PERSONS AND FAMILY RELATIONS

COMPLETE REVIEWER
Background on the Philosophy of the Civil Code:
The Philosophy of the Civil Code
Tasks of the investigator of the Philosophy of Law:
1. Trace the origin of law to its sources in human
nature;
2. Connect the law with the society that evolved and
the circumstances of the time in which it originated;
3. Relate the importance of the law under the influence
of economic, social and other conditions;
4. Point out the basic elements of the law;
5. Distinguish law from ethics.
Our Civil Code was founded on the laws of Spain which was
based largely on Roman Law (Institutes of Justinian).
Corpus Juris Civilis- accumulation of old Roman Laws as
modified by early Christians.

Ancient Roman Law was the combination of tribal

customs, royal edicts, and priestly commands.
Ancient Romans fashioned their laws according to
their lifestyle, which at that time was greatly
influenced by religion.

Lex Jus- Command and Justice

Relationship was not only between men but between

God and men. Crimes, at that time, were considered
a disturbance of this relation.
Laws were designed to maintain and restore the
peace of the gods (pax decorum), peace between
men and peace between god and men.

Theory of Injury and Liability- Injuring ones neighbor was

discouraged because such act would prompt gods to strike
back at the evil doer thereby causing the imperil of the entire
community.
It is only when law becomes distinguishable from religion
that its philosophy becomes discernible.
Philosophy of Private Roman Law
Bonus Pater Familias- Literally meaning good father of the
family, this was considered a standard by which one should
pattern his conduct.
- Roman law was typically, a law without ethics.
Law of Contracts and Bailments- Someone who broke his oath
is considered a danger to society and is in danger of mortal
peril.
-Roman laws of property were extremely individualistic.
-Romans only recognized two forms of associationsocietas
and corporation.
Two Principles to Moderate the Extreme Individualism of
Roman Law
Humanitas- Considers kindness, goodness, sympathy,
consideration for others.

In contrast to pater familias where heads of the

family are allowed to kill his children and wife.
Spanish Precedents of Philippine Law

Visigoths- Early settlers in Spain that were overrun by Moors

who converted the former into Christianity.
Moors- Promulgated non-barbaric laws
Alaric, Leader of the Goths- Promulgated Code of Alaric
which introduced barbaric tribal customs to Roman Law.
Fuerzo Juzgo- First great code of Spain combining Roman,
Germanic and Religious edicts.
Siete Partidas- Written by Fernando III and Alfonso X, it
contained laws based on Spanish Visigoths but patterned
after Institutes of Justinian.

Contained 7 codes pertaining to different aspects of

law.

First book contained natural laws, usages and

custom and administrative laws.

Second book contained administrative laws.

Third book contained court rules, land ownership and

possession laws and servitude laws.

Fourth book contained laws on persons and family

relations.

Fifth book contained laws on obligations and

contracts.

Sixth book contains laws on succession, intestacy,

heirship and guardianship.

Seventh book contained penal laws.

Medieval Philosophy and its Influence
St. Augustine- The state is a kingdom of the Impious
St. Thomas Aquinas- Wrote the Summa Theologica

Lex Externa- laws based on divine reason which

governs the world.

Lex Naturalis- Natural laws which are made known

through reason.

Lex Humana- Positive laws which are man-made

applications of natural laws.
Penal Principles

Justicia Generalis- obligation of restitution

Justicia Particularis
o
Justicia
commutativeobligation
of
restitution
o
Justicia distribution- distributive justice
applying justice in geometric proportions.
Ordenamiento Alcala- spiritual aspects of contracts
Leyes de Toro- Written by the Spanish Cortes in 1502
Nueva Recopilacion- compilation of all Spanish Laws made in
1567
Novisisima Recopilacion- another compilation of Spanish
Laws.
1805- Civil Code became a model
-Four-book compilation of the Civil Code was promulgated.

Book One: Persons and Family Relations

Book Two: Property, Ownership and Modification

Book Three: Modes of Acquiring Ownership

Book Four: Obligations and Contracts

American Influence on the Civil Code

INDIVIDUALISM became a pervading theme during

the forging of the new Civil Code.
Bill of Rights
Seeking redress for grievances
Intersection of Modern Constitutional
Traditional Family Law

Developments and

Constitutional Provisions

Article II, Section 12: The State recognizes the sanctity of

family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents
in the rearing of the youth for civic efficiency and the
development of moral character shall receive support of the
government.
Article II, Section 14: The State recognizes the role of women
in nation building and shall ensure the fundamental equality
before the law of women and men.
Article III, Section 1: No person shall be deprived of life,
liberty or property without due process of law, nor shall any
person be denied the equal protection of the laws.
Article XV, Section 1: The State recognizes the Filipino
family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total
development.
Article XV, Section 2: Marriage, as an inviolable social
institution, is the foundation of the family and shall be
protected by the state.

Griswold vs. Connecticut

Facts: Griswold was executive director of the Planned Parenthood
League while Buxton, his co-plaintiff was a licensed physician who
served as director of the said league. Both were convicted as
accessories by virtue of a Connecticut birth control law which bars
them from giving information, instruction and medical advice for
contraception, to married persons. A married woman was examined
in the leagues headquarters along with her husband and was given a
prescription for contraception.
Held: The Connecticut Statute which forbids contraceptives abridges
the right to marital privacy without due process of the law. The state
interest protected by the statute, which is to prevent extra-marital
relations is carried out is a manner so sweeping as to penalize the
inherent intimacies of couples who have the right to plan their family.
Eisenstadt vs. Baird
Facts: William Baird was tried for exhibiting contraceptives while
delivering a lecture and for giving a young woman contraceptives. A
Massachusetts law only allows the sale of contraceptives with
prescription from a physician or a pharmacist for married couples.
Held: The statute violates the equal protection clause of the 14 th
amendment in that it discriminates between married and unmarried
couples. The means by which the State Interest is protected is not
rationally adequate whether the interest be prevention of pre-marital
sex or health protection. For one thing, the measure does not prevent
extra-marital relations for another, not all contraceptives are
considered dangerous. Lastly, the discrimination makes it seem as
though pre-marital conception and sexually transmitted disease is
punishment for pre-marital sex. This punishment is then handed out
without due process of the law.

Civil Personality
Concepts and Classes of Persons
Person- any being that can be subject of legal relations.
Classes of Persons:

Natural Persons- Human beings

Juridical Persons- entities formed by the association
of men.

Personality- aptitude of becoming subject of, active or

passive, juridical relations
Status of Persons- Legal condition or class which one belongs
in society
It is the legal or the juridical position of the
individual in society, or with regard to the rest of the
community
It is determined by a series of personal qualities,
which respectively carry with them certain rights and
obligations.
A persons status serves to determine the nature and
number of rights and obligations.
Kinds of Status
Political or Civil, depending on whether he is
considered in the light of public law or private law.
Rights and obligations in connection with suffrage
refer to Political status while those arising from
family relations refer to Civil status.
Civil Status
Status as a member of society (i.e. resident or nonresident)
Status as a member of a family
Status with respect to the person himself (i.e. age,
mental condition, sex)
Profession cannot be considered status because the
qualities which create a status should be inherent in
the person himself.
Characteristics of Status- the status of a person is outside the
commerce of man hence:
It is inalienable in that it cannot be transferred to
another;
It is imprescriptible in that it cannot be imposed on a
person;
It cannot be the subject of compromise;
It cannot be renounced;
It cannot be exercised by creditors
CC Article 37: Juridical Capacity is the fitness to be the
subject of legal relations. It is inherent in every natural
person and is lost only through death.
Capacity to act which is the power to do acts that have legal
effect, is acquired and may be lost.
Juridical Capacity- legal capacity
Capacity to Act- aptitude for the exercise of rights which is
conditional and variable, requiring intelligence and will.
CC Article 40: Birth determines personality.
The conceived shall be considered born for all purposes that
are favorable to it provided that it be born later.
Birth- removal of the fetus from the mothers womb
Conceived Child- can be given inheritance by will or donations
CC Article 41: The fetus is considered born if it is alive at the
time it is completely delivered from the mothers womb.
For premature birth of less than seven months, it is
considered born if it survives for at least 24 hours after its
delivery.
Separation- cutting of the umbilical cord
Test of life- complete respiration or in the case of a deceased
child, the lungs should float in water.

Viability- the childs ability to live which is presumed if it

survives separation from the mother

Geluz vs. Court of Appeals

Facts: Nita Villanueva has gone through abortion thrice. Oscar Lazo
sued Geluz the abortionist for pecuniary damages which was granted
by the Court of Appeals and then appealed by Geluz in the Supreme
Court.
Held: An unborn child has no juridical capacity and as such, the
parents cannot sue for pecuniary damages on its behalf. The child
not having been born, the parents are not in the position to sue on its
behalf because they cannot be considered parents if there is no child
to speak of. Moral damages cannot be granted because of the
indifference of the father.
CC: Article 42: Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the
deceased shall be determined by law, by contract or by will.
-For certain purposes, the personality is deemed to continue
in the estate of the deceased which has a legal personality
independent of the heirs.

People vs. Tirol

Facts: Ciriaco Baldesco and Bonifacio Tirol were among
the fourteen who murdered 7 members of the family of
Manibpol Kosain. They were convicted of 7 murders and
2 frustrated murders as Manibpol, the father and his
daughter, Undang, survived. In the course of the appeal,
while awaiting the final sentence, Baldesco died in
prison.
Held: Baldescos civil and criminal liabilities are
extinguished by his death however, indemnities shall be
paid for through his estate.
CC Article 43: If there is doubt between two or more
persons called to succeed each other, as to which of them
died first, the one who alleges the death of one prior to
another shall have the burden of proof.
If no proof is available then it shall be presumed that they
died at the same time.
Note: There is an issue of succession and not just
survivorship.
-Rule 123, section 69, paragraph ii:
If two or more persons die in a calamity and it
cannot be shown who died first and there are no
circumstances by which it can be inferred, survivorship is
presumed from the probabilities resulting from the strength
and age of sexes.
1. <15 years, the older is presumed to have survived
2. > 60 years, the younger is presumed to have
survived
3. <15 and >60, the younger is presumed to have
survived
4. >15, <60 for both; male is presumed to have
survived if sexes are the same, then the older one.
5. <15 or > 60 and >15 ,<60, the younger is
presumed to have survived
Joaquin vs. Navarro

Facts: During the Liberation of Manila, Joaquin Navarro Sr., his wife
Angela Joaquin, his three daughters, Pilar, Conception and Natividad
and Joaquin Navarro Jr together with his wife Adela Conde and
friend Francisco Lopez, sought refuge inside German Club. The three

daughters were instantly killed. Joaquin Sr., Joaquin Jr., with his wife
and friend, fled the place leaving Angela Joaquin in the German
Club. Immediately after leaving the place, as attested by Francisco
Lopez, Joaquin Jr. was shot in the head. Minutes later, German Club
collapsed presumably killing Angela Joaquin inside. Days later,
Joaquin Sr. died in a confrontation.
The victims were survived by Ramon Joaquin, natural child of Angela
Joaquin by her first marriage and Antonio C. Navarro, and son of
Joaquin Navarro by his first marriage.
The Court of Appeals invoked the statutory provision on the
presumption of survivorship.
Held: The statutory provision cannot be invoked because there are
evidences as attested to by Francisco Lopez, from which it can be
inferred that Angela Joaquin survived Joaquin Navarro Jr. before
having died herself.
CC Article 44: The following are juridical persons:
1. The State and its Political Subdivisions
2. Public corporations, institutions and entities which
are created by law
3. Private corporations, partnerships and associations
to which the law grants juridicalpersonality.
-Corporation is an artificial being created by law and as such,
enjoys certain rights and privileges that can be afforded to it.
CC Article 45: Juridical Persons such as the state and public
corporations are governed by laws recognizing them.
Private corporations are governed by laws of general
application on the subject.
-Corporations are governed by its charter and the Corporation
Law
-Private Partnerships are governed by its articles of
association and their contract.
CC Article 46: Juridical Persons may acquire and possess
property, incur obligations and liability or criminal actions in
conformity with laws and regulations of the organization.
Juridical capacity is extinguished upon dissolution of
the corporation, association or partnership.
CC Article 47: Properties and assets of dissolved
corporations or other entities shall be disposed of in
pursuance to the law or the charter creating them. If nothing
is specifically written, then it shall be applied for the benefit of
the region, province or municipality which it derived principal
benefits from.
Capacity to Act and Restrictions Thereon
Presumption of Capacity

Standard Oil Co. vs. Arenas

Facts: Juan Codina Arenas, Francisco Lara del Pino (principals) and
Alipio Lacso, Vincente Sixto and Siy Ho (sureties) assumed
obligations to pay jointly and severally to Standard Oil Co. the sum of
P3,305.76 three months from the execution of the bond, with 1%
interest per month.
Arenas and Lara del Pino failed to pay the bond and, as sureties,
Vincente Sixto along with Siy Ho and Alipio Lacso are compelled to
pay the said amount. The court declared Vincente Sixto in default for
having failed to show up at the trial concerning the said bond and
was ordered to pay the defendants the amoun. Elisa Torres de
Villanueva appeared in court alleging that her husband, Sixto
Villanueva, had been declared permanentlyinsane by the Court of
First Instance of Manila and wishes for the exemption of the husband

from paying the said bond as he is said to be suffering from

monomania of wealth.
Held: Burden of proof for insanity lies on the person who alleges it.
There were no evidence to prove insanity, save from the declaration
of the Court of First Instance. There were, in fact, a preponderance of
evidence stating otherwise, among these are the lack of restriction on
the husband (the husband is not habitually insane), the apparent
sound mind of Villanueva during the execution of the contract (he
understood the nature of the bond), and he has made contracts
prior to that (the husband had not been insane prior to the
execution of the bond).
Restrictions
CC Article 6: Rights may be waived unless it is contrary to
law, public order, public policy, morals or good customs or
prejudicial to a third persons rights.
-Kinds of Rights:
1. Rights of Personality-rights which protect the human
personality.
2. Family Rights-rights of a person as a member of a family.
3. Patrimonial Rights- Rights referring to ownership, etc.
CC Article 38: Minority, imbecility, the state of being deaf
mute, prodigality and civil interdiction are mere restrictions
on capacity to act, and do not exempt the incapacitated
person from certain obligations.
Minority- by virtue of RA 6809, the age of majority has been
lowered to 18 from 21.
Insanity or Imbecility- includes various forms of mental
diseases. Some may sometimes only be mentally deficient.
Deaf-mute- No longer to be presumed an idiot and is now
considered capable of entering into contracts if is shown to
have sufficient mental capacity.
Prodigality- characterized by excessive drinking, gambling,
idleness or debauchery
CC Article 39: The following circumstances limit a persons
capacity to act: Insanity, imbecility, being deaf-mute, civil
interdiction, prodigality, family relations, alienage, absence,
insolvency and trusteeship.
Capacity to act is not limited on account of religious belief or
political opinion.
A married woman, eighteen years of age are qualified for all
aspects of civil life except if specified otherwise.
Note: We always presume what is normal. Otherwise, our
daily lives will be greatly affected.
A. Minority
CC Article 1327: Unemancipated minors, insane or
demented persons and deaf-mutes incapable of writing,
cannot give consent to a contract.
CC Article 1390 (1): In cases where one of the parties is
incapable of giving consent to a contract, the contract
becomes voidable* or annullable even though there was no
damage to the contracting party.
CC Article 1403 (3): A contract where both parties are
incapable of giving consent is unenforceable** unless ratified.
*A voidable contract is one whose validity can be disputed in
court as opposed to

**an unenforceable contract which is valid or binding only

between the two parties but is likewise unenforceable in
court.
CC Article 1397: Persons who are capable cannot allege the
incapacity of those with whom they contracted.
CC Article 1399: An incapacitated is not obliged to make
restitution except in so far as he has benefited from the
contract.
CC Article 1426: There is no right to demand a thing or price
from a minor who, because of lack of consent from the parent
or guardian, upon the annulment of the contract, returns the
thing or price he received.
CC Article 1427: When a minor pays according to a contract,
without the consent of his parent or guardian, the sum of
money delivered cannot be returned to the minor because the
other party is expected to have spent it in good faith.

Effect on Contracts

Mercado vs. EspirituFacts: The annulment of a deed of sale was sought on the ground
that two of the four parties in the deed were minors when the deed
was executed. In the deed of sale the minors stated they were of
legal age when they made the manifestation in front of the notary
public and then signed it.
Held: Contracts signed by minors who allege they are of legal age
and in fact, appear to be so, is valid and binding. They are therefore
estopped* from alleging otherwise.
*barred from disputing the genuineness of the deed of sale,
as in the case of Mercado vs. Espiritu.

Bambalan vs. Maramba and Muerong

Facts: Isidro Bambalan was the heir of a piece of land owned by
Vicente Lagera, deceased. Bambalan was forced by Maramba and
Muerong to whom the mother owed P150, to sign a deed of sale as
his mother will otherwise be put in prison. Bambalan signed the
contract and both Muerong and Maramba knew of his age as they
were the ones who procured the cedula necessary to certify the
contract.
Held: Plaintiffs age was known to the contracting parties as such, the
contract is not valid and the right of Bambalan as a minor can be
enforced.
CC Article 1489: All persons authorized by the Code can
enter into a contract of sale. When necessaries* are sold and
delivered to a minor or a person without capacity, he must
pay a reasonable price therefore.
*Those which are indispensable for sustenance.

