grounds are proven, the child will neither be legitimate or illegitimate in so far as the husband is concerned but rather the husband and the child will not be related to each other As far as the mother is concerned, the child is illegitimate 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress It makes it possible for the wife to file an action to impugn the legitimacy of the child Reasons for adoption of this provision: 1. In a fit of anger, or to arouse jealousy in the husband, the wife may have made this declaration 2. Guaranty in favor of the children whose condition should not be under the mercy of the passions of their parents 3. At the moment of conception, it cannot be determined when a woman cohabits during the same period with two men, by whom the child was begotten, it being possible that it be the husband‘s Only the husband and the heirs can invoke the grounds under Article 166 and 167 The child should had been delivered by a woman who is the child‘s natural mother 168. If the marriage is terminated and the mother contracted another marriage within 300 days after such termination, these rules shall govern in the absence of proof to the contrary: 1. A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage
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2. A child born after 180 days (subsequent marriage) is considered to have been conceived during such marriage, even though it be born within 300 days after the termination of the former marriage Article 168 will apply only in the absence of proof to the contrary The rules do not give any presumption as to legitimacy or illegitimacy but merely state when the child is considered to have been conceived. The status of the child will depend upon the status of the marriage in which he or she is considered to have been conceived
171. Impugning by the heirs of the husband only in the following cases: 1. If the husband should die before the expiration of the period fixed for bringing his action 2. If he should die after the filing of the complaint, without having desisted therefrom 3. If the child was born after the death of the husband Legitimacy cannot be collaterally attacked or impugned It can only be impugned through a direct suit precisely filed for the purpose of assailing the legitimacy of the child
169. The legitimacy or illegitimacy of a child born after 300 days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy In the absent of subsequent marriage, the father could be anybody A child born after 300 days from possible conception is not accorded any presumption either of legitimacy or illegitimacy
172. The filiation of legitimate children is established by any of the following: 1. Record of birth certificate appearing in the civil register or a final judgment If the certificate of live birth is signed by the parents, particularly the father, such certificate is self-authenticating and is consummated act and therefore there is no further need to file any action for acknowledgment Declaration of law provided in Art. 164 will prevail over presumption of fact in Art. 172 Final Judgment—a judicial decision bearing on the status of the children as legitimate and hence, binding and conclusive 2. Admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned Complete act of recognition without need of court action In the absence of those above mentioned: 1. Open and continuous possession of the status of a legitimate child Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously 2. Any other means allowed by the Rules of Court and special laws
170. Prescriptive period for actions to impugn legitimacy of the child if: 1. The husband or any heirs reside in the city or municipality where the birth took place or was recorded—within 1 year from the knowledge of the birth or its recording in the civil registrar 2. The husband or any heirs do not reside at the place of birth or where it was recorded: a. 2 years if they reside in the Philippines b. 3 years if they reside abroad 3. The birth has been concealed from or was unknown to the husband or his heirs—the period shall be counted from the discovery or knowledge of the birth or of the fact of registration of such birth, whichever is earlier After the lapse of the period of prescription, the status of the child becomes fixed and cannot be questioned anymore
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Chapter 2 PROOF OF FILIATION
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Pictures, typewritten letters, and affidavits do not constitute proof of filiation Canonical records such as baptismal record or certificate do not constitute proof of filiation because such is no proof of the declarations in the record with respect to the parentage of the child baptized Other proofs of filiation: a. Baptismal certificate—the father should have participated in the preparation of the same 173. The action to claim legitimacy: may be brought by the child during his/her lifetime and shall be transmitted to the heirs should he/she die during minority or in a state of insanity. In these cases, the heirs shall have a period of 5 years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties 174. Rights of legitimate children: 1. To bear the surname of the father and the mother, in conformity with the provisions of the Civil Code on Surnames 2. To receive support from their parents, ascendants, and in proper cases, brothers or sisters, in conformity with the provisions of the Civil Code on Support 3. To be entitled to the legitime and other successional rights granted to them by the Civil Code Legitimate Illegitimate Claim of Lifetime regardless of Lifetime with the use of 1st par. legitimacy / what type of proof in of Art. 172 illegitimacy Art. 172 Lifetime of parent if 2nd par. of Art. 172 May be transmitted Not transmissible to the heirs to the heirs Support Entitled in the direct Entitled in the direct line of line of relationship, relationship but only up to ascendants and his/her grandparents or descendants grandchildren RA Salanga 1-A
Successional Rights Surname Father Inheritance
½ of the legitime of a legitimate child Mother No right ab intestate to inherit from the legitimate children and relatives of his father or mother
Chapter 3 ILLEGITIMATE CHILDREN 175. Illegitimate filiation of illegitimate children may be established in the same way and on the same evidence as legitimate children. The prescriptive period is the same as with Art. 173, except if under the 2nd par. of Art. 172, the action may be brought during the lifetime of the alleged parent. 176. Use of surname of illegitimate children: 1. Mother—the surname and shall be under the parental her authority, and shall be entitled to support in conformity with this Code. 2. Father—if the filiation has been expressly recognized through record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father Has the right to institute an action before the regular courts to prove non-filiation during his lifetime Legitime of an illegitimate child shall consist of ½ of the legitime of a legitimate child. Art. 211 will apply if the alleged father admits that the child is his and it is shown that it is really conclusively his child and he even acknowledges that the child is his and the said father lives together with the child and the mother of the said child under a void marriage or without the benefit of a marriage o ―the father and the mother shall jointly exercise parental authority over the person of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary”
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Once parental authority is vested, it cannot be waived except in cases of adoption, guardianship and surrender to a children‘s home or an orphan institution Chapter 4 LEGITIMATED CHILDREN
177. Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were: a. Not disqualified by any impediment to marry each other b. Disqualified only because either or both of them were below 18 years of age May be legitimated Legitimation is purely a statutory creation Legitimation will not affect the property rights which have been already vested Requirements for legitimation: 1. The parents do not suffer any legal impediment or are disqualified to marry because either or both of them are 18 years of age at the time of the conception of the child 2. The child has been conceived and born outside a valid marriage 3. The parents subsequently enter into a valid marriage. It is the last step which by operation of law will finally legitimate the child. The annulment of a voidable marriage shall not affect the legitimation 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation 179. Legitimated children shall enjoy the same rights as legitimate children 180. The effects of legitimation shall retroact to the time of the child’s birth 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants RA Salanga 1-A
182. Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years from the time their cause of action accrues ―Rights‖—successional rights, the persons who can be prejudiced in their rights by the process of legitimation are the legal heirs of the parents TITLE VIII SUPPORT 194. Support Comprises everything indispensable for: o Sustenance o Dwelling o Clothing o Medical attendance o Education, shall include his: his schooling (formal education) or training (non-formal education) for some profession, trade or vocation, even beyond the age of majority o Transportation, shall include expenses in going: to and from school, or to and from place of work In keeping with the financial capacity of the family Support—includes whatever is necessary to keep a person alive Kinds of support: a. Natural support—basic necessities b. Civil support—anything beyond the basic necessities 195. The following are obliged to support each other to the whole extend set forth in the preceding article and subject to the provisions of the succeeding articles: a. Spouses The duty and right to be supported presuppose a valid marriage between the parties Articles 100 and 127 provides that ―a spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported from the conjugal properties or the absolute community of properties‖ Support pendente lite between spouses:
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i.
