Art.

36
Prejudicial Question What are the elements?
1. Previously instituted civil action involves an issue similar/intimately related to
the issue raised in the subsequent criminal action.
2. Resolution of such issue determines whether or not the criminal action may
proceed
There are Civil and criminal case both are intricately connected to each
other
The resolution of the case must be determinative of the case before the
court.
Jurisdiction to try the said question must be lodged in another tribunal. Civil
case is pending to suspend the criminal proceedings; Civil Case must be
resolved.
DONATO VS LUNA
1) Criminal case of bigamy (contracting a second marriage while having
subsequent marriage) / Petitioner cannot raise prejudicial question. Why?
Because the issuance for the nullity of marriage by the second wife is not a
determinative of the husbands guilt for crime of bigamy.
BOBIS VS BOBIS
1) Imelda Bobis filed a case of bigamy against respondent.
2) Respondent, husband filed a civil action for declaration of nullity of marriage.
HELD: Under the family code, Art. 40 before a person can contact into
marriage his first marriage must be declared null. It is not for the parties to
declare the nullity of their marriage, authority relies in the court.
QUIAMBAO VS OSORIO
-

Does not fall in the prejudicial question.

First case filed, administrative and civil case: Civil case ejectment case,
issue: right to possess. Administrative case Petitioner, Quiambao alleges
that theres already cancellation of agreement to sell.
Is there a prejudicial question here? It is in the administrative case, the
determination of who rightfully possess the land. Only then can proceed into
the ejectment case Civil case. The resolution of the civil case must be held
in abeyance until there will be a resolution in the administrative case.
Art. 36 doesnt clearly explains the concept of Prejudicial Case, It is interpret
by the Courts.

CHING VS COA
-

(Under Trust Receipts Law) Criminal case was filed . Accused filed a civil case
to move for the suspension of criminal proceedings.

Is there a prejudicial question? No. The determination of guilt of the accused

is not a determinative of guilt. There are many ways to be held an accused
Estafa under Art. 315 of RPC. Even you declared the documents null and void.

PEOPLE VS CONSING
-

3 cases are involved. 1) Case for Damages filed by PBI. 2) Criminal case for
Estafa ( falsification of title) 3)Motion was filed: asking the hearing be held in
abeyance, filed by respondent Consing, INJUNCTIVE RELIEF contending that
he was only an agent of his mother. g What is the Prejudicial Question? WON
the pendency of the civil case
NO PREJUDICIAL QUESTION. Principle of Agency: Person and the agent is one
and the same, conspire.

BOOK 1 PERSONS CIVIL PERSONALITY

I.
II.
III.

General Provisions Art 37-39

Natural Persons Art. 40-43
Juridical Persons Art 44-47

JURIDICAL CAPACITY: (ObliCOn) Art. 37 fitness to be the subject of legal

relations; acquired upon the birth of a person. You dont need to be
capacitated to be subject of legal relations.
E.G Parents opened an account in a bank. Parents gave inheritance.

CAPACITY TO ACT: power to do acts , not inherent on a person; defined by

law. The capacity to enter contracts when you enter the age of majority.

PERSON : Under Art.40, Birth determines personality. If youre inside a womb,

you are not a person according to law. According to Art. 41, if fetus had intra
uterine life of less than 7 months = not deemed born.

GELUZ VS COA
ISSUE: WON the parents of unborn child recovered pecuniary damages that is
contracted by the wife willfully? ACTUAL DAMAGE 3,000 MORAL DAMAGE
PECUNIARY DAMAEGE: The right to recover pecuniar y damage is the personal
right for the injured person. Since unborn child. (on account of personal injury)
Moral damages: The father failed to prove if he suffered since they know it is
their third abortion.
How civil personality is extinguished? (Art.42) Civil personality is extinguished by
death
EUGENIO VS VELEZ
-

WRIT OF HABEAS CORPUS: writ of the court to produce a person in court ;

DEATH EXTINGUISHES EPRSONALITY: Writ of habeas corpus is not applicable

since the person already died, need another remedy which is the CUSTODY
OF THE DEAD BODY.

Art. 44 The ff are juridical persons :

1. State and its political subdivisions
2. Other corporations, institutions and entities for public interest or purpose
created bylaw
3. Corporations, partnerships and associations for private interest or purpose to
which the law grants a juridical personality
May juridical persons acquire and posess property? YES. Accdng to Art. 45, they
may acquire property, incur obligations and bring civil / criminial actions.
II. CITIZENSHIP AND DOMICILE
Art. 48 51
Who are citizens of the Ph? Under ART. IV 1987 CONSTI
1. Those who were citizens of the PH at the time of the adoption of the
Constitution of the Philippines
2. Those whose fathers are citizens of PH
3. Those whose mother are citizens and upon reaching the majority elect
Philippine citizenship
4. Naturalized ina ccordance w/ law
MODES OF ACQUIRING CITIZENSHIP (1) jus soli (2)jus sanguini (3) naturalization
DOMICILE = HABITUAL RESIDENCE
FAMILY CODE took effect Aug 3, 1988 / E.O 209

MARRIAGE
Most abused Art. 36: Declaration of nullity of marriage in Physcological Incapacity.
Declaration of Nullity is tedious. Divorce is easy.
-What is Marriage? CONTRACT : elements of contract consent of the contracting
parties ; object- permanent union ; NATURE CONSEQUENCES OF MARRIAGE
governed by law. JUDICIAL DECLARATION OF NULLITY is different FROM ANNULMENT
Reatroactivity under Art 256 FC Code shall HAVE retroactive effect in so far as it
not prejudice / impair vested right, in CC ( NO RETROACTIVE EFFECT)

ARUEGO VS CA
-

In this case, no retroactivity since it will impair the vested right of the
petitioner, the vested or acquired right is not defined in the law so its upon
the discretion of the court to determine these rights.
Fiscal had a child of the secretary
Court ruled the child didnt lose the right in the new Family Code. They can
still file for the recognition of the child. The family code has given retroactive
effect when theres no vested right impaired.