Braganza vs. Villa Abrille

Facts: Rosario Braganza and her sons, Guillermo and Rodolfo,
signed a promissory note indicating that they will pay a loan
given by a certain Fernando Villa Abrille. The loan amounted to
P70,000 in Japanese currencies and, according to the
promissory note, Braganza will pay P10,000 in legal
currencies. The two sons were minors at the time the contract
was signed.
Held: The contract, insofar as the minors were concerned was
not valid. However, they must make restitution insofar as they

benefit. As such, they not pay 2/3 of the amount stipulated in

the contract but merely the amount that was loaned to them
which was P1,166.00 in legal currencies.
Shields vs. Gross
Facts: In 1975, when Brooke Shields was 10, a consent was
given by her mother on her behalf, indicating that the pictures
taken by Gary Gross may be used for whatever purposes.
Plaintiff requested the court to prevent defendant from using
her pictures. Non-jury court prevented the defendant from
using the pictures for advertising or trade on the grounds that
court approval for a minor was necessary to validate the
consent, as stated in Section 3-105 of the General Obligations
Law.
Held: By virtue of Section 50 and 51 of the Civil Rights Law, a
persons pictures, name, etc., can be used if written consent is
given. If the person is a minor, his or her parents can give the
consent. As such, the consent was valid. Section 3-105 cannot
be invoked as Shields did not fall under the categories
stipulated under the said statutory provision.

Effect on Marriage of Minors

FC Article 5: Any male or female aged 18 and above, may

contract marriage.
FC Article 35: The following are void marriages from the
beginning:
1. Those contracted by any party below 18 years, even
with the consent of a parent or guardian
2. Those solemnized by a person not legally authorized
to perform a marriage unless the married couple
believed in good faith that the person was authorized
3. Those solemnized without a license
4. Those bigamous or polygamous
5. Those contracted through a mistaken identity

Moe vs. Dinkins

Facts: Maria Moe and Raul Roe alleged that the New York Domestic
law 15.2 which states that males between 16-18 and females
between 14-18 must obtain parental consent to be granted marriage,
is unconstitutional. They stated that they have a child born out of
wedlock and they do not wish for their child to grow up with the
stigma of illegitimacy. Cristina Coe and Pedro Doe filed a motion to
interfere as they had a stake at the outcome of the trial. Cristina
Coes mother, like Marias also refused to give her consent to the
wedding but unlike Maria, Cristinas child was yet to come.
Held: The States interest as parens patriae (guardians of the
country) in protecting minor from making immature decisions is
legitimate and the manner by which this interest is protected is
proportionate to the interest.

Effects on Crime

RPC Article 12: The circumstances which exempt from

criminal liability are:
1. An imbecile or insane person (unless he acted during
a lucid interval),
2. A person under 9 years of age*,
3. A person over 9 years of age but under 15, unless it
can be proven that he acted in discernment, in which
case, he will be sent to an institution servicing such
children with criminal liabilities.

4.
5.

Any person who causes an injury while performing a

lawful act,
Any person who acts under a compulsion of
irresistible force.

RPC Article 18: Accomplices are those who cooperate in the

execution of an offense by previous or simultaneous acts.
RPC Article 68: When the offender is a minor under 18 years
of age, if he is
1. Over 9 years and under 15 and it has been proven
that he acted with discernment then a discretionary
penalty shall be imposed which must always be lower
by two degrees than that which the law prescribes
for such crime.
2. Over 15 years and under 18 years of age, the
penalty being the next lower penalty prescribed by
law for that crime but always in the proper period.
B. INSANITY

Effects on Contracts

CC Article 1327: (Page 5)

CC Article 1399: (Page 6)
CC Article 1328: Contracts entered into during a lucid
interval are valid while those entered into in a state of
drunkenness is voidable.

Carillo vs. Jaojoco and Jaojoco

Facts: Adriana Carillo executed a deed of sale to Justiniano Jaojoco.
Nine days later, Carillo was declared to be mentally incapacitated
and then died still later. Miguela Carillo appealed for the annulment of
the said contract stating that Adriana Carillo could not have executed
the deed in a lucid state owing to the fact that the land of over
300,000 hectares was sold for only P4,000.
Held: The contract is valid. Burden of proof of mental incapacity lies
on the person who alleges it. No such proof exists and prior to the
confinement of the deceased in Hospicio de San Lorenzo, she was
able to manage her estate, which had been left to her by her
husband. Her doctor and the one who executed the notarial
instrument also noted that the deceased was responsive at the time
they had been with her.

Effect on Crimes

RPC Article 12

US vs. Vaquilar
Facts: Evaristo Vaquilar killed his wife and daughter and as such, he
was convicted of parricide for which he appealed. Witnesses do not
know of any prior disagreement between the deceased and the
defendant which may have caused a sudden outrage. They
witnessed however, that the defendant looked like a madman, going
after everyone in sight. His eyes were red and penetrating and he
had complained of stomach and head ache before the event
occurred.
Held: An extremely angry man often acts like a madman. Although no
prior disagreement was witnessed, that is not sufficient as to say that
the defendant was in sane. Any person who allows his or her anger
to go so far as to make them reckless does not excuse him from
criminal liability.
Dumaguin vs. AI Reynolds, EJ Harrison and Big Wedge
Company

Facts: Paulo Dumaguin was admitted to Hospicio de San Felipe as

he was suffering from paranoia. His wife had filed for guardianship
which was granted. Dumaguin later acquired a job as a prospector
who relocates mining claims to ANACONDA group owned by AI
Reynolds and EJ Harrison. Ten mining claims were located and as
prospector, the claims were filed under Dumaguins name in the
Office of the Mining Recorder, until a deed of transfer was executed.
Dumaguin then asked the court that the deed of transfer executed by
him be considered null and void because he did not possess the
mental capacity to execute such transfers.
Held: A person under guardianship could still enter into a contract
provided that he or she was not in mental defect during the execution
of the contract. Also, having been employees of ANACONDA group,
it was within the confines of their job to execute such transfers.
Nevertheless, if he did own the mining claims, it would have been
aptly named deed of transfer.

Effect on Marriage

FC Article 45: A marriage may be annulled for any of these

causes:
1. If the party was over 18 and under 21 and the
marriage was solemnized without the consent of
parents or guardian, unless after reaching the age of
21 the couple has continued to cohabit,
2. Either party was of unsound mind unless the party
has come to reason and freely cohabit,
3. Consent by either party was obtained by fraud or
force,
4. Either
party
was
physically
incapable
of
consummating the marriage and the incapacity is
incurable,
5. Either party was afflicted with STD which is
incurable.
FC Article 47: The persons who can file for an action for
annulment are:
1. By the party whose parent or guardian did not give
consent, within 5 years after attaining the age of 21,
or by the parent or guardian before the minor
reaches 21,
2. By the sane spouse who did not know of the other
persons insanity or by the guardian of the insane or
by the insane spouse during a lucid interval.
3. By the injured party, within years of the discovery of
fraud or force,
4. For the injured party, in relation to STD and
Impotence, after 5 years of marriage.
C. State of Being Deaf-Mute
CC Article 1327: (Page 5)
CC Article 807: If the testator* is deaf or a deaf-mute, he
must be able to personally read the will or designate two
persons to read it and communicate with him in a practicable
manner.
*A person whose property is transmitted through a will.
CC Article 820: Any person of sound mind and legal age, not
blind, deaf or dumb and able to read and write, may be a
witness to the execution of a will.

People vs. Sasota

Facts: Fidel Sasota was found guilty of raping Rufina Barbuco, a deaf
and dumb girl. The crime was witnessed by Severa Barbuco, a
seven-year old girl who testified along with Rufina. The defendant

alleged that neither Rufina nor Severa can testify as one was deaf
and dumb and the other too young.
Held: The theory that deaf and dumb persons cannot testify as a
competent witness has been dispelled (People vs. de Leon) because
it is not sufficient. For as long as the requisite intelligence required to
understand the nature of the oath can be proven then a deaf-mute
can testify. In relation to the seven year old, the court has held that a
child can testify as long as he or she can understand the nature of
the oath.
Director of Lands vs. Abelardo
Facts: Director of land claims that the failure of Fulgencia and Jose
Dino to register any claim to lots nos. 773 and 810 which was
previously owned by their grandmother, is due to their being deaf and
dumb. As such, they were unable to act within the prescriptive period
within which they can register their claim.
Held: The state of being a deaf-mute is not considered an incapacity
that will prevent a person from running of a prescriptive period.
D. Prodigality
RC Article 92 (2): Persons suffering the penalty of civil
interdiction, hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those of unsound mind and
other similar cases, cannot, without aid, take care of
themselves and manage their property.

Martinez vs. Martinez

Facts: Pedro Martinez appealed to the Supreme Court to declare his
father, Francisco Martinez, a prodigal. Pedro Martinez alleged that
since his fathers marriage to Anastacia Ilustre, his fathers second
wife, the wide and her parents have been given properties amounting
to $200,000. He added that the administration has also been turned
over to his fathers wife. Defendant stated that the son had, prior to
the marriage, managed the estate by power of attorney but it was
revoked because the son has mismanaged and misappropriated the
property. The estate was said to have flourished since it was
managed by Francisco Martinez wife and one half has also been in
the ownership of Pedro Martinez, him being the sole heir of the first
wife.
Held: Acts of prodigality must show a morbid state of mind and a
disposition to spend, waste and lessen the estate to such an extent
as to expose the family to poverty.
E. Civil Interdiction
RPC Article 34: Civil interdiction shall deprive the offender of
the rights of parental authority or guardianship, either as to
person or property.
RPC Article 11.2: Relatives that can be defended (without
criminal
liability):
spouses,
ascendants, descendants,
legitimate, natural or adopted brothers and sisters, relatives
by affinity in the same degree or relatives by consanguinity of
the 4th civil degree.
RPC Article 13.5: Acts which are committed in immediate
vindication of a grave offense to the one committing the
felony (are mitigating circumstances).
CC Article 54: Males 16 years upwards may contract
marriage while females 14 years upwards may contract
marriage.

CC Article 123: A person under civil interdiction may

contract marriage provided that there is a court designated
guardian available to witness the said marriage.
F. Family Relations
FC Article 37: Marriages between ascendants and
descendants of any degree or between brothers or sisters full
or half-blood, are considered incestuous and void.
FC Article 87: Donations or grants given directly or indirectly
between spouses during marriage are void with the exception
of moderate gifts. The same is true for persons living together
as husband and wife.
-

This is dictated by the principle of unity of

personality of spouses.
Any person prejudiced by the donation or grant may
question its validity.

CC Article 1109: Prescription* does not run between

husband and wife even though there is a separation of
property agreed upon in the marriage settlements. The same
is true between parents and children that are still minors or
those considered insane and between guardian and ward.
CC Article 1490: Husband and wife cannot sell property to
one another when separation of property has been agreed
upon and there has been judicial separation.
G. Alienage
PC Article 12Section 2: All natural resources, with the exception of
agricultural lands, are owned by the state. As such,
exploration, development and utilization are under its full
control and supervision. The State may undertake such
activities directly, in co-production, joint venture or
production sharing with Filipino citizens or corporations or
associations where 60% of the capital is owned by Filipinos.
The same is true for agreements with foreign-owned
corporations.
Only small-scale utilization of marine life is allowed.
Section 7: No private lands shall be transferred to individuals,
corporations or associations qualified to acquire land, except
in cases of hereditary succession.
Section 8: Natural-born citizens of the Philippines who has
lost citizenship maybe a transferee of private lands subject to
limitations provided by law.
Section 11: Franchise, certificate or any form of authorization
for operation of public utility may be granted to citizens of the
Philippines or corporations, associations or organizations
where at least 60% of the capital is owned by Filipinos. All
executive and managing officers of public utilities must be
citizens of the Philippines.

cooperatives, associations wholly owned and managed by

such citizens.
Congress shall prohibit monopolies in commercial mass media
for the sake of public interest.
Filipino citizens or corporations and or associations wherein
seventy percent of capital is owned by citizens of the
Philippines shall be allowed to engage in the advertising
industry. All executive and managing officers must be citizens
of the Philippines.
H. Absence
CC Article 390: An absentee shall be presumed dead for all
purposes, after an absence of seven years.
For purposes of succession, absentee shall be presumed dead
after 10 years or 5 years for those 75 and above.
CC Article 391: The following are presumed dead for all
purposes:
1. Person on board a lost sea vessel or aeroplane,
2. Person missing for 4 years after taking part in a war,
3. Person who after being in danger of death has not
been heard from for four years.
FC Article 124: Conjugal partnership property belongs to
spouses, jointly. In case of disagreement, the decision of the
husband shall prevail and the wife may appeal for remedy in
court within 5 years since the implementation of the contract.
Spouse may assume sole powers in case the other is
incapacitated.
Encumbrance or disposal of property shall be with the
authority of the court or with the written consent of the
spouse.
A contract with the authorization of the spouse is binding.
I. Marriage
CC Article 2259: The capacity of a woman to enter into
contract is governed by the civil code even if the marriage
occurred prior to the enactment of the said code.
RC Rule 3, Section 4: A married woman cannot be sued
alone without joining her husband except:
1. When they are judicially separated,
2. If they have been separated for at least 1 year,
3. When there is a separation of property agreed upon
in marriage settlements,
4. If the administration of all the property has been
transferred to her,
5. When the litigation is between husband and wife,
6. When the suit involves her paraphernal property,
7. When the action is a civil liability arising from a
criminal liability,
8. If the litigation is based on the profession,
occupation or a business in which she is engaged,

PC Article XIVSection 4: Educational institutions, apart from those owned

by religious groups or mission boards must be owned solely
by citizens of the Philippines or corporations or associations at
wherein 60% of the capital is owned by citizens. Congress
may legislate to increase Filipino equity participation.
No educational institution shall be established exclusively for
aliens. No group of aliens shall comprise more than one third.
These provisions do not apply to schools established for
foreign diplomatic personnel and their dependents.
Revenues, grants and endowments shall be exempt from
taxes.
PC Article XVISection 11: Ownership and management of mass media shall
be limited to citizens of the Philippines or corporations,

Marriage
Nature of Marriage
-Procedure by which a man and a woman become
husband in wife, uniting for life.
-A status involving duties or responsibilities which
are no longer matter for private regulations but the concern
of the state.
-Civil or social institution which is the foundation of a
family and origin of domestic relations.
Purposes of Marriage
1. Reproduction
2. Education of the offspring
3. Mutual help
Immediate purpose: constitute a complete and perfect
community between two individuals of different sexes.
Remote purpose: preservation of human race.
FC Article 1: 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.
Ordinary Contracts vs. Marriage Contracts:
Ordinary contracts may be entered into by any
number of persons of whatever sex while marriage
can be entered into only by one man and one
woman.
In ordinary contracts the agreement of the parties
have the force of law between them while in
marriage, the law fixes the duties and rights of the
parties.
Ordinary contracts can be terminated by mutual
agreement of the parties while marriage cannot be
so terminated. Neither can it be terminated even
though one of the parties subsequently becomes
incapable of performing his part.
Breach of ordinary contracts gives rise to an action
for damages while breach of the obligations of a
husband or a wife does not give rise to such an
action..
- The States role is to protect the family as the foundation of
the nation.
PC Article XV*The states role is to protect the family as the foundation of
society.
Section 1: State recognizes the Filipino family as the
foundation of the nation.
Section 2: Marriage is an inviolable social institution.
Section 3: State shall defend1. The right of spouses to found a family in accordance
with their religion and the demands of responsible
parenthood.
2. The right of children to assistance, and special
protection.
3. The right of family to a family living wage income.
4. The right of families to participate in the planning
and implementation of policies and programs that
affect them.
Section 4: The family has the duty to care for its elderly
members.

Breach of Promise
CC Article 19: Everyone must act with justice, give everyone
his due and observe honesty and good faith.
-The exercise of a right ends where the right disappears and it
disappears when it is abused, to the prejudice of others.
Good Faith- abstaining from taking advantage of others.
-A bride or groom who breaks an engagement without reason
causing moral and material injury to the other party is liable
for damages especially if the decision is made just before the
wedding and after a long engagement.
CC Article 20: Every person who willfully or negligently
causes damage to another shall be liable for indemnity.
-A person is required to act with prudence and diligence.
CC Article 21: Any person who willfully causes loss or injury
to another in a manner contrary to morals, good customs or
public policy is liable for damages.
-Acts which are not unlawful but are likewise contrary to
morals or good customs, public order or policy shall fall under
this provision. This article was created to provide adequate
legal remedy.
Willful Act- an act done with knowledge of the effect
Seduction, wherein a woman who was promised with
marriage gives herself to a man but was later left by
the man qualifies as deceit and may be used as basis
for indemnity.
So long as there is a wrongful act and a resulting
injury, there should be civil liability.
-The injury must be the proximate cause of an act.
-No person shall unjustly enrich himself at the expense of
another.
CC Article 2176- Whoever by act or omission causes
damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence is
considered a quasi-delict and is governed by law.

