Silliman notes (2002)

PERSONS & FAMILY RELATIONS

Tips If you can use legal terms, use them, law has its own set of language; Dont debate on the facts Present your answer in chronological manner Every fact has its purpose, use them in your answers. Before you answer HAVE A MENTAL OUTLINE!!! Read the question very carefully Practice your penmanship (i.e., rephrasing UP Answers to the Bar) Pray for final denouement

Preliminary Notes Law Defined (Sanchez Roman) a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit. (Morato) a just precept promulgated by the competent authority for the common good of a people or nation, which constitutes an obligatory rule of conduct for all its members. What are the characteristics of law? 1. It is a rule of human conduct 2. Promulgated by competent authority 3. Obligatory and 4. General Observance Cognovit is a confession of judgment whereby a portion of the complaint is confessed by the defendant who denies the rest thereof. (Bar Q)

Civil Law defined The mass of precepts which determine and regulate the relations of assistance, authority, and obedience among the members of the family, and those which exist among members of society for the protection of private interests.
Note: Neither English nor American common law is in force in the Philippines nor are the doctrines derived therefrom binding upon our courts, save only insofar as they are founded on sound principles applicable to local conditions and are not in conflict with existing law.

Civil Code defined Is a collection of laws to regulate the private relations of the members of civil society, determining their respective rights and obligations, with reference to persons, things and civil acts.

Notes on: Article 1 Title of Code English is the language in which the New Civil Code was enacted by the Congress of the Philippines. In its interpretation, therefore, the English text shall prevail over any translation. Article 2 Effectivity of Laws The provisions of the Code, on the date when laws become effective apply only when the particular statute does not provide its own date of effectivity. *Albano: Executive Order 200 providing for newspaper of general circulation as a medium to publish laws was enacted only during the time of Pres. Aquino Case: Tanada vs. Tuvera (1985) Senator Tanada sought the publication of the secret decrees of Pres. Marcos before the court. The Solicitor General argued that the provision under Article 2 unless otherwise provided may dispense with the publication. The Court ruled that in order for the said secret decrees to be binding on the people these must be published, otherwise the rule that ignorance of the law excuses no one shall not apply. Article 3 Non retroactivity of Laws Exceptions: 1. Law itself so expressly provides 2. In case of remedial statutes 3. In case of curative statutes 4. In case of laws interpreting others 5. In case of laws creating new rights
Characterization - is a principle in private international law otherwise called classification or qualification. It is the process of assigning a disputed question to its correct legal category. Long-arm statute refers simply to authorized substituted service.

The phase when the statute expressly so provides admits of two (2) limitations under the Constitution: 1. When retroactivity/effect of a penal statute will make it an ex post facto law. 2. When the retroactivity of a statute will constitute an impairment of the obligation of contract.
**Penal statutes be given retroactive effect if it will favor the accused who is not a habitual criminal, even though at the time of the enactment of such laws FINAL sentence has already been rendered.

*Albano Retroactivity must not offend vested rights. Case: Republic vs. Court of Appeals The married woman adopted a child under the old law. Her adoption was assailed on the basis that under the Family Code which is given retroactive effect under Art. 256 requires that husband and wife shall adopt (Art. 181). The Court ruled that to retroact the Family Code in this instant case would tantamount to impairment of vested rights. Case: Castro vs. CA (1989) The unmarried couple begot a child who was recognized and introduced by the father as his. When he died, his relatives assailed the legitimacy of the child

and insisted on the childs illegitimacy which under the old Civil Code shall not be entitled to a share in the bounty of the father. The Family Code, however, has took effect when the decedent died, which new law allows the illegitimate child to inherit. The Court ruled, whenever retroactivity of a law creating a right for the first time, it must not impair vested rights. In this case the Family Code could be given retroactive effect as there are no clear vested rights that would be impaired. Article 6 Renunciation of Right Public interest is violated by a waiver of rights created by laws of general and mandatory character. All rules of political or penal laws are of public order. A renunciation of a right conferred by laws of this character would amount to the renunciation of the law itself, and therefore VOID. A waiver that is void because it is against public policy or because it is prohibited by law cannot be rendered valid by invoking the doctrine of estoppel. *Albano one cannot waive future inheritance because such right is not yet yours, but when the right is acquired, it can be waived so long as it is not contrary to law, public policy and morals. Thus, waiver on the right to undivided shares inherited may be made by the heirs as transmission has already accrued at the time of death of the decedent. Case: Cui vs. Arellano University In this case of Justice Cui where Arellano University gave him scholarships in return for completing his studies at the said law school. By getting out of said school does not permit the school to let him pay the tuition fees as a condition for the release of his transcript for purposes of the Bar Exams. Said the Court, that the intention of giving scholarship is to reward deserving students and not to make profit out of it through the good results these students gave them in the Bar Exams. Cui, by agreeing to the terms of the school invalidly waived his rights thus, could not be compelled to pay the tuition fees. Case: Pleasantville Development Corp. vs. CA When the 5-year lease contract expired, the lessor refused the extension request of the lessee. He imposed that only a 1-year extension shall be given on new rental rates. The petitioner invoked contract provision on renewal stating on exclusive terms and conditions, the lease can be renewed. The Court ruled that on the principle of mutuality of contract (Art. 1308 CC), the lessor cannot refuse the extension of the lease contract on similar terms. Said the Court, the parties to a contract are free to deprive themselves of certain rights and waive them, if any exist in law, as long as such renunciation is not violative of public policy or any contrary legal impediment. Article 7 Repeal Two forms of repeal: implied repeal and express repeal. Two requisites of implied repeal 1. The laws cover the same subject matter and 2. The latter is repugnant to the earlier Nota ni Bene: But because of the rule that PENAL statutes favorable to the accused have retroactive effect, the repeal of a penal law during the pendency of a criminal prosecution under it, has the

effect of depriving the court of jurisdiction to further proceed with the case, which must be dismissed. Case: People vs. Patalim The accused who was tried under the Anti-Subversion Law (RA 170) moved for the dismissal of his case on the ground of repeal. The Court granted the motion and ruled that if there is a repeal of that law by which prosecution of offense against an accused is grounded, the State loses its right to prosecute. Article 8 Stare Decisis (Stare decisis et non quieta movere meaning from settled precedents, there must be no departure) While a judge cannot create abstract rules of law, because that would be an invasion of legislative power, he certainly can formulate and declare the law as applied concretely to the case before him. Courts are not limited to the automatic and mechanical function of interpreting the law. They have 2 exceptions namely: 1. to fill the deficiencies of legislation and provide a rule for the FACTS of a given case for which there is neither positive provision of law nor established custom; 2. to adapt and adjust rigid and inflexible provisions of law, rendered inadequate by time and circumstances, to the changing conditions of life and society, so that the law may accomplish its social mission. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. Stare decisis is a principle of policy and NOT a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience. The doctrine, however, is FLEXIBLE, so that when, in the light of changing conditions, a rule has ceased to be of benefit and use to society, the courts may rightly depart from it. Article 9 Decision of Judge suppletory rule (the article does not apply to criminal prosecutions) * Custom may be defined as the juridical rule which results from a constant and continued uniform practice by the members of a social community, with respect to a particular state of facts, and observed with a conviction that it is juridically obligatory. Requisites in order that CUSTOMS may have the force of a suppletory rule: 1. Plurality of acts or various resolutions of a juridical question raised repeatedly in life. 2. Uniformity or identity of the acts or various solutions to the juridical question 3. General practice by the great mass of the social group 4. Continued performance of these acts for a long period of time 5. General conviction that the practice corresponds to a juridical necessity or that it is obligatory and 6. The practice must not be contrary to law, morals or public order. Article 10 doubt of interpretation (tilt the balance to right and justice to prevail) Equity is an attribute of justice, and there can be no justice if the application of the law is not made with equity.