Nullity of marriage—the aggrieved party cannot be given support pendente lite by the other spouse because nothing exists except the allegation of marriage or denial thereof o Once declared void ab initio, the obligation to give support ceases ii. Annulment of marriage—the spouses shall be supported by the absolute community or the conjugal partnership o Once declared annulled, the obligation to give support ceases iii. Legal separation—the spouses shall be supported by the absolute community or the conjugal partnership o Once decreed, Art. 198 states that the ―court may order the guilty spouse to support the innocent one, even after the separation has been decreed‖ b. Legitimate ascendants and descendants The obligation to support is to ensure that members of a family do not allow any member of the same family to become a burden to society In case of conflict, the status of the parties should be established before support can be made c. Parents and their legitimate children and the legitimate and illegitimate children of the latter Obligation of the parents to support their children and their grandchildren is premised on the principle that as long as one is related by blood, there is no reason why the obligation should fall on society and not on his family d. Parents and their illegitimate children and the legitimate and illegitimate children of the latter In case the status of the child is at issue, the alleged child can get support pendente lite from the alleged parent if his status as such has been proven provisionally e. Legitimate brothers or sisters, whether full or half-blood Support is a mandatory obligation that cannot be waived, renounced, transmitted or compensated as such obligation is necessary for the existence, survival and well-being of the individual ought to be supported Art. 2035 of the Civil Code provides that no compromise shall be valid upon the question of future support
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196. Illegitimate brothers or sisters, whether full or half-blood, are likewise bound to support each other except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence Support for illegitimate brothers or sisters, who are of age and is due to his or her own fault or negligence, does not become a demandable right, and therefore, may not be given at all 197. For the support of a. Legitimate ascendants b. Descendants, whether legitimate or illegitimate c. Brothers and sisters, whether legitimately or illegitimately related Only the separate property of the person obliged to give support shall be answerable Unless, the obligor has no separate property, the ACP or CPG, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the ACP or CPG. The separate property of the obligor will be liable for the support of those relatives enumerated above However, if the legitimate descendants are the common children of the spouses or legitimate children of either of the spouses, the ACP or CPG shall be principally liable for their support In case of the illegitimate children of either spouse, the mere insufficiency of the separate property is enough to make the ACP or CPG liable in the meantime 198. During the proceedings for legal separation or for annulment, and for declaration of nullity of marriage, the spouses and their children shall be supported from the ACP or CPG. After final judgment granting the petition, the obligation of mutual support ceases. However, in case of legal separation, the court may order the guilty spouse to give support to the innocent one, specifying the terms of such order.
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Support from this article is principally obtained from the separate property of the spouse from whom support is sought
199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: i. Spouse ii. Descendants in the nearest degree iii. Ascendants in the nearest degree iv. Brother and sisters 200. Payment when the obligation to give support falls upon two or more persons Shall be divided between them in proportion to the resources of each In case of urgent need and by special circumstances The judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due to them When two or more recipients at the same time claim support from one and the same person legally obliged to give it, who has no sufficient means to satisfy all claims The order established in the preceding article shall be followed Unless the concurrent obliges should be the spouse and a child subject to parental authority o In which case the child shall be preferred 201. Amount of support shall be in proportion to the: a. resources or means of the giver b. necessities of the recipient 202. Support referred to the preceding article shall be reduced or increased proportionately according to a. the reduction or increase of the necessities of the recipient b. the resources or means of the person obliged to furnish the same RA Salanga 1-A
203. Obligation to give support shall be a. demandable from the time the person who has the right to receive the same needs it for maintenance b. paid only from the date of judicial or extrajudicial demand o shall be made within the first five days of each corresponding month o when recipient dies, his heirs shall not be obliged to return what he has received in advance Support pendente lite may be claimed in accordance with the Rules of Court. The SC allows payment of support in arrears even though the reason, like finishing college, have already lapsed by the time the decision was rendered 204. Options of the obligor in giving support, to fulfill the obligation either by: a. Paying the allowance fixed b. Receiving and maintaining in the family dwelling the person who has a right to receive support o Cannot be availed in case there is a moral or legal obstacle thereof 205. Not levied upon on attachment or execution the Right to receive support Any money or property attained as such support In case of contractual support or that given by will—the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution 206. When, without the knowledge of the person obliged to give support, it is given by the stranger He shall have the right to claim from the former a. Unless it appears that he gave it without intention of being reimbursed The resulting relationship between the stranger and the person obliged to give support is a quasi-contract
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Quasi-contract—a juridical relation to which arises from certain lawful, voluntary and unilateral acts to the end that no one shall be unjustly enriched or benefited at the expense of the another Requirements: i. Support has been furnished to a dependent of one bound to give such support but fails to do so ii. The support was supplied by a stranger iii. The support was given without the knowledge of the person charged with the duty 207. When the person obliged to support another Unjustly refuses or fails to give support when urgently needed by the latter a. Any third person may furnish support to the needy individual with a right of reimbursement from the person obliged to give support
i. ii. iii.
