CIVIL LAW PERSONS & FAMILY RELATIONS

EFFECT AND APPLICATION OF LAWS No provision as to its effectivity

It takes effect 15 days following its
The Civil Code took effect on publication.
Coverage (PLAC3E)
August 30, 1950. 1. Presidential Decrees;
2. Laws which refer to all statutes,
EFFECTIVITY OF including local and private laws;
3. Administrative Rules and Regulations
where purpose is to
LAWS (ART.2) enforce/implement existing law
pursuant to a valid delegation;
4. Charter of a City;
General Rule: Laws take effect 5. Circulars issued by the Monetary
after 15 days following the Board where purpose is not merely to
completion of its publication in interpret but to fill in the details of the
the Official Gazette or in a Central Bank Act;
newspaper of general circulation 6. Circulars and Regulations which
(EO No. 200). prescribe a penalty for its violation
(People vs. Que Po Lay, G.R. No. L
The law shall take effect on the 6791, March 29, 1954);
16th day because in counting 7. Executive Orders (Tañada vs.
the period, the first day is Tuvera G.R. No. L 63915, December
excluded and the last day 29, 1986).
included (Art. 13, NCC).
Publication not Required (I – L)
No one shall be charged with 1. Interpretative regulations and those
notice of the statute’s provision internal in nature, regulating only the
until publication is completed personnel of the administrative agency.
and the 15 day period has expired. 2. Letters of Instructions issued by administrative superiors on
rules/guidelines to be followed by subordinates in the
Exception: Unless otherwise provided by the law (EO No. performance of their duties (Tañada vs. Tuvera, ibid).
200).
Date of effectivity of Municipal Ordinances is NOT covered by
The exception refers to the “15-day period” only and not the this rule but by the Local Government Code (Tañada vs.
requirement of publication. Publication is indispensable, Tuvera, supra).
absence of which will not render the law effective (Tañada v.
Tuvera G.R. No. L-63915, December 29, 1986). IGNORANCE OF THE LAW
Rules on Period Provided by Statute EXCUSES NO ONE (ART.3)

Shorter/longer period than the 15-day Conclusive Presumption

Such period as provided in the statute shall prevail. Every person is presumed to know the law even if they have
no actual knowledge of the law. It applies only to mandatory
Takes effect immediately and prohibitory laws.
It shall take effect immediately after publication with the 15-
day period being dispensed with (Tañada vs. Tuvera G.R. Does not apply to foreign laws because there is no judicial
No. L-63915, December 29, 1986). notice of such foreign laws; it must be proved like any other
matter of fact (Ching Huat vs. Co Heong L 1211, January 30,
1947).

EXECUTIVE COMMITTEE PHILIP DIMAPILIS vice chairperson for GRACE MANALO sales and lease, LAUREN
IAN MICHEL GEONANGA overall logistics GAIL DIVINO partnership, agency and
chairperson, JOSE ANGELO DAVID SUBJECT COMMITTEE trusts, MABEL BUTED credit transactions,
chairperson for academics, RUTH ABIGAIL JHOY PALLONES subject chair, MICAELA JULIUS CEASAR BALBUENA torts and
ACERO chairperson for hotel operations, KRISTINA GALVEZ assistant subject chair, PIA damages, KATHLEEN VALERIO land titles
ALBERTO RECALDE, JR. vice-chairperson for ISABEL CO edp, FRANCIA ROMLINA and deeds, ILLAC BOHOL conflict of laws
operations, MARIA CARMELA HAUTEA vice- RODRIGUEZ persons and family relations, MEMBERS
chairperson for secretariat, MARK JENNETH CAE CAINDAY property, IRENE Phoebe Alhambra, Diana Bartolome, Jesus
EMMANUEL ABILO vice-chairperson for ALCOBILLA wills and succession, JOSE Paolo Borlagdan, Darniel Bustamante,
finance, RYAN LIGGAYU vice-chairperson AMELITO BELARMINO II and ROWNEYLIN SIA Jamela Jane Caringal, Ma. Criselda Correa,
for electronic data processing, JOMARC obligations and contracts, SAMANTHA Reynaldo Dalisay, Kristine Lara Defensor,
Carel Brendth Dela Cruz, Regine Estillore, Michael Hatol, Maria Emma Gille Mercado, Ong, Rodel James Pulma, Dan Bernard
Anne Clarisse Guzman, Aziel Guzman, Martin Richmond Montevirgen, Astrid Ong, Ruth Ann Sabilala, Jeth Lester Tan, Maria Anne Cyra Uy

PERSONS & FAMILY RELATIONS CIVIL LAW

Note: Mistakes in the application or interpretation of difficult or WAIVER OF RIGHTS (ART.6)

doubtful provisions of law may be the basis of good faith and
has been given the same effect as a mistake of fact, which
may excuse one from the legal consequences of his conduct General Rule: Rights can be waived.
(Art. 526, 2155, NCC).
Requisites for a valid waiver: (CUE–CF)
1. Full capacity to make the waiver.
NON RETROACTIVITY OF LAWS 2.Waiver must be unequivocal
(ART.4) 3.Right must exist at the time of the waiver
4. It must not be contrary to law, public policy, morals or good
General Rule: No retroactive effect. customs or prejudicial to a third person with a right
recognized by law.
Exceptions: (P2UT NICE) 5.When formalities are required, the
1. Procedural or Remedial; same must be complied with.
2. Penal laws favorable to the
accused; Exceptions: (C–PEN)
3.Unless the law otherwise 1.Waiver is contrary to law, public order,
provides; public policy, morals or good
4. Tax laws when expressly customs;
declared or is clearly the 2. If the waiver is prejudicial to a third
legislative intent (Cebu party with a right recognized by law.
Portland Cement vs. Coll. 3. Alleged rights which are really not yet
G.R. No. 18649, February in existence, as in the case of future
27, 1965); inheritance
5. Laws creating new rights 4. If the right is a natural right, such as
(Bona vs. Briones G.R. No. L- right to be supported.
10806, July 6, 1918;
Bustamante et al. vs. Cayas, JUDICIAL DECISIONS
G.R. Nos. L-8562-8563,
December 17, 1955); 6. FORM PART OF
Interpretative Statutes; LEGAL SYSTEM OR
7.Curative or Remedial statutes; DOCTRINE OF STARE
8. Emergency Laws. DECISIS (ART.8)
Exceptions to the Exception: (E–L)
1. Ex Post Facto Laws; Doctrine of Stare Decisis
2. Laws that impair obligation of contracts (Asiatic Petroleum It enjoins adherence to judicial precedents and is based on
vs. Llanes, G.R. No. L-25386, October 20, 1926). the principle that once a question of law has been examined
and decided, it should be deemed settled and closed to
further argument.
ACTS CONTRARY TO LAW
(ART.5) Judicial decisions applying or interpreting laws shall form a
part of the legal system of the Philippines. Stare decisis et
General Rule: Acts contrary to mandatory or prohibitory laws non quieta movere. Let the decision stand and disturb not
are VOID. what is already settled. The doctrine of stare decisis is a
salutary and necessary rule. When the Court lays down a
Exceptions: (PAVE) principle of law applicable to a certain set of facts, it must
1. The law makes the act valid but punishes the violator (ex. adhere to such principle and apply it to all future cases where
Marriage solemnized by a person without legal authority) the facts in issue are substantially the same. Else, the ideal of
2. The law itself authorizes its validity (ex. Lotto, a stable jurisprudential system can never be achieved
sweepstakes) (Saguiguit vs. People, G.R. No. 144054, June 30, 2006).
3. The law makes the act only voidable (ex. Voidable
contracts where consent is vitiated) Legal Effects of Judicial Decisions
4. The law declares the nullity of an act but recognizes its 1.No Publication required;
effects as legally existing (ex. Child born before annulment 2.Binding between parties after the lapse of appeal
of marriage is considered legitimate). period; and
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3.Will bind all future cases with identical facts, until Rule on Periods
reversed by SC. 1. Years - 365 days, unless year is identified;
2.Months - 30 days, unless month identified;
Judicial decisions, although in themselves not laws, assume 3.Days – 24 hours;
the same authority as the statute itself (People vs. Licera 4.Nights – Sunset to sunrise;
G.R. No. L-39990, July 2, 1975). 5.Calendar week – Sunday to Saturday;
6.Week – Count 7 days as indicated, not necessarily Sunday
No publication required, binding on parties after the lapse of to Saturday.
appeal period, and will bind all future cases with identical
facts, until reversed by SC. To count the period, first day is excluded, last day is included.

The application or interpretation Exception: Rule does NOT apply to

placed by the Court upon a law computation of age; each year is
is part of the law as of the date counted based on birth anniversary.
of enactment of said law
because the Supreme Court’s Policy if the Last Day is a Sunday or a
interpretation merely Legal Holiday 1. If the act to be
establishes the performed within the period is
contemporaneous legislative prescribed or allowed (a) by the Rules of
intent that the construed law Court, (b) by an order of the court, or (c)
purports to carry into effect by any other applicable statute, the last
(People v. Licera G.R. No. L- day will automatically be considered the
39990, July 2, 1975). next working day.
2. If the act to be performed within the
HOWEVER, when a doctrine is period arises from a contractual
overruled and a different view is relationship, the act will become due
adopted, the new doctrine despite the fact that the last day falls
should be applied prospectively on a Sunday or Holiday.
and should not prejudice parties
who relied on the old doctrine
(People v. Jabinal G.R. No. L- PROVISION ON
30061, February 27, 1974). CONFLICT OF LAW
(ARTS.14-17)
CUSTOMS
(ARTS.11 AND 12) 1. Penal Laws and laws of public
security (Article 14): Territoriality rule
governs regardless of the nationality
Customs but subject to principles of
Rules of conduct formed by international law and to treaty
repetition of acts uniformly stipulations.
observed as a social rule. They
are legally binding and 2. Laws relating to family rights and
obligatory. duties, or to status, condition and
General Rule: Customs must be proved as a fact according to legal capacity of persons (Article 15):
the rules of evidence. Nationality rule applies regardless of their place of
residence.
Exception: A court may take judicial notice of a custom if
there is already a decision rendered by the same court Exception: Divorce validly obtained abroad by alien spouse
recognizing the custom. capacitating him or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine law. (Article 26
Requisites to Make a Custom an Obligatory Rule: (P2OT) (2) Family Code)
1. Plurality or repetition of acts;
2. Practiced by the great mass of the social group; 3. The 3. Laws on property (real and personal)
community accepts it as a proper way of acting, such that it is
considered as obligatory upon all; 4.Continued practice for a Lex Rei Sitae: The law of the country where the property is
long period of time. situated shall govern property transactions. (Article 16 (1))

Exception: Order and amount of successional rights,

RULE ON PERIODS (ART.13) intrinsic validity of testamentary provisions, and capacity to
 succeed governed by the national law of decedent (Article 16 (2)).

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4. Laws on forms and solemnities

c. Amount of
successional
Lex Loci Celebrationis: Forms and solemnities of
rights;
contracts, wills, and other public instruments (extrinsic
d.Order of
validity) shall be governed by the laws of the country in
succession.
which they are executed (Article 17).

Exceptions:
a.Marriage between Filipinos solemnized abroad shall be Rules on Personal Law: Domiciliary Rule and Nationality
void though valid abroad when void under Philippine Rule Distinguished
laws. (Article 26(1) FC)
b. Intrinsic Validity of Contracts: Validity is determined by Domiciliary Rule Nationality Rule
the following rules:
i. The law stipulated by the parties shall be applied; ii. In Basis for determining Basis for determining
default thereof, and the parties are of the same personal law of an personal law is his
nationality, their national law shall be applied; individual is his DOMICILE CITIZENSHIP
iii. If the parties are not of the same nationalities, the law
of the place of the perfection of the obligation shall
govern its fulfillment;
iv. If the above places are not specified and they cannot 5.Renvoi Doctrine: Occurs when a citizen of another country
be deduced from the nature and circumstances of the dies as a domiciliary of another country. Where the conflict
obligation, then the law of the passive subject shall rules of the forum refer to a foreign law, and the latter
apply. refers it back to the internal law, the law of the forum shall
apply.
Lex Nationalii Lex Rei Sitae Lex Loci
Celebrationis
Transmission Theory: If the foreign law refers it to a third
Art. 15, CC Art. 16, CC Art. 17, CC country, the said country’s law shall govern.

Citizenship is Law of the Law of the 6.Doctrine of Processual Presumption: The foreign law,
the basis for place where place where whenever applicable, should be
determining the the property is the contract proved by the proponent thereof;
personal law situated is the was executed otherwise, such law shall be
applicable basis for is the basis for presumed to be exactly the same as
determining law determining law the law of the forum.
applicable applicable
Rule on Prohibitive Laws
Covers family Covers both Covers only the
rights and real and forms and General Rule: Prohibitive laws
duties, status, personal solemnities concerning persons, their acts or
condition and property (extrinsic validity) property, and laws which have for their
legal capacity object public order, public policy or
of persons. good customs are NOT rendered
ineffective by laws, or judgments
Exception: Exceptions: Exceptions: promulgated or by determinations or
Art. 26, par. 2 (CIAO) 1.Art. 26, par. 1 conventions agreed upon in foreign
of Family Code a.Capacity to of Family Code country. (Art. 17(3))
succeed; 2.Intrinsic
b. Intrinsic validity of Exception: Art. 26, par. 2 Family Code
validity of the contracts (ex. Divorce Law)
will;
 HUMAN RELATIONS Doctrine of Violenti Non Fit Injuria (to which a person
assents is not esteemed in law as injury)
Refers to self-inflicted injuries or to the consent to injury
ABUSE OF RIGHT (Art. 19)
which precludes the recovery of damages by one who has
Elements: (LEP)
knowingly and voluntarily exposed himself to danger, even if
1. Existence of a legal right or duty;
he is not negligent in doing so (Nikko Hotel Manila Garden,
2.Which is exercised in bad faith; et all vs. Roberto Reyes (Amay Bisaya) G.R. No. 154259,
3. For the sole intent of prejudicing or injuring another. Feb. 28, 2005).

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Damnum Absque Injuria (damage without injury) A person cause.

who exercises his legal right does no injury. HOWEVER, it
cannot be said that a person exercises a right when he Application:
unnecessarily prejudices another or offends morals or good 1.When someone acquires or comes into possession of
customs. something, which means delivery or acquisition of things;
AND
When damages result from a person’s exercise of rights, it is 2. Acquisition is undue and at the expense of another, which
damnum absque injuria (ABS-CBN v. Republic Broadcasting means without just or legal ground.
Corp. G.R. No. 128690, January 21, 1999). Accion in Rem Verso and Solutio Indebiti

ACTS CONTRARY TO LAW (Art. 20) Accion In Rem Verso Solutio Indebiti (Art. 2154)
Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the It is not necessary that the Payment was made by
same. payment was made by mistake is an essential
mistake, payment could element to maintain the
ACTS CONTRA BONUS MORES (Art. 21) have been made knowingly action for recovery.
and voluntarily but
Elements: (L-C-I) nevertheless, there would
1. There is a legal act; be recovery of what has
2. But which is contrary to morals, good customs, public order been paid.
or public policy; and,
3. It is done with intent to injure.

Articles 19, 20 and 21 are related Requisites: (JELA)

to one another and under these 1. Enrichment is without just or legal
articles, an act which causes injury ground
to another may be made the basis 2.Defendant has been enriched;
for an award of damages 3. Plaintiff has suffered a loss; and
(Albenson Enterprises Corp. v. 4.He has no other action based on
CA, G.R. No. 88694, January 11, contract, quasi– contract, crime or
1993). quasi–delict.
Articles 19 and 21 refer to
INTENTIONAL acts while Article For a more comprehensive discussion
20 pertains either to WILLFUL or of Articles 19-35, please see
NEGLIGENT acts, which must be discussion thereof under Torts.
contrary to law. (Ibid.)

PREJUDICIAL
PRINCIPLE OF QUESTION
UNJUST (ART.36)
ENRICHMENT (ART.22)
General Rule: If both criminal and civil cases are filed in
Accion in Rem Verso court, the criminal case takes precedence.
It is an action for recovery of what has been paid without just
 Exceptions: Requisites: (Section 7, Rule 111, Rules of Court) a.
1. In case of prejudicial questions, the criminal case is Previously instituted civil action involves an issue similar or
suspended because the issues in the civil case are intimately related to the issue raised in the subsequent
determinative of the outcome of the criminal case. criminal action; an
b. The resolution of such issue determines whether or not
A prejudicial question is that which arises in a case, the the criminal action may proceed.
resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to 2. Independent civil action granted by law (CD-RQ) a. Breach
another tribunal (Yap v. Paras, G.R. No. 101236, January of constitutional and other rights (Art. 32) b.Defamation,
30, 1992). fraud, physical injuries (Art. 33) c. Refusal or failure of city
or municipal police to give protection (Art. 34)

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d.Quasi-delict or culpa-aquiliana (Art.2177)

effects except only in This limits the power of
those specific juridical persons only to
The Civil Code has SUPPLETORY application in matters circumstances where the those that are expressly
governed by special laws. capacity to act is conferred upon them or
restrained those which can be
implied therefrom or
CIVIL PERSONALITY (ART.37) incidental thereto

Civil Personality
It is the aptitude of being the subject, active or passive, of
rights and obligations. Restrictions on capacity to act
The same do not exempt the incapacitated person from
Juridical capacity and Capacity to Act (Paras, E. Civil Code certain obligations as when the latter arise from his acts or
of the Philippines Annotated 15th ed. (2002), p. 236) from property relations such as easements (Art. 38): (MID-
PC)
Juridical Capacity Capacity To Act 1.Minority
Minority does not exempt the minor from certain
Fitness to be the subject Power to do acts with obligations, as when the latter arise from his acts or from
of legal relations (Art. 37) legal effects (Art. 37) property relations. (Art. 38) Thus, he may acquire property
using the capital of his parents, said property to belong to
Passive Active the latter in ownership and usufruct.
2. Insanity or imbecility
Inherent Merely acquired
3. State of being deaf mute
Lost only through death Lost through death and Deaf mute may either be sane or insane.
other causes 4. Prodigality – The state of squandering money or property

Can exist without capacity Cannot exist without

to act juridical capacity

Cannot be limited or Can be restricted,

restricted modified or limited

A person is presumed to have

capacity to act. (Standard Oil Co.
v. Arenas, et al., 14 Phil. 363)

Theories on Capacity to Act

Theory of General Theory of Special
Capacities Capacities

Applies to natural persons Applies to juridical persons

 with a morbid desire to prejudice the heirs of a person NATURAL PERSONS
(Martinez v. Martinez, 1 Phil. 182).
5.Civil interdiction
Beginning of personality
Modifications/ limitations on capacity to act (Art. 39): (FI3T
P2A3D) General rule: Birth determines personality (actual
1. Family Relations; personality) (Art. 40).
2. Insanity;
3. Imbecility; Exception: The law considers the conceived child as born for
4. Insolvency; all purposes favorable to it if born alive. Therefore, the child
5. Trusteeship; has a presumptive personality, which has two
characteristics:
6. Penalty;
7. Prodigality; 1. Limited and
2. Provisional or conditional (Quimiguing vs. Icao, G.R. No.
8.Age;
L-26795, July 31, 1970)
9.Alienage;
10. Absence; and
Note: The concept of provisional personality CANNOT be
11. State of being deaf-mute.
invoked to obtain damages for and in behalf of an aborted
child (Geluz vs. CA, G.R. No. L-16439, July 20, 1961).
Note: The consequences of the restrictions and
modifications on a person’s capacity to act are provided by
the Civil Code, other codes, special laws and the Rules of A conceived child is already entitled to support from its
Court. progenitors (Quimiguing vs. Icao, G.R. No. L-26795, July 31,
1970) and can be acknowledged even before it is born (De
Jesus v. Syquia, 58 Phil. 866).

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When is a child considered born: (Art. 41) The legitimacy or

illegitimacy of a
General Rule: For civil purposes, the fetus is considered child attaches upon
born if it is alive at the time it is completely delivered from conception
the mother’s womb. (Continental Steel
Manufacturing
Exception: If the fetus had an intra-uterine life of less than 7 Corp. v. Hon.
months, it is NOT deemed born if it dies within 24 hours after Accredited
its complete delivery from the maternal womb (Article 41). Voluntary
Arbitrator, et al.,
Illustration: G.R. No. 182836,
October 13, 2009).
Intra-uterine life When considered born
How civil
7 months or more Alive upon complete personality is
delivery extinguished
- regardless whether Civil personality is extinguished by death. The effect of death
the child dies within 24 upon the rights and obligations of the deceased is
hours or not determined by law, by contract and by will (Art. 42).
Less than 7 months Alive upon complete
Presumption of survivorship
delivery AND at least
In case of doubt as to which of two or more persons called
24 hours thereafter
to succeed each other died first:
1.Whoever alleges the death of one prior to the other shall
prove the same
2. In the absence of proof, the presumption is that the
parties died at the same time and there shall be no
transmission of rights from one another (Art. 43)
Note: Article 43 applies when the case involves two or more Who are juridical persons:
persons who are called to succeed each other. But if the 1. State and its political subdivisions
parties are not called to succeed each other, Rule 131, Sec. 2.Corporations for public interest - governed either by the
3 (jj) of the Rules of Court applies. Both are to be applied Corporation Code or their special charters passed by the
only in the absence of facts. (Paras, p. 248) legislature.

Rule 131 Section 3 (jj). That except for purposes of Personality begins as soon as they have been constituted
succession, when two persons perish in the same calamity, according to law
such as wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances 3.Corporations, partnerships and associations for private
from which it can be inferred, the survivorship is determined interest
from the probabilities resulting
from the strength and the age of the sexes, according to the Corporations are governed by the Corporation Code.
following rules: Their personality exist from the moment a certificate of
1. If both were under the age of fifteen years, the older is incorporation is granted to it from the Securities and
deemed to have survived; Exchange Commission (Sec. 19, Corporation Code)
2. If both were above the age sixty, the younger is deemed
to have survived; By a contract of partnership, two or more persons bind
3. If one is under fifteen and the other above sixty, the themselves to contribute money, property or industry to a
former is deemed to have survived; common fund, with the intention of dividing the profits
4. If both be over fifteen and under sixty, and the sex be among themselves; or for the exercise of profession (Art.
different, the male is deemed to have survived, if the sex 1767, NCC). Partnerships are governed by the contract
be the same, the older; between partners and the provisions of Art. 1767 to 1867
5. If one be under fifteen or over sixty, and the other of the Civil Code.
between those ages, the latter is deemed to have
survived.
CITIZENSHIP AND DOMICILE
JURIDICAL PERSONS (Art. 44 to 46)
A juridical person is a being of legal existence susceptible of Citizenship
rights and obligations, or of being the subject of juridical It is the membership in a political community which is more
relations (Roldan vs. Philippine Veterans Board G.R. No. L- or less permanent in nature. Article IV of 1987 Philippine
11973, June 30, 1959) Constitution now governs the rule on citizenship.

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Modes of acquiring citizenship

without intention of with intention to remain
1. Jus sanguinis – by blood, wherever he may be born
remaining will constitute for an unlimited time
2. Jus soli – by place of birth
domicile
3.Naturalization – artificial means (judicial or administrative)
by which a state adopts an alien and gives him imprint
and endowment of a citizen of that country
Elements of
Domicile domicile
For the exercise of civil rights and the fulfillment of civil 1. Physical
obligations, the domicile of natural persons is the place of presence in a fixed
their habitual residence (Art. 50 NCC).
place
Residence Domicile 2. Intention to
remain
Indicates a place of Denotes a fixed permanently in
abode, whether permanent residence, said place
permanent or temporary which when absent, one (animus
has the intention of manendi)
returning (Romualdez-
Marcos vs.
There can be several There can only be one COMELEC, G.R. No. 119976 September 18, 1995).
places of residence place of domicile
Kinds of domicile (Romualdez-Marcos vs. COMELEC, G.R.
No length of residence It is residence coupled No. 119976 September 18, 1995)
1.Domicile of origin – Given by law to a person at birth preservation of which the State has the strongest interest;
2.Domicile of choice – That which is voluntarily chosen by a the public policy here involved is of the most fundamental
sui juris – as his more or less permanent home; that to kind. In Article II, Section 12 of the Constitution, there is set
which, whenever he is absent, he intends to return. forth the following basic state policy: 'The State recognizes
(Uytengsu v. Republic, 50 O.G. 4781, Oct. 1954) the sanctity of family life and shall protect and strengthen
the family as a basic
Note: Three basic rules on domicile of choice:
(Ugdoracion vs. COMELEC G.R. No. 179851, April 18,
2008):
a. A man must have a residence or domicile somewhere;
b.Domicile, once established, remains until a new one is
validly acquired; and
c. A man can have but one residence or domicile at any
given time.
d. Every sui generis may change his domicile.

3.Domicile by operation of law – attributes to a person a

domicile independent of his own intention or actual
residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or the
relation of a parent and a child

Requirements for the acquisition of new domicile

(Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408,
415)
1. Bodily presence in a new locality – actual removal or
actual change of domicile
2. Intention to remain therein (animus manendi) 3. Intention
to abandon the old domicile (animus non revertendi)

Rules for determining the domicile of juridical persons

(Article 51):
A.Get the domicile provided for in the law creating or
recognizing them or in their articles of agreement. B.If not
provided for, get the place:
1.Where their legal representation is established.
2.Or where they exercise their principal functions.

If the corporation has head office and with branches, the

domicile is where the head office is located. (Paras, p. 366)

FAMILY CODE

The Family Code of the Philippines took effect on August 3,

1988.

MARRIAGE

Marriage
A special contract of permanent union between a man and a
woman entered into in accordance with law for the
establishment of conjugal and family life.

The Family Code emphasizes the permanent nature of

marriage, hailing it as the foundation of the family. It is this
inviolability which is central to our traditional and religious
concepts of morality and provides the very bedrock on
which our society finds stability (Malcampo Sin vs. Sin, G.R.
No. 137590 March 26, 2001).