Equity may correct and modify the bare written law, sometimes limiting its excessive generality, and a times extending it to supply deficiency. Its mission is to temper the rigor of positive law. Equity is justice sweetened with mercy Article 14 Territoriality Under the theory of extraterritoriality, foreigners may be exempted from the operation of the laws of the Philippines in the following cases: 1. offense is committed by a foreign sovereign while in Philippine territory 2. offense is committed by diplomatic representatives 3. when offense is committed in a public or armed vessel of a foreign country. *Albano Pres. George N. Bush, while traveling incognito in the Philippines, was detected by our authorities committing a crime, what should our government do? Immediately, we grant him immunity on the basis of the principles of international law and Article 14. Article 15 Conflict of Laws Personal laws Domiciliary theory personal laws of a person are determined by his domicile. Nationality theory nationality or citizenship as the basis for determining the personal laws of an individual. *Albano Article 15 is the umbrella law on marriage. The provision of Article 15 of the Civil Code is correlated with Article 68 of the Family Code. Thus, the obligation enumerated under Article 68 of the Family Code, i.e., love, support, fidelity will follow the Filipino wherever he may be. What governs the personal law of the citizen is his nationality. On the basis of this principle, a Filipino who marries a Filipino and subsequently acquires American nationality and subsequently obtains a divorce is still considered married for purposes of determining his status under Philippine laws. He therefore commits bigamy if he contracted a subsequent marriage here in the Philippines. The contention of the framers of the Family Code is that it should have been a MIXED marriage from the very beginning. Question: May a woman still inherit from her husband whom she divorced under the laws of a foreign land? Suppose both became foreigners, may the former still inherit from the latter if the foreign law does not make her inherit? Answer: (Quita vs. Dandan) The woman may still inherit because the marital relationship has not been severed under our laws. For the second questionwasnt able to catch up, hehehe. Article 16 Execution of Contracts Litigants by mutual agreement cannot compel the courts to approve of their own actions to permit the personal relations of citizens of the Philippines to be affected by decrees of foreign courts in a manner which our government believes to be contrary to public order and good morals.

Validity and Effects of Obligations 1. First the law designated by the parties shall be applied 2. If there is NO stipulation on the matter and the parties are of same nationality, their national law shall be applied. 3. If this is not the case, the law of the place of perfection of the obligation shall govern its essence and nature and the law of the place of the performance shall govern its fulfillment. 4. But if these places are NOT specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the domicile of the passive subject shall apply. Article 17; Article 15 Divorce Absolute divorce is not recognized in the Philippines. According to Article 15 of the Civil Code, laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad. In this jurisdiction, we adhere to the nationality theory. It is settled in this country that absolute divorce is contrary to public policy. The third paragraph of Article 17 of the Civil Codes declares that such a declaration of public CANNOT be rendered ineffective by a judgment promulgated in a foreign country. Bigamy and adultery H can charge W with adultery but not with bigamy. Undoubtedly, all of the elements of adultery as defined and published in the RPC are present. It is different in the case of bigamy. Since the bigamy was committed outside of our territorial jurisdiction, it is NOT triable by our courts.(wife, remarried in Hongkong and lived with the man in Manila) Right of Alien to acquire real property As to the right of alien RESIDENTS to acquire real property located in the Philippines, the Philippine Constitution is explicit. SAVE in cases of HEREDITARY SUCCESSION, they cannot acquire private lands Article XII, Section 7. However, titles to private lands acquired by American citizens before July 3, 1974 shall be valid as against private persons.
Forum non-conveniens is a principle in Private International Law that where the ends of justice strongly indicate that the controversy may be more suitably tried elsewhere, then jurisdiction should be declined and the parties

Article 40 and 41 of Civil Code *Albano The child, if having an intra-uterine period of more than 7 months should be alive at the time of complete separation from the mothers womb.

Estolloso notes proper (EQ Estolloso Question) June 16, 2001 lecture EQ. How would you compare the civil law system in its governance and trend with that of the Common Law system? (Bar Q 1997) A. Please see p. 48 BAR Q. 1997 in Civil Law EQ. Define Civil Law A. The mass of precepts which determine and regulate the relations of assistance, authority, and obedience among the members of the family, and those which exist among members of society for the protection of private interests. EQ. Is criminal law political or civil? A. Both. EQ. When does a law become effective? A. The law takes effect upon compliance with all the conditions for effectivity and all requisites have been complied with. (Jurado, A2) Laws take effect after 15 days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless otherwise provided. (E.O. 200 dated 6.18.87 repealing Art. 2 CC) EQ. Suppose Congress gave the Central the power to regulate foreign exchange, to make rules and regulations, and the Central Bank issued a circular punishing for 6 years imprisonment, those who are caught bringing out the country US Dollars more than $5,000.00. 1. Can the CB, do away with publication? 2. Supposing Congress did not include in the delegation, the power to impose penalty, is the circular valid? 3. What if the law has no penalty, will there still be a need to publish? Answers: (suggested) 1. No. The law requiring publication comprehends all statutes, including those of local application and private laws. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing laws pursuant also to a valid delegation. Interpretative regulations and those that are internal in nature need not be published. (please see Albano, Civil Law Rev.) 2. No, because the power to impose penalty is inherently legislative. When not delegated the CB would be acting beyond the power conferred. 3. Yes, if it is not merely internal i.e., those regulating administrative agencys personnel and not the public. EQ. In publication, is it enough to publish only the excerpt? A. No. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the law.

EQ. In a case where an Executive Order (Martial Law) declaring alien naturalization an administrative procedure only, does the EO need publication? A. Yes. The law requiring publication comprehends all statutes, including those of local application and private laws. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing laws pursuant also to a valid delegation. EQ. Ignorantia legis non excusat, is this a conclusive or rebuttable presumption? A. Conclusive, otherwise, it would be very easy to violate the law. (den.edb) EQ. What is the difference between civil and natural obligations? EQ. What are the exceptions to the rule that laws shall have retroactive effect? A. 1. Law provides for its retroactivity 2. Penal in nature and favorable to accused who is not a habitual offender 3. Procedural in nature 4. Creates new substantive rights 5. Curative in nature 6. Interpretative of other laws. EQ. Can a remedial law amend a substantive law? A. No. Thus, under the 2000 Rules on Criminal Procedure, the rule on independent civil actions has reverted to the 1988 rules so as to free the SC for the conception that procedural law can amend substantive laws EQ. Distinguish prohibitory (mandatory) from permissive law. (marriage) A. Permissive law i.e., no marriage license, lack of authority of solemnizing officer; Prohibitory law i.e., bigamous marriages, incestuous marriages. EQ. Can rights be waived? Notes: You can only waive permissive law, subject to the provision that waiver is NOT valid when contrary to law, morals, public policy (see case of Arellano) EQ. Distinguish personal rights from real rights. EQ. What is a Dead Letter law? A. A term sometimes applied to a law that has become obsolete by long disuse (Blacks Law Dictionary) EQ. What are waivers that are contrary to law? A. The general rule is that rights may be waived. The 2 exceptions are that 1) when the waiver is contrary to law, public order, public policy, morals, good customs and 2) when the waiver is prejudicial to a third person with a right recognized by law. EQ. Cite 5 provisions in the Civil Code, the operation affect residents.(BAR Favorite!!!)