BERNABE VS ALEJO
-

Under new rule, the illegitimate child must be alleged in the LIFETIME of the
parent.
Rule in evidence: person who alleges must prove the allegations. EXCEPTION
is marriage. As long as theres an allegation of marriage then it presumes
that theres an existence of marriage.
Presumption of Marriage RATIONALE: Since theyve been living together.

ART. 1 of Marriage A special contract of permanent union bet a man and a woman
enetered into in accordance with law for the establishment of conjugal and family
life. INVIOLABLE AND EPRMANNET IN NATURE.
NOTE: COURT WILL AS MUCH AS POSSIBLE RESOLVE IN FAVOR OF THE MARRIAGE.
PANAGANIBAN VS BORROMEO
Penalty: The lawyer was disbar; the notarized contract was invoked.
MARIATEGUI Presumption of marriage even out of wedlock but with a child and no
divorced obtained
Marriage not subjected into stipulation, The agreement between Alejandro and Juana

Mapala is contrary to morals, customs and public policy, as consequence not judicially
recognizable. In marriage, parties cannot provide any stipulation, whether express or
implied, specific conditions and privileges of their marriage.

SELANOVA VS MENDOZA

The agreement in question is void because it contravenes the provision under Art. 221
of the Civil Code, which state that the following shall be void and of no effect: (1) any
contract for personal separation between husband and wife; (2) every extrajudicial
agreement, during marriage, for the dissolution of the conjugal partnership of gains or of
the absolute community of property between husband and wife.

LICHAUCO VS COA
-

Agreement bet mother in law and wife: to terminate marital relations!

ISSUE: WON the pardoning of the previous agreement was valid.

Art 2.Essential reqs of a valid marriage - No marriage shall be valid unless these
essential requisites are present:
1. LEGALC APACITY of the contracting parties who must be male / female.
2. CONSENT FREELY GIVEN in the prescence of the solemnizing officer.
Art 3. Formal requisites of marriage
1. Authority of the solemnizing officer
2. Valid marriage license except: under Chpater 2, Art. 27
3. Marriage ceremony - in the prescenc of two witnesses attesting to the celebration that

marriage ceremonytook place.

After ceremony , signing contract and sigining of witnesses
Duty of SOLEMNIZING OFFICER: Under Art.23, (4 copies) original goes to the
parties. Duplicate and triplicate to the local civil registrar, within 15 days upon the
marriage must t

Art. 4 Note: ABSENCE OF ESSENTIAL REQS/ FORMAL = VOID AB INITIO MARRIAGE ,

DEFECT IN ANY ESSENTIAL REQS = VOID, IRREGULARITY = not affect the validity
but civilly, criminally, administratively liable.

CASE 1: MARTINEZ VS TAN

Issue: WON the plaintiff and defendant are married
CASE 2: COSCA VS PALAYPAYON
Issue: WON marriages solemnized by the respondent judge are valid in accordance w/ the formal
requisites under Art.4(3) of Family Code
Art 5- minimum age of contracting marriage 18 yrs.
Art 6. No prescribed form/ religious rite in solemnizing marriage, Must = two
witnesses signed by the contracting parties
Art.7 persons authorized to solemnized marriage
1. Any member of judiciary within courts jurisdiction

2. Any priest, rabbi, imam or minister of church duly authorized his his church or
sect
3. Any captain ship / airplane chief (not only while the ship or plane is in flight
but also on stop overs)
4. Any military commander of unit
5. Any consul-general, consul or vice-consul
CAN MAYOR AUTHORIZED TO SOLEMNIZE? YES. UNDER LGU granted power (local
govt code)

* In Navarro vs Domagtoy, marriage outside judges jurisdiction is only irregularity

but in this ruling, it disagrees because it is not within judges authority and
therefore void.
Art 8 place of solemnization : chambers of judge or in open court, church
Art 9-25 Marriage License

Who issues the license?

-

Issued by the Local Civil Registrar under Art. 12

Must apply where you habitually resides
In the absence of birth cert, baptismal cert. If none sworn attestation of two people that they
are of legal age and blah blah blah.
Under Art.20 The license should be valid in any part of the Phils for the period of 120 days
Posting in Municipality for periof of 10 days if there are impediment
Art. 18,letter is not enough for the impediment of Marriage license, you must go to court to
issue TRO to Civil Registrar. In the absence of TRO, SORRY!
If youre abroad, the task of Civil Registrar is for Consul

Requirement of Parental Consnet under Art. 22 par (5) for age of 18-21
For parental advise (18-23) differ only for 3 months from the date of publication
Go thrugh counselling the must produce certificate that you undergone counselling

CASE 3: Republic vs CA and CASTRO

Absence of marriage license renders marriage void ab initio.
FOREIGN NATIONAL : get a legal capacity to marry,
ITS NOT THE CHURCH WEDDING THAT ADD VALIDITY
CHURCH = CIVIL has same VALIDITY

WHAT IS THE CONSEQUENCE OF IRREGULARITY AND DEFECT?

-

Shall not affect the validity of the marriage but the persn liable for the defect or irregularity
shall be held liable.
(1) Authority of the solemnizing officer
(2) Valid marriage license

Who can authorized?