This article shall apply particularly when the father or the mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. Requisites: There is an urgent need to be supported on the part of the recipient The person obliged to support unjustly refuses or fails to give the support A third person furnishes the support to the needy individual
208. In case of contractual support or that given by will, the excess amount beyond the required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties. Legal support—mandated by law to be given and that which is provided in Art. 194 Contractual support—one which is entered into by the parties usually with reciprocal duties and obligations but is not mandated by law
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TITLE IX PARENTAL AUTHORITY Chapter 1 GENERAL PROVISIONS 209. Parental authority and responsibility Pursuant to the natural right and duty of parents over the person and property of their unemancipated child Shall include caring for and rearing for such children for: a. Civic consciousness b. Efficiency and development of their moral, mental and physical character and well-being Parental authority—involves a mass of rights and obligation which the law grants for the purpose of the children’s physical preservation and development, as well as the cultivation of their intellect and the education of their hearts and senses 210. Parental authority and responsibility may not be renounced or transferred except in cases authorized by law The law allows a waiver of parental authority only in a. Adoption b. Guardianship c. Surrender to a children’s home or an orphan institution Entrusting the custody of a minor to another by the parent, even in a document, is merely a temporary custody and does not constitute renunciation of parental authority Only in cases of the parent’s death, absence or unsuitability may substitute parental authority be exercised by the surviving parent Parental authority can be terminated for cause in accordance with the legal grounds in Articles 228-232 211. The father and the mother shall jointly exercise parental authority over the person of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. Applies to both legitimate and illegitimate children
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Requisites for the application to illegitimate children: a. The father is certain b. The illegitimate children are living with the said father and the mother, who are cohabiting without the benefit of a marriage or under a void marriage not falling under Articles 36 and 53 Requisites for Art. 176 where illegitimate children shall be under the parental authority of the mother only: a. The paternity of the child is unknown b. Though the paternity is certain, the father is not living with the mother and the child The basis for altering the decision of the father must however rest on substantial, important and serious ground for the paramount interest of the children Obligations of the children under Art. 357 of the 1950 Civil Code which is still effective: (every child shall) a. Obey and honor his or her parents or guardian b. Respect his or her grandparents, old relatives, and persons holding substitute parental authority c. Exert his utmost for his or her education and training d. Cooperate with the family in all matters that make for the good of the same
212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The marriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children The new spouse, by virtue of his or her marrying the surviving parent, does not automatically possess parental authority over the children of the surviving parent unless such new spouse adopts the children 213. In case of separation of the parents the parental authority shall be exercised by the parent designated by the Court o the Court shall take into account all relevant considerations, especially the choice of the child over 7 y/o, unless the parent chosen is unfit RA Salanga 1-A
no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise The designation does not mean that the parental authority of the other parent is necessarily terminated or suspended Parents are never deprived of the custody and care of children except for cause In custody cases, the child’s best interest, which constitutes the ―cardinal principle‖ and the ―paramount consideration‖ , is the guiding principle A habeas corpus—where the question of identity is relevant and material— a. can be availed of to secure the custody of a child in case the parents are separated from each other b. is a proper remedy to enable parents to regain custody of a child even though the latter be in the custody of a third person Decisions of the courts, even the SC, on the custody of minor children are always open to adjustments as the circumstances relevant to the matter may demand in ht light of the inflexible criterion, namely, the paramount interest of the children A compromise judgment has the force of res judicata between the parties and should not be disturbed except for vices of consent or forgery 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime, against the descendant or by one parent against the other The reason for the privilege is to foster family unity and tranquility except when the testimony is indispensable in a crime against the descendant or by one parent against the other—a child who was raped by his father-
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The provision is corollary to marital privilege where the belief is that the husband and the wife are considered as but one person The spouses can testify against each other in a a. civil case by one against the other b. criminal case for a crime committed by one against the other Chapter 2 SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY 216. In default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: i. Surviving grandparent, as provided in Art. 214 ii. Oldest brother or sister, over 21 years of ages, unless unfit or disqualified iii. Child’s actual custodian, over 21 years of age, unless unfit or disqualified Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed Persons exercising substitute parental authority shall: a. Have all the rights of the parents (Art. 220) b. Have the same authority over the person of the child as the parents (Art. 233) c. Be civilly liable for the injuries and damages caused by the acts or omissions of the unemancipated children living in their company and under their parental authority (Art. 221) The order established is not mandatory because it is the paramount interest of the child which must be the basis of the custody and care 217. In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency. Foundling—a newborn child abandoned by its parents who are unknown Abandoned child—one who has no proper parental care or guardianship, or whose parents or guardians have deserted him for a period of at least 6 continuous months RA Salanga 1-A
Neglected child—one whose basic needs have been deliberately unattended or inadequately attended Neglect may occur in two ways: a. Physical neglect—when the child is malnourished, ill clad and without proper shelter b. Emotional neglect exists when children are: 1. maltreated, raped or seduced 2. exploited, overworked or made to work under conditions not conducive to good health 3. made to beg in the streets or public places 4. in moral danger, or exposed to gambling, prostitution or other vices Abused child—comes within the definition of the second kind of neglected child Dependent child—dependent upon the public for support a. one who is without a parent, guardian or custodian b. one whose parent, guardian or other custodian for good cause desires to be relieved of his care and custody No private person, natural or juridical, shall establish, temporarily or permanently, any child welfare agency without first securing a license from the Dept. of Social Welfare o Such license shall not be transferable and shall be used only by the person or institution to which it was issued at the place stated therein o No license shall be granted unless the purpose or function of the agency is clearly defined and stated in writing Transfer of legal or parental authority over the child can be: a. Voluntary—the parent or guardian of a dependent, abandoned or neglected child may voluntarily commit or surrender him in writing to the Dept. of Social Welfare or any duly licensed child-placement agency or individual b. Involuntary—the Dept. of Social Welfare Secretary or his authorized representative or any duly-licensed child-placement agency having knowledge of a child who appears to be dependent, abandoned or neglected, may file a verified petition to the proper court for involuntary commitment of said child to the care of any duly licensed child-placement agency