In Republic v. Nolasco (G.R. No. 94053 March 17, 1993) ,

the Supreme Court stressed the strong need to protect “…
the basic social institutions of marriage and the family in the
 8
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CIVIL LAW PERSONS & FAMILY RELATIONS

autonomous social institution. The same sentiment has been Exceptions: To be actionable, there must be another act
expressed in the Family Code of the Philippines in Article independent of the breach of promise to marry which
149: 'The family, being the foundation of the nation, is a basic gives rise to liability as where there was financial damage,
social institution which public policy cherishes and protects. social humiliation, and moral seduction.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall 1.Mere breach of promise to marry is not an actionable
be recognized or given effect. wrong; but to formally set a wedding and go through all the
preparations and publicity, only to walk out of it when the
Marriage and ordinary contract distinguished matrimony is about to be solemnized, is quite different. This
is palpably and unjustifiably contrary to good customs for
Marriage Ordinary Contract which defendant must be held answerable in damages
pursuant to Art. 21 NCC. (Wassmer vs. Velez, No. L-
Special contract Merely a contract 20089, December 26, 1964)
2.Where a man’s promise to marry was the proximate cause
Social institution Merely a contract of giving herself unto him in sexual congress and there is
proof he had no intention of marrying her, the promise
Governed by law on Governed by law on
being a deceptive device, damages may be awarded
marriage contracts
pursuant to Art. 21 NCC because of the fraud and deceit
behind it and the willful injury to her honor and reputation
Not subject to stipulations Generally subject to
except in property
(Baksh vs. CA, G.R. No. 97336, February 19, 1993).
stipulations
relations
ESSENTIAL REQUISITES OF
Legal capacity is required Minors may contract MARRIAGE: (LC) 1.Legal capacity of
through their parents or the contracting parties, who must be a
guardians or in some male and a female
cases by themselves a. Eighteen years old or above
b.Not under any impediment
Contracting parties must Two or more parties mentioned in Arts. 37 and 38 (Art.
only be two persons – regardless of gender 5)
one is a female and the 2.Consent freely given in the presence
other is a male of a solemnizing officer (Art. 2)
No particular form required
Permanent union Parties can fix a period Capable of intelligently understanding
for its efficacy to be the nature and consequences of the
ineffective after a few act
years
FORMAL REQUISITES OF
Breach of obligations of Breach of ordinary MARRIAGE: (ALM)
husband and wife does contracts gives rise to an 1.Authority of the solemnizing
not give rise to an action action for damages officer
for damages. The law 2. Valid Marriage License
provides penal and civil 3.Marriage ceremony where the contracting parties appear
sanctions such as before the solemnizing officer, with their personal
prosecution for adultery declaration that they take each other as husband and wife
or concubinage and in the presence of not less than two witnesses of legal age
proceedings for legal (Art. 3)
separation.
Effects of noncompliance with the requisites
(Art. 4)
Can be dissolved only by Can be dissolved by
death or annulment, not mutual agreement and by Essential Formal
by mutual agreement other legal causes
Absence Void ab initio

(ex: expired marriage license; one of

Breach of promise to marry the parties is below 18 years old at
the time of the marriage)
General Rule: It is not by itself an actionable wrong
(Hermosisima vs. CA L-14628, September 30, 1960). One Defect Voidable Voidable
cannot seek specific performance to compel marriage.
(ex: consent
obtained
 9
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PERSONS & FAMILY RELATIONS CIVIL LAW
be civilly, criminally, and administratively liable.
Marriages by proxy
through force 1. If it was solemnized in the Philippines, the marriage is
and VOID because physical appearance is required under Art.
intimidation; 6.
Art. 45, 46) 2. If performed abroad, whether between Filipinos or
foreigners or mixed, the controlling article is Art. 26 of the
Irregularity Valid Valid, but person Family Code. (Paras, p. 377-378)
responsible for
irregularity shall Authority of solemnizing officer
be civilly and It is not the presence or absence of the solemnizing officer
criminally liable which constitutes the formal requirement but the absence or
presence of the solemnizing officer’s authority at the time of
Except: when the solemnization of the marriage
parties over 18 (Arañes vs. Occiano A.M. No. MTJ-02-1390 April 11, 2002;
but below 21 Navarro vs. Domagtoy A.M. No. MTJ-96- 1088. July 19,
failed to obtain 1996).
parental consent,
in which case the General Rule: The solemnizing officer is not duty bound to
marriage is investigate whether the marriage
voidable (Art. license was regularly issued.
14)
Must only determine if it was issued
(example of by a competent official ( Alcantara
irregularity: no vs. Alcantara G.R. No. 167746
witnesses of August 28, 2007)
legal age, or
only one witness If so, it may be presumed that the
of legal age, or said official fulfilled the duty to
witnesses but ascertain whether the contracting
not of legal age parties fulfilled the requirements of
during the law (People vs. Janssen G.R. No. L
marriage 31763 December 27, 1929).
ceremony (Sta.
Maria, M., Exception: In cases of marriage in
Persons and articulo mortis, in remote places, and
Family between a man and a woman living
Relations, 2010, together as husband and wife for at
p. 127); least 5 years without legal
issuance of impediment to marry each other
marriage license
despite absence Solemnizing officer must take steps to ascertain the ages,
of publication relationship, and qualifications of contracting parties (Art. 29)
prior to the
completion of Persons authorized to Requisites for the
the 10-day solemnize marriages exercise of their
period for (Art. 7) (PMJ-C³) authority
publication
(Alcantara vs. Priest, rabbi, imam or a. Duly authorized by his
Alcantara G.R. ministers of any church church or religious
No. 167746 or religious sect sect;
August 28, 2007)
b. Registered with the
office of the civil
registrar general;
Marriage ceremony (Art. 6)
No prescribed form or religious rite for solemnization of c. Acting within the limits
marriage is required. of the written authority
granted; and
The absence of two witnesses of legal age is merely an
irregularity but the party responsible for the irregularity shall
10
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 CIVIL LAW PERSONS & FAMILY RELATIONS

d. At least one of the

parties belongs to the commissioned officer;
solemnizing officer’s
church or religious Note: Rank should start
sect from 2nd lieutenant,
ensign and above
Municipal and city The term “mayor” (Webster Dictionary,
mayors (Sec. 444, 445 includes a vice-mayor 1991 ed.)
Local Government who is the “Acting
Code, January 1, Mayor” or who is merely c. A chaplain must be
1992) acting as a Mayor assigned to such
(People vs. Bustamante, unit;
citing Laxamana vs.
Baltazar G.R. No. L d. Such chaplain must
11598 January 27, 1959) be absent at the time
of the marriage;
Incumbent members of Note: Court of Tax
the judiciary within the Appeals, Sandiganbayan,
e. Marriage must be one
court’s jurisdiction Court of Appeals and
Supreme Court justices in articulo mortis;
have jurisdiction over the and
whole Philippine territory
(Sta. Maria, M., Persons f. The contracting
and Family Relations, parties, whether
2010,, p. 135) members of the
armed forces or
Ship captains or air a. The marriage must be civilians, must be
plane chiefs in articulo mortis within the zone of
(one of the parties is military operation.
at the point of
death); Consul generals, a. Marriage must only be
consuls or vice– between Filipino
b. The marriage must be consuls of the citizens;
between passengers Republic of the
or crew members; Philippines abroad (Art. b. Has authority to
10) solemnize marriage
c. The ship must be at only abroad;
sea or the plane
must be in flight; c. Acts not only as
including stopovers solemnizer of a
at ports of call. marriage but also
perform the duties of
Assistant pilot has no a local civil registrar
authority to solemnize a such as the issuance
marriage even if airplane of a marriage
chief dies during the trip license;

Commander of a a. He or she must be a b. The solemnities

military unit, in the military commander established by
absence of chaplain of a unit; Philippine laws shall
(Art. 32) be observed in their
Note: Unit refers to a execution (Art. 17,
battalion under the NCC).
present table of
organization and not a
mere company (Minutes
of the Civil Code
Revision Committee
held on May 23, 1983,
p. 4)

b. He or she must be a
 Authorized venues of marriage (Art. 8)
General Rule: Must be solemnized publicly, and not
elsewhere, in the
1.Chambers of the judge or in open court
2.Church, chapel or temple
3.Office of consul–general, consul or vice–consul

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Exceptions: contracting parties have not made use of it (Art. 20)

1.Marriage in articulo mortis;
2.Marriage in remote places; Exceptions to the marriage license requirement (MARCO):
3.Marriage at a house or place designated by the parties in a 1. Among Muslims or members of ethnic cultural communities
sworn statement to that effect, with the written request of solemnized in accordance with their customs, rites and
both parties to the solemnizing officer (Sta. Maria, M., practices (Art. 33)
Persons and Family Relations, 2010, p. 140)
Exception only applies to Muslims and members of the
Note: This provision is only directory and the requirement that ethnic groups of the Cordillera Autonomous Region
the marriage be solemnized in a particular or a public place is because they have a separate law—Code of Muslim
not an essential requisite. (Sta. Maria, M., Persons and Personal Laws of the Philippines and Organic Act of the
Family Relations, 2010, p. 140) Cordillera Autonomous Region (RA 6766). Other ethnic
groups are still governed by the Family Code (Sta. Maria,
Valid marriage license (Art. 9) M., Persons and Family Relations, 2010,
A formal requisite of marriage p. 187).

Issued by the local civil registrar of the city or municipality 2. In articulo mortis (Art. 27)
where EITHER contracting party habitually resides. Marriage remains valid even if spouse at the point of death
subsequently survives (Art. 27)
The license is valid in any part of the Philippines for 120 days 3. In remote place
from date of issue, which is the date when the local civil Residence of either party is so located that there is no
registrar signed the license. means of transportation to enable them to personally
appear before the local civil registrar (Art. 28)
Automatically cancelled at the expiration of the period if 4.Marriage of people who have previously cohabited for at
 least 5 years /ratification by cohabitation (Art. 34) marriage contract to validate the union (ex: if both
Requisites: cohabited at the age of 17, counting starts when parties
a. The man and woman must have been living as husband reach 18 years).
and wife for at least five years before the marriage;
b. The parties must have no legal impediment to marry This 5–year period should be the years immediately
each other; before the day of the marriage and it should be a period
c. The fact of absence of legal impediment between the of cohabitation characterized by EXCLUSIVITY –
parties must be present at the time of marriage; d. The meaning no legal impediment was present at any time
parties must execute an affidavit before any within the 5 years and CONTINUITY – that is unbroken
person authorized by law to administer oaths stating that (Republic v. Dayot, G.R. No. 175581, March 8, 2008).
they have lived together for at least five years (and are
without legal impediment to marry each other); and 5. Solemnized outside the Phil. where no marriage license is
e. The solemnizing officer must execute a sworn statement required by the country where they were solemnized (Art.
that he had ascertained the qualifications of the parties 26 par. 1)
and that he had found no legal impediment to their
marriage (Manzano v. Sanchez G.R. No. MTJ–00–1329, Solemnizing of a marriage involving a foreign contracting
March 08, 2001). party in the Philippines (Art. 21) When either or both parties
are foreign citizens, they must first submit a CERTIFICATE
The 5–year OF LEGAL CAPACITY TO MARRY issued by their
period should diplomatic/consular officials before marriage license can be
be computed obtained.
on the basis
of Ratio: A certificate of legal capacity is necessary because the
cohabitation Philippines, insofar as marriage is concerned, adheres to the
as husband national law of the contracting parties with respect to their
and wife legal capacity to contract marriage. Without this certification
where the of legal capacity, the local civil registrar will not issue the
only missing marriage license (Sta. Maria, M., Persons and Family
factor is the Relations, 2010, p. 151).

12 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

CIVIL LAW PERSONS & FAMILY RELATIONS

Exception: Marriage of both foreign citizens will be Mere cohabitation is not direct proof of marriage, and it must
solemnized by their country’s consul-general assigned in the be proved by proper documents or by oral testimony in case
Philippines, if their country’s law allows the same they have been lost (Sta. Maria, M., Persons and Family
Relations, 2010, p.158).
Stateless persons or refugees from other countries shall
submit an affidavit stating circumstances to show capacity to Once the presumption of marriage arises, other evidence
contract marriage before a marriage license can be obtained may be presented in support thereof. The evidence need not
(Art. 21 par. 2). necessarily or directly establish the marriage but must at least
be enough to strengthen the presumption of marriage. Every
Marriage certificate (Art. 22) intendment of law leans toward legitimizing marriage
Best documentary evidence of the existence of a marriage (Delgado vda de De la Rosa v. Heirs of Marciana vda de
(Tenebro vs. CA G.R. No. 150758 February 18, 2004). Damian, GR No 155733, January 27, 2006).

A mere photostat copy of a marriage certificate is a worthless The Supreme Court rules in (Trinidad vs. CA, G.R. No.
piece of paper (Vda. De Chua vs. CA, G.R. No. 116835, 118904. April 20, 1998) that when the question of whether a
March 5, 1998) but if such photostat copy emanated from the marriage has been contracted arises in litigation, said
Office of the Local Civil Registrar and duly certified by the marriage may be proven by relevant evidence. To prove the
local civil registrar as an authentic copy of the records in his fact of marriage, the following would constitute competent
office, such certified photostat copy is admissible as evidence evidence: the testimony of a witness to the matrimony, the
(Sta. Maria, M., Persons and Family Relations, 2010, p. 154). couple’s public and open cohabitation as husband and wife
after the alleged wedlock, the birth and the baptismal
Testimony of one of the parties to the marriage, witnesses or certificates of
solemnizing officer is admissible to prove the fact of marriage children born during such union, and the mention of such
(Balogbog v. CA, G.R. No. 83598, March 7, 1997). nuptial in subsequent documents.
Marriage license Marriage
It may also be proved by parol evidence (Sta. Maria, M., certificate/marriage
Persons and Family Relations, 2010, p.156).
 contract MARRIAGE CELEBRATED
OUTSIDE THE PHILIPPINES
Formal requisite; Not essential for the
validity of the marriage;
(ART.26)

Absence renders Best evidence to prove VALIDITY OF MARRIAGE

marriage void ab initio existence (not validity) General Rule: Where one or both parties in the marriage are
except in the cases of marriage citizens of the Philippines, the foreign marriage is valid in this
provided under Art. 27 country if solemnized in accordance with the laws of the
to 34 country of celebration (Art. 26).
Issued by the local civil Issued by the person
In case a Filipino contracts a foreign marriage which is null
registrar (Art. 19) solemnizing the
and void in the place where it was solemnized, the same shall
marriage (Art. 23)
also be null and void in the Philippines even if such was valid
Issued before the Issued after the if celebrated under Philippine laws.
solemnization of the solemnization of the
marriage marriage If both are foreigners, lex loci celebrationis applies.

Exceptions: Foreign marriages shall not be recognized in the

Philippines if: (B2MA-PIP)
Note: Marriage 1.Contracted by a national who is below 18 years of age (Art.
certificate is NOT 35(1))
an essential
requisite of Note: This exception should be construed as referring to a
marriage and situation where the marriage abroad is between a Filipino
should NOT be and a Filipina and not between a Filipino or Filipina and an
confused with a alien married in the alien’s state where he or she (the
marriage license. alien), though below 18 years of age, is capacitated to
marry (Sta. Maria, M., Persons and

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Family Relations, 2010, p. 165). validly remarry in the Philippines if the marriage was
solemnized BEFORE the Family Code took effect. It was
2.Bigamous or polygamous except as provided in Art. 41, FC noted that there is no need to retroactively apply Art. 26
(Art. 35(4)) paragraph 2 of the Family Code, since there is sufficient
3.Contracted through mistake of one party as to the identity of jurisprudential basis allowing the Court to rule in the
the other (Art. 35(5)) affirmative.
4.Contracted following the annulment or declaration of nullity
of a previous marriage but before partition (Art.35(6)) There must be a showing that the divorce decree gave the
5. Void due to psychological incapacity (Art. 36) 6. foreigner spouse legal capacity to remarry because in
Incestuous (Art.37) some jurisdictions, remarriage may be limited or prohibited
7. Void for reasons of public policy (Art. 38) (Bayot v. Bayot, G.R. No. 155635 & 163979,
November 7, 2008).
Note: The existence of the pertinent provision of the foreign
marriage law must be shown to prove a foreign marriage. The legislative intent is for the benefit of the Filipino
spouse, by clarifying his or her marital status, settling the
It is well-settled in our jurisdiction that our courts cannot take doubts created by the divorce decree. Essentially, the
judicial notice of foreign laws. Like any other facts, they must second paragraph of Article 26 of the Family Code
be alleged and proved. Australian marital laws are not among provided the Filipino spouse a substantive right to have his
those matters that judges are supposed to know by reason of or her marriage to the alien spouse considered as
their judicial function. The power of judicial notice must be dissolved, capacitating him or her to remarry (Corpus v.
exercised with caution, and every reasonable doubt upon the Sto. Tomas, G.R. No. 186571, August 11, 2010).
subject should be resolved in the negative (Garcia vs. Recio,
G.R. No. 138322 October 2, 2001). VOID MARRIAGES (ART.35)
DIVORCE
General rule: Divorce is not allowed in the Philippines KINDS OF VOID MARRIAGES (LAPIS):
I. Those contrary to law or public policy
Exceptions: II.Due to absence of essential or formal requisites III.
1. Between 2 aliens – if valid in their national laws even if Due to psychological incapacity
marriage was celebrated in the Philippines IV. Incestuous marriages
2. Between a Filipino and an alien – if (a) there is a valid V.Void subsequent marriages
marriage celebrated between a Filipino citizen and a
foreigner; and (b) a valid divorce according to the national Note: As a general rule, good faith and bad faith are
law of the foreigner is obtained abroad by the alien spouse immaterial in determining whether or not a marriage is null
capacitating him or her to remarry (Art. 26[2])). and void. Nonetheless, the party who knew that he or she
was entering a void marriage before its solemnization may be
The Filipino spouse should likewise be allowed to remarry held liable for damages by the other contracting party under
as if he or she was a foreigner at the time of the Art,19, 20 and 21 of the Civil Code.
solemnization of the marriage. To rule otherwise would
sanction absurdity and injustice (Republic v. Orbecido III
G.R. No. 154380 October 5, 2005).

Party pleading it must prove divorce as a fact and

demonstrate its conformity to the foreign law allowing it,
which must be proved as courts cannot take judicial notice
of foreign laws. If a valid divorce decree has been obtained
abroad, there is no more need to file an action to nullify the
marriage. The plaintiff has no more personality to sue since
the marriage bond has already
been severed (Felicitas Amor-Catalan v. CA, G.R. No.
167109, February 6, 2007).

Article 26(2) applies where parties were Filipino citizens at

the time of the marriage was celebrated, and later on, one
of them becomes naturalized as a foreign citizen and
obtains a divorce decree: the reckoning point is their
citizenship at the time the valid divorce is obtained abroad
by the alien spouse capacitating the latter to remarry (Rep.
v. Obrecido III, G.R. No. 154380, Oct. 5, 2005) .

In Edgar San Luis v. Felicidad Sagalongos (G.R. No.

134029, February 6, 2007), it was held that a Filipino who
had been divorced by his alien spouse abroad may NOT
14 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

Exceptions: absolute nullity of void marriage may be filed solely by the

CIVIL LAW PERSONS & FAMILY RELATIONS husband or the wife. Thus, compulsory or intestate heirs can
question the validity of the marriage of the spouses, not in a
proceeding for declaration of nullity, but upon the death of a
settlement of the estate of the deceased spouse filed in
spouse in a proceeding for the
the regular courts (Enrico v. Heirs of Medinaceli, G.R. No.
1. Art. 35 (2): either of the contracting parties is in good faith
173614, September 28, 2007).
in believing that the solemnizing officer has authority
although he has none in fact
2. Art. 41: person whose spouse disappears for four Declaration of nullity not a prejudicial question The pendency
consecutive years, or two years where there was danger of of the civil action for nullity of marriage does not pose a
death, the present spouse may validly marry again after he prejudicial question in a criminal case for concubinage
or she: (Beltran vs. People, G.R. No. 137567, June 20, 2000). This
a.Has a well-founded belief that his or her spouse is dead; ruling applies in a case for bigamy by analogy since both
crimes presuppose the subsistence of a
b. Procures a judicial
marriage (Bobis v. Bobis, G.R.
declaration of presumptive
No.138509, July 31, 2000).
death; c. At the time of
subsequent marriage
ceremony, is in good faith ATTACKING A VOID MARRIAGE
with the subsequent spouse; General rule: A void marriage can be
otherwise, the subsequent attacked collaterally.
marriage shall be considered
void. Exceptions:
a. Art. 40: a person in a void marriage
In these two cases, it is who wants to remarry must first file a
necessary that both contracting civil case to obtain a judicial
parties be in bad faith in order declaration of nullity of the first
for the marriage to be marriage
considered void.( Sta. Maria, M., b.Obtaining a judicial declaration of
Persons and Family Relations, nullity for purposes other than
2010, p. 195) remarriage (legitimacy, settlement of
estate, criminal case) when the
BAD FAITH AS AFFECTING validity of the marriage is an issue
PROPERTY DISPOSITION c. If a donor desires to revoke a
donation propter nuptias (in
General rule: In a void marriage, consideration of the marriage) given to
the property regime is one of one or both the spouses on the
co-ownership (Art. 147 and ground that the marriage is void (Sta. Maria, M., Persons
148). The law provides that the person in bad faith will forfeit and Family Relations, 2010, p. 196-198).
his or her share in the co-ownership in favour of their
common children. JUDICIAL DECLARATION OF NULLITY (Art. 40)

Exception: Void subsequent marriage due to the failure of a The absolute nullity of a previous marriage may be invoked
party to get a prior judicial declaration of nullity of the for purposes of remarriage on the basis solely of a final
previous void marriage pursuant to Art. 40 of the Family Code judgment declaring such previous marriage void (Art. 40).
in which case Art. 43 par. 2 (instead of Art. 147 or 148) shall
apply (Sta. Maria, M., Persons and Family Relations, 2010, p. Remarriage is not the sole purpose of declaration of nullity of
195-196). a marriage as it can be declared void for other purposes

IMPRESCRIPTIBILITY OF ACTION FOR DECLARATION OF For purposes of remarriage, the only legally acceptable basis
NULLITY for declaring a previous marriage an absolute nullity is a final
judgment declaring such previous marriage void
General Rule: The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe (Art. 39, as Parties to a marriage should not be permitted to judge for
amended by R.A. 8533 approved on February 23, 1998). themselves its nullity, only competent courts having such
authority. Prior to such declaration of nullity, the validity of the
Only the spouses can file petition for declaration of nullity first marriage is beyond question (Landicho vs. Rolova L-
Pursuant to A.M. No. 02-11-10-SC (SC Resolution which 22579, February 23, 1968).
took effect on March 15, 2003), a petition for declaration of
One who enters into a subsequent marriage without first
SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 15
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obtaining such judicial declaration is guilty of bigamy. This 4. Solemnized by any person NOT LEGALLY authorized to
principle applies even if the earlier union is characterized by perform marriages UNLESS one or both of the parties
statute as “void” (Manuel vs. People, G.R. No. 165842, believed in good faith that the solemnizing officer had the
November 29, 2005). legal authority to do so
5.Marriages contracted through mistake of one of the parties
Interestingly, in Lucio Morigo as to the physical identity of the other 6.
v. People, (GR No. 145226, Subsequent marriages that are void under
Feb. 6, 2004), the SC ruled Article 53 of the Family Code
that a judicial declaration of
nullity is NOT NEEDED where General rule: A marriage contracted by
NO MARRIAGE CEREMONY any person during the subsistence of a
at all was performed by a duly previous valid marriage shall be null
authorized solemnizing and void (Gomez v. Lipana, GR. No. L–
officer, as where the parties 23214, June 30, 1970).
merely signed a marriage
contract on their own without Elements of bigamy (Art. 349, RPC):
the presence of the a. The offender has been legally married.
solemnizing officer. b. The marriage has not been legally
dissolved or in case his or her spouse
The requirement for a is absent, the absent spouse could
declaration of absolute nullity not yet be presumed dead according
of a marriage is also for the to the Civil Code.
protection of the spouse who, c. The offender contracts a second or
believing that his or her subsequent marriage.
marriage is illegal and void, d. The second or subsequent marriage
marries again. With the has all the essential requisites for validity.
judicial declaration of the nullity of his or her marriage, the .
person who marries again cannot be charged with bigamy. A Exception: Before the celebration of the subsequent
judicial declaration of nullity is required before a valid marriage, a declaration of presumptive death is obtained
subsequent marriage can be contracted; or else, what after complying with the following requirements: (JAB)
transpires is a bigamous marriage, reprehensible and i. Judicial declaration of presumptive death; present
immoral. (Teves vs. People, G.R. No. 188775, August 24, spouse must file a summary proceeding for the
2011). declaration of the presumptive death of the absentee
without prejudice to the latter’s reappearance.
For purposes other than remarriage, such as but not limited ii. Absence of the other spouse must have been for 4
to determination of heirship, legitimacy or illegitimacy of a consecutive years, or 2 years where there was danger
child, settlement of estate, dissolution of property regime or of death under circumstances laid down in Art. 391 of
criminal case, other evidence is acceptable to show the nullity the NCC;
of the marriage and the court may pass upon the validity of iii. Well-founded belief of the present spouse who wishes
marriage so long as it is essential to the determination of the to marry that absent spouse is already dead; and
case (Niñal vs. Bayadog, G.R. No. 133778, March 14, 2000).
There is no well-founded belief that the absent spouse
Collateral attack of marriage is allowed. is already dead when the present party fails to conduct
a diligent search for the missing party (Republic v.
In a case for concubinage, the accused need not present a Nolasco, G.R. No. 94053, March 17, 1993).
final judgment declaring his marriage void, for he can adduce
evidence in the criminal case of the nullity of his marriage Note: This is intended to protect the present spouse
other than proof of a final judgment declaring his marriage from criminal prosecution for bigamy under Art 349 of
void (Beltran vs. People, G.R. No. 137567, June 20, 2000). the Revised Penal Code. However, if the bigamous
marriage was committed abroad, the guilty party
I. VOID MARRIAGES DUE TO ABSENCE OF ANY OF THE cannot be criminally prosecuted for bigamy in the
ESSENTIAL OR FORMAL REQUISITES: (BB– LAPIS) Philippines as our penal statutes are territorial in
1.Contracted by any party below 18 years of age even with nature.
parental consent
2.Bigamous or polygamous marriages except Art 41 3. Exception to the exception: If both spouses of the
Solemnized WITHOUT a license except as otherwise subsequent marriage acted in bad faith, said
provided

16 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

 CIVIL LAW PERSONS & FAMILY RELATIONS

marriage shall be void ab initio and all donations made and to assume the basic marital obligations. The burden of
by one in favor of the other are revoked by operation of proving psychological incapacity is on the plaintiff. The
law (Art. 44). plaintiff must prove that the incapacitated party, based on his
or her actions or behavior, suffers a serious psychological
Effect of reappearance of absent spouse: disorder that completely disables him or her from
understanding and discharging the essential obligations of the
General rule: The subsequent bigamous marriage under marital state. The psychological problem must be grave, must
Article 41 remains valid despite reappearance of the have existed at the time of marriage, and must be incurable
absentee spouse. (Kalaw v. Fernandez, G.R. No. 166357, September 19,
2011).
Exception: Subsequent marriage is automatically
terminated if the reappearance was recorded in a sworn In Marable v. Marable, G.R. No. 178741, January 17, 2011,
statement in the civil registry of the residence of the the Supreme Court ruled that “the term ‘psychological
parties to the subsequent marriage at the instance of any incapacity’ to be a ground for the nullity of marriage under
interested person with due notice to said spouses, Article 36 of the Family Code, refers to a serious
without prejudice to the fact of reappearance being psychological illness afflicting a party even before the
judicially determined in case such fact is disputed. celebration of the marriage. These are the disorders that
result in the utter insensitivity or inability of the afflicted party
Exception to the exception: If there was a previous to give meaning and significance to the marriage he or she
judgment annulling or declaring the first marriage a has contracted. Psychological incapacity must refer to no less
nullity, the subsequent bigamous marriage remains valid. than a mental (not physical) incapacity that causes a party to
be truly incognitive of the basic marital covenants that
Notes: If the absentee reappears, but no step is taken to concomitantly must be assumed and discharged by the
parties to the marriage.”
terminate the subsequent marriage either by affidavit or
by court action, the absentee’s mere reappearance even
if made known to the spouses in the subsequent Requisites of psychological incapacity: (JIG) 1. Juridical
marriage will not terminate such marriage (SSS v. Antecedence – Must be rooted in the history of the party
Bailon, G.R. No 165545, March 24, 2006). antedating the marriage, although the overt manifestations
may emerge only after the marriage; and
By express provision of law (Art. 247, FC), the judgment 2. Incurability – Must be incurable or, even if it were
of the court in a summary proceeding shall be otherwise, the cure would be beyond the means of the
immediately final and executory. As a matter of course, it party involved;
follows that no appeal can be had of the trial court’s 3.Gravity – must be grave/serious such that the party would
judgment in a summary proceeding for the declaration of be incapable of carrying out the ordinary duties required in
presumptive death of an absent spouse under Article 41 a marriage (Santos vs. CA, G.R. No. 112019, January 4,
of the Family Code. It goes without saying, however, that 1995).
an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of
jurisdiction. Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of Hierarchy of
Courts (Republic vs. Tango G.R. No. 161062 July 31,
2009).

