PFR FOR DUMMIES!

STA MARIA AND PARAS COMBINED

By: PAULFRED P. TOMBALI
Q: WHAT IS CIVIL LAW?
ANS:
It is a branch of law that generally treats personal and family relations of an individual, his property and
successional rights and the effects of his obligations and contracts. (Paras)
Q: WHAT ARE THE SOURCES OF THE CIVIL LAW?
ANS:
a.
b.
c.
d.
e.
f.
g.
h.
i.

The Phil. Constitution of 1935 and 1973.

Statutes or Laws, presidential decrees, executive orders which are applicable.
Administrative or general orders insofar as they are not contrary to the laws or the constitution.
Customs of the place, provided they are not contrary to existing laws, public order or public policy.
Judicial decisions as well as judicial customs.
Decision of foreign tribunals.
Principles covering analogous cases.
Principles of legal.
Equity and general principles of law.

Q: WHAT DOES THE LAW PROVIDE ON THE EFFECTIVITY OF LAWS?

ANS:
Article 2 of the NCC provides;
-Laws shall take effect after 15 days
-following the completion of their publication
-in the Official Gazette or in a newspaper of general circulation in the Phil.
-unless it is otherwise provided.
NOTES:
1. When a statute does not explicitly provide for its effectivity, it shall have effect only after the expiration of
the 15 day period following the completion of their publication either in the Official Gazette or in a
newspaper of general circulation.
2. Ordinary laws take effect either in two instances;
a. On the date it is expressly provided to take effect.
b. If no such date is made, then after 15 days following the completion of its publication.
3. An immediate effectivity clause does not preclude the requirement of publication since the clear object of
the law is to give the general public an adequate notice of the various laws which are to regulate their
conduct and actions as citizens.
4. Publication is indispensable in every case but the 15-day period of publication may be reduced or
extended by the legislature.
5. The requirement of publication of laws comprehends all statutes, including those of local application and
private laws which should be published for their effectivity and shall begin after 15 days after publication.
Administrative Rule and regulations must also be published if their purpose is to enforce or implement
existing laws pursuant to a valid delegation. However, interpretative regulations and those merely
internal, i.e., those that regulate only the administrative agencys personnel and not the public need not be
published; neither are the so called letters of instruction issued by administrative superiors concerning
their duties, nor the decisions of the Supreme Court.
6. The clause unless it is otherwise provided refers to the 15 days period and not to the requirement of
publication.
Q: WHAT IS THE APPLICABILITY OF THE MAXIM IGNORANTIA LEGIS NON EXCUSAT OF ARTICLE 3 OF THE
NCC?
ANS:
Article 2 applies to all kinds of domestic laws whether civil or penal, whether substantive or remedial on grounds
of expediency, policy and necessity, i.e., to prevent evasion of law. However, the maxim refers only to mandatory
or prohibitive laws, not to permissive or suppletory laws.
NOTES:
1. This is founded not only on expediency and policy but on necessity. That every person knows the law is a
conclusive presumption.
2. Ignorance of the law refers not only to the literal words of the law but also the meaning or interpretation
given to said law.
3.

Ignorance of the law is no excuse for not complying with the law while ignorance of the fact (honest
mistake of fact) eliminates criminal intent as long as there is no negligence. Ignorance of the law though

not an excuse from its compliance it can still be a basis of good faith. Meaning any offender will still be
liable but such liability will be mitigated.
4.

Ignorance of foreign laws is not ignorance of the law, but ignorance of the fact because foreign laws must
be alleged and proved as matters of fact, there being no judicial notice of said foreign laws.

5.

PROCESSUAL PRESUMPTION- If the foreign law is not properly alleged and proved the presumption is
that it is the same as our law.

Q: WHY ARE LAWS PROSPECTIVE IN GENERAL?

ANS:
In general, laws are prospective not retroactive because if it were retroactive grave injustice would occur, for these
laws would punish individuals for violations of laws not yet enacted. While ignorance of the law does not serve as
an excuse, such ignorance refers only to laws that have already been enacted.
NOTES:
1. There are however exceptions to the prospective effects of laws, these are;
a. If the law themselves provide for their retroactivity.
b. If the laws are curative/remedial in nature-The legislature has the power to pass healing acts which do not impair the obligations of
contracts nor interfere with vested rights.
c. If the statute is penal in nature, provided:
i. It is favorable to the accused.
ii. The accused or convict is not habitual delinquent as the term is defined by RPC.
d. If the laws are of an emergency nature and are authorized by the police power of the government
e. If the law is curative- but must not impair vested rights nor affect final judgments.
f. If a substantive right be declared for the first time, unless vested rights are impaired.
Vested rights- some right or interest in property that has become fixed and
established that it is no longer open to controversy.
-Such right where the deprivation of which would amount to
deprivation of property without due process of law.
- A right which is perfected that nothing remains to be done by the party
asserting it.
Q: WHAT HAPPENS TO ACTS EXECUTED AGAINST THE PROVISIONS OF MANDATORY OR PROHIBITORY
LAWS?
ANS:
Article 5 provides;
-Acts executed against the provisions
-of mandatory or prohibitory laws
-shall be void
Except when the law itself authorizes their validity.
Q: WHAT ARE PROHIBITORY OR MANDATORY LAWS?
ANS:
Mandatory law- is one the omission of which renders the proceeding or acts to which it relates generally illegal or
void
Example:- Generally donation inter vivos must be in a public instrument otherwise the donation will be
void
- Prescriptive period for filing particular suits.
- One year period for the husband to impugn the legitimacy of a child.
Prohibitory laws-are those which contain positive prohibitions and are couched in the negative terms importing
that the act required shall not be done otherwise than designated.
Example: No decree of legal separation shall be based upon a stipulation of facts or a confession of
judgment.
NOTES:
1. Violations of mandatory laws results in void acts or contracts except when the law allows their validity.
2. There are other exceptions from the above law, these are;
a. When the law makes the act not void but merely voidable at the instance of the victim
Example: If consent in marriage is vitiated by intimidation or fraud the marriage is not
void but voidable.
b. When the law makes the act valid but subjects the wrongdoer to criminal liability.
Example:
A widow who married before the lapse of 300 days as long as she was able to obtain
marriage license, the marriage is valid but she is subjected to criminal liability (Art. 351,
RPC)
c. When the law makes the act itself void but recognizes some legal effects flowing therefrom.

d.

Example: Siblings who got married and had an offspring. Their marriage was eventually
declared void but their child is considered legitimate.
When the law itself makes certain acts valid though generally they would have been void.
Example: Game of chance- Jai-alai, lotto, horse races

Q: CAN RIGHTS BE WAIVED?

ANS:
Article 6 of the NCC provides;
-rights may be waived unless the waiver is
-contrary to law public order, public policy, morals and good customs
-or prejudicial to a person with a right recognized by law
NOTES:
1. Rights-the power or privilege given to one person and as a rule demandable of another
Rights may be:
a. Real rights, jus in re, jus in rem ( absolute rights)-enforceable against the whole world
b. Personal rights, jus in personam, jus ad rem (relative rights)-enforceable against a particular
individual.
2. Waiver- the intentional or voluntary relinquishment of a known right or such conduct as warrants an
inference of the relinquishment of such right.
Q: WHAT ARE THE REQUISITES FOR A VALID WAIVER?
ANS: ( CCHCCP)
1. The person waiving must be capacitated to make the waiver.
-Waiver by a minor or insane person is voidable.
2. Waiver must be made clearly but not necessarily express.
3. The person waiving must have the right he is waiving.
4. In some instances the waiver must comply with the formalities laid down by law.
Example: The express remission of a debt must comply with the formalities of a donation
6. Waive must not be contrary to law, morals public policy.
7. Waiver must not prejudice other with a right recognized by law.
Q: HOW ARE LAWS REPEALED?
ANS:
Article 7 of the NCC provides;
-Laws are repealed only by subsequent ones
-and their violation or non-observance
-shall not be excused by disuse, customs or practice to the contrary
-When the courts declare a law
-to be inconsistent with the constitution
-the former shall be void and the latter shall govern

Constitutional Supremacy

-Administrative or executive acts, orders and regulations

-shall be valid only when they are not contrary to the laws and the Constitution
NOTES: ( As to repeal of laws)
1. Laws are repealed either;
a. Expressly a repeal which is literally declared by a new law, either in terms as where particular
laws and provisions are named and identified and declared to be repealed.
b. Impliedly- when a new law contains provisions contrary to or inconsistent with those of a former
without expressly repealing them.
2. If there is a conflict between general and special law, the formula shall be followed;
a. P formula: General law( prior )& special law ( later)= Special law is considered an exception to
the general law: Meaning: the general law is considered still a good law and there is no repeal
b. A formula: General law (after) & Special law (earlier than the general law)= the special law
remains, unless:
(i)
There is an express declaration to the contrary.
(ii)
There is a clear and necessary irreconcilable conflict.
(iii)
The subsequent general law covers the whole subject and is clearly intended
to replace the special law on the matter.
3.

Laws may lapse (end by itself in view of the expiration of the period during which it was supposed to be
effective) without the necessity of any repeal.
In a criminal offense if the law punishing the act merely lapsed the penalty may
still be imposed. But if the law was completely repealed there would be no
punishment anymore for the offense.

4.

Effects if the repealing law is itself repealed.

a.

5.
6.
7.
8.

9.

EXPRESS REPEAL- A law which expressly repeals a prior law is itself repealed, the law first
repealed is not revived, unless expressly so provided.

Example: A is expressly repealed by B then B was repealed by C= A is not revived still, unless it is
provided.
b. IMPLIED REPEAL- A law which impliedly repeals a prior law and itself was repealed. The first
law repealed is deemed revived, unless the statute provides otherwise.
Example: A is impliedly repealed by B and then B was repealed by C =A is deemed revived, unless
the law provides otherwise.
Disuse, custom or practice does not repeal a law.
Executive fiat cannot correct a mistake in the law, such mistake can only be corrected by another
legislation.
The constitutionality of a law or executive order may not be collaterally attacked. They shall be deemed
valid unless declared null and void by a competent court.
There are some ground for declaring a law unconstitutional;
a. Enactment of the law may not be within the legislative power of the legislature
Example: The Bar Flunckers case
b. Arbitrary methods may have been established
c. The purpose or effect violated the Constitution or its basic principles
General Rule: An unconstitutional law confers not right, creates no office, affords no protection and
justifies no acts performed under it.
Exception: The actual existence of the law prior to such declaration is an operative fact and may have
consequences which cannot justly be ignored.
Operative Fact Doctrine- a legislative or executive act prior to its being
declared as unconstitutional by the court is valid and must be complied with.

Q: ARE JUDICIAL DECISIONS LAWS?

ANS:
No, Article 8 provides;
-judicial decisions applying or interpreting
-the law or the constitution
-shall form a part of the legal system of the Phil.
NOTES:
1. While judicial decisions form a part of the legal system they are still not laws, if these were so, the courts
would be allowed to legislate contrary to the principle of separation of powers. The court exists in order to
state what the law is and not to give it.
2.

Inasmuch as they are not laws, they are still evidence of what the laws are hence, they form part of the
legal system of the Phil.

3.

The interpretation placed upon the written law has the force of law

4.

The interpretation placed by the SC upon a law constitutes, in a way, part of the law as of the date the law
was originally passed, since the Courts construction merely established the contemporaneous legislative
intent that the interpreted law desired to effectuate

5.

Only the decisions of the SC and unreversed decisions of the CA on cases of first impression, establish
jurisprudence or doctrines
6. DOCTRINE OF STARE DECISIS( let it stand, et non quieta movere)
- adherence to precedents- states that once a case has been decided one way then another case,
involving exactly the same point at issue should be decided in the same manner
*Of course if a case has been decided erroneously then such error must not be
perpetuated by blind obedience to the doctrine.
* Obiter Dicta are opinions not necessary to the determination of a case. They are not
binding and cannot have the force of judicial precedents.
7. Judicial decisions may be abrogated by:
a. contrary ruling by the Supreme Court.
b. Corrective acts of the Congress, although it cannot affect those favored prior to Supreme Court decisions
* Congress cannot however alter a SC interpretation of a constitutional provision for this would be
unwarranted assumption of judicial power. The legislature is however, allowed to define the terms it uses in a
statute, said definition is considered part of the law.
Q: WHAT IS THE DUTY OF A JUDGE IF THE LAW IS SILENT?
ANS:
Article 9provides that;
-No judge or court shall decline

-to render judgment by reason of

- the silence, obscurity, or insufficiency of the law.
NOTES:
1. A judge must give a decision, whether he knows what law to apply or not.
2. The judge may apply any rule he desires as long as the rule chosen is in harmony with the general interest,
order, morals and public policy. Among such rules may be the following:
a. Customs which are not contrary to law, public order and public policy.
b. Decisions of foreign and local courts on similar cases.
c. Opinions of highly qualified writers and professors.
d. Rules of Statutory construction.
e. Principles laid down in analogous instances.
f. General principles of the natural moral law, human law and equity.
g. Respect for human dignity and personality.
3. Article 9 in a way applies to criminal cases despite the rule that there is no crime and there is no penalty in
the absence of law, still if somebody is accused of a non-existent crime, the judge must dismiss the case.
This in reality is equivalent to a judicial acquittal.
Q: WHAT SHOULD BE DONE IN CASE OF DOUBT IN THE APPLICATION OF LAWS?
ANS:
Article 10provides;
-In case of doubt in the interpretation and application
- of laws, it is presumed that the lawmaking body
-intended right and justice to prevail.
NOTES:
1.
2.

3.

The provision is applicable when there is doubt, the judge shall presume that the lawmaking body
intended for right and justice to prevail. After all, it has been truly said that we should interpret not by the
letter that killeth, but by the spirit that giveth life.
Dure lex sed lex: The law may be harsh but it is still the law.- the first duty of the judge is to apply the law
whether it be wise or not, whether unjust or unjust-provided that the law is clear. If some laws are
unwise and detrimental, proper representations may be made to Congress. What the law grants the courts
cannot deny.
Equity is justice sweetened with mercy. Justice is done according to law. As a rule, equity follows the law.
Legal duty sometimes overturns a moral obligation.

Q: WHAT ARE CUSTOMS? (Article 11-12)

ANS:
Custom is a rule of human action established by repeated acts and uniformly observed or practiced as a rule of
society, thru the implicit approval of the lawmakers and which is therefore generally obligatory and legally
binding.
Q: WHAT ARE THE REQUISITES BEFORE THE COURTS CAN CONSIDER CUSTOMS?
ANS:
a.
b.
c.
d.
e.
f.

A custom must be proved as a fact according to the rules of evidence, otherwise the custom cannot be
considered as a source of right.
The custom must not be contrary to law, public order, or public policy.
There must be a number or repeated acts.
The repeated acts must have been uniformly performed.
There must be a juridical intention to make a rule of social conduct, i.e., there must be a conviction in the
community that it is the proper was of acting, and that therefore a person who disregards the custom in
fact also disregards the law.
There must be sufficient lapse of time- it gives evidence of the fact that the custom indeed exists and is duly
observed.

Q: WHEN IS MAILED PETITION CONSIDERED FILED, FROM THE DATE OF MAILING OR FROM THE TIME OF
ACTUAL RECEIPT BY THE COURT? (Article 13)
ANS:
It is considered filed from the time of mailing. This is because the practice in our courts is to consider the mail as
an agent of the government, so that the date of mailing has always been considered as the date of filing of any legal
document.
Q: WHAT IF THE LAST DAY IS SUNDAY OR LEGAL HOLIDAY IS THE ACT DUE THAT DAY OR THE FOLLOWING
DAY?

ANS:
It depends.
1. In an ordinary contract, the general rule is that an act is due even if the last day be a Sunday or a legal
holiday. Thus a debt due on a Sunday must in the absence of an agreement, be paid on that Sunday. This is
because obligations arising from contracts have the force of law between the contracting parties except
the maturity dates of a negotiable instrument.
2. If the period refers to a period prescribed or allowed by the Rules or Court, order of the court or by any
other applicable statute, it is understood that the last day should really be the next day if the last day is a
Sunday or legal holiday
Q: WHAT ARE THE THEORIES OF TERRITORIALITY AND GENERALITY?
ANS:
Article 14provides;
-Penal laws and those of public security and safety
-shall be obligatory upon all who live or sojourn in Phil. Territory
-subject to the principles of PIL and to treaty stipulations
NOTES:
1. Theory of territoriality-any offense committed within our territory offends the state. Any person
whether citizen or alien can be punished for committing a crime here. Thus the term generality came into
being; it means that even aliens, male or female come under our territorial jurisdiction are subject to our
penal laws
2. Seizure may be made on vessels which were of Philippine registry. As provided, our laws may be enforced
even outside our territorial jurisdiction. Also, international laws give a state a right to protect itself and its
revenues a right not limited to its own territory but extending to the high seas.
3. Article 14 nonetheless, recognizes two exceptions;
a. Principle of PIL
Example: Immunities granted to diplomatic officials and visiting heads of states provided the
latter do not travel incognito.
(i)If they travel incognito but with the knowledge of our government, they are still entitled to
immunity.
(ii) If the incognito travel is without the knowledge or permission of our country, diplomatic
immunity cannot be insisted upon, and the heads of states travelling may be arrested. However
once they reveal their identity, immunity is given.
b.

Treaty of stipulations- Military Bases agreement.

Q: WHAT LAW SHOULD GOVERN THE FAMILY RIGHTS AND DUTIES, STATUS, CONDITION AND LEGAL
CAPACITY OF FILIPINOS LIVING ABROAD?
ANS:
Article 15 states;
-laws relating to family rights and duties, status, condition, and legal capacity
-shall be binding upon the citizens of the Philippines
-even though living abroad.
NOTES:
1. Article 15 is the Nationality Principle/Rule: It refers to;
a. Family rights and duties ( including parental authority, marital authority, support)
b. Status
c. Condition
d. Legal capacity
2. Status- includes personal qualities and relations, more or less permanent in nature and not ordinarily
terminable at his own will, such as his being married or not, or being legitimate or illegitimate.
3. Article 15 applies to Filipinos with a limited application to foreigners. Insofar as the Philippine laws
are concerned it merely applies to Filipinos. A Filipino husband is still a husband whether in the
Philippines or abroad. In matters of status,( by their own national law) etc. nationals of other countries
are also considered by us
4. Capacity of a foreigner to enter into a contract is governed by the national law of the foreigner. Lex loci
celebrationes does not apply.
5. In general, the capacity to enter into relations is governed by the national law of the person involved.
Except the following relations.
a. Capacity to acquire, encumber, assign, donate, or sell property depends on the law of the place
where the property is situated.
b. Capacity to inherit does not depend on the national law of the heir but the national law of the
decedent.

c.

6.

Capacity to get married depends not on the national law of the parties but on the law of the place
where the marriage was entered into ( lex loci celebrations)but to Filipinos, subject to certain
exceptions such as;
(i)
marriage between minors
(ii)
Bigamous and polygamous marriages not falling under Article 41(presumptive
death)
(iii)
those marriage contracted with a mistake as to the identity of the other,
(iv)
those marriages contracted after absolute nullity but without partition and
distribution of the properties between spouses and without delivering the
childrens legitimes, and without recording such to the civil registry and registries
of property
(v)
marriage where one party is psychologically incapacitated.
(vi)
incestuous marriages.
(vii)
marriages void by reason of public policy.

Cases applying the provision:

a. Case 1:
A-Filipino, B-American got married. B brought A to USA and divorced her thereafter.
Can A still get married here in the Philippines?
Answer:Yes. If there is a mixed marriage and the foreigner obtained a decree of divorce
qualifying him to marry, the Filipina shall be qualified to get married (see also Art. 26,
par.2 of FC)
b. Case 2:
A and B both Filipinos got married in the Philippines. A went to USA and after a while
divorces B. Can B get married in the Phil? How about A?
Answer: NO Article 15 prohibits them to be married again to other persons. The divorce
decree is not recognized in the Phil as it was obtained by a Filipino citizen. Article 26 of
the FC does not apply as this is not a mixed marriage.
c.

Case 3:

d. Case 4:

A-Filipina, B-American got married. B obtained a divorce decree in USA. The Filipina
came back to the Phil. And started her business, B followed suit and claiming rights to
administer the property of A contending that they are still married, since divorce is not
recognized here. Is he correct?
Answer: No. Owing to the nationality principle under article 15 only Philippine nationals
are governed by the policy against absolute divorce obtained abroad by an alien which
may be recognized in the Phil, provided, it is valid according to his national law. Hence an
alien who divorced a Filipina cannot justifiably maintain that, under our laws, the Filipina
despite divorce has to be considered still married to him and still subject to a wifes
obligation.
A Filipina should not be discriminated against in her own country if the ends of
justice are to be served.

Q: WHAT IS THE LEX REI SITAE / LEX SITUS RULE?

ANS:
Article 16 provides;
-Real property as well as personal property
- is subject to the law of the country where it is situated.
NOTES:
1. Lex loci celebrationes bows down to the Lex situs
Example:
(i)
A sells a parcel of land in Baguio to B by means of a deed of sale
executed in Bangkok. The law of what state shall govern the
extrinsic validity of the deed of sale?
Philippine law. The case involves property situated in the
Philippines.
(ii)
A Afghanistan national executes a deed of sale in London under
which he sells a parcel of land in Baguio which he inherited from his
mother, to B a Filipino.
a. Which law shall govern the extrinsic validity of the deed of
sale?
b. The capacity of A to make the alienation
c. The intrinsic validity of the deed of sale?
ANSWER:
a)Extrinsic validity of the sale: Phil. Law- Lex Situs because
it involves property in the Philippines

b) Capacity of A to alienate: Phil. Law- while as a rule

capacity is governed by the law of the nationality of the
person concerned where the case involves property situated
in the Phil. Lex nationalii must give way to the rule of lex situs
c) Intrinsic validity of the sale:governed by lex contractus
which is either the law voluntarily agreed upon (lex loci
voluntatis) or the law intended by the parties ( lex loci
intentiones)
2. General Rule: Extrinsic validity is governed by the laws of the place where the contract was executed but when it
affects the title or transfer of title, then it must be governed by the lex rei sitae. Exception: Despite the
involvement of real or personal property if it does not affect the title of the property, as when the property is
merely used as security for a loan in a mortgage contract, or merely the products of the property is involved, then
the extrinsic validity is governed by the laws where the contract was executed. Exception to the exception: When it
involves succession, irrespective of the place where the property is situated, the national law of the decedent
applies.
In other words: Here are the exceptions to the application of lex situs
a. Succession- national law of the decedent ( see below)
b. Contracts involving property but which do not affect the title to the property or when property is
merely incidental
Example:
A and B both Taiwanese enter into a contract of employment in Taipei under which A the employer
agrees to pay B as compensation 20% of the annual produce of a certain parcel of land in La union
Phil. Which law shall govern the extrinsic and intrinsic validity of the contract?
Answer:
Extrinsic validity: lex loci celberationes
Intrinsic validity: lex contractus
NOTE: Lex situs does not apply because both the extrinsic and intrinsic validity of the contract does not
affect the title to the property. The property is merely incidental to the contract of employment
c. Contracts where property is given as security for a principal contract (usually a loan) the principal
contract is governed by its proper law ( lex loci intentiones, lex loci voluntatis); but the accessory
contract of mortgage is governed by the lex situs subject to the following rules.
(i)
Principal contract valid does not mean that accessory contract is also valid since the
accessory contract will still be tested by the lex situs
(ii)
Accessory contract ( mortgage) is invalid ( lex situs) principal contract
(loan) is unaffected the obligations however becomes unsecured
(iii)
Principal Contract is invalid-accessory contract is invalid
4. Personal property:
General Rule: Governed by the laws of the country where it is situated
Exceptions:
Choses in possession ( tangible)- lex rei sitae
Choses in possession (moving such as vessels and goods in transit) subject to this rules;
(i)
Ships- if on high seas the law of the flag or registry is controlling, but if it is docked at a
foreign port, the law of such port is regarded as lex situs.
(ii)
Goods in transitu- law of the destination with respect to the liability of the common
carrier.
b. Choses in action ( incorporeal movables)- lex contractus subject to special laws such as laws on
intellectual property.
Shares of stock, bank deposits of a foreigner, even if personal property can be taxed in the Philippines or
may be subject of attachment proceedings, so long as the property is located in this country.
If shares of stock in Local Corporation is kept by a domiciliary administrator of a property abroad and
refuses to give them to the ancillary administrator despite the claims of creditors to, the remedy is to ask
for the declaration of such certificate of stock as LOST and ask for the local corporation to issue a new
certificate. Again this is in pursuance to the above provision that even personal property is subjected to
the law of the country where it is situated.
a.

5.
6.

Q: IS THERE AN EXCEPTION TO THE LEX SITUS RULE?

ANS:
There is, Article 16 paragraph 2 provides;
-However, intestate and testamentary successions,
-both with respect to the order of succession,
-and to the amount of successional rights
- and to the intrinsic validity of the testamentary provisions
-shall be regulated by the national law of the person
-whose succession is under consideration,
-whatever the nature of the property
-and regardless of the country wherein said property may be found.

*include in the enumeration the capacity to succeed.

NOTES:
1. Country X does not allow an illegitimate child to inherit. A citizen of country X died in the Philippines,
leaving parcels of land located in the Phil. B an illegitimate child claims a right to inherit. Is he right?
No, because successional right is governed not by the Philippine law but by the national law of his
father.
2. Article 16 par. 2 applies only to properties located in the Philippines.
3. Example:
(i)T a Turkish national residing in the Philippines dies in Baguio leaving a property in Baguio and
in Singapore. He provided in his will that his properties be distributed according to the law of the
Philippines.
* With respect to the parcel of land in Baguio it shall be governed by the Turkish law ( the national
law of the decedent) the provisions choosing the application of the Philippine laws are void hence, even a
provision which disinherits an heir in case of opposition to provisions of the will shall not be considered
valid hence he can still inherit if he makes any opposition thereof.
* With the parcel of land in Singapore. our courts shall refrain from assuming jurisdiction under
the principle of forum non conveniens.
* If in the problem above, if it turns that T has no heirs, and the Turkish laws (assuming)
provides that the Turkish government shall succeed to the estate of the Turkish nationals who die abroad
without any heirs, CANNOT be GIVEN EFFECT. WHY? Article 16 applies only when there are heirs. When
there are no heirs, Article 1011 Civil Code not Article 16 applies. Which states that in default of persons
entitled to succeed in accordance with the provisions of the preceding sections the STATE shall inherit
the whole estate?( Escheat is an attribute of sovereignty, it rests on the principle that the State owns all
properties within its territorial jurisdiction.
Q: WHAT LAW SHALL GOVERN THE FORMS AND SOLEMNITIES OF CONTRACTS?
ANS:
Article 17 provides;
-forms and solemnities of contracts, wills and other public instrument
-shall be governed by the laws of the country
-which they are executed.
_ When the acts referred to (forms, solemnities)
- are executed before the diplomatic or consular officials of the RP,
- the solemnities established by the Philippine laws shall be observed in their execution.
NOTES:
1. As a rule a will executed by a Filipino abroad is governed by the lex loci celebrationes with respect to its
forms, solemnities and extrinsic validity.
- This must be read in relation to Article 815 of the Civil Code:
When a Filipino is in a foreign country he is authorized
to make a will in any of the forms established by the
law of the country in which he may be. Such will may be
probated in the Philippines.
- However there is a strong public policy against joint wills, this is based on the absolute right
of the testator to revoke his will.
Example:
*H and W, Filipino husband and wife executed a joint will in USA. Joint will in USA is valid,
is it valid here? NO! It is contrary to public policy see Article 819
* H and W are Americans and joint will is valid in America and they executed it in
America, is it valid here? YES Article 816
* The prohibition against joint wills applies to Filipinos here or abroad as well as to foreigners who
execute their wills here in the Philippines.
2. The first paragraph of Article 17 lays down the rules of lex loci celebrationes insofar as extrinsic validity is
concerned.
3. HOWEVER, formalities for the acquisition, encumbering, or alienation of property (whether real or
personal) shall be governed by the law of the place where the property is situated lex rei sitae. MEANING,
as to forms and solemnities, the lex loci celebrationes will always apply but when the contract already
involves a transfer (sale, mortgage. Encumbrance) of property between two parties then the law of the
place where the property is situated must govern.
Q: WHAT DOES THE 3RD PARAGRAPH OF ARTICLE 17 PROVIDE?
ANS:
It provides an exception to the general rule. The general rule is foreign law, contract or judgment can be given
effect here in the Philippines.
The exception is herein provided by Article 17,
-Prohibitive laws concerning persons, their acts and property
-which have for their object public order, public policy and good customs

-shall not be rendered ineffective by laws or judgment promulgated,

-or by determinations and conventions agreed upon in a foreign country.

NOTES:
1. Even of a contract for the sale of human flesh be valid abroad it cannot be given effect in the Philippines
2. Absolute divorce granted abroad between Filipinos who got married in the Philippines is not valid here in
the Philippines even if the same be valid in the country where it was secured.
3. Examples:
a. H and W Filipinos got married in Baguio. After a year of marriage they migrated to the US and
established their permanent residence in California where they secured a divorce. They came
back to the Philippines. May H marry his girlfriend? How about W may she also remarry?
ANS: No such subsequent marriage will be bigamous. Since they are Filipinos, Article 15
applies and the public policy against divorce follows them wherever they may go.
b. Same as above, except that before securing a divorce, H and W take out American citizenship?
Is the divorce valid here?
ANS: At the time they secured a divorce, H and W were no longer Filipino citizen.
Philippine laws on status and capacity no longer applicable to them. If the divorce decree
is valid under the national law then it should be recognized here.
COMES NOW THE GENERAL RULE OF: VALID THERE VALID HERE. VOID THERE VOID HERE EXCEPT those
prohibited under Arts. 35 (1),( 4) (5) and (6), 36,37,38. ( 2nd par., Art 26 family code)
Q: WHAT LAW GOVERNS THE INTRINSIC VALIDITY OF CONTRACTS?
ANS:
1.
2.
3.
4.
5.

Lex Loci Voluntatis- law of the place voluntarily selected found in the contract
Lex Loci Intentionis law of the place intended by the parties of the contract
(if the above still cannot be ascertained) Contemporaneous acts of the parties
(if the above still cannot be ascertained) If both are of the same nationality
-apply national law of both
(if the above still cannot be ascertained )If both are not of same nationality apply;
a. As to substance and nature-apply the law of the place where the content was executed.
b. As to fulfillment of obligations-apply the law of the country where fulfillment will take place.

Q: WHAT IS THE RULE IN CASE OF CONFLICT BETWEEN THE CIVIL CODE AND OTHER LAWS?
ANS:
As provided by Article 18;
-In matters which are governed
-by the Code of commerce and special laws
-their deficiency shall be supplied by the provisions of this Code.
NOTES:
1. In case of conflict the Special Law prevails over the Civil Code which is general in nature. However, in
Common Carriers, and in Insolvency the Civil code is superior than special laws.
2. The suppletory character of the Civil Code was manifested in a case where an applicant for insurance
never received the letter of acceptance by the Insurance Company despite their acceptance, until the
applicant died. In here it was considered that the contract was not perfected because the acceptance was
never made known to the applicant. Under the civil code, knowledge by the offeror of the acceptance is
important for the perfection of a contract.
3. When an action against a ship owner is upon civil tort-Civil Code applies. But when the case involves a
tortious conduct resulting in maritime collision- It is a maritime tort, Hence, governed by the provisions
of the Code of Commerce.

10

HUMAN RELATIONS
Q: WHAT DOES THE LAW PROVIDE ON ABUSE OF RIGHTS?
ANS:
Article 19 states;
-Every person must
-in the exercise of his rights, performance of his duties,
-act with justice, give everyone his due
-and observe honesty and good faith
NOTES:
1. Article 19 is reflective of the universally accepted precept of abuse of rights, one of the most dominant
principles which must be deemed always implied in any system of law.
2. In the case of Carlos Garcias mass midnight appointments, it was held that such detracted from the degree
of good faith, morality and propriety which forms the basic foundations of claims to equitable relief.
3. Despite the favorable judgment on a party, but having failed to give the occupants of house sufficient time
to remove their belongings, entitles the occupants for damages. This is in view of the formers abuse of his
right.
4. Acting with justice and giving everyone his due:
a. Art.20- indemnification of another due to illegal acts
b. Art.21-indemnification due to immoral acts
c. Art.24-unfair competition
d. Art. 22-unjust enrichment
5. Observance of honesty and Good faith
a. Art. 26-respect for personality and dignity of others
b. Article 25-restraint of undue extravagance
c. Art.31-independent civil actions
Q: WHAT DOES THE LAW PROVIDE ON ILLEGAL ACTS DONE WILFULLY OR NEGLIGENTLY?
ANS:
Article 20 provides;
-Every person who contrary to law,
-willfully or negligently causes damage to another
-shall indemnify the latter for the same
NOTES:
1. This is in relation to the law on torts or quasi-delicts- whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done.
2. Negligence-is the failure to observe the protection of the interest of another person that degree of care,
precaution and vigilance which the circumstances greatly demand, whereby such person suffers injury.
3. No action for damages would prosper if someone does not have the right to be indemnified. It is essential
that some right of his is impaired.
HENCE; No right to the prizes may be asserted by the contestant in oratorical contest, or other
contests (in case of defeat) because theirs was merely a privilege to compete for the prizes and
that privilege did not ripen into a demandable right unless and until they were proclaimed
winners or the completion by the judges.
ALSO: The judiciary has no power to reverse an award of contests even if the decision be
erroneous. Error and wrong do not mean the same thing. Wrong usually implies a remedy in the
deprivation or violation of a right. If after declaration, and the contestant is still deprived of the
prize an action would be proper.
REMEMBER HOWEVER: that in various contests, in case of defeat by the complainant and was
defeated by a contestant who by the rules set by the judge is grossly not qualified, then an
actionable wrong shall have been committed.
Q: HOW DOES THE LAW DEAL WITH A PERSON WHO WILLFULLY CAUSES LOSS OR INJURY TO ANOTHER IN
A MANNER CONTRARY TO MORALS, GOOD CUSTOM OR PUBLIC POLICY?
ANS:
Article 21provides; (Willful acts contrary to morals)
-Any person who willfully causes loss or injury
-to another in a manner
-that is contrary to morals, good customs or public policy
-shall compensate the latter for the damage
NOTES:

11

1.
2.
3.

Contra bonus mores.

Every good law draws its breath of life from the morals, from those which are written with words of fire in
the conscience of man. This provision covers a number of moral wrong which is impossible for human
foresight to specifically provide in the statutes.
One cannot be held liable for damages and to malicious prosecution unless he acted without legal or
probable cause.

Q:(in relation to Article 21) CAN THERE BE AN ACTION FOR BREACH OF PROMISE TO MARRY?
ANS:
1.
2.

For the recovery of ACTUAL DAMAGES, YES. These may be done for the recovery of wedding expenses etc.
For recovery of MORAL DAMAGES, NO. If it be so, then innocent men may become the victims of designing
and unscrupulous females. ( Hermosissima vs. CA, Sept. 30,1960). However, if there be seduction as
defined by RPC moral damages may be recovered. Also, in the above case, it was mentioned that when
there be moral seduction as distinguished from criminal seduction, there may be grant of moral
damages. ( such pronouncement was nonetheless not applied in the case because it was the woman who
seduced the man)

Q: WHAT RIGHT HAS THE AGGRIEVED PARTY IN CASES OF BREACH OF PROMISE TO MARRY WHEN THERE
IS CARNAL KNOWLEDGE AND NO CARNAL KNOWLEDGE?
ANS:
1.

2.

If there is carnal knowledge, the aggrieved party may;

a. Ask the other to recognize the child if there is one and give support
b. Sue for moral damages, if there be criminal and moral seduction, but not if the intercourse
was due to mutual lust
If no carnal knowledge, there may be an action for actual and moral damages under certain conditions, as
when there has been a deliberate desire to inflict loss or injury or there has been an evident abuse of a
right
Example: The man deliberately failed to appear in the altar during the wedding to embarrass and
humiliate the woman.
*Exemplary damages may also be recovered in the above given case

Q: HOW CAN THERE BE MORAL SEDUCTION?

ANS:
If the cause be promise to marry and the effect be the carnal knowledge, then there is moral or criminal seduction.
( in simplest form-bigay mo na di bale at papakasalan kita). If it were the other way around then there would be
no recovery for moral damages. ( in simplest form, naibigay na, wag ka mag alala pakakasalan kita)
Q: WHAT IS AN ACCION IN REM VERSO?
ANS:
Article 22 provides;
-every person who through an act or performance by another
- or by any other means acquires or comes into possession of something
-at the expense of the latter without just or legal ground
-shall return the same to him.
* Nemu cum alteruis detriment protest- No person should unjustly enrich himself at the expense of
another.
NOTES:
1. The essential requisites of an accion in rem verso are;
a. One party was made rich and the other made poorer.
b. There was a causal relation between the two.
c. Enrichment was not justifiable.
d. There must be no other way to recover. ( So, if tort-action or a quasi-contract is proper, it is not
necessary to file a claim in rem verso.
e. The indemnity cannot exceed the loss or enrichment whichever is less.
2. In accion in rem verso- there is no mistake, while in quasi-contracts of solution indebiti it is essential
that there be a mistake.
Q: WHAT IS THE DUTY OF A PERSON WHO WITHOUT FAULT BENEFITTED FROM A DAMAGE TO ANOTHERS
PROPERTY?
ANS:
Article 23provides;
-even when an act or event
-causing damage to anothers property

12

-was not due to the fault or negligence of the defendant,

-the latter shall be liable for indemnity
-if through the act ort event he was benefitted.
Example:
Without A knowledge his cattle was driven by a flood to a cultivated land. The cattle are saved but the crops of the
land were not.
Certainly A has the duty to indemnify the owner of the land
Q: WHAT IS THE CONCEPT OF PARENS PATRIAE?
ANS:
Article 24states;
-In all contractual, property or other relations
-when one of the parties is at disadvantage
-on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other
handicap
-the court must be vigilant for his protection.
NOTES:
1. The law takes great interest in the welfare of the weak and the handicapped. Thus we have the parens
patriae
2. Parens patriae means father or parent of this country. The state as parens patriae is under obligation to
minimize the risk to those who because of their minority are as yet unable to take care of themselves fully.
3. Vigilant for his protection- means, that in case of doubt the doubt must be resolved in favor of the
underdog.
4. Article 24 protects among other the laboring class. Thus the Workmens Compensation Act being a social
legislation designated to give relief to labor in case of injury, its provisions should be given a liberal
interpretation in order to fully carry out into effect its beneficent provisions
Q: CAN THE COURTS CURTAIL THOUGHTLESS EXTRAVAGANCE?
ANS:
Yes, Article 25 provides for the action;
-Thoughtless extravagance in expenses
-for pleasure and display
-during a period of acute public want and emergency
-may be stopped by order of the court
-at the instance of any government or private charitable institution.
*The reason for curtailing the thoughtless extravagance during emergencies is that, it may incite
the passions of those who cannot afford to spend.
Q: WHAT DOES THE LAW PROVIDE ON DECENCY AND PROPRIETY?
ANS:
Article 26 provides;
-Every person must respect the dignity, personality, privacy and peace of mind of his neighbors and other
persons.
-The following and similar acts though they may not constitute a criminal offense ----produces cause of
action for damages, prevention and other relief.
a. Prying into the privacy of anothers residence
b. Meddling or disturbing the private life or family relations of another
c. Intriguing to cause another to be alienated from his friends
d. Vexing humiliating another on account of his religious belief, lowly station in life, place of birth,
physical defect and other personal conditions
NOTES:
1.# 1: includes by implication respect for anothers name, picture or personality except insofar as is needed for
publication of information and of legitimate news value
2. #2: includes the alienation of the affections of the husband or the wife. Thus a girl who has affairs with a
married man, even if there be no carnal relations, disturbs his family life, and damages may asked of her.
Gossiping is also included
3. # 3: Includes gossiping and reliance on hearsay.
4. #4: includes criticism of ones health or features without justifiable cause. Religious freedom does not
authorize anyone to heap obloquy and disrepute upon another by reason of the latters religion.
Q: WHAT ARE THE RELIEFS AVAILABLE FOR THE REFUSAL OR NEGLECT IN THE PERFORMANCE OF
OFFICIAL DUTY?
ANS:
As mentioned in Article 27;
-Any person suffering from material or moral loss

13

- because a public servant or employee refuses or neglects to perform his official functions,
-may file an action for damages and other relief against the latter, without prejudice to
-any disciplinary administrative action that may be taken.
NOTES:
1.

The purpose of Article 27 is to end the bribery system, where the public official for some flimsy excuse,
delays or refuses the performance of his duty until he gets some kind of pabagsak( so that an illegal
thing may be done) or pampadulas ( to expedite the doing of legal thing)
2. An administrative case that may be filed mentioned in this provision will generally be provisionally
dismissed, where a criminal case involving the same parties and the same charges as those of the
administrative case is sub judice.
3. In fact, the provision when done by the officer constitutes a violation of RA 3019 Anti-Graft and
Corrupt Practices Act
4. Corollary to this provision is the idea that a public office is a public trust, hence it implies that until the last
day of ones tenure strictest compliance with ones duties is necessary. So, impending retirement is not an
excuse to perform ones duties.
5. Included in the provision is the idea that every public servant are bound by the rules of proper and
decorous behavior in the office premises and high strung and belligerent behavior has no place in the
government service, where the personnel and employees are enjoined to act with self-restraint and
civility at all times, even when confronted with rudeness and insolence.
Q: WHAT ARE THE REMEDIES IF ANY OF PERSON INJURED BY UNFAIR COMPETITION?
ANS:
As provided by Article 28;
-Unfair competition in agricultural, commercial or industrial enterprises
-or in labor through the use of force, intimidation, deceit, machination
-or any other unjust, oppressive or highhanded method
- shall give rise to a right of action by the person who suffers damage
NOTES:
1. The provision is necessary in a system of free enterprise. This Article is intended to lay down a general
principle outlawing unfair competition, both among enterprises and among laborers. While competition is
necessary in a free enterprise, it must not be unfair.
2. The test of unfair competition is whether certain goods have been intentionally clothed with an
appearance which is likely to deceive the ordinary purchasers exercising ordinary care.
Q: IF AN ACQUITTAL IN CRIMINAL CASE IS BASED OR REASONABLE DOUBT CAN THE INJURED PARTY
STILL FILE FOR A CIVIL SUIT?
ANS:
Yes, Article 29 supports such procedure;
-when an accused in a criminal prosecution
-is acquitted on the ground that his guilt has not been proved beyond reasonable doubt,
-a civil action for damages for the same act or omission may be instituted.
-Such action requires only preponderance of evidence.
-Upon motion of the defendant, the court may require the complainant to file a bond
-to answer for the damages in case the complaint should be found to be malicious.
-If in a criminal case, the judgment of acquittal
-is based on reasonable doubt, the court shall so declare.
-In the absence of any declaration to that effect,
-it may be inferred from the text of the decision
-whether or not the acquittal is due to that ground.
NOTES:
1. Article 29 does not speak of an independent civil action
2. Remember:
a. Under the RPC ( Art. 100) a person criminally liable is also civilly liable. One is for the
punishment or correction of the offender, while the other is for reparation of damages
suffered by the injured party.
b. Extinction of the penal action does not carry with it the extinction of civil liability unless the
extinction proceeds from declaration in final judgment that the fact from which the civil case
arise did not exist. In short, if the civil obligation is based on ex-maleficio, or ex-delicto (from a
crime) then despite the acquittal a civil liability arises. If based ex-contractu (from a contract)
then the civil liability still stands. This is the core of Article 31.
c. Stated differently for emphasis, the claim for civil liability is also extinguished together with
the criminal action if it were solely based thereon.
Q: CAN THERE STILL BE CIVIL RELIEF EVEN IF THERE IS NO CRIMINAL ACTION INSTITUTED?

14

ANS:
Yes. Article 30 states;
-When a separate civil action is brought
-to demand civil liability arising from a criminal offense
-and no criminal proceeding are instituted
-during the pendency of the civil action,
- a preponderance of evidence shall likewise be sufficient
-to prove the act complained of
* This is a case for no independent civil action just like Article 29.
Q: WHAT IS AN INDEPENDENT CIVIL ACTION?
ANS:
Article 31 speaks of such;
-when a civil action is based on obligation
-not arising from act or omission complained of as felony,
- such civil action shall proceed independently
-and regardless of the result of the latter.
NOTES:
1. Independent civil action-one that is brought distinctly and separately from a criminal case allowed for
consideration of public policy.
2. Bringing of the independent civil action is permissive and not compulsory.
Arts 32, (breach of Constitutional and other rights)
33, (defamation fraud, physical injuries Instances for independent Civil Action
34, (refusal or failure of city or municipal police to give protection)
2177 (quasi-delicts, culpa-aquilliana)
3. A civil action for recovery of government funds in the hands of a postmaster can prosper independently of
a charge of malversation, since ion the first, the obligation arises from law, while in the second the
obligation to return the money arises from ex-delicto.
4. If the civil action in a criminal case was expressly reserved by the injured party, the court shall not impose
civil liabilities.
Q: IF ANY PERSON VIOLATES THE CONSTITUTIONAL RIGHT OF AN INDIVIDUAL WHAT ARE THE LATTERS
RECOURSE?
ANS:
Aside from a criminal action that may be instituted a separate civil action for damages may ensue, this is provided
in Article 32;
1. -Any public official or employee or any private individual
-who directly or indirectly obstructs, defeats or violates
-or in any manner impedes or impairs
the rights and liberties of another person
shall be liable to the latter for damages
2. In any of the cases referred to in this article
-whether or not the defendants act or omission constitutes a criminal offense
- the aggrieved party has a right to commence
-an entirely separate and distinct action for damages and other relief.
- Such civil action such proceed independently of the criminal prosecution (if the latter be instituted)
- and may be proved by preponderance of evidence.
3. The indemnity shall include moral damages. Exemplary damages may also be adjudicated
4. The responsibility herein set forth
- is not demandable from a judge
-unless his act or omission constitutes
-a violation of the Penal Code or other penal statute.
NOTES:
1. The reasons why there is an independent civil action under this Article are;
a. Sometimes fiscal is afraid to prosecute fellow public officials and citizens will be left without
redress.
b. Despite the filing of a criminal case, the requirement under such action is much harder to comply
with than a mere preponderance of evidence
c. There are many unconstitutional acts which are not yet made crimes. The remedy is clearly a civil
action.
2. Any person can be made liable under this article and the defense of good faith is of no matter, otherwise
the main reason for the Article will be lost.
3. Note that judges are not liable unless the act or omission is a crime. Despite the exception extended to the
judges they are still not excused from Article 27 ( Refusal or Neglect of public officials to perform their
function)

15

4.

The defendant in this provision of the law is not the state but the public officer involved, hence consent of
the state is not required.

Q: IS THERE AN INDEPENDENT CIVIL ACTION AVAILABLE FOR OTHER CRIMES?

ANS:
There is, in fact Article 33 provides for the same;
-In cases of defamation, fraud or physical injuries
-a civil action for damages
-entirely separate and distinct from the criminal action
-may be brought by the injured party.
-Such civil action shall proceed independently of the criminal prosecution
-and shall require only preponderance of evidence
NOTES:
1.