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218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. Persons and entities given by law special parental authority: o School, its administrators and teachers o Individual, entity or institution engaged in child care Special parental authority—can be exercised only over minors while under their supervision, instruction or custody The teacher must be the teacher-in-charge Being in custody—the protective and supervisory custody that the school and its head and teachers exercise over the pupils and students for as long as they are in attendance in the school, including recess 219. Prinpally and solidarily liable those given authority and responsibility under Art. 218 for the damages caused by the acts or omissions of the unemancipated minor shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances Subsidiarily liable parents, judicial guardians or the persons exercising substitute parental authority All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts Those with subsidiary liability will only be liable if the persons with special authority cannot satisfy their liability The Court is not disposed to expect from the teacher the same measure of responsibility imposed on the parent, for their influence over the child is not equal in degree Art. 2180 of the Civil Code provides that ―teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices so long as they remain in their custody‖ RA Salanga 1-A
o This applies if the students, pupils or apprentices are not anymore minor children Chapter 3 EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties: i. To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; ii. To give them love and affection, advice and counsel, companionship and understanding; iii. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; iv. To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; v. To represent them in all matters affecting their interests; vi. To demand from them respect and obedience; vii. To impose discipline on them as may be required under the circumstances; and viii. To perform such other duties as are imposed by law upon parents and guardians. The relationship between parents and their minor children naturally gives rise to various rights and obligations affecting the welfare of, and the parents’ control over, the child Art. 46 of the Child Youth Welfare Code enumerates 8 duties of the parents toward their children with an additional duty from Art. 225 Whenever proper, parents shall allow the child to participate in the discussion of family affairs, especially in matters that particularly concern him
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If the child is gifted, his parents shall report this fact to the National Center for Gifted Children or to other agencies concerned so that official assistance or recognition may be extended to him They may inflict a reasonable measure of corporal punishment A child who ―voluntarily abandons the parent’s home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint, that child forfeits the claim to support‖ Art. 356 of the 1950 Civil Code provides the rights of the children: a. Entitled to parental care b. Shall receive at least elementary education c. Shall be given moral and civic training by the parents or guardian d. Has a right to live in an atmosphere conducive to his physical, moral and intellectual development PD 603 or the Child Youth Welfare Code also provides for the rights of the child 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law For liability on the part of the parents to attach, the unemancipated child must be living in their company and under their parental authority This principle is a species of—vacarious liability or the doctrine of ―imputed intelligence‖—where a person is not only liable for torts committed by himself, but also for torts committed by other with whom he has a certain relationship and for whom he is responsible The legislature has elected to limit extra-contractual liability to cases in which moral culpability can be directly imputed to the persons to be charged 222. The courts may appoint a guardian of the child’s property, or a guardian ad litem when the best interests of the child so require Guardian—a person who acts for another Ward—a person whom the law regards as incapable of managing his own affairs
Guardians ad litem—officers of the court in a limited sense, and the office of such guardian is to represent the interest or the incompetent or the minor Appointment of a guardian ad litem is addressed to the sound discretion of the court and designed to assist the court in the determination of the best interest of the child In determining the selection of a guardian, the court may consider the: a. Financial situation b. Business acumen c. Physical condition d. Morals, character and conduct e. Present and past history of a prospective appointee f. Probability of his being able to exercise the powers and duties of guardian for the full period during which guardianship will be necessary A court cannot appoint a guardian who is not personally subject to its jurisdiction 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon
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proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper Chapter 4 EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN 225. Father and mother Jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. o In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary Where the market value of the property or annual income of the child exceeds P50,000 The parent concerned shall be required to furnish a bond in such amount as the court may determine o But not less than 10% of the value of the property or annual income o To guarantee the performance of the obligations prescribed for general guardians A verified petition for approval of the bond shall be filed in the a. proper court of the place where the child resides b. if the child resides in a foreign country, in the proper court of place where the property or any part thereof is situated The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply there is no more need for a judicial court order appointing the parents as guardians regardless of the value of the unemancipated child’s property, the father and the mother ipso jure become the legal guardian of the child’s property RA Salanga 1-A
two cases where a parent cannot be the administrator of the property of his or her children: a. Art. 923 of the Civil Code ―Children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime, but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime‖ b. Art. 1035 of the Civil Code ―If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children.‖ The committee considers P50,000 as the amount when the property is valuable enough to require a bond on the basis of the current valuation, considering the possible abuse by the parents and the expensiveness of the bond Giving such bond is a condition or ―qualification‖ precedent to the vesting of the authority to administer Any act done without or before the giving of the bond is a nullity The purpose of the bond is to guarantee the performance of the obligations prescribed for general guardians The parent’s authority over the estate of the ward as a legal guardian would not extend to acts of encumbrance or disposition, as distinguished from acts of management or administration A guardian has no authority to sell real estate of his ward, merely by reason of his general powers, and in the absence of any special authority to sell conferred by will, statute, or order of the court A sale of the ward’s realty by the guardian without authority from the court Guardianship proceeding: a. the rules on guardianship are suppletory—if the guardian are the parents b. the ordinary rules on guardianship shall apply—if the child is under 1. substitute parental authority 2. the guardian is a stranger 3. a parent has remarried