EQ. Relative to Article 26 of the Family Code, when two Filipino couple got married in the Philippines under our laws, what is the effect on marriage and divorce, when one of the couple subsequently acquire alien citizenship, can Article 26 apply? A. Pineda says subsequent citizenship, not an issue as both spouses are Filipinos when they got married. Per Estolloso citizenship is of greater weight in answer Sta. Maria for Article 26 to apply, at the time of decree of divorce must still be a Filipino. Per Albano - The contention of the framers of the Family Code is that it should have been a MIXED marriage from the very beginning. Per DOJ Opinion The Filipina can remarry because this anomalous situation has held hostage many Filipinas to stay married to a person who no longer considers her as his wife. June 23, 2001 EQ. Can there be prejudicial questions involving 2 civil cases? A. No. (per edb) Situations: Does prejudicial question exist? Is the case for squatting (though now repealed) be suspended pending the question of ownership of the land? Getting coconut from a coconut farm when prosecuted for theft, the defense of ownership of land a prejudicial question? A and B entered into a contract, upon payment A issued a bouncing check, when prosecuted for issuance of a bouncing check, he annulled the contract for fraud. Is there a prejudicial question here? A bus bumped a taxi, the passenger of the taxi sued the taxi owner who interposed defense of prejudicial question the criminal liability instituted against the bus driver. FAMILY CODE EQ. What is the difference between a marriage contract from an ordinary contract as to a) gender of parties b) number of parties c) as to property relations d) as to damages A. In a marriage contract the parties must be a male and a female; while in an ordinary contract any person may enter into contract. There shall only be two parties in the former who must be male and female; while parties greater than two may enter into an ordinary contract. In the former, the property relations is prescribed by law; the latter by the agreement of the parties. As to damages, in the case of Tenchavez vs. Escano, involving the spouses, relief includes the award of damages. Albano - marriage is a union for conjugal and family life. marriage is an inviolable social institution which the state seeks to preserve and protect. Case: of Maria Reyes The decedent bequeathed to three illegitimate children and to his wife his bounty. The wife, however, cannot prove her marriage to the decedent by any other

document. Is the declaration in the will that she is his wife sufficient? The Court ruled that it was saying that the will of the decedent is his voice even after his death. EQ. What are the essential requisites of marriage? A. Capacity of both parties and consent freely given. EQ. What is the age to be capacitated to marry? Note: take note of Muslims marrying below 18. Muslims marrying at age 16 is allowed only when done in Muslim rights; not within Christian rights. EQ. What is controlling, if the Christian who becomes a Muslim to marry more than once? A. The Christian has to be single when he was converted to a Muslim. Not when he was married, especially to a Christian, then he is not allowed to remarry. EQ. What is the effect of lack of parental consent? Lack of parental advice? Lack of marriage counseling? A. Lack of parental consent, the marriage is voidable. Lack of parental advice, the delay of issuance of marriage license for 3 months. Lack of marriage counseling, delay of issuance of marriage license. EQ. What if you marry before the 3-month period after no parental advice been given, what is the effect? A. Mere defect. EQ. Who are authorized to solemnize marriages? A. see Article 7 of the Family Code. EQ. A Mayor of Bais City, officiated marriage at Bethel Guest House in Dumaguete City, is the marriage valid?? A. There are two answers. The first is that the marriage is void because the Mayor has no authority to solemnize outside his jurisdiction. The second is that the defect is a mere irregularity applying by analogy the case of Navarro vs. Domagtoy where the Judge was merely fined. (please see. Bar Q. p. 5, 1999 and page 58 2001 Albano rev.) EQ. Couple went to a notary public, the latter made them believe that he is authorized, he even caused the preparation of documents. Is the marriage valid? A. Generally void as the absence of formal requisite renders the marriage void subject to the exception under Article 35 (2) (putative marriages), believing in good faith clause EQ. The Sacristan misled the couple that he is the priest, is the marriage valid? A. Generally void as the absence of formal requisite renders the marriage void subject to the exception under Article 35 (2), believing in good faith clause.

10

Albano the requisites of authority is merely a formal requirement in Article 3 and Article 4, thus defect (not absence) does not affect validity. EQ. Can there be a legitimated child, out of a void marriage say, 17 year old couple? A. No. The age requirement under our laws is a legal impediment. When both are impeded to marry each other there can be no legitimation. EQ. Are marriages contracted as to mistake of identity annullable? How about the concealment as to conviction of prostitution? A. Mistake of identity is absence of an essential requisite. Thus, nullity of a void marriage. The concealment of conviction of prostitution does not constitute fraud as contemplated under Article 45 FC. (Dr. Tolentino, p.298) Mistake of identity - It must pertain to physical identity as to one whom corresponding to you, was not same person who came here in the country to marry you. EQ. Under what conditions may drug addiction be a ground for 1) declaration of nullity of marriage 2) annulment 3) legal separation. A. EQ. Under what conditions may homosexuality be a ground for 1) declaration of nullity of marriage 2) annulment 3) legal separation. A. EQ. Can a consul (to Hongkong) who is vacationing in Manila, solemnize marriage? A. He has no authority, his jurisdiction is in Hongkong, but when the couple believed in good faith, their marriage shall be valid. June 30, 2001 EQ. While on the plane, two sweethearts asked the stewardess to tell the captain that they be married. Is their marriage valid? What if they believe in good faith the authority of the officer or pilot? A. Not valid. Under Article 4 par.1 of FC though, belief in good faith shall make their marriage valid despite the absence of the formal requisite of authority of solemnizing officer. (Art. 35 (2) FC) EQ. What if a group or squad of soldiers composed on sergeants were asked by the couple to marry them? A. No because the enumeration in Article 7 include only a commander, not sergeants. EQ. Couple lived-in since they were in high school, thereafter, they decided to get married at the age of 20. Do they still need to secure a marriage license?

11

A. The requirement is cohabitation for 5 years without legal impediment; legal impediment, however can not include capacity. Age is a legal impediment. *Per estolloso, the 5-year period shall only begin from the time the legal impediment cease. Case: Ninal vs. Bayadog (March 14, 2000) In this case, Pepito and Norma lived as husband and wife for 5 continuous years, although Pepito was still married to Teodulfa. Pepito shot to death Teodulfa and 1 year and 8 months later, Pepito married Norma without a marriage license. They executed, though, an affidavit stating their 5 year relationship. Pepito met a vehicular accident in Mandaue, Cebu. The children of the first wife sought to annul the marriage on the ground of absence of a valid marriage license. Can the marriage license be dispensed with? The 5-year period should be computed on the basis of co-habitation as husband and wife where the only missing factor is the special contract of marriage to validate the union. The five-year period counted back from the date of marriage should be a period of legal union, characterized by exclusivity (no third party is involved at any time) and continuity (meaning unbroken). Additional Notes: Article 40 FC provides that there must be a judicial declaration of the nullity of a previous marriage though void, before a party can enter into a second marriage and such nullity can be based only on a final judgment to that effect. Other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity, i.e., determination of heirship, legitimacy/illegitimacy, settlement of estate, dissolution of property regime or a criminal case for that matter, the court may pass upon *Albano in this Engrace Ninal vs. Bayadog case the ruling states that cohabitation must be free from interference. Continuity is necessary, meaning uninterrupted. Such that even if the parties have cohabited for an accumulated period of 12 intermittent years, but if in a span of 5 years, there was no continuity, the marriage license cannot be dispensed with. Minor issues on the Ninal vs. Bayadog case Has not the action prescribed because the father is already dead? The Court ruled that per Article 39 of the Family Code, the action does not prescribe. Has the children have the personality to declare the marriage void? Is it not that the marriage is a personal matter between their father and the concubine? The Court ruled that so long as the children have interest to protect, personality/legal standing is present. The marriage license must be exhibited at the time of marriage latest decision is the Sy case

12

EQ. The priest forgot to forward the copy of marriage certificate (lost), to the Civil registrar. So despite the pictures and everything, the man denies marriage, especially when he is now charged of parricide. A. Mere irregularity does not destroy the validity of marriage. The license is not the only evidence of the marriage, oral testimony and other evidences are admissible to prove such marriage. The presumption is that a man and a woman deporting themselves as husband and wife are in fact married and this can only be rebutted by cogent proof to the contrary. EQ. Is a marriage license which does not state the true residence of the party invalid? A. Mere irregularity. EQ. How about getting married not at the place where the marriage license was issued, is the marriage invalid? A. Marriage license is valid anywhere in the Philippines within 120 days. EQ. The Civil Registrar, prior to the issuance of license was informed that one of the parties is married. Can he not issue the marriage license? A. No. His duty is ministerial. It is for the court to declare so. He is, however, required to make the necessary annotation. (Note: the pilot and ship captain pertains to commercial undertaking) EQ. Is marriage by proxy which if valid in other country where marriage was solemnized against our public policy? A. It is submitted that the situation is merely permissive. Hence valid. Had it been mandatory in nature, it would have been contrary to public policy. Per Jurado, it is valid by virtue of Article 26 FC. *Albano Be very careful here. By virtue of Article 26 par.1 it is valid if valid in the country where the marriage is celebrated. But if the marriage is celebrated here in the Philippines, the parties must personally appear before the solemnizing officer under Article 8 of the Family Code. EQ. Distinguish voidable marriage from legal separation A. In terms of prescriptive period, annulment of voidable marriages should be brought from the time of marriage, i.e., 5 years while in legal separation, from the time of occurrence i.e., 5 years.
Action for nullity of marriage does not prescribe. See RA 8533, amendment to Article 39 In void marriages, both spouses can institute the case under Article 36 FC; even the guilty spouse, can file the case. The action for nullity survives the death in void marriages; terminates in voidable marriages.