Under Art. 7,
(1)incumbent member of judiciary, ex. Judges, Justices authority anywhere in the Philippines
Judges can solemnized in their chambers or in open court
Can the judge solemenize in Fortune restaurant?
So long as it is on his jurisdiction and consent from the parties is given.
(1) priest, rabbi, pastor but must be authorized the chuch of hes a member and must be
registered in the local civil registry
(2) any ship captain or airplane chief only in the cases mentioned in the Art. 31
Marriages in articulo mortis:
Ship or airplane chief provided the marriage is performed during
Voyage, even during stop overs
(3) Military commander of a unit who is a commission officer (Art.32) military head in
articulo mortis within the zone of of military operation
(4) Consul / Vice Consul they can issue license for Filipinos living abroad.
(5) Mayorss (Arts 444 nd 445 of LGC)
Note: includes Acting Mayor
Art. 26 Foreign Marriage so long as in accordance w/ the place solemnized is valid also in the
Philippines.
Philippine law does not provide for absolute divorce, hence our court cannot grant it, a marraiage
between two Filipinos cannot be dissolved even obtained abroad.

FOREIGN MARRIAGE
-

I.
Lex Loci Celebrationis
Every jurisdiction has all the requirements; valid in the plave and valid everywhere
Under Art. 26

CASE 5: GARCIA VS RECIO

-

Foreign divorce obtained must present as and evidence: EX OBTAINED IN KOREA,

MUST PRESENT THAT IT WAS VALID IN THEIR NATIONAL LAW
Failure in the part of Recio that he obtained the divorce as and evidence
In issue of bigamous: Court examined that his foreign divorce was limited

KINDS OF DIVORCE
Absolute divorce
Limited Divorce
CASE 5: VAN DORN VS ROMILLO
Issue: WON absolute divorce in Nevada is granted in the Philippines

CASE 6:REPUBLIC VS OBRECIDO

Both of them were Filipinos in the time of marriage, the other got naturalized and filed the
divorce. Is Art.26 of the Family Code binding on them? YES.You reckon their nationality on the
time the divorce was filed. WHY? Because its unfair.
CASE 7: CORPUS VS STO TOMAS
-

Case state the applicaple principles the problem is FAILURE to prove

Undert Art. 34: cohabitation of 5 yrs exempt marriage license

MARRIAGES EXEMPT FROM LICENSE REQUIREMENT

Art 27. Point of death, no need for license and if ever the ailing party survives it will still be
valid.
Art 28 location is so remoted
MARRIAGE W/O MARRIAGE LICENSE
Art. 34 No license for a man and woman who have LIVED TOGETHER FOR 5 YEARS w/
NO IMPEDIMENT
CASE 8 NINAL VS BAYADOG
WON the second marriage of Pepito was void? NOPE.

III. VOID AND VOIDABLE MARRIAGES

Art 35. VOID MARRIAGES FROM THE BEGINNING
1. Contracted by any party below 18 yrs of age.
2. Solemnized by not legal authorized to prform marriages except the parties
believing in good faith
3. Solemnized w/o a license
4. Bigamous/ polygamous marriage
5. Contracted thru mistake of identity
6. Void under Art. 53

Art. 36 A marriage contracted by a party who, at the time of the celebration was
psychologically incapacitated to comply with essential marital obligations even such
incapacity manifests only after its solemnization.
Lesson #6
ART. 36 PSYCHOLOGICAL INCAPACITY
-

1.
2.

3.
4.
5.

Example of void marriages

There are also void marriages in accordance with public policy
In legal separation, couple is still married but they can live separately.
What do you do if your clients want to file on the grounds of psychological
incapacity? If the client is insistent, refer him to a psychiatrist. The findings
will be a written report. If theres a basis, come back to lawyer. But
sufficient ;)
The court depends on the testimony of expert witness in the case of
annulment.
Guidelines in interpreting from Molina
Burden of proof to show the nullity of marriage belongs to plaintiff
Root cause of psychological incapicty must be: medically/clinically identified ,
alleged in the complaint, sufficiently proven by experts, clearly expressed in
the decision
Incapapcity must exisiting at the time of the marriage
Incurable
Grave enough to bring about the disability of the party to assume mariatal
oblugations
In Angeles, 1 of the requirement is MUST BE A RESIDENT of ANGELES.
Under the law, the parties should not connive or collude with the annulment.
The link between the acts and the illness is the most IMPORTANT/CRUCIAL TO
PROVE.
The state is required to intervene when theres no opposition in dissolution of
marriage.
The state adheres to the sanctitiy of Marriage, the policy that it is inviolable.
BOOK OF MARRIAGES

What are the issues in the nullity case? Art. 68 Love , Care , Support, Fidelity
(2) there is custody of children Most of the time , the petitioner has the
custody (3) Property Separation of Properties
If there is Property issue, you separate this issue , must indicate first the WON
HE IS PSYCHOLOGICAL INCAPACITATED
If the marriage is ab initio declaration of nullity if valid from the
beginningannulment
There are 2 family courts in Angeles. (1) San Fdo (2)In Guagua, tarlac,
Dinilupihan
Properties are subject to CO-OWNERSHIP

HERNANDEZ VS MARIO HERNANDEZ

-

Failed to connect the physical behaviour to psychological illness

The psychological illness is the root cause and must render that respondent is
incapable of complying marital obligations.
Alleged habitual alcoholism, sexual infidelity or perversion and abandonment
do not constitute as a ground for psychological incapacitated. It mush be
shown that a person is suffering from disordered personality as to nat able to
fulfil essential obligations.