Note: Enumeration in Art 35 is NOT exclusive. Other VOID

marriages include:
1.Marriages in a play, drama, or movie
2.Marriages between two boys and two girls
3.Marriages in jest
4.Common law marriages
II. PSYCHOLOGICAL INCAPACITY (Art. 36)

No less than a mental (not physical) incapacity 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. Its meaning is confined to the most
serious cases of personality disorders clearly demonstrative
of an utter insensitivity or inability to give meaning and
significance to the marriage. This psychological condition
must exist at the time the marriage is celebrated (Santos vs.
CA, G.R. No. 112019, January 4, 1995).

Psychological incapacity
It is the downright incapacity or inability to take cognizance of
SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 17
PERSONS & FAMILY RELATIONS CIVIL LAW

not controlling should be given great respect.

May involve a senseless, protracted and constant refusal
to comply with the essential marital obligations by one or both Interpretations of the National Appellate Matrimonial
of the spouses although he, she or they are physically Tribunal of the Catholic Church of the Philippines while
capable of performing such obligations (Chi Ming Tsoi v. CA, Note: The Supreme Court said that the provisions of Article
G.R. No. 119190, Jan. 16, 1997). 36 should be interpreted on a case-to-case basis. The Court
said: “Let it be remembered that each case involving the
A person who is unable to application of Article 36 must be
distinguish between fantasy and treated distinctly and judged not on
reality would be unable to the basis of a priori assumptions,
comprehend the legal nature of predilections or generalizations but
the marital bond much less its according to its own attendant facts.
psychic meaning and the Courts should interpret the provision
obligations attached to the on a case-to-case basis, guided by
marriage, including parenting. experience, the findings of experts
One unable to adhere to reality and researchers in psychological
cannot be expected to adhere as disciplines, and by decisions of church
well to any legal or emotional tribunals.” (Aurelio vs. Aurelio, G.R.
commitments (Antonio v. Reyes, No. 175367, June 6, 2011).
G.R. No. 155800, March 10,
2006). In Te v. Yu-Te (G.R. No. 161793,
February 13, 2009), the SC stressed
While disagreements on money that it is the court, on a case to case
matters would, no doubt, affect the basis, which determines whether a
other aspects of one’s marriage as party to a marriage is psychologically
to make the wedlock incapacitated, and that each case
unsatisfactory, this is not a should be treated differently. In ruling
sufficient ground to declare a that the doctrine in Republic vs. CA
marriage null and void. In fact, the Court takes judicial notice and Molina (1997) was inapplicable, the Court declared that
of the fact that disagreements regarding money matters are cases of psychological incapacity should be decided not on
common, and even normal occurrences between husbands the basis of a priori assumptions, predictions or
and wives (Tongol vs. Tongol, G.R. No. 157610, October 19, generalizations but according to its own facts. Courts should
2007). interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in
Petitioner is not entitled to moral damages based on psychological disciplines, and by decisions of church
declaration of psychological incapacity because the award of tribunals. While it was not suggesting the abandonment of the
moral damages should be predicated, not on the mere act of Molina doctrine, it ruled that said doctrine has become a strait
entering into the marriage, but on specific evidence that it was jacket, forcing all sizes to fit into and be bound by it, and in
done deliberately and with malice by a party who had known conveniently applying said doctrine, has allowed diagnosed
of his or her disability and yet willfully concealed the same sociopaths, schizophrenics, nymphomaniacs, narcissists and
(Noel Buenaventura v. CA, et al., G.R. No. 127358, March the like, to continuously debase and pervert the sanctity of
31, 2005). marriage.
In ruling that both parties to the marriage were
Jurisprudential guidelines (Molina doctrine) (Republic v. psychologically incapacitated, the Court also stressed that the
Molina G.R. No. 108763, February 13, 1997): (PROBE PIG) expert opinion on the psychological and mental temperament
1. Incapacity must be permanent or incurable; 2.Root of the parties must not be discounted, but must instead be
cause of the psychological incapacity must be: a. considered as decisive evidence.
Medically or clinically identified
b. Alleged in the complaint: The wife’s promiscuity and the psychiatrist’s report that she
i. Sufficiently proven by experts was suffering from social personality disorder exhibited by
ii. Clearly explained in the decision blatant display of infidelity, emotional immaturity, and
3.Marital obligations refer to Art. 68–71, 220,221 and 225 of irresponsibility cannot be equated with psychological
the FC; incapacity (Dedel v. Court of Appeals, G.R. No. 151867,
4. Plaintiff has burden of proof; January 29, 2004).
5. Incapacity proven to be existing at the time of the
celebration of marriage; Similarly, the husband’s alleged alcoholism, drunkenness, his
6. Trial court must order the prosecuting attorney or fiscal and habitual verbal and physical abuse of the wife, failure to
the Solicitor General to appear for the state; 7. Illness is grave support the latter and her children, and unbearable jealousy,
enough to bring about disability to assume essential marital do not constitute psychological incapacity (Republic vs.
obligations; and Melgar, G.R. No. 139676,March 31, 2006).
18 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS

In Marcos v. Marcos (GR. NO. 136490, October 19, 2000), IV. THOSE CONTRARY TO PUBLIC POLICY
the SC held that psychological incapacity may be established CONTRACTED BETWEEN (Art. 38): (CS-PASS-AKA)
by the totality of the evidence presented. The facts alleged in 1.Collateral blood relatives whether legitimate or illegitimate
the petition and the evidence presented, considered in up to the 4th civil degree
totality, should be sufficient to convince the court of the 2. Step–parents & step children
psychological incapacity of the party concerned (Bernardino 3. Parents–in–law & children–in–law
S. Zamora vs. CA, G.R. No. 4. The adopting parent & the adopted
141917, February 7, 2007). child
5. The surviving spouse of the
There is NO REQUIREMENT that adopting parent & the adopted
the person sought to be declared child
psychologically incapacitated 6. The surviving spouse of the
should be personally examined by adopted child & the adopter
a physician or psychologist as a 7.Adopted child & a legitimate child of
condition sine qua non to arrive at the adopter 8. Parties where one, with
such declaration. It can be proven the intention to marry the other, killed
by independent means that one is the latter’s spouse, or his/her spouse.
psychologically incapacitated; 9.Adopted children of the same
there is no reason why the same adopter
should not be credited (Republic Note: There is no need for
of the Philippines vs. Laila conviction in a criminal case of the
Tanyag-San Jose and Manolito guilty party. The fact of killing
San Jose, G.R. No. 168328, committed by one of the parties to
February 28, 2007). the marriage can be proved in a
civil case.
Psychological incapacity is not
meant to comprehend all possible The following can now marry each
cases of psychoses. The fourth other: (LSG-AC2) 1. Brother–in–law
guideline in Molina requires that and sister–in–law
the psychological incapacity as 2. Stepbrother and stepsister
understood under Art. 36 (FC) 3.Guardian and ward
must be relevant to the 4.Adopted and illegitimate child,
assumption of marriage parents and relatives by
obligations, not necessarily to consanguinity or affinity of the
those not related to marriage, like adopter;
the exercise of a profession or 5. Parties who have been convicted of
employment in a job (Tongol vs. adultery or concubinage
Tongol, G.R. No. 157610,
6.Collateral relatives by the half blood.
October 19, 2007).
Determination if two persons are
Final judgment denying a petition
for nullity on the ground of psychological incapacity bars a relatives up to the 4th civil degree:
subsequent petition for declaration of nullity on the ground of 1.Consider the nearest and immediate common ascendant
lack of marriage license. There is res judicata (Mallion vs. 2.Count the number of relatives from one of them to the
Alcantara, G.R. No. 141528, October 31, 2006). common ascendant and from the common ascendant to
the other one.
In petitions for the declaration of nullity of marriage, the
burden of proof to show the nullity of marriage lies with the Relationship by consanguinity is in itself not capable of
plaintiff. Unless the evidence presented clearly reveals a dissolution. Hence, the mere fact that a common ascendant,
situation where the parties, or one of them, could not have a grandfather for example, died does not sever the blood
validly entered into a marriage by reason of a grave and relationship of first cousins.
serious psychological illness existing at the time it was
celebrated, we are compelled to uphold the indissolubility of Two views on termination of marriage on the “affinity
the marital tie (Republic v. Galang, G.R. No. 168335, June 6, prohibition”
2011). a.Relationship by affinity terminates with the termination of
the marriage whether there are children or not in the
III. INCESTUOUS MARRIAGES, WHETHER THE marriage.
RELATIONSHIP IS LEGITIMATE OR ILLEGITIMATE, b.Relationship by affinity is dissolved if one of the spouses
BETWEEN (Art. 37): dies and the spouses have no living issues or children; it
1. Ascendants & Descendants of any degree; 2. does not cease if there are living issues or children of the
Brothers & Sisters whether full or half blood marriage ‘in whose veins the blood of the parties are
commingled, since the relationship of affinity was continued
through the medium of the issue of marriage (Sta. Maria,
 M., Persons and Family Relations, 2010, p. 251-253).

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 19

PERSONS & FAMILY RELATIONS CIVIL LAW

V. VOID SUBSEQUENT MARRIAGES

Co–ownership of Generally Conjugal
1.Without judicial declaration of nullity of previous void
properties through joint Partnership or Absolute
marriage (Art. 40)
actual contributions Community
2.Without judicial declaration of presumptive death of absent
spouse (Art. 41) Always void Valid until annulled
No judicial proceeding to annul a subsequent marriage Action for declaration of Action prescribes
contracted under Art. 41 is necessary. Also, the termination of nullity does not prescribe
the subsequent marriage by affidavit provided for in Art. 42
does not preclude the filing of an action in court to prove the
reappearance of the absentee and obtain a declaration of
dissolution or termination of the subsequent marriage (SSS See Comparative Chart on Effects of Declaration of Nullity,
vs. Vda. De Ballon, G.R. No. 166645, March 24, 2006). Annulment and Termination of Marriage in Art. 41 and Legal
Separation.
3.Where the absent spouse was presumed dead, and both
the present spouse and would–be spouse were in bad faith VOIDABLE MARRIAGES
in contracting marriage (Art. 44)
4. Failure to comply with Art. 52 requiring the partition and
(ART.45)
distribution of properties and Unlike void marriages which is invalid
delivery of children’s from the beginning, voidable
presumptive legitimes which marriages are considered valid until
should be recorded in the
annulled.
appropriate civil registry and
registry of property after
The grounds for annulment of
obtaining judgment for
declaration of nullity or marriage are exclusive (Sta. Maria,
annulment (Art. 53) M., Persons and Family Relations,
2010, p. 291).
Note: Failure to record in the civil
registry and registry of property Grounds: (AUF-VPS) must exist AT
the judgment of annulment or of THE TIME of marriage
absolute nullity of the marriage, 1.Absence of consent to contract
partition and distribution of the marriage from the parents,
property of the spouses and the guardian or person exercising
delivery of the children’s substitute parental authority (in that
presumptive legitimes shall not order) over one or both of the
affect third persons (Arts. 52–53). parties, where one or both of the
parties is over 18 but below 21
VOID AND VOIDABLE
MARRIAGE DISTINGUISHED 2.Unsound mind of either party

Void Voidable The true test is whether the party concerned could
intelligently consent; that is, that he knew what contract he
Decree of nullity Decree of annulment was entering into (Hoadley v. Hoadley, 244 N.Y. 424).

Incapable of ratification Ratified by free Intoxication which results in lack of mental capacity to give
cohabitation consent is equivalent to unsoundness of mind (McKnee v.
McKnee, 49 Nev. 90).
Can be attacked directly Can be attacked directly
or collaterally only So is somnambulism at the time of wedding (15 Sanchez
Roman 528).
Can still be impugned Can no longer be
even after death of impugned after death of
parties one of the parties 3.Consent of either party obtained by fraudulent means as
enumerated in Art. 46: (NPSD)
a.Non–disclosure of a previous conviction by final judgment
 of the other party of a crime involving moral turpitude; Buccat, G.R. No. 47101, April 25, 1941).
b.Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her c. Concealment of a sexually transmissible disease,
husband; regardless of its nature, existing at the time of the
marriage; and
Must have been done in bad faith. If the woman did not
expressly inform the man of her pregnancy but such Nature or gravity of disease is irrelevant; it is enough that
physical condition was readily apparent to the man, he there was concealment at the time of the
cannot claim lack of knowledge thereof (Buccat vs.

20 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

ceremony. legal, does not vitiate consent (Art. 1335 par. 3 and 4,
CIVIL LAW PERSONS & FAMILY RELATIONS NCC)

Undue influence
It is when a person takes improper advantage of another,
5. Physical incapability of either party to consummate the depriving the latter of reasonable freedom of choice.
marriage with the other, and such incapacity continues
d.Concealment of drug addiction, habitual alcoholism, Factors to consider: the confidential, family, spiritual and
homosexuality or lesbianism existing at the time of the other relations between the parties or the fact that the
marriage person alleged to have been unduly influenced was
suffering from mental weakness or was ignorant or in
Note: There is fraud when, through insidious words or financial distress (Art 1337, NCC).
machinations of one of the contracting parties, the other and appears to be incurable (impotency)
is induced to enter into a contract which, without them,
he would not have agreed to (Art. 1338, NCC). Impotency being an abnormal condition should not be
presumed. The presumption is in favor of potency
The enumeration in Article 46 is exclusive. Hence, (Jimenez vs. Cañizares G.R. No. L-12790 August 31,
misrepresentation as to character, health, rank, fortune 1960).
or chastity is NOT a ground for annulment (Anaya vs.
Palaroan, GR. No. L–27930, November 26, 1970) Article 45(5) of the Family Code refers to lack of power to
copulate. Incapacity to consummate denotes the
4. Vitiated consent of either party through force, intimidation permanent inability on the part of the spouses to perform
or undue influence the complete act of sexual
intercourse. Non
Criminal liability attaches to consummation of a marriage may be
anyone who uses violence, on the part of the husband or of the
intimidation and fraud in wife and may be caused by a
contracting a marriage (Art. physical or structural defect in the
350 RPC) anatomy of one of the parties or it
may be due to chronic illness and
inhibitions or fears arising in whole or
Violence
in part from psychophysical
When in order to wrest
conditions. It may be caused by
consent, serious or irresistible psychogenic causes, where such
force is employed (Art. 1335 mental block or disturbance has the
par. 1, NCC). result of making the spouse
physically incapable of performing the
Intimidation marriage act (Alcazar vs. Alcazar
When one of the contracting G.R. No.174451 October 13, 2009).
parties is compelled by a
reasonable and well-grounded Requisites for annulment due to
fear of an imminent and impotence: (CUPIN)
grave evil upon his person or property, or upon the person a. It exists at the time of the celebration of the marriage;
or property of his spouse, descendants or ascendants, to
b. It is unknown to the other spouse;
give his consent (Art. 1335 par. 2, NCC)
c. It is permanent;
d. It is incurable; and
Factors to consider in violence and intimidation: the age,
e. The other spouse must not also be impotent.
sex and condition of the person. A threat to enforce one’s
claim through competent authority, if the claim is just or
Doctrine of triennial cohabitation
 Presumption that the husband is impotent should the wife 31, 1960)
still remain a virgin for at least 3 years from time spouses
started cohabiting (Tompkins vs. Tompkins, 92 NJ 113 as 6. Sexually transmissible disease of either party found to be
cited Sta. Maria, p. 307-308; Paras, p. 450-451) . serious and appears to be incurable.
Elements: (ESSA)
Refusal on the part of a Filipino girl to submit to a physical a. Existing at the time of marriage
examination to determine impotency does NOT raise the b. Sexually transmissible disease
presumption of impotency because of the natural modesty c. It is serious; and
of our native girls. (Jimenez v. Canizares, L-12790, August d.Appears incurable

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 21

PERSONS & FAMILY RELATIONS CIVIL LAW

ACTION FOR ANNULMENT OF VOIDABLE

guardian before the cohabita
MARRIAGES (Art. 47)
or death of tion after
Grounds Persons Prescrip Ratifi persons either insane
(F2I2NS) Who tive cation having party regains
May Period legal sanity
Sue charge of
the
Force, Injured Within 5 Free insane
intimida party years cohabita
tion, or from the tion after Insane During
undue time the disap spouse lucid
influence force, pearance interval or
intimida of force, after
tion, or intimida regaining
undue tion / sanity
influence undue
ceased influence
respect
tively
Grounds Persons Prescrip Ratifi
Within 5 (F2I2NS) Who tive cation
Fraud Injured Free
years May Period
party cohabita
from the Sue
tion even
discovery with full
Non– Parent/ Anytime Free
of fraud know-
consent legal before the cohabita
ledge of
guardian “no tion after
facts
having consent” reaching
constitu
charge of party age of 21
ting the
the “no– reaches 21
fraud
consent”
Incapabi Injured Within 5 No party
lity to party years ratification
after the “No Within 5
consum since
celebratio consent” years
mate defect is
n of the party after
permanen reaching
marriage t
21
Insanity Sane Anytime Free Within 5 No ratifica
STD Injured
spouse before the cohabita
party years tion since
who has death of tion after after the defect is
no know either insane perma
celebratio
ledge of party regains n of the nent.
the sanity marriage
insanity

Relative Anytime Free

Note: Whichever comes first may convalidate the marriage:
 cohabitation OR There will be collusion only if the parties had arranged to
prescription. make it appear that a ground existed or had been committed
although it was not, or if the parties had connived to bring
Additional about a matrimonial case even in the absence of grounds
requirements for therefor (Ocampo vs. Florenciano, G.R. No. L–13553,
annulment or February 23, 1960).
declaration of
nullity (Art. 48 par. However, petitioner’s vehement opposition to the annulment
1; Supreme Court proceedings negates the conclusion that collusion existed
En Banc between the parties. Under these circumstances, the non–
Resolution A.M. intervention of a prosecuting attorney to assure lack of
02-11-10-SC) collusion between the contending parties is not fatal to the
Prosecuting validity of the proceedings in the trial court ( Tuason vs. CA,
attorney or fiscal G.R. No. 116607, April 10, 1996).
should:
1. Appear on Pendency of action for annulment
behalf of the state During the pendency of the action and in the absence of
2. Take steps to prevent collusion between the parties 3. Take adequate provisions in a written agreement between the
care that evidence is not fabricated or suppressed (Sec.9) spouses, the court shall:

22 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

CIVIL LAW PERSONS & FAMILY RELATIONS

1. Provide for the support of the spouses and the custody Note: The rule also applies to Legal Separation
and support of common children
2.Give paramount consideration to the moral and material After court grants petition, it shall issue the decree of absolute
welfare of the said children and their choice of the parent nullity or annulment only after compliance with the following:
with whom they wish to remain. 1.Must proceed with the liquidation, partition, and distribution
3. Provide for appropriate visitation rights. (Art. 49, FC) of the properties of the spouses including custody and
support of the common children unless such matters had
Visitation rights flow from the natural right of both parents to been adjudicated in previous judicial proceedings.
each other’s company. There being no such parent– child 2.Delivery of the children’s presumptive legitimes in cash,
relationship between them, Gerardo has no demandable right property or sound securities unless otherwise mutually
to visit the child of Mario with Theresa (Concepcion vs. CA agreed upon and judicially approved.
GR. No. 12345, August 31, 2005). Delivery shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either or
Decision on the nullification of the marriage No judgment shall both parents
be based upon stipulation of facts or confession of judgment
(Art. 48 par. 2). The value of the properties received shall be considered as
advances.
Stipulation of facts
An admission by both parties made in court agreeing to the 3.Registration of the entry of judgment granting petition for
existence of the act constituting the ground for annulment or declaration of absolute nullity or annulment in the Civil
for the declaration of nullity. Registry where the marriage was celebrated and in the
Civil Registry of the place where the FC was located.
Confession of judgment 4.Registration of approved partition and distribution of
The admission made in court by the respondent admitting properties of the spouses in the proper Registry of Deeds
fault as invoked by the plaintiff to sever the marriage ties where the real properties are located.
(Sta. Maria, M., Persons and Family Relations, 2010, p. 319).
Note: The rule applies to Legal Separation.
If the defendant spouse fails to answer the complaint, the
court CANNOT declare him or her in default; instead, it Effects of nullity
should order the public prosecutor to determine if collusion
exists between the parties (Section 6, Rule 18 of the Revised
Rules of Court; Sec. 13 (b); Supreme Court En Banc
Resolution A.M. 02-11-10-SC).

If aside from a stipulation of facts or a confession of

judgment, sufficient evidence was presented, the court may
render a judgment annulling the marriage (Ocampo v.
Florenciano, GR. No. L–13553, February 23, 1960).
 1. Either of the In both instances under Articles 40 and 45, the marriages are
former spouses governed either by absolute community of property or
may marry again conjugal partnership of gains unless the parties agree to a
after complying complete separation of property in a marriage settlement
with the entered into before the marriage. Since the property relations
requirements of of the parties is governed by absolute community of property
Art. 52 (Art. 53). or conjugal partnership of gains, there is a need to liquidate,
2.On Children partition and distribute the properties (Dino v. Dino, G.R. No.
(Art. 54) 178044, January 19, 2011).
a. Those
conceived or
born before LEGAL SEPARATION
the judgment
or annulment A decree of legal separation or relative divorce does not
or absolute affect the marital status, there being no severance of the
nullity of the vinculum (Laperal v. Republic G.R. No. L-18008 October 30,
marriage 1962).
under Art. 36
has become A legal separation involves nothing more than bed-and board
final and separation of the spouses (Lapuz v. Eufemio G.R. No. L-
executory, shall be considered legitimate. 30977 January 31, 1972).
b. Those conceived or born of the subsequent marriage
under Art. 53 shall likewise be legitimate.

