PERSONS AND FAMILY RELATIONS

ARTICLE 2: (EFFECTIVITY OF LAWS)1

Four (4) scenarios on the Period of Effectivity of Laws:

1) Scenario No. 1: When the law itself is silent on the date of its
effectivity.
that is the time to apply the period provided for in Art 2 of NCC as
amended by EO No. 200, in which case the law shall take effect 15
days “AFTER” or following the COMPLETION of its publication
either in Official Gazette or in a Newspaper of General Circulation.

2) Scenario No. 2: When the law itself provides for its own day of
effectivity.
So if the law provides for its own effectivity, then that should have to be
followed. Precisely, that is the meaning of the clause “Unless Otherwise
Provided” in Art 2 of the NCC, as ruled in the Landmark case of Tañada
vs Tuvera.
o In the said ruling, the word “UNLESS OTHERWISE PROVIDED2”
does not refer to the requirement of publication, because
PUBLICATION cannot be dispensed with.
o That clause refers only to the period or the date of EFFECTIVITY. It is
the date of effectivity which Congress in its discretion may extend or
may shortened the usual 15 days period thereof.
o Under the 2nd scenario, what is important is that the law must be
PUBLISHED. The requirement of publication is indispensable. It is not
possible for the law to become effective in the ABSENCE of
PUBLICATION.

3) Scenario No. 3: The law may provide that is shall become effective,
IMMEDIATELY upon APPROVAL.
o When the effectivity clause of a law provides that it shall become
effective IMMEDIATELY upon its approval, what do we mean by that
provision?

o There are two (2) En banc cases decided by SC that deals with that
legal question:

1
ARTICLE 2: Unless otherwise provided, Laws shall take effect after 15 days following its complete publication in
an official gazette or in a newspaper of a general circulation.

2
The clause “UNLESS OTHERWISE PROVIDED” - refers to the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This clause does not mean that the legislator may make
the law effective immediately upon approval, or on any other date without its previous publication (Tañada vs
Tuvera).

Page | 1
 a. En banc case in 2003 – Fariñas vs Executive Secretary [G.R. No.
147387. December 10, 2003]

o In that case the SC ruled that the effectivity clause which

provides that the law shall become effective immediately upon
approval - is a DEFECTIVE one.
o But while that effectivity clause is defective, it does not render
the ENTIRE law INVALID.
o According to the SC in that situation, we will simply apply the
period provided for in ART 2, in which case the law shall
become effective 15 days following the completion of its
publication either in official gazette or in a newspaper of general
circulation.

b. En banc case in 2004 – La Bugal B’laan Tribal Assn vs Ramos,

(GR No. 127882 dated January 27, 2004).
o In this case, the SC made a contrary ruling. This time the SC
notes that when the law provides that it shall become
EFFECTIVE IMMEDIATELY UPON ITS APPROVAL, we will
construe that that law shall become EFFECTIVE IMMEDIATELY,
upon its COMPLETE PUBLICATION.
o The two rulings are inconsistent with each other.

o So what provides for the better rule?

o It is submitted that the better rule is the 2004 ruling of La Bugal
B’laan.
o Why? Because it satisfy the language in the required rule.
o Take note: that in ART 2, Congress may provide for another
date, but it is still subject to the requirement of publication. What
is important is that the law must be published.
o So both requirements was satisfied in the Ruling of La Bugal
B’laan vs Ramos case.
o So when you will be confronted with that kind of questions in the
bar examination, answer that question in the light of the 2004
case of La Bugal B’laan vs Ramos because that is the better
rule.

4) Scenario No. 4: When the law does not state or provide a period or
date for its effectivity.
o This time, if the law does not provide for the period for which it shall
become effective, then it is presumed to become effective using the
provision in Article 2, that it shall become effective after 15 days
following its complete publication either in official gazette or in a
newspaper of general circulation
o Note, that for the law to become effective, the COMPLETE
PUBLICATION should not be dispensed with, the same being
indispensable for its effectivity
o Otherwise, it will render the law ineffective absence of the required
publication.
Page | 2
 REQUIREMENT THAT LAWS MUST BE PUBLISHED:
o Applies to all kinds of laws whether GENERAL or LOCAL in its
application.

ARTICLE 3: (IGNORANCE OF THE LAW)3

o NOTE: That as a rule, there is a CONCLUSIVE PRESUMPTION of the
knowledge of Law.
o Hence, IGNORANCE of the law excuses nobody from compliance
therewith.
o Ignorantia legis nemenim excusat

GENERAL RULE : Mistakes or ignorance of law is not an excuse:

EXCEPTION: Under PARA 3, Article 5264 (Mistake upon a difficult or doubtful

application of law may be the basis of Good Faith)

o If you are confronted with a difficult questions of law;

o In its construction;
o or you are confronted with a doubtful application of law;
o May be the basis of GOOD FAITH
o As provided under Art 526

o NOTE: Conclusive presumption of the knowledge of law – presupposes that

the law MUST be PUBLISHED.
o So the rule provided in Art 3, can only be applied if the law was published and
become effective.

EXCEPTION to the EXCEPTION:

o There is no CONCLUSIVE PRESUMPTION of the “KNOWLEDGE” of
FOREIGN LAW;
o Foreign law must be specifically alleged and proven, as a matter of fact
according to the law of evidence;
o And our court cannot take JUDICIAL COGNIZANCE of its EXISTENCE

RULE: Jurisdiction with respect to foreign laws, they must be specially alleged
and proven.
o If not alleged or even if alleged but they are not proven, the rule is that the
foreign law must be treated or presumed to be the same as our internal law or
domestic laws under the DOCTRINE OF PROCESSUAL PRESUMPTION of
laws.

3
ART 3. Ignorance of the law excuses no one from compliance therewith.
4
ART 526. He is deemed a possessor in good faith who is not aware that there exist in his title or mode of
acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.
“Mistake upon a doubtful or difficult question of law may be the basis of good faith.”
Page | 3
ARTICLE 4: (RETROACTIVITY OF LAWS)5
GENERAL RULE: Laws shall only have prospective application;
o Les prospicit non respecit;

Note: But the rule is NOT ABSOLUTE; there are exceptions to this rule.

EXCEPTIONS:

1) When the law shall provide for its own Retroactivity.

o But that exception will not apply if the law, which provides for its own
retroactivity, will amount to an EX-POST FACTO LAW;
o The constitution prohibits the enactment of an ex-post facto law.

EXCEPTION TO THE EXCEPTION

1st Exception to the Exception:

o EX-Post FACTO LAW:

WHAT IS AN EX-POST FACTO LAW?

Ex-Post Facto Law – a law is an ex-post facto one, if it contains 3 requisites:

Three (3) Requisites:

1) It is CRIMINAL in character;
2) It is PREJUDICIAL to the accused; and
3) It is given RETROACTIVE application.

o If the law is an ex-post facto one, it is the general rule that will apply.
o That law can only be given prospective application.

2nd EXCEPTION TO THE EXCEPTION:

 When a law which provides for its own retroactivity will result in the
Impairment of Existing Valid Contractual Relations.

o Again the constitution prohibits the enactment of a law which will results in
the impairment of obligations and contract (ART 3 – Bill of Rights)

NOTE: But there is an exception to that prohibition as you have learned in

your Political Law.

o In case of a VALID OR PROPER EXERCISE OF THE POLICE

POWER of the State, Congress may validly enact a law, which will
have the effect of impairing the existing valid contractual relations.

5
ARTICLE 4: LAWS SHALL HAVE NO RETROACTIVE EFFECT, UNLESS THE CONTRARY IS PROVIDED.

Page | 4
 2) When the law is PENAL in character and it is favorable to the accused;
who is not a Habitual Delinquent.
o Then it may likewise be given retroactive application.
o EXN: But it cannot favor a convicted felon who is a habitual delinquent.

3) A Procedural Law or Remedial Law

o May also be given retroactive application,
o Because of the Basic Rule – that there is no vested right in the law of
procedure.

4) When the law is CURATIVE

o Because of its very purpose, it is also given retroactive application

5) If the law creates NEW SUBSTANTIVE RIGHTS

o Provided that it will not results to a prejudice to any acquired rights of

the same offerees.

6) Tax Laws

ARTICLE 7:6 (REPEAL OF LAWS)

TWO (2) WAYS IN RENDERING A LAW INOPERATIVE
1. Either Congress may repeal a law;
2. Or that the Court may declare a law unconstitutional

o Take Note: The first one – is an Act of Congress while

o The other one – is an Act of the Judiciary
o Although, they may have the same results

REPEAL OF LAWS – which is an Act of CONGRESS.

o It can be done in two (2) ways

Laws may be repealed either:

1) Expressly
2) Impliedly

What is meant by EXPRESS Repeal?

o The repeal is express if the second law will specifically designate or
particularly designate the law to be repealed.

6
ARTICLE 7 – LAWS ARE REPEALED ONLY BY SUBSEQUENT ONES, AND THEIR VIOLATIONS OR NON OBSERVANCE SHALL NOT BE EXCUSED B DISUSE,
OR CUSTOM OR PRACTICE TO THE CONTRARY (REPEAL OF LAWS)

WHEN THE COURTS DECLARE A LAW TO BE INCONSISTENT WITH THE CONSTITUTION, THE FORMER SHALL BE VOID AND THE LATTER SHALL GOVERN.

ADMINISTRATIVE OR EXCUTIVE ACTS, ORDERS AND REGULATIONS SHALL BE VALID ONLY WHEN THEY ARE NOT CONTRARY TO THE LAWS OR THE
CONSTITUTION.

Page | 5
 o In the ABSENCE of specific designation of the law to be repealed, there is
no express repeal.

Note: The habit of the present Congress which provide in the effectivity clause
that
o If you are reading the laws passed by the present congress, the effectivity
clause says:

“that laws, executive issuances Presidential Decrees or other issuances

etc. which are inconsistent with this present act are hereby deemed
repealed”

o Is that a statement of an Express repeal?

ANS: NO. Because that effectivity clause does not particularly designate
or specifically designate the law that it seeks to repeal.
- In fact, that is a necessary statement of an IMPLIED REPEAL.

WHAT IS AN IMPLIED REPEAL?

o In implied repeal, there is no express repeal.
o But the two laws covering the same subject matter are totally REPUGNANT or
INCONSISTENT with one another.

So, the Requirements of an Implied Repeal are the following:

1) The two laws covering the same subject matter
2) They are totally repugnant or inconsistent with each other

Note: If those two requisites will not be present, remember that jurisprudence is NOT
IN FAVOR OF AN IMPLIED REPEAL out of respect to Congress.

Let as ask/Question? If there was a repeal of a law either by express or implied

repeal, what will be the effect of the repeal of the repealing law?

Scenario: If Law 1 was repealed by Law 2, what is the effect if Law 2 is itself
repealed? Will it immediately revive the first law?

RULE:
ANSWER: It depends on the manner by which the first law was repealed.
1) If Law 1 was expressly repealed by Law 2, and Law 2 is itself validly repealed,
then that will not results in the immediate revival of the first law or Law1. Law
1 is not thereby revived.
2) EXCEPT, when Law 3 which repealed Law 2 will expressly provide for the
revival of Law 1.
3) Now, if Law 1 was repealed by Law 2 only by implied repeal and Law 2 is
itself repealed by Law 3, then the repeal of the repealing law will result in the
revival of the prior law. So Law 1 will be immediately revived.
4) Except if Law 3 will provide the contrary.

Page | 6
ARTICLE 8: (JUDICIAL DECISIONS)7
Note: Judicial decisions are not laws because the judiciary does not have the power
to enact laws.
o But it form part of the legal systems of the Philippines, because those judicial
decisions are Evidence of WHAT THE LAW MEANS.
o So those JD becomes part and parcel of the law and that is the reason why
they likewise form part of the legal system of the Philippines.
o But the judicial decisions that are being referred to in Article 8, are only those
DECISIONS OF THE SC.
o Because only decisions of the SC establish jurisprudence.

MOST IMPORTANT:

ARTICLE 13: COUNTING OF THE LEGAL PERIOD 8 –

This is a POSSIBLE SOURCE OF BAR Examination Questions/BAR AREAS.
(not ask in 2009 & 2010)

When the law speaks of a year, what does it mean?

- Under the Art 13 NCC, it means 365 days
- But there is another provision in the Administrative Code (Section 31,
Chapter 3 of Book 1 of the 1987 Administrative Code) which
provides for a different rule.
- Under it, when the law speaks of a year, it means TWELVE (12)
CALENDAR MONTHS.

Is there a difference between 365 days and 12 calendar months?

o Yes there is.
o Under the provisions of the Civil Code, the ACTUAL NUMBER of days
is MATERIAL.
 So in counting a year you actually have to have to count the
number of days which is 365 days.
 Exclude the first and include the last.

o But under the provisions of the Administrative Code, the actual number
of days is IMMATERIAL. We will only be talking of the calendar
months.

What is meant by calendar months? – We will simply follow the calendar.

7
ARTICLE 8. JUDICIAL DECISIONS APPLYING OR INTERPRETING THE LAWS OR THE CONSTITUTION SHALL FORM PART OF THE
LEGAL SYSTEM OF THE PHILIPPINES

8
ARTICLE 13 – WHEN THE LAWS SPEAKS OF YEARS, MONTHS, DAYS OR NIGHTS, IT SHALL BE UNDERSTOOD THAT YEARS ARE 365
DAYS EACH; MONTHS, OF 30 DAYS; DAYS, OF 24 HOURS; AND NIGHTS, FROM SUNSET TO SUNRISE.

IF THE MONTHS ARE DESIGNATED BY THEIR NAMES, THEY SHALL BE COMPUTED BY THE NUMBER OF DAYS WHICH THEY
RESPECTIVELY HAVE.

IN COMPUTING A PERIOD, THE 1ST DAY SHALL BE EXCLUDED, AND THE LAST DAY INCLUDED.

Page | 7
EX: Today is June 20, 2017 – What is one calendar month from June 20,
2017?
 We will simply start on the following day.
 So we start on June 21, 2017 and end on the same day of July
20, 2017. So that is one calendar month
 So one calendar month start on June 20, 2017
 So if you change it to a year, you simply change the year that is
June 20, 2018.
 For two years, then it is simply June 20 of 2019.
 The actual number of days is immaterial under the provisions of
the Administrative Code.

o So, since the two laws covering the same subject matter and they are
TOTALLY REPUGNANT to each other, in the case of CIR vs
Primetown Property Groups Inc (GR No. 162155) decided by the SC in
year 2007
o The SC recognizes the existence of an implied repeal.
o That the provision of the administrative code, had repealed
impliedly the provision of Article 13 of NCC with respect to the
meaning of a “YEAR”
o Under the present state of laws and jurisprudence, when the law
speaks of a year, it no longer means 365 days, it now means 12
calendar months.

o So if you will be given a problem to count a year, ex. if you will be given
a problem to start the counting on the period to exercise the RIGHT OF
REDEMPTION?
o The obligor is a natural person and the mortgagee is the bank,
under the provisions of the General Banking Law, there is one
(1) YEAR period of REDEMPTION.
o And that one year PERIOD OF REDEMPTION shall be counted
from the date of the REGISTRATION of the CERTIFICATE OF
SALE.

o Ex. If the Certificate of Sale is registered today – June 20, 2017

what is the last day for the exercise of the period of retention?
o That would simply be on June 20 of year 2018. Because under
existing jurisprudence, a year now means 12 calendar months.
o Do not forget the word Calendar.
o If you only say, 12 months, that is different. 12 months is
different from 12 calendar months.
o Because 12 months is 365 days.

Page | 8
 o WHY? Because when the law speaks of a months it means 30
days. So 30 days x 12, that will be 360 days. So do not forget
the word calendar.
o A year means 12 calendar months and not 12 months.

o The other provisions of Art 13, except as to the meaning of a year is

inconsistent with the provision of the Administrative Code. That is what
it means.
o Note: when we talk of a MONTH, it is still the same which
means a Month is still 30 days UNLESS the specific month is
designated.
o Likewise when we talk of the DATE – it means 24 hours
o And when we talk of a NIGHT – it means from sunset to sunrise.

ARTICLE 14: (CRIMINAL LAW IS GENERAL IN

APPLICATION)9
o It embodies one of the characteristics of our criminal law.
o You have learned during the past week that our criminal law is GENERAL IN
APPLICATION. And that principle is not provided for in the RPC, but it is
provided under ART 14 of NCC.

o It simply provides that penal laws and laws of public security and safety
are applicable not only to citizens of the Philippines but to ALL PERSONS
sojourning or living in the Philippines.

o Under the TERRITORIALITY Principle of our penal laws.

o Our penal laws are applicable to all in general, so long that they are here in
the Philippine territory.

o EX. Application of that principle.

o JASON IVLER – when he was apprehended, her mother claimed that Jason
is a citizen of US and the US Embassy shall take custody of him while the
case is pending. (Art 14 is the proper answer)
o Our penal laws apply to all in General regardless of citizenship provided that
the crime was committed in the Philippine territory.

GR: Our Penal Laws applies to ALL regardless of citizenship provided that the crime
was committed in the Philippine territory.

9
ARTICLE 14. PENAL LAWS AND THOSE OF PUBLIC SECURITY AND SAFETY SHALL BE OBLIGATORY UPON ALL WHO LIVE OR
SOJOURN IN PHILIPPINE TERRITORY, SUBJECT TO THE PRINCIPLES OF PUBLIC INTERNATIONAL LAW AND TO TREATY
STUPULATIONS.

Page | 9
 o Other request of the mother of IVLER.....What about the case of Daniel
Smith? He was accused of rape.
o Note. During the pendency of his appeal, the US embassy here, took custody
of Daniel Smith.

NOTE: The case of Daniel Smith; Falls under the EXCEPTION.

o The rule in Art 14 is not absolute.

o There are 3 situations where the principles of generality will not apply.

What are THOSE THREE (3) Exceptions?

1) When there is a TREATY entered into by the Philippines with a
Foreign Country providing for a CONTRARY Rule.
 And this is the situation that applies to the case of Daniel Smith.
 Because of the Visiting Forces Agreement.
 Where our country agrees, that during the pendency of the case,
the US will maintain custody of their serviceman being tried in the
Philippines.