Physical injuries mentioned in this article include consummated, frustrated and attempted homicide,
murder, parricide, infanticide, so long as there was physical injury. However, crimes such as criminal
negligence or offenses of criminal negligence under 356 of RPC (homicide thru reckless imprudence, etc.,)
do not fall under the purview of Article 33 but falls within the scope of Article 2177 which provides for the
independent civil action of the said negligence.
2. By virtue of this Article, tort in the Phil are of two kinds, namely:
a. American concept- which is done maliciously or intentionally.
b. Spanish concept-culpa aquilliana or quasi-delict which is based on negligence.
3. This article is more for the benefit of the victim. Nevertheless, if he files a civil case under Art 33, the victim can
no longer intervene in the prosecution of the criminal case. The same as true if he had expressly reserved his right
to file an independent civil action.
4. MTC may entertain complaint for written defamation not for trial on the merits but for the purpose of
preliminary investigation.
Q: (in relation to Article 33)IS THERE ANY NECESSITY OF RESERVING THE CIVIL ASPECT OF CRIMINAL CASES?
ANS:
If: (i) CIVIL FIRST: Civil case was filed first and during its pendency a criminal case was filed, should the civil case
be suspended in the meantime?
No as provided by Article 33, such civil action shall proceed independently of the
criminal prosecution.
(ii) CRIMINAL FIRST: If the criminal case was filed first, may the civil case be brought either during the formers
pendency or later even without reservation?
Yes ( much caution must be made here because there are conflicting theories and jurisprudence regarding the
matter)
1950S DECISION- The independent civil action for damages under Article 33 may be brought even if no
reservation was made.
1962 DECISION- The injured party may be deemed to have waived his right for a civil action if he failed to make a
reservation therefor. Also, if the offended party intervenes actually in the criminal case by appearing through a
private prosecutor for the purpose of recovering indemnity for damages therein, in which case a judgment of
acquittal bars a subsequent civil action.
GARCIA CASE, AUGUST 31 1973- Despite the non-reservation made by the injured party they were still allowed
to file the civil case even if the criminal case was pending. But take note that an excusable reason was peculiar in
this case, they were in the hospital badly injured and the trial for the criminal case has not begun.
ABELLANA CASE, MAY 29, 1974- No reservation was made by the injured party and yet they were still allowed by
the court to file the civil case, as barring to file a civil case will present a grave constitutional problem. As it would
appear that the SC through Rule 111 of the ROC (which requires reservation) may amend or restrict a right
granted by the Civil Code. The apparent literal import of the Rule cannot prevail. A judge is not to fall prey to the
vice of literalness.
FACTS: In this case, the accused was convicted in the MTC where no reservation was made by the injured party as
to the civil action. By reason of the conviction the accused appealed to the RTC. During the pendency of the appeal
and before trial, the victims made a waiver re-claim for damages in the criminal case and made reservation with
respect to the civil case.
*A peculiar fact is to be noted in this case; there was appeal to the RTC hence there will be trail de novo and the trial
did not yet start when the reservation was made. What if it already started?
ARTCLE 34-35 (just read the provision)
Q: WHAT ARE PREJUDICIAL QUESTIONS?
ANS:
Article 36 provides for the same;

16

-Prejudicial questions which must be decided

-before any criminal prosecution may be instituted or may proceed
-shall be governed by rules of court which the Supreme Court shall promulgate
-and which shall not be in conflict with the provision of this Code.
NOTES:
1. A prejudicial question- one which must be decided before a criminal action may be instituted or may
proceed because a decision therein is vital to the judgment in criminal case.
OR ANOTHER DEFINITION: One which arises in a case, the resolution of which question is a logical
antecedent of the issues involved in said case and the cognizance of which pertain to another tribunal.
2. The requisites for prejudicial questions are;
a. The civil case involves facts ultimately related to those upon which the criminal prosecution
would be based
b. The resolution of the case raised in the civil actions, the guilt or innocence of the accused would
be necessarily determine
c. Jurisdiction to try said question must be lodged in another tribunal.
3. Illustration:
1. There is prejudicial question .A is married to B. A was threatened by D to marry C, if not he will die. A
married C. B filed a case of bigamy against A. A asked for the annulment of the subsequent marriage in
view of the intimidation.
The criminal case should not proceed for the decision in the civil case of
annulment would affect As criminal liability.
2. No prejudicial Question: What if in the above case it was not D who made the threat but it was A
himself who threatened C to marry him?
This is no longer a prejudicial question. It was he who employed force insofar as
the 2nd marriage is concerned. He cannot use his own act or crime as a defense.
3. No prejudicial Question: A was forced to marry B. A then sued for annulment. Pending the case, A
married C. C sued A for bigamy.
Regardless of the judgment of the annulment case, the bigamy case will still
prosper. If annulled it will still continue, if not annulled it will still prosper. The
fact is, when A got married the second time, her marriage is still valid. The 1 st
marriage being considered to be a voidable marriage-valid until annulled.
CARDINAL RULE: A case for annulment of marriage may fall as prejudicial question to a bigamy case,
when the petitioner for the annulment of the second marriage was under duress, violence or intimidation in order
to establish that his act in the subsequent marriage was an involuntary one and as such cannot be the basis for
conviction.
4. Other Prejudicial Questions:
a. In a criminal case for damage to ones property a civil action that involves ownership of such
property should first resolved. Why? In the event that the destroyer of the property be proved to
be the owner then there is no destruction of property.
b. A civil action involving an obligation to pay wages is a p[prejudicial question to a criminal
prosecution for delay in the payment of such wages.
5. Independent civil actions are not prejudicial questions
6. The suspension of the criminal case alleged to be prejudicial may be filed in the office of the prosecutor of
the court conducting the preliminary investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal action at any time before the
prosecution rests.
7. The issue on prejudicial questions must be raised by the defendant in the criminal case and not the
prosecution. If it were the prosecution who has the right to do so, it would be unfair to the defendant who
would have the right to have the criminal case terminated as soon as possible. Moreover, if the
prosecution really believes a prejudicial question is involved they should have refrained from instituting
the criminal charge.
8. Even granting that a prejudicial question is involved in a case, still after the prosecution had rested its
case, they cannot later on file a motion for the suspension of the trial while the defendant is
presenting evidence to disprove the prosecutions evidence, as it would be unfair if the accused
should be deprived of an opportunity to disprove the evidence of the prosecution and establish her
innocence

17

PERSONS:
Q: WHAT IS JURIDICAL CAPACITY AND CAPACITY TO ACT?
ANS:
Article 37 states;
-Juridical capacity, which is the fitness to be the subject of legal relations,
-is inherent in every natural person
-and is lost only through death.
- Capacity to act, which is the power to do acts with legal effect,
- is required and may be lost.
NOTE:
1. Distinctions between Juridical capacity and capacity to act:
Juridical capacity
a. Passive
a.
b. Inherent
b.
c. Lost only through death
c.
d.

Can exist without capacity to act

d.

Capacity to act
Active
Merely acquired
Lost through death and may be restricted
by other causes
Exists always with capacity to act

Q: WHAT ARE THE RESTRICTIONS ON CAPACITY TO ACT?

ANS:
Article 38 states;
-Minority, insanity, imbecility, the state being deaf-mute, prodigality, and civil interdiction
-are mere restriction on the capacity to act
-and do not exempt the incapacitated person from certain obligations,
-as when the latter arise from his acts or from property relations such as easements.
NOTES:
1. Prodigality is the state of squandering money or property with a morbid desire to prejudice the heirs of a
person.
2. Civil interdiction: the deprivation by the court of a personal right such as;
a. To have parental or marital authority.
b. To be the guardian of the person and property of a ward.
c. To dispose of his property by an act inter vivos ( he cannot donate for his act will take effect
during his lifetime but he can make a will, for this is a disposition mortis causa.
d. To manage his own property.
The penalty of civil interdiction is by imprisonment for 12 years and 1 day or
more.
3. If a minor enters into a contract without parental consent the contract is merely voidable. It is wrong to
say that a minor has NO capacity to act, he has but his capacity is RESTRICTED.
4. A minor cannot create a trust of any kind nor can he become an administrator or executor.
Q: WHAT ARE OTHER RESTRICTIONS, MODIFICATIONS OR LIMITATIONS ON CAPACITY TO ACT?
ANS:
Article 39 states;
-The following circumstances among others modify or limit the capacity to act:
-age, insanity, imbecility, the state of being deaf mute, penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship.
-The consequences of these circumstances are governed by this Code, other codes, the rules of Court, and
in special laws.
- Capacity to act is not limited on account of religious belief and political opinion
-A married woman, 21 years of age or over is qualified for all acts of civil life, except incase specified by
law
NOTES:
1. Article 39 is broader than Article 38. While Article 38 refers to restrictions on capacity to act, Article 39
includes not only the restrictions but also those circumstances that modify capacity to act.
To illustrate: while a father has generally a full civil capacity and is not restricted under Art. 38,
however, precisely because he is a father, his capacity to alienate his property is modified in the sense that
he cannot impair the legitime of his compulsory heir.
2. Family relations:
(i)
A man cannot marry his mother, sister, or even his first cousin
(ii)
The father has obligation to support his family and to give his children their legitime
3. Alienage:

18

4.

Aliens cannot acquire private or public agricultural lands including those

residential in nature except thru hereditary succession and this prohibition
extends to alien corporation which cannot under the law acquire ownership over
said lands even for a limited period of time.
An alien cannot practice medicine or law save in exceptional instances.
An alien cannot vote or be voted for public office.
TAKE NOTE:
(i)
If an alien acquired a property thru sale and later on become a
naturalized Filipino, the vendors can no longer recover the lot
because the purpose of the Constitutional provision has already
been achieved. That only Filipinos have the right to acquire certain
properties in the Phil.
(ii)
If a sale of property was made to an alien and subsequently the alien
sold it to a Filipino, the first vendor cannot recover the property
despite the fact that the first sale was void. Such defect was cured by
the subsequent sale to a Filipino. In which case, the purpose of the
Constitution has been attained.

A married woman

5.
6.

May donate, mortgage or pledge her paraphernal property without marital

consent. If the married woman be a minor, she cannot dispose of or encumber
her won real property without parental consent. If her husband is the guardian,
his consent is needed.
The fact that a woman is a wife modifies her capacity to act to dispose of the conjugal property or to bring
an action, but her capacity to act is not limited in the sense that minors capacity is limited.
If a womans marriage was celebrated during the old Civil Code, her capacity to execute acts and contracts
are still governed by the NCC as provided by Article 2259.

Q: WHAT IS THE BEGINNING OF PERSONALITY?

ANS:
Article 5 of the PD 603states
-Conception determines personality,
-but the conceived child shall be born for all purposes that are favorable to it,
-provided it be born later with the conditions specified in the following article
NOTES:
1. A conceived child, although as yet born is given by law a provisional personality of its own for all purposes
favorable to it. The unborn child therefore has a right to support from its progenitors. However, a parent
cannot invoke the concept provisional personality of a conceived child to obtain damages for and in
behalf of an aborted child but they can bring obtain damages in their own considering that the conditions
set in Articles 40 and 41 were not met, but the parents can obtain damages in their own right against the
doctor who caused the abortion if they have not consented on the abortion.
2. Article 40 is not a condition precedent to the right of the conceived child.
3. If a physician operates on a pregnant woman and succeeds in aborting the fetus, the parents are entitled
to moral damages and to exemplary damages but not to actual damages (damages to the rights of the
deceased, his right to life and physical integrity). But moral damages cannot be revered by the husband
who sought the abortion.
4. Article 2206 of the Civil code which grants 50K for the death of the person does not cover the case of an
unborn fetus, since this is not endowed with personality.
5. If a parent or legal guardian refuses testing by under the Newborn Screening Act of 2004 by reason of
religious belief, said parent shall acknowledge in writing an understanding that refusal for testing places
the newborn at risk for undiagnosed heritable conditions. Such copy of refusal documentations shall be
part of the newborns medical record and refusal will be indicated in the national newborn data base.
6. The entries in a birth certificate are only prima facie evidence of the facts contained therein; they can be
rebutted by competent evidence.
Q: WHAT ARE TWO KINDS OF CHILDREN UNDER THE CIVIL CODE?
ANS:
As stated by Article 41;
-For civil purposes, the fetus is considered born
-if it is alive at the time it is completely delivered from the mothers womb.
-However if the fetus had an intra-uterine life of less than seven months,
-it is not deemed born if it dies within twenty four hours
-after its complete delivery from the maternal womb.
NOTES:
1. Two kinds of children:
a. Ordinary- with an intra-uterine life of at least seven months

19

(mere birth is sufficient here)

b. Extraordinary- if the intra-uterine life be less than 7 moths ( here the child must have live at least 24
hours after its complete delivery from the maternal womb.
2. The term extraordinary is used instead of premature for while a child with an intra-uterine life of 8 months is
still considered premature but for the purposes of this article is still considered Ordinary child.
3. So a conceived child thru the mother may be the recipient of a donation, but if the donation be onerous or should
prove burdensome, the donation will not be considered valid.
4. A conceived child can be acknowledged even before it is born. It is already entitled to be supported.
Q: HOW IS CIVIL PERSONALITY EXTINGUISHED?
ANS:
Article 42 provides;
- Civil personality is extinguished by death
- The effect of death upon this rights and obligations of the deceased
- Is determined by law, by contract and by will.
NOTES:
1. Determination by laws;
- A voluntary heir cannot be represented by his own heir in cases of predecease
2. Other legal effects of death;
-right to support ends
-marriage whether voidable or valid ends
-tenure of public office ends.
3. A dead defendant in a suit cannot be validly served with summons for want of civil personality; neither can
estoppels be made to apply.
Q: WHAT HAPPENS IF TWO PERSONS WHO ARE TO SUCCEED EACH OTHER DIE AT THE SAME TIME?
ANS:
As Article 43 provides;
-If there as doubt as between two persons
-who are called to succeed each other, as to which of them died first,
-whoever alleges the death of one prior to the other, shall prove the same;
-in the absence of proof, it shall be presumed that they died at the same time
-and there shall be no transmission of rights from one to the other
NOTES:
1. This provision is copied by the Revised Rules of Court on Presumptions on Survivorship. Under the latters
provision the following rules shall apply:
a. If both were under the age of 15, the older is presumed to have survived
b. If both were above the age of 60, the younger is presumed to have survived
c. If one be under 15 and the other above 60, the former is presumed to have survived
d. If both are over 15 and under 60 and the sexes be different, the male is presumed to have survived, if
the sexes be the same, then the older
e. If one be under 15 or over 60, and the other between those age, the latter is presumed to have survived
2. Article 43 applies when it involves 2 or more persons who are called to succeed each other. In all other cases, we
should apply the Rules of Court
3. Article 43 or the Rules of Court will not apply when there are facts, known or knowable from which a contrary
conclusion can be inferred.
Q: WHO ARE THE JURIDICAL PERSONS AND WHAT LAWS GOVERN THEM?
ANS:
As stated by Article 44-45 provides;
The following are juridical persons:
1. The state and it political subdivisions
2. Other corporations, institutions,
-entities for public purpose and interest
- created by law
- their personality begins
-as soon as they are constituted according to law.
3. Corporations, partnerships, associations
-for private purpose and interest
-to which the law grants a juridical personality,
-separate and distinct from that of each shareholder, partner or member
45- Juridical persons mentioned in Nos. 1nd 2 of the preceding Article
-are governed by the laws creating or recognizing them.
-Private corporations are regulated by
-laws of general application on the subject
- Partnerships and associations for private interest or purpose

20

-are governed by the provisions of this code concerning partnerships

NOTES:
1. Classification of Juridical Persons
a.

Public Juridical Persons

Public Corporations, like province or city

The state itself

b.

Private Juridical Persons

Private corporations
Partnerships
Foundations

2.
3.

4.
5.

6.

7.

8.

Private Corporation begins to exist as a juridical person from the moment a certificate of incorporation is
granted to it. The certificate is issued upon filing the Article of incorporation with the SEC
Fundamental is the rule the state cannot be sued without its consent. Express consent may be embodied in
a general law or a special law. Consent is implied when the government enters into business contracts
thereby descending to the level of the other contracting party, and if also when the State files a complaint
thus opening itself to a counterclaim
Suability depends on the consent of the state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the
other hand it cannot be held liable if it does not first consent to be sued
Even when the government has been adjudged liable in a suit to which it has consented, it does not
necessarily follow that the judgment can be enforced by execution against its fund, for every
disbursement of public funds must be covered by a corresponding appropriation passed by the
legislature.
Municipal corporations exist in a dual capacity and their functions are two-fold. In one, they exercise the
right springing from sovereignty and while in the performance of the duties pertaining thereto, their acts
are political and governmental. Officers are considered agents and servants of the state. Private,
proprietary or corporate right arises from their existence as legal persons and not as public agencies.
Their officers and agents in the performance of such functions act in behalf of the municipalities in their
corporate or individual capacity and not for the state of sovereign power.
Municipal corporations, when they are engaged in governmental functions enjoy immunity from suit.
Nevertheless, they are subject to suit even in the performance of such functions because their charter
provides that they can sue and be sued. However, they are generally not liable for torts committed by
them in the discharge of governmental functions and can be held answerable only if it can be shown that
they were acting in PROPRIETARY CAPACITY.
The dismissal of a case on the ground that the plaintiff does not possess legal personality to file the action
operates as adjudication upon the merits, and therefore is a bar to another action between the same
parties on the same subject matter unless the court expressly directs that the dismissal is without
prejudice.

JUST READ THE PROVISIONS OF ARTICLE 46-47

(what follows will be notes and Questions and Answers on Citizenship and Domicile and Naturalization.
As to the provisions they are easy to memorize)
Q: HOW IS CITIZENSHIP DIFFERENT FROM NATIONALITY?
ANS:
Citizenship is the status of being a citizen, or of owing allegiance to a certain state for the privilege of being
under its protection. Citizenship is political in character. Nationality refers to a racial or ethnic relationship. In
the field of civil law and the two are the same.
Q: WHAT ARE THE THREE KINDS OF CITIZENSHIP?
ANS:
1. Natural born citizen:
- Those who are citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship
- this must be distinguished from Native-born citizen, which is one born in the country of which he is a
citizen. Hence a child born to a Filipino father in Germany is a natural born but not a native born citizen.
2. Naturalized citizens- citizens who become such through judicial proceedings
3. Citizen by election- citizens who become such by exercising the option to elect a
particular citizenship, usually within a reasonable time after reaching the age of majority
Q: WHAT ARE THE TWO THEORIES ON WHETHER PLACE OR ANCESTRY DETERMINES CITIZENSHIP?
ANS:
1. Jus Soli- If born in a country, a person is a citizen of the same

21

2. Jus Sanguinis- one follows the citizenship of his parents, this is citizenship by blood
NOTES:
1. Citizenship is a matter to be exclusively determined by a countrys own law, which is why dual or multiple
citizenships hardly arises.
2. The Philippine courts are only allowed to determine who Filipino citizens are and who are not.
3. From the view point of the countries directly involved dual nationality DOES NOT EXIST, BUT from the view
point of THIRD STATES, it does exist.
Example:
A Chinese applicant for Philippine naturalization had all the qualifications and none of the
disqualifications. The Solicitor General objected on the ground that he did not obtained permission from the
Chinese government for renunciation as mandated by Chinese law
Analysis:
(i) Insofar as we are concerned the applicant is Filipino, and in China he is still Chinese and not a Filipino
but supposing that in china for his failure to follow such rules he is still considered as Chinese. From the viewpoint
of a Third State there is dual citizenship
* EFFECTIVE NATIONALITY: This is the theory used in deciding cases involving individuals of
dual citizenship, where, domiciliary theory runs to the rescue of nationality theory. This becomes effective when a
questions arises as to what law should govern the successional rights to the estate of a person who is considered
citizens of both countries, however, he is domiciled in that country where his other citizenship is derived (as when
has dual citizenship of Japanese and Chinese but he is domiciled in Japan, in which case the law of Japan applies).
In which case, domiciliary theory augments the nationality theory
WHAT IF: T a testator is Cuban under Cuban law and Algerian under Algerian law, was domiciled at the
moment of his death in Italy. He died in Alaska leaving properties in the Philippines. How should a Philippine court
dispose of the successional rights to his estate?
Answer: a. (IF NO CONFLICT) get the Cuban and Algerian laws on succession and apply them insofar as
they are consistent with or identical to each other
b. Insofar as there is conflict, we must apply the law of Italy, the law of the domicile to resolve the conflict
WHAT IF: the deceased had no nationality or citizenship what should apply in the rights of succession?
Answer: The law of the domicile shall apply. What if he has no domicile? That is already impossible no person
can ever be without domicile
4. The 1987 Constitution Art. IV, Sec 1 states that: Those BORN before January 17 1973, of Filipino mothers
who elect Philippine citizenship upon reaching the age of majority are Filipino citizens. This provision by
implication states that when the child is born AFTER the date mentioned then there would be no need of
election to be a Filipino citizen
5. A judicial declaration that a person is Filipino citizen cannot be made in a petition for naturalization. In this
jurisdiction, there can be no independent action for the judicial declaration of the citizenship of an individual.
Courts of justice exist for the settlement of justiciable controversy which imply a given right, legally
demandable and enforceable. An act or omission violative of such right and a remedy granted by law for the
breach of such right A incident only of the adjudication of the rights of parties to a controversy the court may
pass upon and make a pronouncement relative to their status
6. If the courts would still declare the citizenship of a person in a naturalization case. The declaration even if
erroneous does not render the decision void; the same has an effect unless reversed on appeal.
7. An alien woman, who marries a Filipino citizen, becomes ipso facto a Filipino provided she is not disqualified
to be a citizen of the Philippines under Section 4 of Com. Act. But as to Filipinos, as provided by the 1987
Constitution: Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or
omission they are deemed, under the law to have renounced it.
8. The exercise by a person of the rights or privileges granted to Filipinos is not a conclusive proof that he is a
Filipino citizen. Otherwise a person disqualified by reason of citizenship may exercise and enjoy the right or
privilege of a Filipino by simply representing himself.
9. The purpose of the constitutional provision disqualifying aliens from acquiring lands of the Public domain and
Private lands is the conservation of the national economy
10. The Commissioner of the Bureau of Immigration and Deportation, to the expulsion of the Courts of justice, the
power and authority to enforce the provisions of Phil. Immigration Act specifically the admission of foreigners to
this country.
Q:CHILDREN OF FILIPINO FATHERS ARE CERTAINLY FILIPINOS, BUT DOES THIS APPLY IF THE FATHER IS A
NATURALIZED FILIPINO?
ANS:
Yes, subject to the following rules;
a. A minor child born BEFORE naturalization
1. If born in the Philippines- is a Filipino
2. If born outside the Philippines;
a. Dwelling in the Philippines at the time of the parents naturalization- is a Filipino
b. Dwelling outside the Philippines at the time of parents naturalization- is a Filipino only during his
minority unless he resides permanently here when still a minor, in which case he will continue to
be A Filipino even after becoming of age.
b. A minor child born after naturalization
1. If born in the Philippines: Filipino

22

2. If born outside the Philippines- shall be considered A Filipino, unless one year after reaching the age of
majority he fails to register himself as Philippine citizen at the Philippine consulate of the country where
he resides and to take the necessary oath of allegiance.
Q: BEFORE THE CHILD ELECTS PHILIPPINE NATIONALITY WHAT IS HIS NATIONALITY?
ANS:
Generally this would be the nationality of the father, if the child is a legitimate child subject however to the fathers
national law.
Q: WHAT IF A FILIPINO MOTHER IS NOT MARRIED TO THE FOREIGNER BUT MERELY COHABITING, IS THE
CHILD A FILIPINO?
ANS:
Yes, a child born outside a lawful marriage of an alien father and a Filipino mother being illegitimate follows the
mother citizenship. However should they marry each other, the legitimated child will follow the fathers
citizenship
Q: WHAT LAW GOVERNS THE ACQUISITION OF CITIZENSHIP?
ANS:
The law that governs the acquisition of Philippine citizenship is Commonwealth Act No. 473 as amended. Basically
it provides that if a foreigner wants to be Filipino, a proper petition must be filed in the proper court which after
due hearing shall issue the certificate of naturalization
Q: UNDER THE ABOVE-MENTIONED LAW WHAT ARE THE QUALIFICATIONS FOR ONE TO BECOME A
CITIZEN OF THE PHIL.?
ANS:
1.
2.
3.

4.
5.
6.

He must not be less than 18 years of age on the day of the hearing of the petition
He must have resided in the Philippines for a continuous period of not less than 10 years (subject to the
conditions of Section 3 of the law, where it may be reduced to 5 years if the petitioner has the
qualifications mentioned therefor.)
He must be of good moral character and believes in the principles underlying the Philippine Constitution,
and must have conducted himself in a proper and irreproachable manner during the entire period of his
residence in the Philippines in his relation with the constituted government as well as with the community
in which he is living.
He must own real estate in the Philippines worth not less than five thousand pesos.
He must be able to speak and write English or Spanish or any of the principal Philippine languages.
He must have enrolled his minor children in any private or public school where Philippine history,
government and civics are taught or prescribed as part of the curriculum during the entire period of the
residence in the Philippines.

Q: WHAT ARE THE QUALIFICATIONS FOR THE REDUCTION OF 10 YEARS TO 5 YEARS CONTINOUS
RESIDENCE?
ANS:
1.
2.
3.
4.
5.

Having held office under the Government or any of its political subdivisions.
Having established a new industry or introduced a useful invention in the Philippines.
Being married to a Filipino woman.
Having engaged as a teacher in the Philippines in a public or recognized private school not established for
exclusive instruction of children of persons of a particular nationality or race, in any of the branches of
education or industry for a period of not less than 2 years.
Having born in the Philippines.

Q: WHAT IS THE LAW THAT GOVERNS THE LOSS OR REACQUISITION OF CITIZENSHIP?

ANS:
Commonwealth Act No. 63 as amended by RA 106
Q: UNDER THE ABOVE LAW, WHAT ARE THE GROUNDS FOR THE LOSS OF CITIZENSHIP?
ANS:
1.
2.
3.
4.

By naturalization in a foreign country.

By express renunciation of citizenship.
By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon
attaining 21 years of age or more. Provided however that a Filipino may not divest himself of Philippine
citizenship in any manner while the RP is at war with any country.
By rendering service to, or accepting commission in the armed forces of a foreign country: provided That
the rendering of service to, or acceptance of such commission in the armed forces of a foreign country, and

23

5.
6.
7.

the taking of an oath of allegiance incident thereto, with consent of the RP, shall not divest a Filipino of his
Phil. Citizenship if either of the following circumstances is present:
a. The RP has a defensive and/or pact of alliance with the said foreign country
b. The said foreign country maintains armed forces in the Phil. Territory with the consent of RP:
Provided: That the Filipino citizen at the time of rendering service and acceptance of commission and
taking allegiance thereto, states that he does so only in connection with his service to said country.
By cancellation of the certificate of naturalization
By having declared by competent authority a deserter of the Philippine armed forces in time of war, unless
subsequently, plenary pardon or amnesty has been granted
In case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force in her husbands
country, she acquires her nationality.

Q: WHAT ARE THE GROUNDS FOR THE REACQUISITION OF CITIZENSHIP?

ANS:
1.
2.
3.

By naturalization: Provided that the applicant possess none of the disqualification provided by law
By repatriation of deserters of the Army, navy or Air Force. Provided, that a woman who lost her
citizenship by reason of marriage to an alien may be repatriated in accordance with the provision of CA.
No 63 as amended after the termination of the marital status
By direct act of the Congress

Q: WHAT ARE THE STEPS IN NATURALIZATION PROCEEDINGS?

ANS:
1.
2.
3.
4.
5.

A declaration of intention to become a Filipino citizen must first be filed unless the applicant is exempted
from this requirement
The petition for naturalization must then be filed
The petition will then be heard
If the petition is approved, there will be a re-hearing two years after the promulgation of the judgment
awarding naturalization
The last step will be taking of the oath of allegiance to support and defend the Constitution and the laws of
the Philippines

NOTES:
1. Citizenship is not a right it is a privilege. Petitions for naturalization involve a public interest hence even if
there had been no objections to a defective petition in the lower court, the higher tribunal may subject the
whole records of the case to scrutiny.y
2. Our naturalization law requires the petitioner to have ALL the qualifications and NONE of the
disqualifications.
3. Minors do not have to file a petition for naturalization; if their father is naturalized they generally also
become Filipino citizens.
4. Deaf mute cannot speak therefore cannot be naturalized.
Q: WHAT IS DOMICILE?
ANS:
Domicile is the place where a person has certain settled fixed legal relations because it is assigned to him by law at
the moment of birth, after birth or because he has his home there.
Q: WHAT ARE THE THREE KINDS OF DOMICILE?
ANS:
1.

Domicile of Origin( Domicilium Originis)

- It is fixed by law and it is acquired at birth and applies only to infants. It never changes
2. Constructive Domicile( Domicilium Necessarium)
- It is assigned by law after birth on account of legal disability caused for instance by minority,
insanity or marriage in the case of a woman
3. Domicile of choice
- That which whenever he is absent, he intends to return

Q: FOR CIVIL PURPOSES AND POLITICAL LAW WHAT ARE THE ELEMENTS OF DOMICILE?
ANS:
For Civil Purposes
a. Intention
b. Actual physical presence
For Political Law, for purposes of voting and being voted for;
a. Animus, particularly the animus revertendi (intention to return, regardless of the actual residence.

24

Q: GIVE SOME FUNDAMENTAL PRINCIPLES ON DOMICILE?

ANS:
1.
2.
3.
4.

No natural person must ever be without domicile

No natural persons can have two or more domiciles at the same time.
Every natural person, free and Sui Juris may establish and change his domicile
A domicile once acquired is retained until a new one is gained

NOTE ( In the application of these principles)of the case of a person who lived and worked in Manila for 25 years.
After which he went and wandered the world until his death in one country. When he was in the place where he
died, he wrote a letter to a friend that he would never return to this country.
The SC ruled that his domicile as the time of death is the Philippines despite the fact that he left the
country and declared his intention never to return. Despite the absence of his physical presence and intention to
return, his legal domicile had to be the Philippines because no person can ever be without domicile and domicile
once acquired is retained until a new one is gained.
Q: HOW CAN ONE ESTABLISH A NEW DOMICILE?
ANS:
There must be:
1. Residence or bodily presence in the new locality
2. An intention to remain there ( animus manendi)
3. An intention to abandon the old domicile ( animus non-revertendi)
Q: WHAT ARE SOME RULES FOR DOMICILE OF ORIGIN?
ANS:
1. Legitimate child:
- Domicile of origin of a legitimate child is the domicile of choice of both father and mother at
the moment of birth of the child. This is consonance with the Family Code that both husband
and wife shall fix the domicile
2. Illegitimate child:
- The domicile of origin of an illegitimate child is the domicile of the mother at the time of the
childs birth
3. Legitimated child:
- Domicile of origin of a legitimated child is the choice of the father and mother at the time of
the childs birth. The effect of legitimation shall retroact to the time of the childs birth
4. Adopted child
-choice of his natural parents
5. Foundling:
- Country where it is found
Q: WHAT ARE SOME RULES FOR CONSTRUCTIVE DOMICILE?
ANS:
1. Legitimate child:
- is the domicile choice of both father and mother
2. Illegitimate child:
- is the domicile choice of the mother
3. Ward:
- Choice of the guardian over his person
Q: WHAT IS THE DOCTRINE ON DOMICILE LAID DOWN BY THE IMELDA MARCOS CASE?
ANS:
Domicile of Origin is automatically restored upon the death of the husband.

25

FAMILY CODE:
REQUISITES OF MARRIAGE
Q: WHAT IS MARRIAGE?
ANS:
Art. 1 provides;
-Marriage is 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.
-It is the foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by law
-and not subject to stipulation, except that marriage settlements
-may fix the property relations during the marriage
- within the limits provided by this Code
NOTES:
1. The two aspects of marriage;
a. A special contract- marriage is not at most a civil contract but it is at least a civil contract
with status and the interest of the State added to it. Hence a petition for annulment on the
ground that he never had any intention to marry the respondent because the main
consideration why he married her was only to give name to a child in the respondents womb
which was never born, therefore proving a failure of consideration of her marriage contract
shall be dismissed.
b. A status or a relation or an institution- Marriage is a relation between contracting parties
in which not only them but the Sate as well are interested.
2. Marriage as a special contract cannot be restricted by discriminatory policies of private individuals or
corporations. Where a companys policy disqualified from work any woman worker who contracts a
marriage was considered by the SC as contrary to the Constitutional provision on equal protection and
also the fundamental policy of the State toward marriage.
3. Marriage distinguished from other ordinary contract.
Marriage
Ordinary Contract
1. Both a contract AND a social institution
1. Merely a contract
2. Generally stipulations are fixed by law-not
2. Stipulations are generally fixed by the
by the parties ( exception: marriage
parties
settlement provisions)
3. Can be dissolved only by death or
3. Can be ended by mutual agreement and by
annulment not by mutual agreement
other legal causes.
4.
5.
6.
7.

8.

Marriage is vested with public interest such that the legislature has even enacted a law making it a
criminal offense for any person natural or juridical who commit the acts mentions RA 6955, Sec. 2 ( MailOrder Bride)
While a lawful marriage seeks to create a permanent union between a man and a woman, it does not shed
the spouses integrity or their privacy as individuals.
It is within the province of the legislature to define all aspects of marriage and prescribe the strategy and
modalities to protect it and put into operation the constitutional provision that protect the same.
Except property relations fixable prior marriage ceremony, the nature consequences and incident of
marriage as a social institution are governed by law and not subject to stipulations. However marriage
settlements must not contravene the mandatory provisions of the family Code, as when the parties
provide by stipulation that their property regime shall commence at any time other than at the precise
moment that the marriage was celebrated. If they do so, such agreement is void
Validity of marriage is determined by the law effective at the time of the celebration of the marriage. The
nature of the marriage already celebrated cannot be changed by subsequent amendment to the law.

Q: WHAT ARE THE REQUISITES FOR A VALID MARRIAGE?

ANS:
Article 2-3 states;
Art. 2. No marriage shall be valid, unless these ESSENTIAL REQUISITES are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
Art. 3. The FORMAL REQUISITES of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

26

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age.
NOTES:
1. If any of the parties is below 18 years of age, the marriage is void even if the consent of the parents has
been obtained.
2. The contracting parties must not be related to each other as provided in Article 37
(incestuous marriages) and Article 38 ( void marriages for reasons of public policy)
3. Legal capacity to marry must likewise have reference to Article 39 of the Civil Code stating that a capacity
to act is limited by family relations. Hence an already married person cannot marry unless his previous
marriage has been annulled or the case falls under valid bigamous marriage.
4. Marriage is a union founded on the distinction of sex, which is why gay marriages are still not covered
within the purview of Article 2. In Silverio case, the petitioner had a sex reassignment and seeks for the
amendment of his birth certificate to reflect the change in sex as preliminary step to get married. The SC
rejected the petition and rules that sex/ gender is determined at the time of birth not at the time when a
person decides to get married. But in Republic vs. Cagandahan, where the petitioner has Congenital
Adrenal Hyperplasia, (the person has both male and female organs, and genetically a woman but secrets
male hormones) the SC considered the person to be an INTERSEX INDIVIDUAL and granted the
preference of the person to be considered male thereby allowing the amendment of her birth certificate
from female to male.
Despite such declaration, it can be inferred form the decision that the granting of
such petition was buttressed on the idea that such state of the petitioner was
natural and has never taken unnatural steps to arrest or interfere with what he
was born with unlike the Silverio case
5. Absence of any of the formal requisites renders the marriage void ab initio, unless any of the parties or
both are in good faith.
Consent:
6.

The requirements of consent are that it must be ( a) freely given and ( b) the same must be made in the
presence of the solemnizing officer
7. If there is consent but VITIATED by error, fraud, intimidation force, etc ( these are defects)., the marriage
is VOIDABLE
8. If there is absolutely, totally no consent or when the parties did not intend to be bound as in a case of a
joke or movie play the marriage VOID AB INITIO
9. Consent signifies that at the time of marriage ceremony, they were capable of intelligently understanding
the nature and consequences of the act.
10. Consent must be given in the presence of the solemnizing officer in order that it may have due publication
before a third person or persons for the sake of notoriety and the certainty of its being made. This
requirement prohibits proxy-marriages.
11. The formal requisite speaks of the absence or presence of the authority of the solemnizing officer and not
his mere presence or absence. Authority of a solemnizing officer will be presumed in the absence of any
showing to the contrary. This is in accordance with the rule that where a marriage ceremony is shown,
every presumption will be indulged that it was performed legally.
TAKE NOTE OF THE MARRIAGE LAW OF 1929 ( Act No. 3613) which was not repealed by the Family
Code, where it punishes any person claiming by advertisement or publication to have the authority to
solemnize marriage while in fact he has none. Likewise same penalty is granted to those who solemnize
marriage but refuses to exhibit his authorization when called upon to do so.
Marriage license:
12. Valid marriage license must be issued by the local civil registrar of the place where the marriage
application was filed. Once issued it has only a lifetime of 120 days from the date of issue and is effective
in any part of the Phil. The date of issue is the date of signing of the marriage license by the local civil
registrar. If not used, it is deemed automatically cancelled at the expiration of 120-day period
13. Marriage license is not effective if it will be used as the marriage license to be able to solemnize a marriage
abroad.
14. If marriage license is issued in a place wherein the contracting parties do not reside and a marriage is
performed on the cases of said marriage license-the marriage is still valid.
15. A misspelled name of a party in the marriage license will not invalidate the marriage.
16. The commission of perjury or deception or misrepresentation on the part of the contracting parties as to
their age which was however above the marrying age in order to avoid the statutory requirement of
parental consent is not a cause to invalidate the marriage obtained through such marriage license.
17. The fact that one of the contracting parties did not disclose his or her prior marriage and divorce in the
application as required by the statute or falsely stated that he or she has not been previously married or
misrepresented his or her residence or falsely swore that he or she was not under guardianship or forge
her mothers consent on the marriage will not justify a declaration of nullity.

27

Marriage Ceremony:
18. The Family Code does not generally prescribe any particular form of marriage ceremony. The minimum
requirement imposed by law is that the contracting parties appear personally before the solemnizing
officer and declare that they take each other as husband and wife in the presence of at least two witnesses
of legal age.
19. Declaration of consent need not be vocally expresses. It can be shown by other manifestations or signs of
approval and consent. It is the agreement itself and not the form in which it is couched, which constitute
the contract.
20. The failure of the solemnizing officer to ask the parties whether they take each other as husband and wife
cannot be regarded as a fatal omission, and is not a cause for annulment, it being sufficient that they
declared in and signed the marriage contract that they were taking each other as husband and wife.
21. Declaration by word of mouth of what the parties had already stated in writing would be mere repetition
so that its omission should not be regarded as fatal defect.
22. While the law provides that the declaration shall be contained in the marriage certificate, the marriage
certificate is not an essential nor formal requirement of marriage. Failure to sign a marriage certificate or
absence of the marriage certificate itself does not render the marriage void or voidable.
Witness in a Marriage Ceremony:
23. There can be no marriage ceremony to speak of if the two witnesses of legal age are absent. It can
however be justifiably argued that the absence of two witnesses of legal ages in a marriage ceremony is
merely an irregularity in the said formal requirement which according to Article 4 shall not affect the
validity of the marriage but the party responsible for the irregularity shall be civilly and criminally,
administratively liable. The latter view is significantly favored by the SC, in the case of Balogbog vs. CA,
March 7, 1997, where it leaned to the idea that absence of witnesses is merely an irregularity. While a
counter-argument may be presented that existence of a marriage cannot be presumed because there was
no evidence that the parties in the presence of two witnesses declared that they take each other as
husband and wife. But the Supreme Court stated that an exchange of vows can already be presumed to
have been made from the testimonies of the witnesses who state that a wedding took place, since the very
purpose of a wedding is to exchange vows of marital commitment.
Common Law marriage:
24. Common law marriage- a non-ceremonial or informal marriage by agreement entered into by a man and a
woman having capacity to marry, ordinarily without compliance with such statutory formalities as those
pertaining to marriage.
25. Such agreement must be coupled by consummation which includes at least cohabitation and reputation in
such a way that the public will recognize the marital status.
26. Common law marriage is not recognized in the Philippines because the Civil Code and the Family Code
expressly and mandatorily provides that the intervention in a valid marriage ceremony of an ecclesiastical
or civil functionary authorized by the state to solemnize marriage constitutes one of the indispensable
requisites for a valid marriage.
Q: WHAT IS THE EFFECT OF THE ABSENCE, DEFECT, IN ESSENTIAL AND FORMAL REQUISITES?
ANS:
As provided for by ART. 4-6
ARTICLE 4
-The absence of any of the essential or formal requisites
-shall render the marriage void ab initio, except as stated in Article 35 (2)
-A defect in any of the essential requisites
-shall render the marriage voidable as provided in Article 45
-An irregularity in the formal requisites
-shall not affect the validity of the marriage
-but the party or parties responsible for the irregularity
-shall be civilly, criminally and administratively liable.
ARTICLE 5
-Any male or female of the age of eighteen years or upwards
- not under any of the impediments mentioned in Articles 37 and 38,
- may contract marriage.
ARTICLE 6
-No prescribed form or religious rite
-for the solemnization of the marriage is required.
-It shall be necessary, however, for the contracting parties

28

- to appear personally before the solemnizing officer

-and declare in the presence of not less than two witnesses of legal age
-that they take each other as husband and wife.
-This declaration shall be contained in the marriage certificate
-which shall be signed by the contracting parties and their witnesses
-and attested by the solemnizing officer.
-In case of a marriage in articulo mortis,
-when the party at the point of death
-is unable to sign the marriage certificate,
-it shall be sufficient for one of the witnesses to the marriage
- to write the name of said party,
-which fact shall be attested by the solemnizing officer.
NOTES:
1. Absence of any of the essential and formal requisites of marriage renders such marriage void.
2. A marriage taken on the basis of an expired marriage license is void. In such a case there is absence of a valid
marriage license. However excepted cases are provided by law in case of the absence of marriage license if the
situation falls under Chapter 2, Title 1 of the Family Code
(i) marriage in articulo mortis.
(ii) Marriages of two contracting parties living in places where there are no means of transportation to enable
them to appear personally before the local civil registrar.
(iii) Marriages among Muslims and among other ethnic cultural minorities performed with their practices.
(iv) Marriages of couples without any impediment to get married living together as husband and wife for at least
five years.
3. Marriage by way of jest is likewise void because there is absolutely no genuine consent on the part of both
contracting parties.
4. Marriage by proxy solemnized in the Philippines is void because of the absence of the essential requisite that
consent freely given must be made in the presence of the solemnizing officer and the absence of the formal
requisite that the contracting parties must personally declare before the solemnizing officer that they take each
other as husband and wife.
5. Defect in the essential requirements of marriage makes the marriage merely annullable or voidable. Specifically
these defects are enumerated in Article 45 and 46 of the Family Code.
6. Irregularities in the formal requisites do not affect the validity of marriage. Except when, the contracting
parties eighteen years or over but below 21, did not obtain the consent of their parents provided for in Article 14,
any irregularities in the formal requisites do not render the marriage voidable or annullable
7. A marriage solemnized by a judge without having shown a valid marriage license and merely requires the
submission of the license after the marriage ceremony acts IMPROPERLY. . If in such case they really have a valid
marriage license and they just forgot to bring it, the marriage is valid. This is just an irregularity. However, if the
parties do not really have marriage license and the judge requires them to apply and procure a marriage license
after the ceremony the marriage is void.
8. What is allowed by law is, the judge must first solemnize the marriage and ask the parties to sign the marriage
contract. However if a judge conducts a marriage ceremony where the signing comes first before the
solemnization, the marriage is still considered valid despite the fact the act of the judge is highly improper,
irregular and illegal
9. List of some irregularities that do not affect the validity of the marriage
a. absence of two witnesses of legal age during the marriage ceremony.
b. absence of marriage certificate.
c. marriage in a place other than those places mentioned in the Code.
d. issuance of a marriage license in city or municipality not the residence of either of the contracting
parties.
e. failure of the contracting parties to present original birth certificate or baptismal certificate to the local
civil registrar who likewise failed to ask for the same.
f. failure of the parties between ages of 18 to 21 to exhibit consent of parents or persons having legal
charge of them to the local civil registrar.
g. failure of contracting parties between ages 21-25 to exhibit advice of parents to local civil registrar.
h. failure to undergo marriage counseling.
i. failure of the registrar to post the required notices.

29

j. issuance of marriage license despite absence of publication or prior completion of the 10-day period for
publication.
k. failure of the parties to pay the prescribed fees for the marriage license.
l. Failure of the solemnizing person to send copies of the marriage certificate to the local civil registrar.
m. failure of the local civil registrar to enter the applications for marriage license filed with him in the
registry book in the order in which they were received.
Q: WHO ARE THE AUTHORIZED SOLEMNIZERS OF MARRIAGE?
ANS:
Article 7 states;
Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious
sect and registered with the civil registrar general, acting within the limits of the written authority granted by his
church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing
officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military
operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.
NOTES:
1. Marriage has always been considered involving questions of public policy. In this regard there is need to
limit the persons who could solemnize marriage.
2. The state being interested party in marriage, its consent is essential to every marriage. This consent is
manifested or granted vicariously by the people granted by the state the privileged authority to solemnize
marriage, such that any annulment case which, in effect, seeks to invalidate such state consent must pass
through the courts and cannot be made merely by agreement of parties.
3. Inasmuch as the state officiates in the celebration of marriage through the person solemnizing the same, it is
logical that such person must have the authority from the Government at the time. Such authority is the
foundation of marriage.
Judges:
4. Judges can solemnize marriage only within their courts jurisdiction. They must be incumbent and not
retires judges. Needless to state the jurisdiction of the Court of Tax Appeals, Sandiganbayan, Court of
Appeals, and the Supreme Court is national in scope. If marriage is solemnized by a judge of the RTC, MTC
beyond his jurisdiction, there is absence of formal requisite in such marriage, hence the marriage is void.
Unless of course either of the parties believed in good faith that such solemnizing officer has authority.
5. TAKE NOTE: The case of Navarro vs. Domagtoy, July 19, 1996which is a very exceptional case, ( the
pronouncement is erroneous because the absence of the authority of a judge to solemnize
marriage as he did it outside his jurisdiction renders the marriage void) where the SC proclaimed
that where a judge solemnizes a marriage outside the courts jurisdiction, there is a resultant irregularity
in the formal requisite and will not affect the validity of marriage. Since the principal issue in the
Domagtoy case involves the liability of the judge and not the validity of the marriage, said statement of the
SC is merely an obiter dictum, and therefore does not create a precedent.
6. It is highly irregular for a judge to collect fees for the ceremony. It is reprehensible. By such act it
cheapens his noble office as well as the entire judiciary in the eyes of the public.
Priest, rabbi, imam, or minister of any church or religious sect:
7. A priest- one especially consecrated to the service of a dignity and considered as the medium through
whom worship, prayer, sacrifice, or other service is to be offered to the one being worshipped, and pardon
blessing and deliverance obtained by the worshipper as a priest of Baal, Jehovah, or a Buddhist priest
8. For a priest, rabbi, imam, or minister of any church or religious sect to bale to validly solemnize marriage,
the following essential requisite must concur:
a. She must be duly authorized by her church or religious sect
b. Must act within the limits of the written authority granted to him by the church or religious sect
c. Must be registered with the civil registrar general
d. At least one of the contracting parties whose marriage he or she is to solemnize belongs to his
church or religious sect

30

9.

The written authority granted to priest by his sect may impose a limitation as to the place where he could
solemnize a marriage. A priest who is commissioned and allowed by his local ordinary to marry the
faithful, is authorized to do so only within the area of the diocese or the place allowed by his bishop

Ship captain and airplane chief:

10. For a ship captain or airplane chief to be able to validly solemnize a marriage, the following requisites
must concur
a. The marriage must be in articulo mortis ( at least one of the parties is at the point of death)
b. The marriage must be between passengers or crew members, and
c. Generally the ship must be at sea or the plane must be in flight.
11. Hence an assistant pilot has no authority to solemnize a marriage. If the airplane chief dies during the trip,
the assistant pilot who assumes command cannot solemnize a marriage as there is no law allowing such
assumption of authority for the purpose of solemnizing a marriage.
12. Such marriages can be solemnized during stopovers at ports of call.
Stopover and Ports of call- means that the voyage is not yet terminated. They
are including instances when there are transit passengers which the others
affirmed.
Military commander
13. For a military commander to be able to solemnize these requisites must concur:
a. he or she must be a military commander of a unit.
b. he or she must be a commissioned officer.
c. a chaplain must be assigned to such unit.
d. the said chaplain must be absent at the time of the marriage.
e. the marriage must be one in articulo mortis.
f. The contracting parties, whether members of the armed forces or civilians must be within the
zone of military operation.
14. If the chaplain is present, he must be the one who should solemnize the marriage. The chaplains authority
to solemnize proceeds from Article 7 (2). Hence if the chaplain cannot comply with Article 7 (2) then it is
as if he is absent, as he cannot solemnize a marriage, in which case the military commander can solemnize
the marriage
15. Unit refers to a battalion and not a mere company
16. The phrase within the zone of military operation implies widespread military activity over an area and
does not refer to a simulated exercise because it requires absence of civilian authorities
Consul-general, consul, or vice consul
17. Heads of consular posts are divided into four classes, namely;
a. Consul-general
b. Consul
Only these three are expressly authorized to solemnize marriage
c. Vice-consul
d. Consul-agents
18. They can solemnize marriage only when the contracting parties are both Filipino citizens. They act not
only as solemnizers of a marriage but also perform the duties of the local civil registrar, such as the
issuance of a marriage license.
19. The contracting parties shall personally appear before the consul general, consul or vice-consul in the
latters office abroad and declares in the presence of not less than two witnesses of legal age that they take
each other as husband and wife. ( in pursuance of Article 17 of the Civil Code ..the solemnities established
by Philippine laws shall be observed in their execution)
20. The contracting parties may request in official written sworn statement the aforementioned officials
should they desire that the marriage be solemnized in a place other than the office of these officials
21. A mixed marriage between a foreigner abroad and a Filipino solemnized by a Philippine consul appears to
be void. The law specifically limits the authority of these officials to solemnize marriage only between
Filipino citizens. If they do so, such marriage is wanting of one of the formal requisites which is the
authority of the solemnizing officer.
However by way of exception, if the marriage between the foreigner and the
Filipino citizen abroad solemnized by a Filipino consul assigned in that country
is recognized as valid in the host country, then such marriage shall be considered
valid in the Philippines. (Pursuant to Article 26 of the Family Code.)
22. In the same manner, these officials have no authority to solemnize marriage within the territory of the
Philippines.
Mayor:
23. Mayor of a city or municipality is now empowered to solemnize marriage pursuant to the Local
government code
24. When the mayor is temporarily incapacitated to perform his duties for physical or legal reasons (including
suspension), the vice-mayor or the highest ranking Sangguniang member shall automatically exercise the
powers. Relevantly the vice-mayor acting as mayor has the authority to solemnize marriages.