Wassamer vs. Velez

Francisco Velez and Beatrice Wassmer decided to get married on
Septemeber4, 1954. On Sept. 2, Velez left a note saying that the said
marriage has to be postponed. The following day, another note
arrived saying the marriage was still going to push through. After that,
plaintiff has never heard from him.
When plaintiff filed for evidence before the clerk of court, the
defendant was held in default and as such, plaintiff was awarded
P2,000 actual damages, P25,000 moral damages and P2,500 for
attorneys fees. Defendant filed a motion for relief and court gave
both parties enough time to settle outside of court. No such
settlement happened and several times, the defendant asked for
extension.
Held: The manner by which the defendant left the plaintiff, only a few
days before the wedding, was contrary to good customs. At that time,
the wedding has been aptly prepared and the visitors had been
notified and so, that the plaintiff was affected is no longer in question.
Civil indemnity is due in this case.
Tanjanco vs. CA
Facts: Apolinario Tanjanco and Arceli Santos are both of adult age.
Santos consented to have sexual intercourse with Tanjanco with the
promise of marriage. After almost a year of such relationship, Santos

conceived of a child and due to humiliation she left her job at IBM
Philippines where she received P230/ month. Tanjanco, then refused
to marry Santos who was no longer able to support herself and the
child. She was then prompted to sue for moral damages and to
compel the defendant to support herself and the child.
Held: Article 21 cannot be invoked in this case as it was already
evident to the woman that Tanjanco no longer had any intention of
marrying her even before she conceived of a child. Seduction, an
example given by the code commission under Article 21 connotes
deceit, enticement, and abuse of confidence. Such features are not
present in the case wherein there where several instances of sexual
intercourse for a period of almost one year.
De Jesus vs. Syquia
Cesar Syquia had sexual relations with Antonia Loanco. Through a
letter to a priest, he had made it apparent that he wanted the child
carried by Antonia to be recognized as his. In several other letters, he
referred to the child as junior. For a while the two partners lived
under one roof with Antonias mother, after the birth of the child.
Another child was conceived, upon which, Syquia left, never to be
heard from again. At the christening of the child, Antonia named the
child Ismael Loanco.
Antonia then filed a suit against Syquia, to recover P30,000 for
damages for breach of promise to marry and to pay for her
maintenance along with the two children. Trial court ordered that the
first child be recognized and for Syquia to pay a monthly
maintenance of P50.
Held: Supreme Court affirmed the judgment on the grounds that the
breach of promise was not satisfactorily proven, owing to the fact that
the sexual relations continued even after the birth of the first child
and even though there was still no marriage. In relation to the second
child being recognized, there was no proof to compel such action.
Marriage Models
Economics and the Public Purpose
By John Kenneth Galbraith
-Industrialization eliminated the need for women to work.
-Rising standards of popular consumptions saw the need for
household managersmarried women.
-The lady of the house is the chief menial to the household.
-Diversity and consumption increase made household
management complex thereby requiring management skills.
-Women were converted into crypto servants contributing
of the Gross National Product by way of efficient
consumerism.
Household- the disguise for the exercise of male authority
Neoclassical Consumer Equilibrium- the distribution of income
to various uses so that satisfactions are roughly equal to the
margin
-Decisions depend on who earns a living.
-Women had only the power to implement decisions and not
make them.
-The service of women to the economy is based on her sense
of duty and capacity to affection.

Graham vs. Graham

Facts: On September 17, 1940, Sydney Graham contracted with
Margarethe Graham to the effect that Margarethe shall pay Sydney
the amount of $300 per month until such time that the parties no
longer desire to continue with such an arrangement. On July 11,
1933, the married couple divorced. The plaintiff then filed a suit
against his former wife in order to claim the remaining amount of
money that he should be accorded by virtue of the contract. Plaintiff

alleged the contract was done so that he can accompany his wife on
her travels.
The total amount claimed until November 7, 1939 was $25,000 with
3% interest per annum. The defendant on the other hand alleged that
the contract was not within the powers of a married woman under a
Michigan law and that the divorce should have effected the
termination of the said contract.
Held: Under the Michigan law invoked by the defendant, women
have no general power to enter into a contract except in separation
of properties. Also, private contracts between married individuals
which are contrary to public policy are unenforceable by virtue of
Sec. 587 entitled Bargain to Change Essential Obligations of
Marriage. The court held that if contracts which are contrary to the
essential obligations of marriage wee permitted, it would invite an
endless field of controversy and litigation and would destroy the
element of flexibility needed in making adjustments to the new
conditions of marital life.
Challenges to the Traditional Marriage Models
Looking Backward in Order to Look Forward
By William H. Chafe
-In the 1970s, the status of women had already transformed
because of social and economic forces.
-After the baby boom of the 1950s, there was a downturn
in the birthrate such that by 1970s, the birthrate had reached
a level of zero population growth.
-There was a trend in later marriages and of young women of
child bearing age joining the labor force.
-Women also begun entering professions that have almost
exclusively been for men.
-By 1970s, the traditional norm of stay-at-home-mothers had
already changed.
Multiplier Effect- shifting values interacted with changing
economic conditions to create a new pattern of family and
work life.
The Changing Status of Women

Dunn vs. Palermo

Facts: Rosary Palermo who is married to Denty Cheatham has
continued to use her maiden name since her marriage. Because of a
state-wide compulsory registration law, Palermo lodged information
of her change of address listing her name as Palermo. The registrar
was prompted to purge the name of Palermo from the registration list
because Palermo refused to change her name, citing Sec. 2-206
which states that registration of a person shall be purged 90 days
after he changes his name or otherwise.
Palermo went to court seeking that the interpretation of the said rule
be declared erroneous or the statute be declared unconstitutional, it
being in violation of the 14 th amendment due process and equal
protection clause.
Held: The use of a husbands name is customary and as such, the
common law does not compel women to use their husbands name.
In the past, the husbands name was used to indicate the marital
status of a woman. A person has a common right to adopt any name
he or she wants to be known with. The use of husbands name was
mainly for indicating marital status. It was more by practice rather
than by law.
Private Contracts: When Valid, When Void?

In Re: Santiago

Facts: This is an administrative case concerning Atty. Roque

Santiago who executed a document wherein it was stipulated that
Ernesto Baniquit and his wife Soledad Colores were from then on,
separated, allowing either parties to marry again without danger of
becoming subject to any legal action from either of the two parties.
With this, Baniquit got married to Trinidad Aurelio.
Santiagos mistake, according to him, was due mainly to his idea that
a seven-year separation will allow for such action. In finding out his
mistake, he called on Baniquit who at that time, was already married
to someone else.
Held: The advice given and the document tended to subvert the vital
foundation of the family. Marriage, as stated in Article 1 of the Family
Code, is not subject to the stipulation.

exclusion of same-sex couples from access to marriage license and

civil marriage and its benefits is in violation of Massachusetts law.
Held: Without the right to marry or the right to choose to marry, one is
excluded from the full range of human experience and denied full
protection of the laws for ones commitment to lasting human
relationships.
Held: Defense of procreation is not sufficient because same-sex
couples are still capable of procreation although their methods may
not be traditional. Likewise, these couples are capable of rearing
children in such a setting, affirmed by the Massachusetts law which
allows adoption for same-sex couples. Same-sex couples should be
afforded the same benefits as opposite-sex couples by virtue of the
Equal Protection and Due Process clause of the 14 th amendment.

Selanova vs. Mendoza

Facts: Judge Alejandro Mendoza prepared and ratified a document
extrajudicially liquidating the conjugal partnership of Saturnino
Selanova and Avelina Ceriza. It was stipulated in the document that
the spouses should withdraw the adultery and concubinage cases
each had filed against another. The defendant ratified the document
with the assurance that the spouses would ask the Court of First
Instance to approve the agreement. According to the respondent, the
basis of the decision was Part 4 of Article 191 of the Civil Code which
stated that husband and wife may agree upon the dissolution of
marriage subject to judicial approval.
Held: Respondents action was void as it violated Article 221 of the
Civil Code which states that contracts and any extrajudicial
agreements are void.
Judicial sanction for annulment of marriage should have been
secured before hand.

Baker vs. State

Facts: Same-sex couples brought action against the State, city and
town seeking declaratory judgment that the refusal to issue them
marriage licenses violated the common benefits clause of the
Vermont constitution. Plaintiffs claim that denial of marriage license
was tantamount to denial of legal benefits and protections of marital
relations.
Held: Government is established for the common benefit of the
people and community as a whole. The state interests in preventing
the marriage of same-sex couples which are: Procreation and
uniformity with other states, while valid, should not be employed
through a means that would prevent same-sex couples from
acquiring the benefits inherent to married life.

Requisites of Marriage
Essential Requisites of Marriage
FC Article 2: Essential Requisites of marriage are
1. Legal capacity of contracting parties who must be
male or female.
2. Consent that is freely given in the presence of a
solemnizing officer authorized by the state to
conduct such marriage.
Legal Capacity of Male and Female

Jones vs. Hallahan

Facts: Two women appealed the decision of the Circuit Court which
held that both of them cannot marry one another. Plaintiffs claim that
the decision abridges the Equal Protection clause and Due Process
clause of the fourteenth amendment.
Held: Marriage, in many widely circulated dictionaries, are defined as
a union between man and woman, and there is no authority to the
contrary.
The plaintiffs were not being prevented by the statutory provision to
marry. Rather, they were being prevented by themselves.
Goodridge vs. Department of Public health
Facts: In March and April of 2001, each of the plaintiff couples
attempted to obtain the marriage license from their respective city or
town clerks office. After their requirements had been completed, the
clerk in each case refused to accept the notice of intention to marry
or denied a marriage license on the ground that Massachusetts does
not recognize same-sex marriages. Plaintiffs filed a suit alleging that

Defense of Marriage Act- Defense of marriage as an

institution, as upheld by 37 states in the United States
4 States have explicitly banned same-sex marriages.
Vermont and Massachusetts have come up with
legislation that would allow same-sex couples to
enjoy the benefits that opposite-sex married couples
enjoy. In Vermont, it is done through a civil union, in
Massachusetts, same-sex marriage is now allowed.
Consent Freely Given
FC Article 4: Marriage is rendered void in the absence of any
of the essential requisites (stated in Article 2 of FC). If there
is any irregularity in the formal requisites, the validity shall
not be affect validity but either or both parties are civilly,
criminally and administratively liable.
FC Article 45: (page 8)

People vs. Felipe Santiago

Facts: Felipe Santiago raped Felicita Masilang, 18 years old, a few
paces from Manila North Road. After the deed was done, defendant
brought the girl to the house of Agaton Santiago, the defendants
uncle, who later found a protestant minister who administered the
marriage of Santiago to Masilang. After the marriage, the victim was
given a few pesos and was told to leave.
Held: The marriage is void first, because the victim did not have his
fathers consent to marry and second, because the victim was under
duress and was thereby incapable of giving her consent freely. Also,
Felipe Santiago did not really intend to marry Felicita Masilang. He
only did so to escape criminal liability. As such, the marriage is void
because the consent of Santiago is not freely given. The consent
referred to here is not the consent of Felicita but that of Felipe who
had no intention of marrying Felicita.
Buccat vs. Mangonon de Buccat

10

Eigenmann vs. Guerra

Facts: Petition was instituted by Eduardo Eigenmann to annul his
marriage to Maryden Guerra on the grounds that he was a minor who
needed consent from his parents when he married (16-20 years old)
and such consent was not given. He alleged that he was threatened
and coerced into the marriage and that the solemnizing officer who
administered the marriage license was not authorized thereby
rendering the said license void ab initio.
Held: The marriage license confirmed that plaintiff misrepresented
himself to be of legal age there for he is subject to an estoppel
preventing himself to invoke minority. (this is as to the needed
consent and not the lack of minimum age) The said threat was not
sufficient to hold that he was coerced into consenting to the marriage
because it was not really threatening. Lastly, marriages solemnized
by a license obtained wrongfully, merely renders the marriage to be
irregular and is not null, void or voidable.
Formal Requisites
- External to the parties
Formal Requisites of Marriage
FC Article 3: Formal Requisites of Marriage
1. Authority of the solemnizing officer,
2. Valid marriage license except in cases provided,
3. Marriage ceremony with the appearance of
contracting parties before a solemnizing officer,
4. Two witnesses that are of legal age,
5. Declaration that they take each other as husband
and wife.
Authority of the Solemnizing Officer
FC Article 7: Marriage may be solemnized by:
1. Any incumbent member of the judiciary within the
courts 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 him by his church or religious sect
and provided that at least one of the contracting
parties belongs to the solemnizing officers church or
religious sect;
3. Any ship captain or airplane chief only in the cases
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 cases mentioned
in Article 32;
5. Any consul-general, consul or vice-consul in the case
provided in Article 10.
-

Without registration of the solemnizing officer with

the office of the Civil Registrar the marriage is void.
The same is true if the solemnizing priest s not
authorized by his church.
A resulting irregularity that will not affect the validity
of the marriage is one where there is mistake of fact
and not mistake of law.
Ignorantia legis non excusat
FC Article 10: Marriages between Filipino citizens abroad
may be solemnized by a consul or vice-consul of the Republic
of the Philippines. The issuance of the marriage license and
the duties of the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage shall be
performed by the consular official.

FC 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.
*At the point of death
FC 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.
FC 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 a.
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 the parties
responsible for the irregularity shall be civilly, criminally or
administratively liable.
FC Article 35 (2): The following marriages shall be void from
the beginning:
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted
with either or both parties believing in god faith that the
solemnizing officer had legal authority to do so.
CC Article 3: Ignorance of the law excuses no one from
compliance therewith.

Navarro vs. Domagtoy

Facts: This is an administrative case filed by Rodolfo G. Navarro
against Hernando C. Domagtoy who allegedly solemnized the
marriage between Gaspar A. Tagadan and Arlyn Borja despite
knowledge that the groom was only separated with his former wife
who was already absent for seven years. Also, the respondent judge
also solemnized the marriage of Floriano Sumaylo and Gemma del
Rosario outside the jurisdiction of the respondent.
Held: On the second marriage, there is a resulting irregularity
because marriage may only be conducted elsewhere only if there is a
written request coming from both parties. In the case at hand, the
request only came from one party. Judges may only officiate
weddings within their jurisdiction otherwise there will be an
irregularity with the formal requisites. Article 8 states that marriages
may be conducted elsewhere provided that there is written request
coming from both parties to the marriage.
Aranes vs. Occiano
Mercidita Aranes charged presiding judge Salvador Occiano of gross
ignorance of the law for solemnizing her marriage with her husband
without a license and outside his jurisdiction. Respondent judge
claims that he agreed to solemnizing the marriage provided that the
license will be delivered to him on the same day however, no such
license ever came. No record of the application for a marriage
license because it was denied when the husband failed to present
the death certificate of his first wife.
Held: Respondent judge is liable for failure to ascertain the existence
of a marriage license. Presenting a marriage license after the
solemnization of the wedding does not, in any way validate the
marriage. Also, under BP 129, the authority of the judges of inferior
courts to solemnize marriage is confined to their territorial jurisdiction.
The authority of the judge to solemnize a marriage is derived from
the marriage license.

11

 Marriage License
FC Article 9: A marriage license shall be issued by the local
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.
FC Article 34: No marriage shall be necessary for the
marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal
impediment to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The solemnizing officer
shall also state under oath that he ascertained the
qualifications of the contracting parties and found no legal
impediment to the marriage.
PD965: A decree requiring applicants for marriage licenses to
receive instructions on family planning and responsible
parenthood.

of the Philippines vs. CA and Castro

Facts: Angelina M. Castro filed a petition for a judicial declaration of
nullity of her marriage to Edwin F. Cardinas which was granted by the
Court of Appeals. Then petitioner Castro was separated after four
months of marriage with Cardinas. As such, Castro sought for the
nullity of her marriage before she left for the US. Plaintiff Republic of
the Philippines challenged the decision of the appellate court
because Castros claim that there was no marriage license was only
supported by a due search and inability to find certification issued
by the local civil registrar of Pasig and Caustros own testimony.
Held: No marriage shall be solemnized without a marriage license
otherwise it will be rendered void ab initio. The certification of due
search and inability to find is sufficient to hold that no proof of
license exists and the testimony is sufficient because the marriage
was a secret marriage and under the circumstances it is
understandable that there can be no other witness.
Moreno vs. Bernabe
Facts: Marilou Nama Moreno filed the complaint against Judge Jose
C. Bernabe for grave misconduct and gross ignorance of the law.
According to the complainant, respondent judge solemnized her
marriage with Marcelo Moreno, assured that the contract will be
released after 10 days. Respondent judge claims that the failure to
produce the contract was due to the failure of the Local Registrar of
Pasig to release the marriage license. He was assured, when he
solemnized the marriage, that the license was forthcoming as such,
he agreed to conduct the ceremony but reminded the plaintiff and her
husband of the consequences of conducting the ceremony without a
marriage license.
Held: Marriage ceremonies, absent of a marriage license, are void ab
initio.
People vs. Borromeo
Facts: Defendant Elias Borromeo appealed his conviction of parricide
and his sentence of reclusion perpetua. On July 3, 1981, defendant
killed his wife, Susana Borromeo. He claimed that Susana Borromeo
was not his wife because no marriage contract was executed during
their marriage.
Held: Defendant testified that he was indeed, married to Susana
Borromeo. Nevertheless, had there been an actual absence of a
marriage contract, persons living together in apparent matrimony are
presumed to be married unless evidence is presented to show

otherwise. Such is the common order of society. If parties were not

what they hold themselves to be, they will be living in constant
violation of the law.
Seguisabal vs. Cabrera
Facts: Andon Seguisabal charged Judge Jose Cabrera of gross
misconduct and grave ignorance of the law for solemnizing the
marriage of Jaime Sayson and Marlyn Jagonoy without the requisite
marriage license. The respondent was also said to have failed to
transmit a copy of the marriage contract he signed to the Office of the
Civil Registrar of Toledo City within the required 15 days. The
Respondent judge contended that he agreed to solemnize the
marriage of the two parties with the agreement that the marriage
license will be given in the afternoon, which the couple failed to do.
Years later when Marlyn Jagonoy returned asking for the marriage
contract so that she can claim the pension of her deceased husband,
respondent judge issued a marriage contract despite of the
knowledge that there is still no marriage license as the deceased and
his widow failed to attend a family planning session.
Held: Cabrera was expected to follow the dictates of his profession.
His decision to commit an act outside the boundaries of the law
cannot be justified by good faith. Marriages solemnized without a
marriage license is void ab initio.
Ceremony
FC 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 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 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 fat shall be
attested by the solemnizing officer.
Requisites of Marriage Ceremony:
For both parties to appear personally before the
solemnizing officer;
That there is presence of not less than two witnesses
of legal age;
That both party take each other as husband and wife
FC Article 8: The marriage shall be solemnized publicly in the
chambers of the judge or in open court, in the church, chapel
or temple, or in the office of 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.
- Whatever venue is chosen, it must be within the jurisdiction
of the solemnizing officer.
FC 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 the necessity of a
marriage license.
Applicable when one of the parties is handicapped