2) When there is a LAW OF PREFERENTIAL APPLICATION which

provides for a contrary rule; and

3) When there is a principle of public international law that likewise

provides for a contrary rule.

Ex. Head of State are immune/exempted from the criminal jurisdiction of the
Philippines as well their diplomatic officials and their official families.

ARTICLE 15: (LAWS COVERING FAMILY RIGHTS)10

Take note of the Matters that are covered or enumerated under ART 15.
o Laws covering
1. Family rights and duties
2. Status
3. Condition
4. Legal capacity of persons
o Shall be binding upon citizens of the Philippines whenever they maybe.

BUT NOTE: There is a principle which is embodied behind that provision.

o And that principle is what we referred to as the NATIONALITY PRINCIPLE or
“Lex Nationalis”
o But there are some countries which do not follow the Nationality Theory.
o Other countries follow the Domiciliary Theory.
o So if we will treat the provision of Art 15, in relation to what you have learned
in your conflict of laws,
10
ARTICLE 15: LAWS RELATING TO FAMILY RIGHTS AND DUTIES, OR TO THE STATUS, CONDITION AND LEGAL CAPACITY OF
PERSONS ARE BINDING UPON CITIZENS OF THE PHILIPPINES, EVEN THOUGH LEVING ABROAD.
Page | 10
 o With respect to those matters enumerated in Article 15
 Family rights and duties
 Status
 Condition
 Legal capacity of persons

They will be governed by the PERSONAL LAW of the persons

concerned.

o And that personal law will either be:

a) The National Law of the persons concerned if his country is
following the Nationality Theory.
b) Or it may be the law of his Domicile, if his country is following the
Domiciliary Theory.

NOTE: Applying the principle embodied in Art 15, let us consider cases concerning
the validity of Absolute Divorces.

o Since the validity of an absolute divorce will definitely affect family rights and
duties it will definitely affect the status of the person and even his capacity to
remarry, the principle in Art 15 will come into play.
o In determining the validity of the Divorce obtained by the person, we will
definitely apply the provision of Art 15
o The validity of the divorce obtained by that person will be determined either by
the Personal law or the law of the domicile of the person concerned.

The rule in this jurisdiction is that:

o We do not have Laws allowing our courts to issue divorces.
o Our courts cannot grant it, even if the applicant is a foreigner our local courts
will not issue a decree of divorce.
o Because our laws do not provide for absolute divorces.

WHAT WE HAVE IS:

a) Declaration of absolute nullity of marriages; and
b) Annulment.
o We do not recognize absolute divorces. Our courts cannot grant
decrees of absolute divorces even if the applicant is a foreigner.
BUT NOTE: What our courts can do is that our courts can RECOGNIZED the
validity of the foreign decree of divorce obtained by foreigners.

o Our court cannot grant it, but our courts may recognize the validity of
foreign decree of divorces obtained by a foreigner.

o CLARIFICATION: If the decree of absolute divorce was obtained by the

citizens of the Philippines, applying the Nationality Principle; what is the policy

Page | 11
 of the Philippines with respect to absolute divorces obtained by its citizens in
a foreign country?
o It is only possible for a citizen of the Philippines to obtain a decree of absolute
divorce outside, because our country will not grant it.

What is the treatment of the Philippines with respect to the decree of

absolute divorce obtained by its citizens in a foreign country?

GENERAL POLICY: The policy of the state is that it does not

recognize the absolute divorces obtained by Filipino citizens in a
foreign country.

REASONS/RATIONALE: It is contrary to our Public Policy and on Morality.

o Absolute divorces obtained by Filipino citizens abroad are not

recognized as valid here in the Philippines.
o Even if they are recognized as valid in the place where it was obtained.

WHY? Because the policy of the state is that those foreign divorces obtained
by Filipino citizens are CONTRARY to PUBLIC POLICY and MORALITY.

o But if the decree of absolute divorce was obtained by a Foreigner, then

we will follow the personal law of that foreigner.
o Hence, our courts MAY RECOGNIZE the validity of the divorce decree
obtained by that foreigner if that is allowed either by the national law or
by his law of domicile.

REMEMBER: THERE IS ONLY ONE SITUATION, where OUR LAWS

RECOGNIZE the VALIDITY OF A DECREE OF ABSOLUTE DIVORCE
obtained, even in relation to a citizen of the Philippines.

o And that situation is provided for in the 2nd PARA of ART 26 of the
Family Code.

ART 26 FC:

PARA 1: All marriages solemnized outside the Philippines, in accordance with

the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), Articles 36, 37 and 38.11
11
Article 35: The following marriages shall be VOID from the beginning:
(1) Those contracted by any party BELOW 18 years of age even with the CONSENT of parents or guardians;
(4) Those BIGAMOUS or POLYGAMOUS marriages not falling under Article 41;
(5) Those contracted through mistake of one of the contracting parties as to the identity of the other; and
(6) Those subsequent marriages that are VOID under Article 53

Article 36: On Psychological Incapacity.

Article 37: On Incestuous Marriages
Article 38: Marriages that are VOID by reason of PUBLIC POLICY.

Page | 12
PARA 2: Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry, under Philippine law.

WHAT IS THAT SITUATION?

o It speaks of a MIXED MARRIAGE.
 It is a situation where a citizen of the Philippines is married to a
foreigner.
 And it is the foreigner who obtained the decree of absolute
divorce, CAPACITATING the foreigner to REMARRY.
 In which case, under our law... we will likewise recognize that
decree of absolute divorce as Valid, even in relation to the
citizen of the Philippines.
 So our law provides that the citizen of the Philippines will
likewise REGAIN his/her capacity to remarry.

o But in order for the provision of Article 26 FC para 2 to apply, 3

Requisites must be satisfied.

THREE (3) REQUISITES:

1) It must be a case of a mixed marriage.
- In other words, it must be a marriage between a foreigner and a
citizen of the Philippines.

QUESTION? Is it necessary that it must be a mixed marriage from the very

start/beginning or from the time of the celebration of the marriage?
o Or at the time of the celebration of the marriage, the parties were both
citizens of the Philippines and after the celebration of the marriage one
of them became a naturalize citizen of another country. And after
becoming a naturalized citizen of another country pursuant to his new
National Law, that former Filipino citizen who is now a naturalized
citizen of a foreign country will thereafter obtained a decree of absolute
divorce capacitating him or her to remarry.

Question? Will the provision of Article 26 para 2 of FC will apply?

ANSWER: The SC answered this, in the landmark case of Republic vs

Obrecido III (2009)

SC RULING:
o In determining the application of Art 26 para 2 FC, take note that the
RECKONING POINT is:
1) NOT the citizenship of the parties at the time of the celebration of
the marriage;

Page | 13
 2) But the citizenship of the parties at the time that the VALID divorce
decree was obtained.
o So even if at the time of the celebration of the marriage they were still
both citizen of the Philippines but if at the time that the decree of
absolute divorce was obtained and it was already a case of a Mixed
Marriage, then Article 26 para 2 of FC will now apply.

3) It must be necessary that it was the FOREIGNER who should

obtain the decree of absolute divorce.
o Because if it is the citizen of the Philippines who will obtain the
decree of absolute divorce, it is not Article 26 of FC that will apply.
o But Article 15 of the NCC in relation to Article 17 of NCC in which
case the decree of absolute divorce that was obtained by the citizen
of the Philippines will not be recognized as valid here in the
Philippines because it is CONTRARY to Public Policy and Morality.

4) It is necessary that the foreign decree of absolute divorce that

was obtained by the foreigner, must CAPACITATE the foreigner
to REMARRY.

o In other words, the nature of that divorce must be an ABSOLUTE

ONE capacitating the foreigner to remarry.
o Note: with respect to foreign divorces we have what we called as
ABSOLUTE and RESTRICTIVE DIVORCES.
o It may restrict the capacity of the foreigner to remarry.

 So if a client comes to you and ask you a question that,

“Atty. I used to be married to a foreigner but he/she already obtained
a divorce decree, pwede na ba ako magpakasal? Can i now
remarry?”

 Do not answer yes right away.

 To be safe (this was ask in the bar)....What will your advice be to
your client?
 Do not advice your client to immediately contract another
marriage.
 Because he will be at the risk of committing the crime of Bigamy,
if it will turn out that the nature of the divorce that was obtained
by the foreigner is merely a Restrictive one.

NOTE: Under this jurisdiction, we do not take judicial cognizance of existence

of that foreign decree of divorce.
- That is a foreign judgment;
- That our courts cannot take judicial cognizance of;
- They must be proven as a matter of FACT.

Page | 14
 What is the proper legal advice to your client?
 Advice him to file a petition before the Family Court for authority to
Remarry, pursuant to the provision of Art 26 para 2 of FC.

 And in that petition, you will be required to PROVED the following:

1) You will be required to prove the EXISTENCE OF THE FOREIGN
JUDGMENT or that DECREE OF ABSOLUTE DIVORCE. Because
again our courts cannot take judicial cognizance of a foreign law.
2) You must be able to prove that the decree of divorce was obtained
pursuant to the NATIONAL LAW of the foreigner.
3) You must also prove that the national law of the foreigner allows
him to get a decree of absolute divorce.
o And in the process he will be required to prove the existence
of a foreign law, because again our courts cannot take
cognizance of the existence of a foreign law. They must be
proven as a matter of fact according to the law of evidence.
4) You must be able to prove the NATURE OF THAT DIVORCE.
o You must prove that the decree obtained capacitated the
foreigner to remarry.
o Only after doing the foregoing, that citizen of the Philippines
will acquire his capacity to remarry.

ARTICLE 19: (HUMAN RELATIONS PROVISION)12

NOTE: This provision provides for the NORMS OF HUMAN COUNDUCT, the
CARDINAL PRINCIPLE on the norms of human conduct that everyone should follow
while EXERCISING HIS RIGHT.

o Art 19 only provides for the cardinal principle on the norms of human conduct.

What are the sanctions for violation of the said provision?

 Those sanctions were provided for under the following Articles; Art 20 and 21.
 In relation to these 3 Articles (19, 20, 21), we have the principle of:
1) Damnum Absque Injuria (Damage without Injury); and
2) Principle of abuse of right.

o So the question is, in the exercise of your right, you will incidentally cause
damage to another, will you be liable of DAMAGES?

Answer: It depends. On whether it is a case of Damnum absque injuria or

abuse of right.

12
ARTICLE 19: EVERY PERSONS MUST IN THE EXERCISE OF HIS RIGHT IN THE PERFORMANCE OF HIS DUTY ACT
WITH JUSTICE GIVE EVERYONE HIS DUE AND MUST OBSERVE HONESTY AND GOOD FAITH

Page | 15
 o If in the exercise of his right was done legitimately and properly but incidentally
the actor causes damage to another person there is no differ injury there in the
event that it will be considered an actionable wrong.
o In other words the actor will not be liable for damages under the principle of
Damnum Absque Injuria.
o That principle presupposes that a right was exercise legitimately or validly.

NOTE: But if the right was exercise in BAD FAITH. Then that is a case of ABUSE
OF RIGHT.
o In which case, if the actor exercise his right in Bad Faith and causing
damage to another he will now be liable for damages.

WHEN DO WE KNOW THAT IT IS A CASE OF DAMNUM ABSQUE INJURIA OR

ABUSE OF RIGHT?

ANS: The sole criterion is the ABSENCE of GOOD FAITH

o If the exercise of a right was done in good faith that is a case of Damnum
Absque Injuria in which case there is no liability even if the exercise of the
right will result in damage to another.
o BUT... if the right was exercise in BAD FAITH, in which case the exercise of
the right is solely for the purpose of prejudicing another person that will now
be a case of Abuse of Right, and the actor this time will now be liable for
damages for the resulting injury.

In relation to Article 21 – we have cases on BREACH OF PROMISE TO

MARRY.
o If you go to a promise of marriage, will you be liable for damages
o According to jurisprudence, Breach of Promise of Marriage per se is
not an Actionable wrong. There are a number of cases that deal with
that legal question.

WHAT IS THE LEGAL BASIS? WHAT IS THE REASON WHY BREACH OF

PROMISE TO MARRY IS NOT AN ACTIONABLE WRONG?
o Because that is the intention of Congress. That is the legislative intent to
make it not an actionable wrong.
o Why? Because in the original draft of the Civil Code, there is a provision
making breach of promise of marriage an actionable wrong.
o But when that draft was presented to Congress for enactment, our
Congressman deleted that provision.
o So when our civil code was finally passed, it no longer contain such provision
making breach of promise of marriage an actionable wrong.
o So what is now the policy of the state as embodied in the intention of
Congress? Not to make it an Actionable wrong.
o And that is how those decisions of the SC was recited on the basis of that
legislative intent.

Page | 16
BUT NOTE: Be careful if there is a MORAL SEDUCTION. If there is moral seduction
it will not simply be a case of breach of promise of marriage
o If there will be MORAL SEDUCTION – the actor now will be liable for
damages pursuant to the provision of Article 21 of the NCC.

WHAT DO WE MEAN BY MORAL SEDUCTION?

o If the promise of marriage was the PROXIMATE CAUSE or REASON why the
WOMAN OF VIRTUES surrendered herself to the man and from the day
outset, that man have no INTENTION of FULFILLING his promise (especially
because he was already married) and it only resulted to that promise only for
the purpose of gaining ACCESS to HEAVEN, that will be a case of Moral
Seduction.
o REPEAT: That promise of marriage should be the proximate reason why the
woman gave herself to the man and the man had no intention of fulfilling the
promise of marriage.
o If the promise of marriage was NOT the PROXIMATE REASON:
Example: If it is a case of MUTUAL ATTRACTION, MUTUAL LOVE, DESIRE,
LUST, then there is no Moral Seduction. Even if the promise was make it
afterall the woman will give herself to the man inspite of or even in the
absence of that promise clearly that promise was not the Proximate Reason.
o If that will be the situation then the man will not be liable for damages because
there is no moral seduction.
o Hindi namn kailangan na there will be a sexual interpose in order for the man
to be liable for damages in the case of breach of promise of marriage.

NOTE: Recall the case of Wassner vs Teves

o In this case, the groom led the bride to believe that the wedding will push
through.
o So formal preparation for the wedding were had, invitations were sent out,
only for the man or the groom to back out of the wedding, 2 days prior to its
celebration, by simply writing a note to the bride
o In that case the SC ruled that the groom is liable to the bride for damages
pursuant to Article 21 of CC, because the action of the groom were
CONTRARY to GOOD CUSTOM.

A similar incident happened in the City of Cebu, which is now pending

o The RTC of Cebu City – the groom and the bride is already in the altar but
prior to the marital vows, a woman at the back showed up and shouted on the
name of the groom. “Bosyo Mahal Kitaaaaa...”
o And when the groom saw the other woman, the groom run to the other
woman and they both embrace each other.
o And the groom even ignore the call....and he went out of the church together
with the woman. And the priest even went and persuades the groom to go
back but to no avail.
o So the bride file an action to recover damages.

Page | 17
Question: Can she recover?
o YES. The bride can recover because the action of the groom was contrary to
good customs.
o This is much worse than Wassner vs Teves – because the groom only back
out of the wedding 2 days prior to its celebration.
o In this case, the groom back out during the celebration of the marriage.

WHAT IS AN ACTION IN REM VERSO?

o That is simply an action for the RECOVERY of SOMETHING that has been
DELIVERED and the delivery was WITHOUT JUST or LEGAL GROUNDS
o Again, an action in rem verso is an action for recovery of something that was
delivered without just or legal grounds.

IS IT THE SAME AS SOLUTIO INDEBITI?

o NO. They are not the same because they differ
o It is a quasi-contract - it is a juridical relation arising from a situation where
there was a DELIVERY by REASON of MISTAKE.
o So it is necessary in solutio indibiti that the delivery must be BY REASON of
MISTAKE.

Which should not be the case in action in rem verso.

o If the delivery is by reason of Mistake – it is a case of solutio indibiti.
o WHY? Because before an action in rem verso can prosper the
following REQUISITES must be present.
1. The defendant was enrich.
2. And the enrichment of the defendant is by reason of the plaintiff.
3. Because the plaintiff delivered something to the defendant.
o And that delivery that was made by the plaintiff to the
defendant must be WITHOUT:
a) JUST
b) Or LEGAL GROUNDS
4. The plaintiff is required to have NO OTHER LEGAL REMEDY
o The plaintiff must have no other legal remedy ARISING from
CONTRACT, QUASI-CONTRACT, DELICT or QUASI-
DELICT.
o In other words – if the plaintiff can recover in quasi-contract,
then he cannot file an action IN REM VERSO.
So if it is a case of Solutio Indibiti – the plaintiff cannot file an action In rem
Verso, because one of its requirement was that the plaintiff must have No
Legal Remedy under either contract, quasi-contract, delict or quasi-delict.

CIVIL OBLIGATION ARISING FROM DELICT OR FROM CRIME

o In OBLICON there were several sources of obligation and crime is one of
them.
o Recall Article 100 of the RPC – every person criminally liable shall also be
civilly liable.
Page | 18
 o NOTE: But take note that the true basis of the existence of the liability for the
crime is – Existence of an Offended Party.

o Can there be civil liability arising from a crime if there is a private

offended party who was been indemnified for the damage suffered by
him.
o In other words, the same felonious act or omission will only result in a civil
obligation where such same act or omission will resulted into damage to the
private individual.
o So in the absence of a private offended party – there is no civil liability in the
crimes of delict.

Two kinds of offended party in a crime:

1) PUBLIC OFFENDED PARTY – the state
2) PRIVATE OFFENDED PARTY
o You are familiar with the principle that crime is primarily an offense
against the state.
o So for those crimes that there are no private offended party, then there
is no civil liability arising from crime or delict.

Ex: In the crimes of:

1. Rebellion
2. Treason
3. Coup d’etat
4. Illegal possession of FAs
- There are no private offended party here

If there is a private offended party – automatic yan, that there always 2

sources of obligation (delict and quasi-delict)
o Recall the case of Garcia vs Barredo – involving a crime committed
thru culpa
o The crime for wreckless imprudence resulting in damage to property.