SANTOS VS SANTOS
-

Does abandonment can be ground? Maybe. Depends on the case but here,
its not being proven.
Psychological incapacitymust be characterized by:
1. Gravity
2. Juridical antecedence
3. Incurability

YOU CAN DECLARE (petitioner) as PSYCHOLOGICAL INCAPACITATED ;)

DIFFERENCE OF ANNULMENT AND DIVORCE DEPENDS ON THE GROUNDS
-

Intention of divorce : to be equitable for everyone

What should you establish in your petition? Guidelines laid down in REPUBLIC vS
MOLINA
(1) Burden of proof to show the nullity of marriage is on the palintiff : He who
alleges must prove
(2) Medically clinicall identified as psychological illness
(3) Proven by expert
-mere showing of irreconcilable differences and conflicting personalities do not
constitute as a ground.

MARCOS VS MARCOS
-

The court cannot compel parties to undergo psychiatric examination. No

requirement for respondent to be examined
Unsatisfactory of marriage is not a ground for null and void,

SIAYNGCO
-

Declaration of nullity is PARTNER-RELATIONAL. One is only declared as

psychologically incapacitated WITH HIS SPOUSE - incompatibility

CHI MING CHOI

-

The ground of declaration of nullity is in the refusal of Chi Ming Choi

LIM
-

Doctor is asked to testify. Can the doctor be allowed to testify? Yes. Theres
no doctor-patient violated. Hes not testifying by the condition of patient. No
requirement of disclosing.

Bill of particulars if complaint does not state the allegations clearly

SOLITA V MAGTOLIS
SC says that ejusdem generis

Art. 37-Marriage incestuous

Art. 38 Void ab inito from reasons of public policy
1. Between collateral blood relatives
2. Between parents in law and children in law
3. ...
Art 39. Action or defense for declaration of nullity of marriage shall not prescribe
Art. 40 The absolute nullity of marriage may be invoked for the purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.

VOID MARRIAGE.
Art 37 - Incestuous marriage
Art. 38 affinity not by blood reasons of public policy
Sta. Maria, adopted children can marry must have forgotten Art. 38 !!!

Art. 39 (amended : OLD = 10 years period)

Art. 40 - the intention on the amendment is that for the protection of the PARTIES. Under
family code, any person who wanmts to remarry again must go to court to declare nullity of
marriage . ABSENCE such judicial declaration, you dont have any capacity to marry yet. (May
be liable for criminal case of bigamy)
In AMOR CATALAN VS COA
SC we cannot rule that the foreign decree was obtained
No standing to sue
.. Courts of law is = COURT OF EVIDENCE. NEED TO SUBSTANTIATE EVIDENCE
In case of REPUBlIC vs NOLASCO
4 requisites was laid down
Relevant also under Art. 40 because you can use PRESUMPTIVE DEATH as a means to get
married again.
TOLENTINO VS PARAS
Tolentino contracted a marriage while first marriage is subsisting.
Why the spouse wants to

WEIGL VS SEMPIO DY
.. voidable but valid until annulled.
DONATO VS LUNAImportant: categorical statement of the court: PARTIES ARE NOT ALLOWEDE TO
DETERMINE THEIR marriage as null and void.
TERRE VS TERRE
A marriage contracted n good faith wit woman already married is valid.

SERMONIA VS CA
Prescription expiration period that the law prescribes to assert and file a case.
When do you begin to count the prescription period?
Constructive notice principle in land that there must be ANNOUNCEMENT that you own that
property/ anyone who knows

MORIGO V PEOPLE
-

Elements of bigamy from Bobis vs Bobis

Is the husband guilty of bigamy? Court ruled No. Since void ab initio first marriage
Defense that petitioner NO INTENT
Atty. Canlas cant agree due to the opinion of the court will create an exception about the
absence of solemnizing officer.
Art. 41 DECLARATION OF PRESUMPTIVE DEATH
The prior spouse had been absent for FOUR CONSECUTIVE YEARS and the spouse present
had a WELL FOUNDED BELIEF that the absent spouse is already dead. And for purposes of
contracting marriage, spouse my declare PRESUMPTIVE DEATH.
Art. 391 person on board lost during a sea voyage or an aeroplane missing who has not been
heard for 4 yrs. (2) person in the armed forces who has taken part in war (3)person in danger of
death
Art. 41 Family Code
Absent 4 consecutive yrs
Stricter
Presumed to be dead 2 yrs
Well founded belief needed to secure
DECLARATION of presumptive death

Art 83 of Civil Code

Absent 7 consecutive yrs.
Unheard/ no news
Presumed to be dead 4 yrs
No need for declaration

Reason: todays technological advancement made it easier to receive news

Art. 42 What to do when the absentee when reaapered?
AMAS VS CALISTERIO

Fact of reaapearance will not invalidate the second marriage.

Consequence of re-appearance DANGER of presumptive death
Since old civil code reigning = no need for judicial declaration of absence, under FAMILY code,
need a declaration ;)
SSS vs Jarque vda De Bailon
If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by
affidavit or by court action, such absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such marriage. Since the second
marriage has been contracted because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouses physical reappearance, and by fiction of law, he

or she must still be regarded as legally an absentee until the subsequent marriage is terminated
as provided by law.
Art. 43 effects of subsequent marriage