31

ALWAYS REMEMBER: Under Article 35 (2) if the marriage was solemnized by a person not legally authorized to
solemnize marriage and either of the contracting parties believed in good faith that such solemnizing officer had
such authority, then the marriage is still considered valid.
Q: WHAT ARE THE PLACES SPECIFIED BY LAW WHERE TO HOLD MARRIAGE AND WHAT WILL BE THE
EFFECT IF MARRIAGE BE HELD ELSEWHERE?
ANS:
Article 8 states;
-The marriage shall be solemnized publicly
-in the chambers of the judge or in open court, in the church, chapel or temple,
-or in the office the consul-general, consul or vice-consul, as the case may be,
-and not elsewhere, except in cases of marriages contracted on the point of death
-or in remote places in accordance with Article 29 of this Code,
-or where both of the parties request the solemnizing officer
- in writing in which case the marriage may be solemnized
-at a house or place designated by them in a sworn statement to that effect.
NOTES:
1. Article 8 is directory in nature. Its non-observance will not invalidate a marriage but can subject the person
or a person who causes the violation to civil, criminal, or administrative liability.
2. Exceptions to the rule on venue are provided by law, namely:
a. marriages contracted in articulo mortis,
b. or in remote places in accordance with Article 29 of the FC and
c. marriages where both of the contracting parties request a solemnizing officer in writing
Q: WHERE SHALL A MARRIAGE LICENSE BE ISSUE, AND WHAT WILL BE ITS EFFECT IF IT BE ISSUED
ELSEWHERE NOT ION ACCORDANCE WITH THIS ARTICLE?
ANS:
Article 9 states;
- A marriage license shall be issued by the local civil registrar
-of the city or municipality where either contracting party habitually resides,
-except in marriages where no license is required
-in accordance with Chapter 2 of this Title
NOTE:
(To sound like a broken record)If the contracting parties obtain a marriage license in a place other than the place
where either of them resides, it is merely an irregularity which will not render null and void the marriage
celebrated on the basis of such license.
Q: WHO SHALL SOLEMNIZE A MARRIAGE BETWEEN FILIPINO CITIZENS ABROAD?
ANS:
Article 10 provides;
-Marriages between Filipino citizens abroad
- may be solemnized by a consul-general, consul or vice-consul of the RP
-The issuance of the marriage license and the duties of the local civil registrar
-and of the solemnizing officer with regard to the celebration of marriage
-shall be performed by said consular official.
( Notes on Consular Officials see, the notes on Article 7)
Q: WHAT ARE THE DOCUMENTARY REQUIREMENTS FOR MARRIAGE LICENSE?
ANS:
Article 11 states;
- Where a marriage license is required,
-each of the contracting parties shall file separately
-a sworn application for such license
-with the proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;

32

(9) Full name, residence and citizenship of the mother; and

(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party
has neither father nor mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any
formality in connection with the securing of the marriage license.
NOTES:
1. The purpose of documentary requirements; since its the concern of the state to make the marriage secure
and stable institution they should be. In this regard proper documents must be maintained to serve as
proofs for their existence.
2. The task of seeing to it that these requirements are accomplished is addressed to the local registrar
3. It is also the purpose of these statutes to discourage deception, seduction prevent illicit intercourse under
the guise of matrimony and relieve from doubt the status of parties who live together as man and wife, by
providing competent evidence of the marriage.
Q: WHAT ARE THE RULES IN DETERMINING WHETHER THE PARTIES HAVE REQUIRED AGE FOR
MARRIAGE?
ANS:
Article 12 provides;
The local civil registrar, upon receiving such application,
-shall require the presentation of the original birth certificates
-or, in default thereof, the baptismal certificates of the contracting parties
-or copies of such documents duly attested by the persons having custody of the originals. -These
certificates or certified copies of the documents by this Article
- need not be sworn to and shall be exempt from the documentary stamp tax.
-The signature and official title of the person issuing the certificate
-shall be sufficient proof of its authenticity.
-If either of the contracting parties is unable to produce
-his birth or baptismal certificate or a certified copy of either
-because of the destruction or loss of the original
-or if it is shown by an affidavit of such party or of any other person
- that such birth or baptismal certificate has not yet been received
-though the same has been required of the person
- having custody thereof at least fifteen days prior to the date of the application,
-such party may furnish in lieu thereof his current residence certificate
-or an instrument drawn up and sworn to before the local civil registrar concerned
-or any public official authorized to administer oaths.
- Such instrument shall contain the sworn declaration of two witnesses of lawful age,
-setting forth the full name, residence and citizenship of such contracting party
-and of his or her parents, if known, and the place and date of birth of such party.
-The nearest of kin of the contracting parties shall be preferred as witnesses,
-or, in their default, persons of good reputation in the province or the locality.
-The presentation of birth or baptismal certificate shall not be required
-if the parents of the contracting parties appear personally before the local civil registrar
-concerned and swear to the correctness of the lawful age of said parties,
-as stated in the application, or when the local civil registrar shall,
-by merely looking at the applicants upon their personally appearing before him,
-be convinced that either or both of them have the required age.
NOTE:
Article 12 sets forth the rules by which the civil registrar shall determine as to whether the parties have the
required age for marriage.
Q: WHAT IF BOTH OR EITHER PARTIES HAVE BEEN PREVIOUSLY MARRIED, WHAT SHOULD THEY PRESENT
IN LIUE OF THE BIRTH OR BAPTISMAL CERTIFICATE?
ANS:
Article 13 states;
-In case either of the contracting parties has been previously married,
-the applicant shall be required to furnish, instead of the birth or baptismal certificate
-required in the last preceding article, the death certificate of the deceased spouse
-or the judicial decree of the absolute divorce, or the judicial decree of annulment
-or declaration of nullity of his or her previous marriage.
-In case the death certificate cannot be secured,
-the party shall make an affidavit setting forth this circumstance
-and his or her actual civil status and the name and date of death of the deceased spouse.

33

Q: WHAT WILL BE THE EFFECT TO THE MARRIAGE, IF BOTH CONTRACTING PARTIES FAILED TO OBTAIN
PARENTAL CONSENT?
ANS:
As provided by article 14;
In case either or both of the contracting parties, not having been emancipated
- by a previous marriage, are between the ages of eighteen and twenty-one,
-they shall, in addition to the requirements of the preceding articles,
-exhibit to the local civil registrar, the consent to their marriage of their father, mother,
-surviving parent or guardian, or persons having legal charge of them,
- in the order mentioned. Such consent shall be manifested in writing
-by the interested party, who personally appears before the proper local civil registrar,
-or in the form of an affidavit made in the presence of two witnesses
-and attested before any official authorized by law to administer oaths.
-The personal manifestation shall be recorded in both applications for marriage license,
-and the affidavit, if one is executed instead, shall be attached to said applications.
NOTES:
1. There is no more emancipation by marriage. Emancipation is attained upon reaching the age of 18 years.
2. Nevertheless, the contracting parties between 18 years old and above but below 21 must still obtain the
consent of the parents as this is required under the 2nd paragraph of Article 236 of the FC.
3. Non-compliance with this requirement, does not make the marriage invalid but merely annullable
pursuant to Article 45 (1), since the statute is merely directory, in the absence of any provision of law
declaring such marriage as void. Parental consent may be considered as one of the statutory requirements
for marriage not owing to the capacity of the parties but only to the formalities of lawful marriage under
the statute.
4. Parental consent required of parties between ages of 18 and above but below 21 does not add anything to
the legal capacity of the said contracting parties as the law itself declares that people 18 years and above
can legally and validly contract marriage.
5. The required parental consent simply means that the said contracting parties may not be licensed to
marry upon their own consent alone, but that the consent of the parents must be added thereto. Lack of it
does not invalidate the marriage but only subject those who have neglected to acquire it to the penalties
given by law.
6. Preference is given to the father to give consent. If he cannot give the consent. The mother, surviving
parent or guardian or persons having legal charge of them in the order mentioned shall give the consent.
7. REMEMBER: That if any of the contracting parties is below 18 years of age the marriage is void regardless
of the existence or non-existence of the consent of the parents.
8. However, parental consent is needed in relation to the procurement of a formal requisite, namely a valid
marriage license and therefore the absence of such parental consent should only be considered as an
IRREGULARITY in a formal requirement, which does not affect the validity of the marriage.
Q: WHAT WILL BE THE EFFECT TO THE MARRIAGE, IF BOTH CONTRACTING PARTIES FAILED TO OBTAIN
PARENTAL ADVICE?
ANS:
As stated in article 15;
Any contracting party between the age of twenty-one and twenty-five
-shall be obliged to ask their parents or guardian for advice upon the intended marriage.
-If they do not obtain such advice, or if it be unfavorable,
-the marriage license shall not be issued till after three months
- following the completion of the publication of the application therefor.
-A sworn statement by the contracting parties
-to the effect that such advice has been sought, together with the written advice given,
-if any, shall be attached to the application for marriage license.
- Should the parents or guardian refuse to give any advice,
- this fact shall be stated in the sworn statement.
NOTES:
1. Absence of parental advice does not affect the marriage. It does not even make the marriage voidable, as
non-advice is not ground for annulment provided for in Article 45. While is not an essential nor a formal
requisite under Article 2 and 3.
2. Prescribing parental advice is in keeping with the Philippine tradition and it does not bar marriage totally.
It is just a vehicle to induce further and more mature deliberation over the decision to get married.
3. If the parties refuse to obtain parental advice, the marriage license must not be issued till after 3 months
from the end of the 10 day publication. If they marry without the license, the marriage is void.
Q: DOES FAILURE TO UNDERGO MARRIAGE COUNSELING A GROUND FOR ANNULMENT?
ANS:
No, as stated in Article 16;

34

-In the cases where parental consent or parental advice is needed,

-the party or parties concerned shall,
in addition to the requirements of the preceding articles,
attach a certificate issued by a priest, imam or minister
-authorized to solemnize marriage under Article 7 of this Code
-or a marriage counselor duly accredited by the proper government agency
-to the effect that the contracting parties have undergone marriage counseling.
- Failure to attach said certificates of marriage counseling
- shall suspend the issuance of the marriage license for a period of three months
-from the completion of the publication of the application.
-Issuance of the marriage license within the prohibited period
-shall subject the issuing officer to administrative sanctions
- but shall not affect the validity of the marriage.
-Should only one of the contracting parties need parental consent or parental advice,
- the other party must be present at the counseling referred to in the preceding paragraph.
NOTE:
Failure to undergo marriage counseling or failure to attach to the marriage application a certification that they
have undergone marriage counseling is just an irregularity and does not render the marriage void. However, with
respect to the parties who needed parental consent and parental advice failure of attachment will only suspend the
issuance of the marriage license for 3 months.
Q: WHAT IS THE DUTY OF THE CIVIL REGISTRAR?
ANS:
Article 17 provides for the same:
The local civil registrar shall prepare a notice
-which shall contain the full names and residences of the applicants for a marriage license -and other data
given in the applications.
-The notice shall be posted for ten consecutive days on a bulletin board
- outside the office of the local civil registrar located in a conspicuous place
-within the building and accessible to the general public.
-This notice shall request all persons
- having knowledge of any impediment to the marriage to advise the local civil registrar thereof.
-The marriage license shall be issued after the completion of the period of publication.
NOTES:
1. After the marriage application has been properly filled and submitted, the civil registrar shall post a notice
to inform everybody of the impending marriage.
2. The marriage license shall be issued after the completion of the period of publication. However, if the
contracting parties between the ages of 21-25 do not obtain advice of the parents or if such advice is
unfavorable, the local registrar shall not issue the marriage license till after 3 months following the
completion of the publication of the application therefor.
3. If marriage license is issued within said 3 moths and the contracting parties were able to get married on
the basis of such marriage license, the marriage is valid and not even annullable. This will subject the
issuing civil registrar to administrative sanctions.
Q: DOES THE LOCAL CIVIL REGISTRAR HAVE INVESTIGATIVE POWER IN CONNECTION TO THE MARRIAGE
APPLICATION?
ANS:
Yes, this is provided under Article 18 which states;
-In case of any impediment known to the local civil registrar or brought to his attention,
-he shall note down the particulars thereof
-and his findings thereon in the application for marriage license,
- but shall nonetheless issue said license after the completion of the period of publication, -unless ordered
otherwise by a competent court
-at his own instance or that of any interest party.
-No filing fee shall be charged for the petition
-nor a corresponding bond required for the issuances of the order.
NOTES:
1. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down
the particulars thereof and his findings thereon. Nonetheless he is duty bound to issue said license after
the payment of the necessary fees unless exempted due to indigence.
2. Meaning: the local civil registrar is prohibited from withholding the marriage license despite the legal
impediment, because the purpose of Article 18 as agreed upon by the drafters of the FC is to avoid
extortion.

35

3.
4.
5.

6.

Only court intervention directing the non-issuance of the marriage license can empower the local civil
registrar to validly refuse to issue said license.
The court action may be brought by the local civil registrar himself or by any interested party.
If despite an injunction order from the court, the local civil registrar nevertheless issues a marriage license
and marriage is solemnized, the marriage is valid, because the validity of the marriage license is not
affected by the violation of the injunction. The issuance of the license despite the restraining order can be
considered only as in irregularity in the formal requisite but the parties responsible for such irregularity
shall be liable civilly, criminally and administratively.
The criminal liability of the civil registrar is contained in the Marriage Law of 1929, which punishes the act
imprisoning the guilty registrar for not less than 1 month nor more than 2 years and by a fine of not less
than 200 pesos, nor more than 2,000.

Q: ARE INDIGENT APPLICANTS FOR MARRIAGE LICENSE EXCUSED FROM PAYING THE FEES REQUIRED BY
LAW?
ANS:
Yes, this is provided under Article 19
-The local civil registrar shall require the payment of the fees
- prescribed by law or regulations before the issuance of the marriage license.
-No other sum shall be collected
- in the nature of a fee or tax of any kind for the issuance of said license.
-It shall, however, be issued free of charge to indigent parties,
-that is those who have no visible means of income
-or whose income is insufficient for their subsistence
-a fact established by their affidavit, or by their oath before the local civil registrar.
(Self- explanatory)
Q: WHAT IS THE LIFE OF A MARRIAGE LICENSE?
ANS:
As stated by Article 20;
-The license shall be valid in any part of the Philippines
-for a period of one hundred twenty days from the date of issue,
-and shall be deemed automatically cancelled
-at the expiration of the said period
-if the contracting parties have not made use of it.
-The expiry date shall be stamped in bold characters on the face of every license issued.
(Self-explanatory)
Q: WHAT SHALL BE THE REQUIREMENTS IF BOTH OR EITHER OF THE CONTRACTING PARTIES ARE
CITIZENS OF A FOREIGN COUNTRY
ANS:
As provided by Article 21;
-When either or both of the contracting parties are citizens of a foreign country,
-it shall be necessary for them before a marriage license can be obtained,
- to submit a CERTIFICATE OF LEGAL CAPACITY to contract marriage,
- issued by their respective diplomatic or consular officials.
-Stateless persons or refugees from other countries shall,
-in lieu of the certificate of legal capacity herein required,
-submit an affidavit stating the circumstances
-showing such capacity to contract marriage.
NOTES:
1. When either or both of the contracting parties are citizens of a foreign country, before a marriage license
be issued they have to submit CERTIFICATE OF LEGAL CAPACITY.
2. A certificate of legal capacity is necessary because the Philippines, insofar as marriage is concerned,
adhere to the national law of the contracting parties with respect to their legal capacity to contract
marriage.
3. Hence, if a 16 year old is capacitated in another country to marry and wants to marry a Filipino here or
another foreigner, he can do so by obtaining a certificate of legal; capacity and show this to the proper
local civil registrar where he is residing in the Philippines.
4. Definitely this an exception to the rule that the local civil registrar even if he finds an impediment in the
impending marriage, must nevertheless issue the marriage license unless, at his own instance or than an
interested party, he is judicially restrained from issuing the marriage license.
5. If without the certificate of legal capacity and the marriage license was nonetheless issued, the marriage
celebrated on the basis of such marriage license is still valid.

36

6.

If the foreigner desires to be married by their countrys consul assigned here in the Philippines, no
certificate of legal capacity is needed.

Q: WHAT WILL BE THE PRESUMPTIVE PROOF THAT A MARRIAGE HAD BEEN CELEBRATED?
ANS:
The marriage license and this is stated in Article 22;
- The marriage certificate, in which the parties shall declare
-that they take each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriage provided for in Chapter
2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal requirement regarding parental
advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof.
NOTES:
1. This provision talks about the presumption of marriage.
2. The marriage certificate/ marriage contract is not an essential requisite of marriage. It may be the best
documentary evidence of marriage but failure to sign the marriage certificate or the marriage contract
does not invalidate the marriage. Hence oral solemnization of the marriage is sufficient.
3. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of
marriage is a presumption which is considered satisfactory if uncontradicted, but may be contradicted
and overcome by evidence. This presumption of legality attached to marriage is said to be one of the
strongest known to law especially where the legitimacy of the children is involved for the law presumes
morality and not immorality; marriage and not concubine; legitimacy and not bastardy.
4. When the question as to whether or not a marriage has been contradicted arises in litigation, said
marriage may be proved by evidence of any kind. The primary best evidence of the marriage is the
marriage contract or marriage certificate.
5. A mere Photostat copy of marriage certificate is a worthless paper, but if such Photostat copy emanated
from the Office of the Local Civil Registrar and duly certified by the local registrar as an authentic copy of
the records, in his office, such certified Photostat is admissible as evidence.
6. Failure to present a marriage certificate is not fatal in a case where a marriage is in dispute, as the parties
can still rely on the presumption of marriage.
7. A certificate of marriage made many years after marriage is inadmissible where there was no register of
the marriage in the official records.
8. Any priest or minister failing to deliver to either of the contracting parties one of the copies of the
marriage contract or to forward the other copy to the authorities within the period fixed by law, shall be
punished by imprisonment for not more than 1 month or by a fine of not more than 300 pesos or both in
the discretion of the court.
9. Mere open cohabitation as husband and wife is not direct proof of marriage, it must be proved by the
proper documents by oral testimony in case these have been lost
PROOF TO ATTACK VALIDITY OF MARRIAGE
10. Anyone assailing the validity of marriage is required to make plain, against the constant pressure of the
presumption of legality, the truth of law and fact that the marriage was not legal. The evidence to repel
that presumption must be strong, distinct and satisfactory.
11. Sy vs. Court of Appeals April 12, 200, The SC made an exceptional decision, when it said that even though
assailing the validity of marriage was only made for the first time on appeal, on the ground that there was
no marriage license during the celebration of the marriage, such is with merit for the protection of the
substantive rights of the parties. ( in here the marriage contract showed that marriage was contracted
prior the issuance of a marriage license)
12. While obtaining a marriage license in a place which is not the place of residence of any of the contracting
parties is merely an irregularity and does not invalidate the marriage, such circumstance is nevertheless
an indication that the license may be spurious or non-existent which should necessitate further
investigations as to its authenticity.
Declaratory relief:
13. In the event that the parties are not certain whether under the law, they can proceed with a marriage; they
can file a petition for declaratory relief, to seek from the court a judgment on their capacity to marry.
14. Such petition may be brought by any person interested under a deed, a will, contract or other written
instrument or whose rights or other governmental regulation for the purpose of determining any question
of his or her rights and duties thereunder, provided that the action is brought before any violation or
breach.
Q: WHAT WILL BE THE EFFECT OF THE DUTY OF LOCAL CIVIL REGISTRAR?

37

ANS:
Article 24 states;
-It shall be the duty of the local civil registrar
-to prepare the documents required by this Title,
-and to administer oaths to all interested parties without any charge in both cases.
-The documents and affidavits filed
-in connection with applications for marriage licenses
-shall be exempt from documentary stamp tax.
Also, Article 25 provides;
-The local civil registrar concerned
-shall enter all applications for marriage licenses
-filed with him in a registry book
-strictly in the order in which the same are received.
-He shall record in said book the names of the applicants,
-the date on which the marriage license was issued,
-and such other data as may be necessary.
NOTES:
1. Because the local civil registrar is the specific government official charged with the preparation and
keeping of all official documents in connection with marriage, any certification issued by him is given a
high probative value.
2. Hence, a certification by the local civil registrar that there was no record in his office of any marriage
license of the alleged spouses is enough to prove that the marriage is void due to the absence of a formal
requirement.
3. MARRIAGE REGISTER: The office of the civil registrar keeps a marriage register of all persons married in
its locality. All of the data and information necessary for the celebration of the marriage will be contained
in such register.
Q: WHAT IS THE COMITY PROVISION AND WHAT ARE ITS EXCEPTIONS?
ANS:
Article 26 speaks of;
-All marriages solemnized outside the Philippines,
- in accordance with the laws in force in the country
-where they were solemnized, and valid there as such,
-shall also be valid in this country, except those prohibited
- under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
-Where a marriage between a Filipino citizen and a foreigner
-is validly celebrated and a divorce is thereafter validly obtained abroad
-by the alien spouse capacitating him or her to remarry,
-the Filipino spouse shall have capacity to remarry under Philippine law.
(As amended by Executive Order 227)
NOTES:
1. The family code expressly provides that except for marriages prohibited under Article 35 (1), (4) (5), and
6, 36, 37, 38, marriages solemnized abroad and which are valid there as such are recognized as valid here.
This is in accordance with the general rule of lex loci celebrations.
2. The legal effect which may be given by one state to the marriage laws of another state is merely because of
comity or because of public policy and justice demands the recognition of such laws and no state is bound
by comity to give effect in its courts of laws which are repugnant to its own laws and policy.
3. Every sovereign state is the conservator of its own morals and the good order of society.
4. Applying the first paragraph of Article 26, marriages without a license solemnized abroad, and proxy
marriages, or even those solemnized by a professor of law abroad shall be valid in the Philippines if
such marriages are valid in accordance with the laws in force in the country where they are solemnized.
5. If however, the foreign marriage is to be solemnized inside the Philippine Consulate abroad, such
marriage such marriage must observe the forms and solemnities established by the Philippine laws.
6. EXCEPTIONS TO THE LEX LOCI CELBRATIONES:
(selected, since other exceptions are self-explanatory)
a. If either or both contracting parties are Filipinos and they are below 18 years of age- their marriage
solemnized abroad will not be recognized in the Philippines as valid even if the marriage is valid in
the place where it has been solemnized.
Marrying capacity is governed by the national law of the party.
Q: What if one is a Filipino and the other an alien whose national law capacitates persons
below 18 years of age to marry?
ANS:

38

Despite the absence of a precise solution to the situation, a better rule is that the exception under
Article 26 referring to Article 35 (1) should only be construed as referring to a situation where
the marriage abroad is between a Filipino and Filipina and NOT between a Filipino and an alien
married in the aliens state where he or she though below 18 years of age is capacitated to marry.
b. Bigamous and Polygamous marriage- though valid abroad shall likewise not be recognized in the
Philippines
c. Mistake of identity of the other contracting party is also not recognized in the Philippines. This is
true even if one who committed the mistake is a foreigner spouse.
7. COMMON LAW MARRIAGES ABROAD by Filipinos shall not be recognized here. Article 26 clearly used
the word solemnized and not contracted or performed. Solemnization implies a ceremonial marriage and
not one which was contracted or merely performed by way of a mere agreement of the parties, such as in
case of a common law marriage. Also, Article 26 second paragraph uses the term celebrated. Again this
connotes marriage where solemnization is inherently involved.
8. SAME SEX MARRIAGE OF FILIPINOS ABROAD is not valid in the Philippines. In here, a person has legal
capacity to marry only a person of the opposite sex.
9. Absolute divorce- Generally absolute divorce between 2 citizens of the Philippines is not recognized in
the Philippines. Hence, if the contracting parties who are citizens of the Philippines get validly married in
the Philippines or anywhere in the world, their status insofar as the Philippine law is concerned as
married persons follow them anywhere in the world.
10. But a state recognizes divorces of aliens obtained in other states as a matter of international comity.
Aliens may obtain divorces abroad which may be recognized in the Philippines, provided they are valid
according to their national law.
11. The second paragraph of Article26 provides :
(i)
The recognition in the Philippines of a particular absolute divorce obtained in
another country which will allow the divorced Filipino to remarry
(ii)
Application to a situation where originally, at the time of marriage ceremony
both parties were Filipinos, but at the time of divorce, the petitioner was already
a citizen of a foreign country that allows absolute divorce. The determinative point
when the foreigner procured the divorce should be foreigner is at the time of
divorce and not at the time of marriage ceremony.
(iii)
The Filipino spouse who did not procure the divorce must be a Filipino at the time
of the issuance of the divorce decree. But if the Filipino spouse subsequently
acquires a foreign citizenship before the divorce and he or she initiates the divorce
proceeding, the eventual divorce decree will be recognized in the Philippines not
because of Article 26 but because of our adherence to the nationality principle with
respect to the status of a person.
(iv)
In the event that the former Filipino spouse who has been naturalized as foreign
citizen decides to return to the Philippines and reacquire Philippine citizenship,
the divorce decree will still be recognized here because at the time of the filing of
the petition for divorce and at the time of the issuance of the divorce decree he or
she is not a citizen of the Philippines. His status therefore is governed by her
foreign country.
(v)
A marriage between Filipinos and one of them obtained n absolute divorce abroad
after he has been naturalized as a citizen of a foreign country where absolute
divorce is recognized such naturalized foreigner who was formerly a Filipino can
come back to the Philippines and validly remarry the NATIONALITY RULE shall
likewise apply to him.
(vi)
If the Filipino spouse obtains the absolute divorce such will not be recognized here.
However, insofar as the foreigner is concerned, the divorce will be recognized here
because the Philippiness adherences to nationality rule. Hence, even if the divorce
decree was obtained by the Filipino spouse, still the foreigner spouse is considered
divorced and has no interest therefore in the property acquired by the Filipino
after the divorce. Also the foreigner spouse, cannot file a criminal case for adultery
in the event the Filipino spouse (wife) have sexual intercourse with another man.
While the Filipino is still considered married to him under the Philippine laws such
foreigner is not considered married to her therefore has no legal standing to file
the criminal case.
12. INVALID THERE INVALID HERE: If the marriage is not valid in the country where it has been solemnized,
it is likewise not valid in the Philippines. In this regard, a civil case can be filed in the Philippines to nullify
a foreign marriage using as basis the legal grounds for nullity provided by the marriage laws of the estate
where it was celebrated.
Even if the marriage which is invalid under the laws where it has been
solemnized but which would have been valid had such marriage been celebrated
in the Philippines. Will still be considered invalid in the Philippines.
Example:
A Filipino contracted a marriage solemnized in the residence of the solemnizing
officer in a country where the law provides that the a marriage shall be void if
celebrated in the place other than the chambers of the solemnizing officer, such
marriage shall be void in the Philippines.
In case of voidable marriage the same rule as in null and void marriages applies.

39

13. Proof of foreign marriage: To establish a valid marriage pursuant to the comity provision, it is necessary
to prove the foreign law as a question of fact and then to prove the celebration of marriage pursuant
thereto by convincing evidence.
14. If such law of the other state is not pleaded nor proved, and for the purpose of determining the validity of
marriage in the said state, the laws of such state in the absence of proof to the contrary will be presumed
by the court to be the same as the laws of its own state ( Wong woo Yin case)
15. Prior to 1991- the burden of proof to show the fact of marriage and the foreign marital law is upon who
asserts the validity of the marriage celebrated abroad. After 1991(Board of commissioners vs. De la
Rosa) it was held that; he who asserts that the marriage is not valid bears the burden of proof to present
the foreign law.
Q: WHAT ARE THE MARRIAGES EXEMPT FROM LICENSE REQUIREMENT?
ANS:
Article 27 to 34 provides;
Article. 27.
-In case either or both of the contracting parties
-are at the point of death, the marriage may be solemnized
-without necessity of a marriage license and shall remain valid
-even if the ailing party subsequently survives.
Article. 28.
-If the residence of either party is so located
-that there is no means of transportation
- to enable such party to appear personally before the local civil registrar,
- the marriage may be solemnized without necessity of a marriage license.
Article. 29.
-In the cases provided for in the two preceding articles,
-the solemnizing officer shall state in an affidavit executed before the local civil registrar -or any other
person legally authorized to administer oaths
- that the marriage was performed in articulo mortis
-or that the residence of either party, specifying the barrio or barangay,
-is so located that there is no means of transportation
-to enable such party to appear personally before the local civil registrar
-and that the officer took the necessary steps
-to ascertain the ages and relationship of the contracting parties
and the absence of legal impediment to the marriage.
Article. 30.
-The original of the affidavit required in the last preceding article,
- together with the legible copy of the marriage contract,
-shall be sent by the person solemnizing the marriage
-to the local civil registrar of the municipality
-where it was performed within the period of thirty days
-after the performance of the marriage.
Article. 31.
-A marriage in articulo mortis between passengers or crew members
-may also be solemnized by a ship captain or by an airplane pilot
- not only while the ship is at sea or the plane is in flight,
- but also during stopovers at ports of call.
Article. 32.
-A military commander of a unit, who is a commissioned officer,
-shall likewise have authority to solemnize marriages in articulo mortis
- between persons within the zone of military operation,
- whether members of the armed forces or civilians.
Article. 33.
-Marriages among Muslims or among members of the ethnic cultural communities
- may be performed validly without the necessity of marriage license,
-provided they are solemnized in accordance with their customs, rites or practices.
Article. 34.
- No license shall be necessary for the marriage of a man and a woman
-who have lived together as husband and wife for at least five years
-and without any legal impediment to marry each other.
-The contracting parties shall state the foregoing facts in an affidavit

40

-before any person authorized by law to administer oaths.

-The solemnizing officer shall also state under oath
-that he ascertained the qualifications of the contracting parties
-are found no legal impediment to the marriage.
NOTES:
1.
The reasons for the exceptions are mainly anchored on necessity and practicality such as the case of
marriage in articulo mortis where at least one of the parties is in the brink of death and marriage in remote places;
on the respect for and recognition of the customs and practices of Muslims and ethnic minorities and on the policy
of the state to, as much as possible, validate or legitimize illicit cohabitation between persons who do not suffer
any legal impediment to marry
2.
Muslims are now governed by the Code of Muslim personal laws of the Philippines, the various ethnic
groups in the Philippines must comply with all other essential and formal requisites. But for the Cordillerans under
RA 6766 ( Organic Act for the Cordillera Autonomous Regions) Article 10, Section 2 which provides;
marriages solemnized between or among members of the indigenous tribal group or community in accordance with
the indigenous customary laws of the place shall be valid and the dissolution thereof in accordance with these laws
shall be recognized. But for other ethnic groups in the Philippines they are governed by the FC.
3.
Far Areas: A sacred institution like marriage should always be encouraged. Without this provision illicit
relationships may proliferate only because the parties could not get marriage license with really no fault on their
part.
4.
Cohabitation for five years: For these exemption to be applicable the 2 conditions must be present;
a. They must live as such for at least 5 years characterized by exclusivity and continuity that is
unbroken
b. They must be without any legal impediment to marry each other.
While both conditions must concur they do not qualify each other which
means, during the 5 year period, it is not necessary that they must not have
suffered from any legal impediment.
The second condition as to the absence of any legal impediment must be
construed to refer only to the time of the actual marriage celebration.
Hence, if during the 5 year cohabitation a party suffered a legal
impediment but such become absent during the marriage celebration the
marriage is still valid.
Example:
1. A and B cohabited when A was still 13 years and 5 years thereafter they intend
to marry. A is already 18 years of age.
2. A and B cohabited during the subsistence of As marriage. After the death of
As spouse A and B intended to marry.
ALSO:
(i)
Under these exception, the failure of the solemnizing officer to investigate shall not invalidate the
marriage
(ii)
The marriage will be null on the ground of absence of valid marriage license upon evidence that there
was in fact no cohabitation for 5 years. Falsity of affidavit stating the fact of their cohabitation cannot
be considered to be a mere irregularity considering that the 5 year period is substantial requirement
of the law to be exempted from obtaining marriage license.
5.The procedure laid down in Article 29 to 30 relative to the duties of the solemnizing officer with respect to the
affidavit he or she has executed is merely directory in nature. Non-observance of the requirements will not render
the marriage void. It will only subject such solemnizing officer (when the marriage was performed under articulo
mortis) to an imprisonment to not less than 1 moth nor more than 2 years or a fine of not less than 300 pesos nor
more than 1000 or both.
Q: WHAT ARE THE VOID MARRIAGES FROM THE BEGINNING?
ANS:
Under article 35: The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were
contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to
do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
NOTES:
1. Void marriage is that which is not valid from its inception.
2. Articles 35,36,37,38,40,41,44 and 53 in relation to article 52 are void marriages.
3. Only marriages declared by the legislature should be treated as such, there can be no other void marriages
outside those specifically provided by law.
4. The grounds for a void marriage may co-exist in one case. Hence, a petition may contain many grounds for
nullity of marriage, such as absent of consent, no marriage license, psychological incapacity of parties and

41

5.

bigamy but it has only one cause of action which is nullity of marriage. The different grounds did not mean
different causes of action.
Void marriages can never be ratified or cured by any act of any of the contracting parties. Neither could
estoppel or acquiescence, waiver ratification apply to remedy the infirmity. As when, one party
declares in his application under oath that he is 18 years old, while in fact he is only 16 years, the parties
cannot invoke that the 16 year old or other party who knew of the infirmity is estopped from invoking the
said infirmity.
BUT: TAKE NOTE OF THE CASE OF MALLION VS. ALCANTARA, OCTOBER 31, 2006(much caution
must be exercised here, because the general rule still applies)
In this case, the petitioner after being denied the nullity of marriage via petition based on psychological
incapacity subsequently filed another petition for nullity of marriage based on absence of marriage
license, the Supreme court directed the dismissal of the subsequent case on the ground that the petitioner
violated the rule on splitting of case of action, that the rule on res judicata applied and that the petitioner
waived the defect. According to the SC not having invoked the ground of absence of marriage license in the
first case, the petitioner was considered to have impliedly admitted the validity of the celebration of the
marriage and he had therefore waived all defects.

STA MARIAS OPINION:

This ruling has given more weight to procedure rather than substantial law which should not be the case.
The decision did not take into account that no amount of ratification, waiver, acquiescence, or estoppel
can validate a void marriage.
6. BAD FAITH OF GOOD FAITH in VOID MARRAIGES: As a rule, good faith or bad faith are immaterial/
irrelevant in determining whether or not a marriage is void. Hence, even if a woman believed in good faith
that she is married a man not related to her but is actually her brother, her good faith will; not cure the
infirmity even if she willingly and freely cohabitated with him.
7. There are only two exceptions to the rule that good faith or bad faith are not relevant in void marriages;
a. Article 35 (2) if either of the contracting parties is in good faith believing that a solemnizing officer
has the authority to perform the marriage
b. Article 41, referring to a person whose spouse disappears for four years or two in proper cases, the
present spouse may marry again if h/she (i) has a well-founded belief that his spouse is dead. (ii)
procures judicial declaration of presumptive death, (iii) at the time of marriage, is in good faith
together with the subsequent spouse, otherwise the subsequent marriage shall be void.
In these two cases, the good faith of one party is sufficient to make the
marriage valid. If both are however in bad faith the marriage is void.
8. GOOD FAITH OF BAD FAITH HOWEVER MATTERS IN THE PROPERTY DISPOSITION OF PROPERTY in
a void marriage. As a rule, in a void marriage, the property regime is co-ownership. In the disposition of
the co-ownership at the time of the liquidation, whether or not one of the parties is in bad faith is a basic
consideration. This is in accordance to Article 147 and 148. Hence, when only one of the parties to a void
marriage is in good faith the share of the party in bad faith in the co-ownership shall be forfeited in favor
of their common children. In case of default, waiver by any or all of the common children or their
descendants, each vacant share shall belong to the surviving descendants. In the absence of the
descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon
termination of the co-habitation.
9. The preceding rule applies to all void marriages except to subsequent void marriage due to the failure of
the party to get a judicial declaration of nullity, pursuant to Article 40. In this case Article 50 will apply not
Article 147 and 148
10. The action to declare a marriage void may be filed by either party, even the psychologically incapacitated.
In which case, even the wrongdoer can still apply for nullity. Nonetheless, a party who knew that he or she
was entering into a void marriage before its solemnization may be held for damages by the other party
under the provisions of Articles 19, 20, 21 of the Civil Code.
11. COLLATERAL AND DIRECT ATTACK: AS A GENERAL RULE, a void marriage can be collaterally
attacked. This means that nullity of a marriage can be asserted even if it is not the main or principal issue
of a case and that no previous judicial declaration of nullity is required by law with respect to any other
matter where the issue of voidness of a marriage is pertinent or material either directly or indirectly.
Examples:
a. In an inheritance case, it is important to show that certain children should get less
inheritance because they are illegitimate due to a void marriage of the decedent with their
mother. Any proof to show the nullity of marriage can be presented in court. There is no
need to produce a judicial declaration of nullity to prove that the marriage is void.
b. A child support case: The petitioner filed a complaint for support against her
husband. The husband interposed an affirmative defense claiming that the petitioner
and he were not married. The SC ruled that while the case was one of support, the lower
court can make a declaration that the marriage was void to determine the rights of the
child to be supported. The SC rejected the contention that a separate case for judicial
declaration of nullity must be filed first before the lower court in case for support can
rule that the marriage was void.
12. There are however, 3 CASES WHERE A DIRECT ATTACK NOT COLLATERAL ATTACK on the nullity of
marriage must first be undertaken so that the proper effects provided by law can appropriately apply.
These are:

42

(Direct attack)- filing a case precisely putting forth as principal issue the nullity of marriage
- A suit precisely filed to assail the validity of a marriage or to assert the nullity of a marriage
for the court to issue the proper judicial declaration)
a. Article 40- Under this article if a persons has a void marriage and he or she wants to remarry, he
or she must first file a civil case precisely to obtain a judicial declaration of the nullity of the first
marriage before she or he can remarry. In short, for purposes of remarriage, the only acceptable
proof to show the voidness of the first marriage is a judicial declaration issued by the court
directly stating that the first marriage is null and void.
b. Ninal vs. Bayadog case: The SC ruled that for purposes other than remarriage, no judicial
declaration of nullity is necessary; the court may pass upon the validity of a marriage even in a
suit not directly instituted to question the same. BUT: When such need arise a final judgment of
a declaration of nullity is necessary even if the purposes if other than to remarry.
c. Article 50 in relation to Article 43 (3) and in Article 86 (1)- If a donor desires to revoke a
donation (in consideration of marriage) given to one or both of the married couple on the
ground that the marriage is void, it is important that a judicial declaration of nullity of marriage
must first be obtained. It is not enough that the marriage is void pursuant to law. There must
first be civil suit filed by either of the parties in the void marriage to have the marriage judicially
declared null and void. The issuance of a valid judicial declaration of nullity will give the donor
the cause of action to revoke donation or to consider the donation revoked by operation of law
13. Good Faith marriage: If the marriage were contracted with either or both of the parties believing in good
faith that the solemnizing officer had the legal authority to do so when in fact he or she has none, then the
marriage shall be valid.
Good faith- an honest and reasonable belief that the marriage was valid at its
inceptions and that no legal impediments exists to impair its validity
Good faith is always presumed until the contrary is shown.
14. Bigamous or polygamous marriage: It is important to note that in a bigamous marriage, the first marriage
must be valid. If the first marriage is void and a subsequent marriage is contracted without prior judicial
declaration of nullity of the first marriage, the subsequent marriage is also void because it violates Article
40 in relation to Article 52 and 53. ( But it should not be considered as bigamous, as was pronounced by the
SC in the case of Nicdao Carino vs.Carino February 2, 2000-to be discussed under article 40).
15. Mistake in identity:
a. This ground goes into the very essentials of a valid marriage as there is complete absence of
consent. The important thing to remember here is that the contracting party absolutely did not
intent to marry the other as the same is not the person he or she actually knew before the
marriage.
b. Mistake in identity as a ground for nullity covers those situations in which there has been a
mistake on the part of the party seeking the nullification of marriage as to the actual physical
identity of the other party.
c. This does not include mistake in the name, character of the persons, or in his or her attributes,
his or her age, religion, social standing, pedigree, pecuniary means, temperaments,
acquirements, condition in life or previous habit.
Q; WHAT IS PSYCHOLOGICAL INCAPACITY AS A GROUND FOR NULLITY?
ANS:
Article 36 states;
-A marriage contracted by any party
- who, at the time of the celebration,
-was psychologically incapacitated
-to comply with the essential marital obligations of marriage,
-shall likewise be void
- even if such incapacity becomes manifest only after its solemnization.
(As amended by Executive Order 227)
NOTES:
1.
2.
3.

4.

The law does not define what psychological incapacity is and therefore, the determination is left solely
with the court on a case-to case basis, on the facts of the case, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts.
Despite the absence of a definition on psychological incapacity for purposes of keeping the situations
contemplated by the law included in the definition, it has to be taken in its proper context, not to be
equated with insanity or total mental inability to function in all aspects of human life.
This ground is restricted to psychological incapacity to comply with the essential marital obligations. The
malady or mental disposition of one or both of the spouses must be such as to seriously and effectively
prevent them from having a functional and normal marital life clearly conducive to bringing up a healthy
personal marital relationship within the family which is necessarily for its growth.
This involves a senseless, protracted and constant refusal to comply with the essential marital obligations
by one or both of the spouse although she, he are physically capable of performing such obligations (
Ching Ming Tsoi vs. CA). The spouses simply refuse to perform. It is not mere stubborn refusal but can be
attributed to psychological causes.

43

5.

Hence, while a person may be truly very efficient in life, he or she can still be considered as a completely
irresponsible persons with regard to her married life if he or she spends almost the whole day working
and not minding her/ his family ( Tongol vs. Tongol, October 19, 2007)
6. The fact that a person really loves his or her spouse and children does not constitute a bar to successfully
invoke this ground if it is clearly shown that, despite this very authentic love, he or she is so absolutely
indifferent with respect to his or her duties as a father or mother as the case may be.
7. The psychological incapacity refers to the lack of appreciation of ones marital obligation and it does not
refer to mental faculties and has nothing to do with consent, it refers to obligations attendant to marriage.
While insanity can be a good indicator of psychological incapacity it is not the pre-requisite for the
existence of the ground for nullity. While insanity is curable and there are lucid intervals psychological
incapacity is not.
8. Psychological incapacity to perform the essential marital obligations must be present at the time of the
marriage ceremony, but can be manifested later on during the marriage. This cannot be cured by
cohabitation or even bearing of a child.
9. Psychological incapacity includes selective impotency where one is impotent with one but not with the
other.
10. This incapacity consists of the following;
a. True inability to commit to the essentials of marriage. Some psychosexual disorders and other
disorders of personality can be psychic cause of this defect
b. This inability to commit oneself must refer to the essential obligations of marriage; the: the conjugal
act, the community life and love, the rendering of mutual help, the procreation and education of
children.
c. The inability must be tantamount to psychological abnormality. The mere difficulty of assuming these
obligations, which could be overcome by normal effort, obviously does not constitute incapacity. The
canon contemplates a true psychological disorder which incapacitates a person form giving what is
due.
11. The state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism merely renders the marriage voidable. If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the marriage they become grounds for legal
separation. BUT: these this does not preclude the possibility of these various circumstances being
themselves, depending on the degree and severity of the disorder, indicia of psychological disorder.
Q: WHAT ARE POSSIBLE MEANS IN PROVING PSYCHOLOGICAL INCAPACITY?
ANS: The following are the means but not limited to the enumeration below;
1. Alleging that respondent was psychologically incapacitated to comply with the essential obligations of
their marriage in that she was unable to understand and accept the demands made by her professionupon petitioners time and efforts so that she frequently complains of his lack of attention to her and her
mother whose intervention caused the petitioner to lose his job.
2. One should see if the husband or wife observes her duty towards her spouse, the children and family.
3. Article 220 221 and 225 enumerates the rights and duties liabilities of parents relative to their parental
authority over their children. Failure to comply with these rights duties and obligations is a good indicator
of psychological incapacity to perform marital obligations.
4. The fear of a wife who is afraid of children to engage in sexual intercourse is an indicator of psychological
incapacity.
5. Unreasonable attachment by the spouse to his or her family or to his friends or barkada is also a good
indicator of psychological incapacity.
6. Actual breakdown of family life characterized by separation of husband and wife is also good indication of
the presence of this ground. But separation and abandonment alone is not conclusive proof of
psychological incapacity.
7. Isolated idiosyncrasies of a spouse are not themselves manifestations of psychological incapacity to
perform the essential obligations.
8. Dependent personality disorder, mixed personality disorder is consistent with psychological incapacity to
perform the essential marital obligation
9. Norms used for determining psychological incapacity should apply to any person regardless of nationality.
Q: WHAT IS THE PROBATIVE VALUE OF THE EXPERT TESTIMONY OF A PSYCHOLOGIST OR PSYCHIATRIST
EVALUATING THE BEHAVIORAL PATTERN OF THE PERSON ALLEGED TO BE PSYCHOLOGICALLY
INCAPACITATED?
ANS:
Personal medical or psychological examination of respondent is not a requirement for a declaration of
psychological incapacity and that it is not a condition sine qua non for such declaration, though such testimony
may still be helpful. This is so, because the decision of the court will be based on the totality of the evidence.
Q: ARE THE JURISPRUDENTIAL GUIDELINES IN THE MOLINA CASE ( SEE THE GUIDELINES IN REPUBLIC OF
THE PHILIPPINES VS. CA AND MOLINA FEBRUARY 13 1997), TO BE APPLIED RIGIDLY?
ANS:
The many cases in Supreme Court had been using the guidelines rigidly but in Te vs Te the SC pronounced that the
application of such standards must be case to case basis. Such rigid applications were founded on the deluge of

44

petitions for the dissolution of marital bonds. But in Te vs Te, it was held that dissolving marital bonds on account
of either partys incapacity is not demolishing the foundation of families but is actually protecting the sanctity of
marriage because it refuses to allow a person afflicted with psychological disorder from remaining in that sacred
bond. This does not mean however, that there is an abandonment of the Molina guidelines but simply emphasizing
other perspectives as well.
Q: ARE MORAL, EXEMPLARY AND ATTORNEYS FEES AWARDABLE IN CASES INVOLVING PSYCHOLOGICAL
INCAPACITY?
ANS:
In Buenaventura vs., CA March 31, 2005 moral damages, exemplary and attorneys fees were disallowed, as
psychological incapacity negates bad faith which is essential element in awarding moral, exemplary damages.
Q: WHAT ARE INCESTUOUS MARRIAGES, AND WHY ARE THEY PROHIBITED?
ANS:
As provided in Article 37;
Marriages between the following are incestuous and void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
NOTES:
1. The reasons why incestuous marriages are prohibited are.
a. Incestuous marriages are abhorrent to nature, not only of civilized men, but of barbarous and semicivilized peoples
b. It tend to the confusion of rights and duties incident to family relations
c. Science and experience have established beyond cavil that such marriages often result in deficient and
degenerate offspring which, if occurring to any great extent, would amount to serious deterioration of the
race.
d. Social prohibitions against incest promote the solidarity of the nuclear family. The essentials of a nuclear
family are a man and a woman in a relation of sexual intimacy and bearing a responsibility for the
upbringing of the womans children. The prohibition against incest controls sex rivalries and jealousies
within the family unit. It inhibits completing relations of sexual intimacy that would disorganize the family
structure and undermine the familys role as the unit of socialization and personality development.
Q: WHAT ARE THE VOID MARRIAGES BY REASON OF PUBLIC POLICY AND WHY ARE THEY PROHIBITED?
ANS:
Article 38 explains;
The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or
her own spouse
NOTES:
1. All the marriages enumerated above will not serve the fundamental objective of nurturing a stable family
unit that can effectively be the foundation of society.
2. Marriage between collateral relatives up to the 4 th civil degree may disturb the policy of the state as it may
likely result though not of the same gravity, in the dangers and confusion attendant in incestuous
marriages.
3. The enumeration under this provision is exclusive, following the general rule that only those declared by
law as void marriages should be treated as such. Therefore a guardian and his ward, a principal and his
agent can validly be married.
4. Relationship by affinity: Step-parents and step-children as well as parents-in-law and children-in-law
are related by affinity. The doctrine of affinity grew out of the canonical maxim that marriage makes
husband and wife one. The husband has the relations by affinity to his wifes blood relatives as she has to
them by consanguinity.
5. The termination of marriage likewise terminates the relationship bonded by affinity. So said persons
become strangers to each other. This will be allowed to marry each other legally., like step-parents and
step-children, parents-in-law and children-in-law.
Two conflicting views as to this matter:

45

1. Bad View: relationship of affinity continues whether or not there children

2. Better View: relationship of affinity will continue only if there are children,
but if there are no children the relationship of affinity will be dissolved.