Can the same omission be the source of obligation, this time not
from delict but based from quasi-delict?
o The SC held and answers the question in the affirmative.
o SC HELD: That the scope of quasi-delict is much broader. It covers not
only an acts or omissions which are punish by law but it also covers act
which are criminal in character.
o That is the scope of quasi-delict.

o But in this case – the crime committed is thru CULPA.

o What if the crime be committed thru DOLO? Can it likewise be the
same criminal act be the source of obligation under quasi-delict?
o SC again answer the question in the affirmative in the old case of
Emranu vs Yu? –where the SC held that the scope of quasi-delict, is

Page | 19
 broad enough to cover, even acts which are criminal in character
whether the crime was committed INTENTIONALLY, DELIBERATELY
or NEGLIGENTLY
o The lessons that we can get from those two cases is that in every
crime, that is committed, provided there is private offended party, then
there are always two sources of obligation (delict and quasi-delict) for
the same act or omission.
o REMEMBER: Subject to the prohibition in Art 2177 – that the plaintiff
must not recover DAMAGES Twice for the same act or omission of the
defendant both from delict or quasi-delict.

WE ARE READY TO DISCUSS ARTICLE 29.13

WHAT IS THE EFFECT OF THE ACQUITTAL OF THE ACCUSED?
o It depends on the tenor of the acquittal.

IN THIS JURISDICTION THERE ARE TWO (2) KINDS OF ACQUITTAL:

1) Acquittal on the grounds that the accused is not the author of the act
or omission complained of.
o So if the acquittal is because the accused is not the author of the act or
omission complained of, take note that that acquittal will also result in the
EXTINCTION of the civil liability arising from delict.
o That is precisely provided for in Rule 111 of the 2000 Rules of Criminal
Procedure.
o The act or omission complained of – does not exist, then the acquittal of the
accused will also result in Extinction of the Civil Liability arising from the crime
or delict.
o But as clarified by the SC in a number of cases – Rule 111, covers only the
EXTINCTION of the civil liability arising from the crime itself.
o What was extinguish together with the acquittal of the accused is only the
liability of the accused arising from a crime- It will only result in the extinction
of the civil liability arising from the crime.
o So the civil liability ARISING from Quasi-Delict is NOT Extinguish.
o Because quasi-delict is an institution distinct and separate from a delict.

So if you will be ask? WHAT IF THE ACCUSED WAS ALREADY ACQUITTED?

AND THE TENOR OF THE ACQUITTAL OF THE ACCUSED WAS THAT THE

13
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 answers 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.
Page | 20
ACCUSED WAS NOT THE AUTHOR OF THE ACT OR OMISSION COMPLAINED
OF? CAN THERE BE A RECOVERY OF CIVIL LIABILITY?
o This time based on QUASI-DELICT? – The SC held that question in the
AFFIRMATIVE
o YES. Said the SC
o WHY? Because quasi-delict is an institution distinct and separate from delict.
o So the acquittal of the accused whatever maybe, is ___ Is totally irrelevant in
quasi-delict. That is the state of our present jurisprudence.
o Note: that if there are crimes committed so long as there are private offended
party there are always two sources of obligation based on the same act or
omission. ((1) delict and (2) quasi-delict)
o What is extinguish by the acquittal of the accused based on the ground that
he was not the author of the act or omission complained of – is only the CIVIL
LIABILITY arising from a CRIME OR DELICT BUT NOT on CIVIL LIABILITY
arising from QUASI-DELICT.

2) The acquittal was based on REASONABLE DOUBT on the GUILT of

the accused.
o He was acquitted simply because the QUANTUM OF PROOF
required for conviction was not met.
o Anu yung QUANTUM OF PROOF na yun? That his guilt was NOT
PROVEN BEYOND REASONABLE DOUBT.
o ART 29 – is clear that even if the accused was acquitted but if the
acquittal is simply because of REASONABLE DOUBT on his guilt
o Then, there is still be recovery of civil liability arising from the
crime/delict. Art 29 is clear on that.
o Papanu magiging posibli yun eh acquitted na nga sya in the
criminal case – ibig sabihin na hindi sya napatunayang nagkasala
o So may he recover civil liability from the crime, if it was proven that
the accused is the author or responsible for the crime?
o There must be a CAUSAL CONNECTION between the Crime and
the Accused.
o That is possible because of the WEIGHT OF EVIDENCE required
in criminal case and the civil case.
o In order to prove the criminal liability of the accused what is
required is proof beyond reasonable doubt.
o But in order to prove the guilt of the accused in the civil case what is
required is simply a preponderance of evidence.
o So it is still possible in a civil case to prove the guilt of the accused
even if it was not proven in the criminal case. That is the meaning of
ART 29 of the civil code.

QUESTION: If the accused was acquitted on the ground that his

guilt was not proven beyond reasonable doubt in which case he can

Page | 21
 still be held liable on the civil liability arising from the crime. Does
Art 29 require the institution of a separate civil action?
o That question has been answered by the SC in the landmark case
of Roy Padilla vs CA
o SC said there is no need for that. The requirement of a separate
institution of a civil action will only result in the clogging of the court
docket.
o So a separate civil action is no longer required.
o In other words, in the same judgment where the accused was
acquitted the court can already impose civil liability upon the
accused based on the crime if all of the elements that should be
required because of the civil aspect are already with the court.

LET US DISCUSS THE CONCEPT OF PREJUDICIAL QUESTION:

ARTICLE 36:14

WHAT IS A PREJUDICIAL QUESTION?

o A prejudicial question is an issue raise in the civil action which issue is similar
or intimately related to an issue raise in the Criminal Action.
o So when we talk of prejudicial question it presupposes the existence of two
(2) actions. One must be in civil, the other one in criminal.
o So ang tinatawag nating prejudicial is the issue raised in the civil
o So a prejudicial question is an issue raise in a civil case which is similar or
intimately related to an issue raise in the criminal case.
o And correlation nila is that the issue in the civil is indicative whether or not
criminal case may proceed.
o BAKIT? Because that issue in the civil case is determinative of the guilt or
innocence of the accused.

o In order for the issue in the civil case to be considered as a prejudicial

question, two (2) elements must be present:

1) There must be a previously instituted civil action. So a prejudicial

question is an issue raise in a previously instituted civil action which is

14
ART 36 NCC. Prejudicial questions, which must be decided before any criminal prosecution may be instituted
or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall
not be in conflict with the provisions of this Code.
Page | 22
 similar or intimately related to an issue raise in a SUBSEQUENT
CRIMINAL ACTION
 In other words before an issue in the civil is considered as
prejudicial question in a criminal, it is necessary that the civil case
must be initiated, commence AHEAD OF A CRIMINAL ACTION.
 Kung mauuna ang criminal even if the issues were the same,
intimately related and similar, pero nauna and criminal....there is no
prejudicial question.
 Under the present rules dapat mauna ang civil action.

2) And the resolution of the issue raise in the civil case is determinative
of whether or not the criminal action may proceed. Because the issue
in the civil is determinative of the guilt or innocence of the accused.
 So papanu kung mauna ang criminal before the civil but the issue in
the civil is determinative of the guilt or innocence of the accused
 There is no prejudicial question in which case the accused cannot
move for the suspension of the criminal proceeding.
 Ang mangyayari lang nyan is that the accused must note that issue
in the criminal case as his defense. He cannot now move for the
suspension of the criminal proceeding.
 But if there is a prejudicial question because both elements could
be present then the accused can now move for the suspension of
the proceeding in the criminal case
 The existence of prejudicial questions will not warrant the dismissal
of the criminal case. It is not a ground to dismiss the criminal.
 It is only a ground TO REQUEST, TO ASK for the suspension of the
proceeding in the criminal case OR TO AWAIT for the
RESOLUTION OF THE ISSUE IN THE CIVIL, because the issue in
the civil will determine whether or not criminal case may proceed.

o NOTE: There must be a MOTION for the suspension of the proceeding

in a criminal case.
 In other words, the criminal court cannot MOTO PRO PRIO
suspend the proceedings even if the elements of prejudicial
questions are present.
 In the first place it is not possible for the criminal court to know
the existence or status of the civil unless the same will be
brought to the attention of the criminal court.

LET US NOW RELATE THE CONCEPT OF PREJUDICIAL QUESTION TO ART 40

OF THE FC AND THE CRIME OF BIGAMY:

o The concept of prejudicial question ay ikinakabit lng sa bar sa question

of BIGAMY and Art 40 of the FC.
o You are familiar with the crime of BIGAMY.

Page | 23
 o There are two marriages, the 1st and the 2nd.

What if it is the 1st marriage or if it is the 1 st marriage which is alleged to

be VOID? The 1st marriage is alleged to be void.
o And one of the parties in that void marriage contracted the subsequent
marriage without complying the requirements of Art 40 of the FC
o To refresh your mind Art 40 of the FC – requires that even if the prior
marriage is void ab initio the parties thereto cannot validly contract the
subsequent marriage without first securing a judicial declaration of the
nullity of that prior marriage.
o So the 1st marriage is alleged to be void and let us assume that one of
the parties there contracted the subsequent marriage but without first
securing a judicial declaration of the prior marriage.
o But prior to the institution of the criminal case for Bigamy, that party
who contracted that subsequent marriage filed a petition for declaration
of the nullity of the 1st marriage.

QUESTION: Will the petition for declaration of the nullity of the 1 st

marriage be a prejudicial question to the subsequent criminal action for
BIGAMY?

o ANSWER: NO. General rule NO. Because the civil case is not
determinative of the criminal case. Whatever maybe the result of the
civil will not affect the criminal.
o WHY? Because under existing jurisprudence the crime of Bigamy was
already been committed. So if the 1 st marriage is VOID AB INITIO the
law requires that prior to contracting a subsequent marriage, the
parties to the prior marriage must first secure a judicial declaration of
the nullity of the prior marriage prior to contracting the subsequent
marriage.
o So even if the petition for declaration of nullity of the prior marriage was
filed ahead of the criminal action for Bigamy there is no prejudicial
question.
o It is simply because the resolution of the civil action is not
determinative of the criminal case or action that is pending.
o The resolution of the civil will not affect the criminal because it is clear
that the accused had committed the crime of Bigamy even if the 1st
marriage will be declared to be void ab initio. That is the state of our
present jurisprudence. (Mercado vs Tan-GR No. 137110, Aug 1,
2000)

o EXCEPTION: The only exception is that if the ground for the nullity of
the prior marriage is ABSENCE OF MARRIAGE CEREMONY.
o The exception is if the ground for the nullity of the prior marriage is
absence of marriage ceremony
Page | 24
o In the case of Morigo vs Vitug? – the parties simply signed a
marriage contract, but the signing of the marriage contract was done
not in the presence of the solemnizing officer. So it was merely a
private act of signing the marriage contract. Marriage was done without
the presence of solemnizing officer.
o But for one reason or another, that marriage contract was eventually
registered with the local civil registry and it is appearing in the NSO.
o But one of the parties in the signing of that marriage contract
contracted a subsequent marriage without first securing a judicial
declaration of the nullity of the 1st marriage. So there are now two
marriage contract appearing in the NSO.
o And the man was subsequently prosecuted for the crime of Bigamy.
o The SC acquitted him. SC Held that even if the provision of Art 40 was
not complied with, even if prior to contracting the subsequent marriage
the accused did not execute the judicial declaration of the nullity of the
1st marriage, sabi ng court, he is not guilty of the crime of Bigamy.
o Because in that situation according to the SC, there was no need to
comply with the requirement of Art 40.
o WHY? Because, the court said, that there was NO MARRIAGE TO
SPEAK OF IN THE ABSENCE OF A MARRIAGE CEREMONY.
o In the absence of a marriage ceremony there is no appearance of a
marriage.
o And if there is a marriage ceremony, there is an appearance of a
marriage.
o And even if that marriage will later on turned out to be void ab initio,
what is the rule?
o The parties cannot decide for themselves the validity or invalidity of
that marriage. They are required to secure a judicial declaration of the
nullity of the 1st marriage prior to contracting a subsequent marriage.
Otherwise you may be held liable for the crime of Bigamy.
o If there is a marriage ceremony and even if that marriage will turned
out to be void there is a need to comply with the requirement of Art 40
FC. Otherwise, if they will not be complied with or one of them
contracted the subsequent marriage, there will be a commission of the
crime of Bigamy.
o But if there was no appearance of the marriage because of the
absence of a marriage ceremony, the SC held there is no need to
comply with the requirement of Art 40.
o So if a petition for the declaration of the nullity of the 1 st marriage was
filed ahead of the criminal case but the allege ground in the petition is
the ABSENCE OF MARRIAGE CEREMONY, this time the pendency of
the civil action will now constitute as a prejudicial question to the
criminal case.

Page | 25
o Because it will now determine in the civil action the guilt or innocence
of the accused. And if it will be proven that there was no marriage
ceremony in the 1st wedding then the accused will not be liable for
Bigamy.

What if this time, it is the 2nd marriage which is alleged to be void?

o And the petition for declaration of the nullity of the 2 nd marriage was
filed ahead of the criminal action for Bigamy.

Will that civil action constitute as a prejudicial question to the

criminal action for Bigamy?
o ANS: Gen. Rule, YES.
o WHY? In Bigamy it is necessary for the 2 nd marriage would have been
valid had it not been for the existence of the 1 st.
o In Bigamy, it is required that the 2nd marriage would have been valid
had it not been for the existence of the 1 st marriage.
o In other words, if the 2 nd marriage was void for reason other than it is
Bigamous, if the 2nd marriage was void other than the existence of the
1st marriage then there is no liability for Bigamy.
o EXAMPLE: If the 2nd marriage will turned out to be void because of
Absence of Marriage license that is a DEFENSE IN THE CRIME FOR
BIGAMY.
o Pag nagpakasal ka ng tatlong beses pero yung pangalawang kasal mo
turned out to have no marriage license, you will not be liable for
Bigamy under ART 349 of the RPC, although you may be held liable of
ILLEGAL MARRIAGES under ART 350 of the RPC.
o Pero for the charge of Bigamy, you will be acquitted because Bigamy
requires that the 2nd marriage would have been valid had it not been for
the existence of the 1st marriage.
o So if there is a pending petition, if there was a previously instituted civil
action for the declaration of the 2nd marriage had not been void on
grounds other than the existence of the 1 st marriage, that will constitute
as a prejudicial question to the criminal action for Bigamy.
o EXCEPTION: Except if the alleged ground for the nullity of the 2 nd
marriage is ART 36 of the Family Code or Psychological Incapacity,
hence even if the petition for declaration of the nullity was filed ahead
of the criminal action, then that do not constitute as a prejudicial
question to the criminal action for Bigamy.
o WHY? In the case of Tenimbro? vs CA; Pinembro? vs Civil, the SC
explained that the ground provided for in ART 36 with this
psychological incapacity is different from the other grounds.
o WHY? Because there is a recognition written in the law itself that that
all defense of that void marriage is totally wipe out, and one of defense
according to the court that is not wipe out by the declaration of the

Page | 26
 nullity of the marriage is the liability of the accused for the commission
of bigamy.
o So necessarily sabi ng court sa Art 36 that if that is the ground, the
pronouncement of the court will not retroact to the date of the
celebration of the marriage, so the accused will still be liable for
Bigamy.
o So titingnan natin even if the petition for declaration of the nullity of the
2nd marriage was filed ahead of the criminal action for bigamy, but if the
ground in that petition is psychological incapacity there is no prejudicial
question.
o Because the accused is already guilty of committing the crime of
bigamy even if the 2nd marriage will declared to be void on the ground
of psychological incapacity.

Question: If it was the Filipino spouse who get the absolute divorce in a foreign
country and in the place where it was obtained it is considered as valid. What then is
the effect of the decree of absolute divorce in so far as the foreigner would be
concerned?

ANS: If it will be pursuant to the law of the foreigner, then he will be released of that
divorce that was obtained by the citizen of the Philippines. So the effect is that the
foreigner will be release. The foreigner will no longer be married to the citizen of the
Philippines following the nationality principle.
o But with respect to the citizen of the Phils, since our laws do not recognize the
validity of the divorce decree obtained by the citizen of the Phils we will be
having a situation where the citizen of the Phils were still married to a
foreigner and the foreigner is no longer married to the Filipino citizen. “Dura
Lex Sid Lex” – The law may be harsh but mine is harder.
o Wala tayong magagawa, our law prohibits the citizen of the Phils from
obtaining a decree of absolute divorce if it was the citizen of the Phils who
actively sought for that divorce that could not be recognize as valid in so far
as the Filipino citizen is concerned.
o As to the effect of that divorce in relation to the foreigner – wala tayong
pakialam dun. That will be determined by the law of the foreigner.

ARTICLE 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 CONDITIONED SPECIFIED IN THE FF: ARTICLE

*
NOTE: The civil personality of the child shall commence from the time of his
conception, for purposes favorable to him, subject to the requirement of ART 41 of
CC. (Superseded by ART 5, P.D. No. 603)

Page | 27
The true beginning of the Civil Code starts with Art 40.
o If you are reading the story of the civil code you will find that the
provisions of Art 40 are just preliminary.
o It is in ART 40 that you will see the beginning of the person.
o And that person will soon grow up
o You should not be scared of Civil law. It is the story of our rights.
o Consider that as your old story. You were born, grown up, and you will
marry. So there is a provision for the nullity of marriages, annulment
and legal separation.
o In fact nobody will leave alone; he needs properties based on Book 2
and 3. And they will also have to interact with other people and that is
the reason why there is an obligations and contract and special
contract.
o The ends of the civil code talks of the preference and concurrence of
credit.

THE CONCEPT OF JURIDICAL CAPACITY AND CAPACITY TO ACT:

1) Juridical Capacity – is defined as the fitness to be the subject to legal
relation.
2) Capacity to Act – is the power to do act with legal effects.
o Simpli lang naman ang concept ng juridical capacity – it refers to the
fitness to be the subject of legal relations.

And legal relation falls only into 2 categories:

1) It is either be ACQUISITION OF RIGHTS;

2) or ACQUISITION OF OBLIGATIONS.

o It only boils down to that.

o So the concept of juridical capacity is simply the aptitude to be the
recipient of rights and obligations.
o So you will notice, the concept of juridical capacity is similar with that of
CIVIL PERSONALITY IN THE CC.
o Because under our laws – only persons are susceptible of legal
relations.
o Only persons can acquire rights and obligations

But there are two (2) kinds of persons in our laws:

1) Natural; and
2) Artificial persons

Let us concerned ourselves with NATURAL PERSONS

o Under our laws if you are a natural person you are susceptible of
acquiring rights and obligations
o So therefore JURIDICAL CAPACITY is INHERENT in every Natural
Person
o The only requirement is that you must be a person.
o Then you will be susceptible to received rights and obligations

Page | 28
In relation to the natural person, when can you be considered a natural
person?
o That question was answered in Art 40 and 41 of CC.