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226. The property of the unemancipated child a. earned or acquired with his work or industry b. by onerous or gratuitous title shall belong to the child in ownership shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited a. primarily to the child's support b. secondarily to the collective daily needs of the family If the child’s property is more than sufficient to maintain the said child, the said properties may be used to defray the collective needs of the family 227. If the parents entrust the management or administration of any of their properties to an unemancipated child the net proceeds of such property shall belong to the owner the child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child In any case, the proceeds thus given in whole or in part shall not be charged to the child's legitime. Parents who have engaged their unemanicipated children to take care of their properties, shall only be entitled to the net fruits of the properties so managed The unemancipated child shall first be given a monthly reasonable allowance taken from the gross proceeds of the property for the said month All other expenses of the administration and management of the property shall be taken from the proceeds The balance left shall be considered the net proceeds which will go to the parents Exception to all the rules is when the parent-owner just decides to grant the entire proceeds to the child Compensation—refers to an employer-employee relationship Allowance—refers to a family relation ―in whole‖—entire proceeds; ―in part‖—allowance RA Salanga 1-A
Chapter 5 SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY 228. Parental authority terminates permanently: a. Upon the death of the parents; b. Upon the death of the child; or c. Upon emancipation of the child A child is emancipated upon reaching the age of majority which is 18 years Emancipation—terminates parental authority over the person and property of the child and he or she is hereby qualified to do all acts of civil life save for exceptions established by existing laws in special cases Effects of Art. 228: 1. Parental authority is terminated permanently ―the events happen with no fault on the part of the parents‖ 2. Parental authority cannot be revived 229. Unless subsequently revived by a final judgment, parental authority also terminates: Effects of Art. 229: o Termination is not permanent o Parental authority can be revived by court order Revival is allowed because the grounds ―are events without the fault of the parents or with the fault of the parents but without malice a. Upon adoption of the child; Art. 229 will not apply in cases where the biological parent is the spouse of the adopter, wherein o All legal ties between the biological parent and the adoptee shall be severed and the same shall then be vested on the adopter upon the finality of a judicial adoption decree The adoptee shall be considered the legitimate son/daughter of the adopter/s for all intents and purposes and as such is entitled in all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind In case the adoption decree is rescinded a. such rescission shall extinguish all reciprocal rights and obligations between the adopters and the adopted child
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b. the parental authority of the adoptee’s biological parent, if known, or the legal custody of the DSWD, if the adoptee is still a minor or incapacitated, shall be restored b. Upon appointment of a general guardian; Guardian appointed by the court shall have the a. care and custody of the person of his or her ward b. management of his or her estate c. Upon judicial declaration of abandonment of the child in a case filed for the purpose; Abandonment a. means neglect or refusal to perform the natural and legal obligation of care and support which parents owe to their children b. imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child ―a case filed for the purpose‖—a judicial decision arising from a case precisely filed for the declaration of abandonment d. Upon final judgment of a competent court divesting the party concerned of parental authority; or The court may divest the parents of their parental authority over their children if the welfare of the children demands A decree of termination must be issued only upon clear, convincing and positive proofs e. Upon judicial declaration of absence or incapacity of the person exercising parental authority A separate case can be filed using the judicial declaration of absence or incapacity to terminate parental authority 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. Civil interdiction—an accessory penalty imposed o Involves the deprivation of the offender, during the time of his/her sentence, of the rights of i. Parental authority ii. Guardianship, either as to the person or property of any ward RA Salanga 1-A
iii. Marital authority iv. To manage his property v. To dispose of such property by any act or conveyance inter vivos There is no judicial declaration of civil interdiction and this ground is distinct because ―there is automatic revival of parental authority‖ once the sentence is served or upon pardon or amnesty of the offender Civil interdiction results in termination of parental authority, which can be revived without a need of a court order 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same: The suspension or deprivation can be judicially decreed in a case specifically filed for that purpose or in a related case ―in a related case‖—―off-shoot of an incident or a collateral pronouncement in another case‖; ―an independent or collateral proceeding‖ a. Treats the child with excessive harshness or cruelty; Parents have the duty to discipline their children which authorizes them to inflict some form of corporal punishment, the same should not be excessive Parents should not treat their children with cruelty whether or not they have any ostensible reason to do so b. Gives the child corrupting orders, counsel or example; Parents have the duty to provide the children with moral and spiritual guidance, inculcate in them honesty, integrity and selfdiscipline and stimulate in them in their interest in civil affais c. Compels the child to beg; or Destroys the potential of the child to be a productive citizen of the country Parents have the duty to inculcate in the children self-reliance through lawful activities d. Subjects the child or allows him to be subjected to acts of lasciviousness A parent subjecting his/her children to acts of lasciviousness manifests a perverse, morally depraved and highly repugnant attitude destructive of the well-being of the children and the family
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The grounds enumerated are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority A serious a act of moral depravity and corruption Parental authority cannot be revived if the parents or the persons exercising parental authority are found to have subjected the child or allowed him/her to be subjected to sexual abuse If it is the parents who entrust the child in such acts, he/she may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority and shall be punished by the penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500
to inflict physical injuries, he/she cannot be held feloniously liable for the criminal offense Aside from the termination of parental authority for an erring or abusive parent, the state has provided laws which make it a crime for parents to seriously mistreat their children o Art. 59 of PD 603 provides for the ground where the parents may be held criminally liable for mistreating their children and for the penalty of imprisonment from 2 or 6 months or a fine not exceeding P500, or both, at the discretion of the Court, unless a higher penalty is provided for in the RPC or special laws, without prejudice to actions for involuntary commitment of the child On June 17, 1992, Pres. Aquino approved RA 7160, otherwise known as the ―Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act‖ TITLE X EMANCIPATION AND AGE OF MAJORITY 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of 18 years. (as amended by RA 6809) Marriage is not anymore a ground for emancipation because a person who decides to get married is necessarily at least 18 years of age Upon emancipation, he/she may now sue or be sued without the assistance of the father, mother or guardian 235. Repealed by RA 6809
233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child Corporal punishment—infliction of physical disciplinary measures to a student o This is absolutely prohibited under the Family Code Only persons exercising special parental authority cannot inflict corporal punishment While a teacher may be administratively or civilly liable, it has been held that where there was no criminal intent on the part of the teacher RA Salanga 1-A