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 23

PERSONS & FAMILY RELATIONS CIVIL LAW

EXCLUSIVE GROUNDS FOR LEGAL SEPARATION: (Art. 4. Final judgment sentencing the respondent to imprisonment
56) (PAA-ID-LAMBS) of more than 6 years even if pardoned 5. Drug addiction or
1. Repeated physical violence or grossly abusive conduct habitual alcoholism of the respondent
directed against the petitioner, a common child, or a child 6. Lesbianism or homosexuality of the respondent 7.
of the petitioner Abandonment of the petitioner by the respondent without
2. Attempt of the respondent to corrupt or induce the justifiable cause for more than 1 year
petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption or There must be absolute cessation of marital relations,
inducement duties, and rights, with the intention of perpetual separation
(Partosa-Jo vs. CA, G.R. No. 82606, December 18, 1992).
Refers to prostitution only and irrespective of the age of the Abandonment implies total renunciation of duties.
child (Sta. Maria, M., Persons and Family Relations, 2010,
p. 356) 8. Physical violence or moral pressure to compel petitioner to
change religious or political affiliation 9. Contracting by
The law does not give a cause of action to the petitioner to respondent of a subsequent bigamous marriage; and
file a case for legal separation on the ground that the 10. Sexual infidelity or perversion.
respondent-spouse committed the ground provided in Art. Sexual perversion includes engaging in such behavior not
55(3) upon his or her own child with another person. only with third persons but also with the spouse (Sta.
However, such act may be a cause to suspend or Maria, M., Persons and Family Relations, 2010, p. 359).
terminate, depending on the severity, the parental authority
of the respondent over his own child pursuant to Art. 231 Note: Mere preponderance of evidence will suffice to prove
(2) and (4) of he Family Code (Sta. Maria, M., Persons and the existence of these grounds EXCEPT the 4th ground.
Family Relations, 2010, p. 357).
RA 9262 Anti-Violence Against Women and Children (March
3. Attempt by the respondent against the life of the petitioner 8, 2004)

The attempt on the life of the spouse must proceed from an Acts of Violence:
evil design and not from any justifiable cause like self- 1.Causing physical harm to the woman or her child; 2.
defense or from the fact that the spouse caught the other in Threatening to cause the woman or her child physical harm;
flagrante delicto having carnal knowledge with another man 3. Attempting to cause the woman or her child physical harm;
or woman (Sta. Maria, M., Persons and Family Relations,
2010, p. 359-360).
 4. Placing the woman or her child in fear of imminent physical woman or child. This shall include, but not limited to, the
harm; following acts committed with the purpose or effect of
5. Attempting to controlling or restricting the woman's or her child's
compel or movement or conduct:
compelling the a. Threatening to deprive or actually depriving the woman
woman or her or her child of custody to her/his family; b.Depriving or
child to engage threatening to deprive the woman or her children of
in conduct financial support legally due her or her family, or
which the deliberately providing the woman's children insufficient
woman or her financial support;
child has the c. Depriving or threatening to deprive the woman or her
right to desist child of a legal right;
from or desist d. Preventing the woman in engaging in any legitimate
from conduct profession, occupation, business or activity or controlling
which the the victim's own money or properties, or solely controlling
woman or her the conjugal or common money, or properties;
child has the
right to engage 6. Inflicting or threatening to inflict physical harm on oneself
in, or attempting for the purpose of controlling her actions or decisions;
to restrict or 7.Causing or attempting to cause the woman or her child to
restricting the engage in any sexual activity which does not constitute
woman's or her child's freedom of movement or conduct by rape, by force or threat of force, physical harm, or through
force or threat of force, physical or other harm or threat of intimidation directed against the woman or her child or
physical or other harm, or intimidation directed against the her/his immediate family;

24 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

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8. Engaging in purposeful, knowing, or reckless conduct, right to support, unless the court finds compelling reasons
personally or through another that alarms or causes to order otherwise. A victim who is suffering from battered
substantial emotional or psychological distress to the woman syndrome shall not be disqualified from having
woman or her child. This shall include, but not be limited to, custody of her children. In no case shall custody of minor
the following acts: children be given to the perpetrator of a woman who is
a. Stalking or following the woman or her child in public or suffering from battered woman syndrome (Sec. 28, RA
private places; 9262).
b. Peering in the window or lingering outside the residence
of the woman or her child; GROUNDS FOR DENIAL OF PETITION (Art. 56):
c. Entering or remaining in the dwelling or on the property (C4–MP–DR)
of the woman or her child against her/his will; 1.Condonation of the offense or act complained of.
d.Destroying the property and personal belongings or
inflicting harm to animals or pets of the woman or her Condonation
child; and It is the act of forgiving the offense after its commission
e. Engaging in any form of harassment or violence; (Sta. Maria, M., Persons and Family Relations, 2010, p.
362).
9.Causing mental or emotional anguish, public ridicule or Failure of the husband to look for his adulterous wife is
humiliation to the woman or her child, including, but not NOT condonation to wife's adultery (Ocampo v.
limited to, repeated verbal and emotional abuse, and denial Florenciano, G.R. No. L–13553, February 23, 1960).
of financial support or custody of minor children of access
to the woman's child/children (Sec. 5, RA 9262). The act of the husband in having sexual intercourse with
his wife in spite of his knowledge of the latter’s infidelity is
In cases of legal separation, where violence as specified in an act of implied condonation. A single voluntary act of
RA 9262 is alleged, Article 58 of the Family Code on the 6 sexual intercourse by the innocent spouse after discovery
months cooling-off period shall NOT apply. The court shall of the offense is ordinarily sufficient to constitute
proceed on the main case and other incidents of the case condonation (Bugayong vs. Ginez, G.R. No. L-10033,
as soon as possible. The hearing on any application for a December 28, 1956).
protection order filed by the petitioner must be conducted
within the mandatory period specified (Sec. 19, RA 9262). 2.Consent to commission of offense or act complained of
The woman victim of violence shall be entitled to the Consent is prior to the act; condonation comes after
custody and support of her child/children. Children below (People v. Schneckenburger, 73 Phil 413).
seven (7) years old older but with mental or physical
disabilities shall automatically be given to the mother, with There is consent when either of the spouses agreed to or
 did not object, despite full knowledge, to the act giving rise results are produced (Cohen, Divorce and Alimony in North
to a ground for legal separation, before such act was in fact Carolina, 59, IV, p. 98 as cited Sta. Maria, p. 364).
committed
(Sta. Maria, 4.Collusion between parties
M., Persons
and Family Collusion
Relations, It is a corrupt agreement between the spouses by
2010, p. 363). making it appear that the marriage is defective due to the
existence of any of the grounds and agreeing to
represent such false or non-existent cause of action
3.Connivance
before the proper court to procure divorce or legal
between parties
separation (Sta. Maria, M., Persons and Family
of commission
Relations, 2010, p. 317).
of offense or
act constituting
5.Mutual guilt or where both parties have given ground for
ground
legal separation
Connivance or
6. Prescription
procurement
Denotes
direction, An action for legal separation shall be filed within 5 years
influence, from time of occurrence of the cause (Art. 57)
personal exertion, or other action with knowledge and belief
that such action would produce certain results and which 7.Death of either party during the pendency of the case
(Lapuz–Sy vs. Eufemio, G.R. No. 113842, August 3,

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 25

PERSONS & FAMILY RELATIONS CIVIL LAW

1994)
Even if the parents are separated de facto, still in the
8.Reconciliation of the spouses during the pendency of the 3. The husband shall have no more right to have sexual
case intercourse with his wife.

By filing in the same proceeding a joint manifestation under No legal separation may be decreed unless the Court has
oath, duly signed by the spouses (Art. 65) taken steps toward the reconciliation of the spouses and is
fully satisfied, despite such efforts, that reconciliation is highly
Cooling–off period improbable. (Art. 59)
6-month period from the filing of the petition designed to give
the parties enough time to further contemplate their positions Note: The wife who has been granted legal separation cannot
with the end in view of attaining reconciliation between them. petition to be allowed to revert to her maiden name (Art. 372,
No action for Legal Separation shall be tried during such NCC).
period (Art. 58). absence of judicial grant of custody to one parent, both
parents are entitled to the custody of their child. The remedy
It is a mandatory requirement and its non-compliance makes of habeas corpus may be resorted to by the parent who has
the decision infirm (Pacete vs. Carriaga, G.R. No. 53880, been deprived of the rightful custody of the child (Salientes v.
March 17, 1994). Abanilla, G.R. No. 162734, August 29, 2006). A decree of
legal separation, on the ground of concubinage, may issue
The cooling-off period does not mean the overruling of upon proof of preponderance of evidence in the action for
provisions as custody, alimony, and support pendente lite. legal separation. No criminal proceedings or conviction is
necessary.
A writ of preliminary mandatory injunction for the return of the
wife’s paraphernal property can in the meantime be heard RECONCILIATION OF LEGALLY SEPARATED SPOUSES
and granted during the 6-month period (Somosa Ramos v. If the spouses should reconcile, the corresponding joint
Vamenta, G.R. No. L-34132 July 29, 1972). manifestation under oath duly signed by them shall be filed
with the court in the same proceeding for legal separation
Effects of filing petition: (Art. 61) (Art. 65).
1. The spouses shall be entitled to live separately from each
other
2. In the absence of an agreement between the parties, the
court shall designate the husband, the wife, or a third
person to manage the absolute community or conjugal
partnership property (Art. 61)
 Effects of guilty spouse already effected shall subsist, unless the
reconciliation of spouses agree to revive their former property regime.
the spouses (Art.
66) 1. The legal Revival of property regime (Art. 67)
separation Agreement of revival and motion for its approval shall be filed
proceedings, if in court in the same proceeding for legal separation and shall
still pending, shall be executed under oath and shall specify: 1. Properties to be
thereby be contributed anew to restored regime; 2. Those to be retained
terminated at as separated properties of each spouse;
whatever stage. 3.Names of all known creditors, addresses, and amounts
2. The final owing to each.
decree of legal
separation shall After due hearing, court shall take measures to protect
be set aside, interest of creditors and such order shall be recorded in the
but the proper registries of properties but the same shall not
separation of prejudice creditors not listed or notified, unless debtor
property and spouse has sufficient separate properties to
any forfeiture of satisfy creditor’s claim.
share of the

26 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

CIVIL LAW PERSONS & FAMILY RELATIONS

EFFECTS OF THE PETITION FOR DECLARATION OF PRESUMPTIVE DEATH, NULLITY OF MARRIAGE,

ANNULMENT AND LEGAL SEPARATION
Termination Declaration of Nullity Annulment Legal Separation
(Art.41) (Art. 40) (Art. 45) (Art. 55)

Rendering judgment on the petition

Summary proceeding; No motion to dismiss shall be allowed except if the ground is lack of jurisdiction.
judgment may be
rendered based on The grounds alleged must be proved. No judgment on the pleadings, summary judgment or
affidavits, documentary confession of judgment shall be allowed.
evidence or oral
testimonies at the Notes:
sound discretion of the Stipulation of facts- an admission by both parties made in court agreeing to the existence of
court (Art. 246) the act constituting the ground for annulment or for the declaration of nullity. Confession of
judgment- the admission made in court by the respondent admitting fault as invoked by the
plaintiff to sever the marriage ties (Sta. Maria, M., Persons and Family Relations, 2010, p.
319).

In legal separation cases, no decree shall be issued unless the Court has take steps toward
reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbable (Art. 59).

Procedural requirements after judgment, before issuance of decree

1. Liquidation, partition, delivery of properties, including custody and support of common children
unless such matters had been adjudicated in previous judicial proceedings
 2. Delivery of children’s presumptive legitimes
3. Registration of the entry of judgment granting the petition in the Civil Registry where the
marriage was celebrated AND in the Civil Registry of the place where the family court is located 4.
Registration of approved partition and distribution of properties in the Registry of Deeds where the
real properties are located

Marital Status

Subsequent marriage Previous marriage, void ab Valid until annulled or No dissolution of marriage, only
automatically initio terminated separation of bed-and-board;
terminated by affidavit entitled to live separately
of reappearance

Status of Children Born/Conceived Before Termination

Legitimate Illegitimate except those as Legitimate Legitimate

provided in Art. 36 and 53

Custody of Children

Custody in case of During pendency:

dispute shall be 1. Written agreement
decided by the court in 2. Absence thereof, court decides based on best interest of child and may award it in the following
separate proceedings order of preference:
for custody but same a. Both parents jointly
considerations as in b. Either parent, may consider choice of child over 7 years unless parent chosen is unfit c.
Declaration of Nullity Surviving grandparent, if several then choice of child over 7 years unless grandparent chosen
is unfit/disqualified
d. Eldest brother/sister over 21unless unfit/ disqualified
e. Any other person deemed suitable by court

After decree:
To the innocent spouse but no child under 7 shall be separated from the mother unless there are

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 27

PERSONS & FAMILY RELATIONS CIVIL LAW
Termination Declaration of Nullity Annulment Legal Separation
(Art.41) (Art. 40) (Art. 45) (Art. 55)

compelling reasons

Child Support

Support in case of During pendency:

dispute shall be 1. Written agreement
decided by the court in 2. In the absence thereof, from properties of the absolute community of property (ACP) or
separate proceedings conjugal partnership (CP)
for custody but same
considerations as in After Decree:
Declaration of Nullity Either parent/ both may be ordered by court to give an amount necessary for support in proportion
to resources/means of giver and necessities of recipient

Spousal Support

During pendency:
1. Written agreement
2. In the absence thereof, from properties of the ACP or CP, considered as advance to be
deducted from share during liquidation
3. Restitution if after final judgment court finds that person providing support pendente lite is not
liable therefor (Sec. 7, Rule 61, ROC)

Property Relations
 1. ACP or CP shall be dissolved and liquidated 1. ACP or CP shall be dissolved
2. If either spouse contracted marriage in bad faith, he or she has no right to any share and liquidated.
of net profits earned by ACP or CP 2. Offending spouse has no
3. Net profits shall be forfeited in favor of common children, or if none, children of guilty right to any share of net
spouse by previous marriage, or in default thereof, the innocent spouse 4. In all other profits earned by ACP or CP
cases of void marriage, Art. 147 and 148 applies (Valdes vs. RTC) 3. Net profits shall be forfeited in
favor of common children,
In addition, for marriages under Art. 40 and 45: or if none, children of guilty
1. All creditors of spouses and of the ACP or CP shall be notified of the proceedings for spouse by previous
liquidation marriage, or in default
2. Conjugal dwelling and lot on which it is situated shall be adjudicated pursuant to Art. thereof, the innocent
102 and 129 spouse.

Presumptive Legitime

1. Delivery of presumptive legitime of all common children

computed as of date of final judgment without prejudice
to ultimate successional rights of children accruing
upon death of either or both parents
2. Shall be considered as advances on common
children’s legitime (Art. 51)

Donation Propter Nuptias

1. Shall remain valid, 1. Shall remain valid, unless 1. Shall remain valid, 1. Donor is given option to
unless donee donee contracted unless donee revoke; if donor decides to
contracted marriage in bad faith, in contracted marriage revoke, must do so within 5
marriage in bad which case, donation is in bad faith, in years from finality of decree
faith, in which revoked by operation of which case, 2. But if ground for legal
case, donation is law. donation is revoked separation is sexual infidelity
revoked by 2. If both spouses of by operation of law (adultery or concubinage),
operation of law. subsequent marriage (Art. 43(3)). donation between persons
2. If both spouses of acted in bad faith, 2. No conflict guilty thereof at time of
subsequent donations propter nuptias 3. with Art. 86(2) as donation is void (Art.
marriage acted in made by one in favor of such does not 739[1]NCC)
bad faith, the other are revoked by require that
donations propter operation of law (Art. 44) marriage be
nuptias made by 3. If both spouses in good annulled first
one in favor of the faith, donor after finality of before donor may
other revoke donation –

28 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

CIVIL LAW PERSONS & FAMILY RELATIONS
Termination Declaration of Nullity Annulment Legal Separation
(Art.41) (Art. 40) (Art. 45) (Art. 55)

are revoked by decree may revoke donor has 5 years

operation of law pursuant to Art. 86(1) from time he had
4. If marriage not celebrated: knowledge of lack
a. Those stipulated in of consent; cannot
marriage settlement revoke if there was
are void (Art. 81) knowledge before
b. Those excluded from the marriage
marriage settlement 4. Conflict with Art.
or if no such contract, 86(3) but Art. 43(3)
may be revoked by prevails – more in
donor (Art. 86[])) harmony with
general
purpose/intent of
act (Ibid.)

Insurance Policy
 Innocent spouse may revoke designation of spouse in bad faith as beneficiary even if Innocent spouse may revoke
stipulated as irrevocable (Art. 43(4)) donations made by him or her in
favor of offending spouse as well
as designation of latter as
beneficiary even if stipulated as
irrevocable (Art. 64). Action to
revoke donation must be brought
within 5 years from finality of
decree.

Succession

1. Spouse in bad faith disqualified to inherit from innocent spouse by testate or 1. Offending spouse disqualified
intestate succession from inheriting from
2. If both spouses of subsequent marriage acted in bad faith, testamentary dispositions innocent spouse by
made by one in favor of the other are revoked by operation of law (Art. 44) intestate succession
2. Provisions in favor of
offending spouse made in
the will of innocent spouse
are revoked by operation of
law (Art. 63(4))

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PERSONS & FAMILY RELATIONS CIVIL LAW

RIGHTS AND OBLIGATIONS shall be paid from the community property b. In the absence
thereof, from income or fruits of their separate properties
BETWEEN THE HUSBAND AND THE
c. In the absence or insufficiency thereof, from their
WIFE (LORF-JM) separate properties (Art. 70)

1. Live together 6. Joint management of the household

Act of living together is a voluntary act of the spouses which Expenses for such management shall be paid in accordance
cannot be compelled by any proceeding in court. with Art. 70

Only the moral obligation of the spouses constitutes the Effect of neglect of duty
motivating factor for making them observe the said duties
and obligations which are highly personal (Ramirez- When one of the spouses neglects his or her duties to the
Cuaderno v Cuaderno, 12 SCRA 505). conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the
If the wife refuses unjustifiably to live with her husband, the aggrieved party may apply to the court for relief. (Art 72.)
court will admonish but not order her return; and even if an
order is made, contempt proceeding against the wife will not The relief may take on many forms: filing a case for legal
prosper. The only remedy here for the husband is to refuse separation if there are grounds for the same; filing an action for
to grant support (Mariano B. Arroyo v. Dolores C. Vasquez declaration of nullity based on Art 36 if the neglect is such that
de Arroyo, 42 Phil. 54). it does not create a functional marital life; petitioning the court
for receivership, for judicial separation of property, or for
2.Observe mutual love, respect and fidelity authority to be the sole administrator of community property or
conjugal partnership.(Sta Maria, Melencio Jr. S., Persons and
3.Render mutual help & support Family Relations Law,page 408 ex., 3-4 [2010])

4. Fix the family domicile EXERCISE OF PROFESSION

a. Both husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide. b. The court General Rule: Both can engage in any lawful enterprise or
may exempt one spouse from living with the other if the profession WITHOUT the consent of the other.
latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such Exception: The other spouse may object only on valid, serious
exemption shall not apply if the same is not compatible with and moral grounds.
the solidarity of the family (Art 69).
In case of disagreement, court shall decide whether (1) the
5. Joint responsibility for the support of the family a. Expenses objection is proper; and (2) the benefit accrued to the family
 prior to the General rule:
objection or
thereafter [Art. 73 1.Debts and obligations incurred of whatever nature and
(2)]. regardless of the time they were incurred but redounding to
the benefit of the family shall be chargeable to the ACP or
If a husband the CPG.
compels the wife to
desist from 2. An obligation incurred as a result of a spouse’s exercise of a
pursuing a legitimate profession is an obligation redounding to the
profession or any benefit of the family shall be shouldered by the ACP or
other conduct CPG.
which the wife has
the right to engage Exceptions:
in, this can be 1. Benefit accrued to family before objection to an immoral or
considered acts of unlawful profession
violence against
women under RA The resulting obligation shall be enforced against the
9262 (Sta. Maria, separate property of the spouse who has not obtained
M., Persons and consent (Art. 73).
Family Relations,
2010, M. p. 409 )
Example: Separate property of erring spouse shall be liable
if profession is seriously invalid and immoral, even
RULE IF BUSINESS BENEFITED FAMILY

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CIVIL LAW PERSONS & FAMILY RELATIONS

if benefits actually accrued in favor of the family. For said Governed By:
exception to apply, the innocent spouse must have no 1.Marriage settlements (MS) executed before the marriage or
knowledge of the other spouse’s engagement in an immoral ante nuptial agreements.
activity such that he could not have interposed any objection 2. Provisions of the Family Code.
(Sta. Maria, M., Persons and Family Relations, 2010, p. 3. Local customs when spouses repudiate ACP.
411).
When parties stipulate in their MS that local custom shall
Exception to exception: When spouse has knowledge of apply or that ACP regime shall not govern but fail to
other spouse’s engagement in an immoral activity, it is as if stipulate what property regime will be applied.
there was actually no disagreement (Paras, p. 507; Sta.
Maria, M., Persons and Family Relations, 2010, p. 411) . 4. In the absence of local custom, rules on co–ownership will
apply (Art. 74).
2. Benefit accrued after objection – Commencement
After objection by the innocent spouse, any obligation It commences at the precise moment of the celebration of the
incurred by the erring spouse that redounded to the benefit marriage. Any stipulations to the contrary shall be void. (Art.
of the family shall be borne by the absolute community of 88 for ACP and 107 for CPG)
property or conjugal property.
Marriage settlement (MS)
Ratio: It would be unfair if the spouse, after obtaining It is a contract entered into by the future spouses fixing the
knowledge of the immoral profession, thereafter, interposed matrimonial property regime that should govern during the
his objection but at the same time made use of the “immoral existence of the marriage.
money” to benefit the family (Sta. Maria, M., Persons and
Family Relations, 2010, p. 412). In the absence of MS or when regime agreed upon is void,
ACP shall govern. (Art. 75)
3.Creditors who acted in good faith are protected – if spouse
transacted with creditor without the consent of the other but Requisites: (BW-SPF-NA)
creditor had no knowledge thereof, the absolute community 1.Made before celebration of marriage
of property (ACP) or conjugal partnership of gains (CPG)
2. In writing (even modifications)
shall be liable.
Oral MS is void and cannot be ratified by any claim of partial
execution or absence of objection
PROPERTY RELATIONS BETWEEN THE
HUSBAND AND THE WIFE
 4.Will not prejudice third persons unless registered in the civil
Exception: If registry and proper registries of property (Sta. Maria, M.,
marriage is Persons and Family Relations, 2010, p. 418- 420)
terminated by 5. Shall fix terms and conditions of their property relations
death of one of 6.Must NOT contain provisions contrary to law, good morals,
spouses and good customs, public order, and public policy, or against the
surviving spouse dignity of either spouse.
marries again 7.Additional signatories/ parties
without initiating Civil interdictees & disabled: It is indispensable for the
settlement of guardian appointed by court to be made a party to the MS.
properties of
previous marriage Note: It is argued by some law practitioners and authors that
within 1 year from while no person below 18 can enter into a valid marriage and
death of since the MS is required to be executed before the marriage,
deceased spouse, one below 18 may execute a MS as long as he or she is 18 or
mandatory above at the time of marriage.
regime of
complete Efficacy of marriage settlement (Art. 81)
separation of
property shall 1. The consideration is the marriage itself. If the marriage does
govern property relations of subsequent marriage (Arts. 103 not take place, the MS is generally void.
& 130)
Exception: Stipulations in the MS that do not depend
3. Signed by the parties

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PERSONS & FAMILY RELATIONS CIVIL LAW

upon the celebration of the marriage shall be valid Donations propter nuptias (DPN) are made by one spouse in
favor of the other or by a stranger. It is without onerous
2. Property relations shall be governed by Philippine laws, consideration, the marriage being merely the occasion or
regardless of the place of the celebration of the marriage or motive for the donation, not its causa. Being liberalities, they
the parties’ residence (Art. 80). remain subject to reduction for inofficiousness upon the
donor’s death, should they infringe the legitime of a forced heir
Exceptions: (Mateo vs. Lagua, No. L-26270, October 30, 1969).
1. If both spouses are aliens, even if married in the Philippines
2. As to extrinsic validity of contracts affecting property: a. Not Requisites: (Art. 82) (COB)
situated in the Philippines executed in the country where the 1. In consideration of marriage
property is located 2. In favor of one or both of the future spouses 3.
b. Situated in a foreign country whose laws require different Made before celebration of marriage
formalities for extrinsic validity entered into in the
Philippines Rules in case of donation by the would-be spouses to each
3.Contrary stipulation other: (MOAC)
1.There must be a valid MS stipulating a property regime
Modification in marriage settlements other than ACP (Art. 84).
2.Donation in MS not more than one-fifth (1/5) of present
General Rule: Must be made before the marriage, in writing, property (Art. 84)
signed by parties
Any excess shall be considered void and the donation will
Exceptions: Modifications made through judicial decree during be reduced to one-fifth.
the marriage:
1. In case of revival of former property regime between However, if their property regime is ACP, no reduction will
reconciling spouses after decree of legal separation has be made.
been issued (Art. 66, 67)
2.When abandoned spouse files petition for judicial separation Limitation does not apply if DPN is not included in MS but
of property under Art. 128 contained in separate deed; general rules on donation apply
3.When a spouse files petition for judicial separation of subject to limitation that no person may give/receive by way
property for sufficient cause under Art. 135 of donation more than he may give/receive by will
4. Petition for voluntary dissolution of property regime under
Art. 136 3.Accepted by would-be spouse
4.Complies with requisites in Title II of Book II of Civil Code on
DONATION BY REASON OF MARRIAGE Donations.
 If one of the only on the basis of Art. 86 of the FC (Art. 84 par. 2).
requisites is not
complied with, it DPN of encumbered property
may still be valid The donation is valid because the donor is still the owner,
as an ordinary even if it is encumbered. If mortgage is foreclosed and sold at
donation. a lesser price, donee is not liable for deficiency but if sold for
more, donee is entitled to excess (Art. 85).
For donation of
present property to Donations propter nuptias and ordinary donations
be valid, the rules
governing ordinary Donations Propter Ordinary Donations
donations under Nuptias
Title III of Book III
of the Civil Code Formalities
must be observed.
Governed by the rules on Governed by rules on
ordinary donations except donations (Arts. 725–773,
Please refer to that if future property is NCC)
Property on requisites donated, it must conform
for valid donations. with formalities of wills
DPN of future Present Property
property
DPN of future property is allowed by way of exception to A rt. May be donated but only No limit except that donor
751 of NCC (which provides that donations cannot
comprehend future property). It is governed by the law on
testamentary succession both as to intrinsic and extrinsic
validity. However said DPN can only be revoked by the donor
32 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS
1.Moderate gifts on occasions of family celebrations
2.Donations mortis causa
up to 1/5 of donor’s shall leave property
present property if the enough for his support Note: This rule also applies to persons living together as
spouses agree on a husband and wife without a valid marriage (Art.87).
regime other than
absolute community The prohibition does not include a spouse being the
beneficiary of an insurance contract over the life of the other
Future property spouse. (Gercio vs. Sunlife Assurance Co. of Canada, G.R.
No. 23703, September 28, 1925)
May be included provided Cannot be included
donation is mortis causa Grounds for revocation (VoCALRI)
1.Marriage not celebrated or declared Void ab initio except
Grounds for revocation those made in MS that do not depend on celebration of
marriage
Art. 86, FC Arts. 760, 764, & 765, NCC
If made by a stranger, action for revocation may be brought
under ordinary rules on prescription: if in writing, brought
within 10 years and if oral, within
RULE ON DONATION BETWEEN 6 years (Albano, Ed Vincent S.,
SPOUSES DURING MARRIAGE Persons and Family Relations,
General rule: VOID, either direct or 2006).
indirect donation
2.Marriage without parental consent
Rationale: 3.Marriage is annulled and donee is
1. To protect unsecured creditors in bad faith 4.Upon legal separation,
from being defrauded; 2. To prevent the donee being the guilty spouse
stronger spouse from imposing 5.Complied with resolutory condition
upon the weaker one the transfer 6.Donee commits acts of ingratitude
of the latter’s property to the as specified by Art. 765 of NCC
former; (Art. 86).
3. To prevent indirect modification
of the marriage settlement SYSTEMS OF
(Paras, p. 520). PROPERTY
Exceptions: REGIMES
 I. ABSOLUTE COMMUNITY OF PROPERTY (ACP) The testator or grantor expressly provides otherwise (Art. 92)
property regime of the spouses in the absence of a marriage
settlement or when the marriage is void. This is so because it Presumption: Property acquired during the marriage is
is more in keeping with Filipino culture. presumed to belong to the community, unless otherwise
proven (Art. 93).
It commences at the precise moment the marriage is
celebrated; any stipulation for the commencement thereof at Note: No waiver of rights allowed during the marriage except
any other time is void (Art. 88). The same applies to CPG in case of judicial separation of property. The waiver must be
(Art. 107). in a public instrument and recorded in the office of the local
civil registrar where the marriage contract was recorded as
Provisions on CO-OWNERSHIP apply to ACP in all matters well as in the proper registry of property (Art. 89 and 77). The
not provided by the Chapter on ACP (Art. 90). same applies to CPG (Art. 107).