6. Adoptive relationship:
The adopted child however can marry the following; ( of the adopter)
a. Parents
b. Illegitimate child
c. Other relatives whether by consanguinity or affinity of the adopter.
The adopter can validly marry the following of the adopted child;
a. legitimate or illegitimate of the adopted child
b. natural parents
c. other relatives whether by consanguinity or affinity of the adopted
7. Since the law qualifies the spouse of either adopted and adopter as a SURVIVING spouse this can only
imply that the marriage was terminated through death. Therefore, if the marriage was nullified or
annulled, the adopted can marry the previous spouse of the adopter because such spouse is not a
surviving spouse. This goes the same with the adopter.
8. Intentional killing of spouse: in here it must be emphasized that in killing his or her spouse, the guilty
party must be animated by an intention to marry another person. Thus if a wife kills her husband because
he was an incorrigible philandered and thereafter marries her lawyer, the marriage is valid.
9. No prior criminal conviction by the court for the killing is required by law. Mere preponderance of
evidence is required to prove the killing.
10. This rule applies likewise to a person who kills the spouse of another to marry the latter.
Q: IS THERE A PRESCRIPTIVE PERIOD WITHIN WHICH TO FILE AN ACTION FOR THE DECLARATION OF
NULLITY OF MARRIAGE OR TO INVOKE SUCH NULLITY AS A DEFENSE?
ANS:
None. As provided in Article 39;
The action or defense for the declaration of absolute nullity of marriage shall not prescribe.
NOTES:
1. Judicial decree of nullity of a marriage does not legally dissolve a marriage because such marriage is invalid
from the beginning and therefore, being non-existent cannot be dissolved. The judicial; decree merely declares
or confirms the voidness, non-existence or incipient invalidity of marriage. Hence the decree is known as
JUDICIAL DECLARATION OF NULLITY OF MARRIAGE DECREE.
2. The SC resolution in A.M No. 02-11-10 (March 15, 2003) had abandoned a ruling on Ninal vs. Bayadog,(a
case, where the children of a deceased spouse were the ones who filed for the case of declaration of Nullity). In
the mentioned resolution, it provides that only the husband and wife can file the case, if filed, the case will be
closed if during its pendency either the husband or wife should die. Before, any interested party can file a
direct case for nullity of marriage but with the SC resolution only the husband and wife have the legal standing
to file such case. BUT REMEMBER: That still a void marriage can be collaterally attacked by any interested in
any proceeding where the determination of marriage is necessary to give rise to certain rights or to negate
certain rights.
3. If the marriage was celebrated prior the effectivity of the Family code on August 3, 1988, and the ground for
declaration of nullity is psychological incapacity, such action or defense must be invoked or filed within 10
years from August 3, 1988 or up to August 1 1998.
Q: WHY IS THERE A NEED FOR THE JUDICIAL DECLARATION OF NULLITY?
ANS:
As provided in Article 40;
-The absolute nullity of a previous marriage
-may be invoked for purposes of remarriage
-on the basis solely of a final judgment
-declaring such previous marriage void
NOTES:
1. If a marriage is void ab initio, any one of them cannot contract a subsequent marriage without previous
judicial declaration of nullity of the previous marriage.
2. In so far as Article 40 is concerned, if a judicial declaration of nullity were obtained and not registered
with the local civil registrar and the liquidation, partition and distribution of the properties, if any, were
not also recorder in the proper registry of property in accordance with Article 52 and 53, any subsequent
marriage is void ab initio.
3. Article 40 and BIGAMY: If the first marriage is void and a party to that first marriage subsequently
remarries without obtaining a judicial declaration of nullity of the marriage, there is no doubt that the
subsequent marriage is void. It is void not because of bigamy but because it failed to comply with the
requirements under article 40.
A Bigamous marriage involves a situation where the first marriage is valid and
thereafter one of the parties contracted a subsequent marriage.

46

4.

NOTE HOWEVER: The case of Nicdao Carino, vs. Carino where the SC while
acknowledging the previous marriage to be void for having no marriage license,
the subsequent marriage of one of the parties was considered by the court as
bigamous. They presumed that, though the first marriage is void, it was still
presumed to be valid considering that there was no judicial declaration of nullity
of the first marriage.
STA MARIAs OPINION: This certainly obfuscates the difference between Article
40 and 41.Still the difference of the two Articles must be maintained.
A void marriage is a defense in a criminal bigamy case regardless of whether or not a judicial declaration
of its nullity has been obtained. But the SC in Mercado vs. Mercado, they said that bigamy is committed
for as long as a married person contracted another marriage without complying with Article 40,
regardless whether the first marriage is void or at least annullable. This is certainly wrong, because,
criminal bigamy is not determined whether or not a judicial declaration of nullity has been obtained as to
the first marriage.

Q: WHAT ARE BIGAMOUS MARRIAGES AND IS THERE ANY VALID BIGAMOUS MARRIAGE UNDER THE LAW?
ANS:
Article 41 states;
-A marriage contracted by any person
-during subsistence of a previous marriage shall be null and void,
- unless before the celebration of the subsequent marriage,
-the prior spouse had been absent for four consecutive years
-and the spouse present has a well-founded belief
that the absent spouse was already dead.
In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391 of the Civil Code,
an absence of only two years shall be sufficient.
-For the purpose of contracting the subsequent marriage
-under the preceding paragraph the spouse present must institute a summary proceeding
-as provided in this Code for the declaration of presumptive death of the absentee,
-without prejudice to the effect of reappearance of the absent spouse.
Also;
Article 42 provides;
-The subsequent marriage referred to in the preceding Article
- shall be automatically terminated by the recording of the affidavit of reappearance
-of the absent spouse, unless there is a judgment annulling the previous marriage
-or declaring it void ab initio.
-A sworn statement of the fact and circumstances of reappearance
-shall be recorded in the civil registry of the residence of the parties
-to the subsequent marriage at the instance of any interested person,
-with due notice to the spouses of the subsequent marriage
-and without prejudice to the fact of reappearance being judicially determined
-in case such fact is disputed.
NOTES:
1. Judicial declaration of presumptive death is merely a statement to the effect that the prior spouse is
merely presumed dead. The declared presumption will still only be prima facie and can be overthrown by
evidence.
2. Unless there is a judgment annulling the previous marriage or declaring it void, automatic termination of
the subsequent marriage can be obtained by the RECORDING OF THE AFFIDAVIT OF REAPPEARNCE of
the absent spouse in the civil registry of the residence of the parties to the subsequent marriage. This is
the only instance where marriage is terminated extra-judicially.
3. If however, the spouse reappeared and he or she or any interested party does not file an affidavit or sworn
statement with the civil register of the fact of reappearance, there will technically two valid marriages- a
valid bigamous marriage. However as between the two marriages, the law shall continue to protect the
second marriage rather than the first. This is so, because, if indeed the reappearing spouse wants to assert
his or her rights, he could easily file the affidavit of reappearance. If he does not do so, he cannot just cause
a disturbance in the subsequent marriage
4. LIQUIDATION OF THE PROPERTIES OF THE FIRST MARRIAGE:
a. After the issuance of the judicial declaration of presumptive death, the properties of the first marriage
should be liquidated according to the provisions of Article 103 and 130, provided of course that the
first marriage is valid.
b. If there will be no liquidation and the spouse present immediately remarries, the property regime that
will apply to the subsequent marriage will be complete separation of property.

47

c.
d.

5.
6.
7.
8.

If there will be will be a liquidation, the parties may agree in the settlement as to what type of regime
will govern their marriage, and in the absence of such settlement or the settlement be void, the
spouses shall be governed by absolute community of property regime.
If the subsequent marriage is void then the rules on co-ownership shall apply.

For Purposes of opening the succession of the absent spouse after the community property of the first
marriage has been liquidated, the rules shall be followed;
(i)10 years absence
(ii)5 years absence-If disappeared at the age of 75
(iii)4 years- Where the risk of death is high according to Article 391 CC
But if the person is alive, he shall be entitled to the balance of his estate after payment of all his debts.
The balance may be recovered by motion in the same proceeding.
Judicial declaration of presumptive death is the best evidence of the well-founded belief on the part of the
present spouse that the absent spouse is dead. It immunizes the present spouse form being charged of
bigamy, adultery or concubinage.
Mere re-appearance renders immediately the judicial declaration of presumptive death functus officio. The
recording of the affidavit of reappearance is that which terminates the subsequent marriage.
The termination of the subsequent marriage by the recording of the affidavit of reappearance shall be
without prejudice to the outcome of any judicial proceeding questioning such reappearance.
In case no affidavit of reappearance is filed and recorded, still the reappearing spouse cannot remarry. If
he wants to remarry validly he has to file a nullity or annulment case against the present spouse if there
are grounds available, if no grounds then he will live forever as a married person to his first spouse who is
a spouse of another. The subsequent spouse likewise cannot file for legal separation on the ground of
sexual infidelity against the spouse having amorous relationship with the reappearing spouse who did not
execute an affidavit of reappearance.

Q: WHAT WILL BE THE EFFECTS OF THE TERMINATION OF THE SUBSEQUENT MARRIAGE IN A VALID
BIGAMOUS MARRIAGE, AND WHAT IF THE SUBSEQUENT MARRIAGE BE CONSIDERED VOID?
ANS:
Article 43states;
The termination of the subsequent marriage referred to in the preceding Article shall produce the following
effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent
spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in
any insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession.
Also
Article 44 provides;
-If both spouses of the subsequent marriage acted in bad faith,
-said marriage shall be void ab initio
-and all donations by reason of marriage
-and testamentary dispositions made by one in favor of the other
-are revoked by operation of law
NOTES:
1. Status of children: Children conceived during the subsistence of the subsequent marriage and before
termination of the same shall be legitimate. This status will remain even if one contracting party to the sub
sequent marriage is in bad faith. However if both are in bad faith as in Article 44 then the children are
illegitimate, since the marriage is void ab initio.
2. Effect of the termination on the property regime: The property regime shall be dissolved and
liquidated. After payments of debts and obligations, the spouses shall divide the property equally or in
accordance with the sharing stipulated in a valid marriage settlement, unless there has been a voluntary
waiver of share by either of the spouses upon the judicial separation of the property.
For purposes of computing the net profits subject to forfeiture, the said profits shall be the
increase in value between the market value of the property at the time of the celebration of
marriage and the market value at the time it is dissolved.
3. Subsequent marriage contracted in bad faith: If both spouses contracted the subsequent marriage in
bad faith then the subsequent marriage is void ab initio. If only one spouse is in bad faith and the other
whether it be the would-be spouse or the present spouse still the marriage is valid. If only the present

48

spouse is in bad faith and the other contracting party is in good faith the marriage is still valid. Good faith
of the present spouse must be present up to the time of the celebration of the subsequent marriage. The
present spouse must not be in bad faith up to the time of the solemnization of the subsequent marriage.
Q: WHAT ARE THE EXCLUSIVE GROUNDS FOR ANNULMENT?
ANS:
Article 45 in relation to Article 46 speaks of;
Article 45;
A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person
having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the
other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity
continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be
incurable.
In article 46 it states that;
Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as
will give grounds for action for the annulment of marriage.
NOTES:
1. Unlike void marriage which is invalid from the beginning, an annullable or voidable marriage is
considered valid until it is annulled. Grounds for annulment are only those specified by law.
2. Parental consent: The law considers those who are 18 years but below 21 as not possessing the degree
of maturity to be able to comprehend the consequences and serious responsibilities of marital relations,
hence, the need for parental consent. With the absence of the parental consent in the marriage of the
persons who are 18 but below 21, such marriage is annullable at the instance of the party who requires
parental consent
3. Unsound mind: To invoke this, there must be such a derangement of the mind to prevent the party from
comprehending the nature of the act and from giving to it his free intelligent consent. Any form of mental
disease that does not render the afflicted party incapable of understanding or assenting to the marriage
contract cannot be used as basis for attacking the validity of marriage. But marriages are not invalidated
by mere weakness of the mind, dullness of intellect, nor by eccentricities or partial dementia.
4. FRAUD: refers to the non-disclosure or concealment of certain circumstances which are materially
affecting the essence of marriage. There is no fraud when there is no concealment.
a. Non-disclosure of a husbands premarital relationship with another woman is not ground for
fraud.
b. Non-disclosure of Previous conviction: The party must have been convicted by final judgment
of crime involving moral turpitude. Moral turpitude includes everything which is contrary to
justice, honesty or good morals.
c. Concealment of pregnancy as fraud: (i)The law limits the fraud only to the wife not including
the husband. This is so because the fact of the husband having a child in concealed prior
relationship is speculative and difficult to prove. Concealment must be in bad faith. Meaning, if the
wife had a good founded belief that before she married her husband she believes, that she is
barren or other circumstances but it turned out she is not, the marriage cannot be annulled. (ii)
Mere pregnancy alone at the time of marriage is not sufficient to successfully annul a marriage.
There must be concealment and the concealment is in bad faith. (iii) If the woman did not
expressly inform the man of her pregnancy but such physical condition was readily apparent to
the man ( 7 months pregnant), he cannot claim lack of knowledge. But mere four months
pregnancy cannot be conclusive as to say it is apparent especially as when the woman is naturally
plump or fat

49

d.

e.

f.
g.

h.

5.

6.

Not falling with this: Is if a woman misrepresented to her fiance that she was
pregnant for the purpose of inducing him to marry her and it turned out that she
is not pregnant, the man cannot ask for the annulment of the case under this
rule.
Concealment of sexually transmissible disease regardless of nature as fraud: It is enough
under this ground that there is concealment of STD at the time of marriage regardless as to
whether it is less virulent character or it need not be incurable. Consummation is not required for
this ground to exist.
Concealment of drug addiction and habitual alcoholism: It is not necessary that he is
constantly or universally drunk, nor that he have more drunken than sober hours. It is enough
that he has habits do firmly fixed upon him that he becomes drunk periodically, or that he is
unable to resist when the opportunity and temptation presented.
Concealment of homosexuality or lesbianism: The very institution of marriage is based on
difference of sexes both in physical and psychological constitution of parties
Vitiated consent: There is intimidation when one of the contracting parties is compelled by a
reasonable and well-founded fear of an imminent and grave evil upon his person or property. It
must come from an unlawful act ( an act to file a criminal complaint against a person is a lawful
act) So, when a man who had previous carnal knowledge of a girl, married her under the threat to
oppose admission to the practice of law for immorality if he did not marry her, he cannot seek
annulment of marriage on this ground. Provided the previous carnal knowledge is true. But if not
true, he can annul such marriage.
Incapacity to consummate: (i) The permanent inability on the part of one of the spouses to
perform the complete act of sexual intercourse and this must exist at the time of marriage
ceremony. It must be continuous and appears to be incurable. This may due to physical or
structural defect in the anatomy of one of the contracting parties or chronic illness and inhibitions
or fears arising from psychological conditions. (ii) Mere epilepsy is not sufficient to show
incapacity
Burden of Proof: Whoever alleges incapacity has the burden to prove the same, since
potency/virility is always presumed.
But, under triennial cohabitation rule: The presumption of impotence may arise if the situation
comes within the purview of this rule. If the wife remains virgin for at least 3 years from the time
the spouses started cohabiting, the husband must show that he was not impotent during the said
period and the burden will be upon him to overcome the presumption of impotence.
Sterility is not impotency: A sterile person can successfully engage in sexual coition. It is not a
ground for annulment. Hence, inability to bear a child since the ovaries of the wife were removed
prior the marriage; said marriage is still not annullable. The test is not the capacity to reproduce
but the capacity to copulate

SEXUALLY TRANSMISSIBLE DISEASE NOT CONCEALED and INCURABLE: It can still be ground for
annulment but unlike in Fraud, it must be found to be serious and incurable. If the venereal disease is
obtained after the marriage by any spouse, it cannot be ground for annulment. However it can be used as
evidence of sexual infidelity which is a ground for legal separation.
RATIFICATION: This applies only to no consent, unsound mind, fraud and vitiated consent, but it does not
apply to incurable physical incapacity to consummate or the affliction of an incurable STD. Free
cohabitation will not ratify the marriage.

Q: WHO MAY FILE ANNULMENT CASES?

ANS:
ARTICLE 47 provides for the answer;
The action for annulment of marriage must be filed by the following persons and within the periods indicated
herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her
consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal
charge of the minor, at any time before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's
insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of
either party, or by the insane spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Articles 45, by the injured party, within five years after the discovery of
the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage
NOTES:
1. Annulment cases are actions in rem. Jurisdiction over the same by the RTC depends upon the nationality of the
parties not the place of the celebration of marriage
2. Parents, guardian and persons having legal charge of the child can only file the case only in cases provided
under the law and nothing more.

50

3.

4.

If the sane spouse knew that his or her spouse has already been insane previous to the marriage, such sane
spouse cannot file the suit for annulment as she is estopped. If the sane spouse only knew of the insanity after
the marriage ceremony she has the legal standing to file the suit at anytime prior to the death of the insane
spouse.
In cases provided for in 3, 4, 5, 6 the person having the legal standing to file the suit is the injured party. And
even if the injured party was married under the circumstances in 3,4,5,6 and such injured party became
insane, the parents, guardian and person having legal charge of him cannot file the case for him.

Q: WHAT IS THE ROLE OF THE FISCAL OR THE SOLICITOR GENERAL IN ANNULMENT CASES, AND WHO
SHOULD PROVIDE FOR THE NEEDS OF THE FAMILY DURING THE PENDENCY OF THE CASE?
ANS:
Article 48 states;
-In all cases of annulment or declaration of absolute nullity of marriage,
-the Court shall order the prosecuting attorney or fiscal
- assigned to it to appear on behalf of the State
- to take steps to prevent collusion between the parties
-and to take care that evidence is not fabricated or suppressed.
-In the cases referred to in the preceding paragraph,
-no judgment shall be based upon a stipulation of facts or confession of judgment
Article 49 provides;
-During the pendency of the action
-and in the absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support of the spouses
-and the custody and support of their common children.
-The Court shall give paramount consideration to the moral and material welfare
-of said children and their choice of the parent with whom they wish to remain
-as provided to in Title IX.
-It shall also provide for appropriate visitation rights of the other parent.
NOTES:
1. In annulment cases the fiscal or the SOLGEN can also be required to submit memorandum aside from
making sure that there is no collusion and that the evidence is not fabricated.
2. Active participation of the prosecuting attorney is a must. Mere filing of manifestation and making of
statement by the fiscal that there is no collusion and thereafter not been heard anymore is insufficient and
despite a judgment rendered by the court, the case will be remanded to the court of origin for further
proceeding, except when;
3. When the case is characterized by a no-holds barred contest as when there was a heatedly contest
between the defendant and the plaintiff manifested by the several pleading made by the parties, the nonintervention of the fiscal to assure lack of collusion is not fatal to the validity of the proceeding especially
when it was not shown that evidence was fabricated or depressed.
4. Collusion occurs where, for purposes of getting annulment or nullity decrees, the parties came up with an
agreement making it appear that the marriage is defective due to the existence of any of the grounds for
the annulment of marriage although it was not.
5. Mere failure to file an answer by the defendant whether deliberate or not cannot be taken as a conclusive
evidence of collusion. However, different is the case when the parties agree for the non-appearance of a
party in court, in such case, there is collusion.
6. Stipulation of facts: is an admission by both parties made in court agreeing to the existence of the act
constituting the ground for annulment or for the declaration of nullity of the marriage. Confession of
judgment: admission in court by the respondent or defendant admitting fault as invoked by the plaintiff
to sever the marriage ties. These cannot be the sole basis of nullity decree or annulment. However, if
sufficiently supported or corroborated by other independent substantial evidence to support the main
ground relied upon, it may warrant annulment of declaration of nullity. Furthermore, admission or
confession by the defendant outside of the court is not excluded.
7. Support pendente lite and custody pendente lite: These may be ordered by the court during the
pendency of the suit. In nullity cases however, where the court provisionally gives support pendente lite to
a spouse who at the end of the case, has been found to be not entitled to the support because his or her
marriage with the one giving the support is void ab initio. The court shall order the recipient to return to
the person who furnished the support the amounts already paid with legal interest
8. Visitorial rights: while custody of the child may be awarded to a particular parent, this does not deprive
the other present from exercising his or her visitorial rights unless the court for some compelling reasons
deprives him or her of this right. But even if there is deprivation of visitorial rights this can be reinstated if
it is shown that the grounds for deprivation have become harsh or not anymore present.
Q: WHAT SHOULD BE CONTAINED IN THE FINAL JUDGMENT FOR ANNULMENT OR NULLITY OF MARRIAGE?
ANS:
Article 50 states;

51

-The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43
-and by Article 44 shall also apply in the proper cases to marriages
-which are declared ab initio or annulled by final judgment under Articles 40 and 45.
-The final judgment in such cases shall provide for
-the liquidation, partition and distribution of the properties of the spouses,
- the custody and support of the common children,
-and the delivery of third presumptive legitimes,
-unless such matters had been adjudicated in previous judicial proceedings.
-All creditors of the spouses
-as well as of the absolute community or the conjugal partnership
-shall be notified of the proceedings for liquidation.
-In the partition, the conjugal dwelling and the lot on which it is situated,
-shall be adjudicated in accordance with the provisions of Articles 102 and 129.
In article 51 it provides;
-In said partition, the value of the presumptive legitimes
-of all common children, computed as of the date of the final judgment of the trial court,
-shall be delivered in cash, property or sound securities,
-unless the parties, by mutual agreement judicially approved,
- had already provided for such matters.
-The children or their guardian or the trustee of their property
- may ask for the enforcement of the judgment.
-The delivery of the presumptive legitimes herein prescribed
-shall in no way prejudice the ultimate successional rights of the children
-accruing upon the death of either of both of the parents;
- but the value of the properties already received
-under the decree of annulment or absolute nullity
-shall be considered as advances on their legitime.
NOTES:
1.

2.
3.
4.
5.

The final judgment should it involve the dissolution of the conjugal or absolute property regime or the coownership, the liquidation, partition and distribution of the same shall be provided for in said judgment
unless such matter had been adjudicated in previous judicial proceedings or the parties had agreed in
their marriage settlement executed prior their marriage.
This article, including Articles 50, 51, and 52 (requiring the delivery of the legitime) applies when the
marriage is considered void in violation of Article 40, but other void marriages are not covered by it.
In all void marriages except the subsequent marriage that occurs as a result of the non-observance of
Article 43, the property regime shall be by the rules on co-ownership provided for in Article 147 and
148.
General Rule: Delivery of the presumptive legitime is not required. Exception: Article 42 paragraphs 2, 3,
4, 5 and by the explicit terms of Article 50, to voidable marriages under Article 45 and exceptionally to
void marriages under Article 40.
The liquidation of the property of a void marriage under Article 40 will be done as if the property
relationship is the absolute community of property or the conjugal partnership of gains. It shall follow the
liquidation procedures under Article 102 for the absolute community of property and Article 129 to
conjugal partnership of gains.

Q: WHAT SHALL BE THE EFFECT OF NON-RECORDING IN THE CIVIL REGISTRY AND REGISTRY OF
PROPERTY THE JUDGMENT OF ANNULMENT OR OF ABSOLUTE NULLITY?
ANS:
Article 52 and 53 state;
Article 52:
-The judgment of annulment or of absolute nullity
- of the marriage, the partition and distribution of the properties of the spouses
- and the delivery of the children's presumptive legitimes
-shall be recorded in the appropriate civil registry and registries of property;
-otherwise, the same shall not affect third persons
Article 53:
-Either of the former spouses may marry again
-after compliance with the requirements of the immediately preceding Article;
-otherwise, the subsequent marriage shall be null and void.

52

NOTES:
1.
2.

3.
4.

Such recording is necessary to bind third persons and for the parties to be able to contract a subsequent
marriage.
Liquidation, partition and distribution and the delivery of presumptive legitime is material only when the
previous marriage had been judicially declared as annulled or nullified. But when the previous marriage
was terminated by death of one spouse, a subsequent marriage is valid even if it is without the
requirement of liquidation, partition, distribution and delivery of presumptive legitimate. In here if the
surviving spouse remarries without liquidation, the property regime between them in the subsequent
marriage will be complete separation of property.
The judgment of annulment or declaration of nullity must be registered in the city or municipality where
the court that issued the decision the decision is functioning and also the local civil registry of the
municipality or city where the marriage was solemnized.
The registries of property referred to in Article 52 shall be the registries of properties where the
properties are located. If there be properties located in various places, registration must be made in each
of the registries of properties where each property is located.

Q: WHAT SHALL BE THE STATUS OF CHILDREN BORN OR CONCEIVED BEFORE THE MARRIAGE WAS
ANNULLED UNDER ARTICLE 36 AND THOSE BORN OF THE SUBSEQUENT MARRIAGE UNDER ARTICLE 53?
ANS:
Article 54 states;
-Children conceived or born before the judgment of annulment or absolute nullity
-of the marriage under Article 36 has become final and executory
-shall be considered legitimate.
-Children conceived or born of the subsequent marriage under Article 53
-shall likewise be legitimate.
NOTES:
1. Generally children conceived and born outside a valid marriage or inside a void marriage are illegitimate.
Children conceived or born inside an annullable or voidable marriage are legitimate, while those
conceived and born inside a void marriage are illegitimate except those provided for under Article 36 and
53.
2. Judicial decree of nullity becomes final after the lapse of 15 days from the receipt of the parties of the
decree, unless in the meantime the decree has been appealed to a higher court. Hence without the decision
becoming final and the parties whose marriage was subject of nullification had sexual intercourse and
resulted to a conception of a child, the child will be legitimate.
3. Under Article 36 in relation to Article 54, those children born and conceived before the marriage
ceremony of the parents shall still be considered illegitimate, the subsequent marriage of such parents will
legitimate the child pursuant to Article 178 of the FC. If such marriage is declared void because of Article
36 the child conceived and born before the marriage ceremony shall be illegitimate. Article 54 will not
apply in this case because the child was conceived and born not inside the void marriage but was
conceived and born when there was no marriage ceremony yet.
Q: WHAT ARE THE GROUNDS FOR LEGAL SEPARATION?
ANS:
Article 55 provides;
A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a
child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by adoption.
NOTES:
1. Legal separation/or relative divorce decree involves nothing more than a bed-and-board separation there
being no severance of the vinculum. The decree is terminable at will of the parties by merely filing a

53

manifestation in court, the marriage continuing in regard to everything, not necessarily withdrawn from
its operation.
2. Strictly speaking, divorce means dissolution of the bond of matrimony based on the theory of a valid
marriage, for some cause arising after the marriage, while an annulment proceeding is maintained
upon the theory that, for some cause existing at the time of the marriage ceremony, the marriage is
terminable.
3. The grounds for legal separation are exclusive. They may or may not exist at the time of the marriage
ceremony. As a general rule they usually occur after the celebration of the marriage.
4. Repeated Physical violence or grossly abusive conduct:
a. This ground does not include the repeated violence upon the child of the respondent or guilty spouse
with another person. However such repeated violence may be a cause to suspend the parental
authority of the respondent over his or her own child with another person.
b. The frequency of the act and not the severity of the same is the determinative factor and the violence
must be inflicted with bad faith and malice. However even if the act is not repeated or does not
involve physical violence, such act may nevertheless constituted a grossly abusive conduct.
c. If however such indifference or neglect is manifestations of the respondents psychological incapacity,
then it can be ground for nullity under Article 36 is such behavior exists at the time of marriage
ceremony and is grave and incurable.
d. Calling the other spouse vile and opprobrious names and even the often use of offensive language can
be considered as a grossly abusive conduct.
5. Compulsion by physical violence or moral; pressure to change religious or political affiliation:
a. In paragraph 1, the physical violence is for any purpose, as long as there is repeated violence, in here,
with one attempt, one incident of physical violence or moral pressure to compel the change in
religious or political affiliation it can be ground for legal separation.
6. Corruption or inducement to engage in prostitution:
a. The immoral and corrupt act referred to here is prostitution only. The inducement likewise refers to
prostitution only. It cannot be any other immoral act.
b. Mere attempt is enough
c. This ground does not include as the subjects of such an attempt the child of the respondent with
another person.
7. Final judgment involving more than 6 years imprisonment:
a. The offense punishable by six years could have committed against anybody not necessarily the spouse
or their children.
b. The judgment must be final; hence no petition for legal separations while the criminal conviction is on
appeal because in such case, the decision is still not yet final.
8. Drug addiction, habitual alcoholism, lesbianism and homosexuality:
a. The extent and nature of these grounds are the same as in annulment; however, these grounds as
viewed under annulment are instances of fraud which must exist at the time of the celebration of the
marriage. In legal separation, these grounds can exist even after the marriage ceremony.
9. Bigamy:
-So long as there have been a second bigamous marriage wherever celebrated a legal separation may
issue. However if the bigamous marriage were committed abroad, the guilty party cannot be criminally
prosecuted for bigamy in the Philippines, as our penal statute are territorial in nature.
10. Sexual Infidelity or perversion:
a. these ground include adultery and concubinage. However, all other acts of sexual infidelity short of
adultery and concubinage are enough so long as the said acts committed by one spouse would
constitute a clear betrayal of the trust of his/her spouse by having intimate love affairs with other
persons.
b. This applies where a Filipina obtaining divorce abroad marries a foreigner and cohabits the same, have
sexual intercourse with her foreigner husband. This is so because her divorce is not recognized here
in the Philippines
c. As to sexual perversion this would include engaging in such behavior not only to third person but also
with the spouse. Oral sexual intercourse which are not condoned by the wife is covered by this
ground.
d. In the US sexual perversions such as bestiality is not only a ground for legal separation but a ground for
absolute divorce.
11. Attempt on the life:
a. The attempt on the life of another spouse must proceed from an evil design and not from justifiable
cause like self-defense, or where the spouse caught the other in flagrante delicto having sex with another
person.
12. Unjustified abandonment:
a. the abandonment or desertion must be willful. Abandonment implies total renunciation of his or her
duties and not mere physical separation alone.
The act of separation and the continued intent to remain separate must be wrongful in the sense that
there is no excusable excuse for the one who separated.
b.

A spouse is deemed to have abandoned the other when he left the conjugal dwelling without any
intention of returning. A period of 3 month absence without giving any information as to his
whereabouts shall be prima facie that he has no intention of returning.

54

Q: WHAT ARE THE GROUND FOR THE DENIAL OF THE PETITION FOR LEGAL SEPARATION?
ANS:
Article 56 provides;
The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground
for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal separation; or
(6) Where the action is barred by prescription.
NOTES:
1. Condonation - the act of forgiving the offense after its commission. This implies a condition of future behavior
by the offending spouse.
a. If however the offending spouse commits a subsequent offense, this revokes the condonation and revives
the original offense.
b. There is no condonation when a husband fails to look actively for his adulterous wife after she left the
conjugal home.
c. An act of giving money to an offending spouse is a form of condonation.
2. Consent:
a. There is no consent when either spouse agreed to or did not object despite full knowledge to the act giving
rise to a ground for legal separation, before such act was in fact committed.
b. As when the parties agree that they will separately and will not object to the sexual relations of one
another. The condition may be void but not indicative of consent to the commission of sexual infidelity.
c. Consent may be deduced from the acts of the spouses. As when the husband did nothing to interfere with
the relations of his wife with her paramour instead left and abandoned his wife and child. This is
constitutive of consent.
3. Connivance:
a. The basis of the defense of connivance is the maxim volente non fit injuria or that one is not legally injured
if he has consented to the act complained of or was willing that it would occur. The doctrine of unclean
hand is the same.
b. This can be shown where the husband employed agents to induce and coerce the wife to participate in
illicit sexual activities.
4. Recrimination or equal guilt:
a. He who comes into equity must come with clean hands.
b. Bothe of the spouses are in pare delicto hence one spouse cannot invoke the guilt of another if such spouse
himself have given grounds for legal separation
5. Collusion:
a. collusion is a corrupt agreement while connivance is a corrupt consenting.
b. Collusion between husband and wife happens when by agreement one of them appears to commit or to be
represented in court as having committed matrimonial offense, or to suppress valid evidence of valid
defense for the purposes of enabling the other to obtain a legal separation.
6. Prescription:
a. 5 years from occurrence of the cause.
b. Occurrence of the cause and not the discovery is the reckoning point. Hence if a wife commits sexual
infidelity and the husband discovers it after 6 years from the time it is committed, then the action has
prescribed.
Q: WHAT IS THE PROCEDURE FOR LEGAL SEPARATION, AND HOW ARE THE PROPERTIES BE MANGED
DURING THE SUIT?
ANS:
Article 58-62 provides;
Article 58
-An action for legal separation shall in no case be tried before six months
-shall have elapsed since the filing of the petition.
Article 59
-No legal separation may be decreed
- unless the Court has taken steps toward the reconciliation of the spouses
-and is fully satisfied, despite such efforts, that reconciliation is highly improbable.
Article 60
- No decree of legal separation shall be based upon
- a stipulation of facts or a confession of judgment.
-In any case, the Court shall order the prosecuting attorney or fiscal assigned
-to it to take steps to prevent collusion between the parties
-and to take care that the evidence is not fabricated or suppressed.

55

Article 61
-After the filing of the petition for legal separation,
-the spouses shall be entitled to live separately from each other.
-The court, in the absence of a written agreement between the spouses,
-shall designate either of them or a third person
-to administer the absolute community or conjugal partnership property.
-The administrator appointed by the court
-shall have the same powers and duties as those of a guardian under the Rules of Court.
Article 62
- During the pendency of the action for legal separation,
-the provisions of Article 49 shall likewise apply
- to the support of the spouses and the custody and support of the common children.
NOTES:
1. Procedure: (see A.M.No.00-11-01-SC)
a. Filing of petition
b. Defendant shall answer within 156 days from receipt of summons and a copy of petition
*If fails to answer: he or she cannot be defaulted and the court shall order the prosecuting attorney to
investigate whether or not collusion between the parties exists. If no collusion, he will be ordered to
intervene for the State in order to see to it that the evidence submitted is not fabricated.
* If the respondent answers, the fiscal is mandated to be present during trial to further to make sure
that there is no collusion and the evidence is not fabricated. ( except when the case was vehemently
opposed and heatedly contested, no holds-barred)
c. Whether or not the defendant files an answer, no hearing on the merits shall be set by the courts for 6months (THE COOLING PERIOD)
* Failure to observe the six months cooling period is a ground to set aside the decision granting the
legal separation.
* What is prevented from being heard during the 6-month cooling period is the hearing on the merits
of the ground of legal separation. Other incident such as determination of the custody of the children,
alimony, and support may be heard within the cooling period. A motion to dismiss may also be filed
during the cooling period.
d. If no collusion determined: Pre-trial
e. trial.
2. A civil case for legal separation on the ground of sexual infidelity and a criminal case for concubinage may
proceed ahead of or simultaneously with the criminal offense because the civil action is not one to enforce
the liability arising from the offense.
3. If the petition is denied the court cannot compel the parties to live with each other, as cohabitation is purely a
personal act.
4. MANGEMENT OF THE PROPERTY:
-If a petition for legal separation is filed and despite absence of an appointed administrator by the court, if
one spouse had been the administrator for a long period of time of the conjugal property, such cannot be
contested by the husband who himself is the offending spouse. The husband cannot invoke the joint
administrators provision of the FC.
5. Death of one party before final decree in a case for legal separation terminates the case.
Q: WHAT ARE EFFECTS OF THE DECREE OF LEGAL SEPARATION?
ANS:
Article 63 succinctly states;
The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article
213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by
operation of law.
NOTES:
1. The finality of the separation is complete after the lapse of the period to appeal the decision even if the effects
such as the liquidation of the property have not yet been commenced, nor terminated.
2. Even if the spouses live apart they can still be criminally liable for bigamy, concubinage and adultery since
they are still married to each other.
Q: WHAT ARE OTHER EFFECTS OF THE DECREE OF LEGAL SEPARATION AFTER ATTAINING ITS FINALITY?

56

ANS:
Article 64 states;
-After the finality of the decree of legal separation,
-the innocent spouse may revoke the donations made by him or by her
- in favor of the offending spouse, as well as the designation of the latter as beneficiary
-in any insurance policy, even if such designation be stipulated as irrevocable.
-The revocation of the donations shall be recorded
- in the registries of property in the places where the properties are located.
-Alienations, liens and encumbrances registered in good faith
- before the recording of the complaint for revocation in the registries of property
-shall be respected. The revocation of or change in the designation
-of the insurance beneficiary shall take effect
- upon written notification thereof to the insured.
-The action to revoke the donation under this Article
- must be brought within five years
-from the time the decree of legal separation become final.
NOTES:
1. If the donation is void such as the case of donation in violation of Article 87, the right to bring an action to
declare the nullity of the donation does not prescribe.
2. It is important to notify the insurer regarding the revocation so that there will be no way for the
beneficiary to get the proceeds after the policy has been revoked.
Q: WHAT SHALL BE THE EFFECT OF THE RECONCILIATION OF THE PARTIES?
ANS:
Articles 65-57 provides;
Article 65
-If the spouses should reconcile, a corresponding joint manifestation under oath
-duly signed by them shall be filed with the court
-in the same proceeding for legal separation.
Article 66
-The reconciliation referred to in the preceding Articles
-shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the
share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property
regime.
The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)
Article 67
-The agreement to revive the former property regime
- referred to in the preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval
-shall be filed with the court in the same proceeding for legal separation,
-with copies of both furnished to the creditors named therein.
-After due hearing, the court shall, in its order,
-take measure to protect the interest of creditors
-and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property
-shall not prejudice any creditor not listed or not notified,
-unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim
NOTES:
1.
2.

The order containing the termination of the case or the setting aside of the decree shall be recorded in the
proper civil registries
SC resolution A.M. No. 02-11-12 allowed not only the revival of the previous property regime but also
they provide a new rule allowing the adoption of another regime of property relations different from that
which they had prior to the filing of the petition for legal separation.

57

3.

In inheritance, if there be reconciliation, there is nothing under the FC which provides for the revival of
the revoked provisions in a will originally made in favor of the offending spouse as a result of the legal
separation decree.
4. If the order of the revival has not all been recorded in the civil registry, the creditors will not be prejudiced
whether they are not listed in the order or they have been notified.
5. Illustration:
*A and B decided to reconcile after a decree of legal separation.
a. Their properties resulting form the liquidation will remain separate properties even if the legal
separation decree has been dissolved.
*If they decide to revive their conjugal partnership property:
a. They will file a motion for that purpose notifying their creditors.
*If A and B decide to put all their separate property in the conjugal fund:
a. An order can be issued to that effect however to certain reservations which the court may issue for the
protection of the creditors.
b. The court can set aside certain properties of each spouse for purposes of paying off or protecting the
interests of each spouses creditors.
c. If no properties were set aside for the listed creditors who were notified but who did not file their
claims, they shall be prejudiced by the recording of the order in the registry of property.
*If long before the revival, A was ordered by the court to pay X his creditor, and X could only execute on
As house for the satisfaction of the debt, the subsequent order of another court which issued the legal
separation decree reviving the spouses conjugal partnership properties which included the house of A
will prejudice X in case he was notified of the motion for revival and listed in the revival order as a
creditor. Upon default of A to pay the obligation, X cannot execute on the house as part of their revived
conjugal partnership. X should have filed his opposition or claim with the court which heard the motion
for revival.
*If however, X was neither listed as creditor nor notified, then upon default of A to pay his obligation, X
can foreclose on the house as if such revived conjugal property is still separate property of A. However, if
there are still separate properties owned by A which are not included in the revived conjugal partnership
which are enough to satisfy the debt, it can be made as payment.
Q: WHAT ARE THE RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE?
ANS:
Article 68 provides;
-The husband and wife are obliged to live together,
-observe mutual love, respect and fidelity, and render mutual help and support
NOTES:
1. Procreation is also an essential marital obligation.
2. It is not within the province of the courts of this country to attempt to compel one of the spouses to
cohabit with and render conjugal rights to the other. Purely personal and voluntary acts cannot be
compelled by the court for its performance like domestic assistance and conjugal companionship, except
for support.
3. There can be no action for damages merely because of a breach of marital obligations.
4. If a spouse in bad faith refuses with the above obligations and if the property regime is separation of
property, he or she may be held liable under Article 19, 20,21 of the Civil code but not because of the
breach of marital obligations.
5. A husband can commit rape against his wife under RA 8353 since rape is already a crime against persons.
Q: WHO SHOULD FIX THE FAMILY DOMICILE?
ANS:
Article 69 states;
-The husband and wife shall fix the family domicile.
-In case of disagreement, the court shall decide.
-The court may exempt one spouse from living with the other
-if the latter should live abroad
-or there are other valid and compelling reasons for the exemption.
-However, such exemption shall not apply
-if the same is not compatible with the solidarity of the family.
NOTES:
1. The spouses can have only one domicile but many residences. Their domicile is where they intend always to
return even if they left it for some time.
2. A minor follows the domicile of her parents.
3. Other valid compelling reason for the reason of exemption is when a spouse has to work somewhere else.

58

4. The judicial proceeding for the determination of the validity of the exemption of a spouse from living with the
other shall be summary bin nature in accordance with Article 253.
Q: WHO SHALL BE RESPONSIBLE FOR THE EXPENSES FOR SUPPORT AND HOUSEHOLD MANEGMENT?
ANS:
Articles 70-72 provide;
Article 70:
-The spouses are jointly responsible for the support of the family.
-The expenses for such support and other conjugal obligations
-shall be paid from the community property
-and, in the absence thereof, from the income or fruits of their separate properties.
-In case of insufficiency or absence of said income or fruits,
- such obligations shall be satisfied from the separate properties.
Article 71
-The management of the household shall be the right and the duty of both spouses.
-The expenses for such management
-shall be paid in accordance with the provisions of Article 70.
Article 72
-When one of the spouses neglects his or her duties
- to the conjugal union or commits acts which tend to bring danger, dishonor or injury
-to the other or to the family, the aggrieved party may apply to the court for relief.
NOTES:
1. Article 70 provides that the spouses shall be jointly responsible for the support of the family. Article 68
states that the husband and wife are obliged to support each other. Article 84 and 121 provide that the
ACP and CPG shall be liable for the support of the spouses, their common and legitimate children of either
spouse.
2. Article 70 and 71 provide that in the absence of the community property expenses and support and
conjugal obligations including expenses for the management of the household shall be taken form the
income, or fruits of their separate properties. Corollary, the last paragraphs of Article 84 provides that in
cases of insufficiency the spouses shall be solidarily liable for the unpaid balance with their separate
properties.
3. Even if the family house is separately owned by one of the spouses, the other spouse has the duty relative
to the management of the household.
4. The relief in cases of neglect or bringing dishonor may be in the form of filing a case for legal separation,
nullifying the marriage, petitioning the court for receivership, judicial separation of property or for
authority to be the sole administrator of the CPG or the ACP.
Q: MAY A SPOUSE EXERCISE ANY PROFESSION OR BUSINESS WITHOUT THE CONSENT OF THE OTHER
SPOUSE?
ANS:
As provided ion Article 73;
-Either spouse may exercise any legitimate profession, occupation, business or activity
-without the consent of the other.
-The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has occurred to the family prior to the objection or thereafter.
-If the benefit accrued prior to the objection, the resulting obligation
-shall be enforced against the separate property of the spouse
- who has not obtained consent.
The foregoing provisions shall not prejudice
- the rights of creditors who acted in good faith.
NOTES:
1. The exercise by a spouse of a legitimate profession occupation or business or activity is always considered
to redound to the benefit of the family. EXCEPT: an isolated transaction/activity of a spouse like being a
guarantor for a third persons debt is not per se considered as redounding to the benefit of the family and
proofs must be presented showing a direct benefit to the family so that the ACP or the CGG may be liable.
2. Where it was only the wife who entered into a transaction and only the wife who causes the breach, the
husband cannot be solidarily liable with the wife for damages. However if the wife is really engaged in the
business concerning that transaction or it is her profession or calling, such undertaking shall be
considered as redounding to the benefit of the family. Hence, any loss shall be shouldered by the ACP or
CPG respectively.

59

3.
4.

5.

6.

7.

Should the courts find that the profession or activity of one spouse is objectionable, it may be judicially
stopped, like the husband opening up a massage parlor which is really a prostitution den, it can be validly
stopped.
General Rule: Debts and obligations of whatever nature and regardless of the time they were incurred
whether before the marriage or after the marriage ceremony but redounding to the benefit of the family
shall be chargeable to the ACP of CPG. Exception: Professions which are seriously immoral and invalid,
the separate property of the erring spouse shall be liable for all obligations even if it benefits the family. (
Article 73, 2nd paragraph)
For the said exception to apply: the innocent spouse must have no knowledge of the other spouses
engagement in an immoral activity such that he could not have interposed an objection. If the spouse
knew but only posed an objection and eventually benefitted from such immoral activity, such objection is
of no consequence and it would seem there is no disagreement. However, this will not bar the consenting
spouse from interposing an authentic objection later because considering the profession is immoral, the
other spouse should be given the widest latitude to stop the erring spouse form said undertaking.
Despite the non-knowledge of the other spouse of the immoral activity of the other spouse and without
any objection but when the obligation of the erring spouse is owed from a creditor who is in good faith,
believing that the obligation lent was for the benefit of the family, then the creditor can still demand from
the ACP or CPG.
( nangutang si misis kay kumare para makapunta ng abroad at maging pokpok. Hindi alam ni kumare na
ito ay gagamitin para maging pokpok si mare, pwedeng singilin ni kumare si pare sa ACP or CPG)
After the objection by the husband, any obligation incurred by the erring spouse which redounded to the
benefit of the family shall be borne by the ACP or the CPG.

Q: WHAT ARE THE PROPERTY RELATIONS PROVIDED BY LAW BETWEEN HUSBAND AND WIFE?
ANS:
Article 74-77 provides for the same;
Article 74
The property relationship between husband and wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
Article 75
-The future spouses may, in the marriage settlements,
-agree upon the regime of absolute community, conjugal partnership of gains, complete separation of
property, or any other regime.
-In the absence of a marriage settlement, or when the regime agreed upon is void,
-the system of absolute community of property as established in this Code shall govern.
Article 76
- In order that any modification in the marriage settlements may be valid,
it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128,
135 and 136.
Article 77
-The marriage settlements and any modification thereof
-shall be in writing, signed by the parties
-and executed before the celebration of the marriage.
-They shall not prejudice third persons
- unless they are registered in the local civil registry
-where the marriage contract is recorded as well as in the proper registries of properties.
NOTES:
1.

2.
3.
4.