236. Emancipation for any cases shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. Contracting marriage shall require parental consent until the age of 21 This does not make parental consent an essential nor a formal requirement of marriage in the sense that its absence will render the marriage void o because the capacity to act is already full, meaning a person can enter into any agreement with legal effect
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However, absence of parental consent will render the marriage annullable under Art. 45 Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below 21 years of age mentioned in the 2nd and 3rd paragraphs of Art. 2180 of the Civil Code. (as amended by RA 6809) ―save the exceptions established by existing laws in special cases‖— provides to take care of the parents’ tort liability even if the child is emancipated but below 21 years of age Source of confusion for the last paragraph: The liability of parents under Art. 2180(2) attaches only in case where the ―minor‖ children live in their company. A minor under the Civil Code was considered to be a person below 21 years of age. Following the Elcano ruling, even if the minor becomes emancipated, the parents can still be liable under Art. 2180(2) because Art. 399 provides that such minor, though emancipated, cannot sue or be sued without the assistance of the parents. Under the present Family Code, there is no provision similar to Art. 399. The link therefore for liability on the part of the parents to attach even if the children are emancipated is not anymore present. In this regard, the last paragraph of Art. 236 appears to have no basis for referring the ―duty or responsibility of parents and guardians and wards below 21 years old Applicability of the last paragraph: a. Parents o The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the children between 18 and 21 who live in their company b. Guardians—liable for damages if the said persons are under their authority and live in their company In Elcano ruling, the liability of parents for the acts or omissions of their emancipated children living in their custody is subsidiary, then the same subsidiary liability should apply under the last par. of Art. 236 237. Repealed by RA 6809
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TITLE XI SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Chapter 1 SCOPE OF APPLICATION 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply in all cases provided for in this Code requiring summary court proceeding. Such cases shall be decided in an expeditious manner, without regard to technical rules. Chapter 2 SEPARATION IN FACT BETWEEN HUSBAND AND WIFE 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts. An unverified petition cannot be given consideration by the court The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. The approval of the court shall protect the transacting spouse and third persons who are directly affected by the transaction 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action A claim for damages usually entails a lengthy process, the law provides that damages, except costs of the proceedings, may be litigated only in a separate action 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. RA 8369, otherwise known as the Family Courts Act of 1997, established the family courts which are exclusively tasked to take cognizance of family cases such as a. custody of children
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b. annulment or nullity cases c. adoption d. termination of parental authority
242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned Once the petition is filed, due process requires that the other party shall be given the chance to comment on the petition and to show cause why the petition should not be granted The responded likewise may nevertheless manifest his/her agreement in which case the suit shall become moot and academic 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings Preliminary conference—aimed at having the parties settle amicably their differences on the transaction involved so that the judicial proceedings can be further shortened During initial conference, the parties will not be assisted by counsel where the judge will conduct the proceedings personally However, if the judge finds out that the issues are complicated and that any of the spouses does not really have a complete understanding of the transaction and its consequences, lawyers may be allowed to assist the parties in the next hearings 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his failure to appear, and shall require such appearance, if possible 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse RA Salanga 1-A
Judgment will be rendered on the basis of the facts and evidence presented The judge may grant or deny the petition
246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. 247. The judgment of the court shall be immediately final and executor A decision becomes final and executor after the lapse of 15 days from the time the parties receive a copy of the decision Without an injunction from the higher court, the decision can be executed even if it is pending in the said higher court 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules Art. 248 refers to par. 3 of both Articles 100 and 127 which essentially provides that the separation in fact between husband and wife shall not affect either the ACP or the CPG except that, among others, in the absence of sufficient community or conjugal property, the separate property of both spouses shall be solidarily liable for the support of the family The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share Chapter 3 INCIDENTS INVOLVING PARENTAL AUTHORITY 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified Art. 223—a case seeking a court order providing for disciplinary measures over the child
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Art. 225—a case for the approval of the bond required of parents who exercise parental authority over the property of their children Art. 235—a case on emancipation has already been repealed by RA 6809
Articles 96 and 124—annulment of the husband’s decision in the administration and enjoyment of the community or conjugal property in case the husband’s decision is in conflict with the wife’s decision TITLE XII FINAL PROVISIONS
250. Such petitions shall be verified and filed in the proper court of the place where the child resides The venue of the case shall be the court of the place where the child resides for the benefit and convenience of the child 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child The court must undertake everything possible for the benefit of the child and must issue decisions having the paramount interest of the child as the inflexible criterion 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable The proceedings in the court cases referred to in Articles 223 and 225 shall likewise be summary in nature for the benefit of the child Chapter 4 OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable Art. 41---judicial declaration of a spouse as presumptively dead Art. 51—an action of a child for the delivery of his/her presumptive legitime Art. 69—judicial determination of the family domicile in case of disagreement of the spouses Art. 73—court adjudication of the validity of a spouse’s objection to the profession of the other spouse Art. 217—court order entrusting foundlings, abandoned, neglected or abused children and other children similarly situated to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency RA Salanga 1-A
254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed. The Family Code is intended to be the principal law that shall govern family relations For the implied repeal to operate, those enumerated above, there must be a substantial irreconcilable conflict in connection with the provisions found in existing and prior acts with those of Family Code 255. If any provision of this Code is held invalid, all the other provisions not affected thereby shall remain valid The provisions in the Family Code are separable in the sense that invalidity of one provision will not necessarily invalidate the whole law However, invalidity of a particular provision necessarily invalidates those other provisions which are affected by the said invalidity 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws Vested right a. an immediate fixed right of present and future payment b. a right which is fixed, unalterable, absolute, complete and unconditional to the exercise of which no obstacle exists, and which is perfect in itself and not dependent upon a contingency 257. This Code shall take effect one year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President.