12

FC Article 29: The solemnizing officer shall state in an

affidavit the 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 officer took the necessary steps to ascertain the
ages and relationship of the contracting parties and the
absence of legal impediment to marriage.
FC Article22: The marriage certificate shall state:
1. Full name, sec and age;
2. Citizenship, religion and habitual residence;
3. the date and precise time of the celebration;
4. That the proper marriage license has been issued
according to law;
5. That either or both of the contracting parties have
secured the parental consent (if it applies);
6. That either or both of the contracting parties have
complied with the legal requirement regarding
parental advice (where it applies);
7. That the parties have entered into a marriage
settlement, if any, attaching a copy thereof.
FC Article 23: It is the duty of the solemnizing officer to
furnish either of the contracting parties the original of the
marriage certificate and to send the duplicate and triplicate
copies not later that fifteen days after the marriage, to the
local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting the copies of
the marriage certificate. The solemnizing officer shall retain in
his file the quadruplicate copy of the marriage certificate, the
original of the marriage license, and the affidavit of the
contracting party regarding the solemnization of the marriage
in another place.
FC Article 24: It shall be the duty of the local civil registrar
to prepare the documents required 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.
Requisites of a Marriage Ceremony

Martinez vs. Tan

Facts: Rosalia Martinez and Angel Tan signed a petition directed to
the Justice of Peace stating therein their agreement to contract
marriage. The document was signed by the defendant and plaintiff
and the Justice of Peace and two witnesses namely Zacharias
Esmero and Pacita Ballori. A certificate of marriage was likewise
signed by the Justice and the witnesses attesting that a marriage did
ensue. Plaintiff alleged that she did not attend the ceremony and that
she only signed it. Rosario Bayot attested that on the day of the
marriage, the plaintiff never left her company. Pacita Ballori attested
otherwise. Apart from that, several letters from the plaintiff for the
defendant prove that plaintiff indeed intended to marry the defendant.
Held: The documents signed were sufficient to prove that what took
place before the Justice of Peace was legal and the ceremony
amounted to a wedding.
Melecio Madridejo vs. Gonzalo de Leon
Facts: Eulogio de Leon and Flaviana Perez had one childDomingo
de Leon. In the year 1915, Eulogio died leaving Flaviana with
Domingo. Flaviana later lived with Pedro Madridejo and bore a child
Melecio. On June 8, 1920, Flaviana, knowing that she will die

soon, married Pedro. She died the following day. Melecio Madridejo
claimed that he is the next of kin of Domingo de Leon who died as
well. Defendant claimed that the wedding of Pedro and Flaviana was
not valid because the solemnizing officer failed to send a copy of the
marriage certificate to the Municipal Secretary. Also, Melecio
Madridejo was allegedly not a legitimate child.
Held: Forwarding of the marriage certificate is not an essential
requisite of the marriage. Failure to do so does not invalidate the
marriage. For a subsequent marriage to effectively legitimate a child
born out of wedlock, the child must be acknowledged by the parents
in some public document or be in the uninterrupted possession of the
status of a natural child. In the case at hand, Melecio Madridejo was
not legitimated. No public document to that effect exists and he was
not able to prove that he has been in an uninterrupted status of the
natural child.
Presumption of Marriage
CC Article 220: In case of doubt, all presumptions favor the
solidarity of the family. Thus, every intendment of law or facts
leans toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of children, the community of
property during marriage, the authority of parents over their
children, and the validity of defense for any member of the
family in case of unlawful aggression.
RC Section 3 Rule 131: That persons acting as copartners
have entered into a contract of copartneship;
1. That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage;
2. That property acquired by a man and a woman who is
capacitated to marry each other and who live exclusively with
each other as husband and wife without the benefit of
marriage or under void marriage, has been obtained by their
joint efforts, work or industry.
3. That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have
acquire properly through their actual joint contribution of
money, property or industry, such contributions and their
corresponding shares including joint deposits of money and
evidences of credit are equal.

Trinidad vs. CA, Trinidad and Trinidad

Facts: Arturio Trinidad, was the son of Inocentes Trinidad and
nephew of Lourdes and Felix Trinidad. The three siblings, Inocentes,
Lourdes and Felix, inherited a piece of land from their father, Patricio
Trinidad. Defendants claimed that the land in question has been in
their possession since the death of their father and that Inocentes
died in 1941 and not in 1944 as alleged by Arturio. They also contend
that Inocentes never fathered a child nor was he ever married. Arturio
on the other hand alleged that his father was married to Felicidad
Molato, his mother. Several witnesses living within the neighborhood
testified to the marriage and the birth of Arturio and that Arturio
contrary to the claims of Lourdes and Felix had lived in their house
for some time. Relevant public documents valuable as evidence were
destroyed during the war.
Held: Marriage may be proven by relevant evidences such as:
testimony of a witness to the matrimony, public and open
cohabitation, birth and baptismal certificate signed by the couple or a
mention of the marriage in other public documents. Two witnesses
attested that the couple cohabited and that Arturio was their son. As
proof of filiation with Felix and Lourdes, two family pictures were

13

shown where Arturio was in the company of Lourdes and Felix and
the witnesses likewise attested that Arturio had lived with his aunt
and uncle. The preponderance of evidence supported the claims of
Arturio.
Vda. De Jacob vs. CA and Pilapil
Facts: Plaintiff claimed to be the surviving spouse of Dr. Alfredo E.
Jacob and appointed special administratix for his estates by virtue of
a reconstructed marriage contract recognized by their solemnizing
officer who admitted that he lost the marriage contract earlier on. The
court of appeals ruled against the plaintiff on the grounds that no
copy of the contract was sent and no record of the marriage existed
and that Dr. Alfredo signed the contract with his thumbmark and not
with his own name. Lastly, court of appeals stated that the
reconstructed marriage contract was signed by Benjamin Molina and
not by Jose Centera who the plaintiff said allegedly lost the marriage
contract.
Held: Dr. Alfredo and Plaintiff Tomasa had lived together for over five
years and the deceased signed an affidavit to that effect. According
to Article 76 of the Civil Code, no marriage license shall be necessary
when a man and a woman who have reached the age of majority
have lived together as husband and wife for at least five years. Also,
failure to send a copy of the marriage certificate for record purposes
does not invalidate the marriage. It was not the petitioners duty to
ensure that the copy reached the civil registrars office. Secondary
evidence proved that there was a ceremony. The solemnizing officer
and Adela Pilapil attested to that effect. Also the name of the couple
was recorded in the Book of marriages.
- In the absence of a marriage contract, there should be proof
of due execution which can be given by witnesses and proof
of loss of marriage certificate before the reconstructed
certificate may be admitted

Void Marriages
FC 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.
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites of shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.
FC 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 a license, except those
covered by the preceding chapter;
4. Those bigamous or polygamous marriages not falling
under Article 41;
5. Those contracted through mistake of one contracting
party as to the identity of the other;
6. Those subsequent marriages that are void under
Article 53.

In ordinary contracts (1) the child will not be

emancipated from parental authority. In marriage,
the child will be emancipated.
If it is a mistake of fact, the marriage is valid. If it is
a mistake of law, the marriage is void.
Paragraph 5 refers to physical mistake in identity.
Other fraudulent misrepresentation would not apply.

FC Article 36: A marriage contracted by any party who, at

the time of the celebration was psychologically incapacitated
to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes
manifest only after solemnization.
-Psychological incapacity to comply is different from inability
to understand because the latter is a vice of consent, without
which, an essential requisite of marriage is lacking.
Reasons for adopting psychological incapacity as a ground for
declaration of nullity:
Substitute for divorce
Solution of church-annulled marriages
To give remedy to the parties imprisoned by
marriage.
Psychological incapacity vs. Vice of consent
a person may fully agree but may not understand
the obligations of marriage.
Psychological incapacity is not a vice of consent but
there is a lack of legal capacity, an essential requisite
of marriage.
Psychological Incapacity vs. Insanity
Insanity has varying degree;
Insanity is curable
There are lucid intervals in insanity
Insanity is a ground for annulment in other countries
Note: Psychological incapacity was not defined using
examples to avoid ejusdem generis (exclusive enumeration)
which might limit the applicability of the provision. It is
therefore judged according to the facts of the case.
-

Psychological incapacity should exist at the time of

the marriage.
Psychological incapacity is restricted to disorders
demonstrative of the utter sensitivity or inability to
give meaning and significance to the marriage.

Examples of psychological incapacity:

1. Homosexuality;
2. Satryiasis or Nymphomania;
3. Epilepsy with permanently recurring maladaptive
manifestationsl
4. Extremely low intelligencel
5. Habitual Alcoholism;
6. Criminality
Manifestations of psychological incapacity:
Refusal of wife to dwell with the husband after
marriage;
Affliction which makes common life unbearable;
Sociopathic anomalies on husbands part

Santos vs. Bedia-Santos

Facts: Louel Santos who was married to Julia Bedia-Santos wishes
to annul his marriage based on Article 36 of the Family Code.
Respondent has, for the last seven years since filing for the
annulment, resided in the United States and has contacted the
petitioner only twice.

14

Held: Psychological incapacity refers to the mental, not physical

incapacity. It must be characterized by gravity, juridical
antecedence and incurability for it to be considered a
psychological incapacity. Psychological incapacity is not a vice of
consent. A person may have given his or her consent freely without
understanding the obligations of the contract. Without consent, a
marriage is void ab initio. Without the ability to understand the nature
of the contract, the marriage is merely voidable.
Republic of the Philippines vs. Molina
Facts: Respondent alleged that her husband Reynaldo Molina was
psychologically incapacitated because he showed signs of
immaturity, irresponsibility and dependence. She also averred that
her husband was never honest. The Court of Appeals and Regional
Trial Court upheld that the marriage was indeed, void.
Held: Psychological incapacity should refer to a mental and not
physical incapacity. It is confined to the most serious personality
disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. It is not enough that
the parties failed to meet their responsibilities. It is essential that they
must be shown as incapable of doing so.
Molina Guidelines in Applying Article 36
1. The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should
be resolved in favor of the existence and
continuation of the marriage and against its
dissolution and nullity.
2. The root cause of the psychological incapacity must
be (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts
and (d) clearly explained in the decision. The person
alleged to be incapacitated must be psychologically
ill to the extent that the person could not have
known the obligations he was assuming or knowing
them could not have given a valid assumption
thereof.
3. The incapacity must be proven to be existing at the
time of the celebration of the marriage. The evidence
must show that the illness was existing when the
parties exchanged vows.
4. Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability
may be absolute or relative only in regard to the
other spouse. Such incapacity must also be relevant
to the assumption of marriage obligations.
5. Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage. The illness must be shown
as downright inability or incapacity.
6. The essential marital obligations are:
a. The husband and wife are obligated to live
together, observe mutual love, respect and
fidelity, and render mutual help and support
(FC Article 68).
b. 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 (FC Article 69).
c. 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

d.

7.

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 their separate properties (FC Article
70).
The management of the household shall be
the right and duty of both spouses. The
expenses for such management shall be
paid in accordance with the provisions of
Article 70 (FC Article 71).

Interpretations given by the National Appellate

Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should
be given great respect by our courts.

Apiag vs. Cantero

Facts: Maria Apiag filed an administrative case against her husband,
respondent judge, Esmeraldo G. Cantero. The Court of Appeals
decided that the respondent acted in grave misconduct. The plaintiff
and respondent were married and petitioner bore 2 children by that
marriage. After the second child was born, respondent judge left for
no reason. Plaintiffs, through their counsel asked respondent for
support and for the children to be declared legal heirs. Complainants
subsequently learned that respondent has contracted another
marriage with whom he had 5 children. Respondent misrepresented
himself in his declaration of assets and liabilities by putting the name
of the second wife on the said statement. He contended that the first
marriage was void ab initio because he and his first wife never
cohabited and he was forced into the marriage. He added that he
and the petitioners have settled amicably and he has agreed to give
the children of his retirement benefits.
Held: While he did not act in grave misconduct, he acted in
impropriety when he failed and refused to attend to the needs of his
children. Although it is undisputed that the judge did not obtain a
judicial declaration of nullity of his first marriage, pursuant to the
jurisprudence prevailing at the time of the second marriage, it has
been established that no such declaration was necessary.
Choa vs. Choa
Facts: Respondent Alfonso Choa filed a complaint for the annulment
of his marriage to petitioner Leni Choa on the grounds of
psychological incapacity. Petitioner filed a demurrer of evidence (an
objection or exception by one of the parties in an action at law to the
effect that the evidence which the adversary produced is insufficient
in point of law to make out a case and sustain the issue). The
demurrer of evidence was dismissed by the appellate court which
upheld that the claims of Alfonso Choathat her wife had filed
several lawsuits against him indicating psychological incapacity and
that his wife was immature, carefree and had no intentions of
procreative sexualityas sufficient evidence.
Held: Psychological incapacity must be characterized by gravity,
juridical antecedence and incurability. The testimony of the expert
doctor and the respondent only showed that the two cannot get along
with each other.
Tsoi vs. CA
Facts: Respondent Gina Lao Tsoi filed for annulment of her marriage
to petitioner Chi Ming Tsoi on the ground of psychological incapacity.
Respondent alleged that since their marriage in May 22, 1988 until
March 15, 1989, the couple has not consummated their marriage.
Defendant contended that it was the wifes fault that their marriage

15

was not consummated. A physician examined both plaintiff and

defendant and attested that neither of them had any physical
problem. Defendant alleged that the wife was afraid to consummate
the marriage and afraid that she would have to return the jewelry
given to her.
Held: Whether or not it was the husband who refused to consummate
the marriage is immaterial. The fact still stands that it has not been
consummated. There may be physical and not psychological reasons
as to why the marriage should not be annulled but the evidence to
that effect was not presented. Catholic marriage tribunals attribute
the causes to psychological incapacity than stubborn refusal. The
natural order between spouses is sexual intimacy.
Antonio vs. Reyes
Facts: Petitioner filed a petition for the declaration of his marriage to
respondent as null and void on the grounds of psychological
incapacity as manifested by several instances of lying and
concealment of an illegitimate child by Respondent Ivonne Reyes.
Petitioner alleged that respondent fabricated stories which bordered
on the ridiculous.
Held: Marriage was void by virtue of the Molina guidelines, fulfilled by
the Petitioner.
FC Article 37: Marriages between the following are
incestuous and void from the beginning, whether the
relationship between the parties is legitimate or illegitimate.
1. Between ascendants and descendants of any degree
and
2. Between brothers and sisters, whether of full or half
blood.
FC Article 38: 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 persons spouse or
his or her own spouse.
FC Article 39: The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. However, in
the case of marriages celebrated before the effectivity of this
code and falling under Article 36, such action or defense shall
prescribe in ten years after this code shall have taken effect.
FC 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.
- Final judgment is needed to avoid confusion because one of
the parties may contract another marriage which would be
bigamous and therefore void during the pendency of the trial
for the other marriage.
FC Article 41: A marriage contracted by any person during
the 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 had 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.
FC Article 44: If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by
operation of law.
RA 8533
CC 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
purposes 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 open.
CC 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 sea voyage,
or an airplane which is missing, who has not been
heard of for four years since the loss of the vessel or
airplane;
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.