In voidable marriages, only the innocent spouse can file a case for nullity.

13

EQ. A and B acquired a P 1M peso lot, 10 years later, it became P 2M. They have children. But there was annulment. Does the guilty spouse have a share in the lot? A. Yes, only P500,000, as the P 1M increase will redound to the common children. He is not included in the net profits.
Take note that the forfeiture partakes only the net profits Net profits increase in the value of the property from the time it was acquired to the time of liquidation

AQ May a person who is married contract a subsequent marriage? A. Yes, without prejudice to the provisions of Article 41, 42 and Article 391 of the Family Code. *Albano On Article 40 of the Family Code Case: Mercado vs. Tan Aug. 1, 2000 The act of bigamy was completed prior to the commencement of the annulment case. But when the bigamy case against the spouse was pending, the annulment case was decided ahead. On the basis of the decision the accused would now seek to dismiss the bigamy case against him. The Court ruled that to dismiss the bigamy case would make it easy for one to escape the law. Speaking thru J. Panganiban the Court ruled that a judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as void. Case: Terre vs. Terre July 1992) With knowledge that the girl is married to her first cousin, the law student persuaded her to marry him explaining that her marriage to her first cousin is void. Convinced by the assurance, she married him putting in the marriage license single as status since her first marriage was void. They had a child. He later disappeared and married H.M. His first wife filed a case for his disbarment. He contended that he thought that his first marriage to the complainant was also null and void, hence no court action may be necessary. The Court ruled that being a lawyer at the time of his subsequent marriage, he should have known that under Article 40 of the Family Code, before a second marriage is entered into, a judicial declaration stating that the first marriage was null and void is necessary. Even if his argument will be followed, he is still in bad faith considering that his first marriage with the complainant would now be valid, hence, his subsequent marriage to H.M. is bigamous and criminal in character. Even if he contracted the marriage under the Old Civil Code, when the Family Code overtook the issue, such requirement under Article 40 is retroactively applied. On incestuous marriages EQ. Can half-brother and half-sister marry? A. No. EQ. Can brother in law and sister in law validly marry? A. Yes.

14

Regardless of the illegitimacy/legitimacy up to the 4th degree they cannot validly marry (first cousins)

*Albano For first cousins, do not say incestuous, but say that the law prohibits by reason of public policy. EQ. Can adopted child and an illegitimate child of the same adopting parent marry? A. Yes, they can marry. EQ. Two adopted children, who do not belong to the same adopting parent (couple adopted separate children). Can they validly marry? A. The children can marry each other as the prohibition pertains to the SAME adopting parent only. On subsequent marriages EQ. When the first husband appeared and recorded the appearance, where will the wife go, first husband or second husband? A. The first seems to have the preference, because the second marriage is terminated.
Per Atty. Sison: After considering all the jurisprudence and the existing laws on the matter, the following seem clear: (1) that no judicial declaration of presumptive death is necessary if the first spouse has been absent for seven consecutive years at the time of the second marriage with the spouse present not having any news of the absentee being alive. This is because it is already presumed by law that a person not heard from in seven years is already dead (Jones vs. Hortiguela 64P179; A83CC). (2) that a judicial declaration in a summary proceeding is necessary only when the spouse present wants to get married: (a) after the first spouse has been absent for four consecutive years and is generally considered dead and believed to be so by the spouse present; or (b) after an absence of only two years in case of disappearance under dangerous circumstances like when he or she is on board an airplane or lost or missing when he has taken part in a war as a member of the AFP. (A41FC). It must be pointed out, however, that a subsequent marriage contracted pursuant to the Family Code provision requiring judicial declaration in a summary proceeding for an absence of four years or two years may be AUTOMATICALLY annulled in case of REAPPEARANCE of the first spouse through an AFFIDAVIT OF REAPPEARANCE filed with the Civil Registrar (A42FC). Since the FC did not fix a period within which such appearance should occur in order to automatically annul the second marriage, said marriage is always vulnerable to automatic annulment at any time even after the lapse of the nth year form disappearance of the first spouse. So, after all, it is still better for the spouse present to be a little bit more patient and just wait for the lapse of seven consecutive years of disappearance before getting married again because then, the legal presumption sets in and no more judicial declaration is necessary. In such case, the FC provision on automatic annulment upon reappearance is not applicable. True it is that such marriage after seven years absence may still be annulled upon reappearance of the first spouse but the annulment is NOT automatic. It needs tedious proceedings in court which a reappearing spouse may not have the heart to endure or the financial or physical stamina to hold and maintain.

EQ. Distinguish between void and voidable marriage. A. see p. 76 of Jurado

15

*Albano In an action for partition, can the children of the first marriage assail the validity of the subsequent void marriage of their decedent father collaterally in the partition case? The answer is Yes for void marriages, No for voidable marriages as the latter cannot be attacked collaterally. Even void marriages can produce legitimate children. If born after nullity of the marriage, the child is illegitimate. But if conceived prior to the nullity and born thereafter, the child shall be legitimate. Q. What are the periods for declaration of presumptive death? A. Under Article 391 CC. **Two (2) years for purposes of marriage; 4 years for other purposes.
For subsequent marriages if both spouses are in bad faith, marriage is void, if only one, the effect could only be to the guilty spouse.

*Albano The affidavit of reappearance is a constructive notice. July 4, 2001 EQ. What are the substantial points to consider brought about by the Revised Rules of Criminal Procedure, effective December 2000? A. On Separate Action the amendment have the effect of reverting to the 1988 Rule, no need to reserve except one arising from crimeso as to free the SC for the conception that procedural law can amend substantive laws. On Prejudicial question condition that the civil action must be filed first before the criminal complaint is instituted. Save in cases when causes are beyond the control of the party made him unable to file the civil action first or ahead of the criminal action against him. EQ. Enumerate the voidable marriages. A. See Article 45 of the Family Code. EQ. During the honeymoon of A and B, A refused to have sex with B because of vaginal pain caused by a tumor. When the tumor was removed, she can now have sex, but could not be pregnant anymore. Is the marriage annullable? A. No. It is potency NOT sterility that shall make the marriage annullable. EQ. Suppose A, refused to have surgical operation. Annullable? A. Yes, on the ground of impotency. Illustration: BAR Question p. 182 Qs. The wife discovered that her husband had sexually transmissible diseases contracted prior to marriage but the husband was innocent about it until the discovery by the wife. Can their marriage be annulled on said ground? What about if both of them have STD?

16

A. Yes. Good faith is not a defense when the ground for annulment is based upon STD. If both of them have STD, marriage can still be annulled as STD does not efface or nullify the ground. (Alternative. No. on the ground of estoppel (see Tolentino)) In adultery every act is a ground!! Homosexuality is a continuing offenseOLA

EQ. Does our laws recognize separation de facto? A. Yes, but their property relation remains. EQ. What are the grounds for legal separation? A. Article 55 of the Family Code.
Psychological incapacity is not a ground for annulment but can be a basis of an action for nullity. The action does not prescribe in Article 36 FC. The effects of Article 36 FC and annulment are the same. The action for annulment cannot survive the death of parties while action for nullity of void ab initio marriages survives the death of the parties. Article 36 FC (a void marriage), however, is a personal action. In legal separation, acquiring a sexually transmissible disease is not a ground.