The contracting parties can stipulate or agree on any arrangement in their marriage settlement that is not
contrary to law and public policy and within the limits provided in the FC. Such agreement are subject to
the provisions of Article 88 and 107 ( that the arrangement will start in any time, not at the precise
moment of marriage), Article 87.
( void substantial donation to each other during the marriage), Article 103 and 130, (where a surviving
spouse without undertaking the liquidation requirement of her first marriage, stipulates that the property
regime of her subsequent marriage will be ACP or CPG instead of complete separation of property only)
Mixed-up property regime is also allowed, where the spouses retain their own exclusive property all
their salaries earned during the marriage but will consider any real estate purchases from the same as
commonly owned while all personal properties as exclusively owned.
To bind 3rd persons, the marriage settlement and any modifications thereof must be registered in the
local civil registrar where the marriage contract is recorded and in the proper registries of property.
Example:

60

Example 1:
A and B executed a valid marriage settlement.
-They stipulated that the three real estate properties of B in Baguio, Trinidad, and La union, the properties
in Baguio and Trinidad shall be excluded from their ACP. All other property including the estate in LA
union shall belong to the community.
-Because the property relationship of the spouses is governed by ACP, the property in La union shall be
co-owned by A and B during the marriage.
Example II: (same facts as above)
Prior to the marriage B borrowed money from Y. The loan was used by B personally and it did not benefit
the family. When the debt became due and demandable during the marriage, B defaulted and a judgment
was rendered in favor of Y.
Can Y execute property in La Union?
ANS: If the marriage settlement is registered, Y cannot execute the property in La Union as this is part of
the ACP and only liable to the obligations of the community, despite the fact that the obligation was
incurred prior the obligation. Only the properties in Baguio and Trinidad can be executed. If the marriage
settlement was not registered, Y can execute the La Union property because he will not be prejudiced by
the marriage settlement. In effect the La union property is till treated as exclusive property of B. B now
has to repay the absolute community for making it pay off the exclusive debt. Such repayment can be
made at the time for the liquidation of the absolute community property where the value of the property
can be deducted from the share of the debtor-spouse.

If the debt redounded to the benefit of the family definitely ACP will be liable.
This is different from Article 94(9), because Article 94 refers to a situation which
may or may not involve prejudice or non-prejudice to a creditor regarding antenuptial debts as a result of registration or non-registration of the marriage
settlement.
Example III: (without marriage settlement)
A borrowed money from B payable on January 7. A mortgaged his property in Baguio in favor of B. Without any
marriage settlement A got married to X. (hence without marriage settlement the property in Baguio becomes part
of the ACP, therefore co-owned by A and B). this impairs the collateral.
*If the mortgage were registered- X shall be bound by such mortgage.
* If not registered- X shall not be bound.
Because of the impairment of the collateral, A lost the right to the payment period on January 7. Hence B can
demand the payment of the loan immediately. For A to maintain the payment period, he has to give new securities,
or get the consent of X to the collateral already established. Failure to do so, B can file a judicial action to collect the
amount.
If a judgment is in favor of B and A has no more exclusive properties considering
that all of them had become part of the ACP, B can still obtain payment pursuant
to Article 94 (9) from the ACP provided he can prove that there are no more
exclusive property. Such payment shall be considered as advances.
If the indebtedness of A redounded to the benefit of the family, then ACP should
shoulder the debt, therefore B can execute immediately on the Baguio property.
If the property in Baguio is registered in the proper civil registry but with some
misrepresentation on the civil status, and sold to a purchaser for value, such
transaction cannot be annulled.
5. Absence of marriage settlement or the settlement being void ACP shall govern. But this does not apply in
the case of a widow or widower who contracts a subsequent marriage without liquidation. The property
regime that will apply to the subsequent marriage will be complete separation of property.
6. General rule: In order that modifications be made in the marriage settlement it must be made before the
celebration, in writing and signed by the parties.
Exception: Modifications can be made after marriage ceremony but such modification shall be approved
judicially and should only refer to instances provided in Article 66(reconciliation in legal separation), 67
(revival of the property regime in legal separation), 128( abandonment by spouse causing the other to file
receivership judicial separation of property etc.,),135 (judicial separation of property),136 (voluntary
dissolution of ACP and CPG)
7. The parties can validly say that ACP will not apply instead local custom will govern their property relation.
But when they say, neither ACP nor local custom shall apply without providing for any other property
regime, this is a void provision in their marriage settlement.
Q: IS THERE A NEED FOR CONSENT FROM THE PARENTS, GUARDIANS OR PERSONS HAVING LEGAL CHARGE
BEFORE ONE CAN EXECUTE A MARRIAGE SETTLEMENT?
ANS:
Articles 78 and 79 state;
Article 78.

61

-A minor who according to law may contract marriage

-may also execute his or her marriage settlements,
- but they shall be valid only if the persons designated in Article 14
-to give consent to the marriage are made parties to the agreement,
subject to the provisions of Title IX of this Code
Article 79
- For the validity of any marriage settlement executed by a person
-upon whom a sentence of civil interdiction has been pronounced
-or who is subject to any other disability,
it shall be indispensable for the guardian appointed by a competent court
-to be made a party thereto.
NOTES:
1. Article 78 is repelled by RA 6809 and also those marriages contracted by persons below 18 are ab initio, but it
can be read as, an 18 year old may execute a marriage settlement even without obtaining the consent of those
persons designated in Article 14 of the FC.
2. It is mandatory that a person sentenced with a civil interdiction, a guardian appointed by the court must be
made party to the marriage settlement.
Q: WHAT RULES SHALL GOVERN THE PROPERTY RELATIONS OF THE SPOUSES?
ANS:
Article 80 provides;
-In the absence of a contrary stipulation in a marriage settlement,
-the property relations of the spouses shall be governed by Philippine laws,
-regardless of the place of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and
executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated
in a foreign country whose laws require different formalities for its extrinsic validity.
NOTES:
1. Property relations of the spouses can be governed by the will of the parties provided that their agreement
will not be contrary to law, public order or public policy and within the limits of the FC.
2. Article 16 of the Civil Code states that real property as well as personal property shall always be governed
by the law of the country where it is situated.
Q: WHAT IS THE EFFCET UPON THE STIPULATIONS MADE IN THE MARRIAGE SETTLEMENTS IF THE
MARRIAGE SHOULD NOT TAKE PLACE?
ANS:
Article 81 provides;
-Everything stipulated in the settlements or contracts
-referred to in the preceding articles in consideration of a future marriage,
-including donations between the prospective spouses made therein,
- shall be rendered void if the marriage does not take place.
-However, stipulations that do not depend upon the celebration of the marriages
- shall be valid.
NOTES:
1. If the marriage does not take place the marriage settlement is rendered void. But only the invalid
provisions will be rendered ineffectual while the rest will continue to remain enforced.
2. Stipulations that do not depend on the marriage shall be valid, like a provision to support the common
child of the parties shall remain to be in effect as this is independent of the fact of marriage. This will be
valid because a parent is obliged to support his child whether legitimate or illegitimate.
Q: WHAT IS A DONATION PROPTER NUPTIAS, AND WHAT ARE THE LAWS GOVERNING SUCH DISPOSITION?
ANS:
As provided in Articles 82-84;
Article 82
-Donations by reason of marriage
-are those which are made before its celebration,
- in consideration of the same,
-and in favor of one or both of the future spouses.

62

Article 83
-These donations are governed by the rules on ordinary donations
-established in Title III of Book III of the Civil Code,
- insofar as they are not modified by the following articles.
Article 84
-If the future spouses agree upon a regime
-other than the absolute community of property,
-they cannot donate to each other in their marriage settlements
-more than one-fifth of their present property.
-Any excess shall be considered void.
-Donations of future property
-shall be governed by the provisions on testamentary succession
-and the formalities of wills.
NOTES:
1. Donation propter nuptias are without onerous consideration, the marriage being the motive for the
donation not its cause
2. They are subject to reduction for inofficiousness upon the donors death if they infringe the legitime of a
forced heir.
3. Such donation must be made prior to the celebration of the marriage, in consideration of the same and
must be in favor of both the spouses.
4. Donations excluded are those (i) made in favor of the spouses after the celebration of the marriage (ii)
executed in favor of the future spouse but not in consideration of marriage (iii) granted to persons other
than the spouses even though they may be founded on the marriage.
5. Donation propter nuptias can be contained in the marriage settlement.
6. In accordance with Title III of Book III, the donee must accept the donation personally or through an
authorized person with special power for the purpose or with general and sufficient power otherwise the
donation shall be void.
7. Acceptance must be made during the lifetime of the donor and donee. Donation of a movable may be made
orally or in writing. An oral donation requires the simultaneous delivery of the thing or the document
representing the right donated. If the value of the personal property exceeds 5000 the donation and
acceptance shall be made in writing otherwise the donation shall be void.
8. For an immovable, it must be made in a public instrument specifying therein the property donated and the
value of the charged which the donee must satisfy. The acceptance must be made in the same deed of
donation or in a separate public document but it shall not take effect unless it is done during the lifetime of
the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof, in an
authentic form and this step shall be noted in both instruments.
9. The document containing the donation of future property may be handwritten but must be dated and
signed by the donor. If not handwritten, it must be subscribed at the end thereof by the donor or the
donors name written by some other persons in his presence and by his expresses direction and attested
and subscribed by three or more witnesses. ( see Articles 805 and 806 of the Civil Code)
10. Giving a donation propter nuptias to a would-be spouse prior to the marriage is invalid unless if the
property regime that will govern their marriage is the ACP.
11. A would be spouse who wants to validly make a donation propter nuptias, must observe the following
requisites
(i)
there must be a valid marriage settlement
(ii)
the marriage settlement must stipulate a property regime other than the absolute community of
property,
(iii)
the donation contained in the marriage settlement must not be more than 1/5 of his or her
present property
(iv)
the donation must be accepted by the would be spouse
(v)
it must comply with the requisites established in Title III of Book III of the CC.
12. If the donation propter nuptias is not in a marriage settlement as the same was never executed by the
parties, making a donation to the other spouse is also useless because in the absence of a marriage
settlement, the ACP will govern the property relations.
13. The NOT MORE THAN ONE FIFTH LIMITATION is not applicable if donation is not contained in
marriage settlement. This happens when the there is a marriage settlement providing for a particular
property regime other than the absolute community of property, such as the CPG or the separation of
property, and there is also donation propter nuptias not included in marriage settlement but contained in
a separate deed.
14. Such rule above is still subject to the provision in the Civil Ccode that no person may give or receive, by
way of donation more than he may give or receive by will. This happens when the donation impairs the
legitime of a forced heir.
15. Article 84 is not in violation of Article 87 since the former contemplates a situation where the parties are
not yet married, while the prohibition under Article 87 is during the marriage.

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Q: CAN A PROPERTY SUBJECT TO ENCUMBRANCE BE DONATED AND WHAT SHALL BE THE RULE
REGARDING SUCH?
ANS:
Yes, as stated in Article 85;
-Donations by reason of marriage
-of property subject to encumbrances shall be valid.
-In case of foreclosure of the encumbrance
-and the property is sold for less than the total amount
-of the obligation secured, the donee shall not be liable for the deficiency.
-If the property is sold
- for more than the total amount of said obligation,
- the donee shall be entitled to the excess.
NOTES:
1. Donation is an act of liberality. If the object of the donation is subject of an encumbrance, the donation is
still valid. However, the donees rights are subject to the encumbrance. If foreclose-deficiency shall not be
paid by the donee as he is not a solidary debtor of the debtor-donor, in case of excess it shall go to the
done.
2. Excess shall go to the done because being the owner of the property, the donee is entitled to whatever
value of the property which can be obtained. Considering that the donation is a conveyance of pure
liberality of the donor, the done cannot even seek reimbursement from the donor for the amount which
was taken by the creditor as a result of the foreclosure.
Q: WHAT ARE THE GROUNDS TO REVOKE A DONATION BY REASON OF MARRIAGE?
ANS:
Article 86 provides;
A donation by reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on
donations in general.
NOTES:
1. Marriage not Celebrated:
a. In the event marriage is not celebrated, the donor has the option to revoke or maintain the donation.
If however, the donation propter nuptias is contained in a marriage settlement executed prior to the
marriage and the marriage ceremony does not take place, such donation shall be considered void
pursuant to Article 81.
b. The FC and Title III of Book III of the CC does not provide for a prescriptive period for the revocation,
however under Article 1149, it provides for a 5-year period from the time the right of action accrues,
to bring an actions where there are no periods fixed by the CC or other laws.
c. The right of action accrues from the moment the marriage is not solemnized on the fixed date. If the
donation is void as it is contained in the marriage settlement, the period within which to declare the
donation void does not prescribe.
d. If it is clear that the donation is not donation propter nuptias the happening of the marriage ceremony
is immaterial
2. Marriage judicially declared void:
-The mere fact that the marriage is provided by law as void is not enough reason for the donor to have the
donation revoked. There must be a judicial declaration that the marriage is void. However, there are five situations
that can arise depending on the reason for the nullity
a. Pursuant to Article 40 in relation to article 53 and 53 ( a subsequent marriage contracted without judicial
declaration of voidness)
Example:
The marriage of A and B is void because of mistake of identity. A without obtaining a judicial declaration of
nullity marries C. A knows that without the said declaration, his marriage to C is void. Prior to the marriage C gives
A donation propter nuptias.
-Upon the finality of the judicial declaration of nullity of the subsequent marriage between A and C, the
donation propter nuptias shall be revoked by operation of law pursuant to Article 50
- If A does not want to return the donated property, the donor should file an action to recover the thing
donated. His right of action starts from the finality of the judicial declaration of nullity. If- movable property- 8
years from the time the possession thereof is lost
Real property-after 30 years.

64

3.

4.

5.

6.

7.

Possession is deemed to have been lost from the finality of the judicial
declaration of nullity.
b. Bad faith of both parties (under Article 44) in contracting subsequent marriage where one obtained a
judicial declaration of presumptive death. The donation by reason of such shall be revoked by
operation of law.
c. All other cases where a marriage has been declared void on other grounds not falling under Article
40 in relation to Article 52 and 53 and under Article 44.
- In such cases, good faith or bad faith is irrelevant.
- The donor after finality of the judicial declaration of nullity has the option to revoke
the donation or not.
- Mistake in identity, no valid marriage license and other cases.
d. In case of bigamous marriage: A and B are married. B married X. A donation propter nuptias was
given by X to B. X have the option to revoke the donation after the finality of the judicial declaration of
nullity of the bigamous marriage.
- Any donation made by X to A may be considered void if A and X were already guilty of
adultery at the time of the donation, or when A and X were already cohabiting as husband and
wife.
- If in case the marriage of A and B is void, and no declaration of nullity has been obtained prior
to the marriage of A to X, the marriage of A and X is that falling under Article 40, therefore the
donation is revoked by operation of law.
e. If both contracting parties are in good faith, the donor after finality of the judicial declaration of nullity
has to option to revoke the donation or not pursuant to Article 86 (1) by the FC
No consent of parents or guardian:
a. If the consent of said persons is not obtained the marriage becomes annullable and the donation
propter nuptias may be revoked by the donor. Unlike in Article 86 (3) it must be observed that Article
86 (2) does not require that the marriage should have been annulled first before the donor may
revoke the donation
b. The donor has 5 years from the time he had knowledge of the lack of consent to bring the action of
revocation. Knowledge must come on or after the marriage only.
Annulled marriage and donee acted in bad faith
a. The donation in this case revocable at the instance of the donor in case the marriage is annulled
and the donee is proven to be in bad faith in contracting the marriage.
b. The donor has only five years from finality of the annulment decree to file the action to revoke
the donation.
c. There are instances however that the marriage is annullable but the spouses may not be in bad
faith as when they both of the defect, as where the souse knew prior the marriage that other
would-be spouse had incurable sexual disease. In this case if the marriage is latter annulled on
this ground the donation propter nuptias remains effective and can never be revoked under
Article 86 (3) and Article 50 in relation to Article 43 (3) of the FC
Legal separation:
a. In here the donor is given the option to revoke or maintain it. If he revokes: he has 5 years from the
finality of the decree of legal separation.
b. However, if the ground for legal separation is sexual infidelity in the form of concubinage or adultery,
Article 739 (1) of the CC provides that a donation made between persons who are guilty of adultery or
concubinage at the time of the donation shall be void.
Resolutory Condition:
a. If the resolutory condition is complied with then the donation may or may not be revoked. The
happening of the future or uncertain event which constitutes the resolutory condition operates to
extinguish the right or the obligation.
b. A father of one of the spouses makes a valid donation propter nuptias to the parties with a provision
stating that such shall be revoked in the event they leave the Philippines. When both spouses
migrated to the US, the donor shall have the option to revoke the donation or not and must do so
within 5 years from happening of the resolutory condition
c. If a donation is made by one spouse to the other and the resolutory condition happens, the donor
spouse can recover what is donated at anytime without any prescriptive period because Article 1109
of the CC provides that prescription does not run between husband and wife even though there be a
separation of property agreed upon in the marriage settlement.
d. Acts of ingratitude as ground for revocation of donation under Article 765 of the CC must be filed
within 1 year from the time the donor had knowledge of the fact of ingratitude and it was possible for
him to bring the suit.
Void Donations:
a. Under Article 739 of the CC provides among other that donations made by the persons who are guilty
of adultery or concubinage at the time of the donation is void.
b. Transferring of property through sale by one spouse to a live in partner while his marriage subsists is
in the form of a donation is void as pronounced in (Agapay vs Palang case.)

Q: IS GIVING A DONATION BETWEEN SPOUSES DURING MARRIAGE VOID?

ANS:
Yes Article 87 states;

65

-Every donation or grant of gratuitous advantage,

- direct or indirect, between the spouses during the marriage shall be void,
-except moderate gifts which the spouses may give each other
-on the occasion of any family rejoicing.
-The prohibition shall also apply to persons
living together as husband and wife without a valid marriage
NOTES:
1. Article 87 includes the following donations of a spouse: These are constitutive of indirect donations to the
spouse of the donor-spouse because once they die the spouse of the donor will inherit from the donee.
a. To a stepchild who has no compulsory and/or legal heirs, such as his or her children, other than the
spouse at the time of the donation
b. To a common child who has no compulsory and/or legal heirs, such as his or her children, other than
the spouse at the time of the donation
c. To the parent of other spouse
d. To the other spouses child who has no compulsory and/or legal heirs or in the case when at the time
of the donation, the only surviving relative of the adopted is the other spouse.
e. To a common adopted child who has no other compulsory and/or legal heirs.
2. If the donee gives birth to a compulsory or legal heir after the donation, the invalidity of the donation will
not be cured or validated because the donation is void from its inception.
3. TAKE NOTE: Donations by both spouses in favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or vocational course or other activity for selfimprovement are valid.
4. Only persons who bore relation to the parties at the time it occurred had the rights and interests, inchoate,
present, remote or otherwise in the property in question at the time transfer occurred.
ACP
Q: WHAT IS THE SYSTEM OF ABSOLUTE COMMUNITY?
ANS:
Article 88 provides;
-The absolute community of property between spouses
-shall commence at the precise moment that the marriage is celebrated.
-Any stipulation, express or implied,
-for the commencement of the community regime
-at any other time shall be void.
NOTES:
1. ACP- all properties owned by the contracting parties before the marriage ceremony which they may
acquire thereafter shall comprise of the ACP. Also, in a partial separation of property regime the property
not agreed upon as separate shall pertain to then absolute community.
2. The spouses become co-owners of all properties in an ACP.
3. No waiver of rights, interests, shares, and effects of the absolute community of property can be made
except upon judicial separation of property. Only those enumerated in Article 92 are excluded from the
ACP including those properties excluded in the marriage settlement entered into by the parties.
4. The ACP commences at the precise moment of the celebration of the marriage. Any stipulation indicating
other time of commencement shall be void. Such as when, the spouses stipulate that the first 5 years of
marriage will be governed by CPG and after 5 years it will be governed by ACP such is void.
Q: WHAT DOES THE LAW PROVIDE ON WAIVER OF RIGHTS ETC. ON ACP AND WHAT CONSTITUTES
COMMUNITY PROPERTY?
ANS:
Articles 89-93 provide;
Article 89
-No waiver of rights, shares and effects of the absolute community of property
-during the marriage can be made except in case of judicial separation of property.
-When the waiver takes place upon a judicial separation of property,
- or after the marriage has been dissolved or annulled,
-the same shall appear in a public instrument and shall be recorded as provided in Article 77.
-The creditors of the spouse who made such waiver
-may petition the court to rescind the waiver
-to the extent of the amount sufficient to cover the amount of their credits.
Article 90
-The provisions on co-ownership shall apply to the absolute community of property
-between the spouses in all matters not provided for in this Chapter.

66

Article 91
-Unless otherwise provided in this Chapter or in the marriage settlements,
-the community property shall consist of all the property owned by the spouses
-at the time of the celebration of the marriage or acquired thereafter.
Article 92
The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either spouse,
and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor
that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community
property;
(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage,
and the fruits as well as the income, if any, of such property.
Article 93
- Property acquired during the marriage
-is presumed to belong to the community,
-unless it is proved that it is one of those excluded therefrom.
NOTES:
1. Since provisions on co-ownership governs the ACP, each co-owner may use the thing owned in common
provided he or she does do in accordance with the purpose for which it is intended and in such a way as
not to injure the interests of the co-ownership or prevent the other co-owners from using it according to
their rights.
2. Waiver of rights interest, shares and effects in ACP can only be made in case of judicial separation of
property
3. When the waiver takes place upon a judicial separation of property or after the marriage was dissolved or
annulled, it shall appear in a public instrument and must be recorded.
Example:
A and B had ACP worth 1.000,000 dissolved in accordance with law. Upon judicial separation B is entitled
to get 500,000. B is indebted to X in the amount of 100,000. B decides to waive his share in favor of A. X
the creditor of B can seek the rescission of the waiver to the extent of 100,000 to protect his interest.
4. If the waiver takes place without judicial separation of property such waiver shall be void because it is
contrary to law and public policy in accordance with Article 6 of the CC.
5. Article 91 provides that the marriage settlement may provide for exclusions therefore making the
exclusions thereon depend upon the will of the parties and article 92 provides for statutory exclusions.
6. Gratuitous title: The second exclusion is property acquired by gratuitous title. It must be valid gratuitous
acquisition during the marriage. However the donor or testator or grantor may provide that the property
and the fruits as well as the income thereof shall form part of the ACP.
7. Personal and exclusive use: The 3rd exclusion is property for personal and exclusive use either of the
spouses except jewelry which shall form part of the ACP. These personal and exclusive properties may
either have been brought inside the marriage or were acquired during the marriage. Property for personal
and exclusive use referred to in the general rule must be interpreted in terms of value.
8. Property from previous marriage:
a. It must be noted under this exclusion that it uses the word descendant not merely legitimate children.
Hence, grandchildren, great grandchildren and other descendants are included. The descendant must
however be legitimate.
Example:
A previous marriage is annulled in accordance with Article 36 hence the children born out of the
annulled marriage are legitimate. The property acquired by the spouse who has previous children of a
previous marriage shall not belong to the absolute community of a subsequent marriage.
But when the children of previous marriage are illegitimate all the property of
the spouse from a subsequent marriage after liquidation shall become part of
ACP.
10. Nature of Acquired property using separate properties:
a. Under article 109 (4) one of the exclusive properties of the spouses in relation to CPG is that
which is purchased with the exclusive money of either spouse. However, there is no
corresponding rule in the exclusions under Article 92 referring to the excluded properties from
the ACP. Ibig sabihin kahit sinasabi sa Article 109 (4) na exclusive property ng isang spouse that
which is purchase with exclusive money of the wife or of the husband since hindi ito naexclude sa
Artcile 92, any property na nabili gamit and exclusive money ng isang spouse ay magiging part ng
ACP kapag ito ay nabili during marriage. Unless, na inidicate sa marriage settlement na hindi.
(to understand this better let us take an example:)
Example:
(i)A marriage settlement provides that the 1,000,000 won by the husband in sweepstakes prior to
the marriage shall remain separate,, such stipulation is valid. Using the said amount the husband

67

buys a house, which is used as family home. The home cannot be considered as a separate
property but as a part of the ACP.
This is because, Article 93 provides that property acquired during the
marriage is presumed to belong to the community unless it is one of those
excluded therefrom. Moreover article 91 provides that unless otherwise
provided in this Chapter or in the marriage settlement, the community
property shall consists of all properties owned by the spouse at the time of
the celebration of the marriage or acquired thereafter.
-The 1,000,000 is his separate property over which he can undertake any act of dominion. Even if
the house was bought with his exclusive money, what was excluded by the marriage settlement
was only the 1,000,000 and the same was not even excluded by Article 92.
-The house cannot be considered to have been acquired through gratuitous title as the husband
paid it using his money. It cannot even be considered as for personal use, since it was used a
family home. Likewise he has no descendants of a previous marriage to even warrant its
exclusion.
(ii)even if the house was donated to the husband if after becoming the owner, sells the house, the
money obtained from the sale has been acquired during the marriage and since it does not fall
under the exclusion in Article 92 neither is it contained in a marriage settlement, the proceeds
will become part of ACP.
(iii)
(iv)

Even excluded property under Article 92 (3) are likewise sold during the marriage, the money
obtained from such sale will form a part of the ACP.
Any property exchanged or merely bartered for another, still it will form part of the ACP unless the
property received will qualify as a property used for personal and exclusive use of the recipient
spouse.

Q: WHAT ARE THE CHARGES UPON AND OBLIGATIONS OF THE ACP?

ANS:
Article 94 provides;
The absolute community of property shall be liable for:
(1) The support of the spouses, their common children, and legitimate children of either spouse; however, the
support of illegitimate children shall be governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the
benefit of the community, or by both spouses, or by one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family
may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during marriage upon the separate property of either
spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other
activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement;
(9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of
illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasidelict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which
shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the
community; and
(10) Expenses of litigation between the spouses unless the suit is found to be groundless.
If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9),
the spouses shall be solidarily liable for the unpaid balance with their separate properties.
NOTES:
1. Support: support comprises everything indispensable for sustenance. Support for illegitimate children
shall be taken from the separate property of the parent-spouse. In case of absence or insufficiency the ACP
will pay for such support but such payment shall be considered as advances to be deducted from the share
parent upon liquidation.
2. Debts and obligations:
a. If the debt or obligation redounded to the benefit of the family the ACP shall be liable. But even if it did
not redound to the benefit of the community, the ACP shall be liable if such debt was contracted
during the marriage by both spouses or by anyone of them with the consent of the other.
b. If during the marriage a debt or obligation were contracted by only one spouse without the consent of
the other, the ACP shall be liable only to the extent that the family may have been benefitted.
3. Liabilities by reason of a crime or quasi-delict: As a rule, the ACP shall not be liable to pay the
obligation or debt arising from a crime or quasi-delict of a particular spouse. The separate property shall

68

be liable. The ACP will only be liable in case of absence or insufficiency but such will be considered as
advances to the erring spouses share upon liquidation.
4. Expenses in litigation:
a. Provided that the suit is between the husband and wife and the case is not groundless the ACP will be
liable for the expenses.
b. The ACP will still be liable in a suit not involving husband and wife but the family benefited from it.
5. Solidary liability of spouses: This solidary liability shall not however include ante-nuptial debts not
redounding to the benefit of the family the support of the illegitimate children by either spouse or
liabilities incurred by the spouse by reason of a crime or quasi-delict.
6. Insolvency of spouses: So long as the absolute community subsists, its property shall not be among the
assets to be taken possession of by any assignee for the payment of the insolvent debtors obligations
except insofar as the latter has redounded to the benefit of the family.
Q: WHO SHALL BEAR THE GAINS AND LOSSES IN GAMES OF CHANCE?
ANS:
Article 95 states;
-Whatever may be lost during the marriage
- in any game of chance, betting, sweepstakes, or any other kind of gambling,
- whether permitted or prohibited by law, shall be borne by the loser
-and shall not be charged to the community
-but any winnings therefrom shall form part of the community property
NOTE:
-

TAKE NOTE of this illustration, a stranger gave without consideration, one of the spouses a
sweepstakes ticket which eventually won and such spouse was paid the money, the winning
shall be considered separate property in accordance with Article 92 (1) of the FC. While it
was only the ticket which was freely given to him by the stranger, the winning prize given by
the PCSO may be considered fruits of his ticket.

Q: WHAT SHALL BE THE RULE REGARDING THE OWNERSHIP, ADMINISTRATION ENJOYMENT AND
DISPOSITION OF THE COMMUNITY PROPERTY?
ANS:
Article 96 provides;
-The administration and enjoyment of the community property
-shall belong to both spouses jointly.
-In case of disagreement, the husband's decision shall prevail,
-subject to recourse to the court by the wife for proper remedy,
-which must be availed of within five years
-from the date of the contract implementing such decision.
-In the event that one spouse is incapacitated
-or otherwise unable to participate in the administration of the common properties,
-the other spouse may assume sole powers of administration.
-These powers do not include disposition or encumbrance
-without authority of the court or the written consent of the other spouse.
- In the absence of such authority or consent,
-the disposition or encumbrance shall be void.
-However, the transaction shall be construed as a continuing offer
-on the part of the consenting spouse and the third person,
-and may be perfected as a binding contract
- upon the acceptance by the other spouse or authorization by the court
- before the offer is withdrawn by either or both offerors.
NOTES:
1. Joint administration and enjoyment does not require the husband and wife always act together. Each
spouse may validly exercise full power of management alone, subject to the intervention of the court in
proper cases.
2. The signature of only one spouse alone in a certification of non-forum shopping is sufficient despite the
rule that all the parties have to affix their signature.
3. Each spouse may act independently even without consent of the other in cases of repairs to the property
as there may be problems which need immediate decisions.
4. Ordinary rules on co-ownership apply only in suppletory character. Hence, if the alteration redounds to
the benefit of the family, the ACP shall be liable. Unlike in ordinary co-ownership, alterations without the
consent even if for the benefit of the property shall be invalid and shall be borne by the one who made the
alteration.
5. Mere alteration without any benefit to the family will be chargeable to the spouse who made such
alteration unless the other spouse ratifies the act of alteration. Without consent and ratification, the other
spouse can demand for the alteration to be removed at the expense of the spouse who made the alteration.

69

6.

In case of disagreement, the decision of the husband must prevail without prejudice to the judicial
recourse of the wife to be availed of within 5 years.
7. One of the spouses who is not suffering from any form of any incapacity may encumber and alienate as
within the ambit the phrase administration and enjoyment.
8. Any disposition by one spouse of the said properties completely without the knowledge and consent of the
other spouse is null. Hence the action to nullify the contract entered into by the transacting spouse will not
have any prescriptive period since the contract is void. However, a third party who is a purchaser for
value and good faith is protected.
9. If there is knowledge but without the consent of the other spouse and disagreement arises, the contract
entered into by the husband whose decision prevails in cases of disagreement shall not be considered void
but merely voidable at the instance of the wife.
10. If it were decision of the wife which was implemented, the husband can go to court to seek proper relief;
he can file an injunction suit to stop the implementation of the contract entered into by the wife.
11. In case of incapacity of one of the spouses on administration:
a. The appointment of the spouse as the sole administrator shall be in a summary proceeding, if it
involves a situation where the other spouse is absent, separated in fact or has abandoned the
other or the consent is withheld.
b. If the subject spouse is an incompetent who is in a comatose or semi-comatose condition, victim of
stroke or other physical conditions, the proper remedy is judicial guardianship proceeding under Rule
93 of the 1964 Revised Rules of Court. Should the administering spouse wants to dispose the property
he must observe the procedure for the sale of the wards estate required of judicial guardians and not
the summary procedure under the FC.
Q: HOW MAY EITHER SPOUSE DISPOSE THEIR INTEREST IN THE COMMUNITY PROPERTY?
ANS:
Article 97 states;
-Either spouse may dispose by will
-of his or her interest in the community property
Q: WHEN MAY A SPOUSE DONATE ANY COMMUNITY PROPERTY WITHOUT THE CONSENT OF THE OTHER?
ANS:
Article 98 states;
-Neither spouse may donate any community property
-without the consent of the other.
-However, either spouse may, without the consent of the other,
- make moderate donations from the community property
-for charity or on occasions of family rejoicing or family distress
NOTES:
1. The purpose of such prohibition is to protect the others share from the prodigality of a reckless or
faithless spouse.
2. Donations by both spouses or by one spouse with the consent of the other will generally be valid, subject
to the revocation or reduction should such donations turn to be inofficous.
3. However even with the consent of the other spouse the donor-spouse cannot make a substantial donation,
direct or indirect to the consenting spouse during the marriage. Such donation is void under Article 87.
4. Whether the donation is moderate or not depends of the financial situation of the spouses and the ACP
Q: WHAT ARE THE CAUSES FOR THE TERMINATION OF THE ACP?
ANS:
Article 99 provides;
The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Article 134 to 138
NOTES:
1. The termination of marriage simultaneously results in dissolution of the ACP. Consequently. Liquidation
and partition must follow thereafter.
2. Article 99 lays the 4 ways to terminate or dissolve ACP.
3. As a general rule, there is no ACP in void marriage. The property arrangement described in either Article
147 or 148 governs a void marriage. Article 147 is applicable in case where a man and woman who are
capacitated to marry each other exclusively as husband and wife. It shall be liquidated in accordance with
the rules on co-ownership and not under Article 102 of the FC dealing with ACP. However when only one
of the parties to said void marriage is in good faith forfeiture shall follow.

70

4.
5.
6.

7.

By way of exception: ACP or CPG could govern a void marriage, that is the void subsequent marriage by
the non-observance of Article 40
In cases of void marriage not falling under Article 147, the rule on 148 shall apply.
Judicial Separation of property:
a. This can be voluntary or involuntary.
b. If voluntary, the parties can file the agreement of separation of property in court to obtain the
necessary court approval. After approval the parties can nevertheless file a revival of the property
regime but once revived, no voluntary separation of property may thereafter be granted.
c. If involuntary: it must be for a sufficient cause and must likewise have court approval. It must have
the following cases stated in Article 135 of the FC
(i)
That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
(ii)
That the spouse of the petitioner has been judicially declared an absentee;
(iii)
That loss of parental authority of the spouse of petitioner has been decreed by the court;
(iv)
That the spouse of the petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided for in Article 101;
(v)
That the spouse granted the power of administration in the marriage settlements has abused
that power; and
(vi)
That at the time of the petition, the spouses have been separated in fact for at least one year
and reconciliation is highly improbable.
ACP or CPG may be dissolved when a reappearing spouse or interested party files an affidavit of
reappearance

Q: DOES A SEPARATION IN FACT AFFECT THE ACP?

ANS:
Article 100 provides
The separation in fact between husband and wife shall not affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right
to be supported;
(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall
be obtained in a summary proceeding;
(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given
judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits
or proceeds thereof to satisfy the latter's share.
NOTES:
1.

Generally the ACP will not be affected by the separation on fact between spouses. The ACP will still be
liable for all obligations incurred either of the spouses for the benefit of the family and the charges under
Article 94. The separate property of the spouses will still be liable in the event the ACP is not enough. The
exceptions are those enumerated in this provision
2. NO SUPPORT:
a. The mere fact of separating from the conjugal roof which cannot be presumed culpable when there is
no evidence of any fault or guilt on the part of the one who separates does not constitute a reason for
annulling support
b. If the spouse left with a valid cause she is still entitled to support.
3. COURT AUTHORIZATION:
a. When a spouse who left in bad faith need the consent of the other spouse for a valid cause such as a
transaction to pay for the tuition fee of their children, and the other spouse declines to give such
consent, judicial authority must be sought.
b. Judicial authority required in any transaction where the other spouse does accede must be done in a
summary manner. The summary procedure is contained in Article 239 and 248.
4. The last paragraph of this provision is a reiteration of last paragraph of Article 94 and Article 70
5. To be able to effect the solidary nature of the separate properties in cases where the spouses are
separated from each other, the spouse present must
a. upon proper petition in court be given judicial authority through summary procedure to administer
or encumber any specific property of the other spouse and use the fruit thereof to satisfy the latters
share
b. Only the present spouse ha a legal standing to make such petition
c. The authority granted to the spouse is limited only to enable the present spouse to satisfy the other
spouses share in the obligation used to support the family.
Q: WHAT SHALL BE THE RECOURSE OF A SPOUSE WHO WAS ABANDONED BY THE OTHER OR THE OTHER
SPOUSE UNABLE TO COMPLY WITH HIS OBLIGATIONS TO THE FAMILY?
ANS:
It is provided in Article 101 that;
-If a spouse without just cause abandons the other

71

- or fails to comply with his or her obligations to the family,

-the aggrieved spouse may petition the court for receivership,
-for judicial separation of property
-or for authority to be the sole administrator of the absolute community,
-subject to such precautionary conditions as the court may impose.
-The obligations to the family mentioned in the preceding paragraph
- refer to marital, parental or property relations.
-A spouse is deemed to have abandoned the other
- when her or she has left the conjugal dwelling without intention of returning.
-The spouse who has left the conjugal dwelling for a period of three months
-or has failed within the same period to give any information
-as to his or her whereabouts shall be prima facie presumed
-to have no intention of returning to the conjugal dwelling.
NOTES:
1. Abandonment implies a departure by one spouse with the avowed intent to never return followed by a
prolonged absence without just cause, and without in the meantime providing for ones family although
able to do so.
2. Abandonment must not only be physical estrangement but also amount to financial or moral desertion.
3. Failure to comply with family obligations: The relief under this provision applies only if either of the
spouses fails to comply with his martial obligation to the family. Such relief could also be resulted to, when
a designated administrator -spouse abuses his administration.
4. Fails to comply means, the negligence or insufficiency is not merely isolated but so gross that it is likewise
constantly done without any effort or only with a token effort to improve, the reliefs provided for in
Article 101 or 128 may be availed of by the aggrieved spouse.
5. Take note that when failure to comply with the obligation of a family constitutes a psychological
incapacity to perform the essential marital obligations which existed at the time of marriage, the marriage
itself can be considered void. Another remedy when there is abandonment for more than 1 year is to file a
petition for legal separation.
Q: WHAT SHALL BE THE PROCEDURE UPON THE DISSOLUTION OF THE ACP?
ANS:
Article 102 states;
-Upon dissolution of the absolute community regime,
-the following procedure shall apply:
(1)
-An inventory shall be prepared,
-listing separately all the properties of the absolute community
-and the exclusive properties of each spouse.
(2)
The debts and obligations of the absolute community
shall be paid out of its assets. In case of insufficiency of said assets,
- the spouses shall be solidarily liable for the unpaid balance
- with their separate properties
-in accordance with the provisions of the second paragraph of Article 94.
(3)
Whatever remains of the exclusive properties of the spouses
-shall thereafter be delivered to each of them.
(4)
-The net remainder of the properties of the absolute community
-shall constitute its net assets, which shall be divided equally between husband and wife, -unless a
different proportion or division was agreed upon in the marriage settlements,
- or unless there has been a voluntary waiver of such share provided in this Code.
-For purpose of computing the net profits subject to forfeiture
- in accordance with Articles 43, No. (2) and 63, No. (2),
-the said profits shall be the increase in value
-between the market value of the community property
-at the time of the celebration of the marriage
-and the market value at the time of its dissolution.
(5)
-The presumptive legitimes of the common children
-shall be delivered upon partition, in accordance with Article 51.
(6)
-Unless otherwise agreed upon by the parties,
- in the partition of the properties, the conjugal dwelling
-and the lot on which it is situated shall be adjudicated to the spouse
-with whom the majority of the common children choose to remain.
-Children below the age of seven years are deemed to have chosen the mother,
- unless the court has decided otherwise. In case there in no such majority,
-the court shall decide, taking into consideration the best interests of said children.
NOTES:
1. In a voluntary judicial separation of property, the liquidation may be governed by the agreement of the
parties provided that the court approved the same.

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2.
3.

In the appraisal of the properties, the market value or in default thereof the assessed value at the time of
liquidation must be taken into account.
Equal sharing of the net assets shall not apply if there is a proportion or division agreed upon in the
marriage settlement, or there have been a waiver of such share. The waiver must be valid. If the waiver of
rights refers to those made during the subsistence of the ACP such waiver is invalid. A valid waiver can
only occur upon a judicial separation or after the marriage has been dissolved or annulled, and must be
contained in a public instrument.

Q: WHAT SHALL BE THE PROCEDURE OF LIQUIDATION WHEN ONE OF THE SPOUSES DIES?
ANS:
Article 103 provides;
-Upon the termination of the marriage by death,
- the community property shall be liquidated
- in the same proceeding for the settlement of the estate of the deceased.
-If no judicial settlement proceeding is instituted,
- the surviving spouse shall liquidate the community property
- either judicially or extra-judicially
- within one year from the death of the deceased spouse.
-If upon the lapse of said period, no liquidation is made,
-any disposition or encumbrance
-involving the community property of the terminated marriage shall be void.
-Should the surviving spouse contract a subsequent marriage
- without compliance with the foregoing requirements,
-a mandatory regime of complete separation of property
-shall govern the property relations of the subsequent marriage.
NOTES:
1. Rule 73, Section 2 of the Rules of Court provides, when the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered and liquidated and the debts
thereof paid, in the estate or intestate proceedings of the deceased spouse. If both spouses have died the
conjugal partnership shall be liquidated in the testate or intestate proceedings thereafter.
2. If the decedent spouse left no will and no debts, the heirs qualified under the law, may without securing
letters of administration divide the estate among themselves as they see fit by means of public instrument
filed in the office of the registrar. Should they disagree they may do so in an ordinary action for petition.
3. It is only after liquidation and partition when specific properties are definitely and physically determined
that a sale of such allotted property can be made. Hence, although, after death of the decedent, the heirs
can sell, waive, or even alienate their interest to the property they inherit, they cannot sell a specific
property as the same can only be determined after liquidation.
4. Nature of interest of heirs prior liquidation:
a. While the spouses have an interest in the ACP or CPG, the spouses cannot claim any definite property
at the time when the ACP or CPG is still in existence. Upon death of one spouse, the rights of the heirs
vest.
b. If the deceased spouse is survived by a spouse and legitimate children, the ACP or CPG which has been
dissolved by death evolves into a co-ownership between the surviving spouse and the heirs.
c. As a co-owner the spouse or heirs can undertake any act of dominion over their interest, share or
participation but not over specific concrete property.
d. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto and he may therefore alienate, assign, mortgage it, although the effect of the alienation and
mortgage with respect to the co-owners, shall be limited to the portion which may be allotted to him
in the division upon termination of the co-ownership.
e. Prior to liquidation and partition, the interest of an heir in the state of the deceased person may
nevertheless be attached for purposes of execution, even if the estate is in the process of settlement
before the courts.
f. Its only after liquidation that definable property can be claimed by and adjudged to them from the
remainder of their properties after satisfaction of all obligations which the ACP has to pay. Thus
specific and concrete properties cannot be donated by any co-heir prior to liquidation.
5. Claim against the estate:
a. No complaint for the collection of indebtedness chargeable to the ACP of CPG can be brought against
the surviving spouse unless such spouse has committed himself to be solidarily liable for claims
against the ACP or CPG. This is because, upon death of one spouse, the powers of administration of the
surviving spouse ceases and passes to the administrator appointed by the court. The surviving spouse
is not even a de facto administrator
6. Mandatory Complete separation:
a. If prior to such subsequent marriage and without liquidation, the spouses had marriage settlement
stipulating that the marriage regime that will govern their marriage shall be ACP the stipulation is
void being contrary to law.

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Q: WHAT SHALL BE THE RULE REGARDING MARRIAGES CONTRACTED PRIOR AUGUST 3, 1988 WHERE THE
THE ACP OF EACH MARRIAGE IS TO BE LIQUIDATED SIMULTANEOUSLY?
ANS:
Article 104 provides;
-Whenever the liquidation of the community properties
-of two or more marriages contracted by the same person
-before the effectivity of this Code is carried out simultaneously,
- the respective capital, fruits and income of each community
- shall be determined upon such proof as may be considered
-according to the rules of evidence.
-In case of doubt as to which community the existing properties belong,
-the same shall be divided between the different communities
- in proportion to the capital and duration of each.
NOTES:
1. This refers to at least 2 marriages contracted prior August 3, 1988 and involves a situation where the ACP
of each marriage is being liquidated simultaneously.
2. The determination of which of the inventoried properties including their fruits, income belongs to which
community property regime depends upon the proofs presented by the contending claimants in
accordance with the rules of evidence.
3. In case of doubt the properties inventories shall be divided in proportion to the capital and duration of
each.
4. There are 5 scenarios to depict this doubtful instances;
a. 1st scenario:
The only information known are the 2 marriages are equal in duration and their fair market value of
the inventoried assets at the time of liquidation is 15, 000 but the assets in each marriage are
unknown.
-In this case since the duration of each marriage is equal, the 15,000 shall be divided equally by
the heirs, 7,500 for each marriage.
b.

c.

d.
e.

f.
g.

2nd scenario:
Duration of each marriage is known but the actual assets in each marriage are unknown. . If the 1st
marriage lasted for 2 years and the 2nd marriage for 3 years and the fair market value of the
inventoried property is 15,000. The 1st marriage will be prorated with a share of 2/5of 15,000 which
is 6,000 and the 2nd marriage 3/5 which is equal to 9,000.
3rd scenario:
Duration is the same. Assets are known, assets to be inventories are known Since the durations are
equal, they cancel each other and prorating will be based on the amount of the known assets in each
marriage. If the first marriages asset is 1,000 and the second is 2000. The 1st marriage will be
prorated a share of 1/3 which is 5,000 and the 2nd marriage will have 2/3 which is 10,000.
4th scenario:
Duration is known but different the assets are equal and the amount of assets inventoried is
ascertained. If each marriage has an identical 5,000 worth of assets but the duration of the 1st is 2
years while the 2nd is 3 years. The first marriage will have 2/5 which is equal to 6,000 and the 2 nd
marriage 3/5 which is 9,000
5th scenario:
Duration are known but different, the amounts of assets in each marriage are known and the amount
of the assets to be inventoried at the time of liquidation is ascertained. 1 st marriage 2 years and 2nd
marriage 3 years. If the inventoried assets to be liquidated amounts to 15,00 and if the duration of the
1st marriage is 2 years and 2nd is 3 years their assets are 1000 and 2000 respectively, the duration of
each marriage shall be multiplied to the assets in that marriage and then prorated with the assets to
be liquidated. 1st marriage will have a share of 2/8 of 15,000 which is 3,750 and 2 nd marriage will
have 6/8 which is equivalent to 11,250.

CPG
Q: WHAT IS A CPG AND WHAT RULES SHALL GOVERN THE SAME?
ANS:
Articles 105 ,106and 107 provide;
Article 105
- In case the future spouses agree in the marriage settlements
-that the regime of conjugal partnership gains
-shall govern their property relations during marriage,
-the provisions in this Chapter shall be of supplementary application.

74

-The provisions of this Chapter shall also apply to conjugal partnerships of gains
- already established between spouses before the effectivity of this Code,
-without prejudice to vested rights
- already acquired in accordance with the Civil Code
-or other laws, as provided in Article 256.
Article 106
- Under the regime of conjugal partnership of gains,
- the husband and wife place in a common fund
- the proceeds, products, fruits and income from their separate properties
-and those acquired by either or both spouses
-through their efforts or by chance,
-and, upon dissolution of the marriage or of the partnership,
- the net gains or benefits obtained by either or both spouses
-shall be divided equally between them,
- unless otherwise agreed in the marriage settlements.
Article 107
The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains
NOTES:
1. If the spouses agree upon CPG they shall place in common funds the fruit of their separate properties and
income from their work or industry.
2. Fruits of paraphernal property shall form part of the CPG and are therefore subject to the payment of the
debts and expenses of the spouses but not to payment of the personal obligation of the husband unless it
is proved that such obligations were productive of some benefit to the family.
3. The rules of the ACP on the commencement of the regime and prohibition of waiver apply to the CPG.
Q: WHAT ARE OTHER RULES GOVERNING CPG?
ANS:
-The conjugal partnership shall be governed by the rules
- on the contract of partnership
- in all that is not in conflict with what is expressly determined in this Chapter
-or by the spouses in their marriage settlements.
NOTES:
1. Unlike ACP which is governed by the rules of co-ownership, CPG is governed by the rules on contract of
partnership.
2. For instance, in ordinary partnerships
a. any stipulation which excludes the partners from any share of the profits and losses of the
partnership is void.
b. A partner is a co-owner with his other partner of specific partnership property
c. Every partner must account to the partnership any benefit and hold in trustee for it any profits
derived by him without the consent of the other partner from any transaction connected with the
formation conduct and liquidation of the partnership or from any use by him of any of its property.
d. For other rules, see Article 1818, 1822 of the CC.
Q: WHAT ARE THOSE CONSIDERED AS EXCLUSIVE PROPERTY OF A SPOUSE?
ANS:
Article 109 specifies that;
The following shall be the exclusive property of each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by gratuitous title;
(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of
the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband.
NOTES:
1. Under the CPG all properties brought into the marriage by the contracting parties belong to each of them
exclusively. The partnership does not produce the merger of their properties. They exercise all right of
dominion or of ownership and the other spouse cannot dispose the same without the consent of the
owner-spouse.
2. If a property was purchased by a spouse previous to the marriage and it was only after the marriage that
said property was registered under the name of the owner spouse, but together with the other spouse as
co-owner, such property is still the exclusive property of the spouse who bought it by her exclusive funds
prior to marriage.