People vs. Mendoza

Facts: Appellant was married to Jovita de Asis on August 5, 1936. On
May 14, 1941, appellant married Olga Lema. On February 2, 1943,
the first wife of appellant died. On August 19, 1949, appellant married
one Carmencita Panlilio. Appellant was then charged with bigamy but
he contended that his marriage to Olga Lema was void ab initio and
therefore non-existent. In that light, he claimed, that his marriage to
Carmencita was not bigamous.
Held: The marriage law in effect at the time the appellant contracted
with his second wife, Olga Lema, states that his marriage to Lema
was void ab initio. No judicial decree was necessary to establish its
invalidity.
Tolentino vs. Paras
Facts: Serafia Tolentino was the wife of the deceased, Amado
Tolentino. Petitioner requested the correction of an entry on the death
certificate of the deceased which states that the name of his
surviving spouse was Maria Clemente. Amado Tolentino married his
second wife, Maria Clemente while his first marriage was still in
effect. When the deceased was charged with bigamy, he pleaded
guilty and served the corresponding sentene. The petition was
dismissed by Hon. Edgardo Paras on grounds that the issue was a
marital relationship, and that the court has no jurisdiction.
Held: The petition was meritorious. The court had jurisdiction
because the wife was, initially, seeking a judicial declaration that she

16

was the lawful spouse of the deceased. The plea of guilt of the
deceased effectively established that the second marriage was in
fact, void ab initio and that the petitioner was the lawful spouse.
Wiegel vs. Sempio-Diy
Lilia Wiegel appealed for the reversal of the decision of respondent
judge, Sempio-Diy because, in the petition for the declaration of
nullity of marriage filed by Karl Heinz Wiegel against petitioner,
respondent judge ruled against the presentation of evidence. When
petitioner was married to the plaintiff, she had a previous existing
marriage. Petitioner claimed that the first marriage was void ab initio
because she was forced into marrying her first husband.
Held: There was no need to present evidence because if there had
been, in fact, intimidation during the first marriage, the said marriage
would have been rendered voidable and not void. Had the marriage
been void, a judicial declaration would still be necessary.
Terre vs. Terre
Facts: Petitioner charged Atty Jordan Terre with gross immoral
conduct for contracting a second marriage while he has a subsisting
marriage. The petitioner alleged that while she was still in her
previous marriage with her first cousin, she was courted by
defendant and was advised that she was free to contract a second
marriage because her first marriage was void. Petitioner took the
advise and married herein respondent but, after a few years, the
respondent took off. Later the petitioner found out that respondent
had contracted another marriage.
Held: A judicial declaration is necessary to determine whether a
person is legally free to contract a second marriage. Without such
declaration, the subsequently existing marriage is sustained.
Atienza vs. Brillantes
Facts: Complainant charged respondent Judge Fransisco Brillantes
with gross immoral conduct after having found said respondent
sleeping in his own bed, apparently cohabiting with his wife.
Complainant left his wife and kids. Complainant alleged that the said
judge was, at that time, married to one Zenaida Ongkiko with whom
he had 5 children. Respondent denied the allegation saying that his
marriage with Ongkiko was void ab initio because it was solemnized
without a marriage license. Respondent likewise argued that Article
40 of the family code was not in effect when his first marriage took
place.
Held: Judicial declaration of nullity of a previous marriage is needed
for purposes of remarriage. The Family Code can be applied
retroactively so long as vested rights will not be impaired by its
application.
Borja-Manzano vs. Sanchez
Facts: Complainant avers that she is the lawful wife of the late David
Manzano. Her husband contracted another marriage while the first
one was still in effect, solemnized by herein respondent judge.
Respondent contends that he did not know that the two were only
legally separated and that all he knew was the two had been
cohabiting for seven years. He cited Article 34 which states that 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 5 years.
Held: The requisite of Article 34 is that there is no legal impediment
between the parties. The said article is merely a ground for
exemption for marriage license. The judge knew of the subsisting
marriage as it was stated in the marriage certificate and in the
affidavit signed by the parties.

Domingo vs. Court of Appeals

Facts: Delia Soledad Domingo sought the judicial declaration of
nullity of marriage and separation of property against petitioner
Roberto Domingo on the grounds that the petitioner had a valid and
existing marriage with one Emerlinda dela Paz. The first wife sued
petitioner for bigamy. Respondent claimed that the petitioner has
been dependent on her and since she left to work in Saudi, she has
amassed some P350,000 worth of properties which were under the
possession and administration of herein petitioner until respondent
found out about the first marriage. Petitioner alleged that there was
no cause for action because the marriage was void ab initio and
judicial declaration of nullity of marriage is only sought for purposes
of remarrying and no such intention has been expressed.
Held: Although it is stated in the Family Code that judicial declaration
is needed for purposes of remarrying, it does not expressly state that
it is exclusive for that purpose alone. The Family Code provides that
among the effects of the judicial declaration is the immediate
separation of property.
Effects of Nullity
FC Article 50: The effects provided for by paragraphs 2, 3, 4,
and 5 of Article 43 and Article 44 shall also apply in the
proper cases to marriages which are declared void ab initio or
annulled by final judgment under Article 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses and the custody and support of the common children,
and the delivery of the 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 for
the proceedings for liquidation.
In the partition, the conjugal dwelling and the log on which it
is situated shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
FC Article 51: In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of
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 or 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 legitimes.
FC 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 childrens
presumptive legitimes shall be recoded in the appropriate civil
registry and registries of property; otherwise, the same shall
not affect the third persons.
FC 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.
FC Article 54: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage

17

under Article 36 has become final and executory shall be

consicered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.

Ninal vs. Bayadog

Facts: Petitioners request the annulment of the marriage of their
father to Norma Bayadog. On September 26, 1974, Pepito married
Teodulfa. Teodulfa died on April 24, 2985 and, on December 11,
1986, Pepito married Norma Bayadog. The marriage was contracted
without a license. Instead, the couple signed an affidavit stating that
they had been cohabiting as husband and wife for 5 years. The code
in effect during the time of the marriage was the Civil Code.
According to Article 76 of the said code, marriage between a man
and a woman who have been living together for more than 5 years
no longer requires a marriage license. Pepito died in February of
1997.
Held: Marriage of Pepito Ninal Sr. and Norma Bayadog is null and
void. It is evident that only 20 months elapsed between the time of
the death of the first wife and the marriage with the second wife. Had
the two been cohabiting for five years, such cohabitation, and the
marriage, was not within the capacity of the deceased. The children
do not have standing to cause action but, because the marriage was
null and void, it is likewise non-existent.
- For marriages of exceptional character, there should be no
legal impediment on the part of either party. The one
contracting a marriage should have legal capacity to do so.

Voidable Marriages
Grounds for Annulment
FC 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
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;
6. That either party was afflicted with a sexuallytransmitted disease found to be serious and appears
to be incurable.
Annulment and Legal Separation:
Annulment is caused by some circumstance existing
at the time of the marriage while legal separation
arises after the celebration of the marriage;

Annulment of marriage terminates the marital bond

between the parties while legal separation does not;
Annulment of marriage once final, cannot be set
aside so as to restore the marital relation while legal
separation may be terminated and marital relations
resumed by the reconciliation of the parties.

The presumption of the law is generally in favor of sanity

and he who alleges the insanity of another has the
burden of proving it. Once general insanity is proved to
exist, it is presumed to continue; and if a recovery or a
lucid interval is alleged, the burden to prove such is on
the person making it.
A marriage may be annulled where one of the parties was
so intoxicated he or she had no mental capacity to give
valid assent.
For physical incapacity, impotence or sexually transmitted
disease to be a ground for annulment the following must
concur:
1. That it exists at the time of the celebration of the
marriage;
2. That it continues to the time when the case for
annulment is being tried;
3. That it appears to be incurable,
4. That the other contracting party is aware of it.
- In impotence, the person cannot have sex. In sterility, the
person cannot procreate.
- Impotence is not a ground for declaration of nullity because
the injured spouse may accept the impotence of his or her
spouse.
FC Article 46: The following shall constitute fraud:
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;
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.
-A marriage cannot be annulled simply on the ground that the
wife concealed the fact that she had been lewd and corrupt
and had an illegitimate child prior to the marriage.
FC Article 48: In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the
prosecution 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.
RPC Article 344: The crimes of adultery and concubinage
shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both
alive, nor in any case, if he shall have consented or pardoned
the offenders.
Force- Physical injury, violence, irresistible intimidation or
threat

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Undue influence- a person who takes improper use of his

power
-

The person who can ratify is the injured party;

The injured party can file for annulment within five
years
If the injured party freely cohabited after the
cessation of the ground for annulment (except in
impotence and sexually transmitted diseases), he is
estopped from annulling the marriage.
RATIFICATION cures the defect of the marriage and it
retroacts to the day of the marriage or the day of giving
consent.

Katipunan vs. Tenorio

Facts: Plaintiff Marcos Katipunan brought action against Rita Tenorio
seeking the annulment of their marriage. He alleged that the
defendant was not of sound mind at the time they contracted
marriage. According to the guardian of the defendant, Tenorio only
suffered ailment after giving birth to her 4th child.
Held: The couple cohabited for seven years and plaintiff admitted that
there had been lucid intervals therefore, the marriage cannot be
annulled. Insanity has to be a permanent condition. If at the time of
the celebration of the marriage there was nothing wrong with the
mental health of the other spouse, marriage cannot be annulled.
Aquino vs. Delizo
Facts: Petitioner requests the annulment of her marriage on the
ground of fraud, claiming that his wife was 4 months pregnant at the
time that they were married and the child was that of another man.
The appellate court dismissed the petition on the grounds that it was
unbelievable that the petitioner was unable to tell if his wife was
pregnant.
Held: Petition must be granted because pregnancy is hardly
noticeable at five months and the wife was plump.
Anaya vs. Palaroan
Facts: Defendant Fernando filed an action for annulment on grounds
that his consent to the marriage was obtained through force and
intimidation. The complaint was dismissed. Herein petitioner then
sought the annulment of her marriage to Fernando on the grounds of
fraud, saying that her husband concealed the fact that he had marital
relations with another woman prior to the marriage.
Held: Concealment of premarital relations was not among the kinds
of fraud stated in the Civil Code (Family Code). The pertinent
provision is not subject to interpretation as it was also expressly
stated that no other misrepresentation or deceit shall constitute
fraud.
Ruiz vs. Atienzs
Acts: Plaintiff requests the annulment of her marriage on the ground
that his consent was given under duress. His wife, whom he had
premarital relations, bore a child. When the child was born, the father
of his wife allegedly approached him with a knife and in the company
of a lawyer. The lawyer threatened his entrance to the bar.
Held: Petition cannot be granted because the petitioner had several
chances of escape before the marriage and because his wife bore
his own child. Where a man marries under threat of or constrain from
lawful prosecution for seduction or bastardy, he cannot avoid
marriage on the ground of duress. Proof of bodily harm must be
sufficiently shown. Threat to obstruct admission to the bar does not
constitute duress. Only if the threat is so grave that the person is not
acting in his own freewill that a marriage becomes void.

RELUCTANCE vs. VITIATION

In reluctance, the person consents to the marriage but gives it anyway.
In vitiation, there is an actual, external force

Jimenez vs. Canizares

Facts: Petitioner filed an action to annul his marriage to respondent
on the ground that the orifice of the vagina of his wife was too small
to allow penetration. For that reason, petitioner has left the conjugal
abode. The defendant failed to comply with the order of medical
examination and so, the lower court granted the annulment.
Held: Presumption will always be in favor of potency. It is
understandable that a woman would refuse to subject herself to
physical examination. The testimony of one party is not sufficient to
annul the marriage because to do so will open the court to cases of
collusion between the spouses for the annulment of their marriage.
Sarao vs. Guevara
Facts: On the day of the marriage of the plaintiff and the defendant,
the marriage was not consummated because the defendant
complained of pains. The defendant was operated on and her uterus
and ovaries were surgically removed. The removal rendered the
defendant incapable of procreation as such, plaintiff wants his
marriage with the respondent annulled.
Held: Impotency is not inability to procreate but inability to copulate.
Inability to copulate cannot be a ground for annulment and a
temporary or occasional incapacity cannot be used as a ground to
nullify a marriage.
People vs. Santiago
Suntay vs. Cojuangc-Suntay
Facts: Petitioner opposed the petition filed by respondent for the
issuance of letters of administration (of the estate of her paternal
grandmother) in her favor on the grounds that he was the surviving
spouse of the deceased, and that the petitioner and the deceased
have been alienated from the family of the respondent. He likewise
alleged that respondent was not a legitimate child because the
marriage of her parents, Emilio Aguinaldo Suntan (son of petitioner)
and Isabenl Cojuangco-Suntay was declared null and void because
Emilio was found to be schizophrenic at the time of his marriage.
Held: A child born out of a voidable marriage before the decree of
annulment is considered a legitimate child.
-

Void marriages are deemed never to have taken

place at all but the children born of that marriage
who are called natural children by legal fiction have
the same status, rights and obligations as
acknowledged children.
Voidable marriages are considered valid and
produces all it civil effects until it is set aside by final
judgment of a competent court in an action for
annulment. The annulment fo the marriage dissolves
the special contract but the effects of the marriage
will not be wiped out completely. Children born of
voidable marriages shall be considered legitimate.
To annul means to reduce to nothing. Null and void
means something does not exist from the beginning.

Marriage when one spouse is absent

CC Article 83: A marriage subsequently contracted by any
person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal
and void from its performance unless:

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1.
2.

The first marriage was annulled or dissolved;

The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee though he
has been absent for less than seven years, is
generally considered as dead and believed to be so
by the spouse present at the time of contracting
such subsequent marriage, or if the absentee is
presumed dead according to articles 390 and 391.
The marriage so contracted shall be valid in any of
the three cases until declared null and void by a
competent court.

CC Article 85: A marriage may be annulled for any of the

following causes, existing at the time of the marriage:
(2) In a subsequent marriage under article 83, number 2,
that the former husband or wife is believed to be dead was in
fact living and the marriage with such former husband or wife
was then still in force.

Jones vs. Hortiguela

Facts: Petitioner requests that she be declared the sole heir of the
intestate estate of Marciana Escano, her mother. Prior to the motion,
at the time when petitioner was still a minor, respondent was
awarded a fixed rate of P10,000 for the administration of the estate of
the deceased. Petitioner alleged that when her mother remarried in
May 1927, the judicial declaration of the absence of her father was
not yet effective. As such, the marriage of the deceased and the
respondent was null and void.
Held: Petition denied. Absence of one spouse shall be counted from
the last day of communication or from the reception of the last news
regarding the absent spouse. In this case, the first spouse was
absent for 9 years.
Effects of pending action or decree
FC Article 49: During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support
of the spouses and the custody and support of their common
children. The Court shall give paramount consideration to the
moral and material welfare of said children and their choice of
parent with whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights for the
other parent.
FC Article 50: The effects provided for by paragraphs (2),
(3), (4), (5) of the Article 43 and by Article 44 shall also apply
in the proper cases to marriages which are declared void 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 their 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 Articles
102 and 129.

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 or 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 legitimes.
FC 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 childrens
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons.
FC Article 53: Either of the former spouses may marry again
after compliance with the requirements. Subsequent marriage
shall be null and void.
FC Article 54: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.
CC 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 continue
employing her former husbands surname, unless:
1. The court decrees otherwise;
2. She or the former husband is married again to
another person.
CC Article 369: Children conceived before the decree
annulling a voidable marriage shall principally use the
surname of the father.
Jurisdiction

Estrellita J. Tamano vs. Hon. Rodolfo Ortiz

Facts: Petitioner assailed the decision of a lower court which rejected
the motion to dismiss she filed against the motion for declaration of
nullity filed by private respondent. Private respondent alleged that the
marriage of the Petitioner to her husband must be declared null and
void on the ground of bigamy. At the time of the marriage of petitioner
and her deceased husband, private respondent was still also married
with him. Petitioner contended that the Regional Trial Court had no
jurisdiction because both the petitioner and the deceased were
Muslims.
Held: Under the Judiciary Reorganization Act of 1980, Regional Trial
Courts have jurisdiction over all actions involving the contract of
marriage and marital relations. In this case, both the petitioner and
the deceased were married through a civil wedding and whether or
not they were likewise married in a Muslim wedding, sharia courts
are still not vested with original and exclusive jurisdiction over
marriages married under civil and Muslim laws.

FC Article 51: In said partition, the value of the presumptive

legitimes of all common children, computed as of the date of
the final judgment of the trial court shall be delivered in cash,
property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such
matters.

20

Under the Family Code, every act of sexual

infidelity by either husband or wife is a ground
for legal separation.

Sexual perversion as a ground for legal

separation includes all unusual or abnormal
sexual practices which may be offensive to the
feelings or sense of decency of either husband
or wife. There must also be an element of
coercion exercised by the defendant to make
the plaintiff submit to the act.

There is abandonment when one spouse

leaves the other without intent to return.

Attempt on the life must imply that there is

intent to kill

Under Article 101 of the Family Code, 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.

LEGAL SEPARATION
Grounds
FC Article 55: 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
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 of respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt of the respondent on the life of the
petitioner;
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.
Violence- must be of a serious degree but does not have
to amount to an attempt against the life of the defendant
The violence must be repeated, to the extent
that common life with defendant becomes
extremely difficult for the plaintiff.
-

Physical violence or moral pressure to compel

the plaintiff to change religious or political
affiliation need not be repeated. There must
be some element of coercion present, whether
physical or moral.

The guilt for the corruption or inducement to

prostitution must be on only one spouse.

The crime for which a spouse may have been

convicted may have no bearing at all on the
relationship of the husband and wife.

If drug addiction, habitual alcoholism,

lesbianism or homosexuality existed at the
time of marriage but were unknown to the
other party, they would constitute a ground
for annulment of marriage as fraud. If they
come to exist after the celebration of the
marriage, they become grounds for legal
separation.

Every subsequent marriage, where there is a

subsisting prior marriage, should give the
other spouse the right to ask for legal
separation. This is so because the spouse who
has remarried has cohabited with another
person.