1. Children born of subsequent marriage are legitimate even the spouse re-appear.
Art. 44 if both spouses acted in bad faith, marriage is void ab initio
Art. 45 Voidable marriages considered VALID until annulled. / ANNULMENT
1. Absence of parental consent if party is over 18 yrs old but below 21
2. Unsound mind
3. Physically incapacitated to consummate - Impotency: lack to COPULATE not mere
sterility and INCURABLE, POTENCY is presumed, and the party who alleges
impotency has the burden of proving his allegation (Jimenez vs Canijarez)
Court cannot assume impotency if wife refuses to submit phiscial examination. But can
court compel her? Yes. If she resisted, she may be held liable for contempt.
4. Consent obtained through FRAUD : (Art. 46) non disclosure of crime, concealment of
pregnancy, concealment of drug addiction, alcohol habitualism, homosexuality,
consealment of STD
5. Vitiated thru violence, intitmidation and force
Violence there is violence when in order to wrest consent, serious or irresistible force is
employed.
Intimidation compelled by reasonable and well grounded fear of an immininent and
grave evl
Undue influence person takes improper advantage of his power over the will of another
DEPRIVING another for reasonable freedom of choice.
6. Afflicted w/ sexually transmitted disease
Art 46. Ff constitute FRAUD
1. Non disclosure of previous conviction b y a final judgment of a crime involving moral
turpitude
2. Concealment of pregnancy
3. Concealment of a sexually transmissible
disease
4. Concealment of drug addiction, habitual alcoholism, homesexuallity or lesbianism
NO OTHER MISREPRESENTATION OR DECEIT SUCH AS RANK, HEALTH FORTUNE
OR CHASTITY.
DISTINCTION OF AFFLICTED W/ STD undert Art. 45(6) vs Art 46 CONCEALMENT of
STD : former, SERIOUS AND INCURABLE. Latter, whtheror not serious or curable.;)

II.

LEGAL SEPARATION
Legal Separation distinguished from Divorce

Absolute Divorce DISSOLVES the marriage and the parties can marry again. Legal Separation /
relative divorce is ONLY SEPARATION from bed and board BUT THE PARTIES REMAIN
MARRIED.
LEGAL SEPARATION VS SEPARATION OF PROPERTY
In legal separation, common life of the spouses is suspended both as to person and to properties
while in separation of property, they MAY STILL be LIVING TOGETHER but their absolute
community or conjugal partnership is DISSOLVED.
LEGAL SEPARATION VS ANNULMENT OF MARRIAGE
In legal separation, marriage is not defective while the latter is defective.
Grounds for Legal Separation (Art. 55)

1. Repeated physical violence or grossly abusive conduct

2. Physical violence to compel petitioner to change religious or political affiliation
3. Attempt of the respondent to corrupt or induce the petitioner, a common child or child of
petitioner to engage prostitution
4. Final judgment sentencing respondent of 6 yrs imprisonment
5. Drug addiction or habitual alcoholism
6. Lesbianism or Homosexuality or the respondent
7. Contracting of respondent of bigamous marriage (whether rin Phils or abroad)
8. Sexual infidelity or perversion
9. Attempt by the respondent against the life of the eptitoner
10. Abandonment of petitioner w/o justificable cause for more than 1 yr.

What are reasons fro denial of petition? Undert. Art 56!

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

Condonation
Consent
Connivance
Mutual Guilt- a person must come to court with clean hands
Collusion
Prescription of the action

Art 57 an action for legal separation shall be filed within 5 years from the time of the
occurrence of the action. Under Art 58, an action for legal separation should not be tried before 6
MONTHS shall have elapsed the filing petition. Reason = COOLING OFF PERIOD
Art 59. NO LEGAL SEPARATION should be decreedunless the court has taken the steps toward
reconciliation and despite such efforts that reconciliation is highly improbable.

Art 60. NO decree of legal separation shall be based upon a stipulation of facts or aconfesison of
judgment. (agreement) i.e Alano vs Capusan, In re: Atty. Rufillo Bucena notarizing the
agreement bet spouses to contract relationship
Is a suit for legal separation a prejudicial question to a prosecution of the respondent cause for
bigamy?
No. A petition for legal separation can be tried simultaneously from criminal action for bigamy
filed against the guilty spouse because such petiion is not intended to enforce liability arising
form the criminal action instituted but to obtain the RIGHT TO LIVE SEPARATELY from the
other spouse and its consequence. (Gandionco v Penaranda)
TITLE III : RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
Art. 68 The husband and wife are obliged to live together, observe mutual love, respect and
fidelity and render mutual help and support.
Art. 69 The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide. The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemptions. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.
(domicile) permanent residence / Note: in case of many residences the place where you
intend to return shall be the domicile.
Art. 70 OBLIGATION TO MUTUALLY SUPPORT EACH OTHER.
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 therof, 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 their separate properties.
Note: A case wherein the husband alleged the failure of the wife to support the family
financially. The court ruled The fact that the wife rear the children, is an obligation to support.
Which can be not only in monetary.
Art. 71 MANAGEMENT OF THE HOUSEHOLD
-

Shall be right and duty of both spouses

Art. 73 - PROFESSION
Objection to profession should be valid, serious and moral grounds.
In case of disagreement, the court shall decide whether or not (1) Objection is proper (2) benefit
has accrued to the family prior to the objection or thereafter

Note: A case wherein the husband prohibits his wife on being a lawyer on the ground that he
was jealous over the males predominant in her career. IT IS NOT A PROPER GROUND TO
PROHIBIT WIFE FROM ENGAGING PROFESSION DUE TO JEALOUSY. Moreover, In fact,
being JEALOUS is not a ground.
III.

PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Art. 74 (1) marriage settlements, executed before the marriage (2) provisions of Family Code (3)
by local customs
Marriage settlement = /prenup / antenuptial agreement = contract by a man and woman who
intend to get married FIXING THE PROPERTY REGIME that will govern their present and
future properties during marriage.
Art. 75 In the absence of marriage settlements, ABSOLUTE COMMUNITY OF PROPERTY
shall govern.
Marriage settlement must be registered in the local civil registry
Form:
(1) As between parties: must be in writing, must be signed by the parties, must be executed
before the marriage,
Reason why marriage settlement must be registered: BECAUSE, spouse may enter into contracts
with third persons, therefore if MARRIAGE SETTELMENT is not registered (private) it will not
prejudice third persons, and the absolute community regime will apply.
Marriages before the effectivity of Family Code are subject on RULES OF CO-OWNERSHIP