75

3.

Free patent is granted only to occupants with continued occupation and cultivation hence, without any
indication that the free patent was acquired through the efforts of both husband and wife, it is presumed
that it was granted only to one spouse. Therefore it will form part of his or her exclusive property.
4. Exclusive properties will be liable for debts of the spouse who contracted the same, however, if the debt or
obligation redounded to the benefit of the family, then the CPG will be liable.
5. Anything acquired by each spouse from any source by way of gratuitous title shall belong to the spouserecipient and will not belong to the CPG. This includes moderate gifts given by the spouse to another
during family occasions. Honorarium is included as well. Also property acquired by succession is an
exclusive property regardless of whether it was acquired before or after the marriage.
6. In CPG the fruits and income of a property given by gratuitous title shall be considered as conjugal. This is
different in ACP because any property including their fruits received by gratuitous title shall be
considered as exclusive property unless provided by the testator or grantor that it will form part of the
ACP.
7. REDEMPTION, BARTER AND EXCHANGE:
a. In case of redemption, the property shall belong to the spouse who has the right to redeem regardless
of whether he used personal fund.
b. However when conjugal funds are used for redemption, the spouse making the redemption, shall be
liable to the CPG for the reimbursement of the amount used to redeem.
c. The CPG shall have lien for the amount paid by it.
d. If there is no right of redemption belonging to either spouse, whoever buys or procures something
using his or her own funds shall exclusively own what was purchase.
e. Right of redemption is not the same as successor-in-interest in cases of execution of judgment.
Example:
4 parcels of land owned by the CPG and it was executed upon and sold to answer for an indemnity to
the heirs of a murder victim. 2 parcels of land were redeemed by the wife, using money given to her
by some other people. The sheriff executed in her favor the deed of repurchase.
-SC SAID: The 2 parcels of land redeemed by the wife cannot anymore be subject to another execution
to answer for the balance for the indemnity. The wife did not acquire the property in behalf of the
husband, but she acquired it by right of redemption as successor-in-interest. The property becomes
an exclusive property of the wife. The property ceased as property of the judgment debtor, hence it
cannot be held to answer for the personal liability of the husband.
f. Property acquired by exchange made by one spouse using her exclusive property shall remain the
separate property of such spouse. However if the separate property of a spouse is used as part of the
purchase price in addition to the conjugal funds, the property acquired from said purchase shall be
conjugal.
Q: TO WHOM DOES THE LAW GRANT RIGHT OF ADMINISTRATION TO THE EXCLUSIVE PROPERTIES OF
EACH SPOUSE?
ANS:
Article 110 states;
-The spouses retain the ownership, possession,
administration and enjoyment of their exclusive properties.
-Either spouse may, during the marriage,
-transfer the administration of his or her exclusive property
-to the other by means of a public instrument,
-which shall be recorded in the registry of property of the place the property is located
NOTES:
1. Administration includes entering into contracts regarding the use of the property engaging in litigation
and collection of fruits profits and income arising from the separate property.
2. In case the exclusive property of a spouse is wrongfully levied upon to pay for the personal obligation of
the other spouse, the former spouse may file an action to annul the sale.
Q: IN CONNECTION WITH THE PRECEDING ARTICLE WHAT ARE OTHER RIGHTS OF SPOUSE REGARDING
THEIR EXCLUSIVE PROPERTY?
ANS:
Article 111 and 112 state;
Article 111
- A spouse of age may mortgage, encumber, alienate
-or otherwise dispose of his or her exclusive property,
-without the consent of the other spouse,
-and appear alone in court to litigate with regard to the same.
Article 112

76

The alienation of any exclusive property of a spouse

-administered by the other automatically terminates the administration
-over such property and the proceeds of the alienation
-shall be turned over to the owner-spouse.
NOTES:
1. Article 111by virtue of RA 6908 should merely state that either spouse may mortgage, encumber, alienate
or otherwise dispose of his or her exclusive property.
2. TERMINATION OF ADMINISTRATION:
a. Under Article 127, where the spouses are separated in fact, the spouse present shall upon petition in a
summary proceeding, be given authority to administer or encumber any specific separate property of
the other spouse and use the fruits to satisfy the latters in the event that the separate properties of
the spouses are solidarily liable for obligation of the CPG in the absence of a conjugal partnership
property to pay such conjugal debt.
b. The judicial authority given to the present spouse to administer the property constitutes a limitation
to Article 112.
c. The owner spouse who is a party to the summary proceeding cannot revoke the judicially approved
administration by mere expediency of alienating such property. If he wants to alienate the property
he must get the consent of the administrator spouse.
Q: HOW SHOULD A PROPERTY DONATED BY WILL BE TREATED, AND WHAT IF THE DONATION IS
ONEROUS?
ANS:
Article 113 and 114 provide for the answer;
Article 113
-Property donated or left by will to the spouses,
-jointly and with designation of determinate shares,
-shall pertain to the donee-spouses
-as his or her own exclusive property,
-and in the absence of designation, share and share alike,
-without prejudice to the right of accretion when proper.
Article 114
-If the donations are onerous,
-the amount of the charges
-shall be borne by the exclusive property of the donee spouse,
-whenever they have been advanced by the conjugal partnership of gains.
NOTES:
1. A donor or testator may donate by will a property to the spouses jointly. In which case if the testator
likewise designates the respective determinate share of each spouse and in the absence thereof, share and
share alike. The property shall be considered as separate property.
Example:
The donor provides that the husband will have and the wife will have , each of them will own such
portions given as their exclusive property.
2. In a joint donation. One could not accept independently of his co-donee for there is no right of accretion
unless expressly (i)provided by the testator or when there is (ii) predecease by one of the spousedonee, (iii) renunciation of the inheritance by one done or (iv) is incapacitated.
3. Also for accretion to apply, the husband and wife are called to the same inheritance or to the same portion,
PRO INDIVISO ( not divided, not earmarked, not clearly designated)
4. If conjugal funds are used to pay the obligations attached to an onerous donation, the done spouse shall
reimburse the CPG but the property remains to be his exclusive property.
Q: ARE RETIREMENT BENEFITS, PENSIONS, ANNUITIES, GRATUITIES, USUFRUCTS CONSIDERED CONJUGAL?
ANS:
It depends, as provided in article 115;
-Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits
-shall be governed by the rules on gratuitous or onerous acquisitions
-as may be proper in each case
NOTES:
1. Whether retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits are conjugal or
separate will depend on how it was obtained and the circumstances of the case.
2. Amounts given by the government because of a previous work is a gratuity and must be considered as
exclusive property.
3. An annuity is not gratuity when the recipient is entitled thereto as a matter of right.
4. As to pensions, since there is no liberality on the part of the government and the award is composed of
mere accumulated savings or deductions from money earned during the marriage, this would be a pension
and thus considered as conjugal.

77

5.

Where a spouse took an endowment life insurance on his life payable to his estate as directed by will, and
the premiums were paid by communal funds, such is conjugal.

Q: WHAT ARE THOSE PROPERTIES CONSIDERED A CONJUGAL PARTNERSHIP PROPERTY?

ANS:
Article 116 provides;
-All property acquired during the marriage,
-whether the acquisition appears to have been made,
-contracted or registered in the name of one or both spouses,
-is presumed to be conjugal unless the contrary is proved
NOTES:
1. This provision is presumption that those properties acquired during marriage are conjugal property
2. The party who invokes this presumption must prove first that the property in controversy was acquired
during the marriage. In other words proof of acquisition during the coverture is a condition sine qua non
for the operation of the presumption in favor of conjugal ownership.
3. In cases where the property is registered in the names of both spouses, the presumption that it is conjugal
arises.
4. For as long as it is proven that the property has been acquired during the marriage, the presumption
applies even though the spouses are living separately.
Q: WHAT ARE THE CONJUGAL PARTNERSHIP PROPERTIES?
ANS:
Article 117 provides;
The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the
acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well
as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property
where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the
marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom
shall be borne exclusively by the loser-spouse.
NOTES:
1. Acquisition by onerous title from common fund:
a. That which is acquired with money of the conjugal partnership belongs to the CPG
b. Damages granted by courts in favor of any spouses arising out of contract solely financed by the CPG and
breached by the third party shall belong to the CPG
c. Damages arising out of the illegal detention of the exclusive property of any of the spouses shall pertain to
the conjugal partnership, if such detention deprived the partnership of the use and earnings of the same.
d. BUT: DAMGES AS A RESULT OF PHYSICAL INJURY which led to physical infirmities and permanent
deformity are personal to the injured party hence, the damages are exclusive to her.
2. The share of the spouse in a hidden treasure which the law awards to the finder or owner of the property where
the treasure is found is conjugal. Minerals, gold nuggets precious stones in their raw state, oil and the like are not
treasures. Treasures are money, jewelry, or other precious the lawful ownership of which does not appear.
3. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the
marriage by either spouse shall be conjugal. In case there are 40 cows as a result of the marriage it became 60, 20
shall be owned by the CPG.
4. Those obtained through chance are considered conjugal. Loser from gambling or betting shall be borne by the
loser-spouse. If a spouse however was given by a third person a lotto ticket without consideration and such ticket
won 1,000,000 such winning shall be considered fruits and therefore shall belong to the CPG.
Q: WHAT IF A PROPERTY WAS BOUGHT ON INSTALLMENT BASIS, HOW SHOULD IT BE TREATED?
ANS:
Article 118 provides;
-Property bought on installments
-paid partly from exclusive funds of either or both spouses
-and partly from conjugal funds belongs to the buyer or buyers
- if full ownership was vested before the marriage

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-and to the conjugal partnership if such ownership was vested during the marriage.
- In either case, any amount advanced by the partnership
- or by either or both spouses shall be reimbursed by the owner or owners
- upon liquidation of the partnership.
NOTES:
1. Article 118 contemplates a situation when installment was initiated prior to the marriage and ended after
the marriage.
2. When property is bought on installment basis partly by exclusive funds of either or both spouse and partly
by conjugal funds, the ownership of the property is determined by the time when the title is vested.
3. If ownership is vested before the marriage-it belongs to the class of properties exempted from conjugal
partnership under paragraph 1 of Article 109. If however ownership is vested after the marriage
ceremony- it shall form part of the conjugal partnership. In this instance the spouse who contracted the
purchase shall have the right to be reimbursed by the partnership.
4. Thus, Friar Lands bought by a woman before her marriage were her paraphernal or separate properties,
although some of the installments on the price were paid with the conjugal funds during the marriage. The
conjugal funds would only be entitled to reimbursement. This is the case because under the Friar Lands
Act No.1120, beneficial title to the land passes to the purchases the moment the first installment is paid.
5. Q: What if there were two marriages, wherein in the 1st marriage payment to a said property came
from partly the conjugal funds and the exclusive funds of the husband, and after contracting a valid
second marriage the installment continued and the last installment for the payment came from the
conjugal funds of the 2nd marriage, who should own the property?

6.

7.

8.

ANS:
A contract to sell or conditional sale of a parcel of land by installment wherein ownership to the said land
shall vets only upon last installment, the SC in Jovellanos vs. CA 210 SCRA 126 said that since the last
installment were made during the valid 2nd marriage by conjugal funds, the property rightly belongs to the
CPG of the 2nd marriage even though during the 1st marriage the property was partly paid from conjugal
and exclusive funds. But proper reimbursement must be made.
The law however does not provide for a situation where the property was bought during the marriage and
the purchase was funded partly by the exclusive money of either or both of the spouses and partly by the
conjugal funds. But the court in deciding the Castillo vs. Pasco case, 11 SCRA 102, it decided that the 1/6
should be paraphernal and 5/6 should be conjugal.
The decision in above case, may be questioned right now in view of Article 118 and it even, runs counter
to what Article 118 contemplates, such as creating a unified ownership of properties between husband
and wife during the time of marriage, as it is a permanent consequence of the permanent union between a
man and a woman.
The better view is that the property bought during the marriage partly by conjugal funds and partly by
exclusive funds of either or both spouses should be a part of the CPG.

Q: WHAT IF A SPOUSE IS A CREDITOR AND THE PAYMENT THEREOF IS ON INSTALLMENT BASIS, AND THE
FULL PAYMENT WILL BE MADE DURING THE MARRIAGE HOW SHALL THE PAYMENT BE CONSIDERED?
ANS:
Article 119 provides;
-Whenever an amount or credit payable within a period of time
-belongs to one of the spouses, the sums which may be collected during the marriage
-in partial payments or by installments on the principal
-shall be the exclusive property of the spouse.
- However, interests falling due during the marriage on the principal
-shall belong to the conjugal partnership.
NOTES:
1. Article 119 is a situation where one of the spouse has in his favor a credit payable in installment or a
credit which must be fully payable during the marriage.
2. The rule is, all payment made on the principal during the marriage shall be an exclusive property of the
spouse-creditor. But the interest on the principal falling due during the marriage shall belong to the
conjugal partnership as interest is considered fruit.
Q: WHO SHOULD OWN THE IMPROVEMENTS WHETHER FOR ADORNMENT OR UTILITY MADE ON THE
SEPARATE PROPERTY OF THE SPOUSES?
ANS:
Article 120 provides for the rules;
-The ownership of improvements, whether for utility or adornment,
- made on the separate property of the spouses
-at the expense of the partnership or through the acts or efforts of either or both spouses
-shall pertain to the conjugal partnership, or to the original owner-spouse,
-subject to the following rules:

79

-When the cost of the improvement made by the conjugal partnership

-and any resulting increase in value are more than the value of the property
-at the time of the improvement, the entire property of one of the spouses
-shall belong to the conjugal partnership,
- subject to reimbursement of the value of the property of the owner-spouse
at the time of the improvement;
- otherwise, said property shall be retained in ownership by the owner-spouse,
- likewise subject to reimbursement of the cost of the improvement.
-In either case, the ownership of the entire property
-shall be vested upon the reimbursement,
-which shall be made at the time of the liquidation of the conjugal partnership.
NOTES:
1. If the value of the improvement and any resulting increase in value are more than the value of the
separate property at the time of the improvement, the entire property shall belong to the CPG.
2. But ownership shall vest only upon reimbursement to the owner spouse which shall be made at the time
of liquidation of the CPG.
3. Proof therefore is needful at the time of the making or construction of the improvements and the source of
the funds used therefor, in order to determine the character of the improvements as belonging to the
conjugal partnership or to one spouse.
4. But if the value of the improvement and any resulting increase in value is less than the value of the
separate property at the time of the improvement, the property shall still be under the ownership of the
spouse exclusively and the improvements will belong to the exclusive property as well.
5. Hence, if the CPG uses the same property it does so in the spirit of USUFRUCTUARY: Prior to
reimbursement at the time of liquidation, the CPG may use the land and the improvement but it does so as
a usufruct. Prior to liquidation, the owner-spouse owns her separate property and, therefore, the same
cannot be levied upon to satisfy debt unless the conjugal funds are insufficient to pay the conjugal debts in
which case the separate property can be held solidarily liable.
6. As a result thereto, mere construction of a building from common funds does not automatically convey the
ownership of the wifes land to the CPG. Erection of a building thereon is an exercise of a right of usufruct.
The CPG is not bound to pay any rent during the occupation of the wifes land because if the lot were
leased to a 3rd person, the rent would belong to the CPG
Q: WHAT ARE THE CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP?
ANS:
Article 121 provides;
The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the
support of illegitimate children shall be governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the
benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family
may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership
property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either
spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for selfimprovement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement; and
(9) Expenses of litigation between the spouses unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for
the unpaid balance with their separate properties.
NOTES:
1. Liabilities shall only be chargeable to the CPG when it benefits the same.
2. The CPG shall be liable for all obligations contracted by husband and wife. Their separate properties can
only be held solidarily liable if the conjugal partnership property is insufficient to pay the indebtedness.
3. If the CPG is insufficient, the creditors may demand payment from either or any of the spouses with their
respective properties. Also, separate properties of either spouses may also be solidarily liable if both of
them expressly made themselves liable in solidary manner in any obligation contracted by them for the
benefit of the ACP or CPG.

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4.

So long as the partnership subsists, its property shall not belong among the assets to be taken in
possession of by the assignee for the payment of the insolvent debtors obligation except if it redounded to
the benefit of the family.

Q: WHO SHOULD BEAR THE PAYMENT FOR PERSONAL DEBTS, FINES, PECUNIARY INDEMNITIES INCURRED
BEFORE OR DURING THE MARRIAGE?
ANS:
Article 122 states;
-The payment of personal debts contracted by the husband or the wife
-before or during the marriage shall not be charged to the conjugal properties partnership -except insofar
as they redounded to the benefit of the family.
-Neither shall the fines and pecuniary indemnities
-imposed upon them be charged to the partnership.
-However, the payment of personal debts contracted by either spouse
-before the marriage, that of fines and indemnities imposed upon them,
-as well as the support of illegitimate children of either spouse,
- may be enforced against the partnership assets
-after the responsibilities enumerated in the preceding Article have been covered,
- if the spouse who is bound should have no exclusive property
-or if it should be insufficient; but at the time of the liquidation of the partnership,
-such spouse shall be charged for what has been paid for the purpose above-mentioned.
NOTES:
1. Personal debts that did not redound to the benefit of the family will be borne by the respective spouses
with their exclusive properties.
2. Hospital and medical expenses are chargeable to the conjugal partnership as such would redound to the
benefit of the conjugal partnership.
3. 3rd paragraph of 122 will apply if it be shown that the obligations under 121 have been covered and the
debtor-spouse has insufficient or no exclusive property to pay the debt or obligation involved
4. Fines and pecuniary indemnities imposes upon either spouse may be charged against the partnership
assets even before the liquidation of the partnership. However, such payment must comply with Article
122.
5. The CPG is liable for the personal debts, fines and indemnities of either spouse only after payment of all
liabilities of the conjugal partnership as enumerated under Article 121 and when the spate property of the
spouse is insufficient. But in ACP such liabilities are chargeable to the ACP in case the separate property of
the spouse is insufficient. It is not required that the charges against the ACP be paid first.
6. Personal obligations for which the debtor-spouse should only be held liable are not given by the law the
same advance-reimbursement mechanism provided for under Article 122. The advance-reimbursement
mechanism is only applicable to personal debts not redounding to the benefit of the family contracted by
either spouse before the marriage and not during the marriage.
Q: WHO SHALL OWN THE WINNINGS EARNED FROM GAME OF CHANCE AND WHO SHALL BORNE THE LOSES
IF ANY?
ANS:
Article 123 states;
-Whatever may be lost during the marriage in any game of chance
-or in betting, sweepstakes, or any other kind of gambling
- whether permitted or prohibited by law,
-shall be borne by the loser and shall not be charged to the conjugal partnership
-but any winnings therefrom shall form part of the conjugal partnership property.
(self-explanatory)
Q: WHO SHALL BE RESPONSIBLE FOR THE ADMINISTRATION OF THE CPG AND WHAT SHOULD BE THE
RULE REGARDING DONATIONS BETWEEN SPOUSES?
ANS:
Article 124
-The administration and enjoyment of the conjugal partnership
-shall belong to both spouses jointly.
-In case of disagreement, the husband's decision shall prevail,
-subject to recourse to the court by the wife for proper remedy,
- which must be availed of within five years
-from the date of the contract implementing such decision.
-In the event that one spouse is incapacitated or otherwise unable to participate
- in the administration of the conjugal properties,
- the other spouse may assume sole powers of administration.

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-These powers do not include disposition or encumbrance

-without authority of the court or the written consent of the other spouse.
-In the absence of such authority or consent, the disposition or encumbrance
- shall be void.
-However, the transaction shall be construed as a continuing offer
-on the part of the consenting spouse and the third person,
-and may be perfected as a binding contract
- upon the acceptance by the other spouse or authorization by the court
-before the offer is withdrawn by either or both offerors. (165a)
Article 125
Neither spouse may donate any conjugal partnership property
-without the consent of the other. However, either spouse may,
-without the consent of the other, make moderate donations
-from the conjugal partnership property
-for charity or on occasions of family rejoicing or family distress.
NOTES:
1. These 2 provisions are exact replica of Article 96 and 98 of the ACP. Their application therefore is the
same.
2. It must be emphasized however that, if the marriage settlement provides for the CPG as governing
property regime but likewise stipulates that the sharing will not be equal upon dissolution, such unequal
share will not affect the joint administration of the spouses
Q: WHAT ARE THE CAUSES FOR THE TERMINATION OF CPG?
ANS:
Article 126 provides;
The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Articles 134 to 138
(Article 126 is self-explanatory)
Q: DOES SEPARATION IN FACT AFFECT THE CPG?
ANS:
Under Article 127 it provides otherwise;
The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right
to be supported;
(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall
be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be
given judicial authority to administer or encumber any specific separate property of the other spouse and use the
fruits or proceeds thereof to satisfy the latter's share.
NOTES:
1. (see Article 100 for some explanations)
2. It must be noted however that the guilt of the party in leaving the house is not material. The one who
unjustifiably separated from the other spouse may himself avail of this remedy
3. Also, take note that any debt incurred for the support of the family is liability of the CPG. Hence if one of
the spouses left the conjugal home, with or without justifiable cause, any debt incurred by the any spouse
for the benefit of the family shall be chargeable to the community property. Their separation will not
justify the non-liability of the community property.
Q: WHAT SHALL ABLE THE RECOURSE OF A SPOUSE WHO WAS ABANDONED BY THE OTHER OR THE
OTHER SPOUSE UNABLE TO COMPLY WITH HIS OBLIGATIONS TO THE FAMILY?
ANS:
Article 128 states;
-If a spouse without just cause abandons the other
-or fails to comply with his or her obligation to the family,
- the aggrieved spouse may petition the court for receivership,
-for judicial separation of property, or for authority to be the sole administrator
-of the conjugal partnership property,
-subject to such precautionary conditions as the court may impose.

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-The obligations to the family mentioned in the preceding paragraph

- refer to marital, parental or property relations.
-A spouse is deemed to have abandoned the other
-when he or she has left the conjugal dwelling without intention of returning.
-The spouse who has left the conjugal dwelling for a period of three months
-or has failed within the same period to give any information as to his or her whereabouts -shall be prima
facie presumed to have no intention of returning to the conjugal dwelling.

NOTES:
1. This is the same as Article 101; hence see Article 101 for the explanation.
2. Also 101 and 128 give an aggrieved spouse who is a co-owner of the properties the right to bring an action
to protect his inters and right thereto even before the liquidation or dissolution of the CPG or ACP
Q: WHAT SHALL BE THE PROCEDURE IN THE LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS?
ANS:
Article 129 provides;
Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the
exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse
shall be credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for
the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal
partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate
properties, in accordance with the provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for
the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from
the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided
equally between husband and wife, unless a different proportion or division was agreed upon in the marriage
settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.
(8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with
Article 51.
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless
otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common
children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless
the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration
the best interests of said children.
NOTES:
1. Liquidation of Partnership:
a. The CPG may be liquidated by extra-judicial settlement ordinary action of partition or by way of
testate or intestate proceedings.
2. Inventory:
a. All properties or assets at the time of the dissolution whether belonging to the conjugal partnership or
separate property must be inventoried.
b. They must be itemized and usually valued.
c. The rules of Court on the administration of estates of deceased persons shall be observed in the
appraisal and sale of the property of the CPG and other matters not determined by this Chapter.
d. It is an error to determine the amount to be divided by adding up the profits which has been made on
each year of the communitys continuance and saying that the result is the amount.
e. It is the not the purchase amount market value or assessed value at the time of liquidation must be
taken into account
3. Credits in Favor of the Partnership:
a. Any amount advanced during the marriage by the Conjugal partnership in favor of any spouse shall be
credited to the partnership asset, these includes, the advances for the support of the illegitimate
children, personal debts contracted before marriage which did not redound to the family, payments of
fines and pecuniary indemnities for which the spouse was made liable and which did not redound to
the benefit of the family.
b. Those covered by Article 118, 114 are also included as asset
4. Reimbursement in Favor of Spouse:
a. If separate funds of the spouses are used to buy conjugal properties such shall be reimbursed.
b. The CPG shall also reimburse the spouse for the value of property, the ownership of which has been
vested by law in the CPG, as in the cases in Article 120.

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c.

Where a building owned by the wife was torn down to put up a building owned by the CPG, the wife
must be reimbursed for the amount of the torn building.
5. Payment of debts and obligations of Partnership:
a. those obligations under Article 121 should be paid
b. In the event that CPG is terminated, Article 310 of the CC provides that the construction of tombstones
shall be part of the funeral expenses chargeable to the CPG if the deceased is one of the spouses.
6. Conjugal dwelling:
a. The conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the
parties, be adjudicated to the spouse with whom the majority of the common children choose to
remain.
b. Children below the age of seven years are deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no such majority, the court shall decide, taking into consideration
the best interests of said children.
(Article 130 is the same as Article 103, and Article 131 is the same as 104, see their explanations)
Q: WHAT RULE SHALL BE OBSERVED DURING LIQUIDATION WHEN THIS CHAPTER OF CPG SEEM TO BE
INSUFFICIENT, AND WHAT SHALL BE OBSERVED ON ADVANCEMENTS?
ANS:
Articles 132-133 provide;
Article 132
-The Rules of Court on the administration of estates of deceased persons
-shall be observed in the appraisal and sale of property of the conjugal partnership,
- and other matters which are not expressly determined in this Chapter.
Article 133
-From the common mass of property
-support shall be given to the surviving spouse and to the children
-during the liquidation of the inventoried property
and until what belongs to them is delivered;
- but from this shall be deducted that amount received for support
-which exceeds the fruits or rents pertaining to them.
NOTES:
1. Article 133 envisions a situation where one spouse dies.
2. In such a case, the surviving spouse and the children become co-heirs of the estate left by the deceased
spouse.
3. During the liquidation they have the right to get certain amounts from which they technically own to
support themselves.
4. The amount which they are allowed to get must at least be equivalent to the fruits or rents arising from
the share which they will eventually obtain after liquidation.
5. If what they get exceeded the fruits of their share, the excess shall be taken from the part of the property
which has been given to them as their separate property after liquidation.
6. Hence, the advance from the common mass of property made during the liquidation shall be paid first by
the fruits of their respective shares.
7. If the fruits are insufficient because their advances exceed the amount of the fruits, then the excess shall
be taken from the particular share delivered to them after liquidation.
8. Only the surviving spouse and the children are entitled to get allowances for support. Other heirs are
excluded.
SEPARATION OF PROPERTY OF THE SPOUSES
Q: HOW CAN SPOUSES OBTAIN SEPARATION OF PROPERTY DURING MARRIAGE?
ANS:
Article 134 provides;
-In the absence of an express declaration in the marriage settlements,
-the separation of property between spouses during the marriage
- shall not take place except by judicial order.
-Such judicial separation of property may either be voluntary or for sufficient cause.
NOTES:
1. If the spouses prior to marriage did not execute a written agreement providing for the separation of
property regime, they cannot after the marriage ceremony alter their property relationship to a separate
property regime without judicial order.
2. This is the case whether the separation is by agreement of the parties under Article 136 or for sufficient
cause under Article 135.

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3.

This is because, the regime of separation is not in harmony with the unity of the family and the mutual
help and protection expected of the spouses.

Q: WHAT ARE THE SUFFICIENT CAUSES TO WARRANT A JUDICIAL SEPARATION OF PROPERTY?

ANS:
Article 135 provides;
Any of the following shall be considered sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the
family as provided for in Article 101;
(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation
is highly improbable.
-In the cases provided for in Numbers (1), (2) and (3),
-the presentation of the final judgment against the guilty or absent spouse
-shall be enough basis for the grant of the decree of judicial separation of property.
NOTES:
1. The final decision of the court rendered against the erring spouse embodying the penalty of civil
interdiction is enough for the court to approve a judicial separation of property.
2. Declaration of absence:
a. 2 years having elapsed without any news about the absentee or since the receipt of the last news
b. 5 years in case the absentee has left a person in charge of the administration of his property his
absence may be declared
c. Judicial declaration of absence may be sought by; (i) spouse present, (ii) the heirs instituted in a will
who may present an authentic copy of the same, (iii) the relatives who may succeed by law of
intestacy (iv) those who may have over the property of the absentee some right subordinated to the
condition of his death
3. Loss of parental authority:
a. In the event that loss of parental authority has been judicially decreed against a spouse in connection
with his or her legitimate child by a previous marriage, or an illegitimate child with another person, or
over a common legitimate children, the other spouses can immediately ask for judicial separation of
property
b. This is so, so that his or her share in the CPG of ACP can be immediately be allocated to him or her,
thereby removing it from being further exposes to liability in favor of the children who are not even
related to him or her.
c. The loss of parental authority should indicate malice, abuse, bad faith or culpable negligence on the
part of the spouse of the petitioner.
4. Abuse of administration:
a. For abuse to exist, it is not enough that the spouse granted the power of administration performs acts
prejudicial to the other spouse. Nor is it sufficient that he or she commits act injurious to the ACP or
CPG, for these may be mere acts of inefficiency and negligence.
b. Abuse connotes willful and utter disregard of the interest of the partnership evidenced by a repetition
of deliberate acts and/or omissions prejudicial to the latter.
Q: WHAT IS A REQUIREMENT FOR A VOLUNTARY SEPARATION OF PROPERTY?
ANS:
Article 136 provides for the requirement;
-The spouses may jointly file a verified petition
-with the court for the voluntary dissolution
-of the absolute community or the conjugal partnership of gains,
-and for the separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains,
-as well as the personal creditors of the spouse,
- shall be listed in the petition and notified of the filing thereof.
-The court shall take measures to protect the creditors
-and other persons with pecuniary interest.
NOTES:
1. The spouses may agree on the separation of the ACP or CPG. Before being effective such separation must
have court approval. Otherwise it shall be void
2. The petition to be filed in court need not state any reason for the conversion. The agreement of the parties
is enough.

85

3.
4.
5.
6.

But if the reason is stated and the same is against public policy, the court must reject the agreement.
The petition for the approval to separate the property may even embody the plan or scheme as to how the
properties to be separated which if not contrary to law or public policy, shall be granted by the court.
The agreement for voluntary separation of property takes effect from the time of the judicial order
decreeing the separation of the properties and not from the signing of the agreement.
In case a waiver of one of the spouses, any creditor of the spouses who made such waiver may petition the
court to rescind the waiver to the extent of the amount sufficient to cover the amount of the credit.

Q: WHAT MUST BE THE PROCESSES TO BE FOLLOWED ONCE THE DECREE OF SEPARATION OF PROPERTY
IS ISSUED?
ANS:
Article 137 provides;
-Once the separation of property has been decreed,
-the absolute community or the conjugal partnership of gains
-shall be liquidated in conformity with this Code.
-During the pendency of the proceedings for separation of property,
the absolute community or the conjugal partnership
shall pay for the support of the spouses and their children.
NOTES:
1. The processes laid down in Article 102 and 129 shall be observed during the liquidation. However the
delivery of the presumptive legitime need not be complied with, as such apply only in case the marriage is
judicially annulled under Article 45 for non-observance of Article 40 in relation to 54 and 53. The division
of the ACP and CPG must be equal unless a different proportion had been agreed by the parties in the
marriage settlement or there has been a valid waiver.
Q: When shall the provisions on complete separation of property apply?
ANS;
Article 138 states;
After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation
of property shall apply.
NOTES:
1. Mere filing of the petition to initiate a proceeding for the judicial separation of property shall not result in
the dissolution of the ACP or CPG.
2. The finality of the decision of the court decreeing the separation of property which dissolves the same.
Hence, it is only the time that complete separation of property applies.
Q: WHERE SHALL THE DECREE OF SEPARATION OF PROPERTY BE REGISTERED AND WILL SUCH DECREE
PREJUDICE RIGHTS OF CREDITORS?
ANS:
Article 139 and 140 provide;
Article 139
-The petition for separation of property and the final judgment
-granting the same shall be recorded in the proper local civil registries
-and registries of property.
Article 140
The separation of property shall not prejudice the rights previously acquired by creditors.
NOTES:
1. The recording in the civil registry of the petition of the separation and the final judgment is to aid present
and future creditors in determining whether an asset of a spouse is conjugal or really separate.
2. Likewise such separation cannot prejudice the rights of creditors. In fact, if there has been a waiver of a
spouse, the creditor may petition the court to rescind the waiver
Q: CAN THE SPOUSES REVIVE THE PREVIOUS PROPERTY REGIME, IF SO WHAT ARE THE GROUNDS?
ANS:
Article 141 provides for the same;
-The spouses may, in the same proceedings where separation of property was decreed,
-file a motion in court for a decree reviving the property regime
-that existed between them before the separation of property
-in any of the following instances:

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(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of administration in the marriage
settlements will not again abuse that power, authorizes the resumption of said administration;
(4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life
with the other;
(5) When parental authority is judicially restored to the spouse previously deprived thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or
(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 agree to the revival of the former property regime.
No voluntary separation of property may thereafter be granted.
The revival of the former property regime shall be governed by Article 67.
NOTES:
1. The termination of the causes under Article 135 for which an involuntary separation of property has been
decreed by the court constitutes the grounds to be able to revive the previous regime.
2. The parties can file another petition for judicial separation of property of the properties once there are
grounds to initiate the same even if the ground invoked were the same ground previously used.
3. Revival can also be resorted if the regime was separated due to voluntary agreement. However no,
voluntary separation of property may thereafter be granted after the revival.
4. To be able to revive the previous property regime, the spouses should file a motion in the same court
proceeding where the separation was decreed.
5. The agreement to revive the former property regime shall be executed under oath and shall specify
a. The properties to be contributed anew to the restored regime
b. Those to be retained as separate properties of each spouse
c. The names of all their known creditors, their addresses and amount owing to each.
6. Copies of the agreement of revival and motion for approval shall be furnished to the creditors named
therein. After due hearing the court shall in its order take measures to protect the interest of creditors.
Such order shall be recorded in the proper registries of property.
Q: WHEN SHALL THE ADMINISTRATION OF ALL CLASSES OF EXCLUSIVE PROPERTY OF EITHER SPOSUE
MAY BE TRANSFERRED?
ANS:
The administration of all classes of exclusive property of either spouse may be transferred by the court to the
other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court
shall appoint a suitable person to be the administrator.
NOTES:
1. It must be recalled that under Article 100 (3) and Article 127 (3), it is provided that the separation in fact
between spouses shall not affect the ACP or CPG the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be
given judicial authority to administer or encumber any specific separate property of the other spouse and
use the fruits or proceeds thereof to satisfy the latter's share.
REGIME OF COMPLETE SEPARATION
OF PROPERTY
Q: HOW SHALL THE REGIME OF SEPARATION OF PROPERTY BE GOVERNED?
ANS:
Article 143 provides;
-Should the future spouses agree in the marriage settlements
-that their property relations during marriage
-shall be governed by the regime of separation of property,
- the provisions of this Chapter shall be suppletory.
NOTE:
-

Marriage settlement shall principally govern the regime of separation of property. The family
code shall only be suppletory in character

Q: WHAT ARE THE PROPERTIES INCLUDED IN THE SEPARATION OF PROPERTY REGIME?

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ANS:
Article144 provides;
-Separation of property may refer to present or future property or both.
- It may be total or partial.
-In the latter case, the property not agreed upon as separate
-shall pertain to the absolute community.
NOTES:
1. It is to be remembered however that the contracting parties cannot agree that ACP or CPG shall govern
their marriage up to a certain time, such as up to the 10th wedding anniversary and thereafter the
separation of property shall commence.
2. This is because, this tantamount to dissolving the absolute community property or the CPG by virtue of a
cause or contingency not specifically provided by law particularly Article 99 and 126
Q: WHAT SHALL BE RIGHT OF THE SPOUSES OVER THEIR SEPARATE PROPERTY, HOW SHOULD THE
LIABILITY OF THE SPOUSES FOR FAMILY EXPENSES BE PAID?
ANS:
Articles 145-146 provide;
Article 145
- Each spouse shall own, dispose of, possess, administer and enjoy
-his or her own separate estate, without need of the consent of 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 or her separate property.
Article 146
-Both spouses shall bear the family expenses in proportion to their income,
-or, in case of insufficiency or default thereof,
-to the current market value of their separate properties.
-The liabilities of the spouses to creditors for family expenses shall, however, be solidary.
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE:
Q: WHAT SHALL BE THE PROPERTY REGIME OF THOSE WHO ARE COHABITING AS HUSBAND AND WIFE
WITHOUT THE BENEFIT OF MARRIAGE?
ANS:
Article 147 answers the same in the manner as provided;
-When a man and a woman who are capacitated to marry each other,
-live exclusively with each other as husband and wife
-without the benefit of marriage or under a void marriage,
-their wages and salaries shall be owned by them in equal shares
- and the property acquired by both of them through their work or industry
-shall be governed by the rules on co-ownership.
-In the absence of proof to the contrary,
-properties acquired while they lived together
-shall be presumed to have been obtained by their joint efforts, work or industry,
-and shall be owned by them in equal shares.
-For purposes of this Article, a party who did not participate in the acquisition
-by the other party of any property
-shall be deemed to have contributed jointly in the acquisition thereof
- if the former's efforts consisted in the care and maintenance
-of the family and of the household.
-Neither party can encumber or dispose
- by acts inter vivos of his or her share in the property
- acquired during cohabitation and owned in common,
-without the consent of the other,
- until after the termination of their cohabitation.
-When only one of the parties to a void marriage is in good faith,
- the share of the party in bad faith in the co-ownership
-shall be forfeited in favor of their common children.

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-In case of default of or waiver by any or all of the common children or their descendants, -each vacant
share shall belong to the respective surviving descendants.
-In the absence of descendants, such share shall belong to the innocent party.
-In all cases, the forfeiture shall take place upon termination of the cohabitation.
NOTES:
1. The property relationship under Article 147 and 148 is a special kind of co-ownership.
2. To qualify under this Article the man and woman must;
a. Must be capacitated to marry each other
b. Live exclusively with each other as husband and wife
c. Be without the benefit of marriage or under void marriage
3. All this requisites must concur. Absence of any of these requisites will remove the parties from the ambit
of Article 147 instead they will fall under Article 148.
4. Those informal civil partnerships where the parties are below 18 years of age or those whose
circumstances fall under the incestuous relationship under Article 37 and under Article 38 cannot fall
under Article 147.
5. Legal capacity of a person to marry must likewise have reference to Article 39 of the CC stating that the
family relations limits a persons capacity to act. Thus an already married person has no legal capacity to
remarry without first having the first marriage be terminated.
6. Also, to fall under the benefit of Article 147, there must be no other circumstances to make the
marriage void under Article 37, 38, 35 (1) and (4) which refer to marriage between minors and
bigamous and polygamous marriage not falling under Article 41. It excludes as well those void marriages
referred to under Article 36, 44 and 53 and void marriages where there is absence of authority of the
solemnizing officer, a valid marriage license, a marriage ceremony as provided in Article 4.
7. Article 50, 51, 52 in relations to 102 and 109 will not apply in the liquidation and partition. Rather, the
liquidation of co-ownership under the Civil Code shall govern
8. In all void marriages except a void marriage referred to in Article 40, the forfeiture will be in accordance
with Article 147 or 148
9. FORFEITURE ORDER: Under 147 the spouse in bad faith shall forfeit not only his share in the net profits
but all his shares in the co-ownership in favor of the
(i)
common children.
(ii)
In case of default or waiver by any or all of the common children, each vacant share shall belong
to the respective surviving descendants.
(iii)
In the absence of descendants, the innocent party.
10. In 148 however if one of the parties is validly married to another his share in the co-ownership shall
accrue to the ACP or CPG existing in such marriage. If the party who acted in bad faith is not married to
another, his share shall be forefeited in the manner in number 8.
Q: WHAT ARE OTHER PROPERTY REGIME INVOLVING THOSE WHO DO NOT HAVE THE BENEFIT OF
MARRIAGE?
ANS:
Article 148 states;
-In cases of cohabitation not falling under the preceding Article,
-only the properties acquired by both of the parties
-through their actual joint contribution of money, property, or industry
-shall be owned by them in common in proportion to their respective contributions.
- In the absence of proof to the contrary,
-their contributions and corresponding shares are presumed to be equal.
-The same rule and presumption shall apply
-to joint deposits of money and evidences of credit.
-If one of the parties is validly married to another,
-his or her share in the co-ownership
-shall accrue to the absolute community or conjugal partnership
-existing in such valid marriage.
-If the party who acted in bad faith is not validly married to another,
his or her shall be forfeited
-in the manner provided in the last paragraph of the preceding Article.
-The foregoing rules on forfeiture shall likewise apply
-even if both parties are in bad faith.
NOTES:
1. If one of the requirements in 147 is absent, Article 148 applies. However the parties may be deemed
to be co-owners of a property acquired during the cohabitation only upon proof that each made an actual
contribution to its acquisition. The fact the other party administered the property is irrelevant to proveco-ownership ( Tumlos vs. Fernandez, April 12, 2000)
2. The relationship contemplated under Article 148 include the following;

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a.

Man and woman a woman living together as husband and wife without benefit of marriage but are not
capacitated to marry
b. An adulterous relationship
c. A bigamous relationship
d. Incestuous void marriages under 137
e. Void marriages by reason of public policy under 138.
3. Only the properties acquired by both cohabiting parties through their actual joint contribution of money,
property or industry shall be owned by them in common in proportion to their contributions actual
contributions must be proved foe the presumption of equal shares. .
4. In a bigamous marriage, Article 148 applies especially when it was never shown that one of the spouses
actually contributed in the co-ownership.
5. Cases:
(I)
2 Filipinos procured absolute divorce abroad. One of them subsequently married in Hong Kong.
Any liability of the latter spouse who remarried cannot be levied on the fruits of the separate
property of the new spouse especially the fruits were acquired prior to the solemnization of the
second bigamous marriage
(II)
A married man and a woman live together. The man caused a vehicular accident. The woman
cannot be held as a co-owner of the vehicle because the vehicle must be considered as conjugal
property of the husband and the legitimate spouse.
(III)
A husband bought property in installment and thereafter he left his family to bigamously remarry
another woman. The husband had the property bought under the name of said woman after full
payment. The property belongs to the 1st marriage since all property of the marriage is presumed
to belong to the conjugal partnership unless it be proven that it pertains exclusively to the
husband or wife. In the absence of such proof the presumption remains.
6. In the absence of any of the parties to whom the forfeited property should go, an both of the parties are in
bad faith, it shall be considered that they are both in good faith, and therefore their share shall go them
respectively.
THE FAMILY AS AN INSTITUTION:
Q: WHAT RULE SHALL GOVERN THE FAMILY?
ANS:
Article 149 provides;
-The family, being the foundation of the nation,
-is a basic social institution which public policy cherishes and protects.
-Consequently, family relations are governed by law
-and no custom, practice or agreement destructive of the family
-shall be recognized or given effect.
NOTES:
1. PARAMOUNT IMPORTANCE: The 1987 Philippine Constitution provides for the protection and
strengthening of the family as basic social institution. To highlight its importance Article 15 is provided
under the Constitution dealing with the family
2. Destructive Agreements: An agreement that while the marriage is subsisting, the husband or wife can
have extra-marital affairs is void. However such void agreements legal significance is to invoke it as an
evidence showing consent in legal separation.
3. Parties in Court Case: The Rules of Procedure provides that husband and wife shall be sued jointly
except as provided by law. The word jointly simply means that they should sued together. It does not refer
to the nature of the liability. The necessity of being jointly sued is also because generally the spouses are
joint administrators of either ACP or CPG
Q: WHAT ARE THOSE INCLUDED IN THE FAMILY RELATIONS, AND HOW SHALL A SUIT BETWEEN FAMILY
MEMBERS BE SETTLED?
ANS:
Article 150-151 sate;
Article 150
Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.
Article 151
-No suit between members of the same family shall prosper
- unless it should appear from the verified complaint or petition
- that earnest efforts toward a compromise have been made,

90

-but that the same have failed.

-If it is shown that no such efforts were in fact made, the same case must be dismissed.
-This rules shall not apply to cases
-which may not be the subject of compromise under the Civil Code.
NOTES:
1. The enumeration of family relations must construed strictly. Any person not included in the enumeration
cannot be considered as within the term family relations.
Example:
Husband vs. sister-in-law- there is no need to observe the requirement of Article 151
Woman vs. her sister and the latters husband: shall not involve earnest efforts of compromise considering
the inclusion of the husband who is not within the family relations
Collateral relatives who are not brothers and sisters
2. Earnest efforts to Compromise:
a. Before a suit can be filed by a person against another belonging to the same family provided for under
Article 150, earnest efforts must be first made to settle the case amicably. Otherwise the suit is
dismissible.
b. Failure to exert earnest efforts in these situations is a ground to motion to dismiss under Section 1 (j)
Rules of Court Rule 16.
c. The duty to engage in earnest efforts to compromise is not required if included in the suit between
family members is a stranger, since the interest of such stranger may differ from the interest of the
same family.
d. The rule on earnest efforts will not apply to the cases which cannot be compromised under the CC;
(i)
Civil status of persons
(ii)
Validity of a marriage or legal separation
(iii)
Ground for legal separation
(iv)
Future support
(v)
Jurisdiction of courts and
(vi)
Future legitime.
Also, rule on earnest efforts does not apply to: (i) special proceedings like petition for settlement of
estate of guardianship and custody of children and habeas corpus. In article 332 of the RPC it exempts
the following family members from criminal liability but not civil liability to crimes such as, theft,
estafa, malicious mischief. But it does not apply to strangers participating in the commission of the
crime.
3. On prescriptions: No prescription between husband and wife, between parents and child and between
guardian and ward during the continuance of guardianship.
FAMILY HOME:
Q: WHAT IS A FAMILY HOME, WHO SHOULD CONSTITUTE SUCH AND WHAT RE THE BENEFITS PROVIDED
BY LAW REGARDING A FAMILY HOME?
ANS:
Article 152 and 153 explain;
Article 152
-The family home, constituted jointly by the husband and the wife
-or by an unmarried head of a family,
- is the dwelling house where they and their family reside,
-and the land on which it is situated.
Article 153
- The family home is deemed constituted on a house and lot
-from the time it is occupied as a family residence.
-From the time of its constitution
-and so long as any of its beneficiaries actually resides therein,
-the family home continues to be such
-and is exempt from execution, forced sale or attachment
- except as hereinafter provided and to the extent of the value allowed by law.
NOTES:
1. Constitution:
a. The family home is deemed constituted on a house and land from the time is actually occupied as a
family residence.
b. The requirement of house and land as constitutive of family home stresses the element of
permanence. Hence, a boat on water cannot be constituted a family home
c. If the owners, husband and wife, head of the family or the beneficiaries actually reside in the
premises, it can be a family home as contemplated by law.

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d.
e.

Residing in a family home is a real right.