CC Article 97: A petition for legal separation may be filed:

1. For adultery on the part of the wife and for
concubinage on the part of the husband as defined in
the Penal Code; or
2. An attempt by one spouse against the life of the
other.
Adultery- The act of a wife having sexual intercourse with any
other man not her husband will constitute adultery.
Concubinage- The act of the husband having sexual
intercourse with his wife shall constitute concubinage if:
1. He maintains a mistress in the conjugal dwelling;
2. there is sexual intercourse with the other woman
under scandalous circumstances;
3. the husband cohabits with another woman other
than his wife in any other place.
Cohabit- to dwell or live together in the same house as
husband and wife.
Legal Separation vs. Separation of Property
In legal separation, there is a suspension of
the common marital life, both as to person
and property.
In separation of property, only the property
relation is affected and the spouses may
continue living together.
Separation of property can be effected by
agreement of the spouses, subject to judicial
approval; but a decree of legal separation
cannot be rendered upon agreement of the
parties.
Legal Separation vs. Separation of Spouses
Legal separation can be effected only by
decree of the court; but the spouses may be
separated in fact without any judgment of the
court.

People vs. Zapata and Bondoc

Facts: Petitioner husband Andres Bondoc filed a complaint of
adultery against his wife, Guadalupe Zapata and her paramour,
Dalmacio Bondoc. The two respondents cohabited and had repeated
sexual intercourse from 1946 to March 1947. The defendant wife

21

entered a plea of guilty and was sentenced to suffer four months in

prison. Respondent Dalmacio Bondoc on the other hand, claimed
that he did not know that Guadalupe Zapata was married. On
September 1948, petitioner once again filed a complaint of adultery
for acts committed from March 1947 to September 1948. Defendant
then filed a motion to quash on the ground that they will be twice put
in jeopardy. The motion was granted by the lower court on the ground
that adulterous acts must be considered as a continuing offense.
Held: The court held that adultery as a crime of result and not of
tendency, is consummated at the moment of carnal union.
Continuous crimes exist if there is a plurality of acts performed
separately during a period of rime, unity of penal provisions violated
and unity of criminal intent or purpose. In short, continuous crimes
are aimed at committing a single offense. In adultery, each instance
of sexual intercourse is a separate crime. Also, the court held that
there is no legal provision which bars the filing of as many complaints
for adultery as there were adulterous acts committed.
Munoz vs. Del Barrio
Facts: Felicidad Munoz and Jose del Barrio quarreled frequently and
on those occasions, petitioner complained that the husband
maltreated her. In 1947, they separated but on December 1950 and
September 1951, the husband once again maltreated petitioner,
prompting her to institute an action for legal separation on the ground
of attempt to life. Petitioner requested that she be given custody of
her children, that whatever will remain of the conjugal property be
divided, and the conjugal partnership be dissolved.
Held: The Supreme Court affirmed the decision of the lower court. It
held that the alleged maltreatment cannot constitute an attempt to life
because such has to be characterized by intent to kill which was not
sufficiently proven especially since the respondent only used his bare
hands. Intent to kill, the court said, must be established with clear
and convincing evidence.
Gandionco vs. Penaranda
Facts: Respondent judge Hon. Senen C. Penaranda ordered
petitioner to pay for the support of private respondent Teresita
Gandionco and his child. Private respondent filed a complaint for
legal separation against petitioner on the ground of concubinage.
Private respondent likewise requested for support and payment of
damages. Petitioner Froilan Gandionco claims that the civil action for
legal separation and the application for support should be suspended
because of the pending criminal case for concubinage filed against
him. His contention was based on Article 111 Section 3 of the 1985
Rules on Criminal Procedure which states that a pending civil action
instituted for civil liabilities should be suspended until the criminal
action arising from the same offense is over.
Held: The court held that a civil action for legal separation may
proceed ahead of or simultaneously with a criminal action for
concubinage because the said civil action is not one to enforce civil
liability but rather to obtain the right to live separately. Petitioners
argument that conviction for concubinage must be secured before an
action on legal separation can prosper lacks merit because unlike in
criminal procedures, proof of concubinage in a civil procedure is
based on preponderance of evidence and not proof beyond
reasonable doubt.
US vs. McMann
Facts: Defendant Robert McMann and one McKay were employed at
the Quartermasters Department of the Army. While at the place of a
certain Moro, Amay Pindolonan asking for matches to light a

cigarette, McMann suddenly fired at McKay. McKay was struck in the

back of the head and killed instantly. Amay Pindolonan tried to run
but McMann also shot him. Defendant claimed that he had no
intention to shoot McKay as they were good friends and that the
shooting was merely an accident. The defendant also claimed that he
was drunk at the time of the incident.
Held: To convict a man of the offense being a common drunkard it is
necessary to show that he is a habitual drunkard to the point that he
has a fixed habit of drunkenness.
Lapus Sy vs. Sy Uy
Facts:A case for legal separation was filed by Carmel Lapuz Sy
against Eufemio Sy Uy on the ground of abandonment. She prayed
for the issuance of a decree of legal separation and that her partner
be deprived of their conjugal partnership profits. Petitioner also
claimed that respondent was cohabiting with a certain Go Hiok.
Respondent then filed a counter-dlaim for the declaration of nullity ab
initio of his marriage with petitioner on the ground that he had a
subsisting marriage with Go Hiok. During the course of the trial,
petitioner died and her father, Macario Lapuz, moved to substitute.
Eufemio moved to dismiss the substitution because the death of the
petitioner should, as he alleged, abate the action for legal separation.
Held: The death of one of the parties to the action abates the action
itself because action for legal separation is purely personal hence,
when one of the parties is dead, there is no longer a need for the
decree. Conjugal property are likewise not assignable or
transmissible therefore, it doesn not warrant a continuation of the
action through substitution.
Dela Cruz vs. Dela Cruz
Facts: Estrella dela Cruz filed a complaint against her husband
alleging that the latter has abandoned their family and has not slept
or visited the conjugal dwelling since 1955; that defendant was
mismanaging their conjugal partnership properties and as such has
abused his powers of administration and that defendant had a
concubine named Nenita Hernandez. Petitioner then asked for the
separation of their property, a monthly support of P2,500 during the
pendency of the action and payment of P20,000 in attorneys fees.
Defendant contended that he did not abandon his family and has not
failed to give them a monthly allowance of around P1,500. He stated
that he is merely separated from his wife because he cannot
concentrate on their business but he never failed to visit his family.
Petitioner allegedly played mahjong often while respondent
consistently applied his industry so that their business will grow.
Held: The court held that abandonment must be real abandonment
and not mere separation. It must not only be physical estrangement.
Abandon in ordinary sense means to forsake completely with intent
never again to resume or claim ones rights or interests. There must
therefore be absolute cessation of marital relations, duties and rights
with the intention of perpetual separation.
Defenses
FC Article 56: 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;

22

4.
5.
6.

Where both parties have given ground for legal

separation;
Where there is collusion between the parties to
obtain the decree of legal separation; or
Where the action is barred by prescription.
-

Condonation is the forgiveness of a marital

offense constituting a ground for legal
separation, and bars the right to legal
separation. It may be expressed, in the sense
that it is in writing or implied as inferred from
the action of the injured party.
Where a party has clear and convincing
knowledge
of
the
offense
and
then
deliberately and willfully cohabits or has
sexual intercourse with the offender, he or she
thereby impliedly pardoned the offenders act.
Consent is agreement or conformity in
advance of the commission of the act which
would be a ground for legal separation.
Connivance implies agreement, express or
implied, by both spouses.
A husband who actively connives in the
adultery of his wife by procuring her to be
lured into the commission of the act will very
generally be presumed to have consented to
the adultery and will be denied legal
separation on that ground.
A husband must not actively participate in
preparations for the suspected misconduct by
providing opportunity for the wrongdoing.
Collusion is the agreement between husband
and wife for one of them to commit or to
appear to commit or presented in court as
having committed, a matrimonial offense, or
to suppress evidence of a valid defense, for
the purpose of enabling the other to obtain
legal separation.

People vs. Sensano and Ramos

Facts: After the birth of the first child of complainant Mariano Ventura
and respondent Ursula Sensano, complainant left for Cagayan de
Oro. Complainant did not write, call or send anything in form of
support for three years. Respondent then cohabited with Marcelo
Ramos with the belief that her husband will not return again.
Complainant returned and filed a complaint of adultery against
respondents. The court held in favor of the plaintiff but opined that
the plaintiff treated his family with cruelty in abandoning them. After
sentence, accused wife left her paramour and begged for the
forgiveness of plaintiff but she was turned away. She then went back
to Marcelo Ramos. Plaintiff then left for Hawaii and upon his return
after seven years, he once again filed a charge of adultery.
Held: The court held that under Article 34 of the RPC, the offended
party cannot file a complaint of adultery if he consented to it. The
court was of the belief that complainants action of turning away the
defendant constituted a consent and as such he estopped from filing
a case.
-Constructive Abandonment- The injured party leaves the wife or the
spouse refuses the re-entry of the offending spouse.
De Ocampo vs. Florenciano
Facts: Petitioner Jose de Ocampo filed a complaint of adultery
against his wife but was denied by the Court of First Instance.
Through several testimonies, it was found that in March 1951,
defendant maintained illicit relations with one Jose Arcalas. After
plaintiff found out, defendant was sent to Manila to study wherein she

had several illicit relations with other men. On June 1955, plaintiff
found his wife in the act of sexual intercourse with one Nelson
Orzame. Plaintiff then and there told his wife of his intention of filing
for legal separation. The Court of Appeals held that the time for filing
a charge of adultery on the first case had prescribed. Also, on the
second case, CA held that they cannot render a decree of separation
on the ground of confession of judgment.
Held: The court held that the confession of judgment--which
happens when a defendant confesses in court the right of plaintiff to
his demand, did not occur because such confession happened
outside of court. Had there been a confession of judgment, the
decree should still be granted since there was a preponderance of
evidence as provided by the plaintiff. If the court will not allow
separation despite of the evidence, any defendant who opposes
separation will merely confess in court.
Sargent vs. Sargent
Facts: Petitioner Donald Sargent charged his wife, respondent
Frances L. Sargent with adultery alleging that defendant wife had
illicit relations with Charles Simmons, a black man and the couples
driver. Petitioner alleged that defendant wife contracted gonorrhea
from the illicit relations. Petitioner then hired detectives to prove the
said illicit relations, and said detectives testified along with other
servants, all of whom were employed by petitioner. The detectives in
one instance shut the door of the room of respondent wife while
respondent Charles Simmons was inside to make it appear as
though they were having illicit relations.
Held: The court held in favor of the defendant. The detectives
surveilled Mrs. Sargent for over seven weeks but no solid evidence
of the alleged adultery was procured. Mr. Sargent also appeared to
have connived with the detectives to show that his wife was indeed
having sexual relations. Where the husband employs detectives to
get evidence of his wifes adultery, but the adultery is brought about
by the detective himself, legal separation can be denied on the
ground of connivance.
Brown vs. Yambao
Facts: William H. Brown filed an action to obtain legal separation
against his wife, Juanita Yambao. He found out that his wife has
adulterous relations with one Carlos Feld at the time when petitioner
was interred by the Japanese invaders. He discovered the said
relation when in 1945, his wife begot a child. A document was
executed for the liquidation of their conjugal partnership property and
as such, complainant wants confirmation of liquidation, custody of
children and the disqualification of defendant from succession. In the
cross examination of petitioner it was found that he was also
cohabiting with another woman and had a child with that woman.
Held: The court held that the misconduct of petitioner barred him
from obtaining legal separation and in this case, the misconduct and
failure of the wife to institute action against petitioners misconduct
constituted circumstantial evidence of collusion.
Willan vs. Willan
Facts: Husband appeals the decision by court to deny his petition for
the dissolution of his marriage on the ground that he condoned the
cruelty of his wife. Petitioner alleged that his wife repeatedly
assaulted him, was habitually offensive and frequently demanded to
have sexual intercourse with him. Respondent allegedly resorted to
violence and pestering, forcing complainant to agree to sexual
intercourse. Solicitors have allegedly written the wife regarding the

23

matter but to no avail. The night before leaving the conjugal dwelling,
petitioner and respondent once again had sexual intercourse.
Held: The court held in favor of the defendant as they found it
impossible that a man may have sexual relations and not condone
the said relations. Unwillingness, the court said, is not the same as
involuntariness.
Bugayong vs. Ginez
Facts: After their marriage, petitioner Benjamin Bugayong and
Defendant Leonila Ginez agreed that defendant would stay with
petitioners sisters while petitioner worked in the United States as a
serviceman. For some time, defendant lived with petitioners sisters
but she eventually left to live with her mother and then moved to
Dagupan to study. Petitioner received letters from his sister-in-law
that defendant was having adulterous relations and petitioner alleged
that defendant herself wrote him that she was kissed by another
man. When petitioner returned, they lived together for two nights and
one day. On the second day, when petitioner asked the defendant if
there was any truth to the allegations of adultery, defendant did not
answer but instead, left. The petition was dismissed by the lower
court on the ground that petitioner had condoned the said illicit
relations of his wife.
Held: The petitioner, having slept with the defendant for two nights,
has condoned the adulterous relations. Any cohabitation with the
guilty party, after the commission of the offense, and with knowledge
or belief is considered conclusive evidence of condonation.
Matubis vs. Praxedes
Facts: Soccoro Matubis filed a complaint for legal separation alleging
that Zoilo Praxedes had abandoned her and was guilty of
concubinage. According to her testimony, barely a year after their
marriage, plaintiff and defendant agreed to live separately after failing
to agree on where they should live as husband and wife. They
entered into an agreement which stipulated the conditions and
provisions for their de facto separation. In 1955, defendant began
cohabiting with another woman and had another child by her.
Held: The time for instituting action has prescribed. The stipulations
in the agreement which stated that both spouses relinquished their
rights as husband and wife, and was free to get any mate and live
with him or her as husband and wife, constituted consent and
condonation.
When to File/ Try Actions
FC Article 57: An action for legal separation shall be filed
within five years from the time of the occurrence of the
cause.
FC 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.
- If the ground for legal separation is violence against women,
there should be no effort to compromise.
FC Article 59: No legal separation may be decreed unless the
Court has taken steps towards the reconciliation of the
spouses and is fully satisfied, despite such effort, that
reconciliation is highly improbable.
FC 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 take steps to prevent collusion between the

parties and to take care that the evidence is not fabricated or

suppressed.

Contreras vs. Macaraig

Facts: Elena Contreras appealed the decision of the Juvenile and
Domestic Relations court of Manila which dismissed her complaint of
adultery against Cesar J. Macaraig on the ground that the time for
filing an action has prescribed. In 1961, defendant met Lily Ann
Alacala and had started to come home late and be away often. In
September 1962, Avelino Lubos, the family driver, told Elena that her
husband was living with Alcala. When defendant came home in
October, plaintiff did not verify the report so that defendant will not
get angry. In April 1963, plaintiff once again heard rumors of the
alleged misconduct of her husband. It was only upon hearing reports
that Lily Ann Alcala had given birth did plaintiff sent Mrs. Felicisima
Antioquo to investigate. The latter confirmed on October 1963 that a
child had been born by Alcala, bearing the surname of defendant.
Plaintiff, through her father and sister-in-law, tried to convince the
defendant to come back but defendant told her that he can no longer
leave Lily Ann. The lower court held that the word cognizant does
not connote the date when proof was sufficient because the time
indicated by the code would have been rendered meaningless as all
one would need to do is fix the date.
Held: The court held that plaintiff had reason not to file an action
because she had hoped that defendant would return. The only time
that defendant therefore that plaintiff became cognizant of the
alleged infidelity of the defendant was when the husband stated that
he was living with, and no longer be leaving, Lily Ann Alcala.
Somosa Ramos vs. Vamenta Jr. and Clemente Ramos
Facts: Petitioner Lucy Somosa Ramos filed a civil case for legal
separation against Clemente Ramos on the ground of concubinage
and attempt to life. She also sought the issuance of a writ of
preliminary mandatory injunction for the return of her paraphernal
and exclusive property then in the administration of the defendant. An
opposition to the hearing of the motion was filed based on Article 103
of the Civil Code which states that an action for legal separation shall
not be tried before six months had elapsed since the filing of the
petition. Respondent judge held in favor of the defendant who
claimed that any prospect for reconciliation will be lost if the motion
was tried.
Held: The court held that Art. 103 of the Civil Code is not an absolute
bar to the hearing of a motion for preliminary injunction prior to the
expiration of the six-month period. Art. 104 states that the court may
appoint another person to manage the property should it deem it
proper. The six-month bar should not have the effect of overriding the
provisions such as determination of the custody of the children,
alimony and support pendent lite.
Effects of Filing a Petition
FC 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
guardian under the Rules of Court.
FC Article 62: During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise apply to

24

the support of the spouse and the custody and support of the
common children.
-

The spouses can live separately from each

other;
The administration of the common property,
whether in absolute community or conjugal
partnership gains, shall be given by the court
to either of the spouses or to a third person,
as is best for the interest of the community;
The court shall provide for the support
between the spouses and the custody and
support of the common children;
When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be necessary unless
such spouse voluntarily gives consent.

Alimony pendent elite- During the pendency of the suit for

legal separation, it is the duty of the court to grant alimony to
the wife and to make provisions for the support of the
children not in the possession of the father.
An action for legal separation is based on the
assumption that there is a valid, subsisting
marriage thus, if defendant contends that the
marriage is not valid, alimony pendente elite
shal be denied.
Custody of the children may be determined by:
1. Agreement of the spouses which shall not be
disturbed unless prejudicial to the children;
2. Court order which shall be based on the sound
discretion of the judge, taking into account the
welfare of the children.