General Rule: Community property shall consist of all Rule on games of chance (Art. 95)
property owned by the spouses at the time of the marriage or Loss: Shall be borne by the loser-spouse and shall not be
acquired thereafter (Art. 91). charged to the community property
Winnings: Shall form part of the community property (Art. 95)
Exceptions: (BEG)
1. Property, including fruits and income thereof, acquired Exception: If said ticket was gratuitously given by a friend to a
before the marriage by either spouse who has legitimate spouse, only upon express provision of the donor will it be
descendants by a former marriage considered part of the community property.
2. Property for personal and exclusive use except jewelry 3.
Property acquired during the marriage by gratuitous title, Note: The same applies to CPG (Art. 123).
including fruits and income thereof, except when the donor,

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II. CONJUGAL PARTNERSHIP OF GAINS (CPG) It is that Damages from illegal detention of exclusive property
formed by a husband and wife whereby they place in a pertains to CPG if detention deprived the CP of the use and
common fund the proceeds, products, fruits and income of earnings thereof (Bismorte vs. Aldecoa, G.R. No. L 5586,
their separate properties, and those acquired by either or both December 10, 1910).
spouses through their efforts or by chance, the same to be
divided between them equally (as a general rule) upon the Note: The registration of the property in either party’s name
dissolution of the marriage or the partnership (Art. 106). alone is immaterial if the property was acquired with
conjugal funds (Marigsa v. Macabuntoc, G.R. No. 4883,
The CPG shall be governed by the rules on the CONTRACT September 27, 1910).
OF PARTNERSHIP in all that is not in conflict with what is
provided in the chapter on CPG or by the spouses in their MS 5. Fruits of the conjugal property during the marriage 6.
(Art. 108). Acquired through occupation such as fishing 7.Net fruits
of their exclusive property
Before the presumption under Art. 116 applies (that properties 8. Share of either spouse in hidden treasure (Art. 117) 9.
acquired during marriage are presumed conjugal ), there must Interest falling due during the marriage on principal amount of
be proof that the property was acquired during the marriage. credit belonging to one spouse which is
This is a condition sine qua non for the operation in favor of payable in partial payments/ installments and collected
conjugal ownership (Metrobank, et al. v. Tan, GR No. 163712, during the marriage (Art. 119).
November 30, 2006).
Disposition of CPG
Properties under conjugal partnership (L2C2 FONTI) A wife’s consent to the husband’s disposition of conjugal
1.Obtained from labor, industry, work or profession of either or property does not always have to be explicit or set forth in any
both spouses particular document, so long as it is shown by the acts of the
2. Livestock existing upon dissolution of partnership in excess wife that such consent was indeed given ( Pelayo v. CA, G.R.
of number of each kind brought to the marriage by either No. 141323 June 8, 2005).
spouse
3. Acquired by chance such as winnings from gambling, but The sale of conjugal property requires the consent of both
losses therefrom shall be borne exclusively by loser spouse spouses; otherwise the sale shall be void, including the portion
4. Acquired during the marriage by onerous title with conjugal of the conjugal property pertaining to the husband who
funds contracted the sale (Homeowners and Savings Loan Bank vs.
CA, GR No 153802, March 11, 2005).
Damages for physical injuries inflicted by a third person are
exclusive property (Lilius vs. Manila Railroad Co. G.R. No. Exclusive property of each spouse (OGREC) (Art. 109) 1. That
42551 September 4, 1935) which is brought to the marriage as his/her own, whether with
 or without legitimate descendants 2. Acquired during the If spouse does not accept his/her part of the donation,
marriage by gratuitous title accretion sets in favor of the other spouse who will own all
of property donated as separate property.
Property
donated/left by Accretion will not apply if donor so provides or if there is
will to spouses, designation of determinate properties (i.e. house, car).
jointly with
designation of If donation is onerous, charges shall be borne by exclusive
determinate property of donee-spouse, whenever advanced by the CPG.
shares, shall
pertain to Retirement benefits, pensions, annuities, gratuities,
donee-spouse usufructs, and similar benefits acquired by gratuitous title
as exclusive are exclusive properties; if by onerous title during marriage
property; in the (i.e. contributions to pension funds or deduction from
absence of salaries of common funds), they are CP (Art. 115).
designation,
property shall be Unearned increment (such as increase in the value of the
divided between paraphernal property) belongs to the spouse concerned.
them but shall
belong to them 3. Acquired by right of redemption, barter or exchange with
exclusively (Art.
property belonging to either spouse
113).

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Ownership still belongs to person who has right of Property bought on installment (Art. 118)
redemption, even if conjugal funds are used to redeem, Property bought on installments paid partly from exclusive
subject to reimbursement funds of the spouses and partly from conjugal funds: 1. If full
ownership was vested before the marriage – it
If separate property in addition to conjugal funds were used shall belong to the buyer-spouse (ex: contract to sell, full
as part of purchase price of a new property, the new payment made during marriage using CP)
property shall be considered conjugal
2. If full ownership was vested during the marriage – it shall
4. Purchased with exclusive money of either spouse belong to the conjugal partnership (ex: contract of sale)

5. Principal amount of credit belonging to one spouse payable In both cases, there is reimbursement upon liquidation. In (1),
in partial payments/ installments, which will be fully paid owner-spouse reimburses the CP. In (2), CP shall reimburse
during the marriage (Art. 119). the owner-spouse.

Use of Exclusive Properties: (PISI) Improvement of exclusive property

1. Payment of personal debts Reverse Accession: if the cost of the improvement resulted in
2. Fines and indemnities the increase in value of more than the value of
3. Support of illegitimate children of the owner-spouse 4. the principal property at the time of the improvement, the
In case of insufficiency of the CPG entire property shall belong to CPG subject to reimbursement
(Sta. Maria, M., Persons and Family Relations, 2010, p. of the value of the principal property at the time of the
504) improvement to the owner-spouse.

The spouses retain the ownership, possession, administration Accession: if the cost of the improvement of the plus value is
and enjoyment of their exclusive properties (Art. 110). equal to or less than the value of the principal property at the
time of the improvement, the entire property remains the
A spouse may mortgage, encumber, alienate or otherwise exclusive property of the spouse, subject to reimbursement of
dispose of his or her exclusive property, without the consent of the value of the cost of improvement
the other spouse, and appear alone in court to litigate with
regard to the same (Art. 111). The obligation to reimburse rests on the spouse upon whom
ownership of the entire property is vested. There is no
Transfer of administration of the exclusive property of either obligation on the part of the purchaser of the property in case
spouse does not confer ownership of the same ( Rodriguez v. the property is sold by the owner-spouse (Ferrer v. Ferrer,
De la Cruz, G.R. No. L-3629, September 28, 1907 ). G.R. No. 166496, November 29, 2006).
CHARGES UPON AND OBLIGATIONS OF ACP and CPG
ACP (Art. 94) CPG (Art. 121)

Support of the spouses, their common children, and

legitimate children of either spouse

For illegitimate For illegitimate children,

children, support from support from separate
separate property of person obliged
property of person to give support. In case of
obliged to give support. insufficiency or absence of
In case of insufficiency separate property, CP
or absence of shall advance support,
separate property, chargeable to share of
ACP shall advance parent upon liquidation,
support, chargeable but only after obligations
to share of parent in Art. 121 have been
upon liquidation covered

Debts and Obligations Contracted During

Marriage a. By the administrator spouse
designated in
MS/appointed by court/one assuming sole
administration
b. By one without the consent of the other
c. By one with the consent of other
d. By both spouses

For (a) and (b), creditor has burden of proving benefit to

family and ACP/CPG chargeable to extent of benefit
proven, otherwise, chargeable to separate property of
obligor spouse

For (c) and (d), benefit to family presumed

All taxes, liens, charges and expenses including minor

repairs upon ACP or CP
SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 35
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surety or guarantee agreement not in favor of the family but in
favor of his employer corporation are not benefits that can be
ACP (Art. 94) CPG (Art. 121) considered as giving a direct advantage accruing to the
family. Hence, the creditors cannot go against the conjugal
Taxes and Expenses Taxes and Expenses for partnership property in satisfying the obligation subject of the
for mere preservation mere preservation during surety agreement. A contrary view would put in peril the
during marriage upon marriage upon separate conjugal partnership property by allowing it to be given
separate property of property of either spouse, gratuitously similar to cases of
either spouse used by regardless of whether donation of conjugal partnership property, which is prohibited.
family used by family because
use and enjoyment of The conjugal partnership is NOT liable for an indemnity
separate property of the agreement entered into by the husband to accommodate a
spouses belong to the third party (Security Bank v. Mar Tierra Corp., GR No.
partnership 143382, November 29, 2006).

Expenses to enable either spouse to commence/complete PROVISIONS COMMON TO ACP AND CPG
a professional, vocational or other activity for self
improvement A. Administration of property (ACP: Art. 96-98/ CPG: Art. 124-
125)
Value donated/promise by both spouses in favor of
common legitimate children for exclusive purpose of General Rule: Administration shall belong to both spouses
commencing or completing professional or vocational jointly.
course or other activity for self-improvement
Exceptions:
1. In case of disagreement, husband’s decision shall prevail,
Expenses of litigation between spouses unless suit found
subject to recourse to the court by the wife for proper
to be groundless
remedy within 5 years from date of contract implementing
such decision
1. Ante-Nuptial Debts For Ante-Nuptial Debts,
2. In case one spouse is incapacitated or unable to participate
Chargeable to ACP same as ACP but in case
in the administration of the common properties, the other
if of insufficiency of separate
spouse may assume sole powers of administration (Art.
redounded to benefit property, obligations
enumerated in Art. 121
96).
of family
must first be satisfied These powers do NOT include:
2. Personal debts not
before such debts may be a.Disposition
redounding to
benefit chargeable to the CP b. Encumbrance
of family such as
Written consent of other spouse or authority of the court is
liabilities incurred by
required, otherwise disposition or encumbrance is VOID.
reason of crime or
quasi-delict,
chargeable to The husband and wife are the joint administrators of their
properties forming part of the conjugal partnership and
separate property of
absolute community of properties. The right vested upon them
debtor
to ½ of the conjugal assets does not vest until the dissolution
spouse
and liquidation of the conjugal partnership. The sale by the
3. In case of insufficiency
husband of property belonging to the conjugal partnership or
of separate property,
the absolute community without the consent of the wife or
chargeable to ACP
authority of the court is void (Abalos vs. Macatangay, G.R.
but considered
No. 155043, September 30, 2004).
advances
deductible from share
The transaction, however, shall be construed as a continuing
of debtor-spouse
offer on the part of the consenting spouse and the third
upon liquidation
person, until acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both
offerors (ACP: Art. 96;CPG: Art. 124).
Note: The separate properties shall be solidarily and
subsidiarily liable for the obligations if the community or Neither spouse may donate any community property without
conjugal properties are insufficient. the consent of the other but either may, without the other’s
consent, make moderate donations for charity or on
occasions of family rejoicing or family distress (ACP: Art. 98;
Benefits that might accrue to a husband in his signing a
CPG:Art. 125).
36 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS

Exception: In ACP, either spouse may dispose by will of his or supported;

her interest in the ACP (Art. 97) 2. When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
B. Remedies of present spouse in case of abandonment by obtained in a summary proceeding;
the other spouse or failure to comply with obligations 3. In the absence of sufficient community property, the
(marital, parental or property relations) separate property of both spouses shall be solidarily liable
1.Receivership for the support of the family. The spouse
2. Judicial separation of present shall, upon proper petition in a
property summary proceeding, be given judicial
3. Authority to be the sole authority to administer or encumber any
administrator of the specific separate property of the other
absolute community spouse and use the fruits or proceeds
(ACP: Art. 101; CPG: Art. thereof to satisfy the latter's share (Art.
128) 100).

A spouse is deemed to have D. Steps in liquidation of ACP and CPG

abandoned the other when he (Art. 102 and 129)
or she has left the conjugal 1. Inventory of ACP or CPG properties
dwelling without any intention and exclusive property of each
of returning. Three (3) months’ spouse
disappearance or failure to
give within the same period Separate property included as it is
any information as to a solidarily liable to creditors and will be
spouse’s whereabouts prima used to pay them if ACP or CPG is
facie raises a presumption that insolvent
the absent spouse has no
intention of returning (ACP: Should also include receivables from
Art. 101 par. 3; CPG: Art. 108 each spouse for:
par. 3). a. Amounts advanced for personal
debts of each spouse
C. Grounds for termination b. Support pendent elite of each
(ACP: Art. 99-101; CPG: spouse
Art. 126-128): (LADS) c. For CPG, include value of
1.Decree of legal separation improvements constructed on
separate property
2.Annulment or declaration of
2. Payment of ACP or CPG debts
nullity of marriage 3.Death of
Must first pay out of the ACP or CP
either spouses property, if insufficient, spouses
solidarily liable with separate
Surviving spouse shall liquidate ACP within 1 year from properties
death of deceased spouse if no judicial settlement is
instituted, failure to do so upon lapse of 1 year period makes For CPG, must first reimburse spouse for separate
any disposition or encumbrance of ACP void property acquired by CP due to increased value thereof
as a result of improvements thereon
Mandatory regime of complete separation of property
governs subsequent marriage of surviving spouse if he/she 3.Delivery to each spouse of his/her separate property if any
fails to comply with liquidation of ACP of previous marriage 4. For CPG, unless owner indemnified from whatever
source, payment of loss or deterioration of movables
4. Judicial separation of property belonging to either spouse that was used for the benefit of
the family
Note: Effect of separation in fact (ACP: Art. 102; CPG: Art. 5.Division of net assets (for ACP) or net profits (CPG), which
127) are not subject to forfeiture

General Rule: The separation in fact between husband and Use of Exclusive Properties: (PISI)
wife shall not affect the regime of ACP/CPG a. Payment of personal debts
b. Fines and indemnities
Exceptions: c. Support of illegitimate children of the owner-spouse d.
1. The spouse who leaves the conjugal home or refuses to live In case of insufficiency of the CPG
therein, without just cause, shall not have the right to be (Sta. Maria, M., Persons and Family Relations, 2010, p.
 504) 6.Delivery of presumptive legitime, if any, to the

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PERSONS & FAMILY RELATIONS CIVIL LAW

children 3.Upon satisfaction of court that spouse granted administration

7. Adjudication of conjugal dwelling and lot in the MS will not abuse that power and authorizes
resumption of said administration
III. SEPARATION OF PROPERTY DURING THE 4.Return and resumption of common life with spouse by the
MARRIAGE other who left the conjugal home without decree of legal
separation
Takes place if expressly provided for in the MS or by judicial 5.Restoration of parental authority
order after the marriage (Art. 134). 6.Reconciliation and resumption of common life of spouses
who had been separated in fact for at least 1 year
It may refer to present or future 7. Spouses agree upon joint petition
property or both, total or partial. If to revival of former property regime
partial, ACP shall govern properties after voluntary dissolution of ACP or
not agreed upon as separate (Art. CPG has been judicially decreed
144).
No voluntary separation of property
Separation of property may be may thereafter be granted.
effected voluntarily or for sufficient
cause, subject to judicial approval Administration of exclusive property
(Art. 134). (Art. 142) 1. The administration of all
classes of exclusive property of either
Causes of judicial separation of spouse may be transferred by the
property: (CLA²PS) (Art. 135) court to the other spouse:
1. Petitioner’s spouse has been a.When one spouse becomes the
sentenced with a penalty which guardian of the other; b.When one
carries with it civil interdiction; spouse is judicially declared an
2. Loss of parental authority of absentee; c. When one spouse is
petitioner’s spouse as decreed sentenced to a penalty which
by the court; carries with it civil interdiction; or
3. Petitioner’s spouse has been d.When one spouse becomes a
judicially declared an absentee; fugitive from justice or is in hiding as an accused in a
4.Abandonment by the petitioner’s spouse or failure to comply criminal case.
with the obligations to the family as provided in Art. 101; 2. If the other spouse is not qualified by reason of
5. Spouse granted power of administration in marriage incompetence, conflict of interest, or any other just cause,
settlement abused such power; and the court shall appoint a suitable person to be the
6. At the time of the petition, spouses have been separated in administrator (Art. 142).
fact for at least 1 year and reconciliation is highly improbable
IV. REGIME OF SEPARATION OF PROPERTY 1. Each
Note: In the cases provided for in (1-3), presentation of final spouse shall own, dispose of, possess, administer and enjoy
judgment against guilty/ absentee spouse is enough basis for his or her own separate estate, without need of the consent of
grant of degree of judicial separation of property. the other. To each spouse shall belong all earnings from his or
her profession, business or industry and all fruits, natural,
industrial or civil, due or received during the marriage from his
Effects of judicial separation of property
or her separate property (Art. 145).
1.Dissolution and liquidation of ACP/CPG (Art. 137) 2. Liability
2. The spouses contribute to the family expenses
of the spouses to creditors shall be solidary with their separate
PROPORTIONATELY with their income or in case of
properties
insufficiency or default thereof, with the current market value
3.Mutual obligation to support each other continues except
of their separate properties. However, the liability of the
when there is legal separation
spouses to the creditors for family expenses is SOLIDARY
4.Rights previously acquired by creditors are not prejudiced
(Art. 146).
(Art. 140)
A Compromise Agreement which was judicially approved is
Revival of former property regime (Art. 141) It shall be
exactly such a separation of property allowed under the law.
governed by Art. 67 and may be filed in the same proceedings
However, voluntary separation of property is subject to the
where separation of property was decreed in any of the rights of all creditors of the conjugal partnership of gains and
following instances:
other persons with pecuniary interest pursuant to Article 136 of
1. Termination of civil interdiction the Family Code (Virgilio Maquilan vs. Dita Maquilan, G.R. No.
2.Reappearance of absentee 155409, June 8, 2007).
38 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
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V. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

Forfeiture
Art. 147 Art. 148
When only one of the 1. If one of parties is
Applicability parties to avoid marriage validly married to
is another, his or
The following must concur: In cases of cohabitation
1. Parties who are not falling under Art. 147.
capacitated to marry each Parties do not have the
other capacity to marry due to
some legal impediments in good faith, share of her share in the co
2. Live exclusively with
(i.e. adulterous party in bad faith in the co ownership shall accrue
each other as husband
relationships and ownership shall be to the ACP or CPG
and wife
marriages which are forfeited: existing in such valid
3. Without benefit of
bigamous, incestuous, or 1. In favor of their marriage.
marriage or under void
void by reason of public common children. 2. If party who acted in
marriage
policy under Art. 38) 2. In case of default or bad faith is not validly
waiver by any or all married to another,
Salaries and Wages common children or his/her share shall be
their descendants each forfeited in the same
Owned in equal shares Separately owned by the vacant share shall manner provided for in
parties. If any of them is belong to respective Art. 147
married, his/her salary is surviving descendants 3. The above rules apply
the property of the CPG of 3. In their absence, to the even if both parties are
the legitimate marriage innocent party. in bad faith.

Property acquired by either exclusively by own funds In all cases, forfeiture

takes place upon
Belongs to such party Belongs to such party termination of
subject to proof of cohabitation.
acquisition by exclusive
funds

Property acquired by both through their work / Tender Loving Care Doctrine
industry The relationship between a man and
a woman whose marriage was
Governed by rules on co Owned by them in subsequently declared null and void
ownership common in proportion to on the ground of psychological
respective contributions incapacity is governed by Art. 147 of
the Family Code. Under this article,
Property acquired while living together there exists a presumption that the
contributions are equal. Even if one
Presumed to be obtained No presumption of joint of the parties did not contribute
by their joint efforts, work, acquisition. When there is materially to the common fund, but
or industry and shall be evidence of joint the said party took care of the
owned by them in equal acquisition but none as to household, the other party and their
shares. Efforts in care and the extent of actual common children, these acts are
maintenance of family and contribution, there is a considered the said party’s
household considered presumption of equal contribution to the common fund
contribution in acquisition. sharing (Buenaventura v. Buenaventura,
G.R. No. 127358 & 127449, March
Note: Neither party can 31, 2005).
encumber or dispose by
acts inter vivos of his or Note: Under Art. 148 there is no presumption of joint
her share in the property acquisition. It must be stressed that actual contribution is
acquired during required by this provision, in contrast to Art. 147 which states
cohabitation and owned in that efforts in the care and maintenance of the family and
common without the household, are regarded as contributions to the acquisition of
consent of the other until common property by one who has no salary or income or
after the termination of work or industry. Under Art. 148, if the actual contribution of
their cohabitation. the party is not proved, there will be no co ownership and no
presumption of equal shares (Agapay v. Palang, G.R. No.
116668, July 28, 1997). Hence, mere cohabitation without
 proof of contribution will not result in a co-ownership (Tumlos property acquired by common law spouses during the period
vs. Fernandez, G.R. NO. 137650, April 12, 2000). of cohabitation is presumed to have been obtained through
their joint efforts and owned by them in equal shares in the
HOWEVER, in the case of Abing v. Waeyan (G.R. absence of proof to the contrary. Rules on co- ownership
No.146294, July 31, 2006) the Supreme Court ruled that any govern their property relations.

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PERSONS & FAMILY RELATIONS CIVIL LAW

THE FAMILY ascendants and descendants, or relative by affinity in the

same line;
The family is a basic social institution which public policy 2. The widowed spouse with respect to the property which
cherishes and protects (Art. 149); hence, no suit between belonged to the deceased spouse before the same shall have
members of the family shall prosper unless a compromise passed into the possession of another; and 3. Brothers and
between the parties has failed (Art. 151). Family relations are sisters and brothers-in-law and sisters-in
governed by law and no custom, practice or agreement law, if living together.
destructive of the family shall be recognized or given effect
(Art. 149). Running of prescriptive periods
Unless otherwise provided by the Family Code and other
Family relations include: laws, Art. 1109 of the Civil Code provides that prescription
does not run between:
1. Between husband and wife
a.Husband and wife, even though there be a separation of
2. Between parents and children
property agreed upon in the marriage settlements or by
3. Among other ascendants and descendants 4. Among
judicial decree;
brothers and sisters whether full or half–blood (Art. 150)
b. Parents and children during the latter’s minority or
insanity;
Mandatory Prior Recourse to Compromise No suit between
c. Guardian and ward during the continuance of the
members of the same family shall prosper UNLESS it appears
guardianship. (Sta. Maria, m., persons and family
from the verified complaint or petition that earnest efforts
relations 2010 ed., p. 589)
toward a compromise have been
made, and that the same have
failed. If it is shown that no such FAMILY HOME
efforts were, in fact, made, the case It is constituted jointly by the husband
must be dismissed (Art. 151). and wife or by an unmarried head of
a family; is the dwelling house where
they and their family reside, and the
Exceptions: land on which it is situated (Art. 152).
1.When a stranger is involved in
the suit
General Rule: The family home is
exempt from execution, forced sale or
Ratio: The interest of such stranger attachment.
may differ from the interest of
members of the same family. (Sta.
Rationale: When the creditors seize
Maria, M., Persons and Family
the family house, they virtually shatter
Relations, 2010, p. 588)
the family itself.
2.In cases where compromise is
Exceptions: (PLMN)
invalid under the Civil Code (Art.
2035): (CV JAFF) 1.Debts incurred prior to constitution
(Art. 153);
a.Civil status of persons
b. Validity of marriage or a legal separation
Note: Art. 153 cannot be given retroactive effect to shield
c. Jurisdiction of courts
the homes of debtors from execution of judgment arising
d.Any ground for legal separation
from debts which became due and demandable prior to the
e. Future support
effectivity of the Family Code. To be able to avail of the
f. Future legitime benefits of a family home in relation to debts which matured
prior to August 3, 1988, it must be shown that the home was
The term “suit” provided by law clearly implies only civil constituted either judicially or extrajudicially pursuant to the
actions. (Manalo vs. CA, G.R. No. 129242, January 26, 2000 ) old Civil Code (Sta. Maria, M., Persons and Family
On the other hand, Art. 332 of the Revised Penal Code Relations, 2010, p. 591).
provides for exemption from criminal, but not civil liability, for
the crimes of theft, swindling or malicious 2.Debts due to laborers, mechanics, architects, builders,
mischief committed or caused by the following: 1. Spouses, material men and others who have rendered service or
 furnished materials for the construction of the building (Art. If ever the family home is subject of an attachment, the
155); beneficiaries thereof have to move for the quashal of the writ
3.Debts secured by mortgages on family home (Art. 155); of attachment. If no motion for the quashal of the writ or
4.Non–payment of taxes on home (Art. 155) attachment or levy is filed, the benefit of exemption is
considered waived (Honrado v. Court of Appeals, G.R. No.
166333, November 25, 2005).

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As a rule, the family home is exempt from execution, forced After 10 years and a minor beneficiary still lives therein, the
sale or attachment. However, Article 155(3) of the Family family home shall be preserved only until that minor
Code explicitly allows the forced sale of a family home “for beneficiary reaches the age of majority. The intention of the
debts secured by mortgages on the premises before or after law is to safeguard and protect the interests of the minor
such constitution.” In this case, there is no doubt that beneficiary until he reaches the age of majority (Perla G.
spouses Fortaleza voluntarily executed on January 28, 1998 Patricio vs. Marcelino G. Dario III, G.R. No. 170829,
a deed of Real Estate Mortgage over the subject property November 20, 2006).
which was even notarized by their original counsel of record.
And assuming that the property is exempt from forced sale, The family home is shielded from immediate partition under
spouses Fortaleza did not set up and prove to the Sheriff Article 159 regardless of its ownership. This signifies that even
such exemption from forced sale before it was sold at the if the family home has passed by succession to the co-
public auction (Sps. Fortaleza and Ofelia Fortaleza v. Sps. ownership of the heirs, or has been
Lapitan, G.R. No. 178288, August 15, 2012). willed to any one of them, this fact alone cannot transform the
family home into an ordinary property, much less dispel the
Outline of provisions regarding the family home: 1. It is protection cast upon it by the law. The rights of the individual
constituted on the dwelling house of the family and the land on co-owner of the family home cannot subjugate the rights
which house is situated granted under Article 159 to the beneficiaries of the family
2.Deemed constituted from time of actual occupation as a home (Arriola v. Arriola, G.R. No. 177703, January 28, 2008 ).
family residence (Art. 153)
3.Continues to be such as long 8. To be a beneficiary (other than the
as any of its beneficiaries husband and the wife or an unmarried
actually resides therein (Art. person who is the head of the family),
153) three requisites must concur:
4.Must be part of the properties a. They must be either the parent,
of the absolute community ascendant, descendant, brother or
or the conjugal partnership sister whether legitimate or
or owned by person illegitimate (Art. 154).
constituting it (may be either b. They must live in the family home
or both spouses or the c. They are dependent for legal support
single head of a family) (Art. upon the head of the family.
156) Thus in Patricio vs. Dario III (G.R. No.
170829, November 20, 2006) a
Property that is the subject grandson was not considered a
of a conditional sale on beneficiary of a family home owned by
installments where his grandparent because, while the
ownership is reserved by the said grandchild was living in the said
vendor only to guarantee family home, he was not dependent
payment of the purchase for support on the grandparent, who
price may be constituted as was the head of the family where the
a family home. (Art. 156 par. grandchild lived, but on his father.
2)
5.Must be permanent (Sta. Maria, M., Persons and Family d. In-laws, provided the home is jointly constituted by
Relations, 2010, p. 590). husband and wife. But this law definitely excludes maids
6.Rule applies to valid and voidable and even to common law and overseers (Manacop v. CA, G.R. No. 102855
spouses under Articles 147 and 148 November 13, 1992).
7.Continues despite death of one or both spouses or 8. Every person may constitute or be the beneficiary of one (1)
unmarried head of the family for 10 years, or as long as a family home only. (Art. 161)
minor beneficiary lives therein. Heirs cannot partition the 9.May be alienated, sold, donated, assigned or encumbered
same unless the court finds compelling reasons therefor. by the owners provided the written consent of the following
(Art. 159). are obtained:
a. The person who constituted the same,
 b.His or her spouse, and It refers to the relationship existing between parent and child
c. Majority of the beneficiaries of legal age give their (Noe v. Velasco, 61 O.G. 411).
consent. (Art. 158)
Paternity
It is the civil status relationship of the father to the child.
PATERNITY AND FILIATION
Filiation
It is the civil status or relationship of the child to the father or
Paternity and filiation mother.