DONATIONS BY REASON OF MARRIAGE

Art. 82 DONATION PROPER NUPTIAS, donations w/c are made BEFORE celebration of
marriage .
General rule there are donations prior and during the marriage. For DURING they are not
allowed except for MODERATE and for FAMILY REJOICING.
DONATIONS PROPER NUPTIAS
(1) Does not require express acceptance
(2) May be made by minors
(3) May include future property
(4) If present property is donated, and
property regime is not absolute

ORDIANRY DONATIONS
Express acceptance is necessary
Cannot be made by minors
Cannot include future property
No limit to donation of present property.
Grounds for revocation are found in law of

community, limited to 1/5

(5) Grounds for revocation are found art 86

donations

Art 84. Limitation of donation does not apply to absolute community since such regime
The spouse can donate during the marriage
Art. 85 Donations
Reasons for prohibition of Donations between spouses
1. To prevent weaker spouse
2. To protect creditors
3. To prevent indirect modification
In arcaba vs Vda. De Bataocael, where it ahs been established by preponderance of evidence
that TWO PERSONS lived together as husband and wife without valid marriage, the
inescapable conclusion is that the donation made by one in favour of the other is VOID
UNDER ART. 87.
CHAPTER 3: SYSTEM OF ABSOLUTE COMMUNITY
Art. 88 The absolute community of property bet 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.
-

Co owners of the property they bring and those acquired by each or both of them during
the marriage.
In conjugal partnership of gains, ONLY THE NET PROFITS of the partnership are
divided bet the spouses, in the absolute community THE ENTIRE common mass of
properties is divided.

Under the OLD code, if the spouses dont have a marriage settlement/ = CONJUGAL
PARTNERSHIP. Now, Under NEW Code = ABSOLUTE COMMUNITY wherein once they get
married, they own all automatically.
MARRIAGE IS A CONTRACT SO IF EVER
Marriage Settlement / pre nuptial agreement
-

Must be executed BEFORE MARRIAGE

Must be in writing , signed by the parties

Must be registered in order to affect Third Persons.

Must it be notarized? No. Because it is in writing unless notarized by Public. Theres no need for
witnesses. Parties can draft pre-nupt except for lawyers.
Art. 89 no waiver of rights except legal separation
Art. 90 co-ownership
What constitutes community property?
Art. 91 the community property shall consists ALL THE PROPERTY OWNED by the spouses
at the time of the celebration of marriage or acquired thereafter.
Art. 92 FF SHALL BE EXCLUDED from the community property
1. Acquired by gratuitious
2. Property for personal use (however, jewelry exempt)
3. Acquired before the marriage by either who has legitimate descendants

Gratuitious = free
2 kinds of contract : ONEROUS- that you pay to get something in exchange
GRATUITOUS = which is given freely by a person (donated, inherited : YOU DONT HAVE
TO PAY, receive by a giver w/o expecting in return)
CHARGES UPON AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY
Art. 94 The absolute community of property shall be liable for:
1. Support of the spouses, their common children and legitimate children of either spouses.
Howver, illegitimate children shall be governed by the provisions on Support.
2. All debts and obligations contracted by the 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 without consent but 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 sparate
property of either spouse used by the family.
6. Expenses to enable either spouse to commence or complete professional or vocational
course or for self-improvement.
7. Antenuptial debts insofar as they redounded to the benefits of the family.
8.

ART. 95 lost in gambling not chargeable to community but winnings therefrom shall form part.
OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF COMMUNITY
PROEPRTY
Art 96. The administration/enjoyment shall belong to both spouse. In case of disagreement, the
decision of husband shall prevail. In case spouse is incapacitated or unable to participate ina
dmnistration the other spouse may assume sole powers of admnistraion. These powers do not
include powers of disposition or encumbrance which must have the authority of the court or
consent of the other spouse.
Art. 97 Either spouse may dipose by will of his or her interest in the community property
Art. 98 Neither spouse may donate any community property without the consent of the other.
DISSOLUTION OF ABSOLUTE COMMUNITY REGIME
Art. 99 the absolute community terminates:
1.
2.
3.
4.

Upon death of either spouse

When there is decree of legal separation
When the marriage is annulled or declared void
In case of judicial separation of property during the marriage under Art. 134 138

Art. 100 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.
Art. 101 If a spouse without just cause abandons the other or fails to comply with his / her
obligation, the aggrieved spouse may file for judicial separataion of property or for authority to
be the sole administrator of the absolute community.
What constitutes abandonment?
1. Left the conjugal dwelling w/o intention of returning
PRESUMPTION OF ABANDONMENT
1. Left conjugal dwelling for a period of 3 months
2. Failed to give information as to his whereabout for the priod of 3 months

LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES

CHAPTER 4: CONJUGAL PARTNERSHIP OF GAINS
Jocson Case
-

Sale of property by a father to daughter.

ISSUE: WON the sale is valid and determination of issue is dependent from
the nature of the property: Is it CONJUGAL OR NOT. WHY?
WHY THE SALE WAS DEFECTIVE? Because if its conjugal, HE SHOULD GET A
SHARE! His inheritance are impaired.
CONCLUSION: If the owner of the title appears to have a description, it is the
exclusive or paraphernal property of husband or wife. Not sufficient proof.
The court said title is not sufficient to prove the property is conjugal for
actually, it showed that the property is of the fathers.

ANSALDO VS SHERIFF
CREDITOR BORROWER SURETY/GUARRANTOR INDEMNITY AGREEMENT
1. The accounts are conjugal in character. Can these be liable by the personal
liability of husband alone?
PNB VS ANSALDO
-

Loan incurred by both spouses ( they both signed)

Both of them are obligated since they both applied and receive the proceeds
of the loan
When does conjugal commence? At the time the celebration of the marriage

Sec 1 General Provisions

Art. 105 In case of marriage settlement, the spouses agree for CONJUGAL PARTNERSHIP
OF GAINS system. The provisions of these chapter shall be supplementary application
Also applicaple to marriages before the effectivity of this code.