The occupancy must be actual and not constructive. Hence one cannot claim that he or she has
occupied the premises at the time his or her overseer, maid, houseboy or driver has lived in the said
place
f. Prior to FC: there is a need to constitute the family home judicially or extra-judicially
After FC: There is no need to constitute the family home judicially or extra judicially.
g. All residential houses used as family homes with or without having been judicially or extra-judicially
constituted as such prior to the effcetivity of the FC are deemed constituted by operation of law as a
family home, on August 3, 1988, provided that the provisions of the FC are complied with.
h. Upon automatic constitution on August 3, 1988, the family home shall thereafter be prospectively
entitled to all benefits provided under the FC-But not retroactively.
i. Article 153 cannot be a shield to homes of debtors from execution of judgment arising from debts
which become due and demandable prior to August 3, 1988. Thus a debtor who prior to August 3,
1988 never constituted his or her house judicially or extra-judicially was a family home and whose
debt matured prior to August 3, 1988 cannot claim that on August 3, 1988 his or her home cannot be
answerable to answer to satisfy the judgment
j. To avail of the benefits of a family home in relation to debts which matured prior to August 3, 1988, it
must be shown that the home was constituted either judicially or extra-judicially pursuant to CC.
k. An unmarried head of the family can constitute the family home alone but husband and wife must
constitute it jointly not individually.
l. The occupancy of any of the beneficiaries can likewise constitute a home as a family home.
Occupancy is the operative act of constitution
m. Family home is not affected by the type of property regime of the spouses or by the fact the marriage
has been nullified.
2. Exemption from execution:
a. A. The exemption from execution, forced sale, or attachment provided by law is effective from the
time of the constitution of the family home as such, and lasts so long as any of its beneficiaries
actually resides therein.
b. The exemption is not absolute, as there are obligations and indebtedness excluded from the
exemption which is enumerated under;
(i)

Article 155. Under Article 155, the whole amount obtained from the sale of the family
home may be taken by the creditor or oblige.

(ii)

Article 160, provides that a judgment creditor whose claim is not one among those
provided in Article 155 may apply for the family homes execution if she or he has
reasonable grounds to believe that the family home is actually worth more than the
maximum amount fixed in Article 157( 300K in Urban areas, 200K in rural areas). The
proceeds of any execution sale shall be applied first to the amount provided in Article
157 and then to the liabilities under the judgment and costs.

Q: WHO ARE THE BENEFICIARIES OF THE FAMILY HOME?

ANS:
Article 154 states;
The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who depend upon the head of the family for legal support.
NOTE:
-

Article 154 may include in-laws where the home is constituted by husband and wife but does
not include maids and overseers.

Q: WHAT ARE THE OBLIGATIONS WHERE THE FAMILY HOME IS NOT EXEMPTED?
ANS:
Article 155 provides;
The family home shall be exempt from execution, forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service
or furnished material for the construction of the building.
NOTE:
-

A court judgment is not necessary to clothe a pre-existing debt under Article 155 with the
privileged character of being enforceable against the family home. Debt under Article 155 is
used in its generic sense. In the event a case is filed questioning the validity or propriety of a

92

debt or obligation under 155 for which a family home is being executed under the law, such
debt shall be considered to have arisen not from the time the court issues a judgment
affirming the existence, propriety or validity of such debt but from the time it actually arose.
Q: TO WHAT CLASS OF PROPERTY MUST FAMILY HOME BE PART OF?
ANS:
Article 156 provides;
-The family home must be part of the properties
-of the absolute community or the conjugal partnership,
-or of the exclusive properties of either spouse with the latter's consent.
-It may also be constituted by an unmarried head of a family on his or her own property.
-Nevertheless, property that is the subject of
-a conditional sale on installments
-where ownership is reserved by the vendor
- only to guarantee payment of the purchase price
-may be constituted as a family home.
NOTES:
1. The family home must be constituted as a place where there is a fixed permanent connection with the
person constituting it.
2. It must be part of the properties of the ACP or CPG or exclusive properties of either spouse with the latter
are consent.
3. Therefore: An apartment unit or a house being rented cannot be constituted as a family home, or a house
erected by a person on the property of another is not a family home.
Q: WHAT SHALL BE THE VALUE OF THE FAMILY HOME TO EXEMPT IT FROM EXECUTION?
ANS:
Article 157 as stated;
-The actual value of the family home shall not exceed, at the time of its constitution,
- the amount of the three hundred thousand pesos in urban areas,
-and two hundred thousand pesos in rural areas,
-or such amounts as may hereafter be fixed by law.
-In any event, if the value of the currency changes
-after the adoption of this Code,
-the value most favorable for the constitution of a family home
- shall be the basis of evaluation.
-For purposes of this Article, urban areas are deemed to include
-chartered cities and municipalities whose annual income
-at least equals that legally required for chartered cities.
-All others are deemed to be rural areas.
NOTES:
1. Family home is constituted at the time is actually occupied as a family home. A family home at the time of
its constitution must be in the amount of 300k in urban areas and 200K in rural areas.
2. Despite its apparent low value, the import of the law seems to be that, if at the time of constitution, the
home was more than the value fixed by law, such home is not a family home, therefore not exempted from
execution forced sale or attachment.
3. The 2nd paragraph contemplates a situation where, a house worth 300K in urban areas was not legally
constituted as a family home prior to the effectivity of the FC; it becomes automatically a family home
upon the effectivity of the FC if the actual value is still in the amount of 300K in August 3, 1988. If the
house were worth 400K prior to the effectivity of the FC and at the time of or after the effectivity of the FC
the actual value became 500K it will not be considered family home.
4. Increased in value of family home: It must be emphasized that the value provided in Article 157 refers
to the value at the time of the constitution made after the effectivity of the FC. Hence if after the
constitution the value has increased due to improvements or renovations to more than the amount
fixed by law at the time of the constitution, such family home will remain a family home.
Q: WHEN CAN A FAMILY HOME BE DISPOSED?
ANS:
Article 158 states;
-The family home may be sold, alienated, donated, assigned or encumbered
-by the owner or owners thereof with the written consent of the person
-constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. -In case of
conflict, the court shall decide

93

NOTE:
-

This means that, the family home cannot be alienated without the written consent of the
person constituting it, the latters spouse and majority of the beneficiaries of legal age

Q: IF ONE OF THE SPOUSES DIES, WILL THE FAMILY HOME STILL CONTINUE?
ANS:
Article 159 states;
-The family home shall continue despite the death of one or both spouses
-or of the unmarried head of the family
- for a period of ten years or for as long as there is a minor beneficiary,
- and the heirs cannot partition the same
- unless the court finds compelling reasons therefor.
-This rule shall apply regardless of whoever owns the property
-or constituted the family home.
Q: WHAT SHALL BE THE RECOURSE OF A JUDGMENT CREDITOR WHO HAS REASONABLE GROUNDS TO
BELIEVE THAT HIS DEBTOR HAS A FAMILY HOME WITH A VALUE MORE THAN THAT FIXED BY LAW?
ANS:
Article 160 provides;
-When a creditor whose claims is not among those mentioned in Article 155
-obtains a judgment in his favor, and he has reasonable grounds to believe
-that the family home is actually worth more than the maximum amount
-fixed in Article 157, he may apply to the court which rendered the judgment
- for an order directing the sale of the property under execution.
-The court shall so order if it finds that the actual value of the family home
- exceeds the maximum amount allowed by law as of the time of its constitution.
-If the increased actual value exceeds the maximum allowed in Article 157
-and results from subsequent voluntary improvements introduced by the person or
-persons constituting the family home, by the owner or owners of the property,
-or by any of the beneficiaries, the same rule and procedure shall apply.
-At the execution sale, no bid below the value allowed for a family home shall be considered.
- The proceeds shall be applied first to the amount mentioned in Article 157,
- and then to the liabilities under the judgment and the costs.
-The excess, if any, shall be delivered to the judgment debtor
NOTES:
1. Judgment Creditor:
a. Unlike in Article 155, there is a need under Article 160 for a court decision before a judgment creditor
can avail of the privilege under Article 160 of the FC.
b. Example:
A creditor has a judgment in his favor directing the debtor to pay 500K and the debtor owns a family
home in an urban area which has a current actual value of 1M. The judgment creditors can execute on
the family home.
- Bidders cannot bid in amount lower than 300K.
(Judgment creditor is not among those in Article 155) In the event that the family home
was sold for 700K the sheriff had to give the debtor the amount of 300K and give the balance
400k to the creditor. The idea in having the house immunized as to the 300k is for the
judgment debtor to be able to build a new family home. In this way he will not be homeless.
- (If judgment creditor is among those in Artcile 155), such as laborers and the judgment
amount of 500K represents the amount due them for rendering serviced furnishing materials
for the construction of the family home, the whole amount of 700K shall first be applied to
their claim. The excess of 200 shall be given to the debtor. If the family home was sold exactly
for 500 then the laborers will get it all.
Article 161 and 162 ( just read them they are self-explanatory after all.)
Article 161For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may
constitute, or be the beneficiary of, only one family home. (n)
Article 162 The provisions in this Chapter shall also govern existing family residences insofar as said provisions
are applicable.
LEGITIMATE CHILDREN:
Q: WHAT IS FILIATION AND WHO ARE LEGITIMATE CHILDREN?
ANS:

94

Articles 163-165 provide for the answer;

Article 163
-The filiation of children may be by nature or by adoption.
-Natural filiation may be legitimate or illegitimate.
Article 164
- Children conceived or born during the marriage of the parents are legitimate.
-Children conceived as a result of artificial insemination
- of the wife with the sperm of the husband or that of a donor or both
- are likewise legitimate children of the husband and his wife,
- provided, that both of them authorized or ratified such insemination
-in a written instrument executed and signed by them before the birth of the child.
- The instrument shall be recorded in the civil registry
-together with the birth certificate of the child.
Article 165
- Children conceived and born outside a valid marriage are illegitimate,
-unless otherwise provided in this Code.
NOTES:
1. Status of children can never be compromised.
2. The policy of the FC is to liberalize the rule own the investigation of the paternity of children, especially
illegitimate children without prejudice to the right of the alleged parent to resist the claimed status of his
own defense including evidence now obtained through the facilities of modern medicine and technology.
3. Paternity and filiation:
a. Paternity and filiation refer to the relationship or tie which exists between parents and their children.
b. Under the FC there are only two kinds of children, the legitimate and illegitimate.
c. Filiation of children may be by nature or by adoption. Natural children are considered legitimate if
they are conceived or born during the valid marriage of parent.
d. Illegitimate children are those born or conceived outside a valid marriage or inside a void marriage.
Exception: Article 54, dealing with children born of parents where the other spouse is psychologically
incapacitated, and those children born in a marriage where the subsequent marriage did not comply
with Article 52 and 53.
4. Artificial Insemination:
a. Two Types:
(i)
Homologous Insemination ( AIH,- Artificial Insemination Husband)- the process by which
the wife is artificially impregnated with the semen of the husband,
(ii)
Heterologous Insemination (AID- Artificial Insemination donor)- insemination by the wife
of a semen of a third party.
- It may be consensual, i.e., with the consent of the husband or nonconsensual, i.e., without
the consent of the husband.
b. The status of a child who is a product of artificial insemination is a legitimate child of the husband and
wife, provided that (i) both of them authorized or ratified such insemination (ii) in written
instrument and executed and signed by them (iii) before the birth of the child and that (iv) the
instrument is recorded in the civil registry together with the birth certificate of the child.
c. If the above conditions were not followed and the husband does not impugn the legitimacy of the
child on grounds provided by law within the prescriptive period, the child will remain to be
legitimate.
d. NO Criminal Liability:
a. A wife who without the consent of the husband had herself artificially inseminated by the semen
of the other which led to the siring of a child, the wife cannot be held liable for adultery.
b. Adultery under the RPC is committed by a married woman who shall have sexual intercourse
with a man not her husband. Artificial insemination does not involve sexual intercourse which is
one of the essential elements of the crime.
Q: WHAT ARE THE GROUNDS FOR IMPUGNING THE LEGITIMACY OF A CHILD, AND CAN THE MOTHER
DECLARE AGAINST LEGITIMACY OF HER CHILD?
ANS:
Articles 166 and 167 provide;
Article 166
Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not
possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse;

95

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the
husband, except in the instance provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)
Article 167
The child shall be considered legitimate
-although the mother may have declared against its legitimacy
-or may have been sentenced as an adulteress.
NOTES:
1. Article 166 necessarily presupposes a valid marriage. Only the husband and in proper cases provided in
Article 171, the heirs can invoke the grounds under Article 166.
2. As a consequence of this condition sine qua non for the application of Article 166, the legitimacy of the
child can likewise be questioned on the ground that the marriage between the husband and wife is void
except if the ground of nullity is Article 36 or Article 53 of the FC.
3. In the event that any of the grounds in Article 166 is proven, the child will neither be legitimate nor
illegitimate in so far as the husband is concerned. Simply the husband and child will not be related to
each other in any manner considering that the husband did not participate in any way as to the childs
procreation.
4. Insofar as the mother is concerned, the child will be considered illegitimate.
5. Article 167, makes it impossible for the wife to file an action to impugn the legitimacy of her child because
even if the wife knows that the child is by a man other than her husband her declaration that the child is
illegitimate or the sentencing of the wife as an adulteress has no bearing and can never affect the
legitimate status of her child born or conceived inside a valid marriage.
6. Both 166 and 167 necessarily apply to a situation where the child has been delivered by a woman who is
the childs natural mother. They do not apply to a situation where the child did not come from her own
womb. The Articles govern a situation where a husband denies as his own a child of his wife. It does not
apply where both of the spouses deny that they did not sire such person claiming to be their child.
7. Hence in an inheritance case, where a person claims to be the son of an alleged woman and of the
decedent whose properties are liquidated, and such person-claimant was not in fact delivered by the
alleged mother, she can validly declare that the said person is not in any way related to her as her child. (
158 SCRA 18)
8. The presumption of legitimacy is based on the assumption that there is sexual union in marriage,
particularly during the period of such conception. Hence proof of the physical impossibility of such union
prevents the application of the presumption.
9. The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond
reasonable doubt that there was no access as could have enabled the husband to be the father of the child.
To defeat the presumption of legitimacy, there must be physical impossibility of access by the husband
to the wife during the period of conception. And such physical impossibility must be convincing and
persuasive top justify the bastardization of the child. The SC in any instances, ruled against the
bastardization of the child even if the husbands penis was cut almost leveling to the stomach and
necessitating the insertion of metal sounds for him to urinate.
10. Paternity can be successfully impugned if for biological and scientific reasons the offspring could not have
been that of the husband, as when a white couple could not produce a black child.
11. In respect of the impotency of the husband, to overcome the presumption of legitimacy, it has been held
that the evidence of proof must be clear, satisfactory and convincing irresistible and positive. 60 million
per cubic centimeter is normal and that a count of 10 million cubic centimeters is the minimum to
impregnate at a high probability. However it takes only one sperm to successfully fertilize.
12. The separation between spouses must be such as to make sexual access impossible. Illness of the husband
must be of such nature as to exclude the possibility of having sexual intercourse with his wife. Hence
advanced tuberculosis of the husband will not be enough to overthrow the probability of sexual access.
13. All doubts must be resolved in favor of legitimacy. The presumption of legitimacy does not flow out from
the declaration contained in the statute but is based on the broad principles of justice and supposed virtue
of the mother.
14. When a child is born inside a marriage, sexual intercourse or access is presumed to have occurred
between the husband and wife within the first 120 days of the 300 days immediately preceding the birth
of the child and that any day within the 120-day period is deemed as the possible conception date of the
child. The time span between the 120th day and the 300th day is 180 days or 6 moths. 300 days is the
longest gestation period of a child inside the womb of the mother.
15. The fact that the husband had undergone vasectomy will not be enough to rebut the presumption of
legitimacy. Because it is possible still that despite vasectomy the sperm can rechannel itself and effect
fertilization. Hence, the fact of vasectomy must be coupled with concrete proof that the husband was
entirely sterile and that rechannelization did not occur.
16. In (Leukocyte test) blood test- Absence of the putative fathers phenotype(s) in the childs blood type will
eliminate all possibility that the accused is the fathers child, while the presence of identical phenotypes
does not establish paternity. It is accurate only in excluding paternity. It can only establish that an alleged
father could not have been the sire but it will not indicate with precision that a certain person is the father
of the child.
17. DNA Test -A more dependable test in determining paternity.

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18. In cases of artificial insemination- where the written authorization or ratification of either parent was
obtained through fault, mistake fraud, violence, intimidation or undue influence, the legitimacy of the child
may be impugned. However the only person who can impugn the legitimacy of the child on this ground is
the husband (Article 170) or the heirs in special cases provided in Article 171.
19. The husband or heirs can allege that the wife was subjected to these causes (mistake, fraud, violence,
intimidation or undue influence or the husband or both the husband and wife were subjected to these
causes. However, even if the wife may have been subjected to the causes, she cannot file a case to impugn
the legitimacy of her child, as she does not have legal standing to do so.
20. Non-observance of procedure relative to artificial insemination:
a. The law does not provide that the failure to comply with the procedure laid down in the second
paragraph of Article 164 shall constitute a ground to impugn the legitimacy of the child.
b. If the sperm were the husbands and if the husband voluntarily acceded to the artificial insemination,
it is almost impossible why he should even attempt to impugn the childs legitimacy.
c. In the event that the wife was able to obtain a sperm sample of her husband which the letter
contributed in a sperm bank and said wife had herself artificially inseminated with such sperm
without the consent or knowledge of the husband, the husband can impugn the legitimacy of the child
on the ground mentioned in Article 166, subparagraph 1 (a), (b), (c) and sub paragraph 2 contending
that it was physically impossible for him, to have sexual intercourse with the wife at the time when
the child was conceived.
d. If the husband initially acceded to the artificial insemination but failed or refused to comply with the
requirement under Article 164 and later on decided to impugn the childs legitimacy. He must do so
within the prescriptive period provided in Article 170.
Q: WHAT SHALL BE THE RULE ON FILIATION INVOLVING TWO MARRIAGES, WHERE THE PREVIOUS
MARRIAGE WAS ANNULLED?
ANS:
Article 168 provides for the rule;
-If the marriage is terminated and the mother contracted another marriage
- within three hundred days after such termination of the former marriage,
-these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered
to have been conceived during the former marriage, provided it be born within three hundred days after the
termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered
to have been conceived during such marriage, even though it be born within the three hundred days after the
termination of the former marriage.
NOTES:
1. This rule applies only when there absence of proof to the contrary and there is confusion as to who the
father of the child
2. Sexual intercourse is presumed prior to the termination of marriage. This presumption holds even
immediately before the official termination of marriage. Access however cannot be presumed after the
termination of marriage.
3. REMEMBER HOWEVER: under Article 54 if a child is conceived or born before the finality of a decree of
annulment based on Article 45 or a decree of nullity based on Article 36, a child shall be considered
legitimate.
4. The rules provided for in 168 will not apply in case there is a convincing proof of filiation that the father of
the child is the previous husband or the subsequent husband. 168 will apply only in the absence of proof
to the contrary.
5. 168 does not provide any presumption as to the legitimacy or illegitimacy but merely state when the child
is considered to have been conceived. The status of the child will depend upon the status of the marriage
in which he or she is considered to have been conceived.
6. Hence, if a mother marries again and a child is born within 180 days from the solemnization of the second
marriage and within the 300 day period after the termination of the 1 st marriage an there is no concrete
proof as to the father of the child, the child is considered to have been conceived of the first marriage. But
if the child is born after 180 days following the celebration of the marriage, is considered to have been
conceived during such marriage in the absence of proof to the contrary, even though it be born within the
300 days after the termination of the former marriage.
Q: WHAT IF THE CHILD WAS BORN AFTER 300 DAYS FOLLOWING THE TERMINATION OF THE MARRIAGE,
HOW MAY THE LEGITIMACY BE QUESTIONED?
ANS:
Article 169 provides for the rule;
-The legitimacy or illegitimacy of a child born
-after three hundred days following the termination of the marriage
-shall be proved by whoever alleges such legitimacy or illegitimacy.
NOTES:

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1.
2.

In the absence of any subsequent marriage after the termination of the 1 st marriage, the father of a child
born after 300 days from such termination can be anybody. Thus there is no presumption for a child born
after 300 days after termination of marriage.\
While there have been cases where gestation period reached from up to 316 days to 330 days, this is not
normal and hence other convincing proofs of filiation must be shown. Hence, a child allegedly a result of
the rape by the accused on the victim was born after 10 months and 11 days from the alleged rape
incident, the SC ruled that such circumstance is not normal and could only prove that there were
subsequent acts of sexual intercourse after the first alleged rape.

Q: WHEN MUST THE ACTION TO IMPUGN THE LEGITIMACY OF A CHILD BE FILED, AND WHO MUST FILE
SUCH SUIT?
ANS:
Articles 170 and 71 state;
Article 170
-The action to impugn the legitimacy of the child
-shall be brought within one year
-from the knowledge of the birth or its recording in the civil register,
-if the husband or, in a proper case, any of his heirs,
-should reside in the city or municipality where the birth took place or was recorded.
-If the husband or, in his default, all of his heirs
-do not reside at the place of birth as defined in the first paragraph
-or where it was recorded,
-the period shall be two years if they should reside in the Philippines;
-and three years if abroad.
-If the birth of the child has been concealed from or was unknown to the husband
-or his heirs, the period shall be counted from the discovery or knowledge
-of the birth of the child or of the fact of registration of said birth, whichever is earlier.
Article 171
- The heirs of the husband may impugn the filiation of the child
-within the period prescribed in the preceding article only in the following cases:
(1) If the husband should died before the expiration of the period fixed for bringing his action;
(2) If he should die after the filing of the complaint without having desisted therefrom; or
(3) If the child was born after the death of the husband.
NOTES:
1. Impugning the legitimacy of a child cannot be by way of defense or as a collateral issue. It must be in direct
suit. Principally, only the husband can file a direct action to impugn the legitimacy of a child. This is true
even if the child were conceived through heterologous artificial insemination by a donor not the husband.
2. Heirs can only substitute him only if he dies before the expiration of the period fixed for bringing the
action or after the filing of the same without him having desisted therefrom, or the child was born after his
death.

3.

4.

5.

Example:
A wife gives birth to a child of her paramour and said child is born inside the valid marriage. Such child is
considered to be legitimate still between the husband and wife.
-Only the husband can impugn the legitimacy of the child if said husband wants to.
-If the paramour files an action for the custody of the child, contending that he is the natural father, the
action shall be dismissed because only the husband can claim that the child is illegitimate.
To allow the custody case to prosper would mean, allowing the paramour to impugn the legitimacy of the
child vis-a vis the husband which is not sanctioned by law.
In a case filed by the niece of the decedent for the conveyance of property of the latter, the niece may to
prove her filiation to her aunt by presenting evidence. Despite the weakness of the evidence to establish
proof of her legitimacy, the presumption of legitimacy still prevails, and the defendant had no legal
standing to impugn the legitimacy of the niece as he is not the father of the niece.
The heirs are mere substitutes of the husband and cannot file any action to impugn the legitimacy of the
child if the husband himself failed to file such action despite knowledge of the illegitimacy within the
prescribed period or when the husband renounces his right to impugn the subject childs legitimacy, or it
is shown that he has desisted from pursuing a suit already filed. However, the heirs can still file such suit
after the death of the husband within the prescriptive period. All kinds of heirs, whether testamentary or
legal, compulsory or voluntary are contemplated by law.
PRESCRIPTIVEPERIOD: It is important to remember that the prescriptive period will start to run from
the time the husband knew of the birth or recording in the civil register not from the subsequent
knowledge that the child is not his child. Also, Concealment provided by law, does not refer to the
concealment that the child was not the husbands but the concealment that a child was born or registered
in the civil registry as having been delivered by the wife.

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Q: WHAT ARE THE PROOFS OF LEGITIMACY?

ANS:
Article 172 provides;
-The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by
the parent concerned.
-In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
NOTES:
1. While 172 refer to proof of legitimacy such proofs can be used to prove illegitimacy as provided in Article
175. 172 merely provide the documents establishing the filiation of legitimate children or illegitimate
children. The legitimate or illegitimate filiation does not rise from the statements and admissions made in
documents mentioned in Article 172 (1) and (2) but from the fact that the children were conceived or
born inside a valid marriage in case of legitimacy or from the fact that children were conceived or born
outside a valid marriage.
2. Hence 172 (1) and (2) may only have a legal significance upon a clear showing that the children were
born inside a valid marriage or outside a valid marriage or in a void marriage in case of illegitimate
filiation.
3. The probative value of said documents however attains a great probative weight and significance over all
other evidence where the children were born 300 days following the termination of the marriage and no
subsequent marriage has been entered into. This is so, because in such cases, there is no declaration or
presumption of legitimacy or illegitimacy.
4. Record of birth:
a. It is a good proof as it proceeds from an official government source.
b. The birth certificate signed by the parents is adequate proof of paternity without need of further court
action.
c. If the father did not sign in the birth certificate, the placing of his name by the mother or doctor or
registrar is incompetent evidence of paternity of said child
5. Final Judgment:
a. A final judgment bearing on the status of the child as legitimate is binding and conclusive.
6. Admission in Public or private handwritten document:
a. This is likewise a complete act of recognition and no need for a court action.
b. A private instrument must be handwritten and signed by the parents such that secondary student
permanent record, or a marriage contract stating that the advice of the alleged father was obtained,
not signed by the alleged father are not adequate proofs of filiation.
c. If it is a mere instrument not in the handwriting of the spouse parent or not a public instrument it will
not qualify under the law. Thus a childs written consent to the operation of the alleged father is not a
proof of filiation.
7. Open and Continuous possession of legitimate status:
a. In the absence of the foregoing evidence, however, the legitimate or illegitimate filiation can be
proven by the open and continuous possession of the status of a legitimate or illegitimate filiation can
be proven by the open and continuous possession of the status of a legitimate child.
b. Possession of such status means that the father has treated the child as his own directly and not
through others and without concealment through without publicity. There must be a showing of the
permanent intention of the supposed father to consider the child as his own by continuous and clear
manifestation of paternal affection and care.
c. Paternal affection and care must not be attributed to pure charity, in such a nature that they reveal
not only the conviction of paternity but also the apparent desire to have and treat the child as such in
all relations in society and in life, not accidentally but continuously.
8. Evidence under the rules of court and special laws:
a. In the absence of the evidence of 172 (1) and (2) Rules of Court and special laws apply.
b. Hence, pictures, typewritten letters and affidavits do not constitute proof of filiation. The fact alone
that the person used the surname of his father after the latters death, without his assent or consent,
does not constitute a proof of filiation or paternity
c. Earlier the SC does not allow baptismal record or certificate to constitute proof of filiation but in
Mendoza vs. CA 201 SCRA 675, it was held that; filiation may be proved by any means like baptismal
certificate, a judicial admission, a family bible in which his name has been entered, a common
reputation respecting his degree, admission by silence, the testimony of witnesses and such other
kinds of proof admissible.
d. For baptismal certificate to be proof of filiation, it must be shown that the father therein participated
in the preparation of the same, without his signature, it will not be competent proof of paternity. The
same requirement applies to certificate of live birth. If there is no showing that the putative father had
a hand in the preparation of the certificates it will not be a competent evidence of paternity.

99

Q: WHEN CAN A CHILD FILE A CLAIM FOR LEGITIMACY?

ANS:
Article 173 states;
-The action to claim legitimacy may be brought by the child
-during his or her lifetime
-and shall be transmitted to the heirs should the child die during minority
-or in a state of insanity.
-In these cases, the heirs shall have a period of five years
-within which to institute the action
-The action commenced by the child
-shall survive notwithstanding the death of either or both of the parties
NOTES:
1. This action is of a personal character and generally pertains only to the child.
2. Only the child may exercise it at anytime during his lifetime.
3. As exception, and in three cases only, it may be transmitted to the heirs of the child, to wit; if he or she
died during his minority, or while insane, or after the action had already been instituted.
4. Inasmuch as the right of action accruing to the child to claim his or her legitimacy lasts during his lifetime,
he or she may exercise it either against the presumed parents or his or her heirs.
Q: WHAT ARE THE RIGHTS OF A LEGITIMATE CHILD?
ANS:
Article 174 provides;
Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on
Surnames;
(2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in
conformity with the provisions of this Code on Support; and
(3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code.
NOTES:
1. A legitimate child has his or her lifetime to file an action to claim her legitimacy regardless of what type of
proofs he or she has as provided in Article 173.
2. An illegitimate child has his or her lifetime to file an action to claim illegitimacy only if he or she uses the
proofs under the first paragraph of article 172. If such illegitimate child uses the proofs under the 2 nd
paragraph of 172 (continuous possession and Rules of Court), such child could only bring the action
within the lifetime of the parent.
3. The right of the legitimate child to file an action to claim his or her legitimacy may be transmitted to his or
her heirs as provided in 173 while the right of the illegitimate child to claim his or her status is not
transmissible to his heirs.
4. In the direct line of relationship. The legitimate child is entitled to receive support from any of his
ascendant and descendants in accordance with 195 and 199.
5. With respect to an illegitimate child, in the direct line, he is entitled to receive support only up to his
grandparents and his or her grandchildren as provided in 195 (2) and (3)
Q: HOW MAY AN ILLEGITIMATE CHILD ESTABLISH THEIR ILLEGITIMATE FILIATION?
ANS:
Article 175 states;
-Illegitimate children may establish their illegitimate filiation
-in the same way and on the same evidence as legitimate children.
-The action must be brought within the same period specified in Article 173,
-except when the action is based on the second paragraph of Article 172
-, in which case the action may be brought during the lifetime of the alleged parent.

NOTES:
1. 175 contemplates a situation where a child is born outside a valid marriage or inside a void marriage,
except those provided in Article 54, seeks to claim his or her illegitimate status.
Example:
Husband A is married. He has an extra-marital relationship with C and they had a child D.
-D is illegitimate. D may file an action to claim his illegitimate status vis-a vis A.
However, if C is married, D cannot file an action to claim illegitimate status against A although A is in fact is
natural father. (Again) this is so because, D is born inside a valid marriage of C . It is only up to the husband of
C who can impugn the legitimacy of D, without the action to be filed by the husband of C, D will remain to be
legitimate.

100

-To allow D to file an action against to claim his illegitimate status in relation to A would in effect allow him to
impugn his status with respect to C and her spouse.
- If the husband of C impugns the legitimacy of D and successfully proved it, only then can D claim his
illegitimate status in relation to A. He may do so in accordance with law using the appropriate proofs of
filiation and within the prescriptive period.
2. Proofs:
a. the same proofs for legitimate children may be used by the illegitimate child to prove their filiation.
b. Even the rules of Evidence provided in the rules of Court may be used by the illegitimate child to prove his
filiation, such as Rule 130, Section 30: Act or declaration about pedigree
c. Proof of illegitimate filiation must be clear and convincing.
d. Section 40, Rule 130 of the Rules of evidence which provides that entries in family bibles, or other family
books, or charts, engravings, on rings, family portraits and the like may be received as evidence of pedigree
does not include private letters and notes. It is only limited to objects which are commonly known as family
possessions, or those article which represent in effect a familys joint statement of its beliefs as to the pedigree
of a person.
3. Prescriptive period:
a. If the proofs to be used by the child are those under first paragraph of Artcile 172, he or she has his lifetime to
bring the action to claim his illegitimate status. If the proofs are those in the first paragraph, the illegitimate
child may only bring the action during the lifetime of the alleged parent.
Q: WHAT ARE THE RIGHTS OF AN ILLEGITIMATE CHILD?
ANS:
Article 176 provides;
-Illegitimate children shall use the surname
-and shall be under the parental authority of their mother,
-and shall be entitled to support in conformity with this Code.
- The legitime of each illegitimate child shall consist of one-half
-of the legitime of a legitimate child.
-Except for this modification, all other provisions in the Civil Code
- governing successional rights shall remain in force.
NOTES:
1. Surname:
a. The illegitimate child shall generally use the surname of the mother regardless of whether or not the
father admits paternity.
b. Despite the above ruling of the SC, it is still sound to argue that id the illegitimate child is admitted by
the father as his and such illegitimate child live with his mother and the father thereby vested
parental authority pursuant to Article 211, such illegitimate child can use the surname of the father as
this is for the best interest of the child.
c. There is no reason why the illegitimate child can use the surname of the father who pursuant to
Article 211 has parental authority over them and who us also vicariously liable for damages such child
can cause to other person pursuant to 211.
Q: WHAT IS LEGITIMATION AND WHAT ARE THE RULES GOVERNING SUCH?
ANS:
Articles 177 to 180 provide;
Article 177
-Only children conceived and born outside of wedlock of parents who,
-at the time of the conception of the former,
-were not disqualified by any impediment to marry each other may be legitimated.
Article 178
-Legitimation shall take place by a subsequent valid marriage between parents.
-The annulment of a voidable marriage shall not affect the legitimation.
Article 179
Legitimated children shall enjoy the same rights as legitimate children.
Article 180
The effects of legitimation shall retroact to the time of the child's birth.
NOTES:
1. Legitimation is purely statutory creation. Laws providing for the process of legitimation are remedial in
character intended for the benefit and protection of the innocent offspring and therefore may be applied
retroactively and must be construed liberally.
2. REQUIREMENTS:

101

a.

3.

The parents do not suffer any legal impediment to marry each other at the time of the conception of
the child by the mother
b. The child has been conceived and born outside of a valid marriage.
c. The parents subsequently entered into a valid marriage. The annulment of the voidable marriage shall
not affect the legitimation.
Under the Civil Code, the acknowledgement of the father as to the child is important for legitimation.
Hence, without which even with a subsequent marriage, the child born outside their marriage is still not
legitimated. But this requirement is dispensed by the FC.
Example:
In 1983 B gives birth to X and the father M does not recognize the child as his. In 1984 B and M got
married. Still the child is not legitimated under the Civil Code. But under the family Code which took effect
1988, the child is legitimated.
THAT BEING THE CASE: While a legitimating statute adopted after the birth of an illegitimate child may
have the effect of legitimating the child it will not affect the property rights which have already vested.

Example:
(same facts as above) but M dies in 1985, X is legitimated in 1988, as to the property rights which have
already been transmitted to the legitimate children of B and M upon the death of M, X will not have a claim
anymore, as such property rights have already been vested in 1985 when M dies.
4. If the either or both of the parents suffer any legal impediment to marry each other at the time of the
conception of the child, as when both or either is only 17 years of age, the child despite a subsequent
marriage after reaching the age of majority will still be considered as illegitimate. The remedy is for the
parents to adopt the child. Hence, children of adulterous and bigamous marriages cannot be legitimated.
5. Effects of Legitimation:
a. The effects retroacts to the childs birth.
b. They have same rights as legitimate child. Unlike adoption where the extent of filial relationship is
defined by law as between the parent and the child only, the provision on legitimation does not do so.
6. The local civil registrar likewise has a legitimation register. The legitimation of a child may be recorded in
the legitimation register entering the name of parent and other date necessary.
Q: WHAT IF SAID CHILD SUBJECT OF LEGITIMATION DIES BEFORE THE CELEBRATION OF THE MARRIAGE?
ANS:
The effect is provided by Article 181;
-The legitimation of children who died before the celebration of the marriage
- shall benefit their descendants.
NOTES:
1. To show how this is important:
As provided by law;
Legitimate ascendants and descendant are obliged to support each other, Article 195 (2). Hence in the
legitimate direct line, a grandparent is obliged to support his great grandchild.
However, In case there is an illegitimate children involved, parents are only obliged to support their
legitimate children and the illegitimate or legitimate children of the latter, Article 194 (4). In short, in the
illegitimate direct line, grandparents are not obliged to support their great grandchildren.
EXAMPLE:
M and P are in a relationship, they had a son S without a benefit of a valid marriage. S had a legitimate
child Z. Z had a child Y. M is not obliged to support Y but only up to Z her grandson. If after the death of her
Illegitimate child S, M got married to P, then S who is their illegitimate son is legitimated. His legitimation
after his death would benefit his descendant including Y. Hence M is now obliged to support Y.
Q: WHAT IS THE PRESCRIPTIVE PERIOD FOR IMPUGNING LEGITIMATION AND WHO CAN IMPUGN SUCH?
ANS:
Article 182 states;
-Legitimation may be impugned only by those who are prejudiced in their rights,
- within five years from the time their cause of action accrues.
NOTES:
1. The terms rights as mentioned in this provision refers to successional rights, of the compulsory heirs
which will be prejudiced by the legitimation.
2. Hence the action to impugn the legitimation accrues only at the time when the successional rights to the
legitime will vest- only upon the death of the parents of the legitimated child.

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SUPPORT:
Q: WHAT COMPRISES SUPPORT?
ANS:
Article 194 provides;
-Support compromises everything indispensable for sustenance, dwelling, clothing,
-medical attendance, education and transportation,
-in keeping with the financial capacity of the family.
-The education of the person entitled to be supported
-referred to in the preceding paragraph shall include
-his schooling or training for some profession, trade or vocation,
-even beyond the age of majority.
-Transportation shall include expenses in going to and from school,
-or to and from place of work.
(support includes whatever is necessary to keep a person alive)

Q: WHO ARE OBLIGED TO SUPPORT EACH OTHER?

ANS:
Article 195 provides;
-Subject to the provisions of the succeeding articles,
-the following are obliged to support each other to the whole extent
- set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood
NOTES:
1. Mandatory Nature:
a. Support is a mandatory obligation. It is the most sacred and important of all obligations imposed by law
and it is imposed with overwhelming reality.
b. No waiver, renunciation transmission and compensation shall lie, as this would be in violation of Article
195, public policy, morals and good customs
c. Hence, If the father being a defendant in a case, denies paternity and the mother agreed to the subsequent
dismissal of the said case, provided the father does not pursue his counterclaim, this does not bar the
mother to file a subsequent case for support on behalf of the child, because, such manifestation and
agreement constitute a form of renunciation.
2. between spouses:
a. Support between spouses presupposes a valid marriage between the parties.
b. A husband cannot by his wrongful acts relieve himself from the duty of support for his wife imposed by law, and
where a husband by wrongful, illegal and unbearable conduct, drives his wife from the domicile fixed by him
cannot take advantage of her departure to abrogate the law applicable to the marital relations and repudiate his
duties.
c. Adultery of the wife however, is a valid defense against an action for support.
d. In case for support between husband and wife where the validity of the marriage is in issue, the aggrieved party
cannot be given support pendente lite by the other spouse immediately without due hearing because prior to the
rendition of a final judgment declaring the existence or nonexistence of the marriage, nothing exits except the
allegation of marriage and a denial thereof.
e. Pending proceedings for legal separation or annulment, the spouses shall be supported by the ACP or the CPG. In
cases of legal separation, Article 198 states that the court may order the guilty spouse to support the innocent
spouse, even after the separation has been decreed.
f. Once a marriage is annulled or declared void the obligation to give support ceases. In legal separation it ceases
likewise, unless the court orders the guilty spouse to support the other.
3. Between ascendant and descendants:
a. All members in the direct legitimate ascending and descending line are obliged to support each other.
b. If the relationship between the one supported and the one to support is in issue, the status of the
parties should first be established first before support can be made.
c. A valid defense to refuse support by a husband to a child claiming support is that such child is the fruit
of an adulterous relationship, in which case, the child is not the child of the husband from whom
support is sought.

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4. Between Parents and their legitimate children and the legitimate and illegitimate children of the
latter:
a. The persons obliged to support each other are limited from the grandparents to their grandchildren
and vice versa.
(Same rule applies to the next paragraph)
5. Between Legitimate brothers and sisters, whether of full or half-blood
a. Must be legitimate only, hence uncles, aunts and nephews and nieces are not obliged to support each
other.
Q: WHAT ABOUT ILLEGITIMATE BROTHERS AND SISTER ARE THEY OBLIGED TO SUPPORT EACH OTHER?
ANS:
Article 196 states;
-Brothers and sisters not legitimately related,
-whether of the full or half-blood, are likewise bound to support each other
-to the full extent set forth in Article 194,
- except only when the need for support of the brother or sister, being of age,
-is due to a cause imputable to the claimant's fault or negligence.
NOTES:
1. Remember, that if an illegitimate brother or sister of age and the need for his or her support is due to his
or her fault or negligence, support does not become a demandable right and therefore may not be given at
all.
Q: FROM WHERE SHOULD THE SUPPORT BE TAKEN OUT?
ANS:
-In case of legitimate ascendants; descendants, whether legitimate or illegitimate;
-and brothers and sisters, whether legitimately or illegitimately related,
-only the separate property of the person obliged to give support
-shall be answerable provided that in case
- the obligor has no separate property,
- the absolute community or the conjugal partnership, if financially capable,
-shall advance the support, which shall be deducted from the share of the spouse
-obliged upon the liquidation of the absolute community or of the conjugal partnership.

NOTES:
1. This article highlights the fact that the support referred in Article 195 is the support which the people
enumerated therein owe personally to each other.
2. If the legitimate descendant are the common children of the spouses or the legitimate children of either
spouse, the ACP or CPG shall be principally charged for their support (Article 94 (1). This is different form
the personal support owing to them from the father or mother as provided for in Article 195 and 197.
3. Insofar as the illegitimate children of either spouse are concerned, the mere insufficiency of the separate
property is enough to make the ACP liable in the meantime.
Q: WHERE SHALL SUPPORT PENDENTE LITE BE TAKEN OUT?
ANS:
Article 198 states;
-During the proceedings for legal separation or for annulment of marriage,
-and for declaration of nullity of marriage,
-the spouses and their children shall be supported
-from the properties of the absolute community or the conjugal partnership.
- After the final judgment granting the petition,
-the obligation of mutual support between the spouses ceases.
-However, in case of legal separation, the court may order that the guilty spouse
-shall give support to the innocent one, specifying the terms of such order.
NOTES:
1. Rule 61 of the Rules of Court provides the manner by which pendente lite can be obtained. ( must see)
2. Adultery established by competent evidence of the wife is defense in an action for support. Mere
allegation of adultery does not bar the right to receive support pendent lite.
Q: WHAT SHALL BE THE ORDER OF PRIORITY FOR SUPPORT?
ANS:
Articles 199-200 state;
Article 199
-Whenever two or more persons are obliged to give support,
-the liability shall devolve upon the following persons in the order herein provided:

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(1) The spouse;

(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
Article 200
- When the obligation to give support falls upon two or more persons,
- the payment of the same shall be divided
-between them in proportion to the resources of each.
-However, in case of urgent need and by special circumstances,
-the judge may order only one of them to furnish the support provisionally,
-without prejudice to his right to claim from the other obligors the share due from them.
-When two or more recipients at the same time
-claim support from one and the same person legally obliged to give it,
-should the latter not have sufficient means to satisfy all claims,
-the order established in the preceding article shall be followed,
- unless the concurrent obligees
-should be the spouse and a child subject to parental authority,
- in which case the child shall be preferred.
NOTE:
The law sets the order of the persons upon whom liability of giving support devolves. In the presence of the spouse
the descendants nearest in degree are not obliged to give support. In the same vein the ascendants nearest in
degree shall be obliged to give support only in the absence of or in case of failure or refusal to give support by the
descendants nearest in degree.
Q: WHAT IS THE RULE OF PROPORTIONALITY ON SUPPORT AND WHAT IS THE CHARACTER OF SUPPORT
JUDGMENT?
ANS:
Articles 201 and 202 provide;
Article 201
- The amount of support, in the cases referred to in Articles 195 and 196,
- shall be in proportion to the resources or means of the giver
-and to the necessities of the recipient.
Article 202
-Support in the cases referred to in the preceding article
-shall be reduced or increased proportionately,
-according to the reduction or increase of the necessities of the recipient
- and the resources or means of the person obliged to furnish the same.
NOTES:
1. Support must be based on the necessities of the recipient and the resources or means of the person
obliged to give support. It must go to the extents where the one giving the support shall be compelled to
make such support to the detriment of his own existence (Vinluan vs. CA) where the wife asks for
excessive amount of support.
2. The judgment of support judgment is provisional in character because of the changing needs of the
recipient and the changing ability of the provider. Hence any judgment for support does not become final.
At any rate, the amount for support may be modified anytime upon application to the court.
3. The right to ask for support is demandable from the date in which the plaintiff was in need of the
same. Hence even if a previous case of support has been dismissed on other grounds, this does not
prejudice the parties as would deprive them to right to present and future support.
4. Right for support does not become dormant the five year period of execution in ordinary cases does not
apply. The support under the judgment becomes due from time to time as provided and is enforceable by
simple motion at anytime.
Q: WHEN SHALL THE OBLIGATION TO GIVE SUPPORT BE DEMANDABLE?
ANS:
Article 203 provides;
-The obligation to give support shall be demandable
- from the time the person who has a right to receive the same needs it for maintenance,
-but it shall not be paid except from the date of judicial or extrajudicial demand.
-Support pendente lite may be claimed in accordance with the Rules of Court.

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-Payment shall be made within the first five days of each corresponding month
-or when the recipient dies, his heirs shall not be obliged
-to return what he has received in advance.
NOTES:
1. Obligation to give support is demandable from the date in which the plaintiff was in need of the same. But
payment of the amount starts only from the time support has been judicially or extra judicially
demanded. Hence a child born on December 10, 1943 and the extrajudicial demand for support was
made only on June 1959, the payment of support should begin only from June 1959.
2. HOWEVER, The SC in one case, made the defendant pay support in arrears for a period of 12 years. This is
so because, the child being an illegitimate child never received any support as when she was growing up
and going to school, despite the fact that defendant is earning well. ( Ilano vs CA February 23, 1994 48
SCAD 432)
Q: WHEN A PERSON IS OBLIGED TO GIVE SUPPORT WHAT ARE HIS OPTIONS IN WHICH HE MAY GIVE THE
SUPPORT?
ANS:
Article 204 states;
-The person obliged to give support shall have the option to fulfill the obligation
- either by paying the allowance fixed,
-or by receiving and maintaining in the family dwelling
- the person who has a right to receive support.
-The latter alternative cannot be availed of
-in case there is a moral or legal obstacle thereto.
NOTES:
1. The right to elect the manner in which this support shall be given is a right conferred by law.
2. However this right is not absolute. Hence a wife a wife who is forced to leave the conjugal abode by her
husband without her fault may maintain an action for separate maintenance when she has no other
remedy notwithstanding the provision of the law giving the person who is obliged to furnish support the
option to satisfy it either by paying a fixed pension or by receiving and maintaining in his home the one
having the right to the same.
Q: WHAT ARE THE PRIVILEGES GRANTED BY LAW ON THE RIGHT TO RECEIVE SUPPORT?
ANS:
Article 205 provides;
-The right to receive support under this Title as well as any money or property
- obtained as such support shall not be levied upon on attachment or execution.
NOTE:
In case however of contractual support or that given by will the excess of the amount beyond that required for
legal support shall be subject to levy on attachment or execution.
Q: ARE STRANGERS WHO GIVE SUPPORT TO A DEPENDENT WITHOUT THE KNOWLEDGE OF THE
SUPPORTER HAVE THE RIGHT FOR REIMBURSEMENT, OR WHEN THE SUPPORTER REFUSES TO GIVE
SUPPORT HAVE THE RIGHT FOR THE SAME?
ANS:
Article 206 and 207 rules;
Article 206
When, without the knowledge of the person obliged to give support,
-it is given by a stranger, the latter shall have a right to claim the same from the former,
-unless it appears that he gave it without intention of being reimbursed.
Article 207
When the person obliged to support another unjustly refuses or fails to give support
-when urgently needed by the latter,
- any third person may furnish support to the needy individual,
- with right of reimbursement from the person obliged to give support.
-This Article shall particularly apply when the father or mother of a child
-under the age of majority unjustly refuses to support or fails to give support to the child
-when urgently needed.
NOTES:
1. Generally a stranger who furnishes support is entitled to reimbursement unless the grantor gives it as an
act of liberality or without intending to be reimbursed.

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2.
3.

4.

5.

206 and 207 refers to Quasi-contracts. Quasi-contracts is a juridical relation which arises from certain
lawful voluntary and unilateral act to the end that no one shall be unjustly enriched or benefitted as the
expense of the latter.
The requisites for reimbursement under 206 are;
a. The support has been furnished a dependent of one bound to give support but who fails to do so
b. The support was supplied by the stranger
c. The support was given without the knowledge of the person charged with the duty
The requisites for 207 are;
a. There is an urgent need to be supported on the part of the recipient
b. The person obliged to give support unjustly refuses or fails to give support
c. A stranger furnishes the support to the needy individual.
207 applies as when, a child in Manila writes his father in Davao and the child needed a certain amount to
pay his tuition fees and the father refuses because of the distance, a 3rd persons can furnish the money and
thereafter can file a claim against the father for reimbursement.

Q: HOW SHALL CONTRACTUAL SUPPORT BE GOVERNED?