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The filiation of children may be by nature or by adoption.

Legitimated: conceived
Natural filiation may be legitimate or illegitimate (Art. 163).
and born outside of
wedlock of parents
LEGITIMATE AND ILLEGITIMATE CHILDREN without impediment at the
DISTINGUISHED time of conception and
Legitimate Illegitimate had subsequently
married
Conceived or born during Conceived and born
a valid marriage (Art. outside a valid marriage Use of Surname
164) or inside a void ab initio
marriage such as Right to bear father’s Generally required to
bigamous and incestuous surname use mother’s surname
marriages and marriage
declared void for being Exception:
contrary to law and public If child’s filiation has
policy (Art. 165) been expressly
recognized by the father
Conceived or born before Born after the decree through the
the judgment of of annulment of a record of birth appearing
annulment or absolute voidable marriage in the civil register, or
nullity of when
marriage if the ground
is psychological
incapacity (Art. 54)
Legitimate Illegitimate
Born in a subsequent
void marriage due to
an admission in a
failure to comply with
public document or
Art. 52 and 53 (Art. 54)
private
handwritten instrument is
Product of artificial
made by the father.
insemination provided
(Sec.1, RA 9255)
both spouses authorized
or
Parental Authority
ratified such procedure in
a written instrument, Joint authority of parents Sole parental authority
executed and signed of mother
before birth of child
and recorded (Art. Support
164)
Entitled to receive support Entitled to receive
Conceived or born of from any of his or her support only up t his or
mothers who might direct ascendants and her
have declared against descendants in grandparents or
its accordance with the grandchildren as
legitimacy or was priority set by law in Art. provided for in Art.
sentenced as an 195 and 199 (Sta. Maria, 195(2) and (3) (Sta.
adulteress (Art. 167) M., Persons and Family Maria, M., Persons and
 Relations, 2010, p. 650). Family Relations, Beneficiary Right Under the SSS (RA 8282) and GSIS
2010, p. 650). (RA 8291)
Preferential right to
support over mother if No such preference Primary beneficiary Not primary beneficiaries
father has no sufficient
means to meet both Paternity Leave under RA 8187 (Paternity Leave Act of
claims 1996)

Successional Right Father is entitled to No such benefit

paternity leave of 7
Entitled to inheritance Entitled to ½ of days with full pay
legitimate child’s
inheritance

42 RULE ON CHILDREN CONCEIVED AS A within the

SAN BEDA COLLEGE OF LAW RESULT OF prescriptive period, the child shall still be
ARTIFICIAL INSEMINATION considered
The status of the child is legitimate if all the legitimate because the child has been
requirements conceived or born
under Art. 164 are complied with namely: during the valid marriage of the parents
1. Both spouses authorize or ratify such pursuant to Article
insemination 164 par. 1.
2. The authorization or ratification is in a
written instrument
signed by them before the birth of the child
3. The instrument is recorded in the civil
registry together
with the birth certificate of the child.

Note: Even if the above requirements are

not complied
with and the husband does not impugn the
legitimacy of
the child on grounds provided by Art. 166

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RULES ON IMPUGNING LEGITIMACY (Art. 166 and 167) evidence hence, the fact that a husband, who was never
Necessarily applies only to a situation where the child has separated from his wife, has been absolutely stiff in th
been delivered by a woman who is the child’s natural mother hips at the time of the conception of the child has been
(Sta. Maria, M., Persons and Family Relations, 2010, p. 609). held as not conclusive enough to overturn the
presumption of legitimacy. (State vs. Reed, 107 W Va.
In the event that any of the grounds enumerated in Art. 166 is 563, as cited Sta. Maria, p. 616)
proven, the child will neither be legitimate nor illegitimate in so
far as the husband is concerned. Simply, the husband and the b.Husband and the wife were living separately;
child will not be related to each other in any manner
considering that the husband did not participate in any way as Note: Mere remoteness of the wife from the husband is
to the child’s precreation. In so far as the mother is concerned, not sufficient to disavow paternity. Hence, the bare
the child will be considered illegitimate (Sta. Maria, M., testimony by the husband that he and his wife were living
Persons and Family Relations, 2010, p. 609). thirty miles away from each other at the time of the
conception of the child is not enough to show the
Grounds for impugning legitimacy: (PBC) 1. Physical illegitimacy of the child without any showing that the
impossibility of the husband to have sexual intercourse with sexual intercourse with the wife was not possible (Skott
his wife within the first 120 days of the 300 days immediately vs. State, 46 ALR 3d 180 as cited Sta. Maria, p.616).
preceding the child’s birth, due to:
a. Physical incapacity of the husband; c. Serious illness of the husband which absolutely prevented
sexual intercourse
Note: Must be proved by convincing and persuasive
 Note: Must be such as to absolutely prevent him from by not only the spouses against each other but also by third
engaging in sexual intercourse. Hence in Andal v. persons on both of the spouses or on any one of them. In
Macaraig (G.R. No. L-2474, May 30, 1951) , the Court any case, only the husband can impugn the legitimacy of the
ruled that the fact that the husband was seriously sick with child, or the heirs in special cases provided in Art. 171.
tuberculosis was not sufficient to overcome the
presumption of legitimacy. Impossibility of access by Prescriptive periods to file action to impugn legitimacy:
husband to wife would include absence during the 1. One year, from knowledge of birth or recording in the civil
initial period of conception; impotence which is patent, register, if husband or heirs live in the SAME
continuing and incurable; and imprisonment, unless it can city/municipality where the birth took place or was recorded.
be shown that cohabitation took place through corrupt 2. Two years, if both reside in the Philippines. 3. Three years, if
violation of prison regulations. the child’s birth took place or was recorded in the Philippines
while the husband has his residence abroad, or vice versa
2.Biological or scientific proof that the child could not have (Art. 170).
been that of the husband;
Note: Racial dissimilarity may be a considered sufficient Note: The question of legitimacy cannot be collaterally
scientific proof (Watkins vs. Carlton, 37 VA [10 Leigh] 586 attacked. It can be impugned only in a direct action. (Liyao Jr.
as cited Sta. Maria, p. 617). vs. Liyao, G.R. No. 138961, March 7, 2002)

For sterility to constitute proof of non-paternity, the husband Parties who can impugn legitimacy of a child:
must be shown to be completely sterile at the time when the
child was conceived (Sta. Maria, M., Persons and Family General Rule: Only the husband may impugn.
Relations, 2010, p. 618).
Exception: The heirs may impugn within the same period in
3. Vitiated consent in artificial insemination the following cases:
1 If the husband dies before the expiration of the period fixed
Note: The for bringing his action
mistake, fraud, 2 If he should die after the filing of the complaint without
violence, having desisted therefrom; or
intimidation or 3 If the child was born after the husband’s death (Art. 171).
undue influence
can be exerted An assertion by the mother against the legitimacy of her

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43
PERSONS & FAMILY RELATIONS CIVIL LAW

child cannot affect termination of previous marriage

the legitimacy of 4.Child was born within 300-day period
the child born or 5.No evidence as to status of child
conceived within a
valid marriage. A mother has no right to disavow a child Rules on presumption of filiation in case of two
because maternity is never uncertain (Concepcion v. CA, GR marriages:
No 123450, August 31, 2005). 1. To first marriage, if child was born before the lapse of 180
days after celebration of 2nd marriage, provided it was born
The death of the putative father does not ipso facto negate the within 300 days after termination of the 1st marriage.
application of DNA testing for as long as appropriate biological 2. To second marriage, if child was born after 180 days
samples of his DNA exist. In such a case the petitioner must following celebration of 2nd marriage, whether born within
show the impossibility of obtaining an appropriate biological
300 days after termination of 1 st marriage or afterwards (Art.
sample that can be utilized for the conduct of DNA testing
168).
(Estate of Rogelio Ong v. Diaz, G.R. No. 171713, December
17, 2007).
Illustration:
STATUS OF CHILDREN BORN WITHIN 300 DAYS FROM Termination of first marriage: October 1, 2011 Celebration of
THE TERMINATION OF A FIRST MARRIAGE AND THE second marriage: January 1, 2012 300th day from termination
CELEBRATION OF A SUBSEQUENT MARRIAGE (Art. 168 of first marriage: July 26, 2012 180th day from celebration of
and 169) second marriage: June 28, 2012

Requisites: (TS–WBN) Hence:

1. First marriage terminated Child born on or before June 28, 2012 is presumed to be
2.Mother contracted subsequent marriage filiated to the first husband.
3. Subsequent marriage was contracted within 300 days after
Child born at any time after June 28, 2012 (even if before
July 26, 2012) is presumed to be filiated with the second continuous possession of the status of a legitimate or
husband. illegitimate child;
2.Any other means allowed by the Rules of Court and special
Note: The legitimacy or illegitimacy of a child born after three laws (Art. 172).
hundred days following the termination of the a. An act or declaration concerning pedigree (Sec. 33, Rule
marriage shall be proved by whoever alleges such illegitimacy 130, Rules of Court)
or illegitimacy (Art. 169). b. Family reputation or tradition concerning pedigree (Sec.
34, Rule 130, Rules of Court)
Note: Art. 169 negates any presumption of filiation for a child c. Common reputation respecting pedigree (Sec. 35, Rule
born after 300 days from the termination of a marriage, in the 130, Rules of Court)
absence of a subsequent marriage (Sta. Maria, M., Persons d. Judicial admission (Sec. 2, Rule 129, Rules of Court) e.
and Family Relations, 2010, p. 627). Admission of a party (Sec. 22, Rule 130, Rules of Court)
f. Admission by silence (Sec. 23, Rule 130, Rules of Court)
PROOF OF FILIATION
General Rule: Filiation of legitimate (or illegitimate) children is Baptismal certificate, judicial admission, family bible,
established by any of the following: (RA) 1. The record of birth evidence of pedigree, admission by silence, testimonies
appearing in the civil registry or a final judgment of witnesses and other pieces of evidence under Rule
2. An admission of legitimate (or illegitimate) filiation in a public 130, Rules of Court may be proofs of filiation (Cruz vs.
document or a private handwritten instrument and signed by Cristobal, G.R. No. 148247,August 7, 2006).
the parent concerned.
In Dela Cruz vs. Garcia (G.R. No. 177728, July 31, 2009),
Exceptions: In the absence of any of the foregoing evidence, a handwritten autobiography of the father was recognized
such legitimate or as evidence of filiation although not signed. The Court
illegitimate filiation ruled that “where the private handwritten instrument is
shall be proved by: accompanied by other relevant and competent evidence,
(OA) it suffices that the claim of filiation therein be shown to
have been made and handwritten by the acknowledging
1.Open and parent as it is merely corroborative of such other
evidence.”

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Action to Claim during the lifetime of the alleged parent (Guy vs. CA, ibid).
Legitimacy (Art. 173)
Who may claim: 3.Unlike an action for legitimacy, the right to claim for status is
1.Child – exclusive NOT transmissible to the heirs.
and personal right of child which may be brought anytime
during his lifetime, regardless of the proof presented to “Continuous” does not mean that the concession of status
support his claim shall continue forever but only that it shall not be of an
2. Transmitted to heirs of the child within a period of 5 years in intermittent character while it is continuous. The possession
case of such status means that, the father has treated the child as
a.Child dies during minority his own, directly and not through others, spontaneously, and
b.Child dies in a state of insanity without concealment, though without publicity. There must
c. Child dies after action has already been instituted be a showing of permanent intention of the supposed father
to consider the child as his own by continuous and clear
Action to Claim Illegitimacy manifestation of paternal affection and care (Mendoza vs.
Illegitimate children may establish their illegitimate filiation in CA, G.R. No. 86302 September 24, 1991).
the same way and on the same evidence as legitimate
children (Art. 175). The paternal affection and care must not be attributed to
pure charity. “Such acts must be of such a nature that they
1. If illegitimate filiation is established by a record of birth in the reveal not only the conviction of paternity, but also the
civil register or a final judgment, or an admission of filiation apparent desire to have and treat the child as such in all
in a public document or a private handwritten instrument relations in society and in life, not accidentally, but
signed by the parent concerned, the action for recognition continuously” (Jison vs. CA, GR. No. 8454, April 13, 1956).
may be brought by the child during his lifetime ( Guy, vs. CA, If the unsigned record of birth can be a proof of filiation of
G.R. No. 163707, September 15, 2006). the child, it would be easy for a woman to vest legitimate
status to an illegitimate child. Hence, an unsigned record of
2. If the action is based upon open and continuous possession birth cannot be used as proof of filiation ( Reyes v. Court of
of the status of an illegitimate child, or any other means Appeals, GR. 39537, March 19, 1985).
allowed by the rules or special laws, it may be only brought
 RIGHTS OF CHILDREN
Legitimate Illegitimate R.A. No. 9255
An Act Allowing Illegitimate Children to use the surname of
Use of father & mother’s Use of mother‘s surname their Father, amending for the purpose Article 176 of EO No.
surname 209, otherwise known as the "FAMILY CODE OF THE
Note: However, R.A. PHILIPPINES" (approved February 24, 2004).
9255 amended Art. 176,
FC Illegitimate children may use the surname of their father if:
1. Their filiation has been expressly recognized by the father
Receive support from Receive support only up through the record of birth appearing in the civil register, or
ascendants or to grandparent and 2.When an admission in a public document or private
descendants of the same grandchildren handwritten instrument is made by the father; Provided, that
line. the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime.
Entitled to the legitime in Legitime is ½ of the
succession legitime of a legitimate LEGITIMATED CHILDREN
child
Legitimation
Right to inherit ab No right to inherit as such It is a remedy by means of which those who in fact were
intestato from legitimate conceived and born outside of wedlock and should therefore
children and relatives of be considered illegitimate are by legal fiction considered
his father and mother legitimate. It shall take place only by the subsequent valid
marriage between the biological parents.

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Requisites: (NIM) legitimate children (Art. 179)

1. The child is illegitimate.
2. The parents at the time of the child’s conception are not Note: Legitimation creates for the legitimated child the total
disqualified by any impediment from marrying each other or and full extent of the blood-relationship existing within the
were so disqualified only because either or both of them family to include all descendants, ascendants and collateral
were below eighteen (18) years of age (Art. 177, as relative, unlike in adoption where only a parent-child
amended by R.A. 9858). relationship is created. (Sta. Maria, M., Persons and Family
3. There is a valid marriage subsequent to the child’s birth Relations, 2010, p. 661)
(Art. 178).
2. The effects of legitimation shall retroact to the time of the
Note: Children born out of wedlock to parents who were not child’s birth (Art. 180)
allowed by law to marry for being minors are now qualified for 3. The legitimation of children who died before the celebration
legitimation. This has been made possible by RA 9858, of the marriage shall benefit their ascendants (Art. 181)
approved on December 20, 2009 and has amended Article 4. Legitimation may be impugned only by those who are
177 of the Family Code of the Philippines. Before RA 9858, prejudiced in their rights.
Article 177 stated that only children born out of wedlock to Generally refers to those who would suffer economic or
parents who were not disqualified from getting married at the material injury by legitimation such as testamentary or
time of conception could be legitimized.Under the present law, intestate heirs (Sta. Maria, M., Persons and Family
legitimation would automatically take place upon marriage of Relations, 2010, p. 663).
the parents. Moreover, couples who had children when they
were below the marrying age would not need to go through the Legitimation may be impugned within 5 years from the time
process of having to adopt their own offspring just so their kids their cause of action accrues, that is, from the death of the
could enjoy the rights of legitimate children. putative parent.

Notes: Laws providing for the process of legitimation are Legitimation may be impugned on grounds like: a. The
remedial in character intended for the benefit and protection of subsequent marriage of the child’s parents is void;
the innocent offspring and, therefore, may be applied b. The child allegedly legitimated is not natural; or c. The
retrospectively (Lund’s Estate, 162 ALR 606) and must be child is not really the child of the alleged parents.
liberally construed (Cardenas vs. Cardenas, 12 Ill. App 2d
497, 63 Alr2rd 1001 as cited in Sta. Maria, p. 659 ).
Effects of legitimation: ADOPTION
1. Legitimated children shall enjoy the same rights as
 The process of making a child, whether related or not to the manifestation of their natural parental instincts. Every
adopter, possess in general, rights accorded to a legitimate reasonable intendment should be sustained to promote and
child (Paras, E. Civil Code of the Philippines Annotated, 2002 fulfill these noble and compassionate objectives of the law (In
ed., p. 685). re: Petition for adoption of Michelle P. Lim, G.R. No. 168992-
93 May 21, 2009).
Adoption statutes,
being humane and Nature of adoption proceedings
salutary, hold the 1. Adoption is a juridical act. Only an adoption made through
interest and welfare the court, or in pursuance with the procedure laid down
of the child to be of under Rule 99 of the Rules of Court is valid in this
paramount jurisdiction. It is not of natural law at all, but is wholly and
consideration and entirely artificial. To establish the relation, the statutory
are designed to requirements must be strictly carried out, otherwise, the
provide homes, adoption is an absolute nullity (Lazatin vs. Hon. Judge
parental care and Campos, G.R. No. L-42955-56 July 30, 1979).
education for 2. Adoption proceedings are IN REM and publication serves as
unfortunate, needy constructive notice to the whole world (Santos vs.
or orphaned Aranzanso, L-23828, February 28, 1966).
children and give
them the protection
of society and
family in the person DOMESTIC ADOPTION ACT OF 1998 (R.A. No. 8552)
of the adopter as
well as to allow
Pre–adoption services (Sec. 4-6)
childless couples to experience the joys of parenthood and
The DSWD shall provide for the following services:
give them legally a child in the person of the adopted for the

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1.Counseling services for – children

a. biological parents [Sec. 4(a)],
2. Alien (S-DELL)
Note: No binding commitment for and adoption plan shall be a. Same qualifications as a Filipino
permitted before the birth of his or her child. b.Country has diplomatic relations with the Philippines. c.
Certified by said office that his government allows the
A period of 6 months shall be allowed for the biological adoptee to enter his country as his adopted child d.Has been
parent(s) so reconsider any decision to relinquish his/her living in the Philippines for at least three (3) continuous
child for adoption before the decision becomes irrevocable. years prior to the application for adoption and maintains
such residence until the adoption decree is entered,
b. prospective adoptive parents [Sec. 4 (b)] and c. e.Certified to have legal capacity to adopt by his/her
prospective adoptee [Sec. 4(c)] diplomatic or consular office but certification may be
waived in the same instances for waiver of residency
2. Exhaust all efforts to locate the unknown biological parents requirement in (c)

Note: If efforts fail, child shall be listed as a foundling and Note: Requirements listed under (c), (d) and (e) may be
shall be judicially declared as abandoned [Sec. 5] waived if the alien is:
i.A former Filipino citizen seeks to adopt a relative
Who may adopt: (LPG-CONE) within the 4th degree of consanguinity or affinity ii.One
1. Filipino citizen [Sec. 7 (a)]: who seeks to adopt the legitimate son/daughter of his/her
a.Of legal age Filipino spouse
b. In a position to support and care for his/her children in iii.One who is married to a Filipino citizen and seeks to
keeping with the means of the family adopt jointly with his/her spouse a relative within the 4 th
c. Good moral character degree of consanguinity or affinity of the Filipino spouse
d. In possession of full civil capacity or legal rights e. At least
16 years older than the adoptee, except when: If a Filipino adopts an alien, the adopted alien does not acquire
i. Adopter is the biological parent of the adoptee ii. Philippine citizenship because such acquisition of citizenship
Adopter is the spouse of the adoptee’s parent acquires the character of naturalization which is regulated, not
by the Civil Code or the Family Code, but by special law
f. Has not been convicted of any crime involving moral (Ching Leng vs. Galang, G.R. No. L-11931, October 27,
turpitude 1958).
g. Emotionally and psychologically capable of caring for
 3. Guardian (TC) [Sec. 7(c)] 3. The spouses are legally separated
a. After termination of the guardianship, with respect to the
ward, and Other factors to be considered in evaluating prospective
b.Clearance of parents:
his/her financial 1. Total personality of the applicants
accountabilities 2. Emotional maturity
3. Quality of marital relationship
Rule on adoption 4. Feeling about children
by spouses 5. Feeling about childlessness and readiness to adopt 6.
General rule: Motivation (Sta. Maria, M., Persons and Family Relations,
The husband 2010, p. 681).
and the wife
shall JOINTLY Who may be adopted: (Sec. 8) (DARILL)
adopt. 1.Child whose biological or adoptive parents have died,
provided that no proceedings shall be initiated within 6
Exceptions: (LIS) months from the time of death of said parents
1.One spouse 2. Any person below 18 years of age who has been voluntarily
seeks to adopt committed to the DSWD under P.D. 603 or judicially
the legitimate declared available for adoption
child of the 3.Child whose adoption has been previously rescinded 4.
other spouse Illegitimate child of a qualified adopter to improve the child’s
2.One spouse status
seeks to adopt 5. Legitimate child of the other spouse
his/her own 6. A person of legal age, who, prior to the adoption, has been
illegitimate child consistently considered by the adopter as his/her
with the consent of the other spouse

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PERSONS & FAMILY RELATIONS CIVIL LAW own child since minority

Consent in adoption (Sec. 9) (A-BALIS) Effectivity of decree of adoption (Sec. 13)

The written consent of the following is required: 1. The A decree of adoption shall be effective as of the date the
adoptee, if he is 10 years of age or older; 2. Known biological original petition was filed. This applies also in case petitioner
parents or legal guardians or proper dies before the issuance of the adoption decree, to protect the
government instrumentality which has legal custody of the interest of the adoptee.
child;
3. Legitimate/adopted children, 10 years old or over, of the In Tamargo vs. CA (209 SCRA 518, G.R. No. 85044 June 3,
adopter and adoptee; 1992), where the petition for adoption was granted after the
4. The illegitimate children, 10 years old or over, of the adopter child had shot and killed a girl, the SC did not consider the
if living with the adopter and the latter's spouse; 5. Spouse of retroactive effect of the decree of adoption so as to impose a
the adopter and adoptee liability upon the adopting parents accruing at the time when
they had no actual or physical custody over the adopted child.
Note: An alleged capability to support an adoptee through the It held that retroactive effect may be given where such is
help of other persons is not enough to support a petition for essential to permit the accrual of some benefit or advantage in
adoption. According to the SC, adoption is personal between favor of the adopted child. To hold that parental authority had
the adopter and adoptee; the adopter should be in a position to been retroactively lodged in the adopting parents so as to
support the would-be adopted child in keeping with the means burden them with liability for a tortuous act that they could
of the family (Landingin v. neither have foreseen nor prevented would be unfair and
Republic, GR No 164948, June 27, 2006). unconscionable.
Middle name of adopted child
Sec.9 of R.A. 8552 provides that if the written consent of the The illegitimate child subsequently adopted by his/her natural
biological parents cannot be obtained, the consent of the legal father is permitted to use as her middle name the surname of
guardian must be sought. To dispense with the requirement of her natural mother for the following reasons: 1. It is necessary
written consent, the abandonment must be shown to have to preserve and maintain the child’s
existed at the time of adoption and evinces a settled purpose filiation with her natural mother because under Art. 189 of
to forego all parental duties. The written consent of the the Family Code, she remains to be an intestate heir of the
biological parents is indispensable for the validity of a decree latter. To prevent any confusion and needless hardship in
of adoption. The natural right of parent to child requires that the future, her relationship or proof of that relationship with
consent be obtained before parental rights and duties may be her natural mother should be maintained;
terminated and re-established in adoptive parents. (Landingin 2. There is no law expressly prohibiting the adopted to use the
vs. Republic,ibid). surname of her natural mother as her middle name. What
the law does not prohibit, it allows; and
3. It is customary for every Filipino to have a middle name,
which is ordinarily the surname of the mother ( In the Matter
of the Adoption of Stephanie Nathy Astorga Garcia, G.R.
No. 148311,
March 31, 2005).

Effects of Adoption:
(SAL)
1. Severance of
legal ties between
the biological
parents and the
adoptee, which
shall be vested in
the adopters.

Exception: if the
biological parent
is the spouse of
the adopter
(Sec. 16).

2.Adoptee shall be
considered as a
legitimate child of the adopter(s) for all intents and purposes
(Sec. 17).

3. In legal or intestate succession, the adoptee and the

adopter(s) shall have reciprocal rights of succession without
distinction from legitimate filiation. However, if there is a will,
the rules on testamentary succession shall be followed (Sec.
18).

Note: Once an adoption decree is issued, it cannot be

attacked collaterally as in their action for partition, but in a
direct proceeding frontally addressing the issue (Sayson vs.
CA, G.R. Nos. 89224-25 January 23, 1992).

Rescission of adoption (Sec. 19) - by ADOPTEE ONLY

Grounds: (ASAR)
1.Attempt on the life of the adoptee
2. Sexual assault or violence
3.Abandonment and failure to comply with parental obligations
4.Repeated physical or verbal maltreatment by the adopter
despite having undergone counseling

Note: Adoption shall not be subject to rescission by the

adopters. However, the adopters may disinherit the adoptee
for causes provided under Art 919 of the Civil
48 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS Code (Sec. 19).