Dela Vina vs. Villa Real

Facts: Respondent Narcisa Geopano filed a complaint against Diego
delaVina alleging that he committed acts of adultery with one Ana
Calog. Respondent likewise alleged that she had been rejected from
their conjugal home and had no means of support. She requested for
the decree of divorce, partition of conjugal property and alimony. After
filing the complaint, respondent also found that petitioner was trying
to alienate the conjugal property to the prejudice of the plaintiff. Thus,
plaintiff asked that a preliminary injunction be issued against
defendant. The lower court ruled in favor of plaintiff-respondent as
such, herein petitioner contended that the court had no jurisdiction
over the case because the domicile residence of the wife was not
Iloilo and that as administrator of the conjugal property, he had a right
to alienate his wife.
Held: The court held that a wife may acquire another and separate
domicile from that of her husband when the theoretical unity of
husband and wife is dissolved or if husband has given cause for
divorce or where there is separation of the parties by agreement or a
permanent separation due to desertion or cruel treatment or where
there has been a forfeiture of the benefit of domicile. Also, petitioners
claim that he had a right to alienate responded lacked merit. Court
held that when the harmonious relationship between husband and
wife ceases, it is but right that the husbands powers of administration
be curtailed in light of the pendency of the action for separation.
Reyes vs. Ines-Luciano and Reyes
Facts: Celia Ilustre Reyes filed a complaint for legals separation
against her husband, Manuel J. C. Reyes on the ground that the
latter had attempted to kill the plaintiff. Plaintiff and herein respondent
asked for support pendent elite for her and her three children which
was granted by the lower court and respondent judge awarded

plaintiff with P5,000 in monthly support. Petitioner opposed the ruling

of the lower court on the ground that his wife committed adultery.
Held: The court held that while adultery is a good defense, it should
be established by competent evidence. In the case at hand,
petitioner did not present evidence to that effect. Also, the plaintiffrespondent was not asking for mere support but for her share of the
conjugal property or alimony. Complainant has also proven the
grounds of legal separation through competent evidence.
Property relations of unmarried couples is that of co-ownership
based on actual contribution and not the presumed half and half as it
is in conjugal partnership.
Pendente Lite: Pending Litigation
Effects of Decree

Banez vs. Banez

Facts: On Sept. 23, 1996, Aida P. Banez was legally separated from
Gabriel Banez on the ground of the latters sexual infidelity. Included
in the decision is the dissolution of their conjugal property relations,
division of their net conjugal assets, forfeiture of respondents share
in favor of the common children and the urgent ex parte motion to
modify the decision and oblige petitioner to pay as attorneys fees 5%
of the total value of respondents ideal share. On the motion for
execution, respondent Gabriel opposed. Trial court denied Aidas
motion for moral and exemplary damages and litigation fees but
granted the motion for execution. Petitioner was thereby ordered to
post a P1.5 M bond which she did. The Court of Appeals set aside
the writ for execution.
Held: The court denied the motion of execution n the ground that
execution pending appeal is allowed when superior circumstances
demanding urgency outweigh the damages that may result from the
issuance of the writ. Otherwise, the writ will be a tool for oppression
and inequity. Such urgency is not manifested by the case at bar.
Legal separation is not one where multiple appeals are allowed. The
issues involved in the case are of the same marital relationship
between the parties. In this case, dissolution is a mere incident of
legal separation. As such, no separate action may be taken.
FC Article 63: 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.

The obligation of mutual fidelity remains. The only

sanction in case of adultery or concubinage shall be
penal.
After the decree, the obligation of mutual support
between the spouses ceases; however the court may
order that the guilty spouse shall give support to the
innocent spouse.

25

A parent shall still have a right to access his child

under court regulation, unless he forfeited the
privilege or if it would injuriously affect the child.
The guilty spouse shall not be entitled to the
legitime.
A decree of separation which does not include an
order of division of properties is not an incomplete
judgment. The rules on dissolution and liquidation of
property regime shall be applied when the decree of
legal separation becomes final.

FC Article 64: After the finality of the decree of legal

separation, the innocent spouse may revoke the donations
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be recorded
in the registries of property in the places where the properties
are located. Alienations, liens and encumbrances registered in
good faith before the recording of the complaint for
revocation in the registries of property shall be respected. The
revocation of or change in the designation of the insurance
beneficiary shall take effect upon written notification thereof
to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation has become final.

The donations subsist if action is not taken before

the death of the spouse.

PD 612 (Insurance Code) Sec. 11: The insured shall have

the right to change the beneficiary he designated in the
policy, unless he has expressly waived this right in said policy.
Dissolution and Liquidation of ACP or CPG

La Rue vs. La Rue

Facts: Upon the divorce of Walter F. La Rue from Betty J. La Rue in
March 1980, the trial court held that the wife, having been a
homemaker, was not entitled to her claim to the equitable distribution
of marital assets. Petitioner Betty La Rue worked in the early part of
their marriage until Mr. La Rue, herein respondent, convinced her to
stop working and become a homemaker. The couple had two
children. The divorce only awarded Mrs. La Rue with alimony and
allowance for healthcare. Their home which was once under the
name of Mrs. La Rue was transferred under Mr. La Rue prior to the
decree of divorce.
Held: Where the spouse has foregone career opportunities at the
behest of the primary wage earning spouse, and throughout the long
marriage has remained in the home to rear children and provide
suitable environment for the family, the homemaker spouse shall
have an equitable interest in real property acquired by the wage
earning spouse during their marriage.
Doctrine of Equitable Distribution
- Permits a spouse who has made material economic
contributions toward the acquisition of property
which is titled in the name or under the control of
the other spouse, to claim an equitable interest in
such property in proceeding to seek a divorce.
- The concept of homemaker services is not to be
measured by some mechanical formula but instead
rests on showing that the homemaker has
contributed to the economic well-being of the family
unit.

Custody

Determining the Best Interest of the Child:

1.

Gender and Tender Years Presumption: When dealing

with children of tender years, the natural mother is
presumed in absence of evidence to the contrary, to
be the proper person vested with custody of such
children.

PD 603 Article XVII: In case of separation of his parents,

no child under five years of age shall be separated from his
mother unless the court finds compelling reasons to do so.

Ex Parte Devine
Facts: Petitioner Christopher P. Devine and respondent Alice Beth
Clark Devine were separated on March 29, 1979. The couple had
two children considered to be of tender years based on the Tender
Years Presumption. Both Mrs. Devine and Mr. Devine were found to
be fit to care for the children but on account of the Tender Years
Presumption, custody was awarded to respondent. Petitioner
contended that the Tender Years Presumption deprived him of the
constitutionally mandated right of equal protection of the law.
Held: Petition is granted. Case remanded to the lower court.
In common law, the Tender Years Presumption was in favor of the
husband who was the master of the family. While Alabama recognize
the factual presumption that mothers are inherently suitable to care
for and nurture young children, the presumption is weakening in
other states. With this presumption, it becomes the fathers burden to
prove that the mother is unfit to care for their common child. The
constitutionality of this presumption, the court held, may not be
lawfully mandated solely on the basis of sex.
Cervantes vs. Fajardo
Fact: This is a petition for a writ of habeas corpus of minor Angeline
Anne C. Cervantes filed by Nelson L. Cervantes and Zenaida C.
Cervantes against Gina Carreon Fajardo and Conrado Fajardo. After
the birth of Angeline Anne, respondents offered the child for adoption
to Zenaida, Ginas sister, and Nelson, her brother-in-law. The
petitioners have taken care of the child since she was two weeks old
and an Affidavit of Consent to Adoption was executed. On Aug. 20,
1987, the petition for adoption was granted and the childs surname
was changed to Fajardo. She was, from that decision, freed from
parental authority and legal obligation of her natural parents. On April
1987, petitioners received a letter from respondents demanding
P150,000 for the return of their adopted child who was taken by
respondent Gina Carreon.
Held: The court reaffirmed the decision of the lower court. The
provision that no mother shall be separated from a child under five
years of age will not apply where the court finds compelling reasons
to rule otherwise. Because the adoptive parents are legally married
and the respondents relationship with her husband is that of
common law and that respondent has given birth to a child by
another man, the court held that it will be in the childs best interest to
stay with her adoptive parents.
Espiritu v. Court of Appeals
Facts: Petitioner Reynaldo Espiritu and respondent Teresita
Masauding met in 1976. In 1977, respondent left for Los Angeles,
California to work as a nurse. In 1984, National Steel Corporation
sent petitioner to Pittsburgh Pennsylvania as a liason officer and from
then on, petitioner and respondent maintained a common law
relationship. On August 16, 1986, their first child was born. The

26

couple was married in October 1987 in the Philippines. After that,

they had another child who was born in 1988. While in the US,
respondent left her children with Petitioner to continue working in
California while the latter was in Pittsburgh. Petitioner returned to the
Philippines but upon being sent to Pittsburgh decided to leave his
children with his sister Guillerma Layug. Teresita claimed that she did
not immediately follow her children because she was afraid that
Reynaldo has filed a case of bigamy against her. In December 1992,
respondent filed a writ for habeas corpus. The trial court dismissed
the petition but the decision was reversed by the CA.
Held: The presumption that children under seven years of age can
best be taken care of by the mother is rebuttable. The task of
appointing custody cannot be solely based on the child alone but
several other considerations. The seven year age is not based on the
date petition was filed but the date decision is rendered. As such, the
preference of the children should be taken into consideration in
deciding the matter of their custody.
Celis vs. Cafuir
Facts: Respondents Soledad Cafuir and her husband Jose Simeon
appealed the decision of the lower court granting the writ of habeas
corpus to Ileana Celis and ordering the delivery of the child to
petitioner. Petitioner, after giving birth to Joel (John) Cafuir turned
over custody to Soledad, fearing the extreme displeasure and anger
of her father. Soledad provided for all the needs and comforts of the
child, including a nurse hired to care for the child. After marrying
Agustin C. Rivera, petitioner filed the suit for habeas corpus.
Respondents argued that petitioner executed documents to the effect
that she has renounced the custody of her children. The first stated
that the child was entrusted to respondents while the second stated
that Soledad is the real guardian of the child and no one may adopt
the child except for Soledad.
Held: The document cannot be taken to imply that petitioner has
renounced the custody of her child. The child was, as the first
document stated, merely entrusted and such arrangement was not
permanent. Having been emancipated from her father, Ileana was in
the position to care for her child and as such, has a right to do so.
FC Article 210: Parental authority and responsibility may not
be renounced or transferred except in the cases authorized by
law.
2.

Parental unfitness:

Feldman vs. Feldman

Facts: In a habeas corpus proceeding, the lower court transferred
from the mother to the unmarried father the custody of their two
infant children who previously had continuously resided with the
mother. The couple was divorced in July 1970 on the ground of cruel
and inhuman treatment on the part of the husband who was involved
in extramarital relations prior to the dissolution of their marriage. The
wife on the other hand, had a relationship to another man
subsequent to the decree of divorce. Petitioner Philip Feldman
alleged that he observed a copy of Screw Magazine (which
possesses dubious redeeming social values) and that he found
letters (some with explicit photographs attached) which were
responses to an advertisement for another couples or groups for fun
and games, in the house of respondent Mady Feldman. Respondent
wife alleged that the advertisement was done for fun and that the
evidence showed that her private sex life in no way affected the
children and that the children were provided for.

Held: Court held that amorality, immorality, sexual deviation and

aberrant sexual practices do not, on its face, constitute unfitness for
custody. The trial courts ruling that parents who participate in a
culture of free sex were unfit to care for children was a dangerous
conclusion. Also, the right of women to engage in private sexual
activities which do not affect her relationship with her children is
protected by her right to privacy. If courts recognized the rights of
unmarried men to engage in extramarital relations, there is no reason
to impose stricter standards on women. The evidence of the obscene
materials was likewise out of reach of the children. As such, they are
not, on its face, detrimental to the childrens welfare.
Santos Sr. vs. Court of Appeals
Facts: Court of appeals granted custody of 6 year old Leouel Santos
Jr., son f petitioner Leouel Santos Sr. and Julia Bedia-Santos to the
latters parents, Leopoldo and Ofelia Bedia. Leouel Santos Sr. is an
army lieutenant while Julia Bedia was a nurse working in the US.
Since release from the hospital, Leouel Jr. had been in the custody of
respondents. Julia has reportedly sent financial support while Leouel
Santos had done no such thing. On Sept. 2, 1990, Leouel took his
son from respondents prompting respondents to file a Petition for
Care, Custody and Control of Minor ward Leouel Santos Jr. Petitioner
argued that private respondents have failed to show that petitioner
was an unfit and unsuitable father and as such, Article 214 of the
Family Code cannot be applied. Private respondents contended that
they can provide a comfortable life to the child and that petitioner,
being a soldier, will not be able to care for the child.
Held: Custody granted to petitioner. When a parent entrusts the child
to another, what is given is merely temporary custody and not a
perpetual renunciation of parental authority. A waiver of parental
authority can only be executed in cases of adoption, guardianship
and surrender to childrens home or an orphan institution. Petitioners
previous inattention cannot be immediately construed as
abandonment. His effort to keep custody of the child is a sign that he
is willing to rectify his mistakes.

Role of the Childs Preference

FC Article 49: 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 for in Title IX.
FC Article 213: 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, especially the choice of the child over seven
years of age, unless the parent is unfit.
No child shall be separated from the mother unless the court
finds compelling reasons to order otherwise.

David v. CA
Facts: Petitioner Daisie T. David worked as secretary of private
respondent Ramon R. Villar who was then married and had a family.
They had intimate relations which produced three children,
Christopher, Christine and Cathy. Private respondents wife was
aware of the existence of the illegitimate children. Christopher was
taken by respondent on a trip to Boracay. Upon their return,
respondent refused to return the child prompting petitioner to file for a
write of habeas corpus. The trial court granted the petition but the
Court of Appeals reversed the decision on the ground that the trial
court had no jurisdiction over the case as the children were borne out
of adulterous relations. Temporary custody was awarded to

27

respondent until such time that the issue on custody and support was
determined in a proper case. Petitioner contended that the writ of
habeas corpus applied to all cases of illegal confinement or detention
or by which the rightful custody og any person is withheld.
Held: Article 213 of the FC states that custody of a child under six will
be given to the mother unless the court deems it proper to rule
otherwise. Absent any showing that petitioner is unfit (although
admittedly, she is not as well-off as respondent), custody shall be
given to her. As the child is over the presumed tender years, custody
must still remain with the mother as the child has categorically
expressed preference to live with his mother.
Pizarro vs. Vasquez
Facts: This suit for obtaining support from defendant was instituted
by Maria Pizarro and her minor children, Gloria, Julita and Lorenzo.
Plaintiff and defendant separated on the ground that the latter
committed acts of infidelity and cruelty. Defendant denied the claim
and alleged that there is no contract of separation and that Maria
Pizarro committed acts of adultery. The evidence of said adulterous
relations was the birth of Lorenzo 11 months after the couple
separated. Petitioner explained that they had sexual intercourse
sometime in November 1933 during the town fiesta in the belief that
defendant had changed.
Held: Claims of plaintiff that defendant had kept a mistress and had
maltreated her were not contradicted. Also, absent any evidence that
plaintiff indeed committed adultery and considering the prima facie
presumption of innocence, plaintiff should be given support by the
defendant.
Laxamana vs. Laxamana
Facts: Petitioner Reymond Laxamana was a graduate of Bachelor of
Laws while respondent Ma. Lourdes Laxamana held a degree in
Banking and Finance. Upon marriage, respondent quit her job and
became a full time housewife while petitioner managed buy and sell,
fishpond and restaurant businesses. The couple had three children.
In October 1991, petitioner was confined in Estrellas Home Care
Clinic for being a drug dependent. He was again confined in 1996 for
rehab. In 1997, petitioner was declared drug free but respondent
alleged otherwise stating that petitioner has become irritable since
his return and had even maltreated her at one point. Respondent
abandoned petitioner in June 1999 taking the children with her.
Petitioner filed a writ for habeas corpus for visitation rights which the
court granted. The parties were ordered to undergo psychological
evaluation which they passed except for the psychologists opinion
that petitioner, in his belief, was not completely drug free.
Held: Case was remanded. It is the duty of the court to hold a trial
notwithstanding the agreement of the parties to submit the case for
resolution on the basis of a psychiatric report. While petitioner had a
history of drug dependence, records were inadequate to show his
moral, financial and social well-being. There is therefore no proof that
he is unfit to care for his children. The court also failed to consider
the preference the choice of the children who were then 14 and 15
years old.

Presumption of Primary Care Taker

Garska vs. McCoy

Facts: Appelant Gwendolyn McCoy was pregnant with her first child,
Jonathan Conway, at 15 years old. During pregnancy, Michael
Garska, herein petitioner, did not give any support. When the child
was born, petitioner sent food and diapers. The baby developed a

chronic respiratory infection and to be able to use the United Mine

Workers medical insurance of her grandfather, appellant agreed to
the adoption of Jonathan by her grandparents. The petition was
dismissed on the ground that the child had not lived with the
grandparents for the requisite six months. Upon learning the action
for adoption, petitioner filed for a writ of habeas corpus which was
granted by the lower court.
Held: While the tender years presumption in favor of the mother is no
longer in effect, custody should still be granted to appellant on the
basis that she has been the primary caretaker of the child in
question. Logically, the primary caretaker parent is not in superior
financial position as such, the material welfare of the child depends
on the award of support. Court therefore held that the presumption is
in favor of the primary caretaker parent if he or she meets the
minimum objective standard for being a parent. The presumption
shall only apply to children of tender years. Custody was granted to
Gwendolyn McCoy. Court held that manipulation of the welfare
system to provide for the childs healthcare shall not be construed as
an attempt to abandon the child.