ART 40 – Birth determines personality.

o In order for the person to be considered a person for ALL PURPOSES,
it is necessary that he must be born under the conditions outline in ART
41.

WHAT ARE THOSE CONDITIONS?

o ANS: It depends on the INTRA-UTERINE life of the FETUS.
o If the fetus had an intra-uterine life of AT LEAST 7 MONTHS – the law
simply requires that he must be BORN ALIVE at the time of
COMPLETE DELIVERY.
 So even if he was alive only for a matter of few hours after
complete delivery he already becomes a person.

WHAT DO WE MEAN BY COMPLETE DELIVERY?

o What is that POINT?
o The point of complete delivery is that after the cutting of the umbilical
cord.
o The thing is, the infant must be able to survive on his own.
o If he was able to survive on his own and he was ALIVE at that time
even for a matter of minutes, that infant became a person if it had an
intra-uterine life of at least 7 months.

o NOTE: But if the fetus had an intra-uterine life of LESS THAN 7

MONTHS, the law requires that the infant, AFTER COMPLETE
DELIVERY, must be able to survive for AT LEAST 24 Hours in order for
that infant to become a person.
o So for ALL PURPOSES – our law requires that the fetus must be
BORN.

What about those that was still inside the mother’s womb?
o Hindi pa nilalabas – kc wala pa delivery.
o ARE THEY CONSIDERED PERSON?
o DO THEY HAVE JURIDICAL CAPACITY?
o DOES THE LAW RECOGNIZE THEM AS HAVING A PERSONALITY?

ANSWER: YES. But the personality of the fetus inside the mothers
womb is a LIMITED ONE.
o It is a limited personality.

WHY IT IS LIMITED?
o Because that personality is at least recognize to exist only for purposes
that are FAVORABLE to them.
o In other words, the fetus CAN ACQUIRE RIGHTS even while INSIDE
the MOTHER’S WOMB.

Page | 29
 o But the fetus CANNOT ACQUIRE OBLIGATIONS.
o So again the personality of the fetus is a limited one. It is recognize to
exist only for purposes that are favorable to it.
o And at the same time, that personality of the fetus is also
PROVISIONAL.

WHY PROVISIONAL? WHY TEMPORARY?

o ANS: Because our law requires that in order for that provisional
personality to become a permanent one, the conditions outlined in ART
41 must be subsequently complied with.

And WHAT ARE THOSE?

o Again, if the fetus had an intra-uterine life of at least 7 months, that
fetus must later on be born ALIVE even for a few hours
o If that condition is satisfied, then that provisional personality of the fetus
becomes permanent one.
o But if it was not satisfied, if at the time of birth after the cutting of the
umbilical cord (patay na talaga yung fetus) – then that fetus will not be
considered as person.
o The provisional personality will be lost.
o But if the fetus had an intra-uterine life of less than 7 months – the
law requires that the fetus must later on be born and the fetus must be
alive for at least 24 hours after the cutting of the umbilical cord.
o Otherwise, the provisional personality of the fetus will likewise be lost.

WHAT ARE THE RIGHTS THAT THE FETUS MIGHT ACQUIRE EVEN
WHILE THE FETUS IS STILL INSIDE THE MOTHERS WOMB?

1) The fetus has the right to be supported by the progenator.

- The fetus already has the right, the personality for that purpose, to
received support from the progenator.

2) The fetus can be a DONEE in a SIMPLE DONATION. – no strings

attach.
o If the donation is PURE or SIMPLE – the donee or the fetus
can also the donee – because the fetus has a limited
personality.
o It has a personality for purposes favorable to it.
o And of course that donation is favorable to the fetus.

3) The fetus that is inside the mother’s womb is already

considered as a COMPULSORY HEIR who may be
PRETERITED.
o So if that fetus even while the fetus was inside the mother’s
womb – if the fetus was accidentally OMITTED in the WILL
of the parents then there will be preterition.

NOTE: With respect to natural person, his personality may be extinguished

through death.
Page | 30
ARTICLE 43:15

LET US DISCUSSED ARTICLE 43:

o There is Rule of SURVIVORSHIP under the Civil Code.

ARTICLE 43 – Contemplates of a situation where the person under consideration is

called upon to SUCCEED each other.
o If the question of survivorship involve two persons who are called upon to
succeed each other and the issue is with respect to SUCCESSION, then
ART 43 applies.

Two requisites must be satisfied before you can apply the rule on
survivorship provided for in ART 43 NCC:

1) The person under consideration must be called upon to succeed

each other.
o They are reciprocally heirs of each other.
o Ex. Parents and child.

2) It is not sufficient that they are only called upon to succeed each
other but Art 43 requires that the issue must be one of succession.
o If the issue is not one of succession then Art 43 is not applicable.

NOTE: If those two requisites will not be present it is not ART 43 of NCC on
survivorship that will be applied but the presumptions under the rules of court
in RULE 131 will be applied.

o Under the RoR, if there is a question of survivorship involving two

persons who may either be or they are not called upon to
succeed each other.
o Or even if they are called upon to succeed each other, the issue
is not one of succession then it is the provisions of the Rules of
Court that we should apply.

LET US DISCUSS FURTHER ART 43

o If 43 is applicable because both requisites are satisfied; and what are those
requisites?
1) The person under consideration are called upon to succeed each other;
2) The issue is succession

WHAT ARE THE RULES?

1. In the absence of proof as to who die first – the one who alleges the death of
one prior to the other has the burden of proof
15
ART 43. If there is 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.
Page | 31
 o If he cannot prove and in the absence of any proof the law provides that both
persons died of the same time and there shall be NO TRANSMISSION of
rights of one to the other.
o That is the rule provided for in ART 43.

o Again, the 1st rule is that the one who alleges the death of one prior to the other
has the burden of proving it.
o If he cannot prove it, in the absence of proof as to who died first then both are
deemed to have died at the same time and more importantly, there is no
transmission of rights from one to the other.
o If 43 is not applicable because, 1) the persons under considerations are not
called upon to succeed each other or; 2) even if they are called upon to
succeed each but the issue is not one of succession, then it is the rules of
court that we should apply.

PRESUMPTIONS OF SURVIVORSHIP IN THE RULES OF COURT (RULE

131):

o And under the presumptions that are provided for in the rules of court there
must be two ages that we must consider, 15 and 60 years.
1) If both parties are below 15, the older is deemed to be the survivor;
2) If both are over 60, it is the younger that is deemed to be the survivor;
3) If one of them is under 15, and the other is over 60, it is the younger who is
deemed to be the survivor;
4) If one of them is either under 15 or over 60 and the other is between those
ages, it is the latter who is deemed to be the survivor;
5) If both of them are in between the ages of over 15, under 15 and 60, and
the sex be different, then it is the male who is deemed to be the survivor.

BAR Q: Dr. Lopez seventy years old, he died together with his son in a fire that
gutted their house. Lopez merong anak...si Roberto. Roberto is married to Maria and
they have 2 children A&B. The two died in a fire that gutted their house, while Maria
with A&B survives. They were not in the house during the fire. Lopez is rich, he has
20 M property and also a life insurance policy. The beneficiary of life insurance is his
3 siblings including Roberto.

A. Maria is interested in recovery. Can Maria and A&B recover? Do they

have shares in the inheritance left by Lopez?

B. And a share in the insurance policy left by Lopez maybe Roberto as

one of the beneficiaries?

ANS: 1) Let us consider the 1 st part. May share ba yung tatlo in the
inheritance that was left by Lopez?

o With respect to the wife, the wife is not an heir of the parent-in-law. She is not
a legal heir. An in-law is not a legal heir. So it is impossible for Maria to inherit
if Roberto inherited from Lopez.
o And that would an appropriate question on survivorship.
Page | 32
o In answering that question, who died first?
 Take note that the question is one of succession.
o So Art 43 applies with respect to the 1 st part of the question with respect to the
inheritance that was left by Dr. Lopez.
o So with respect to the inheritance that was left by Dr. Lopez, Maria has the
burden of proving who died first, ...that Lopez had died first prior to the son.
o In the absence of proof as to who died first, the law says that they have died at
the same time and there shall be no transmission of rights from one to the
other.
o In which case, Roberto did not inherit from Lopez.
o Since nothing was inherited by Roberto from Lopez, then nothing will also be
inherited by Maria. Because Maria is not an heir of Lopez.
o What about the siblings of Maria? A& B are heirs of Lopez.
o Lopez was a widower in that case.

o So kung tatanungin kayo, do they inherit by RIGHT OF REPRESENTATION or

IN THEIR OWN RIGHT?
o The right of representation requires that Roberto must have predeceased
Lopez.
o But we cannot see that Roberto had predeceased Lopez because applying
ART 43, both died at the same time.
o So there will be no predeceased.
o So A& B would not have inherit by right of representation because they will be
inheriting in their own right because they are legal heirs of the grandfather.
o So that settles the 1st part of the questions.

What about the proceeds of the life insurance policy?

o Roberto is one of the named beneficiaries.

DO WE STILL APPLY ART 43 IN ANSWERING THAT PART OF THE

QUESTION?

Ans: NO. Why not?

o Although Lopez and Roberto were called upon to succeed each other,
this time the question is no longer of succession.
o So what we will be applying is the provisions of the Rules of Court.
o Considering that Lopez is 70 years old and Roberto is between the
ages of 15 and 60, so it seems that Roberto had survived.
o In the insurance policy, it is not necessary that the beneficiary must
have survived the insured.
o And since Roberto is deemed to be the survivor, then Roberto became
entitled to a portion of that insurance proceeds.
o Roberto is one of the beneficiaries.
o And the proceeds of insurance policy pertaining to Roberto will now be
inherited by Roberto’s heirs.
o So Maria will now have a share in that insurance proceeds together
with the two children, because they are all considered a legal heir of
Roberto.
Page | 33
LET US GO TO THE FAMILY CODE:
Note: Always remember the effectivity date of the NCC which is August 3, 1988.

Bakit kailangan tandaan yan under the law?

o Because in determining the validity of marriages, you are required to apply the
law which was then in force at the time of the celebration of the marriage.
o So if the marriage was celebrated during the effectivity of the civil code, the
validity of that marriage will be determined by the provisions of the Civil Code.

o In our jurisdiction, marriage is not simply a contract.

o But most importantly, marriage is also a social institution.
o Marriage is in fact described as inviolable social institution.
o And for that reason, the state is very much interested in that contract of
marriage.
o We will always see the hands of the state. The state is always participating in
every marriage.
o Unang una pa lng prior to the celebration of the marriage, you can already see
the participation of the state were you are required to secure a marriage
license.
o And all throughout, ang sabi ng batas natin, the nature and consequences of
marriage are governed by law.
o And not subject to the agreement/stipulation of the parties as a general rule.

o WHY? Because the state has so much interest, there is an interest of the state
which is to make it strong?
o Anu yun? The state is interested in keeping the marriage strong because it is
only through a strong marriage which will result in stronger family and the state
is very much interested in having a stronger family because the family is the
basic unit of our society.
o If the family is weak that may eventually affect the fabric of the nation.
o That is the very reason why the state is very much interested in the contract of
marriage.

NOTE: In marriage the NATURE, CONSEQUENCES and INCIDENTS of

marriage are governed by law
o The parties are not allowed to enter in any kind of agreement in relation to the
contract of marriage.

EXCEPT: Only with respect to one area.

o And that is in the area of PROPERTY RELATION.
o That is the only aspect of marriage where the spouses are allowed to have
some sort of an agreement which we referred to as the MARRIAGE
SETTLEMENT.
o But even with respect to their freedom to enter into an agreement, with respect
to that property relation, take note that they are not completely free because
that agreement must be within the limits provided for by the Family Code.
Page | 34
 o There was a case...a case where one employee of the court was separated in
fact.
o They have written agreement, which state that in case of their separation they
are free to have a relationship later on.
o So that court personnel cohabited with another...kaso may nagreklamo sa
kanya for Gross Immorality.
o So he was subjected to a disciplinary action on the ground of gross immorality
o His defense was the agreement that he and his wife signed. That under it, they
are free to have a relationship with other person.
o That agreement cannot be given legal effect
o Because that agreement is contrary to the express provisions of the law.
o With respect to the effects of marriage, the nature, consequences and
incidents of marriage are governed by law and cannot be made the subject of
an agreement between the spouses.

DEFINITION OF MARRIAGE:
o ART 1 of FC defined - Marriage is a special contract of permanent union
between a man and a woman
o In ART 26 of the FC – 1 st paragraph basically talk that the validity of the
marriage is determined based on the law of the place where the marriage was
celebrated
o If the marriage was celebrated abroad – and you were confronted with a
situation that it was a same sex marriage.
o And the same sex marriage took place in a foreign country wherein same sex
marriage is recognized as valid.

May the marriage may likewise be recognized as valid here in the

Philippines?
o Titingnan natin ang exception sa Art 26 paragraph 1 mukhang wala rin dun
o May we now go under the general rule? – that it is likewise recognized as valid
in the Philippine? NO. Hindi rin naman.
o WHY NOT? Because under our law, it is not even considered a marriage.
o You may answer that question by simply resorting to Article 1 of the FC.
o Our FC defines marriage as a special contract of permanent union only
between a MAN and a WOMAN
o So it is not a marriage – if it will involve both of the same sex.

Let us consider the REQUISITES for a valid marriage.

WHAT ARE THE 5 REQUISITES FOR A VALID MARRIAGE?
These are classified into two (2):
Two (2) of which are classified as ESSENTIAL and Three (3) of which
are classified as FORMAL.

THE FIRST TWO ESSENTIAL REQUISITES:

1) Legal capacity
2) Consent

Page | 35
 WHAT ARE THE THREE FORMAL REQUISITES?
1) Valid marriage license
2) Authority of the solemnizing officer - ****** (this is where lies the exception)
3) Marriage ceremony

LET US ESTABLISH THE BASIC RULE:

WHAT IS THE EFFECT OF THE ABSENCE***** OF ANY OF THOSE 5

REQUISITES?
It will render the marriage VOID AB INITIO.
o The absence of ANY of the formal or essential requisites will render the
marriage void ab initio.

EXCEPTION: There is only 1 exception:

o In the case of the absence or lack of authority on the part of the
solemnizing officer
o Even if the solemnizing officer have no authority to solemnize the
marriage – BUT if EITHER OR BOTH of the contracting parties believe
in Good Faith that the solemnizing officer had the legal authority to do
so, then the marriage will become perfectly VALID.

WHAT IS THE EFFECT IF THERE IS A DEFECT***** IN THE ESSENTIAL

REQUISITES?
o Defect and Irregularity pareho lang naman yan.
o To be more accurate - We will use the term DEFECT – if we are referring to the
ESSENTIAL Requisites.
o And we will be using the term IRREGULARITY – in relation to FORMAL
Requisites.

What is the effect of the defect in the essential requisites?

o It will render the marriage VOIDABLE.
o Note: that there are only two essential requisites (legal capacity and consent) –
it is only the CONSENT which can be the subject of becoming defective.
o But not legal capacity
o Because with respect to legal capacity – the only question is – Is it present or
absent. Are they capacitated or not?
o It is not possible for the legal capacity to become defective.
o So when the rule state of the defect in the essential – it refers to the defect on
the giving of the consent.
o DEFECT – referred to here is the DEFECT on the GIVING OF THE
CONSENT.

o If consent was given, but it was defective – the marriage is not void ab initio, it
is merely VOIDABLE.

Page | 36
 o You will note in Art 45 – where the annullable or voidable marriages are
enumerated – you will note simply that is refers the giving of the consent

WHAT IS THE EFFECT OF THE IRREGULARITY IN ANY OF THE FORMAL

REQUSITE?
o No defect – it will not affect the validity of the marriage, it remains perfectly
valid.
o EXCEPT: That the one responsible for the irregularity maybe held either:
a) Administratively;
b) Civilly; and
c) Even Criminally liable

NOW LET US DISCUSS, STARTING WITH: LEGAL CAPACITY:

Legal Capacity – is determined by:

1. the NATIONAL LAW of the person concerned (ART 26 para 1);

2. Or by the PERSONAL Law of the person concerned.

o So if we are dealing with the legal capacity of a foreigner to contract marriage

– that will have to be governed by the national law of the foreigner.

o If the party is a citizen of the Philippines – in order for a citizen of the

Philippines to be considered capacitated, the rule requires that:

THREE (3) COMPONENTS MUST BE SATISFIED:

Anu yung 3 components ng legal capacity?

1) AGE component – the parties must be both at least 18 years of age. In

order to be capacitated both must be at least 18 yo.
o If one is below 18, they are not capacitated
o The marriage becomes void ab initio regardless of the place of the
celebration of the marriage – it is one of the exception to the rule
on lex loci celebrationis in Art 26 of the FC
o And even if there is the consent of the parent – the marriage will
remain void ab initio because the parties is below 18.

2) SEX of the parties – the parties are required to come from the opposite
sexes.
o There must be a Man and a Woman.
o If they are not coming from the opposite sexes,... if they are from
the same sex – they are not considered legally capacitated.

3) Absence of legal capacity – presence of legal impediment as provided

for under Art 37 and 38 FC
o If there is a legal impediment – they are not capacitated, as simple
as that.

Page | 37
 o Again with respect to legal capacity – it can only be either present
or absent
o If absent – the marriage is void ab initio
o It is not possible for a legal capacity to become defective.

In relation to the sex component – take note of the 2007 & 2008 cases of:
1) Silverio vs Republic
2) Republic vs Jennifer Kagandahan

QUESTION: What if one of them is male, but underwent a sex reassignment

surgery, and after the surgery, after the sex transplant – can he now assert or
considered to come from the opposite sex?
o It was answered in the landmark case of Silverio vs Republic (2007)
o According to SC – we do not have laws recognizing the legal effects of a sex
reassignment surgery
o But our law – in determining the sex of an infant, simply provides that the said
sex of that infant is determined simply by VISUAL Examination or OCULAR
Inspection of the genital of the infant at the time of birth.