An adoptee refused to use the surname of the adopter though exceeding P50, 000 under Sec. 21 (b) of the same law.
already adopted. The adopter sought to rescind/revoke the A crime defined and punished by Sec. 21 (b) of RA 8552
Decree of Adoption (DOA), but the Domestic Adoption Act committed by any person who shall cause the fictitious
(R.A. 8552) which removes the right of adopter to challenge registration of the birth of a child under the names of persons
the validity of the DOA became effective. SC held that the who are not his/her biological parents.
adopter may disinherit the adoptee, and that the latter has the
sole right to challenge the DOA INTER-COUNTRY ADOPTION ACT
(Lahom v. Sibulo, G.R. No 143989, OF 1995 (R.A. 8043) The socio-legal
July 14, 2003). process of adopting a Filipino child by
a foreigner or a Filipino citizen
Disinheritance of adoptee by permanently residing abroad where
adopter the petition is filed, the supervised trial
Grounds: (Art. 919, NCC) (GAMM- custody is undertaken, and the
CARD) decree of adoption is issued outside
1.Groundless accusation against the Philippines [Sec. 3 (a)].
the testator of a crime punishable
by six (6) years or more Who may be adopted (Sec. 8)
imprisonment 2. Found guilty of an Only a “legally-free child” may be the
attempt against the life of the subject of inter country adoption
testator, his/her spouse,
descendants or ascendants Legally-free Child
3.Causes the testator to make or A child who has been voluntarily or
changes a testator’s will through involuntarily committed to the DSWD
violence, intimidation, fraud or of the Philippines, in accordance with
undue influence 4.Maltreatment of the Child Youth and Welfare Code
the testator by word or deed [Sec. 3 (f)]
5.Conviction of a crime which
carries the penalty of civil No child shall be matched to a foreign
interdiction adoptive family unless it is
6.Adultery or concubinage with satisfactorily shown that the child
testator’s spouse 7.Refusal without cannot be adopted locally (Sec. 11).
justifiable cause to support the
parent or ascendant There shall be no physical transfer of
8. Leads a dishonorable or a voluntarily committed child earlier
disgraceful life. than six (6) months from the date of
execution of Deed of Voluntary
Effects of rescission: (Sec. 20) (PRAS) Commitment except: 1. Adoption by a relative
1. Parental authority of adoptee’s biological parents or legal 2.Children with special medical conditions
custody of DSWD shall be restored if adoptee is still a minor
or incapacitated. Who may adopt (Sec. 9)
2.Reciprocal rights and obligations of the adopter(s) and the 1. Any alien or
adoptee to each other shall be extinguished. 3.Amended 2. Filipino citizen, both permanently residing abroad
certificate of birth of the adoptee shall be cancelled and its
original shall be restored.
Conditions: (JAC-NERD--PQ)
4. Succession rights shall revert to their status prior to the
1. If married, his/her spouse must jointly file for the adoption
adoption, but vested rights shall be respected.
2. At least 27 years of age and at least 16 years older than the
child to be adopted, at the time of the application unless the
Being a legitimate child by virtue of adoption, it follows that the adopter is:
child is entitled to all the rights provided by law to a legitimate a. Parent by nature of the child to be adopted or b.
child. The adopted child remains an intestate heir of his/her
Spouse of such parent
biological parents. Hence, she can well assert her hereditary 3.Capacity to act and assume all rights and responsibilities of
rights from her natural mother in the future ( In the matter of
parental authority under his/her national laws, and has
adoption of Stephanie Nathy Astorga Garcia, GR No 148311 undergone the appropriate counseling from an accredited
March 31, 2005). counselor in his/her country
4.Has not been convicted of a crime involving moral turpitude
Simulation of Birth 5. Eligible to adopt under his/her national law 6. Agrees to
Is the tampering of the civil registry making it appear in the uphold the basic rights of the child as embodied under
birth records that a certain child was born to a person who is Philippine laws, the U.N. Convention
not his/her biological mother, causing such child to lose his/her
true identity and status [R.A.8552 Art. 1 Sec. 3 (J)].

Punished by prision mayor in its medium and a fine not

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 49
PERSONS & FAMILY RELATIONS CIVIL LAW

on the Rights of a Child, and to abide by the rules and the Board as to the actions taken as well as
regulations issued to implement the Inter–Country Adoption recommendations.
Act d. Based on the report submitted by the Central Authority,
7.Comes from a country with whom the Philippines has the Board may terminate the pre-adoptive relationship.
diplomatic relations and whose government maintains a
similarly authorized and accredited agency and that Note: If the pre-adoptive relationship is found unsatisfactory by
adoption is allowed under his/her national laws the child or the applicant or both, or if the foreign adoption
8. In a position to provide the proper care and support and to agency finds that the continued placement of the child is not in
give the necessary moral values the child’s best interest, said
and examples to all his children, relationship shall be suspended by the
including the child to be adopted Board and the foreign adoption
9. Possesses all the qualifications agency shall arrange for the child’s
and none of the disqualifications temporary care.
under the Inter–Country Adoption
Act and other applicable If a satisfactory pre-adoptive
Philippine laws relationship is formed between the
applicant and the child, the Board
Filing of application (Sec.10): Either shall submit the written consent to the
with the Philippine RTC having adoption to the foreign adoption
jurisdiction over the child OR with agency within 30 days after receipt of
the Inter Country Adoption Board, the latter’s request.
through an intermediate agency
A copy of the final decree of adoption
Inter-Country Adoption Board (Sec. of the child, including certificate of
4) citizenship/naturalization whenever
It acts as the central authority in applicable, shall be transmitted by the
matters relating to inter country foreign adoption agency to the Board
adoption. within 1 month after its issuance
(Sec. 53, Implementing Rules of RA
The Board shall ensure that all possibilities for the adoption of 8043)
the child under the Family Code have been exhausted and that
inter–country adoption is in the best interest of the child. Presumption of illegal adoption: (Sec. 57,
Implementing Rules of RA 8043) (CPEN)
Supervision of trial custody (Sec. 14) 1. Consent for adoption was acquired through or attended by
Mandatory period of 6 months from the time of placement coercion, fraud, improper material inducement 2. Procedures
before a decree of adoption may be issued. During this period, and safeguards provided by law for adoption were not
the adopting parents shall submit a progress report of the complied with
child’s adjustment which shall be taken into consideration in 3. Has exposed or subjected the child to be adopted to
issuing the decree of adoption. danger, abuse or exploitation
4. No authority to effect adoption from the Board
1. Starts upon actual physical transfer of the child to the
applicant who, as actual custodian, shall exercise substitute
parental authority over the person of the child (Sec. 44, SUPPORT
Implementing Rules of RA 8043)
2. The adopting parent(s) shall submit to the governmental
agency or authorized and accredited agency, which shall in Support
turn transmit a copy to the Board, a progress report of the It comprises everything indispensable for sustenance,
child’s adjustment. dwelling, clothing, medical attendance, education and
transportation in keeping with the financial capacity of the
Disruption and termination of placement: (Sec. 47, family (Art. 194).
Implementing Rules of RA 8043)
In the event of serious damage in the relationship between the Kinds: (LJC)
child and applicant; or when the continued placement is no 1. Legal – one required or given by law;
longer in the best interests of the child: 2. Judicial – required by the court to be given whether
pendente lite or in a final judgment;
a. The Board through the Central Authority shall take 3.Conventional – given by agreement.
necessary measures to protect the child, in particular Characteristics: (MR P2INE)
cause the child to be withdrawn from the applicant and 1.Mandatory
arrange for his temporary care
b. The Central Authority shall exhaust all means to
remove cause of unsatisfactory relationship
c. The Central Authority shall submit at complete report to
50 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS

2.Reciprocal on the part of those who are by law bound to If the obligation to give support falls upon two or more
support each other persons, payment shall be divided between them in proportion
3. Personal to their resources. In case of urgent need and special
4. Provisional character of support judgment circumstances, the court may order only one of them to
5. Intransmissible furnish support provisionally subject to the right to claim from
6.Not subject to waiver or compensation the others the share due them (Art. 200).
7. Exempt from attachment or execution
(A. Tolentino, Commentaries and Jurisprudence on the Civil When two or more recipients at the same time claim for
Code of the Philippines, Vol. I, 1990 ed. p. 575) support and the person legally obliged to give does not have
sufficient means to satisfy all claims:
Persons obliged to support each 1. The order of liability provided by
other: (Art. 195) 1. Spouses law shall be followed. 2. If the
2. Legitimate ascendants and concurrent obligees should be the
descendants spouse and a child subject to
3. Parents and their legitimate parental authority, the child shall be
children, and the legitimate and preferred. (Art. 200)
illegitimate children of the latter
4. Parents and their illegitimate In Mangonon vs. CA (G.R. No.
children, and the legitimate and 125041, June 30, 2006) , the
illegitimate children of the latter Supreme Court ordered the
5. Legitimate brothers and sisters grandfather, who was proven to be
whether full or half blood well-off to support his grandchildren
provided: on the basis of Art. 199, considering
that their parents were not capable of
Brothers and sisters NOT supporting the children.
legitimately related whether full
or half-blood are likewise entitled If the obligation to give support falls
to support to the full extent under upon two or more persons, the
Art. 194 except when the need payment shall be divided between
for support of the brother or them in proportion to their resources.
sister, being of age, is due to a cause imputable to [Art. 200 (1st par)]
claimant’s fault or negligence (Art. 196)
In case of or urgent need and special circumstances, the
Note: Art. 197 providing for the source from where the support court may order only one of them to furnish support
should be taken out highlights the fact that the people provisionally subject to the right to claim from the others the
enumerated in Art. 195 have a personal obligation to support share due them (Art. 200 [2nd par]).
each other (Sta. Maria, M., Persons and Family Relations,
2010, p. 763). When two or more recipients at the same time claim for
support and the person legally obliged to give does not have
For support of legitimate ascendants, descendants sufficient means to satisfy all claims:
(legitimate/illegitimate), brothers and sisters 1. The order of liability provided by law shall be followed. 2. If
(legitimate/illegitimate), only separate property of person the concurrent obliges should be the spouse and a child
obliged to give support shall be answerable. In the absence of subject to parental authority, the child shall be preferred (Art.
separate property, the CPG or ACP shall advance support 200 [3rd par]).
deductible from share of spouse obliged upon liquidation (Art.
197). Obligation to give support arising from:

In case of legitimate descendants which are the common Parental authority Spousal and general
children of the spouse or the legitimate children of either (Title IX) familial ties
spouse. In which case, the ACP or CPG shall be principally (Title VIII)
charged for their support as mandated by law in Art. 94(1) and
Art. 121(1). This is different from personal support owing to Ends upon the Ideally lasts during the
them from the father or mother as provided in Art. 194 and emancipation of the child obligee’s lifetime
197.
Pertains to parents, Passes on to the
passing to ascendants ascendants not only upon
Order of liability if several persons obliged to give support:
only upon its termination default of the parents but
(Art. 199) (SDAB)
or suspension also for the latter’s inability
1. Spouse to provide sufficient
2.Descendants in the nearest degree support
3.Ascendants in the nearest degree
4.Brothers and sisters
(Lim vs. Lim, G.R. No. 163209, Oct. 30 2009)
SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS 51
PERSONS & FAMILY RELATIONS CIVIL LAW

The governing text are the relevant provisions in Title VIII of to support her children. Mention may also be made that,
the Civil Code, as amended, on Support, not the provisions in contextually, the resulting juridical relationship between the
Title IX on Parental Authority. While both areas share a petitioner and Noel Daban is a quasi contract, an equitable
common ground in that parental authority encompasses the principle enjoining one from unjustly enriching himself at the
obligation to provide legal support, they differ in other concerns expense of another (Lacson vs. Lacson, G.R. No. 150644
including the duration of the August 28, 2006).
obligation and its concurrence
among relatives of differing Support Pendente Lite (Art. 198 in
degrees. Thus, although the relation to Rule 61 of the Rules of
obligation to provide support arising Court)
from parental authority ends upon
the emancipation of the child, the During the proceedings for legal
same obligation arising from separation or for annulment of
spousal and general familial ties marriage, and for declaration of nullity
ideally lasts during the obligee’s of marriage, the spouses and their
lifetime.. Also, while parental children shall be supported from the
authority under Title IX (and the properties of the absolute community
correlative parental rights) pertains or the conjugal partnership.
to parents, passing to ascendants
only upon its termination or Mutual support between the spouses
suspension, the obligation to ceases after final judgment.
provide legal support passes on to
ascendants not only upon default of In case of legal separation, the court
the parents but also for the latter’s may order the guilty spouse to
inability to provide sufficient support the innocent spouse.
support. (Lim vs. Lim, G.R. No. 163209, October 30, 2009)
In determining the amount to be awarded as support pendent
Requisites in order for support from stranger to be lite, it is not necessary to go fully into the merits of the case, it
reimbursable: being sufficient that the court ascertain the kind and amount of
evidence it may deem sufficient to enable it to justly resolve
Under Art. 206: the application, one way or the other, in view of the merely
1. Stranger gives support to another person with the intention provisional character of the resolution to be entered. Mere
to be reimbursed; and affidavits may satisfy the court to pass upon the application for
2. Person obliged to give support to the recipient does not support pendente lite. It is enough that the facts be established
have knowledge of the stranger’s act by affidavits or other documentary evidence appearing in the
record (Reyes vs. Ines-Luciano, G.R. No. L-48219 February
Under Art. 207: 28, 1979).
1. There is an urgent need to be supported on the part of the
recipient; Amount of support
2. The person obliged to support unjustly refuses or fails to It shall be in proportion to the resources or means of the giver
give the support; and and to the necessities of the recipient (Art. 201, See Lam vs.
3. A third person furnishes the support to the needy individual. Chua, G.R. No.131286. March 18, 2004). It shall be increased
or reduced proportionately, according to the increase or
Support from Stranger reduction of necessities of the recipient and the resources or
1.When, without the knowledge of the person obliged to give means of the person obliged (Art. 202).
support, it is given by a stranger, the latter shall have a right
to claim the same from the former, unless it appears that he Support is rooted on the fact that the right and duty to support,
gave it without any intention of being reimbursed (Art 206) especially the right to education, subsists even beyond the age
2.When the person obliged to support another unjustly refuses of majority (Estate of Hilario M. Ruiz vs. CA, G.R. No. 118671,
or fails to give support when urgently needed by the latter, January 29, 1996).
any third person may furnish support to the needy individual,
with a right of reimbursement from the person obliged to
give support (Art. 207) Demand for support (Art. 203)
The obligation to give support shall be demandable from
Logically, the sisters would, thru their mother, turn to their
uncle (Noel Daban) for their sustenance and education when
petitioner (their father) failed to give the same, a failing which
stretched from their pre-schooling days to their college years.
Since such failure has been
established, it is not amiss to deduce, as did the trial court and
the CA, that Noel Daban who, owing to consideration of
kinship, had reasons to help, indeed lent his sister Lea money
52 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS

the time the person who has a right to receive the same needs 125041, June 30, 2006).
it for maintenance, but it shall not be paid except from the date
of judicial or extrajudicial demand. Exemption of support from attachment or execution The right to
receive support as well as money or property
Support must be demanded and the right to it established obtained as such support shall not be levied upon on
before it becomes payable. For the attachment or execution (Art. 205).
right to support does not arise from But in case of contractual support or
the mere fact of relationship, even that given by will, the excess in
from relationship of parents and amount beyond that required for legal
children, but from ‘imperative support shall be subject to levy on
necessity’ without which it cannot attachment or execution (Art. 208).
be demanded, and the law
presumes that such necessity does Only salary "due" the judgment debtor
not exist unless support is is subject to attachment and
demanded. (Sy vs. CA, G.R. No. execution, and then only if it is not
124518, Dec. 17, 2007) made to appear by the affidavit of the
debtor or otherwise that such
Payment of the amount for support earnings are necessary for the
starts only from the time support support of his family.
has been judicially or extra-judicially Under the Revised Rules, so much of
demanded for the right to support the earnings of the debtor for his
does not arise from the mere fact personal services within the month
of relationship but from imperative preceding the levy as are necessary
necessity without which it cannot for the support of his family (Sec. 12,
be demanded, and the law Rule 39) is exempt from execution
presumes that such necessity does (Avendaño vs. Alikapala, G.R. No. L-
not exist, unless support is 21189 November 28, 1964).
demanded (Jocson vs. Empire
Insurance Co., G.R. No. L-10792,
April 30, 1958). PARENTAL AUTHORITY
(PA)
Performance of obligation to
support (Art. 204) 1. Paying the
allowance fixed; or Parental authority is the sum total of
2. Receiving and maintaining in the the right of the parents over the
family dwelling the person who persons and property of their
has a right to receive support unemancipated children. It is pursuant
provided that there is no moral or to the natural right and duty of
legal obstacle to do so. parents over the same and it includes
caring for and rearing of such children
Note: The law provides that the for civic consciousness and efficiency
husband, who is obliged to support and the development of their moral
the wife, may fulfill the obligation either by paying her a fixed and physical character and well-being
pension or by maintaining her in his own home at his option. (Art. 209).
However, this option given by law is not absolute. The law will
not permit the husband to evade or terminate his obligation to Parental Preference Rule
support his wife if the wife is driven away from the conjugal The natural parents, who are of good moral character and who
home because of his wrongful acts. In the case at bar, the wife can reasonably provide for the child, are ordinarily entitled to
was forced to leave the conjugal abode because of the lewd custody as against all other persons (Sta. Maria, M., Persons
designs and physical assault of the husband, she can and Family Relations, 2010, p. 789).
therefore claim support from the husband for separate
maintenance even outside the conjugal home (Goitia vs. Parental authority and responsibility are inalienable and may
Campos Rueda G.R. No. G.R. No. 11263, November 2, 1916). not be transferred or renounced except in cases authorized by
law. The right attached to parental authority, being purely
As to how the obligation to support can be performed, Art. 204 personal, the law allows a waiver of parental authority only in
provides that the person obliged to give support shall have the cases of adoption, guardianship and surrender to a children’s
option to fulfill the obligation either by paying the allowance home or an orphan institution. When a parent entrusts the
fixed, or by receiving and maintaining in the family dwelling the custody of a minor to another, such as a friend or godfather,
person who has the right to receive support. The latter even in a document, what is given is merely temporary custody
alternative cannot be availed of in case there is a moral or and it does not constitute a renunciation of parental authority.
legal obstacle thereto, such as the strained relationship Even if a definite renunciation is manifest, the law still
between the parties (Ma. Belen B. Mangonon vs. CA, G.R. No. disallows the same. The father and mother, being the natural
guardians of unemancipated children, are duty-bound and
entitled to keep them in their custody and company (Sagala-
Eslao vs. CA, G.R. No. 116773, January 16, 1997).

The right of custody accorded to parents springs from the

exercise of parental authority. (Santos vs. CA, G.R. No.
113054 March 16, 1995)
Rules on the exercise of parental authority Joint parental be examined without the consent of the other as to any
authority by the father and mother over the persons of their communication received in confidence by one from the other
common children, whether legitimate or illegitimate. In case of during the marriage except in a civil case by one against the
disagreement, the father’s decision shall prevail unless there is other, or in a criminal case for a crime committed by one
a judicial order to the contrary (Art. 211) against the other or the latter's direct descendants or
ascendants.
Under Art. 176, parental authority of illegitimate children is
generally with the mother. To harmonize Art. 176 with Art. 211, Rules in case parental authority cannot be exercised jointly
joint parental authority may be exercised over illegitimate (Art. 212 to 214)
children if:
1. The father is certain, and Cause of absence of Effect on parental
2. The illegitimate children are living with the said father and parent authority
mother who are cohabiting without the benefit of marriage or
under a void marriage not falling under Arts. 36 and 53. Absence or death of PA continued by the
( Sta. Maria, M., Persons and Family Relations, 2010, p. one parent parent present or
781) surviving parent

In case of remarriage PA continued to be

Note: The recognition by the father could be a ground for
of the surviving parent exercised by surviving
ordering him to give support, but not custody of the child. Only
parent unless court
if the mother defaults can the father assume such custody or appoints another
authority. Only the most compelling of reasons, such as the
person a guardian
mother’s unfitness to exercise sole parental authority shall
justify deprivation of her parental authority and the award of
Note: The new spouse,
custody to someone else (Briones vs. Miguel, G.R. No.
156343 October 18, 2004). by virtue of his or her
marrying the surviving
parent, does not
Duties of Children towards their Parents automatically possess
1. To observe respect and reverence toward their parents; 2. parental authority over
To obey their parents as long as they are under their parental the children of the
authority. surviving parent unless
such new spouse
Rule of filial privilege adopts the children.
No descendant shall be compelled, in a criminal case, to (Sta. Maria, M.,
testify against his parents and grandparents, except when Persons and Family
such testimony is indispensable in a crime against the Relations, 2010, p.
descendant or by one parent against the other (Art. 215, FC in 784)
relation to Sec. 25, Rule 130 of the Rules on Evidence)
Legal separation of PA shall be exercised
In Emma Lee vs. CA (G.R. No. 177861, July 13, 2010 ), the parents by the parent
person (Tiu) who invoked the filial privilege, claims that she is designated by the court
the stepmother of petitioner Lee. The Supreme Court declared
that the privilege cannot apply because the rule applies only to
“direct” ascendants and descendants, a family tie connected
by a common ancestry. A stepdaughter does not have a
common ancestry by her stepmother. Relative thereto, Art. 965
of the NCC provides that the direct line is either descending or
ascending. The former unites the head of the family with those
who descend from him. The latter binds a person with those
from whom he descends. Consequently, Tiu can be compelled
to testify against petitioner Emma Lee.
This rule is not strictly a rule on disqualification because a
descendant is not incompetent or disqualified to testify against
an ascendant. The rule refers to a privilege not to testify, which
can be invoked or waived like other privileges. As correctly
observed by the lower court, Elven was not compelled to
testify against his father; he chose to waive that filial privilege
when he voluntarily testified against Artemio. Elven declared
that he was testifying as a witness against his father of his own
accord and only "to tell the truth” (People vs. Invencion, G.R.
No. 131636 March 5, 2003).

In line with the filial privilege under Art. 215 of the Family Code
is the marital privilege provided for under Sec. 24 (a) of Rule
130 of the Rules of Court which states that:

The husband or the wife, during or after the marriage, cannot

 CIVIL LAW PERSONS & FAMILY RELATIONS
to agree on custody regimes they see fit to adopt.

Exception: Writ of habeas corpus in child custody cases Habeas corpus

If child is under seven may be resorted in cases where rightful custody is withheld
years old, the mother from a person entitled thereto (Salientes vs. Abanilla G.R. No.
shall have custody over 162734 August 29, 2006).
said child.
The controversy does not involve the question of personal
Exception to the freedom, because an infant is presumed to be in the custody
exception: of someone until he attains majority age. In passing on the
Unless the court finds writ in a child custody case, the court deals with a matter of an
compelling reasons to equitable nature. Not bound by any
order otherwise. mere legal right of parent or guardian,
the court gives his or her claim to the
Death, absence or Substitute parental custody of the child due weight as a
unsuitability of both authority shall be claim founded on human nature and
parents exercised by the considered generally equitable and
surviving grandparent. just. Therefore, these cases are
In case several survive, decided, not on the legal right of the
the court shall consider petitioner to be relived from unlawful
the best interests of the imprisonment or detention, as in
child in the designation. the .case of adults, but on the court’s
view of the best interests of those
whose welfare requires that they be
in custody of one person or another.
Doctrines regarding the maternal Hence, the court is not bound to
preference granted by Art. 213 deliver a child into the custody of any
par. 2 as decided in Dacasin vs. claimant or of any persons, but
Dacasin (G.R. No. 168785 should, in the consideration of the
February 5, 2010) facts, leave it in such custody as its
welfare at the time appears to
Maternal preference cannot be require. In short, the child’s welfare is
subject to an agreement between the supreme consideration
the separated spouses: Indeed, the separated parents cannot (Sombong vs. CA, G.R. No. 111876. January 31, 1996).
contract away the provision in the Family Code on the
maternal custody of children below seven years anymore than Maternal Preference/ Tender Years Rule
they can privately agree that a mother who is unemployed, General Rule: No child under 7 years of age shall be
immoral, habitually drunk, drug addict, insane or afflicted with separated from the mother.
a communicable disease will have sole custody of a child
under seven as these are reasons deemed compelling to Exception: When the court finds compelling reason to order
preclude the application of the exclusive maternal custody otherwise. The welfare and well-being of the child is the
regime under the second paragraph of Article 213. paramount consideration in awarding custody.

As to the bias favoring the mother over the father in case of SUBSTITUTE PARENTAL AUTHORITY (Art. 216) Persons
separation: At any rate, the rule’s seeming harshness or who will exercise parental authority in the default of parents or
undesirability is tempered by ancillary agreements the a judicially appointed guardian, in the order indicated:
separated parents may wish to enter such as granting the 1. Surviving grandparent
father visitation and other privileges. These arrangements are 2.Oldest brother or sister over 21 years of age unless unfit or
not inconsistent with the regime of sole maternal custody disqualified
under the second paragraph of Article 213 which merely 3. Actual custodian over 21 years of age unless unfit or
grants to the mother final authority on the care and custody of disqualified
the minor under seven years of age, in case of
disagreements. The same order of preference shall be observed when
appointment of guardian over property of child becomes
As to the limited period of application of preference: Further, necessary.
the imposed custodial regime under the second paragraph of
Article 213 is limited in duration, lasting only until the child’s Private respondents' (grandparents) demonstrated love and
seventh year. From the eighth year until the child’s affection for the boy, notwithstanding, the legitimate
emancipation, the law gives the separated
parents freedom, subject to the usual contractual limitations,

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 PERSONS & FAMILY RELATIONS CIVIL LAW

father is still preferred over the grandparents. The latter's 3. Similar institutions duly accredited by the proper
wealth is not a deciding factor, particularly because there is no government agency (Art. 217)
proof that at the present time, petitioner is in no position to SPECIAL PARENTAL AUTHORITY (Art. 218 and 219) Can
support the boy. The fact that he was unable to provide only be exercised over minors while under their supervision,
financial support for his minor son from birth up to over three instruction or custody. The authority and supervision also
years when he took the boy from attach to all authorized activities whether
his in-laws without permission, inside or outside the school, entity or
should not be sufficient reason to institution.
strip him of his permanent right
to the child's custody. While The following shall be held principally
petitioner's previous inattention is and solidarily liable for damages caused
inexcusable and merits only the by the acts or omissions of the
severest criticism, it cannot be unemancipated minor:
construed as abandonment. His 1. School
appeal of the unfavorable
decision against him and his No distinction between academic or
efforts to keep his only child in his non-academic (arts and trades)
custody may be regarded as
serious efforts to rectify his past Note: In Amadora vs. CA (G.R. No. L-
misdeeds. To award him custody 47745 April 15, 1988), the Court has
would help enhance the bond come to the conclusion that the Art.
between parent and son. It would 218 and 219 should apply to all
also give the father a chance to schools, academic as well as non-
prove his love for his son and for academic. Where the school is
the son to experience the warmth academic rather than technical or
and support which a father can give (Santos vs. CA, G.R. No. vocational in nature, responsibility for
113054 March 16, 1995). the tort committed by the student will attach to the teacher in
charge of such student, following the first part of the
Note: The person exercising substitute parental authority shall provision. This is the general rule. In the case of
have the same authority over the person of the child as the establishments of arts and trades, it is the head thereof, and
parents (Art. 233). only he, who shall be held liable as an exception to the
general rule. In other words, teachers in general shall be
Rule in case of foundlings, abandoned, neglected or abused liable for the acts of their students except where the school
children and other children similarly situated: (Art. 217) is technical in nature, in which case it is the head thereof
who shall be answerable. Following the canon of reddendo
Foundling singula singulis "teachers" should apply to the words "pupils
Newborn child abandoned by its parents who are unknown and students" and "heads of establishments of arts and
(Bouvier’s Law Dictionary, 3rd Revision, p. 1293) trades" to the word "apprentices."