Albano on legal separation lecture 4.24.02 * There is no need for conviction to prove attempt on the life of a spouse. * Manifestation of reconciliation shall cause the dismissal of the legal separation action at whatever stage before final decree. * There are only 3 grounds for legal separation under the old Civil Code, while there are 10 grounds under the Family Code. * Article 56 of the Family Code BE VERY CAREFUL HERE!!! THE GROUNDS for denial of petition for legal separation: (C4 MP) a) Condonation b) Consent c) Connivance d) Collusion e) Mutual guilt f) Prescription Case: Sy vs. Eufemio on the # 7 ground if one of the parties has DIED Per Albano : except when the court has already rendered a decision, the court shall proceed to dispose of the issue of liquidation of property regime. (Art. 99 FC). Case: People vs. Schneckenburger the act of putting in writing that each spouse may have another is an act of condonation which shall be a ground to dismiss the petition for legal separation. In this case, the principle of MUTUAL GUILT is also discussed.

17

AQ: When does the court determines collusion? A. If there is no answer to summons among the parties, the court orders the prosecutor to investigate whether there is connivance. There is NO automatic declaration of default. There is no such thing as default in an action for legal separation. Note: The six-month cooling off period before the case can be tried is MANDATORY TO LAPSE. Thus, no setting of trial on the merits can be made, it doing of the same is a ground for objection. EXCEPT : When the court orders PRE-TRIAL conferences. The lawyer cannot object here, because in the pre-trial conference, what can be attained in the 6-month cooling off period may be attained in the pre-trial.

AQ: Can a motion for support pendente lite be raised despite the 6 month period has not lapsed? A. Yes. This is merely incidental to the case, not trial on the merits. AQ: Can the trial court set the trial for hearing to prevent the selling of the spouse of property left and right? A. Yes, even within the cooling off period. AQ: Within what period should the spouse file an action for legal separation? A. Within 5 years from occurrence, otherwise prescription shall set in. AQ: What if there is no answer, interposing the defense of prescription or there is answer but no mention of prescription of action? A. The court can take cognizance of the period of prescription (Rule 9 Rules of Court). Under Rule 9, the court can base it on evidence available, even if prescription is NOT apparent in the complaint nor in the answer. This is thus an exception to Rule 9 (1) providing that all objections must be set as defense Case: Brown vs. Yambao The court can take judicial cognizance to dismiss the case, even if not alleged in the complaint or answer of the parties, if the evidence shall warrant it. AQ: Can the court render judgment on confession of judgment? A. No, except when evidence aliunde can support the decree of legal separation. Case: Ocampo vs. Florenciano - If outside from the confession of judgment, there are grounds for legal separation through evidence aliunde, then a decree of legal separation may be granted. Issue on custody of child in legal separation AQ: What could be the exceptions that a child below 7 years old cannot be separated from the mother? A. see cases: Cervantes vs. Fajardo and Espiritu vs. Court of Appeals. In the latter case, custody not given to the adulterous mother.

18

Albano on Psychological Incapacity under Article 36 Family Code The Family Code commission provided for no uniform measurement of what psychological incapacity should be in order to give the court elbow room to decide a given case. Case: Chi Ming Tsoi vs. CA Jan. 17, 1997 The wife filed a suit to nullify her marriage to her husband claiming that after 10 months of marriage to him, she remained a virgin. He corroborated the absence of sex but said that she avoids it. The examining doctor concluded that she is still a virgin. The man also is capable of full erection, although when he was asked to masturbate, his 2 inches penis only grew by 1 inch and 1 centimeter (3 inches lang). Is the husband suffering from psychological incapacity? The Court ruled that failure to provide sex to ones spouse constitutes psychological incapacity. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an utter insensitivity or inability to give meaning and significance to the marriage within the meaning of Article 36 of the Family Code. Case: Court of Appeals case Velasco vs. Velasco J. Elbinias when the woman declares openly to her husband that he is not good in bed and that her other paramour is a better performer, the Court of Appeals ruled that there is no more love, respect among the spouses and that the marriage can be annulled under Article 36 of the Family Code. Albano In psychological incapacity cases, even the person suffering from it, can initiate the action to void the marriage. AQ: Can an action to compel the leaving wife be brought so as to let her come back to the conjugal home? A. No. But the right for support may be denied, if her leaving is without any justification. On Annullable Marriages Case: Marcos vs. Marcos if the totality of evidence would warrant the voiding of marriage, it shall be voided. Case: Buccat vs. Buccat the man cannot assail his marriage to the woman on the basis that she concealed her pregnancy by another man when she was already 6 months pregnant at the time of her marriage to him. But the Supreme Court also concluded that 5-month pregnancy is still unnoticeable especially when woman is naturally healthy individual. On Article 72 and 73 of the Family Code Under Article 72, if a spouse bring dishonor to the family, relief for damages may be sought. (Tenchavez vs. Escano)

19

Under Article 73, the Family Code allows women to object on the exercise of profession of their husband on VALID AND VERY SERIOUS MORAL GROUND. July 7, 2001 EQ. A couple before marriage, had an oral agreement as to the property regime, after marriage they were advised by their lawyer to have it in writing. Is the agreement valid? A. No. The agreement must exist at the time of marriage. EQ. What are the property relations? A. see Article 74 of the Family Code AQ: A and B, got married in 1975. What property relationship governs them? Explain. A. The marriage of A and B is governed by the conjugal partnership of gains in the absence of stipulation to the contrary because they were married under the provisions of the Civil Code. Under the provisions of the Family Code (to dispose of 1975 hint in the question), if there is no stipulation to the contrary, the absolute community of property regime shall govern them. Although the Family Code is RETROACTIVE in nature, it cannot apply to the marriage of A and B because it will impair vested rights. ***Note here that there is a reason for asking a question involving marriage in 1975, it must be disposed of to get better grades. EQ. Can there be a combination of the property relations in the marriage settlement? A. Yes, so long as not against public policy, morals and customs. EQ. What are the instances when mandatory separation of property exist? A. 1. Revival of property regime from decreed legal separation without stipulation 2. Abandonment by the spouse 3. Non-liquidation of property after one year of death of decedent spouse and surviving spouse contracted subsequent marriage. EQ. Suppose the husband donated property to the daughter of his wife of previous marriage, is the donation valid? A. No. The mother is an heir of the daughter. Even indirect donations are prohibited. EQ. The husband donated to the wife jewelry on family rejoicing. Is the jewelry conjugal/community or exclusive property of the wife? A. What is controlling is the MODE of acquisition. Thus, the jewelry shall be exclusive property of the wife. Paragraph 2 which states that jewelry shall be conjugal pertains only to onerous acquisition. EQ. Where the lot is exclusive property of one spouse and the house on built thereon is conjugal, to which does the increase in value of the property taken as a whole belong, exclusive or conjugal? A. The following rules shall be observed:

20

1. Unearned increment (Dr. Tolentino p. 421) not a result of the improvement, thus should not be added to the improvement (house) but shall pertain to the land. 2. Resulting increase because of investments of conjugal funds or because of the labor/industry of either spouse or both spouses, such increase in value must be considered conjugal.
Unearned increment (p. 421 Dr. Tolentino) - due only to ordinary course of time or things; or to the construction of public improvements of neighborhood; or to the rise in value of property; or to the chances of trade.