Who determine the sex of the infant?

o The medical attendant – either the physician or the midwife.
o So under our present laws – the sex of the infant is simply determined only by
visual examination or ocular inspection at the time of the birth of the infant
made by the birth attendant.
o And such determination according to SC – cannot be change UNLESS there is
PALPABLE ERROR.
o It cannot be change even by a sex reassignment surgery.
o We do not have any law recognizing the legal effect of a sex reassignment
surgery.

SILVERIO vs REPUBLIC:
o So in that case of Silverio vs Republic – that male who underwent sex
reassignment surgery applied for a correction in the entry in the sex appearing
in his birth certificate from a male to female.
o And the consequence of that request is he also requesting for the change in
his 1st name from that of male sounding name to a female sounding name.
o Both requests were denied by the SC.
o On the ground that the sex of the child is determined at birth by simply VISUAL
EXAMINATION and that determination becomes IMMUTABLE.
o We do not have any law recognizing the legal effects of sex reassignment.
o So the request for the change of name was likewise denied.
o Because in order for the request to be made - There must be a valid reason –
and sex reassignment surgery is not a valid reason for the change of once first
or given name.

IN THE CASE OF REPUBLIC VS JENNIFER KAGANDAHAN (2008):

o In this case, Jennifer is suffering from a certain kind of abnormality.
o She is suffering from congenital adrenal hyperplasia

Page | 38
o In that kind of abnormality, the body of Jennifer is producing a female
chromosome, and at the same time the body is also producing a substantial
amount of male hormones.
o So there is doubt with respect to the genital of Jennifer.
o So the body of Jennifer is neither consistently nor predominantly female and
neither consistently nor predominantly male.
o But as Jennifer is growing up, she chose to live the life of a boy.
o Kahit na Jennifer sya, kahit na nakalagay sa birth certificate na Jennifer was
classified as female, but when she grew up, Jennifer chose to live the life of a
boy.
o And eventually upon reaching the age of majority Jennifer wanted to formalize
her choice by petitioning the court for correction of a name and entry in the
birth certificate changing the same from female to male.
o And as a consequence, Jennifer likewise requested for a change of first name
from a female sounding Jennifer to a male one.
o Both requests were granted by the court.

SC HELD: That abnormality was by reason of nature.

o There was no intervention either by man or by science.
o So in that situation where a person were simply allow nature to take its course
but considering that there was doubt on the genital and the person eventually
chose to live a life of a male, the court declared that we should have to respect
the choice of the individual.
o And it was nature that was responsible that takes its course and in that
situation we should have to respect the choice of the individual.
o If he chooses to live the life of a man so be it
o So the court allows the petition praying for the change of entry and name in the
birth certificate of Jennifer Kagandahan from female to male.

LET US CONSIDER, VALID MARRIAGE LICENSE:

o Take note: that the term valid – is use simply in contra-distinction with the term
SPURIOUS.
o So if it was spurious, then there will be no valid license.
o But if the marriage license is TRUE – even if there was irregularity in its
issuance, that may not affect the validity of the marriage license.
o So if the license would have come from the local civil registrar, then that was
TRUE.
o If that license does not come from a civil registrar – then it is not TRUE.
o It is therefore – SPURIOUS.
o In the marriage contract – there is a provision there of a marriage license,
nandun yung number, date of issuance, nandun yung place of issuance.
o The term VALID – is use simply to contra-distinguish it from the term Spurious.
o But if that license was issued – by the civil registrar, nanggaling talaga sa civil
registrar, at sa kahit anung paraan nyo nakuha yun, then that license is true,
that license is valid.
o It was true and valid – even if there was irregularity attending its issuance –
that would not affect the validity of the marriage.
Page | 39
o EXCEPT: That the one that was responsible for the irregularity – will be
subjected either in administrative, civil or criminal liability.

Let us discuss some rules which are akin in the issuance of a marriage
license:
1) Who issue? – it is the LOCAL CIVIL REGISTRAR that issued the marriage
license.
o The rule requires that the parties must apply for a marriage license
in the local civil registrar where either of them actually resides.
o Ex. Isa taga Mandaluyong, isa taga Manila – they can get their
license either in Mandaluyong or in Manila.

2) What if the license was issued somewhere else?

o Will that affect the validity of the marriage?
o NO. That is a mere irregularity in the issuance of a marriage license
which is a formal requisites which will not therefore affect the validity
of the marriage
o Afterall, a marriage license which was issued in one locality can be
used anywhere in the Philippines.

3) What about effectivity? What is the effectivity date of the marriage

license?
o It is only effective – for a period of 120 days, from its issuance.
o Anyway, the date of effectivity – is required to be stated on the face
of a marriage license.

4) What will happen after the lapse of the 120 days period?
o The license is automatically cancelled.
o Automatic cancellation.
o So kung tatanungin kayo? May the local civil registrar extend the life
of a marriage license?
o NO. wala syang authority dun. Because upon expiration of the 120
days period – the license is automatically cancelled.
o And the life of that license cannot be extended.

5) What are the requirements that should be submitted together with the
ML?

a) PARENTAL CONSENT – for applicants at least 18yo but not over 21yo;
b) PARENTAL ADVICE – for applicants at least 21yo but below 25yo.

o There are requirements – that should be submitted in the

application of the marriage license.

PARENTAL CONSENT REQUIREMENT:

o Ex. If one of the parties is at least 18yo but not over 21yo – the
corresponding PARENTAL CONSENT – is required to be submitted.

Page | 40
 If there is no written parental consent – can the local civil registrar
refuse to issue the license?
o NO. That is only ministerial duty on the part of the local civil registrar
to issue the license.
o If no written parental consent was submitted – the power of the
LCR is merely to SUSPEND the issuance of the license for a period
of THREE (3) MONTHS – from the lapse or completion of the period
for PUBLICATION.

What is the effect if the license was issued during the three months
suspension period?
o That is a mere irregularity which will not affect the validity of the
marriage
o Afterall, the license is true

If no parental consent was submitted to the LCR – and a license

was eventually issued what is its effect upon the marriage?
o If later on – the parents consented to the wedding (may mga
picture pa sa kasal) – it is evidence that there was a parental
consent.
o So that will only be an irregularity in the issuance of the license -
which will not affect the validity of the marriage.
o But if the very reason why the WRITTEN PARENTAL CONSENT
was submitted to the LCR was because of DURESS – then this
time the marriage will become VOIDABLE pursuant to ART 45
para 4. That is a case of one of parental consent.

PARENTAL ADVICE REQUIREMENT:

When is Parental advice required to be submitted?

o If one of the party – is at least 21yo but below 25yo.
o If it is at least 21 but below 21 – it is parental consent that must be
required.
o But if the party is below 25yo but at least 21yo, it is parental advice
that is required to be submitted.

What if there was no parental advice that was submitted to the

LCR? What is the duty of the LCR?
o The LCR cannot refuse to issue the license – but the authority of the
LCR is simply to suspend the issuance of the ML for the period of
THREE (3) months – after the COMPLETION of the period of
Publication.

What is the effect if the ML was issued within the suspension

period?
o Again, that will not affect the validity of the marriage because that is
a mere irregularity in the issuance of a marriage license which is a
formal requisite.

Page | 41
 c) Additional Requirement: CERTIFICATION OF A MARRIAGE
COUNSELLING:

o When is the certificate of marriage counselling required?

o If ANY of the Party is – BELOW 25 yo.
o So kung above na: wala nang marriage counselling na kailangan.

What is the effect if no certificate of marriage counselling is ever

submitted?
o That will only entitle the LCR to suspend the issuance of the license
for a period of Three (3) Months.
What is the effect if a license will be issued during the 3 months
suspension period?
o It will not affect the validity of the marriage because it is a mere
irregularity in it formal requisites.

d) Submission of the requirement – of LEGAL CAPACITY of the

contracting party (for Foreigner):

When is it necessary?
o It is necessary if one of the party or both of them were both
FOREIGNERS.
o We required the submission of legal capacity because we do not
know whether or not they are CAPACITATED under their laws.
o That the legal capacity of the foreigner to contract marriage is
determined by his own national law.
o Because our law cannot take judicial cognizance of a foreign law.
o So that certificate of legal capacity is issued – by the foreigner’s
embassy.

What is the effect of the absence of that certificate of legal capacity

by the foreigner?

What if the license was issued even if no legal capacity was ever
submitted?

o ANSWER: It depends.
o If the foreigner is INDEED CAPACITATED, except that no certificate
of legal capacity was submitted to the LCR, that is simply a case of
irregularity in the issuance of a marriage license which will not affect
the validity of the marriage.
o But if the foreigner under his law was not capacitated to contract
marriage and that is the very reason why no certificate of legal
capacity was submitted to the LCR, this time the issuance of the
marriage is VOID AB INITIO.
o WHY? Because of the absence of legal capacity.

THERE ARE SOME MARRIAGES THAT ARE EXEMPT FROM THE MARRIAGE
LICENSE REQUIREMENTS. LET US DISCUSS THESE:
Page | 42
FOUR (4) EXEMPTIONS ON THE MARRIAGE LICENSE
REQUIREMENT:

1. MARRIAGES IN ARTICULO MORTIS (ART 27 FC):

o Or of the marriage “AT THE POINT OF DEATH”
o And requirement dapat ang isa ay mamatay na.
o May mga tanung na, what if may taning na ang buhay?
o Is that marriage, exempt from the marriage requirements?
o NO. Dapat naghihingalo. Meaning at the point of death.
o It is required that one of the parties is at the point of death.
o So kahit my taning kung hindi pa naman naghihingalo, that is not
exempt from the marriage requirement.

o NOTE: If the marriage is in articulo mortis – in lieu of the marriage

license, the solemnizing officer is required to execute a SWORN
STATEMENT (ART 29) – which contains that the marriage was
celebrated in articulo mortis and the solemnizer exerted efforts to
determine the qualifications of the parties and the absence of legal
impediments.

o NOTE: Even if the ailing parties subsequently surivives, the

marriage remains valid nonetheless.

WHAT ARE THOSE ARTICULO MORTIS MARRIAGES?:

a) Between passenger or crew members (by plane or by vessel/ship)

(ART 31) – to be solemnized by the ship captain or airplane pilot, not only
while ship is at sea or the plane is in flight, but also during stopovers at
port of call.
o IMPORTANT: It must be necessary that the marriage must be in
Articulo Mortis.
o The authority of the solemnizer must be confined only in Articulo
Mortis cases.

b) Between persons within the ZONE of Military Operations whether

members of the Armed Force or civilian (ART 32).
o Does it include the PNP?
o My answer: It depends. The plain language of the law only speaks
of the members of the armed forces. But the liberal construction
could be applied here specifically if the nature of the operation by
the PNP (specially SAF and other Maneuver Forces) is a military
one or in tandem with the operation conducted by the military (to be
asked of the LAW expert)*****
o Military commander of the unit – who is a commissioned officer –
may be authorized to solemnize the marriage.
o And the Chaplain assigned to the unit is absent, in order that said
commander may be authorize to solemnize the marriage.
Page | 43
 o IMPORTANT: It must be necessary that the marriage must be in
Articulo Mortis.
o And the marriage must be CELEBRATED – within the ZONE of
military operation.

What is the effect if there was NO SWORN STATEMENT executed by

the solemnizer? Will that affect the validity of the marriage?
o NO. It is a mere irregularity in a formal requisite which will not affect
the validity of the marriage.

2. When the parties are RESIDING in a REMOTE PLACE where there is

NO MEANS OF TRANSPORTATION going to the Office of the LCR
(ART 28).
o Kailangan there is no means of transportation going to the office of
the LCR.
o Again, in lieu of the license – the solemnizer is required to execute
a SWORN STATEMENT stating that the parties in that marriage
were residing in a very remote place where there is no means of
transportation going to the office of the LCR.
o And the solemnizer – exerted efforts to determine the qualifications
of the parties and the absence of legal impediments.
o Again, the absence of that sworn statement will not affect the
validity of the marriage.

3. Marriages among MUSLIMS or Members of the ETHNIC CULTURAL

COMMUNITIES (ART 33) :
o It is necessary that BOTH of the parties are either muslims
o BOTH PARTIES must be members of the ethnic cultural
communities.

If it is a case of a MIXED marriage:

o That is not EXEMPT from the marriage license requirement.

4. Lastly: ART 34: Legal __ of marital cohabitation

o Art 34 requires that the parties to be exempt from the marriage
license requirement – they must be COHABITING as Husband and
Wife for at least 5 years.
o The period of cohabitation – is 5 years
o Papanu ikacount? We will count backwards from the date of the
celebration of the marriage.
o And it must be necessary that that period must be a CONTINUOUS
one.
o It must be UNBROKEN.
o So if for 3 years nagsama sila, tapos naghiwalay for 2 years, tapos
nagkaroon ng reconciliation nagsama ulit sila ng apat (4) na taon -

o So after the period of cohabitation of 4 years they decided to

contract marriage, are they exempt from the marriage
requirement?
Page | 44
 o NO. It must be a Continuous one, unbroken, uninterrupted.
o An AFFIDAVIT OF COHABITATION is required to be submitted.

Is it necessary that the cohabitation must be an EXCLUSIVE one?

Is it necessary that within the 5 years cohabitation they must not be
suffering from any legal impediment?

o ANSWER: There are two (2) conflicting views on that matter:

a) FIRST VIEW: There are others who are of the view that the legal
impediment is required only during the celebration of the
marriage.
b) SECOND VIEW: While there are some who are of the view –
that the 5 year cohabitation period must be free from any legal
impediment
o So the absence of any legal impediment pertains to the 5 years
cohabitation period.
o That controversy has not yet been settled with finality.
o But the better rule is that the legal impediment (exclusivity) pertains
to the entire 5 years cohabitation period – that is the better rule.

o CASES:
1) Nenial vs Teves
2) Reiterated in a case of Bayot vs CA

In those two cases, SC ruled:

o That the said period must be a continuous one, unbroken and it must be
characterized by Exclusivity
o It must be a one to one relationship
o And in that 5 year period, the parties must not be suffering from any legal
impediment.
o In other words, it must be a perfect union and there is no marriage ceremony.

o Bakit daw? What is the rationale provided for by the SC in that ruling?
o SC HELD: In our jurisdiction we are sanctioning monogamy, not bigamy not
polygamy
o We are encouraging monogamous relationship.
o So we are not giving premiums to those relationships which are ELICIT,
ILLEGAL.

o But sabi ng iba – that decision of the SC was the interpretation of the
counterpart provision of ART 34 FC in the Civil Code.
o So what was interpreted was the civil code provision and not Art 34 FC.
o The requirement on the absence of legal impediment was not stated in the
counterpart provision in the civil code.
o Kaya lang iisipin mo, bakit isiningit yan sa FC? Kung isiningit yan dun sa
period of the celebration of the marriage – then that goes to state that it has
no additional meaning, WHY? Because in all marriages it must be necessary

Page | 45
 that the parties must not be suffering from any legal impediment. Otherwise
the marriage will be void.
o Hindi na kailangan sabihin yan sa Art 34 – because that is an exceptional
marriage.
o So bakit exceptional? Because it is exempt from the marriage license
requirements.
o So exceptional yan – because that is different from the ordinary.
o Kaya sya different from the ordinary - Because the parties during the entire 5
years period of cohabitation should be free from any legal impediment.
o That should be the better interpretation.
o Sabi ng ibang commentator: That those decisions – are not applicable to Art 34
FC – because that is an interpretation of the provision in the Civil Code.
o But we should look at the REASONS: the rationale in those decisions of the
SC
o Ang sabi ng SC this is the Rule: Because our state is sanctioning
Monogamous relationship
o Between the civil code and the FC – that is our state policy.
o Are we sanctioning bigamous or polygamous relationship – hindi pa rin naman
o So still our state policy is encouraging monogamous relationship.
o Anyway that issue has not yet been settled with finality.

QUESTION: (Republic vs Danoy?)

o What if the parties went to live as husband and wife but they have not met
the minimum period required by ART 34?
o Ex. Let say that they are only cohabiting as husband and wife for a period of 3
years.
o But in their application for marriage license – they made it appear thereon that
they are already cohabiting as husband and wife for at least 5 years.
o Were in truth and in fact, they were not able to satisfy the minimum period
required by law.
o So they falsified their sworn statement pertaining to the requirement.

o Q? If they later on used that to ATTACK the validity of that marriage – can they
already be considered under ESTOPPEL? Are they now estopped?
o SC HELD: Even if there was falsification, even if they have falsified their sworn
statement, they cannot be allowed from directly attacking the validity of their
marriage, even if it is in virtue that their cohabitation was short of the period of
cohabitation required by law, so they are not exempt from the marriage license
requirement.
o So what is the rule? They are required to get a marriage license
o And if the marriage was celebrated without a marriage license – then the
marriage will be considered void ab initio.
o So the marriage will be declared void ab initio – if it is virtue that they were not
able to satisfy the minimum period required by law in ART 34.
o Afterall, there is this sanction – they will be prosecuted criminally for
falsification

Page | 46
 o But with respect to the validity of the marriage – since it was contracted in the
absence of a marriage license, the marriage is void ab initio. That is the case
in Republic vs Dayot?

o NOTE: The equity principle of ESTOPPEL – cannot apply in resolving the

validity of the marriage license.
o Validity of marriages – are governed by the provisions of the law
o So we cannot apply the principle of Equity – known as Estoppel.

LET US NOW CONSIDER: THE AUTHORITY OF THE SOLEMNIZING

OFFICER:

This authority was provided in Art 7 of FC and one in the Local Government Code.

WHO ARE AUTHORIZED TO SOLEMNIZE MARRIAGE?

1. MEMBERS OF THE JUDICIARY:

o In connection with the members of the judiciary, it is necessary that they
are INCUMBENT MEMBERS.
o And the marriage must be celebrated within the court’s jurisdiction.

o Q? What if the marriage was celebrated outside of the court’s

jurisdiction? Will that affect the validity of the marriage?
o For purposes of the bar examination – you will answer that question in
the light of the cases of:
a) Navarro vs Domagtoy
b) ___ vs Dagongan
c) Arañes vs Icasiano

o In those cases, the SC ruled: That even if the marriage was celebrated
by a municipal trial court judge outside of his court’s jurisdiction, that is a
mere irregularity in a formal requisite, which does not affect the validity of
the marriage.
o For purposes of bar examination – let us simply invoke the decisions of
the SC in all those cases.
o Even if it was a mere ___
o That pronouncement is relevant because the validity of the marriage is
not in issue.
o The issue in that case is the administrative liability of the pairing judge.
o At any rate, since that pronouncement is from the SC – we can use that
for purposes of the bar examination.