ANS:
Article 208 states;
-In case of contractual support or that given by will,
-the excess in amount beyond that required for legal support
-shall be subject to levy on attachment or execution.
-Furthermore, contractual support shall be subject to adjustment
- whenever modification is necessary due to changes of circumstances
- manifestly beyond the contemplation of the parties.
NOTES:
1. Legal support is that mandated by law provided in Article 194. Contractual support on the other hand is
that entered into by the parties usually with reciprocal duties and obligations.
2. The excess in amount beyond that required by law for legal support shall be subject to levy on attachment
or execution.
3. Only contractual support and not support given in a will is subject to adjustment whenever modification is
necessary due to changes of circumstances manifestly beyond the contemplation of parties.
4. The basis of contractual support is agreement.
Example:
Parents procure an educational policy for their children, whereby for valuable consideration or payment
of premium, the said corporation shall undertake to finance all the educational needs of the children up to
the time they finish college.
- This is a contractual support.
- The money placed by the corporation in a trust fund to finance the education of the children
cannot be subject to levy or execution except the amount excess require for legal support.
- If the policy goes beyond educational support as it would include fares going to Boracay
every summer, said fares can be attached.
PARENTAL AUTHORITY
Q: WHAT SHALL PARENTAL AUTHORITY AND RESPONSIBILITY INCLUDE?
ANS:
Pursuant to Article 209 it states;
-Pursuant to the natural right and duty of parents over the person
and property of their unemancipated children,
-parental authority and responsibility shall include the caring for and rearing them
-for civic consciousness and efficiency
-and the development of their moral, mental and physical character and well-being.
NOTE:
1. Parental authority involves a mass of rights and obligation which the law grants for the purpose of the
childrens physical; preservation and development as well as the cultivation of their intellect and the
education of their hearts and senses. As regards parental authority, there is no power but a task, no
complex rights buts sum of duties, no sovereignty but a sacred trust for the welfare of the minor.
Q: CAN PARENTAL AUTHORITY BE RENOUNCED?
ANS:
No, as stated in Article 210;
-Parental authority and responsibility may not be renounced
-or transferred except in the cases authorized by law.

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NOTES:
1. The SC said that, a father who was not shown to be unfit, took away his son from the custody of the
grandparents through deceit, false pretensions and trickery has still the rightful custody of his child.
Despite his failure to support the child for 3 years is not sufficient reason to strip him of custody.
2. The right attached to parental authority, being purely personal. It cannot be transferred or renounced.
3. Only in the case of parents death, absence or unsuitability may substitute parental authority be exercised
by the surviving parents.
4. The child has the right to call upon the parent for the discharge of this duty and public policy for the good
of society will not permit or allow the parent to divest himself of these obligations in this regard or to
abandon them at his mere will or pleasure.
5. The duty of care is not necessarily dependent upon custody; a separated parent may not have custody
over her child but can still give some personal care and attention, even though the child may be properly
cared by the other parent.
Q: TO WHOM SHALL PARENTAL AUTHORITY RESIDE?
ANS:
Article 211 provides;
-The father and the mother shall jointly exercise parental authority
- over the persons of their common children. In case of disagreement,
-the father's decision shall prevail, unless there is a judicial order to the contrary.
-Children shall always observe respect and reverence towards their parents
- and are obliged to obey them as long as the children are under parental authority.
NOTES:
1. The parents are equally bound to ensure the wholesome upbringing of the children.
2. Joint parental authority applies to both legitimate and illegitimate children. 211 applies when;
a. The father is certain
b. The illegitimate children are living with the said father and mother who are cohabiting without the
benefit of valid marriage
3. 176 providing for the parental authority of the mother over the illegitimate child applies when;
a. the paternity of the child is unknown
b. Though paternity is certain, the father is not living with the mother and the child.
4. Once parental authority is vested, it cannot be waived except in cases of adoption, guardianship and
surrender to a childrens home or an orphan institution.
5. Parental authority however may be validly terminated on specific legal grounds provided in Article 228
to 232 such as abandonment and absence.
6. Both the decision of the father and the mother has merit and to be able to prevent a void that might be
detrimental to the childrens welfare, the decision of the father as head of the family is given preference.
7. If the mother or children want to change the decision of the father they must go to court but their
complaint must rest on substantial important and serious ground for the paramount interest of the child.
Q: DOES REMARRIAGE OF A PARENT TERMINATE THE PARENTAL AUTHORITY?
ANS:
Article 212 states;
-In case of absence or death of either parent,
-the parent present shall continue exercising parental authority.
-The remarriage of the surviving parent shall not affect the parental authority
- over the children, unless the court appoints another person
-to be the guardian of the person or property of the children.
NOTES:
1. The death of one of the parents will not terminate the parental authority of the surviving parent. Upon
remarriage of the surviving parent, the parental authority over the children shall not likewise be affected.
2. The new spouse by virtue of his or her remarrying the surviving spouse parent does not automatically
possess parental authority over the children of the surviving parent unless such new spouse adopts the
children.
3. Upon remarriage of the surviving parent, the court may appoint another person to be the guardian of the
person or property of the children if it is clearly shown that, by reason of the remarriage, the surviving
parent cannot undertake the necessary devotion and care loyalty and concern toward the children.
Q: IN CASE OF SEPARATION OF PARENTS TO WHOM SHALL PARENTAL AUTHORITY BE GIVEN?
ANS:
Article 213 states;
-In case of separation of the parents,
-parental authority shall be exercised by the parent designated by the Court.
-The Court shall take into account all relevant considerations,

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-especially the choice of the child over seven years of age,

-unless the parent chosen is unfit.
-No child under seven years of age
-shall be separated from the mother
-unless the court finds compelling reasons to order otherwise.
NOTES:
1. In case of separation parental authority shall be given to any of the parents whom may be designated by
the court.
2. Although the court may designate the exercise of parental authority on the part of one parent, this
designation does not mean that the parental authority of the other parent is necessarily terminated or
suspended.
3. Parental authority is terminated only if the court so decrees on the basis of the causes termination or
suspension of such authority provided by law.
4. Custody of children
a. Parents are never deprived of the custody and care of children except for cause.
b. In custody cases, the rights of the parents are not in issue. They have been overridden by the
singular interest of the child. The childs bests interest constitutes the cardinal principle and the
paramount consideration in custody cases
c. If the child is seven years old or above, his or her choice of a parent with whom he or she will live is
significant and the court should take this into consideration.
d. However such choice is not determinative of the issue of custody, because while the choice may be in
favor of a parent, the court may still award custody to the other parent or a third person if the
paramount interest of the child so dictates.
5. Custody Hearings:
a. The DSWD has the duty to make a case study of every child who is the subject of custody proceedings
and submit its report and recommendations to the court for its guidance.
b. The DSWD should intervene in behalf of the child if it finds that the petition for guardianship or
custody should be denied.
c. Habeas corpus case can be availed of to secure the custody of the child in case the parents are
separated from each other. It can also be used by the parents as against third persons.
d. The writ of habeas corpus is a proper remedy to enable the parents to regain the custody of a minor
even when the latter be in the custody of a third persons of her free will, because the parents were
compelling her to marry a man against her will.
6. Parental preference Rule:
a. This states that; the natural parents who are of good character and who can reasonably provide for
the child are originally entitled to the custody against all persons, whether it be foster or prospective
adoptive parents, grandparents or as against an agency or institution.
b. Welfare of the children is always a matter of paramount concern but the policy of the sate proceeds on
the theory that their welfare can best be attained by leaving them in the custody of their parents and
seeing to it that the parents right thereto is not infringed or denied.
c. Exceptions to the parental preference rule: the parents are dead, they are unfit to be entrusted with
the custody or rearing of the child, when the right has been prejudiced by discord of the parents
themselves.
7. Maternal preference Rule:
a. This does not deny or abridge the equality rights of the father because; the rights of parents are not
principal issues in a custody case but rather the best interest of the children.
b. This was emphasized in the opinion of the Code Commission, they said that where the mother
committed moral dereliction, said moral dereliction will not have any effect upon the baby who is yet
unable to understand the situation. Hence the mother can still have custody.
c. The above opinion must not however confuse the real issue, since the real issue in every custody case
is the best interest of the child. The above opinion was used by the CA in one of the cases, and the SC
reversed the decision, and awarded the custody of a child below 7 years old to the father.
8. Exception to Maternal preference:
a. Maternal preference is not an absolute rule, it functions merely as a tie-breaker in those rare cases
where parental qualities are so equally balanced.
b. Upon determination of the court that there are compelling reasons to deprive the mother of the
custody of the child, then an order may be validly issued.
c. Compelling reasons must clearly show by clear and positive evidence the unfitness of the mother.
Hence, custody will not be given to the father who is well-off but the mother can still be able to
decently rear and support them on her own.
9. If it is in the best interest of the child for his custody to be awarded to 3 rd persons the court may award
such custody to 3rd persons.
10. NO FINALITY OF Custody judgment:
a. Decision of the courts even the SC on the custody of minor children are always open top adjustments
as the circumstances relevant to the matter may demand in the light of the inflexible criterion, namely
the paramount interest of the children.
b. Even after the finality of the decision reaching up to the Supreme Court, if the circumstances change,
as when the child who was ordered to be delivered to her parents after the custody case against the

109

grandparents, tried to kill himself, in protest since she wanted to stay with her grandparents, the
court can still reverse itself.
Q: WHEN SHALL SUBSTITUTE PARENTAL AUTHORITY OF GRANDPARENTS BE PROPER?
ANS:
Article 214 states;
-In case of death, absence or unsuitability of the parents,
-substitute parental authority shall be exercised by the surviving grandparent.
-In case several survive, the one designated by the court,
-taking into account the same consideration mentioned in the preceding article,
-shall exercise the authority
NOTE:
In the absence or incapacity of the parents the grandparents are the most natural suitable logical persons to
exercise parental authority.
Q: WHAT IS FILIAL PRIVILEGE?
ANS:
Article 215 states;
-No descendant shall be compelled, in a criminal case, to testify against his parents
- and grandparents, except when such testimony is indispensable in a crime
-against the descendant or by one parent against the other
(see Rules of Evidence for clarity)
SUBSTITUTE AND SPECIAL
PARENTAL AUTHORITY
Q: WHO ARE THOSE QUALIFIES BY LAW TO EXERCISE SUBSTITUTE PARENTAL AUHTORITY?
ANS:
Under Article 216;
-In default of parents or a judicially appointed guardian,
-the following person shall exercise substitute parental authority over the child
-in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
-Whenever the appointment or a judicial guardian over the property of the child
-becomes necessary, the same order of preference shall be observed.
NOTES:
1. These persons have all the rights of the parents enumerated in Article 220. They have the same authority
over the person of the child as the parents under 233, and they shall be civilly liable for the injuries and
damages caused by the acts or omissions of the unemnacipated child living in their company and under
their parental authority.
2. The order established in this Article is not mandatory; still the basis of custody is the best interest of the
child.
Q: WHO SHALL HAVE PARENTAL AUTHORITY OVER ABANDONED, NEGLECTED AND ABUSED CHILDREN?
ANS:
Under Article 217;
-In case of foundlings, abandoned neglected or abused children
-and other children similarly situated,
-parental authority shall be entrusted in summary judicial proceedings
-to heads of children's homes, orphanages and similar institutions
-duly accredited by the proper government agency.
NOTES:
1. Foundlings- newborn child abandoned by its parent who are unknown
2. Abandoned child- one who has no proper parental care or guardianship or whose parents or guardian
deserter him for a period of at least six continuous months.
3. Neglected child-one whose basic needs have been deliberately unattended or inadequately attended.
- Neglect may be physical or emotional, physical when malnourished without proper shelter
etc. emotional when the child was raped seduced, exploited overworked etc.

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4. CHILD WELFARE AGENCY:

a. Such must first secure license from the DSWD
b. The license will not be transferable.
c. No license shall be granted unless the function and purpose of the applicant-agency is stated clearly in
writing.
5. Transfer of Parental Authority:
a. The transfer of legal parental authority can be done in 2 ways namely, voluntary and involuntary.
b. INVOLUNTARY:
(i)
The DSWD or the child placement agency will file a petition to the court for involuntary
commitment of said child to the care of any child placement agency.
(ii)
After hearing, when the child have been committed to the DSWD or the Child welfare agency,
or an individual, his parents or guardian shall have no authority over the child.
(iii)
The DSWD or the Child Welfare Agency or an individual upon order of the court shall be the
legal guardian and entitled to the legal custody and control, be responsible for his support
according to law, and when proper shall have authority to give consent to his placement
guardianship or adoption.
c. Voluntary
(i)
The parent or guardian of a dependent abandoned neglected child may voluntarily commit
him to the DSWD of any duly licensed child placement agency or individual.
(ii)
No child shall be committed unless he is surrendered in writing by the parent or guardian to
the custody of the DSWD etc.
(iii)
In case of death or legal incapacity of either parent or abandonment of the child for a period
of at least one year, the other parent alone shall have authority to make the commitment.
(iv)
When such child have been accepted by the DSWD or licensed child welfare agency or an
individual the parental authority over him shall cease.
(v)
The DSWD or the Child Welfare Agency or an individual shall be the legal guardian and
entitled to the legal custody and control, be responsible for his support according to law,
education and when proper shall have authority to give consent to his placement
guardianship or adoption.
Q: WHO ARE THOSE RECOGNIZED BY LAW TO HAVE SPECIAL PARENTAL AUTHORITY AND WHAT ARE
THEIR LIABILITIES IF ANY?
ANS:
Articles 218 and 219 provide;
Article 218
The school, its administrators and teachers, or the individual, entity or institution
- engaged in child are shall have special parental authority and responsibility
-over the minor child while under their supervision, instruction or custody.
-Authority and responsibility shall apply to all authorized activities
-whether inside or outside the premises of the school, entity or institution.
Article 219
-Those given the authority and responsibility under the preceding Article
-shall be principally and solidarily liable for damages
-caused by the acts or omissions of the unemancipated minor.
-The parents, judicial guardians
-or the persons exercising substitute parental authority
-over said minor shall be subsidiarily liable.
-The respective liabilities of those referred to in the preceding paragraph
-shall not apply if it is proved that they exercised the proper diligence
-required under the particular circumstances.
-All other cases not covered by this and the preceding articles
-shall be governed by the provisions of the Civil Code on quasi-delicts.
NOTES:
1. The persons with special parental authority are in loco parentis only with respect to unanticipated
persons and their liability will only attach in such case.
2. Special parental authority can only be exercise only over the minor while under their supervision,
instruction or custody.
3. The teacher must be the teacher in charge, He or she is the one designated by the dean principal or other
administrative superior to exercise supervision over the pupils in the specific classes or sections to which
he is assigned and thus the one immediately involved in the students discipline as he has direct control
and influence over them. Hence a mere physics teacher who is not the teacher in charge of the class is not
liable.
4. There is no more distinction as to whether the school is academic or non-academic and the liability also
extends to administrators.

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5.

The term custody under Article 2180 of the CC is applicable in the FC. Custody means, that the student is
in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate
student right and even in the enjoyment of a legitimate privilege, the responsibility of the school authority
continues. Hence, even if the student is merely relaxing in the school he is still in the custody of the school.
6. The liability of parents over the minor shall be subsidiarily liable. They are liable only if the persons with
special authority cannot satisfy their liability.
7. The defense of persons with special parental authority is that they must prove that proper diligence
required under the particular circumstances was observed.
8. REMEMBER: In order that there may be recovery for an injury, it must be shown that the injury must be
the legitimate consequence of the wrong done, the connection between the negligence and the injury must
be direct and natural sequence of events unbroken by intervening efficient causes. Negligence must be the
proximate cause of the injury.
9. Quasi-delict:
a. Article 2180 of the CC provides that teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices so long as they remain in their
custody. Liability shall attach only upon clear showing of negligence or laxness in the enforcement of
negligence.
b. This article applies if the students, pupils or apprentices are not anymore minor.
c. A teacher who must be a teacher in charge will be liable for damages committed by his students in an
academic institution.
d. Head of establishment for non-academic institution shall be liable for damages caused by their
apprentices.
e. While under Article 2180 the school is not liable it can still be liable under the principle or repondeat
superior, considering that it is the employer of the liable teacher or the head.
EFFECT OF PARENTAL AUTHORITY
UPON THE PERSONS OF THE CHILDREN
Q: WHAT ARE OTHER PARENTAL RIGHTS AND DUTIES WITH RESPECT TO THE UNEMENACIPATED
CHILDREN OR WARD ASIDE FROM THOSE PROVIDED BY PD 603?
ANS:
Under Article 220,
-The parents and those exercising parental authority
- shall have with the respect to their unemancipated children or wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and
to provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties
of citizenship;
(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and
association with others, protect them from bad company, and prevent them from acquiring habits detrimental to
their health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the circumstances; and
(8) To perform such other duties as are imposed by law upon parents and guardians.
NOTES:
1. In cases where an injury was caused by the child while still under the custody of the parent, but prior such
accident, the petition for adoption for such child was granted, it cannot be regarded that parental
authority have been transferred to and vested in the adopting parent to make him liable for the injury
caused.
2. Retroactive effect may not be given to the decree of adoption so as to impose a liability upon the adopting
parents accruing at the time when the adopting parents had no actual or physical custody over the
adopted child.
Q: WHAT IS THE EXTENT OF THE LIABILITY OF THE PARENTS AND OTHER EXERCISING PARENTAL
AUTHORITY FOR THE INJURIES AND DAMAGES CAUSES BY THE ACTS OR OMISSIONS OF THEIR MINOR
CHILD?
ANS:
Article 221 states;
-Parents and other persons exercising parental authority
-shall be civilly liable for the injuries and damages
-caused by the acts or omissions of their unemancipated children living in their company -and under their
parental authority subject to the appropriate defenses provided by law.

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NOTES:
1. For liability of the parents to attach, the unemancipated child must be living in their company and under
their parental authority.
2. The principle of parental liability is a species of vicarious liability. The civil liability imposed upon parents
for the torts of their minor children living with them is based upon their parental authority. The law
regards the parents as negligent as to their legal and natural duty to supervise the child when the child
commits a tortious act.
3. Diligence of a good father of a family may exculpate the parents from liability bunder Article 221.
Q: WHEN MAY A GUARDIAN BE APPOINTED BY THE COURT?
ANS:
Under Article 222;
The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the
child so requires.
NOTE: ( See Rules on Guardianship of Minors, A.M No 03-02-05-SC)
Q: WHAT ACTIONS MAY BE ADOPTED BY THE PARENTS OF THOSE EXERCISING PARENTAL AUTHORITY TO
PROVIDE FOR DISCIPLINARY MEASURES OVER THE CHILD?
ANS:
Under Article 223 and 224;
-The parents or, in their absence or incapacity,
-the individual, entity or institution exercising parental authority,
- may petition the proper court of the place where the child resides,
-for an order providing for disciplinary measures over the child.
-The child shall be entitled to the assistance of counsel,
-either of his choice or appointed by the court,
- and a summary hearing shall be conducted
- wherein the petitioner and the child shall be heard.
-However, if in the same proceeding the court finds the petitioner at fault,
- irrespective of the merits of the petition,
- or when the circumstances so warrant,
-the court may also order the deprivation or suspension of parental authority
-or adopt such other measures as it may deem just and proper.
Article 224
-The measures referred to in the preceding article
- may include the commitment of the child for not more than thirty days
-in entities or institutions engaged in child care or in children's homes
-duly accredited by the proper government agency.
-The parent exercising parental authority shall not interfere with the care of the child
-whenever committed but shall provide for his support.
-Upon proper petition or at its own instance,
-the court may terminate the commitment of the child whenever just and proper.

NOTES:
1. The measures imposable on the child is the commitment of the child for not more than 30 days in entities
or institution engaged in child care or in childrens home duly accredited by the government agency.
2. The parent exercising parental authority shall not interfere with the care of the child whenever committed
but shall provide for her support.

EFFECT OF PARENTAL AUTHORITY

UPON THE PROPERTY OF THE CHILDREN
Q: WHO SHALL EXERCISE LEGAL GUARDIANSHIP OVER THE PROPERTY OF AN UNEMNACIPATED MINOR?
ANS:
Under Article 225;
-The father and the mother shall jointly exercise legal guardianship
- over the property of the unemancipated common child
-without the necessity of a court appointment.
-In case of disagreement, the father's decision shall prevail,
- unless there is a judicial order to the contrary.
-Where the market value of the property or the annual income of the child

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- exceeds P50,000, the parent concerned shall be required to furnish a bond

- in such amount as the court may determine,
-but not less than ten per centum (10%) of the value of the property or annual income,
-to guarantee the performance of the obligations prescribed for general guardians.
-A verified petition for approval of the bond
- shall be filed in the proper court of the place where the child resides,
-or, if the child resides in a foreign country,
- in the proper court of the place where the property or any part thereof is situated.
-The petition shall be docketed as a summary special proceeding
- in which all incidents and issues regarding the performance of the obligations
-referred to in the second paragraph of this Article shall be heard and resolved.
-The ordinary rules on guardianship shall be merely suppletory
-except when the child is under substitute parental authority,
-or the guardian is a stranger, or a parent has remarried,
- in which case the ordinary rules on guardianship shall apply.
NOTES:
1. Regardless of the value of the common childs property the father and mother ipso jure become the legal
guardian of the childs property.
2. There are two cases where a parent cannot be the administrator of the property of her children;
a. (see)Article 923 CC- the disinherited parent shall not have the usufruct or administration of the
property which constitutes the legitime.
b. (see) Article 1035 CC-a person excluded from an inheritance by reason of incapacity such person
shall not enjoy the usufruct and administration of the property inherited by his children.
3. If the value of the property or income of the child exceeds 50K the parents are required to furnish a bond
in such amount as the court may determine, but not less than 10 percent of the value of the property or
annual income, to guarantee the performance of the obligations prescribed for general guardians.
4. Market value of the property or annual income means the aggregate of the childs property or annual
income.
5. The bond posted by the parent can be forfeited on the ground that although he had court approval to use
some of the money which the children inherited form the mother for the childrens clothing and education,
such expenditure as illegal because support cannot be taken form the property of the children,.
6. Encumbrance and disposition without courts approval cannot be exercised by the parents authority over
the estate of the ward or legal guardian. If the guardian does so, such transaction cannot bind his ward
being null and void.
Q: TO WHOM SHALL THE PROPERTY OF THE UNEMNACIPATED CHILD EARNED OR ACQUIRED WITH HIS
WORK OF INDUSTRY OR BY ONEROUS OR GRATUITOUS TITLE BELONG? WHAT IS THE RIGHT OF THE
PARENTS OVER THE FRUITS OR INCOME OF THE CHILDS PROPERTY?
ANS:
Under Article 226;
-The property of the unemancipated child earned or acquired with his work or industry
- or by onerous or gratuitous title
- shall belong to the child in ownership
-and shall be devoted exclusively to the latter's support and education,
-unless the title or transfer provides otherwise.
-The right of the parents over the fruits and income of the child's property
- shall be limited primarily to the child's support
-and secondarily to the collective daily needs of the family.
NOTES:
1. The child himself owns the property acquired by him through his work industry and shall be primarily
used for his own welfare and support and education.
2. If the childs property is more than sufficient to maintain the said child, the said properties may be used to
defray the collective needs of the family.
3. It must be emphasized under Article 195 that the child is likewise obliged to support his parents and from
his or separate property can be taken the support to be given to the parents if the same needs it and the
child can afford it.
Q: WHAT RULES SHALL APPLY IN CASE , THE PARENTS ENTRUST THE MANAGEMENT AND
ADMINISTRATION OF THEIR PROPERTY TO THEIR UNEMNACIPATED CHILD?
ANS:
Under Article 227;
-If the parents entrust the management or administration of any of their properties
- to an unemancipated child, the net proceeds of such property shall belong to the owner. -The child shall
be given a reasonable monthly allowance

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- in an amount not less than that which the owner would have paid
- if the administrator were a stranger,
-unless the owner, grants the entire proceeds to the child.
-In any case, the proceeds thus given in whole or in part
- shall not be charged to the child's legitime.
NOTES:
1. Parents who have engaged their unemancipated children to take care of their properties shall only be
entitled to the net fruits of their properties so managed.
2. This is so, because, the unemancipated child shall first be given a monthly reasonable allowance taken
from the gross proceeds of the property for the said month.
3. Other expenses of the administration and management of the property shall be taken from the proceeds.
The balance left will go to the net proceed for the parents. An exception to the above rules is when the
parent-owner decides to give the entire proceeds to the child.
SUSPENSION OR TERMINATION
OF PARENTAL AUTHORITY
Q: WHAT ARE THE IRREVOCABLE GROUNDS FOR THE TERMINATION OF PARENTAL AUTHORITY?
ANS:
Under Article 228;
Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
NOTES:
1. ( why the term irrevocable grounds) In cases under this provision parental authority is terminated
permanently and such authority cannot be revived anymore unlike in Article 229. This provision
contemplates a situation where the events happen without the fault of the parent.
2. Remember civil personality is extinguished by death.
3. Emancipation happens when the child reaches the age of 18 and likewise terminates parental authority
over the person and property of the child.
Q: WHAT ARE THE REVOCABLE GROUNDS FOR THE TERMINATION OF PARENTAL AUTHORITY?
ANS:
Under Article 229;
Unless subsequently revived by a final judgment, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.
NOTES:
1. Under this provision, the termination of parental authority is not permanent as parental authority can be
revived by court order, since these situations are without the fault of the parents or with the fault of the
parents but without malice.
2. Judicial Termination of Parental Authority:-( this happened in a case decided by the SC where in
certain cases minors were allowed to marry) cannot be obtained by the mere fact that the parents
compelled their unemnacipated daughter to marry against her will, nor the act of refusing to give their
consent to their marriage. As these are not causes provided by law to deprive parents of their authority.
3. Adoption:
a. All legal ties between the biological parent and the adoptee shall be severed and the same shall be
vested on the adopted upon the finality of the decree of adoption except when the biological parent is
the spouse of the adopter.
b. In case the adoption decree is rescinded such rescission shall extinguish all reciprocal rights and
obligations between adopters and adoptee, in which case, the parental authority of the biological
parent, if known, or the DSWD is the adoptee is still a minor or incapacitated shall be restored.
4. Guardianship: a guardian appointed by the court shall generally have the care and custody of the person
of his or her ward and the management of his estate.
5. Judicial Decree of abandonment:
a. This ground refers to a judicial decision arising from a case filed for declaration of abandonment.
b. Abandonment imports any conduct on the part of the parent which evinces a settled purpose to
forego all parental duties and relinquish all parental claims to the child.
6. Divestment by Final Court Judgment:

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a.
7.

The court may divest the parents of their parental authority over their children if the welfare of the
children demands.
b. A decree of termination must be issued only upon clear and convincing proofs
Judicial declaration of absence or incapacity:- Authority cannot be expected from an absentee or one
who is incapacitated. Once a judicial declaration of absence or incapacity has been decreed by the court
and has become final, this is a valid ground for terminating parental authority.

Q: WHAT ARE THE GROUNDS FOR SUSPENSION AND DEPRIVATION OF PARENTAL AUTHORITY?
ANS:
Under Article230- and 231;
Article 230
-Parental authority is suspended upon conviction of the parent
-or the person exercising the same of a crime
-which carries with it the penalty of civil interdiction.
-The authority is automatically reinstated upon service of the penalty
- or upon pardon or amnesty of the offender.
Article 231
-The court in an action filed for the purpose
-in a related case may also suspend parental authority
- if the parent or the person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.
-The grounds enumerated above are deemed to include cases
- which have resulted from culpable negligence of the parent
-or the person exercising parental authority.
-If the degree of seriousness so warrants,
- or the welfare of the child so demands,
- the court shall deprive the guilty party of parental authority
-or adopt such other measures as may be proper under the circumstances.
-The suspension or deprivation may be revoked
-and the parental authority revived in a case filed for the purpose
- or in the same proceeding if the court finds that the cause therefor
- has ceased and will not be repeated.
NOTE (230):
-Civil interdiction is a penalty imposed on an accused found guilty of certain crimes. It involves the deprivation
of the offender during his sentence the rights of parental authority or guardianship, either as to the person or
property of any ward, of marital authority of the right to manage his property and the right to dispose of such
property by any act of conveyance inter vivos.
NOTES: (231)
1. Court Proceeding:
a. The suspension or deprivation under 231 can be judicially decreed in a case particularly filed for that
purpose or in related case ( it may be an independent or collateral proceeding)
2. Excessive harshness or cruelty:
a. Parents may inflict corporal punishment in pursuance of disciplining the child but must not be
excessive and must not be reflective of an act of cruelty.
3. Corrupting Orders, Counsel or example:
a. It is the duty of the parents to provide the children with moral and spiritual guidance inculcate in
them honesty integrity and self-discipline.
b. Parents cannot be the one who will teach their children to steal, lie, hurt people and other negative
treat.
4. Culpable Negligence: Example: A step father forces his stepson to beg and the mother acts indifferently
or does not care about such act of the step father, she can be considered culpably negligent.
5. The grounds under 231 the suspension or deprivation may be revoked and the parental authority revived
in a case filed for the purpose or in the same proceeding, if the court finds that the cause thereof has
ceased and will not be repeated.
Q: WHAT RULE SHALL GOVERN THE DEPRIVATION OF A PARENTAL AUTHORITY OF A PARENT WHO
SUBJECTS THE CHILD OR ALLOWED THE CHILD TO SEXUAL ABUSE?
ANS:

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Under Article 232

-If the person exercising parental authority
-has subjected the child or allowed him to be subjected to sexual abuse,
-such person shall be permanently deprived by the court of such authority.
NOTES:
1. Mere inaction of the mother of a child who was subjected sexual molestation can be a ground for
deprivation of her parental authority over the child. Also, refusal of the mother of the children to believe
that her common law husband raped her daughters and still insisting to live with the rapist after
conviction can be a ground for deprivation under this provision.
2. The deprivation of parental authority under this provision is permanent. So despite an authentic
reformation of the sexual abuser ( rapist), his parental authority cannot be revived. The deprivation is
forever.
Q: CAN CORPORAL PUNISHMENT BE INFLICTED BY TEACHERS AGAINST THEIR STUDENTS?
ANS:
Under Article 233;
-The person exercising substitute parental authority
-shall have the same authority over the person of the child as the parents.
-In no case shall the school administrator, teacher of individual
-engaged in child care exercising special parental authority
- inflict corporal punishment upon the child

NOTES:
1. Corporal punishment is absolutely prohibited under the FC and even in Section 75 of the Manual
regulations of private Schools.
2. While a teacher may be administratively or civilly liable in the event that he or she inflicts corporal
punishment to a student. It has been held that where there was no criminal intent on the part of the
teacher who angrily repeatedly whipped a student resulting in slight physical injuries and where the
purpose of the teacher was to discipline the student, the said teacher cannot be held criminally liable for
slight physical injuries. ( Bagajo. Vs. Marave, 86 SCRA 389)
3. Only the parents can inflict reasonable corporal punishment to their children but persons exercising
substitute parental authority cannot. The infliction must not be harsh cruel and must not result to serious
maltreatment of the child.
EMANCIPATION:
(just read the provisions of 234 together with RA 6809)
RA 6809: An Act lowering the age of majority from twenty-one to eighteen years, amending for the purpose
Executive order numbered two hundred nine and for other purposes
Section 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as
follows:
"Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority
commences at the age of eighteen years."
Section 2. Articles 235 and 237 of the same Code are hereby repealed.
Section 3. Article 236 of the same Code is also hereby amended to read as follows:
"Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall
then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special
cases.
"Contracting marriage shall require parental consent until the age of twenty-one.
"Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for
children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180
of the Civil Code."
Section 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance policies and similar
instruments containing references and provisions favorable to minors will not retroact to their prejudice.
Section 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general
circulation.

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IMPORTANT THING TO NOTE:

(According to Sta. Maria) The last paragraph of Article 236 which had been the source of much confusion must be
read: that parents and guardians are responsible for the acts or omissions of their children or ward (18 and above
but under the age of 21). With respect to parents, the father and in case of death or incapacity, the mother is
responsible for the damages for the act of their child who is 18 but below 21, living in their company. Their liability
shall be subsidiary.
SUMMARY JUDICIAL PROCEEDINGS
IN THE FAMILY LAW

Article 238
-Until modified by the Supreme Court, the procedural rules provided for in this Title
-shall apply as regards separation in fact between husband and wife,
- abandonment by one of the other, and incidents involving parental authority
Article 239
-When a husband and wife are separated in fact,
- or one has abandoned the other and one of them seeks judicial authorization
-for a transaction where the consent of the other spouse is required by law
-but such consent is withheld or cannot be obtained,
-a verified petition may be filed in court alleging the foregoing facts.
-The petition shall attach the proposed deed, if any,
-embodying the transaction,
- and, if none, shall describe in detail the said transaction
-and state the reason why the required consent thereto cannot be secured.
- In any case, the final deed duly executed by the parties
-shall be submitted to and approved by the court.
Article 240
-Claims for damages by either spouse, except costs of the proceedings,
- may be litigated only in a separate action.
Article 241
-Jurisdiction over the petition shall, upon proof of notice to the other spouse,
- be exercised by the proper court authorized to hear family cases,
-f one exists, or in the regional trial court or its equivalent sitting in the place
- where either of the spouses resides.
Article 242
- Upon the filing of the petition, the court shall notify the other spouse,
- whose consent to the transaction is required, of said petition,
-ordering said spouse to show cause why the petition should not be granted,
- on or before the date set in said notice for the initial conference.
-The notice shall be accompanied by a copy of the petition
-and shall be served at the last known address of the spouse concerned.
Article 243
-A preliminary conference shall be conducted by the judge personally
-without the parties being assisted by counsel.
-After the initial conference, if the court deems it useful,
-the parties may be assisted by counsel at the succeeding conferences and hearings.
Article 244
-In case of non-appearance of the spouse whose consent is sought,
-the court shall inquire into the reasons for his failure to appear,
- and shall require such appearance, if possible.
Article 245
- If, despite all efforts, the attendance of the non-consenting spouse is not secured,
-the court may proceed ex parte and render judgment
-as the facts and circumstances may warrant.
- In any case, the judge shall endeavor to protect
- the interests of the non-appearing spouse.
Article 246
-If the petition is not resolved at the initial conference,
- said petition shall be decided in a summary hearing
- on the basis of affidavits, documentary evidence or oral testimonies
- at the sound discretion of the court.
-If testimony is needed, the court shall specify

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-the witnesses to be heard and the subject-matter of their testimonies,

-directing the parties to present said witnesses.
Article 247
-The judgment of the court shall be immediately final and executory.
Article 248
- The petition for judicial authority to administer or encumber
-specific separate property of the abandoning spouse
-and to use the fruits or proceeds thereof for the support of the family
-shall also be governed by these rules.
INCIDENTS INVOLVING PARENTAL AUTHORITY
Article 249
-Petitions filed under Articles 223, 225 and 235 of this Code
- involving parental authority shall be verified.
Article 250
- Such petitions shall be verified and filed in the proper court of the place where the child resides.
Article 251
-Upon the filing of the petition, the court shall notify the parents
- or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority
over the child.
Article 252
The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are
applicable.
OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS:
Article 253:
The forgoing rules in Chapter 2 and 3 hereof shall likewise govern summary proceedings filed under Article
41: Judicial Declaration of presumptive death)
51: An action of the child for the delivery of his presumptive legitime)
69: (Judicial determination of Family Domicile)
73: ( Courts adjudication of the validity of the spouses objection to the profession of the other)
96: ( annulment of the husbands decision over the administration and enjoyment of CPG)
124 (same as 96)
217: ( court order entrusting foundlings, abandoned children etc.)
insofar as they are practicable
FINAL PROVISIONS
Article 254
Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No.
603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed.
Article 255( separability)
If any provision of this Code is held invalid, all the other provisions not affected thereby shall remain valid.
Article 256( Retroactive effect)
-This Code shall have retroactive effect insofar
-as it does not prejudice or impair vested or acquired rights
-in accordance with the Civil Code or other laws.
NOTES:
Article 257
-This Code shall take effect one year after the completion of its publication
-in a newspaper of general circulation, as certified
by the Executive Secretary, Office of the President.
-Publication shall likewise be made in the Official Gazette

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FUNERALS
Q: WHO HAS THE RIGHT AND DUTY TO MAKE FUNERAL ARRANGEMENTS?
ANS:
Under Article 305 of the NCC;
-The duty and the right to make arrangements
-for the funeral of a relative shall be in accordance
-with the order established for support, under article 294 (now 199 of FC).
-In case of descendants of the same degree, or of brothers and sisters,
-the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.
NOTE:
-Those who are duty bound to make arrangements shall be in accordance with the order established for
support under Article 199 of the FC.
Q: WHAT KIND OF FUNERAL SHOULD BE SET?
ANS:
Articles 306 and 307 of the NCC states;
Article 306
Every funeral shall be in keeping with the social position of the deceased.
Article 307
-The funeral shall be in accordance with the expressed wishes of the deceased.
-In the absence of such expression, his religious beliefs or affiliation
-shall determine the funeral rites.
-In case of doubt, the form of the funeral
-shall be decided upon by the person obliged to make arrangements for the same,
-after consulting the other members of the family
NOTES:
1. The wishes of the deceased shall be mainly followed because this is part of the respect that should be
accorded to the dead. In the absence of such expression his or her religious belief or affiliation shall
determine the funeral rites.
2. In all cases, the law mandates that every funeral shall be in keeping with the social position of the
deceased.
Q: WHAT SHALL BE THE LIABILITY OF THE PERSON WHO ALLOWS DISRESPECT TO THE DEAD?
ANS:
Under Articles 308-309;
Article 308
-No human remains shall be retained, interred, disposed of or exhumed
-without the consent of the persons mentioned in articles 294 and 305.
Article 309
- Any person who shows disrespect to the dead, or wrongfully interferes
-with a funeral shall be liable to the family of the deceased for damages,
-material and moral.
Q: AGAINST WHAT PROPERTY ARE FUNERAL EXPENSES CHARGEABLE?
ANS:
Under Article 310 of the NCC;
-The construction of a tombstone or mausoleum
-shall be deemed a part of the funeral expenses,
-and shall be chargeable to the conjugal partnership property,
- if the deceased is one of the spouses.
NOTE:
Obviously funeral expenses are chargeable against the property of the deceased but if the deceased is one of the
spouses, such expenses are chargeable against the CPG.
USE OF SURNAMES
Q: WHAT IS THE SURNAME WHICH CHILDREN SHALL USE?

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ANS:
Under Article 364 and 365 of the NCC;
Article 364
-Legitimate and legitimated children shall principally use the surname of the father.
Article 365
-An adopted child shall bear the surname of the adopter.
(Articles 366 and 367 are no longer applicable since under the FC there are only two classes of children legitimate
and illegitimate)
Q: WHAT SHALL BE THE SURNAME TO BE USED BY THE ILLEGITIMATE CHILDREN?
ANS:
Under Article 368;
-Illegitimate children referred to in Article 176 of the FC shall bear the surname of the mother.
NOTES:
1. This is the rule regardless of whether or not the father admits the paternity.
2.

However, there is a sound basis to argue that an illegitimate child can use the surname of the father in
very special cases, as when the father admits the paternity of the child and at the same time living with
illegitimate child and the mother. ( see Article 176 for clarity)

3.

An illegitimate child upon adoption by her natural father may use the surname of her natural mother as
the middle name as there is no law prohibiting the illegitimate child adopted by her natural father to use
as middle name her mothers surname. After all, the use of mothers surname as middle name is in accord
with Filipino culture.

Q: WHAT SHALL BE THE SURNAME OF A CHILD CONCEIVED BEFORE THE DECREE ANNULLING A VOIDABLE
MARRIAGE?
ANS:
Article 369 states;
-Children conceived before the decree annulling a voidable marriage
-shall principally use the surname of the father
Q: WHAT IS THE NAME WHICH A MARRIED WOMAN MAY USE?
ANS:
Under Article 370-,371, 372, 373;
Article 370
A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."
Article 371
In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname.
If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to
continue employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Article 372
When legal separation has been granted, the wife shall continue using her name and surname employed before the
legal separation.
Article 373
A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370
Notes:
1. Hence, Mabel Tongyaen married to Eric Sallidao may use;
a. Mabel Tongyaen
b. Mabel Tongyaen-Sallidao
c. Mabel Sallidao
d. Mrs. Eric Sallidao
2. If the woman is legally separated she may continue using the above names, before the legal separation,
since the marriage bonds in legal separation is not severed

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3.

4.
5.

If the marriage is annulled and she is the guilty party she shall resume her maiden name and surname. If
she is the innocent spouse she may resume her maiden name and surname. However she may choose to
continue using her former husbands surname unless:
a. The court decrees otherwise
b. She or the former husband is married again to another person
If she becomes a widow she may use the deceased husbands surname as though he were still living.
TAKE NOTE: Under the Rules of Court a married woman legally separated may file a petition for the
change of name but such general provision cannot prevail over the specific provisions of Article 372 of the
NCC.

Q: WHAT RULES SHALL BE OBSERVED IN CASE OF IDENTITY OF NAMES?

ANS:
Under Article 374;
-In case of identity of names and surnames,
-the younger person shall be obliged
-to use such additional name or surname as will avoid confusion.
NOTE:
-

Hence if the parents would want to name their son after his godfather who is not related to
them, the said son must use an additional name or surname. So, if the name of the godfather is
Jandro Mugi, the godson must use an additional name such as Jandro Ngwafo Mugi

Q: CAN JUNIOR BE USED BY OTHER DESCENDANT WITH THE SAME NAME?

ANS:
Under Article 375 of the NCC;
-In case of identity of names and surnames between ascendants and descendants,
- the word "Junior" can be used only by a son.
-Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
Q: WHAT ENTRIES IN THE CIVIL REGISTRY MAY BE CHANGED OR CORRECTED WITHOUT JUDICIAL ORDER?
ANS:
Pursuant to RA 9048;
-Only Clerical or typographical error-this refers to a mistake committed in the performance of clerical work
- in writing, copying, transcribing or typing an entry in the civil register
-that is harmless and innocuous, such as misspelled name
-or misspelled place of birth or the like,
-which is visible to the eyes or obvious to the understanding,
-and can be corrected or changed only by reference to other existing record or records: -Provided,
however, That no correction must involve the change of nationality, age, status or sex of the petitioner.
NOTES:
1. Change of name and nickname can be effected through the office of the local civil registrar reviewable by
the office of the Civil Registrar General and finally the courts. A change in surname however is matter of
judicial jurisdiction.
2. The purpose of allowing a change of name or surname is to give a person an opportunity to improve his
personality and to promote his best interest.
3. But to justify a change of name there must exist a proper and reasonable compelling reason as provided
under RA 9048 Section 4;
Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may
be allowed in any of the following cases:
(a) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce.
(b) The new first name or nickname has been habitually and continuously used by the petitioner and he
has been publicly known by that by that first name or nickname in the community: or
(c) The change will avoid confusion.
4. Also, the following constitute proper and reasonable causes or compelling reasons for change of surname;
a. A ridiculous name, a name tainted with dishonor or a name extremely difficult to write or pronounce
b. A change in civil status
c. a need to avoid confusion
e.
4.

A sincere desire to adopt a Filipino name to erase signed of a former alien nationality which unduly
hampers a social and business life.
A married woman whose previous marriage was annulled and desires to have her legitimate child of a
previous marriage to adopt the surname of her second husband cannot successfully do so. The SC said that

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5.
6.

legitimate child principally use the surname of their father. In case of divorce or annulment, they shall still
carry the surname of their father. Granting such change of surname will create confusion as to his real
paternity.
However, the SC in once case allowed the change of surname of an illegitimate child as it appears that it
was for the best interest of the child.
The proceeding for change of name is a proceeding in rem, hence publication of the petition for change of
name is essential for the court to acquire jurisdiction.

Q: WHAT CAN BE THE ACTIONS TO BE FILED AGAINST THOSE WHO ARE USURPING NAMES?
ANS:
Articles 377 and 378 states;
Article 377
Usurpation of a name and surname may be the subject of an action for damages and other relief.
Article 378
The unauthorized or unlawful use of another person's surname gives a right of action to the latter.
NOTES:
1. Usurpation of the name implies some injury to the interests of the owner of the name. It consists in the
possibility of confusion of identity between the owner and usurper.
2. The following are the elements of usurpation of name;
a. There is an actual use of the anothers name by the defendant
b. The use is unauthorized
c. The use of anothers name is to designate personality or identify a person.
Q: WHEN MAY PEN NAMES BE USED ACCORDING TO LAW?
ANS:
Under Articles 379 and 380;
Article 379
-The employment of pen names or stage names is permitted,
- provided it is done in good faith and there is no injury to third persons.
- Pen names and stage names cannot be usurped.
Article 380
Except as provided in the preceding article, no person shall use different names and surnames.
ABSENCE
Provisional Measures in Case of Absence
Article 381 When a person disappears from his domicile, his whereabouts being unknown, and without leaving an
agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may
appoint a person to represent him in all that may be necessary.
This same rule shall be observed when under similar circumstances the power conferred by the absentee has
expired.
Article 382 The appointment referred to in the preceding article having been made, the judge shall take the
necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations
and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning
guardians.
Article 383 In the appointment of a representative, the spouse present shall be preferred when there is no legal
separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the
court.
Declaration of Absence
Article 384 Two years having elapsed without any news about the absentee or since the receipt of the last news,
and five years in case the absentee has left a person in charge of the administration of his property, his absence
may be declared.
Article 385 The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to the condition of his death.
Article 38 The judicial declaration of absence shall not take effect until six months after its publication in a
newspaper of general circulation.

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Administration of the Property of the Absentee

Article 387 An administrator of the absentee's property shall be appointed in accordance with article 383.
Article 388 The wife who is appointed as an administratrix of the husband's property cannot alienate or
encumber the husband's property, or that of the conjugal partnership, without judicial authority.
Article 389 The administration shall cease in any of the following cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or intestate heirs appear;
(3) When a third person appears, showing by a proper document that he has acquired the absentee's property by
purchase or other title.
In these cases the administrator shall cease in the performance of his office, and the property shall be at the
disposal of those who may have a right thereto.

Presumption of Death
Article 390 After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened.
Article 391 The following shall be presumed dead for all purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard
of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for
four years.
Article 392 If the absentee appears, or without appearing his existence is proved, he shall recover his property in
the condition in which it may be found, and the price of any property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents.
Effect of Absence Upon the Contingent Rights of the Absentee
Article 393 Whoever claims a right pertaining to a person whose existence is not recognized must prove that he
was living at the time his existence was necessary in order to acquire said right.
Article 39 Without prejudice to the provision of the preceding article, upon the opening of a succession to which
an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They
shall all, as the case may be, make an inventory of the property.
Article 395 The provisions of the preceding article are understood to be without prejudice to the action of petition
for inheritance or other rights which are vested in the absentee, his representatives or successors in interest.
These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the
Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of
this article shall be stated.
Article 396 Those who may have entered upon the inheritance shall appropriate the fruits received in good faith
so long as the absentee does not appear, or while his representatives or successors in interest do not bring the
proper actions
Notes:
1. Absence may be defined as the legal status of a person who has been absented himself from his domicile
and whose whereabouts ad fate are unknown it not being known with certainty whether he is still living
or not
2. The different stages of absence under the NCC are;
a. Provisional absence (Article 381) when a person disappears from his domicile, his whereabouts
being unknown, without leaving an agent to administer his property
b. Declared Absence ( Article 384) when a person disappears from his domicile and two years have
elapsed without any news about him or since the receipt of the last news, or 5 years have elapsed in
case he left a person to administer his property
c. Presumptive death ( Article 390, 391) When the absentee is presumed dead
3. The requisites for provisional absence are;
a. The absentee should have disappeared from his domicile
b. That his whereabouts are unknown
c. That he did not leave an agent to administer his property
d. That the appointment of a representative in connection with such property is urgent or necessary
4. The requisites for declared absence are;
a. The absentee should have disappeared from his domicile
b. That his whereabouts are unknown
c. That he has been absent without any news for 2 years if nobody was left to administer his property or
5 years is somebody is left to administer his property

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5.

6.

7.

A person is presumed to be dead after an absence of 7 years it being unknown whether or not the
absentee still lives, he shall be presumed dead for all purposes except those of succession. The absentee
shall not be presumed dead for all purposes of opening his succession till after an absence of 10 years. If
he disappeared after the age of 75, an absence of 5 years shall be sufficient in order that his succession be
opened.
As to Article 39, remember, that it cannot apply to a person who accidentally fell into the sea while on
board a vessel and consequently frowned. This is so, because the vessel was no lost during a sea voyage. In
the same vein, if a person cannot be found in a wreckage of an airplane which crashed, 391 will not apply
because the airplane is not missing. Under paragraph 2 of 391 the person subject of inquiry must have
taken part in the war.
Relevantly, in case of 391 is applicable in a particular situation, it shall be presumed that the persons died
at the time when he was last heard of and not at the end of the period.

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