Art. 106 Under the regime of CPG, 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 MARRIAGE
, THE NET GAINS/BENEFITS OBTAINED SHALL BE DIVIDED EQUALLY.
Distinguished absolute community from conjugal partnership of gains:
Remember:

Each spouse has mere inchoate right over conjugal property during marriage :
Cannot alienate the supposed one-half interest of each in said properties.
Art. 107 : rules provided under Art 88 & 89 No stipulation and no waiver of rights
Under rules on the contract of partnership,hence husband and wife are liable for conjugal
obligations w/ their properties if the conjugal properties are not enough to pay for the same (PNB
vs Quintos)
EXCLUSIVE PROPERTY OF EACH SPOUSE
Art 109 The ff shall be exclusive property of each spouse.
1.
2.
3.
4.

Brought to the marriage as his or her own

Acquires during the marriage by gratuitous title
Acquired by right of redemption
Which purchased /w exclusive money of the wife or husband

Art. 110 The spouses retain the ownership, possession,a dministration and enjoyment of their
exclusive properties.
Art. 111 A spouse of age may mortgage, encumber or alienate or otherwise dispose of his or
her exclusive property w/o the consent of other spouse.
Art. 112- alienation of any exclusive property administered by the other terminates the
administration
Art. 113 Property donated or left by will shall pertain to the done-spouse as her exclusive
property.
Art. 114 If the donation are onerous
Art. 115- Retirement benefits, pensions, annuities, gratutites, usufructs and similar benefits shall
be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case.
CONJUGAL PARTNERSHIP PROPERTY
Art. 116 All property acquired during the marriage is presumed to be conjugal unless the
contrary is proved.
1. Those acquired by onerous title during the marriage with conjugal funds
2. Those obtained from the labor,industry, work or profession of either or both spouses
3. The fruits (natural, industrial or civil) of the conjugal properties as well a sthe net fruits
of the exclusive property of each spouse.
4. Share of either spouse in hidden treasure
5. Those acquired through occupation such as fishing or hunting

6. Livestock existing at the dissolution of the partnership

7. Those acquired by chance such as winnings from gambling/ betting
Art. 118 Property bought in instalments, buyer spouse should reimburse to conjugal funds the
payment.
Art. 119 PERSONAL DEBTS,
Art 120. Ownership of improvements = cost of improvement made by the conjugal partnership is
more than the value of the property at the time of improvement, 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.n
In case of DELIZO VS DELIZO
1st and 2nd marriage = CONJUGAL PAT+RTNERSHIP
Court ruled in favour of the 2nd marriage that the patent must fulfill requirements. However,
children of 1st marriage was also granted because:
1. The patent was granted during the timeof the marriage
2. Money used in buying the land
IN CASE OF UY VS CA
Common law marriage
DONATION PRIOR TO MARRIAGE
Art 84- 86
IN CASE OF ARCABA
Art. 88 governed this case
Donation in ABSOLUTE COMMUNITY IS VOID.
Concept of CONJUGAL PARTNERSHIP = agreement that these are contributed
Art. 105 and 106
Anything acquired before the marriage provided Art. 117
-

Acquired through winnings of game of chance forms part of conjugal property

EXCLUSIVE PROPERTY OF EACH SPOUSE

Under Art. 109 provides the exclusive property of each spouse

Note: Spouse can still buy property for exclusive right of the buyer
In order for the PRESUMPTION OF CONJUGAL PARTNERSHIP : prove that the property
was acquired during the MARRIAGE!!
PNB VS. QUINTOS
-

LOAN incurred by both spouses.

The wife is a party to the loan, along with her husband, so the bank can go after the conjugal
property of the spouses.

When does conjugal partnership commence: by express provisions, THE PARTNERSHIP

BEGINS TO EXIST AT THE CELEBRATION OF THE MARRIAGE.

METROBANK VS. TAN

-

The wife said she did not give consent to the mortgage of the property.

WON the land mortgage was conjugal. NO. Jose B. Tan, married to Elizago Tan.

If in the title appears the name of one party, married to another party, the presumption is that is
EXCLUSIVE or PARAPHERNAL property.
o

But you can still introduce evidence to prove otherwise, that the property was acquired
DURING the marriage of the spouses, making the property CONJUGAL. Example: Deed
of Sale, Contract.

Still disputable. Acquisition is different from registration.

PNB VS. CA
-

Donata Montemayor, widow title tells us it is paraphernal and that it was acquired when she
was already a widow especially when third parties are innocent (PNB).
o

No evidence that the property was acquired during the marriage.

A buyer is not required to go beyond the face of the title.

NOTE: PROTECTION OF INTEREST OF THE PROPERTY (from previous marriage) TO

ONE HAS LEGITIMATE HEIRS.

CUENCA VS. CUENCA

-

There must be proof that the property was acquired during the marriage.

ZULUETA VS. PAN AM

Damages awarded by husband only

The payment made was conjugal therefore the damages of the breach of contract of carriage is
conjugal.

MENDOZA VS. REYES

-

Conjugal property: YES because (1) It was acquired during the marriage (2) The funds came from
loans both of them secured from a bank.

BIG FACTOR: The buyers are of bad faith. The buyers asked and required for the consent of the
husband during the lease contract before buying the properties.

BELCODERO VS. CA
-

Conjugal: YES to Alayo and Juliana (1st marriage because that is the only valid marriage).

EMBRADO VS. CA
-

When will a paraphernal property be converted to conjugal property.