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Publication shall likewise be made in the Official Gazette. The publication of the Family Code of the Philippines, in the Manila Chronicle, a newspaper of general circulation, was completed on Aug. 4, 1987. Hence, the said Code took effect on Aug. 3, 1988 TITLE X FUNERALS 305. 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 Art. 294 Art. 294 is repealed by Art. 199 which provides the following order: 1. Spouse 2. Descendants in the nearest degree the oldest shall be preferred 3. Ascendants in the nearest degree the paternal shall have a better right 4. Brothers and sisters the oldest shall be preferred 306. Every funeral shall be in keeping with the social position of the deceased. The kind of funeral is the last manifestation of the kind of life which the deceased has attained 307. 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. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. RA Salanga 1-A
Again, Art. 294 is repealed by Art. 199 Any undertaking that would, in a way, ―disturb‖ the dead must be with the consent of those who will be greatly affected
309. 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. 310. 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. TITLE XII CARE AND EDUCATION OF CHILDREN 356. Every child: 1. Is entitled to parental care; 2. Shall receive at least elementary education; 3. Shall be given moral and civic training by the parents or guardian; 4. Has a right to live in an atmosphere conducive to his physical, moral and intellectual development. 357. Every child shall: 1. Obey and honor his parents or guardian; 2. Respect his grandparents, old relatives, and persons holding substitute parental authority; 3. Exert his utmost for his education and training; 4. Cooperate with the family in all matters that make for the good of the same. 358. Every parent and every person holding substitute parental authority shall see to it that the rights of the child are respected and his duties complied with, and shall particularly, by precept and example, imbue the child with high-mindedness, love of country, veneration for the national heroes, fidelity to democracy as a way of life, and attachment to the ideal of permanent world peace.
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359. The government promotes the full growth of the faculties of every child. For this purpose, the government will establish, whenever possible: 1. Schools in every barrio, municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian; 2. Puericulture and similar centers; 3. Councils for the Protection of Children; and 4. Juvenile courts. 360. The Council for the Protection of Children shall look after the welfare of children in the municipality. It shall, among other functions: 1. Foster the education of every child in the municipality; 2. Encourage the cultivation of the duties of parents; 3. Protect and assist abandoned or mistreated children, and orphans; 4. Take steps to prevent juvenile delinquency; 5. Adopt measures for the health of children; 6. Promote the opening and maintenance of playgrounds 7. Coordinate the activities of organizations devoted to the welfare of children, and secure their cooperation. 361. Juvenile courts will be established, as far as practicable, in every chartered city or large municipality. 362. Whenever a child is found delinquent by any court, the father, mother, or guardian may in a proper case be judicially admonished. 363. In all questions on the care, custody, education and property of children the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure. USE OF SURNAMES A person’s name is the designation by which he is known and called in the community in which he lives and is best known Name— o word or combination of words by which a person is distinguished from other individuals RA Salanga 1-A
o label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him o both personal as well as public interest that every person must have a name Two parts of the name of an individual: 1. Given or proper name Given to the individual at birth or at baptism, to distinguish him from other individuals May be freely selected by the parents of the child 2. Surname or family name Identifies the family to which he belongs and is continued from parent to child Fixed by law 3. Middle names Serve to identify the maternal lineage or filiation of a person To further distinguish him or her from others who may have the same given name and surname as he or she has Characteristics of a name: 1. Absolute, intended to protect the individual from being confused with others 2. Obligatory in some respects, for nobody can be without a name 3. Fixed, unchangeable or immutable, at least at the start, and maybe changed only for good cause and by judicial proceedings 4. Outside the commerce of man, and therefore inalienable and intransmissible by act inter vivos or mortis causes 5. Imprescriptible TITLE XIII USE OF SURNAMES 364. Legitimate and legitimated children shall principally use the surname of the father. The SC ruled that the worked ―principally‖ used in Art. 364 is not equivalent to ―exclusively‖ so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of the mother to which it is equally entitled 365. An adopted child shall bear the surname of the adopter.