Other Effects

CC Article 372: When legal separation has been granted, the

wife shall continue using her name and surname employed
before the legal separation.

This is so because her married status is not affected

by the separation.
After legal separation, the marriage bonds are not
severed.

CC 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."

Matute vs. Macadalo

Facts: Petitioner Rosario Matute and private respondent Armando
Medel were legally separated on the ground of adultery committed by
petitioner with her brother-in-law. Custody of the four minor children
was thereby awarded to Armando. With permission from private
respondent, petitioner brought her children to Manila to attend her
fathers wake. Thereafter, she filed a civil suit, praying for custody of
her children whom she alleged has expressed preference to stay with
her. Three of the said children were no longer of tender years.
Armando moved to have Rosario charged with contempt of court for
disobeying the courts decision to grant custody to Armando but the
court did not accede owing to the fact that Armando consented.
However, the court did not grant custody to petitioner. Petitioner
argued that the act of adultery she was charged with does not
constitute moral depravity. Armando was found to be living with a
different woman and such relations were likewise adulterous.
Held: Alleged errors by respondent were merely errors of judgment
and not errors of jurisdiction.
Laperal vs. Republic of the Philippines
Facts: Elisea Laperal has been legally separated from her husband
Enrique Santamaria. During their marriage, petitioner used the
latters surname. She prayed that she be allowed to use her maiden
name considering that she and her husband had not lived together

28

for a long time. Petition was opposed b y the City Attorney of Bagiuo
but in a motion for reconsideration, the petition was granted on the
basis that the use of the married name will give rise to confusion in
finances and the eventual liquidation of the conjugal assets.
Held: The language of the statute is mandatory and a woman shall
continue using her married name because her married status is
unaffected by her legal separation. The fact of legal separation alone
is not a sufficient ground to justify a change of name.
Reconciliation
FC Article 65: If the spouses reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed
with the court in the same proceeding for legal separation.
FC Article 66: The reconciliation referred to in the preceding
article 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 courts order containing the foregoing shall be recorded in
the proper civil registries.
FC 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 separate 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 measures to protect the interest of
creditors and such order shall be recorded in the proper
registries of properties.
The recording of the order 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 word revive implies that the conjugal property
regime prior to the decree of legal separation would be
restored however, parties are still allowed to stipulate
what would be brought into the revived property regime.

Reconciliation
must
be
a voluntary
mutual
agreement to live together as husband and wife.
Filing of manifestation is only needed to terminate
the case in court and for purposes of future property
relations of the spouses.
If the reconciliation takes place after the decree of
legal separation has been handed down by the court,
the decree is set aside, and all the orders in that
decree will have no effect, except as to the property
relations of the spouses. The community of property
or conjugal partnership of gains is not automatically
revived.
After the spouses have reconciled, a new action for
legal separation can be based only on the
subsequent or other causes, but not on the causes
already pardoned.

Divorces
Foreign Divorces
The Nationality Principle
CC Article 15: Laws relating to family rights and duties,
or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines even though
living abroad.
FC Article 26: All marriages solemnized outside the
Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as
such, shall also be valid in this country, except in 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 the
capacity to remarry under Philippine laws.

General rule is a marriage valid where it was

celebrated is valid everywhere.
Exceptions to the general rule:
o
Marriages which are contrary to the law of
nature and good morals as generally
recognized in Christian countries (ex.
polygamous and incestuous marriages).
o
Marriages which the local law-making power
has declared shall not be allowed any
validity.
Foreign marriages under Articles 35 (those
contracted below 18, those polygamous and
bigamous, those contracted through mistake in
identity and those void under Article 53), 36
(Psychological incapacity), 37 (Incestuous Marriages)
and 38 (Marriages void by reason of public policy).
Laws on legal capacity to marry are binding to
Filipinos in all countries.
While the forms of entering into the contract of
marriage are to be regulated by the law where it is
celebrated, the essentials of the contract depend
upon the law of the domicile for the parties.

FC Article 26 vs. CC Article 15

- Article 26 corrects the riduculous situation wherein a
Filipino who married a foreigner remains married
inspite of a divorce decree issued in a different
country.
- Article 26 is more restrictive in that it requires that
the divorce be secured by the foreign spouse and
that Filipinos naturalized as citizens of other
countries are exmept from the application of the law.

Van Dorn vs. Romillo

Facts: Petitioner Alicia Reyes Van Dorn is a citizen of the Philippines
while private respondent Richard Upton is a citizen of the US. The
couple was married in Hong Kong and had two children. They lived
together in the Philippines until their divorce in 1982. They were
divorced in Nevada. After the divorce, petitioner married Theodore
Van Dorn. Private respondent filed a suit claiming that the Galleon
shop, petitioners business is conjugal property. Petitioners motion to
dismiss was not granted by respondent judge, Hon. Manuel V.
Romillo Jr. According to petitioner, respondent is estopped from
claiming the alleged conjugal property because of the representation
he made in the divorce proceedings that they had no community of
property.

29

Held: There is no question as to the validity of that Nevada divorce or

divorce in any state in the United States. The decree is binding on
private respondent as an American Citizen. Aliens may obtain
divorces abroad, which may be recognized in the Philippines
provided that they are valid according to their national law. As such,
respondent is no longer the legal husband of herein petitioner.
Quita vs. CA and Dandan
Facts: Fe Quita married Arturo Padian in the Philippines in 1941. The
couple agreed to live separately until 1950 when petitioner sued
Arturo for divorce. After the decree of divorce Fe married a certain
Felix Tupaz whom she divorced and then a certain Wernimont. Arturo
died in 1972 without a will. Lino Javier Inciong filed a petition for the
right to administer the estate of Arturo. Blandina Dandan, claiming to
be the surviving spouse of Arturo, along with her six children filed
their opposition to Javier, praying that the administration of the estate
be granted instead to their lawyer. In 1987, petitioner moved for
immediate declaration of the heirs of respondent and distribution of
his estate. The Dandan family did not appear in court. Arturos
brother, Ruperto and Fe Quita were declared the only heirs of Arturo.
The trial court held that a foreign divorce sought by Filipinos after the
effectivity of the Civil Code is not recognized in this jurisdiction. As
such, Blandina was not a legitimate spouse. As proof of filiation of the
children was presented, partial reconsideration was granted by the
court in favor of Arturos illegitimate children.
Held: The mere fact that petitioner declared Arturo was Filipino and
thus remained legally married to her in spite of the divorce implies
that Quita was no longer a Filipino citizen at that time. As such, the
trial court should have conducted a hearing to establish the
citizenship. Quita has apparently testified that she has been a US
citizen since 1954.

husband and wife in Australia but on 1989 they divorced. In 1992,

Recio became an Australian citizen. He married Grace Garcia two
years later and in their marriage license, he declared that he was a
Filipino. A year after their marriage, Garcia and Recio started living
separately and their assets were divided in 1996. Grace filed a
petition for nullity on the ground of bigamy alleging that she learned
of Recios prior marriage to Samson only in November of 1997. Recio
argued that he revealed his prior marriage in 1993. In 1998, a divorce
from Garcia was secured as such, respondent moved to dismiss
petition of Garcia on the ground that there was no longer a cause of
action.
Held: The Case was remanded to the trial court for the purpose of
obtaining evidence to show respondents legal capacity to marry. The
best evidence of divorce is the decision itself as authenticated by the
consular officer. Proof of the existence of provision on divorce and
the alleged divorce decree are likewise necessary to show capacity
to remarry. It was found that no decree of absolute divorce has been
given but divorce in the sense of legal separation.
- There is no judicial cognizance of foreign laws there is therefore an
additional requirement now, to show the effects of the divorce decree.
Intrinsic vs. Extrinsic
- In intrinsic there is absence of the essential requisites
(Article 15 applies).
- In extrinsic, lex law psy celebrationis or valid in the country,
valid everywhere.
- Extrinsic pertains to the formalities or formal requisites
which ay be dictated by the country decreeing the divorce
(Article 26 applies).
- The same is true for rules of succession.

Llorente vs. Court of Appeals

Facts: Lorenzo Llorente was an enlisted serviceman of the US Navy
from 1927 to 1957. In 1937, he and Paula were married. Before the
war, Lorenzo Llorente went to the United States leaving Paula in the
Philippines. In 1943, Lorenzo acquired US Citizenship. Upon his
return after the war, he discovered that his wife was pregnant and
was cohabiting with his brother Ceferino. She later gave birth to a
son by the adulterous relation. Lorenzo refused to forgive Paula and
the couple drew an agreement which stated that family allowances
would be suspended, marital union will be dissolved and a separate
agreement on the conjugal property was to be made. The agreement
was duly signed and notarized. In 1951, Lorenzo filed for a divorce
and which was decreed one year later. Upon his return he married
Alicia who had no knowledge of his prior marriage. In 1981, a will
was executed to the effect that all his property will be given to Alicia
and his kids by her. In 1983, Lorenzo petitioned for Alicia to be the
administrator of their conjugal property which was denied as he was
still alive. Lorenzo died on June 1985 and a few months after his
death, Paula filed a petition for letters of administration as the
surviving spouse of Lorenzo. The lower court held that Lorenzos
marriage with Alicia was void and that Paula should get 1/3 of the
properties.
Held: Divorce obtained in a foreign country is recognized in this
jurisdiction. Lorenzo was no longer a Filipino Citizen when he
obtained divorce.

Muslim Divorces

Garcia a.k.a. Recio vs. Recio

Facts: Rederick Recio, a Filipino, was married to an Australian,
Editha Samson, in Malabon on 1987. The couple lived together as

Art. 46. Divorce by talaq. (1) A divorce by talaq may be

effected by the husband in a single repudiation of his wife
during her non-menstrual period (tuhr) within which he has
totally abstained from carnal relation with her. Any number of

Yasin vs. Sharia District Court

Facts: Hatima Yasin, a Muslim Filipino of legal age, was married to
Hadji Idris Yasin until their divorce in May 13, 1984. After their
divorce, Hadji Idris Yasin contracted another marriage and as sch,
petitioner asked that she be allowed to resume use of her maiden
name and surname, Hatima Centi y Saul. The Sharia court stated
that she did not file the petition in sufficient form and substance
provided for in Rule 103 of the Rules of Court. Petitioner filed a
motion for reconsideration stating that the petition she filed is not
covered by the rules of court but is merely a petition to resume the
use of her maiden name and surname after the dissolution of her
marriage by divorce.
Held: The true and real name of a person is that given to him and
entered into the civil register. While it is true that under Article 376 of
the Civil Code, no person can change his name or surname without
judicial authority, nonetheless, the only name that may be changed is
the true and official name. Petitioner is not seeking to change her
registered name but for her to be allowed to resume the use of it. The
procedures for change of name under the Rules of Court shall not be
applied to judicial confirmation of the right of a divorced woman to
resume her maiden name and surname.
Code of Muslim Personal Laws

30

repudiation made during one tuhr shall constitute only one

repudiation and shall become irrevocable after the expiration
of the prescribed 'idda.

(g) Any other cause recognized under Muslim law for the
dissolution of marriage by faskh either at the instance of the
wife or the proper wali..chan robles virtual law library

(2) A husband who repudiates his wife, either for the first or
second time, shall have the right to take her back (ruju)
within the prescribed 'idda by resumption of cohabitation
without need of a new contract of marriage. Should he fail to
do so, the repudiation shall become irrevocable (Talaq bain
sugra).

Art. 53. Faskh on the ground of unusual cruelty. A decree

offaskh on the ground of unusual cruelty may be granted by
the court upon petition of the wife if the husband:

Art. 47. Divorce by Ila. Where a husband makes a vow to

abstain from any carnal relations (ila) with his wife and keeps
such ila for a period of not less than four months, she may be
granted a decree of divorce by the court after due notice and
hearing.

(b) Associates with persons of ill-repute or leads an infamous

life or attempts to force the wife to live an immoral life;

Art.
48. Divorce by zihar. Where the husband has
injuriously assimilated (zihar) his wife to any of his relatives
within the prohibited degrees of marriage, they shall mutually
refrain from having carnal relation until he shall have
performed the prescribed expiation. The wife may ask the
court to require her husband to perform the expiation or to
pronounce the a regular talaq should he fail or refuse to do
so, without prejudice to her right of seeking other appropriate
remedies.

(d) Obstructs her in the observance of her religious practices;

or

Art. 49. Divorce by li'an. Where the husband accuses his

wife in court of adultery, a decree of perpetual divorce may be
granted by the court after due hearing and after the parties
shall have performed the prescribed acts of imprecation
(li'an).

(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;

Art. 50. Divorce by khul'. The wife may, after having

offered to return or renounce her dower or to pay any other
lawful consideration for her release (khul') from the marriage
bond, petition the court for divorce. The court shall, in
meritorious cases and after fixing the consideration, issue the
corresponding decree.

(a) Habitually assaults her or makes her life miserable by

cruel conduct even if this does not result in physical injury;

(c) Compels her to dispose of her exclusive property or

prevents her from exercising her legal rights over it;

(e) Does not treat her justly and equitably as enjoined by

Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. A talaq or
faskh, as soon as it becomes irrevocable, shall have the
following effects:

(b) The spouses shall lose their mutual rights of inheritance;

(c) The custody of children shall be determined in accordance
with Article 78 of this code;
(d)The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been affected after the
consummation of the marriage, or one-half thereof if effected
before its consummation; .chan robles virtual law library

Art. 51. Divorce by tafwid. If the husband has delegated

(tafwid) to the wife the right to effect a talaq at the time of
the celebration of the marriage or thereafter, she may
repudiate the marriage and the repudiation would have the
same effect as if it were pronounced by the husband himself.

(e) The husband shall not be discharged from his obligation to

give support in accordance with Article 67; and

Art. 52. Divorce by faskh. The court may, upon petition of

the wife, decree a divorce by faskh on any of the following
grounds :

Art. 55.Effects of other kinds of divorce. The provisions of

the article immediately preceding shall apply to the
dissolution, of marriage by ila, zihar, li'an and khul', subject to
the effects of compliance with the requirements of the Islamic
law relative to such divorces.

(a) Neglect or failure of the husband to provide support for

the family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing
him to imprisonment for at least one year; .chan robles
virtual law library
(c) Failure of the husband to perform for six months without
reasonable cause his marital obligation in accordance with
this code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable
disease which would make the continuance of the marriage
relationship injurious to the family;
(f)Unusual cruelty of the husband as defined under the next
succeeding article; or

(f) The conjugal partnership, if stipulated in the marriage

settlements, shall be dissolved and liquidated.

Section 2. 'Idda.
Art. 56. 'Idda defined. 'Idda is the period of waiting
prescribed for a woman whose marriage has been dissolved
by death or by divorce the completion of which shall enable
her to contract a new marriage.
Art. 57. Period. (1) Every wife shall be obliged to observe
'idda as follows:
(a) In case of dissolution of marriage by death, four months
and ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three
monthly courses; or
(c) In case of a pregnant women, for a period extending until
her delivery.

31

(2) Should the husband die while the wife is observing 'idda
for divorce, another 'idda for death shall be observed in
accordance with paragraph 1(a).
.chan robles virtual law library

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.

FC Article 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. 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 of proceeds thereof
to satisfy the latters share.

FC 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 the witnesses to
be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses.

Separation of fact refers to the actual definite

separation of the persons of husband and wife,
thereby terminating cohabitation or common life
under the same roof without judicial order. There is
no separation of fact if business affairs only require
that they occupy separate residences but their
relations continue to be intimate and friendly.
The spouse who leaves the conjugal home without
justification loses the right to be supported by the
other spouse but his obligation to support the latter
is not extinguished.
Judicial authorization is necessary when the consent
of one spouse is necessary for a transaction but
cannot be obtained.

FC Article 127: The separation in fact between the 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 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 latters share.

FC Article 247: The judgment of the court shall be

immediately final and executory.

Perez vs. Court of Appeals

Facts: Rey Perez, a doctor of medicine practicing in Cebu and his
wife, Nerissa a registered nurse and herein petitioner were married in
December 1986. Their marriage produced one child born in July
1992. Petitioner began working in the US on October 1988 and
became a resident alien in 1992. She was able to construct a house
in Mandaue using her earnings. Respondent stayed with her in the
US twice while she was pregnant and when she gave birth to Rey
Perez II. Unlike his wife, he had only a tourist visa and was
unemployed in the US. The family went back to Cebu in 1993 but
after a few weeks, Nerissa went back to the US because the
husband preferred to stay behind to take care of his sick mother.
Nerissa filed a petition for a writ of habeas corpus asking respondent
Rey Perez to surrender custody of their son to her. Lower court
granted the custody to the mother based on Article 213 of the Family
Code. CA reversed the decision and granted the custody to the father
instead.
Held: Article 213 of the FC provides that in case of separation of
parents, no child under 7 years of age shall be separated from the
mother unless Since the code did not qualify the word separation
to mean legal separation couples separated in fact are still covered
by its terms. The provision likewise mandates that the child under
seven years of age shall be in the custody of the mother absent any
showing that the mother is unfit to care for the child. In the case
herein, the Petitioner alleged that the mother will not be able to take
care of the child as she works as a nurse. The Court however held
that such a supposition is unfounded especially as there are means
by which the mother could take care of the child despite the demands
of her profession.

FC 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 and approved by the court.
FC 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

32