EQ. How about proceeds from insurance contracts? A. Problem arises when funds to pay the premium comes from exclusive or conjugal. Two views (where husband is beneficiary) First view if during the marriage, regardless of source conjugal; if paid prior to the marriage, then separate property. Second view Regardless if paid during or prior to marriage, the source of funds shall control whether exclusive or conjugal funds were used. EQ. On damages, if it happened in the pursuit of profession of either spouse, from what funds shall payment for damages be taken, from exclusive or conjugal funds? A. If made to pay, what is controlling is whether or not the act on which damages was sought redounded to the benefit of the family. If it did, then payment shall be taken from the conjugal funds. If to receive the amount of indemnity, the award for moral damages suffered shall pertain to separate property (Zulueta case where money paid for plane ticket was taken from conjugal funds). The award for actual damages shall pertain to conjugal funds. EQ. Can the spouse dispose the property after the death of her husband before liquidation? A. Yes, but void. EQ. If the hidden treasure is found by the spouse on his spouses exclusive property (land), to which does the found treasure belong? A. The treasure shall be conjugal. But please see dissent of Dr. Tolentino, p. 447. If the property relation is absolute community, the spouses cannot sell property to each other, even their separate property. Sale can only be possible under Separate property regime. EQ. Can the spouses donate to each other? A. No. It is clear under Article 87 FC. Both as to absolute community and conjugal partnership of gains. EQ. On separate property relations, are the spouses prohibited from donating to each other? A. There seems to be no prohibition, but Article 87 seems to cover all kinds of marriages so as to include all property regime.

21

***Albano Before the marriage, the spouses can donate to each other provided that if they agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth (1/5) of their present property. Any excess shall be void (Art. 84 FC). On Article 87 see cases of Matabuena; and Buenaventura. Case: Agapay vs. CA (July 1997)- Husband went to Hawaii leaving his family here. When he came back he did not go back to his family but instead lived with a younger girl. When he died, his family would want to get back the property from the younger girl which property is in the name of the latter. The Court ruled that the family can take it back as it was proved that the girl did not contribute any amount in the acquisition of the property in question. The very important Case of: Arcaba vs. Vda. De Batocael (December 2001- JUSTICE MENDOZA) This is a case involving 3 caregivers to the old man. The two were his nieces, while the third was not. It was proved that the latter slept with the old man while giving care to him (extensive overall care.) The old man executed a deed of donation in favor of the third care giver. Upon the death of the old man, the relatives sued to get back the spurious donation. Can the relatives get back the property from her thereby annulling the deed of donation? Answer: Yes, because it is no longer ordinary care giving but the old man and the woman has already manifested cohabitation. In the light of Article 87 of the Family Code, the donation shall be void. CASES of CLANDISTINE TRIES!!! (very important kono) This is NOT a case of cohabitation, even if the sexual intercourse is repeatedly done!!! AQ: What if there is no sexual intercourse, but the man and woman lived under one roof? A. Yes, there is cohabitation because there may be a time when sexual intercourse may no longer be of interest to the man or woman. (really?) EQ. What are the instances when there is separation of property? A. 1. Revival of property regime in legal separation 2. Marriage without liquidation of property under Article 103 FC 3. Voluntary separation Involuntary separation the following are 4. Involuntary separation considered as grounds/causes:
In voluntary separation judicial intervention is still necessary; mere agreement of both spouses will be sufficient. In both voluntary and involuntary separation, the approval by a competent court is 1. 2. 3. 4. 5. 6. spouse of petitioner been sentenced with a penalty which carry with it civil interdiction. judicially declared absentee loss of parental authority abandonment abuse of power by administrator spouse at the time of petition, the spouses have been separated in fact

22

*Albano Modifications in the property relation during the marriage can ONLY be done if there is a court action to that effect. For instance, filing under Article 135 (4), an action for judicial separation of property abandonment. If the abandonment ceases, there is NO automatic reversion to the old property regime. AQ: When is the time when the property relation starts to commence? A: Take note here of the Civil Code provision and the Family Code provision. The old rule under the Civil Code states ON THE DAY while under the Family Code PRECISE MOMENT. EQ. What is the share of the spouses in the support of the family expenses? A. Proportionate to their income or in case of insufficiency or default, to the current market value of their separate property (during separate regime of property A146)
Per Dr. Tolentino If only one spouse advances the full amount of the family expenses, because the other spouse has neither property nor income, he cannot later seek reimbursement, because the obligation is his, imposed by law. The same is true if the solidary liability is enforced by a creditor against one spouse. The obligation to the creditor is not joint and several.

AQ: What is the Lucilda Dael Formula? A: See the Case of Lucilda Dael vs. IAC (1989) Where the SC ruled that if there was no liquidation after the death of one spouse in one marriage and the surviving spouse contracted another marriage whenever the liquidation of the partnership be carried out at the same time with the absence of evidence to show the capital or the conjugal property belonging to each of the partnership to be liquidated, the total mass of the property shall be divided in PROPORTION to the duration of each marriage. Case: Custona vs. Domondon (1989) A and B are married. A got sick and stayed in coma at the hospital for 6 months. When he recovered, the billing was P 10 M. Out of the conjugal funds, the family paid P 5 M. Can the obligation to the installment be denied on the basis that the ailing husband did not contribute any centavo during the time he got sick? Answer: The Court ruled that NO, the contribution need not be material. (Article 161 NCC). Need not be quantified into pesos or square meters of real property. The health and well being of both or either spouses would undeniably redound to the benefit of their conjugal partnership. Case: Ting vs. Villarin Man and woman have children. The man abandoned the woman, but became a surety of a friend. The friend did not pay. Can the creditor sue the wife of the man? Answer: NO!!! His being a surety did not redound to the benefit of the conjugal partnership. VERY IMPORTANT CASE OF: Ayala Investment and Development Corporation vs. Court of Appeals (February 1998) The Board of Directors appointed A to be executive

23

Vice-President of the company. One of the conditions in his appointment include that he act as surety on any undertakings of the company. He accepted the appointment. When the corporation loaned substantial amount, he signed as surety in performance of his job. During the time when business was doing well, it was proved that the family of A has greatly improved. They now have a luxury car and his family enjoys to stay at Ayala Alabang, a much, much better place than his rented apartment before his appointment as VP by the BOD. Time came when the company cannot answer for the loans. Can the absolute community be made to answer for the surety undertaking of A? Issue: Is a surety agreement or an accommodation contract entered into by the husband in favor of his employer within the contemplation of Article 161 CC (now Art. 94 and 121 of the Family Code)? Answer: No. The benefit enjoyed by As family was merely incidental, what really benefited from the loan was the corporation. Thus the community property cannot be made liable. The benefits contemplated under the law must be one directly resulting from the loan itself. MUST READ THE CASE: see Albano Review Guide also. EQ. On pension, is it conjugal or exclusive? A. If it is procured out of the wages of the employee spouse, the source is thus conjugal, the pension is consequently conjugal.(A115) EQ. When there has been previous separation of property and after a revival of the property regime i.e., to community property, can there still be another separation? A. Under Article 141 par.7 when after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they decree to the revival of the property regime, NO voluntary separation of property may thereafter be granted.
Note that par. 7 pertains to voluntary dissolution, it is so because it is not a separate paragraph to affect paragraphs 1-6 which are in the nature of involuntary causes or grounds in involuntary dissolution. Thus, if the previous dissolution was involuntary, it is believed that voluntary dissolution can still be availed of.

EQ. Under Article 94, if the debts or obligations did not redound to the benefit of the family, but both spouses consented thereto, is the conjugal property liable for it? A. Yes, Article 94 paragraph 2 provides that all debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community property or both spouses or by one spouse with the consent of the other Thus, if the transaction is with the consent of both spouses or with their concurrence, REDOUND to the benefit of the family is IMMATERIAL.
On criminal liability of husband Dr. Tolentino believes that there are cases which such indemnities must be chargeable against the conjugal partnership. Where the wrongful act inured to the benefit of the partnership (occupation as cashier) it would be unjust to make the partnership keep the benefit and impose the duty of indemnification exclusively upon the spouse who committed the act. Thus, if the husband, by using trust funds to support the family, has committed estafa, the indemnification to the injured party must come from

24

On Article 120 Atty. Estolloso believes that its is not applicable to absolute community regime of property. Article 120 on the ownership of improvements made on separate property using conjugal funds

Administration by one spouse of common properties needs no court intervention. Transfer of administration of exclusive property of incapacitated to

On Article 147 and 148 Property Regime of Unions Without Marriage Marriages or Union under Article 147 FC General Rule: Man and woman, both unmarried and without impediment for a legal marriage between them i.e., age; previous marriage, who live together as husband and wife. Characteristics: Living together is a state of concubinage or of marital cohabitation. Proof 1. Sexual relations combined with 2. Common household 3. Manifestations of marital ties before third parties in a) personal correspondence b) other documents 4. Mutual financial assistance and support 5. Raising of children
Article 147 does not cover adulterous relationship !