 With respect to the legal capacity – if legal capacity is absent, the

marriage is void ab initio – the rule is absolute, there is no exception.
 If there is no consent – the marriage is ___
 If there is no license – the marriage is void ab initio – the rule is absolute,
there are no exceptions.
Page | 47
  But there are marriages which are exempt from the marriage
requirement.
 But with respect to the authority of the solemnizing officer – there is an
EXCEPTION:

1) If the solemnizing officer has no authority – then the marriage will be

declared void ab initio.
2) But there is an exception – that even if the solemnizing officer has no
authority – but if ONE OR BOTH of the contracting party BELIEVES
IN GOOD FAITH that the solemnizer had the legal authority to do so,
then the marriage becomes perfectly valid.
 Under the new rule – if EITHER ONE, isa lng ang kailangan, or
BOTH OF THE CONTRACTING PARTIES believes in good faith
that the solemnizer had the legal authority to do so then the
marriage becomes valid.

 But take note: That the GOOD FAITH being referred to in ART 35 para 2
FC must be one of MISTAKE OR IGNORANCE OF FACT and NOT
MISTAKE OR IGNORANCE OF LAW.
 Because mistake of the law – is not a defense
 It cannot serve as the basis of good faith
 Ignorance of the law excuses no one from compliance therewith.
 Ex. In the case of Pres Digong – and he was requested to
solemnize the marriage because the parties believes that the
President has the authority to solemnize the marriage.
 Is it mistake of fact? NO. it is a mistake of law.
 That mistake must refer to all those persons enumerated
 Akala mo pari, akala mo religious solemnizer, akala mo
members of the judiciary, etc.
 Ex. Eh kung what if yung notary public akala mo authorize
magsolemnize sa inyo – that is a mistake of law

2. RELIGIOUS SOLEMNIZER:
o In order that the religious solemnizer may be authorize to solemnize
marriages the following 3 REQUISITES must be present:

a. That the religious solemnizer must be issued a written

authority by his religious sect.
 What if he was not issued a written authority?
 Will the marriage be valid or void?
 The parties may invoke mistake of fact

b. That the written authority is required to be registered before

the civil registrar general.
 Who is the civil registrar general?
 The present head of the national statistics office.
 So the written authority of the religious solimnizer must be
register with the NSO.

Page | 48
 What if there is no registration of that authority? Will that affect
the validity of the marriage between the contracting parties?
 The parties can invoke GOOD FAITH – because that is a
mistake or ignorance of fact and not of law.

c. It is necessary that the religious solemnizer must act within the

limits or bounds of the written authority issued to him.
 But if the parties are not aware of the limits, of those
limitations, they can invoke Good Faith, afterall that can be
considered as a mistake of fact.
d. It is required by law that at least one of the contracting parties must
belong to the same religion, same sect or church or denomination.
 If the parties are already aware that they belong to a different
religion, neither of them belongs to the religion of the
solemnizer, can they invoke GOOD FAITH?
 NO. That can now become a mistake of law and not
mistake of fact, in which case the marriage becomes
void ab initio because of absence of authority on the
part of the religious solemnizer.

3. CHIEF PILOT or SHIP CAPTAIN:

o The chief pilot or the chief captain has the authority to solemnize
marriage.
o And their authority to solemnize marriage is confined only on marriages
in Articulo Mortis.
o They can only solemnize marriage at the point of death
o And it is necessary that the parties to the marriage must be Passengers
of the Ship or of the Plane or Crew Members.
o So walang authority ang chief pilot or ship captain to solemnize marriage
involving someone who is neither a passenger nor a crew member.
o NOTE: That authority exists not only while the ship is on voyage or the
plane is in flight.
o Likewise during stopover at the port of call.

Is it necessary that the marriage must be celebrated inside the ship

or plane during stopover?
 Papanu kung bumaba sa ship or plane? At habang bumababa
nahulog sa hagdan, tumama ang ulo,..at the point of death? He
requested the secretary to do the celebration. Kailangan pa b sya
ibalik sa loob ng eroplano bago ikasal?
o NO. It is not necessary that it be celebrated inside the ship or the plane.

4. CONSULS OR CONSULAR OFFICIALS:

o The consul general, vice consul, and consuls – have the authority to
solemnize marriages ONLY ABROAD.
o Necessarily entered in a place where they are consular officials or in
their station abroad.

Page | 49
 o So they do not have the authority to solemnize marriages in the
Philippines.
o Likewise, it is necessary that the parties must be BOTH CITIZENS of the
Philippines.
o NOTE: That our consular officials do not have the authority to solemnize
marriages if the marriage is a MIXED one, where one is the citizen of the
Philippines while the other is a foreigner.
o It must be necessary that the parties must be both citizens of the
Philippines.

5. MILITARY COMMANDERS OF A UNIT:

o Important role for a commander of a unit who is authorize to solemnize a
marriage, it is necessary that he must be a commissioned officer holding
a rank by virtue of the appointment of the President of the Republic of
the Philippines.
o And it is necessary that the CHAPLAIN assigned to the unit must be
ABSENT.
o So if the chaplain was present, it is the chaplain who has the authority.
o The military commander may only exercise the authority to solemnize
marriage in the absence of a chaplain.
o It must be necessary that the marriage must be in Articulo Mortis.
o The marriage must be celebrated – within the Zone of military operation.
 There must be a military operations going on there.

RECAP OF REQUIREMENTS FOR THIS:

1) Military commander must be a commissioned officer;
2) The commander must hold the rank by virtue of the appointment the
President of the RP;
3) The Chaplain of the unit is absent;
4) The marriage was in articulo mortis;
5) The celebration must be made within the zone of military operation;
and
6) Must not only involve members of the AFP must civilians as well.

Is it necessary that the contracting parties must be members of the

AFP?
o NO. The military commander has the authority to solemnize a marriage
in articulo mortis even involving civilians

6. LASTLY; MAYORS:
o Among local elective officials, only the mayor has the authority to
solemnize marriages.
o And even if the mayor will solemnize marriage outside his territorial
jurisdiction, take note.... that will only be an irregularity which will not
affect the validity of the marriage.
o So even if someone – is merely an ACTING MAYOR – he has the
authority to solemnize the marriage
Page | 50
 o NOTE: The authority ATTACHES to the OFFICE and NOT to the Person.

LASTLY, LET US DISCUSS: MARRIAGE CEREMONY:

THIS IS VERY IMPORTANT:
o In the ABSENCE of a marriage ceremony there is no marriage.

WHAT DO WE MEAN BY MARRIAGE CEREMONY?

o NOTE: There are NO FORMALITIES required; NO RITUALS are required by
law.

In order for a marriage ceremony to exist, the following must be observed:

1) There must be a CONTRACTING PARTIES: and
2) The SOLEMNIZING OFFICER

o NOTE: It is necessary that the contracting parties must PERSONALLY

APPEAR before the solemnizing officer.
o The law requires Personal Appearance by the contracting parties before the
solemnizing officer.
o So in our jurisdiction, MARRIAGE BY PROXY is NOT ALLOWED because the
parties are required to be personally present before the solemnizing officer.
o So what about marriages celebrated with an aircraft?. Si babae nasa Pilipinas
si lalaki nasa ibang bansa.

Will that be valid?

o If celebrated in the Philippines, NO, it would not be valid, because there is no
marriage ceremony.
o In order that for the ceremony to exist, it is necessary that the contracting
parties must personally appear before the solemnizing officer.
o EXCEPTION: But if that marriage was CELEBRATED ABROAD and in the
place of celebration it is RECOGNIZED AS VALID, it will likewise be
recognized as valid here in the Philippines pursuant to Lex Loci Celebrationis
Rule in ART 26 para 1 of FC.
o So marriages use by the use of cellphones .... that is not valid here in the
Philippines.
o Likewise, the contracting parties are required to make the PERSONAL
DECLARATION that they are taking each other as husband and wife and in the
presence of a solemnizing officer.
o Again the marriage by proxy – cannot be recognized as valid in our jurisdiction
because the presence of the parties and personal declaration before the
solemnizing officer. Hindi pwedeng iba ang sumagot, sya mismo.
o It is necessary that the parties themselves make that personal declaration.

IN WHAT FORM? Pwede bang in writing?

o YES. Because the law requires any formalities. The law do not requires any
rituals
o So that personal declaration (that they take each other as husband and wife)
can be made in ANY FORM.
Page | 51
 o It can be made verbally or in writing or even by sign
o No formalities are required by law
o So if the parties was ask by the solemnizing officer na cge pirmahan nyo na
ang marriage contract... that is already sufficient and already amounts to a
declaration in writing....pwedeng kahit hindi mo n tanungin pa ulit.
o Because it is necessary that the signing of the marriage contract must be done
in the PRESENCE of the solemnizing officer.
o In one case, the signing of the marriage contract was made not in the
presence of the solemnizing officer. So there was no marriage ceremony.
o Kaya baguhin ang tanung pag sa bar na.

o The signing of the marriage contract took place in the presence of the
solemnizing officer pero hindi na sila tinanong. Will the marriage be valid?
o YES. Perfectly valid. There was a marriage ceremony.

HOW ABOUT THE REQUIREMENT OF WITNESSES?

o That is merely directory
o Its only purpose is evidentiary.
o That is not a requirement for the validity of the marriage.
o So kahit walang witnesses that will not affect the validity of the marriage.
o That is not part and parcel of a marriage ceremony.

SO WHAT DO WE MEAN BY MARRIAGE CEREMONY?

o Simply means that the contracting parties must personally appear before the
solemnizing officer
o And before the solemnizing officer, they will make a personal declaration that
they will take each other as husband and wife.
o So that is what we mean by a marriage ceremony nothing more nothing less.

RECAP OF THE REQUIREMENTS FOR A MARRIAGE CEREMONY:

1) Personal Appearance of both the contracting parties; and
2) Personal declaration that they take each other as husband and wife – made in
the presence of the solemnizing officer.

LET US DISCUSS ART 26, 2ND PARA:

DISCUSSION ON THE VALIDITY OF MARRIAGES:
o There are some basic principles that you must have to bear in mind.

BASIC PRINCIPLES ON THE VALIDITY OF MARRIAGES:

1. Our law is in favor of the validity of marriages.

o The presumption of our law is in favor of marriages.
o So in case of doubt the law is in favor of sustaining the validity of marriages.
o It is incumbent upon the person who is assailing the invalidity of the marriage
to prove that the marriage is not valid.

Page | 52
2. The validity of marriages is determined – by the law in force at the time of
the celebration of the marriage.
o Most importantly, in determining the validity of marriages – it will depend on the
place of its celebration.
A. MARRIAGE CELEBRATED OUTSIDE THE PHILIPPINES:

 So if the marriage was celebrated OUTSIDE of the Philippines – in determining

its validity – the GEN RULE is that we are following the principle of Lex Loci
Celebrationis (ART 26 para1, FC)

o So if a marriage among citizens of the Philippines was celebrated abroad and

in the place of celebration it is considered as valid, the GENERAL RULE is that
the marriage will also be recognized as valid here in the Philippines. (General
Rule).
o But that is not absolute, there are exceptions to that rule:

o EXCEPTIONS: The following are the exceptions:

1) ART 35 (1) - BELOW 18YO - If the marriage was void because one of the
contracting parties is below 18 or both of them are below 18, regardless of
the place of the celebration of the marriage it will remain void.

2) ART 35 (4) - BIGAMOUS OR POLYGAMOUS MARRIAGES: - regardless of

the place of celebration the marriage will remain void.

3) ART 35 (5) – MISTAKE AS TO THE IDENTITY OF THE CONTRACTING

PARTY – Where one of the contracting parties committed a mistake with
respect to the actual physical identity of the other, regardless of the place of
the celebration of the marriage, it will remain void.

4) ART 35 (6) - NON COMPLIANCE TO PROCEDURAL REQUIREMENT IN

ART 52 FC – When the subsequent marriage was entered into without
compliance to the procedural requirements of ART 52 FC, regardless of the
place of celebration of the subsequent marriage it will remain void.

5) ART 36 – PSYCOLOGICAL INCAPACITY – regardless of the place of the

celebration of the marriage, it will remain void.

6) ART 37 – INCESTOUS MARRIAGES – regardless of the place of the

celebration of the marriage it will remain void.

7) MARRIAGES WHICH ARE VOID BY REASON OF PUBLIC POLICY – are

likewise be void regardless of the place of the celebration of the marriage.

o In determining the validity of the marriage of the citizen of the Philippines, we

have to look at the place of the celebration of the marriage.
o If celebrated abroad – GEN RULE – apply the Lex Loci Celebrationis.

B. MARRIAGE CELEBRATED HERE IN THE PHILIPPINES:

Page | 53
 o The rule is very STRICT.
o In order for the marriage celebrated here in the Philippines to be valid, all of
the Five (5) Requisites of marriage must be present. Istrikto tayo if the
marriage is celebrated here.

LET US DISCUSS VOID MARRIAGES:

WHEN IS A MARRIAGE VOID?
o GEN RULE: Pursuant to ART 4 – a marriage is void if it was celebrated in the
absence of ANY of the 5 requisites of marriage.
o A void marriage is never to have taken place at all – it is invalid from the very
beginning
o BUT we will have to qualify that.
o Even if a marriage is Invalid from the very beginning – if one of the parties
thereto would want to contract a subsequent marriage they cannot simply
decide for themselves that their 1st marriage is void ab initio.
o It is only the court who can declare that their marriage is void ab initio
o Because if they contract a subsequent marriage without a prior judicial
declaration of the nullity of the prior marriage they will be committing the crime
of BIGAMY.
o And therefore, the subsequent marriage will likewise be declared void ab initio.

IMPORTANT THING TO CONSIDER: in relation to void marriages will be the

topic on the PERSONALITY of who to file the declaration of the nullity of
absolute marriages.

WHO CAN FILE THE PETITION FOR DECLARATION OF ABSOLUTE

NULLITY OF THE VOID MARRIAGES?
o The FC is silent on that. You cannot find that in the FC.
o But there is a NEW RULE – which provides for the PROPER PARTY who can
file the petition for declaration of the nullity of absolute marriages.

ADMINISTRATIVE MATTER NO.

o I am referring to

02-11-10-SC:
o Promulgated by the SC and which took effect on March 15, 2003. (RE:
PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID
MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES)
o Under the new rule – ONLY SPOUSES (husband or wife) can file a petition for
declaration of the nullity of their marriage.

o But in order for 02-11-10 to apply – there are two (2) requisites that must be
present:

1) The marriage must be celebrated during the effectivity of the FC;

o In other words as explained by SC in the case of:
 Enrico vs Heirs of Spouses Medina; and

Page | 54
  2009 case of Carlos vs Sandoval
o The scope of AM 02-11-10-SC is limited only to marriages
celebrated during the effectivity of the family code.
o Thus, it does not apply to marriages celebrated prior to August 3,
1988.
o That administrative matter only applies to marriages that were
celebrated on or after the effectivity of the FC.
o 02-11-10 – based on SC shall apply only PROSPECTIVELY and it
does not have retroactive application.
o It applies only to petitions filed during the effectivity of AM 02-11-10-
SC.

When do those rules become effective?

o On March 15, 2003.

So in determining the personality of the person who will file the petition for
declaration of nullity of marriages, there are two (2) ways that you must
consider:

TWO (2) WAYS:

a) Effectivity of the FC – Aug 3, 1988; and
b) Effectivity Date of AM 02-11-10-SC. – March 15, 2003.
 So 02-11-10 – will only apply if the marriage was
celebrated during the FC.
 And the petition was filed on March 15, 2003 or thereafter
 In other words, it does not apply if the marriage was
celebrated under the civil code or prior to August 3, 1988.
 Or even if the marriage was celebrated during the
effectivity of the FC, but if the petition for declaration of
nullity was filed prior to March 15, 2003, then 02-11-10
does not apply.
 There are 2 dates to be remembered: Aug 3, 1988 and
March 15, 2003.
 WHY? Because the new rule is applicable only to
marriages celebrated during the effectivity of the FC and
at the same time, it applies only PROSPECTIVELY.
 It has NO RETROACTIVE APPLICATION.

2) The petition for declaration of absolute nullity was filed on March 15,
2003 or thereafter.
o If those two requisites are not satisfied then 02-11-10 will not apply.

WHAT ARE THE RULES – in AM No. 02-11-10 SC?

Page | 55
If 02-11-10 is applicable because the marriage was celebrated during the FC
and at the same time the petition is filed on March 15, 2003 or thereafter, this
are the rules:
o ONLY the HUSBAND or the WIFE – has the PERSONALITY to file a
petition for declaration of absolute nullity of their marriage.
o In other wordS, the decision of SC in Nenial vs Barreto is no longer
applicable.
o It is 02-11-10 that shall apply.
o The HEIRS whether intestate or compulsory no longer have the
Personality to file the petition for declaration of absolute nullity if 02-11-
10 is applicable.
o And at the same time that petition can only be filed by the spouses
DURING their LIFETIME.

WHAT IS THE EFFECT OF THE DEATH OF ONE OF THE SPOUSES?

o If one of them dies during the pendency of the petition, then the petition
will be dismiss.
o That petition will only be given effect – if the death of one of the
spouses occurs – AFTER the ENTRY of JUDGMENT.
o But if the death occurs PRIOR TO THE ENTRY OF THE JUDGMENT,
the petition will be dismissed.
o And double petition for declaration of absolute nullity can be filed after
the death of the spouses.
o Because only the husband or the wife can file that petition and that
petition must be filed during the lifetime of both the spouses.

Q? The marriage is void. If the marriage is void it can be attack either

directly or collaterally.
o Was that rule change by the death of either one of the spouses?
o Is that rule change by 02-11-10? Minodify lang.
o Under the new rule only the husband or the wife can file the DIRECT
ACTION – the petition for declaration of absolute nullity and that
petition must be filed during the lifetime of both of the spouses.
o So after the death of one of them – NO MORE petition can be filed.

o But may the validity of the marriage can still be questioned? –

YES, pwede na rin – but no longer by way of a DIRECT ACTION but
only by way of COLLATERAL ATTACK.