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366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. 367. Natural children by legal fiction shall principally employ the surname of the father. 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. 370. A married woman may use: 1. Her maiden first name and surname and add her husband's surname, or 2. Her maiden first name and her husband's surname or 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs." Art. 370 is directory and permissive in character because when a woman gets married, she does not change her name but only her civil status The use of surname is a fundamental right Four alternatives in the use of name of a married woman: (Corazon Cojuangco married to Benigno Aquino, Jr.) 1. Corazon Cojuangco 2. Corazon Cojuangco-Aquino 3. Corazon Aquino 4. Mrs. Benigno Aquino, Jr. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: 1. The court decrees otherwise, or 2. She or the former husband is married again to another person. Forms of name of the women when her marriage is annulled: (Maria Cruz-Santos’ married to Juan Santos) 1. If she is guilty—Maria Cruz RA Salanga 1-A
2. If she is innocent—Maria Cruz or Maria Cruz-Santos 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Godfather’s name is Juan Santos, so, the godson’s name should have an additional name, Juan Pedro Santos 375. In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: 1. Add a middle name or the mother's surname, or 2. Add the Roman Numerals II, III, and so on. Only the son can use the word ―junior‖ If Juan Santos names his son after his father, Roberto Santos, such son shall be named Roberto Santos II 376. No person can change his name or surname without judicial authority. Repealed by RA 9048, otherwise known as ―An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical Or Typographical Error In An Entry And/Or Change Of First Name Or Nickname In The Civil Registrar Without Need Of Judicial Order. Amending For This Purpose Articles 376 And 412 Of The Civil Code Of The Philippines.‖ Sec. 4. Grounds for Change of First Name or Nickname. –the petition for change of first name or nickname may be allowed in any of the following cases: o The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce
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o The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first names or nicknames in the community o The change will avoid confusion A change of name is a privilege and not a matter of right where the petitioner must show proper or reasonable cause or any compelling reason which may justify such change A change of surname is a matter of judicial discretion which must be exercised in the light of the reasons adduced and the consequences that will likely follow Proper and reasonable causes or compelling reasons for change of surname: 1. A ridiculous name, a name tainted with dishonor, or a name extremely difficult to write or pronounce 2. A change of civil status 3. A need to avoid confusion 4. A sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and business life, in the absence of prejudice to the State or any individual A change of name does not alter family relations, rights or duties, legal capacity, civil status or citizenship Publication of the petition for change of name is essential for the court to acquire jurisdiction 377. Usurpation of a name and surname may be the subject of an action for damages and other relief. Usurpation of a name o Implies some injury to the interests of the owner of the name o There is a possibility of confusion between the owner and the usurper o Exists when a person designates himself by another name Elements of usurpation of a name: 1. There is an actual use of another’s name 2. The use is unauthorized 3. The use of another’s name is to designate personality or identify a person 378. The unauthorized or unlawful use of another person's surname gives a right of action to the latter. RA Salanga 1-A
379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped. 380. Except as provided in the preceding article, no person shall use different names and surnames. TITLE XIV ABSENCE Chapter 1 PROVISIONAL MEASURES IN CASE OF ABSENCE 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. ―or if the spouse present is a minor‖ has been repealed by RA 6809 which lowered the emancipation age to 18 Chapter 2 DECLARATION OF ABSENCE 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared.
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385. The following may ask for the declaration of absence: 1. The spouse present; This can be a source for an involuntary judicial separation of property, therefore, a basis for the termination of absolute community property or conjugal partnership of grains 2. The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who may succeed by the law of intestacy; 4. Those who may have over the property of the absentee some right subordinated to the condition of his death. 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. Chapter 3 ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE 387. An administrator of the absentee's property shall be appointed in accordance with Article 383. 388. The wife who is appointed as an administratrix of the husband's property cannot alienate or encumber the husband's property, or that of the conjugal partnership, without judicial authority. While the provision refers only to the wife, a husband likewise is prohibited from alienating the properties of the wife without her consent under the Family Code 389. The administration shall cease in any of the following cases: 1. When the absentee appears personally or by means of an agent; 2. When the death of the absentee is proved and his testate or intestate heirs appear; If the person dies without a will, intestate proceedings will be instituted where a new administrator of his or her estate shall be appointed 3. When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. RA Salanga 1-A
Chapter 4 PRESUMPTION OF DEATH 390. 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. Absence from his domicile for the amount of years specified where his existence is doubtful and may be presumed dead 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. Except for the purpose of remarriage under Art. 41 of the Family Code, there is no need for filing a case to declare that one is presumptively dead 391. 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. 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. Chapter 5 EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE 393. Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right.
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If a person is known to be dead and there is a controversy as to the validity of a transaction allegedly entered into by him, the person claiming validity must prove that , at the time it was entered into, the person who entered the contract or incurred the obligation was alive If some right exists in favor of a deceased and such right is sought to be enforced, the individual seeking to enforce such right must prove that the right was vested in favor of the deceased while the latter was still living
394. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. The disposition of the inheritance of an absentee shall benefit either his or her co-heirs or his or her own heirs, assigns or representatives Example: A and B are brothers. A was declared an absentee. Their father died leaving P100k but without a last will. B will get P50k, while A will not get anything being an absentee but since he has a son, A’s son will inherit the P50k originally for A by right of representation 395. The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. This right to claim the inheritance by the absentee is also given to the absentee’s representatives or successors. However, the absentee, his or her representatives or successors must file the petition within the prescriptive period provided by law 396. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. RA Salanga 1-A
TITLE XVI CIVIL REGISTRY 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. 408. The following shall be entered in the civil register: 1. births; 2. marriages; 3. deaths; 4. legal separations; 5. annulments of marriage; 6. judgments declaring marriages void from the beginning; 7. legitimations; 8. adoptions; 9. acknowledgments of natural children; 10. naturalization; 11. loss, or recovery of citizenship; 12. civil interdiction; 13. judicial determination of filiation; 14. voluntary emancipation of a minor; and 15. changes of name. 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. Contents of birth records, including birth certificate, are confidential and cannot be revealed except when obtained by those interested therein, namely: 1. The person himself, or any person authorized by him
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2. His or her spouse, parent or parents, direct descendants, or the guardian or institution legally in charge of him or her if he or she is a minor 3. The court or proper public official whenever absolutely necessary in administrative, judicial or other official proceedings to determine the identity of the child’s parents or other circumstances surrounding his birth 4. In case of the person’s death, the nearest of kin 411. Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. 412. No entry in a civil register shall be changed or corrected, without a judicial order. Repealed by RA 9048 where there is no need of a judicial order for changing a name because of clerical or typographical errors or change in the name or nickname of a person, but all other changes need to pass through a judicial proceeding 413. All other matters pertaining to the registration of civil status shall be governed by special laws. Act Numbered 3753, otherwise known as the Civil Registry Law, provides for the registration of documents evidencing acquisition or termination of a particular civil status such as legitimation, adoption, change of name, marriage, termination of such marriage and others.
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