Property was originally owned by the wife (by virtue of the document venta difinitiva).

Art 158 of the Civil code (Art. 120 FC): TWO CONDITIONS (1) construction of the building at
the expense of the partnership (2) ownership of the land by one of the spouses.
o

Subject to reimbursement. But despite there is still no reimbursement, that does not stop
the conversation of the property from paraphernal to conjugal.

CALIMLIM VS. FORTUN

-

Improvements on the CPG property.

ONG VS. CA
-

Sine qua non (condition precedent).

CONJUGAL PROPERTY: NO, because it was named only on the wife.

The conjugal partnership maybe held liable for the obligations contracted by wife in connection
with her business may be chargeable.

Art. 117 of the Civil Code.

In Barciles vs GSIS
ART. 121 CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP
The conjugal partnership be liable for

1. The support of the spouses, their common children and the legitimate
children of either spouse; however, the support of the illegitimate children
shall be governed by the provisions of this code on Support.
2. All debts and obligations contracted during the marriage
3. Debts and obligations contracted by either spouse without 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 separate property of either spouse.
5. Expenses to enable either spouse to commence or complete a professional,
vocational, or other activity for self-improvement.
6. Antenuptial debts of either spouse insofar as they have redounded to the
benefit of the family.
7. The value of which is donated or promised by both spouses in favour of their
common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for selfimprovement.
8. Expenses of litigation between the spouses unless the suit if found to be
groundless.

NOTE: If the conjugal partnership is insufficient to cover the foregoing liabilities, the
spouses SHALL BE SOLIDARILY LIABLE for the the unpaid balance with their separate
properties.
In case of Plata vs Yatco
Theres a conveyance and reconveyance of the property
Property is paraphernal in character, SC said theres no evidence that property was
recquired with common funds even though its evidently acquired during the
marriage.
Javier vs Osmena
What is the nature of the property in the first place?
It was inherited. Can the properties be levied to satisfy a judgment knowing the
facts?
Only the usurfructory because it was prove that properties are paraphernal and yet
we can make answerable the fruits of the said property. Because (1) this is a loan
obligation incurred by the late father in operating business who was given by the
wife / The conjugal partnership benefited from the business and the business
beenfited from the loan obligations.

Vda de Sta romana vs PCIB

It was conjugal, it was acquired during the marriage.
G-tractors
Claim of the wife that the properties are conjugal in character and therefor only
the husband must be held liable not my property. Theres no need to prove that
actual profit redounded to the conjugal partnership to make it liable for what is
incurred, what only needs to prove is that the transaction is for the benefit of the
business.
DBP VS ADIL
1st Pn both spouses signed
2nd PN only the husband signed, cannot go to conjugal property
Held: they clearly benefited from the extension of the loan obligation by the bank
Mariano
Luzon Surety
You have to introduced evidence that actual benefit adduced by (in G tractors need
not adduced) here, court ruled that there must be ACTUAL.
BA FINANCE
Debt was incurred by the husband, clearly when the proceeds of the loan released
the spouses are not living together. The creditors are running for the properties that
the wife is claiming she shouldnt also be liable since they dint benefit.
L&A is a sole proprietorship of the wife. Can L&A enterprises be liable even conjugal
partnership? No. Because theres no showing the the proceeds of the loan benefited
the conjugal partnership.
People vs Lagrimas
If theres a judgment convicting the spouse, can the CP be liable for the liability of
the husband obligation arising from a crime?
Can you make CPG liable fro personal transgressions of the spouses?
Court rules : CPG may be held answerable but must satisfied the enumeration in Art
161, If theres no need the satisfaction of Art 161 they cannot be held liable?

Security Bank
Indemnity agreement by the husband, loan entered by the husband , presumption if
the proceeds but if only guarantor, benefitor, the presumption of benefit does not
arise.

Art. 122- The payment of personal debts contracted by the husband or wife during the marriage
SHALL NOT BE CHARGED to the conjugal partnership except as they redound to the benefit
of the family.
Art. 123 Whatever may be lost during the marriage in any game of chance, or in betting,
sweepstake, shall be borne by the LOSER and SHALL NOT be CHARGED WITH THE
CONJUGAL PARTNERSHIP but any WINNINGS therefrom shall form part of the onjugal
partnership property.
ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY
Art. 124 The administration and enjoyment of the conjugal partnership property shall belong to
both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, which must be availed of within five years
from the date of contract implementing such decision.
One spouse is incapacitated the other spouse may assume sole administration
DISSOLUTION OF CPG
1.
2.
3.
4.

Death of either spouse

Decree of legal separation
Marriage is annulled or declared void
In case of judicial separation of property during the marriage under Arts 134-138

Art. 128 If a spouse without just cause abandons the other or fails to comply with his or
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 conjugal
partnership property, subject to such precautionary conditions as the court may impose.

142- REGIME OF SEPARATION OF PROPERTY

PROPERTY REGIME OF UNIONS w/o MARRIAGE
147. under the rules of co-ownership

TITLE V. FAMILY
Art. 149 family relations are governed by law and no custom, practice or agreement destructive
of the family shall be recognized.
Art 150 family relations include those
1.
2.
3.
4.

Bet husband & wife

Bet parents and children
Among other descendants and ascendants
Among brothers and sister whther half blood or full

Art 151. NO suit bet members of the family shall prosper unless earnest effortshave been made
but failed
FAMILY HOME
Art. 152 Family home constituted jointly by the husband and wife or by an unmarried head of a
family is the DWELLING HOUSE where they and their family reside and on the land on which
it is situated.
Art 153 deemed constituted from the time it is occupied as a family residence and so long as its
beneficiaries actually resides therein., EXEMPT from forced sale or attachment