Who can question the validity of the marriage by way of a COLLATERAL

ATTACK?
o ONLY those who have the DIRECT INTEREST in the validity of the
marriage involving spouses.
o Sinu sila?

What kind of interest will be affected by the validity of the marriage

between spouses?

Page | 56
 o Those interests are only with respect to SUCCESSIONAL RIGHTS.
o So only the intestate or compulsory heirs of either of the spouses MAY
Collaterally Attack the validity of a void marriage.

In what kind of proceeding may the issue of the validity of the marriage
be raise by intestate or compulsory heirs?
o They can raise that issue during the SETTLEMENT of the estate of the
deceased spouse.
o And the only one who can raise that issue, who can question the
validity of the marriage after the death of one of the spouses, is only
the INTESTATE OR COMPULSORY HEIRS of either of the spouses.

DIRECT ACTION (ATTACK) – can be made only by the spouses themselves

during their lifetime.
COLLATERAL ACTION (ATTACK) – can only be filed by the intestate or
compulsory heir of either spouses during the settlement of their estate.

WHAT IS THE PURPOSE?

o Because if the marriage is valid, the children are legitimate – malaki
ang share nila.
o If the marriage will be void – children will become illegitimate – lumiliit
ang share.
o So that will have an effect in so far as the share of the children is
concerned.
o So those are the rules if 02-11-10 is applicable.

KELAN HINDI APPLICABLE ANG AM NO.02-11-10 SC?

1) If the marriage was celebrated prior to August 3, 1988 or if the marriage was
celebrated under the Civil Code.
2) Even if the marriage was celebrated during the FC, but if the petition for
declaration of absolute nullity was filed prior to the effectivity of 02-11-10. In
other words, the petition was filed prior to March 15, 2003.

WHAT ARE THE RULES IF AM No. 02-11-10 DOES NOT

APPLICABLE?

Who can file the petition for declaration of the absolute nullity if AM 02-11-
10 does not apply?

o Take note: Case of Nenial vs Badayog, GR No. 133778.

o The marriage was celebrated prior to the Family Law
o So who can file the petition for absolute nullity if 02-11-10 does not apply?

o The SC explained in the case of Carlos vs Sandoval (Dec 16, 2008), GR No.
179922
o If 02-11-10 does not apply, the PLAINTIFF OR THE PETITIONER must be a
REAL PARTY in Interest.

Page | 57
 What kind of interest is involved if the question is the validity of the
marriage?
o ANS. That interest refers to SUCCESSIONAL RIGHTS.

So who can be considered as a Real Party in Interest in relation to a

petition for declaration of absolute nullity?
o ANS. Only the INTESTATE or COMPULSORY HEIRS of the spouses will be
considered as real party in interest.

So if 02-11-10 does not apply – Q? Can the intestate or compulsory heirs

file a petition for declaration of nullity during the lifetime of the spouses?
o ANS. NO. WHY NOT? Because their interest for the meantime is but a mere
expectancy. Inchoate pa yan.
o So they do not have the personal lien to file the petition of absolute nullity of
the marriage of the spouses.

CAN THEY FILE IT AFTER THE DEATH OF ONE OF THE SPOUSES?

o ANS. YES. If 02-11-10 does not apply, the intestate or compulsory heirs can
file a direct action to question the validity of a void marriage.
o They can file a petition for declaration of absolute nullity even after the death
of one of the spouses.
o Or they may only choose to collaterally attack the validity of the marriage of
the spouses.

NOTE: So if 02-11-10 does not apply the intestate or compulsory heirs

have TWO (2) WAYS of ATTACKING THE VALIDITY OF A VOID MARRIAGE.
1) It can be attack either by way of a Direct Action – which is a petition for
declaration of the absolute nullity; or
2) By way of Collateral Attack – during the Settlement of the estate of the
deceased spouse.
o That petition can be filed even after the death of either one of the
spouses.

IN 2009 CASE OF CARLOS VS SANDOVAL:

o The deceased husband at the time of his death – he was survived by a
surviving wife and by a child.
o But he also has a surviving brother.
o And after the death of the husband, the brother of the husband filed a petition
for declaration of absolute nullity of the marriage of the deceased to the
surviving wife.

o Q? Meron bang personality yung brother to file the petition for

declaration of absolute nullity.
o The marriage was celebrated prior to the FC. So 02-11-10 does not apply.

o Is the brother a real party in interest?

o He will become a real party in interest – if he is an intestate heir. Definitely he
is not a compulsory heir of the deceased.
Page | 58
 o But is the brother an intestate heir of the deceased? Magiging intestate
heir yung brother in the absence of children.
o Eh may anak. So the brother is excluded.

o But in the petition that he filed, the brother made an allegation that the alleged
child of the deceased is not at all the child of the deceased whether legitimate,
illegitimate or adopted. So meron syang allegation in the petition.

o Take note: That if that allegation will be true – then the brother will become an
intestate heir concurring with the surviving spouse.
o But if that allegation will not be true – if the child is indeed the child of the
deceased whether legitimate, illegitimate or adopted – the existence of that
child will exclude the brother from intestate succession.
o SC HELD: In determining the personality of the brother to file a petition for
absolute nullity kailangan sagutin muna yung tanung – is the allegation that the
child of the deceased is indeed is not the child of the deceased? That must be
first addressed.
o So the SC remanded the case to the trial court for determination of that issue
of whether or not the child of the deceased is indeed the child of the deceased
whether legitimate, illegitimate or adopted.
o That is the case of Carlos vs Sandoval.

ART 35 (3) – ABSENCE OF MARRIAGE LICENSE:

o If the marriage was celebrated abroad, and in the place of celebration marriage
license is not required, that marriage will also be recognized as valid in the
Philippines.
o Because ART 35 (3) is not one of the exception.
o EXCEPT: If the marriage involving citizen of the Philippines was celebrated
before our consular officials.
o Because if the marriage was celebrated before our consular official – that
marriage is required to be celebrated with a marriage license.
o WHY? Afterall, the consular official has the authority, the power to issue
marriage license. Hindi yan exempted sa marriage license requirement.

ART 35 (4) – BIGAMOUS AND POLYGAMOUS MARRIAGE:

o Regardless of the place of the celebration of the marriage – the marriage is
void

ART 41 UP TO 44 IN RELATION TO
LET US DISCUSS:
BIGAMOUS OR POLYGAMOUS MARRIAGES:
ART 41 FC:
o Contemplates of a situation where one of the spouses had been absent for the
period required by the FC and the present spouse had well founded belief that
the ABSENTEE is already dead.
o That is the situation contemplated under ART 41 of FC.

Page | 59
o In that situation may the spouse present has the capacity to remarry?
o Can he immediately contract another marriage?
o The spouse present may validly contract a subsequent marriage if the
following three (3) requisites will be present:

3 REQUISITES:

1) The period of absence required by the FC is met.

o What is the period of absence?
o GEN RULE: Four (4) continuous years of absence on the part of
the absentee.
o But that period may be reduce to two (2), if the disappearance of
the absentee spouse is under any of those circumstances where
there was danger of death.
o So it is either 4 or 2. So it is 2 if the disappearance is based on the
foregoing grounds.

2) The spouse present must have a well founded belief that the
absentee is already dead.

3) Most Important: The spouse present must have OBTAINED a Judicial

Declaration of Presumptive Death of the absentee spouse in a
SUMMARY Proceeding authorize under the FC.

If you will be confronted with a question – involving the validity of subsequent

marriages – because one of the spouses had been absent and the spouse
present has a well founded belief that the absentee is already dead.......Tingnan
nyo....WHAT IS THE DATE OF THE CELEBRATION OF THE 2ND MARRIAGE.
o Because the provisions of the FC is different from the provisions of CC.

Under the Civil Code:

o The civil code does not require or mention of the judicial declaration of
presumptive death.

o This is expressly required now under the provision of FC.

o So if the subsequent marriage was celebrated prior to August 3, 1988 –
and it was celebrated without a judicial declaration of presumptive death
but the other requirements were present – the period of absence was
complied with and the spouse present had a well founded belief that the
absentee is already dead, take note that the marriage is considered as
valid even if it was celebrated without a judicial declaration of presumptive
death.
o REASON: The civil code does not require a judicial declaration of
presumptive death.
o That is the case of Armas vs Calisterio, GR No. 136467 (April 6, 2000)
o In this case, the marriage was celebrated during the effectivity of the civil
code.

Page | 60
 o NOTE: As discussed previously, the validity of the marriage was
determined by the law in force at the time of the celebration of the
marriage. The law in force at the time of the celebration shall govern.
o If the subsequent marriage on the other hand was celebrated during the
effectivity of the FC, or it was celebrated on Aug 3, 1988 or thereafter, the
requirement of the FC is that the subsequent marriage must be
celebrated after OBTAINING a judicial declaration of presumptive death
o Otherwise the 2nd marriage, in the absence of judicial declaration of
presumptive death, will be a BIGAMOUS marriage.

Q? Will the spouse present be held liable for the crime of Bigamy if the
spouse present contracted the subsequent marriage during the effectivity
of the FC in the absence of a judicial declaration of presumptive death?
o ANS. The SC said YES. In the recent case of Manuel vs People.

MANUEL vs PEOPLE:
o In this case, the marriage was celebrated during the effectivity of the FC
(1996).
o And it was celebrated without a judicial declaration of presumptive death.
o The defense of Manuel is this:
o He admitted that he contracted a 2 nd marriage even without securing first
the judicial declaration of presumptive death, but sabi ni Manuel, the only
effect of ART 41 of the FC should be civil.
o It will only make the subsequent marriage void ab initio.
o But ART 41, according to Manuel, does not affect the provision of ART
349 of the RPC.
o So sabi ni Manuel the only effect of ART 41 is only civil.
o It only means that the marriage is void but it does not affect the provisions
of our criminal law on Bigamy.
o You will not be held liable for bigamy.
o Unfortunately, SC held: Precisely the purpose of ART 41 of the FC is to
harmonize our civil law with that of the criminal law.

o WHY? Because prior to the enactment of the FC, that was an on-going
controversy, on what is the effect of judicial declaration of presumptive
death on subsequent marriage?

o If that make the spouse liable for committing the crime of bigamy?
o There are decisions of the SC that said yes and no. That was the on-
going controversy.
o Until, the controversy was finally settled by ART 41 of FC.
o Court said, the purpose of ART 41 is to harmonize the civil with that of the
criminal law on bigamy.
o Therefore, Manuel was convicted for the crime of Bigamy.

WHAT IS THE EFFECT OF THE JUDICIAL DECLARATION OF

PRESUMPTIVE DEATH?
o In the eyes of the law, the absentee is already dead.

Page | 61
 o If the absentee is already dead, there are ways of terminating the
marriage.
o So the previous was also presumed to have been terminated.
o So therefore, the spouse present will immediately regain his or her
capacity to remarry. That is the effect of the judicial declaration of
presumptive death.
o But take note: That is still a PRESUMPTION.
o And that presumption, even if it was a judicial presumption, that
presumption can be overthrown.

Q? How can that judicial presumption of presumptive death be

overthrown?
o The manner to overthrown that presumption is provided for in ART 42.
o That presumption can be overthrown simply by the MERE RECORDING
of the AFFIDAVIT OF REAPPEARANCE of the absentee spouse.

Is that the only way to overcome that presumption?

o Hindi lang. Hindi lang yun.
o The presumption can also be overthrown by a judicial declaration that
the absentee is still alive.
o So there are two (2) ways of OVERTHROWING that PRESUMPTION:

TWO (2) WAYS: It can either be JUDICIAL or EXTRAJUDICIAL:

1) Mere recording of the Affidavit of Reappearance (extrajudicial); and
2) Judicial declaration that the absentee was still alive (judicial).
o Even if a judicial declaration is not provided for as a way of overthrowing
the presumption that is better
o Because judicial declaration is anywhere, compared to a mere recording
of the affidavit of reappearance.

o Take note: the law is not required for the filing of a judicial action to prove
that the absentee is still alive.
o Under the law the mere recording of the Affidavit of Reappearance is
sufficient.

So if you would be ask, what is the effect of the reappearance of the

absentee?
o There was a judicial declaration that the absentee is still alive.
o And likewise there is no recording of the affidavit of reappearance of the
absentee.
o The absentee merely reappeared.
o You can be guided by a 2006 case of SSS vs Harque vda de __
o In that case, this is the situation.
o The spouse present, obtained a judicial declaration of presumptive death.
o And then he contracted a subsequent marriage.
o After the subsequent marriage, the spouses died.
o Merong naiwan syang SSS benefits.

Page | 62
Who is entitled for the SSS Benefits?
o The surviving spouse will benefit.
o This benefit is being questioned on the grounds that the spouse is not
dead but in fact still alive.
o Let us assume, that indeed that the absentee is still alive.

Who is entitled to the SSS benefits? Who is considered as the surviving

spouse?
o Of course the 2nd spouse.
o WHY? A mere reappearance without a judicial declaration that the
absentee is still alive or with the recording of the affidavit of reappearance,
what is the effect of the mere reappearance of the absentee?
o In the eyes of the law the absentee is still dead.
o The presumption is not yet overthrown.
o Mahalaga ito. Because pwede ito ikabit sa issue of succession.

Who is considered as the surviving spouse entitled to inherit from the

deceased?
o The absentee who is still alive, but did not record the affidavit of
reappearance and in the absence of a judicial declaration that he still alive
or the 2nd spouse?
o ANS: It is the 2nd spouse who is considered as the surviving spouse
entitled to inherit.
o Siya ang legal, sya ang compulsory intestate heir.

What if the death of the spouse present, the absentee will now file his
affidavit of reappearance. Anu purpose nya...ang purpose nya maregain
nya yung trono nya as the surviving spouse.
o Pwede ba?
o NO. WHY? Because the 2nd marriage was already terminated by death.
o It cannot anymore be terminated by the recording of the affidavit of
reappearance. Too late.
o So the surviving spouse is clearly the 2nd spouse.
o So if you are the absentee spouse, and you have yet to record your
reappearance, you may lose your entitlement in the inheritance if you
cannot prove that you are alive by either a judicial declaration that you are
alive by the recording of the affidavit of reappearance.

Who can file the affidavit of reappearance?

o Any interested person.
o Sinu sila? Kapitbahay mo tsismosa, pwde?
o NO. Hindi pwede.
o Only those who have the direct interest that will be affected.
o So the absentee will benefit, so he has the personality to file the affidavit of
reappearance.

o How about the spouse present?

o Yes. Definitely, no question about it.
Page | 63
 o BUT HOW ABOUT THE 2ND SPOUSE? DOES HE HAVE THE
PERSONALITY TO FILE THE AFFIDAVIT OF REAPPEARANCE?
o Tingnan natin.

What will be the effect of the recording of the affidavit of reappearance?

o ANS. That will AUTOMATICALLY TERMINATE the 2nd marriage without
need of any judicial proceeding.
o That is the only situation under our laws, where extrajudicial termination of
a marriage is allowed.

So if you will be asked, in what instance that an extrajudicial termination

of marriage is allowed and what is the effect?
o ANS. By the mere recording of the affidavit of reappearance. The effect is
that it will automatically terminate the 2nd marriage.

So if we will allow the 2 nd spouse to file the recording of the affidavit of

reappearance what is its effect as to him/her?
o The effect is he or she is terminating his/her marriage.
o And he/she will immediately regain his/her capacity to remarry.

So does he/she have the personality?

o To answer that question, let us consider the provision of the civil code.
o Under the provision of the civil code a subsequent marriage in this
situation is considered as a VOIDABLE marriage.

o NOTE: But under the provision of the FC – the subsequent marriage is

NOT VOIDABLE.
o It is perfectly a valid marriage.
o Except that it can be terminated by the recording of the affidavit of
reappearance.
o But it is not voidable, it is a perfectly valid marriage.
o Under the CC this type of marriage is voidable – it can be annulled.

What is the ground for annulment?

o The ground for annulment is the REAPPEARANCE of the absentee
spouse.

Who can file the petition for annulment?

o The ABSENTEE can file it. The SPOUSE PRESENT can file it.
o And likewise, the 2ND SPOUSE can file that petition for annulment under
the provision of the Civil Code.

o So therefore, applying by analogy the civil code, its counterpart

provision in the FC, it appears that the 2 nd spouse also has the
personality to file that affidavit of reappearance.

Page | 64
 o NOTE: By the mere recording of the affidavit of reappearance – you will
immediately regain your capacity to remarry.
o So the 2nd spouse after filing the affidavit of reappearance and the contents
of that affidavit are true, he regains immediately his capacity to remarry.
o He can validly contract another marriage without doing anything other than
the recording of the said affidavit of reappearance of the absentee spouse.

o NOTE: Of course the contents of that affidavit can be questioned by any

interested parties.
o So kung buhay pala yung tao – it can be subjected to a JUDICIAL
DETERMINATION.
o But the effect of that judicial determination will of course retroact to the
date of the filing of the recording of the affidavit of reappearance
o *****So the effect of reappearance will not on the time that the court
will find that the absentee is still alive but on the date of the
recording of the affidavit.
o So merong retroactive effect.

What is the effect of the recording of the affidavit of reappearance?

o Take note: The 2nd marriage is valid.
o Except that it will be automatically terminated upon the recording of the
affidavit of reappearance.
o Wala ng kailangan pang gawin.
o This is the only situation under our law where a marriage can be
terminated without the participation of the court.
o Hindi na kailangan ng judicial proceeding to terminate the subsequent
marriage.
o A mere recording of the affidavit of reappearance of the absentee will be
sufficient to terminate the 2nd marriage.
What will happen to the 1st marriage?
o Since the 1st marriage is only presumed to have been terminated because
one of the parties thereto was presumed to be dead.
o And that presumption was overthrown; the 1 st marriage is
AUTOMATICALLY revived.
o There will be an AUTOMATIC RESUMPTION of the 1st marriage.