Examples of unions under Article 147 FC are: 1. Marriage without authority of solemnizing officer 2. Marriage by proxy 3. Marriage under Article 36 FC, psychological incapacity cases (Valdez case 260 SCRA) (Dr. Tolentino has an enumeration of unions covered under Article 148 which include void marriages due to public policy i.e., Article 36, 37 and 38) Property covered under Article 147 FC

25

The rules of co-ownership provided in this Article are to govern only property acquired by either or both of the parties through their work or industry or their wages. Does not include the fruits of the property of either of them. But property acquired from fruits of their industry or wages are covered. Thus, if the man is salaried and the woman is a housewife, they have presumed to have contributed EQUALLY under Article147 FC. Under Article 148 (cases of cohabitation not falling under Article 147 Where the man and woman are not capacitated to marry each other but lived as husband and wife without the benefit of marriage or under a void marriage.

Per Dr. Tolentino, the following void marriages are covered under Article 148: 1. incestuous marriages 2. bigamous marriages Under Article 148, wages 3. adulterous relationship are EXCLUSIVE 4. below 18 years old marriages 5. between first cousins
In both Article 147 and 148 FC, there never was an absolute community or conjugal partnership of gains. In Article 147 FC liability for expenses except to preserve common property shall be EXCLUSIVE The undivided share can be sold without the consent of the other spouse

PROBLEM AREA involving Article 50, Article 43 par. 2 and Article 147 Article 50 the effects provided for by paragraphs (2)(3)(4) and (5) of Article 43 and Article 44 shall also apply in the proper cases to marriages which are declared VOID AB INITIO or annulled by final judgment under Article 40. (Absolute nullity of subsequent marriage for failure to have a final judgment of nullity of previous marriage and Article 45 on annullable marriages). Article 43 Effects of termination of marriage Paragraph 2 the absolute community or conjugal partnership (as the case may be) shall be dissolved and liquidated, but if either spouse contracted in bad faith, his or her share of the NET profits of the community property or conjugal shall 1. Forfeited in favor of a. common children b. if none children of guilty spouse of previous marriage or c. in default children of innocent spouse Article 147 when only one of the parties to a void marriage is in good faith, the share of the party in bad faith, in the co-ownership shall be forfeited in favor of: b. common children

26

c. in case of default of (a) or their descendant each vacant share shall belong to the respective surviving descendants d. in absence of (b) such share shall belong to the innocent party. IN all cases, the forfeiture shall take place upon the termination of the cohabitation. Share in co-ownership shall mean property acquired their work or industry or wages (Art. 147FC) Share in the NET PROFITS of community or conjugal (Art. 43 (2)

Per Dr. Tolentino (p. 497) As a rule, forfeiture should be STRICTLY construed, so as to effect the least deprivation of property. In view of the conflict between Article 50 (referring to Article 43 (2) and Article 147, it is believed that Article 147 applies (on void marriages) as it involves LESS deprivation of property. Per Atty. Estolloso quoting Dr. Tolentino: (p. 500) The spouse in bad faith, without common child or descendant shall retain her share, as the giving of her share to the conjugal union of the other party or spouse would mean awarding of the latter who is also guilty, as both are in BAD FAITHbut it is said that spouse who subsequently marry or cohabit while previous marriage is still subsisting can never be in good faith.. Per Dr. Tolentino Under Article 148, there would be no innocent party if second wife is in bad faith because the other party to the cohabitation is married and cannot be innocent. EQ. So what marriages fall under Articles 148 and 147 FC? A. a) A B C D

A lived with B, C and D for one week each, they acquired properties, A&B, A&C, A&D. In here Article 148 applies criteria is EXCLUSIVE living. b) First cousins, living exclusively as husband and wife with each other, of lawful age but without benefit of marriage. Article 148 shall apply. Legal impediment exists. c) What if they got married? Per Sempio-Dy Article 147 does not qualify, he said that all void marriages because of legal incapacity is under Article 147, Article 148 applies to Bigamous and Adulterous marriages only.

27

Per Pineda Article 148 applies d) Supposing first cousins married, they got a declaration of nullity. What is the status? Or what article shall apply? This is an EXCEPTION to void marriages when declaration of nullity was obtained. (meaning community or conjugal have previously existed) e) Declared void due to psychological incapacity Article 36 fall under Article 147 because Article 50 does not include Article 36. Article 147 compared with Article 148 Similarities 1. Under both Articles parties must be in a state of cohabitation or living together OPENLY as husband and wife 2. In both cases no absolute community or conjugal partnership of property is formed between the parties 3. In both cases the common properties of the parties be owned in common and governed by the rules on co-ownership. 4. In both cases the property of each that is not in co-ownership, such as when bought by their money before living together or fruits of SEPARATE property or EXCLUSIVE 5. BAD FAITH OF PARTY results to FORFEITURE of share in co-ownership Differences 1. Under Art. 147, the parties are capacitated to marry each other BUT are not married, or if they are married, marriage is void ab initio ; Under Article 148, parties may have no capacity to marry or are suffering under some legal impediment to marry each other. 2. Article 147, the parties live with each other exclusively; while under Article 148, one or both of the parties may have an existing valid marriage. 3. Under Article 147, wages and salaries and the property acquired by both of them through their industry are owned in common in EQUAL shares; while under Article 148, there must be actual joint contribution of money, property or industry in the acquisition of property in order that this be owned in common and the share of each party is in proportion to his or her contribution. 4. Under Article 147, property acquired during the periods of cohabitation is presumed to be obtained by their joint effort, work or industry; while under Article 148, no presumption exists, actual contribution required 5. Under both articles, there are disputable presumption but in Article 147 it is ACQUISITION of property presumed to be by joint effort thus owned in equal shares; while in Article 148 it is EQUALITY OF CONTRIBUTION that is presumed, thus proof to show RATIO OF CONTRIBUTION CONTROLS. Or if other party is shown to have not contributed, he can have no share. No proof is required under Article 147.

28

On the conjugal partnership of gains - intricacies TAKE NOTE ON PROPERTIES ACQUIRED BY ONEROUS TITLE DURING THE MARRIAGE. There are four (4) possible types of questions (read more, not clearly explained) Illus: A and B are married. X, the father of A, gave to A by will substantial money during the marriage. Suppose the money left with A, is used to buy a property in the name of A and B or A married to B. First Type (1) what is the acquisition, onerous or gratuitous? Answer: The acquisition is ONEROUS during marriage thus, part of the conjugal partnership of gains. Second Type (2) B contend that the property is conjugal. A shall prove that the property was bought by using exclusive fund of A. The presumption is that the property is conjugal but said presumption is rebuttable. Third type (3) When the wife shall hold the property in the concept of a trustee under Article 1414. Fourth type (4) A acquired the property by right of purchase. But title has not yet been transferred to A. No registration was made. When A got married, he caused the registration of the title to the land. The registration is merely a confirmation. The property is still exclusive under the conjugal partnership of gains. NOTE: The point to reckon with is the time of acquisition regardless of the source of the fund. But it is rebuttable. The exclusive property nature is retained. When the property is sold and was repurchased by using the conjugal funds, the exclusive property though is indebted to the conjugal funds. THE FAMILY EQ. Are sister in law/brother in law included in the requirement that earnest effort to reconcile be made before suit may ensue? A. No, as it is not including among those expressly enumerated. EQ. If there is a stranger, does the earnest effort rule apply? A. No. The rule does not apply. EQ. Is a judicial constitution needed for a family home? A. No more, the Family Code repealed the Civil Code provision.