Abandoned child 2. Administrators and teachers

One who has no proper parental care or guardianship, or 3. Individual, entity or institution engaged in child care
those whose parents or guardians have deserted him for a
period of at least six continous months [Art. 141 (2), PD 603] As held in the case of Palisoc vs. Brillantes (G.R. No. L 29025
October 4, 1971), the phrase "so long as (the students) remain
Neglected child in their custody" means the protective and supervisory custody
One whose basic needs have been deliberately unattended or that the school and its heads and teachers exercise over the
inadequately attended and may be done through physical or pupils and students for as long as they are at attendance in the
emotional neglect [Art. 141 (3), PD 603] school, including recess time. There is nothing in the law that
requires that for such liability to attach, the pupil or student
Abused child who commits the tortious act must live and board in the school.
Can come within the emotionally-neglected child (Sta. Maria, In the view of the Court, the student is in the custody of the
M., Persons and Family Relations, 2010, p. 804) school authorities as long as he is under the control and
influence of the school and within its premises, whether the
Parental authority shall be entrusted in summary judicial semester has not yet begun or has already ended.
proceeding to:
1.Heads of children’s homes, Note: In no case shall the persons exercising special parental
2.Orphanages, or authority inflict corporal punishment upon the child (Art. 233).

56 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

 CIVIL LAW PERSONS & FAMILY RELATIONS

SPECIAL PARENTAL AUTHORITY AND SUBSTITUTE authority (Tamargo vs. CA, G.R. No. G.R. No. 85044 June 3,
PARENTAL AUTHORITY DISTINGUISHED 1992).
Liability
Special PA Substitute PA

Rests on the theory Exercised in case of Vicarious Liability or Imputed Negligence: Parents and other
that while the child is death, absence, or persons exercising PA shall be civilly liable for injuries and
in the care and unsuitability of parents damages caused by acts or omissions of their unemancipated
custody of the children living in their company and under their PA subject to
person/s exercising appropriate defenses provided by law. (Art. 221)
special parental
authority, the parents Persons Exercising Special PA shall be principally and
temporarily relinquish solidarily liable for damages caused by acts or omissions of
parental authority the unemancipated minor.

Concurrent with NOT exercised The parents, judicial guardians or

parental authority concurrently with the Persons Exercising Substitute PA
exercise of parents shall be subsidiarily liable.

Liability is principal and Liability is only Note: Liability will not attach if it is
solidary with the minor subsidiary, that is, only proved they exercised the proper
under their custody if the persons with diligence required under the
special parental particular circumstances (Art. 219)
authority cannot satisfy
their liability. EFFECTS OF PARENTAL
AUTHORITY
Defense of exercise No such defense is
the proper diligence available in case of I. Upon the Person of the Children
required under the acts or omissions
particular committed while the Rights and duties of parents and
circumstances may child is in the custody those exercising parental authority
extinguish liability of the person
(Art. 220)
exercising special
1. To keep them in their company, to support, educate and
parental authority.
instruct them by right precept and good example, and to
provide for their upbringing in keeping with their means;
In acts and omissions 2. To give them love and affection, advice and counsel,
committed outside the companionship and understanding;
custody of the school, 3. To provide them with moral and spiritual guidance,
entity or institution, for inculcate in them honesty, integrity, self-discipline, self
the primary liability of reliance, industry and thrift, stimulate their interest in civic
the parents to attach affairs, and inspire in them compliance with the duties of
under Art. 221, the citizenship;
unemancipated child 4. To furnish them with good and wholesome educational
must be living in their materials, supervise their activities, recreation and
company AND under association with others, protect them from bad company,
their parental authority. and prevent them from acquiring habits detrimental to their
health, studies and morals;
5. To represent them in all matters affecting their interests;
6. To demand from them respect and obedience; 7. To
The principle of parental liability (under Art. 221) is a species
impose discipline on them as may be required under the
of vicarious liability, or the doctrine of imputed negligence
circumstances; and
where a person is not only liable for torts committed by
8. To perform such other duties as are imposed by law upon
himself, but also for torts committed by others with whom he
parents and guardians.
has a certain relationship and for whom he is responsible.
Parental liability is, in other words, anchored upon the
parental authority coupled with the presumed parental Procedure for imposing discipline on the child (Art. 223)
dereliction in the discharge of the duties accompanying such 1. Parent or person exercising parental authority, may petition
the proper court of the place where the child

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PERSONS & FAMILY RELATIONS CIVIL LAW
 resides, for an order providing for disciplinary measures to the child's legitime.
over the child. Kinds of Properties of a Minor
a. Relief prayed for may include commitment in an institution
in child care duly accredited by the proper government Adventitious (Art. 226) Profectitious (Art. 227)
authority for not more than 30 days.
Earned or acquired by the Property given by the
b. If petition is granted, parent shall not interfere with the
child through his work or parents to the child for the
implementation of the decision but shall continue to
industry by onerous or latter to administer
provide for his support.
gratuitous title
2. There will be a summary hearing Owned by the child Owned by the parents
and the child shall be entitled to
the assistance of counsel, either Child is also the Parents are the
of his choice or appointed by the usufructuary, but the child’s usufructuary
court. use of the property shall be
3. If in the same proceeding the secondary to the collective
court finds the petitioner at fault, daily needs of the family
irrespective of the merits of the
petition, or when the Property administered by Property administered by
circumstances so warrant, the the parents the child
court may also order the
deprivation or suspension of
parental authority or adopt such
other measures as it may deem Note: The courts may appoint a
just and proper. guardian of the child’s property, or a
4. The court may terminate the guardian ad litem when the best
commitment of the child interests of the child so require. (Art.
whenever just and proper (Art. 222)
224)
SUSPENSION AND TERMINATION OF PARENTAL
II. Upon the Property of the Children (Art. 225 and 226) The AUTHORITY (Art. 228 and 229)
father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated Grounds for suspension: (CHOBAN)
common child without the necessity of a court appointment. 1.Conviction of a crime with the penalty of civil interdiction
2.Harsh or cruel treatment against the child
In case of disagreement, the father's decision shall prevail, 3.Orders, counsel and example which are corrupting, given by
unless there is a judicial order to the contrary. the person exercising authority
4.Child is compelled to beg
Note: Two cases where a parent cannot be the 5. Subjecting child or allowing child to be subjected to acts of
administrator of the property of his children under the lasciviousness,
provisions on succession, Art. 923 and Art. 1035 of the Civil 6.Negligence, which is culpable, committed by the person
Code. exercising authority (Art. 231)
Exception: Parents are required to file a bond where the Note: The suspension or deprivation may be revoked and
market value of the property or the annual income of the parental authority revived if the court finds that the cause has
child exceeds P50,000. The bond shall not be less than ten ceased and will not be repeated. (Art. 231 par. 4)
per centum (10%) of the value of the property or annual
income, to guarantee the performance of the obligations In case of civil interdiction, the authority is automatically
prescribed for general guardians. reinstated upon service of penalty or pardon or amnesty of the
offender. There is no need of a court order. (Art. 230)
Fruits and profits of industry of child:
a.Owned by the child;
b. Shall be devoted exclusively to the child’s support and
education unless the title or transfer provides otherwise.
c. Parent may only use such fruits and income shall be
limited primarily to the child's support and secondarily to
the collective daily needs of the family.

Administration of parents’ property by unemancipated child

(Art. 227)
1. The net proceeds of such property shall belong to the
parents-owner.
2. 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.
3. The proceeds given in whole or in part shall not be charged
58 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS

Grounds for termination of parental authority Effect of Emancipation

Emancipation for any cause shall terminate parental authority
Permanent (Art. 228 and
over the person and property of the child who shall then be
232) Temporary (Art. 229) qualified and responsible for all acts of civil
life, save the exceptions established by existing laws in
Death of the parents Adoption of the child special cases (Art 236 as amended by RA 6809).

Death of the child Appointment of a general Upon the effectivity of this Act (December 13, 1989), existing
guardian wills, bequests, donations, grants, insurance policies and
similar instruments containing references and provisions
Emancipation of the child Judicial declaration of favorable to minors will not retroact to their prejudice (Sec, 4,
abandonment RA 6809).

If the person exercising Final judgment divesting

parental authority has the parents of parental SUMMARY JUDICIAL
subjected the child or authority PROCEEDINGS IN THE FAMILY LAW
allowed him to be subjected
to sexual abuse Actions requiring summary judicial
proceedings under the Family Code:
Judicial declaration of 1. To obtain a judicial declaration of
absence or incapacity of presumptive death for the purpose of
the parents exercising contracting a subsequent marriage
parental authority over the (Art. 41)
child.
2. In case of legally separated spouses,
when the consent of one spouse to
any transaction of the other is
required by law, judicial authorization
Notes: Sec. 10 (b) of the RA shall be obtained in a summary
7610 punishes any person who proceeding (Art. 100 [2])
shall keep or have in his 3. In case of legally separated spouses,
company a minor: a.Who is 12
when the community property is not
years old or younger in any
sufficient for the support of the family
public or private place, hotel,
each spouse is liable with his/her
motel, beer joint, discotheque,
separate property. The spouse
cabaret, pension house, sauna
present shall petition the court for the
or massage parlor, beach
administration of the specific separate
and/or other tourist resort or
property of the other spouse and the
similar places; or b.Who is 10 or more years his junior, in the
use the fruits or proceeds to satisfy the latter’s share ( Art.
places enumerated in (a).
100 [3]).
4. To confer parental authority over foundlings, abandoned,
The same provision expressly provides that it does not apply to neglected, and abused children to heads of children’s
any person who is related to the minor within the fourth degree homes and orphanages (Art. 217)
of consanguinity or affinity or any bond recognized by law, 5. To provide for disciplinary measures over the child at the
local custom and tradition or acts in the performance of a motion of the parents or any person exercising over parental
social, moral or legal duty. authority (Art. 223)
6. For the filing of a bond to enable the parents of a minor to
However, Sec. 10 (c) of RA 7610 provides as penalty, among exercise of legal guardianship latter’s properties, when the
others, the loss of parental authority to any ascendant, value of said properties exceed Php 50,000 (Art. 225)
stepparent or guardian of a minor, who shall induce, deliver or 7. Determination of the value of the presumptive legitimes in
offer a minor under his custody to persons described and cases of partition of the conjugal dwelling (Art. 51) 8. In case of
enumerated in Sec. 10 (b). disagreement in fixing the family domicile (Art. 69)
9. In case of objection to a spouse’s exercise of legitimate
profession (Art. 73)
EMANCIPATION 10. In case of disagreement in the administration and
enjoyment of the community property/conjugal partnership
Emancipation takes place by the attainment of the age of (Art. 96, 124)
majority. Unless otherwise provided, majority commences at
the age of eighteen years. (Art 234 as amended by RA 6809) Procedure: (Art. 239-248) F-NOPED-J
1.Upon filing of verified petition in the family court where the
spouses reside (or in the RTC, if there is no family
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PERSONS & FAMILY RELATIONS CIVIL LAW

court), jurisdiction of said court over the petition shall attach against ACP or CPG (Art. 310 NCC)
upon proof of notice to the other spouse. 2.Notice to the non-
petitioning spouse shall include a show cause order why the
petition should not be granted USE OF SURNAMES
3. The non-petitioning spouse is given the opportunity to Child Surname
answer on or before the date set for the initial conference
as indicated in the notice. Legitimate Surname of father
4. The preliminary conference shall be conducted by the
judge personally, and the spouses shall not be Legitimated Surname of father
accompanied by counsel. After the initial conference, the
spouses may be assisted by counsel at the court’s Conceived before the Surname of father
discretion. decree annulling a
5. The court may proceed ex parte and render judgment if voidable marriage
despite all efforts, the non-petitioning spouse does not
appear. Illegitimate Generally, surname of
6. If both spouses are present during the initial conference mother. May use surname
and the petition is not resolved then, the petition shall be of father if filiation has
decided in a summary hearing on the basis of affidavits been expressly
submitted. recognized by the father
7. The judgment of the court shall through the record of birth
be immediately final and appearing in the civil
executory. register, or when an
admission in a public
document or private
FINAL handwritten instrument is
PROVISIONS made by the father.

Retroactive Effect Adopted Surname of adopter

The Family Code shall have
retroactive effect insofar as it does
not prejudice or impair vested or
acquired rights in accordance with Rules on the surname of a
the Civil Code or other laws (Art married woman (Art. 307) 1. A
256). married woman may use:
a.Her maiden first name and
surname and add her husband's
FUNERAL surname (ex: Maria Aquino-dela
S Cruz) or b.Her maiden first name
and her husband's surname (ex: Maria dela Cruz) or
General Guidelines: c. Her husband's full name, but prefixing a word indicating
1.Duty and right to make arrangement for funerals is in that she is his wife, such as "Mrs.” (ex: Mrs. Juan dela
accordance with right and duty to support under Article Cruz)
199, FC. In case of descendants of the same degree, or
brothers and sisters, the eldest shall be preferred (Art. 305 2. In case of annulment of marriage (Art. 371): a. If the wife is
NCC). the guilty party, she shall resume her maiden name and
2. The funeral shall be in keeping with the social position of surname.
the deceased (Art. 306 NCC) b. If she is the innocent spouse, she may resume her
3. The funeral shall be in accordance with the expressed maiden name and surname. However, she may choose
wishes of the deceased to continue employing her former husband's surname,
a. In the absence of the expressed wishes, his religious unless:
beliefs or affiliation shall determine funeral rites b. In case of i. The court decrees otherwise, or
doubt, the persons in Art. 199, FC shall decide, after ii. She or the former husband is married again to another
consulting other members of the family (Art. 307 NCC) person.
4.No human remains shall be retained, interred, disposed of
or exhumed without the consent of the persons in Art. 199, 3. When legal separation has been granted, the wife shall
FC (Art. 308 NCC) continue using her name and surname employed before
5. Any person who disrespects the dead or allows the same the legal separation. (Art. 372)
or wrongfully interferes with a funeral shall be liable for
damages (Art. 309 NCC) Note: The language of the statute is mandatory that the
6. If the deceased is married, the tombstone or mausoleum is wife, even after the legal separation has been decreed,
deemed a part of the funeral expense and chargeable shall continue using her name and surname employed
60 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
CIVIL LAW PERSONS & FAMILY RELATIONS

before the legal separation. This is so because her married for that publication to be effective, it must give a correct
status is unaffected by the separation, there being no information. We therefore rule that for purposes of an
severance of the vinculum. It seems to be the policy of the application for
law that the wife should continue to use the name indicative change of name under Article 376 of the Civil Code, the only
of her unchanged status for the benefit of all concerned name that may be changed is the true or official name
( Laperal vs. Republic, G.R. No. L 18008 October 30, 1962). recorded in the civil register. In addition, we accordingly hold
that for a publication of a petition for a change of name to be
4. A widow may use the valid, the title thereof should include,
deceased husband's surname first, his real name, and second, his
as though he were still living, aliases, if any (Ng Yao vs. Republic,
in accordance with Article G.R. No. L-20306 March 31, 1966).
370. (Art. 373)

Identity of names and surnames ABSENCE

1. The younger person shall be
obliged to use such additional The legal status of a person who has
name or surname as will avoid absented himself from his domicile and
confusion (Art. 374) whose whereabouts and fate are
2. Between ascendants and unknown, it not being known with
descendants, the word certainty whether he is still living or not
"Junior" can be used only by a (Jurado, Civil Law Reviewer, 19 th Ed.
son. Grandsons and other (1999), p. 260).
direct male descendants shall
either: Different stages of absence [Paras,
a. Add a middle name or the 15th ed. (2002), p. 857]: (PDP)
mother's surname, or b. Add 1. Provisional absence (Art. 381)- When
the Roman Numerals II, III, a person disappears from his
and so on (Art 375) domicile, his whereabouts being
unknown, without leaving an agent to
Article 375 restricts the use of administer his property.
“Junior” but social usage a. There is no declaration of absence
allows the use of “Junior” also yet but legal representative may be
for daughters. appointed only when urgent
representation is necessary and
General Rule: No person shall applies only if no agent has been
use different names and appointed to represent the
surnames (Art. 380). absentee or agent’s authority has
expired.
Exception: Use of pen names or b. The spouse is preferred as the
stage names is permitted, legal representative except when
PROVIDED it is done in good they are legally separated.
faith and there is no injury to third persons (Art 379) c. If absentee left no spouse, any competent person any be
appointed.
Usurpation of a name and surname may be the subject of an
action for damages and other relief. (Art. 377) 2. Declared absence (Art. 384)
a.Without administrator - When a person disappears from
Elements: his domicile, and 2 years have elapsed without any news
a. There is an actual use of another’s name by the defendant about him, or since the receipt of the last news.
b. The use is unauthorized; b.With administrator – 5 years have elapsed
c. The use of another’s name is to designate personality or
identify a person (Tolentino vs. Ca, G.R. no. L-41427 june The following may ask for the declaration of absence: i.
10, 1988). Spouse present
ii. Testate or Intestate heirs
The unauthorized or unlawful use of another person's surname iii.Other persons subordinated to rights by death.
gives a right of action to the latter. (Art. 378)
The judicial declaration of absence shall not take effect until
Change of name is a judicial proceeding in rem. Jurisdiction to six months after its publication in a newspaper of general
hear and determine a petition therefor, by law, is acquired after circulation (Art. 386)
publication of the "order reciting the purpose of the petition"
and the "date and place for the hearing thereof"---for three (3) An administrator of the absentee’s property shall be
successive weeks in a newspaper of general circulation. But, appointed.
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When the wife is appointed as an administratrix, she cannot Extraordinary circumstances under Art. 391: (LAO) 1.Person
alienate or encumber the husband’s property or that of the on board a vessel or airplane lost during sea voyage or
conjugal property without judicial authority. missing, counted from the loss of the vessel or airplane
2.Person in armed forces who took part in war 3.Person in
The administration shall cease when: danger of death under other circumstances and his existence
i. Absentee reappears personally or through an agent ii. has not been known
Death is proven
iii. Third person appears and shows proof that he Note: A well-founded belief that the absentee is already dead
acquired absentee’s property when absentee was still is required before an absent spouse may be declared
alive. presumably dead. The requisites are: (4-RBF)
a. Absent spouse has been missing for 4 years or 2
3. Presumptive death- When the absentee is presumed dead. consecutive years if the disappearance is under Art. 391
(Art. 390, 391) of the Civil Code;
b. Present spouse wishes to remarry;
PRESUMPTION OF DEATH c. Present spouse has a well- founded
(Arts. 390 to 392, NCC) belief that the absent spouse is dead;
d. Present spouse files a summary
Absence under ordinary circumstances proceeding for the declaration of
(Art. 390) presumptive death of the absent
spouse (Republic v. Nolasco, G.R.
Presumed dead for all NO. 14053, March 13, 1993).
purposes
7 years The legal requirement on the need for
Exception: judicial declaration of presumptive death
For purposes of opening does not apply to a marriage celebrated
succession under the (Old) Civil Code as the law itself
presumed as dead the spouse who
10 years Presumed dead for disappeared for a period of seven (7)
purposes of opening years where the present spouse has no
succession news of the absentee being alive, or for
less than seven (7) years where the
absentee was generally presumed dead
Exception:
(Valdez vs. Republic, G.R. No. 180863,
If at the time of
September 8, 2009). Hence, proof of “well-
disappearance person
founded” belief is not required.
was already 75 years old,
5 years of absence is
sufficient for this CIVIL REGISTER
presumption to apply.
Acts, events and judicial decrees concerning the civil status of
4 years Presumed dead for persons shall be recorded in the civil register (Art. 407). This
purposes of remarriage of includes:
the spouse present 1. Births;
2. Marriages;
3. Deaths;
4. Legal separations;
Absence under extraordinary circumstances/ 5. Annulments of marriage;
Qualified absence (Art. 391) 6. Judgments declaring marriages void from the
beginning;
Presumed dead for all 7. Legitimations;
4 years 8. Adoptions;
purposes including 9. Acknowledgments of natural children;
opening of succession 10. Naturalization;
11. Loss; or
2 years Presumed dead for 12. Recovery of citizenship;
purposes of remarriage 13. Civil interdiction;
14. Judicial determination of filiation;
15. Voluntary emancipation of a minor; and
62 SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS
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16. Changes of name. (Art. 408) 2.Age

3.Nationality
Duty of the Clerk of Court 4. Status
To ascertain whether the decree has been registered, and if Note: Correction or change can be made by the concerned city
this has not been done, to send a copy of said decree to the or municipal civil registrar or consul general in accordance with
civil registry of the city or municipality where the court is the provisions of this Act and its implementing rules and
functioning (Art. 409). regulations.

Books of the Civil Register and related documents The State has an interest in the names borne by individuals
1.Considered public documents and entities for purposes of identification. A change of name is
2. Prima facie evidence of the facts therein contained. (Art. a privilege, not a right. Petitioner must show proper or
410) reasonable cause or any compelling reason which may justify
such change (Silverio v. Republic,
Unlawful alteration (Art. 411) G.R. NO. 174689, October 22, 2007).
General Rule: Every civil registrar
shall be civilly responsible for any Grounds for change of first name or
unauthorized alteration made in any nickname (Haw Liong vs. Republic
civil register, to any person G.R. No. L-21194 April 29, 1966):
suffering damage thereby. (HAR)
1.New first name or nickname has
Exception: If the civil register been habitually and continuously
proves that he has taken every used by the petitioner and he has
reasonable precaution to prevent been publicly known by that first
the unlawful alteration. name or nickname in the
community;
Change of first name or nickname 2. The change will avoid confusion
Under R.A. 9048 (An Act 3. First name or nickname is
Authorizing City or Municipal Civil ridiculous, tainted with dishonor or
Registrar or the Consul General to extremely difficult to write or
Correct a Clerical or Typographical pronounce;
Error in an Entry and/or Change of
First Name or Nickname in the Note: R.A. 9048 does NOT sanction a
Civil Registrar without Need of a change of first name on the ground of
Judicial Order, Amending For This sex reassignment. To rule otherwise
Purpose Arts. 376 And 412 Of The may create grave complications in the
Civil Code) civil registry and public interest
(Republic v. CA, GR NO. 97906, May
Authority to correct clerical or 21, 1992).
typographical error and change of first name or nickname:
(Sec. 1) Middle names serve to identify the maternal lineage or filiation
of a person as well as further distinguish him from others who
General Rule: No entry in a civil register shall be changed or may have the same given name and surname as he has. The
corrected without a judicial order. dropping of the middle name of a minor so that he will not be
different from his classmates in Singapore and on the
Exceptions: Administrative proceeding for change of first name additional ground that it would cause confusion and difficulty in
or nickname and clerical or typographical errors. its pronunciation in Singapore does not constitute proper and
reasonable cause to drop it from his registered complete
name. As he is of tender age, he may not yet understand and
Clerical or typographical error appreciate the value of the change of his name and granting of
It refers to a mistake committed in the performance of clerical the same at this point may just prejudice him in his rights
work in writing, copying, transcribing or typing an entry in the under our laws (In Re: Petition for Change of Name and/or
civil register that is harmless and innocuous, such as Correction/Cancellation of Entry in Civil Registry of Julian Lin
misspelled name or misspelled place of birth or the like, which Carulasan Wang vs. Cebu City Civil Registrar, G.R. No.
is visible to the eyes or obvious to the understanding, and can 159966, March 30, 2005).
be corrected or changed only by reference to other existing
record or records [Sec. 2(3)].
Please refer to Remedial Law Memory Aid for a
comprehensive discussion of the procedural aspects of
Exceptions to the exception: (SANS) change of name.
1. Sex
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Cancellation or correction of entries in the Civil Registry (Rule Orders expediting the proceedings and preliminary injunction for
108, Rules of Court) the preservation of the rights of the parties pending such
proceedings may be granted by the court. (Sec. 6)
Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in After hearing, the court may either dismiss the petition or issue an
the civil register, may file a verified petition for the cancellation or order granting the cancellation or correction prayed for. In either
correction of any entry relating thereto, with the Court of First case, a certified copy of the judgment shall be served upon the
Instance of the province where the corresponding civil registry is civil registrar concerned who shall annotate the same in his
located. (Sec 1) record.
(Sec. 7)
All persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding. (Sec. 3) Entries subject to cancellation or correction upon good and valid
grounds (Sec.2)
Upon the filing of the petition, the court shall: 1. Fix the time and 1. Births
place for the hearing of the same 2.Cause reasonable notice 2.Marriages
thereof to be given to the persons named in the petition. 3.Deaths
3.Cause the order to be published once a week for 3 consecutive 4. Legal separations
weeks in a newspaper of general 5. Judgments of annulments of marriage
circulation in the province. (Sec. 4) 6. Judgments declaring marriages void
from the beginning 7. Legitimations
Opposition may be filed by the civil 8. Adoptions
registrar and any person having or 9. Acknowledgments of natural children
claiming any interest under the 10.Naturalization
entry whose cancellation or 11.Election, loss or recovery of citizenship
correction is sought within 15 days 12.Civil interdiction
from notice of the petition, or from 13.Judicial determination of filiation
the last date of publication of such 14.Voluntary emancipation of a minor
notice. (Sec. 5) 15.Changes of name
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SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS