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PERSONS AND FAMILY RELATIONS
Persons and Family Relations Law | Dean Sta. Maria | Atty. Sison-Arroyo
DISCLAIMER
This document shall not be used as primary reference in
lieu of the annotated books and reviewers it is based on.
THE CIVIL CODE OF THE PHILIPPINES
PRELIMINARY TITLE
CHAPTER ONE: EFFECT AND APPLICATION OF LAWS
ART. 1. THIS ACT SHALL BE KNOWN AS THE "CIVIL CODE OF THE PHILIPPINES."
Ø Main draft of the Civil Code was prepared by the Roxas Code Commission (E.O. 48).
Ø The Roxas Code Commission was composed of:
1. Dr. Jorge C. Bocobo – chairman of the commission.
2. Judge Guillermo B. Guevarra
3. Dean Pedro Y. Ylagan
4. Francisco R. Capistrano
5. Dr. Carmelino Alvendia (in lieu of Arturo M. Tolentino)
Ø An Act to Ordain and Institute the Civil Code of the Philippines (R.A. 386) was passed on
January 26, 1949.
Ø The 1950 Civil Code took effect on August 30, 1950.
ART. 2. LAWS SHALL TAKE EFFECT AFTER FIFTEEN DAYS FOLLOWING THE COMPLETION OF
THEIR PUBLICATION IN THE OFFICIAL GAZETTE, UNLESS IT IS OTHERWISE PROVIDED. THIS
CODE SHALL TAKE EFFECT ONE YEAR AFTER SUCH PUBLICATION.
Ø Amended by President Corazon Aquino’s E.O. 200, allowing publication of laws either in:
1. Official Gazette; or
2. Newspaper of general circulation – more easily available, has a wide circulation,
and comes out regularly.
Ø Effectivity of laws:
o Rules when there is a different day of effectivity:
1. When a statute does not explicitly provide for its effectivity, it shall
have effect only after the expiration of the 15-day period following the
completion of its publication.
2. If the law provides for a different period shorter or longer than the 15-
day period, then such shorter or longer period will prevail.
3. If the law provides that it shall take effect immediately, it means that
it shall take effect immediately after publication with the 15-day period
being dispensed with.
o Publication must be in full or it is not publication at all since its purpose is to
inform the public of its contents. (Tañada v. Tuvera, 1986)
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o After accomplishment of this requirement, the people are deemed to have
conclusively been notified of the law even if actually the people or some of the
same have not read them.
o This rule covers:
1. Presidential Decrees and Executive Orders by the president.
2. Administrative Rules and Regulations – if their purpose is to enforce
or implement an existing law pursuant to a valid legislation.
3. City Charters.
o What may not be published:
1. Interpretative regulations.
2. Those merely internal in nature – regulates only the personnel of an
administrative agency and not the public.
3. Letters-of-instruction.
4. Circulars issued by the Monetary Board.
o The clause, “unless it is otherwise provided” solely refers to the 15-day period
and not to the requirement of publication.
o Publication is an indispensable requisite; the absence of which will not render
the law effective. (Nagkakaisang Maralita ng Sitio Masigasig, Inc. v. Military
Shrine Services, 2013)
ART. 3. IGNORANCE OF THE LAW EXCUSES NO ONE FROM COMPLIANCE THEREWITH.
Ø Ignorantia legis non excusat – ignorance of the law excuses no one.
Ø When the rules for effectivity of laws are complied with, the public is always put on
“constructive notice” of the law’s existence and effectivity.
Ø This article applies only to:
1. Mandatory laws; and
2. Prohibitory laws.
ART. 4. LAWS SHALL HAVE NO RETROACTIVE EFFECT, UNLESS THE CONTRARY IS PROVIDED.
Ø General Rule: Statutes are to be construed as having only prospective operation,
o Exception: When the purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the
language used.
Ø In case of doubt, the same must be resolved against the retrospective effect.
Ø Instances when the law may be given retroactive effect:
1. When the law expressly provides for retroactivity.
2. When the law is curative (remedial).
§ In order to cure defects and adding to the means of enforcing existing
obligations, or make valid that which, before enactment of the remedial
statute, was invalid.
§ The legislature has the power to pass such acts which do not impair the
obligations of contracts nor interfere with vested rights.
3. When the law is procedural.
§ When a statute deals with procedure only, prima facie, it applies to all
pending and future actions.
4. When the law is penal in character and favorable to the accused.
§ Does not apply when the subject of a penal statute is a habitual
criminal.

• Habitual delinquent – if within a period of 10 years from the
date of his release or last conviction of the crime of serious
or less serious physical injuries, robo, hurto, estafa or
falsification, he is found guilty of any said crimes a third time
or oftener. (Art. 62, Revised Penal Code (RPC))
ART. 5. A CTS EXECUTED AGAINST THE PROVISIONS OF MANDATORY OR PROHIBITORY LAWS
SHALL BE VOID, EXCEPT WHEN THE LAW ITSELF AUTHORIZES THEIR VALIDITY.
Ø Mandatory law – when the omission of which renders the proceeding or acts to which it
relates generally illegal or void.
o Ex. Prescriptive periods provided by the law for filing particular suits.
Ø Prohibitory law – contains positive prohibitions couched in negative terms importing that
the act required shall not be done otherwise than designated. (Brehm v. Republic, 1963)
Ø General Rule: Acts committed in violation of mandatory and prohibitory laws are void.
o Exception: When the law expressly provides for the validity of acts committed
in violation of a mandatory or prohibitory provision of a statute, such act shall
be considered valid and enforceable.
ART. 6. RIGHTS MAY BE WAIVED, UNLESS THE WAIVER IS CONTRARY TO LAW, PUBLIC ORDER,
PUBLIC POLICY , MORALS, OR GOOD CUSTOMS , OR PREJUDICIAL TO A THIRD PERSON WITH A
RIGHT RECOGNIZED BY LAW.
Ø Waiver – intentional relinquishment of a known right.
o Elements:
1. There is a right;
2. Such right is known;
3. Actual intent to relinquish such right.
o Not presumed, but must be clearly and convincingly shown either by:
1. Express stipulation; or
2. Acts admitting no other reasonable explanation.
Ø Ignorance of a material fact negates waiver – waiver cannot be established by a consent
given under a mistake or misapprehension of fact. (Consunji v. CA, 2001)
Ø Waivers cannot be made if they are contrary to law, public order, public policy, morals or
good customs, or prejudicial to a third person with a right recognized by law.
o The preferential rights of tenants under C.A. 539 to purchase a public land cannot
be validly waived, as such was against public policy. (Gongon v. CA, 1970)
o The law does not consider as valid any agreement to receive less compensation
than the worker is entitled to recover under the law. (Franklin Baker Co. of the
Philippines v. Alillana, 1967)
o The acceptance of benefits such as separation pay and terminal leave benefits
would not amount to estoppel or waiver of right of employee to contest his illegal
dismissal. (San Miguel Corporation v. Cruz, 1970)
Ø General rule: Rights, protections, and advantages conferred by statutes may be waived.
o Exception: When the object of a statute is to promote great public interests,
liberty and morals, it cannot be defeated by any private stipulation. (Griffith v.
New York L. Ins. Co., 1945)
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ART. 7. LAWS ARE REPEALED ONLY BY SUBSEQUENT ONES, AND THEIR VIOLATION OR NON-
OBSERVANCE SHALL NOT BE EXCUSED BY DISUSE, OR CUSTOM OR PRACTICE TO THE
CONTRARY .
WHEN THE COURTS DECLARED A LAW TO BE INCONSISTENT WITH THE CONSTITUTION, THE
FORMER SHALL BE VOID AND THE LATTER SHALL GOVERN .
ADMINISTRATIVE OR EXECUTIVE ACTS, ORDERS AND REGULATIONS SHALL BE VALID ONLY
WHEN THEY ARE NOT CONTRARY TO THE LAWS OR THE CONSTITUTION.
Ø Repeal – legislative act of abrogating through a subsequent law the effects of a previous
statute or portions thereof.
Ø Repeal may either be:
1. Expressed – literally declared by a new law, either in:
§ Specific terms – where particular laws and provisions are named and
identified and declared to be repealed, or;
§ General terms – where a provision in a new law declares all laws and
parts of laws inconsistent therewith to be repealed.
2. Implied – when a new law contains provisions contrary to or inconsistent with
those of a former without expressly repealing them.
§ “All laws and parts thereof inconsistent with the provisions of this Act
are hereby repealed or modified accordingly” – predicates the intended
repeal upon the condition that substantial conflict must be found in
existing and prior acts. Hence, not an express repeal.
§ Test: Whether the subsequent law encompasses entirely the subject
matter of the former law and they cannot be logically or reasonably
reconciled.
Ø General Rule: A special law, providing for a particular case or class of cases, is not repealed
by a subsequent general law.
o Exception: When the intent to repeal or alter is manifest, although the terms of
the general law are broad enough to include the cases embraced in the special
law. (National Power Corporation v. Arca, 1968)
Ø No ordinary statute can override a constitutional provision. (Floresca v. Philex Mining
Corporation, 1985)
Ø In interpreting statutes, they should be given a meaning that will not bring them in conflict
with the Constitution. (Noblejas v. Teehankee, 1968)
Ø General Rule: Where a portion of a statute is rendered unconstitutional and the remainder
valid, the parts will be separated, ad the constitutional portion upheld.
o Exception: When the parts of the statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended them as a whole.
(Lidasan v. COMELEC, 1967)
Ø Administrative Rules and Regulations are binding on the courts so long as the procedure
fixed for its promulgation is followed, and its scope is within the statutory authority granted
by the legislature. (Victorias Miling Company, Inc. v. Social Security Commission, 1962)
o An administrative agency cannot amend an Act of Congress.

ART. 8. JUDICIAL DECISIONS APPLYING OR INTERPRETING THE LAWS OR THE CONSTITUTION
SHALL FORM A PART OF THE LEGAL SYSTEM OF THE PHILIPPINES.
Ø The courts have the principal function of not only resolving legal controversies but also of
interpreting and construing vague provisions of law relative to a particular dispute.
Ø Construction – the art or process of discovering and expounding the meaning and intention
of the authors of the law with respect to its application to a given case, where that intention
is rendered doubtful, among others by reason of the fact that the given case is not explicitly
provided for in the law. (Caltex, Inc. v. Palomar, 1966)
Ø Judicial Decisions – although in themselves not laws, assume the same authority as the
statute itself and, until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria which must control the actuations not only of those called
upon to abide thereby but also those duty-bound to enforce obedience thereto.
o Likewise constitute evidence of what the law means and how it was interpreted
by the courts.
o Judicial decisions of the Supreme Court (SC) are authoritative and precedent-
setting, while those of the inferior courts and the Court of Appeals (CA) are
merely persuasive.
o General Rule: Deemed part of the law as of the date of its enactment since the
SC’s application and interpretation merely established the contemporaneous
legislative intent that the construed law purports to carry into effect. (People v.
Licera, 1975)
§ Exception: When a doctrine of the SC is overruled and a different view
is adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on the old doctrine and acted
on faith thereof. (People v. Jabinal, 1974)
Ø Legis interpretation legis vim obtinet – the interpretation placed upon the written law by a
competent court has the force of law.
ART. 9. N O JUDGE OR COURT SHALL DECLINE TO RENDER JUDGMENT BY REASON OF THE
SILENCE, OBSCURITY OR INSUFFICIENCY OF THE LAWS.
Ø Judges must not evade performance of their responsibility to dispense justice with the
constitutional precept that no person shall be deprived of life, liberty, and property without
due process of law just because of an apparent non-existence of any law governing a
particular legal dispute or because the law involved is vague or inadequate.
o When the statutes are silent or ambiguous, this is one of those fundamental
principles which the courts invoke in order to arrive at a solution that would
respond to the vehement urge of conscience. (In Re: Padilla, 1943)
Ø Where the conclusions of a judge in his decision are not without logic or reason, he cannot
be said to have been incompetent. (Corpus v. Cabaluna, 1974)
Ø The judiciary cannot “legislate,” for legislation is the function of the Congress. However,
in certain instances, courts “do and must legislate” to fill in the gaps in the law. (Floresca
v. Philex Mining Corporation, 1985)
ART. 10. IN CASE OF DOUBT IN THE INTERPRETATION OR APPLICATION OF LAWS, IT IS
PRESUMED THAT THE LAWMAKING BODY INTENDED RIGHT AND JUSTICE TO PREVAIL.
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Ø When the law is clear, it must be applied according to its unambiguous provisions.
Construction and interpretation come only after it has been demonstrated that application
is impossible or inadequate without them.
Ø If there is ambiguity in the law, interpretation of the law requires fidelity to the legislative
purpose.
Ø A literal interpretation is to be rejected if it would be unjust or lead to absurd results. (Bello
v. CA, 1974)
ART. 11. CUSTOMS WHICH ARE CONTRARY TO LAW, PUBLIC ORDER OR PUBLIC POLICY SHALL
NOT BE COUNTENANCED.
ART. 12. A CUSTOM MUST BE PROVED AS A FACT, ACCORDING TO THE RULES OF EVIDENCE.
Ø Custom – a rule of conduct formed by repetition of acts, uniformly observed (practiced) as
a social rule, legally binding and obligatory.
Ø Merely because something is done as a matter of practice (social custom) does not mean
that courts can rely on the same for purposes of adjudication as a juridical custom.
o Juridical custom – can supplement statutory law or applied in the absence of such
statute.
Ø Customs which are contrary to law, public order or public policy shall not be countenanced.
Ø A custom, even if proven, cannot prevail over a statutory rule or even a legal rule
enunciated by the Supreme Court. (In the Matter of the Petition for Authority to Continue
use of the Firm name “Ozaeta, Romulo, etc.,” 1979)
ART. 13. WHEN THE LAWS SPEAK OF YEARS, MONTHS, DAYS OR NIGHTS, IT SHALL BE
UNDERSTOOD THAT YEARS ARE OF THREE HUNDRED SIXTY -FIVE DAYS EACH; MONTHS , OF
THIRTY DAYS; DAYS, OF TWENTY -FOUR HOURS ; AND NIGHTS FROM SUNSET TO SUNRISE.
IF MONTHS ARE DESIGNATED BY THEIR NAME, THEY SHALL BE COMPUTED BY THE NUMBER OF
DAYS WHICH THEY RESPECTIVELY HAVE.
IN COMPUTING A PERIOD, THE FIRST DAY SHALL BE EXCLUDED, AND THE LAST DAY INCLUDED.
Ø Impliedly repealed by Sec. 31 of the Administrative Code of 1987 (E.O. 292): Legal
Periods – “Year” shall be understood to be 12 calendar months; “month” of 30 days,
unless it refers to a specific calendar month in which case it shall be computed according
to the number of days the specific month contains; “day,” to a day of 24 hours and; “night”
from sunset to sunrise.
o Calendar month – a month designated in the calendar without regard to the
number of days it may contain. Counted from the beginning of a certain
numbered day up to, but not including, the corresponding numbered day of the
next month. (Ex. 1 month from December 31 is January 31)
§ If there is not a sufficient number of days in the next month, then up to
and including the last day of that month. (Ex. 1 month from January 31
shall be February 28 or 29 for leap years)
o “365 days” to “12 calendar months” clarifies the ambiguity when it comes to leap
years. (Ex. 1 year from March 1, 2015 shall be March 1, 2016 regardless of the
different number of days due to the leap year)

o “First day shall be excluded, and the last day included” (Ex. 20 days from
February 3 shall be February 23, because February 3 is excluded and February
23 is included)
ART. 14. PENAL LAWS AND THOSE OF PUBLIC SECURITY AND SAFETY SHALL BE OBLIGATORY
UPON ALL WHO LIVE OR SOJOURN IN THE PHILIPPINE TERRITORY, SUBJECT TO THE PRINCIPLES
OF PUBLIC INTERNATIONAL LAW AND TO TREATY STIPULATIONS.
Ø Application of the Principles of Generality and Territoriality of Criminal Law.
Ø General Rule: Citizens and foreigners are subject to penal laws and all other laws designed
to maintain public security and safety.
o Exception: When the Philippine government has waived its criminal jurisdiction
over them on the basis of the principles of public international law and treaty
stipulations. (Ex. Jurisdiction over diplomatic agents, except consuls because
they come only for commercial purposes not diplomatic)
Ø Sojourn – temporary stay/visit, no residence required.
ART. 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 .
Ø Nationality rule – regardless of where a citizen of the Philippines might be, he or she will
be governed by Philippine laws with respect to his or her family rights and duties, or to his
or her status, condition, and legal capacity.
Ø Hence, if a Filipino citizen abroad, regardless of whether he or she was married here or
abroad, successfully acquires an absolute divorce from his wife or husband, the Philippines
will not recognize such absolute divorce because the only moment when absolute divorce
may be recognized is when it is the alien spouse who procures such divorce decree.
Ø Where a Filipino procures absolute divorce abroad, his status in the Philippines shall still
be married, hence he commits concubinage if he marries again thereafter. (Tenchaves v.
Escaño, 1965)
ART. 16. REAL PROPERTY AS WELL AS PERSONAL PROPERTY IS SUBJECT TO THE LAW OF THE
COUNTRY WHERE IT IS STIPULATED.
HOWEVER, INTESTATE AND TESTAMENTARY SUCCESSIONS, BOTH WITH RESPECT TO THE
ORDER OF SUCCESSION AND TO THE AMOUNT OF SUCCESSIONAL RIGHTS AND TO THE INTRINSIC
VALIDITY OF TESTAMENTARY PROVISIONS, SHALL BE REGULATED BY THE NATIONAL LAW OF
THE PERSON WHOSE SUCCESSION IS UNDER CONSIDERATION, WHATEVER MAY BE THE NATURE
OF THE PROPERTY AND REGARDLESS OF THE COUNTRY WHEREIN SAID PROPERTY MAY BE
FOUND.
Ø Where a citizen of Turkey made a last will and testament providing that his property shall
be disposed of pursuant to Philippine laws, the SC ruled that such provision is illegal and
void because the national law should govern successional rights. (Miciano v. Brimo, 1924)
Ø Where a foreigner executed a will in the Philippines but who, at the time of his death, was
both a national of the United States and also domiciled in the United States, the SC ruled
that the national law of the decedent applies, in intestate or testamentary succession, with
regard to the following:
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1. Order of succession;
2. Amount of successional rights;
3. Intrinsic validity of the provisions of the will; and
§ Intrinsic validity – refers to the content.
§ Extrinsic validity – refers to the form and other solemnities.
4. Capacity to succeed.
ART. 17. THE FORMS AND SOLEMNITIES OF CONTRACTS, WILLS, AND OTHER PUBLIC
INSTRUMENTS SHALL BE GOVERNED BY THE LAWS OF THE COUNTRY IN WHICH THEY ARE
EXECUTED.
WHEN THE ACTS REFERRED TO ARE EXECUTED BEFORE THE DIPLOMATIC OR CONSULAR
OFFICIALS OF THE REPUBLIC OF THE PHILIPPINES IN A FOREIGN COUNTRY, THE SOLEMNITIES
ESTABLISHED BY PHILIPPINE LAWS SHALL BE OBSERVED IN THEIR EXECUTION.
PROHIBITIVE LAWS CONCERNING PERSONS, THEIR ACTS OR PROPERTY, AND THOSE WHICH
HAVE, FOR THEIR OBJECT, PUBLIC ORDER, PUBLIC POLICY AND GOOD CUSTOMS SHALL NOT BE
RENDERED INEFFECTIVE BY LAWS OR JUDGMENTS PROMULGATED, OR BY DETERMINATIONS OR
CONVENTIONS AGREED UPON IN A FOREIGN COUNTRY.
Ø For extrinsic validity forms and solemnities of public instruments, wills, and contracts shall
be governed by the laws of the country where they are executed.
Ø Since diplomatic and consular officials are representatives of the Philippines, any act or
contract made in a foreign country before them must conform to the solemnities under
Philippine law.
o This is so because the host country where such officials are assigned, by rules of
international law, waives its jurisdiction over the premises of the diplomatic
office of another country located in the said host country. (Ex. US Embassy is
under the jurisdiction of US laws)
Ø Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by
laws, or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country.
o In a case where a Filipina wife obtained a divorce abroad and later remarried an
American, the Filipino husband in the Philippines can file a legal separation case
against the wife for having technically committed adultery, considering that the
absolute divorce is not recognized in the Philippines. (Tenchaves v. Escaño,
1965)
ART. 18. IN MATTERS WHICH ARE GOVERNED BY THE CODE OF COMMERCE AND SPECIAL
LAWS, THEIR DEFICIENCY SHALL BE SUPPLIED BY THE PROVISIONS OF THIS CODE.
Ø Suppletory nature – any deficiency in the Code of Commerce or special laws shall be
supplied by the provisions of the Civil Code.

CHAPTER TWO: HUMAN RELATIONS o However, in this case, the petitioner was granted actual damages arising from the
preparations made for the marriage ceremony.
ART. 19. EVERY PERSON MUST, IN THE EXERCISE OF HIS RIGHTS AND IN THE PERFORMANCE OF Ø No damages can be recovered under Arts. 19 and 21 where the sexual intercourse is a
HIS DUTIES, ACT WITH JUSTICE, GIVE EVERYONE HIS DUE , AND OBSERVE HONESTY AND GOOD
product of voluntariness and mutual desire. (Hermosisima v. CA, 1960)
FAITH.
ART. 22. EVERY PERSON WHO THROUGH AN ACT OF PERFORMANCE BY ANOTHER, OR ANY
OTHER MEANS, ACQUIRES OR COMES INTO POSSESSION OF SOMETHING AT THE EXPENSE OF THE
Ø Commonly referred to as the principle of “abuse of rights.” LATTER WITHOUT JUST OR LEGAL GROUND, SHALL RETURN THE SAME TO HIM.
o Elements:
1. Legal right or duty;
2. Exercised in bad faith; and Ø The concept of this article is the prevention of unjust enrichment.
3. Sole intent of prejudicing or injuring another. o Unjust enrichment – when a person unfairly gets a benefit by chance, mistake or
Ø Sets the following standards in the exercise of one’s rights and in the performance of one’s another's misfortune for which the one enriched has not paid or worked and
duties: morally and ethically should not keep.
1. To act with justice; Ø Nemo cum alterious detriment locupletari potest – no one shall enrich himself at the
2. To give everyone his due; and expense of another.
3. To observe honesty and good faith.
Ø A “legal wrong” is committed when a right is exercised in a manner which does not ART. 23. EVEN WHEN AN ACT OR EVENT CAUSING DAMAGE TO ANOTHER'S PROPERTY WAS
conform with the norms enshrined in Art. 19 and results in damage to another, for which NOT DUE TO THE FAULT OR NEGLIGENCE OF THE DEFENDANT, THE LATTER SHALL BE LIABLE
the wrongdoer must be held responsible. FOR INDEMNITY IF THROUGH THE ACT OR EVENT HE WAS BENEFITED.

ART. 20. EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR NEGLIGENTLY CAUSES
DAMAGE TO ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE SAME.
Ø Ex. Without A’s knowledge, a flood drives his cattle to the cultivated highland of B. A’s
cattle are saved, but B’s crop is destroyed.
o A was benefited because the cattle were saved by B’s highland. Thus, although
Ø Good faith is presumed, and he who alleges bad faith has the duty to prove the same. A was not at fault, it is right and equitable that he should indemnify B.
o Good faith – the state of mind which is manifested by the acts of the individual
concerned, consisting of the intention to abstain from taking an unconscionable ART. 24. IN ALL CONTRACTUAL, PROPERTY OR OTHER RELATIONS, WHEN ONE OF THE PARTIES
and unscrupulous advantage of another. IS AT A DISADVANTAGE ON ACCOUNT OF HIS MORAL DEPENDENCE, IGNORANCE, INDIGENCE,
o Bad faith – a breach of known duty due to some motives or interests or ill-will MENTAL WEAKNESS, TENDER AGE OR OTHER HANDICAP, THE COURTS MUST BE VIGILANT FOR
that partakes of the nature of fraud; conscious doing of a wrong. HIS PROTECTION.
§ Malice – connotes ill-will or spite and speaks not in response to duty;
intention to do ulterior and unjustifiable harm.
Ø This article contains a “general sanction” (to indemnify) for all other provisions of law Ø Court vigilance – the courts must render justice and must therefore be very vigilant in
which do not especially provide their own sanction. protecting the rights of the disadvantaged with the end view that any decision will be in
Ø Compared to Arts. 19 and 21, acts falling under this article may be done either willfully or consonance with what is right and legal.
negligently. Ø Pleadings as well as remedial laws should be construed liberally in order that the litigants
o Negligence – omission of the amount of due diligence required. may have ample opportunity to their respective claims and that a possible denial of
substantial justice due to legal technicalities may be avoided. (De Lima v. Laguna Tayabas
ART. 21. ANY PERSON WHO WILFULLY CAUSES LOSS OR INJURY TO ANOTHER IN A MANNER Company, 1988)
THAT IS CONTRARY TO MORALS, GOOD CUSTOMS OR PUBLIC POLICY SHALL COMPENSATE THE
o In this case, the heirs of the pauper victims in the traffic accident chose not to
LATTER FOR THE DAMAGE.
appeal in the hope that the transportation company will pay the damages awarded
by the lower court, but unfortunately said company still appealed to the CA,
which was obviously dilatory and oppressive of the rights of said claimants.
Ø Designed to fill in the countless gaps in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury.
Ø Deals with acts contra bonus mores (against good morals).
o Elements:
1. Legal act;
2. Contrary to morals, good customs, public order, or public policy;
3. Intent to injure.
Ø A mere breach of promise to marry is not an actionable wrong. (Wassmer v. Velez, 1964)
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ART. 25. THOUGHTLESS EXTRAVAGANCE IN EXPENSES FOR PLEASURE OR DISPLAY DURING A
PERIOD OF ACUTE PUBLIC WANT OR EMERGENCY MAY BE STOPPED BY ORDER OF THE COURTS
AT THE INSTANCE OF ANY GOVERNMENT OR PRIVATE CHARITABLE INSTITUTION.
Ø This article seeks to prevent inconsiderate and ostentatious activities during times of
emergency. Limited to any:
1. Government institution; or
2. Charitable institution.
ART. 26. EVERY PERSON SHALL RESPECT THE DIGNITY, PERSONALITY, PRIVACY AND PEACE OF
MIND OF HIS NEIGHBORS AND OTHER PERSONS. THE FOLLOWING AND SIMILAR ACTS, THOUGH
THEY MAY NOT CONSTITUTE A CRIMINAL OFFENSE, SHALL PRODUCE A CAUSE OF ACTION FOR
DAMAGES, PREVENTION AND OTHER RELIEF:
(1) PRYING INTO THE PRIVACY OF ANOTHER'S RESIDENCE :
(2) MEDDLING WITH OR DISTURBING THE PRIVATE LIFE OR FAMILY RELATIONS OF ANOTHER;
(3) INTRIGUING TO CAUSE ANOTHER TO BE ALIENATED FROM HIS FRIENDS;
(4) VEXING OR HUMILIATING ANOTHER ON ACCOUNT OF HIS RELIGIOUS BELIEFS, LOWLY
STATION IN LIFE, PLACE OF BIRTH, PHYSICAL DEFECT, OR OTHER PERSONAL CONDITION.
Ø This article is referred to as the “home wrecker statute.”
Ø Includes the following acts and those similar:
1. Prying into the privacy of another’s residence
§ The privacy of one’s home is an inviolable right. Yet, during the time
1947 Civil Code Commission, the laws in force did not squarely and
effectively protect such right.
2. Meddling with or disturbing the private life or family relations of another
§ Alienation of the affection of another’s wife or husband, unless it
constitutes adultery or concubinage, is not condemned by the law,
much as it may shock society.
§ This seeks to sanction the meddling of so-called friends who poison
the mind of one or more members of the family against the other
members.
3. Intriguing to cause another to be alienated from his friends
§ Similar with the previous number.
4. Vexing or humiliating another on account of his religious beliefs, lowly station
in life, place of birth, physical defect, or other personal condition
§ Social equality is not sought by the legal provision under
consideration, but due regard for decency and propriety.
§ Vexing – harsh or critical statements about someone.
ART. 27. ANY PERSON SUFFERING MATERIAL OR MORAL LOSS BECAUSE A PUBLIC SERVANT OR
EMPLOYEE REFUSES OR NEGLECTS, WITHOUT JUST CAUSE, TO PERFORM HIS OFFICIAL DUTY
MAY FILE AN ACTION FOR DAMAGES AND OTHER RELIEF AGAINST HE LATTER, WITHOUT
PREJUDICE TO ANY DISCIPLINARY ADMINISTRATIVE ACTION THAT MAY BE TAKEN.
Ø Elements:
1. Public officer;
2. Refusal to assist;
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3. No justifiable reason; and
4. Damage suffered.
Ø The law exacts on public officials an obligation to be very vigilant and just so that the
public can be assured that the government is truly effective in servicing their needs.
Ø The remedy is a claim for damages.
ART. 28. UNFAIR COMPETITION IN AGRICULTURAL, COMMERCIAL OR INDUSTRIAL
ENTERPRISES OR IN LABOR THROUGH THE USE OF FORCE, INTIMIDATION, DECEIT,
MACHINATION OR ANY OTHER UNJUST, OPPRESSIVE OR HIGHHANDED METHOD SHALL GIVE
RISE TO A RIGHT OF ACTION BY THE PERSON WHO THEREBY SUFFERS DAMAGE.
Ø Democracy becomes a veritable mockery if any person or group of persons by any unjust
or highhanded method may deprive others of a fair chance to engage in business or earn a
living.
Ø Unfair competition – acts that cause an economic injury to a business through a deceptive
or wrongful business practice. (Ex. trademark infringement and misappropriation)
ART. 29. WHEN THE ACCUSED IN A CRIMINAL PROSECUTION IS ACQUITTED ON THE GROUND
THAT HIS GUILT HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT, A CIVIL ACTION FOR
DAMAGES FOR THE SAME ACT OR OMISSION MAY BE INSTITUTED. SUCH ACTION REQUIRES
ONLY A PREPONDERANCE OF EVIDENCE. UPON MOTION OF THE DEFENDANT, THE COURT MAY
REQUIRE THE PLAINTIFF TO FILE A BOND TO ANSWER FOR DAMAGES IN CASE THE COMPLAINT
SHOULD BE FOUND TO BE MALICIOUS.
IF IN A CRIMINAL CASE THE JUDGMENT OF ACQUITTAL IS BASED UPON REASONABLE DOUBT,
THE COURT SHALL SO DECLARE. IN THE ABSENCE OF ANY DECLARATION TO THAT EFFECT, IT
MAY BE INFERRED FROM THE TEXT OF THE DECISION WHETHER OR NOT THE ACQUITTAL IS DUE
TO THAT GROUND.
Ø Quantum of evidence:
1. Proof beyond reasonable doubt – criminal cases – that amount of proof which
forms an abiding moral certainty that the accused committed the crime charged.
2. Preponderance of evidence – civil cases – the evidence adduced by one side
outweighs that of the adverse party.
3. Substantial evidence – procedural and administrative cases – such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Ø The fact that the guilt was not proven beyond reasonable doubt must be expressly stated in
the criminal decision.
o Thereafter, a separate civil action for damages may be instituted.
ART. 30. WHEN A SEPARATE CIVIL ACTION IS BROUGHT TO DEMAND CIVIL LIABILITY ARISING
FROM A CRIMINAL OFFENSE , AND NO CRIMINAL PROCEEDINGS ARE INSTITUTED DURING THE
PENDENCY OF THE CIVIL CASE, A PREPONDERANCE OF EVIDENCE SHALL LIKEWISE BE
SUFFICIENT TO PROVE THE ACT COMPLAINED OF.
Ø Even if the civil obligation arose from a criminal offense, the required quantum of evidence
in a civil suit to claim such civil obligation is merely preponderance of evidence.

ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN OBLIGATION NOT ARISING FROM THE ACT ART. 32. ANY PUBLIC OFFICER OR EMPLOYEE, OR ANY PRIVATE INDIVIDUAL, WHO DIRECTLY
OR OMISSION COMPLAINED OF AS A FELONY, SUCH CIVIL ACTION MAY PROCEED OR INDIRECTLY OBSTRUCTS, DEFEATS, VIOLATES OR IN ANY MANNER IMPEDES OR IMPAIRS
INDEPENDENTLY OF THE CRIMINAL PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE ANY OF THE FOLLOWING RIGHTS AND LIBERTIES OF ANOTHER PERSON SHALL BE LIABLE TO
LATTER. THE LATTER FOR DAMAGES :

(1) F REEDOM OF RELIGION;

Ø This article seeks to give an aggrieved party a remedy and a cause of action for injuries (2) F REEDOM OF SPEECH;
which do not necessarily arise from the commission of a crime. (Ex. Quasi-delicts in Arts. (3) F REEDOM TO WRITE FOR THE PRESS OR TO MAINTAIN A PERIODICAL PUBLICATION;
2176-2194 of the Civil Code) (4) F REEDOM FROM ARBITRARY OR ILLEGAL DETENTION;
Ø Applies to: (5) F REEDOM OF SUFFRAGE ;
o Culpa aquiliana – quasi-delict. (6) THE RIGHT AGAINST DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW;
o Culpa contractual – violation of the contract resulting to damages. (Ex. bus (7) THE RIGHT TO A JUST COMPENSATION WHEN PRIVATE PROPERTY IS TAKEN FOR PUBLIC
driver falls off a deep precipice, driver acquitted in criminal case, but liable for USE;
civil damages for failure to carry the passengers safely to their destination) (8) THE RIGHT TO THE EQUAL PROTECTION OF THE LAWS;
Ø It does not provide for an independent civil action. (9) THE RIGHT TO BE SECURE IN ONE'S PERSON, HOUSE, PAPERS, AND EFFECTS AGAINST
o Independent civil action – when the civil action is based on an obligation not UNREASONABLE SEARCHES AND SEIZURES;
arising from the act or omission complained of as a felony. (10) THE LIBERTY OF ABODE AND OF CHANGING THE SAME;
(11) THE PRIVACY OF COMMUNICATION AND CORRESPONDENCE;
(12) THE RIGHT TO BECOME A MEMBER OF ASSOCIATIONS OR SOCIETIES FOR PURPOSES NOT
CONTRARY TO LAW;
(13) THE RIGHT TO TAKE PART IN A PEACEABLE ASSEMBLY TO PETITION THE GOVERNMENT
FOR REDRESS OF GRIEVANCES;
(14) THE RIGHT TO BE FREE FROM INVOLUNTARY SERVITUDE IN ANY FORM;
(15) THE RIGHT OF THE ACCUSED AGAINST EXCESSIVE BAIL;
(16) THE RIGHT OF THE ACCUSED TO BE HEARD BY HIMSELF AND COUNSEL, TO BE INFORMED
OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM, TO HAVE A SPEEDY AND
PUBLIC TRIAL, TO MEET THE WITNESSES FACE TO FACE, AND TO HAVE COMPULSORY PROCESS
TO SECURE THE ATTENDANCE OF WITNESS IN HIS BEHALF;
(17) FREEDOM FROM BEING COMPELLED TO BE A WITNESS AGAINST ONE'S SELF, OR FROM
BEING FORCED TO CONFESS GUILT, OR FROM BEING INDUCED BY A PROMISE OF IMMUNITY OR
REWARD TO MAKE SUCH CONFESSION, EXCEPT WHEN THE PERSON CONFESSING BECOMES A
STATE WITNESS;
(18) FREEDOM FROM EXCESSIVE FINES, OR CRUEL AND UNUSUAL PUNISHMENT, UNLESS THE
SAME IS IMPOSED OR INFLICTED IN ACCORDANCE WITH A STATUTE WHICH HAS NOT BEEN
JUDICIALLY DECLARED UNCONSTITUTIONAL; AND
(19) FREEDOM OF ACCESS TO THE COURTS.

IN ANY OF THE CASES REFERRED TO IN THIS ARTICLE, WHETHER OR NOT THE DEFENDANT'S
ACT OR OMISSION CONSTITUTES A CRIMINAL OFFENSE , THE AGGRIEVE D PARTY HAS A RIGHT
TO COMMENCE AN ENTIRELY SEPARATE AND DISTINCT CIVIL ACTION FOR DAMAGES, AND FOR
OTHER RELIEF. SUCH CIVIL ACTION SHALL PROCEED INDEPENDENTLY OF ANY CRIMINAL
PROSECUTION (IF THE LATTER BE INSTITUTED), AND MAY BE PROVED BY A PREPONDERANCE
OF EVIDENCE.

THE INDEMNITY SHALL INCLUDE MORAL DAMAGES. EXEMPLARY DAMAGES MAY ALSO BE
ADJUDICATED.

THE RESPONSIBILITY HEREIN SET FORTH IS NOT DEMANDABLE FROM A JUDGE UNLESS HIS ACT
OR OMISSION CONSTITUTES A VIOLATION OF THE PENAL CODE OR OTHER PENAL STATUTE.

7 YAP, K. | ATENEO LAW


Ø Elements of a cause of action:
1. Right in favor of the plaintiff;
2. Obligation on the part of the named defendant to respect or not to violate such
right; and
3. Act or omission on the part of such defendant violative of the right of the plaintiff
or constituting a breach of the obligation of defendant to plaintiff.
Ø Reasons why a separate civil action for violations of civil liberties is essential to the
effective maintenance of democracy:
1. In most cases, the threat to freedom originates from abuses of power of
government officials and peace officers. However, prosecutors would fail to file
criminal actions because evidence was insufficient, or because the official is of
a higher rank.
2. Even when the prosecutor filed a criminal action, the requirement of proof
beyond reasonable doubt often prevented the appropriate punishment.
3. Direct and open violations of the RPC trampling upon the freedoms named are
not so frequent as those subtle, clever, and indirect ways which do not come
within the ambit of the penal law.
Ø Good faith is not a defense because to be liable under Art. 32, it is enough that there was a
violation of a constitutional right. (Lim v. Ponce de Leon, 1975)
Ø The responsibility of judges herein is not demandable unless his act or omission constitutes
a violation of the RPC or other penal statute.
o Judges cannot be subjected to any liability for any of their official acts, no matter
how erroneous, so long as they act in good faith. (Esguerra v. Gonzales-Asdala,
2004)
ART. 33. IN CASES OF DEFAMATION, FRAUD, AND PHYSICAL INJURIES A CIVIL ACTION FOR
DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM THE CRIMINAL ACTION, MAY BE
BROUGHT BY THE INJURED PARTY. SUCH CIVIL ACTION SHALL PROCEED INDEPENDENTLY OF
THE CRIMINAL PROSECUTION, AND SHALL REQUIRE ONLY A PREPONDERANCE OF EVIDENCE.
Ø The rationale for independent civil actions is to allow the citizen to enforce his rights in a
private action brought by him, regardless of the action of the State attorney.
o While the State is the complainant in the criminal case, the injured individual is
the one most concerned because it is he who suffered directly.
Ø The terms fraud, defamation, and physical injuries must be understood in their ordinary
sense. Hence, they do not follow the RPC definition.
1. Defamation may include libel.
2. Fraud may include estafa.
3. Physical injuries may include death or homicide.
§ However, criminal negligence/reckless imprudence is not one of the
three crimes mentioned herein. Acquittal in the criminal action is a bar
to his civil liability based upon the same criminal act. (Corpus v. Paje,
1969)
ART. 34. WHEN A MEMBER OF A CITY OR MUNICIPAL POLICE FORCE REFUSES OR FAILS TO
RENDER AID OR PROTECTION TO ANY PERSON IN CASE OF DANGER TO LIFE OR PROPERTY , SUCH
PEACE OFFICER SHALL BE PRIMARILY LIABLE FOR DAMAGES, AND THE CITY OR MUNICIPALITY
SHALL BE SUBSIDIARILY RESPONSIBLE THEREFOR. THE CIVIL ACTION HEREIN RECOGNIZED
SHALL BE INDEPENDENT OF ANY CRIMINAL PROCEEDINGS, AND A PREPONDERANCE OF
EVIDENCE SHALL SUFFICE TO SUPPORT SUCH ACTION.
8 YAP, K. | ATENEO LAW
Ø It is the duty of police officers to see to it that peace and order are maintained in the
communities.
Ø Subsidiarily responsible – the city or municipality shall be liable for damages that the police
officers are unable to pay.
ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED BY A CRIMINAL OFFENSE, CHARGES
ANOTHER WITH THE SAME, FOR WHICH NO INDEPENDENT CIVIL ACTION IS GRANTED IN THIS
CODE OR ANY SPECIAL LAW, BUT THE JUSTICE OF THE PEACE FINDS NO REASONABLE GROUNDS
TO BELIEVE THAT A CRIME HAS BEEN COMMITTED, OR THE PROSECUTING ATTORNEY REFUSES
OR FAILS TO INSTITUTE CRIMINAL PROCEEDINGS, THE COMPLAINT MAY BRING A CIVIL ACTION
FOR DAMAGES AGAINST THE ALLEGED OFFENDER. SUCH CIVIL ACTION MAY BE SUPPORTED BY
A PREPONDERANCE OF EVIDENCE. UPON THE DEFENDANT'S MOTION, THE COURT MAY
REQUIRE THE PLAINTIFF TO FILE A BOND TO INDEMNIFY THE DEFENDANT IN CASE THE
COMPLAINT SHOULD BE FOUND TO BE MALICIOUS.
IF DURING THE PENDENCY OF THE CIVIL ACTION, AN INFORMATION SHOULD BE PRESENTED BY
THE PROSECUTING ATTORNEY , THE CIVIL ACTION SHALL BE SUSPENDED UNTIL THE
TERMINATION OF THE CRIMINAL PROCEEDINGS.
Ø Rule 111 of the Rules of Court provides for the procedure with respect to reservation of
civil actions.
o General Rule: When a criminal action is instituted, the civil action is deemed
instituted with the former.
§ Exceptions: When the offended party either:
1. Waives the civil action;
2. Reserves his right to institute it separately; or
o Shall be made before the prosecution starts
presenting its evidence and under circumstances
affording the offended party a reasonable
opportunity to make such reservation.
3. Institutes the civil action prior to the criminal action.
o After the criminal action has commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in the
criminal actions.
§ If the criminal action is filed after the civil action, the latter shall be
suspended in whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment is rendered in the
criminal action.
o Civil action may proceed independently in cases provided in Arts. 32, 33, 34 and
2176 of the Civil Code.
o General Rule: Death of the accused after arraignment and during pendency of the
criminal action shall extinguish the civil liability arising therefrom.
§ Exception: The independent civil action instituted under Arts. 32, 33,
34 and 2176, or those instituted to enforce liability arising from other
sources of obligation may be continued against the state or legal
representative of the accused after proper substitution or against said
estate.
• Sources of obligation:
1. Laws;
2. Contracts;

3. Quasi-contracts; BOOK I: PERSONS
4. Delicts; and
5. Quasi-delicts. TITLE ONE: CIVIL PERSONALITY
o If the accused dies before arraignment, the case shall be dismissed without
prejudice to any civil action the offended party may file against the estate of the CHAPTER ONE: GENERAL PROVISIONS
deceased.
o A final judgment rendered in a civil action absolving the defendant from civil ART. 37. JURIDICAL CAPACITY, WHICH IS THE FITNESS TO BE THE SUBJECT OF LEGAL
liability is not a bar to a criminal action against the defendant for the same act or RELATIONS, IS INHERENT IN EVERY NATURAL PERSON AND IS LOST ONLY THROUGH DEATH.
omission subject of the civil action. CAPACITY TO ACT , WHICH IS THE POWER TO DO ACTS WITH LEGAL EFFECT, IS ACQUIRED AND
MAY BE LOST.
ART. 36. PRE -JUDICIAL QUESTIONS WHICH MUST BE DECIDED BEFORE ANY CRIMINAL
PROSECUTION MAY BE INSTITUTED OR MAY PROCEED, SHALL BE GOVERNED BY RULES OF
COURT WHICH THE SUPREME COURT SHALL PROMULGATE AND WHICH SHALL NOT BE IN
Ø Juridical Capacity Capacity to Act
CONFLICT WITH THE PROVISIONS OF THIS CODE. • The fitness to be the subject of legal • The power to do acts with legal
relations. effect.
• Acquired upon the birth of a person. • Not inherent in a person; it is
Ø General Rule: Where both a civil and a criminal case arising from the same facts are filed
attained and conferred.
in court, the criminal case takes precedence.
• Terminated only upon death. • It can be lost not only by death but
o Exceptions:
by any valid cause provided by
1. When there exists a prejudicial question which should be resolved first
law.
before action could be taken in a criminal case; or
2. When the law provides that both civil and criminal case can be
instituted simultaneously such as that provided in Art. 33 of the Civil
ART. 38. MINORITY, INSANITY OR IMBECILITY, THE STATE OF BEING A DEAF-MUTE,
Code.
PRODIGALITY AND CIVIL INTERDICTION ARE MERE RESTRICTIONS ON CAPACITY TO ACT , AND
Ø Ex. A, the wife, files a case of concubinage against B, her husband, for contracting a
DO NOT EXEMPT THE INCAPACITATED PERSON FROM CERTAIN OBLIGATIONS, AS WHEN THE
subsequent marriage with C. B files for the declaration of nullity of the subsequent marriage
LATTER ARISE FROM HIS ACTS OR FROM PROPERTY RELATIONS, SUCH AS EASEMENTS.
on the ground of lack of an essential requisite.
o The case for concubinage shall be suspended as the validity of the subsequent
marriage, being contested in the nullity case, is a prejudicial question that has to Ø Mere restrictions on the capacity to act.
be resolved before the commencement or continuance of the concubinage case. Ø Accessory penalties:
1. Minority – those less than 18 years of age.
2. Insanity – mental illness of such a severe nature that a person cannot distinguish
fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject
to uncontrollable impulsive behavior.
3. Imbecility – lack of normal mental ability.
4. State of being a deaf-mute
5. Prodigality – persons who, though of full age, were incapable of managing their
affairs, and of the obligations which attended them, in consequence of their bad
conduct, and for whom a curator was therefore appointed.
6. Civil interdiction – legal restraint upon a person incapable of managing his estate.
7. Alienage – foreigners cannot incur property in the Philippines.
8. Trusteeship – parents, through courts, execute contracts of their minor children.

9 YAP, K. | ATENEO LAW


ART. 39. THE FOLLOWING CIRCUMSTANCES, AMONG OTHERS, MODIFY OR LIMIT CAPACITY TO
ACT: AGE, INSANITY, IMBECILITY, THE STATE OF BEING A DEAF-MUTE, PENALTY,
PRODIGALITY, FAMILY RELATIONS, ALIENAGE, ABSENCE, INSOLVENCY AND TRUSTEESHIP. THE
CONSEQUENCES OF THESE CIRCUMSTANCES ARE GOVERNED IN THIS CODE, OTHER CODES, THE
RULES OF COURT , AND IN SPECIAL LAWS. CAPACITY TO ACT IS NOT LIMITED ON ACCOUNT OF
RELIGIOUS BELIEF OR POLITICAL OPINION.
A MARRIED WOMAN, TWENTY-ONE YEARS OF AGE OR OVER, IS QUALIFIED FOR ALL ACTS OF
CIVIL LIFE, EXCEPT IN CASES SPECIFIED BY LAW.
Ø Enumerates situations which modify the capacity to act.
Ø Objectives of Arts. 38 and 39:
1. To make an overview of the situation that qualifies a person’s power to undertake
acts which can produce legal effects.
2. To give people not adept in the technicalities of law an immediate sense that,
since the Civil Code principally provides rules governing the relationship
between and among men, women, juridical entities and even the government,
there are certain situations which may effectively, juridically, and legally affect
such relationships.
CHAPTER TWO: NATURAL PERSONS
ART. 40. BIRTH DETERMINES PERSONALITY; BUT THE CONCEIVED CHILD SHALL BE
CONSIDERED BORN FOR ALL PURPOSES THAT ARE FAVORABLE TO IT, PROVIDED IT BE BORN
LATER WITH THE CONDITIONS SPECIFIED IN THE FOLLOWING ARTICLE.
Ø Amended by the “Child and Youth Welfare Code” (P.D. 603): The civil personality of the
child shall commence from the time of his conception for all purposes favorable to him,
subject to the requirements of Art. 41 of the Civil Code.
o Conception – the process of becoming pregnant involving fertilization or
implantation or both: embryo, fetus.
ART. 41. FOR CIVIL PURPOSES, THE FETUS IS CONSIDERED BORN IF IT IS ALIVE AT THE TIME IT
IS COMPLETELY DELIVERED FROM THE MOTHER'S WOMB. HOWEVER, IF THE FETUS HAD AN
INTRA-UTERINE LIFE OF LESS THAN SEVEN MONTHS, IT IS NOT DEEMED BORN IF IT DIES WITHIN
TWENTY-FOUR HOURS AFTER ITS COMPLETE DELIVERY FROM THE MATERNAL WOMB.
Ø Fetus is considered born alive when:
1. It is alive at the time it is completely delivered from the mother’s womb; or
2. If it had an intra-uterine life less than 7 months, it lives 24 hours after complete
delivery from the maternal womb.
Ø For the purposes of inheritance and succession, Art. 1025 of the Civil Code also provides
that “a child already conceived at the time of the death of the decedent is capable of
succeeding, provided that it be born later under the conditions prescribed in Art. 41.”
Ø Birth certificate – best evidence of the fact of birth. Once it is registered with the office of
the local civil registrar (LCR), it becomes a public document.
o Entries therein are only prima facie evidence of the facts contained therein, and
may be rebutted by competent evidence.
10
o Birth records are strictly confidential and the contents therein cannot be revealed
except in the cases provided by law.
§ However, they are still considered public documents because through
proper legal procedure, they can be obtained by those interested
therein.
ART. 42. CIVIL PERSONALITY IS EXTINGUISHED BY DEATH.
THE EFFECT OF DEATH UPON THE RIGHTS AND OBLIGATIONS OF THE DECEASED IS DETERMINED
BY LAW, BY CONTRACT AND BY WILL.
Ø Death puts an end to civil personality.
Ø The LCR of a municipality or city must have in its custody the death certificates of persons
who died in its locality.
o No human body shall be buried unless the proper death certificate has been
presented and recorded in the office of the LCR. (Sec. 6, Civil Registry Law)
Ø The rights and obligations of a dead person can still be regulated by contract, will, or the
law. Hence, the estate of the deceased assumes such obligations.
ART. 43. IF THERE IS A DOUBT, AS BETWEEN TWO OR MORE PERSONS WHO ARE CALLED TO
SUCCEED EACH OTHER, AS TO WHICH OF THEM DIED FIRST, WHOEVER ALLEGES THE DEATH OF
ONE PRIOR TO THE OTHER, SHALL PROVE THE SAME; IN THE ABSENCE OF PROOF, IT IS
PRESUMED THAT THEY DIED AT THE SAME TIME AND THERE SHALL BE NO TRANSMISSION OF
RIGHTS FROM ONE TO THE OTHER.
Ø This article specifically applies only to persons who are called to succeed each other.
Ø General Rule: The proof of death must be established by positive evidence.
o Exception: However, it can likewise be established by circumstantial evidence
derived from facts.
Ø If ever an inference is to be made, it must be derived from an existing fact.
o Proof of death can never be established from mere inference arising from another
inference or from presumptions and assumptions.
CHAPTER THREE: JURIDICAL PERSONS
ART. 44. THE FOLLOWING ARE JURIDICAL PERSONS:
(1) THE STATE AND ITS POLITICAL SUBDIVISIONS;
(2) OTHER CORPORATIONS, INSTITUTIONS AND ENTITIES FOR PUBLIC INTEREST OR PURPOSE,
CREATED BY LAW; THEIR PERSONALITY BEGINS AS SOON AS THEY HAVE BEEN CONSTITUTED
ACCORDING TO LAW;
(3) CORPORATIONS, PARTNERSHIPS AND ASSOCIATIONS FOR PRIVATE INTEREST OR PURPOSE
TO WHICH THE LAW GRANTS A JURIDICAL PERSONALITY, SEPARATE AND DISTINCT FROM THAT
OF EACH SHAREHOLDER, PARTNER OR MEMBER.
YAP, K. | ATENEO LAW

ART. 45. JURIDICAL PERSONS MENTIONED IN NOS. 1 AND 2 OF THE PRECEDING ARTICLE ARE
GOVERNED BY THE LAWS CREATING OR RECOGNIZING THEM.
PRIVATE CORPORATIONS ARE REGULATED BY LAWS OF GENERAL APPLICATION ON THE
SUBJECT .
PARTNERSHIPS AND ASSOCIATIONS FOR PRIVATE INTEREST OR PURPOSE ARE GOVERNED BY
THE PROVISIONS OF THIS CODE CONCERNING PARTNERSHIPS.
ART. 46. JURIDICAL PERSONS MAY ACQUIRE AND POSSESS PROPERTY OF ALL KINDS, AS WELL
AS INCUR OBLIGATIONS AND BRING CIVIL OR CRIMINAL ACTIONS, IN CONFORMITY WITH THE
LAWS AND REGULATIONS OF THEIR ORGANIZATION.
Ø Juridical person – a being of legal existence susceptible of rights and obligations, or of
being the subject of juridical relations.
Ø The following are juridical persons:
1. State – a sovereign person with the people composing it viewed as an organized
corporate society under a government with the legal competence to exact
obedience of its commands.
§ In default of persons entitled to succeed to the estate of a deceased
person, the State shall inherit his whole estate. (Art. 1011, New Civil
Code)
2. Political subdivisions – municipal corporations and, in the Philippines, consist of
the provinces, cities and municipalities.
§ Two-fold function of municipal corporations:
1. Exercise the right springing from sovereignty (public
agency) – their acts are political and governmental.
2. Exercise a private, proprietary or corporate right, arising
from their existence as legal persons and not as public
agencies.
3. Corporations – artificial beings created by operation of law, having the right of
succession and the powers, attributes, and properties expressly authorized by law
or incident to its existence. (Sec. 2, B.P. 68 – Corporation Code of the
Philippines)
§ Governed either by:
1. The general law on corporations (Corporation Code of the
Philippines); or
2. Their special charters.
§ Have no feelings, and therefor cannot sue nor be sued for moral
damages.
4. Partnerships – when two or more persons bind themselves to contribute money,
property, or industry to a common fund, with the intention of dividing the profits
among themselves. (Art. 1767, New Civil Code)
Ø Doctrine of piercing the veil of corporate fiction – although corporations, partnerships, and
associations have separate and distinct personalities from their officers and members, such
cannot be used by the latter as a veil of immunity from suit for fraudulent acts, making
them liable for any liability of the corporation.
11
ART. 47. UPON THE DISSOLUTION OF CORPORATIONS, INSTITUTIONS AND OTHER ENTITIES FOR
PUBLIC INTEREST OR PURPOSE MENTIONED IN NO. 2 OF A RTICLE 44, THEIR PROPERTY AND
OTHER ASSETS SHALL BE DISPOSED OF IN PURSUANCE OF LAW OR THE CHARTER CREATING
THEM. IF NOTHING HAS BEEN SPECIFIED ON THIS POINT, THE PROPERTY AND OTHER ASSETS
SHALL BE APPLIED TO SIMILAR PURPOSES FOR THE BENEFIT OF THE REGION, PROVINCE, CITY
OR MUNICIPALITY WHICH DURING THE EXISTENCE OF THE INSTITUTION DERIVED THE
PRINCIPAL BENEFITS FROM THE SAME.
Ø The dissolution of private corporations is governed by Title IV of the Corporation Code.
Ø For those created through special charters, their dissolution shall be governed in accordance
with the provisions of their respective charters, and in absence of such, the Corporation
Code shall apply suppletorily.
Ø The dissolution of partnerships shall be governed by Title IX, Chapter 3 of the New Civil
Code.
TITLE TWO: CITIZENSHIP AND DOMICILE
ARTS. 48-51
[Skipped Citizenship and Domicile because it will be taken up in Constitutional Law II]
Ø Domicile – denotes a fixed permanent residence to which, when absent, one has the
intention of returning.
o Elements of Change in Domicile:
1. Actual removal or an actual change of domicile;
2. Bona fide intention of abandoning the former place of residence and
establishing a new one; and
3. Acts which correspond with the purpose.
Ø Residence – used to indicate a place of abode, whether permanent or temporary.
Ø Modes of acquiring citizenship:
1. Jus sanguinis – by blood. (Ex. Those born of Filipino fathers and mothers are
Philippine citizens)
2. Jus soli – by location. (Ex. Those born in the United States, regardless of lineage,
are American citizens)
§ Those born in extensions such as foreign embassies are considered
citizens of such foreign country, if the latter adopts the principle of jus
soli.
3. Naturalization – by legal process.
Ø Loss of Philippine citizenship:
1. Naturalization in a foreign country;
2. Express renunciation;
3. Subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining 21 years of age or more;
4. Rending service to the armed forces of a foreign country;
5. Cancellation of certificate of naturalization;
6. Deserter of the Philippine armed forces, when declared by competent authority;
7. When a woman, upon marriage to a foreigner, acquires her husband’s nationality
by virtue of the foreign law.
Ø Reacquisition may be made through naturalization, repatriation, or direct act of the
Congress of the Philippines.
YAP, K. | ATENEO LAW

THE FAMILY CODE OF THE PHILIPPINES
August 3, 1988
Ø Defines marriage and the family, spells out the corresponding legal effects, imposes the
limitations that affect married and family life, as well as prescribes the grounds for
declaration of nullity, and those for legal separation.
TITLE ONE: MARRIAGE
CHAPTER ONE: REQUISITES OF MARRIAGE
ART. 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.
Ø Marriage – when a man and a woman enter a joint life acting, living and working as one.
o Purposes:
1. Procreation; and
2. Mutual help and protection physically, morally, and materially.
o Marriage is a “sacred obligation” because it is highly valued and important in
society, and because it is a civil contract wherein the man and the woman bind
themselves together permanently as one moral, spiritual, and social being. Hence,
the State is also interested in the marriage.
o Marriage is said to be a “civil contract” to indicate that it must be founded upon
the agreement of the parties.
o Marriage as a “civil status” is important because there are rights and liabilities
incidental to such status.
Ø Marriage is a special contract that cannot be restricted by discriminatory policies of private
individuals or corporations. (Philippine Telegraph and Telephone Company v. NLRC,
1997)
Ø Mail-order Bride – the business of matching Filipino women for marriage to foreign
nationals either on mail-order basis or through personal introduction.
Ø Women Trafficking – to introduce or match for money, profit, or material, economic or
other consideration, any Filipino woman to a foreign national; to offer women for marriage
for the purpose of engaging in prostitution, pornography, sexual exploitation, etc.
Ø Rules on marriage between rapist and victim:
1. A subsequent valid marriage between the rapist and the victim extinguishes the
criminal action or the penalty imposed for rape.
2. If the rapist is the legal husband, the subsequent forgiveness by the wife shall
extinguish the criminal action or the penalty, provided that the crime shall not be
extinguish or the penalty shall not be abated if the marriage is void ab initio.
Ø International Law instruments containing provisions on marriage:
1. Universal Declaration of Human Rights (UDHR) – art. 16 thereof states that men
and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and “to found a family.”
2. International Covenant on Economic, Social and Cultural Rights (ICESCR)
3. International Covenant on Civil and Political Rights (ICCPR)
12
Ø The 1987 Constitution provides that “the State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic social institution. (Sec. 12, Article II)
Ø Once married, a couple has a right to privacy which his protected against all undue and
unwarranted government intrustion.
o While a lawful marriage seeks to create a permanent union between man and
woman, it does not shed the spouses’ integrity or their privacy as individuals.
(Zulueta v. CA, 1996)
Ø Marriage and the family remains in the province of the legislature to define all legal aspects
of marriage and prescribe the strategy and the modalities to protect it and put into operation
the constitutional provisions that protect the same.
o The State is not only concerned with the validity of marriage per se, but also with
the sustainability and maintenance of a harmonious and healthy family life.
Ø Marriage settlements – fix the property relations between husband and wife.
o Executed prior to the marriage ceremony.
o Must not contravene the mandatory provisions of the Constitution and the Family
Code.
o May be modified through writing, signed by the parties and executed before the
celebration of the marriage.
§ Any modification after the marriage must be approved by the courts.
Ø The validity of a marriage is determined by the law effective at the time of the celebration
of the marriage.
o The marriage already celebrated cannot be changed by a subsequent amendment
to the law.
Ø General Rule: The Family Code applies retroactively insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code and other laws.
o Exception: Void marriages can never be ratified, even by a subsequent
amendment/law.
ART. 2. N O MARRIAGE SHALL BE VALID, UNLESS THESE ESSENTIAL REQUISITES ARE PRESENT:
(1) LEGAL CAPACITY OF THE CONTRACTING PARTIES WHO MUST BE A MALE AND A FEMALE;
AND
(2) CONSENT FREELY GIVEN IN THE PRESENCE OF THE SOLEMNIZING OFFICER.
Ø Essential requisites of marriage:
1. Legal capacity of the contracting parties who must be a male and a female.
§ Legal capacity
• The marrying age (age of majority/age of emancipation) is
18 years old and above.
• The contracting parties must not be related to each other in
the manner provided for in Art. 37 (incestuous marriages)
and Art. 38 (void marriages for reason of public policy).
• Pursuant to Art. 39, a person already married cannot marry
again unless his or her previous marriage has been nullified
or annulled or his or her case falls under the “valid bigamous
marriage” provided for in Art. 41.
§ Male and female
• The sex determined by visually looking at the genitals of a
baby at the time of birth is immutable and that there is no
YAP, K. | ATENEO LAW

law legally recognizing gender sex re-assignment. (Silverio
v. Republic, 2007)
• Where the respondent was found out to have Congenital
Adrenal Hyperplasia (CAH) where the person afflicted has
both male and female characteristics and organs and where
the respondent, though genetically female, secreted male
hormones and not female hormones, had no breast, and did
not have a menstrual period. The SC considered the person
as an “intersex individual” and granted the preference of the
person to be considered a male person. (Republic v.
Cagandahan, 2008)
• The difference is that in Silverio, the sex change was
voluntarily undergone by the petitioner, while in
Cagandahan, the sex change was brought about
involuntarily by CAH.
2. Consent freely given in the presence of the solemnizing officer.
§ Requisites:
1. Freely given.
o Free consent – willingly and deliberately entered
into the marriage – intelligently understands the
nature and consequences of the act.
o The total absence of consent makes the marriage
void ab initio.
o Consent obtained through fraud, force,
intimidation, or undue influence makes such
marriage merely annullable or voidable (valid
until annulled).
2. Made in the presence of the solemnizing officer.
o This requirement prohibits proxy-marriages in the
Philippines.
ART. 3. THE FORMAL REQUISITES OF MARRIAGE ARE :
(1) AUTHORITY OF THE SOLEMNIZING OFFICER;
(2) A VALID MARRIAGE LICENSE EXCEPT IN THE CASES PROVIDED FOR IN CHAPTER 2 OF THIS
TITLE; AND
(3) A MARRIAGE CEREMONY WHICH TAKES PLACE WITH THE APPEARANCE OF THE
CONTRACTING PARTIES BEFORE THE SOLEMNIZING OFFICER AND THEIR PERSONAL
DECLARATION THAT THEY TAKE EACH OTHER AS HUSBAND AND WIFE IN THE PRESENCE OF
NOT LESS THAN TWO WITNESSES OF LEGAL AGE.
Ø Formal requisites of marriage:
1. Authority of the solemnizing officer.
§ It is not the presence or absence of the solemnizing officer which
constitutes the formal requirement but it is the absence or presence of
the authority of such solemnizing officer.
§ Persons authorized found in:
1. Art. 7 of the Family Code.
2. Chapter 3, Art. 1 of the Local Government Code authorizes
the mayor of a city or municipality.
13
§ The authority of the officer or clergyman shown to have performed a
marriage ceremony will be presumed in the absence of any showing to
the contrary. (Goshen v. Stonington, 1822)
§ The solemnizing officer is not duty-bound to investigate whether a
marriage license has been duly and regularly issued by the LCR, but
only to know that the license has been issued by the competent official.
(People v. Janssen, 1929)
§ Criminal and civil liability attaches to any person who, not being
authorized to solemnize marriage, shall publicly advertise himself, by
means of signs or placards placed on his residence or office or through
the newspapers, as authorized to solemnize marriage.
2. Valid marriage license except in cases provided for in Chapter 2 of this Title.
§ Issued by the LCR of the place where the marriage application was
filed.
§ Has a lifespan of 120 days from the date of issue (date of signing of
the marriage license by the LCR) and is effective in any part of the
Philippines.
• Deemed automatically cancelled at the expiration of the 120-
day period if the contracting parties have not made use of it.
• Not effective abroad.
3. Marriage ceremony with the presence of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than 2 witnesses of legal age.
§ Where a marriage ceremony is shown, every presumption will be
indulged that it was legally performed. (Gaines v. New Orleans, 1867)
§ The declaration of consent need not be vocally expressed. It can be
shown by other manifestations or signs of approval and consent.
• The failure of the solemnizing officer to ask the parties
whether they take each other as husband and wife cannot be
regarded as a fatal omission, and is not cause for annulment,
it being sufficient that they declared in and signed the
marriage contract that they were taking each other as
husband and wife. (Infante v. Arenas, 1957)
• Failure to sign a marriage certificate or absence of such itself
does not render the marriage void or annullable. (Madridejo
v. De Leon, 1930)
§ Absence of at least 2 witnesses of legal age does not invalidate the
marriage – it can be validly explained that while there were no
witnesses of legal age or there was only one witness of legal age or
there were witnesses but not of legal age, there was still a marriage
ceremony that was performed where the principal contracting parties
and the solemnizing officer were present but only that it was deficient
by the absence of the required witnesses of legal age.
• Besides, in marriage, it is the agreement itself of the
principal contracting parties in the presence of the
representative of the state (solemnizing officer), which
constitutes the contract.
§ Common-law marriage (marriage-in-fact) – a non-ceremonial or
informal marriage by agreement, entered into by a man and a woman
having capacity to marry, ordinarily without compliance with such
statutory formalities as those pertaining to marriage licenses.
YAP, K. | ATENEO LAW
• Must be coupled by consummation, which includes:
1. Cohabitation as husband and wife; and
2. Reputation in such a way that the public will
recognize the marital status.
• Common-law marriages are not recognized in the
Philippines because the Civil Code and the Family Code
expressly and mandatorily provide that the intervention in a
valid marriage ceremony of an ecclesiastical or civil
functionary authorized by the state to solemnize marriage
constitutes one of the indispensable requisites for a valid
marriage in the Philippines.
consent was not lacking between the parties. Their consent was also conscious and
intelligent as they understood the nature and the beneficial and inconvenient consequences
of their marriage. (Republic v. Albios, 2013)
Ø Marriage by proxy solemnized in the Philippines is likewise void because of the absence
of the essential requisite that consent freely given must be made in the presence of the
solemnizing officer and the absence of the formal requisite that the contracting parties must
personally declare before the solemnizing officer that they take each other as husband and
wife.
ART. 5. A NY MALE OR FEMALE OF THE AGE OF EIGHTEEN YEARS OR UPWARDS NOT UNDER
ANY OF THE IMPEDIMENTS MENTIONED IN ARTICLES 37 AND 38, MAY CONTRACT MARRIAGE.

Fig. 1.
Requisites of a Valid Marriage
Essential (Art. 2) Formal (Art. 3)
1. Legal capacity given by the parties 1. Authority of the solemnizing officer
who must be male and female. 2. Valid marriage license, except in cases
2. Consent freely given and made in the provided for in Chapter 2 of this Title
presence of a solemnizing officer. 3. Marriage ceremony which takes place
with the appearance of the contracting
parties before the solemnizing officer
and their personal declaration that they
take each other as husband and wife in
the presence of not less than 2
witnesses of legal age.
ART. 4. THE ABSENCE OF ANY OF THE ESSENTIAL OR FORMAL REQUISITES SHALL RENDER THE
MARRIAGE VOID AB INITIO, EXCEPT AS STATED IN ARTICLE 35 (2).
Ø Mere breach of promise to marry is not an actionable wrong. (Hermosisima v. CA, 1960)
o However, in Wassmer, the petitioner was granted actual damages arising from
the preparations made for the marriage ceremony. (Wassmer v. Velez, 1965)
ART. 6. N O 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 A MARRIAGE IN ARTICULO MORTIS, WHEN THE PARTY AT THE POINT OF DEATH IS
UNABLE TO SIGN THE MARRIAGE CERTIFICATE, IT SHALL BE SUFFICIENT FOR ONE OF THE
WITNESSES TO THE MARRIAGE TO WRITE THE NAME OF SAID PARTY, WHICH FACT SHALL BE
ATTESTED BY THE SOLEMNIZING OFFICER.

A DEFECT IN ANY OF THE ESSENTIAL REQUISITES SHALL NOT AFFECT THE VALIDITY OF THE Ø The Family Code only recognizes ceremonial marriages – those which are solemnized by
MARRIAGE BUT THE PARTY OR PARTIES RESPONSIBLE FOR THE IRREGULARITY SHALL BE persons duly authorized by the state.
CIVILLY, CRIMINALLY AND ADMINISTRATIVELY LIABLE. Ø The Family Code does not generally prescribe any particular form of a marriage ceremony.
o The minimum requirements imposed by law are:
1. Contracting parties appear personally before the solemnizing officer;
Ø Rules on absence, defect, and irregularity: 2. Declare that they take each other as husband and wife in the presence
1. Absence of any of the essential or formal requirements of a marriage renders of at least 2 witnesses of legal age.
such marriage null and void. § The exchange of vows can be presumed to have been made
2. Defects in the essential requirements of marriage make the marriage merely from the testimonies of the witnesses who state that a
annullable or voidable. wedding took place. (Balogbog v. CA, 1997)
3. Irregularities in the formal requisites do not affect the validity of the marriage.
§ Except when the contracting parties 18 years or over but below 21 did
not obtain the consent of their parents a s provided for in Art. 14.
Ø Marriage by way of a jest (joke or amusement) is void because there is absolutely no
genuine consent on the part of both contracting parties.
o Mere words, without any intention corresponding to them, will not make a
marriage or any other civil contract xxx It must be clearly shown that both parties
intended and understood that they were not to have effect. (McClurg v. Terry,
1870)
Ø Where the parties entered into a marriage for one party to acquire American citizenship,
and for the other to receive $2,000.00, the SC ruled that the marriage was valid because

14 YAP, K. | ATENEO LAW


ART. 7. MARRIAGE MAY BE SOLEMNIZED BY: 3. Chaplain is assigned to such unit;
4. Chaplain is absent at the time of marriage;
(1) ANY INCUMBENT MEMBER OF THE JUDICIARY WITHIN THE COURT'S JURISDICTION; 5. Members of the armed forces or civilians, and within
(2) ANY PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT DULY the zone of military operation; and
AUTHORIZED BY HIS CHURCH OR RELIGIOUS SECT AND REGISTERED WITH THE CIVIL § Even if they do not belong to the unit.
REGISTRAR GENERAL, ACTING WITHIN THE LIMITS OF THE WRITTEN AUTHORITY GRANTED BY § Within the zone of military operation – implies
HIS CHURCH OR RELIGIOUS SECT AND PROVIDED THAT AT LEAST ONE OF THE CONTRACTING a widespread military activity over an area and
PARTIES BELONGS TO THE SOLEMNIZING OFFICER'S CHURCH OR RELIGIOUS SECT; does not refer to a simulated exercise because it
(3) ANY SHIP CAPTAIN OR AIRPLANE CHIEF ONLY IN THE CASE MENTIONED IN ARTICLE 31; requires absence of civilian authorities.
(4) ANY MILITARY COMMANDER OF A UNIT TO WHICH A CHAPLAIN IS ASSIGNED, IN THE 6. In articulo mortis.
ABSENCE OF THE LATTER, DURING A MILITARY OPERATION, LIKEWISE ONLY IN THE CASES 5. Any consul-general, • Art. 10. Marriages between Filipino citizens abroad
MENTIONED IN ARTICLE 32; consul or vice-consul in may be solemnized by a consul-general, consul or
(5) ANY CONSUL -GENERAL, CONSUL OR VICE -CONSUL IN THE CASE PROVIDED IN ARTICLE 10. the case provided in Art. vice-consul of the republic of the Philippines. The
10. issuance of the marriage license and the duties of the
local civil registrar and of the solemnizing officer with
Ø There is a need to limit the persons who could solemnize marriage because marriage regard to the celebration of marriage shall be
contracts have always been considered as involving questions of public policy and the performed by said consular official.
interests of other than those of the contracting parties, and should therefore be construed in • Classes of heads of consular posts:
accordance with such policy. 1. Consul-general;
Ø The state being an interested party, its consent is essential to every marriage. (Eaton v. 2. Consul;
Eaton, 1990) 3. Vice-consul; and
4. Consul agents.
Fig. 2. § Only consul agents are not authorized
Persons Authorized to Solemnize Marriages by the Family Code to solemnize
Art. 7 of the Family Code Requisites / Rules marriage.
1. Any incumbent member 1. Within their court’s jurisdiction; and • General Rule: Both parties must be Filipino citizens
of the judiciary within 2. Incumbent and not retired. because the very authority of consuls to solemnize
the court’s jurisdiction. marriage is limited to Filipino citizens, as gleaned
2. Any priest, rabbi, 1. Duly authorized by his church or religious sect; from Art. 7 and Art. 10 which provides that they must
imam, or minister of 2. Registered with the civil registrar general; be consuls of the Republic of the Philippines.
any church or religious 3. Acting within the limits of the written authority granted § Exception: When the marriage between the
sect. him by his church or religious sect; and foreigner and the Filipino citizen abroad
4. At least one of the contracting parties belongs to the solemnized by a Philippine consul assigned in
solemnizing officer’s church or religious sect. that country is recognized as valid in the host
3. Any ship captain or 1. Between passengers or crew members; country, pursuant to Art. 26 of the Family
airplane chief only in 2. Ship must be at sea or the plane in flight; and Code.
cases mentioned in Art. § An assistant pilot has no authority to solemnize § Art. 26. All marriages solemnized outside the
31. a marriage. Philippines, in accordance with the laws in
§ May be solemnized during stopovers at ports of force in the country where they were
call – as long as the voyage is not yet solemnized, and valid there as such, shall also
terminated. be valid in this country xxx.
3. In articulo mortis. • They also perform the duties of an LCR, such as the
issuance of a marriage license.
4. Any military 1. Military commander of a unit; • “Abroad” – limits their jurisdiction. Hence, they are not
commander of a unit. § Unit – a battalion under the present table of authorized to solemnize marriages within the territory
organization and not to a mere company. of the Philippines.
2. Must be a commissioned officer;
§ An officer of a country's armed services whose
rank is confirmed by a government document
(called a commission).
§ Second lieutenant, ensign or above.

15 YAP, K. | ATENEO LAW


Local Government Code Requisites / Rules
1. Mayor of a city or
municipality
2. Vice mayor § When the mayor is temporarily incapacitated to
perform his duties for physical or legal reasons.
§ Whether temporarily or in the capacity of an Acting
mayor.
3. Highest ranking § When the mayor is temporarily incapacitated to
sangguniang bayan perform his duties for physical or legal reasons.
member
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 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.
Ø This article is directory in nature, its non-observance will not invalidate the marriage.
Ø The person/s who cause the violation can be subjected to civil, criminal, or administrative
liability.
ART. 9. A MARRIAGE LICENSE SHALL BE ISSUED BY THE LOCAL CIVIL REGISTRAR OF THE CITY
OR MUNICIPALITY WHERE EITHER CONTRACTING PARTY HABITUALLY RESIDES, EXCEPT IN
MARRIAGES WHERE NO LICENSE IS REQUIRED IN ACCORDANCE WITH C HAPTER 2 OF THIS
TITLE.
Ø The contracting parties should get a marriage license from the LCR of the city or
municipality where either of them resides.
o If they obtain a marriage license in a place other than the place where either of
them resides, it is merely an irregularity which will not render null and void the
marriage celebrated on the basis of such license. (People v. Janssen, 1929)
Ø The Responsible Parenthood and Reproductive Health Act of 2012 (R.A. 10354) has added
a requirement that applicants must present a Certificate of Compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate
instructions and information on responsible parenthood, family planning, breastfeeding and
infant nutrition.
ART. 10. MARRIAGES BETWEEN FILIPINO CITIZENS ABROAD MAY BE SOLEMNIZED BY A
CONSUL-GENERAL , 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 SAID CONSULAR OFFICIAL.
Ø The contracting parties must both be Filipino citizens.
Ø The marriage ceremony shall be in accordance with the laws of the Philippines pursuant to
Art. 17.
16
o Art. 17. xxx When the acts referred to are executed before the diplomatic or
consular officials of the republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their execution.
xxx
ART. 11. WHERE A MARRIAGE LICENSE IS REQUIRED, EACH OF THE CONTRACTING PARTIES
SHALL FILE SEPARATELY A SWORN APPLICATION FOR SUCH LICENSE WITH THE PROPER LOCAL
CIVIL REGISTRAR WHICH SHALL SPECIFY THE FOLLOWING:
(1) FULL NAME OF THE CONTRACTING PARTY;
(2) PLACE OF BIRTH;
(3) AGE AND DATE OF BIRTH;
(4) CIVIL STATUS;
(5) IF PREVIOUSLY MARRIED, HOW, WHEN AND WHERE THE PREVIOUS MARRIAGE WAS
DISSOLVED OR ANNULLED;
(6) PRESENT RESIDENCE AND CITIZENSHIP;
(7) DEGREE OF RELATIONSHIP OF THE CONTRACTING PARTIES;
(8) FULL NAME, RESIDENCE AND CITIZENSHIP OF THE FATHER;
(9) FULL NAME, RESIDENCE AND CITIZENSHIP OF THE MOTHER; AND
(10) FULL NAME, RESIDENCE AND CITIZENSHIP OF THE GUARDIAN OR PERSON HAVING
CHARGE, IN CASE THE CONTRACTING PARTY HAS NEITHER FATHER NOR MOTHER AND IS
UNDER THE AGE OF TWENTY-ONE YEARS.
THE APPLICANTS, THEIR PARENTS OR GUARDIANS SHALL NOT BE REQUIRED TO EXHIBIT THEIR
RESIDENCE CERTIFICATES IN ANY FORMALITY IN CONNECTION WITH THE SECURING OF THE
MARRIAGE LICENSE.
Ø Some of the purposes of documentary requirements:
1. Concern of the state to make marriages the secure and stable institution they
should be;
2. Serve as proofs for their existence;
3. Discourage deception and seduction;
4. Prevent illicit intercourse under the guise of matrimony;
5. Relieve from doubt the status of parties who live together as man and wife; and
6. Evidence of the status and legitimacy of the offspring of the marriage.
Ø A marriage application can be obtained by anybody.
o Once it is signed and sworn to by the parties and thereafter filed, the LCR has no
choice but to accept the application and process the same up to the time of the
issuance of the marriage license.
o If the LCR has knowledge of some legal impediment, he or she cannot
discontinue processing the application. He must only note down the legal
impediments in the application and thereafter issue the marriage license, unless
otherwise stopped by the court. (Art. 18)
YAP, K. | ATENEO LAW

ART. 12. THE LOCAL CIVIL REGISTRAR, UPON RECEIVING SUCH APPLICATION, SHALL REQUIRE
THE PRESENTATION OF THE ORIGINAL BIRTH CERTIFICATES OR, IN DEFAULT THEREOF, THE
BAPTISMAL CERTIFICATES OF THE CONTRACTING PARTIES OR COPIES OF SUCH DOCUMENTS
DULY ATTESTED BY THE PERSONS HAVING CUSTODY OF THE ORIGINALS. THESE CERTIFICATES
OR CERTIFIED COPIES OF THE DOCUMENTS BY THIS A RTICLE NEED NOT BE SWORN TO AND
SHALL BE EXEMPT FROM THE DOCUMENTARY STAMP TAX . THE SIGNATURE AND OFFICIAL
TITLE OF THE PERSON ISSUING THE CERTIFICATE SHALL BE SUFFICIENT PROOF OF ITS
AUTHENTICITY.
IF EITHER OF THE CONTRACTING PARTIES IS UNABLE TO PRODUCE HIS BIRTH OR BAPTISMAL
CERTIFICATE OR A CERTIFIED COPY OF EITHER BECAUSE OF THE DESTRUCTION OR LOSS OF THE
ORIGINAL OR IF IT IS SHOWN BY AN AFFIDAVIT OF SUCH PARTY OR OF ANY OTHER PERSON
THAT SUCH BIRTH OR BAPTISMAL CERTIFICATE HAS NOT YET BEEN RECEIVED THOUGH THE
SAME HAS BEEN REQUIRED OF THE PERSON HAVING CUSTODY THEREOF AT LEAST FIFTEEN
DAYS PRIOR TO THE DATE OF THE APPLICATION, SUCH PARTY MAY FURNISH IN LIEU THEREOF
HIS CURRENT RESIDENCE CERTIFICATE OR AN INSTRUMENT DRAWN UP AND SWORN TO BEFORE
THE LOCAL CIVIL REGISTRAR CONCERNED OR ANY PUBLIC OFFICIAL AUTHORIZED TO
ADMINISTER OATHS. SUCH INSTRUMENT SHALL CONTAIN THE SWORN DECLARATION OF TWO
WITNESSES OF LAWFUL AGE, SETTING FORTH THE FULL NAME, RESIDENCE AND CITIZENSHIP OF
SUCH CONTRACTING PARTY AND OF HIS OR HER PARENTS, IF KNOWN , AND THE PLACE AND
DATE OF BIRTH OF SUCH PARTY. THE NEAREST OF KIN OF THE CONTRACTING PARTIES SHALL
BE PREFERRED AS WITNESSES, OR, IN THEIR DEFAULT, PERSONS OF GOOD REPUTATION IN THE
PROVINCE OR THE LOCALITY.
THE PRESENTATION OF BIRTH OR BAPTISMAL CERTIFICATE SHALL NOT BE REQUIRED IF THE
PARENTS OF THE CONTRACTING PARTIES APPEAR PERSONALLY BEFORE THE LOCAL CIVIL
REGISTRAR CONCERNED AND SWEAR TO THE CORRECTNESS OF THE LAWFUL AGE OF SAID
PARTIES, AS STATED IN THE APPLICATION, OR WHEN THE LOCAL CIVIL REGISTRAR SHALL, BY
MERELY LOOKING AT THE APPLICANTS UPON THEIR PERSONALLY APPEARING BEFORE HIM, BE
CONVINCED THAT EITHER OR BOTH OF THEM HAVE THE REQUIRED AGE.
Ø Rules to remember:
o If the original birth certificate is not available, the baptismal certificates of the
contracting parties, or copies of such documents.
§ Must be duly attested by the persons having custody of the originals.
§ Need not be sworn to and shall be exempt from the documentary stamp
tax.
§ The signature and official title of the person issuing the certificate shall
be sufficient proof of its authenticity.
o If birth or baptismal certificate or certified copies thereof cannot be produced
either because of destruction or loss, or it is shown by an affidavit that such has
not yet been received though the same has been required of the person having
custody thereof at least 15 days prior to the date of application, the current
residence certificate or an instrument drawn up and sworn to before the
LCR concerned or any public official authorized to administer oaths.
§ Must contain the sworn declaration of 2 witnesses of lawful age, setting
forth the full name, residence and citizenship of such contracting party
and of his or her parents, if known, and the place and date of birth of
such party.
§ The nearest of kin shall be preferred as witnesses, or in their default,
persons of good reputation in the province or the locality.
17
o The presentation of birth or baptismal certificates shall not be required if the:
1. Parents of the contracting parties appear personally before the LCR
concerned and swear to the correctness of the lawful age of said parties,
as stated in the application; or
2. LCR, by merely looking at the applicants upon their personal
appearance before him, be convinced that either or both of them have
the required age.
ART. 13. IN CASE EITHER OF THE CONTRACTING PARTIES HAS BEEN PREVIOUSLY MARRIED,
THE APPLICANT SHALL BE REQUIRED TO FURNISH , INSTEAD OF THE BIRTH OR BAPTISMAL
CERTIFICATE REQUIRED IN THE LAST PRECEDING ARTICLE, THE DEATH CERTIFICATE OF THE
DECEASED SPOUSE OR THE JUDICIAL DECREE OF THE ABSOLUTE DIVORCE, OR THE JUDICIAL
DECREE OF ANNULMENT OR DECLARATION OF NULLITY OF HIS OR HER PREVIOUS MARRIAGE.
IN CASE THE DEATH CERTIFICATE CANNOT BE SECURED, THE PARTY SHALL MAKE AN
AFFIDAVIT SETTING FORTH THIS CIRCUMSTANCE AND HIS OR HER ACTUAL CIVIL STATUS AND
THE NAME AND DATE OF DEATH OF THE DECEASED SPOUSE.
Ø Rules to remember:
o If either applicant was previously married, he/she must present either the:
1. Death certificate of the deceased spouse;
2. Judicial decree of absolute divorce;
3. Judicial decree of annulment; or
4. Judicial declaration of nullity (JDN) of the previous marriage.
o If the death certificate cannot be secured, the party shall make an affidavit
stating:
1. Circumstance of death;
2. His/her actual civil status; and
3. Name and date of death of the deceased spouse.
ART. 14. IN CASE EITHER OR BOTH OF THE CONTRACTING PARTIES, NOT HAVING BEEN
EMANCIPATED BY A PREVIOUS MARRIAGE, ARE BETWEEN THE AGES OF EIGHTEEN AND
TWENTY-ONE, THEY SHALL, IN ADDITION TO THE REQUIREMENTS OF THE PRECEDING
ARTICLES, EXHIBIT TO THE LOCAL CIVIL REGISTRAR, THE CONSENT TO THEIR MARRIAGE OF
THEIR FATHER, MOTHER, SURVIVING PARENT OR GUARDIAN, OR PERSONS HAVING LEGAL
CHARGE OF THEM, IN THE ORDER MENTIONED. SUCH CONSENT SHALL BE MANIFESTED IN
WRITING BY THE INTERESTED PARTY, WHO PERSONALLY APPEARS BEFORE THE PROPER LOCAL
CIVIL REGISTRAR, OR IN THE FORM OF AN AFFIDAVIT MADE IN THE PRESENCE OF TWO
WITNESSES AND ATTESTED BEFORE ANY OFFICIAL AUTHORIZED BY LAW TO ADMINISTER
OATHS. THE PERSONAL MANIFESTATION SHALL BE RECORDED IN BOTH APPLICATIONS FOR
MARRIAGE LICENSE, AND THE AFFIDAVIT, IF ONE IS EXECUTED INSTEAD, SHALL BE ATTACHED
TO SAID APPLICATIONS.
Ø There is no more emancipation by marriage under the Family Code.
o Emancipation is attained if the child reaches the age of 18 years old. (Art. 234,
R.A. 6809 – An Act Lowering the Age of Majority from Twenty-One To
Eighteen Years)
YAP, K. | ATENEO LAW

Ø Rules to remember:
o If between 18-21 years old, consent to their marriage of, in this particular order,
their:
1. Father;
2. Mother;
3. Surviving parent or guardian; or
4. Persons having legal charge of them.
o Such consent shall be:
1. Manifested in writing by the interested party, who personally appears
before the proper LCR; or
2. Affidavit made in the presence of 2 witnesses and attested before any
official authorized by law to administer oaths.
o The personal manifestation shall be recorded in both applications for marriage
license, and the affidavit, if one is executed instead, shall be attached to said
applications.
Ø Non-compliance with this requirement makes the marriage merely annullable. It is
considered as one of the formal statutory requirements for marriage because it affects the
marriage license.
o The consent is required simply because the contracting parties may not be
licensed to marry upon their own consent alone, but that the consent of their
parents must be added thereto; lack of such consent, however, does not affect the
validity of the marriage, but only subjects those who have neglected to acquire it
to the penalties of the law. (Cushman v. Cushman, 1914)
ART. 15. ANY CONTRACTING PARTY BETWEEN THE AGE OF TWENTY-ONE AND TWENTY-FIVE
SHALL BE OBLIGED TO ASK THEIR PARENTS OR GUARDIAN FOR ADVICE UPON THE INTENDED
MARRIAGE. IF THEY DO NOT OBTAIN SUCH ADVICE, OR IF IT BE UNFAVORABLE, THE MARRIAGE
LICENSE SHALL NOT BE ISSUED TILL AFTER THREE MONTHS FOLLOWING THE COMPLETION OF
THE PUBLICATION OF THE APPLICATION THEREFOR. A SWORN STATEMENT BY THE
CONTRACTING PARTIES TO THE EFFECT THAT SUCH ADVICE HAS BEEN SOUGHT, TOGETHER
WITH THE WRITTEN ADVICE GIVEN, IF ANY, SHALL BE ATTACHED TO THE APPLICATION FOR
MARRIAGE LICENSE. SHOULD THE PARENTS OR GUARDIAN REFUSE TO GIVE ANY ADVICE, THIS
FACT SHALL BE STATED IN THE SWORN STATEMENT.
ART. 16. IN THE CASES WHERE PARENTAL CONSENT OR PARENTAL ADVICE IS NEEDED, THE
PARTY OR PARTIES CONCERNED SHALL, IN ADDITION TO THE REQUIREMENTS OF THE
PRECEDING ARTICLES , ATTACH A CERTIFICATE ISSUED BY A PRIEST, IMAM OR MINISTER
AUTHORIZED TO SOLEMNIZE MARRIAGE UNDER ARTICLE 7 OF THIS CODE OR A MARRIAGE
COUNSELOR DULY ACCREDITED BY THE PROPER GOVERNMENT AGENCY TO THE EFFECT THAT
THE CONTRACTING PARTIES HAVE UNDERGONE MARRIAGE COUNSELING. FAILURE TO ATTACH
SAID CERTIFICATES OF MARRIAGE COUNSELING SHALL SUSPEND THE ISSUANCE OF THE
MARRIAGE LICENSE FOR A PERIOD OF THREE MONTHS FROM THE COMPLETION OF THE
PUBLICATION OF THE APPLICATION. ISSUANCE OF THE MARRIAGE LICENSE WITHIN THE
PROHIBITED PERIOD SHALL SUBJECT THE ISSUING OFFICER TO ADMINISTRATIVE SANCTIONS
BUT SHALL NOT AFFECT THE VALIDITY OF THE MARRIAGE.
SHOULD ONLY ONE OF THE CONTRACTING PARTIES NEED PARENTAL CONSENT OR PARENTAL
ADVICE, THE OTHER PARTY MUST BE PRESENT AT THE COUNSELING REFERRED TO IN THE
PRECEDING PARAGRAPH.
18
Ø Rules to remember:
o If between 21-25 years old, parental advice must be sought.
§ If parental advice is not obtained, or the advice is unfavorable:
• The marriage license shall not be issued until after 3 months
following the completion of the publication of the
application therefor.
o A sworn statement by the contracting parties that such advice has been sought,
together with the written advice given, shall be attached to the application.
§ Should the parents refuse to give any advice, this shall be stated in the
sworn statement.
o Together with the parental advice, the parties must attach a certificate issued by
the solemnizing officer or a duly accredited marriage counselor, evidencing that
the parties had undergone marriage counseling.
§ Failure to attach said certificates shall suspend the issuance of the
marriage license for a period of 3 months from the completion of the
publication of the application.
Ø Parental advice is neither an essential nor formal requisite, but a vehicle to induce further
and more mature deliberation over the decision to get married.
Ø If the marriage license is issued within the 3-month period, the said marriage is completely
valid, it is not even annullable.
ART. 17. THE LOCAL CIVIL REGISTRAR SHALL PREPARE A NOTICE WHICH SHALL CONTAIN THE
FULL NAMES AND RESIDENCES OF THE APPLICANTS FOR A MARRIAGE LICENSE AND OTHER
DATA GIVEN IN THE APPLICATIONS. THE NOTICE SHALL BE POSTED FOR TEN CONSECUTIVE
DAYS ON A BULLETIN BOARD OUTSIDE THE OFFICE OF THE LOCAL CIVIL REGISTRAR LOCATED
IN A CONSPICUOUS PLACE WITHIN THE BUILDING AND ACCESSIBLE TO THE GENERAL PUBLIC.
THIS NOTICE SHALL REQUEST ALL PERSONS HAVING KNOWLEDGE OF ANY IMPEDIMENT TO THE
MARRIAGE TO ADVISE THE LOCAL CIVIL REGISTRAR THEREOF . THE MARRIAGE LICENSE SHALL
BE ISSUED AFTER THE COMPLETION OF THE PERIOD OF PUBLICATION.
Ø It is the duty of the LCR to post a notice to inform everybody of the impending marriage.
o This notice shall be posted:
1. For 10 consecutive days;
2. On a bulletin board outside the office of the LCR;
3. Located in a conspicuous (easy to see or notice) place within the
building; and
4. Accessible to the general public.
o The notice shall request all persons having knowledge of any impediment to the
marriage to advise the LCR thereof.
ART. 18. IN CASE OF ANY IMPEDIMENT KNOWN TO THE LOCAL CIVIL REGISTRAR OR BROUGHT
TO HIS ATTENTION, HE SHALL NOTE DOWN THE PARTICULARS THEREOF AND HIS FINDINGS
THEREON IN THE APPLICATION FOR MARRIAGE LICENSE, BUT SHALL NONETHELESS ISSUE SAID
LICENSE AFTER THE COMPLETION OF THE PERIOD OF PUBLICATION, UNLESS ORDERED
OTHERWISE BY A COMPETENT COURT AT HIS OWN INSTANCE OR THAT OF ANY INTEREST
PARTY. NO FILING FEE SHALL BE CHARGED FOR THE PETITION NOR A CORRESPONDING BOND
REQUIRED FOR THE ISSUANCES OF THE ORDER.
YAP, K. | ATENEO LAW

ART. 19. THE LOCAL CIVIL REGISTRAR SHALL REQUIRE THE PAYMENT OF THE FEES
PRESCRIBED BY LAW OR REGULATIONS BEFORE THE ISSUANCE OF THE MARRIAGE LICENSE. N O
OTHER SUM SHALL BE COLLECTED IN THE NATURE OF A FEE OR TAX OF ANY KIND FOR THE
ISSUANCE OF SAID LICENSE. IT SHALL, HOWEVER, BE ISSUED FREE OF CHARGE TO INDIGENT
PARTIES, THAT IS THOSE WHO HAVE NO VISIBLE MEANS OF INCOME OR WHOSE INCOME IS
INSUFFICIENT FOR THEIR SUBSISTENCE A FACT ESTABLISHED BY THEIR AFFIDAVIT, OR BY
THEIR OATH BEFORE THE LOCAL CIVIL REGISTRAR.
Ø In case of any impediment known to the LCR or brought to his attention, he shall merely
note down the particulars thereof and his finding thereon in the application for a marriage
license.
o He is still duty bound to issue said license after payment of the necessary fess,
unless exempted due to indigence, after the completion of the period of
publication, or after a period of 3 months from the completion of such publication
when either parental advice or marriage counseling was not obtained.
Ø The purpose of this article is to eliminate any opportunity for extortion (gross overcharge).
Ø Only court intervention directing the non-issuance of the marriage license can empower
the LCR to validly refuse to issue said license.
o Such court action may be brought about by the:
1. LCR himself; or
2. Any interested party – contracting parties’ parents, siblings, existing
spouse, or those which may be prejudiced by the marriage.
o No filing fee shall be charged for the petition nor a corresponding bond required
for the issuance of the order.
o If despite such injunction, the LCR still issues a marriage license and a marriage
is solemnized, the validity of the marriage shall not be affected by the violation
of the injunction.
§ The party or parties responsible for the irregularity shall be civilly,
criminally and administratively liable.
• Influencing parties in religious aspects – directly or
indirectly attempts to influence any contracting party to
marry or refrain – imprisonment for not more than 1 month
and fined not more than Php200.
• Illegal issuance or refusal of license – malicious refusal or
failure to issue within 24 hours after proper time of issuance
– imprisonment for 1 month to 2 years or fined Php200 to
Php2,000.
ART. 20. THE LICENSE SHALL BE VALID IN ANY PART OF THE PHILIPPINES FOR A PERIOD OF
ONE HUNDRED TWENTY DAYS FROM THE DATE OF ISSUE, AND SHALL BE DEEMED
AUTOMATICALLY CANCELED AT THE EXPIRATION OF THE SAID PERIOD IF THE CONTRACTING
PARTIES HAVE NOT MADE USE OF IT. THE EXPIRY DATE SHALL BE STAMPED IN BOLD
CHARACTERS ON THE FACE OF EVERY LICENSE ISSUED.
Ø The marriage license is valid only within the Philippines and not abroad.
Ø It has a lifespan of 120 days from the date of issue (signing by the LCR).
o From the date of issue, it should be claimed by the parties. Otherwise, it shall
automatically become ineffective after the lapse of the 120-day period.
19
ART. 21. WHEN EITHER OR BOTH OF THE CONTRACTING PARTIES ARE CITIZENS OF A FOREIGN
COUNTRY, IT SHALL BE NECESSARY FOR THEM BEFORE A MARRIAGE LICENSE CAN BE
OBTAINED, TO SUBMIT A CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE, ISSUED
BY THEIR RESPECTIVE DIPLOMATIC OR CONSULAR OFFICIALS.
STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES SHALL, IN LIEU OF THE
CERTIFICATE OF LEGAL CAPACITY HEREIN REQUIRED, SUBMIT AN AFFIDAVIT STATING THE
CIRCUMSTANCES SHOWING SUCH CAPACITY TO CONTRACT MARRIAGE.
Ø Rules to remember:
o If both contracting parties are foreigners and they intend to have their marriage
solemnized in the Philippines, they have to secure a marriage license in the
Philippines.
§ A certificate of legal capacity – issued by their respective diplomatic
or consular officials – is a necessary requisite as to foreigners because
the Philippines, insofar as marriage is concerned, adheres to the
national law of the contracting parties with respect to their legal
capacity to contract marriage.
• This is an exception to the general rule that the LCR must
nevertheless issue the marriage license.
• However, if the marriage is still celebrated, such will still be
considered valid as this is merely an irregularity in
complying with a formal requirement of the law in procuring
a marriage license.
o If they are stateless persons or refugees, they shall be required to file an affidavit
stating the circumstances showing such capacity to contract marriage in lieu of
the certificate of legal capacity.
o If both contracting parties are foreigners, and they desire to have their marriage
solemnized by their country’s consul-general officially assigned in the
Philippines, they can get married before such consul-general without procuring
a marriage license in the Philippines if their country’s laws allow the same.
§ Such marriage shall be recognized in the Philippines.
ART. 22. THE MARRIAGE CERTIFICATE, IN WHICH THE PARTIES SHALL DECLARE THAT THEY
TAKE EACH OTHER AS HUSBAND AND WIFE, SHALL ALSO STATE:
(1) THE FULL NAME , SEX AND AGE OF EACH CONTRACTING PARTY;
(2) THEIR CITIZENSHIP, RELIGION AND HABITUAL RESIDENCE;
(3) THE DATE AND PRECISE TIME OF THE CELEBRATION OF THE MARRIAGE;
(4) THAT THE PROPER MARRIAGE LICENSE HAS BEEN ISSUED ACCORDING TO LAW, EXCEPT IN
MARRIAGE PROVIDED FOR IN CHAPTER 2 OF THIS TITLE;
(5) THAT EITHER OR BOTH OF THE CONTRACTING PARTIES HAVE SECURED THE PARENTAL
CONSENT IN APPROPRIATE CASES;
(6) THAT EITHER OR BOTH OF THE CONTRACTING PARTIES HAVE COMPLIED WITH THE LEGAL
REQUIREMENT REGARDING PARENTAL ADVICE IN APPROPRIATE CASES ; AND
(7) THAT THE PARTIES HAVE ENTERED INTO MARRIAGE SETTLEMENT, IF ANY, ATTACHING A
COPY THEREOF.
YAP, K. | ATENEO LAW

ART. 23. IT SHALL BE THE DUTY OF THE PERSON SOLEMNIZING THE MARRIAGE TO FURNISH
EITHER OF THE CONTRACTING PARTIES THE ORIGINAL OF THE MARRIAGE CERTIFICATE
REFERRED TO IN ARTICLE 6 AND TO SEND THE DUPLICATE AND TRIPLICATE COPIES OF THE
CERTIFICATE NOT LATER THAN 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
COPIES OF THE MARRIAGE CERTIFICATE. THE SOLEMNIZING OFFICER SHALL RETAIN IN HIS FILE
THE QUADRUPLICATE COPY OF THE MARRIAGE CERTIFICATE, THE COPY OF THE MARRIAGE
CERTIFICATE, THE ORIGINAL OF THE MARRIAGE LICENSE AND, IN PROPER CASES, THE
AFFIDAVIT OF THE CONTRACTING PARTY REGARDING THE SOLEMNIZATION OF THE MARRIAGE
IN PLACE OTHER THAN THOSE MENTIONED IN ARTICLE 8.
Ø Semper presumitur pro matrimonio – always presume marriage.
Ø Presumptions:
o When a man and a woman deport themselves as husband and wife, it is presumed
that they have entered into a lawful contract of marriage.
o When the celebration of the marriage is once shown, the contract of marriage,
the capacity of the parties, and everything necessary to the validity of the
marriage, in the absence of proof to the contrary, will be presumed. (Gaines v.
New Orleans, 1867)
o Morality and not immorality; marriage and not concubinage; legitimacy and not
bastardy. (Pittinger v. Pittinger, 1901)
Ø Public policy should aid acts intended to validate marriages and should retard acts intended
to invalidate marriages.
Ø PROVING MARRIAGE: When the question as to whether a marriage has been contracted
arises in litigation, said marriage may be proved by evidence of any kind. (Pugeda v. Trias,
1962)
o The primary or best evidence of a marriage is the marriage contract / marriage
certificate. (Lim Tanhu v. Ramolete, 1975)
o A mere photostat copy of a marriage certificate is a worthless piece of paper.
(Vda. De Chua v. CA, 1998)
§ But if such photostat copy emanated from the Office of the LCR and
duly certified by the LCR as an authentic copy of the records in his
office, it is admissible in evidence.
§ If not certified, but likewise not opposed by the opposing parties and
consequently admitted by the Court, said photostat copies are deemed
sufficient proof of the facts contained therein and therefor can be proof
of marriage. (Sy v. CA, 2000)
o Baptismal certificates, birth certificates, judicial decisions, and family bible in
which the names of the spouses have been entered as married are good evidences
of marriage. (Trinidad v. CA, 1998)
o A marriage certificate made many years after the marriage is inadmissible,
especially where there was no register of the marriage in the official records.
(Gaines v. Relf, 1851)
o The baptismal certificate was conclusive proof only of the baptism administered
by the priest who baptized the child, not proof of the veracity of the declarations
therein (Señorita – unmarried – as civil status). (Vda. De La Rosa v. Heirs of
Mariciana Rustia Vda. De Damnian, 2006)
o A marriage, like any other contract, may be proved by parol evidence. (Watson
v. Lawrence, 2009)
§ Parol evidence – oral agreements.
20
§ Testimony by one of the parties or witnesses to the marriage, or by the
person who solemnized the same, is admissible. (Pugeda v. Trias,
1962)
§ With respect to a marriage ceremony, the testimony of an eyewitness
to be sufficient should disclose not only the performance of the
ceremony by someone, but that all the circumstances attending it were
such as to constitute a legal marriage. (State v. Hodgskins, 2003)
§ The fact that a marriage has been solemnized gives rise to the
presumption that there has been an exchange of marital vows.
(Balogbog v. CA, 1997)
o Public and open cohabitation as husband and wife after the alleged marriage,
birth and baptismal certificates of children borne by the alleged spouses, and a
statement of such marriage in subsequent documents are competent evidence to
prove the fact of marriage. (Pugeda v. Trias, 1962)
§ Mere cohabitation is not direct proof of marriage, which must be
provided by proper documents or by oral testimony in case these have
been lost. (Santiago v. Cruz, 1911)
o A solemn statement in the will of a deceased as to the fact of his marriage is also
admissible proof of such a marriage. (Son Cui v. Guepangco,1912)
Ø ATTACKING MARRIAGE: Anyone assailing the validity of a marriage is required to
make plain, against the constant pressure of the presumption of legality, the truth of law
and fact that the marriage was not legal.
o The evidence to repel that presumption must be strong, distinct and satisfactory.
(Murchison v. Green, 1907)
o The statement of the civil status of a person in a certificate of title issued to him
is not conclusive to show that he is not actually married to another. (Perido v.
Perido, 1975)
o An official certification issued by the Office of the LCR where a particular
marriage license has been issued as indicated in the marriage contract, stating
that after earnest effort to locate and verify its existence, the said office has no
record of such, or issued the same to another couple, or is spurious or fabricated,
is a convincing evidence to destroy the validity of marriage on the ground of
absence of marriage license. (Go-Bangayan v. Bangayan, Jr., 2013)
§ Such certificate was adequate to prove the non-issuance of a marriage
license and, absent any suspicion, it enjoyed probative value
considering that the LCR was the officer charged under the law to keep
a record of all data relative to the issuance of a marriage license.
(Nicdao Cariño v. Cariño, 2001)
§ Where the LCR executed an affidavit stating that there was no
marriage license despite the exertion of all efforts, but with an
admission that due to the work load of the said office, it cannot give
full force in locating the marriage license compounded by the fact that
the custodian already retired, the SC did not allow the nullity
considering that the circumstances and the certification do not
categorically and with absolute certainty show and state that the
marriage license cannot be found and that there were earnest
efforts to look for the same. (Sevilla v. Cardenas, 2006)
o Presumption of marriage from the fact that there was cohabitation between a man
and a woman for many years ago may be offset by the fact that for at least 35
years of their lives they lived separately and several thousands of miles away
from each other. (Fernandez v. Puatu, 1957)
YAP, K. | ATENEO LAW

Ø Declaratory relief – determination of the parties’ rights under a contract or statute often o No state is bound by comity to give effect in its courts to laws which are
prayed for information in a lawsuit over a contract. repugnant (incompatible) to its own laws and policy.
o Judgment on their capacity to marry. Ø This provision does not apply to the following marriages:
o May be brought by any person interested under a deed, will, contract, or other 1. Art. 35 (1) – those contracted by any party below 18 years of age even with the
written instrument, or whose rights are affected by a statute, executive order, consent of parents or guardians.
regulation, ordinance, or other governmental regulation for the purpose of § BEST INTERPRETATION: Art. 26 referring to Art. 35 (1) should be
determining any question of construction or validity arising therefrom, provided construed as referring to a situation where the marriage abroad is
that the action is brought before any violation or breach. between a Filipino and a Filipina, because under Art. 21, a foreigner
can get married in the Philippines even if he is below 18 years of age
ART. 24. IT SHALL BE THE DUTY OF THE LOCAL CIVIL REGISTRAR TO PREPARE THE if he obtains a certificate of legal capacity.
DOCUMENTS REQUIRED BY THIS TITLE, AND TO ADMINISTER OATHS TO ALL INTERESTED
2. Art. 35 (4) – those bigamous or polygamous marriages not falling under Art. 41
PARTIES WITHOUT ANY CHARGE IN BOTH CASES. THE DOCUMENTS AND AFFIDAVITS FILED IN
(Presumptive Death).
CONNECTION WITH APPLICATIONS FOR MARRIAGE LICENSES SHALL BE EXEMPT FROM
§ Polygamy – act or state of a person who, knowing that he has two or
DOCUMENTARY STAMP TAX.
more wives, or that she has two or more husbands, marries another.
§ Requisites for Art. 41:
1. One of the spouses has been absent for either
ART. 25. THE LOCAL CIVIL REGISTRAR CONCERNED SHALL ENTER ALL APPLICATIONS FOR a. 4 consecutive years; or
MARRIAGE LICENSES FILED WITH HIM IN A REGISTRY BOOK STRICTLY IN THE ORDER IN WHICH b. 2 consecutive years where there is danger of death
THE SAME ARE RECEIVED. HE SHALL RECORD IN SAID BOOK THE NAMES OF THE APPLICANTS, in the following circumstance:
THE DATE ON WHICH THE MARRIAGE LICENSE WAS ISSUED, AND SUCH OTHER DATA AS MAY BE i. A person on board a vessel lost during a
NECESSARY . sea voyage, or an airplane which is
missing;
ii. A person in the armed forces who has
Ø Local civil registrar (LCR) – the specific government official charged with the preparation taken part in a war; or
and keeping of all official documents in connection with marriage. iii. A person who has been in danger of
o Any certification issued by him or her in connection with any matter involving death under other circumstances.
the marriage of any particular individual within his jurisdiction is given high 2. Spouse present has a well-founded belief that the absent
probative value. spouse was already dead;
o Marriage register – contains the following: 3. Judicial declaration of presumptive death.
1. Full name, address, and ages of each of the contracting parties; 3. Art. 35 (5) – those contracted through mistake of one contracting party as to the
2. Place and date of the solemnization of the marriage; identity of the other.
3. Names and addresses of the witnesses; § Regardless of who committed the mistake.
4. Full name, address and relationship with the contracting party or 4. Art. 35 (6) – those subsequent marriages that are void under Art. 53 (non-
parties of the person or persons who gave their consent to the marriage; compliance with partition and dissolution).
and § Requirements under Art. 53:
5. Full name, title, and address of the person who solemnized the 1. Record the judicial decree with the LCR;
marriage. 2. Partition and distribute their properties; and
3. Deliver the presumptive legitimes of their children.
ART. 26. ALL MARRIAGES SOLEMNIZED OUTSIDE THE PHILIPPINES, IN ACCORDANCE WITH THE 5. Art. 36 – Psychological incapacity.
LAWS IN FORCE IN THE COUNTRY WHERE THEY WERE SOLEMNIZED, AND VALID THERE AS § Regardless of which of the contracting parties is physiologically
SUCH, SHALL ALSO BE VALID IN THIS COUNTRY, EXCEPT THOSE PROHIBITED UNDER ARTICLES incapacitated, or of its validity according to foreign laws.
35 (1), (4), (5) AND (6), 3637 AND 38. 6. Art. 37 – Incestuous and void marriages.
§ Marriages between ascendants and descendants of any degree and
WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY those between brothers and sisters, whether of the full or half blood.
CELEBRATED AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN § Regardless of foreign laws.
SPOUSE CAPACITATING HIM OR HER TO REMARRY , THE FILIPINO SPOUSE SHALL HAVE 7. Art. 38 – Void marriages by reason of public policy.
CAPACITY TO REMARRY UNDER PHILIPPINE LAW. (AS AMENDED BY EXECUTIVE ORDER 227) § Regardless of foreign laws.
Ø Common-law marriages valid abroad are still not recognized in the Philippines because
Art. 26 clearly uses the word “solemnized” and not “contracted” or “performed.”
Ø The legal effect which may be given by one state to the marriage laws of another state is o Statutory Construction principle: If words in a statute have a meaning which
merely because of comity. those who are or should be learned in the law are supposed to understand, the
o Comity – association of nations for mutual benefit; courtesy towards others. courts must accept such construction.
21 YAP, K. | ATENEO LAW

§ Solemnization – a ceremonial marriage and not one which was
“contracted” or merely performed by way of a mere agreement of the
parties.
• Contracted – broader and may include as one of its modes
the process of solemnization.
§ Marriage is solemnized – when in the presence of a judicial officer,
priest or minister, the parties declare that they take each other as
husband and wife; and the officer or minister who witnesses the
ceremony is said to “solemnize” the marriage.
Ø Same-sex marriages of Filipinos abroad are invalid, because public policy in the
Philippines mandates that only a man and a woman can marry each other.
o This is clear from Art. 1 of the Family Code, stating that marriage is a special
contract of permanent union between a man and a woman.
o Art. 2 also states that the contracting parties must be a male and a female.
o Terms such as “husband and wife.” “father and mother,” and “man and woman”
are likewise used in the Family Code.
Ø Exception to this provision:
o When either or both contracting parties are Filipinos and they are below 18 years
of age, their marriage solemnized abroad will not be recognized in the
Philippines as valid even though valid in the place where it has been solemnized.
§ This is because Art. 15 of the Civil Code provides that laws relating to
family rights and duties, or to the status, conditions and legal capacity
of persons are binding upon citizens of the Philippines, even though
living abroad.
Ø To establish a valid marriage pursuant to Art. 26, it is necessary to prove:
1. Foreign law as a question of fact; and
2. Celebration of marriage pursuant to the foreign law by convincing evidence.
Ø Proof of the foreign marriage raises the presumption that the same was done in accordance
with the law of that jurisdiction. (Patterson v. Gaines, 1848)
o Doctrine of Processual Presumption – if such law is not pleaded nor proved and
for the purpose of determining the validity of a marriage in the said state, the
laws of such state, in the absence of proof to the contrary, will be presumed by
the Court to be the same as the laws of its own state. (Wong Woo Yin v. Vivi,
1965)
o In case of doubt, all presumptions favor the solidarity of the family and every
intendment of the law or facts leans toward the validity of marriage, “he who
asserts that the marriage is not valid under our law bears the burden of proof to
present the foreign law.” (Board of Commissioners v. Dela Rosa, 1991)
§ Justice Feliciano’s dissent: The rule that a foreign marriage valid in
accordance with the law of the place where it was performed shall be
valid also in the Philippines, cannot begin to operate until after the
marriage performed abroad and its compliance with the requirements
for validity under the marriage law of the place where performed, are
first shown as factual matters.
Ø Absolute divorce is not recognized in the Philippines, thus any divorce initiated by a
Filipino, even those abroad, is against public policy and will not be recognized in the
Philippines.
o Aliens may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law.
o THE DETERMINATIVE POINT: The foreigner who procured the divorce
should be a foreigner at the time of the divorce, not at the time of the marriage
ceremony.
22
§ When both parties were Filipinos at the time of the marriage ceremony,
but at the time of the divorce, the petitioner was already a citizen of a
foreign country that allows absolute divorce, Art. 26 paragraph 2
applies.
§ The Filipino who did not initiate the divorce should still be a Filipino
at the time of the divorce for Art. 26 to be applicable. Otherwise,
recognition in the Philippines is pursuant to the nationality principle.
• Nationality principle – as to the legal capacity of a person,
the Philippines shall adhere or follow the law of the country
of the person involved.
o When a Filipino obtains a foreign absolute divorce, such will not be recognized
in the Philippines as to the Filipino spouse, but as to the foreigner spouse, he/she
is considered divorced. Hence, the latter cannot, for example, claim interest in
the property of the Filipino spouse after the divorce.
Ø When a Filipino contracts a foreign marriage which is null and void under the laws of the
state where it was solemnized, such marriage shall likewise be null and void in the
Philippines.
o A civil case can be filed in the Philippines to nullify a foreign marriage using as
basis the legal grounds for nullity provided by the marriage laws of the state
where the marriage was celebrated.
o The same applies to marriages that are invalid pursuant to the foreign laws of the
place of solemnization, even if they were valid pursuant to Philippine laws.
CHAPTER TWO: MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT
Ø Arts. 27, 28, 31, 32, 33 and 34 are situations where the contracting parties need not obtain
a marriage license prior to getting validly married.
o Exceptions:
1. Muslims – Code of Muslim Personal Laws.
2. Indigenous tribes in the Cordillera Autonomous Region (CAR) –
Organic Act for the Cordillera Autonomous Region (R.A. 6766).
o For other indigenous tribes, they must comply with the Family Code.
Ø Reasons for the exceptions are anchored on necessity and practicality.
ART. 27. IN CASE EITHER OR BOTH OF THE CONTRACTING PARTIES ARE AT THE POINT OF
DEATH, THE MARRIAGE MAY BE SOLEMNIZED WITHOUT NECESSITY OF A MARRIAGE LICENSE
AND SHALL REMAIN VALID EVEN IF THE AILING PARTY SUBSEQUENTLY SURVIVES.
Ø Articulo mortis – where at least one of the parties is in the bring of death.
Ø The marriage will remain valid even if the ailing party subsequently survives.
ART. 28. IF THE RESIDENCE OF EITHER PARTY IS SO LOCATED THAT THERE IS NO MEANS OF
TRANSPORTATION TO ENABLE SUCH PARTY TO APPEAR PERSONALLY BEFORE THE LOCAL CIVIL
REGISTRAR, THE MARRIAGE MAY BE SOLEMNIZED WITHOUT NECESSITY OF A MARRIAGE
LICENSE.
Ø Without this provision, illicit relationships may proliferate only because the parties could
not get a marriage license with really no fault on their part.
YAP, K. | ATENEO LAW

ART. 29. IN THE CASES PROVIDED FOR IN THE TWO PRECEDING ARTICLES, THE SOLEMNIZING
OFFICER SHALL STATE IN AN AFFIDAVIT EXECUTED BEFORE THE LOCAL CIVIL REGISTRAR OR
ANY OTHER PERSON LEGALLY AUTHORIZED TO ADMINISTER OATHS THAT THE MARRIAGE WAS
PERFORMED IN ARTICULO MORTIS OR THAT THE RESIDENCE OF EITHER PARTY, SPECIFYING THE
BARRIO OR BARANGAY, IS SO LOCATED THAT THERE IS NO MEANS OF TRANSPORTATION TO
ENABLE SUCH PARTY TO APPEAR PERSONALLY BEFORE THE LOCAL CIVIL REGISTRAR AND
THAT THE OFFICER TOOK THE NECESSARY STEPS TO ASCERTAIN THE AGES AND RELATIONSHIP
OF THE CONTRACTING PARTIES AND THE ABSENCE OF LEGAL IMPEDIMENT TO THE MARRIAGE.
Ø Valid so long as it was established that articulo mortis was present during the solemnization
of the marriage.
ART. 30. THE ORIGINAL OF THE AFFIDAVIT REQUIRED IN THE LAST PRECEDING ARTICLE,
TOGETHER WITH THE LEGIBLE COPY OF THE MARRIAGE CONTRACT, SHALL BE SENT BY THE
PERSON SOLEMNIZING THE MARRIAGE TO THE LOCAL CIVIL REGISTRAR OF THE MUNICIPALITY
WHERE IT WAS PERFORMED WITHIN THE PERIOD OF THIRTY DAYS AFTER THE PERFORMANCE OF
THE MARRIAGE.
Ø The procedures under Arts. 29 and 30 are merely directory in character. Non-observance
will not affect the status of the marriage.
o However, the officer, priest, or minister who, having solemnized a marriage in
articulo mortis or any other marriage of an exceptional character, shall fail to
comply with Chapter 2, Title I of the Family Code, shall be punished by:
1. Imprisonment for 1 month to 2 years; or
2. Fine of Php300 to Php2,000.
ART. 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.
Ø Requisites:
1. Between passengers or crew members;
2. Ship must be at sea or the plane in flight; and
§ An assistant pilot has no authority to solemnize a marriage.
§ May be solemnized during stopovers at ports of call – as long as the
voyage is not yet terminated.
3. In articulo mortis.
ART. 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.
Ø Requisites:
1. Military commander of a unit;
§ Unit – a battalion under the present table of organization and not to a
mere company.
2. Must be a commissioned officer;
23
§ An officer of a country's armed services whose rank is confirmed by a
government document (called a commission).
§ Second lieutenant, ensign or above.
3. Chaplain is assigned to such unit;
4. Chaplain is absent at the time of marriage;
5. Members of the armed forces or civilians, and within the zone of military
operation; and
§ Even if they do not belong to the unit.
§ Within the zone of military operation – implies a widespread military
activity over an area and does not refer to a simulated exercise because
it requires absence of civilian authorities.
6. In articulo mortis.
ART. 33. MARRIAGES AMONG MUSLIMS OR AMONG MEMBERS OF THE ETHNIC CULTURAL
COMMUNITIES MAY BE PERFORMED VALIDLY WITHOUT THE NECESSITY OF MARRIAGE LICENSE,
PROVIDED THEY ARE SOLEMNIZED IN ACCORDANCE WITH THEIR CUSTOMS, RITES OR
PRACTICES .
Ø Exempted from marriage license – other formalities must be in accordance with their laws:
1. Muslims – Code of Muslim Personal Laws.
2. Indigenous tribes in the Cordillera Autonomous Region (CAR) – Organic Act
for the Cordillera Autonomous Region (R.A. 6766).
Ø For other indigenous tribes, they must comply with the Family Code.
ART. 34. NO LICENSE SHALL BE NECESSARY FOR THE MARRIAGE OF A MAN AND A WOMAN
WHO HAVE LIVED TOGETHER AS HUSBAND AND WIFE FOR AT LEAST FIVE YEARS AND WITHOUT
ANY LEGAL IMPEDIMENT TO MARRY EACH OTHER. THE CONTRACTING PARTIES SHALL STATE
THE FOREGOING FACTS IN AN AFFIDAVIT BEFORE ANY PERSON AUTHORIZED BY LAW TO
ADMINISTER OATHS. THE SOLEMNIZING OFFICER SHALL ALSO STATE UNDER OATH THAT HE
ASCERTAINED THE QUALIFICATIONS OF THE CONTRACTING PARTIES ARE FOUND NO LEGAL
IMPEDIMENT TO THE MARRIAGE.
Ø Requisites:
1. Live as husband and wife for at least 5 years characterized by exclusivity and
continuity that is unbroken.
2. Without any legal impediment to marry each other.
§ Legal impediment – any possible ground or basis under the Family
Code, including non-age and the status of being already married among
others, to make a marriage infirm.
§ This must be construed to refer only to the time of the actual marriage
celebration. Such construction is supported because the essential
requirements of Art. 2 and formal requirements of Art. 3 must be
present only at the celebration of the marriage and not at any other
point in time.
• The pronouncement in Office of the Court Administrator
(OCA) v. Judge Necessario – that absence of legal
impediment should be for the entire period – should be
considered only as an obiter dictum (opinion) because it was
based on Art. 76 of the Civil Code (repealed by Art. 34 of
YAP, K. | ATENEO LAW

the Family Code), and was an administrative case not 2. Surviving descendants; or
revolving around the validity of the marriage. 3. Innocent party.
Ø Duties under this provision: o This rule applies to all void marriages except to a subsequent void marriage
1. The contracting parties shall, in an affidavit under oath, state the: failing to comply with Art. 40 – failure to get a prior judicial declaration of nullity
a. Fact of cohabitation for at least 5 years; and of the previous void marriage.
b. Absence of legal impediment to marry. Ø As a general rule, a void marriage can be collaterally attacked – the nullity of a marriage
2. Solemnizing officer shall also state under oath that he has ascertained the can be asserted even if it is not the main or principal issue of a case. (Ex. Inheritance cases)
qualifications of the contracting parties and found no legal impediment to the o Direct attack – filing a case precisely putting for as principal issue the nullity of
marriage. the marriage.
Ø Falsity of the affidavit herein cannot be considered to be a mere irregularity considering o Cases where a direct attack on the nullity of a marriage must first be undertaken:
that the 5-year period is a substantial requirement to this provision. (De Castro v. De 1. Art. 40 – the absolute nullity of a previous marriage may be invoked
Castro, 2008) for purposes of remarriage on the basis solely of a final judgment
Ø The aim of this provision is to avoid exposing the parties to humiliation, shame and declaring such marriage void.
embarrassment concomitant with the scandalous cohabitation of persons outside a valid 2. Determination of heirship, legitimacy or illegitimacy of the child,
marriage. settlement of estate, dissolution of property regime, or a criminal case
for that matter.
CHAPTER THREE: VOID AND VOIDABLE MARRIAGES 3. Art. 50 in relation to Art. 43 (3) and in Art. 86 (1) – if the donor decides
to revoke a donation propter nuptias (in consideration of marriage), he
Ø Void – invalid from the beginning. must first obtain a judicial declaration of nullity of the marriage.
Ø Voidable – presupposes that it was valid but later ceases to have legal effect when
terminated through court action. ART. 35. THE FOLLOWING MARRIAGES SHALL BE VOID FROM THE BEGINNING:
Ø Void Marriage Voidable Marriage
• Invalid from the beginning. • Was valid but later ceases to have (1) THOSE CONTRACTED BY ANY PARTY BELOW EIGHTEEN YEARS OF AGE EVEN WITH THE
legal effect when terminated CONSENT OF PARENTS OR GUARDIANS;
(annulled) through court action. (2) THOSE SOLEMNIZED BY ANY PERSON NOT LEGALLY AUTHORIZED TO PERFORM MARRIAGES
• Can never be ratified. • Can be ratified. UNLESS SUCH MARRIAGES WERE CONTRACTED WITH EITHER OR BOTH PARTIES BELIEVING IN
• Can be attacked collaterally. • Must be attacked directly – main GOOD FAITH THAT THE SOLEMNIZING OFFICER HAD THE LEGAL AUTHORITY TO DO SO ;
issue of the case. (3) THOSE SOLEMNIZED WITHOUT LICENSE, EXCEPT THOSE COVERED THE PRECEDING
• Can be questioned even after the • Can only be assailed during the CHAPTER;
death of either party. lifetime of the parties and not after (4) THOSE BIGAMOUS OR POLYGAMOUS MARRIAGES NOT FALLING UNDER ARTICLE 41;
the death of either. (5) THOSE CONTRACTED THROUGH MISTAKE OF ONE CONTRACTING PARTY AS TO THE
• Can only be assailed by the • Can be assailed by any proper IDENTITY OF THE OTHER; AND
contracting parties or parents and interested party – one affected by the (6) THOSE SUBSEQUENT MARRIAGES THAT ARE VOID UNDER ARTICLE 53.
guardians. marriage.
• No legal effects except those • Children conceived before nullity Ø Void marriage – void ab initio – that which is not valid from its inception.
declared by law. are legitimate. Ø The enumeration herein is exclusive – only marriages declared void by legislature should
be treated as such.
Ø As a general rule, good faith and bad faith are immaterial in determining whether a Ø The grounds for a void marriage may co-exist in one case.
marriage is null and void. o The cause of action is still the invalidity of the marriage from the beginning.
o Exceptions:
1. Art. 35 (2) – if either of the contracting parties is in good faith believing Fig. 3.
that a solemnizing officer has authority to solemnize a marriage though Void Marriages
he or she actually has none, the marriage will be considered valid. Marriage Rules / Requisites / Exceptions
2. Art. 41 – a person whose spouse disappears for 4 years or 2 years, in
1. Those contracted by any • The consent of the parents is immaterial, whether
the proper cases, the present spouse may validly marry again if he or
party below 18 years of age present or not.
she is in good faith together with the subsequent spouse.
even with the consent of • It was raised to 18 years (before 16 for male, 14
o Likewise affects property disposition:
parents or guardians for female) because marriages between 12-17
§ When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the co-ownership shall be forfeited in years old increases the probability of unsafe
favor of, in this particular order: pregnancies.
1. Common children or their descendants;

24 YAP, K. | ATENEO LAW


2. Those solemnized by any
person not legally
authorized to perform
marriages
3. Those solemnized without
without license
4. Those bigamous or
polygamous marriages not
falling under Art. 41
5. Those contracted through
mistake of one contracting
party as to the identity of
the other
• Exception: When either or both of the parties
believing in good faith that the solemnizing
officer had the legal authority to do so when in
fact he or she has none.
• Putative marriage – a matrimonial union
solemnized in due form and good faith on the part
of one or both parties but which by reason of
some legal infirmity is either void or voidable.
• Good faith – honest and reasonable belief that the
marriage was valid at its inception, and that no
legal impediment exists to impair its validity.
• Does not apply in cases of ignorance of the law –
if the parties go before a person not specifically
mentioned by law as having any authority to
solemnize a marriage. (Ex. Solemnized by a
governor)
• Applies in cases of mistake of fact – if the parties
go before a person stated by law as qualified to
solemnize a marriage but in fact is not because of
non-fulfillment of a requirement by law such as
procuring a license, then there is good faith of the
parties in believing that there was no infirmity.
Exceptions:
1. Either of both contracting parties are in articulo
mortis;
2. Remote residence;
3. Between passengers or crew members of a ship or
plane, in articulo mortis;
4. Between persons within the zone of military
operation, whether members of the armed forces
or civilians, in articulo mortis;
5. Muslims or members of ethnic cultural
communities; and
6. Cohabitation for at least 5 years, without legal
impediment at the time of marriage.
Exceptions:
1. Code of Muslim Personal Laws
2. Art. 41 – valid subsequent marriages based on
presumptive death.
• Non-observance of Art. 40 (judicial declaration of
nullity) in relation to Art. 52 shall make the
subsequent marriage void pursuant to Art. 53.
• Ex. When one of the contracting parties marries
the twin of the other party, believing that such
twin is his or her lover.
• Absence of consent – the contracting party
absolutely did not intend to marry the other, as the
same is not the person he or she actually knew
before the marriage.
• Does not apply to mistake as to the real name or
mistake as to the virtues of the other party.
25
6. Those subsequent marriages Requisites:
void under Art. 53 1. Liquidation, partition and distribution of property;
2. Delivery of the children’s presumptive legitimes;
and
3. Recorded in the LCR.
ART. 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 ITS SOLEMNIZATION. (A S AMENDED BY EXECUTIVE ORDER 227)
Ø The law does not define psychological incapacity, hence the determination is left solely
with the courts on a case-to-case basis.
o Justice Caguioa: A code should not have so many definitions, because a
definition straight-jackets the concept and, therefore, many cases that should go
under it are excluded by the definition. That’s why we leave it up to the court to
determine the meaning of psychological incapacity.
Ø Clearly, the ground is restricted to psychological incapacity “to comply with the essential
marital obligations.” It does not refer merely to mental faculties and has nothing to do with
consent.
o Essential marital obligations:
1. Art. 68 – to live together, observe mutual love, respect and fidelity, and
render mutual help and support.
2. Art. 69 – fixing the family domicile.
3. Art. 70 – joint responsibility for the support of the family, the expenses
for such support and other conjugal obligations.
4. Art. 71 – management of the household and the expenses therefor.
5. Art. 220 – parental authority.
6. Art. 221 – civil liability for the injuries and damages caused by the acts
or omissions of their unemancipated children living in their company
and under their parental authority.
7. Art. 225 – legal guardianship over the property of the unemancipated
common children.
Ø Psychological incapacity to perform the essential marital obligations must be present at the
time of the marriage ceremony, but can be manifested later on during the marriage.
o Justice Puno: The bearing of children and cohabitation should not be a sign that
the psychological incapacity has been cured.
Ø Psychological incapacity must be characterized by:
1. Gravity – incapacity must be grave or serious such that the party would be
incapable of carrying out the ordinary duties required in marriage.
2. Juridical antecedence – rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage.
3. Incurability – incurable or otherwise, the cure would be beyond the means of the
party involved. (Santos v. CA and Santos, 1995)
Ø Revised guidelines (Molina Doctrine):
1. Burden of proof to show the nullity of the marriage belongs to the plaintiff, and
any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity.
2. Root cause of the psychological incapacity must be:
a. Medically or clinically identified;
b. Alleged in the complaint;
YAP, K. | ATENEO LAW

c. Sufficiently proven by experts; and
d. Clearly explained in the decision.
3. Incapacity must be proven to be existing at “the time of the celebration” of the
marriage.
4. Incurability;
5. Gravity;
6. Essential marital obligations must be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their children; and
7. Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines (NAMTCCP), while not controlling or
decisive, should be given great respect by our courts. (Republic v. CA and
Molina, 1997)
Ø Proving psychological incapacity can only be by indicators or external manifestations of
the person claimed to be psychologically incapacitated.
o These indicators must be clearly alleged in the complained filed in court.
o As a start, one should see if the husband or wife observes his or her duty as such
towards his or her spouse, the children, and the family.
o Evidently, one of the essential marital obligations under the Family Code is to
procreate children based on the principle that procreation of children through
sexual cooperation is the basic end of marriage.
§ The fear of a wife, who is afraid of children, to engage in sexual
intercourse is an indicator of psychological incapacity.
o The manifestations of psychological incapacity must be attributed to a
psychological illness and not merely physical illness. (Ochosa v. Alano, 2011)
o The professional opinion of a psychological expert became increasingly
important in such cases. (Republic v. CA and Molina, 1997)
§ Given by a psychologist or psychiatrist.
§ Purpose:
1. To establish the precise cause of a party’s psychological
incapacity.
2. To show that it existed at the inception of the marriage.
§ The Court may or may not accept the testimony of the psychologist or
psychiatrist because the decision must be based on the totality of the
evidence. (Paras v. Paras, 2007)
§ The findings of respondent’s psychiatrist, based on transcripts of
respondent’s deposition, consider the findings of another psychiatrist
who personally examined the respondent and also interviewed
respondent’s brothers, as compared to the findings of petitioner’s
psychiatrist who merely analyzed his deposition, are more credible.
(Ting v. Ting, 2009)
§ The SC denied nullity on the ground that the psychological report was
very general and did not state specific linkages between the personality
disorder and the behavioral pattern of the spouse during the marriage.
(Rumbaua v. Rumbaua, 2009)
Ø This particular ground of nullity was lifted from the Canon Laws of the Catholic Church.
o The homosexual person is unable to assume the responsibilities of marriage
because he is unable to fulfill this object of the matrimonial contract due to sexual
anomaly.
Ø The SC disallowed the award of moral damages, exemplary damages and attorney’s fees
on the ground that the very nature of psychological incapacity which is non-cognizance of
one’s essential marital obligation at the time of the marriage ceremony, negates bad faith,
26
which is essential in moral damages. Consequently, no award of exemplary damages and
attorney’s fees can be made in the absence of bad faith. (Buenaventura v. CA, 2005)
Ø Examples of cases of psychological incapacity:
o Unreasonable attachment by the spouse to his or her family (father and mother,
brothers and sisters) or to the spouse’s friends or “barkada” such that the
importance and devotion which should be given to his or her own spouse and
children are subordinated to the said attachment is also a good indicator of
psychological incapacity. (Republic v. Encelan, 2013)
o The prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity. (Chi Ming Tsoi v. CA,
1997)
o Dependent personality disorder and narcissistic and anti-social disorder, both
consistent with psychological incapacity to perform the essential marital
obligation warranted the nullity of the marriage. (Te v. Te, 2009)
o Mixed personality disorder from self-defeating personality disorder to dependent
personality disorder likewise warranted the nullity of the marriage. (Halili v.
Halili, 2009)
ART. 37. MARRIAGES BETWEEN THE FOLLOWING ARE INCESTUOUS AND VOID FROM THE
BEGINNING, WHETHER RELATIONSHIP BETWEEN THE PARTIES BE LEGITIMATE OR
ILLEGITIMATE:
(1) BETWEEN ASCENDANTS AND DESCENDANTS OF ANY DEGREE; AND
(2) BETWEEN BROTHERS AND SISTERS, WHETHER OF THE FULL OR HALF BLOOD.
Ø Universally condemned as grossly indecent, immoral, and inimical to the purity and
happiness of the family and the welfare of future generations.
o Leads to confusion of rights and duties incident to family relations.
§ Ex. If a child is born to a union between daughter and father, then its
mother is also its sister. Its father is married to its grandmother, and its
father is simultaneously its grandfather. Its half-brother is also its
uncle.
o In addition, science and experience have established that such intermarriages
often result in deficient and degenerate offspring (deleterious recessive genes)
which would amount to a serious deterioration of the race.
§ Deleterious genes – a gene which usually effects to reduced fitness.
Such genes are often “recessive,” so that they can be transmitted
through families without being detected unless two occur together in
the same individual.
Ø Purposes of incest prohibition:
1. To control sex rivalries and jealousies within the family unit; and
2. To ensure suitable role models in preparing the individual for assumption of
familial responsibility as an adult.
YAP, K. | ATENEO LAW

ART. 38. THE FOLLOWING MARRIAGES SHALL BE VOID FROM THE BEGINNING FOR REASONS OF Fig. 3.
PUBLIC POLICY :

(1) BETWEEN COLLATERAL BLOOD RELATIVES WHETHER LEGITIMATE OR ILLEGITIMATE, UP

TO THE FOURTH CIVIL DEGREE;
(2) BETWEEN STEP-PARENTS AND STEP-CHILDREN;
(3) BETWEEN PARENTS-IN-LAW AND CHILDREN -IN-LAW;
(4) BETWEEN THE ADOPTING PARENT AND THE ADOPTED CHILD;
(5) BETWEEN THE SURVIVING SPOUSE OF THE ADOPTING PARENT AND THE ADOPTED CHILD;
(6) BETWEEN THE SURVIVING SPOUSE OF THE ADOPTED CHILD AND THE ADOPTER;
(7) BETWEEN AN ADOPTED CHILD AND A LEGITIMATE CHILD OF THE ADOPTER;
(8) BETWEEN ADOPTED CHILDREN OF THE SAME ADOPTER; AND
(9) BETWEEN PARTIES WHERE ONE, WITH THE INTENTION TO MARRY THE OTHER, KILLED THAT
OTHER PERSON'S SPOUSE , OR HIS OR HER OWN SPOUSE.

Ø The enumeration herein is exclusive

Ø It is the policy of the State to foster a normal, peaceful, and wholesome integral nuclear
family unit which would constitute the very foundation of society.
o Nuclear family – a family group consisting of two parents and their children (one
or more). It is in contrast to a single-parent family, to the larger extended family,
and to a family with more than two parents.
Ø Void marriages for reason of public policy:
1. Between collateral blood relatives whether legitimate or illegitimate, up to the
4th civil degree.
§ Collateral relatives – relatives who are not direct ancestors. (Ex.
cousins, nephews and nieces, uncles and aunts, etc.)
§ To prevent the coming together in their offspring of any deleterious
recessive genes.
§ Relationship by consanguinity is in itself incapable of dissolution. Ex.
Death of a grandparent does not sever the relationship between
cousins.
§ Refer to Fig. 3 for a sample of counting the civil degree between
relatives. Exclude the starting point, include the end point.
• Ex. Juan Junior can marry Dolores because they are relatives
to the 5th civil degree.
2. Between step-parents and step-children.
§ Refer to Fig. 4 for a sample of counting the civil degree between half-
blood relatives.
• Marriage between half-blood relatives is not specifically
included by law as a void marriage and, therefore, cannot be
considered as such. (In Re: Simms Estate, 1951)
Fig. 4.
3. Between parents-in-law and children-in-law.
§ Affinity – a connection formed by marriage, which places the husband
in the same degree of nominal proximity to the relatives of the wife as
that in which she herself stands towards them, and give the wife the
same reciprocal connection with the relations of the husband.
• Arises from marriage; canonical maxim that marriage makes
husband and wife one.
• To keep with Philippine customs and traditions that parents-
in-law treat children-in-law just like their own children and
vice versa.
§ General Rule: Relationship by affinity cease with the dissolution of the
marriage which produces it. (Kelly v. Neely, 1852)
• Exceptions:
1. When there are living issues or children of the
marriage “in whose veins the blood of the parties
are commingled, since the relationship of affinity

27 YAP, K. | ATENEO LAW


was continued through the medium of the issue of ART. 39. THE ACTION OR DEFENSE FOR THE DECLARATION OF ABSOLUTE NULLITY OF A
the marriage.” (Paddock v. Wells, 2012) MARRIAGE SHALL NOT PRESCRIBE. (AS AMENDED BY EXECUTIVE ORDER 227 AND REPUBLIC
2. In criminal law, affinity relation subsists even after ACT NO. 8533)
the death of the spouse regardless of existence or
non-existence of children. (Intestate Estate of Vda.
De. Carungcong, 2010) Ø The phrase "however, in case of marriage celebrated before the effectivity of this code and
4. Between the adopting parent and the adopted child. falling under article 36 (psychological incapacity), such action or defense shall prescribe
5. Between the surviving spouse of the adopting parent and the adopted child. in ten years after this code shall taken effect" has been deleted by RA 8533 (approved
6. Between the surviving spouse of the adopted child and the adopter. February 23, 1998)
7. Between an adopted child and a legitimate child of the adopter. Ø A void marriage (void ab initio) is considered as never to have taken place and will be
8. Between the adopted children of the same adopter. treated as non-existent by the courts. (Niñal v. Bayadog, 2000)
§ The relationship created in adoption is limited to one of parent and Ø Only the husband or wife can filed a court case declaring the marriage void. (Supreme
child Court Resolution, A.M. No. 02-11-10-SC)
o The Doctrine of unclean hands is not a rule applied in nullity actions because it
Fig. 5. is merely judge-made and has no statutory basis. (Faustin v. Lewis, 1981)
Adoptive Relationship Ø Only the spouses in the subsisting first marriage can file a case for declaration of nullity of
Cannot Marry Can Marry a subsequent bigamous marriage. (Fujiki v. Marinay, 2013)
Adopter 1. Adopted 1. Legitimate or Ø A void marriage can still be collaterally attacked by any interested party in any proceeding
2. Surviving spouse of illegitimate child of the where the determination of the validity of marriage is necessary to give rise to certain rights
the adopted adopted or to negate certain rights.
2. Adopted child of the
adopted ART. 40. THE ABSOLUTE NULLITY OF A PREVIOUS MARRIAGE MAY BE INVOKED FOR PURPOSES
3. Natural parent of the OF REMARRIAGE ON THE BASIS SOLELY OF A FINAL JUDGMENT DECLARING SUCH PREVIOUS
adopted MARRIAGE VOID.
4. Other relatives,
whether by
consanguinity or Ø If a marriage is void ab initio, any one of them cannot contract a subsequent valid marriage
affinity, of the adopted without a previous declaration of nullity.
Adopted 1. Adopter 1. Parents of the adopter o Only full compliance with Arts. 52 and 53 can a subsequent valid marriage be
2. Surviving spouse of 2. Illegitimate children of entered into.
the adopter the adopter § Requisites:
3. Legitimate child of the 3. Other relatives, 1. Liquidation, partition and distribution of property;
adopter whether by 2. Delivery of the children’s presumptive legitimes; and
4. Other adopted children consanguinity or 3. Recorded in the LCR.
of the adopter affinity, of the adopter o PAY ATTENTION to the date of the subsequent marriage to know whether a
4. (Former) spouse of the judicial declaration of nullity is necessary.
adopter, after the
marriage is judicially Fig. 6.
nullified or annulled Need of Judicial Declaration of Nullity
Status of Subsequent
Jurisprudence Date of Effectivity
9. Between parties where one, with the intention to marry the other, killed that other Marriage
person’s spouse, or his or her own spouse. People v. Gomez September 28, 1954 Valid
§ If the party can do such act, there is no guarantee that he or she will Gomez v. Lipana June 30, 1970 Void
not do the same evil act again to his or her subsequent spouse so that
Odayat v. Amante June 2, 1977 Valid
he or she can marry for the third time.
§ This prohibition applies even if the act was contemplated and done Wiegel v. Sempio Diy August 19, 1986 Void
without the other party’s knowledge. Yap v. CA October 28, 1986 Valid
§ No prior criminal conviction by the Court for the killing is required by Family Code of the
law. August 3, 1988 Void
Philippines
• Justice Caguioa: Mere preponderance of evidence is required
to prove the killing.

28 YAP, K. | ATENEO LAW


o The sole basis acceptable in law for said projected marriage to be free from legal
infirmity is a final judgment declaring the previous marriage void. (Domingo v.
CA, 1993)
§ Justice Caguioa: One cannot determine for himself whether or not his
marriage is valid and that a court action is needed.
o Art. 40 does not provide or expressly declare or define that a subsequent void
marriage obtained in violation of this article is bigamous.
§ Subsequent void marriage contract while a previous void marriage is
still subsisting – Art. 40 – if the first marriage is void and one of the
parties subsequently remarried without a judicial declaration of nullity
of the first marriage.
§ Subsequent void bigamous marriage – Arts. 35 (4) and 41 – a
subsequent marriage is contracted at the time when the valid first
marriage was still subsisting.
o Bigamy (Criminal Law) – committed by any person who shall contract a second
or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of
judgment rendered in the proper proceeding. (Art. 349, RPC)
§ For as long as Art. 40 of the Family Code was not complied with, the
subsequent marriage will always be criminally bigamous.
o Violation of Art. 40 is not a bar in invoking the nullity of the first marriage
because Art. 40 merely aims to put certainty as to the void status of the
subsequent marriage and is not aimed as a provision to define bigamy under the
Family Code or criminal bigamy under the RPC. (Mercado v. Mercado, 2000:
Justice Vitug, dissenting opinion)
§ The only effect of the non-observance of Art. 40 is to make the
subsequent marriage void pursuant to Arts. 52 and 53.
ART. 41. A MARRIAGE CONTRACTED BY ANY PERSON DURING SUBSISTENCE OF A PREVIOUS
MARRIAGE SHALL BE NULL AND VOID, UNLESS BEFORE THE CELEBRATION OF THE
SUBSEQUENT MARRIAGE, THE PRIOR SPOUSE HAD BEEN ABSENT FOR FOUR CONSECUTIVE
YEARS AND THE SPOUSE PRESENT HAS A WELL-FOUNDED BELIEF THAT THE ABSENT SPOUSE
WAS ALREADY DEAD. IN CASE OF DISAPPEARANCE WHERE THERE IS DANGER OF DEATH UNDER
THE CIRCUMSTANCES SET FORTH IN THE PROVISIONS OF ARTICLE 391 OF THE CIVIL CODE, AN
ABSENCE OF ONLY TWO YEARS SHALL BE SUFFICIENT.
FOR THE PURPOSE OF CONTRACTING THE SUBSEQUENT MARRIAGE UNDER THE PRECEDING
PARAGRAPH THE SPOUSE PRESENT MUST INSTITUTE A SUMMARY PROCEEDING AS PROVIDED IN
THIS CODE FOR THE DECLARATION OF PRESUMPTIVE DEATH OF THE ABSENTEE, WITHOUT
PREJUDICE TO THE EFFECT OF REAPPEARANCE OF THE ABSENT SPOUSE .
Ø For as long as the first void marriage is not judicially declared void, any subsequent
marriage is also bigamous. (Mercado v. Mercado, 2000)
Ø General Rule: A marriage contracted during the lifetime of the first spouse is null and void.
(Gomez v. Lipana, 1970)
o Exception: Art. 41 – Judicial declaration of presumptive death (JDPD).
§ Requisites for Art. 41:
1. One of the spouses has been absent for either
a. 4 consecutive years; or
b. 2 consecutive years where there is danger of death
in the following circumstance:
29
i. A person on board a vessel lost during a
sea voyage, or an airplane which is
missing;
ii. A person in the armed forces who has
taken part in a war; or
iii. A person who has been in danger of
death under other circumstances.
2. Spouse present has a well-founded belief that the absent
spouse was already dead;
§ Well-founded belief – the belief of the present
spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether the
absent spouse is still alive or is already dead.
3. Judicial declaration of presumptive death (JDPD).
§ General Rule: No judicial declaration of
presumptive death is required as such presumption
arises from the law.
• Exception: Art. 41 of the Family Code
for purposes of remarriage.
§ Summary proceeding where the judgment is final.
§ Without prejudice to the effect of reappearance of the absent spouse.
• JDPD is only prima facie, and can be overthrown by
evidence. (People v. Archilla, 1961)
• Automatic termination of the subsequent marriage can be
obtained by the recording of the Affidavit of Reappearance”
of the absent spouse in the LCR of the residence of the
parties to the subsequent marriage – the only instance when
a marriage is terminated extra-judicially.
o May be filed by any interested party.
• If the reappearing spouse does not file an affidavit or sworn
statement with the LCR of the fact of reappearance, there
will technically exist two valid marriages.
§ After issuance of JDPD, the properties of the first marriage will be
liquidated pursuant to Arts. 103 (Dissolution of Absolute Community
Property Regime) and 130 (Dissolution of Conjugal Partnership of
Gains Regime) of the Family Code.
ART. 42. THE SUBSEQUENT MARRIAGE REFERRED TO IN THE PRECEDING ARTICLE SHALL BE
AUTOMATICALLY TERMINATED BY THE RECORDING OF THE AFFIDAVIT OF REAPPEARANCE OF
THE ABSENT SPOUSE , UNLESS THERE IS A JUDGMENT ANNULLING THE PREVIOUS MARRIAGE OR
DECLARING IT VOID AB INITIO.
A SWORN STATEMENT OF THE FACT AND CIRCUMSTANCES OF REAPPEARANCE SHALL BE
RECORDED IN THE CIVIL REGISTRY OF THE RESIDENCE OF THE PARTIES TO THE SUBSEQUENT
MARRIAGE AT THE INSTANCE OF ANY INTERESTED PERSON , WITH DUE NOTICE TO THE SPOUSES
OF THE SUBSEQUENT MARRIAGE AND WITHOUT PREJUDICE TO THE FACT OF REAPPEARANCE
BEING JUDICIALLY DETERMINED IN CASE SUCH FACT IS DISPUTED.
YAP, K. | ATENEO LAW

Ø For judicial declarations of nullity obtained in foreign courts, the proper petition to file is
a Petition for Recognition of Foreign Judgment. (Fujiki v. Marinay, 2013)
o Rule 108, Rules of Court – foreign declaration may be proved through:
1. Official publication; or
2. Certification or copy attested by the officer who has custody of the
judgment.
• May be made by the proper diplomatic or consular officer of
the Philippine foreign service in the country where the
decree was obtained.
ART. 43. THE TERMINATION OF THE SUBSEQUENT MARRIAGE REFERRED TO IN THE PRECEDING
ARTICLE SHALL PRODUCE THE FOLLOWING EFFECTS:
(1) THE CHILDREN OF THE SUBSEQUENT MARRIAGE CONCEIVED PRIOR TO ITS TERMINATION
SHALL BE CONSIDERED LEGITIMATE;
(2) THE ABSOLUTE COMMUNITY OF PROPERTY OR THE CONJUGAL PARTNERSHIP, AS THE CASE
MAY BE, SHALL BE DISSOLVED AND LIQUIDATED, BUT IF EITHER SPOUSE CONTRACTED SAID
MARRIAGE IN BAD FAITH, HIS OR HER SHARE OF THE NET PROFITS OF THE COMMUNITY
PROPERTY OR CONJUGAL PARTNERSHIP PROPERTY SHALL BE FORFEITED IN FAVOR OF THE
COMMON CHILDREN OR, IF THERE ARE NONE, THE CHILDREN OF THE GUILTY SPOUSE BY A
PREVIOUS MARRIAGE OR IN DEFAULT OF CHILDREN, THE INNOCENT SPOUSE;
(3) DONATIONS BY REASON OF MARRIAGE SHALL REMAIN VALID, EXCEPT THAT IF THE DONEE
CONTRACTED THE MARRIAGE IN BAD FAITH, SUCH DONATIONS MADE TO SAID DONEE ARE
REVOKED BY OPERATION OF LAW;
(4) THE INNOCENT SPOUSE MAY REVOKE THE DESIGNATION OF THE OTHER SPOUSE WHO
ACTED IN BAD FAITH AS BENEFICIARY IN ANY INSURANCE POLICY , EVEN IF SUCH DESIGNATION
BE STIPULATED AS IRREVOCABLE; AND
(5) THE SPOUSE WHO CONTRACTED THE SUBSEQUENT MARRIAGE IN BAD FAITH SHALL BE
DISQUALIFIED TO INHERIT FROM THE INNOCENT SPOUSE BY TESTATE AND INTESTATE
SUCCESSION .
Ø Effects of termination of the subsequent marriage in Arts. 41-42:
1. The children of the subsequent marriage conceived prior to its termination shall
be considered legitimate.
§ This is so because the children were conceived either inside a:
1. Valid bigamous marriage; or
2. Valid marriage despite non-observance of Arts. 40, 52 and
53.
§ Subsequent marriages in cases of presumptive death under Art. 41 can
only be considered void if both spouses were in bad faith in contracting
the subsequent marriage. Hence, the children born therein are
illegitimate.
2. The absolute community of property or the conjugal partnership, as the case may
be, shall be dissolved and liquidated, but if either spouse contracted said marriage
in bad faith, his or her share of the net profits of the community property (ACP)
or conjugal partnership (CPG) property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse.
§ After payment of all debts and obligations of the ACP or CPG, the
spouses shall divide the property equally or in accordance with the
sharing stipulated in a valid marriage settlement, unless there has been
30
a voluntary waiver of share by either of the spouses upon the judicial
separation of property.
§ If either of the spouses acted in bad faith, the guilty spouse shall not
get his share in the net profits of the property regime.
• Such share shall be forfeited in favor of the following, in
order:
1. Common children;
2. Children by a previous marriage of the guilty
spouse; or
3. Innocent spouse.
§ For computing the net profits (NP) subject to forfeiture, the said profits
shall be the increase in value between the market value of the
community property at the time of the celebration of the marriage
(MVCM) and the market value at the time of its dissolution (MVD).
• NP = MVD – MVCM
3. Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law.
§ Donations are essentially gratuitous. Hence, when both parties are in
good faith, the donation by reason of marriage (donation propter
nuptias) shall be valid even if the subsequent marriage is terminated.
§ If the donee acted in bad faith in contracting the marriage, the donation
by reason of marriage ipso jure is terminated by operation of law.
• If both parties are in bad faith, the same rule is applied
because such marriage is void in accordance with Art. 44.
• Art. 44 further provides that where both parties are in bad
faith, testamentary dispositions made by one in favor of the
other are revoked by operation of law.
4. The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable.
§ If the innocent spouse opts to revoke, he can do so even if the
designation as beneficiary is irrevocable.
5. The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate
succession.
§ Art. 43 (4) will still apply even in cases where the parties to a
subsequent marriage are within the 5th civil degree for purposes of
succession. The disqualification was brought about by a voluntary act
done in bad faith.
§ If both parties in the subsequent marriage are in bad faith, such
marriage is void, and therefore dispositions made by one in favor of
the other are revoked by operation of law.
YAP, K. | ATENEO LAW

ART. 44. IF BOTH SPOUSES OF THE SUBSEQUENT MARRIAGE ACTED IN BAD FAITH, SAID Fig. 7.
MARRIAGE SHALL BE VOID AB INITIO AND ALL DONATIONS BY REASON OF MARRIAGE AND Annullable Marriages
TESTAMENTARY DISPOSITIONS MADE BY ONE IN FAVOR OF THE OTHER ARE REVOKED BY Marriage Rules / Requisites / Exceptions
OPERATION OF LAW. 1. Party was 18-21 years old, • Annullable at the instance of the:
and the marriage was 1. Party whose parent, guardian or person
solemnized without having substitute parental authority did
Ø Remember that Art. 44 clearly provides that the subsequent marriage shall be considered parental consent. not give his or her consent; and
void only if both spouses in the said subsequent marriage are in bad faith. 2. Parents, guardians, or person having
substitute parental authority over the
ART. 45. A MARRIAGE MAY BE ANNULLED FOR ANY OF THE FOLLOWING CAUSES, EXISTING AT party in that order.
THE TIME OF THE MARRIAGE: • RATIFICATION: When after attaining the age of
21, such party freely cohabited with the other and
(1) THAT THE PARTY IN WHOSE BEHALF IT IS SOUGHT TO HAVE THE MARRIAGE ANNULLED both lived together as husband and wife.
WAS EIGHTEEN YEARS OF AGE OR OVER BUT BELOW TWENTY-ONE, AND THE MARRIAGE WAS 2. Either party was of • There must be such a derangement of the mind to
SOLEMNIZED WITHOUT THE CONSENT OF THE PARENTS, GUARDIAN OR PERSON HAVING unsound mind. prevent the party from comprehending the nature
SUBSTITUTE PARENTAL AUTHORITY OVER THE PARTY, IN THAT ORDER, UNLESS AFTER of the contract and from giving it to his free and
ATTAINING THE AGE OF TWENTY-ONE, SUCH PARTY FREELY COHABITED WITH THE OTHER AND intelligent consent.
BOTH LIVED TOGETHER AS HUSBAND AND WIFE ; o Contemplates a situation wanting of
(2) THAT EITHER PARTY WAS OF UNSOUND MIND, UNLESS SUCH PARTY AFTER COMING TO consent.
REASON, FREELY COHABITED WITH THE OTHER AS HUSBAND AND WIFE; • Burden of proof of insanity rests upon him who
(3) THAT THE CONSENT OF EITHER PARTY WAS OBTAINED BY FRAUD, UNLESS SUCH PARTY alleges insanity, or seeks to avoid an act on
AFTERWARDS, WITH FULL KNOWLEDGE OF THE FACTS CONSTITUTING THE FRAUD, FREELY account of it.
COHABITED WITH THE OTHER AS HUSBAND AND WIFE ; o If, however, a previous state of insanity is
(4) THAT THE CONSENT OF EITHER PARTY WAS OBTAINED BY FORCE, INTIMIDATION OR UNDUE proved, the burden shifts to him who
INFLUENCE, UNLESS THE SAME HAVING DISAPPEARED OR CEASED, SUCH PARTY THEREAFTER asserts that the act was done while the
FREELY COHABITED WITH THE OTHER AS HUSBAND AND WIFE; person was sane.
(5) THAT EITHER PARTY WAS PHYSICALLY INCAPABLE OF CONSUMMATING THE MARRIAGE • RATIFICATION: When after coming to reason,
WITH THE OTHER, AND SUCH INCAPACITY CONTINUES AND APPEARS TO BE INCURABLE; OR such party freely cohabits with the other. (5-year
(6) THAT EITHER PARTY WAS AFFLICTED WITH A SEXUALLY-TRANSMISSIBLE DISEASE FOUND prescriptive period)
TO BE SERIOUS AND APPEARS TO BE INCURABLE. 3. Consent of either party was • Fraud – the non-disclosure or concealment of
obtained by fraud. certain circumstances which materially affect the
Ø The public policy herein is the permanency of the marriage relation – indissoluble and essence of marriage.
sacred, being the foundation upon which society rests. o There is no fraud when there is no
Ø Unlike a void marriage which is invalid form the beginning, an annullable/voidable concealment or non-disclosure.
marriage is considered valid up to the time it is terminated. • Refer to Fig. 8 for the list of frauds.
Ø The grounds for annulment are only those specified by law; the list is exclusive. • RATIFICATION: Unless after having full
§ The exclusivity of the grounds is in line with the policy of the state to enhance knowledge of the facts constituting the fraud, such
the permanence of marriage. party cohabits with the other. (5-year prescriptive
Ø Ratification of annullable marriages – if there are circumstances to show that, despite the period)
presence of the defects discussed herein, the parties nevertheless subsequently manifest 4. Consent of either party was • Vitiated consent – obtained by force, intimidation
their approval of the marital union (ex. freely cohabits), a decree of annulment cannot obtained by force, or undue influence.
properly issue. intimidation or undue o Force or duress – physical and mental
§ Does not apply to Art. 45 (5) and (6). influence. compulsion which the victim may be
• The reason is that these grounds are not based on defective consent like unable to resist, and may be physical or
the others, but are based on the fact that the impotency or disease is moral.
incurable. o Intimidation – when one of the parties is
§ If the aggrieved parties do not bring the suit within 5 years after the marriage compelled by a reasonable and well-
ceremony, they are barred forever from annulling the marriage. grounded fear of an imminent and grave
evil upon his person or property, or upon
the person or property of his spouse,

31 YAP, K. | ATENEO LAW


5. Either party was physically
incapable of consummating
the marriage, and such
incapacity continues and
appears to be incurable.
6. Either party was afflicted
with a sexually-
transmissible disease
(STD) found to be serious
and appears to be incurable.
descendants or ascendants, to give his
consent.
§ Age, sex and condition of the
parties shall be borne in mind.
o Undue influence – influence by which a
person is induced to act otherwise than by
their own free will or without adequate
attention to the consequences.
• Proven by preponderance of evidence.
• RATIFICATION: When the force, intimidation or
undue influence ceases, such party freely cohabits
with the other. (5-year prescriptive period)
• Requisites:
1. Continuing;
2. Incurable; and
3. Exists at the time of marriage.
• Permanent inability on the part of one of the
spouses to perform the complete act of sexual
intercourse.
• May be caused by a physical or structural defect
in the anatomy of one of the parties or it may be
due to chronic illness and inhibitions or fears
arising in whole or in part from psychophysical
conditions, and psychogenic causes.
• If the husband can attain erection but is
psychologically inhibited in engaging sexual
intercourse, such situation will not fall under
impotency as contemplated under the Family
Code.
• Whoever alleges the incapacity has the burden of
proving the same.
o The presumption is in favor of potency.
o Triennial cohabitation – if the wife
remains a virgin for at least 3 years after
cohabitation, the husband must show that
he was not impotent during the said
period and the burden will be upon him
to overcome the presumption of
impotency.
• A sterile person can engage in sexual coition, it
does not imply want of power for copulation; it is
not a ground contemplated herein.
• Requisites:
1. Serious; and
2. Incurable.
• Does not apply if the STD was obtained after the
marriage ceremony. However, it can be used as
evidence of sexual infidelity which is a ground for
legal separation.
32
ART. 46. ANY OF THE FOLLOWING CIRCUMSTANCES SHALL CONSTITUTE FRAUD REFERRED TO
IN NUMBER 3 OF THE PRECEDING ARTICLE:
(1) NON-DISCLOSURE OF A PREVIOUS CONVICTION BY FINAL JUDGMENT OF THE OTHER PARTY
OF A CRIME INVOLVING MORAL TURPITUDE;
(2) CONCEALMENT BY THE WIFE OF THE FACT THAT AT THE TIME OF THE MARRIAGE, SHE WAS
PREGNANT BY A MAN OTHER THAN HER HUSBAND;
(3) CONCEALMENT OF SEXUALLY TRANSMISSIBLE DISEASE, REGARDLESS OF ITS NATURE,
EXISTING AT THE TIME OF THE MARRIAGE; OR
(4) CONCEALMENT OF DRUG ADDICTION, HABITUAL ALCOHOLISM OR HOMOSEXUALITY OR
LESBIANISM EXISTING AT THE TIME OF THE MARRIAGE.
NO OTHER MISREPRESENTATION OR DECEIT AS TO CHARACTER, HEALTH, RANK, FORTUNE OR
CHASTITY SHALL CONSTITUTE SUCH FRAUD AS WILL GIVE GROUNDS FOR ACTION FOR THE
ANNULMENT OF MARRIAGE.
Fig. 8.
Frauds Contemplated in Art. 45 (3)
Concealment of Rules / Requisites / Exceptions
1. Previous conviction by • Moral turpitude – inherent baseness, vileness or
final judgment of the other depravity in the private and social duties which a
party of a crime involving man owes to his fellow men or to society in
moral turpitude. general.
• Generally, crimes punishable under the RPC are
crimes involving moral turpitude.
• It is not necessary that one of the parties
investigates the other to determine criminal
record, the burden is on the convicted party to
reveal the same.
2. Pregnancy by a man other • Maternity is always certain while paternity may
than the wife’s husband. be disputed.
• The concealment must have been done in bad
faith.
• Mere pregnancy is not sufficient, there must be
concealment of such. If she did not inform the
man, but such pregnancy was readily apparent to
the man, he cannot claim lack of knowledge.
3. Sexually transmissible • In case of fraud, the nature or gravity is irrelevant.
disease, regardless of its It is enough that there was concealment.
nature, existing at the time
of marriage.
4. Drug addiction, habitual • Habitual drunkenness or intemperance – the
alcoholism, or persistent habit of becoming intoxicated whereby
homosexuality or he has lost the power or will to control his
lesbianism existing at the appetite for intoxicating liquor, as where he
time of marriage. indulges in intoxication whenever the temptation
is presented and the opportunity offered.
YAP, K. | ATENEO LAW

o Applies even if there be intervals when Sane spouse without Any time before the death
he entirely refrains from the use of knowledge of insanity of the insane spouse
intoxicating drinks. before the marriage
o Reason is that it renders him unfit for the 2. Either party was of Any relative, guardian or
Any time before the death
duties of the marital relation and unsound mind. person having legal charge
of either party
disqualifies him from properly rearing of the insane person
and caring for the children. During a lucid interval or
Insane spouse
• The ground is not homosexuality or lesbianism after regaining sanity
per se, but the concealment of such sexual 3. Consent of either party Within 5 years after the
Injured party
orientation. was obtained by fraud. discovery of the fraud
o Does not serve the purpose of the law 4. Consent of either party Within 5 years from the
mandating a heterosexual relationship. was obtained by force, time the force, intimidation
Injured party
intimidation or undue or undue influence
influence. disappeared or ceased
ART. 47. THE ACTION FOR ANNULMENT OF MARRIAGE MUST BE FILED BY THE FOLLOWING
5. Either party was
PERSONS AND WITHIN THE PERIODS INDICATED HEREIN:
physically incapable of
consummating the
(1) FOR CAUSES MENTIONED IN NUMBER 1 OF A RTICLE 45 BY THE PARTY WHOSE PARENT OR
marriage, and such
GUARDIAN DID NOT GIVE HIS OR HER CONSENT, WITHIN FIVE YEARS AFTER ATTAINING THE
incapacity continues
AGE OF TWENTY-ONE , OR BY THE PARENT OR GUARDIAN OR PERSON HAVING LEGAL CHARGE
and appears to be
OF THE MINOR, AT ANY TIME BEFORE SUCH PARTY HAS REACHED THE AGE OF TWENTY-ONE ; Within 5 years after the
incurable. Injured party
(2) FOR CAUSES MENTIONED IN NUMBER 2 OF A RTICLE 45, BY THE SAME SPOUSE, WHO HAD marriage
NO KNOWLEDGE OF THE OTHER'S INSANITY; OR BY ANY RELATIVE OR GUARDIAN OR PERSON
6. Either party was
HAVING LEGAL CHARGE OF THE INSANE, AT ANY TIME BEFORE THE DEATH OF EITHER PARTY ,
afflicted with a
OR BY THE INSANE SPOUSE DURING A LUCID INTERVAL OR AFTER REGAINING SANITY;
sexually-transmissible
(3) FOR CAUSES MENTIONED IN NUMBER 3 OF A RTICLE 45, BY THE INJURED PARTY, WITHIN disease (STD) found to
FIVE YEARS AFTER THE DISCOVERY OF THE FRAUD ;
be serious and appears
(4) FOR CAUSES MENTIONED IN NUMBER 4 OF A RTICLE 45, BY THE INJURED PARTY, WITHIN to be incurable.
FIVE YEARS FROM THE TIME THE FORCE, INTIMIDATION OR UNDUE INFLUENCE DISAPPEARED
OR CEASED ; ART. 48. IN ALL CASES OF ANNULMENT OR DECLARATION OF ABSOLUTE NULLITY OF
(5) FOR CAUSES MENTIONED IN NUMBER 5 AND 6 OF ARTICLE 45, BY THE INJURED PARTY, MARRIAGE, THE COURT SHALL ORDER THE PROSECUTING ATTORNEY OR FISCAL ASSIGNED TO
WITHIN FIVE YEARS AFTER THE MARRIAGE. 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.

Ø Annulment cases are actions in “rem,” for they concern the status of the parties, and status IN THE CASES REFERRED TO IN THE PRECEDING PARAGRAPH, NO JUDGMENT SHALL BE BASED
affects or binds the whole word. UPON A STIPULATION OF FACTS OR CONFESSION OF JUDGMENT.
o The “res” is the relation between the said parties, or their marriage tie.
o Jurisdiction over the same depends upon the nationality or domicile of the
parties, not the place of the celebration of the marriage (locus celebrationis). Ø The procedure for annulment and declaration of nullity is now governed by Supreme Court
Ø Prescriptive period – the time within which a case can be filed in court. En Banc Resolution in A.M. No. 00-11-01-SC, effective March 15, 2003.
o After filing of the complaint with the proper Regional Trial Court, the defendant
Fig. 9. shall be given 15 days from receipt of the summons and of a copy of the
Annulment: Parties and Prescriptive Periods complaint within which to file an answer.
Defect Who May File Prescriptive Period § If defendant fails to answer, he cannot be declared in default, and the
Party whose parent or Court will order the full-blown hearing of the case where the fiscal
1. Party was 18-21 years Within 5 years after shall appear on behalf of the State to make sure that there is no
guardian did not give
old, and the marriage attaining the age of 21 collusion or that the evidence is not fabricated.
consent
was solemnized • The Court shall order the fiscal to investigate whether a
Parent or guardian or person
without parental Any time before such party collusion between the parties exists, and if none, to intervene
having legal charge of the
consent. reaches the age of 21 for the State in order to see that evidence is not fabricated.
minor
• If such order is issued, and the petitioner does not appear
claiming that she does not want to reveal her evidence

33 YAP, K. | ATENEO LAW


prematurely to the fiscal, the annulment case may be
dismissed by the Court upon motion of the fiscal. (Tolentino
v. Villanueva, 1974)
§ If the defendant answers, the issues of the case are considered joined
and, thereafter, the Court shall order the hearing of the case. The fiscal
shall likewise appear on behalf of the State.
• The inquiry of the fiscal can focus upon any relevant matter
that may indicate whether the proceedings for annulment,
nullity or legal separation are fully justified or not. (Brown
v. Yambao, 1957)
o In cases of erroneous judgment, this would not prevent the decree from having
legal effect. An erroneous judgment is not a void judgment. (Chereau v.
Fuentebella, 1922)
o No valid compromise is legally possible on the issue of the validity of marriage.
(Mendoza v. CA, 1967)
o In annulment and nullity cases, the prosecuting attorney (fiscal) must be present.
§ The Office of the Solicitor General (OSG), although not specifically
mentioned, intervenes considering that the issue of the validity of
marriage is vested with public interest – defensor vinculi – defender of
the marital bond.
§ Duties:
1. To defend a valid marriage; and
2. To expose an invalid one.
§ Active participation is necessary. In a case where the fiscal merely filed
a manifestation that there was no collusion and where he merely
entered his appearance at certain hearings but was not heard of
anymore, the SC remanded the case. (Sin v. Sin, 2001)
• However, partial voluntary separation of property agreed
upon by the parties via a compromise agreement duly
approved by the Court prior to the JDN is valid, so long as
the compromise agreement for the separation of property did
not touch on the merits of the nullity or annulment case.
(Maquilan v. Maquilan, 2007)
• Where it is clear that the litigation was characterized by a no-
holds-barred contest and not by collusion (defendant filed
answer and was represented by counsel who filed several
pleadings and actively participated in the case), the non-
intervention of the fiscal or prosecuting attorney is not fatal
to the validity of the proceedings. (Tuason v. CA, 1996)
o Collusion – where, for purposes of getting an annulment or nullity decree, the
parties come up with an agreement making it appear that the marriage is defective
due to the existence of any of the valid grounds.
§ The commission of a matrimonial offense, or the creation of the
appearance of having committed it, with the consent or privity of the
other party, or under an arrangement between the spouses, has been
held to be collusion.
§ There must be an arrangement by the parties to make it appear that a
ground existed or had been committed although it was not, or that the
parties connived to bring about a matrimonial case even in the absence
of grounds therefor.
34
o A judge who does not order an investigation for collusion when the situation falls
squarely within the rules for him to order such investigation can be subject to
administrative sanction. (Corpus v. Ochotorena, 2004)
Ø An annulment or nullity decree cannot be issued by the Court on the sole basis of a
stipulation of facts, or a confession of judgment. (Cardens v. Cardenas and Rinen, 1955)
o Stipulation of facts – an admission by both parties made in court agreeing to the
existence of the act constituting the ground for annulment or for the declaration
of nullity of the marriage.
o Confession of judgment – an admission made in court by the respondent or
defendant admitting fault as invoked by the plaintiff to sever the marriage ties.
o Both must be sufficiently supported or corroborated by other independent
substantial evidence to support the main ground relied upon.
§ Out-of-court admissions are admissible.
Ø There was no grave abuse of discretion on the part of a judge in a nullity case to issue a
judgment deciding the merits of the nullity case and only thereafter decide on the other
incidents such as the issues on property, custody and visitation rights. (Yu v. Reyes-Carpio,
2011)
o Also applicable in annulment cases.
ART. 49. DURING THE PENDENCY OF THE ACTION AND IN THE ABSENCE OF ADEQUATE
PROVISIONS IN A WRITTEN AGREEMENT BETWEEN THE SPOUSES, THE C OURT SHALL PROVIDE
FOR THE SUPPORT OF THE SPOUSES AND THE CUSTODY AND SUPPORT OF THEIR COMMON
CHILDREN. THE COURT SHALL GIVE PARAMOUNT CONSIDERATION TO THE MORAL AND
MATERIAL WELFARE OF SAID CHILDREN AND THEIR CHOICE OF THE PARENT WITH WHOM THEY
WISH TO REMAIN AS PROVIDED TO IN TITLE IX. IT SHALL ALSO PROVIDE FOR APPROPRIATE
VISITATION RIGHTS OF THE OTHER PARENT.
Ø Pendente lite – during pendency.
Ø The support of the spouses and the custody and support of the common children, during
pendency, shall be governed by whatever agreement the parties have made with respect to
the same.
o Should the Court find the agreement inadequate, it may disregard the same and
make the necessary provisions which, in its sound discretion, would be adequate
under the circumstances.
o Principally, the spouses and their children shall be supported from the properties
of the ACP or CPG, as the case may be, during the pendency of the suit.
§ In nullity cases where the Court provisionally (temporarily) gives
support pendente lite to a spouse who, at the end of the case, has been
found to be not entitled to the same because his or her marriage with
the one giving support is void ab initio, the Court shall order
reimbursement, with legal interest from the dates of actual payment.
o The Court shall give paramount consideration to the moral and material welfare
of the children and their choice of the parent with whom they wish to remain.
§ Art. 213 – no child under 7 years of age shall be separated from the
mother, unless the court finds compelling reasons to order otherwise.
Ø While custody is awarded to a particular parent, this does not deprive the other parent from
exercising his or her visitation rights, unless the court, for some compelling reason,
deprives him or her of this right.
o Parents have the natural right, as well as a moral and legal duty, to care for their
children, see to their proper upbringing and safeguard their best inrerest and
welfare. (Silva v. CA, 1997)
YAP, K. | ATENEO LAW

ART. 50. THE EFFECTS PROVIDED FOR BY PARAGRAPHS (2), (3), (4) AND (5) OF ARTICLE 43
AND BY A RTICLE 44 SHALL ALSO APPLY IN THE PROPER CASES TO MARRIAGES WHICH ARE
DECLARED AB INITIO OR ANNULLED BY FINAL JUDGMENT UNDER ARTICLES 40 AND 45.
THE FINAL JUDGMENT IN SUCH CASES SHALL PROVIDE FOR THE LIQUIDATION, PARTITION AND
DISTRIBUTION OF THE PROPERTIES OF THE SPOUSES, THE CUSTODY AND SUPPORT OF THE
COMMON CHILDREN , AND THE DELIVERY OF THIRD PRESUMPTIVE LEGITIMES, UNLESS SUCH
MATTERS HAD BEEN ADJUDICATED IN PREVIOUS JUDICIAL PROCEEDINGS.
ALL CREDITORS OF THE SPOUSES AS WELL AS OF THE ABSOLUTE COMMUNITY OR THE
CONJUGAL PARTNERSHIP SHALL BE NOTIFIED OF THE PROCEEDINGS FOR LIQUIDATION.
IN THE PARTITION, THE CONJUGAL DWELLING AND THE LOT ON WHICH IT IS SITUATED, SHALL
BE ADJUDICATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 102 AND 129.
Ø The judgment of annulment or nullity of marriage shall state the factual and the legal basis
for its dispositive conclusion.
o Should a court render a judgment which is not in conformity with the allegations
in a pleading or which grants a relief which is not based on the pleadings, the
judgment is void for being coram-non-judice – not before a judge – a legal term
typically used to indicate a legal proceeding that is outside the presence of a judge
(without a judge), with improper venue, or without jurisdiction.
§ However, even if a judgment was void but was not assailed in a motion
for reconsideration (MR) and therefore not made an issue on appeal,
such void judgment shall not be set aside and will continue to be
effective. (Lam v. Chua, 2004)
Ø Insofar as void marriages are concerned, paragraphs 2, 3, 4 and 5 of Art. 43 (effects of
dissolution) apply only to the subsequent void marriage contracted by a spouse of a prior
void marriage before the latter is judicially declared void. (Valdes v. RTC, 1996)
o The ruling in Nicdao Cariño v. Cariño, that a subsequent marriage celebrated in
violation of Art. 40 is void because it is bigamous and therefore the property
regime in the said subsequent void marriage is co-ownership under Art. 148 of
the Family Code, is inaccurate. The Valdez ruling clearly applies what Art. 50
provides.
Ø Unless there is an MR or appeal made after the decision, such decision will become final
upon the expiration of 15 days from receipt of the parties of the decision.
o Upon finality, the Entry of Judgment shall be issued, and subsequently a Decree
of Absolute Nullity of Marriage or Annulment of Marriage.
§ This decree shall be the best evidence of nullity or annulment of
marriage.
§ The decree will issue only after the registration of the Entry of
Judgment in the proper LCRs, and in cases of subsequent void
marriages under Art. 40, after registration of the approved partition and
distribution of properties and delivery of legitimes.
35
ART. 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.
THE CHILDREN OR THEIR GUARDIAN OR THE TRUSTEE OF THEIR PROPERTY MAY ASK FOR THE
ENFORCEMENT OF THE JUDGMENT.
THE DELIVERY OF THE PRESUMPTIVE LEGITIMES HEREIN PRESCRIBED SHALL IN NO WAY
PREJUDICE THE ULTIMATE SUCCESSIONAL RIGHTS OF THE CHILDREN ACCRUING UPON THE
DEATH OF EITHER OF BOTH OF THE PARENTS; BUT THE VALUE OF THE PROPERTIES ALREADY
RECEIVED UNDER THE DECREE OF ANNULMENT OR ABSOLUTE NULLITY SHALL BE CONSIDERED
AS ADVANCES ON THEIR LEGITIME.
Ø Legitime – that part of the testator’s property which he cannot dispose of because the law
has reserved it for certain heirs who are, therefore, called compulsory heirs.
o To protect the legitime of the children against the result of subsequent marriages
that might be contracted after an annulment or its declaration as void.
o Presumptive legitime – a presumption of what will remain at the time of death.
The basis of the presumption is that properties of the persons involved at the time
this particular situation arises would be the same as when he dies which is not a
fact.
o Actual legitime – that which is present at the time of death.
Ø The presumptive legitime shall be computed as of the date of the final judgment of the trial
court.
o Shall be delivered either in:
1. Cash;
2. Property; or
3. Sound securities.
o Exception: When the parties, by mutual agreement judicially approved, had
already provided for such matters.
Ø General Rule: In void marriages, the delivery of the presumptive legitime is not required.
o Exception: When there is a void subsequent marriage resulting from the non-
observance of Art. 40.
Ø Since the common children are materially affected by the nullity or annulment judgment
insofar as the presumptive legitime is concerned, they are specially granted by law legal
standing to seek the enforcement of the judgment.
Ø A “Petition for the Correction of Entries” under Rule 108 of the Rules of Court, not a
“Petition for Declaration of a Nullity of Marriage” under the Family Code, is the proper
remedy for cancellation of entries in a marriage certificate, considering that there was no
actual marriage to speak of where the petitioner participated as the bride. (Republic v.
Olaybar, 2014)
ART. 52. THE JUDGMENT OF ANNULMENT OR OF ABSOLUTE NULLITY OF THE MARRIAGE, THE
PARTITION AND DISTRIBUTION OF THE PROPERTIES OF THE SPOUSES AND THE DELIVERY OF THE
CHILDREN'S PRESUMPTIVE LEGITIMES SHALL BE RECORDED IN THE APPROPRIATE CIVIL
REGISTRY AND REGISTRIES OF PROPERTY; OTHERWISE, THE SAME SHALL NOT AFFECT THIRD
PERSONS.
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ART. 53. EITHER OF THE FORMER SPOUSES MAY MARRY AGAIN AFTER COMPLIANCE WITH THE § If the child was conceived at a time when the parents do not suffer any
REQUIREMENTS OF THE IMMEDIATELY PRECEDING ARTICLE ; OTHERWISE, THE SUBSEQUENT
legal impediment to marry each other, the subsequent marriage of such
MARRIAGE SHALL BE NULL AND VOID.
parents will legitimize the child pursuant to Art. 178 of the Family
Code.
Ø Under Art. 53, the children conceived or born inside the void subsequent marriage are
Ø Rules for liquidation and partition: legitimate.
1. In case of nullity of marriage, the properties shall be liquidated in accordance o Ex. The marriage of A and B is annulled. A, even before the liquidation of his
with the ordinary rules of co-ownership. conjugal properties with B and without delivering the presumptive legitime of
2. In voidable marriage, the properties shall be liquidated in accordance with the their common legitimate child, subsequently marries X.
rules provided for under the chapters in the ACP and the CPG. § The said marriage is void but any child conceived or born inside such
3. If there were a pre-nuptial agreement providing Separation of Property Regime void marriage is legitimate.
(SPR) governed the marriage, then there is no need for liquidation and partition.
4. Non-compliance shall be a cause for non-issuance of decree of nullity or RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF
annulment. VOIDABLE MARRIAGES
Ø Recording in the LCR and Registry of Property is necessary to bind third persons, and for (SUPREME COURT EN BANC RESOLUTION, A.M. 02-11-12-SC)
the parties to be able to validly contract a subsequent marriage. MARCH 15, 2003
o Refers to the LCR of the city or municipality where:
1. The court that issued the decision is functioning. THINGS TO REMEMBER
2. The marriage was solemnized.
o It is the duty of the successful petitioner to send the copy of the final decree to Petition for Declaration of Absolute Nullity of Void Marriages
the proper LCRs.
o It is the duty of the clerk of court to ascertain whether the same has been 1. Who may file a Petition for Declaration of Absolute Nullity of Void Marriage?
registered, and if not, to send a copy of said decree to the LCRs. o Solely the husband or the wife.
Ø Remember that the delivery of presumptive legitimes is necessary only in cases of void 2. Where should the petition be filed?
subsequent marriages under Art. 40. Otherwise, no delivery is necessary after a marriage o Family Court.
is judicially declared void. (Valdes v. RTC, 1996) 3. Does the action prescribe?
o An action or defense for the declaration of absolute nullity of void marriage shall
ART. 54. CHILDREN CONCEIVED OR BORN BEFORE THE JUDGMENT OF ANNULMENT OR not prescribe – because there was no marriage in the first place.
ABSOLUTE NULLITY OF THE MARRIAGE UNDER A RTICLE 36 HAS BECOME FINAL AND 4. What must be alleged?
EXECUTORY SHALL BE CONSIDERED LEGITIMATE. CHILDREN CONCEIVED OR BORN OF THE o Complete facts showing that either or both parties were psychologically
SUBSEQUENT MARRIAGE UNDER A RTICLE 53 SHALL LIKEWISE BE LEGITIMATE. incapacitated from complying with the essential marital obligations – at the time
of the celebration – even if such capacity becomes manifest only after its
celebration.
Ø General Rules: § Physical manifestations, if any, indicative of psychological incapacity.
1. Children conceived and born outside a valid marriage or inside a void marriage
are illegitimate. Petition for Annulment of Voidable Marriages
2. Children conceived or born inside an annullable or voidable marriage are
legitimate. 1. Who may file a Petition for Declaration of Absolute Nullity of Void Marriage?
3. Children conceived and born inside a void marriage are illegitimate. o Refer to Fig. 9 on page 33 in the compilation of enumerations.
§ Exceptions: 2. Does the action prescribe?
1. Art. 54 – children conceived or born before the finality of the o Refer to Fig. 9 on page 33 in the compilation of enumerations.
JDN shall be considered legitimate; and
2. Children conceived or born of the subsequent marriage Applicable for both petitions
under Art. 53 (compliance with requirements) shall likewise
be legitimate. Ø Venue of the petition.
Ø Children born before the finality of the judgment of nullity in psychological incapacity o Family Court of the province or city where the petitioner or respondent has been
cases, or non-compliance with Arts. 52 and 53 cases, shall be considered legitimate. residing for at least 6 months prior to the date of filing.
o However, this does not include children conceived and born before the marriage o For non-resident respondents, where he may be found in the Philippines, at the
ceremony of the parents but to those conceived or born after the marriage election of the petitioner.
ceremony of the parents but before the final judgment of nullity. Ø Contents and form of the petition.
§ The child conceived and born before the marriage ceremony is o Complete facts constituting the cause of action.
illegitimate.
36 YAP, K. | ATENEO LAW

o Names and ages of the common children, and specify the regime governing their § Shall contain:
property relations, as well as the properties involved. 1. Date of pre-trial conference; and
§ If there is no adequate provision in a written agreement, the petitioner 2. Order directing the parties to filed and serve their respective
may apply for a provisional order for spousal support, custody and pre-trial briefs.
support of common children, visitation rights, administration of § Notice shall be served separately on the parties and their respective
community or conjugal property, and other matters. counsels as well as the public prosecutor.
o Must be verified and accompanied by a certification against forum shopping. § Notice shall be sent to respondent even if he fails to answer.
§ Forum shopping – when applicants filed in multiple branches/courts in o Contents of pre-trial brief:
order to obtain a favorable judgment. 1. Statement of willingness of the parties to enter into arguments;
o Filed in 6 copies. 2. Concise statement of their respective claims together with applicable
§ Copy of the petition shall be served to: laws and authorities;
1. Office of the Solicitor General; and 3. Admitted facts and proposed stipulation of facts;
2. Office of the City or Provincial Prosecutor. 4. Evidence to be presented;
Ø Rules for Summons – governed y Rule 14 of the Rules of Court. 5. Number and names of witnesses; and
o Respondent cannot be located or whereabouts unknown 6. Such other matters as the court may require.
1. Publication once a week for 2 consecutive weeks in a newspaper of Ø Effect of failure to appear at pre-trial.
general circulation in the Philippines and in such places as the court o Petitioner fails to appear personally – the case shall be dismissed, unless his
may order; and counsel or a duly authorized representative appears and provides a valid excuse.
2. Copy of the summons shall be served on the respondent at his last o Respondent fails to appear personally – the court shall proceed with the pre-trial
known address. and require the public prosecutor to investigate whether collusion exists.
o Summons to be published shall contain: Ø Pre-trial Conference.
1. Title of the case; o The court may refer the issues to a mediator – assists the parties in reaching an
2. Docket number; agreement on matters not prohibited by law.
3. Nature of petition; o If no mediation or if it fails, the court shall proceed with the pre-trial conference.
4. Principal grounds of the petition and reliefs prayed for; and Ø Pre-trial Order.
5. Directive for the respondent to answer within 30 days from the last o Shall recite in detail:
issue of publication. 1. Matters taken up in the conference;
Ø Motion to Dismiss. 2. Action taken thereon;
o Only ground allowed is lack of jurisdiction over the subject matter or over the 3. Amendments allowed on the pleadings; and
parties. 4. Agreements or admissions made y the parties on any of the matters
o Any other ground that might warrant a dismissal of the case may be raised as an considered.
affirmative defense in an answer. Ø Prohibited compromise.
Ø Answer. 1. Civil status of persons;
o Filed within 15 days from the service of summons, or within 30 days from the 2. Validity of a marriage or legal separation;
last issue of publication. The answer must be verified by respondent himself and 3. Ground for legal separation;
not by counsel or attorney-in-fact. 4. Jurisdiction of courts;
o If no answer, the court shall not declare him or her in default. 5. Future support; and
o If no answer or if the answer does not tender an issue, the court shall order the 6. Future legitime.
public prosecutor to investigate whether collusion exists between the parties.
Ø Investigation by the public prosecutor. Ø Trial.
o Submit his report within 1 month after receipt of the court order. o The presiding judge shall personally conduct the trial of the case.
o If collusion exists, he shall state the basis thereof in his report. o The grounds must be proved. No summary judgment, or confession or judgment
o If no collusion exists, the court shall set the case for pre-trial. shall be allowed.
Ø Social worker. o Court may order exclusion of persons from the court room.
o May be required by the court to conduct a case study and submit the Ø Decision.
corresponding report at least 3 days before the pre-trial, and at any stage o Shall be issued only after compliance with Arts. 50-51 of the Family Code.
necessary. o Becomes final after 15 days from notice to the parties.
Ø Pre-trial. Ø Appeal.
o Mandatory – on motion or motu proprio, the court shall set the pre-trial after the o No appeal unless the appellant has filed a motion for reconsideration (MR) or
last pleading has been served and filed, or upon receipt of the report of the public new trial within 15 days from notice of judgment.
prosecutor that no collusion exists.
o Notice of pre-trial.
37 YAP, K. | ATENEO LAW

RULE ON PROVISIONAL ORDERS
(SUPREME COURT EN BANC RESOLUTION, A.M. 02-11-12-SC)
MARCH 15, 2003
Ø When issued.
o At any time during the proceeding, the court, motu proprio or upon application
under oath of any of the parties, guardian or designated custodian, may issue
provisional orders and protection orders with or without a hearing.
o Enforced immediately, with or without a bond.
Ø Spousal support.
o If no adequate provisions in a written agreement, the spouses may be supported
from the properties of the ACP or CPG.
o Court may award support to either spouse in such amount and for such period as
it may deem necessary.
o Factors considered:
1. Whether applicant is custodian of the child and circumstances make it
appropriate for that spouse not to seek outside employment;
2. Time necessary to acquire sufficient education and training to enable
spouse to seek employment;
3. Duration of the marriage;
4. Comparative financial resources of the spouses;
5. Needs and obligations of each spouse;
6. Contribution of each spouse to the marriage;
7. Age and health of the spouses;
8. Physical and emotional conditions of the spouses;
9. Ability of the supporting spouse to give support; and
10. Other factors.
Ø Child support.
o The common children of the spouses shall be supported from the properties of
the absolute community or the conjugal partnership.
o Either parent may be ordered by the court to give an amount necessary for the
support, maintenance, and education of the child – in proportion to the resources
or means of the giver and to the necessities of the recipient.
o Factors considered:
1. Financial resources of the custodial and non-custodial parent and those
of the child;
2. Physical and emotional health of the child and his or her special needs
and aptitudes;
3. Standard of living the child has been accustomed to; and
4. Non-monetary contribution that the parents will make toward the care
and well-being of the child.
Ø Child custody.
o The best interests of the child shall be considered as well as his/her material and
moral welfare.
o Factors considered:
1. Agreement of the parties;
2. Desire and ability of each parent to foster an open and loving
relationship between the child and the other parent;
3. Child’s health, safety, and welfare;
4. Any history of child or spousal abuse;
38
5. Nature and frequency of contact with both parents;
6. Habitual use of alcohol or regulated substances;
7. Marital misconduct;
8. Most suitable physical, emotional, spiritual, psychological and
educational environment; and
9. Preference of the child.
§ If over 7 years of age and of sufficient discernment, unless
the parent chosen is unfit.
o Order of preference:
1. Both parents jointly;
2. Either parent taking into account all relevant considerations;
3. Surviving grandparent, or if many, the grandparent chosen by the child
over 7 years of age and of sufficient discernment, unless the person
chosen is unfit;
4. Eldest brother or sister over 21 years of age, unless unfit or
disqualified;
5. Child’s actual custodian over 21 years of age, unless unfit or
disqualified; or
6. Any other person deemed by the court suitable to provide proper care
and guidance for the child.
Ø Visitation rights.
o Appropriate visitation rights shall be given to the parent who is not awarded the
custody of the child, unless found unfit or disqualified.
Ø Hold Departure Order.
o Pending resolution of the petition, no child of the parties shall be brought out of
the country without prior order from the court.
o The court may order a hold departure order motu proprio or upon application
under oath.
o A copy of the order shall be furnished to:
1. Department of Foreign Affairs;
2. Bureau of Immigration; and
3. Deportation of the Department of Justice.
o Information contained:
1. Name, date and place of birth, place of last residence of the person
against whom a hold departure order has been issued;
2. Complete title and docket number of the case;
3. Specific nature of the case;
4. Date of the hold departure order; and
5. (Optional) Recent photograph.
o The court may recall the order motu proprio or upon a verified motion of any of
the parties after summary hearing.
Ø Order of protection.
o The court may issue an order requiring any person:
1. To stay away from the home, school, business, or place of employment
of the child, other parent or any other party;
2. To refrain from harassing, intimidating, or threatening such child or
other parent or any person to whom custody of the child is awarded;
3. To refrain from acts of commission or omission that create an
unreasonable risk to the health, safety, or welfare of the child;
4. To permit a parent, or a person entitled to visitation by a court order or
a separation agreement, to visit the child at stated periods;
YAP, K. | ATENEO LAW
5. To permit a designated party to enter the residence during a specific
period in order to take personal belongings not contested in a
proceeding pending with the Family Court; and
6. To comply with such orders as are necessary for the protection of the
child.
Ø Administration of common property.
o If a spouse, without just cause, abandons the other or fails to comply with his or
her family obligations, the court may, upon application of the aggrieved party,
issue a provisional order appointing the applicant or a third person as receiver or
sole administrator of the common property subject to such precautionary
conditions it may impose.
o Receiver may not dispose of or encumber any common property or specific
separate property of either spouse without authority of the court.
o The provision order shall be registered in the proper Register of Deeds.
TITLE TWO: LEGAL SEPARATION
ART. 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 THE PETITIONER, A COMMON CHILD, OR
A CHILD OF THE PETITIONER, TO ENGAGE IN PROSTITUTION, OR CONNIVANCE IN SUCH
CORRUPTION OR INDUCEMENT;
(4) FINAL JUDGMENT SENTENCING THE RESPONDENT TO IMPRISONMENT OF MORE THAN SIX
YEARS, EVEN IF PARDONED ;
(5) D RUG ADDICTION OR HABITUAL ALCOHOLISM OF THE RESPONDENT ;
(6) LESBIANISM OR HOMOSEXUALITY OF THE RESPONDENT;
(7) CONTRACTING BY THE RESPONDENT OF A SUBSEQUENT BIGAMOUS MARRIAGE, WHETHER
IN THE PHILIPPINES OR ABROAD;
(8) SEXUAL INFIDELITY OR PERVERSION;
(9) ATTEMPT BY THE RESPONDENT AGAINST THE LIFE OF THE PETITIONER; OR
(10) ABANDONMENT OF PETITIONER BY RESPONDENT WITHOUT JUSTIFIABLE CAUSE FOR MORE
THAN ONE YEAR.

FOR PURPOSES OF THIS ARTICLE, THE TERM "CHILD" SHALL INCLUDE A CHILD BY NATURE OR
BY ADOPTION.

Ø A decree of legal separation does not affect the marital status of the parties. It does not
dissolve the marriage.
o It is nothing more than a “bed-and-board” separation of the spouses.
Ø Also known as “relative divorce.”
o The Family Code, like the Civil Code, does not admit absolute divorce.
o A divorce is a dissolution of the bond of matrimony, based on the theory of a
valid marriage, for some cause arising after the marriage; while an annulment
proceeding is maintained upon the theory that, for some cause existing at the time
of their marriage ceremony, the marriage is terminable.
Ø The grounds mentioned in the article herein are exclusive.

(1) Repeated physical violence
or grossly abusive conduct
against the petitioner, a
common child, or a child of the
petitioner.
39
Fig. 10
Legal Separation
• Must be upon:
1. Petitioner;
2. Common child; or
3. Child of the petitioner.
• Must be inflicted with:
1. Bad faith; and
2. Malice.
• Does not cover violence upon the child of the
respondent or the guilty spouse, but may be a ground
for suspension or termination of parental authority
under Art. 231 (1) of the Family Code.
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(2) Physical violence or moral
pressure to compel the
petitioner to change religious
or political affiliation.
(3) Attempt of respondent to
corrupt or induce the petitioner,
a common child, or a child of
the petitioner, to engage in
prostitution, or connivance in
such corruption or inducement.
• Physical violence – the infliction of bodily harm.
• The frequency of the act, not the severity of the
same, is the determinative factor under this ground.
o However, even if it is not repeated, such
may constitute grossly abusive conduct
which may warrant the issuance of a legal
separation decree.
• Grossly abusive conduct is determined on a case-to-
case basis.
o Ex. When one spouse uses offensive
language continually against the other
with the intent and fixed purpose of
causing unhappiness.
• One incident of physical violence or moral pressure
to compel the change in religious affiliation or the
change in political affiliation can be a ground for
legal separation.
• Involves the human rights concept of the right to
accept one another’s political beliefs.
o The couple should learn to live with each
other’s political ideas. If they cannot live
together as such, how can we live together
as a nation sharing different political
ideas?
• Must be against:
1. Petitioner;
2. Common child; or
3. Child of the petitioner.
• Parental duties violated:
1. To provide their unemancipated children
with moral and spiritual guidance;
2. To instruct them by right precept and good
example; and
3. To protect them from bad company and
prevent them from acquiring habits
detrimental to their health, studies and
morals.
• It cannot be any other immoral act, otherwise the
undue stretching of the import of the article will not
serve the policy of the law of discouraging legal
separation.
• Mere “attempt” is enough to be a ground for legal
separation.
• Does not cover violence upon the child of the
respondent or the guilty spouse, but may be a ground
for suspension or termination of parental authority
under Art. 231 (1) of the Family Code.
40
(4) Final judgment sentencing
the respondent to imprisonment
of more than 6 years, even if
pardoned.
(5) Drug addiction or habitual
alcoholism of the respondent.
(6) Lesbianism or
homosexuality of the
respondent.
(7) Contracting by the
respondent of a subsequent
bigamous marriage, whether in
the Philippines or abroad.
(8) Sexual infidelity or
perversion.
(9) Attempt by the respondent
against the life of the
petitioner.
(10) Abandonment of
petitioner by respondent
without justifiable cause for
more than 1 year.
• The offense herein need not necessarily be against
the other spouse, their common children or the
petitioner’s children, but against anybody.
• The judgment must be “final.”
• The extent is the same as those in annulment cases.
However, the difference is that here, the grounds can
exist even after the marriage ceremony.
• Lesbianism and homosexuality deal with sexual
orientation that do not by themselves affect the
mental state of a person in relation to his or her
judgment.
• The ground can exist even after the marriage
ceremony.
• Bigamy – the act of illegally contracting a second
marriage despite full knowledge that the first
marriage is still validly existing or without obtaining
the needed judicial declaration of presumptive death
of the first spouse who was absent for 4 or 2
consecutive years pursuant to Art. 41 of the Family
Code.
• Violates the obligation of mutual love, respect and
fidelity.
• Although adultery and concubinage are included
herein, other acts short of such are enough so long
as said acts committed by one spouse would
constitute a clear betrayal of the trust of his or her
spouse by having intimate love affairs with other
persons.
• Sexual perversion includes not only such behavior
with third persons, but even with the spouse.
o Unless condoned.
o Ex. Oral sex, bestiality.
• Must proceed from an evil design and not from any
justifiable cause, ie. self defense.
• The criminal attempt can be proven by
preponderance of evidence in the civil case for legal
separation.
o No conviction is necessary.
• A criminal attempt to kill a spouse is clearly an act
of moral depravity.
• Must be:
1. Willful;
2. Intent to desert/No intent of returning;
3. Without justifiable cause; and
4. More than 1 year.
YAP, K. | ATENEO LAW

• Willful – when there is a design to forsake the other
spouse intentionally, or without cause and,
therefore, break up the marital union.
• Mere severance of the relationship is not sufficient,
there must be a wrongful intent to desert, continued
for the statutory period.
• Physical separation alone is not sufficient.
o There must be absolute cessation of
marital relations, duties and rights, with
the intention of perpetual separation.
• A separation in which both parties concur is not a
willful desertion of one by the other.
• The computation of the 1 year period does not
include the time during which the offending spouse
has been insane.
• Abandonment:
o A spouse is deemed to have abandoned
the other when he/she has left the conjugal
dwelling without intention of returning for
a period of 3 months, or has failed within
such period to give any information as to
his or her whereabouts.
o Prima facie presumed to have no intention
of returning to the conjugal dwelling.
ART. 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;
(4) WHERE BOTH PARTIES HAVE GIVEN GROUND FOR LEGAL SEPARATION;
(5) WHERE THERE IS COLLUSION BETWEEN THE PARTIES TO OBTAIN DECREE OF LEGAL
SEPARATION; OR
(6) WHERE THE ACTION IS BARRED BY PRESCRIPTION.
ART. 57. AN ACTION FOR LEGAL SEPARATION SHALL BE FILED WITHIN FIVE YEARS FROM THE
TIME OF THE OCCURRENCE OF THE CAUSE.
Fig. 11
Grounds for Denying Legal Separation
(1) Where the aggrieved party • Condonation – the act of forgiving the offense after
has condoned the offense or act its commission.
complained of. o Implies a condition of future good
behavior by the offending spouse.
41
(2) Where the aggrieved party
has consented to the
commission of the offense or
act complained of.
(3) Where there is connivance
between the parties in the
commission of the offense or
act constituting the ground for
legal separation.
(4) Where both parties have
given ground for legal
separation.
(5) Where there is collusion
between the parties to obtain
the decree of legal separation.
(6) Where the action is barred
by prescription.
ART. 58. AN ACTION FOR LEGAL SEPARATION SHALL IN NO CASE BE TRIED BEFORE SIX
MONTHS SHALL HAVE ELAPSED SINCE THE FILING OF THE PETITION.
• Cooling-off Period – designed to give the parties enough time to further contemplate their
positions with the end in view of attaining reconciliation between them.
o Subsequent offense revokes the
condonation and revives the original
offense.
• Failure of the husband to look actively for his
adulterous wife after she left the conjugal dwelling
does not constitute condonation or consent of the
wife’s adulterous acts. (Ocampo v. Florenciano,
1960)
o She “left” him. It was not his duty to
search for her, but her duty to return.
• Consent – when either of the spouses agreed to do
or did not object, despite full knowledge, to the act
giving rise to a ground for legal separation, before
such act was in fact committed. May be deduced
from the acts of the parties.
• Difference with condonation is that here, the consent
was given before the commission of the act. In
condonation, it is done after the act was committed.
• Volenti non fit injuria – one is not legally injured if
he has consented to the act complained of or was
willing that it should occur.
• Doctrine of unclean hands – he who comes into
equity must come with clean hands.
• When 2 persons act in bad faith, they should be
considered as having acted in good faith towards
each other.
• Collusion is a corrupt agreement, while connivance
is a corrupt consenting.
• For collusion, there must be an agreement between
the spouses looking to the procuring of a divorce.
• Must be filed within 5 years from the occurrence of
the cause.
o The time of discovery of the ground for
legal separation is not material in counting
the prescriptive period.
o Justice Puno – the law assumes that if you
discover it after 5 years, forgiveness is
already the order of the day, and no longer
recrimination.
YAP, K. | ATENEO LAW
o Unless exempted by law, failure to observe the cooling-off period is a ground to
set aside a decision granting legal separation.
• What is prevented during the period is the hearing on the merits with respect to the validity
or invalidity of the ground for legal separation.
o Other incidents such as custody, alimony and support pendent lite may be heard
inside the cooling-off period.
o A motion to dismiss may likewise be filed if there is a ground to do so.
• The 6-month cooling-off period requirement can be dispensed with if the ground for legal
separation involves violence against the woman or the child. (Sec. 19 of R.A. 9262: VAWC)
1. Physical violence – acts that include bodily or physical harm.
2. Sexual violence – an act which is sexual in nature, committed against a woman
or her child.
3. Psychological violence – acts or omissions causing or likely to cause mental or
emotional suffering of the victim.
4. Economic abuse – acts that make or attempt to make a woman financially
dependent.
ART. 62. DURING THE PENDENCY OF THE ACTION FOR LEGAL SEPARATION, THE PROVISIONS OF
ARTICLE 49 SHALL LIKEWISE APPLY TO THE SUPPORT OF THE SPOUSES AND THE CUSTODY AND
SUPPORT OF THE COMMON CHILDREN.
Ø If the petition is denied, the court cannot compel the parties to live with each other as
cohabitation is purely a personal act. (Arroyo v. Vasquez, 1921)
Ø In the absence of a written agreement between the spouses, the Court shall designate either
of them or a third person to administer the absolute community or conjugal partnership
property.
Ø An action for legal separation involves merely bed-and-board separation of the spouses,
hence is purely personal.
o Being such, it follows that the death of one party to the action causes the death
of the action itself.
ART. 63. THE DECREE OF LEGAL SEPARATION SHALL HAVE THE FOLLOWING EFFECTS:

ART. 59. NO LEGAL SEPARATION MAY BE DECREED UNLESS THE COURT HAS TAKEN STEPS
TOWARD THE RECONCILIATION OF THE SPOUSES AND IS FULLY SATISFIED, DESPITE SUCH
EFFORTS, THAT RECONCILIATION IS HIGHLY IMPROBABLE.
ART. 60. NO DECREE OF LEGAL SEPARATION SHALL BE BASED UPON A STIPULATION OF FACTS
OR A CONFESSION OF JUDGMENT.
IN ANY CASE, THE COURT SHALL ORDER THE PROSECUTING ATTORNEY OR FISCAL ASSIGNED
TO IT TO TAKE STEPS TO PREVENT COLLUSION BETWEEN THE PARTIES AND TO TAKE CARE
THAT THE EVIDENCE IS NOT FABRICATED OR SUPPRESSED.
(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 A RTICLE 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.

Ø Stipulation of Facts – practically an admission made in court by both parties agreeing to

the existence of the act constituting the ground for annulment or for the declaration of Ø The finality of the separation is complete after the lapse of the period to appeal the decision
nullity of the marriage. to a higher court even if the effects, such as the liquidation of the property, have not yet
Ø Confession of Judgment – the admission made in court by the respondent or defendant been commenced nor terminated.
admitting fault as invoked by the plaintiff to sever the marriage ties.
Ø The quantum of evidence is preponderance of evidence. Fig. 12
Ø No prejudicial question and no suspension of criminal cases for adultery or concubinage Effects of Legal Separation
can prosper because the case of legal separation is not one “to enforce the liability arising
from the offense.” (1) The spouses shall be • Even if they can legally live apart, a spouse can still
entitled to live separately from be held criminally liable for bigamy, concubinage or
each other, but the marriage adultery if he or she commits the act.
ART. 61. AFTER THE FILING OF THE PETITION FOR LEGAL SEPARATION, THE SPOUSES SHALL BE bond shall not be severed.
ENTITLED TO LIVE SEPARATELY FROM EACH OTHER.
(2) The absolute community or • The portion pertaining to the offending spouse shall
THE COURT, IN THE ABSENCE OF A WRITTEN AGREEMENT BETWEEN THE SPOUSES, SHALL the conjugal partnership shall be forfeited in favor of, in the following order:
DESIGNATE EITHER OF THEM OR A THIRD PERSON TO ADMINISTER THE ABSOLUTE COMMUNITY be dissolved and liquidated; 1. Common children;
OR CONJUGAL PARTNERSHIP PROPERTY. THE ADMINISTRATOR APPOINTED BY THE COURT but 2. Children of the guilty spouse by a
SHALL HAVE THE SAME POWERS AND DUTIES AS THOSE OF A GUARDIAN UNDER THE RULES OF previous marriage; or
COURT. the offending spouse shall have 3. Innocent spouse.
no right to any share of the net • For purposes of computing the net profit, said profits
profits earned by the absolute shall be the increase in value between the market
community or the conjugal value of the community property at the time of the

42 YAP, K. | ATENEO LAW

partnership, which shall be
forfeited in accordance with
Art. 43 (2).
(3) The custody of the minor
children shall be awarded to
the innocent spouse, subject to
Art. 213.
(4) The offending spouse shall
be disqualified from inheriting
from the innocent spouse by
intestate succession.
Moreover, provisions in favor
of the offending spouse in the
will of the innocent spouse
shall be revoked by operation
of law.
celebration of the marriage and the market value at
the time of dissolution.
o NP = MVdissolution – MVcelebration.
• In all matters relating to the custody of the child, the
paramount interest of the child shall be the standard.
• The Court may even award custody to a third person
if both spouses are unfit to take care of the child.
• The law does not provide that such revocation by
operation of law will be rendered ineffectual in case
the legal separation decree is set aside by the court
upon manifestation of the parties that they have
reconciled.
o However, Art. 921 (4) provides that
disinheritance in a will shall be rendered
ineffectual upon the mutual reconciliation
of the spouses.
ART. 66. THE RECONCILIATION REFERRED TO IN THE PRECEDING A RTICLES SHALL HAVE THE
FOLLOWING CONSEQUENCES:
(1) THE LEGAL SEPARATION PROCEEDINGS, IF STILL PENDING, SHALL THEREBY BE
TERMINATED AT WHATEVER STAGE; AND
(2) THE FINAL DECREE OF LEGAL SEPARATION SHALL BE SET ASIDE, BUT THE SEPARATION OF
PROPERTY AND ANY FORFEITURE OF THE SHARE OF THE GUILTY SPOUSE ALREADY EFFECTED
SHALL SUBSIST, UNLESS THE SPOUSES AGREE TO REVIVE THEIR FORMER PROPERTY REGIME.
THE COURT'S ORDER CONTAINING THE FOREGOING SHALL BE RECORDED IN THE PROPER CIVIL
REGISTRIES.
ART. 67. THE AGREEMENT TO REVIVE THE FORMER PROPERTY REGIME REFERRED TO IN THE
PRECEDING ARTICLE SHALL BE EXECUTED UNDER OATH AND SHALL SPECIFY:
(1) THE PROPERTIES TO BE CONTRIBUTED ANEW TO THE RESTORED REGIME;
(2) THOSE TO BE RETAINED AS SEPARATED PROPERTIES OF EACH SPOUSE; AND
(3) THE NAMES OF ALL THEIR KNOWN CREDITORS, THEIR ADDRESSES AND THE AMOUNTS
OWING TO EACH .

ART. 64. AFTER THE FINALITY OF THE DECREE OF LEGAL SEPARATION, THE INNOCENT SPOUSE THE AGREEMENT OF REVIVAL AND THE MOTION FOR ITS APPROVAL SHALL BE FILED WITH THE
MAY REVOKE THE DONATIONS MADE BY HIM OR BY HER IN FAVOR OF THE OFFENDING SPOUSE ,
COURT IN THE SAME PROCEEDING FOR LEGAL SEPARATION, WITH COPIES OF BOTH FURNISHED
AS WELL AS THE DESIGNATION OF THE LATTER AS BENEFICIARY IN ANY INSURANCE POLICY,
TO THE CREDITORS NAMED THEREIN. AFTER DUE HEARING , THE COURT SHALL, IN ITS ORDER,
EVEN IF SUCH DESIGNATION BE STIPULATED AS IRREVOCABLE. THE REVOCATION OF THE
TAKE MEASURE TO PROTECT THE INTEREST OF CREDITORS AND SUCH ORDER SHALL BE
DONATIONS SHALL BE RECORDED IN THE REGISTRIES OF PROPERTY IN THE PLACES WHERE THE
RECORDED IN THE PROPER REGISTRIES OF PROPERTIES.
PROPERTIES ARE LOCATED. ALIENATIONS, LIENS AND ENCUMBRANCES REGISTERED IN GOOD
FAITH BEFORE THE RECORDING OF THE COMPLAINT FOR REVOCATION IN THE REGISTRIES OF
THE RECORDING OF THE ORDERING IN THE REGISTRIES OF PROPERTY SHALL NOT PREJUDICE
PROPERTY SHALL BE RESPECTED. THE REVOCATION OF OR CHANGE IN THE DESIGNATION OF
ANY CREDITOR NOT LISTED OR NOT NOTIFIED, UNLESS THE DEBTOR-SPOUSE HAS SUFFICIENT
THE INSURANCE BENEFICIARY SHALL TAKE EFFECT UPON WRITTEN NOTIFICATION THEREOF TO
SEPARATE PROPERTIES TO SATISFY THE CREDITOR'S CLAIM.
THE INSURED.

THE ACTION TO REVOKE THE DONATION UNDER THIS A RTICLE MUST BE BROUGHT WITHIN FIVE
YEARS FROM THE TIME THE DECREE OF LEGAL SEPARATION BECOME FINAL.
Ø Since donations are acts of liberality, the law gives the option to the innocent party whether
he or she will revoke the donation or the designation as beneficiary of the guilty party in
an insurance.
o In case of insurance benefits, it will be considered revoked upon written
notification thereof to the insured.
o In case of donations, the innocent spouse must file an action for revocation within
5 years from the time the decree of legal separation has become final.
§ However, if the donation is void, the right to bring an action does not
prescribe.
ART. 65. IF THE SPOUSES SHOULD RECONCILE, A CORRESPONDING JOINT MANIFESTATION
UNDER OATH DULY SIGNED BY THEM SHALL BE FILED WITH THE COURT IN THE SAME
PROCEEDING FOR LEGAL SEPARATION.
Ø The order containing the termination of the case or the setting aside of the decree, as the
case may be, shall be recorded in the proper civil registries.
o However, the separation of properties made shall, in the meantime, subsist.
o The parties, however, can enter into an agreement, which should be approved by
the court, reviving their previous property regime.
o The agreement shall contain:
1. Which properties shall remain separate;
2. Which properties shall be contributed to the revived property regime;
and
3. Names and addresses of the creditors and amounts of credit.
o The creditors must be furnished the motion seeking the approval of the
agreement.
Ø The recording in the registries of property shall not prejudice any creditor not listed or not
notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor’s
claim.
Ø The law does not provide the revival of what was disinherited as one of the effects of setting
aside a legal separation decree.
o Hence, the innocent spouse has the option of reinstituting the provisions in a will
previously made to the guilty spouse, but was revoked.

43 YAP, K. | ATENEO LAW


RULE ON LEGAL SEPARATION Ø Investigation report from public prosecutor.
(SUPREME COURT EN BANC RESOLUTION, A.M. 02-11-11-SC) o Within 1 month from the court order, the public prosecutor shall submit a report
MARCH 15, 2003 to the court on whether there is collusion and the service of summons on any
party, if any.
Ø Who may file? o If there is collusion, he shall state the basis thereof in his report.
o Solely the husband or the wife, as the case may be. § The court shall set the report for hearing. And if convinced, it shall
Ø When to file? dismiss the petition.
o Within 5 years from the time of the occurrence of the ground/cause. o If no collusion, the court shall set the case for pre-trial. The public prosecutor
Ø Contents and form. shall appear for the State.
o It shall allege the: Ø Social worker.
1. Complete facts constituting the cause; o The court may require a social worker to conduct a case study and to submit the
2. Names and ages of the common children; corresponding report at least 3 days before the pre-trial.
3. Property regime; Ø Pre-trial.
4. Properties involved; and o A pre-trial is mandatory. The court shall motu proprio set the pre-trial after the
5. Creditors. last pleading has been served and filed, or upon receipt of the report of the public
6. Verified and accompanied by a certification against forum shopping; prosecutor that no collusion exists.
7. Filed in 6 copies – petitioner shall within 5 days from filing furnish a o Must not be set within 6 months from the filing of the petition.
copy to the city or provincial prosecutor and the creditors, if any, and Ø Notice of pre-trial.
submit to the court proof of such service within the period. o Must contain:
Ø Venue. 1. Date of pre-trial conference; and
o Family court of the province or city where the petitioner or the respondent has 2. Order directing the parties to serve their pre-trial briefs.
been residing for at least 6 months prior to the date of filing. o Shall be served separately to the parties, their counsels and the public prosecutor.
o In case of non-resident, where he may be found in the Philippines, at the election o Shall be sent to the respondent despite failure to answer.
of the petitioner. Ø Contents of pre-trial brief:
Ø Rules on summons: 1. Statement of willingness of the parties to enter into agreements;
o If respondent not located at his given address, and cannot be ascertained by 2. Concise statement of their respective claims;
diligent inquiry, publication once a week for 2 consecutive weeks in a newspaper 3. Admitted facts and proposed stipulation of facts;
of general circulation in the Philippines and in such place as the court may order. 4. All evidence to be presented;
§ In addition, at the respondent’s last known address. 5. Number and names of the witnesses; and
o Summons to be published shall contain: 6. Other matters as the court may require.
1. Title of the case; Ø Effect of failure to appear at pre-trial.
2. Docket number; o Failure of petitioner to appear shall cause the dismissal of the case, unless his
3. Nature of the petition; counsel or duly authorized representative appears in court and provides a valid
4. Principal grounds of the petitioner and reliefs prayed for; and excuse for non-appearance.
5. Directive for respondent to answer within 30 days from the last issue o Failure of respondent to appear shall cause the court to proceed with the pre-trial
of publication. and require the public prosecutor to investigate the non-appearance of the
Ø Motion to dismiss. respondent.
o The only ground allowed is lack of jurisdiction over the subject matter or over § Public prosecutor must submit his report within 15 days.
the parties. § If no collusion, the court shall require the public prosecutor to
o Any other ground that might warrant the dismissal of the case may be raised as intervene for the state during the trial.
an affirmative defense in an answer. Ø Pre-trial conference.
Ø Answer. o The court may refer the issues to a mediator – assists the parties in reaching an
o The respondent’s answer must be filed either: agreement on matters not prohibited by law.
1. within 15 days from receipt of summons; or § Mediator shall render a report within 1 month from referral. May be
2. 30 days from the last issue in case of service of summons by extended.
publication. o In case mediation is not availed of or if it fails, the court shall proceed with the
o Must be verified by the respondent himself and not by counsel or attorney-in- pre-trial conference.
fact. Ø Pre-trial order.
o If respondent fails to answer, the court shall not declare him in default. o The proceedings in pre-trial shall be recorded.
o If no answer is filed, or when the answer does not tender an issue, the court shall o The court shall issue a pre-trial order which shall recite in detail:
order the public prosecutor to investigate whether collusion exists between the 1. Matters taken up in the conference;
parties. 2. Action taken thereon;
44 YAP, K. | ATENEO LAW

3. Amendments allowed on the pleading;
4. Agreements or admissions made by the parties; and
5. Any provisional order necessary.
o Show the action proceed to trial, the order shall contain:
1. Facts undisputed, admitted, and those which need not be proved;
2. Factual and legal issues;
3. Evidence;
4. Names of witnesses; and
5. Schedule of presentation of evidence.
o The parties shall not be allowed to present additional evidence or witnesses other
than those stated in the order, unless the court allows it to avoid manifest
injustice.
o The parties shall have 5 days from receipt of the pre-trial order to propose
corrections or modifications.
Ø Prohibited compromise:
1. Civil status;
2. Validity of marriage or legal separation;
3. Ground for legal separation;
4. Jurisdiction of courts;
5. Future support; and
6. Future legitime.
Ø Trial.
o The judge shall personally conduct the trial of the case.
§ No delegation shall be allowed, except as to matters involving property
relations of the spouses.
o The grounds for legal separation must be proved. No judgment on the pleadings,
summary judgment, or confession of judgment shall be allowed.
o The court may order the exclusion of the public from the courtroom, except those
who have a direct interest in the case.
Ø Memoranda.
o The court may require the parties and the public prosecutor to file memoranda
within 15 days from the date the trial is terminated.
o After such period, the case will be considered submitted for decision.
Ø Decision.
o The court shall deny the petition on the grounds in Fig. 11 on page 41.
o If the court grants the petition, it shall declare therein that the Decree of Legal
Separation shall be issued by the court only after full compliance with liquidation
under the Family Code.
§ However, in the absence of property, the court shall issue a Decree of
Legal Separation which shall be registered in the Civil Registries
where:
1. The marriage was recorded; and
2. Where the family court granting the separation is located.
o The decision shall likewise declare the effects in Fig. 12 on pages 42-43.
Ø Appeal.
o No appeal shall be allowed unless the appellant has filed an MR or new trial
within 15 days from notice of judgment.
o An aggrieved party or the Solicitor General may appeal by filing a Notice of
Appeal within 15 days from the notice of denial of the MR or new trial.
Ø Liquidation, partition and distribution, custody and support of minor children.
o Upon entry of the judgment granting the petition, and pending appeal, the family
court, on motion of either party, shall proceed with the:
45
1. Liquidation, partition and distribution of properties; and
2. Custody and support of the children.
Ø Issuance of Decree of Legal Separation.
o The court shall issue the decree after:
1. Registration of entry of judgment granting the petition in the civil
registries; and
2. Registration of the approved partition and distribution of the properties
of the spouses where the real properties are located.
Ø Registration and publication of Decree of Legal Separation; decree as best evidence.
o The prevailing party shall cause its registration in the Civil Registry and the NSO.
o In case service of summons was made by publication, the parties shall case the
publication of the Decree once in a newspaper of general circulation.
o Decree shall be best evidence of legal separation and shall serve as notice to third
parties concerning the properties of petitioner and respondent.
Ø Effect of death of party.
o In case of death at any stage of either party, the court shall order the case closed
and terminated without prejudice to the settlement of estate in proper proceedings
in regular courts.
o If party dies after entry of judgment, the same shall be binding.
Ø Petition for revocation of donations.
o Within 5 years from the finality of the decision, the innocent spouse may file a
petition under oath in the same proceeding for legal separation to revoke the
donations in favor of the offending spouse.
o The revocation shall be recorded in the Register of Deeds.
o Alienations, liens, and encumbrances registered in good faith before the
recording of the petition for revocation shall be respected.
o After issuance of the decree, the innocent spouse may revoke the designation of
the offending spouse as beneficiary in any insurance policy.
§ The revocation shall take effect upon written notification thereof to the
insurer.
Ø Decree of Reconciliation.
o Spouses may file a joint manifestation under oath, duly signed by the spouses, in
the same proceeding for legal separation.
o If reconciliation occurred during pendency, the court shall immediately issue an
order terminating the proceeding.
o If reconciliation occurred after judgment but before issuance of decree, the
spouses shall express in their manifestation whether they agree to revive the
former regime of their property relations or choose a new regime.
§ The court shall immediately issue a Decree of Reconciliation –
declaring the proceedings set aside and specifying the property regime
of the spouses.
o If reconciliation occurred after issuance of the decree, the court, upon proper
motion, shall issue a decree of reconciliation declaring therein that the decree is
set aside.
§ However, the separation of property and any forfeiture already effected
shall subsist, unless the spouses have agreed to revive their former
regime of property relations or adopt a new regime.
o The Decree of Reconciliation shall be recorded in the Civil Registries where the
marriage and the Decree of Legal Separation had been registered.
Ø Revival of property regime or adoption of another.
o In case of reconciliation, the parties shall file a verified motion for revival of
property regime relations or the adoption of another regime.
YAP, K. | ATENEO LAW

o It shall specify:
1. Properties to be contributed to the restored or new regime;
2. Properties to be retained as separate properties; and
3. Names of all creditors, addresses, and amounts owing to each.
o Creditors shall be furnished with copies of the motion and agreement.
o Court shall require spouses to cause the publication of their verified motion for
2 consecutive weeks in a newspaper of general circulation.
o After due hearing and the court decides to grant the motion, it shall issue an order
directing the parties to record the order in the proper registries of property within
30 days from receipt of a copy of the order and submit proof in compliance with
the same.
TITLE THREE: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
ART. 68. THE HUSBAND AND WIFE ARE OBLIGED TO LIVE TOGETHER, OBSERVE MUTUAL LOVE,
RESPECT AND FIDELITY, AND RENDER MUTUAL HELP AND SUPPORT.
Ø Since the husband and wife are obliged to live together, observe mutual respect and fidelity,
and render mutual help and support, there is virtue in making it as difficult as possible for
married couples – impelled by no better cause than their whims and caprices – to abandon
each other’s company.
Ø Procreation is also an essential marital obligation considering that such obligation springs
from the universal principle that procreation of children through sexual cooperation is the
basic end of marriage.
Ø Except for support, a court cannot validly issue a decision compelling the spouses to live
together, observe mutual love, respect, and fidelity.
o Only the moral obligation of the spouses constitutes the motivating factor for
making them observe the said duties and obligations which are highly personal.
Ø There can be no action for damages merely because of a breach of marital obligation.
o Other remedies can be availed of. (Ex. When a spouse in bad faith refuses to
comply with the obligations and if the property regime is separation of property,
he may be liable under Arts. 19, 20 and 21 of the Civil Code – Abuse of right.
Ø Under the Philippine law, a husband can be held liable for raping his wife.
o However, in case it is the legal husband who is the offender, the subsequent
forgiveness by the wife as the offended party shall extinguish the criminal action
or penalty, except when the marriage is void ab initio.
Ø If her repeated refusals are a “breach of the marriage contract” his remedy is in a
matrimonial court, not in violent and forceful self-help. (State of New Jersey v. Albert
Smith, 1981)
ART. 69. THE HUSBAND AND WIFE SHALL FIX THE FAMILY DOMICILE. IN CASE OF
DISAGREEMENT, THE COURT SHALL DECIDE.
THE COURT MAY EXEMPT ONE SPOUSE FROM LIVING WITH THE OTHER IF THE LATTER SHOULD
LIVE ABROAD OR THERE ARE OTHER VALID AND COMPELLING REASONS FOR THE EXEMPTION.
HOWEVER, SUCH EXEMPTION SHALL NOT APPLY IF THE SAME IS NOT COMPATIBLE WITH THE
SOLIDARITY OF THE FAMILY.
Ø Domicile – the place where the parties intend to have their permanent residence with the
intention of always returning even if they have left it for some time.
46
Ø The spouses can have one domicile but many residences.
Ø A minor follows the domicile of his or her parents.
Ø General rule: The choice of domicile shall be agreed upon by the spouses.
o Exception: In case of disagreement, the court shall decide.
o The proceeding shall be summary in nature.
Ø General rule: The spouses must live together.
o Exception: A spouse may live separately from the other only if the latter should
(1) live abroad or there are (2) other valid and compelling reasons for the
exemption.
§ Exception to the exception: However, such exception shall not apply
if the same is not compatible with the solidarity of the family.
ART. 70. THE SPOUSES ARE JOINTLY RESPONSIBLE FOR THE SUPPORT OF THE FAMILY. THE
EXPENSES FOR SUCH SUPPORT AND OTHER CONJUGAL OBLIGATIONS SHALL BE PAID FROM THE
COMMUNITY PROPERTY AND, IN THE ABSENCE THEREOF, FROM THE INCOME OR FRUITS OF
THEIR SEPARATE PROPERTIES. IN CASE OF INSUFFICIENCY OR ABSENCE OF SAID INCOME OR
FRUITS, SUCH OBLIGATIONS SHALL BE SATISFIED FROM THE SEPARATE PROPERTIES.
ART. 71. THE MANAGEMENT OF THE HOUSEHOLD SHALL BE THE RIGHT AND THE DUTY OF
BOTH SPOUSES. THE EXPENSES FOR SUCH MANAGEMENT SHALL BE PAID IN ACCORDANCE WITH
THE PROVISIONS OF ARTICLE 70.
ART. 72. WHEN ONE OF THE SPOUSES NEGLECTS HIS OR HER DUTIES TO THE CONJUGAL UNION
OR COMMITS ACTS WHICH TEND TO BRING DANGER, DISHONOR OR INJURY TO THE OTHER OR
TO THE FAMILY, THE AGGRIEVED PARTY MAY APPLY TO THE COURT FOR RELIEF.
Ø Arts. 94 and 121 provide that the Absolute Community of Property and Conjugal
Partnership of Gains, respectively, shall be liable for the support of the spouses, their
common and legitimate children of either spouse.
o In absence thereof, Arts. 70 and 71 provide that the expenses shall be taken from
the income or fruits of the spouses’ separate properties.
Ø The management of the household shall be the right and duty of both spouses regardless of
the property regime involved in the marriage.
o Even if the family house is owned by only one spouse, the other spouse still has
the right and duty relative to the management of the household.
o In the event one spouse neglects his/her duties, the aggrieved party may apply to
the court for the following reliefs:
1. Legal separation;
2. Nullifying the marriage;
3. Receivership;
4. Judicial separation of property; or
5. Authority to be sole administrator of the community property or
conjugal partnership.
YAP, K. | ATENEO LAW

ART. 73. EITHER SPOUSE MAY EXERCISE ANY LEGITIMATE PROFESSION, OCCUPATION,
BUSINESS OR ACTIVITY WITHOUT THE CONSENT OF THE OTHER. THE LATTER MAY OBJECT
ONLY ON VALID, SERIOUS, AND MORAL GROUNDS.

IN CASE OF DISAGREEMENT, THE COURT SHALL DECIDE WHETHER OR NOT:

(1) THE OBJECTION IS PROPER; AND

(2) BENEFIT HAS OCCURRED TO THE FAMILY PRIOR TO THE OBJECTION OR THEREAFTER. IF THE
BENEFIT ACCRUED PRIOR TO THE OBJECTION, THE RESULTING OBLIGATION SHALL BE
ENFORCED AGAINST THE SEPARATE PROPERTY OF THE SPOUSE WHO HAS NOT OBTAINED
CONSENT.

THE FOREGOING PROVISIONS SHALL NOT PREJUDICE THE RIGHTS OF CREDITORS WHO ACTED IN
GOOD FAITH.

Ø The husband and the wife can engage in any lawful enterprise or profession.
o The law does not require that a spouse has to get the prior consent of the other
before entering into any legitimate profession, occupation, business or activity.
Ø If the husband compels the wife to desist from pursuing a profession or any other conduct
which the wife has the right to engage in, these are considered acts of violence against
women under RA 9262 (Anti-Violence Against Women and their Children Law).
Ø The exercise by a spouse of a legitimate profession, occupation, business or activity is
always considered to redound to the benefit of the family.
o Except isolated transactions which must be proven to have redounded as such.
Ø Disagreements regarding certain professions, occupations, etc. shall only be anchored on
valid, serious and moral grounds.
o In case of such disagreement, the court shall decide if the objection is proper.
o The proceeding shall be summary in nature.
Ø An obligation incurred as a result of a spouse’s exercise of his or her legitimate profession
or as a result of a spouse’s undertaking of a legitimate business, is an obligation redounding
to the benefit of the family, and therefore shall be shouldered by the community property
or conjugal partnership.
o Rules:
1. If the benefit accrued prior to the objection, the resulting obligation
shall be enforced against the community property or conjugal
partnership.
2. If the benefit accrued thereafter, such obligation shall be enforced
against the separate property of the spouse who has not obtained
consent.
§ Applies even if it redounded to the benefit of the family.
o For the exception to apply, the innocent spouse must have no knowledge of the
other spouse’s engagement in an immoral activity prior to his/her objection.
o Any creditor who is in good faith will not be prejudiced and he or she can collect
from the community or conjugal property by demanding from the husband the
payment of the obligation.

47 YAP, K. | ATENEO LAW


TITLE IV: PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
CHAPTER ONE: GENERAL PROVISIONS
ART. 74. THE PROPERTY RELATIONSHIP BETWEEN HUSBAND AND WIFE SHALL BE GOVERNED
IN THE FOLLOWING ORDER:
(1) BY MARRIAGE SETTLEMENTS EXECUTED BEFORE THE MARRIAGE;
(2) BY THE PROVISIONS OF THIS CODE; AND
(3) BY THE LOCAL CUSTOMS.
Ø By the contract of marriage, a man and woman enter a joint life, acting, living and working
as one.
o Because of their “oneness,” Art. 1490 provides that the husband and the wife
cannot sell property to each other, except when a separation of property was
agreed upon in the marriage settlement, or when there has been a judicial
separation of property.
o Furthermore, the rule that there is no right of accretion in cases of donation made
to several is not applicable to a donation jointly made to husband and wife.
Between them, there shall be a right of accretion, unless the donor has otherwise
provided.
Ø The law recognizes that the property relations of the husband and the wife shall primarily
be governed by their marriage settlement.
o Marriage settlement must be:
1. In writing;
2. Signed by the contracting parties; and
3. Made prior to the celebration of the marriage.
o The requirement of being in writing goes into both the enforceability and the
validity of the marriage settlement. An oral marriage settlement therefore is void
and cannot be ratified.
Ø The parties are free to stipulate in their marriage settlements as long as such stipulations
are not contrary to law, morals, good customs, public order or public policy.
Ø Prohibited stipulations:
o Arts. 88 and 107 – the parties cannot stipulate that the property regime will begin
at a time other than the precise moment of the celebration of marriage.
o Art. 87 – the parties cannot stipulate that they can make any substantial donation
to each other during their marriage.
o Arts. 103 and 130 – when there has been death of one spouse and no liquidation
of the properties of the previous marriage, the property regime governing the
subsequent marriage must be the separation of property regime.
§ Hence, the surviving spouse who remarries cannot execute a marriage
settlement providing for a regime other than complete separation of
property.
§ This is an exception to the general rules that the marriage settlement
must be in writing, and that in the absence of such, the property regime
will be absolute community property.
48
ART. 75. THE FUTURE SPOUSES MAY, IN THE MARRIAGE SETTLEMENTS, AGREE UPON THE
REGIME OF ABSOLUTE COMMUNITY, CONJUGAL PARTNERSHIP OF GAINS, COMPLETE
SEPARATION OF PROPERTY, OR ANY OTHER REGIME. IN THE ABSENCE OF A MARRIAGE
SETTLEMENT, OR WHEN THE REGIME AGREED UPON IS VOID, THE SYSTEM OF ABSOLUTE
COMMUNITY OF PROPERTY AS ESTABLISHED IN THIS CODE SHALL GOVERN.
Ø If there is no marriage settlement agreed upon or if the same is void, the Absolute
Community Property Regime will prevail.
Ø The parties can design their own property regime which is not in violation of any law.
o Ex. Mixed-Up Property Regime – the spouses shall retain as their own exclusive
property all their salaries earned during the marriage but will consider any real
estate purchased from the same as commonly owned while all personal properties
as exclusively owned.
Ø In order to bind third persons, the marriage settlement or any modification thereof must be
registered in the LCR where the marriage contract is recorded and in the proper registries
of property.
Ø Factors for weighing the fairness of the provisions of the marriage settlement:
1. Relative situation of the parties;
2. Respective ages;
3. Health and experience;
4. Spouse’s needs; and
5. Such factors as tend to show that the agreement was understandingly made.
Ø If some provisions are unfair, it can be maintained when the disadvantages spouse is shown
to have signed with an understanding of her rights to be waived or prejudiced or in any
manner affected by the agreement.
Ø General rule: The burden of proof is on the party claiming that the provisions of the
marriage settlement are unfair.
o Exception: When the contract is unreasonable and a presumption of concealment
arises, the burden shifts and it is incumbent upon the other party to prove validity.
Ø Local customs – a rule of conduct formed by repetition of acts uniformly observed as a
social rule, legally binding and obligatory.
o Such customs must be proved as a fact, according to the rules of evidence.
ART. 76. IN ORDER THAT ANY MODIFICATION IN THE MARRIAGE SETTLEMENTS MAY BE VALID,
IT MUST BE MADE BEFORE THE CELEBRATION OF THE MARRIAGE, SUBJECT TO THE PROVISIONS
OF ARTICLES 66, 67, 128, 135 AND 136.
ART. 77. THE MARRIAGE SETTLEMENTS AND ANY MODIFICATION THEREOF SHALL BE IN
WRITING, SIGNED BY THE PARTIES AND EXECUTED BEFORE THE CELEBRATION OF THE
MARRIAGE. THEY SHALL NOT PREJUDICE THIRD PERSONS UNLESS THEY ARE REGISTERED IN
THE LOCAL CIVIL REGISTRY WHERE THE MARRIAGE CONTRACT IS RECORDED AS WELL AS IN
THE PROPER REGISTRIES OF PROPERTIES.
Ø General rule: In order for modifications to be valid, it must be made before the celebration
of the marriage, in writing and signed by the parties.
o Exceptions:
1. Modification can be made after the marriage ceremony, but such post-
marriage modification shall need judicial approval and should only
YAP, K. | ATENEO LAW

refer to the instances provided in Arts. 66, 67, 128, 135 and 136 of the
Family Code.
2. In cases of abandonment or failure to comply with marital obligations,
the court, on petition by the aggrieved spouse, may issue a decree of
judicial separation of property.
ART. 78. A MINOR WHO ACCORDING TO LAW MAY CONTRACT MARRIAGE MAY ALSO EXECUTE
HIS OR HER MARRIAGE SETTLEMENTS, BUT THEY SHALL BE VALID ONLY IF THE PERSONS
DESIGNATED IN ARTICLE 14 TO GIVE CONSENT TO THE MARRIAGE ARE MADE PARTIES TO THE
AGREEMENT, SUBJECT TO THE PROVISIONS OF TITLE IX OF THIS CODE.
Ø [IMPLIEDLY REPEALED BY R.A. 6809] – emancipation/maturity upon reaching 18
years of age – no minor may now contract marriage.
ART. 79. FOR THE VALIDITY OF ANY MARRIAGE SETTLEMENT EXECUTED BY A PERSON UPON
WHOM A SENTENCE OF CIVIL INTERDICTION HAS BEEN PRONOUNCED OR WHO IS SUBJECT TO
ANY OTHER DISABILITY, IT SHALL BE INDISPENSABLE FOR THE GUARDIAN APPOINTED BY A
COMPETENT COURT TO BE MADE A PARTY THERETO.
Ø Civil interdiction – deprives the offender during the time of his sentence of the rights of
parental authority, or guardianship, either as to the person or property of any ward, of
marital authority, of the right to manage his property, and of the right to dispose of such
property by any act or any conveyance inter vivos.
Ø In case of a person upon whom a sentence of civil interdiction has been pronounced, it shall
be indispensable for the guardian, appointed by the court, to be made a party to the written
marriage settlement.
ART. 80. IN THE ABSENCE OF A CONTRARY STIPULATION IN A MARRIAGE SETTLEMENT, THE
PROPERTY RELATIONS OF THE SPOUSES SHALL BE GOVERNED BY PHILIPPINE LAWS,
REGARDLESS OF THE PLACE OF THE CELEBRATION OF THE MARRIAGE AND THEIR RESIDENCE.
THIS RULE SHALL NOT APPLY:
(1) WHERE BOTH SPOUSES ARE ALIENS;
(2) WITH RESPECT TO THE EXTRINSIC VALIDITY OF CONTRACTS AFFECTING PROPERTY NOT
SITUATED IN THE PHILIPPINES AND EXECUTED IN THE COUNTRY WHERE THE PROPERTY IS
LOCATED; AND
(3) WITH RESPECT TO THE EXTRINSIC VALIDITY OF CONTRACTS ENTERED INTO IN THE
PHILIPPINES BUT AFFECTING PROPERTY SITUATED IN A FOREIGN COUNTRY WHOSE LAWS
REQUIRE DIFFERENT FORMALITIES FOR ITS EXTRINSIC VALIDITY.
Ø Rules to remember:
1. If the contracting parties are Filipinos, their property relations will be governed
by Philippine laws in the absence of any agreement to the contrary. This rule
applies even if they are married abroad or even if they reside abroad.
2. When the properties are abroad, the extrinsic validity of such contract, whether
executed here or abroad, will not be governed by Philippine law.
3. If the contract were executed in the Philippines, the laws of the country where
the property is located may govern the extrinsic validity of the contact.
49
4. These rules shall not apply where both spouses are aliens married in the
Philippines.
ART. 81. EVERYTHING STIPULATED IN THE SETTLEMENTS OR CONTRACTS REFERRED TO IN THE
PRECEDING ARTICLES IN CONSIDERATION OF A FUTURE MARRIAGE, INCLUDING DONATIONS
BETWEEN THE PROSPECTIVE SPOUSES MADE THEREIN, SHALL BE RENDERED VOID IF THE
MARRIAGE DOES NOT TAKE PLACE. HOWEVER, STIPULATIONS THAT DO NOT DEPEND UPON THE
CELEBRATION OF THE MARRIAGES SHALL BE VALID.
Ø The consideration of a marriage settlement is the marriage itself. Hence, if the marriage
does not take place, the marriage settlement is generally void.
Ø The provisions in such marriage settlements are, however, separable – if there are
provisions which are invalid but do not affect the rest of the provisions stipulated in the
marriage settlement, only the invalid provisions will be rendered void while the rest will
continue to remain enforced.
o Furthermore, stipulations that do not depend upon the celebration of the marriage
shall be valid.
CHAPTER TWO: DONATIONS BY REASON OF MARRIAGE
ART. 82. DONATIONS BY REASON OF MARRIAGE ARE THOSE WHICH ARE MADE BEFORE ITS
CELEBRATION, IN CONSIDERATION OF THE SAME, AND IN FAVOR OF ONE OR BOTH OF THE
FUTURE SPOUSES.
Ø Donation by reason of marriage – donation propter nuptias – without onerous
consideration, the marriage being merely the occasion or motive for the donation, not its
cause.
o Being gratuitous – consideration is mere liberality of the donor – such remain
subject to reduction for inofficiousness upon the donor’s death, if they should
infringe the legitime of a forced heir.
Ø It is indispensable that a donation propter nuptias must be made prior to the celebration of
marriage.
Ø Donations excluded from these rules:
1. Those made in favor of the spouses after the celebration of the marriage;
2. Those executed in favor of the future spouses but not in consideration of
marriage; and
3. Those granted to persons other than the spouses even though they may be
founded on the marriage.
ART. 83. THESE DONATIONS ARE GOVERNED BY THE RULES ON ORDINARY DONATIONS
ESTABLISHED IN TITLE III OF BOOK III OF THE CIVIL CODE, INSOFAR AS THEY ARE NOT
MODIFIED BY THE FOLLOWING ARTICLES.
Ø Rules on ordinary donations under Title III of Book III of the Civil Code:
1. Donee must accept the donation personally, or through an authorized person with
a special power for the purpose, or with a general or sufficient power.
2. The donation of a movable may be made orally or in writing. In the former, the
simultaneous delivery of the thing representing the right donated is required.
YAP, K. | ATENEO LAW

3. In order that a donation of an immovable property may be valid, it must be made
in a public document, specifying the property donated and the value of the
charges which the donee must satisfy.
4. Acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the
donor.
§ If acceptance is made in a separate public document, the donor shall
be notified thereof in an authentic form and this step shall be noted in
both instruments.
Ø Donations propter nuptias of future property shall be governed by the provisions on
testamentary succession and the formalities of a will.
o Rules:
1. It may be handwritten, but in such case it must be:
a. Entirely handwritten;
b. Dated; and
c. Signed by the donor.
2. If it is not handwritten, it must be:
1. Subscribed at the end by the donor himself; or
2. Donor’s name written by some other person in his presence,
by his express direction; and
3. Attested and subscribed by 3 or more credible witnesses in
the presence of the donor and of one another.
ART. 84. IF THE FUTURE SPOUSES AGREE UPON A REGIME OTHER THAN THE ABSOLUTE
COMMUNITY OF PROPERTY, THEY CANNOT DONATE TO EACH OTHER IN THEIR MARRIAGE
SETTLEMENTS MORE THAN ONE-FIFTH OF THEIR PRESENT PROPERTY. A NY EXCESS SHALL BE
CONSIDERED VOID.
DONATIONS OF FUTURE PROPERTY SHALL BE GOVERNED BY THE PROVISIONS ON
TESTAMENTARY SUCCESSION AND THE FORMALITIES OF WILLS.
Ø Requisites for donation propter nuptias between future spouses:
1. Valid marriage settlement;
2. Property regime other than Absolute Community of Property;
§ Otherwise, the donation would be useless.
3. Donation contained in the marriage settlement must not be more than 1/5 of his
or her present property;
§ Does not apply when there is a marriage settlement providing for a
regime other then Absolute Community of Property, and that the
donation propter nuptias is contained in a separate public document.
§ However, such is still subject to Art. 752 – no person may give or
receive, by way of donation, more than what he may give or receive by
will. The donation shall be Inofficious in all that it may exceed this
limitation.
4. Donation must be accepted by the would-be spouse; and
5. It must comply with Title III of Book III of the Civil Code (Donations).
50
ART. 85. DONATIONS BY REASON OF MARRIAGE OF PROPERTY SUBJECT TO ENCUMBRANCES
SHALL BE VALID. IN CASE OF FORECLOSURE OF THE ENCUMBRANCE AND THE PROPERTY IS
SOLD FOR LESS THAN THE TOTAL AMOUNT OF THE OBLIGATION SECURED, THE DONEE SHALL
NOT BE LIABLE FOR THE DEFICIENCY. IF THE PROPERTY IS SOLD FOR MORE THAN THE TOTAL
AMOUNT OF SAID OBLIGATION, THE DONEE SHALL BE ENTITLED TO THE EXCESS.
Ø If the object of the donation is subject of an encumbrance (ex., mortgage, lien, etc.), the
donation is still valid. However, the donee’s rights are subject to such encumbrance.
ART. 86. A DONATION BY REASON OF MARRIAGE MAY BE REVOKED BY THE DONOR IN THE
FOLLOWING CASES :
(1) IF THE MARRIAGE IS NOT CELEBRATED OR JUDICIALLY DECLARED VOID AB INITIO EXCEPT
DONATIONS MADE IN THE MARRIAGE SETTLEMENTS, WHICH SHALL BE GOVERNED BY ARTICLE
81;
(2) WHEN THE MARRIAGE TAKES PLACE WITHOUT THE CONSENT OF THE PARENTS OR
GUARDIAN, AS REQUIRED BY LAW;
(3) WHEN THE MARRIAGE IS ANNULLED, AND THE DONEE ACTED IN BAD FAITH;
(4) UPON LEGAL SEPARATION, THE DONEE BEING THE GUILTY SPOUSE;
(5) IF IT IS WITH A RESOLUTORY CONDITION AND THE CONDITION IS COMPLIED WITH;
(6) WHEN THE DONEE HAS COMMITTED AN ACT OF INGRATITUDE AS SPECIFIED BY THE
PROVISIONS OF THE CIVIL CODE ON DONATIONS IN GENERAL.
Fig. 13
Revocation of Donation propter nuptias
(1) If the marriage is not Ø The donor has the option to revoke or maintain the
celebrated or judicially donation.
declared void ab initio Ø If the donation propeter nuptias is contained in the
except donations made in marriage settlement executed prior to a marriage that
the marriage settlements, does not take place, the donation shall be considered
which shall be governed by void pursuant to Art. 81.
Art. 81. Ø The right accrues once the marriage is not celebrated,
and prescribes in 5 years.
o However, if the donation is void as it is
contained in a marriage settlement, the action
does not prescribe.
Ø There must first be a judicial declaration of the nullity
of the marriage.
Ø Situations:
1. If a subsequent marriage is void pursuant to
Art. 40 in relation to Arts. 52 and 53 because
it has been contracted by a spouse of a prior
void marriage before the latter is judicially
declared void, the donation will be revoked by
operation of law if the donee-spouse
contracted the subsequent marriage in bad
faith.
2. In case there is bad faith on the part of both of
the contracting parties in a subsequent
YAP, K. | ATENEO LAW

marriage where one of them previously
obtained a judicial declaration of presumptive
death under Art. 41, such shall be revoked by
operation of law.
3. In all other cases where a marriage has been
judicially declared void on grounds other than
Arts. 40 in relation to 52 and 53, and under
Art. 44, then Art. 86(1) will apply – good faith
or bad faith is irrelevant.
4. If A is validly married to B and subsequently
marries X while the first valid marriage is
subsisting, the subsequent marriage is
bigamous and, therefore, any donation
propter nuptias given by X to A may or may
not be revoked by X after the finality of the
judicial declaration of nullity of the bigamous
marriage.
Ø If both contracting parties are in good faith, the donor,
after finality of the judicial declaration of nullity, is
likewise giben by law the option to revoke the donation
or not pursuant to Art. 86(1) of the Family Code.
(2) When the marriage Ø This applies to marriages involving a person of age 18-
takes place without the 21 who must secure the consent of the parents,
consent of the parents or guardians or person having substitute parental authority.
guardian, as required by Ø If not obtained, the marriage becomes annullable and
law. the donation propter nuptias may be revoked by the
donor.
o It is not required that the marriage should have
been annulled first before the donor may
revoke the donation.
o The donor has 5 years from the time he had
knowledge that the needed consent was not
obtained by the parties as it is only from that
time that the cause of action will accrue.
Ø If the donor knew of the non-consent before the
marriage, he may not yet revoke because the parents can
still give their consent at anytime prior to the marriage.
(3) When the marriage is Ø Any donation propter nuptias is revoked by law in case
annulled, and the donee where the marriage is annulled and the donee acted in
acted in bad faith. bad faith.
Ø The element of bad faith presupposes a corrupt attitude
towards the institution of marriage and should be
penalized most severely.
Ø If it is a movable property, the action shall prescribe
after 8 years from the time possession thereof. If
immovable, 30 years.
(4) Upon legal separation, Ø Donor has 5 years from the finality of the decree of legal
the donee being the guilty separation to file a case to revoke the donation.
spouse.
51
(5) If it is with a resolutory Ø Resolutory condition – gives rise to a right at the time
condition and the condition of perfection of the contract, but such right shall be
is complied with. extinguished upon the happening of the condition.
(6) When the donee has Ø Acts of ingratitude:
committed an act of 1. If the donee commits some offense against the
ingratitude as specified by person, honor or property of the donor, or of
the provisions of the Civil his wife or children under his parental
Code on donations in authority;
general. 2. If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even if proven, unless such was committed
against the donee himself, his wife or children
under his parental authority; or
3. If the donee unduly refuses the donor support
when the donee is legally or morally bound to
give support to the donor.
Ø If the donor decides to revoke the donation, he has 1
year from the time the donor had knowledge of the fact
of ingratitude and it was possible for him or her to bring
the suit.
ART. 87. EVERY DONATION OR GRANT OF GRATUITOUS ADVANTAGE, DIRECT OR INDIRECT,
BETWEEN THE SPOUSES DURING THE MARRIAGE SHALL BE VOID, EXCEPT MODERATE GIFTS
WHICH THE SPOUSES MAY GIVE EACH OTHER ON THE OCCASION OF ANY FAMILY REJOICING.
THE PROHIBITION SHALL ALSO APPLY TO PERSONS LIVING TOGETHER AS HUSBAND AND WIFE
WITHOUT A VALID MARRIAGE.
Ø The rationale for this rule is to prevent the exerting of undue influence by one spouse
against another.
Ø For the last sentence of Art. 87 – donation given by a person to his or her alleged partner –
to apply, it must be shown that the donation was made at a time when they were still living
together as husband and wife without the benefit of marriage.
Ø Indirect donations – because when they die, the donation will go to the other spouse:
1. To a stepchild who has no compulsory and/or legal heirs other than the other
spouse at the time of donation;
2. To a common child who has no compulsory and/or legal heirs other than the other
spouse at the time of donation;
3. To the parents of the other spouse;
4. To the other spouse’s adopted child who has no compulsory and/or legal heirs,
or in cases when, at the time of donation, the only surviving relative of the
adopted is the other spouse (parent of the adopted); or
5. To a common adopted child who has no other compulsory and/or legal heirs.
Ø Donations made by both spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a professional or vocational course or
other activity for self-improvement are valid.
Ø The validity of the donation cannot be challenged by those who bore absolutely no relation
to the parties to the transfer at the time it occurred and had no rights or interests in the
property in question at the time the transfer occurred.
Ø Reserva troncal – that the ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a brother or
YAP, K. | ATENEO LAW

sister, is obliged to reserve such property as he may have acquired by operation of law for
the benefit of relatives who are within the 3rd degree and who belong to the line from which
said property came.
CHAPTER THREE: SYSTEM OF ABSOLUTE COMMUNITY
SECTION ONE: GENERAL PROVISIONS
ART. 88. THE ABSOLUTE COMMUNITY OF PROPERTY BETWEEN SPOUSES SHALL COMMENCE AT
THE PRECISE MOMENT THAT THE MARRIAGE IS CELEBRATED. ANY STIPULATION, EXPRESS OR
IMPLIED, FOR THE COMMENCEMENT OF THE COMMUNITY REGIME AT ANY OTHER TIME SHALL
BE VOID.
Ø Absolute Community of Property (ACP) – all properties owned by the contracting parties
before the marriage ceremony and those which they may acquire thereafter shall comprise
the absolute community of property regime.
o In consonance with the traditional oneness of the Filipino family – in a majority
of Filipino families, the husband and the wife consider themselves co-owners of
all the property brought into and acquired during the marriage.
§ Before, the Civil Code provided that Conjugal Property of Gains
(CPG) was the default property regime.
o The spouses become co-owners of all the properties.
o No waiver of rights, interests, shares and effects of the ACP can be made except
upon judicial separation of property.
Ø Properties excluded from ACP:
1. Those excluded in the marriage settlement; and
2. Those enumerated in Art. 92:
a. Property acquired during the marriage by gratuitous title by either
spouse, and the fruits as well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor that they shall form
part of the community property;
b. Property for personal and exclusive use of either spouse. However,
jewelry shall form part of the community property;
c. Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as
the income, if any, of such property.
Ø ACP commences at the precise moment of the celebration of the marriage.
o Any stipulation, excess or implied, for the commencement of the community
regime at any other time shall be void.
o This provision was made in order to protect the spouses from each other – no one
may unduly influence the other by the reason that such spouse has more property
than the other.
Ø An alien married to a Filipino cannot have any interest in the community or partnership
property consisting of real estate or land. An alien cannot seek recovery of such land as his
or her share in the community or conjugal property. (Beumer v. Amores, 2012)
52
ART. 89. NO WAIVER OF RIGHTS, SHARES AND EFFECTS OF THE ABSOLUTE COMMUNITY OF
PROPERTY DURING THE MARRIAGE CAN BE MADE EXCEPT IN CASE OF JUDICIAL SEPARATION OF
PROPERTY.
WHEN THE WAIVER TAKES PLACE UPON A JUDICIAL SEPARATION OF PROPERTY, OR AFTER THE
MARRIAGE HAS BEEN DISSOLVED OR ANNULLED, THE SAME SHALL APPEAR IN A PUBLIC
INSTRUMENT AND SHALL BE RECORDED AS PROVIDED IN A RTICLE 77. THE CREDITORS OF THE
SPOUSE WHO MADE SUCH WAIVER MAY PETITION THE COURT TO RESCIND THE WAIVER TO THE
EXTENT OF THE AMOUNT SUFFICIENT TO COVER THE AMOUNT OF THEIR CREDITS.
ART. 90. THE PROVISIONS ON CO-OWNERSHIP SHALL APPLY TO THE ABSOLUTE COMMUNITY
OF PROPERTY BETWEEN THE SPOUSES IN ALL MATTERS NOT PROVIDED FOR IN THIS CHAPTER.
Ø ACP is a special type of co-ownership. Each co-owner may use the thing owned in common
provided he or she does so in accordance with the purpose for which it is intended and in
such a way as not to injure the interest of the co-ownership or prevent the other co-owners
from using it according to their rights.
o The difference is here, no waiver of rights, interests, shares and effects of the
ACP during the marriage can be made except in case of judicial separation of
property. This is so because the interest of the parties in the community property
is merely inchoate or an expectancy prior to liquidation. (Abalos v. Macatangay,
2004)
o The phrase “in case of judicial separation of property” covers the time period
during and after judicial separation.
o The creditors of the spouse who made such waiver may petition the court to
rescind the waiver to the extent of the amount sufficient to cover the amount of
their credits.
Ø A waiver that takes place without a judicial separation of property decree shall be void
because it is contrary to law and public policy.
o Pursuant to Art. 6 of the Civil Code, it is void because Art. 89 is a prohibitory
law as provided in Art. 5 of the Civil Code.
SECTION TWO: WHAT CONSTITUTES COMMUNITY PROPERTY
ART. 91. UNLESS OTHERWISE PROVIDED IN THIS CHAPTER OR IN THE MARRIAGE
SETTLEMENTS, THE COMMUNITY PROPERTY SHALL CONSIST OF ALL THE PROPERTY OWNED BY
THE SPOUSES AT THE TIME OF THE CELEBRATION OF THE MARRIAGE OR ACQUIRED
THEREAFTER.
YAP, K. | ATENEO LAW

ART. 92. THE FOLLOWING SHALL BE EXCLUDED FROM THE COMMUNITY PROPERTY:
(1) PROPERTY ACQUIRED DURING THE MARRIAGE BY GRATUITOUS TITLE BY EITHER SPOUSE,
AND THE FRUITS AS WELL AS THE INCOME THEREOF, IF ANY , UNLESS IT IS EXPRESSLY
PROVIDED BY THE DONOR, TESTATOR OR GRANTOR THAT THEY SHALL FORM PART OF THE
COMMUNITY PROPERTY;
(2) PROPERTY FOR PERSONAL AND EXCLUSIVE USE OF EITHER SPOUSE . HOWEVER, JEWELRY
SHALL FORM PART OF THE COMMUNITY PROPERTY;
(3) PROPERTY ACQUIRED BEFORE THE MARRIAGE BY EITHER SPOUSE WHO HAS LEGITIMATE
DESCENDANTS BY A FORMER MARRIAGE, AND THE FRUITS AS WELL AS THE INCOME, IF ANY, OF
SUCH PROPERTY .
ART. 93. PROPERTY ACQUIRED DURING THE MARRIAGE IS PRESUMED TO BELONG TO THE
COMMUNITY, UNLESS IT IS PROVED THAT IT IS ONE OF THOSE EXCLUDED THEREFROM.
Fig. 14
Absolute Community of Property (ACP)
All properties owned by the contracting parties before the marriage ceremony and those
which they may acquire thereafter shall comprise the absolute community of property
regime.
Properties Excluded
(1) Properties of each Ø Art. 1 of the Family Code provides that marriage
spouse excluded from settlements may fix the property relations during the
the community property marriage within the limits provided by this Code.
in the marriage
settlement.
(2) Property acquired Ø Must be a valid gratuitous acquisition during the marriage.
by gratuitous title by o Void donations, such as donations between
either spouse, and the spouses involving a substantial amount of
fruits as well as the separate properties, are not contemplated herein.
income thereof, if any. Ø Remember that the fruits and income of such property are
likewise excluded.
Ø Exception: When the donor, testator or grantor expressly
provide that the donation shall form part of the community
property.
(3) Personal and Ø These properties may either have been brought inside the
exclusive property of marriage or were acquired during the marriage, and must be
either spouse. of a substantial value.
Ø J. Sempio Diy – “susceptible of exclusive use.”
Ø Must be interpreted in terms of value. (Ex. In the case of a
Mercedes Benz of the husband for his “personal and
exclusive use,” and the net worth of the family shows that
the spouses are not very rich to simply afford such a car, it
would belong to the community property)
Ø Exception: Jewelry which must involve a substantial
amount.
53
(4) Property acquired Ø “Legitimate descendants” include children, grandchildren,
before the marriage by great-grandchildren and all other descendants.
either spouse who has o If the previous marriage is annulled or nullified
legitimate descendants either because anyone of the parties is
by a former marriage, psychologically incapacitated, or because one of
and the fruits and the parties did not comply with the provisions of
income, if any. Arts. 52 and 53, the children conceived or born
inside such marriage are legitimate.
Ø If the previous marriage is terminated by death and there is
no liquidation of the property regime of the previous
marriage and thereafter the subsequent spouse validly
remarries, the subsequent marriage shall be governed by the
Complete Separation of Property (CSP) Regime pursuant to
Art. 103.
o The property owned by the surviving spouse prior
to his or her subsequent marriage shall be
separately owned by him or her during the
subsequent marriage.
o In the event, however, that there was a liquidation
of the properties of the previous marriage, the
property regime that will govern the subsequent
marriage is ACP if, prior to the subsequent
marriage, there was no marriage settlement
providing for a different regime, or if there was
but the same was void.
Ø Remember that the fruits and income of such property are
likewise excluded.
Ø General rule: Property acquired during the marriage is presumed to belong to the
community.
o Exception: When provided that it is one of those excluded therefrom.
Ø Since the exclusions to the ACP are only those provided in Arts. 91 and 92, property
acquired using the separate property of one spouse shall be included in the ACP.
o Ex. A marriage settlement provides that the Php1,000,000 won by the husband
in the sweepstake prior to the marriage shall remain his separate property, but
subsequently he uses it to buy the family home, the house cannot be considered
as his separate property but part of the ACP.
o This is also in consonance with the rule in Art. 93 that property acquired during
the marriage is presumed to belong to the community, unless it is otherwise
provided.
Ø Property bartered or exchanged for other party, such property shall still belong to the
community property.
Ø In the event the owner-spouse sells the property involved in these exclusions, that is his or
her prerogative.
o The proceeds or objects received by way of sale, exchange or barter are entirely
different properties, objects or subject matters from the exclusive property. They
are not anymore protected or excluded properties under Art. 92. Hence, they
constitute a part of the ACP.
YAP, K. | ATENEO LAW

SECTION THREE: CHARGES AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY (2) Debts and obligations Ø The consent of the other spouse is not needed in
contracted during the marriage incurring the obligation. However, there must be
ART. 94. THE ABSOLUTE COMMUNITY OF PROPERTY SHALL BE LIABLE FOR: by the administrator-spouse for proof that the obligation redounded to the benefit
the benefit of the ACP, or by of the family.
(1) THE SUPPORT OF THE SPOUSES, THEIR COMMON CHILDREN, AND LEGITIMATE CHILDREN OF one spouse with consent of the Ø General rule: To make the ACP liable, it should be
EITHER SPOUSE; HOWEVER, THE SUPPORT OF ILLEGITIMATE CHILDREN SHALL BE GOVERNED other. shown to have redounded to the benefit of the
BY THE PROVISIONS OF THIS CODE ON SUPPORT; family.
(3) Debts and obligations
(2) ALL DEBTS AND OBLIGATIONS CONTRACTED DURING THE MARRIAGE BY THE DESIGNATED o Exception: The ACP is still liable when
contracted by either spouse
ADMINISTRATOR-SPOUSE FOR THE BENEFIT OF THE COMMUNITY, OR BY BOTH SPOUSES, OR BY it is shown that both spouses contracted
without the consent of the other
ONE SPOUSE WITH THE CONSENT OF THE OTHER; the debt or obligation during the
– to the extent that the family
(3) DEBTS AND OBLIGATIONS CONTRACTED BY EITHER SPOUSE WITHOUT THE CONSENT OF THE marriage, or one of them with the
has been benefited.
OTHER TO THE EXTENT THAT THE FAMILY MAY HAVE BEEN BENEFITED; consent of the other.
(4) ALL TAXES, LIENS, CHARGES AND EXPENSES, INCLUDING MAJOR OR MINOR REPAIRS, UPON Ø Any loss resulting from the exercise of a profession
THE COMMUNITY PROPERTY; or family business by any of the spouses shall be
(5) ALL TAXES AND EXPENSES FOR MERE PRESERVATION MADE DURING MARRIAGE UPON THE chargeable to the ACP. (Ayala Investment v. CA,
SEPARATE PROPERTY OF EITHER SPOUSE USED BY THE FAMILY; 1998)
(6) EXPENSES TO ENABLE EITHER SPOUSE TO COMMENCE OR COMPLETE A PROFESSIONAL OR (4) Taxes, liens, charges and Ø This can be done even without the consent of the
VOCATIONAL COURSE, OR OTHER ACTIVITY FOR SELF-IMPROVEMENT;
expenses, including major and other spouse following the general rules on co-
(7) ANTE-NUPTIAL DEBTS OF EITHER SPOUSE INSOFAR AS THEY HAVE REDOUNDED TO THE minor repairs, upon community ownership.
BENEFIT OF THE FAMILY;
property.
(8) THE VALUE OF WHAT IS DONATED OR PROMISED BY BOTH SPOUSES IN FAVOR OF THEIR
COMMON LEGITIMATE CHILDREN FOR THE EXCLUSIVE PURPOSE OF COMMENCING OR (5) Taxes and expenses for mere Ø Requisite: The separate property must have been
COMPLETING A PROFESSIONAL OR VOCATIONAL COURSE OR OTHER ACTIVITY FOR SELF- preservation made during the used or is being used by the family during the
IMPROVEMENT; marriage upon separate property marriage.
(9) ANTE-NUPTIAL DEBTS OF EITHER SPOUSE OTHER THAN THOSE FALLING UNDER PARAGRAPH of either spouse used by the
(7) OF THIS ARTICLE, THE SUPPORT OF ILLEGITIMATE CHILDREN OF EITHER SPOUSE , AND family.
LIABILITIES INCURRED BY EITHER SPOUSE BY REASON OF A CRIME OR A QUASI-DELICT, IN CASE (6) Expenses to enable either Ø Essentially, expenses given to either spouse for
OF ABSENCE OR INSUFFICIENCY OF THE EXCLUSIVE PROPERTY OF THE DEBTOR-SPOUSE, THE spouse to commence or education and training are within the ambit of the
PAYMENT OF WHICH SHALL BE CONSIDERED AS ADVANCES TO BE DEDUCTED FROM THE SHARE complete a professional or support for which the ACP is liable.
OF THE DEBTOR-SPOUSE UPON LIQUIDATION OF THE COMMUNITY; AND vocational course, or other
(10) EXPENSES OF LITIGATION BETWEEN THE SPOUSES UNLESS THE SUIT IS FOUND TO BE activity for self-improvement.
GROUNDLESS.
(7) Ante-nuptial debts of either Ø It must be proven that they have redounded to the
IF THE COMMUNITY PROPERTY IS INSUFFICIENT TO COVER THE FOREGOING LIABILITIES, spouse insofar as they have benefit of the family.
EXCEPT THOSE FALLING UNDER PARAGRAPH (9), THE SPOUSES SHALL BE SOLIDARILY LIABLE redounded to the benefit of the
FOR THE UNPAID BALANCE WITH THEIR SEPARATE PROPERTIES. family.
(8) Value of donation by the Ø Requisites:
Fig. 15 spouses in favor of their 1. The donation must be by both spouses
common legitimate children for and must be; and
Liabilities of ACP the exclusive purpose of 2. For their common legitimate children.
(1) Support of the spouses, their Ø Support is the most sacred and important of all commencing or completing a Ø If only one of the spouses donate, it might fall
common children, and obligations imposed by law. professional or vocational under the prohibition under Art. 87 prohibiting
legitimate children of either Ø Comprises everything indispensable for course or other activity for self- donations between spouses.
spouse. sustenance, dwelling, clothing, medical improvement o A donation by one spouse to a common
attendance, education, and transportation, in child who has no descendants or
keeping with the financial capacity of the family. compulsory heir other than his or her
Ø General rule: Support of the illegitimate shall be parents is an indirect donation to the
taken from the separate property of either spouse. other spouse.
o Exception: Art. 94 (9) – if the separate
property of such spouse is insufficient.

54 YAP, K. | ATENEO LAW


(9) Ante-nuptial debts under Par. Ø Rules to remember: properties of the insolvent and obtains title thereto, and shall as speedily as
7, support of illegitimate 1. For these expenses, the separate property possible convert the estate, real or personal, into money for the purpose of
children of either spouse, and of the debtor-spouse is liable. settlement of the debts of the insolvent debtor.
liabilities incurred by either 2. If such separate property is insufficient,
spouse by reason of a crime or the ACP will be liable. ART. 95. WHATEVER MAY BE LOST DURING THE MARRIAGE IN ANY GAME OF CHANCE,
quasi-delict, in case of absence 3. The amount paid by the ACP shall be BETTING, SWEEPSTAKES , OR ANY OTHER KIND OF GAMBLING, WHETHER PERMITTED OR
or insufficiency of the exclusive considered as an advance to be deducted PROHIBITED BY LAW, SHALL BE BORNE BY THE LOSER AND SHALL NOT BE CHARGED TO THE
property of the debtor-spouse, from the share of the debtor-spouse upon COMMUNITY BUT ANY WINNINGS THEREFROM SHALL FORM PART OF THE COMMUNITY
the payment of which shall be liquidation of the ACP. PROPERTY.
considered as advances to be Ø Art. 100 of the Revised Penal Code (RPC) – every
deducted from the share of the person criminally liable for a felony is also civilly
debtor-spouse upon liquidation liable. Ø Engaging in any game of change, betting, etc. will unduly increase the probability of
of the community. Ø Art. 2176 of the Civil Code – whoever by act or uselessly depleting the resources of the ACP which principally must answer for all the
omission causes damage to another, there being important obligations enumerated in the preceding article.
fault or negligence, is obliged to pay for the Ø Rules to remember:
damage done, and there must be no pre-existing 1. Losses during the marriage in any game of chance, betting, sweepstakes, or any
contractual relation between the parties. (Ex. The other kind of gambling shall be borne by the losing spouse.
proprietor of a building or structure is responsible 2. Winnings therefrom, however, shall form part of the ACP.
for damages resulting from its total or partial Ø Ex. A stranger (donor) gives one of the spouses a sweepstake ticket which eventually won
collapse, if it should be due to the lack of necessary and such spouse was paid the prize money.
repairs. o General rule: The prize money shall be considered separate property of the
winning-spouse pursuant to Art. 92 (1) as the fruit of property acquired by
(10) Expenses of litigation Ø Requisites: gratuitous title.
between the spouses, unless the 1. Must be between husband and wife; and § Exception: If the donor expressly provided that it shall form part of the
suit is found to be groundless. 2. Not groundless. community property.
Ø General rule: The suit must be between husband o While it was only the ticket that was donated, the prize thereof is to be considered
and wife. as fruit or income derived therefrom.
o Exception: It may not involve a case
between husband and wife, but for as SECTION FOUR: OWNERSHIP, ADMINISTRATIVE, ENJOYMENT AND DISPOSITION OF THE
long as it benefits the family, the ACP is COMMUNITY PROPERTY
liable.
ART. 96. THE ADMINISTRATION AND ENJOYMENT OF THE COMMUNITY PROPERTY SHALL
Ø General rule: If the ACP is insufficient to cover the liabilities for which it is liable, the BELONG TO BOTH SPOUSES JOINTLY. IN CASE OF DISAGREEMENT, THE HUSBAND'S DECISION
spouses shall be solidarily liable with their separate properties. SHALL PREVAIL, SUBJECT TO RECOURSE TO THE COURT BY THE WIFE FOR PROPER REMEDY,
o Exception: Does not apply to: WHICH MUST BE AVAILED OF WITHIN FIVE YEARS FROM THE DATE OF THE CONTRACT
1. Ante-nuptial debts not redounding to the benefit of the family; IMPLEMENTING SUCH DECISION.
2. Support of illegitimate children by either spouse; and
3. Liabilities incurred by the spouse by reason of a crime or a quasi-delict. IN THE EVENT THAT ONE SPOUSE IS INCAPACITATED OR OTHERWISE UNABLE TO PARTICIPATE
o Solidary obligations – where several creditors or debtors or both concur, and IN THE ADMINISTRATION OF THE COMMON PROPERTIES, THE OTHER SPOUSE MAY ASSUME SOLE
where each creditor has the right to demand and each debtor is bound to perform, POWERS OF ADMINISTRATION. THESE POWERS DO NOT INCLUDE DISPOSITION OR
in its entirety, the prestation constituting the object of the obligation. ENCUMBRANCE WITHOUT AUTHORITY OF THE COURT OR THE WRITTEN CONSENT OF THE
o Ex. A and B are spouses. They bought a new house from C and D for OTHER SPOUSE. IN THE ABSENCE OF SUCH AUTHORITY OR CONSENT, THE DISPOSITION OR
Php1,000,000.00 for which they paid a down-payment of Php500,000.00. ENCUMBRANCE SHALL BE VOID. HOWEVER, THE TRANSACTION SHALL BE CONSTRUED AS A
However, the ACP is insufficient to cover the remaining Php500,000.00. CONTINUING OFFER ON THE PART OF THE CONSENTING SPOUSE AND THE THIRD PERSON , AND
§ Hence, either one of C and D can collect from the separate property of MAY BE PERFECTED AS A BINDING CONTRACT UPON THE ACCEPTANCE BY THE OTHER SPOUSE
either A or B the amount of Php500,000.00 to pay the balance for the OR AUTHORIZATION BY THE COURT BEFORE THE OFFER IS WITHDRAWN BY EITHER OR BOTH
house. OFFERORS.
Ø General rule: When a spouse is insolvent, the ACP shall not be among the assets to be taken
possession of by the assignee for the payment of the debtor-spouse’s obligations.
o Exception: When such obligations have redounded to the benefit of the family. Ø Rules to remember:
o Assignee – court-appointed representative of both the insolvent and the creditors 1. Administration and enjoyment of the community property shall belong to both
in insolvency proceedings, whether voluntary or involuntary. He takes all spouses jointly.
55 YAP, K. | ATENEO LAW

a. In case of disagreement, the husband’s decision shall prevail.
b. As a recourse, the wife may file the proper remedy in court within 5
years from the date of the contract implementing such decision.
2. When one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole
power of administration.
a. Does not include disposition or encumbrance without (1) authority of
the court; or (2) written consent of the other spouse. In the absence of
such authority, the disposition or encumbrance shall be void.
b. The transaction shall be construed as a continuing offer from the
consenting spouse and the third person, which may be perfected either
by (1) authorization by the court; or (2) acceptance by the other spouse
before the offer is withdrawn by either or both offerors.
• The effectivity of the contract shall take effect only upon
such written acceptance or court authorization.
c. The action to nullify the contract is imprescriptible.
d. There are cases when the innocent purchaser for value wins.
• Innocent purchaser for value – one who buys the property of
another, without notice that some other person has a right to,
or interest in, such property, and pays the full and fair price
for it at the time of such purchase or before he has notice of
the claim or interest of some other persons in the property.
e. If there was knowledge but without consent and a disagreement arises,
rule #1 shall apply.
3. The administration of the property may be validly delegated to only one spouse
in a marriage settlement executed prior to the marriage.
4. General rule: The verification and certification of non-forum shopping in a
petition or a complaint filed in court must be signed by all the petitioners in a
case.
§ Exception: The signature of the husband or wife alone is substantial
compliance with this requirement in cases involving community or
conjugal property, even if both of the spouses are petitioners in the
case. (Docena v. Lapesura, 2001)
5. In matters which need immediate decisions (such as repairs to the property), each
spouse may act individually even without the consent of the other, as provided
in the rules on co-ownership.
6. The ordinary rules on co-ownership apply only in a suppletory character.
Ø The husband’s decision temporarily prevails because tradition and experience show that in
very serious matters concerning the family, it is usually the husband who makes the
ultimate choices.
ART. 97. EITHER SPOUSE MAY DISPOSE BY WILL OF HIS OR HER INTEREST IN THE COMMUNITY
PROPERTY.
Ø Will – an act whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his death.
Ø A testator can provide that certain properties will go to whomever he or she wishes,
provided that it will not encroach on the lawful legitimes of his compulsory heirs. In such
case, it would be “Inofficious.”
o Legitime – part of the testator’s property which cannot be disposed of because
the law has reserved it for certain heirs who are therefor called compulsory heirs.
56
ART. 98. NEITHER SPOUSE MAY DONATE ANY COMMUNITY PROPERTY WITHOUT THE CONSENT
OF THE OTHER. H OWEVER, EITHER SPOUSE MAY, WITHOUT THE CONSENT OF THE OTHER, MAKE
MODERATE DONATIONS FROM THE COMMUNITY PROPERTY FOR CHARITY OR ON OCCASIONS OF
FAMILY REJOICING OR FAMILY DISTRESS.
Ø General rule: Spouses cannot donate community property without the consent of the other.
o Exception: Either spouse may make moderate donations from the community
property for:
1. Charity; or
2. On occasions of family rejoicing or family distress.
Ø Intended to protect the latter’s share therein from the prodigality of a reckless or faithless
spouse.
Ø The donor-spouse cannot make a substantial donation, direct or indirect, to the consenting
spouse during the marriage.
SECTION FIVE: DISSOLUTION OF ABSOLUTE COMMUNITY REGIME
ART. 99. THE ABSOLUTE COMMUNITY TERMINATES:
(1) UPON THE DEATH OF EITHER SPOUSE;
(2) WHEN THERE IS A DECREE OF LEGAL SEPARATION;
(3) WHEN THE MARRIAGE IS ANNULLED OR DECLARED VOID; OR
(4) IN CASE OF JUDICIAL SEPARATION OF PROPERTY DURING THE MARRIAGE UNDER ARTICLES
134 TO 138.
Ø Termination of the ACP does not necessarily mean termination of the marriage, but the
termination of a marriage simultaneously results in the dissolution of the ACP.
Ø After the dissolution comes the liquidation and partition.
Fig. 16
Termination of the ACP
(1) Upon death of either Ø Upon the termination of the marriage by death, the ACP
spouse. shall be liquidated in the same proceeding for the
settlement of the estate of the deceased.
(2) When there is a Ø The offending spouse shall have no right to any share of
decree of legal the net profits earned by the ACP or CPG, which shall be
separation. forfeited in accordance with the provisions of Art. 43 (2).
Ø Upon reconciliation of the parties, they may agree to revive
the property regime subject to the provisions of Art. 67.
(3) When the marriage Ø If either spouse acted in bad faith, his share of the net
is annulled or declared profits of the ACP shall be forfeited in favor of the common
void. children, or if there be none, the children of the guilty
spouse by a previous marriage, and if none, the innocent
spouse.
Ø General rule: There is no ACP in a void marriage. The
governing regime would be either Art. 147 or Art. 148 for
unions without marriage.
YAP, K. | ATENEO LAW

o Exception: Subsequent void marriages by non-
observance of Art. 40 in relation to Arts. 43, 50,
52 and 53, which includes dissolution of the
ACP. (Valdes v. RTC, 1996)
(4) In case of judicial Ø If the separation is voluntary, the parties can file the
separation of property agreement for separation of property in court to obtain the
during the marriage. necessary court approval.
Ø If the separation is involuntary, it must be for a sufficient
cause and must likewise have court approval. Sufficient
causes are:
1. Spouse of petitioner has been sentenced to civil
interdiction;
2. Spouse of petitioner has been judicially declared
as an absentee;
3. Spouse of the petitioner loses parental authority;
4. Spouse of petitioner abandoned the latter or
failed to comply with his obligations to the
family;
5. Spouse, who was granted the power of
administration, abused the same; and
6. At the time of the petition, spouses have been
separated in fact for at least 1 year and
reconciliation is highly improbable.
(5) After affidavit of Ø When the reappearing spouse files an affidavit of
reappearance. reappearance to terminate the subsequent marriage, such
termination shall result in the dissolution of the ACP.
o If either spouse contracted the subsequent
marriage in bad faith, his or her share of the net
profits of the ACP shall be forfeited.
ART. 100. THE SEPARATION IN FACT BETWEEN HUSBAND AND WIFE SHALL NOT AFFECT THE
REGIME OF ABSOLUTE COMMUNITY EXCEPT THAT:
(1) THE SPOUSE WHO LEAVES THE CONJUGAL HOME OR REFUSES TO LIVE THEREIN, WITHOUT
JUST CAUSE, SHALL NOT HAVE THE RIGHT TO BE SUPPORTED;
(2) WHEN THE CONSENT OF ONE SPOUSE TO ANY TRANSACTION OF THE OTHER IS REQUIRED BY
LAW, JUDICIAL AUTHORIZATION SHALL BE OBTAINED IN A SUMMARY PROCEEDING;
(3) IN THE ABSENCE OF SUFFICIENT COMMUNITY PROPERTY, THE SEPARATE PROPERTY OF
BOTH SPOUSES SHALL BE SOLIDARILY LIABLE FOR THE SUPPORT OF THE FAMILY. THE SPOUSE
PRESENT SHALL, UPON PROPER PETITION IN A SUMMARY PROCEEDING, BE GIVEN JUDICIAL
AUTHORITY TO ADMINISTER OR ENCUMBER ANY SPECIFIC SEPARATE PROPERTY OF THE OTHER
SPOUSE AND USE THE FRUITS OR PROCEEDS THEREOF TO SATISFY THE LATTER'S SHARE.
Ø General rule: Separation in fact will not affect the ACP.
o Exceptions:
1. Spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported;
57
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; and
3. In the insufficiency of the ACP, 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 thereof to satisfy the latter’s share.
ART. 101. IF A SPOUSE WITHOUT JUST CAUSE ABANDONS THE OTHER OR FAILS TO COMPLY
WITH HIS OR HER OBLIGATIONS TO THE FAMILY, THE AGGRIEVED SPOUSE MAY PETITION THE
COURT FOR RECEIVERSHIP, FOR JUDICIAL SEPARATION OF PROPERTY OR FOR AUTHORITY TO BE
THE SOLE ADMINISTRATOR OF THE ABSOLUTE COMMUNITY, SUBJECT TO SUCH
PRECAUTIONARY CONDITIONS AS THE COURT MAY IMPOSE.
THE OBLIGATIONS TO THE FAMILY MENTIONED IN THE PRECEDING PARAGRAPH REFER TO
MARITAL, PARENTAL OR PROPERTY RELATIONS.
A SPOUSE IS DEEMED TO HAVE ABANDONED THE OTHER WHEN HE OR SHE HAS LEFT THE
CONJUGAL DWELLING WITHOUT INTENTION OF RETURNING. THE SPOUSE WHO HAS LEFT THE
CONJUGAL DWELLING FOR A PERIOD OF THREE MONTHS OR HAS FAILED WITHIN THE SAME
PERIOD TO GIVE ANY INFORMATION AS TO HIS OR HER WHEREABOUTS SHALL BE PRIMA FACIE
PRESUMED TO HAVE NO INTENTION OF RETURNING TO THE CONJUGAL DWELLING.
Ø Abandonment – departure by one spouse with the avowed intent never to return, followed
by prolonged absence without just cause, and without in the meantime providing in the
least for one’s family although able to do so.
o There must be absolute cessation of marital relations, duties, and rights with the
intention of perpetual separation.
o A spouse who had left the conjugal dwelling for a period of 3 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.
Ø The obligations to the family refers to marital, parental or property relationship.
o Mere refusal or failure of the administrator of the property to inform the other
spouse of the progress of the family business does not by itself constitute abuse.
(Dela Cruz v. Dela Cruz, 1968)
Ø The aggrieved spouse may petition the court for:
1. Receivership;
2. Judicial separation of property; or
3. Authority to be the sole administrator of the ACP.
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SECTION SIX: LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES (3) Whatever remains of the Ø These properties refer to those stipulated in the
exclusive properties shall be marriage settlement as exclusive properties or even
ART. 102. UPON DISSOLUTION OF THE ABSOLUTE COMMUNITY REGIME, THE FOLLOWING delivered to each spouse. during the marriage and to the exclusions mentioned
PROCEDURE SHALL APPLY : in Art. 92.
(4) Net remainder of the ACP Ø General rule: The net assets will be equally divided
(1) AN INVENTORY SHALL BE PREPARED, LISTING SEPARATELY ALL THE PROPERTIES OF THE properties shall constitute net by the spouses.
ABSOLUTE COMMUNITY AND THE EXCLUSIVE PROPERTIES OF EACH SPOUSE.
assets, which shall be divided o Exception: When a different division was
(2) THE DEBTS AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY SHALL BE PAID OUT OF ITS equally between the husband provided in the marriage settlement, or
ASSETS. IN CASE OF INSUFFICIENCY OF SAID ASSETS, THE SPOUSES SHALL BE SOLIDARILY
and wife, unless a different when either party voluntarily waives
LIABLE FOR THE UNPAID BALANCE WITH THEIR SEPARATE PROPERTIES IN ACCORDANCE WITH
division was agreed upon in the rights thereto.
THE PROVISIONS OF THE SECOND PARAGRAPH OF A RTICLE 94.
marriage settlement, or in case o If the waiver of rights refers to those made
(3) WHATEVER REMAINS OF THE EXCLUSIVE PROPERTIES OF THE SPOUSES SHALL THEREAFTER of voluntary waiver. during the subsistence of the ACP, such
BE DELIVERED TO EACH OF THEM.
waiver is invalid and ineffective by virtue
(4) THE NET REMAINDER OF THE PROPERTIES OF THE ABSOLUTE COMMUNITY SHALL of Art. 89.
CONSTITUTE ITS NET ASSETS, WHICH SHALL BE DIVIDED EQUALLY BETWEEN HUSBAND AND
WIFE, UNLESS A DIFFERENT PROPORTION OR DIVISION WAS AGREED UPON IN THE MARRIAGE (5) Presumptive legitimes of Ø The presumptive legitime is delivered only after
SETTLEMENTS, OR UNLESS THERE HAS BEEN A VOLUNTARY WAIVER OF SUCH SHARE PROVIDED the common children shall be either:
IN THIS CODE. FOR PURPOSE OF COMPUTING THE NET PROFITS SUBJECT TO FORFEITURE IN delivered. 1. Finality of a judicial decree of annulment
ACCORDANCE WITH ARTICLES 43, N O. (2) AND 63, NO. (2), THE SAID PROFITS SHALL BE THE on grounds provided in Art. 45; or
INCREASE IN VALUE BETWEEN THE MARKET VALUE OF THE COMMUNITY PROPERTY AT THE 2. Nullity of a subsequent void marriage
TIME OF THE CELEBRATION OF THE MARRIAGE AND THE MARKET VALUE AT THE TIME OF ITS under Art. 40 in relation to Arts. 42 and
DISSOLUTION. 43.
(5) THE PRESUMPTIVE LEGITIMES OF THE COMMON CHILDREN SHALL BE DELIVERED UPON (6) Conjugal dwelling and lot Ø Rules to remember:
PARTITION, IN ACCORDANCE WITH A RTICLE 51. on which it is situated shall be 1. The conjugal dwelling and lot shall go to
(6) UNLESS OTHERWISE AGREED UPON BY THE PARTIES, IN THE PARTITION OF THE adjudicated to the spouse with the spouse with whom a majority of the
PROPERTIES, THE CONJUGAL DWELLING AND THE LOT ON WHICH IT IS SITUATED SHALL BE whom majority of the common common children choose to remain.
ADJUDICATED TO THE SPOUSE WITH WHOM THE MAJORITY OF THE COMMON CHILDREN children choose to remain. 2. If there is no such majority, the court shall
CHOOSE TO REMAIN. CHILDREN BELOW THE AGE OF SEVEN YEARS ARE DEEMED TO HAVE decide, taking into consideration the best
CHOSEN THE MOTHER, UNLESS THE COURT HAS DECIDED OTHERWISE. IN CASE THERE IN NO interests of said children.
SUCH MAJORITY, THE COURT SHALL DECIDE, TAKING INTO CONSIDERATION THE BEST 3. Children below 7 years old are deemed to
INTERESTS OF SAID CHILDREN. have chosen the mother, unless the court
decides otherwise.
Fig. 17
Liquidation of the ACP ART. 103. UPON THE TERMINATION OF THE MARRIAGE BY DEATH, THE COMMUNITY PROPERTY
SHALL BE LIQUIDATED IN THE SAME PROCEEDING FOR THE SETTLEMENT OF THE ESTATE OF
(1) Inventory shall be prepared, Ø The properties must all be itemized and usually
THE DECEASED.
listing separately all properties valued.
of the ACP and the exclusive Ø If the proceedings take a long time and the values
IF NO JUDICIAL SETTLEMENT PROCEEDING IS INSTITUTED, THE SURVIVING SPOUSE SHALL
properties of each spouse. have altered, there is nothing to prevent a new
LIQUIDATE THE COMMUNITY PROPERTY EITHER JUDICIALLY OR EXTRA -JUDICIALLY WITHIN SIX
valuation when the last stage is reached.
MONTHS FROM THE DEATH OF THE DECEASED SPOUSE . IF UPON THE LAPSE OF THE SIX MONTHS
o There is no law or doctrine that a prior
PERIOD, NO LIQUIDATION IS MADE, ANY DISPOSITION OR ENCUMBRANCE INVOLVING THE
appraisal is conclusive upon the parties
COMMUNITY PROPERTY OF THE TERMINATED MARRIAGE SHALL BE VOID.
and the courts.
(2) Debts and obligations of Ø After inventory, all debts for which the ACP is liable SHOULD THE SURVIVING SPOUSE CONTRACT A SUBSEQUENT MARRIAGE WITHOUT
ACP shall be paid out of its shall be paid. COMPLIANCE WITH THE FOREGOING REQUIREMENTS, A MANDATORY REGIME OF COMPLETE
assets. In case of insufficiency, SEPARATION OF PROPERTY SHALL GOVERN THE PROPERTY RELATIONS OF THE SUBSEQUENT
spouses are solidarily liable MARRIAGE.
with separate properties.

58 YAP, K. | ATENEO LAW


Ø Rules to remember:
1. If the marriage is dissolved by the death of one spouse, the ACP shall be
inventoried, administered, and liquidated, and the debts thereof paid, in the estate
or intestate proceedings of the deceased spouse.
2. If both spouses died, the ACP shall be liquidated in the testate or intestate
proceedings of either of the deceased spouses.
3. If the deceased spouse left no will and no debts, and the heirs are all of age, or
the minors a re represented by their judicial or legal representatives, the parties
may, without securing a letter of administration from the court, divide the estate
among themselves as they see fit by means of a public instrument filed in the
office of the Register of Deeds.
4. If upon the lapse of 1 year from the death of one of the spouses, no liquidation is
made, any disposition or encumbrance involving the ACP of the terminated
marriage shall be void.
§ This is so because only the interest to the property and not any physical
and definite property is vested on the heirs upon the death of one of the
spouses.
5. If the surviving spouse validly marries without any liquidation of the properties
of the previous marriage, the mandatory regime of complete separation of
property shall govern the subsequent marriage.
§ In order to prevent confusion of the properties of the first and second
marriages.
Ø The spouses cannot claim any definite property at the time when the ACP still exists.
However, prior to the liquidation and partition, the interest of an heir in the estate of the
deceased person may nevertheless be attached for purposes of execution, even if the estate
is in the process of settlement before the courts.
o In case some of the heirs sell the whole inherited but unliquidated property
without the consent of the other heirs, the remedy of the latter is to file an action
for partition so that the properties will be finally liquidated and distributed.
Ø General rule: No complaint for collection of indebtedness chargeable to the ACP can be
brought against the surviving spouse.
o Exception: When such surviving spouse has committed himself to be solidarily
liable for the claim against the ACP.
o All debts chargeable against the ACH shall therefore be claimed and paid in the
settlement of estate proceedings of the deceased spouse.
ART. 104. WHENEVER THE LIQUIDATION OF THE COMMUNITY PROPERTIES OF TWO OR MORE
MARRIAGES CONTRACTED BY THE SAME PERSON BEFORE THE EFFECTIVITY OF THIS CODE IS
CARRIED OUT SIMULTANEOUSLY, THE RESPECTIVE CAPITAL, FRUITS AND INCOME OF EACH
COMMUNITY SHALL BE DETERMINED UPON SUCH PROOF AS MAY BE CONSIDERED ACCORDING
TO THE RULES OF EVIDENCE . IN CASE OF DOUBT AS TO WHICH COMMUNITY THE EXISTING
PROPERTIES BELONG, THE SAME SHALL BE DIVIDED BETWEEN THE DIFFERENT COMMUNITIES IN
PROPORTION TO THE CAPITAL AND DURATION OF EACH.
Ø This provision refers to at least 2 marriages contracted prior to the effectivity of the Family
Code and involves a situation where the community properties of each marriage are to be
liquidated simultaneously.
o Determination depends upon the proofs presented by the contending claimants
in accordance with the rules of evidence.
Ø Situations contemplated in case of doubt:
59
1. When the only information known is that 2 marriages are equal in duration, and
the fair market value of the inventoried assets at the time of the liquidation is
Php15,000 but the assets in each marriage are unknown.
§ Since the duration is equal, the Php15,000 shall be divided equally by
the heirs of each of the marriages.
2. When the inventoried assets to be divided and the duration of each marriage are
known, but the actual assets in each particular marriage are unknown.
§ Ex. When the first marriage lasted for 2 years and the second marriage
for 3 years, and the value is Php15,000, the first marriage will have a
share of 2/5 of the Php15,000 and the latter 3/5 thereof.
3. When the durations of each marriage are the same, the assets of the first and
second marriage are both known and the assets to be inventoried are also known.
§ The prorating will be based on the amount of the known assets in each
particular marriage.
4. When the durations of each marriage are known but different, the assets of each
marriage are equal, and the amount of the assets to be inventoried at the time of
liquidation is ascertained.
§ Prorating will be based on the different durations vis-à-vis the
inventoried assets at the time of liquidation.
5. When the durations of each marriage known but different, the amounts of each
asset in each marriage are known, and the amount of the assets to be inventoried
at the time of liquidation is ascertained.
§ Duration of the marriage will be multiplied to the assets in that
marriage and then prorated with the assets to be liquidated.
CHAPTER FOUR: CONJUGAL PARTNERSHIP OF GAINS
SECTION ONE: GENERAL PROVISIONS
ART. 105. IN CASE THE FUTURE SPOUSES AGREE IN THE MARRIAGE SETTLEMENTS THAT THE
REGIME OF CONJUGAL PARTNERSHIP GAINS SHALL GOVERN THEIR PROPERTY RELATIONS
DURING MARRIAGE, THE PROVISIONS IN THIS CHAPTER SHALL BE OF SUPPLEMENTARY
APPLICATION.
THE PROVISIONS OF THIS CHAPTER SHALL ALSO APPLY TO CONJUGAL PARTNERSHIPS OF GAINS
ALREADY ESTABLISHED BETWEEN SPOUSES BEFORE THE EFFECTIVITY OF THIS CODE, WITHOUT
PREJUDICE TO VESTED RIGHTS ALREADY ACQUIRED IN ACCORDANCE WITH THE CIVIL CODE OR
OTHER LAWS, AS PROVIDED IN A RTICLE 256.
ART. 106. UNDER THE REGIME OF CONJUGAL PARTNERSHIP OF GAINS, THE HUSBAND AND
WIFE PLACE IN A COMMON FUND THE PROCEEDS, PRODUCTS , FRUITS AND INCOME FROM THEIR
SEPARATE PROPERTIES AND THOSE ACQUIRED BY EITHER OR BOTH SPOUSES THROUGH THEIR
EFFORTS OR BY CHANCE, AND , UPON DISSOLUTION OF THE MARRIAGE OR OF THE
PARTNERSHIP, THE NET GAINS OR BENEFITS OBTAINED BY EITHER OR BOTH SPOUSES SHALL BE
DIVIDED EQUALLY BETWEEN THEM, UNLESS OTHERWISE AGREED IN THE MARRIAGE
SETTLEMENTS.
Ø REMEMBER that the provisions of this Chapter shall also apply to CPGs already
established before the effectivity of the Family Code, without prejudice to vested rights
already acquired in accordance with the Civil Code or other laws.
YAP, K. | ATENEO LAW

o Ex. When spouses were married prior to the effectivity of the Family Code, and ART. 109. THE FOLLOWING SHALL BE THE EXCLUSIVE PROPERTY OF EACH SPOUSE:
the wife died in 1987 (before the Family Code) leaving the husband and children
as heirs, and some portions of the undivided properties were sold prior to (1) THAT WHICH IS BROUGHT TO THE MARRIAGE AS HIS OR HER OWN;
liquidation, the SC ruled that the Art. 130 of the Family Code (which makes the (2) THAT WHICH EACH ACQUIRES DURING THE MARRIAGE BY GRATUITOUS TITLE;
totality of the sale void prior to liquidation) is inapplicable because vested rights (3) THAT WHICH IS ACQUIRED BY RIGHT OF REDEMPTION, BY BARTER OR BY EXCHANGE WITH
to the undivided portion had already accrued prior to the effectivity of the Family PROPERTY BELONGING TO ONLY ONE OF THE SPOUSES; AND
Code. Hence, the Civil Code, which states that the sale is not totally void and the (4) THAT WHICH IS PURCHASED WITH EXCLUSIVE MONEY OF THE WIFE OR OF THE HUSBAND.
only rights affected are those of the selling-heirs with respect to their individual
shares, is applicable.
Ø Rules to remember: Fig. 18
1. In CPG, the spouses place in a common fund: Conjugal Partnership of Gains
a. “Gains” (ie. proceeds, products, fruits and income) from their separate
properties; and The spouses shall place in a common fund the proceeds, products, fruits and income from
b. Those acquired by either or both spouses through their efforts or by their separate properties and those acquired by either or both spouses through their efforts
chance. or by chance.
• Efforts – connotes an activity or undertaking which may or Properties Excluded
may not be rewarded.
(1) Brought into the Ø All properties brought into the marriage by the contracting
• Chance – includes activities like gambling or betting.
marriage as his or her parties belong to each of them exclusively.
2. The fruits of paraphernal properties are subject to the payment of the debts and
own (exclusive Ø The partnership does not produce the merger of the
expenses of the spouses, but not to the payment of either one’s personal
property). properties of each spouse.
obligations.
3. General rule: Upon dissolution of the marriage or CPG, the net gains or benefits (2) Acquired by each Ø Anything received by each spouse from any source by way
obtained by either or both spouses shall be divided equally between them. during the marriage by of an act of liberality, such as a donation or gift, shall belong
§ Exception: Unless otherwise agreed in the marriage settlements. gratuitous title. exclusively to the spouse-recipient and will not belong to
Ø No unilateral declaration by one spouse can change the character of a conjugal property. the CPG.
The conjugal nature is determined by law and not by the will of one of the spouses. o An honorarium is deemed as property acquired by
gratuitous title as it is something given not as a
ART. 107. THE RULES PROVIDED IN A RTICLES 88 AND 89 SHALL ALSO APPLY TO CONJUGAL matter of obligation but in appreciation for
PARTNERSHIP OF GAINS.
services rendered – a voluntary donation in
consideration of services which admit no
compensation in money (not a “gain/fruit”).
Ø The application of the CPG shall likewise commence at the precise moment when the Ø However, the income and fruits of the property acquired by
marriage ceremony is celebrated. What is considered is the “hour” and not the “date” of gratuitous title shall be considered conjugal.
marriage.
(3) Acquired by right of Ø In cases of redemption, the property shall belong to the
Ø General rule: Likewise, no waiver of rights, interests, shares, and effects of the CPG can
redemption, by barter spouse who has the right to redeem regardless of whether
be made during the marriage.
or by exchange with he or she uses personal funds.
o Exception: When there is a judicial separation of property.
property belonging to o However, when conjugal funds are used to effect
only one of the spouses. the redemption, the spouse making the
ART. 108. THE CONJUGAL PARTNERSHIP SHALL BE GOVERNED BY THE RULES ON THE redemption through conjugal fund shall be liable
CONTRACT OF PARTNERSHIP IN ALL THAT IS NOT IN CONFLICT WITH WHAT IS EXPRESSLY to the CPG for the reimbursement of the amount
DETERMINED IN THIS CHAPTER OR BY THE SPOUSES IN THEIR MARRIAGE SETTLEMENTS. used to redeem his or her exclusive property.
(Santos v. Bartolome, 1922)
o If there is no right of redemption belonging to
Ø The CPG is a special type of partnership; hence it is governed by the rules on Partnership
either of the spouses, whoever buys or procures
in the Civil Code in all that is not in conflict with what is expressly determined in this
something using his or her own funds shall
Chapter or by the spouses in their marriage settlements.
exclusively own what was purchased.
o Any stipulation which excludes the partners from any share of the profits and
o Test: If the redeemed property belongs to the one
losses of the partnership is void. (Art. 1799)
who owns the right to redeem.
o Rules of Court names those who have the right to
SECTION TWO: EXCLUSIVE PROPERTY OF EACH SPOUSE
redeem:
1. Judgment debtor; and

60 YAP, K. | ATENEO LAW


2. Successor-in-interest.
Ø Property acquired by exchange made by one spouse using
his or her exclusive property shall remain the separate
property of such spouse.
o However, if the separate property of a spouse is
used as part of the purchase price of a new
property in addition to the conjugal funds spent
for the said purchase, the new property shall be
considered conjugal.
(4) Purchased with Ø Property purchased using the exclusive money of one
exclusive money of the spouse shall belong to such spouse.
one spouse. o However, when property is purchased using the
exclusive money of one spouse but the title is
taken in the spouses’ joint names, the
circumstances shall determine whether it shall
result in a:
1. Gift from the spouse whose money was
used to effect the purchase; or
2. Trust in favor of such spouse.
ART. 110. THE SPOUSES RETAIN THE OWNERSHIP, POSSESSION, ADMINISTRATION AND
ENJOYMENT OF THEIR EXCLUSIVE PROPERTIES.
EITHER SPOUSE MAY, DURING THE MARRIAGE, TRANSFER THE ADMINISTRATION OF HIS OR HER
EXCLUSIVE PROPERTY TO THE OTHER BY MEANS OF A PUBLIC INSTRUMENT, WHICH SHALL BE
RECORDED IN THE REGISTRY OF PROPERTY OF THE PLACE THE PROPERTY IS LOCATED.
Ø Each spouse shall retain ownership, administration, possession and enjoyment of his or her
exclusive properties.
o Administration – includes entering into contracts regarding the use of the
property, engaging in litigation, and the collection of fruits, profits, and income
arising from the separate property.
Ø The owner-spouse may, during the marriage, transfer the administration of his or her
property to the other spouse provided the proper recording in the civil registry is made.
Ø In case of insolvency of one spouse, the administrator-spouse cannot sell without consent
of the insolvent spouse or without judicial decision/authority/order.
ART. 111. A SPOUSE MAY MORTGAGE, ENCUMBER, ALIENATE OR OTHERWISE DISPOSE OF HIS
OR HER EXCLUSIVE PROPERTY, WITHOUT THE CONSENT OF THE OTHER SPOUSE, AND APPEAR
ALONE IN COURT TO LITIGATE WITH REGARD TO THE SAME.
ART. 112. THE ALIENATION OF ANY EXCLUSIVE PROPERTY OF A SPOUSE ADMINISTERED BY
THE OTHER AUTOMATICALLY TERMINATES THE ADMINISTRATION OVER SUCH PROPERTY AND
THE PROCEEDS OF THE ALIENATION SHALL BE TURNED OVER TO THE OWNER-SPOUSE.
Ø Any spouse who alienates his or her exclusive separate property will terminate the
administration of the other spouse over such property and the proceeds of the alienation
shall be turned over to the owner-spouse.
61
Ø The judicial authority given to the present spouse to administer the property constitutes a
limitation to Art. 112.
o The owner-spouse, who is a party to the summary proceeding, cannot revoke the
judicially approved administration of the present spouse. If he or she wants to
alienate such property, the owner-spouse must get the consent of the
administrator-spouse or, if the latter does not want to give consent, the approval
of the court.
ART. 113. PROPERTY DONATED OR LEFT BY WILL TO THE SPOUSES, JOINTLY AND WITH
DESIGNATION OF DETERMINATE SHARES, SHALL PERTAIN TO THE DONEE-SPOUSES AS HIS OR
HER OWN EXCLUSIVE PROPERTY, AND IN THE ABSENCE OF DESIGNATION, SHARE AND SHARE
ALIKE, WITHOUT PREJUDICE TO THE RIGHT OF ACCRETION WHEN PROPER.
ART. 114. IF THE DONATIONS ARE ONEROUS, THE AMOUNT OF THE CHARGES SHALL BE BORNE
BY THE EXCLUSIVE PROPERTY OF THE DONEE SPOUSE, WHENEVER THEY HAVE BEEN
ADVANCED BY THE CONJUGAL PARTNERSHIP OF GAINS.
Ø A donor or testator may donate or provide in a will property to the spouses jointly. The
donor may likewise designate the respective determinate share of each of the spouses and,
in the absence thereof, they shall share it equally.
o The property of the donation will then be considered separate property of the
spouses.
Ø General rule: In a joint donation, one could not accept independently of his co-donee, for
there is no right of accretion.
o Exception: Unless expressly so provided. (Ex. When the joint donation is made
in favor of husband and wife.)
o Accretion – the incorporation or addition of property to another property.
§ Ex. In a joint donation where ¾ will go to the husband, and ¼ will go
to the wife, and the wife does not accept her part of the donation,
accretion will set in favor of the husband. Hence, the husband will own
all of the property donated as his separate property.
§ However, if the designation is not of determinate shares but of
determinate properties like a house or a car, accretion will not apply.
Ø In cases of property left by will, for accretion to apply, it shall be necessary that the husband
and the wife should be called to the same inheritance, or to the same portion thereof, pro
indiviso (undivided), and that one of the spouses thus called dies before the testator
renounces the inheritance, or be incapacitated to receive it.
Ø If conjugal funds are used to pay the obligations attached to an onerous donation, the donee-
spouse shall reimburse the conjugal partnership but the property remains to be his or her
exclusive property.
ART. 115. RETIREMENT BENEFITS, PENSIONS, ANNUITIES, GRATUITIES, USUFRUCTS AND
SIMILAR BENEFITS SHALL BE GOVERNED BY THE RULES ON GRATUITOUS OR ONEROUS
ACQUISITIONS AS MAY BE PROPER IN EACH CASE.
Ø Whether retirement benefits, pensions, and annuities are conjugal or separate will depend
upon how it was obtained and the circumstances of the case.
o Gratuity – an act of pure liberality. It is acquired by lucrative title like a donation
or a gift.
YAP, K. | ATENEO LAW

o However, an annuity is not a gratuity if the recipient thereof is entitled to it as a pertain to the CPG if such detention deprived the
matter of right. partnership of the use and earnings of the same.
Ø Pension – compensation for services previously rendered for which full and adequate o Damages awarded to one of the spouses as a result
compensation was not received at the time of the rendition of the service. of physical injuries inflicted by a third party shall
o Such pensions are generally not considered donations or gratuities. exclusively belong to said injured spouse.
Ø Onerous acquisition test: Who paid for it? Whether exclusive fund or common fund was
used. (2) Obtained from the Ø Anything obtained from the labor, industry, work and
o However, if both exclusive funds and common funds were used, it shall be labor, industry, work or profession of either or both of the spouses is conjugal.
presumed to be part of the CPG if acquired during the marriage. profession of either or
both of the spouses.
SECTION THREE: CONJUGAL PARTNERSHIP PROPERTY (3) Fruits due or Ø Fruits of the common property and net fruits of the
received from the exclusive property belong to the CPG.
ART. 116. ALL PROPERTY ACQUIRED DURING THE MARRIAGE, WHETHER THE ACQUISITION common property o Net fruits – the fruits will be applied first to the
APPEARS TO HAVE BEEN MADE, CONTRACTED OR REGISTERED IN THE NAME OF ONE OR BOTH during the marriage, as expenses of administration of the said separate
SPOUSES, IS PRESUMED TO BE CONJUGAL UNLESS THE CONTRARY IS PROVED. well as net fruits from property and the remainder shall be conjugal.
the exclusive property
of each spouse.
Ø General rule: All property acquired during the marriage is presumed to be conjugal.
o Exception: Unless the contrary is proved. (4) Share of either Ø The share of either spouse in the hidden treasure which the
spouse in the hidden law awards to the finder or owner of the property where the
treasure which the law treasure is found is conjugal.
ART. 117. THE FOLLOWING ARE CONJUGAL PARTNERSHIP PROPERTIES: awards to the finder or o Hidden treasure – artifacts or objects which have
owner of the property undergone transformation from their original raw
(1) THOSE ACQUIRED BY ONEROUS TITLE DURING THE MARRIAGE AT THE EXPENSE OF THE where the treasure is state, such as earrings, necklace, bracelets, etc.
COMMON FUND , WHETHER THE ACQUISITION BE FOR THE PARTNERSHIP, OR FOR ONLY ONE OF
found. o Treasure – any hidden and unknown deposit of
THE SPOUSES;
money, jewelry, or other precious objects, the
(2) THOSE OBTAINED FROM THE LABOR, INDUSTRY, WORK OR PROFESSION OF EITHER OR BOTH lawful ownership of which does not appear.
OF THE SPOUSES;
(3) THE FRUITS, NATURAL, INDUSTRIAL, OR CIVIL, DUE OR RECEIVED DURING THE MARRIAGE (5) Acquired through Ø Because the profession involves chance.
FROM THE COMMON PROPERTY, AS WELL AS THE NET FRUITS FROM THE EXCLUSIVE PROPERTY occupation such as
OF EACH SPOUSE; fishing or hunting.
(4) THE SHARE OF EITHER SPOUSE IN THE HIDDEN TREASURE WHICH THE LAW AWARDS TO THE (6) Livestock existing Ø Livestock existing upon the dissolution of the partnership in
FINDER OR OWNER OF THE PROPERTY WHERE THE TREASURE IS FOUND ; upon the dissolution of excess of the number of each kind brought to the marriage
(5) THOSE ACQUIRED THROUGH OCCUPATION SUCH AS FISHING OR HUNTING; the partnership in by either spouse shall be conjugal.
(6) LIVESTOCK EXISTING UPON THE DISSOLUTION OF THE PARTNERSHIP IN EXCESS OF THE excess of the number of o 40 cows were brought into the marriage. During
NUMBER OF EACH KIND BROUGHT TO THE MARRIAGE BY EITHER SPOUSE; AND each kind brought to the marriage they became 60 cows. The 20 cows
(7) THOSE WHICH ARE ACQUIRED BY CHANCE, SUCH AS WINNINGS FROM GAMBLING OR the marriage by either shall be conjugal upon dissolution.
BETTING. HOWEVER, LOSSES THEREFROM SHALL BE BORNE EXCLUSIVELY BY THE LOSER- spouse.
SPOUSE.
(7) Acquired by chance, Ø Those obtained by chance are considered conjugal.
such as winnings from However, losses shall be borne by the losing spouse.
Fig. 19 gambling or betting.
CPG Properties
(1) Acquired by Ø That which is acquired with money of the conjugal ART. 118. PROPERTY BOUGHT ON INSTALLMENTS PAID PARTLY FROM EXCLUSIVE FUNDS OF
onerous title during the partnership belongs thereto or forms part thereof. EITHER OR BOTH SPOUSES AND PARTLY FROM CONJUGAL FUNDS BELONGS TO THE BUYER OR
marriage at the expense Ø Damages granted by courts in favor of any spouse arising BUYERS IF FULL OWNERSHIP WAS VESTED BEFORE THE MARRIAGE AND TO THE CONJUGAL
of the common fund. out of a contract solely financed by the CPG and PARTNERSHIP IF SUCH OWNERSHIP WAS VESTED DURING THE MARRIAGE. IN EITHER CASE, ANY
consequently unduly breached by a third party belongs to AMOUNT ADVANCED BY THE PARTNERSHIP OR BY EITHER OR BOTH SPOUSES SHALL BE
the CPG. REIMBURSED BY THE OWNER OR OWNERS UPON LIQUIDATION OF THE PARTNERSHIP.
o Damages arising out of illegal detention of the
exclusive property of any of the spouses shall

62 YAP, K. | ATENEO LAW

Ø This provision contemplates a situation when installment was initiated prior to the marriage
and ended during the marriage.
o If the ownership is vested before the marriage, it belongs to the exclusive
property of either spouse.
o If the ownership is vested after the marriage ceremony, it shall be part of the
CPG.
Ø In any case, the amount advanced by the CPG or the exclusive property shall be reimbursed
by the owner upon liquidation of the partnership.
ART. 119. WHENEVER AN AMOUNT OR CREDIT PAYABLE WITHIN A PERIOD OF TIME BELONGS
TO ONE OF THE SPOUSES, THE SUMS WHICH MAY BE COLLECTED DURING THE MARRIAGE IN
PARTIAL PAYMENTS OR BY INSTALLMENTS ON THE PRINCIPAL SHALL BE THE EXCLUSIVE
PROPERTY OF THE SPOUSE. HOWEVER, INTERESTS FALLING DUE DURING THE MARRIAGE ON
THE PRINCIPAL SHALL BELONG TO THE CONJUGAL PARTNERSHIP.
Ø In a situation where one spouse has in his favor a credit payable in installments or, in any
case, will be fully paid during the marriage, all payments made on the principal during that
marriage shall belong exclusively to the spouse who owns the credit.
o Interest on the principal falling due during the marriage shall belong to the
conjugal partnership (because it is a fruit or gain).
ART. 120. THE OWNERSHIP OF IMPROVEMENTS, WHETHER FOR UTILITY OR ADORNMENT,
MADE ON THE SEPARATE PROPERTY OF THE SPOUSES AT THE EXPENSE OF THE PARTNERSHIP OR
THROUGH THE ACTS OR EFFORTS OF EITHER OR BOTH SPOUSES SHALL PERTAIN TO THE
CONJUGAL PARTNERSHIP, OR TO THE ORIGINAL OWNER-SPOUSE, SUBJECT TO THE FOLLOWING
RULES:
SECTION FOUR: CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP
ART. 121. THE CONJUGAL PARTNERSHIP SHALL BE LIABLE FOR:
(1) THE SUPPORT OF THE SPOUSE, THEIR COMMON CHILDREN, AND THE LEGITIMATE CHILDREN
OF EITHER SPOUSE ; HOWEVER, THE SUPPORT OF ILLEGITIMATE CHILDREN SHALL BE GOVERNED
BY THE PROVISIONS OF THIS CODE ON SUPPORT;
(2) ALL DEBTS AND OBLIGATIONS CONTRACTED DURING THE MARRIAGE BY THE DESIGNATED
ADMINISTRATOR-SPOUSE FOR THE BENEFIT OF THE CONJUGAL PARTNERSHIP OF GAINS, OR BY
BOTH SPOUSES OR BY ONE OF THEM WITH THE CONSENT OF THE OTHER;
(3) DEBTS AND OBLIGATIONS CONTRACTED BY EITHER SPOUSE WITHOUT THE CONSENT OF THE
OTHER TO THE EXTENT THAT THE FAMILY MAY HAVE BENEFITED;
(4) ALL TAXES, LIENS, CHARGES, AND EXPENSES, INCLUDING MAJOR OR MINOR REPAIRS UPON
THE CONJUGAL PARTNERSHIP PROPERTY;
(5) ALL TAXES AND EXPENSES FOR MERE PRESERVATION MADE DURING THE MARRIAGE UPON
THE SEPARATE PROPERTY OF EITHER SPOUSE ;
(6) EXPENSES TO ENABLE EITHER SPOUSE TO COMMENCE OR COMPLETE A PROFESSIONAL,
VOCATIONAL, OR OTHER ACTIVITY FOR SELF-IMPROVEMENT;
(7) ANTE-NUPTIAL DEBTS OF EITHER SPOUSE INSOFAR AS THEY HAVE REDOUNDED TO THE
BENEFIT OF THE FAMILY;
(8) THE VALUE OF WHAT IS DONATED OR PROMISED BY BOTH SPOUSES IN FAVOR OF THEIR
COMMON LEGITIMATE CHILDREN FOR THE EXCLUSIVE PURPOSE OF COMMENCING OR
COMPLETING A PROFESSIONAL OR VOCATIONAL COURSE OR OTHER ACTIVITY FOR SELF-
IMPROVEMENT; AND
(9) EXPENSES OF LITIGATION BETWEEN THE SPOUSES UNLESS THE SUIT IS FOUND TO
GROUNDLESS.

WHEN THE COST OF THE IMPROVEMENT MADE BY THE CONJUGAL PARTNERSHIP AND ANY IF THE CONJUGAL PARTNERSHIP IS INSUFFICIENT TO COVER THE FOREGOING LIABILITIES, THE
RESULTING INCREASE IN VALUE ARE MORE THAN THE VALUE OF THE PROPERTY AT THE TIME SPOUSES SHALL BE SOLIDARILY LIABLE FOR THE UNPAID BALANCE WITH THEIR SEPARATE
OF THE IMPROVEMENT, THE ENTIRE PROPERTY OF ONE OF THE SPOUSES SHALL BELONG TO THE PROPERTIES.
CONJUGAL PARTNERSHIP, SUBJECT TO REIMBURSEMENT OF THE VALUE OF THE PROPERTY OF
THE OWNER-SPOUSE AT THE TIME OF THE IMPROVEMENT; OTHERWISE, SAID PROPERTY SHALL
BE RETAINED IN OWNERSHIP BY THE OWNER-SPOUSE, LIKEWISE SUBJECT TO REIMBURSEMENT
Fig. 20
OF THE COST OF THE IMPROVEMENT. Liabilities of CPG
(1) Support of the spouses, their Ø Support is the most sacred and important of all
IN EITHER CASE, THE OWNERSHIP OF THE ENTIRE PROPERTY SHALL BE VESTED UPON THE common children, and obligations imposed by law.
REIMBURSEMENT, WHICH SHALL BE MADE AT THE TIME OF THE LIQUIDATION OF THE
legitimate children of either Ø Comprises everything indispensable for
CONJUGAL PARTNERSHIP.
spouse. sustenance, dwelling, clothing, medical
attendance, education, and transportation, in
Ø Rules to remember: keeping with the financial capacity of the family.
1. If the value of the improvement and any resulting increase in value are more than Ø General rule: Support of the illegitimate shall be
the value of the separate property at the time of improvement, the entire property taken from the separate property of either spouse.
of one spouse shall belong to the CPG. o Exception: Art. 94 (9) – if the separate
§ However, ownership shall vest only upon reimbursement to the owner- property of such spouse is insufficient.
spouse which shall be made at the time of the liquidation of the CPG. (2) Debts and obligations Ø The consent of the other spouse is not needed in
§ Hence, prior to liquidation, the owner-spouse still owns the separate contracted during the marriage incurring the obligation. However, there must be
property, and therefore it cannot be levied on or attached to satisfy a by the administrator-spouse for proof that the obligation redounded to the benefit
conjugal debt. the benefit of the CPG, or by of the family.
2. If no reimbursement is made, the ownership of the property shall be retained by
the owner-spouse.
63 YAP, K. | ATENEO LAW

one spouse with consent of the
other.
(3) Debts and obligations
contracted by either spouse
without the consent of the other
– to the extent that the family
has been benefited.
(4) Taxes, liens, charges and
expenses, including major and
minor repairs, upon conjugal
property.
(5) Taxes and expenses for mere
preservation made during the
marriage upon separate property
of either spouse used by the
family.
(6) Expenses to enable either
spouse to commence or
complete a professional or
vocational course, or other
activity for self-improvement.
(7) Ante-nuptial debts of either
spouse insofar as they have
redounded to the benefit of the
family.
(8) Value of donation by the
spouses in favor of their
common legitimate children for
the exclusive purpose of
commencing or completing a
professional or vocational
course or other activity for self-
improvement
(9) Expenses of litigation
between the spouses, unless the
suit is found to be groundless.
Ø General rule: To make the CPG liable, it should be
shown to have redounded to the benefit of the
family.
o Exception: The CPG is still liable when
it is shown that both spouses contracted
the debt or obligation during the
marriage, or one of them with the
consent of the other.
Ø This can be done even without the consent of the
other spouse following the general rules on co-
ownership.
Ø Requisite: The separate property must have been
used or is being used by the family during the
marriage.
Ø Essentially, expenses given to either spouse for
education and training are within the ambit of the
support for which the CPG is liable.
Ø It must be proven that they have redounded to the
benefit of the family.
Ø Requisites:
1. The donation must be by both spouses
and must be; and
2. For their common legitimate children.
Ø If only one of the spouses donate, it might fall
under the prohibition under Art. 87 prohibiting
donations between spouses.
o A donation by one spouse to a common
child who has no descendants or
compulsory heir other than his or her
parents is an indirect donation to the
other spouse.
Ø Requisites:
1. Must be between husband and wife; and
2. Not groundless.
Ø General rule: The suit must be between husband
and wife.
o Exception: It may not involve a case
between husband and wife, but for as
long as it benefits the family, the CPG is
liable.
64
Ø If the CPG is insufficient to cover the foregoing liabilities, the spouses shall be solidarily
liable for the unpaid balance with their separate properties.
ART. 122. THE PAYMENT OF PERSONAL DEBTS CONTRACTED BY THE HUSBAND OR THE WIFE
BEFORE OR DURING THE MARRIAGE SHALL NOT BE CHARGED TO THE CONJUGAL PROPERTIES
PARTNERSHIP EXCEPT INSOFAR AS THEY REDOUNDED TO THE BENEFIT OF THE FAMILY.
NEITHER SHALL THE FINES AND PECUNIARY INDEMNITIES IMPOSED UPON THEM BE CHARGED
TO THE PARTNERSHIP .
HOWEVER, THE PAYMENT OF PERSONAL DEBTS CONTRACTED BY EITHER SPOUSE BEFORE THE
MARRIAGE, THAT OF FINES AND INDEMNITIES IMPOSED UPON THEM, AS WELL AS THE SUPPORT
OF ILLEGITIMATE CHILDREN OF EITHER SPOUSE, MAY BE ENFORCED AGAINST THE
PARTNERSHIP ASSETS AFTER THE RESPONSIBILITIES ENUMERATED IN THE PRECEDING A RTICLE
HAVE BEEN COVERED, IF THE SPOUSE WHO IS BOUND SHOULD HAVE NO EXCLUSIVE PROPERTY
OR IF IT SHOULD BE INSUFFICIENT; BUT AT THE TIME OF THE LIQUIDATION OF THE
PARTNERSHIP, SUCH SPOUSE SHALL BE CHARGED FOR WHAT HAS BEEN PAID FOR THE PURPOSE
ABOVE-MENTIONED.
Ø For as long as debts and obligations redounded to the benefit of the family, such debts and
obligations, such as hospital and medical expenses of the spouses, may be charged to the
CPG.
Ø For the 3rd paragraph to apply, it must be shown that:
1. The obligations under Art. 121 have been covered; and
2. The debtor-spouse has insufficient or no exclusive properties to pay the debt or
obligation involved.
Ø Fines and pecuniary indemnities imposed upon either spouse may be charged against the
partnership assets even before the liquidation of the partnership.
o However, such payment must comply with Art. 122 but it should not be applied
with rigidity as to negate the claims of the aggrieved creditors.
o Difference from ACP:
§ The CPG is liable for personal debts, fines and indemnities of either
spouse only after payment of all the liabilities of the CPG under Art.
121 and when the separate property of the spouse is insufficient.
§ In ACP, the liabilities may be charged against it only in case the
separate property of the spouse is insufficient. There is no need to show
that the other liabilities of the ACP had been covered.
Ø Personal obligations of either spouse incurred during the marriage which do not redound
to the benefit of the family or do not have the consent of the other spouse shall be borne
only by the spouse-debtor and his or her separate property.
o Personal obligations for which the debtor-spouse should only be held liable are
not given by the law the same advance-reimbursement mechanism provided for
under Art. 122. In other words, the CPG has no duty to make payment in advance
for the liability of the debtor-spouse which shall be reimbursed or paid at the time
of liquidation.
YAP, K. | ATENEO LAW

ART. 123. WHATEVER MAY BE LOST DURING THE MARRIAGE IN ANY GAME OF CHANCE OR IN spouse is incapacitated or incompetent to give consent. In such case, the proper
BETTING, SWEEPSTAKES , OR ANY OTHER KIND OF GAMBLING WHETHER PERMITTED OR
remedy is a judicial guardianship proceeding under the Rules of Court. (Uy v.
PROHIBITED BY LAW, SHALL BE BORNE BY THE LOSER AND SHALL NOT BE CHARGED TO THE
CA, 2000)
CONJUGAL PARTNERSHIP BUT ANY WINNINGS THEREFROM SHALL FORM PART OF THE
CONJUGAL PARTNERSHIP PROPERTY.
SECTION SIX: DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

ART. 126. THE CONJUGAL PARTNERSHIP TERMINATES:

Ø The CPG must not be put to useless risk precipitated by highly speculative activities of any
kind of the spouse. (1) UPON THE DEATH OF EITHER SPOUSE;
o These include any game of chance, betting, sweepstakes or any kind of gambling. (2) WHEN THERE IS A DECREE OF LEGAL SEPARATION;
Ø However, the winnings therefrom shall go to the CPG while the losses shall not be (3) WHEN THE MARRIAGE IS ANNULLED OR DECLARED VOID; OR
chargeable to the same, but to the exclusive property of the losing spouse. (4) IN CASE OF JUDICIAL SEPARATION OF PROPERTY DURING THE MARRIAGE UNDER ARTICLES
134 TO 138.
SECTION FIVE: ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

ART. 124. THE ADMINISTRATION AND ENJOYMENT OF THE CONJUGAL PARTNERSHIP SHALL
BELONG TO BOTH SPOUSES JOINTLY. IN CASE OF DISAGREEMENT, THE HUSBAND'S DECISION
SHALL PREVAIL, SUBJECT TO RECOURSE TO THE COURT BY THE WIFE FOR PROPER REMEDY,
WHICH MUST BE AVAILED OF WITHIN FIVE YEARS FROM THE DATE OF THE CONTRACT
IMPLEMENTING SUCH DECISION.
IN THE EVENT THAT ONE SPOUSE IS INCAPACITATED OR OTHERWISE UNABLE TO PARTICIPATE
IN THE ADMINISTRATION OF THE CONJUGAL PROPERTIES, THE OTHER SPOUSE MAY ASSUME
SOLE POWERS OF ADMINISTRATION. THESE POWERS DO NOT INCLUDE DISPOSITION OR
ENCUMBRANCE WITHOUT AUTHORITY OF THE COURT OR THE WRITTEN CONSENT OF THE
OTHER SPOUSE. IN THE ABSENCE OF SUCH AUTHORITY OR CONSENT, THE DISPOSITION OR
ENCUMBRANCE SHALL BE VOID. HOWEVER, THE TRANSACTION SHALL BE CONSTRUED AS A
CONTINUING OFFER ON THE PART OF THE CONSENTING SPOUSE AND THE THIRD PERSON , AND
MAY BE PERFECTED AS A BINDING CONTRACT UPON THE ACCEPTANCE BY THE OTHER SPOUSE
OR AUTHORIZATION BY THE COURT BEFORE THE OFFER IS WITHDRAWN BY EITHER OR BOTH
OFFERORS.
Ø Art. 126 is exactly identical to Art. 99 earlier.
Ø Under the Family Code, the partnership rules apply in a suppletory manner, but not upon
the dissolution of the CPG – because when, for any cause, the CPG established is dissolved,
all the provisions based upon the existence of that partnership cease to apply.
ART. 127. THE SEPARATION IN FACT BETWEEN HUSBAND AND WIFE SHALL NOT AFFECT THE
REGIME OF CONJUGAL PARTNERSHIP, EXCEPT THAT:
(1) THE SPOUSE WHO LEAVES THE CONJUGAL HOME OR REFUSES TO LIVE THEREIN, WITHOUT
JUST CAUSE, SHALL NOT HAVE THE RIGHT TO BE SUPPORTED;
(2) WHEN THE CONSENT OF ONE SPOUSE TO ANY TRANSACTION OF THE OTHER IS REQUIRED BY
LAW, JUDICIAL AUTHORIZATION SHALL BE OBTAINED IN A SUMMARY PROCEEDING;
(3) IN THE ABSENCE OF SUFFICIENT CONJUGAL PARTNERSHIP PROPERTY, THE SEPARATE
PROPERTY OF BOTH SPOUSES SHALL BE SOLIDARILY LIABLE FOR THE SUPPORT OF THE FAMILY.
THE SPOUSE PRESENT SHALL, UPON PETITION IN A SUMMARY PROCEEDING, BE GIVEN JUDICIAL
AUTHORITY TO ADMINISTER OR ENCUMBER ANY SPECIFIC SEPARATE PROPERTY OF THE OTHER
SPOUSE AND USE THE FRUITS OR PROCEEDS THEREOF TO SATISFY THE LATTER'S SHARE.

ART. 125. NEITHER SPOUSE MAY DONATE ANY CONJUGAL PARTNERSHIP PROPERTY WITHOUT
THE CONSENT OF THE OTHER. HOWEVER, EITHER SPOUSE MAY , WITHOUT THE CONSENT OF THE
Ø Art. 127 is exactly identical to Art. 100.
OTHER, MAKE MODERATE DONATIONS FROM THE CONJUGAL PARTNERSHIP PROPERTY FOR
Ø In this case, the guilt of the party in leaving the house is not material. The one who
CHARITY OR ON OCCASIONS OF FAMILY REJOICING OR FAMILY DISTRESS.
unjustifiably separated from the other spouse may himself or herself avail of this remedy
provided by law.
Ø As to No. 3 of this provision, any debt incurred for the support of the family is a liability
Ø Arts. 124 and 125 are exactly identical with Arts. 96 and 98 earlier. of the CPG. Hence, if even one of the spouses left the conjugal home, with or without
Ø General rule: If the marriage settlement provides for CPG but likewise stipulates that the justifiable reasons, any debt incurred by any spouse for the benefit of the family shall be
shares of the spouses will not be equal upon liquidation, such unequal sharing will not chargeable to the CPG. Their separation in fact will not justify the non-liability of the CPG.
affect the joint administration of the spouses during the marriage which places the spouses
in equal footing.
o Exception: Unless otherwise agreed upon also in the marriage settlement.
Ø Summary procedure shall apply to the annulment of the husband’s decision in the
administration and enjoyment of the conjugal property in case the husband’s decision is in
conflict with the wife’s decision.
o The rules on summary procedure under the Family Code govern the proceedings
under Art. 124 of the Family Code – this situation contemplates where the spouse
is absent, or separated in fact or has abandoned the other or consent is withheld
or cannot be obtained. Such rules do not apply to cases where the non-consenting
65 YAP, K. | ATENEO LAW
ART. 128. IF A SPOUSE WITHOUT JUST CAUSE ABANDONS THE OTHER OR FAILS TO COMPLY
WITH HIS OR HER OBLIGATION TO THE FAMILY, THE AGGRIEVED SPOUSE MAY PETITION THE
COURT FOR RECEIVERSHIP, FOR JUDICIAL SEPARATION OF PROPERTY, OR FOR AUTHORITY TO
BE THE SOLE ADMINISTRATOR OF THE CONJUGAL PARTNERSHIP PROPERTY, SUBJECT TO SUCH
PRECAUTIONARY CONDITIONS AS THE COURT MAY IMPOSE.
THE OBLIGATIONS TO THE FAMILY MENTIONED IN THE PRECEDING PARAGRAPH REFER TO
MARITAL, PARENTAL OR PROPERTY RELATIONS.
A SPOUSE IS DEEMED TO HAVE ABANDONED THE OTHER WHEN HE OR SHE HAS LEFT THE
CONJUGAL DWELLING WITHOUT INTENTION OF RETURNING. THE SPOUSE WHO HAS LEFT THE
CONJUGAL DWELLING FOR A PERIOD OF THREE MONTHS OR HAS FAILED WITHIN THE SAME
PERIOD TO GIVE ANY INFORMATION AS TO HIS OR HER WHEREABOUTS SHALL BE PRIMA FACIE
PRESUMED TO HAVE NO INTENTION OF RETURNING TO THE CONJUGAL DWELLING.
Ø Art. 128 is exactly identical to Art. 101.
Ø This article gives an aggrieved spouse, who is the co-owner of the properties, the right to
bring an action to protect his or her interest and her right thereto even before the liquidation
or dissolution of the CPG or the ACP.
SECTION SEVEN: LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES
ART. 129. UPON THE DISSOLUTION OF THE CONJUGAL PARTNERSHIP REGIME, THE FOLLOWING
PROCEDURE SHALL APPLY :
(1) AN INVENTORY SHALL BE PREPARED, LISTING SEPARATELY ALL THE PROPERTIES OF THE
CONJUGAL PARTNERSHIP AND THE EXCLUSIVE PROPERTIES OF EACH SPOUSE.
(2) AMOUNTS ADVANCED BY THE CONJUGAL PARTNERSHIP IN PAYMENT OF PERSONAL DEBTS
AND OBLIGATIONS OF EITHER SPOUSE SHALL BE CREDITED TO THE CONJUGAL PARTNERSHIP AS
AN ASSET THEREOF.
(3) EACH SPOUSE SHALL BE REIMBURSED FOR THE USE OF HIS OR HER EXCLUSIVE FUNDS IN
THE ACQUISITION OF PROPERTY OR FOR THE VALUE OF HIS OR HER EXCLUSIVE PROPERTY, THE
OWNERSHIP OF WHICH HAS BEEN VESTED BY LAW IN THE CONJUGAL PARTNERSHIP.
(4) THE DEBTS AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP SHALL BE PAID OUT OF THE
CONJUGAL ASSETS. IN CASE OF INSUFFICIENCY OF SAID ASSETS, THE SPOUSES SHALL BE
SOLIDARILY LIABLE FOR THE UNPAID BALANCE WITH THEIR SEPARATE PROPERTIES, IN
ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (2) OF ARTICLE 121.
(5) WHATEVER REMAINS OF THE EXCLUSIVE PROPERTIES OF THE SPOUSES SHALL THEREAFTER
BE DELIVERED TO EACH OF THEM.
(6) UNLESS THE OWNER HAD BEEN INDEMNIFIED FROM WHATEVER SOURCE, THE LOSS OR
DETERIORATION OF MOVABLES USED FOR THE BENEFIT OF THE FAMILY, BELONGING TO EITHER
SPOUSE, EVEN DUE TO FORTUITOUS EVENT, SHALL BE PAID TO SAID SPOUSE FROM THE
CONJUGAL FUNDS, IF ANY.
(7) THE NET REMAINDER OF THE CONJUGAL PARTNERSHIP PROPERTIES SHALL CONSTITUTE
THE PROFITS, WHICH SHALL BE DIVIDED EQUALLY BETWEEN HUSBAND AND WIFE, UNLESS A
DIFFERENT PROPORTION OR DIVISION WAS AGREED UPON IN THE MARRIAGE SETTLEMENTS OR
UNLESS THERE HAS BEEN A VOLUNTARY WAIVER OR FORFEITURE OF SUCH SHARE AS
PROVIDED IN THIS CODE.
(8) THE PRESUMPTIVE LEGITIMES OF THE COMMON CHILDREN SHALL BE DELIVERED UPON THE
PARTITION IN ACCORDANCE WITH ARTICLE 51.
(9) IN THE PARTITION OF THE PROPERTIES, THE CONJUGAL DWELLING AND THE LOT ON WHICH
IT IS SITUATED SHALL, UNLESS OTHERWISE AGREED UPON BY THE PARTIES, BE ADJUDICATED
TO THE SPOUSE WITH WHOM THE MAJORITY OF THE COMMON CHILDREN CHOOSE TO REMAIN.
CHILDREN BELOW THE AGE OF SEVEN YEARS ARE DEEMED TO HAVE CHOSEN THE MOTHER,
UNLESS THE COURT HAS DECIDED OTHERWISE. IN CASE THERE IS NO SUCH MAJORITY, THE
COURT SHALL DECIDE, TAKING INTO CONSIDERATION THE BEST INTERESTS OF SAID CHILDREN.

Liquidation of the CPG
(1) Inventory shall be prepared,
listing separately all properties
of the CPG and the exclusive
properties of each spouse.
(2) Amounts advanced by the
CPG in payment of personal
Fig. 21
Ø The properties must all be itemized and usually
valued.
Ø If the proceedings take a long time and the values
have altered, there is nothing to prevent a new
valuation when the last stage is reached.
o There is no law or doctrine that a prior
appraisal is conclusive upon the parties
and the courts.
Ø Thus, among others, advances made by the CPG in
paying the support of the illegitimate child of either

66 YAP, K. | ATENEO LAW


debts of either spouse shall be
credited to the CPG as an asset.
(3) Each spouse shall be
reimbursed for the use of his or
her exclusive property, the
ownership of which has been
vested by law in the CPG.
(4) Debts and obligations of
CPG shall be paid out of its
assets. In case of insufficiency,
spouses are solidarily liable
with separate properties.
(5) Whatever remains of the
exclusive properties shall be
delivered to each spouse.
(6) Loss or deterioration of
movables used for the benefit
of the family, belonging to
either spouse, even due to
fortuitous event, shall be paid
to said spouse from the CPG,
unless the owner-spouse had
been indemnified from
whatever source.
(7) Net remainder of the CPG
properties shall constitute
profits, which shall be divided
equally between the husband
and wife, unless a different
division was agreed upon in the
marriage settlement, or in case
of voluntary waiver.
(8) Presumptive legitimes of
the common children shall be
delivered.
spouse, the personal debts contracted before the
marriage which did not redound to the benefit of the
family, and the payment of fines and pecuniary
indemnities of one spouse which did not benefit the
family, shall be considered as assets.
Ø If separate funds of any spouse were used to buy
conjugal property, such amount shall be reimbursed
to the spouse.
Ø After inventory, all debts for which the CPG is liable
shall be paid.
Ø Interestingly, in CPG, the reimbursement of the
spouses for advances made in favor of the CPG, or
for the value of their separate property which, by
law, was vested to the CPG, has to be paid first
before paying the other debts and obligations of the
CPG.
Ø These properties refer to those stipulated in the
marriage settlement as exclusive properties or even
during the marriage and to the exclusions mentioned
in Art. 109.
Ø General rule: Loss or deterioration of movables used
for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to
said spouse from the CPG.
o Exception: Unless the owner-spouse had
been indemnified from whatever source.
Ø General rule: The net profits will be equally divided
by the spouses.
o Exception: When a different division was
provided in the marriage settlement, or
when either party voluntarily waives
rights thereto.
o If the waiver of rights refers to those made
during the subsistence of the CPG, such
waiver is invalid and ineffective by virtue
of Art. 89.
Ø The presumptive legitime is delivered only after
either:
1. Finality of a judicial decree of annulment
on grounds provided in Art. 45; or
2. Nullity of a subsequent void marriage
under Art. 40 in relation to Arts. 52 and
53.
67
(9) Conjugal dwelling and lot Ø Rules to remember:
on which it is situated shall be 1. The conjugal dwelling and lot shall go to
adjudicated to the spouse with the spouse with whom a majority of the
whom majority of the common common children choose to remain.
children choose to remain. 2. If there is no such majority, the court shall
decide, taking into consideration the best
interests of said children.
3. Children below 7 years old are deemed to
have chosen the mother, unless the court
decides otherwise.
ART. 130. UPON THE TERMINATION OF THE MARRIAGE BY DEATH, THE CONJUGAL
PARTNERSHIP PROPERTY SHALL BE LIQUIDATED IN THE SAME PROCEEDING FOR THE
SETTLEMENT OF THE ESTATE OF THE DECEASED.
IF NO JUDICIAL SETTLEMENT PROCEEDING IS INSTITUTED, THE SURVIVING SPOUSE SHALL
LIQUIDATE THE CONJUGAL PARTNERSHIP PROPERTY EITHER JUDICIALLY OR EXTRA -
JUDICIALLY WITHIN SIX MONTHS FROM THE DEATH OF THE DECEASED SPOUSE. IF UPON THE
LAPSE OF THE SIX-MONTH PERIOD NO LIQUIDATION IS MADE, ANY DISPOSITION OR
ENCUMBRANCE INVOLVING THE CONJUGAL PARTNERSHIP PROPERTY OF THE TERMINATED
MARRIAGE SHALL BE VOID.
SHOULD THE SURVIVING SPOUSE CONTRACT A SUBSEQUENT MARRIAGE WITHOUT
COMPLIANCE WITH THE FOREGOING REQUIREMENTS, A MANDATORY REGIME OF COMPLETE
SEPARATION OF PROPERTY SHALL GOVERN THE PROPERTY RELATIONS OF THE SUBSEQUENT
MARRIAGE.
Ø Art. 130 is identical to Art. 103 earlier.
Ø In the absence of proof that the property was acquired during the marriage, the property
shall be considered as owned by the person stated in the certificate despite a description
that he or she is married to someone. (Estonia v. CA, 1997)
ART. 131. WHENEVER THE LIQUIDATION OF THE CONJUGAL PARTNERSHIP PROPERTIES OF TWO
OR MORE MARRIAGES CONTRACTED BY THE SAME PERSON BEFORE THE EFFECTIVITY OF THIS
CODE IS CARRIED OUT SIMULTANEOUSLY, THE RESPECTIVE CAPITAL, FRUITS AND INCOME OF
EACH PARTNERSHIP SHALL BE DETERMINED UPON SUCH PROOF AS MAY BE CONSIDERED
ACCORDING TO THE RULES OF EVIDENCE. IN CASE OF DOUBT AS TO WHICH PARTNERSHIP THE
EXISTING PROPERTIES BELONG, THE SAME SHALL BE DIVIDED BETWEEN THE DIFFERENT
PARTNERSHIPS IN PROPORTION TO THE CAPITAL AND DURATION OF EACH.
Ø Art. 131 is identical to Art. 104 earlier.
Ø The respective capital, fruits, and income of each partnership shall be determined upon
such proof as may be considered according to the rules of evidence.
Ø In case of doubt as to which partnership the existing properties belong, the same shall be
divided between the different partnerships in proportion to the capital and duration of each.
Ø If there are 2 or more CPG’s of 2 marriages which have not yet been liquidated, the
subsequent partnership cannot be liquidated without the liquidation of the prior one.
YAP, K. | ATENEO LAW

ART. 132. THE RULES OF COURT ON THE ADMINISTRATION OF ESTATES OF DECEASED ART. 135. ANY OF THE FOLLOWING SHALL BE CONSIDERED SUFFICIENT CAUSE FOR JUDICIAL
PERSONS SHALL BE OBSERVED IN THE APPRAISAL AND SALE OF PROPERTY OF THE CONJUGAL SEPARATION OF PROPERTY:
PARTNERSHIP, AND OTHER MATTERS WHICH ARE NOT EXPRESSLY DETERMINED IN THIS
CHAPTER. (1) THAT THE SPOUSE OF THE PETITIONER HAS BEEN SENTENCED TO A PENALTY WHICH
CARRIES WITH IT CIVIL INTERDICTION;
(2) THAT THE SPOUSE OF THE PETITIONER HAS BEEN JUDICIALLY DECLARED AN ABSENTEE;
ART. 133. FROM THE COMMON MASS OF PROPERTY SUPPORT SHALL BE GIVEN TO THE (3) THAT LOSS OF PARENTAL AUTHORITY OF THE SPOUSE OF PETITIONER HAS BEEN DECREED
SURVIVING SPOUSE AND TO THE CHILDREN DURING THE LIQUIDATION OF THE INVENTORIED BY THE COURT;
PROPERTY AND UNTIL WHAT BELONGS TO THEM IS DELIVERED; BUT FROM THIS SHALL BE (4) THAT THE SPOUSE OF THE PETITIONER HAS ABANDONED THE LATTER OR FAILED TO
DEDUCTED THAT AMOUNT RECEIVED FOR SUPPORT WHICH EXCEEDS THE FRUITS OR RENTS COMPLY WITH HIS OR HER OBLIGATIONS TO THE FAMILY AS PROVIDED FOR IN A RTICLE 101;
PERTAINING TO THEM. (5) THAT THE SPOUSE GRANTED THE POWER OF ADMINISTRATION IN THE MARRIAGE
SETTLEMENTS HAS ABUSED THAT POWER; AND
(6) THAT AT THE TIME OF THE PETITION, THE SPOUSES HAVE BEEN SEPARATED IN FACT FOR AT
Ø Once a spouse dies, the surviving spouse and the children become co-heirs of the estate left
LEAST ONE YEAR AND RECONCILIATION IS HIGHLY IMPROBABLE.
by the deceased.
o The amount which they are allowed to get must at least be equivalent to the fruits IN THE CASES PROVIDED FOR IN NUMBERS (1), (2) AND (3), THE PRESENTATION OF THE FINAL
or rents arising from the share which they will eventually obtain after liquidation. JUDGMENT AGAINST THE GUILTY OR ABSENT SPOUSE SHALL BE ENOUGH BASIS FOR THE GRANT
o If what they got exceeds the fruits of their share, the excess shall be taken from OF THE DECREE OF JUDICIAL SEPARATION OF PROPERTY.
the part of the property which has been given to them as their separate property
after liquidation.
o If the fruits are insufficient because their advances exceeded the amount of the Fig. 22
fruits, then the excess shall be taken from the particular share delivered to them Judicial Separation of Property (JSOP)
after liquidation.
Ø Only the surviving spouse and the children are entitled to get allowances for support (1) Spouse of the petitioner has Ø Civil interdiction – an accessory penalty that
contemplated in Art. 133. been sentenced to a penalty deprives the offender during the time of his or her
o The fact that the children are already of age, gainfully employed or married is of which carries with it civil sentence of the rights of parental authority, or
no moment as these factors should not be considered in relation to the interdiction. guardianship, either as to the person or property of
determination of the rights of the mentioned heirs under Art. 133. any ward, of marital authority, of the right to
manage his property and of the right to dispose of
CHAPTER FIVE: SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF such property by any act or any conveyance inter
COMMON PROPERTY BY ONE SPOUSE DURING THE MARRIAGE vivos (during his lifetime).
Ø The final decision of the court embodying the
penalty of civil interdiction is enough for the court
ART. 134. IN THE ABSENCE OF AN EXPRESS DECLARATION IN THE MARRIAGE SETTLEMENTS, to approve JSOP.
THE SEPARATION OF PROPERTY BETWEEN SPOUSES DURING THE MARRIAGE SHALL NOT TAKE
PLACE EXCEPT BY JUDICIAL ORDER. SUCH JUDICIAL SEPARATION OF PROPERTY MAY EITHER BE (2) Spouse of the petitioner has Ø Requisites for Judicial Declaration of Absence:
VOLUNTARY OR FOR SUFFICIENT CAUSE. been judicially declared an 1. 2 years without any news about the
absentee. absentee or since the receipt of the last
news; or
Ø If the husband and wife, prior to the marriage, did not execute any written marital 2. 5 years in case the absentee has left a
agreement providing that the separation of property regime will govern their property person in charge of the administration of
relationship, they cannot, after the marriage ceremony, alter their property relationship to his property.
a separate property regime without mandatory judicial approval. Ø Who may file:
1. Present spouse;
2. Heirs instituted in a will who may present
an authentic copy of the same;
3. Relatives who may succeed by the law of
intestacy; and
4. Those who may have over the property
some right subordinated to the condition
of his or her death.
Ø Takes effect 6 months after publication.

68 YAP, K. | ATENEO LAW


(3) Spouse of the petitioner Ø Loss of parental authority – loss of such authority
loses parental authority as over the common child, whether legitimate or
decreed by the court. illegitimate, of the spouse of the petitioner and the
petitioner, or over the child, whether legitimate or
illegitimate, of the spouse of the petitioner with
another person.
o The law does not distinguish.
Ø Grounds for termination (Arts. 229, 231, and 232):
1. Adoption of the child (by another);
2. Appointment of a general guardian;
3. Judicial declaration of abandonment of
the child in a case filed for the purpose;
4. Final judgment of a court;
5. Judicial declaration of absence or
incapacity;
6. Excessive harshness or cruelty;
7. Corrupting orders, counsel or example;
8. Compels the child to beg;
9. Acts of lasciviousness;
10. Nos. 6-9 with culpable negligence;
11. Sexual abuse.
(4) Spouse of the petitioner has Ø A spouse is deemed to have abandoned the other
abandoned the latter or failed when he or she has left the conjugal dwelling
to comply with his or her without any intention of returning and with an intent
obligations to the family as to absolutely forego his or her family duties.
provided for in Art. 101. Ø Prima facie presumption of no intention to return –
when the spouse has left the conjugal dwelling for 3
months or has failed within the same period to give
any information as to his or her whereabouts.
(5) Spouse granted the power Ø In case of such abuse, JSOP may be availed of by
of administration in the the aggrieved spouse to avoid further depletion of
marriage settlement has abused his or her interest in the property.
that power. Ø Abuse – connotes willful and utter disregard of the
interests of the partnership, evidence by a repetition
of deliberate acts and/or omissions prejudicial to the
latter.
(6) At the time of the petition, Ø Requisites:
separated-in-fact for at least 1 1. Separation in fact for at least 1 year at the
year and reconciliation is time of the petition; and
highly improbable. 2. Reconciliation is highly improbable.
Causes for Revival
(1) When the civil interdiction terminates;
(2) Absentee spouse reappears;
(3) For abuse of administration, when the court authorizes resumption of administration;
(4) Spouse who has left the conjugal home without a decree of legal separation resumes
common life with the other;
(5) Parental authority is judicially restored;
(6) Reconciliation after separation in fac;
69
(7) After voluntary dissolution was declared, joint petition of the spouses agreeing to
revive the former property regime. No voluntary separation of property may thereafter be
granted.
ART. 136. THE SPOUSES MAY JOINTLY FILE A VERIFIED PETITION WITH THE COURT FOR THE
VOLUNTARY DISSOLUTION OF THE ABSOLUTE COMMUNITY OR THE CONJUGAL PARTNERSHIP
OF GAINS, AND FOR THE SEPARATION OF THEIR COMMON PROPERTIES.
ALL CREDITORS OF THE ABSOLUTE COMMUNITY OR OF THE CONJUGAL PARTNERSHIP OF
GAINS, AS WELL AS THE PERSONAL CREDITORS OF THE SPOUSE, SHALL BE LISTED IN THE
PETITION AND NOTIFIED OF THE FILING THEREOF. THE COURT SHALL TAKE MEASURES TO
PROTECT THE CREDITORS AND OTHER PERSONS WITH PECUNIARY INTEREST.
Ø This involves first a dissolution of the common properties and then for separation of
common properties. Before being effective, such separation of property must have court
approval. Otherwise, it shall be void.
o General rule: The petition need not state any reason for the conversion, the
agreement of the parties is enough.
§ Exception: When the reason is against public policy, the court must
reject the agreement.
Ø All creditors of the common property must be notified of the filing thereof.
o In case of a waiver of one of the spouses, any creditor of the spouse making the
waiver may petition the court to rescind the waiver to the extent of the amount
sufficient to cover the amount of his credit.
o When the judgment by way of compromise agreement dissolving the conjugal
partnership of spouses has become final and executory, the fact that the creditors
were not notified will not invalidate such a judgment. A judgment upon a
compromise agreement has the force and effect of any other judgment, and
conclusive only upon parties thereto and their privies, and NOT BINDING on
third persons who are not parties to it. (De Ugalde v. De Yasi, 2008)
ART. 137. ONCE THE SEPARATION OF PROPERTY HAS BEEN DECREED, THE ABSOLUTE
COMMUNITY OR THE CONJUGAL PARTNERSHIP OF GAINS SHALL BE LIQUIDATED IN
CONFORMITY WITH THIS CODE.
DURING THE PENDENCY OF THE PROCEEDINGS FOR SEPARATION OF PROPERTY, THE ABSOLUTE
COMMUNITY OR THE CONJUGAL PARTNERSHIP SHALL PAY FOR THE SUPPORT OF THE SPOUSES
AND THEIR CHILDREN.
Ø The processes in Arts. 102 and 129 must be observed. However, the delivery of
presumptive legitimes provided for in the said provisions need not be complied with.
Ø During the pendency of the proceedings for JSOP, the ACP or CPG shall pay for the
support of the spouses and their children.
ART. 138. AFTER DISSOLUTION OF THE ABSOLUTE COMMUNITY OR OF THE CONJUGAL
PARTNERSHIP, THE PROVISIONS ON COMPLETE SEPARATION OF PROPERTY SHALL APPLY.
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Ø The mere filing of the petition to initiate the proceeding shall not automatically result in 1. When the civil interdiction terminates;
the dissolution of the ACP or CPG. It is the finality of the decision of the court decreeing 2. Absentee spouse reappears;
the separation which dissolves the same. 3. For abuse of administration, when the court authorizes resumption of
o As to properties each of the spouses may have acquired or expenses each of them administration.
may have incurred after the finality of the decree, the same belong exclusively to 4. Spouse who has left the conjugal home without a decree of legal separation
either of them. resumes common life with the other;
5. Parental authority is judicially restored;
ART. 139. THE PETITION FOR SEPARATION OF PROPERTY AND THE FINAL JUDGMENT GRANTING 6. Reconciliation after separation in fact; and
THE SAME SHALL BE RECORDED IN THE PROPER LOCAL CIVIL REGISTRIES AND REGISTRIES OF
7. After voluntary dissolution was declared, joint petition of the spouses agreeing
PROPERTY.
to revive the former property regime. No voluntary separation of property may
thereafter be granted.

ART. 140. THE SEPARATION OF PROPERTY SHALL NOT PREJUDICE THE RIGHTS PREVIOUSLY ART. 142. THE ADMINISTRATION OF ALL CLASSES OF EXCLUSIVE PROPERTY OF EITHER SPOUSE
ACQUIRED BY CREDITORS. MAY BE TRANSFERRED BY THE COURT TO THE OTHER SPOUSE:

(1) WHEN ONE SPOUSE BECOMES THE GUARDIAN OF THE OTHER;

Ø The recording in the civil registry of the Judicial Decree of Separation of Property (JDSOP)
is to aid present and future creditors in determining whether an asset of a spouse is conjugal
or really separate.
Ø The separation of property shall not prejudice the rights previously acquired by the
creditors.
(2) WHEN ONE SPOUSE IS JUDICIALLY DECLARED AN ABSENTEE;
(3) WHEN ONE SPOUSE IS SENTENCED TO A PENALTY WHICH CARRIES WITH IT CIVIL
INTERDICTION; OR
(4) WHEN ONE SPOUSE BECOMES A FUGITIVE FROM JUSTICE OR IS IN HIDING AS AN ACCUSED IN
A CRIMINAL CASE.

ART. 141. THE SPOUSES MAY, IN THE SAME PROCEEDINGS WHERE SEPARATION OF PROPERTY IF THE OTHER SPOUSE IS NOT QUALIFIED BY REASON OF INCOMPETENCE, CONFLICT OF
WAS DECREED, FILE A MOTION IN COURT FOR A DECREE REVIVING THE PROPERTY REGIME INTEREST, OR ANY OTHER JUST CAUSE, THE COURT SHALL APPOINT A SUITABLE PERSON TO BE
THAT EXISTED BETWEEN THEM BEFORE THE SEPARATION OF PROPERTY IN ANY OF THE THE ADMINISTRATOR.
FOLLOWING INSTANCES:

(1) WHEN THE CIVIL INTERDICTION TERMINATES; Fig. 23

(2) WHEN THE ABSENTEE SPOUSE REAPPEARS; Transfer of Administration of All Classes of Exclusive Property of Either Spouse
(3) WHEN THE COURT, BEING SATISFIED THAT THE SPOUSE GRANTED THE POWER OF (1) One spouse becomes the Ø When a spouse is judicially appointed guardian of
ADMINISTRATION IN THE MARRIAGE SETTLEMENTS WILL NOT AGAIN ABUSE THAT POWER,
guardian of the other. his or her spouse, he or she may likewise be
AUTHORIZES THE RESUMPTION OF SAID ADMINISTRATION;
constituted as the administrator of the estate of the
(4) WHEN THE SPOUSE WHO HAS LEFT THE CONJUGAL HOME WITHOUT A DECREE OF LEGAL other spouse.
SEPARATION RESUMES COMMON LIFE WITH THE OTHER;
o Because the spouse is already obliged by
(5) WHEN PARENTAL AUTHORITY IS JUDICIALLY RESTORED TO THE SPOUSE PREVIOUSLY law to live with and take care of his or her
DEPRIVED THEREOF;
spouse.
(6) WHEN THE SPOUSES WHO HAVE SEPARATED IN FACT FOR AT LEAST ONE YEAR, RECONCILE
AND RESUME COMMON LIFE; OR (2) One spouse is judicially Ø These 2 grounds are exactly the same as in Art. 135
(7) WHEN AFTER VOLUNTARY DISSOLUTION OF THE ABSOLUTE COMMUNITY OF PROPERTY OR declared an absentee. (1) and (2).
CONJUGAL PARTNERSHIP HAS BEEN JUDICIALLY DECREED UPON THE JOINT PETITION OF THE (3) One spouse is sentenced to
SPOUSES, THEY AGREE TO THE REVIVAL OF THE FORMER PROPERTY REGIME. NO VOLUNTARY a penalty which carries with it
SEPARATION OF PROPERTY MAY THEREAFTER BE GRANTED. civil interdiction.
THE REVIVAL OF THE FORMER PROPERTY REGIME SHALL BE GOVERNED BY A RTICLE 67. (4) One spouse becomes a Ø Fugitive from justice – one who having committed
fugitive from justice or is or being accused of a crime in one jurisdiction is
hiding as an accused in a absent for any reason from that jurisdiction;
Ø The termination of the causes under Art. 135 constitutes the grounds to be able to revive criminal case. specifically, one who flees to avoid punishment.
the previous property regime. The parties can, however, file another petition for JSOP once
there are grounds again to initiate the same even if the ground invoked were the same *(5) Separation in fact Ø In cases of separation in fact, one spouse may, as an
ground previously used. exception, file a petition in a summary proceeding
o REMEMBER to distinguish whether voluntary or involuntary JSOP. to be giving judicial authority to administer the
Ø Causes for revival: property of the other spouse in the absence of

70 YAP, K. | ATENEO LAW


sufficient common property, because the separate
property of both spouses shall be solidarily liable.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or any
other just cause, the court shall instead appoint a suitable person to be administrator.
CHAPTER SIX: REGIME OF SEPARATION OF PROPERTY
ART. 143. SHOULD THE FUTURE SPOUSES AGREE IN THE MARRIAGE SETTLEMENTS THAT THEIR
PROPERTY RELATIONS DURING MARRIAGE SHALL BE GOVERNED BY THE REGIME OF
SEPARATION OF PROPERTY, THE PROVISIONS OF THIS CHAPTER SHALL BE SUPPLETORY .
Ø If the parties want their property relationship to be governed by Separation of Property
(SOP), they have to enter into a valid marriage settlement prior to the marriage stipulating
such regime.
o Such marriage settlement principally governs their property relationship, and the
provisions of this Chapter shall apply suppletorily.
ART. 144. SEPARATION OF PROPERTY MAY REFER TO PRESENT OR FUTURE PROPERTY OR
BOTH. IT MAY BE TOTAL OR PARTIAL. IN THE LATTER CASE, THE PROPERTY NOT AGREED UPON
AS SEPARATE SHALL PERTAIN TO THE ABSOLUTE COMMUNITY.
Ø The parties may agree on the extent of their separation of property regime. It may involve
present or future property or both. It may be total or partial.
o If partial, the property not agreed upon as separate shall pertain to the ACP.
Ø It is not valid for the contracting parties to agree in the marriage settlement that the ACP
or CPG shall govern their property relationship only up to a certain time, and thereafter the
SOP shall govern.
ART. 145. EACH SPOUSE SHALL OWN, DISPOSE OF, POSSESS, ADMINISTER AND ENJOY HIS OR
HER OWN SEPARATE ESTATE, WITHOUT NEED OF THE CONSENT OF THE OTHER. TO EACH
SPOUSE SHALL BELONG ALL EARNINGS FROM HIS OR HER PROFESSION, BUSINESS OR INDUSTRY
AND ALL FRUITS, NATURAL, INDUSTRIAL OR CIVIL, DUE OR RECEIVED DURING THE MARRIAGE
FROM HIS OR HER SEPARATE PROPERTY.
ART. 146. BOTH SPOUSES SHALL BEAR THE FAMILY EXPENSES IN PROPORTION TO THEIR
INCOME, OR, IN CASE OF INSUFFICIENCY OR DEFAULT THEREOF, TO THE CURRENT MARKET
VALUE OF THEIR SEPARATE PROPERTIES.
THE LIABILITIES OF THE SPOUSES TO CREDITORS FOR FAMILY EXPENSES SHALL, HOWEVER, BE
SOLIDARY.
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CHAPTER SEVEN: PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
ART. 147. WHEN A MAN AND A WOMAN WHO ARE CAPACITATED TO MARRY EACH OTHER,
LIVE EXCLUSIVELY WITH EACH OTHER AS HUSBAND AND WIFE WITHOUT THE BENEFIT OF
MARRIAGE OR UNDER A VOID MARRIAGE, THEIR WAGES AND SALARIES SHALL BE OWNED BY
THEM IN EQUAL SHARES AND THE PROPERTY ACQUIRED BY BOTH OF THEM THROUGH THEIR
WORK OR INDUSTRY SHALL BE GOVERNED BY THE RULES ON CO-OWNERSHIP.
IN THE ABSENCE OF PROOF TO THE CONTRARY, PROPERTIES ACQUIRED WHILE THEY LIVED
TOGETHER SHALL BE PRESUMED TO HAVE BEEN OBTAINED BY THEIR JOINT EFFORTS, WORK OR
INDUSTRY, AND SHALL BE OWNED BY THEM IN EQUAL SHARES. FOR PURPOSES OF THIS
ARTICLE, A PARTY WHO DID NOT PARTICIPATE IN THE ACQUISITION BY THE OTHER PARTY OF
ANY PROPERTY SHALL BE DEEMED TO HAVE CONTRIBUTED JOINTLY IN THE ACQUISITION
THEREOF IF THE FORMER'S EFFORTS CONSISTED IN THE CARE AND MAINTENANCE OF THE
FAMILY AND OF THE HOUSEHOLD .
NEITHER PARTY CAN ENCUMBER OR DISPOSE BY ACTS INTER VIVOS OF HIS OR HER SHARE IN
THE PROPERTY ACQUIRED DURING COHABITATION AND OWNED IN COMMON, WITHOUT THE
CONSENT OF THE OTHER, UNTIL AFTER THE TERMINATION OF THEIR COHABITATION.
WHEN ONLY ONE OF THE PARTIES TO A VOID MARRIAGE IS IN GOOD FAITH, THE SHARE OF THE
PARTY IN BAD FAITH IN THE CO-OWNERSHIP SHALL BE FORFEITED IN FAVOR OF THEIR
COMMON CHILDREN . IN CASE OF DEFAULT OF OR WAIVER BY ANY OR ALL OF THE COMMON
CHILDREN OR THEIR DESCENDANTS , EACH VACANT SHARE SHALL BELONG TO THE RESPECTIVE
SURVIVING DESCENDANTS . IN THE ABSENCE OF DESCENDANTS, SUCH SHARE SHALL BELONG
TO THE INNOCENT PARTY. IN ALL CASES , THE FORFEITURE SHALL TAKE PLACE UPON
TERMINATION OF THE COHABITATION.
Ø Requisites:
1. Man and woman must be capacitated to marry each other;
2. Live exclusively with each other as husband and wife; and
3. Without the benefit of marriage or under a void marriage.
§ Includes void marriages under:
1. Art. 36 – psychological incapacity.
2. Art. 44 – subsequent marriage (after JDPD) where both
spouse are in bad faith.
3. Art. 53 – subsequent marriage without complying with Art.
52 – judgment of annulment or nullity, partition and
distribution of properties, delivery of presumptive legitimes.
4. Void marriages where there is absence of consent, authority
of the solemnizing officer, a valid marriage license, or a
marriage ceremony.
Ø Paragraphs (2), (3), (4) and (5) of Art. 43 relates only to, by explicit terms of Art. 50:
1. Voidable marriages under Art. 45 of the Family Code; and
2. Void marriages under Art. 40 of the Family Code.
Ø If the void marriage is any void marriage other than the subsequent void marriage in Art.
40 (no JDNOM or JDAOM), the forfeiture shall be in accordance with Art. 147 or 148, as
the case may be.
Ø Rules to remember:
1. Wages and salaries shall be owned in equal shares.
YAP, K. | ATENEO LAW
2. General rule: Properties acquired during cohabitation are presumed to be
common property.
§ Exception: Proof to the contrary. (Ex. proven bought with the
exclusive money of one spouse)
§ Presumption that the other party contributed to the acquisition of
property arises when the other party’s efforts consisted in the care and
maintenance of the family and household.
3. Neither party can encumber or dispose by acts inter vivos of his or her share in
the property acquired during cohabitation and owned in common, without the
consent of the other, until after the termination of their cohabitation.
4. When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be forfeited in favor of their common
children.
§ In case of default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the respective
surviving descendants.
§ In the absence of descendants, such share shall belong to the innocent
party.
§ In all cases, the forfeiture shall take place upon termination of the
cohabitation.
1. Only the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common
in proportion to their respective contributions.
§ In the absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and evidences of
credit.
2. If one of the parties is validly married to another, his or her share in the co-
ownership shall accrue to the absolute community or conjugal partnership
existing in such valid marriage.
§ If the party who acted in bad faith is not validly married to another, his
or her shall be forfeited in the manner provided in the last paragraph of
the preceding article.
3. The foregoing rules on forfeiture shall likewise apply even if both parties are in
bad faith.

ART. 148. IN CASES OF COHABITATION NOT FALLING UNDER THE PRECEDING ARTICLE, ONLY
THE PROPERTIES ACQUIRED BY BOTH OF THE PARTIES THROUGH THEIR ACTUAL JOINT
CONTRIBUTION OF MONEY, PROPERTY , OR INDUSTRY SHALL BE OWNED BY THEM IN COMMON
IN PROPORTION TO THEIR RESPECTIVE CONTRIBUTIONS. IN THE ABSENCE OF PROOF TO THE
CONTRARY , THEIR CONTRIBUTIONS AND CORRESPONDING SHARES ARE PRESUMED TO BE
EQUAL. THE SAME RULE AND PRESUMPTION SHALL APPLY TO JOINT DEPOSITS OF MONEY AND
EVIDENCES OF CREDIT.

IF ONE OF THE PARTIES IS VALIDLY MARRIED TO ANOTHER, HIS OR HER SHARE IN THE CO-
OWNERSHIP SHALL ACCRUE TO THE ABSOLUTE COMMUNITY OR CONJUGAL PARTNERSHIP
EXISTING IN SUCH VALID MARRIAGE. IF THE PARTY WHO ACTED IN BAD FAITH IS NOT VALIDLY
MARRIED TO ANOTHER, HIS OR HER SHALL BE FORFEITED IN THE MANNER PROVIDED IN THE
LAST PARAGRAPH OF THE PRECEDING ARTICLE.

THE FOREGOING RULES ON FORFEITURE SHALL LIKEWISE APPLY EVEN IF BOTH PARTIES ARE IN
BAD FAITH.

Ø The structure of this property regime is that of a limited co-ownership.

o The parties may only be deemed to be co-owners of property acquired during the
cohabitation and only upon proof that each made an actual contribution to its
acquisition.
Ø Relationships contemplated:
1. A man and a woman living together as husband and wife without benefit of
marriage, but are not capacitated to marry;
2. An adulterous relationship even if it occurred prior to the effectivity of the
Family Code;
3. A bigamous or polygamous marriage;
4. Incestuous void marriages under Art. 37; and
5. Void marriages by reason of public policy under Art. 38.
Ø Rules to remember:
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TITLE FIVE: THE FAMILY
CHAPTER ONE: THE FAMILY AS AN INSTITUTION
ART. 149. THE FAMILY, BEING THE FOUNDATION OF THE NATION, IS A BASIC SOCIAL
INSTITUTION WHICH PUBLIC POLICY CHERISHES AND PROTECTS . CONSEQUENTLY, FAMILY
RELATIONS ARE GOVERNED BY LAW AND NO CUSTOM, PRACTICE OR AGREEMENT
DESTRUCTIVE OF THE FAMILY SHALL BE RECOGNIZED OR GIVEN EFFECT.
Ø The 1987 Philippine Constitution provides that “the State recognizes the sanctity of family
life and shall protect and strengthen the family as a basic social institution.”
Ø The Rules of Civil Procedure provide that the “husband and wife shall sue or be sued jointly
except as provided by law.”
o This means that they shall be sued together, but this does not refer to the nature
of the liability. When the spouses are sued for the enforcement of an obligation
entered into by them or that which redounds to the benefit of the family, they are
being impleaded in their capacity as representatives of the ACP or CPG, not as
independent debtors.
§ This stems from the general rule that the spouses are joint
administrators of their common property.
o Since a spouse is a co-owner of common property, he or she can undertake
anything beneficial to the ACP or CPG, including the filing by himself or herself
alone of a case for the recovery of common property. The other spouse is neither
an indispensable nor a necessary party.
Ø Family relations are governed by law and no custom, practice or agreement destructive of
the family shall be recognized or given effect.
ART. 150. FAMILY RELATIONS INCLUDE THOSE :
(1) BETWEEN HUSBAND AND WIFE ;
(2) BETWEEN PARENTS AND CHILDREN;
(3) AMONG BROTHERS AND SISTERS, WHETHER OF THE FULL OR HALF-BLOOD.
ART. 151. NO SUIT BETWEEN MEMBERS OF THE SAME FAMILY SHALL PROSPER UNLESS IT
SHOULD APPEAR FROM THE VERIFIED COMPLAINT OR PETITION THAT EARNEST EFFORTS
TOWARD A COMPROMISE HAVE BEEN MADE, BUT THAT THE SAME HAVE FAILED. IF IT IS SHOWN
THAT NO SUCH EFFORTS WERE IN FACT MADE , THE SAME CASE MUST BE DISMISSED.
THESE RULES SHALL NOT APPLY TO CASES WHICH MAY NOT BE THE SUBJECT OF COMPROMISE
UNDER THE CIVIL CODE.
Ø Family relations:
1. Husband and wife;
2. Parents and children; and
3. Brothers and sisters, whether of the full or half-blood.
§ Any person not included in the numeration cannot be considered as
within the term “family relations.” (Ex. husband and sister-in-law,
collateral relatives who are not brothers and sisters)
§ The petition must be verified, if not, the court shall cause it to be done.
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Ø General rule: Failure to exert earnest efforts in these situations is specifically made a
ground for a motion to dismiss.
o Exceptions:
1. When included in the suit between family members is a stranger not of
the same family, as the interest of such stranger may differ from the
interest of members of the same family.
2. Cases which may not be compromised:
a. Civil status of persons;
b. Validity of a marriage or of a legal separation;
c. Ground for legal separation;
d. Jurisdiction of courts;
e. Future support; and
f. Future legitime.
3. Special proceedings. (Ex. Petition for settlement of estate
guardianship, custody of children, and habeas corpus)
Ø Exemption from criminal liability in crimes against property:
1. Spouses, ascendants, and descendants or relatives by affinity in the same line;
2. Widowed spouse with respect to the property which belonged to the deceased
spouse before the same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
CHAPTER TWO: THE FAMILY HOME
ART. 152. THE FAMILY HOME, CONSTITUTED JOINTLY BY THE HUSBAND AND THE WIFE OR BY
AN UNMARRIED HEAD OF A FAMILY, IS THE DWELLING HOUSE WHERE THEY AND THEIR FAMILY
RESIDE, AND THE LAND ON WHICH IT IS SITUATED.
ART. 153. THE FAMILY HOME IS DEEMED CONSTITUTED ON A HOUSE AND LOT FROM THE TIME
IT IS OCCUPIED AS A FAMILY RESIDENCE. F ROM THE TIME OF ITS CONSTITUTION AND SO LONG
AS ANY OF ITS BENEFICIARIES ACTUALLY RESIDES THEREIN, THE FAMILY HOME CONTINUES TO
BE SUCH AND IS EXEMPT FROM EXECUTION, FORCED SALE OR ATTACHMENT EXCEPT AS
HEREINAFTER PROVIDED AND TO THE EXTENT OF THE VALUE ALLOWED BY LAW.
Ø Family home – deemed constituted on a house and land from the time it is actually occupied
as a family residence – if the husband and wife, head of the family or the beneficiaries
actually reside in the premises, it can be a family home as contemplated by law. The family
home is generally exempt from execution, forced sale or attachment.
o Elements:
1. Permanence of the land; and
2. Actual occupancy of the any beneficiary with the consent of either
spouse, or the unmarried head of the family.
3. Part of the ACP, CPG, or exclusive property of either spouse with the
latter’s consent, or exclusive property of the unmarried head of a
family.
o There must be an element of permanence. Hence, a boat on water cannot be
constituted a family home.
o Residing in the family home is a real right – attached to a thing rather than to a
person.
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Ø All residential houses used as a family home, with or without having been judicially or
extrajudicially constituted as such prior to the effectivity of the Family Code, are deemed
constituted by operation of law as a family home on August 3, 1988.
o The family home shall thereafter be prospectively entitled to all benefits provided
under the Family Code.
o To be able to avail of the benefits of a family home in relation to debts which
matured PRIOR TO August 3, 1988, it must be shown that the home was
constituted either judicially or extra-judicially pursuant to the Civil Code.
Ø General rule: A family home cannot be constituted by the wife or husband ALONE. It must
be done jointly.
o Exceptions:
1. An unmarried head of the family can constitute the family home by
himself or herself.
2. The occupancy of any of the beneficiaries can likewise constitute a
home as a family home.
Ø General rule: A family home is exempted from execution, forced sale or attachment from
the time of the constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.
o Exception: Art. 155 and Art. 160 –
1. Nonpayment of taxes;
2. Debts incurred prior to constitution of the family home;
3. Debts secured by mortgages on the family home before or after such
constitution; and
4. Debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or furnished material for the
construction of the building.
5. A judgment creditor whose claim is not among nos. 1-4 may apply for
the family home’s execution if he has reasonable grounds to believe
that the family home is actually worth more than the maximum amount
fixed in Art. 157.
• Art. 157 – Must not exceed Php300,000 in urban areas; must
not exceed Php200,000 in rural areas, or such amounts as
may hereafter be fixed by law.
Ø Summary of rules on constitution and effectivity of exemption:
1. Family residences constructed BEFORE August 3, 1988 must be constituted as
a family home either judicially or extrajudicially in accordance with the
provisions of the Civil Code.
2. Family residences constructed AFTER August 3, 1988 are automatically deemed
to be family homes, and remain as such as long as any of its beneficiaries actually
resides therein.
3. Family residences which were not judicially or extrajudicially constituted as
family homes BEFORE August 3, 1988, but were existing THEREAFTER, are
considered family homes by operation of law and are PROSPECTIVELY
entitled to the benefits accorded to a family home under the Family Code.
Ø Exemption of the family home is a personal right – must be claimed and proved before the
sale at the public auction. (Versola v. CA, 2006)
o Failure to do so would estop the party from later claiming the exemption.
74
ART. 154. THE BENEFICIARIES OF A FAMILY HOME ARE :
(1) THE HUSBAND AND WIFE, OR AN UNMARRIED PERSON WHO IS THE HEAD OF A FAMILY; AND
(2) THEIR PARENTS, ASCENDANTS, DESCENDANTS, BROTHERS AND SISTERS, WHETHER THE
RELATIONSHIP BE LEGITIMATE OR ILLEGITIMATE, WHO ARE LIVING IN THE FAMILY HOME AND
WHO DEPEND UPON THE HEAD OF THE FAMILY FOR LEGAL SUPPORT.
Ø Requisites of beneficiaries:
1. They must be among the relationships enumerated in Art. 154;
2. They live in the family home; and
3. They are dependent for legal support upon the head of the family.
Ø Beneficiaries of the family home:
1. Husband and wife, or an unmarried head of the family; and
2. Their parents, ascendants, descendants, brothers and sisters, whether legitimate
or illegitimate, who are living in the family home and are dependent on the head
of the family for legal support.
3. In-laws, provided the family home is constituted jointly by the husband and the
wife.
Ø It’s important to know the beneficiaries because their ACTUAL OCCUPANCY of a home
constitutes the same as a family home, provided such occupancy is with the consent of
either the husband or wife who own the house and lot, or of the unmarried head of the
family.
o They are beneficiaries because they are most likely to be affected by the
constitution of the family home and its disposition.
ART. 155. THE FAMILY HOME SHALL BE EXEMPT FROM EXECUTION, FORCED SALE OR
ATTACHMENT EXCEPT:
(1) FOR NONPAYMENT OF TAXES;
(2) FOR DEBTS INCURRED PRIOR TO THE CONSTITUTION OF THE FAMILY HOME;
(3) FOR DEBTS SECURED BY MORTGAGES ON THE PREMISES BEFORE OR AFTER SUCH
CONSTITUTION; AND
(4) FOR DEBTS DUE TO LABORERS, MECHANICS, ARCHITECTS, BUILDERS, MATERIALMEN AND
OTHERS WHO HAVE RENDERED SERVICE OR FURNISHED MATERIAL FOR THE CONSTRUCTION OF
THE BUILDING.
Ø Taxes are the lifeblood of the government. Hence, their prompt and certain availability is
an imperious need.
o Source of revenue of the government to keep it running.
Ø A court judgment is not necessary to clothe a pre-existing debt under Art. 155 with the
privileged character of being enforceable against the family home.
o Hence, a debt or obligation shall be considered to have arisen not from the time
the court issues such judgment debt, but from the time it actually arose.
o Debts and obligations includes money judgment arising from tort, etc.
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ART. 156. THE FAMILY HOME MUST BE PART OF THE PROPERTIES OF THE ABSOLUTE
COMMUNITY OR THE CONJUGAL PARTNERSHIP , OR OF THE EXCLUSIVE PROPERTIES OF EITHER
SPOUSE WITH THE LATTER'S CONSENT. IT MAY ALSO BE CONSTITUTED BY AN UNMARRIED
HEAD OF A FAMILY ON HIS OR HER OWN PROPERTY.
NEVERTHELESS, PROPERTY THAT IS THE SUBJECT OF A CONDITIONAL SALE ON INSTALLMENTS
WHERE OWNERSHIP IS RESERVED BY THE VENDOR ONLY TO GUARANTEE PAYMENT OF THE
PURCHASE PRICE MAY BE CONSTITUTED AS A FAMILY HOME.
Ø The family home must be a part of either:
1. Absolute community property of the spouses;
2. Conjugal partnership of gains of the spouses;
3. Exclusive property of either spouse, with the consent of such owner spouse; or
4. Exclusive property of the unmarried head of a family.
Ø An apartment unit or a house being merely rented cannot be constituted as a family home,
much less a house constructed on the property of another. (Taneo v. CA, 1999)
ART. 157. THE ACTUAL VALUE OF THE FAMILY HOME SHALL NOT EXCEED, AT THE TIME OF ITS
CONSTITUTION, THE AMOUNT OF THE THREE HUNDRED THOUSAND PESOS IN URBAN AREAS,
AND TWO HUNDRED THOUSAND PESOS IN RURAL AREAS, OR SUCH AMOUNTS AS MAY
HEREAFTER BE FIXED BY LAW.
IN ANY EVENT, IF THE VALUE OF THE CURRENCY CHANGES AFTER THE ADOPTION OF THIS
CODE, THE VALUE MOST FAVORABLE FOR THE CONSTITUTION OF A FAMILY HOME SHALL BE
THE BASIS OF EVALUATION.
FOR PURPOSES OF THIS ARTICLE, URBAN AREAS ARE DEEMED TO INCLUDE CHARTERED CITIES
AND MUNICIPALITIES WHOSE ANNUAL INCOME AT LEAST EQUALS THAT LEGALLY REQUIRED
FOR CHARTERED CITIES. ALL OTHERS ARE DEEMED TO BE RURAL AREAS.
Ø Rules to remember:
1. If at the time of the constitution, the home was more than the value fixed by the
law, such home is not a family home. Therefore, it is not exempted from
execution, forced sale or attachment.
2. If the value of the currency changes after the adoption of the Family Code, the
value most favorable for the constitution of a family home shall be the basis of
the valuation.
3. If after constitution, the value of the home increased due to improvements or
renovations to an amount more than that fixed by law at the time of the
constitution, such family home will remain a family home.
Ø Those who can afford more expensive homes do not need any protection. The law is
intended to protect the middle-class and to discourage them from spending all their money
in a family home.
ART. 158. THE FAMILY HOME MAY BE SOLD, ALIENATED, DONATED, ASSIGNED OR
ENCUMBERED BY THE OWNER OR OWNERS THEREOF WITH THE WRITTEN CONSENT OF THE
PERSON CONSTITUTING THE SAME, THE LATTER'S SPOUSE, AND A MAJORITY OF THE
BENEFICIARIES OF LEGAL AGE . IN CASE OF CONFLICT, THE COURT SHALL DECIDE.
75
Ø For a family home to be sold, alienated, donated, assigned or encumbered, there must be a
written consent of the:
1. Person constituting the same;
2. Latter’s spouse; and
3. Majority of the beneficiaries of legal age.
ART. 159. THE FAMILY HOME SHALL CONTINUE DESPITE THE DEATH OF ONE OR BOTH SPOUSES
OR OF THE UNMARRIED HEAD OF THE FAMILY FOR A PERIOD OF TEN YEARS OR FOR AS LONG AS
THERE IS A MINOR BENEFICIARY, AND THE HEIRS CANNOT PARTITION THE SAME UNLESS THE
COURT FINDS COMPELLING REASONS THEREFOR. THIS RULE SHALL APPLY REGARDLESS OF
WHOEVER OWNS THE PROPERTY OR CONSTITUTED THE FAMILY HOME.
Ø The security of the family is a concern of the law, hence the death of the person who
constituted the family home shall not revoke such status for either:
1. A period of 10 years from death; or
2. For as long as there is a minor beneficiary.
ART. 160. WHEN A CREDITOR WHOSE CLAIMS IS NOT AMONG THOSE MENTIONED IN ARTICLE
155 OBTAINS A JUDGMENT IN HIS FAVOR, AND HE HAS REASONABLE GROUNDS TO BELIEVE
THAT THE FAMILY HOME IS ACTUALLY WORTH MORE THAN THE MAXIMUM AMOUNT FIXED IN
ARTICLE 157, HE MAY APPLY TO THE COURT WHICH RENDERED THE JUDGMENT FOR AN ORDER
DIRECTING THE SALE OF THE PROPERTY UNDER EXECUTION. THE COURT SHALL SO ORDER IF IT
FINDS THAT THE ACTUAL VALUE OF THE FAMILY HOME EXCEEDS THE MAXIMUM AMOUNT
ALLOWED BY LAW AS OF THE TIME OF ITS CONSTITUTION. IF THE INCREASED ACTUAL VALUE
EXCEEDS THE MAXIMUM ALLOWED IN ARTICLE 157 AND RESULTS FROM SUBSEQUENT
VOLUNTARY IMPROVEMENTS INTRODUCED BY THE PERSON OR PERSONS CONSTITUTING THE
FAMILY HOME, BY THE OWNER OR OWNERS OF THE PROPERTY, OR BY ANY OF THE
BENEFICIARIES, THE SAME RULE AND PROCEDURE SHALL APPLY.
AT THE EXECUTION SALE, NO BID BELOW THE VALUE ALLOWED FOR A FAMILY HOME SHALL
BE CONSIDERED . THE PROCEEDS SHALL BE APPLIED FIRST TO THE AMOUNT MENTIONED IN
ARTICLE 157, AND THEN TO THE LIABILITIES UNDER THE JUDGMENT AND THE COSTS. THE
EXCESS, IF ANY, SHALL BE DELIVERED TO THE JUDGMENT DEBTOR.
Ø Difference from Art. 155 – here, there is a need for a court decision before a judgment
creditor can avail of the privilege of executing against the family home.
Ø A judgment creditor whose claim is not among nos. 1-4 may apply for the family home’s
execution if he has reasonable grounds to believe that the family home is actually worth
more than the maximum amount fixed in Art. 157.
o Art. 157 – Must not exceed Php300,000 in urban areas; must not exceed
Php200,000 in rural areas, or such amounts as may hereafter be fixed by law.
ART. 161. FOR PURPOSES OF AVAILING OF THE BENEFITS OF A FAMILY HOME AS PROVIDED
FOR IN THIS CHAPTER, A PERSON MAY CONSTITUTE, OR BE THE BENEFICIARY OF , ONLY ONE
FAMILY HOME.
ART. 162. THE PROVISIONS IN THIS CHAPTER SHALL ALSO GOVERN EXISTING FAMILY
RESIDENCES INSOFAR AS SAID PROVISIONS ARE APPLICABLE.
YAP, K. | ATENEO LAW

Ø All existing family residences at the time of the effectivity of the Family Code are
considered family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code.
Ø It does not provide that Chapter 2 of Title V has a retroactive effect.
TITLE SIX: PATERNITY AND FILIATION
CHAPTER ONE: LEGITIMATE CHILDREN
ART. 163. THE FILIATION OF CHILDREN MAY BE BY NATURE OR BY ADOPTION. NATURAL
FILIATION MAY BE LEGITIMATE OR ILLEGITIMATE.
ART. 164. CHILDREN CONCEIVED OR BORN DURING THE MARRIAGE OF THE PARENTS ARE
LEGITIMATE.
CHILDREN CONCEIVED AS A RESULT OF ARTIFICIAL INSEMINATION OF THE WIFE WITH THE
SPERM OF THE HUSBAND OR THAT OF A DONOR OR BOTH ARE LIKEWISE LEGITIMATE CHILDREN
OF THE HUSBAND AND HIS WIFE, PROVIDED, THAT BOTH OF THEM AUTHORIZED OR RATIFIED
SUCH INSEMINATION IN A WRITTEN INSTRUMENT EXECUTED AND SIGNED BY THEM BEFORE
THE BIRTH OF THE CHILD. THE INSTRUMENT SHALL BE RECORDED IN THE CIVIL REGISTRY
TOGETHER WITH THE BIRTH CERTIFICATE OF THE CHILD.
ART. 165. CHILDREN CONCEIVED AND BORN OUTSIDE A VALID MARRIAGE ARE ILLEGITIMATE,
UNLESS OTHERWISE PROVIDED IN THIS CODE.
Ø The status of the children can never be compromised. (Baluyut v. Baluyut, 1990)
Ø Paternity and filiation – the relationship or tie which exists between parents and their
children.
o Kinds of children (OLD):
1. Natural children;
2. Natural children by legal fiction;
3. Acknowledged or recognized natural children; and
4. Illegitimate children other than natural (ex. spurious and adulterous).
o Under the Family Code, there are only 2 classes of children:
1. Legitimate children; and
2. Illegitimate children – General rule: those conceived AND born
outside a valid marriage or inside a void marriage.
• Exceptions:
1. Those conceived or born before the judgment of
annulment or of absolute nullity on the ground of
psychological incapacity (Art. 36); and
2. Those born from a subsequent void marriage due
to failure to comply with Arts. 52 and 53 of the
Family Code.
o Filiation may be had:
1. By nature; or
2. By adoption.
76
Ø The presumption of the legitimacy of a child can only arise upon convincing proof that the
parents of the child were legally married and that the child’s conception or birth occurred
during the subsistence of that marriage. (Angeles v. Maglaya, 2005)
Ø Artificial Insemination
o Types of Artificial Insemination:
1. Homologous – the process by which the wife is artificially
impregnated with the semen of her husband.
2. Heterologous – the artificial insemination of the wife by the semen of
a third-party donor (Artificial Insemination Donor). It may be
consensual (with consent of the husband) or nonconsensual.
o Legitimate, provided that:
1. Both of the spouses authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the
child; and
2. The instrument is recorded in the civil registry together with the birth
certificate of the child.
o There is no “marital infidelity” if there is consent by the husband.
o A wife who, without the consent of the husband, had herself artificially
inseminated by the semen of another which led to the siring of a child not of the
husband, cannot be held criminally liable for adultery.
§ The gravamen sexual intercourse with a man not her husband is not
present.
§ Criminal statutes are to be strictly construed.
ART. 166. LEGITIMACY OF A CHILD MAY BE IMPUGNED ONLY ON THE FOLLOWING GROUNDS:
(1) THAT IT WAS PHYSICALLY IMPOSSIBLE FOR THE HUSBAND TO HAVE SEXUAL INTERCOURSE
WITH HIS WIFE WITHIN THE FIRST 120 DAYS OF THE 300 DAYS WHICH IMMEDIATELY PRECEDED
THE BIRTH OF THE CHILD BECAUSE OF :
(A) THE PHYSICAL INCAPACITY OF THE HUSBAND TO HAVE SEXUAL
INTERCOURSE WITH HIS WIFE ;
(B) THE FACT THAT THE HUSBAND AND WIFE WERE LIVING SEPARATELY
IN SUCH A WAY THAT SEXUAL INTERCOURSE WAS NOT POSSIBLE; OR
(C) SERIOUS ILLNESS OF THE HUSBAND, WHICH ABSOLUTELY PREVENTED
SEXUAL INTERCOURSE ;
(2) THAT IT IS PROVED THAT FOR BIOLOGICAL OR OTHER SCIENTIFIC REASONS, THE CHILD
COULD NOT HAVE BEEN THAT OF THE HUSBAND , EXCEPT IN THE INSTANCE PROVIDED IN THE
SECOND PARAGRAPH OF ARTICLE 164; OR
(3) THAT IN CASE OF CHILDREN CONCEIVED THROUGH ARTIFICIAL INSEMINATION, THE
WRITTEN AUTHORIZATION OR RATIFICATION OF EITHER PARENT WAS OBTAINED THROUGH
MISTAKE, FRAUD, VIOLENCE, INTIMIDATION, OR UNDUE INFLUENCE.
ART. 167. THE CHILD SHALL BE CONSIDERED LEGITIMATE ALTHOUGH THE MOTHER MAY
HAVE DECLARED AGAINST ITS LEGITIMACY OR MAY HAVE BEEN SENTENCED AS AN
ADULTERESS.
Ø Arts. 166 and 167 apply only to situations where the child has been delivered by a woman
who is the child’s natural mother. It does not apply to situations where the alleged mother
did not, in fact, deliver the child herself.
YAP, K. | ATENEO LAW

Grounds for Impugning Legitimacy of A Child
(1) That it was physically
impossible for the husband to
have sexual intercourse with
his wife within the first 120
days of the 300 days which
immediately preceded the birth
of the child.
(2) For biological or other
scientific reasons the child
could not have been that of the
husband, except artificial
insemination.
Fig. 24
Ø Reasons:
1. Physical incapacity of the husband to have
sexual intercourse with his wife;
2. Husband and wife were living separately
“in such a way that sexual intercourse was
not possible;” or
3. Serious illness of the husband, which
absolutely prevented sexual intercourse.
Ø The longest period of gestation (process of
development in the mother’s womb) is 300 days.
However, it is not improbable that it be longer or
shorter.
Ø When a child is born inside a marriage, sexual
intercourse or access is presumed to have occurred
between the spouses within the first 120 days of the
300 days immediately preceding the birth of the
child, and that any day within the 120-day period is
deemed as the possible conception date of a child.
Ø For physical incapacity, there must be convincing
and persuasive evidence that the husband could not
physically consummate the act, in any instance.
o The fact that a husband, who never
separated from his wife, has been
absolutely stiff in the hips at the time of
conception has been held as not
conclusive enough to overturn the
presumption of legitimacy. (State v. Reed,
US case) The wife could’ve dominated. ;)
Ø “Access” means “sexual intercourse” and not
merely presence together of the spouses under
circumstances which afford opportunity for such
intercourse.
Ø Illness must be:
1. Serious; and
2. Such as to absolutely prevent him from
engaging in sexual intercourse.
Ø By the laws of nature, a white couple cannot produce
a black child or mulatto. (Watkins v. Carlton, US
case)
o It is important to present evidence that
neither of the spouses had black child or
mulatto ancestry.
Ø For sterility to constitute proof of non-paternity, the
husband must be shown to be COMPLETELY
sterile at the time when the child was conceived.
o The normal sperm count of a man is 60
million cubic centimeter, but a minimum
77
(3) In case of children
conceived through artificial
insemination, the written
authorization or ratification of
either parent was obtained
through mistake, fraud,
violence, intimidation, or
undue influence.
Ø Who may file:
1. The husband; and
2. In proper cases in Art. 171, the heirs can likewise invoke the grounds.
Ø Art. 167 makes it impossible for the wife to file an action to impugn the legitimacy of her
child.
of 10 million cubic centimeters is enough
to impregnate at a high probability.
Ø The fact of Vasectomy (removal of an inch of the
tubes which is the passage of the sperm from the
testicle to the urethra) is not enough proof because
the sperm can re-channel itself and effect a
fertilization. Hence, vasectomy must be coupled
with concrete proof that:
1. The husband was completely sterile; and
2. Re-channelization did not occur.
Ø Scientific tests for blood-grouping (Leukocyte test
or A-B-O test) have been recognized as accurate
only in excluding paternity, but not in proving the
same.
o DNA results that exclude the putative
father from paternity is conclusive proof
of non-paternity.
o However, a 99.9% of paternity resulting
from DNA tests creates a refutable
presumption of paternity. Any result less
than 99.9% is merely corroborative.
Ø Biological or other scientific reasons cannot be
invoked to impugn legitimacy in cases of artificial
insemination where the second paragraph of Art.
164 has been observed.
Ø While the mother may have indeed been subjected
to these causes, she cannot file a case to impute the
legitimacy of the child because she is not given legal
standing to do so.
o This is because Arts. 167, 170 and 171
provide that the child shall be considered
legitimate although the mother may have
declared against its legitimacy or may
have been sentenced as an adulteress.
Ø If the sperm were the husband’s and he voluntarily
acceded to the artificial insemination, he cannot
attempt to impugn the child’s legitimacy. If he does,
it will fail because the law does not grant him such
ground. The grounds under Art. 166 are exclusive.
Ø If the donor were another man and the husband,
because he objected to the artificial insemination,
did not want to comply with the procedure under
Art. 164, he can impugn the child’s status by
invoking any of the grounds under Art. 166.
YAP, K. | ATENEO LAW

o Even if the wife knows that the child is by a man other than her husband, the
declaration of the wife that the child is illegitimate or the sentencing of the wife
as an adulteress has no bearing and can never affect the legitimate status of the
child born or conceived inside a valid marriage.
Ø PRESUMPTION: In all cases where the husband assails the legitimacy of a child sired by
his wife, all doubts are resolved in favor of legitimacy because of the existence of the
universal presumption of legitimacy.
o May be disregarded only upon convincing evidence.
ART. 168. IF THE MARRIAGE IS TERMINATED AND THE MOTHER CONTRACTED ANOTHER
MARRIAGE WITHIN THREE HUNDRED DAYS AFTER SUCH TERMINATION OF THE FORMER
MARRIAGE, THESE RULES SHALL GOVERN IN THE ABSENCE OF PROOF TO THE CONTRARY:
(1) A CHILD BORN BEFORE ONE HUNDRED EIGHTY DAYS AFTER THE SOLEMNIZATION OF THE
SUBSEQUENT MARRIAGE IS CONSIDERED TO HAVE BEEN CONCEIVED DURING THE FORMER
MARRIAGE, PROVIDED IT BE BORN WITHIN THREE HUNDRED DAYS AFTER THE TERMINATION OF
THE FORMER MARRIAGE;
(2) A CHILD BORN AFTER ONE HUNDRED EIGHTY DAYS FOLLOWING THE CELEBRATION OF THE
SUBSEQUENT MARRIAGE IS CONSIDERED TO HAVE BEEN CONCEIVED DURING SUCH MARRIAGE,
EVEN THOUGH IT BE BORN WITHIN THE THREE HUNDRED DAYS AFTER THE TERMINATION OF
THE FORMER MARRIAGE.
Ø “Access” between spouses is presumed during the marriage. It holds even immediately
before the official termination of marriage. The presumption ceases after termination of
marriage.
o In fact, the presumption will be that they have abided by the decree of annulment
or declaration of nullity, as the case may be, and have separated from each other.
o The presumption of filiation provided herein applies only in the absence of proof
to the contrary.
Ø Once filiation is proved, the presumption of legitimacy attaches. However, the alleged
father can still impugn such legitimacy on the basis of the grounds laid down in Art. 166
and within the prescriptive periods under Art. 170.
Fig. 25
ART. 169. THE LEGITIMACY OR ILLEGITIMACY OF A CHILD BORN AFTER THREE HUNDRED
DAYS FOLLOWING THE TERMINATION OF THE MARRIAGE SHALL BE PROVED BY WHOEVER
ALLEGES SUCH LEGITIMACY OR ILLEGITIMACY.
78
Ø There is no presumption for a child born after 300 days from the termination of the first
marriage.
o In the absence of any subsequent marriage after the termination of the first
marriage, the father of a child born after 300 days from such termination can be
anybody.
o No presumption can attach, thereby necessitating the introduction of evidence by
whoever alleges legitimacy or illegitimacy.
ART. 170. THE ACTION TO IMPUGN THE LEGITIMACY OF THE CHILD SHALL BE BROUGHT
WITHIN ONE YEAR FROM THE KNOWLEDGE OF THE BIRTH OR ITS RECORDING IN THE CIVIL
REGISTER, IF THE HUSBAND OR, IN A PROPER CASE, ANY OF HIS HEIRS , SHOULD RESIDE IN THE
CITY OR MUNICIPALITY WHERE THE BIRTH TOOK PLACE OR WAS RECORDED.
IF THE HUSBAND OR, IN HIS DEFAULT, ALL OF HIS HEIRS DO NOT RESIDE AT THE PLACE OF
BIRTH AS DEFINED IN THE FIRST PARAGRAPH OR WHERE IT WAS RECORDED, THE PERIOD SHALL
BE TWO YEARS IF THEY SHOULD RESIDE IN THE PHILIPPINES; AND THREE YEARS IF ABROAD . IF
THE BIRTH OF THE CHILD HAS BEEN CONCEALED FROM OR WAS UNKNOWN TO THE HUSBAND
OR HIS HEIRS, THE PERIOD SHALL BE COUNTED FROM THE DISCOVERY OR KNOWLEDGE OF THE
BIRTH OF THE CHILD OR OF THE FACT OF REGISTRATION OF SAID BIRTH , WHICHEVER IS
EARLIER.
ART. 171. THE HEIRS OF THE HUSBAND MAY IMPUGN THE FILIATION OF THE CHILD WITHIN THE
PERIOD PRESCRIBED IN THE PRECEDING ARTICLE ONLY IN THE FOLLOWING CASES :
(1) IF THE HUSBAND SHOULD DIE BEFORE THE EXPIRATION OF THE PERIOD FIXED FOR
BRINGING HIS ACTION;
(2) IF HE SHOULD DIE AFTER THE FILING OF THE COMPLAINT WITHOUT HAVING DESISTED
THEREFROM; OR
(3) IF THE CHILD WAS BORN AFTER THE DEATH OF THE HUSBAND.
Ø Impugning the legitimacy of a child is strictly a personal right. It can be impugned only in
a direct suit precisely filed for the purpose.
o This is because it is only the husband who can know that he is not the father of
the child.
o General rule: Only the husband can file a direct action to impugn the legitimacy
of the child.
§ Exception: Husband’s heirs may file the same if (1) he dies before the
expiration of the period fixed or after he files the same, without
desisting therefrom; or (2) if the child was born after his death.
o Hence, an action for the custody of the child, filed by a paramour claiming that
he is a natural father, should be dismissed because only the husband can claim
that the child is illegitimate.
o The purpose for this is to stop those whose only purpose is to break up a family
to satisfy a jealous or revengeful feeling.
Ø Prescriptive periods:
1. If impugner resides in the city where the birth took place or was recorded, 1 year
from knowledge of birth or fact of its recording.
2. If impugner resides in the Philippines other than the city where the birth took
place or was recorded, 2 years from knowledge of birth or its recording.
3. If impugner resides abroad, 3 years from knowledge of birth or its recording.
YAP, K. | ATENEO LAW

CHAPTER TWO: PROOF OF FILIATION
ART. 172. THE FILIATION OF LEGITIMATE CHILDREN IS ESTABLISHED BY ANY OF THE
FOLLOWING:
(1) THE RECORD OF BIRTH APPEARING IN THE CIVIL REGISTER OR A FINAL JUDGMENT; OR
(2) AN ADMISSION OF LEGITIMATE FILIATION IN A PUBLIC DOCUMENT OR A PRIVATE
HANDWRITTEN INSTRUMENT AND SIGNED BY THE PARENT CONCERNED .
IN THE ABSENCE OF THE FOREGOING EVIDENCE, THE LEGITIMATE FILIATION SHALL BE PROVED
BY:
(1) THE OPEN AND CONTINUOUS POSSESSION OF THE STATUS OF A LEGITIMATE CHILD; OR
(2) ANY OTHER MEANS ALLOWED BY THE RULES OF COURT AND SPECIAL LAWS.
Fig. 25
Filiation of Legitimate Children
(1) Record of birth appearing Ø A record of birth in the civil register is considered
in the civil register or final good proof as it proceeds from an official
judgment. government source – considered a public document
and is prima facie evidence of the facts therein
contained.
o Springs from the presumption of
regularity in the performance duties by
public officers.
o If the certificate of live birth is signed by
the parents, more particularly the father,
such is self-authenticating and
consummated acts and therefore there is
no further need to file any action for
acknowledgment. (Montefalcon
Vasquez, 2008)
Ø Final judgment – a judicial decision bearing on the
status of the children as legitimate and hence,
binding and conclusive.
o A final judgment based on a compromise
agreement where the parties stipulated
and agreed on the status of a person is void
against the law and public policy.
(2) Admission of legitimate Ø An admission of legitimate filiation in a public
filiation in a public document instrument or a private handwritten instrument and
or a private handwritten signed by the parent concerned is a complete act of
instrument and signed by the recognition without need of court action. (De Jesus
parent concerned. v. De Jesus, 2001)
o If it is a mere instrument, not in the
handwriting of the supposed parent or not
a public instrument, it will not qualify
under the law.
In Absence of The Above
(1) Open and continuous
possession of the status of a
legitimate child.
(2) Any other means allowed
by the Rules of Court and
Special Laws.
v.
79
Ø This means that the father has treated the child as his
own, directly and not through others, spontaneously
and without concealment though without publicity.
o Continuous does not mean forever, but
that it shall not be of an intermittent
character while it continues.
Ø Evidence must be clear and convincing.
Ø Pictures, typewritten letters, and affidavits do not
constitute proof of filiation. (Berciles v. GSIS, 1984)
Ø The fact alone of use of father’s surname after the
latter’s death, without his assent or consent, does not
constitute proof of filiation. (Ferrer v. Inchausti,
1918)
Ø Baptismal certificates, judicial admissions, a family
bible in which the father’s name has been entered,
common reputation respecting his pedigree,
admission by silence, testimony of witnesses and
such other kinds of proof admissible under Rule 130
of the Rules of Court may prove filiation.
o For baptismal certificates, it must be
shown that the father therein participated
in the preparation of the same. Otherwise,
it is not competent proof of paternity.
(Jison v. CA, 1998)
Ø DNA Testing is a valid means of determining
paternity.
o Like fingerprint analysis, in DNA typing,
“matches” are determined.
o There must be a showing of:
1. How the samples were
collected;
2. How they were handled;
3. Possibility of contamination;
4. Procedure analyzing samples;
5. Proper standards and procedures
were followed in conducting the
tests; and
6. Qualification of the analyst who
conducted the tests.
o Trial courts should require at least 99.9%
as a minimum value of the Probability of
Paternity (W) prior to a paternity
inclusion. If less, only corroborative.
§ Its results are more reliable
when used to exclude paternity.
o The issuance of DNA testing order
remains discretionary upon the court. If
there’s already preponderance of evidence
for paternity, court may disallow testing.
YAP, K. | ATENEO LAW

Ø These evidences can likewise be used to prove illegitimacy as provided under Art. 175.
Ø Although filiation cannot be made to depend on parental physiognomy or bodily marks of
similarity, resemblance between the parent and the child can be competent and material
evidence to establish parentage if such resemblance is accompanied by other strong
evidence to prove the filiation of the child. (Tijing v. CA, 2001)
o In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis, the
extremely subjective test of physical similarity of features will not suffice as
evidence to prove filiation before the courts of law. (Cabatania v. CA, 2004)
ART. 173. THE ACTION TO CLAIM LEGITIMACY MAY BE BROUGHT BY THE CHILD DURING HIS
OR HER LIFETIME AND SHALL BE TRANSMITTED TO THE HEIRS SHOULD THE CHILD DIE DURING
MINORITY OR IN A STATE OF INSANITY. IN THESE CASES, THE HEIRS SHALL HAVE A PERIOD OF
FIVE YEARS WITHIN WHICH TO INSTITUTE THE ACTION.
THE ACTION ALREADY COMMENCED BY THE CHILD SHALL SURVIVE NOTWITHSTANDING THE
DEATH OF EITHER OR BOTH OF THE PARTIES.
Ø A petition to establish filiation is an action in rem because it is concerned with the “status”
of a person. It is validated essentially through publication – notice to the whole world that
the proceeding has for its object to bar indefinitely all who might be minded to make an
objection of any sort to the right sought to be established.
o In personam – lodged against a person based on personal liability.
o In rem – directed against the thing itself instead of the person.
o Quasi in rem – names a person as defendant, but its object is to subject that
person’s interest in a property to a corresponding lien or obligation.
Ø General rule: The right of action for legitimacy devolving upon the child is of a personal
character and generally pertains exclusively to him. Only such child may exercise it during
his lifetime.
o Exception: If the child dies during minority, or while such is insane, or after the
action had already been instituted.
ART. 174. LEGITIMATE CHILDREN SHALL HAVE THE RIGHT:
(1) TO BEAR THE SURNAMES OF THE FATHER AND THE MOTHER, IN CONFORMITY WITH THE
PROVISIONS OF THE CIVIL CODE ON SURNAMES;
(2) TO RECEIVE SUPPORT FROM THEIR PARENTS, THEIR ASCENDANTS, AND IN PROPER CASES,
THEIR BROTHERS AND SISTERS, IN CONFORMITY WITH THE PROVISIONS OF THIS CODE ON
SUPPORT; AND
(3) TO BE ENTITLED TO THE LEGITIMATE AND OTHER SUCCESSIONAL RIGHTS GRANTED TO
THEM BY THE CIVIL CODE.
Ø Rights of the legitimate child:
1. To bear the surnames of the father and mother, in conformity with the provisions
of the Civil Code on surnames;
2. To receive support from their parents, their ascendants, and in proper cases, their
brothers and sisters, in conformity with the provisions of this Code on Support;
and
3. To be entitled to the legitimate and other successional rights granted to them by
the Civil Code.
80
Ø A legitimate child has a whole lifetime to file an action to claim legitimacy, regardless of
what type of proof is provided for under Art. 172.
o An illegitimate child, however, has the same time to file an action to claim
legitimacy only if the proof provided comes under the first enumeration of Art.
172. Otherwise, if under the second enumeration, only during the lifetime of the
alleged parent.
Ø The right of the legitimate child to file an action to claim legitimacy may be transferred to
heirs as provided for in Art. 173. Not applicable to illegitimate children.
Ø As to support from the direct line of relationship, a legitimate child has the right to receive
support from any ascendant or descendant, while an illegitimate child may only demand
support from the grandparents or grandchildren.
Ø As to successional rights, the legitime of the illegitimate child shall only be half of that of
the legitimate child.
Ø A legitimate child generally bears the surname of the father, while an illegitimate child
generally bears the surname of the mother.
Ø A legitimate child can inherit ab intestato from the relatives of his father or mother, while
the illegitimate child has no right to inherit ab intestato therefrom.
CHAPTER THREE: ILLEGITIMATE CHILDREN
ART. 175. ILLEGITIMATE CHILDREN MAY ESTABLISH THEIR ILLEGITIMATE FILIATION IN THE
SAME WAY AND ON THE SAME EVIDENCE AS LEGITIMATE CHILDREN.
THE ACTION MUST BE BROUGHT WITHIN THE SAME PERIOD SPECIFIED IN ARTICLE 173, EXCEPT
WHEN THE ACTION IS BASED ON THE SECOND PARAGRAPH OF A RTICLE 172, IN WHICH CASE
THE ACTION MAY BE BROUGHT DURING THE LIFETIME OF THE ALLEGED PARENT.
Ø In a situation where a philandering husband has a concubine, a child of such concubine by
the said philandering husband is surely illegitimate.
o The illegitimate child may file an action to claim his illegitimate status vis-à-vis
the said philandering husband.
o However, if the concubine herself has her own spouse at the time of conception
and birth, the said illegitimate child cannot file an action to claim his illegitimate
status against the philandering husband although the latter is his natural father.
§ The law declares that a child conceived or born in side a valid marriage
is legitimate. Hence, in this situation, it is the concubine’s husband who
may file a case to impugn the legitimacy of the child.
§ If said concubine’s husband does not file such, the child shall continue
to be a legitimate child of the concubine and her spouse instead of an
illegitimate child of the philandering husband and his concubine, since
the law favors legitimacy.
§ Only the concubine’s spouse and his heirs, in proper cases, are given
the standing to impugn the legitimacy of the child.
Ø The same proofs under Art. 172 apply herein.
Ø Pedigree – relationship, family genealogy, birth, marriage, death, the dates when the places
where these facts occurred, and the names of the relatives.
o Requisites:
1. Declarant is dead or unable to testify;
2. Pedigree must be in issue;
3. Declarant must be a relative of the person whose pedigree is in issue;
4. Declaration must be made before the controversy; and
YAP, K. | ATENEO LAW

5. Relationship between the declarant and the person whose pedigree is
in question must be shown by evidence other than such declaration.
Ø Proof of filiation must be clear and convincing.
o Sec. 4 of Rule 130 includes entries in family bibles or other family books or
charts, engravings on rings, family portraits “and the like” may be received as
evidence of pedigree.
§ Using “ejusdem generis,” such objects are limited to those commonly
known as family possessions or articles which represent in effect a
family’s joint statement of its belief as to the pedigree of a person.
Ø For prescription, the legitimate child has his whole lifetime to file an action for legitimacy,
while the illegitimate child has the same time if the proof involves the first enumeration of
Art. 172. If second enumeration, only during the lifetime of the alleged parent.
o However, remember that a party must first be allowed to adduce the proof of his
illegitimacy to be able to know whether he falls under the first or second
enumeration. (Tayag v. Tayag-Gallor, 2008)
o The death of a putative father is not a bar to the action commenced during the
lifetime by one claiming to be his illegitimate child. The proper remedy in such
a case is the appointment of a legal representative of the deceased.
ART. 176. ILLEGITIMATE CHILDREN SHALL USE THE SURNAME AND SHALL BE UNDER THE
PARENTAL AUTHORITY OF THEIR MOTHER, AND SHALL BE ENTITLED TO SUPPORT IN
CONFORMITY WITH THIS CODE. THE LEGITIME OF EACH ILLEGITIMATE CHILD SHALL CONSIST
OF ONE-HALF OF THE LEGITIME OF A LEGITIMATE CHILD. EXCEPT FOR THIS MODIFICATION,
ALL OTHER PROVISIONS IN THE CIVIL CODE GOVERNING SUCCESSIONAL RIGHTS SHALL
REMAIN IN FORCE.
Ø The illegitimate child is still given substantial rights because no child is responsible for his
birth and penalizing the illegitimate child is an ineffectual and unjust way of deterring the
parent.
Ø It is the mother who has parental authority of an illegitimate child because a putative father
might turn out not to be the real natural father.
o As a consequence, it is the mother who shall have custody of the same.
Ø General rule: Illegitimate children use the surname of the mother.
o Exception: Illegitimate children may use the father’s name if:
1. Filiation has been expressly recognized by the father through the
record of birth appearing in the civil register; or
2. Admission in a public document or private handwritten instrument is
made by the father.
CHAPTER FOUR: LEGITIMATED CHILDREN
ART. 177. ONLY CHILDREN CONCEIVED AND BORN OUTSIDE OF WEDLOCK OF PARENTS WHO,
AT THE TIME OF THE CONCEPTION OF THE FORMER, WERE NOT DISQUALIFIED BY ANY
IMPEDIMENT TO MARRY EACH OTHER MAY BE LEGITIMATED.
ART. 178. LEGITIMATION SHALL TAKE PLACE BY A SUBSEQUENT VALID MARRIAGE BETWEEN
PARENTS. THE ANNULMENT OF A VOIDABLE MARRIAGE SHALL NOT AFFECT THE
LEGITIMATION.
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ART. 179. LEGITIMATED CHILDREN SHALL ENJOY THE SAME RIGHTS AS LEGITIMATE
CHILDREN.
ART. 180. THE EFFECTS OF LEGITIMATION SHALL RETROACT TO THE TIME OF THE CHILD'S
BIRTH.
Ø Legitimation is purely a statutory creation. Laws providing for legitimation are remedial in
character intended for the benefit and protection of the innocent offspring and, therefore,
may be applied retrospectively.
o However, even a liberal construction does not authorize any enlargement or
restriction of plain provisions of the law as written.
o Where the essential elements of legitimation existed prior to the passage of the
legitimating statute, legitimation is deemed to occur as of the time the statute
becomes effective.
Ø Requisites for legitimation:
1. Parents do not suffer any legal impediment or are disqualified to marry because
either one or both of them are 18 years of age at the time of the conception of the
child by the mother;
2. Child has been conceived and born outside of a valid marriage; and
3. Parents subsequently enter into a valid marriage.
§ The annulment of a voidable marriage shall not affect the legitimation.
Ø Before the effectivity of the Family Code on August 3, 1988, before a child can be
legitimated, such child must also be acknowledged by the father, even if the parents enter
into a subsequent valid marriage.
o However, on August 3, 1988, such child shall become legitimated because under
the Family Code, there is no more need for acknowledgment of the father as a
condition for legitimation.
Ø General rule: Legitimation can only occur if both parents, at the time of the conception of
the child, are qualified and have no legal impediment to marry each other.
o Exception: If the impediment is that of one or both parties are less than 18 years
of age at the time of conception of the child, legitimation is allowed.
Ø Legitimated children shall enjoy the rights as legitimate children.
ART. 181. THE LEGITIMATION OF CHILDREN WHO DIED BEFORE THE CELEBRATION OF THE
MARRIAGE SHALL BENEFIT THEIR DESCENDANTS.
Ø The legitimation of children who died before the celebration of the marriage shall benefit
their descendants in order to give the children what they should have enjoyed during the
lifetime of their father or mother.
o In the illegitimate direct-line, great grandparents are not obliged to support their
great grandchildren.
ART. 182. LEGITIMATION MAY BE IMPUGNED ONLY BY THOSE WHO ARE PREJUDICED IN THEIR
RIGHTS, WITHIN FIVE YEARS FROM THE TIME THEIR CAUSE OF ACTION ACCRUES .
Ø Legitimation may be impugned only by those prejudiced in their rights (successional,
commercial or property), within 5 years from the date their cause of action accrues.
o Accrues only upon death of parents or legitimated child for successional rights.
YAP, K. | ATENEO LAW

TITLE SEVEN: ADOPTION o Likewise, a spouse is not entitled to
[AMENDED BY RA 8552: DOMESTIC ADOPTION ACT OF 1998] support from the other during (pendente
[FOR REPORTING] lite) a case where the validity of the
marriage is in issue.
TITLE EIGHT: SUPPORT Ø Once a marriage is declared annulled or void ab
initio, the obligation to give support ceases.
ART. 194. SUPPORT COMPRISES EVERYTHING INDISPENSABLE FOR SUSTENANCE, DWELLING, (2) Legitimate ascendants and Ø The purpose is to ensure that members of a family
CLOTHING, MEDICAL ATTENDANCE, EDUCATION AND TRANSPORTATION, IN KEEPING WITH THE
descendants do not allow any member of the same family to
FINANCIAL CAPACITY OF THE FAMILY.
become a burden to society.
Ø May be refused:
THE EDUCATION OF THE PERSON ENTITLED TO BE SUPPORTED REFERRED TO IN THE PRECEDING o By a husband to a child claiming support
PARAGRAPH SHALL INCLUDE HIS SCHOOLING OR TRAINING FOR SOME PROFESSION, TRADE OR
when such child is the fruit of an
VOCATION, EVEN BEYOND THE AGE OF MAJORITY. TRANSPORTATION SHALL INCLUDE
adulterous relationship (not the child of
EXPENSES IN GOING TO AND FROM SCHOOL, OR TO AND FROM PLACE OF WORK .
the person from whom support is being
sought).
Ø Support includes whatever is necessary or “indispensable” to keep a person alive. (3) Parents and their legitimate Ø The persons obliged to support each other are
o Natural support – basic necessities. children and the legitimate and limited from the grandparents to the grandchildren
o Civil support – anything beyond the basic necessities. illegitimate children of the only, vice versa.
o Schooling – formal education. latter Ø Illegitimate children are included.
o Training – non-formal education.
Ø Support for education extends even beyond the age of majority. (4) Parents and their Ø If in a hearing, the status of the child is in issue, the
Ø Transport includes expenses going to and from school/work. illegitimate children and the alleged child can get support pendente lite from the
legitimate and illegitimate alleged parent if his status as such has been proven
children of the latter provisionally.
ART. 195. SUBJECT TO THE PROVISIONS OF THE SUCCEEDING ARTICLES, THE FOLLOWING ARE o There must be prima facie evidence, such
OBLIGED TO SUPPORT EACH OTHER TO THE WHOLE EXTENT SET FORTH IN THE PRECEDING
as the affidavit of the claimant-child and
ARTICLE: testimonies of witnesses.
(1) THE SPOUSES; (5) Legitimate brothers and Ø Collateral blood relatives obliged to support each
(2) LEGITIMATE ASCENDANTS AND DESCENDANTS; sisters, whether of full or half- other are limited to legitimate brothers and sisters,
(3) PARENTS AND THEIR LEGITIMATE CHILDREN AND THE LEGITIMATE AND ILLEGITIMATE blood whether of the full or half blood.
CHILDREN OF THE LATTER; Ø Excludes uncles, aunts, nephews and nieces.
(4) PARENTS AND THEIR ILLEGITIMATE CHILDREN AND THE LEGITIMATE AND ILLEGITIMATE (6) Illegitimate brothers and Ø Except when:
CHILDREN OF THE LATTER; AND sisters, whether of the full or 1. Such illegitimate brother/sister is of age;
(5) LEGITIMATE BROTHERS AND SISTERS, WHETHER OF FULL OR HALF-BLOOD. half-blood and
2. Cause is imputable to his/her fault or
Ø The mandatory nature of the obligation to support is highlighted by the provision when it negligence.
states that the people enumerated therein are “obliged to support each other.”
o Unlike what was provided under the Civil Code, support cannot be transferred, ART. 196. BROTHERS AND SISTERS NOT LEGITIMATELY RELATED, WHETHER OF THE FULL OR
assigned, nor waived under the Family Code. HALF-BLOOD, ARE LIKEWISE BOUND TO SUPPORT EACH OTHER TO THE FULL EXTENT SET
FORTH IN ARTICLE 194, EXCEPT ONLY WHEN THE NEED FOR SUPPORT OF THE BROTHER OR
Fig. 26 SISTER, BEING OF AGE, IS DUE TO A CAUSE IMPUTABLE TO THE CLAIMANT'S FAULT OR
Obliged to Support Each Other NEGLIGENCE.

(1) Spouses Ø Presupposes a valid marriage between the parties,

because the right to support proceeds from the law
and is based on their obligation to mutually help
each other.
Ø Remember that there are instances when support
may be denied to a spouse. (ie., adultery,
concubinage, guilty spouse for other reasons)
Ø General rule: Brothers and sisters, illegitimately related, whether of the full or half-blood,
are also entitled to support each other.
o Exception: If an illegitimate brother or sister is:
1. Of age; and
2. The need for his or her support is due to his or her fault or negligence.

82 YAP, K. | ATENEO LAW


ART. 197. FOR THE SUPPORT OF OF LEGITIMATE ASCENDANTS; DESCENDANTS, WHETHER
LEGITIMATE OR ILLEGITIMATE; AND BROTHERS AND SISTERS , WHETHER LEGITIMATELY OR
ILLEGITIMATELY RELATED, ONLY THE SEPARATE PROPERTY OF THE PERSON OBLIGED TO GIVE
SUPPORT SHALL BE ANSWERABLE PROVIDED THAT IN CASE THE OBLIGOR HAS NO SEPARATE
PROPERTY, THE ABSOLUTE COMMUNITY OR THE CONJUGAL PARTNERSHIP, IF FINANCIALLY
CAPABLE, SHALL ADVANCE THE SUPPORT, WHICH SHALL BE DEDUCTED FROM THE SHARE OF
THE SPOUSE OBLIGED UPON THE LIQUIDATION OF THE ABSOLUTE COMMUNITY OR OF THE
CONJUGAL PARTNERSHIP.
Ø Rules to remember:
1. For support (1) between legitimate ascendants and descendants, and (2) between
brothers and sisters, whether legitimately or illegitimately related – only the
separate property of the person obliged to give support shall be answerable.
§ In case the obligor has no separate property, the ACP or CPG, if
financially capable, shall advance such support, which shall be
deducted from the share of the spouse upon liquidation.
2. For support between spouses, the ACP or CPG shall be principally liable for the
support of the spouses. In absence or insufficiency thereof, such obligations shall
be satisfied from the separate property of the spouses.
ART. 198. DURING THE PROCEEDINGS FOR LEGAL SEPARATION OR FOR ANNULMENT OF
MARRIAGE, AND FOR DECLARATION OF NULLITY OF MARRIAGE, THE SPOUSES AND THEIR
CHILDREN SHALL BE SUPPORTED FROM THE PROPERTIES OF THE ABSOLUTE COMMUNITY OR
THE CONJUGAL PARTNERSHIP . AFTER THE FINAL JUDGMENT GRANTING THE PETITION, THE
OBLIGATION OF MUTUAL SUPPORT BETWEEN THE SPOUSES CEASES . HOWEVER, IN CASE OF
LEGAL SEPARATION, THE COURT MAY ORDER THAT THE GUILTY SPOUSE SHALL GIVE SUPPORT
TO THE INNOCENT ONE, SPECIFYING THE TERMS OF SUCH ORDER.
Ø Pending litigation, if there is ACP or CPG, support for the spouses and their children shall
be drawn from such properties.
Ø An application for support pendente lite is filed at the commencement of the proper action
or proceeding, or at any time prior to the judgment or final order.
o The adverse party shall be required to comment within 5 days. Hearing shall be
set within 3 days after filing the comment.
o If the application is granted, the court shall fix that amount of money to be
provisionally paid or such other form of support as should be provided.
o If the application is denied, the principal case shall be tried and decided as early
as possible.
o If the adverse party fails to comply with the order to give support, the court shall
motu proprio or upon motion issue an order of execution against such party,
without prejudice to his liability for contempt.
Ø While adultery may be a defense in an action for personal support, that is, support of the
wife by the husband from his own funds, it is not a defense when the support is to be taken
from the CPG. (Lerma v. CA, 1974)
83
ART. 199. WHENEVER TWO OR MORE PERSONS ARE OBLIGED TO GIVE SUPPORT, THE LIABILITY
SHALL DEVOLVE UPON THE FOLLOWING PERSONS IN THE ORDER HEREIN PROVIDED:
(1) THE SPOUSE;
(2) THE DESCENDANTS IN THE NEAREST DEGREE;
(3) THE ASCENDANTS IN THE NEAREST DEGREE; AND
(4) THE BROTHERS AND SISTERS.
ART. 200. WHEN THE OBLIGATION TO GIVE SUPPORT FALLS UPON TWO OR MORE PERSONS,
THE PAYMENT OF THE SAME SHALL BE DIVIDED BETWEEN THEM IN PROPORTION TO THE
RESOURCES OF EACH.
HOWEVER, IN CASE OF URGENT NEED AND BY SPECIAL CIRCUMSTANCES, THE JUDGE MAY
ORDER ONLY ONE OF THEM TO FURNISH THE SUPPORT PROVISIONALLY, WITHOUT PREJUDICE
TO HIS RIGHT TO CLAIM FROM THE OTHER OBLIGORS THE SHARE DUE FROM THEM.
WHEN TWO OR MORE RECIPIENTS AT THE SAME TIME CLAIM SUPPORT FROM ONE AND THE
SAME PERSON LEGALLY OBLIGED TO GIVE IT, SHOULD THE LATTER NOT HAVE SUFFICIENT
MEANS TO SATISFY ALL CLAIMS, THE ORDER ESTABLISHED IN THE PRECEDING ARTICLE SHALL
BE FOLLOWED, UNLESS THE CONCURRENT OBLIGEES SHOULD BE THE SPOUSE AND A CHILD
SUBJECT TO PARENTAL AUTHORITY, IN WHICH CASE THE CHILD SHALL BE PREFERRED.
Ø Order of priority when 2 or more persons are obliged to give support:
1. Spouse;
2. Descendant in the nearest degree;
3. Ascendant in the nearest degree; and
4. Brothers and sisters.
ART. 201. THE AMOUNT OF SUPPORT, IN THE CASES REFERRED TO IN A RTICLES 195 AND 196,
SHALL BE IN PROPORTION TO THE RESOURCES OR MEANS OF THE GIVER AND TO THE
NECESSITIES OF THE RECIPIENT.
ART. 202. SUPPORT IN THE CASES REFERRED TO IN THE PRECEDING ARTICLE SHALL BE
REDUCED OR INCREASED PROPORTIONATELY, ACCORDING TO THE REDUCTION OR INCREASE OF
THE NECESSITIES OF THE RECIPIENT AND THE RESOURCES OR MEANS OF THE PERSON OBLIGED
TO FURNISH THE SAME .
Ø Support must be based on the necessities of the recipient and the resources or means of the
person obliged to furnish support.
o Because of such changing needs and ability, any judgment for support does not
become final.
o The 5-year period for execution does not apply to a judgment for support. It
becomes due from time to time as provided and is enforceable by simple motion
at any time, except as to installments not recovered within the statute of
limitations.
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ART. 203. THE OBLIGATION TO GIVE SUPPORT SHALL BE DEMANDABLE FROM THE TIME THE
PERSON WHO HAS A RIGHT TO RECEIVE THE SAME NEEDS IT FOR MAINTENANCE, BUT IT SHALL
NOT BE PAID EXCEPT FROM THE DATE OF JUDICIAL OR EXTRA-JUDICIAL DEMAND.
SUPPORT PENDENTE LITE MAY BE CLAIMED IN ACCORDANCE WITH THE RULES OF COURT .
PAYMENT SHALL BE MADE WITHIN THE FIRST FIVE DAYS OF EACH CORRESPONDING MONTH OR
WHEN THE RECIPIENT DIES, HIS HEIRS SHALL NOT BE OBLIGED TO RETURN WHAT HE HAS
RECEIVED IN ADVANCE.
Ø Rules to remember:
1. Payment of the amount for support starts only from the time support has been
judicially or extra-judicially demanded. (Sy v. CA, 2007)
2. Payment shall be made within the first 5 days of each corresponding month or
when the recipient dies, his heirs shall not be obliged to return what he has
received in advance.
Ø Support in arrears may be granted.
ART. 204. THE PERSON OBLIGED TO GIVE SUPPORT SHALL HAVE THE OPTION TO FULFILL THE
OBLIGATION EITHER BY PAYING THE ALLOWANCE FIXED, OR BY RECEIVING AND MAINTAINING
IN THE FAMILY DWELLING THE PERSON WHO HAS A RIGHT TO RECEIVE SUPPORT. THE LATTER
ALTERNATIVE CANNOT BE AVAILED OF IN CASE THERE IS A MORAL OR LEGAL OBSTACLE
THERETO.
Ø The right to elect the manner in which support shall be given is conferred upon the person
whose duty it is to give such support.
o Not absolute. Right may be restricted when opposed to the exercise of a
preferential right or because of the existence of some justifiable cause morally
opposed to the removal of the party enjoying the maintenance.
ART. 205. THE RIGHT TO RECEIVE SUPPORT UNDER THIS TITLE AS WELL AS ANY MONEY OR
PROPERTY OBTAINED AS SUCH SUPPORT SHALL NOT BE LEVIED UPON ON ATTACHMENT OR
EXECUTION.
Ø General rule: The right to receive support and the money or property obtained as such
support cannot be made to satisfy any judgment against the recipient. It cannot be attached
nor be subjected to execution.
o Exception: Art. 208 – in case of contractual support or that given by will, the
excess in amount beyond that required for legal support shall be subject to levy
on attachment or execution.
ART. 206. WHEN, WITHOUT THE KNOWLEDGE OF THE PERSON OBLIGED TO GIVE SUPPORT, IT IS
GIVEN BY A STRANGER, THE LATTER SHALL HAVE A RIGHT TO CLAIM THE SAME FROM THE
FORMER, UNLESS IT APPEARS THAT HE GAVE IT WITHOUT INTENTION OF BEING REIMBURSED.
84
ART. 207. WHEN THE PERSON OBLIGED TO SUPPORT ANOTHER UNJUSTLY REFUSES OR FAILS
TO GIVE SUPPORT WHEN URGENTLY NEEDED BY THE LATTER, ANY THIRD PERSON MAY
FURNISH SUPPORT TO THE NEEDY INDIVIDUAL, WITH RIGHT OF REIMBURSEMENT FROM THE
PERSON OBLIGED TO GIVE SUPPORT. THIS A RTICLE SHALL PARTICULARLY APPLY WHEN THE
FATHER OR MOTHER OF A CHILD UNDER THE AGE OF MAJORITY UNJUSTLY REFUSES TO
SUPPORT OR FAILS TO GIVE SUPPORT TO THE CHILD WHEN URGENTLY NEEDED.
Ø The resulting relationship between the stranger and the person obliged to give support
under Arts. 206 and 207 is a quasi-contract.
o Requisites for Art. 206:
1. Person obliged to give support fails to give such support;
2. Stranger gives such support;
3. No knowledge on the part of the person obliged to give support; and
4. Intent of the stranger to be reimbursed.
o Requisites for Art. 207:
1. Urgent need to be supported on the part of the recipient;
2. Person obliged to give support unjustly refuses or fails to give such
support; and
3. Third person furnishes the support to the needy individual.
Ø General rule: If a stranger gives support without the knowledge of the person obliged to
give such support – the stranger has a right to claim the same from the person obliged to
give support.
o Exception: When the stranger gives support without the intention to be
reimbursed.
ART. 208. IN CASE OF CONTRACTUAL SUPPORT OR THAT GIVEN BY WILL, THE EXCESS IN
AMOUNT BEYOND THAT REQUIRED FOR LEGAL SUPPORT SHALL BE SUBJECT TO LEVY ON
ATTACHMENT OR EXECUTION.
FURTHERMORE, CONTRACTUAL SUPPORT SHALL BE SUBJECT TO ADJUSTMENT WHENEVER
MODIFICATION IS NECESSARY DUE TO CHANGES OF CIRCUMSTANCES MANIFESTLY BEYOND
THE CONTEMPLATION OF THE PARTIES.
Ø Legal support – that which is mandated by law to be given and that which is provided in
Art. 194.
Ø Contractual support – one which is entered into by the parties usually with reciprocal duties
and obligations. It is not mandated by law.
o Contractual support is subject to adjustment whenever modification is necessary
due to changes of circumstances manifestly beyond the contemplation of the
parties.
o In cases of contractual support and that given by will, the excess in amount
beyond that required for legal support shall be subject to levy on attachment or
execution.
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TITLE NINE: PARENTAL AUTHORITY
CHAPTER ONE: GENERAL PROVISIONS
ART. 209. PURSUANT TO THE NATURAL RIGHT AND DUTY OF PARENTS OVER THE PERSON AND
PROPERTY OF THEIR UNEMANCIPATED CHILDREN, PARENTAL AUTHORITY AND RESPONSIBILITY
SHALL INCLUDE THE CARING FOR AND REARING THEM FOR CIVIC CONSCIOUSNESS AND
EFFICIENCY AND THE DEVELOPMENT OF THEIR MORAL, MENTAL AND PHYSICAL CHARACTER
AND WELL-BEING.
Ø Parental authority – the right and duty of parents to protect their children, to care for them
in sickness and in health, and to do whatever may be necessary for their care, maintenance
and preservation.
o It is considered a natural right because the natural affection between parents and
offspring is inherently recognized.
Ø Parental authority involves a mass of rights and obligations which the law grants for the
purpose of the children’s physical preservation and development, as well as the cultivation
of their intellect and the education of their hearts and senses. (Cang v. CA, 1998)
ART. 210. PARENTAL AUTHORITY AND RESPONSIBILITY MAY NOT BE RENOUNCED OR
TRANSFERRED EXCEPT IN THE CASES AUTHORIZED BY LAW.
Ø The upbringing of the children is a sacred duty entrusted to the parents. Hence, it cannot
simply be renounced or transferred except in cases authorized by law (Arts. 228-232).
Ø Since the right attached to parental authority is purely personal, it may be waived only in
cases of adoption, guardianship and surrender to a children’s home or an orphan institution.
ART. 211. THE FATHER AND THE MOTHER SHALL JOINTLY EXERCISE PARENTAL AUTHORITY
OVER THE PERSONS OF THEIR COMMON CHILDREN. IN CASE OF DISAGREEMENT, THE FATHER'S
DECISION SHALL PREVAIL, UNLESS THERE IS A JUDICIAL ORDER TO THE CONTRARY .
CHILDREN SHALL ALWAYS OBSERVE RESPECT AND REVERENCE TOWARDS THEIR PARENTS AND
ARE OBLIGED TO OBEY THEM AS LONG AS THE CHILDREN ARE UNDER PARENTAL AUTHORITY.
Ø The parents are equally bound to ensure the wholesome upbringing of the children.
Ø Joint parental authority must be exercised by the father and the mother of an acknowledged
natural child – an illegitimate child whose father has categorically made an admission that
he indeed is the father. Art. 211 applies to both legitimate and illegitimate children.
(Dempsey v. RTC, 1988)
o Requisites:
1. Father is certain; and
2. Illegitimate children are living with the said father and the mother, who
are cohabiting without the benefit of marriage or under a void marriage
not falling under Arts. 36 and 53.
Ø Illegitimate child shall be under the parental authority of the mother only:
1. Where the paternity of the child is unknown or in doubt; and
2. Where, though paternity is certain, the father is not living with the mother and
the child.
85
Ø In case of conflict between the parents, it is presumed that the decision of the father is for
the children’s best interest.
o If both the decision of the father and the mother has merit, the decision of the
father, as head of the family, is given preference.
o The binding force of the decision of the father in case of conflict is highlighted
by the law itself when it provides that only a court order can alter it.
Ø Children are likewise obliged to always observe respect and reverence toward their parents
and are obliged to obey them as long as the children are under parental authority.
o Duties of a child under Child and Youth Welfare Court (P.D. 603):
1. Strive to lead an upright and virtuous life;
2. Love, respect and obey his parents;
3. Extend to his brothers and sisters his love;
4. Exert his utmost to develop his potentialities for service;
5. Respect not only his elders but also the customs and traditions of our
people, the memory of our heroes, etc.;
6. Participate actively in civic affairs; and
7. Help in the observance of individual human rights.
ART. 212. IN CASE OF ABSENCE OR DEATH OF EITHER PARENT , THE PARENT PRESENT SHALL
CONTINUE EXERCISING PARENTAL AUTHORITY. THE REMARRIAGE OF THE SURVIVING PARENT
SHALL NOT AFFECT THE PARENTAL AUTHORITY OVER THE CHILDREN , UNLESS THE COURT
APPOINTS ANOTHER PERSON TO BE THE GUARDIAN OF THE PERSON OR PROPERTY OF THE
CHILDREN.
Ø The new spouse, by virtue of his or her marrying the surviving parent, does not
automatically possess parental authority over the children of the surviving parent.
o The new spouse must first adopt the children.
ART. 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 CHOSEN IS UNFIT.
Ø Parental authority shall be given to any of the parents who may be designated by the court
in case the parents have separated from each other.
Ø In cases of legal separation, the consent of the father must still be obtained considering that
the legal separation decree does not necessarily terminate the parental authority of the
father. (Cang v. CA, 1998)
Ø The right of parents to the custody of their minor children is one of the natural rights
incident to parenthood.
o The paramount consideration or cardinal principal for custody shall always be
the best interest of the child.
Ø Custody cases are now governed by the Rule on Custody of Minors and Writ of Habeas
Corpus in relation to Custody of Minors (A.M. No. 03-04-04-SC).
o Habeas corpus case – availed of to secure the custody of a child, either in cases
where parents are separated from each other, or against third persons.
o The question of identity is relevant and material in these proceedings.
Ø Parental preference rule – the natural parents, who are of good character and who can
reasonably provide for the child, are ordinarily entitled to custody as against all persons
(ie., foster or prospective adopted parents, other relatives of the child such as grandparents)
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Ø Maternal preference applies specially to tender-age presumption (ie., no child under 7 years
of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise).
o Any agreement by the parties unduly depriving the mother of the custody of her
children under 7 years of age in the absence of any compelling reason to warrant
the same is null and void.
o Maternal preference is not an absolute rule, and may be defeated by compelling
reasons which must be clearly shown by positive and clear evidence of the
unfitness of the mother and its determination is left to the sound judgment of the
courts.
o The mere fact that the mother is a lesbian is not enough justification to remove
the child from her custody. (Pablo-Gualberto v. Gualberto, 2005)
Ø Custody may be awarded to persons who are strangers to the family if such award would
serve the best interest of the child. (Balatbat v. Balatbat, 1996)
Ø Decisions of the courts on custody are always open to adjustments as the circumstances
relevant to the matter may demand in the light of the inflexible criterion, namely, the best
interest of the children.
ART. 214. IN CASE OF DEATH, ABSENCE OR UNSUITABILITY OF THE PARENTS, SUBSTITUTE
PARENTAL AUTHORITY SHALL BE EXERCISED BY THE SURVIVING GRANDPARENT. IN CASE
SEVERAL SURVIVE, THE ONE DESIGNATED BY THE COURT, TAKING INTO ACCOUNT THE SAME
CONSIDERATION MENTIONED IN THE PRECEDING ARTICLE, SHALL EXERCISE THE AUTHORITY.
Ø In absence or incapacity of the parents, the grandparents are the most natural, suitable and
logical persons to exercise parental authority.
o Grandparents have the legal preference in the matter of substitute parental
authority.
ART. 215. NO DESCENDANT SHALL BE COMPELLED, IN A CRIMINAL CASE, TO TESTIFY AGAINST
HIS PARENTS AND GRANDPARENTS, EXCEPT WHEN SUCH TESTIMONY IS INDISPENSABLE IN A
CRIME AGAINST THE DESCENDANT OR BY ONE PARENT AGAINST THE OTHER.
Ø The reason for the filial privilege is to foster family unity and tranquility. The privilege is
solely addressed to the descendant-witness.
Ø General rule: The descendant may not be compelled to testify against his or her parents or
grandparents in a criminal case.
o Exception: When the testimony is indispensable in a crime against the
descendant or by one parent against the other.
Ø General rule: Marital privilege likewise provides that the husband or the wife, during or
after the marriage, cannot be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage.
o Exception: In a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter’s direct ascendants or
descendants.
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CHAPTER TWO: SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
ART. 216. IN DEFAULT OF PARENTS OR A JUDICIALLY APPOINTED GUARDIAN, THE FOLLOWING
PERSON SHALL EXERCISE SUBSTITUTE PARENTAL AUTHORITY OVER THE CHILD IN THE ORDER
INDICATED:
(1) THE SURVIVING GRANDPARENT, AS PROVIDED IN ART . 214;
(2) THE OLDEST BROTHER OR SISTER, OVER TWENTY-ONE YEARS OF AGE, UNLESS UNFIT OR
DISQUALIFIED; AND
(3) THE CHILD'S ACTUAL CUSTODIAN, OVER TWENTY-ONE YEARS OF AGE, UNLESS UNFIT OR
DISQUALIFIED.
WHENEVER THE APPOINTMENT OR A JUDICIAL GUARDIAN OVER THE PROPERTY OF THE CHILD
BECOMES NECESSARY , THE SAME ORDER OF PREFERENCE SHALL BE OBSERVED.
Ø Persons exercising substitute parental authority have all the rights of the parents
enumerated in Art. 220, same authority over the person of the child under Art. 233, and
shall be civilly liable for injuries and damages caused by acts or omissions of the
unemancipated children living in their company and under their parental authority under
Art. 221.
Ø Order of preference for (substitute) parental authority, in the absence of parents:
1. Surviving grandparent;
2. Oldest brother or sister, over 21 years of age, unless unfit or disqualified; and
3. Child’s actual custodian, over 21 years of age, unless unfit or disqualified.
Ø The same order applies for judicial guardianship over the property of the child.
Ø The order is not mandatory – paramount interest of the child still applies.
o However, the order must, as much as possible, be observed especially when all
of those enumerated are equally fit to take care of the children.
ART. 217. IN CASE OF FOUNDLINGS, ABANDONED NEGLECTED OR ABUSED CHILDREN AND
OTHER CHILDREN SIMILARLY SITUATED, PARENTAL AUTHORITY SHALL BE ENTRUSTED IN
SUMMARY JUDICIAL PROCEEDINGS TO HEADS OF CHILDREN'S HOMES, ORPHANAGES AND
SIMILAR INSTITUTIONS DULY ACCREDITED BY THE PROPER GOVERNMENT AGENCY.
Ø Unfortunate children:
1. Foundling – a newborn child abandoned by its parents who are unknown.
2. Abandoned child – one who has no proper parental care or guardianship, or
whose parents or guardians have deserted him for a period of at least 6 continuous
months.
3. Neglected child – one whose basic needs have been deliberately unattended or
inadequately attended.
a. Physical neglect – when the child is malnourished, ill clad and without
proper shelter.
b. Emotional neglect – when children are maltreated, raped or seduced,
exploited, over-worked or made to be on the streets.
4. Abused child – can come within the 2nd kind of neglected child above.
5. Dependent child – one without a parent, guardian or custodian; or one whose
parent, guardian or other custodian for good cause desires to be relieved of his
care and custody; and is dependent upon the public for support.
YAP, K. | ATENEO LAW

Ø Child Welfare Agency; how created – securing a license from the Department of Social
Welfare and Development (DSWD), which is non-transferrable and shall be used only by
the person or institution to which it was issued at the place stated therein.
o The purpose of the agency must be clearly defined and stated in writing.
o The definition must likewise include the geographical area to be served, and the
children to be accepted for care and the services to be provided.
Ø Transfer of parental authority:
1. Involuntary – when the DSWD or its authorized representatives, having
knowledge of a child who appears to be dependent, abandoned or neglected, may
file a verified petition to the proper court for involuntary commitment of said
child to the care of any duly licensed child-placement agency.
§ After which, the child’s parents or guardians shall thereafter exercise
no authority over them, except upon such conditions as t the Court may
impose.
2. Voluntary – when the parent/guardian/custodian of a dependent, abandoned or
neglected child may commit such child to the DSWD or any duly licensed child-
placement agency or individual.
§ It MUST be in writing by the parents/guardians to the care and custody
of the DSWD or duly-licensed child-placement agency.
§ In case of death, legal incapacity, or abandonment for at least 1 year of
either parent, the other parent shall have the authority to make the
commitment.
§ After such commitment, the rights of the natural
parents/guardians/custodians to exercise parental authority shall cease.
ART. 218. THE SCHOOL, ITS ADMINISTRATORS AND TEACHERS, OR THE INDIVIDUAL, ENTITY
OR INSTITUTION ENGAGED IN CHILD ARE SHALL HAVE SPECIAL PARENTAL AUTHORITY AND
RESPONSIBILITY OVER THE MINOR CHILD WHILE UNDER THEIR SUPERVISION, INSTRUCTION OR
CUSTODY.
AUTHORITY AND RESPONSIBILITY SHALL APPLY TO ALL AUTHORIZED ACTIVITIES WHETHER
INSIDE OR OUTSIDE THE PREMISES OF THE SCHOOL, ENTITY OR INSTITUTION.
ART. 219. THOSE GIVEN THE AUTHORITY AND RESPONSIBILITY UNDER THE PRECEDING
ARTICLE SHALL BE PRINCIPALLY AND SOLIDARILY LIABLE FOR DAMAGES CAUSED BY THE
ACTS OR OMISSIONS OF THE UNEMANCIPATED MINOR. THE PARENTS, JUDICIAL GUARDIANS OR
THE PERSONS EXERCISING SUBSTITUTE PARENTAL AUTHORITY OVER SAID MINOR SHALL BE
SUBSIDIARILY LIABLE.
THE RESPECTIVE LIABILITIES OF THOSE REFERRED TO IN THE PRECEDING PARAGRAPH SHALL
NOT APPLY IF IT IS PROVED THAT THEY EXERCISED THE PROPER DILIGENCE REQUIRED UNDER
THE PARTICULAR CIRCUMSTANCES.
ALL OTHER CASES NOT COVERED BY THIS AND THE PRECEDING ARTICLES SHALL BE
GOVERNED BY THE PROVISIONS OF THE CIVIL CODE ON QUASI-DELICTS.
Ø Special parental authority – exercised over minors only while under their supervision,
instruction, or custody. The same authority attaches to all authorized activities, whether
inside or outside the entity or institution.
o Exercised by:
87
1. Schools, its administrators and teachers; or
2. Individual, entity or institution engaged in child care.
Ø General rule: Those exercising special parental authority are primarily liable for the acts or
omissions of the minors under their supervision, instruction or custody.
o Exception: They may raise the defense of exercising proper diligence required
under particular circumstances.
o As to the school, it can show that it exercised proper measure in selecting the
head or its teachers and the appropriate supervision over them. The teacher
himself may invoke his defense as it would be unfair to hold him directly
answerable for the damage caused by his students as long as they are within
school premises. (Amadora v. CA, 1988)
Ø Those with special parental authority are primarily liable for the minors under their
supervision, instruction or custody. In the meantime, parents and those with substitute
parental authority over the minor shall be subsidiarily liable (only if the former cannot
satisfy their liability).
o Subsidiarily because while in school or in such an institution, the said persons do
not have the direct custody of their children.
o Liability to the school attaches only upon a clear showing of negligence or
laxness in the enforcement of discipline. Although Art. 2180 (vicarious liability
in cases of quasi-delicts) provides that teachers and heads are liable, the school
itself can be made liable under the principle of respondeat superior considering
that it is the employer of such teacher or head. (Amadora v. CA, 1988)
CHAPTER THREE: EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN
ART. 220. THE PARENTS AND THOSE EXERCISING PARENTAL AUTHORITY SHALL HAVE WITH
THE RESPECT TO THEIR UNEMANCIPATED CHILDREN ON WARDS THE FOLLOWING RIGHTS AND
DUTIES:
(1) TO KEEP THEM IN THEIR COMPANY, TO SUPPORT , EDUCATE AND INSTRUCT THEM BY RIGHT
PRECEPT AND GOOD EXAMPLE, AND TO PROVIDE FOR THEIR UPBRINGING IN KEEPING WITH
THEIR MEANS;
(2) TO GIVE THEM LOVE AND AFFECTION, ADVICE AND COUNSEL, COMPANIONSHIP AND
UNDERSTANDING;
(3) TO PROVIDE THEM WITH MORAL AND SPIRITUAL GUIDANCE, INCULCATE IN THEM
HONESTY, INTEGRITY, SELF-DISCIPLINE, SELF-RELIANCE, INDUSTRY AND THRIFT, STIMULATE
THEIR INTEREST IN CIVIC AFFAIRS, AND INSPIRE IN THEM COMPLIANCE WITH THE DUTIES OF
CITIZENSHIP;
(4) TO FURNISH THEM WITH GOOD AND WHOLESOME EDUCATIONAL MATERIALS, SUPERVISE
THEIR ACTIVITIES, RECREATION AND ASSOCIATION WITH OTHERS , PROTECT THEM FROM BAD
COMPANY, AND PREVENT THEM FROM ACQUIRING HABITS DETRIMENTAL TO THEIR HEALTH,
STUDIES AND MORALS ;
(5) TO REPRESENT THEM IN ALL MATTERS AFFECTING THEIR INTERESTS; (6) TO DEMAND
FROM THEM RESPECT AND OBEDIENCE;
(7) TO IMPOSE DISCIPLINE ON THEM AS MAY BE REQUIRED UNDER THE CIRCUMSTANCES; AND
(8) TO PERFORM SUCH OTHER DUTIES AS ARE IMPOSED BY LAW UPON PARENTS AND
GUARDIANS.
Ø The law’s concept of the family rests on a presumption that parents possess what a child
lacks in maturity, experience and capacity for judgment required for making life’s difficult
YAP, K. | ATENEO LAW

decisions (ie., minor’s incomplete development of intellectual faculties and lack of
experience in the world). ART. 223. THE PARENTS OR, IN THEIR ABSENCE OR INCAPACITY, THE INDIVIDUAL, ENTITY OR
Ø Duties of parents under the Child and Youth Welfare Code: INSTITUTION EXERCISING PARENTAL AUTHORITY, MAY PETITION THE PROPER COURT OF THE
1. To give affection, companionship and understanding; PLACE WHERE THE CHILD RESIDES, FOR AN ORDER PROVIDING FOR DISCIPLINARY MEASURES
2. Extend moral guidance, self-discipline and religious instruction; OVER THE CHILD. THE CHILD SHALL BE ENTITLED TO THE ASSISTANCE OF COUNSEL, EITHER OF
3. Supervise activities; HIS CHOICE OR APPOINTED BY THE COURT, AND A SUMMARY HEARING SHALL BE CONDUCTED
4. Inculcate the value of industry, thrift and self-reliance; WHEREIN THE PETITIONER AND THE CHILD SHALL BE HEARD.
5. Stimulate interest in civic affairs;
6. Advise them properly; HOWEVER, IF IN THE SAME PROCEEDING THE COURT FINDS THE PETITIONER AT FAULT,
7. Always set a good example; IRRESPECTIVE OF THE MERITS OF THE PETITION, OR WHEN THE CIRCUMSTANCES SO WARRANT,
8. Provide adequate support; THE COURT MAY ALSO ORDER THE DEPRIVATION OR SUSPENSION OF PARENTAL AUTHORITY OR
9. Administer their property; and ADOPT SUCH OTHER MEASURES AS IT MAY DEEM JUST AND PROPER.
10. Represent the children in all matters affecting their interest.
Ø Under Art. 220 (7) and (8), parents have the right to demand from the children respect and
obedience and to impose discipline on them as may be required under the circumstances – ART. 224. THE MEASURES REFERRED TO IN THE PRECEDING ARTICLE MAY INCLUDE THE
they may inflict a reasonable measure of corporal punishment. COMMITMENT OF THE CHILD FOR NOT MORE THAN THIRTY DAYS IN ENTITIES OR INSTITUTIONS
Ø Children have the right to: ENGAGED IN CHILD CARE OR IN CHILDREN'S HOMES DULY ACCREDITED BY THE PROPER
1. Parental care; GOVERNMENT AGENCY.
2. At least elementary education (now secondary);
3. Moral and civic training by parents or guardian; and THE PARENT EXERCISING PARENTAL AUTHORITY SHALL NOT INTERFERE WITH THE CARE OF
4. To live in an atmosphere conducive to his physical, moral and intellectual THE CHILD WHENEVER COMMITTED BUT SHALL PROVIDE FOR HIS SUPPORT. UPON PROPER
development. PETITION OR AT ITS OWN INSTANCE, THE COURT MAY TERMINATE THE COMMITMENT OF THE
CHILD WHENEVER JUST AND PROPER.
ART. 221. PARENTS AND OTHER PERSONS EXERCISING PARENTAL AUTHORITY SHALL BE
CIVILLY LIABLE FOR THE INJURIES AND DAMAGES CAUSED BY THE ACTS OR OMISSIONS OF
THEIR UNEMANCIPATED CHILDREN LIVING IN THEIR COMPANY AND UNDER THEIR PARENTAL
Ø If the children remain incorrigible, the parents are given the right to seek the aid of the
AUTHORITY SUBJECT TO THE APPROPRIATE DEFENSES PROVIDED BY LAW.
court to impose other more drastic disciplinary measures for the child’s improvement and
which the court may provide as warranted under the premises.
o One of which is the commitment of the child to entities or institutions engaged
Ø The parents are principally and primarily liable for acts or omissions of their in childcare or in children’s homes duly accredited by the proper government
unemancipated children resulting in injuries to others. agency – for a period of not more than 30 days.
o Requisites:
1. Child must be living in their company; and
2. Under their parental authority.
o This stems from “vicarious liability” under Art. 2180 of the Civil Code, or the
doctrine of imputed negligence – where a person is not only liable for torts
committed by himself, but also for torts committed by others with whom he has
a certain relationship and for whom he is responsible.
Ø Defense of parents: They must show that they exercised the diligence of a good father of a
family.

ART. 222. THE COURTS MAY APPOINT A GUARDIAN OF THE CHILD'S PROPERTY OR A GUARDIAN
AD LITEM WHEN THE BEST INTERESTS OF THE CHILD SO REQUIRES .

Ø Guardianship – one person, called a “guardian,” acts for another, called the “ward,” whom
the law regards as incapable of managing his own affairs.
Ø Guardians at litem – considered officers of the court in a limited sense, and the office of
such guardian is to represent the interest or the incompetent or the minor.
o Appointment of guardian ad litem is addressed to the sound discretion of the
court and designed to assist the court in the determination of the best interest of
the child.
88 YAP, K. | ATENEO LAW

CHAPTER FOUR: EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN
ART. 225. THE FATHER AND THE MOTHER SHALL JOINTLY EXERCISE LEGAL GUARDIANSHIP
OVER THE PROPERTY OF THE UNEMANCIPATED COMMON CHILD WITHOUT THE NECESSITY OF A
COURT APPOINTMENT. IN CASE OF DISAGREEMENT, THE FATHER'S DECISION SHALL PREVAIL,
UNLESS THERE IS A JUDICIAL ORDER TO THE CONTRARY .
WHERE THE MARKET VALUE OF THE PROPERTY OR THE ANNUAL INCOME OF THE CHILD
EXCEEDS P50,000, THE PARENT CONCERNED SHALL BE REQUIRED TO FURNISH A BOND IN
SUCH AMOUNT AS THE COURT MAY DETERMINE, BUT NOT LESS THAN TEN PER CENTUM (10%)
OF THE VALUE OF THE PROPERTY OR ANNUAL INCOME, TO GUARANTEE THE PERFORMANCE OF
THE OBLIGATIONS PRESCRIBED FOR GENERAL GUARDIANS .
A VERIFIED PETITION FOR APPROVAL OF THE BOND SHALL BE FILED IN THE PROPER COURT OF
THE PLACE WHERE THE CHILD RESIDES, OR, IF THE CHILD RESIDES IN A FOREIGN COUNTRY, IN
THE PROPER COURT OF THE PLACE WHERE THE PROPERTY OR ANY PART THEREOF IS SITUATED.
THE PETITION SHALL BE DOCKETED AS A SUMMARY SPECIAL PROCEEDING IN WHICH ALL
INCIDENTS AND ISSUES REGARDING THE PERFORMANCE OF THE OBLIGATIONS REFERRED TO IN
THE SECOND PARAGRAPH OF THIS ARTICLE SHALL BE HEARD AND RESOLVED.
THE ORDINARY RULES ON GUARDIANSHIP SHALL BE MERELY SUPPLETORY EXCEPT WHEN THE
CHILD IS UNDER SUBSTITUTE PARENTAL AUTHORITY, OR THE GUARDIAN IS A STRANGER, OR A
PARENT HAS REMARRIED, IN WHICH CASE THE ORDINARY RULES ON GUARDIANSHIP SHALL
APPLY.
Ø There is no more need for a judicial court order appointing the parents as guardians.
o Regardless of the value of the unemancipated common child’s property, the
father and mother ipso jure become the legal guardian of the child’s property.
o Does not extend to acts of encumbrance or disposition, as distinguished from acts
of management of administration.
o If the value of the property or income of the child exceeds Php50,000 – the
parents are required to furnish a bond in such amount as the court may determine,
but not less than 10% of the value of the property. The purpose of the bond is to
guarantee the performance of the obligations prescribed for general guardians.
§ This is based on the market value of the property or the annual income
of the child (ie., the aggregate of the child’s property or annual
income).
§ The giving of such bond is a condition precedent to the vesting of
authority.
§ Approval of the bond is summary in nature.
Ø Two cases where a parent cannot be the administrator of the property of his/her children:
1. Art. 923 of the Civil Code – Children and descendants of the person disinherited
shall take his or her place and shall preserve the rights of compulsory heirs with
respect to the legitime, but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.
2. Art. 1035 of the Civil Code – If the person excluded from the inheritance by
reason of incapacity should be a child or descendant of the decedent and should
have children or descendants, the latter shall acquire his right to the legitime. The
person so excluded shall not enjoy the usufruct and administration of the property
thus inherited by his children.
89
Ø If the guardians are the parents, the Rules on Guardianship are merely suppletory.
Ø The State has a role as parens patriae.
ART. 226. THE PROPERTY OF THE UNEMANCIPATED CHILD EARNED OR ACQUIRED WITH HIS
WORK OR INDUSTRY OR BY ONEROUS OR GRATUITOUS TITLE SHALL BELONG TO THE CHILD IN
OWNERSHIP AND SHALL BE DEVOTED EXCLUSIVELY TO THE LATTER'S SUPPORT AND
EDUCATION, UNLESS THE TITLE OR TRANSFER PROVIDES OTHERWISE.
THE RIGHT OF THE PARENTS OVER THE FRUITS AND INCOME OF THE CHILD'S PROPERTY SHALL
BE LIMITED PRIMARILY TO THE CHILD'S SUPPORT AND SECONDARILY TO THE COLLECTIVE
DAILY NEEDS OF THE FAMILY.
Ø The child himself owns the property acquired by him or her though his or her work or
industry and shall be primarily used for his own welfare, support and education.
o If the child’s property is more than sufficient to maintain the said child, such
properties may be used to defray the collective daily needs of the family.
o A child is obliged to support his or her parents under Art. 195 of the Family Code.
ART. 227. IF THE PARENTS ENTRUST THE MANAGEMENT OR ADMINISTRATION OF ANY OF
THEIR PROPERTIES TO AN UNEMANCIPATED CHILD, THE NET PROCEEDS OF SUCH PROPERTY
SHALL BELONG TO THE OWNER. THE CHILD SHALL BE GIVEN A REASONABLE MONTHLY
ALLOWANCE IN AN AMOUNT NOT LESS THAN THAT WHICH THE OWNER WOULD HAVE PAID IF
THE ADMINISTRATOR WERE A STRANGER, UNLESS THE OWNER, GRANTS THE ENTIRE PROCEEDS
TO THE CHILD. IN ANY CASE, THE PROCEEDS THUS GIVE IN WHOLE OR IN PART SHALL NOT BE
CHARGED TO THE CHILD'S LEGITIME.
Ø Parents who have engaged their unemancipated children to take care of their properties
shall only be entitled to the net fruits of the properties so managed.
o The unemancipated child shall first be given a monthly reasonable allowance
taken from the gross proceeds of the property for the said month.
o All other expenses of the administration and management of the property shall
be taken from the proceeds.
o General rule: The balance left shall be considered the net proceeds which will go
to the parents.
§ Exception: Unless the parent-owner decides to grant the entire
proceeds to the child.
Ø “Allowance” is used because it involves family relation, while “compensation” involves
employer-employee relationship.
Ø Amendment on Child Labor (RA 9231): Property income for child’s needs, suppletorily
applied for family’s needs.
o Limited to 20% of the income.
o Trust fund requirement if the property exceeds Php200,000. At least 30% of the
total value of the property must be put in the trust fund.
YAP, K. | ATENEO LAW

CHAPTER FIVE: SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY
ART. 228. PARENTAL AUTHORITY TERMINATES PERMANENTLY:
(1) UPON THE DEATH OF THE PARENTS;
(2) UPON THE DEATH OF THE CHILD; OR
(3) UPON EMANCIPATION OF THE CHILD.
Ø These are causes without the fault of the parents.
Ø Death of the parent/child –
o Art. 42 of the Civil Code provides that civil personality is extinguished by death,
and that the effect of death upon the rights and obligations of the deceased is
determined by law, contract or will.
o Under the Child and Youth Welfare Code, the court may appoint a guardian for
the person and property of the child, on petition of any relative or friend of the
family, or the DSWD.
Ø Emancipation –
o A child is emancipated upon reaching the age of majority which is 18 years of
age. This is subject to exceptions established by existing laws in special cases.
ART. 229. UNLESS SUBSEQUENTLY REVIVED BY A FINAL JUDGMENT, PARENTAL AUTHORITY
ALSO TERMINATES:
(1) UPON ADOPTION OF THE CHILD;
(2) UPON APPOINTMENT OF A GENERAL GUARDIAN;
(3) UPON JUDICIAL DECLARATION OF ABANDONMENT OF THE CHILD IN A CASE FILED FOR THE
PURPOSE;
(4) UPON FINAL JUDGMENT OF A COMPETENT COURT DIVESTING THE PARTY CONCERNED OF
PARENTAL AUTHORITY; OR
(5) UPON JUDICIAL DECLARATION OF ABSENCE OR INCAPACITY OF THE PERSON EXERCISING
PARENTAL AUTHORITY.
Ø These are causes without the fault of the parents or with such fault but without malice.
o Effected by final judgment.
Ø Adoption –
o General rule: All legal ties between the biological parent/s and the adoptee shall
be severed and the same shall then be vested on the adopter/s upon the finality of
a judicial adoption decree.
§ Exception: Where the biological parent is the spouse of the adopter.
o The adoptee shall be considered a legitimate child of the adopter/s for all intents
and purposes.
o In case adoption decree is rescinded, such rescission shall extinguish all
reciprocal rights and obligations between the adopter and the adopted arising
from the relationship of parent and child.
Ø Guardianship –
o A guardian appointed by the court shall generally have the care and custody of
the person of his or her ward and the management of his or her property.
Ø Judicial declaration of abandonment –
90
o Imports any conduct on the part of the parent for a settled purpose to forego all
parental duties and relinquish all parental claims to the child.
o There must be a judicial decision arising from a case precisely filed for the
declaration of abandonment.
Ø Final court judgment –
o A decree of termination must be issued only upon clear, convincing and positive
proofs.
Ø Judicial declaration of absence or incapacity –
o Once a judicial declaration of absence or incapacity has been decreed by the court
and has become effective, this is a valid ground for terminating parental
authority.
o A separate case can then be filed to terminate parental authority.
ART. 230. PARENTAL AUTHORITY IS SUSPENDED UPON CONVICTION OF THE PARENT OR THE
PERSON EXERCISING THE SAME OF A CRIME WHICH CARRIES WITH IT THE PENALTY OF CIVIL
INTERDICTION. THE AUTHORITY IS AUTOMATICALLY REINSTATED UPON SERVICE OF THE
PENALTY OR UPON PARDON OR AMNESTY OF THE OFFENDER.
Ø Civil interdiction – the deprivation of the offender during the time of his or her sentence of
the rights of parental authority, or guardianship, either as to the person or property of any
ward, of marital authority, of the right to manage his property and of the right to dispose of
such property by any act or conveyance inter vivos.
Ø There is automatic revival of parental authority once the sentence is served or upon pardon
or amnesty of the offender.
ART. 231. THE COURT IN AN ACTION FILED FOR THE PURPOSE IN A RELATED CASE MAY ALSO
SUSPEND PARENTAL AUTHORITY IF THE PARENT OR THE PERSON EXERCISING THE SAME:
(1) TREATS THE CHILD WITH EXCESSIVE HARSHNESS OR CRUELTY;
(2) GIVES THE CHILD CORRUPTING ORDERS, COUNSEL OR EXAMPLE;
(3) COMPELS THE CHILD TO BEG; OR
(4) SUBJECTS THE CHILD OR ALLOWS HIM TO BE SUBJECTED TO ACTS OF LASCIVIOUSNESS.
THE GROUNDS ENUMERATED ABOVE ARE DEEMED TO INCLUDE CASES WHICH HAVE RESULTED
FROM CULPABLE NEGLIGENCE OF THE PARENT OR THE PERSON EXERCISING PARENTAL
AUTHORITY.
IF THE DEGREE OF SERIOUSNESS SO WARRANTS, OR THE WELFARE OF THE CHILD SO DEMANDS,
THE COURT SHALL DEPRIVE THE GUILTY PARTY OF PARENTAL AUTHORITY OR ADOPT SUCH
OTHER MEASURES AS MAY BE PROPER UNDER THE CIRCUMSTANCES.
THE SUSPENSION OR DEPRIVATION MAY BE REVOKED AND THE PARENTAL AUTHORITY
REVIVED IN A CASE FILED FOR THE PURPOSE OR IN THE SAME PROCEEDING IF THE COURT
FINDS THAT THE CAUSE THEREFOR HAS CEASED AND WILL NOT BE REPEATED.
Ø “In a related case” means it can be an off-shoot of an incident or a collateral pronouncement
in another case, or it may be an independent or collateral proceeding for the purpose.
Ø The suspension or deprivation may be revoked and the parental authority revived in a case
filed for the purpose or in the same proceeding if the court finds that the cause therefore
has ceased and will not be repeated.
YAP, K. | ATENEO LAW

Ø Excessive harshness or cruelty – Fig. 27
o Parents should not treat their children with cruelty whether or not they have any Termination of Parental Authority
ostensible reason to do so.
o Violates the duty of the parent to discipline their children without excessive Art. 228 Art. 229
punishment. (1) Death of the parent (1) Adoption of the child
Ø Corrupting orders, counsel or example – (2) Death of the child (2) Appointment of general guardian
o Unfitness to provide the children with the upbringing that is due them under the (3) Emancipation of the child. (3) Judicial declaration of abandonment of
law. child
o Violates the duty of the parent to provide the children with moral and spiritual Art. 232 (4) Final judgment divesting party
guidance. Sexual Abuse concerned of parental authority
Ø Compels the child to beg – (5) Judicial declaration of absence or
o The parent destroys the very potential of the child to be a productive citizen of incapacity
the country. Suspension of Parental Authority
o Violates the duty of the parent to inculcate self-reliance through lawful activities.
Ø Acts of lasciviousness – Art. 230 Art. 231
o Causes great emotional, psychological and physical harm to the victim-child. Civil Interdiction (1) Excessive harshness or cruelty
Ø Culpable negligence – (2) Corrupting orders, counsel or example
o Includes cases which have resulted from culpable negligence of the parent or the (3) Compels the child to beg
person exercising parental authority. (4) Acts of lasciviousness

ART. 232. IF THE PERSON EXERCISING PARENTAL AUTHORITY HAS SUBJECTED THE CHILD OR
ALLOWED HIM TO BE SUBJECTED TO SEXUAL ABUSE, SUCH PERSON SHALL BE PERMANENTLY
DEPRIVED BY THE COURT OF SUCH AUTHORITY.

Ø A parent who sexually abuses his or her child cannot be expected to rear his or her children
in a healthy, wholesome, and upright way and can even give rise to serious traumatic and
psychological problems on the part of the children.
Ø Unlike the previous articles, parental authority cannot be revived if the parents or the
persons exercising parental authority were found to have subjected the child or allowed
him or her to be subjected to sexual abuse.

ART. 233. THE PERSON EXERCISING SUBSTITUTE PARENTAL AUTHORITY SHALL HAVE THE
SAME AUTHORITY OVER THE PERSON OF THE CHILD AS THE PARENTS.

IN NO CASE SHALL THE SCHOOL ADMINISTRATOR, TEACHER OF INDIVIDUAL ENGAGED IN

CHILD CARE EXERCISING SPECIAL PARENTAL AUTHORITY INFLICT CORPORAL PUNISHMENT
UPON THE CHILD.

Ø Corporal punishment – the infliction of physical disciplinary measures to a child/student.

o Only parents and those exercising substitute parental authority can inflict
corporal punishment.
§ Must be reasonable and not excessively harsh or cruel.
§ Criminally punishable under the Child and Youth Welfare Code and
under the Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act.
o Those exercising special parental authority cannot inflict corporal punishment.
Ø This stems from the right and duty of the parents to impose discipline on them as may be
required under the circumstances.

91 YAP, K. | ATENEO LAW


TITLE TEN: EMANCIPATION AND AGE OF MAJORITY
ART. 234. EMANCIPATION TAKES PLACE BY THE ATTAINMENT OF MAJORITY. UNLESS
OTHERWISE PROVIDED, MAJORITY COMMENCES AT THE AGE OF TWENTY-ONE YEARS.
EMANCIPATION ALSO TAKES PLACE:
(1) BY THE MARRIAGE OF THE MINOR; OR
(2) BY THE RECORDING IN THE CIVIL REGISTER OF AN AGREEMENT IN A PUBLIC INSTRUMENT
EXECUTED BY THE PARENT EXERCISING PARENTAL AUTHORITY AND THE MINOR AT LEAST
EIGHTEEN YEARS OF AGE. SUCH EMANCIPATION SHALL BE IRREVOCABLE.
ART. 235. THE PROVISIONS GOVERNING EMANCIPATION BY RECORDED AGREEMENT SHALL
ALSO APPLY TO AN ORPHAN MINOR AND THE PERSON EXERCISING PARENTAL AUTHORITY BUT
THE AGREEMENT MUST BE APPROVED BY THE COURT BEFORE IT IS RECORDED.
Ø [Repealed by R.A. 6809]
ART. 236. EMANCIPATION FOR ANY CAUSE SHALL TERMINATE PARENTAL AUTHORITY OVER
THE PERSON AND PROPERTY OF THE CHILD WHO SHALL THEN BE QUALIFIED AND RESPONSIBLE
FOR ALL ACTS OF CIVIL LIFE.
ART. 237. THE ANNULMENT OR DECLARATION OF NULLITY OF THE MARRIAGE OF A MINOR OR
OF THE RECORDED AGREEMENT MENTIONED IN THE FOREGOING. ARTICLES 234 AND 235
SHALL REVIVE THE PARENTAL AUTHORITY OVER THE MINOR BUT SHALL NOT AFFECT ACTS
AND TRANSACTIONS THAT TOOK PLACE PRIOR TO THE RECORDING OF THE FINAL JUDGMENT IN
THE CIVIL REGISTER.
Ø Emancipation – attained upon reaching 18 years of age.
Ø Marriage is not anymore a ground for emancipation because a person who decides to get
married is necessarily at least 18 years of age.
Ø For 18-21, parental consent is not an essential or formal requirement, but will render the
marriage annullable under Art. 45 of the Family Code.
Ø The liability of parents under Art. 2180 (2) attaches only when the minor is living “in
their company.”
TITLE ELEVEN: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
CHAPTER ONE: PREFATORY PROVISIONS
ART. 238. UNTIL MODIFIED BY THE SUPREME COURT , THE PROCEDURAL RULES PROVIDED FOR
IN THIS TITLE SHALL APPLY AS REGARDS SEPARATION IN FACT BETWEEN HUSBAND AND WIFE,
ABANDONMENT BY ONE OF THE OTHER, AND INCIDENTS INVOLVING PARENTAL AUTHORITY.
CHAPTER TWO: SEPARATION IN FACT
92
ART. 239. WHEN A HUSBAND AND WIFE ARE SEPARATED IN FACT , OR ONE HAS ABANDONED
THE OTHER AND ONE OF THEM SEEKS JUDICIAL AUTHORIZATION FOR A TRANSACTION WHERE
THE CONSENT OF THE OTHER SPOUSE IS REQUIRED BY LAW BUT SUCH CONSENT IS WITHHELD
OR CANNOT BE OBTAINED, A VERIFIED PETITION MAY BE FILED IN COURT ALLEGING THE
FOREGOING FACTS.
THE PETITION SHALL ATTACH THE PROPOSED DEED, IF ANY, EMBODYING THE TRANSACTION,
AND, IF NONE, SHALL DESCRIBE IN DETAIL THE SAID TRANSACTION AND STATE THE REASON
WHY THE REQUIRED CONSENT THERETO CANNOT BE SECURED. IN ANY CASE, THE FINAL DEED
DULY EXECUTED BY THE PARTIES SHALL BE SUBMITTED TO AND APPROVED BY THE COURT.
Ø A spouse cannot alienate, dispose or encumber community or conjugal property without
the consent of the other spouse.
Ø In cases of separation in fact, it generally does not affect the ACP or CPG.
o If any spouse desires to enter into any transaction (ie., sale of co-owned
properties), he or she can go to court for approval of the sale if he or she cannot
obtain the consent of the other spouse.
o The petition should be verified – under oath stating that the petitioner has caused
the preparation and filing of the petition, that he or she has read the contents of
the petition and that he or she knows that the contents are true of his or her own
knowledge and belief.
ART. 240. CLAIMS FOR DAMAGES BY EITHER SPOUSE, EXCEPT COSTS OF THE PROCEEDINGS,
MAY BE LITIGATED ONLY IN A SEPARATE ACTION.
Ø A claim for damages usually entails a lengthy process. Damages, except costs of
proceedings, may be litigated only in a separate action.
ART. 241. JURISDICTION OVER THE PETITION SHALL, UPON PROOF OF NOTICE TO THE OTHER
SPOUSE, BE EXERCISED BY THE PROPER COURT AUTHORIZED TO HEAR FAMILY CASES, IF ONE
EXISTS, OR IN THE REGIONAL TRIAL COURT OR ITS EQUIVALENT SITTING IN THE PLACE WHERE
EITHER OF THE SPOUSES RESIDES.
Ø Family Courts Act of 1997 (R.A. 8369) – established the family courts which are
exclusively tasked to take cognizance of family cases such as custody of children,
annulment or nullity of cases, adoption and termination of parental authority.
ART. 242. UPON THE FILING OF THE PETITION, THE COURT SHALL NOTIFY THE OTHER SPOUSE,
WHOSE CONSENT TO THE TRANSACTION IS REQUIRED, OF SAID PETITION, ORDERING SAID
SPOUSE TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE GRANTED , ON OR BEFORE THE
DATE SET IN SAID NOTICE FOR THE INITIAL CONFERENCE . THE NOTICE SHALL BE
ACCOMPANIED BY A COPY OF THE PETITION AND SHALL BE SERVED AT THE LAST KNOWN
ADDRESS OF THE SPOUSE CONCERNED.
Ø Due process – requires that the other party, called the respondent, shall be given the chance
to comment on the petition and to show cause why the petition should be granted.
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ART. 243. A PRELIMINARY CONFERENCE SHALL BE CONDUCTED BY THE JUDGE PERSONALLY
WITHOUT THE PARTIES BEING ASSISTED BY COUNSEL. AFTER THE INITIAL CONFERENCE, IF THE
COURT DEEMS IT USEFUL , THE PARTIES MAY BE ASSISTED BY COUNSEL AT THE SUCCEEDING
CONFERENCES AND HEARINGS.
Ø Preliminary conference – aimed at having the parties settle amicably their differences on
the transaction involved so that the judicial proceedings can be further shortened.
Ø The parties will not be assisted by counsel.
o General rule: Lawyers are not allowed so that the proceedings will not become
unduly adversarial which can lead to a protracted case.
§ Exception:
1. Issues are complicated; and
2. Any of the spouses does not really have a complete
understanding of the transaction and its consequences.
Ø The judge will conduct the proceedings personally.
ART. 244. IN CASE OF NON-APPEARANCE OF THE SPOUSE WHOSE CONSENT IS SOUGHT, THE
COURT SHALL INQUIRE INTO THE REASONS FOR HIS FAILURE TO APPEAR, AND SHALL REQUIRE
SUCH APPEARANCE , IF POSSIBLE.
Ø Due process requires that the other party must be heard. Hence, the court shall inquire into
the reasons for the failure of the spouse whose consent is sought to appear in court.
ART. 245. IF, DESPITE ALL EFFORTS, THE ATTENDANCE OF THE NON-CONSENTING SPOUSE IS
NOT SECURED, THE COURT MAY PROCEED EX PARTE AND RENDER JUDGMENT AS THE FACTS
AND CIRCUMSTANCES MAY WARRANT . IN ANY CASE, THE JUDGE SHALL ENDEAVOR TO
PROTECT THE INTERESTS OF THE NON-APPEARING SPOUSE.
Ø Ex parte proceeding – one without the other spouse.
Ø Judgment will be rendered on the basis of the facts and evidence presented by the present
spouse.
Ø In all cases, the judge shall endeavor to protect the interest of the non-appearing spouse.
ART. 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.
Ø The case shall be summary and the many by which it will proceed shall depend on the
appreciation of the situation by the judge.
o He may decide on mere affidavits or require testimonies from the parties.
ART. 247. THE JUDGMENT OF THE COURT SHALL BE IMMEDIATELY FINAL AND EXECUTORY.
Ø Usually, a 15-day period must lapse before finality. However, since time is of the essence,
there is no reglementary period for appeal herein.
93
Ø Remedies:
1. Petition for certiorari under Rule 65 alleging grave abuse of discretion
amounting to lack or excess of jurisdiction (GADALEJ) filed with the CA.
2. Annul the decision on the basis that he or she was not really given due process.
ART. 248. THE PETITION FOR JUDICIAL AUTHORITY TO ADMINISTER OR ENCUMBER SPECIFIC
SEPARATE PROPERTY OF THE ABANDONING SPOUSE AND TO USE THE FRUITS OR PROCEEDS
THEREOF FOR THE SUPPORT OF THE FAMILY SHALL ALSO BE GOVERNED BY THESE RULES.
Ø The separation in fact between husband and wife shall not affect either the ACP or CPG,
except that in the absence of ACP or CPG, the spouses’ separate properties shall be
solidarily liable for the support of the family.
o Spouse present shall, upon petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other
spouse and use the fruits or proceeds thereof to satisfy the latter’s share.
CHAPTER THREE: INCIDENTS INVOLVING PERSONAL AUTHORITY
ART. 249. PETITIONS FILED UNDER ARTICLES 223, 225 AND 235 OF THIS CODE INVOLVING
PARENTAL AUTHORITY SHALL BE VERIFIED.
Ø Must be verified. Covers:
o Art. 223 – case seeking a court order providing for disciplinary measures over
the child.
o Art. 225 – case for the approval of the bond required of parents who exercise
parental authority over the property of their children.
o Art. 235 – emancipation (repealed).
ART. 250. SUCH PETITIONS SHALL BE VERIFIED AND FILED IN THE PROPER COURT OF THE
PLACE WHERE THE CHILD RESIDES.
Ø Venue – (family) court of the place where the child resides.
Ø For the benefit and convenience of the child.
ART. 251. UPON THE FILING OF THE PETITION, THE COURT SHALL NOTIFY THE PARENTS OR, IN
THEIR ABSENCE OR INCAPACITY, THE INDIVIDUALS, ENTITIES OR INSTITUTIONS EXERCISING
PARENTAL AUTHORITY OVER THE CHILD.
Ø It is the duty of the court to notify people who have parental authority over the children to
appear in court so that the court can itself probe these people on the real necessity for the
filing of the case.
ART. 252. THE RULES IN CHAPTER 2 HEREOF SHALL ALSO GOVERN SUMMARY PROCEEDINGS
UNDER THIS CHAPTER INSOFAR AS THEY ARE APPLICABLE.
Ø Summary in nature in order hat this legal measure for the further protection of the child can
be immediately undertaken by the parent.
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CHAPTER FOUR: OTHER MATTERS SUBJECT TO SUMMARY PROCEEDINGS
ART. 253. THE FOREGOING RULES IN C HAPTERS 2 AND 3 HEREOF SHALL LIKEWISE GOVERN
SUMMARY PROCEEDINGS FILED UNDER ARTICLES 41, 51, 69, 73, 96, 124 AND 127, INSOFAR
AS THEY ARE APPLICABLE.
ART. 257. THIS CODE SHALL TAKE EFFECT ONE YEAR AFTER THE COMPLETION OF ITS
PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION, AS CERTIFIED BY THE EXECUTIVE
SECRETARY, OFFICE OF THE PRESIDENT.
DONE IN THE CITY OF MANILA, THIS 6TH DAY OF JULY, IN THE YEAR OF OUR LORD, NINETEEN
HUNDRED AND EIGHTY-SEVEN.

Ø The remedy herein would be a Petition for certiorari on the ground of GADALEJ.
Ø Covers: Ø Published in the Manila Chronical on August 4, 1987.
o Art. 41 – presumptive death Ø Effective on August 3, 1988.
o Art. 51 – presumptive legitime
o Art. 69 – family domicile
o Art. 73 – validity of spouse’s objection to profession
o Art. 96 and 124 – annulment of husband’s decision in the administration and
enjoyment of community or conjugal property.
o Art. 217 – court order entrusting unfortunate children to heads of children’s
homes and other institutions.

TITLE TWELVE: FINAL PROVISIONS

ART. 254. TITLES III, IV, V, VI, VIII, IX, XI, AND XV OF BOOK 1 OF REPUBLIC ACT NO.
386, OTHERWISE KNOWN AS THE CIVIL CODE OF THE PHILIPPINES, AS AMENDED, AND
ARTICLES 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41, AND 42 OF P RESIDENTIAL DECREE NO.
603, OTHERWISE KNOWN AS THE CHILD AND YOUTH WELFARE CODE, AS AMENDED, AND ALL
LAWS, DECREES, EXECUTIVE ORDERS, PROCLAMATIONS, RULES AND REGULATIONS, OR PARTS
THEREOF, INCONSISTENT HEREWITH ARE HEREBY REPEALED.

Ø The Family Code is intended to be the principal law that shall govern family relations.
Ø Express repeal – when a law states what provisions of what laws are repealed.
Ø Implied repeal – when there is irreconcilable conflict in connection with the provisions
found in existing and prior acts with those of the Family Code.

ART. 255. IF ANY PROVISION OF THIS CODE IS HELD INVALID, ALL THE OTHER PROVISIONS NOT
AFFECTED THEREBY SHALL REMAIN VALID.

Ø The invalidity of one provision will not necessarily invalidate the whole law.

ART. 256. THIS CODE SHALL HAVE RETROACTIVE EFFECT INSOFAR AS IT DOES NOT PREJUDICE
OR IMPAIR VESTED OR ACQUIRED RIGHTS IN ACCORDANCE WITH THE CIVIL CODE OR OTHER
LAWS.

Ø General rule: The Family Code specifically provides that its provisions shall have
retrospective application.
o Exception: When vested rights are involved.
o Vested right – an immediate fixed right of present and future payment.

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CIVIL CODE OF THE PHILIPPINES
TITLE X: FUNERALS
ART. 305. THE DUTY AND THE RIGHT TO MAKE ARRANGEMENTS FOR THE FUNERAL OF A
RELATIVE SHALL BE IN ACCORDANCE WITH THE ORDER ESTABLISHED FOR SUPPORT, UNDER
ARTICLE 294. IN CASE OF DESCENDANTS OF THE SAME DEGREE, OR OF BROTHERS AND
SISTERS, THE OLDEST SHALL BE PREFERRED . IN CASE OF ASCENDANTS, THE PATERNAL SHALL
HAVE A BETTER RIGHT.
Ø Those who are duty-bound to make arrangements shall be in accordance with the order
established for support:
1. Spouses;
2. Descendants in the nearest degree;
3. Ascendants in the nearest degree; and
4. Brothers and sisters.
Ø In case of descendants of the same degree, or of brothers and sisters, the oldest shall be
preferred.
Ø In case of ascendants, the paternal shall have a better right.
ART. 306. EVERY FUNERAL SHALL BE IN KEEPING WITH THE SOCIAL POSITION OF THE
DECEASED.
ART. 307. THE FUNERAL SHALL BE IN ACCORDANCE WITH THE EXPRESSED WISHES OF THE
DECEASED. IN THE ABSENCE OF SUCH EXPRESSION , HIS RELIGIOUS BELIEFS OR AFFILIATION
SHALL DETERMINE THE FUNERAL RITES. IN CASE OF DOUBT, THE FORM OF THE FUNERAL
SHALL BE DECIDED UPON BY THE PERSON OBLIGED TO MAKE ARRANGEMENTS FOR THE SAME ,
AFTER CONSULTING THE OTHER MEMBERS OF THE FAMILY.
Ø Rules to remember:
1. The wishes of the deceased shall be mainly followed – to respect the deceased.
2. In the absence of such expression – religious beliefs or affiliation shall determine
the funeral rights.
3. In case of doubt – decided upon by the person obliged to make arrangements for
the same, after consulting the other members of the family.
Ø In all cases, the funeral should be in keeping with the social position of the deceased – this
is because the kind of funeral is the last manifestation of the kind of life which the deceased
has attained.
ART. 308. NO HUMAN REMAINS SHALL BE RETAINED, INTERRED, DISPOSED OF OR EXHUMED
WITHOUT THE CONSENT OF THE PERSONS MENTIONED IN ARTICLES 294 AND 305.
ART. 309. ANY PERSON WHO SHOWS DISRESPECT TO THE DEAD, OR WRONGFULLY INTERFERES
WITH A FUNERAL SHALL BE LIABLE TO THE FAMILY OF THE DECEASED FOR DAMAGES ,
MATERIAL AND MORAL.
Ø Philippine culture and tradition give reference to the dead.
95
Ø Any undertaking that would, in a way, disturb the dead, must be with the consent of those
who will be greatly affected.
Ø Damages may be sought against those who allow disrespect to the dead, or wrongfully
interfere with a funeral.
ART. 310. THE CONSTRUCTION OF A TOMBSTONE OR MAUSOLEUM SHALL BE DEEMED A PART
OF THE FUNERAL EXPENSES, AND SHALL BE CHARGEABLE TO THE CONJUGAL PARTNERSHIP
PROPERTY, IF THE DECEASED IS ONE OF THE SPOUSES.
Ø If the deceased is married – the tombstone or mausoleum shall be deemed a part of the
funeral expenses and chargeable to the ACP or CPG.
TITLE XII: CARE AND EDUCATION OF CHILDREN
ART. 356. EVERY CHILD:
(1) IS ENTITLED TO PARENTAL CARE;
(2) SHALL RECEIVE AT LEAST ELEMENTARY EDUCATION;
(3) SHALL BE GIVEN MORAL AND CIVIC TRAINING BY THE PARENTS OR GUARDIAN;
(4) HAS A RIGHT TO LIVE IN AN ATMOSPHERE CONDUCIVE TO HIS PHYSICAL, MORAL AND
INTELLECTUAL DEVELOPMENT.
ART. 357. EVERY CHILD SHALL:
(1) O BEY AND HONOR HIS PARENTS OR GUARDIAN;
(2) RESPECT HIS GRANDPARENTS, OLD RELATIVES, AND PERSONS HOLDING SUBSTITUTE
PARENTAL AUTHORITY;
(3) EXERT HIS UTMOST FOR HIS EDUCATION AND TRAINING;
(4) COOPERATE WITH THE FAMILY IN ALL MATTERS THAT MAKE FOR THE GOOD OF THE SAME.
ART. 358. EVERY PARENT AND EVERY PERSON HOLDING SUBSTITUTE PARENTAL AUTHORITY
SHALL SEE TO IT THAT THE RIGHTS OF THE CHILD ARE RESPECTED AND HIS DUTIES COMPLIED
WITH, AND SHALL PARTICULARLY, BY PRECEPT AND EXAMPLE, IMBUE THE CHILD WITH
HIGHMINDEDNESS, LOVE OF COUNTRY, VENERATION FOR THE NATIONAL HEROES, FIDELITY TO
DEMOCRACY AS A WAY OF LIFE, AND ATTACHMENT TO THE IDEAL OF PERMANENT WORLD
PEACE.
ART. 359. THE GOVERNMENT PROMOTES THE FULL GROWTH OF THE FACULTIES OF EVERY
CHILD. FOR THIS PURPOSE, THE GOVERNMENT WILL ESTABLISH, WHENEVER POSSIBLE:
(1) SCHOOLS IN EVERY BARRIO, MUNICIPALITY AND CITY WHERE OPTIONAL RELIGIOUS
INSTRUCTION SHALL BE TAUGHT AS PART OF THE CURRICULUM AT THE OPTION OF THE PARENT
OR GUARDIAN
(2) PUERICULTURE AND SIMILAR CENTERS;
(3) COUNCILS FOR THE PROTECTION OF CHILDREN; AND
(4) JUVENILE COURTS.
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ART. 360. THE COUNCIL FOR THE P ROTECTION OF CHILDREN SHALL LOOK AFTER THE
WELFARE OF CHILDREN IN THE MUNICIPALITY. IT SHALL, AMONG OTHER FUNCTIONS:
(1) FOSTER THE EDUCATION OF EVERY CHILD IN THE MUNICIPALITY;
(2) ENCOURAGE THE CULTIVATION OF THE DUTIES OF PARENTS;
(3) PROTECT AND ASSIST ABANDONED OR MISTREATED CHILDREN, AND ORPHANS;
(4) TAKE STEPS TO PREVENT JUVENILE DELINQUENCY;
(5) ADOPT MEASURES FOR THE HEALTH OF CHILDREN ;
(6) PROMOTE THE OPENING AND MAINTENANCE OF PLAYGROUNDS;
(7) COORDINATE THE ACTIVITIES OF ORGANIZATIONS DEVOTED TO THE WELFARE OF
CHILDREN, AND SECURE THEIR COOPERATION.
ART. 361. JUVENILE COURTS WILL BE ESTABLISHED, AS FAR AS PRACTICABLE, IN EVERY
CHARTERED CITY OR LARGE MUNICIPALITY.
ART. 362. WHENEVER A CHILD IS FOUND DELINQUENT BY ANY COURT, THE FATHER, MOTHER,
OR GUARDIAN MAY IN A PROPER CASE BE JUDICIALLY ADMONISHED.
ART. 363. IN ALL QUESTIONS ON THE CARE , CUSTODY, EDUCATION AND PROPERTY OF
CHILDREN THE LATTER'S WELFARE SHALL BE PARAMOUNT . NO MOTHER SHALL BE SEPARATED
FROM HER CHILD UNDER SEVEN YEARS OF AGE, UNLESS THE COURT FINDS COMPELLING
REASONS FOR SUCH MEASURE.
TITLE XIII: USE OF SURNAMES
Ø Person’s name – the word or combination of words by which a person is distinguished from
other individuals and, also, as the label or appellation which he bears for the convenience
of the world at large addressing him, or in speaking of or dealing with him.
Ø Parts of a name:
1. Given/Proper name – given to the individual at birth or at baptism, to distinguish
him from other individuals – freely selected by the parents.
2. Surname/Family name – identifies the family to which he belongs and is
continued from parent to child – fixed by law.
Ø Characteristics of names:
1. Absolute – intended to protect the individual from being confused with others.
2. Obligatory – nobody can be without a name.
3. Fixed – may be changed only for good cause and by judicial proceeding.
4. Outside the commerce of man – inalienable and intransmissible.
5. Imprescriptible.
Ø Middle names – to identify the maternal lineage or filiation of a person as well as further
distinguish him from others who may have the same given name and surname as he has.
o Cannot be dropped without compelling or justifiable reasons.
ART. 364. LEGITIMATE AND LEGITIMATED CHILDREN SHALL PRINCIPALLY USE THE SURNAME
OF THE FATHER.
96
Ø The word “principally” is not equivalent to “exclusively” – there is no legal obstacle if a
legitimate or legitimated child should choose to use the surname of the mother to which it
is equally entitled. (Alfon v. Republic, 1980)
o A ground may be that the child has been using it already in various records –
necessary to change in order to avoid confusion.
ART. 365. AN ADOPTED CHILD SHALL BEAR THE SURNAME OF THE ADOPTER.
Ø The Domestic Adoption Act of 1998 (R.A. 8552) provides that the adoptee shall be
considered the legitimate son/daughter of the adopter/s for all intents and purposes and as
such is entitled to all the rights and obligations provided by law.
o Hence, the adopted child has the right to use the surname of the adopter.
ART. 366. A NATURAL CHILD ACKNOWLEDGED BY BOTH PARENTS SHALL PRINCIPALLY USE
THE SURNAME OF THE FATHER. IF RECOGNIZED BY ONLY ONE OF THE PARENTS, A NATURAL
CHILD SHALL EMPLOY THE SURNAME OF THE RECOGNIZING PARENT.
ART. 367. NATURAL CHILDREN BY LEGAL FICTION SHALL PRINCIPALLY EMPLOY THE
SURNAME OF THE FATHER.
ART. 368. ILLEGITIMATE CHILDREN REFERRED TO IN ARTICLE 287 SHALL BEAR THE SURNAME
OF THE MOTHER.
Ø General rule: Illegitimate children shall use the surname of the mother.
o Exception: Illegitimate children may use surname of the father when:
1. Filiation has been expressly recognized by the father through the
record of birth appearing in the civil register; or
2. Admission in a public document or private handwritten instrument is
made by the father.
Ø The father has the right to institute an action before the regular courts to prove non-filiation
during his lifetime.
Ø The legitime of each illegitimate child shall consist of ½ of the legitime of a legitimate
child.
ART. 369. CHILDREN CONCEIVED BEFORE THE DECREE ANNULLING A VOIDABLE MARRIAGE
SHALL PRINCIPALLY USE THE SURNAME OF THE FATHER.
Ø An annullable marriage is valid until annulled or terminated. Hence, a child conceived
inside a marriage prior to its annulment is legitimate.
ART. 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 "M RS."
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Ø This article is directory and permissive in character – when a woman gets married, she does
not change her name but only her civil status.
Ø A married woman who opted to use the surname of her husband in her passport must
continue to use it in case of renewal. (Remo v. Sec. of Foreign Affairs, 2010)
Ø Example:
1. Nina Patricia D. Sison-Arroyo
2. Nina Patricia S. Arroyo
3. Mrs. Laurence Hector B. Arroyo
ART. 371. IN CASE OF ANNULMENT OF MARRIAGE, AND THE WIFE IS THE GUILTY PARTY, SHE
SHALL RESUME HER MAIDEN NAME AND SURNAME. IF SHE IS THE INNOCENT SPOUSE, SHE MAY
RESUME HER MAIDEN NAME AND SURNAME. HOWEVER, SHE MAY CHOOSE TO CONTINUE
EMPLOYING HER FORMER HUSBAND'S SURNAME, UNLESS:
(1) THE COURT DECREES OTHERWISE, OR
(2) SHE OR THE FORMER HUSBAND IS MARRIED AGAIN TO ANOTHER PERSON.
Ø Rules in case of annulment of marriage:
1. If the wife is the guilty party – she shall resume her maiden and surname.
2. If the wife is the innocent spouse – she may resume her maiden name and
surname or choose to continue employing her former husband’s name, unless:
a. Court decrees otherwise; or
b. She or former husband is married again to another person.
ART. 372. WHEN LEGAL SEPARATION HAS BEEN GRANTED, THE WIFE SHALL CONTINUE USING
HER NAME AND SURNAME EMPLOYED BEFORE THE LEGAL SEPARATION.
Ø In legal separation, the marriage bond is not severed. Hence, the use of surname shall not
be affected.
ART. 373. A WIDOW MAY USE THE DECEASED HUSBAND'S SURNAME AS THOUGH HE WERE
STILL LIVING, IN ACCORDANCE WITH ARTICLE 370.
ART. 375. IN CASE OF IDENTITY OF NAMES AND SURNAMES BETWEEN ASCENDANTS AND
DESCENDANTS, THE WORD "JUNIOR" CAN BE USED ONLY BY A SON. GRANDSONS AND OTHER
DIRECT MALE DESCENDANTS SHALL EITHER:
(1) ADD A MIDDLE NAME OR THE MOTHER'S SURNAME, OR
(2) ADD THE R OMAN NUMERALS II, III, AND SO ON.
Ø Only the son can use the word “junior” in case of identity of names between ascendants
and descendants. (Ex. The son of Juan de la Cruz may be named Juan de la Cruz, Jr.)
Ø Any other direct descendant other than a son could either:
1. Add a middle name or the mother’s surname; or
§ Ex. Juan de la Cruz marries Julieta Santos. Their son can be named
Juan Ricardo de la Cruz, or Juan Santos-De la Cruz.
2. Add the roman numerals II, III, and so on.
§ Ex. Juan de la Cruz II according to order.
ART. 376. NO PERSON CAN CHANGE HIS NAME OR SURNAME WITHOUT JUDICIAL AUTHORITY.
Ø A change of name is a privilege and not a matter of right – must be for proper or reasonable
cause or any compelling reason which may justify such change.
1. Ridiculous name, name tainted with dishonor, or name extremely dififcult to
write or pronounce;
2. Change of civil status; and
3. Need to avoid confusion. (Sec. 4 of R.A. 9048)
4. A sincere desire to adopt a Filipino name to erase signs of a former alien
nationality which unduly hamper social and business life. (Uy v. Republic, 1965)
Ø A change of name does not alter family relations, rights or duties, legal capacity, civil status
or citizenship.
AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTER OR CONSUL GENERAL TO
CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER
[R.A. 9048]

Ø Correction of Clerical or Typographical Error by the Civil Register (R.A. 9048):

Ø Widow – a wife whose husband is dead. She can use the surname of the husband as if he o General rule: Entry in a civil register may be changed or corrected only with a
were still living. judicial order.
§ Exception: Where it is patently clear that there was a clerical or
ART. 374. IN CASE OF IDENTITY OF NAMES AND SURNAMES, THE YOUNGER PERSON SHALL BE typographical error or mistake in entry of:
OBLIGED TO USE SUCH ADDITIONAL NAME OR SURNAME AS WILL AVOID CONFUSION . 1. First name or nickname;
2. Day and month in the date of birth; or
3. Sex of a person.
Ø Ex. The father wants to name his son after the son’s grandfather, Juan de la Cruz. The son Ø Clerical or typographical error – a mistake committed in the performance of clerical work
must be named Juan (second name) de la Cruz, such as “Juan Pedro de la Cruz” in order to in writing, copying, transcribing or typing an entry in the civil register that is harmless and
distinguish him from his grandfather. innocuous.
o No correction must involve the change of:
1. Nationality;
2. Age; or
3. Status.
Ø Petition must be accompanied by:
97 YAP, K. | ATENEO LAW

1. Certified true machine copy of the certificate or of the page of the registry book
containing the entry or entries sought to be corrected or changed;
2. At least 2 public or private documents showing the correct entry or entries upon
which the correction or change shall be based; and
3. Other documents relevant and necessary.
a. Change of date of birth or sex must be accompanied by earliest school
records, medical records, baptismal certificate, etc.
b. Change of gender must be accompanied by a certification issued by an
accredited government physician attesting to the fact that the petitioner
has not undergone sex change or sex transplant.
Ø Petition must be filed in the RTC of the province in which the petitioner resides, or, in the
City of Manila, to the Juvenile and Domestic Relations Court (now RTC).
o It is a proceeding in rem.
Ø Change of first name or nickname, or erroneous entry concerning day and month in date of
birth or sex must be published at least once a week for 2 consecutive weeks in an newspaper
of general circulation.
ART. 377. USURPATION OF A NAME AND SURNAME MAY BE THE SUBJECT OF AN ACTION FOR
DAMAGES AND OTHER RELIEF.
ART. 378. THE UNAUTHORIZED OR UNLAWFUL USE OF ANOTHER PERSON'S SURNAME GIVES A
RIGHT OF ACTION TO THE LATTER.
Ø Usurpation of name implies some injury to the interests of the owner of the name.
Ø Elements:
1. Actual use of another’s name;
2. Use is unauthorized; and
3. Use of another’s name is to designate or identify a person.
ART. 379. THE EMPLOYMENT OF PEN NAMES OR STAGE NAMES IS PERMITTED, PROVIDED IT IS
DONE IN GOOD FAITH AND THERE IS NO INJURY TO THIRD PERSONS. PEN NAMES AND STAGE
NAMES CANNOT BE USURPED.
ART. 380. EXCEPT AS PROVIDED IN THE PRECEDING ARTICLE, NO PERSON SHALL USE
DIFFERENT NAMES AND SURNAMES.
Ø Pen/Stage name – a person may use a name other than his name.
Ø Journalists and artists usually use pen names and stage names.
o Must be in good faith and without injury to third persons.
Ø People using pen names and stage names can have a vested right on such names because
the law provides that it cannot be usurped.
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TITLE XIV: ABSENCE
ART. 381. WHEN A PERSON DISAPPEARS FROM HIS DOMICILE, HIS WHEREABOUTS BEING
UNKNOWN, AND WITHOUT LEAVING AN AGENT TO ADMINISTER HIS PROPERTY, THE JUDGE, AT
THE INSTANCE OF AN INTERESTED PARTY, A RELATIVE, OR A FRIEND, MAY APPOINT A PERSON
TO REPRESENT HIM IN ALL THAT MAY BE NECESSARY .
THIS SAME RULE SHALL BE OBSERVED WHEN UNDER SIMILAR CIRCUMSTANCES THE POWER
CONFERRED BY THE ABSENTEE HAS EXPIRED.
ART. 382. THE APPOINTMENT REFERRED TO IN THE PRECEDING ARTICLE HAVING BEEN MADE,
THE JUDGE SHALL TAKE THE NECESSARY MEASURES TO SAFEGUARD THE RIGHTS AND
INTERESTS OF THE ABSENTEE AND SHALL SPECIFY THE POWERS, OBLIGATIONS AND
REMUNERATION OF HIS REPRESENTATIVE, REGULATING THEM, ACCORDING TO THE
CIRCUMSTANCES, BY THE RULES CONCERNING GUARDIANS.
ART. 383. IN THE APPOINTMENT OF A REPRESENTATIVE, THE SPOUSE PRESENT SHALL BE
PREFERRED WHEN THERE IS NO LEGAL SEPARATION.
IF THE ABSENTEE LEFT NO SPOUSE , OR IF THE SPOUSE PRESENT IS A MINOR, ANY COMPETENT
PERSON MAY BE APPOINTED BY THE COURT.
Ø Appointment of a representative of an absentee must be made by way of court order.
o A spouse must likewise file an application for appointment with the courts with
respect to the properties of the absent spouse.
o If there is no legal separation, the spouse present shall be preferred.
Ø “Or if the spouse present is a minor” has been repealed due to the change of age of majority
to 18 years old.
CHAPTER TWO: DECLARATION OF ABSENCE
ART. 384. TWO YEARS HAVING ELAPSED WITHOUT ANY NEWS ABOUT THE ABSENTEE OR SINCE
THE RECEIPT OF THE LAST NEWS, AND FIVE YEARS IN CASE THE ABSENTEE HAS LEFT A PERSON
IN CHARGE OF THE ADMINISTRATION OF HIS PROPERTY, HIS ABSENCE MAY BE DECLARED.
ART. 385. THE FOLLOWING MAY ASK FOR THE DECLARATION OF ABSENCE:
(1) THE SPOUSE PRESENT;
(2) THE HEIRS INSTITUTED IN A WILL, WHO MAY PRESENT AN AUTHENTIC COPY OF THE SAME ;
(3) THE RELATIVES WHO MAY SUCCEED BY THE LAW OF INTESTACY;
(4) THOSE WHO MAY HAVE OVER THE PROPERTY OF THE ABSENTEE SOME RIGHT
SUBORDINATED TO THE CONDITION OF HIS DEATH .
ART. 386. THE JUDICIAL DECLARATION OF ABSENCE SHALL NOT TAKE EFFECT UNTIL SIX
MONTHS AFTER ITS PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION.
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Ø A judicial declaration of absence is necessary for interested persons to be able to protect
their rights, interests and benefits in connection with the person who has disappeared, and
to protect the interest of the absentee.
o For a spouse, a judicial declaration of absence can be a sufficient cause for
involuntary judicial separation of property.
o A person designated to succeed an absentee in a will may seek for the judicial
declaration of absence.
o Intestate heirs such as the legitimate and illegitimate relatives of the deceased,
the spouse and other collateral relatives may likewise file the same.
o Interested party – those who may have over the property of the absentee some
right subordinated to the condition of the absentee’s death – may seek judicial
declaration of absence.
Ø Effectivity of the judicial declaration of absence shall retroact to the date on which the last
news of the absentee was received.
CHAPTER THREE: ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE
ART. 387. AN ADMINISTRATOR OF THE ABSENTEE'S PROPERTY SHALL BE APPOINTED IN
ACCORDANCE WITH ARTICLE 383.
ART. 388. THE WIFE WHO IS APPOINTED AS AN ADMINISTRATRIX OF THE HUSBAND'S
PROPERTY CANNOT ALIENATE OR ENCUMBER THE HUSBAND'S PROPERTY, OR THAT OF THE
CONJUGAL PARTNERSHIP, WITHOUT JUDICIAL AUTHORITY.
Ø Any of the spouses cannot alienate the properties of the other spouse without the consent
of the latter.
Ø Art. 111 – a spouse may mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone in court to
litigate with regard to the same.
Ø Art. 112 – the alienation of any exclusive property of a spouse administered by the other
automatically terminates the administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse.
ART. 389. THE ADMINISTRATION SHALL CEASE IN ANY OF THE FOLLOWING CASES:
(1) WHEN THE ABSENTEE APPEARS PERSONALLY OR BY MEANS OF AN AGENT;
(2) WHEN THE DEATH OF THE ABSENTEE IS PROVED AND HIS TESTATE OR INTESTATE HEIRS
APPEAR;
Ø If not for purposes of remarriage, there is no need for JDPD. However, Arts. 390-392 must
(3) WHEN A THIRD PERSON APPEARS, SHOWING BY A PROPER DOCUMENT THAT HE HAS
ACQUIRED THE ABSENTEE'S PROPERTY BY PURCHASE OR OTHER TITLE.
Ø Judicial Declaration of Presumptive Death – for purposes of remarriage only.
IN THESE CASES THE ADMINISTRATOR SHALL CEASE IN THE PERFORMANCE OF HIS OFFICE, AND
THE PROPERTY SHALL BE AT THE DISPOSAL OF THOSE WHO MAY HAVE A RIGHT THERETO.
Ø Administration of absentee’s properties ceases:
1. When the absentee appears personally or by means of an agent;
2. When the death of the absentee is proved and his estate or intestate heirs appear;
and
99
§ Usually the executor mentioned in the will shall be appointed as
administrator.
§ If no will, the court shall appoint.
3. When a third person appears, showing a proper document that he has acquired
the absentee’s property by purchase or other title.
§ This is because the administrator must always act within his or her
mandate and authority, and has no right to administer property which
does not belong to the owner by reason of alienation/encumbrance.
CHAPTER FOUR: PRESUMPTION OF DEATH
ART. 390. AFTER AN ABSENCE OF SEVEN YEARS, IT BEING UNKNOWN WHETHER OR NOT THE
ABSENTEE STILL LIVES, HE SHALL BE PRESUMED DEAD FOR ALL PURPOSES, EXCEPT FOR THOSE
OF SUCCESSION.
THE ABSENTEE SHALL NOT BE PRESUMED DEAD FOR THE PURPOSE OF OPENING HIS
SUCCESSION TILL AFTER AN ABSENCE OF TEN YEARS. IF HE DISAPPEARED AFTER THE AGE OF
SEVENTY-FIVE YEARS, AN ABSENCE OF FIVE YEARS SHALL BE SUFFICIENT IN ORDER THAT HIS
SUCCESSION MAY BE OPENED.
ART. 391. THE FOLLOWING SHALL BE PRESUMED DEAD FOR ALL PURPOSES, INCLUDING THE
DIVISION OF THE ESTATE AMONG THE HEIRS:
(1) A PERSON ON BOARD A VESSEL LOST DURING A SEA VOYAGE, OR AN AEROPLANE WHICH IS
MISSING, WHO HAS NOT BEEN HEARD OF FOR FOUR YEARS SINCE THE LOSS OF THE VESSEL OR
AEROPLANE;
(2) A PERSON IN THE ARMED FORCES WHO HAS TAKEN PART IN WAR, AND HAS BEEN MISSING
FOR FOUR YEARS;
(3) A PERSON WHO HAS BEEN IN DANGER OF DEATH UNDER OTHER CIRCUMSTANCES AND HIS
EXISTENCE HAS NOT BEEN KNOWN FOR FOUR YEARS.
ART. 392. IF THE ABSENTEE APPEARS, OR WITHOUT APPEARING HIS EXISTENCE IS PROVED, HE
SHALL RECOVER HIS PROPERTY IN THE CONDITION IN WHICH IT MAY BE FOUND, AND THE PRICE
OF ANY PROPERTY THAT MAY HAVE BEEN ALIENATED OR THE PROPERTY ACQUIRED
THEREWITH; BUT HE CANNOT CLAIM EITHER FRUITS OR RENTS.
be complied with.
1. 4 consecutive years; or
2. 2 consecutive years where there is danger of death in the following circumstance:
a. A person on board a vessel lost during a sea voyage, or an airplane
which is missing;
b. A person in the armed forces who has taken part in a war; or
c. A person who has been in danger of death under other circumstances.
YAP, K. | ATENEO LAW

CHAPTER FIVE: EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE
ART. 393. WHOEVER CLAIMS A RIGHT PERTAINING TO A PERSON WHOSE EXISTENCE IS NOT
RECOGNIZED MUST PROVE THAT HE WAS LIVING AT THE TIME HIS EXISTENCE WAS NECESSARY
IN ORDER TO ACQUIRE SAID RIGHT.
Ø Claim from contract with the absentee/deceased – the person claiming the validity of the
transaction, contract or obligation must prove that, at the time it was entered into, the person
who entered the contract or incurred the obligation was still alive.
Ø Claim of right in favor of the absentee/deceased – the individual seeking to enforce such
right must prove that the right was vested in favor of the deceased while the latter was still
living.
ART. 394. WITHOUT PREJUDICE TO THE PROVISION OF THE PRECEDING ARTICLE, UPON THE
OPENING OF A SUCCESSION TO WHICH AN ABSENTEE IS CALLED, HIS SHARE SHALL ACCRUE TO
HIS COHEIRS, UNLESS HE HAS HEIRS, ASSIGNS, OR A REPRESENTATIVE. THEY SHALL ALL, AS
THE CASE MAY BE, MAKE AN INVENTORY OF THE PROPERTY.
Ø The disposition of the inheritance of an absentee shall benefit either his or her co-heirs or
his or her own heirs, assigns or representatives.
ART. 395. THE PROVISIONS OF THE PRECEDING ARTICLE ARE UNDERSTOOD TO BE WITHOUT
PREJUDICE TO THE ACTION OF PETITION FOR INHERITANCE OR OTHER RIGHTS WHICH ARE
VESTED IN THE ABSENTEE, HIS REPRESENTATIVES OR SUCCESSORS IN INTEREST. THESE RIGHTS
SHALL NOT BE EXTINGUISHED SAVE BY LAPSE OF TIME FIXED FOR PRESCRIPTION. IN THE
RECORD THAT IS MADE IN THE REGISTRY OF THE REAL ESTATE WHICH ACCRUES TO THE
COHEIRS, THE CIRCUMSTANCE OF ITS BEING SUBJECT TO THE PROVISIONS OF THIS ARTICLE
SHALL BE STATED.
Ø In case the property supposed to be inherited by the absentee accrued to the co-heirs, the
title of the property in the registry must be annotated stating that, within the prescriptive
period provided by law, the property can be subject to the claim of any person having an
interest in the said property especially the absentee, or his or her representative or
successors.
Ø The absentee, or his representatives or successors, must file the petition within the
prescriptive period provided by law.
ART. 396. THOSE WHO MAY HAVE ENTERED UPON THE INHERITANCE SHALL APPROPRIATE THE
FRUITS RECEIVED IN GOOD FAITH SO LONG AS THE ABSENTEE DOES NOT APPEAR, OR WHILE HIS
REPRESENTATIVES OR SUCCESSORS IN INTEREST DO NOT BRING THE PROPER ACTIONS .
Ø Anyone who obtains the inheritance of the absentee in accordance with law can make use
or appropriate the fruits of the inheritance as long as they are in good faith.
o However, if the absentee appears or his representatives already filed a claim in
court, those who may have entered upon the inheritance cannot anymore make
such appropriation.
100
TITLE XVI
CIVIL REGISTER
ART. 407. ACTS, EVENTS AND JUDICIAL DECREES CONCERNING THE CIVIL STATUS OF PERSONS
SHALL BE RECORDED IN THE CIVIL REGISTER.
Ø Duties of the local civil register:
1. File registerable certificates and documents presented to him;
2. Compile the same monthly;
3. Issue certified transcripts or copies thereof;
4. Order the binding and proper classification of all certificates or documents;
5. Send the same to the Civil Registrar-General during the first 10 days of each
month;
6. Index the same to facilitate search and identification; and
7. Administer oaths, free of charge, for registration purposes.
ART. 408. THE FOLLOWING SHALL BE ENTERED IN THE CIVIL REGISTER:
(1) BIRTHS; (2) MARRIAGES; (3) DEATHS; (4) LEGAL SEPARATIONS; (5) ANNULMENTS OF
MARRIAGE; (6) JUDGMENTS DECLARING MARRIAGES VOID FROM THE BEGINNING; (7)
LEGITIMATIONS; (8) ADOPTIONS; (9) ACKNOWLEDGMENTS OF NATURAL CHILDREN; (10)
NATURALIZATION; (11) LOSS , OR (12) RECOVERY OF CITIZENSHIP; (13) CIVIL INTERDICTION;
(14) JUDICIAL DETERMINATION OF FILIATION; (15) VOLUNTARY EMANCIPATION OF A MINOR;
AND (16) CHANGES OF NAME.
ART. 409. IN CASES OF LEGAL SEPARATION, ADOPTION, NATURALIZATION AND OTHER
JUDICIAL ORDERS MENTIONED IN THE PRECEDING ARTICLE, IT SHALL BE THE DUTY OF THE
CLERK OF THE COURT WHICH ISSUED THE DECREE TO ASCERTAIN WHETHER THE SAME HAS
BEEN REGISTERED, AND IF THIS HAS NOT BEEN DONE, TO SEND A COPY OF SAID DECREE TO THE
CIVIL REGISTRY OF THE CITY OR MUNICIPALITY WHERE THE COURT IS FUNCTIONING.
ART. 410. THE BOOKS MAKING UP THE CIVIL REGISTER AND ALL DOCUMENTS RELATING
THERETO SHALL BE CONSIDERED PUBLIC DOCUMENTS AND SHALL BE PRIMA FACIE EVIDENCE
OF THE FACTS THEREIN CONTAINED.
Ø Public documents – open to the public during office hours and shall be kept in a suitable
safe which shall be furnished to the local civil registrar at the expense of the general fund
of the municipality concerned.
Ø Civil Register Law does not provide for constructive notice to all persons of any document
filed in the Office of the Local Civil Registrar or Civil Registrar General.
Ø General rule: Birth records are strictly confidential and cannot be revealed.
o Exceptions:
1. Person himself, or authorized person;
2. Spouse, parent direct descendant, or guardian or institution; and
3. Court or proper public official when absolutely necessary.
Ø Prima facie evidence – if remaining unrebutted or uncontradicted, is sufficient to maintain
the fact such evidence seeks to substantiate.
YAP, K. | ATENEO LAW

ART. 411. EVERY CIVIL REGISTRAR SHALL BE CIVILLY RESPONSIBLE FOR ANY UNAUTHORIZED LAWS FOR REPORTING
ALTERATION MADE IN ANY CIVIL REGISTER, TO ANY PERSON SUFFERING DAMAGE THEREBY.
(Printed with the hard copy submitted to Blessings)
HOWEVER, THE CIVIL REGISTRAR MAY EXEMPT HIMSELF FROM SUCH LIABILITY IF HE PROVES
THAT HE HAS TAKEN EVERY REASONABLE PRECAUTION TO PREVENT THE UNLAWFUL
1. A.M. NO. 03-02-05-SC: RULE ON GUARDIANSHIP OF MINORS
ALTERATION.
2. RA 8972: SOLO PARENTS ACT

ART. 412. NO ENTRY IN A CIVIL REGISTER SHALL BE CHANGED OR CORRECTED, WITHOUT A 3. RA 10165: FOSTER CARE ACT
JUDICIAL ORDER.
4. RA 8043: INTER-COUNTRY ADOPTION

Ø See discussion on R.A. 9048 on page 97. 5. RA 8552: DOMESTIC ADOPTION

Ø Rule 108 of the Rules of Court provides for procedural rules for the cancellation or
correction of entries in the Civil Registry. 6. RA 7610: SPECIAL PROTECTION OF CHILDREN ACT
o Verified petition filed by any person interested.
o Notification to all persons interested. 7. RA 10354: REPRODUCTIVE HEALTH ACT
o Publication for 3 consecutive weeks in a newspaper of general circulation in the
province.
o Opposition must be filed within 15 days from notice of the petition, or from last
date of publication.
§ When an opposition is filed, no longer “summary” proceeding.
Ø If a case was filed under Art. 412 purportedly dealing with only clerical errors, but is
actually not mere clerical but substantial ones no under Art. 412, the changes can be
allowed if all the requirements under Rule 108 have been complied with.
o This is because such proceedings have turned into adversarial ones, not mere
summary proceedings.

ART. 413. ALL OTHER MATTERS PERTAINING TO THE REGISTRATION OF CIVIL STATUS SHALL
BE GOVERNED BY SPECIAL LAWS.

Ø Civil Registry Law (Act No. 3753) provides for the registration of documents evidencing
the acquisition or termination of a particular civil status such as legitimation, adoption,
change of name, marriage, termination of such marriage and others.

101 YAP, K. | ATENEO LAW


IMPORTANT ENUMERATIONS
Requisites of a Valid Marriage
Essential (Art. 2) Formal (Art. 3)
1. Legal capacity given by the parties 1. Authority of the solemnizing officer
who must be male and female. 2. Valid marriage license, except in cases
2. Consent freely given and made in the provided for in Chapter 2 of this Title
presence of a solemnizing officer. 3. Marriage ceremony which takes place
with the appearance of the contracting
parties before the solemnizing officer
and their personal declaration that they
take each other as husband and wife in
the presence of not less than 2
witnesses of legal age.
Persons Authorized to Solemnize Marriages
Art. 7 of the Family Code Requisites / Rules
1. Any incumbent member 1. Within their court’s jurisdiction; and
of the judiciary within 2. Incumbent and not retired.
the court’s jurisdiction.
2. Any priest, rabbi, imam, 1. Duly authorized by his church or religious sect;
or minister of any church 2. Registered with the civil registrar general;
or religious sect. 3. Acting within the limits of the written authority
granted him by his church or religious sect; and
4. At least one of the contracting parties belongs to the
solemnizing officer’s church or religious sect.
3. Any ship captain or 1. Between passengers or crew members;
airplane chief only in 2. Ship must be at sea or the plane in flight; and
cases mentioned in Art. § An assistant pilot has no authority to
31. solemnize a marriage.
§ May be solemnized during stopovers at ports
of call – as long as the voyage is not yet
terminated.
3. In articulo mortis.
4. Any military commander 1. Military commander of a unit;
of a unit. § Unit – a battalion under the present table of
organization and not to a mere company.
2. Must be a commissioned officer;
§ An officer of a country's armed services
whose rank is confirmed by a government
document (called a commission).
§ Second lieutenant, ensign or above.
3. Chaplain is assigned to such unit;
4. Chaplain is absent at the time of marriage;
5. Members of the armed forces or civilians, and within
the zone of military operation; and
§ Even if they do not belong to the unit.
§ Within the zone of military operation – implies
a widespread military activity over an area and
102
does not refer to a simulated exercise because
it requires absence of civilian authorities.
6. In articulo mortis.
5. Any consul-general, • Art. 10. Marriages between Filipino citizens abroad
consul or vice-consul in may be solemnized by a consul-general, consul or
the case provided in Art. vice-consul of the republic of the Philippines. The
10. issuance of the marriage license and the duties of the
local civil registrar and of the solemnizing officer
with regard to the celebration of marriage shall be
performed by said consular official.
• Classes of heads of consular posts:
1. Consul-general;
2. Consul;
3. Vice-consul; and
4. Consul agents.
§ Only consul agents are not authorized
by the Family Code to solemnize
marriage.
• General Rule: Both parties must be Filipino citizens
because the very authority of consuls to solemnize
marriage is limited to Filipino citizens, as gleaned
from Art. 7 and Art. 10 which provides that they
must be consuls of the Republic of the Philippines.
§ Exception: When the marriage between the
foreigner and the Filipino citizen abroad
solemnized by a Philippine consul assigned
in that country is recognized as valid in the
host country, pursuant to Art. 26 of the
Family Code.
§ Art. 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 xxx.
• They also perform the duties of an LCR, such as the
issuance of a marriage license.
• “Abroad” – limits their jurisdiction. Hence, they are
not authorized to solemnize marriages within the
territory of the Philippines.
Local Government Code Requisites / Rules
1. Mayor of a city or • Must not be on official leave.
municipality
2. Vice mayor • When the mayor is temporarily incapacitated to
perform his duties for physical or legal reasons.
• Whether temporarily or in the capacity of an Acting
mayor.
3. Highest ranking • When the mayor is temporarily incapacitated to
sangguniang bayan perform his duties for physical or legal reasons.
member
YAP, K. | ATENEO LAW

Exempted from Marriage License (Chapter 2, Arts. 27-34)
Exemption
1. Marriage in articulo mortis
2. Residence is so
located/remote that there is
no means of transportation
to enable such party to
personally appear before
the LCR
3. Marriage in articulo mortis
between passengers or crew
members
4. Marriage in articulo mortis
between persons within the
zone of military operation,
whether members of the
armed forces or civilians
5. Marriages among Muslims
or among other ethnic
cultural communities
for the Cordillera Autonomous Region
(R.A. 6766).
Rules / Requisites • For other indigenous tribes, they must comply with
the Family Code.
• Articulo mortis – where at least one of the parties is
6. Cohabitation for at least 5 1. Live as husband and wife for at least 5 years
in the bring of death.
years without legal characterized by exclusivity and continuity that is
• The marriage will remain valid even if the ailing
impediment at the time of unbroken.
party subsequently survives.
the marriage 2. Without any legal impediment to marry each other
• The solemnizing officer shall state in an affidavit
– at the time of marriage.
executed before the local civil registrar or any other
person legally authorized to administer oaths of
such circumstance. Void Marriages
• The solemnizing officer shall state in an affidavit Marriage Rules / Requisites / Exceptions
executed before the local civil registrar or any 1. Those contracted by any • The consent of the parents is immaterial, whether
other person legally authorized to administer oaths party below 18 years of age present or not.
of such circumstance. even with the consent of • It was raised to 18 years (before 16 for male, 14
parents or guardians for female) because marriages between 12-17
years old increases the probability of unsafe
1. Between passengers or crew members; pregnancies.
2. Ship must be at sea or the plane in flight; and
2. Those solemnized by any • Exception: When either or both of the parties
§ An assistant pilot has no authority to
person not legally believing in good faith that the solemnizing
solemnize a marriage.
authorized to perform officer had the legal authority to do so when in
§ May be solemnized during stopovers at
marriages fact he or she has none.
ports of call – as long as the voyage is not
yet terminated. • Putative marriage – a matrimonial union
3. In articulo mortis. solemnized in due form and good faith on the part
of one or both parties but which by reason of
1. Military commander of a unit; some legal infirmity is either void or voidable.
§ Unit – a battalion under the present table of • Good faith – honest and reasonable belief that the
organization and not to a mere company. marriage was valid at its inception, and that no
2. Must be a commissioned officer; legal impediment exists to impair its validity.
§ An officer of a country's armed services • Does not apply in cases of ignorance of the law –
whose rank is confirmed by a government if the parties go before a person not specifically
document (called a commission). mentioned by law as having any authority to
§ Second lieutenant, ensign or above. solemnize a marriage. (Ex. Solemnized by a
3. Chaplain is assigned to such unit; governor)
4. Chaplain is absent at the time of marriage; • Applies in cases of mistake of fact – if the parties
5. Members of the armed forces or civilians, and go before a person stated by law as qualified to
within the zone of military operation; and solemnize a marriage but in fact is not because of
§ Even if they do not belong to the unit. non-fulfillment of a requirement by law such as
§ Within the zone of military operation – procuring a license, then there is good faith of the
implies a widespread military activity over parties in believing that there was no infirmity.
an area and does not refer to a simulated
exercise because it requires absence of 3. Those solemnized without Exceptions:
civilian authorities. without license 1. Either of both contracting parties are in articulo
6. In articulo mortis. mortis;
2. Remote residence;
• Exempted: 3. Between passengers or crew members of a ship or
1. Muslims – Code of Muslim Personal Laws. plane, in articulo mortis;
2. Indigenous tribes in the Cordillera
Autonomous Region (CAR) – Organic Act
103 YAP, K. | ATENEO LAW

4. Between persons within the zone of military Need of Judicial Declaration of Nullity
operation, whether members of the armed forces Status of Subsequent
Jurisprudence Date of Effectivity
or civilians, in articulo mortis; Marriage
5. Muslims or members of ethnic cultural People v. Gomez September 28, 1954 Valid
communities; and Gomez v. Lipana June 30, 1970 Void
6. Cohabitation for at least 5 years, without legal
impediment at the time of marriage. Odayat v. Amante June 2, 1977 Valid
Wiegel v. Sempio Diy August 19, 1986 Void
4. Those bigamous or • Exceptions:
Yap v. CA October 28, 1986 Valid
polygamous marriages not 1. Code of Muslim Personal Laws
falling under Art. 41 2. Art. 41 – valid subsequent marriages based Family Code of the
August 3, 1988 Void
on presumptive death. Philippines
• Non-observance of Art. 40 (judicial declaration of
nullity) in relation to Art. 52 shall make the Annullable Marriages
subsequent marriage void pursuant to Art. 53. Marriage Rules / Requisites / Exceptions
1. Party was 18-21 years old, • Annullable at the instance of the:
5. Those contracted through • Ex. When one of the contracting parties marries and the marriage was 1. Party whose parent, guardian or person
mistake of one contracting the twin of the other party, believing that such solemnized without having substitute parental authority did
party as to the identity of twin is his or her lover. parental consent. not give his or her consent; and
the other • Absence of consent – the contracting party 2. Parents, guardians, or person having
absolutely did not intend to marry the other, as the substitute parental authority over the
same is not the person he or she actually knew party in that order.
before the marriage. • RATIFICATION: When after attaining the age of
• Does not apply to mistake as to the real name or 21, such party freely cohabited with the other and
mistake as to the virtues of the other party. both lived together as husband and wife.
6. Those subsequent marriages 1. Liquidation, partition and distribution of property; 2. Either party was of • There must be such a derangement of the mind to
void under Art. 53 2. Delivery of the children’s presumptive legitimes; unsound mind. prevent the party from comprehending the nature
and of the contract and from giving it to his free and
3. Recorded in the LCR. intelligent consent.
o Contemplates a situation wanting of
Incestuous Marriages
consent.
• Burden of proof of insanity rests upon him who
1. Between ascendants and descendants of any degree; and alleges insanity, or seeks to avoid an act on
2. Between brothers and sisters, whether of the full or half-blood. account of it.
o If, however, a previous state of insanity is
Void for Reasons of Public Policy proved, the burden shifts to him who
asserts that the act was done while the
1. Between collateral blood relatives, whether legitimate or illegitimate, up to the person was sane.
4th civil degree; • RATIFICATION: When after coming to reason,
2. Between step-parents and step-children; such party freely cohabits with the other. (5-year
3. Between parents-in-law and children-in-law; prescriptive period)
4. Between the adopting parent and the adopted child; 3. Consent of either party was • Fraud – the non-disclosure or concealment of
5. Between the surviving spouse of the adopting parent and the adopting child; obtained by fraud. certain circumstances which materially affect the
6. Between the surviving spouse of the adopted child and the adopter; essence of marriage.
7. Between an adopted child and a legitimate child of the adopter; o There is no fraud when there is no
8. Between the adopted children of the same adopter; and concealment or non-disclosure.
9. Between parties where one, with the intention to marry the other, killed that other • Refer to Fig. 8 for the list of frauds.
person’s spouse or his or her own spouse. • RATIFICATION: Unless after having full
knowledge of the facts constituting the fraud, such
party cohabits with the other. (5-year prescriptive
period)

104 YAP, K. | ATENEO LAW


4. Consent of either party was
obtained by force,
intimidation or undue
influence.
5. Either party was physically
incapable of consummating
the marriage, and such
incapacity continues and
appears to be incurable.
• Vitiated consent – obtained by force, intimidation
or undue influence.
o Force or duress – physical and mental
compulsion which the victim may be 6.
unable to resist, and may be physical or
moral.
o Intimidation – when one of the parties is
compelled by a reasonable and well-
grounded fear of an imminent and grave
evil upon his person or property, or upon
the person or property of his spouse,
descendants or ascendants, to give his
consent.
§ Age, sex and condition of the
parties shall be borne in mind. 1.
o Undue influence – influence by which a
person is induced to act otherwise than by
their own free will or without adequate
attention to the consequences.
• Proven by preponderance of evidence.
• RATIFICATION: When the force, intimidation or
undue influence ceases, such party freely cohabits
with the other. (5-year prescriptive period)
• Requisites:
1. Continuing;
2. Incurable; and 2.
3. Exists at the time of marriage.
• Permanent inability on the part of one of the
spouses to perform the complete act of sexual
intercourse.
• May be caused by a physical or structural defect
in the anatomy of one of the parties or it may be
due to chronic illness and inhibitions or fears
arising in whole or in part from psychophysical
conditions, and psychogenic causes.
• If the husband can attain erection but is 3.
psychologically inhibited in engaging sexual
intercourse, such situation will not fall under
impotency as contemplated under the Family
Code.
• Whoever alleges the incapacity has the burden of 4.
proving the same.
o The presumption is in favor of potency.
o Triennial cohabitation – if the wife
remains a virgin for at least 3 years after
cohabitation, the husband must show that
he was not impotent during the said
period and the burden will be upon him
to overcome the presumption of
impotency.
105
Either party was afflicted
with a sexually-
transmissible disease
(STD) found to be serious
and appears to be incurable.
Frauds Contemplated in Art. 45 (3)
Concealment of
Previous conviction by
final judgment of the other
party of a crime involving
moral turpitude.
Pregnancy by a man other
than the wife’s husband.
Sexually transmissible
disease, regardless of its
nature, existing at the time
of marriage.
Drug addiction, habitual
alcoholism, or
homosexuality or
lesbianism existing at the
time of marriage.
• A sterile person can engage in sexual coition, it
does not imply want of power for copulation; it is
not a ground contemplated herein.
• Requisites:
1. Serious; and
2. Incurable.
• Does not apply if the STD was obtained after the
marriage ceremony. However, it can be used as
evidence of sexual infidelity which is a ground for
legal separation.
Rules / Requisites / Exceptions
• Moral turpitude – inherent baseness, vileness or
depravity in the private and social duties which a
man owes to his fellow men or to society in
general.
• Generally, crimes punishable under the RPC are
crimes involving moral turpitude.
• It is not necessary that one of the parties
investigates the other to determine criminal
record, the burden is on the convicted party to
reveal the same.
• Maternity is always certain while paternity may
be disputed.
• The concealment must have been done in bad
faith.
• Mere pregnancy is not sufficient, there must be
concealment of such. If she did not inform the
man, but such pregnancy was readily apparent to
the man, he cannot claim lack of knowledge.
• In case of fraud, the nature or gravity is irrelevant.
It is enough that there was concealment.
• Habitual drunkenness or intemperance – the
persistent habit of becoming intoxicated whereby
he has lost the power or will to control his
appetite for intoxicating liquor, as where he
indulges in intoxication whenever the temptation
is presented and the opportunity offered.
o Applies even if there be intervals when
he entirely refrains from the use of
intoxicating drinks.
o Reason is that it renders him unfit for the
duties of the marital relation and
YAP, K. | ATENEO LAW

disqualifies him from properly rearing 1. Bad faith; and
and caring for the children. 2. Malice.
• The ground is not homosexuality or lesbianism • Does not cover violence upon the child of the
per se, but the concealment of such sexual respondent or the guilty spouse, but may be a ground
orientation. for suspension or termination of parental authority
o Does not serve the purpose of the law under Art. 231 (1) of the Family Code.
mandating a heterosexual relationship. • Physical violence – the infliction of bodily harm.
• The frequency of the act, not the severity of the
same, is the determinative factor under this ground.
Annulment: Parties and Prescriptive Periods o However, even if it is not repeated, such
Defect Who May File Prescriptive Period may constitute grossly abusive conduct
Party whose parent or which may warrant the issuance of a legal
1. Party was 18-21 years Within 5 years after
guardian did not give separation decree.
old, and the marriage attaining the age of 21
consent • Grossly abusive conduct is determined on a case-to-
was solemnized
Parent or guardian or person case basis.
without parental Any time before such party
having legal charge of the o Ex. When one spouse uses offensive
consent. reaches the age of 21
minor language continually against the other
Sane spouse without with the intent and fixed purpose of
knowledge of insanity Any time before the death causing unhappiness.
Any relative, guardian or of either party
2. Either party was of (2) Physical violence or moral • One incident of physical violence or moral pressure
person having legal charge
unsound mind. pressure to compel the to compel the change in religious affiliation or the
of the insane person
petitioner to change religious change in political affiliation can be a ground for
During a lucid interval or
Insane spouse or political affiliation. legal separation.
after regaining sanity
3. Consent of either party Within 5 years after the • Involves the human rights concept of the right to
Injured party accept one another’s political beliefs.
was obtained by fraud. discovery of the fraud
4. Consent of either party Within 5 years from the o The couple should learn to live with each
was obtained by force, time the force, intimidation other’s political ideas. If they cannot live
Injured party together as such, how can we live together
intimidation or undue or undue influence
influence. disappeared or ceased as a nation sharing different political
ideas?
5. Either party was
physically incapable of (3) Attempt of respondent to • Must be against:
consummating the corrupt or induce the petitioner, 1. Petitioner;
Within 5 years after the
marriage, and such Injured party a common child, or a child of 2. Common child; or
marriage
incapacity continues the petitioner, to engage in 3. Child of the petitioner.
and appears to be prostitution, or connivance in • Parental duties violated:
incurable. such corruption or inducement. 1. To provide their unemancipated children
6. Either party was with moral and spiritual guidance;
afflicted with a 2. To instruct them by right precept and good
sexually-transmissible Within 5 years after the example; and
Injured party
disease (STD) found to marriage 3. To protect them from bad company and
be serious and appears prevent them from acquiring habits
to be incurable. detrimental to their health, studies and
morals.
Legal Separation • It cannot be any other immoral act, otherwise the
undue stretching of the import of the article will not
(1) Repeated physical violence • Must be upon: serve the policy of the law of discouraging legal
or grossly abusive conduct 1. Petitioner; separation.
against the petitioner, a 2. Common child; or • Mere “attempt” is enough to be a ground for legal
common child, or a child of the 3. Child of the petitioner. separation.
petitioner. • Must be inflicted with:

106 YAP, K. | ATENEO LAW


(4) Final judgment sentencing
the respondent to imprisonment
of more than 6 years, even if
pardoned.
(5) Drug addiction or habitual
alcoholism of the respondent.
(6) Lesbianism or
homosexuality of the
respondent.
(7) Contracting by the
respondent of a subsequent
bigamous marriage, whether in
the Philippines or abroad.
(8) Sexual infidelity or
perversion.
(9) Attempt by the respondent
against the life of the
petitioner.
(10) Abandonment of
petitioner by respondent
• Does not cover violence upon the child of the
respondent or the guilty spouse, but may be a ground
for suspension or termination of parental authority
under Art. 231 (1) of the Family Code.
• The offense herein need not necessarily be against
the other spouse, their common children or the
petitioner’s children, but against anybody.
• The judgment must be “final.”
• The extent is the same as those in annulment cases.
However, the difference is that here, the grounds can
exist even after the marriage ceremony.
• Lesbianism and homosexuality deal with sexual
orientation that do not by themselves affect the
mental state of a person in relation to his or her
judgment.
• The ground can exist even after the marriage
ceremony.
• Bigamy – the act of illegally contracting a second
marriage despite full knowledge that the first
marriage is still validly existing or without obtaining
the needed judicial declaration of presumptive death
of the first spouse who was absent for 4 or 2
consecutive years pursuant to Art. 41 of the Family
Code.
• Violates the obligation of mutual love, respect and
fidelity.
• Although adultery and concubinage are included
herein, other acts short of such are enough so long
as said acts committed by one spouse would
constitute a clear betrayal of the trust of his or her
spouse by having intimate love affairs with other
persons.
• Sexual perversion includes not only such behavior
with third persons, but even with the spouse.
o Unless condoned.
o Ex. Oral sex, bestiality.
• Must proceed from an evil design and not from any
justifiable cause, ie. self defense.
• The criminal attempt can be proven by
preponderance of evidence in the civil case for legal
separation.
o No conviction is necessary.
• A criminal attempt to kill a spouse is clearly an act
of moral depravity.
• Must be:
5. Willful;
6. Intent to desert/No intent of returning;
107
without justifiable cause for
more than 1 year.
Grounds for Denying Legal Separation
(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.
7. Without justifiable cause; and
8. More than 1 year.
• Willful – when there is a design to forsake the other
spouse intentionally, or without cause and,
therefore, break up the marital union.
• Mere severance of the relationship is not sufficient,
there must be a wrongful intent to desert, continued
for the statutory period.
• Physical separation alone is not sufficient.
o There must be absolute cessation of
marital relations, duties and rights, with
the intention of perpetual separation.
• A separation in which both parties concur is not a
willful desertion of one by the other.
• The computation of the 1 year period does not
include the time during which the offending spouse
has been insane.
• Abandonment:
o A spouse is deemed to have abandoned
the other when he/she has left the conjugal
dwelling without intention of returning for
a period of 3 months, or has failed within
such period to give any information as to
his or her whereabouts.
o Prima facie presumed to have no intention
of returning to the conjugal dwelling.
• Condonation – the act of forgiving the offense after
its commission.
o Implies a condition of future good
behavior by the offending spouse.
o Subsequent offense revokes the
condonation and revives the original
offense.
• Failure of the husband to look actively for his
adulterous wife after she left the conjugal dwelling
does not constitute condonation or consent of the
wife’s adulterous acts. (Ocampo v. Florenciano,
1960)
o She “left” him. It was not his duty to
search for her, but her duty to return.
• Consent – when either of the spouses agreed to do
or did not object, despite full knowledge, to the act
giving rise to a ground for legal separation, before
such act was in fact committed. May be deduced
from the acts of the parties.
YAP, K. | ATENEO LAW

(3) Where there is connivance
between the parties in the
commission of the offense or
act constituting the ground for
legal separation.
(4) Where both parties have
given ground for legal
separation.
(5) Where there is collusion
between the parties to obtain
the decree of legal separation.
(6) Where the action is barred
by prescription.
Effects of Legal Separation
(1) The spouses shall be
entitled to live separately from
each other, but the marriage
bond 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
Art. 43 (2).
(3) The custody of the minor
children shall be awarded to
• Difference with condonation is that here, the consent
was given before the commission of the act. In
condonation, it is done after the act was committed.
• Volenti non fit injuria – one is not legally injured if
he has consented to the act complained of or was
willing that it should occur.
• Doctrine of unclean hands – he who comes into
equity must come with clean hands.
• When 2 persons act in bad faith, they should be
considered as having acted in good faith towards
each other.
• Collusion is a corrupt agreement, while connivance
is a corrupt consenting.
• For collusion, there must be an agreement between
the spouses looking to the procuring of a divorce.
• Must be filed within 5 years from the occurrence of
the cause.
o The time of discovery of the ground for
legal separation is not material in counting
the prescriptive period.
o Justice Puno – the law assumes that if you
discover it after 5 years, forgiveness is
already the order of the day, and no longer
recrimination.
• Even if they can legally live apart, a spouse can still
be held criminally liable for bigamy, concubinage or
adultery if he or she commits the act.
• The portion pertaining to the offending spouse shall
be forfeited in favor of, in the following order:
1. Common children;
2. Children of the guilty spouse by a
previous marriage; or
3. Innocent spouse.
• For purposes of computing the net profit, said profits
shall be the increase in value between the market
value of the community property at the time of the
celebration of the marriage and the market value at
the time of dissolution.
o NP = MVdissolution – MVcelebration.
• In all matters relating to the custody of the child, the
paramount interest of the child shall be the standard.
108
the innocent spouse, subject to
Art. 213.
(4) The offending spouse shall
be disqualified from inheriting
from the innocent spouse by
intestate succession.
Moreover, provisions in favor
of the offending spouse in the
will of the innocent spouse
shall be revoked by operation
of law.
Revocation of Donation propter nuptias
(1) If the marriage is not
celebrated or judicially
declared void ab initio
except donations made in
the marriage settlements,
which shall be governed by
Art. 81.
• The Court may even award custody to a third person
if both spouses are unfit to take care of the child.
• The law does not provide that such revocation by
operation of law will be rendered ineffectual in case
the legal separation decree is set aside by the court
upon manifestation of the parties that they have
reconciled.
o However, Art. 921 (4) provides that
disinheritance in a will shall be rendered
ineffectual upon the mutual reconciliation
of the spouses.
Ø The donor has the option to revoke or maintain the
donation.
Ø If the donation propeter nuptias is contained in the
marriage settlement executed prior to a marriage that
does not take place, the donation shall be considered
void pursuant to Art. 81.
Ø The right accrues once the marriage is not celebrated,
and prescribes in 5 years.
o However, if the donation is void as it is
contained in a marriage settlement, the action
does not prescribe.
Ø There must first be a judicial declaration of the nullity
of the marriage.
Ø Situations:
5. If a subsequent marriage is void pursuant to
Art. 40 in relation to Arts. 52 and 53 because
it has been contracted by a spouse of a prior
void marriage before the latter is judicially
declared void, the donation will be revoked by
operation of law if the donee-spouse
contracted the subsequent marriage in bad
faith.
6. In case there is bad faith on the part of both of
the contracting parties in a subsequent
marriage where one of them previously
obtained a judicial declaration of presumptive
death under Art. 41, such shall be revoked by
operation of law.
7. In all other cases where a marriage has been
judicially declared void on grounds other than
Arts. 40 in relation to 52 and 53, and under
Art. 44, then Art. 86(1) will apply – good faith
or bad faith is irrelevant.
8. If A is validly married to B and subsequently
marries X while the first valid marriage is
subsisting, the subsequent marriage is
YAP, K. | ATENEO LAW

(2) When the marriage
takes place without the
consent of the parents or
guardian, as required by
law.
(3) When the marriage is
annulled, and the donee
acted in bad faith.
(4) Upon legal separation,
the donee being the guilty
spouse.
(5) If it is with a resolutory
condition and the condition
is complied with.
(6) When the donee has
committed an act of
ingratitude as specified by
the provisions of the Civil
Code on donations in
general.
bigamous and, therefore, any donation against the donee himself, his wife or children
propter nuptias given by X to A may or may under his parental authority; or
not be revoked by X after the finality of the 6. If the donee unduly refuses the donor support
judicial declaration of nullity of the bigamous when the donee is legally or morally bound to
marriage. give support to the donor.
Ø If both contracting parties are in good faith, the donor, Ø If the donor decides to revoke the donation, he has 1
after finality of the judicial declaration of nullity, is year from the time the donor had knowledge of the fact
likewise giben by law the option to revoke the donation of ingratitude and it was possible for him or her to bring
or not pursuant to Art. 86(1) of the Family Code. the suit.
Ø This applies to marriages involving a person of age 18-
21 who must secure the consent of the parents, Revocation of Donation propter nuptias
guardians or person having substitute parental authority.
(1) If the marriage is not Ø The donor has the option to revoke or maintain the
Ø If not obtained, the marriage becomes annullable and
celebrated or judicially donation.
the donation propter nuptias may be revoked by the
declared void ab initio Ø If the donation propeter nuptias is contained in the
donor.
except donations made in marriage settlement executed prior to a marriage that
o It is not required that the marriage should have
the marriage settlements, does not take place, the donation shall be considered
been annulled first before the donor may
which shall be governed by void pursuant to Art. 81.
revoke the donation.
Art. 81. Ø The right accrues once the marriage is not celebrated,
o The donor has 5 years from the time he had
and prescribes in 5 years.
knowledge that the needed consent was not
o However, if the donation is void as it is
obtained by the parties as it is only from that
contained in a marriage settlement, the action
time that the cause of action will accrue.
does not prescribe.
Ø If the donor knew of the non-consent before the
Ø There must first be a judicial declaration of the nullity
marriage, he may not yet revoke because the parents can
of the marriage.
still give their consent at anytime prior to the marriage.
Ø Situations:
Ø Any donation propter nuptias is revoked by law in case 9. If a subsequent marriage is void pursuant to
where the marriage is annulled and the donee acted in Art. 40 in relation to Arts. 52 and 53 because
bad faith. it has been contracted by a spouse of a prior
Ø The element of bad faith presupposes a corrupt attitude void marriage before the latter is judicially
towards the institution of marriage and should be declared void, the donation will be revoked by
penalized most severly. operation of law if the donee-spouse
Ø If it is a movable property, the action shall prescribe contracted the subsequent marriage in bad
after 8 years from the time possession thereof. If faith.
immovable, 30 years. 10. In case there is bad faith on the part of both of
Ø Donor has 5 years from the finality of the decree of legal the contracting parties in a subsequent
separation to file a case to revoke the donation. marriage where one of them previously
obtained a judicial declaration of presumptive
death under Art. 41, such shall be revoked by
Ø Resolutory condition – gives rise to a right at the time operation of law.
of perfection of the contract, but such right shall be 11. In all other cases where a marriage has been
extinguished upon the happening of the condition. judicially declared void on grounds other than
Ø Acts of ingratitude: Arts. 40 in relation to 52 and 53, and under
4. If the donee commits some offense against the Art. 44, then Art. 86(1) will apply – good faith
person, honor or property of the donor, or of or bad faith is irrelevant.
his wife or children under his parental 12. If A is validly married to B and subsequently
authority; marries X while the first valid marriage is
5. If the donee imputes to the donor any criminal subsisting, the subsequent marriage is
offense, or any act involving moral turpitude, bigamous and, therefore, any donation
even if proven, unless such was committed propter nuptias given by X to A may or may
not be revoked by X after the finality of the
109 YAP, K. | ATENEO LAW

(2) When the marriage
takes place without the
consent of the parents or
guardian, as required by
law.
(3) When the marriage is
annulled, and the donee
acted in bad faith.
(4) Upon legal separation,
the donee being the guilty
spouse.
(5) If it is with a resolutory
condition and the condition
is complied with.
(6) When the donee has
committed an act of
ingratitude as specified by
the provisions of the Civil
Code on donations in
general.
judicial declaration of nullity of the bigamous
marriage.
Ø If both contracting parties are in good faith, the donor,
after finality of the judicial declaration of nullity, is
likewise giben by law the option to revoke the donation
or not pursuant to Art. 86(1) of the Family Code.
Ø This applies to marriages involving a person of age 18-
21 who must secure the consent of the parents,
guardians or person having substitute parental authority.
Ø If not obtained, the marriage becomes annullable and
the donation propter nuptias may be revoked by the
donor.
o It is not required that the marriage should have
been annulled first before the donor may
revoke the donation.
o The donor has 5 years from the time he had
knowledge that the needed consent was not
obtained by the parties as it is only from that
time that the cause of action will accrue.
Ø If the donor knew of the non-consent before the
marriage, he may not yet revoke because the parents can
still give their consent at anytime prior to the marriage.
Ø Any donation propter nuptias is revoked by law in case
where the marriage is annulled and the donee acted in
bad faith.
Ø The element of bad faith presupposes a corrupt attitude
towards the institution of marriage and should be
penalized most severely.
Ø If it is a movable property, the action shall prescribe
after 8 years from the time possession thereof. If
immovable, 30 years.
Ø Donor has 5 years from the finality of the decree of legal
separation to file a case to revoke the donation.
Ø Resolutory condition – gives rise to a right at the time
of perfection of the contract, but such right shall be
extinguished upon the happening of the condition.
Ø Acts of ingratitude:
7. If the donee commits some offense against the
person, honor or property of the donor, or of
his wife or children under his parental
authority;
8. If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even if proven, unless such was committed
against the donee himself, his wife or children
under his parental authority; or
110
9. If the donee unduly refuses the donor support
when the donee is legally or morally bound to
give support to the donor.
Ø If the donor decides to revoke the donation, he has 1
year from the time the donor had knowledge of the fact
of ingratitude and it was possible for him or her to bring
the suit.
Absolute Community of Property (ACP)
All properties owned by the contracting parties before the marriage ceremony and those
which they may acquire thereafter shall comprise the absolute community of property
regime.
Properties Excluded
(1) Properties of each Ø Art. 1 of the Family Code provides that marriage
spouse excluded from settlements may fix the property relations during the
the community property marriage within the limits provided by this Code.
in the marriage
settlement.
(2) Property acquired Ø Must be a valid gratuitous acquisition during the marriage.
by gratuitous title by o Void donations, such as donations between
either spouse, and the spouses involving a substantial amount of
fruits as well as the separate properties, are not contemplated herein.
income thereof, if any. Ø Remember that the fruits and income of such property are
likewise excluded.
Ø Exception: When the donor, testator or grantor expressly
provide that the donation shall form part of the community
property.
(3) Personal and Ø These properties may either have been brought inside the
exclusive property of marriage or were acquired during the marriage, and must be
either spouse. of a substantial value.
Ø J. Sempio Diy – “susceptible of exclusive use.”
Ø Must be interpreted in terms of value. (Ex. In the case of a
Mercedes Benz of the husband for his “personal and
exclusive use,” and the net worth of the family shows that
the spouses are not very rich to simply afford such a car, it
would belong to the community property)
Ø Exception: Jewelry which must involve a substantial
amount.
(4) Property acquired Ø “Legitimate descendants” include children, grandchildren,
before the marriage by great-grandchildren and all other descendants.
either spouse who has o If the previous marriage is annulled or nullified
legitimate descendants either because anyone of the parties is
by a former marriage, psychologically incapacitated, or because one of
and the fruits and the parties did not comply with the provisions of
income, if any. Arts. 52 and 53, the children conceived or born
inside such marriage are legitimate.
YAP, K. | ATENEO LAW

Ø If the previous marriage is terminated by death and there is (4) Taxes, liens, charges and Ø This can be done even without the consent of the
no liquidation of the property regime of the previous expenses, including major and other spouse following the general rules on co-
marriage and thereafter the subsequent spouse validly minor repairs, upon community ownership.
remarries, the subsequent marriage shall be governed by the property.
Complete Separation of Property (CSP) Regime pursuant to
(5) Taxes and expenses for mere Ø Requisite: The separate property must have been
Art. 103.
preservation made during the used or is being used by the family during the
o The property owned by the surviving spouse prior
marriage upon separate property marriage.
to his or her subsequent marriage shall be
of either spouse used by the
separately owned by him or her during the
family.
subsequent marriage.
o In the event, however, that there was a liquidation (6) Expenses to enable either Ø Essentially, expenses given to either spouse for
of the properties of the previous marriage, the spouse to commence or education and training are within the ambit of the
property regime that will govern the subsequent complete a professional or support for which the ACP is liable.
marriage is ACP if, prior to the subsequent vocational course, or other
marriage, there was no marriage settlement activity for self-improvement.
providing for a different regime, or if there was (7) Ante-nuptial debts of either Ø It must be proven that they have redounded to the
but the same was void. spouse insofar as they have benefit of the family.
Ø Remember that the fruits and income of such property are redounded to the benefit of the
likewise excluded. family.
(8) Value of donation by the Ø Requisites:
Liabilities of ACP spouses in favor of their 1. The donation must be by both spouses
common legitimate children for and must be; and
(1) Support of the spouses, their Ø Support is the most sacred and important of all
the exclusive purpose of 2. For their common legitimate children.
common children, and obligations imposed by law.
commencing or completing a Ø If only one of the spouses donate, it might fall
legitimate children of either Ø Comprises everything indispensable for
professional or vocational under the prohibition under Art. 87 prohibiting
spouse. sustenance, dwelling, clothing, medical
course or other activity for self- donations between spouses.
attendance, education, and transportation, in
improvement o A donation by one spouse to a common
keeping with the financial capacity of the family.
child who has no descendants or
Ø General rule: Support of the illegitimate shall be
compulsory heir other than his or her
taken from the separate property of either spouse.
parents is an indirect donation to the
o Exception: Art. 94 (9) – if the separate
other spouse.
property of such spouse is insufficient.
(2) Debts and obligations Ø The consent of the other spouse is not needed in
contracted during the marriage incurring the obligation. However, there must be
(9) Ante-nuptial debts under Par. Ø Rules to remember:
by the administrator-spouse for proof that the obligation redounded to the benefit
7, support of illegitimate 1. For these expenses, the separate property
the benefit of the ACP, or by of the family.
children of either spouse, and of the debtor-spouse is liable.
one spouse with consent of the Ø General rule: To make the ACP liable, it should be
liabilities incurred by either 2. If such separate property is insufficient,
other. shown to have redounded to the benefit of the
spouse by reason of a crime or the ACP will be liable.
family.
(3) Debts and obligations quasi-delict, in case of absence 3. The amount paid by the ACP shall be
o Exception: The ACP is still liable when
contracted by either spouse or insufficiency of the exclusive considered as an advance to be deducted
it is shown that both spouses contracted
without the consent of the other property of the debtor-spouse, from the share of the debtor-spouse upon
the debt or obligation during the
– to the extent that the family the payment of which shall be liquidation of the ACP.
marriage, or one of them with the
has been benefited. considered as advances to be Ø Art. 100 of the Revised Penal Code (RPC) – every
consent of the other.
deducted from the share of the person criminally liable for a felony is also civilly
Ø Any loss resulting from the exercise of a profession
debtor-spouse upon liquidation liable.
or family business by any of the spouses shall be
of the community. Ø Art. 2176 of the Civil Code – whoever by act or
chargeable to the ACP. (Ayala Investment v. CA,
omission causes damage to another, there being
1998)
fault or negligence, is obliged to pay for the
damage done, and there must be no pre-existing
contractual relation between the parties. (Ex. The

111 YAP, K. | ATENEO LAW


proprietor of a building or structure is responsible 4. Spouse of petitioner abandoned the latter or
for damages resulting from its total or partial failed to comply with his obligations to the
collapse, if it should be due to the lack of necessary family;
repairs. 5. Spouse, who was granted the power of
administration, abused the same; and
(10) Expenses of litigation Ø Requisites:
6. At the time of the petition, spouses have been
between the spouses, unless the 1. Must be between husband and wife; and
separated in fact for at least 1 year and
suit is found to be groundless. 2. Not groundless.
reconciliation is highly improbable.
Ø General rule: The suit must be between husband
and wife. (5) After affidavit of Ø When the reappearing spouse files an affidavit of
o Exception: It may not involve a case reappearance. reappearance to terminate the subsequent marriage, such
between husband and wife, but for as termination shall result in the dissolution of the ACP.
long as it benefits the family, the ACP is o If either spouse contracted the subsequent
liable. marriage in bad faith, his or her share of the net
profits of the ACP shall be forfeited.

Termination of the ACP
Liquidation of the ACP
(1) Upon death of either Ø Upon the termination of the marriage by death, the ACP
spouse. shall be liquidated in the same proceeding for the (1) Inventory shall be prepared, Ø The properties must all be itemized and usually
settlement of the estate of the deceased. listing separately all properties valued.
of the ACP and the exclusive Ø If the proceedings take a long time and the values
(2) When there is a Ø The offending spouse shall have no right to any share of
properties of each spouse. have altered, there is nothing to prevent a new
decree of legal the net profits earned by the ACP or CPG, which shall be
valuation when the last stage is reached.
separation. forfeited in accordance with the provisions of Art. 43 (2).
o There is no law or doctrine that a prior
Ø Upon reconciliation of the parties, they may agree to revive
appraisal is conclusive upon the parties
the property regime subject to the provisions of Art. 67.
and the courts.
(3) When the marriage Ø If either spouse acted in bad faith, his share of the net
(2) Debts and obligations of Ø After inventory, all debts for which the ACP is liable
is annulled or declared profits of the ACP shall be forfeited in favor of the common
ACP shall be paid out of its shall be paid.
void. children, or if there be none, the children of the guilty
assets. In case of insufficiency,
spouse by a previous marriage, and if none, the innocent
spouses are solidarily liable
spouse.
with separate properties.
Ø General rule: There is no ACP in a void marriage. The
governing regime would be either Art. 147 or Art. 148 for (3) Whatever remains of the Ø These properties refer to those stipulated in the
unions without marriage. exclusive properties shall be marriage settlement as exclusive properties or even
o Exception: Subsequent void marriages by non- delivered to each spouse. during the marriage and to the exclusions mentioned
observance of Art. 40 in relation to Arts. 43, 50, in Art. 92.
52 and 53, which includes dissolution of the
(4) Net remainder of the ACP Ø General rule: The net assets will be equally divided
ACP. (Valdes v. RTC, 1996)
properties shall constitute net by the spouses.
(4) In case of judicial Ø If the separation is voluntary, the parties can file the assets, which shall be divided o Exception: When a different division was
separation of property agreement for separation of property in court to obtain the equally between the husband provided in the marriage settlement, or
during the marriage. necessary court approval. and wife, unless a different when either party voluntarily waives
Ø If the separation is involuntary, it must be for a sufficient division was agreed upon in the rights thereto.
cause and must likewise have court approval. Sufficient marriage settlement, or in case o If the waiver of rights refers to those made
causes are: of voluntary waiver. during the subsistence of the ACP, such
1. Spouse of petitioner has been sentenced to civil waiver is invalid and ineffective by virtue
interdiction; of Art. 89.
2. Spouse of petitioner has been judicially declared
(5) Presumptive legitimes of Ø The presumptive legitime is delivered only after
as an absentee;
the common children shall be either:
3. Spouse of the petitioner loses parental authority;
delivered. 1. Finality of a judicial decree of annulment
on grounds provided in Art. 45; or

112 YAP, K. | ATENEO LAW

(6) Conjugal dwelling and lot
on which it is situated shall be
adjudicated to the spouse with
whom majority of the common
children choose to remain.
Conjugal Partnership of Gains
2. Nullity of a subsequent void marriage something using his or her own funds shall
under Art. 40 in relation to Arts. 42 and exclusively own what was purchased.
43. o Test: If the redeemed property belongs to the one
who owns the right to redeem.
Ø Rules to remember:
o Rules of Court names those who have the right to
1. The conjugal dwelling and lot shall go to
redeem:
the spouse with whom a majority of the
1. Judgment debtor; and
common children choose to remain.
2. Successor-in-interest.
2. If there is no such majority, the court
Ø Property acquired by exchange made by one spouse using
shall decide, taking into consideration the
his or her exclusive property shall remain the separate
best interests of said children.
property of such spouse.
3. Children below 7 years old are deemed to
o However, if the separate property of a spouse is
have chosen the mother, unless the court
used as part of the purchase price of a new
decides otherwise.
property in addition to the conjugal funds spent
for the said purchase, the new property shall be
considered conjugal.

The spouses shall place in a common fund the proceeds, products, fruits and income from (4) Purchased with Ø Property purchased using the exclusive money of one
their separate properties and those acquired by either or both spouses through their efforts exclusive money of the spouse shall belong to such spouse.
or by chance. one spouse. o However, when property is purchased using the
exclusive money of one spouse but the title is
Properties Excluded taken in the spouses’ joint names, the
(1) Brought into the Ø All properties brought into the marriage by the contracting circumstances shall determine whether it shall
marriage as his or her parties belong to each of them exclusively. result in a:
own (exclusive Ø The partnership does not produce the merger of the 1. Gift from the spouse whose money was
property). properties of each spouse. used to effect the purchase; or
2. Trust in favor of such spouse.
(2) Acquired by each Ø Anything received by each spouse from any source by way
during the marriage by of an act of liberality, such as a donation or gift, shall belong
gratuitous title. exclusively to the spouse-recipient and will not belong to CPG Properties
the CPG.
o An honorarium is deemed as property acquired by (1) Acquired by Ø That which is acquired with money of the conjugal
gratuitous title as it is something given not as a onerous title during the partnership belongs thereto or forms part thereof.
matter of obligation but in appreciation for marriage at the expense Ø Damages granted by courts in favor of any spouse arising
services rendered – a voluntary donation in of the common fund. out of a contract solely financed by the CPG and
consideration of services which admit no consequently unduly breached by a third party belongs to
compensation in money (not a “gain/fruit”). the CPG.
Ø However, the income and fruits of the property acquired by o Damages arising out of illegal detention of the
gratuitous title shall be considered conjugal. exclusive property of any of the spouses shall
pertain to the CPG if such detention deprived the
(3) Acquired by right of Ø In cases of redemption, the property shall belong to the partnership of the use and earnings of the same.
redemption, by barter spouse who has the right to redeem regardless of whether o Damages awarded to one of the spouses as a result
or by exchange with he or she uses personal funds. of physical injuries inflicted by a third party shall
property belonging to o However, when conjugal funds are used to effect exclusively belong to said injured spouse.
only one of the spouses. the redemption, the spouse making the
redemption through conjugal fund shall be liable (2) Obtained from the Ø Anything obtained from the labor, industry, work and
to the CPG for the reimbursement of the amount labor, industry, work or profession of either or both of the spouses is conjugal.
used to redeem his or her exclusive property. profession of either or
(Santos v. Bartolome, 1922) both of the spouses.
o If there is no right of redemption belonging to (3) Fruits due or Ø Fruits of the common property and net fruits of the
either of the spouses, whoever buys or procures received from the exclusive property belong to the CPG.
common property

113 YAP, K. | ATENEO LAW


during the marriage, as
well as net fruits from
the exclusive property
of each spouse.
(4) Share of either Ø The share of either spouse in the hidden treasure which the
spouse in the hidden
treasure which the law
awards to the finder or
owner of the property
where the treasure is
found.
(5) Acquired through Ø Because the profession involves chance.
occupation such as
fishing or hunting.
(6) Livestock existing Ø Livestock existing upon the dissolution of the partnership in
upon the dissolution of
the partnership in
excess of the number of
each kind brought to
the marriage by either
spouse.
(7) Acquired by chance, Ø Those obtained by chance are considered conjugal.
such as winnings from
gambling or betting.
(1) Support of the spouses, their
common children, and
legitimate children of either
spouse.
(2) Debts and obligations
contracted during the marriage
by the administrator-spouse for
the benefit of the CPG, or by
one spouse with consent of the
other.
(3) Debts and obligations
contracted by either spouse
without the consent of the other
o Net fruits – the fruits will be applied first to the – to the extent that the family the debt or obligation during the
expenses of administration of the said separate has been benefited. marriage, or one of them with the
property and the remainder shall be conjugal. consent of the other.
(4) Taxes, liens, charges and Ø This can be done even without the consent of the
law awards to the finder or owner of the property where the expenses, including major and other spouse following the general rules on co-
treasure is found is conjugal. minor repairs, upon conjugal ownership.
o Hidden treasure – artifacts or objects which have property.
undergone transformation from their original raw
(5) Taxes and expenses for mere Ø Requisite: The separate property must have been
state, such as earrings, necklace, bracelets, etc.
preservation made during the used or is being used by the family during the
o Treasure – any hidden and unknown deposit of
marriage upon separate property marriage.
money, jewelry, or other precious objects, the
of either spouse used by the
lawful ownership of which does not appear.
family.
(6) Expenses to enable either Ø Essentially, expenses given to either spouse for
spouse to commence or education and training are within the ambit of the
complete a professional or support for which the CPG is liable.
vocational course, or other
excess of the number of each kind brought to the marriage activity for self-improvement.
by either spouse shall be conjugal.
(7) Ante-nuptial debts of either Ø It must be proven that they have redounded to the
o 40 cows were brought into the marriage. During
spouse insofar as they have benefit of the family.
the marriage they became 60 cows. The 20 cows
redounded to the benefit of the
shall be conjugal upon dissolution.
family.
(8) Value of donation by the Ø Requisites:
spouses in favor of their 1. The donation must be by both spouses
However, losses shall be borne by the losing spouse.
common legitimate children for and must be; and
the exclusive purpose of 2. For their common legitimate children.
commencing or completing a Ø If only one of the spouses donate, it might fall
professional or vocational under the prohibition under Art. 87 prohibiting
Liabilities of CPG
course or other activity for self- donations between spouses.
Ø Support is the most sacred and important of all improvement o A donation by one spouse to a common
obligations imposed by law. child who has no descendants or
Ø Comprises everything indispensable for compulsory heir other than his or her
sustenance, dwelling, clothing, medical parents is an indirect donation to the
attendance, education, and transportation, in other spouse.
keeping with the financial capacity of the family.
(9) Expenses of litigation Ø Requisites:
Ø General rule: Support of the illegitimate shall be
between the spouses, unless the 1. Must be between husband and wife; and
taken from the separate property of either spouse.
suit is found to be groundless. 2. Not groundless.
o Exception: Art. 94 (9) – if the separate
Ø General rule: The suit must be between husband
property of such spouse is insufficient.
and wife.
Ø The consent of the other spouse is not needed in o Exception: It may not involve a case
incurring the obligation. However, there must be between husband and wife, but for as
proof that the obligation redounded to the benefit long as it benefits the family, the CPG is
of the family. liable.
Ø General rule: To make the CPG liable, it should be
shown to have redounded to the benefit of the
family.
o Exception: The CPG is still liable when
it is shown that both spouses contracted
114 YAP, K. | ATENEO LAW

Liquidation of the CPG
(1) Inventory shall be prepared,
listing separately all properties
of the CPG and the exclusive
properties of each spouse.
(2) Amounts advanced by the
CPG in payment of personal
debts of either spouse shall be
credited to the CPG as an asset.
(3) Each spouse shall be
reimbursed for the use of his or
her exclusive property, the
ownership of which has been
vested by law in the CPG.
(4) Debts and obligations of
CPG shall be paid out of its
assets. In case of insufficiency,
spouses are solidarily liable
with separate properties.
(5) Whatever remains of the
exclusive properties shall be
delivered to each spouse.
(6) Loss or deterioration of
movables used for the benefit
of the family, belonging to
either spouse, even due to
fortuitous event, shall be paid
to said spouse from the CPG,
unless the owner-spouse had
been indemnified from
whatever source.
(7) Net remainder of the CPG
properties shall constitute
profits, which shall be divided
equally between the husband
and wife, unless a different
division was agreed upon in the
marriage settlement, or in case o If the waiver of rights refers to those made
of voluntary waiver. during the subsistence of the CPG, such
Ø The properties must all be itemized and usually
waiver is invalid and ineffective by virtue
valued.
of Art. 89.
Ø If the proceedings take a long time and the values
have altered, there is nothing to prevent a new (8) Presumptive legitimes of Ø The presumptive legitime is delivered only after
valuation when the last stage is reached. the common children shall be either:
o There is no law or doctrine that a prior delivered. 1. Finality of a judicial decree of annulment
appraisal is conclusive upon the parties on grounds provided in Art. 45; or
and the courts. 2. Nullity of a subsequent void marriage
under Art. 40 in relation to Arts. 52 and
Ø Thus, among others, advances made by the CPG in
53.
paying the support of the illegitimate child of either
spouse, the personal debts contracted before the (9) Conjugal dwelling and lot Ø Rules to remember:
marriage which did not redound to the benefit of the on which it is situated shall be 1. The conjugal dwelling and lot shall go to
family, and the payment of fines and pecuniary adjudicated to the spouse with the spouse with whom a majority of the
indemnities of one spouse which did not benefit the whom majority of the common common children choose to remain.
family, shall be considered as assets. children choose to remain. 2. If there is no such majority, the court shall
decide, taking into consideration the best
Ø If separate funds of any spouse were used to buy
interests of said children.
conjugal property, such amount shall be reimbursed
3. Children below 7 years old are deemed to
to the spouse.
have chosen the mother, unless the court
decides otherwise.
Ø After inventory, all debts for which the CPG is liable
shall be paid. Judicial Separation of Property (JSOP)
Ø Interestingly, in CPG, the reimbursement of the
(1) Spouse of the petitioner has Ø Civil interdiction – an accessory penalty that
spouses for advances made in favor of the CPG, or
been sentenced to a penalty deprives the offender during the time of his or her
for the value of their separate property which, by
which carries with it civil sentence of the rights of parental authority, or
law, was vested to the CPG, has to be paid first
interdiction. guardianship, either as to the person or property of
before paying the other debts and obligations of the
any ward, of marital authority, of the right to
CPG.
manage his property and of the right to dispose of
Ø These properties refer to those stipulated in the such property by any act or any conveyance inter
marriage settlement as exclusive properties or even vivos (during his lifetime).
during the marriage and to the exclusions mentioned Ø The final decision of the court embodying the
in Art. 109. penalty of civil interdiction is enough for the court
to approve JSOP.
Ø General rule: Loss or deterioration of movables used
for the benefit of the family, belonging to either (2) Spouse of the petitioner has Ø Requisites for Judicial Declaration of Absence:
spouse, even due to fortuitous event, shall be paid to been judicially declared an 1. 2 years without any news about the
said spouse from the CPG. absentee. absentee or since the receipt of the last
o Exception: Unless the owner-spouse had news; or
been indemnified from whatever source. 2. 5 years in case the absentee has left a
person in charge of the administration of
his property.
Ø Who may file:
1. Present spouse;
Ø General rule: The net profits will be equally divided
2. Heirs instituted in a will who may present
by the spouses.
an authentic copy of the same;
o Exception: When a different division was
3. Relatives who may succeed by the law of
provided in the marriage settlement, or
intestacy; and
when either party voluntarily waives
rights thereto.
115 YAP, K. | ATENEO LAW

(3) Spouse of the petitioner
loses parental authority as
decreed by the court.
(4) Spouse of the petitioner has
abandoned the latter or failed
to comply with his or her
obligations to the family as
provided for in Art. 101.
(5) Spouse granted the power
of administration in the
marriage settlement has abused
that power.
(6) At the time of the petition,
separated-in-fact for at least 1
year and reconciliation is
highly improbable.
(1) When the civil interdiction terminates;
(2) Absentee spouse reappears;
(3) For abuse of administration, when the court authorizes resumption of administration;
4. Those who may have over the property
some right subordinated to the condition
of his or her death.
Ø Takes effect 6 months after publication.
Ø Loss of parental authority – loss of such authority
over the common child, whether legitimate or
illegitimate, of the spouse of the petitioner and the
petitioner, or over the child, whether legitimate or
illegitimate, of the spouse of the petitioner with
another person.
o The law does not distinguish.
Ø Grounds for termination (Arts. 229, 231, and 232):
1. Adoption of the child (by another);
2. Appointment of a general guardian;
3. Judicial declaration of abandonment of the
child in a case filed for the purpose;
4. Final judgment of a court;
5. Judicial declaration of absence or
incapacity;
6. Excessive harshness or cruelty;
7. Corrupting orders, counsel or example;
8. Compels the child to beg;
9. Acts of lasciviousness;
10. Nos. 6-9 with culpable negligence;
11. Sexual abuse.
Ø A spouse is deemed to have abandoned the other
when he or she has left the conjugal dwelling
without any intention of returning and with an intent
to absolutely forego his or her family duties.
Ø Prima facie presumption of no intention to return –
when the spouse has left the conjugal dwelling for 3
months or has failed within the same period to give
any information as to his or her whereabouts.
Ø In case of such abuse, JSOP may be availed of by
the aggrieved spouse to avoid further depletion of
his or her interest in the property.
Ø Abuse – connotes willful and utter disregard of the
interests of the partnership, evidence by a repetition
of deliberate acts and/or omissions prejudicial to the
latter.
Ø Requisites:
1. Separation in fact for at least 1 year at the
time of the petition; and
2. Reconciliation is highly improbable.
Causes for Revival
116
(4) Spouse who has left the conjugal home without a decree of legal separation resumes
common life with the other;
(5) Parental authority is judicially restored;
(6) Reconciliation after separation in fac;
(7) After voluntary dissolution was declared, joint petition of the spouses agreeing to
revive the former property regime. No voluntary separation of property may thereafter be
granted.
Transfer of Administration of All Classes of Exclusive Property of Either Spouse
(1) One spouse becomes the Ø When a spouse is judicially appointed guardian of
guardian of the other. his or her spouse, he or she may likewise be
constituted as the administrator of the estate of the
other spouse.
o Because the spouse is already obliged by
law to live with and take care of his or her
spouse.
(2) One spouse is judicially Ø These 2 grounds are exactly the same as in Art. 135
declared an absentee. (1) and (2).
(3) One spouse is sentenced to
a penalty which carries with it
civil interdiction.
(4) One spouse becomes a Ø Fugitive from justice – one who having committed
fugitive from justice or is or being accused of a crime in one jurisdiction is
hiding as an accused in a absent for any reason from that jurisdiction;
criminal case. specifically, one who flees to avoid punishment.
*(5) Separation in fact Ø In cases of separation in fact, one spouse may, as an
exception, file a petition in a summary proceeding
to be giving judicial authority to administer the
property of the other spouse in the absence of
sufficient common property, because the separate
property of both spouses shall be solidarily liable.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or any
other just cause, the court shall instead appoint a suitable person to be administrator.
Grounds for Impugning Legitimacy of A Child
(1) That it was physically Ø Reasons:
impossible for the husband to 1. Physical incapacity of the husband to have
have sexual intercourse with sexual intercourse with his wife;
his wife within the first 120 2. Husband and wife were living separately
days of the 300 days which “in such a way that sexual intercourse was
immediately preceded the birth not possible;” or
of the child. 3. Serious illness of the husband, which
absolutely prevented sexual intercourse.
Ø The longest period of gestation (process of
development in the mother’s womb) is 300 days.
YAP, K. | ATENEO LAW

(2) For biological or other
scientific reasons the child
could not have been that of the
husband, except artificial
insemination.
However, it is not improbable that it be longer or
shorter.
Ø When a child is born inside a marriage, sexual
intercourse or access is presumed to have occurred
between the spouses within the first 120 days of the
300 days immediately preceding the birth of the
child, and that any day within the 120-day period is
deemed as the possible conception date of a child.
Ø For physical incapacity, there must be convincing
and persuasive evidence that the husband could not
physically consummate the act, in any instance.
o The fact that a husband, who never
separated from his wife, has been
absolutely stiff in the hips at the time of
conception has been held as not
conclusive enough to overturn the
presumption of legitimacy. (State v. Reed,
US case) The wife could’ve dominated. ;)
Ø “Access” means “sexual intercourse” and not
merely presence together of the spouses under
circumstances which afford opportunity for such
intercourse.
Ø Illness must be:
1. Serious; and
2. Such as to absolutely prevent him from
engaging in sexual intercourse.
Ø By the laws of nature, a white couple cannot produce
a black child or mulatto. (Watkins v. Carlton, US
case)
o It is important to present evidence that
neither of the spouses had black child or
mulatto ancestry.
Ø For sterility to constitute proof of non-paternity, the
husband must be shown to be COMPLETELY
sterile at the time when the child was conceived.
o The normal sperm count of a man is 60
million cubic centimeter, but a minimum
of 10 million cubic centimeters is enough
to impregnate at a high probability.
Ø The fact of Vasectomy (removal of an inch of the
tubes which is the passage of the sperm from the
testicle to the urethra) is not enough proof because
the sperm can re-channel itself and effect a
fertilization. Hence, vasectomy must be coupled
with concrete proof that:
1. The husband was completely sterile; and
2. Re-channelization did not occur.
Ø Scientific tests for blood-grouping (Leukocyte test
or A-B-O test) have been recognized as accurate
only in excluding paternity, but not in proving the
same.
117
(3) In case of children
conceived through artificial
insemination, the written
authorization or ratification of
either parent was obtained
through mistake, fraud,
violence, intimidation, or
undue influence.
Filiation of Legitimate Children
(1) Record of birth appearing
in the civil register or final
judgment.
o DNA results that exclude the putative
father from paternity is conclusive proof
of non-paternity.
o However, a 99.9% of paternity resulting
from DNA tests creates a refutable
presumption of paternity. Any result less
than 99.9% is merely corroborative.
Ø Biological or other scientific reasons cannot be
invoked to impugn legitimacy in cases of artificial
insemination where the second paragraph of Art.
164 has been observed.
Ø While the mother may have indeed been subjected
to these causes, she cannot file a case to impute the
legitimacy of the child because she is not given legal
standing to do so.
o This is because Arts. 167, 170 and 171
provide that the child shall be considered
legitimate although the mother may have
declared against its legitimacy or may
have been sentenced as an adulteress.
Ø If the sperm were the husband’s and he voluntarily
acceded to the artificial insemination, he cannot
attempt to impugn the child’s legitimacy. If he does,
it will fail because the law does not grant him such
ground. The grounds under Art. 166 are exclusive.
Ø If the donor were another man and the husband,
because he objected to the artificial insemination,
did not want to comply with the procedure under
Art. 164, he can impugn the child’s status by
invoking any of the grounds under Art. 166.
Ø A record of birth in the civil register is considered
good proof as it proceeds from an official
government source – considered a public document
and is prima facie evidence of the facts therein
contained.
o Springs from the presumption of
regularity in the performance duties by
public officers.
o If the certificate of live birth is signed by
the parents, more particularly the father,
such is self-authenticating and
consummated acts and therefore there is
no further need to file any action for
acknowledgment. (Montefalcon v.
Vasquez, 2008)
YAP, K. | ATENEO LAW

(2) Admission of legitimate
filiation in a public document
or a private handwritten
instrument and signed by the
parent concerned.
In Absence of The Above
(1) Open and continuous
possession of the status of a
legitimate child.
(2) Any other means allowed
by the Rules of Court and
Special Laws.
Ø Final judgment – a judicial decision bearing on the
status of the children as legitimate and hence,
binding and conclusive.
o A final judgment based on a compromise
agreement where the parties stipulated
and agreed on the status of a person is void
against the law and public policy.
Ø An admission of legitimate filiation in a public
instrument or a private handwritten instrument and
signed by the parent concerned is a complete act of
recognition without need of court action. (De Jesus
v. De Jesus, 2001)
o If it is a mere instrument, not in the
handwriting of the supposed parent or not
a public instrument, it will not qualify
under the law.
Ø This means that the father has treated the child as his
own, directly and not through others, spontaneously
and without concealment though without publicity.
o Continuous does not mean forever, but
that it shall not be of an intermittent
character while it continues.
Ø Evidence must be clear and convincing.
Ø Pictures, typewritten letters, and affidavits do not
constitute proof of filiation. (Berciles v. GSIS, 1984)
Ø The fact alone of use of father’s surname after the
latter’s death, without his assent or consent, does not
constitute proof of filiation. (Ferrer v. Inchausti,
1918)
Ø Baptismal certificates, judicial admissions, a family
bible in which the father’s name has been entered,
common reputation respecting his pedigree,
admission by silence, testimony of witnesses and
such other kinds of proof admissible under Rule 130
of the Rules of Court may prove filiation.
o For baptismal certificates, it must be
shown that the father therein participated
in the preparation of the same. Otherwise,
it is not competent proof of paternity.
(Jison v. CA, 1998)
Ø DNA Testing is a valid means of determining
paternity.
o Like fingerprint analysis, in DNA typing,
“matches” are determined.
o There must be a showing of:
1. How the samples were
collected;
118
Obliged to Support Each Other
(1) Spouses
(2) Legitimate ascendants and
descendants
(3) Parents and their legitimate
children and the legitimate and
illegitimate children of the
latter
(4) Parents and their
illegitimate children and the
2. How they were handled;
3. Possibility of contamination;
4. Procedure analyzing samples;
5. Proper standards and procedures
were followed in conducting the
tests; and
6. Qualification of the analyst who
conducted the tests.
o Trial courts should require at least 99.9%
as a minimum value of the Probability of
Paternity (W) prior to a paternity
inclusion. If less, only corroborative.
§ Its results are more reliable
when used to exclude paternity.
o The issuance of DNA testing order
remains discretionary upon the court. If
there’s already preponderance of evidence
for paternity, court may disallow testing.
Ø Presupposes a valid marriage between the parties,
because the right to support proceeds from the law
and is based on their obligation to mutually help
each other.
Ø Remember that there are instances when support
may be denied to a spouse. (ie., adultery,
concubinage, guilty spouse for other reasons)
o Likewise, a spouse is not entitled to
support from the other during (pendente
lite) a case where the validity of the
marriage is in issue.
Ø Once a marriage is declared annulled or void ab
initio, the obligation to give support ceases.
Ø The purpose is to ensure that members of a family
do not allow any member of the same family to
become a burden to society.
Ø May be refused:
o By a husband to a child claiming support
when such child is the fruit of an
adulterous relationship (not the child of
the person from whom support is being
sought).
Ø The persons obliged to support each other are
limited from the grandparents to the grandchildren
only, vice versa.
Ø Illegitimate children are included.
Ø If in a hearing, the status of the child is in issue, the
alleged child can get support pendente lite from the
YAP, K. | ATENEO LAW

legitimate and illegitimate alleged parent if his status as such has been proven
children of the latter provisionally.
o There must be prima facie evidence, such
as the affidavit of the claimant-child and
testimonies of witnesses.
(5) Legitimate brothers and Ø Collateral blood relatives obliged to support each
sisters, whether of full or half- other are limited to legitimate brothers and sisters,
blood whether of the full or half blood.
Ø Excludes uncles, aunts, nephews and nieces.

Termination of Parental Authority
Art. 228 Art. 229
(1) Death of the parent (1) Adoption of the child
(2) Death of the child (2) Appointment of general guardian
(3) Emancipation of the child. (3) Judicial declaration of abandonment of
child
Art. 232 (4) Final judgment divesting party
Sexual Abuse concerned of parental authority
(5) Judicial declaration of absence or
incapacity
Suspension of Parental Authority
Art. 230 Art. 231
Civil Interdiction (1) Excessive harshness or cruelty
(2) Corrupting orders, counsel or example
(3) Compels the child to beg
(4) Acts of lasciviousness

“The heart has reasons of its own which reason does not know.”
- Blaise Pascal
Evelyn Chua-Qua v. Hon. Jacobo Clave and Tay Tung High School
G.R. No. 49549 | August 30, 1990

119 YAP, K. | ATENEO LAW