29

EQ. Who shall benefit the family home? Is there a minimum amount? A. see Article 151 FC The law says the amount. There will be no family home that is exempt from attachment and execution if the amount exceeds P300,000, urban area, P 200,000 for rural area. EQ. At that time, the Family home was P300,000 in 1990. In 1995, there were improvements made worth P200,000. In 1999, an action was brought by the creditor on the P200,000 improvement to the family home. Is the creditor allowed? A. Yes, the creditor can attach the family home because the value plus improvement exceeded P300,000 (Art. 160 FC) EQ. What if there were no more improvements? EQ. If debt is prior to constitution of family home? A. Yes. Personal debts. If after constitution, personal debts, no more. EQ. On secured mortgages A. Before or after constitution, the family home is liable. EQ. On houses having dwelling and bodega downstairs, does it still constitute a family home? A. Yes, the business downstairs is just incidental. Actual occupancy is a requirement for Family Home. Exception to the rule that execution is made on Family Home. 1990 P 250,000 value 1991 P 500,000 value because of currency changes Cases on Family Home: Modequillo vs. CA and Manacop vs. CA *Albano What is the effect of failure to allege in the complaint that earnest efforts were made to bring the immediate members of the family at reconciliation? Is it jurisdictional? Answer: No. Only a condition precedent, it can only result to the dismissal on premature filing not on lack of jurisdiction. AQ: Between a brother and a brother in law, is the reconciliation a precedent? A. No. see Guerrero vs. RTC of Ilocos NOrte If not attacked, then this defense is considered waived.

30

PATERNITY AND FILIATION EQ. What is the definition of a legitimate child? A. Children conceived or born during the marriage (Art. 164FC) EQ. Define illegitimate child? Legitimated child? A. Illegitimate children are those conceived and born outside a valid marriage. Children born of void marriages under Article 35, 37 and 38 are considered illegitimate. Legitimated children are children who, because of the subsequent marriage of their parents to each other are, by legal fiction, considered legitimate. Children born of void marriages in Article 36 and 53 are legitimate. EQ. The Emiliano, Maria and Felix case in Albano and Bar Q. A. Emiliano and Maria are married. When Emiliano got sick of tuberculosis, Emilianos brother, Felix, joined the couple to help work in his farm. His sickness became worse that on or about September 10, 1942, he became so weak that he could hardly move and get up from his bed. On September 10, 1942, Maria eloped with Felix, for obvious reasons. Since May 1942, Felix and Maria had sexual intercourse and treated each other as husband and wife. On January 1, 1943, Emiliano died. On June 17, 1943, Maria gave birth to Mariano. Is Mariano a legitimate son of Emiliano (for purposes of claiming right to the estate of Emiliano)? Yes. Emiliano died on January 1, 1943. Mariano, whose legitimacy is in question was born on June 17, 1943. Evidently, he was born within 300 days following the dissolution of the marriage between Emiliano and Maria. That presumption can only be rebutted by proof that it was physically impossible for the husband to have had access to his wife during the first 120 days of the 300 days preceding the birth of the child. The fact that the wife has committed adultery cannot overcome this presumption. Although the husband was already suffering from tuberculosis and his condition then was so serious that he could hardly move and get up from his bed, his feet were swollen and his voice hoarse, yet that is no evidence of impotency, nor does it prevent carnal intercourse.(remember that the penis was not swollen nor hoarse) The reputation of tuberculosis patients towards eroticism is probably dependent more upon confinement to bed than the consequence of the disease. (Andal and Duenas vs. Macaraig) EQ. Two marriages, whats the rule? A. Two prescriptive periods 1st - 300 days from termination 2nd 180 days born from celebration of second marriage EQ. No subsequent marriage i.e., elopement, whats the rule? A. If no subsequent marriage a) count 300 days from birth BACKWARDS b) then 120 days from the start of the 300 days FORWARD to determine the possibility of sexual intercourse

31

EQ. A and B are married. B had an affair with C. On the 8 th month of C, A died, B on the 9 th month, married C. A day after the marriage, D was born. Is D legitimate or illegitimate? A. D is legitimate because D is conceived OR born in a valid marriage.
Take note that the 300 and 180 days rule applies to a woman who remarries not to a man.

AQ: Who can question the legitimacy of the child? A: The father and father alone. But it can be transmitted to the heirs after the father institution thereof before he died. AQ: Why is it so, that only the father? A: Because the mother is always sure that she is the mother. The father only hopes. Note: If the father did not sign in the birth certificate, the document is not binding on him. (Cases of Roces, Reyes and Baluyot. In Roces, it was the mother who furnished the data and name of the father in the birth certificate.) But take note in Elano vs. CA where the court sustained the filiation of the child to the father despite that the latter did not sign the birth certificate. It was proved that the father gave the details in the birth certificate when the data was asked of him. EQ. Can the husband impugn the legitimacy on the basis of low sperm count? A. No. The law says impotency not sterility. Biological means may then be used. ADOPTION EQ. A former Filipina, later naturalized in the US, Married B an alien. They lived in the Philippines for 6 years. Can B adopt? A. Yes. The rule provides only for 3 years living continuously. Moreover, adoption by B may be had under the instances enumerated under Article 184 FC as amended by RA 8552.
Old Photograph Yesterday I felt the wind blowin round my shoulder Feel like Im getting older Still I cant forget your face Separated by a million miles of ocean My hearts still feels the motion Even in this lonely place. Old photographs and places I remember Just like a dying ember Thats burning to my soul Even though we walk the Getting to Know diamonds started high ways I call you and you call me Its the country lanes and byIts funny how we get on so ways easily That makes us long for home. Were just friends, arent we. Lately I just find my mind has You got yours Ive got mine turn to dreamin And friends are all we ever Makin plans and schemin can be How Im gonna get back home What youve done inside I know But were getting to know is really hopeless RELATIONS each other a little too well This road Im on is endless Were starting to show our We climband our mountains feelings people can tell all alone. Every time that your eyes

BAR QUESTIONS (1989-2001) PERSONS AND FAMILY

2001 BAR meet mine, Q1. conflict of laws Art. 16 CC I light up like a neon sign Q2. adoption by aliens (FC & Child & Youth Welfare Code; RA 8552) Yes were getting to know each other a little too well. 2000 BAR Q1. property relations redound benefit of family issue, etc. We had lunch every now

and then And I find myself humming love songs again and again Too many nights, Im working til ten And I hope that you know that its hopeless to go on when

32

Q2. cohabitation without marriage Q5. adoption by aliens (RA 8552) 1999 BAR Q1. donation to unbord child Q3. marriage status Q4. marriage of Filipinos, one changed citizenship Q6. paternity and filiation 1998 BAR Q1. conflict of laws - marriage Q2. conflict as to what law shall apply personal status of persons Q5. marriage, property relations Q6. marriage, property relations settlement 1997 BAR Q2. conflict-marriage; divorce; citizenship Q4. marriage- drug addiction; nullity; grounds 1996 BAR Q3. marriage annulment Q4. quickie marriage Q5. foreign divorce Q6. donation propter nuptias 1995 BAR Q3. family; adoption Q6. marriage capacity 1994 BAR Q6. Property relations Q7. Custody of child Q9. Marriage validity Q12. Marriage legal separation Q13. Family Home 1993 BAR Q1. marriage; authority of solemnizing officer Q2. Paternity and Filiation Q19. Marriage; annulment 1992 BAR Q1. - marriage conflict of laws Q2. property relations of spouses 1991 BAR Q1. Constitutional policy on the Family Q2. Constitutional policy on unborn re: abortion Q3. Marriage property relation settlement Q4. Marriage annulment Q7. persons - filiation Q14. marriage annulment; aids Q18. marriage in airplane Q5. Marriage, validity; nullity; property relation 1990 BAR Q10. Remarriage Q13. Marriage annulment 1989 BAR Q1. conflict of laws marriage; solemnizing officer Q2. conflict of laws marriage Q3. marriage, property relations/regime Q4. marriage annulment, family home Q5. paternity and filiation

33