What will happen to the PROPERTY RELATIONS of the 2nd marriage?

o Since the marriage is valid whatever is the property regime of the 2 nd
marriage will simply be terminated. So if that is absolute community or
conjugal partnership, we will simply terminate it.
o And the termination of the marriage will simply result in the termination
either of the absolute community or the conjugal partnership and the
property regime will be subjected to LIQUIDATION.
o Take note ang importante, if one of the contracting parties was in BAD
FAITH in the subsequent marriage, the share of the party who contracted
the marriage in bad faith, in the NET PROFITS shall be FORFEITED.

In whose favor will it be forfeited?

Page | 65
 o In favor of the common children if any, (in favor of the legitimate child) of
the one who contracted the marriage in bad faith;
o If no children, in favor of the other contracting party who contracted the
marriage in Good Faith.
o TAKE NOTE: What is subjected to forfeiture is only the NET PROFITS
and NOT the NET ASSETS.
o The NET ASSET of the absolute community of the conjugal is different
from the net profits.

What is NET ASSET?

o It is the value of the properties of the absolute and the conjugal after
payment of the obligations (babayaran mga utang).
o After the payment of the obligations – yung matitirang property yun ang
tinatawag nating NET ASSETS. Hindi yun ang subject sa forfeiture.
o What is subjected to forfeiture is only the NET PROFITS.

What is a net profit?

o Di ba meron tayong net assets – you will simply compare the value of the
net assets (the market value of the net assets) at the time of the
celebration of the marriage (kung yung mga properties nay un existing
during the marriage) or yung iba pang naacquired during the marriage, so
titingnan mo yung value ng property at the time of its acquisition or at the
time of the marriage and compare it with its market value at the time of the
petition.
o If there are increases in value of the net assets – then you have net profits.
o And that is what is subjected to forfeiture commonly called as the net
profits.

What will be the effect of the termination of the subsequent marriage

with respect to donation propter nuptias?
o If the donee was the one who contracted in bad faith, the donation prropter
nuptias is REVOKED BY OPERATION OF LAW.

What is the effect of the termination of the subsequent marriage with

respect to the rights of the former spouses in the subsequent marriage
to inherit from each other?
o Let us go to INTESTATE SUCCESSION:
 Sabi ng batas – the one who contracted the marriage in bad faith is
DISQUALIFIED to inherit from the other whether the succession is
testate or intestate.

Why is there a disqualification?

o Di ba hindi na sila mag asawa after the termination of the marriage?
o Bakit pa sila ididisqualify to inherit from each other by way of intestate
succession?
o Di ba ang pwede lang maginherit ay ang surviving spouse. Eh hindi na
surviving spouse, the marriage was already terminated.
o Bakit kailangan pang magprovide ng batas para s disqualification?
Page | 66
 o REASON: If the parties to the subsequent marriage have a collateral blood
relatives in the 5th civil degree, can they validly married each other?
o YES. Pwede. Because the prohibition is only up to 4 th civil degree.
o So those who are related in the 5 th civil degree, they can validly married
each other.
o And under our law of legal succession – kung sila lang ang matitirang
kamag-anak sa mundo they will be legal heirs of each other.
o So even if the marriage was already terminated, because they are
collateral blood relative within the 5 th civil degree, they are intestate heirs
of each other.
o But if one of them – was the one who contracted the marriage in bad faith,
he is disqualified to become the legal heir of the other.

o In testate succession:
o There are likewise disqualification on the part of the one who contracted
the marriage in bad faith to inherit by way of testate or testamentary
succession.

What is the effect of the termination of the subsequent marriage on the

DESIGNATION of one who contracted the marriage in bad faith as a
BENEFICIARY of an INSURANCE POLICY of the other?
o The law said – that the one who contracted the marriage in good faith can
REVOKE the designation of the one who contracted the marriage in bad
faith even if such designation is stated to be IRREVOCABLE.
o NOTE: GEN RULE (in insurance policy): If the designation of beneficiary in
an insurance policy is irrevocable that cannot anymore be change.
o This is one of the exception.
o If it is the subsequent marriage under ART 41 – and the one who was
designated as the beneficiary was the spouse who contracted the
marriage in bad faith, even if the designation was irrevocable, the other
party can still revoke such designation.

o NOTE: If only one of the contracting parties in the subsequent marriage

under ART 41 – if only one acted in bad faith, the marriage (regardless
of whether it is the spouse or the subsequent spouse who contracted in
bad faith) is perfectly valid.
o It is not even voidable. It is perfectly valid.
o Except that it can be terminated and except that upon termination, may
epekto yung having acted in bad faith.

o NOTE: But if both parties in the subsequent marriage under ART 41 –

acted in bad faith, this time the marriage will become VOID AB INITIO
pursuant to ART 44 of FC.

What are the effects? What will happen to that donation propter
nuptias?
o ANS: We will have to distinguish this time:

Page | 67
 o If the marriage is void – because both of the parties in the subsequent
marriage acted in bad faith – we will have to distinguish between two (2)
kinds of donation propter nuptias.

Two (2) KINDS of DONATION propter nuptias:

1) First Kind: If the donation is between the spouses; and
o The donee is one of the spouses and the donation is in favor of
one of the spouses.
o So it is a donation between them.
o In order for a donation to be considered a donation propter
nuptias – the donation must be in favor or either one of the
spouses or both of them.
o So that means – the groom and the bride or both the groom and
bride.

2) Second Kind: The donor is another person, not one of the former
spouses.

GO BACK TO ART 44:

o If the marriage is void, because both parties acted in bad faith.
o Take note: Only the donation propter nuptias – between them shall be
revoked by operation of law.
o But with respect to the donation propter nuptias – coming from a third person
donor, that is not revoke by operation of law.
o That is merely revocable – at the instance of the donor pursuant to ART 86
FC.

What about the capacity of the former spouses to inherit from each
other?
o Tingnan nyo and provisions ng ART 44 – there is no disqualification to inherit.
o Ang sabi lang ng ART 44 – any testamentary dispositions existing in favor of
the other, shall be considered as revoked by operation of law.
o In other words, only the provision in a way in favor of either, existing at the
time of the judicial declaration of nullity based on ART 44 – shall be
considered revoked by operation of law.
o So if there is a donee to be executed after the declaration of the nullity of that
marriage – that will be given legal effect
o Because there is no disqualification to inherit by way of testamentary
succession.

LET US GO TO ART 35 (5):

ART 35 (5) – Contemplates of a situation where one of the contracting party has
committed a mistake with respect to the ACTUAL PHYSICAL IDENTITY of the other
contracting party
o So posibli lang yan kung the person are exactly the same in appearance
o Pwede in cases of identical twin na pareho magkamukha

Page | 68
 o Kung yung isa may nunal yung isa wala – the provision of ART 35 (5) will not
apply.
o TAKE NOTE: That the mistake contemplated in Art 35 (5) – is a mistake in
relation to the Actual Physical Identity of the other contracting party.
o NOTE: A void marriage cannot be ratified. So if later on you married the
person whom you thought to be one and the same person, but afterwards it
turned out that it is another person whom you later marry,....even if you have
the turn around after the said marriage (such that you already wanted the one
who you brought into the altar), that act of reversal would not be construed as
a ratification of the said void marriage. Because such void marriage cannot be
ratified after the celebration.
o And regardless of the place of the celebration of the marriage – that marriage
will remain void ab initio.
o Take note, that ART 35 (6) is an exception to the application of lex loci
celebrationis rule in ART 26 para 1.

LET US GO TO: ART 35 (6):

ART 35 (6) – Is a void marriage under ART 53.
o And ART 53 is a marriage – which is void because of FAILURE to COMPLY
with the procedural requirements of ART 52.
o So in relation to ART 35 (6) – we will be reading it in conjunction with ART 53
and 52

What is the situation contemplated in ART 52?

o ART 52 contemplates of the existence of a prior marriage
o But that prior marriage had already been terminated
o It contemplates of a situation that the former marriage; the prior marriage was
either voidable or void.
o But that prior marriage was already terminated because there was already a
final judgment of annulment or declaration of nullity of a void marriage.
o EXCEPT that the judgment of annulment or declaration of nullity was not
REPORTED.

WHEN MUST THE JUDGMENT BE REPORTED?

o If it is annulment of declaration of nullity – where are you required to record
it?
o Depende:
o You are required to record the judgment – in the office of the local civil registrar
of the place where the marriage was terminated. In the place where it was
reported.
o But likewise, if the Family Court which terminate the prior marriage – is
located/situated in a locality different from where the terminated marriage was
registered, the new rule likewise required that there must also be a recording
of the judgment in the Family Court of which the local civil registrar in which the
Family court is situated.
o So the judgment must at least be recorded – in two civil registrar
 In the LCR where the marriage was reported; and

Page | 69
  In the place where the Family Court is located/situated.
o It is not only the judgment that is required to be recorded but likewise the
distribution/partition of the property of each spouses after liquidation.
o WHERE? In the LCR as discussed above and the appropriate civil registry if it
involves REAL properties.
o Likewise the distribution of the delivered Presumptive Legitime of the children
– are likewise required to be registered.
o Both in the local civil registry and the appropriate registry of property.
o Those procedural requirements must be complied with by the parties to the
terminated marriage.
o WHY? Because if they failed to comply with this procedural requirement and
you contract a subsequent marriage – the subsequent marriage is also Void ab
initio.
o The GROUND: Is simply, because of failure to comply with the procedural
requirement outlined in ART 52.

Will they be liable for Damages? Will they be liable for Bigamy? If they will
contract the subsequent marriage without compliance to the requirement
of ART 52?
o ANS: NO.
o Because there is already a judgment terminating the previous marriage.
o So there is no liability for bigamy.
o So that is the void marriage contemplated in ART 52.
o It speaks of a void marriage
o It refers to the subsequent marriage which was celebrated in the absence of
compliance with the procedural requirements in ART 52 of the FC

PSYCHOLOGICAL INCAPACITY:
IS PSYCHOLOGICAL INCAPACITY DOES IT REFERS TO ANY MENTAL
ILLNESS?
o NO.
o Psychological incapacity is different from mental insanity.
o PI is much graver from mental insanity. PI is not equivalent to mental insanity.
o Mental insanity will only means that the marriage is voidable.
o But PI will render the marriage void ab initio.
o PI does not refer to any mental sickness.
o The SC also said that PI does not refer to any PHYSICAL INCAPACITY.
o Instead, PI refers to certain psychological disabilities or disorder which is
required to be grave or serious in such a way that it renders the parties
suffering from it; INCAPABLE of understanding the legal nature of the marital
bond that he had entered into and for which reason the party was totally
unable to fulfil the essential marital obligations.

Page | 70
o In order for PI to result in a void marriage – the SC in a number of cases
characterize the PI as:

CHARACTERISTICS OF PI:

1. IT MUST BE GRAVE OR SERIOUS – in such a way that it renders the

parties suffering from it totally incapable of understanding the legal nature
of the marital bond.
o And for that reason it renders the parties totally unable to fulfil the
essential marital obligations.
o TAKE NOTE: There must be an ADDED INABILITY or
INSENSITIVITY to comply with the essential marital obligation.
o PI must be distinguish from mere REFUSAL to comply with the
essential marital obligation.
o Kung tamad, batugan lang that is not PI – you are merely refusing to
comply.
o The person we called as suffering from PI – is someone who is
totally unable or there are added inability, insensitivity to fulfil the
essential marital obligation because of certain psychological
disorder.
2. JURIDICAL ANTECEDENTS - And it is necessary that that
PSYCHOLOGICAL DISORDER must be ROOTED in the history of the
person declared to be psychologically incapacitated.
o Yun ang tinatawag nating JURIDICAL ANTECEDENTS.
o Yung PI nya, it must have its roots. May pinanggalingan.
o It is rooted in the history of the respondent ANTE-DATING from the
celebration of the marriage or at least that incapacity must be
EXISTING at the time of the celebration of the marriage.
o Or such manifestation may come out only after the celebration.
o But it must be necessary that that incapacity must be present at the
time of the celebration of the marriage.

3. The psychological disorder must be INCURABLE: - It is necessary that

the psychological disorder that he is suffering must be INCURABLE.

What if the marriage has once been declared void because I was
said to be suffering from PI. Will that mean that I cannot anymore
enter into a valid marriage?
o Ibig bang sabihin na lahat ng kasal mo will become void ab initio
because PI is supposed to be incurable?
o NO. The SC had the occasion to state that the incapacity may either
be ABSOLUTE or RELATIVE.
o The incapacity is ABSOLUTE - if you are incapacitated in relation
to ALL MEMBERS of the opposite sex.
o But if you are incapacitated only in relation to your present
partner/present spouse – it is RELATIVE INCAPACITY.
o And the presumption of the law is that if you are declared
incapacitated once, you are merely RELATIVELY INCAPACITATED
and not ABSOLUTELY INCAPACITATED.
Page | 71
 o So hindi ibig sabihin na once you are declared psychologically
incapacitated you are no longer capable of entering into a valid
marriage.

The SC based on certain sets of facts – it declared the respondent

psychologically incapacitated.
 But at the same time, using the same sets of facts as basis, the court awarded
damages in favor of the petitioner based on the same sets of facts (based on a
case decided by RTC and the CA).
 The award of moral damages was because that those actions of the respondent
resulted into the injury to the petitioner and there was WILFULNESS and BAD
FAITH in the commission of those acts.
 When that case reach the attention of the SC. It said that hindi pwede yun.
 Bakit hindi pwede?
 If you declared a person psychologically incapacitated it needs that the actions
of those persons were in good times.
 Bakit? A person suffering from psychological incapacity is completely unable, he
has that utter inability to know the legal nature of the marital bond that he had
entered into.
 And for that reason he has that utter inability or insensitivity to comply with the
marital essential obligations.
 In other words his actions were not wilful – which is a requirement for the award
of moral damages.
 The important requirement for the award of moral damages – that the action of
respondent was DONE WILFULLY and WITH BAD FAITH.
 So the 2 decisions of the trial court are inconsistent with each other.

Ruling of SC in MARCOS VS MARCOS:

o It is now the settled jurisprudence.
 It is not a condition sine quanon for a declaration of PI that the respondent or the
person who is psychologically incapacitated must be subjected to personal
examination by physician or either a clinical psychologist before he can be
declared psychologically incapacitated.
 That is not a requirement.
 Because afterall, what is important according to the SC – is the TOTALITY of the
EVIDENCE must support the findings of the existence of PI.
 You will be able to appreciate the importance of that ruling if you will go into
practice of a family law where you will be handling cases on the grounds of PI.
 Because if you be handling a case of PI – normally the one na magpainterview
sa clinical psychologist will be the petitioner.
 And the respondent will be absent.
 Dapat absent sya.
 Bakit? If the respondent was present during the examination, he will have to
participate at the trial.
 Kung hindi that will indicate the existence of collusion.
 So if he participated in the clinical trial he, must participate actively.
 Likewise, if there is no opposition to the petition chances are, that the petition
will be denied.

Page | 72
 NOTE: There are a number of marriages that has been terminated on the
ground of PI, simply because the judgment became final and executory within
the trial court level. There was no appeal. Once there will be appeal chances are
that that petition will be denied. Because the requirement of PI are not stringent.
 Once there will be an appeal chances are – that petition will be denied.

Is it necessary to attach the expert opinion in the petition for declaration of

the absolute nullity of the marriage on the grounds of PI?
 That was required before.
 But it has been clarified in AM No. 02-11-10-SC – that that expert opinion is not
required to be attached in the petition.
 And in fact, the need for expert testimony will only be discussed during the PRE-
TRIAL if there is a need for it.

Can you prove the existence of PI without the nod of an expert witness?
 Pwede that is possible – kung talagang masyadong malala yung facts of the
case...but it will be very difficult.

 The case related to this is Antonio vs Reyes which will be discussed later.
 You can easily prove the existence of PI even without the help of an expert
witness.

In the case of Republic vs CA & MOLINA: (G.R. No. 108763 February 13, 1997)
 There were certain guidelines that were promulgated by the SC involving cases
of PI.
 One of which is the requirement of certification coming from the office of the
Solicitor General.
 In that ruling SC said:
 A case of PI cannot be decided without the certification coming from the office of
SG either in opposition or in support of the petition.
 But again take note that 02-11-10 – had already dispensed that requirement of
certification coming from the SG. That is not anymore required.

In the case of Republic vs Quintero-Hamano (GR No. 169498, May 20, 2004):
 The CA relaxed the guidelines in Molina – simply because it is a case of mixed
marriage and the person to be declared psychologically incapacitated was a
foreigner.
 So the CA relaxed the guidelines in Molina case.
 When that case reached the SC – the SC said that we cannot relaxed the
guidelines in the Molina simply because it is a case of mixed marriage and the
respondent was a foreigner.
 The court explained that the case of PI will have to be decided on the basis of
the guidelines issued by the court.
 And that guideline applies regardless of the citizenship of the person concerned.
 Because under the code, the rules of PI will only be settled on the basis of
human study, of human behavior in general regardless of nationality.

WHAT ARE THE GUIDELINES IN MOLINA?

Page | 73
1) The plaintiff has the burden of showing the nullity of the marriage.
 Our laws cherish the validity of marriage and unity of the family, so
doubt is resolved in favor of the existence/continuation of the
marriage.

2) The ROOT CAUSE of PI must be:

a) Medically or clinically identified;
b) Alleged in the complaint;
c) Sufficiently proven by experts; and
d) Clearly explained in the decision
 Art 36 requires that the incapacity must be psychological not physical
 Although its manifestations and symptoms may be physical.
 Expert evidence may be required by qualified psychiatrist and clinical
psychologist.

3) The PI must be proven to be existing at the “time of the celebration of

the marriage”
 The evidence must show that the illness was existing when the parties
exchange their “I dos”
 The manifestation of the illness need not be perceivable at such time,
but the illness itself must have attached at such moment, or prior
thereto.

4) Such incapacity must also be shown to be medically or clinically

permanent or incurable.
 The incurability must be absolute or even relative only in regard to the
other spouse and not necessarily absolutely against everyone of the
same sex.
 ABSOLUTE – with respect to other persons of the opposite
sex
 RELATIVE – PI with respect to the wife.
 Such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job.

5) Such illness must be GRAVE enough to bring about the disability of the
party to assume the essential obligations of marriage.
 Thus, mild characteriological peculiarities; mood swing/changes;
occasional emotional outbursts cannot be accepted as root causes;

6) The essential marital obligation must be those embraced in ART 68 to 71

of FC as regards the HUSBAND AND WIFE; and
 As well as Arts 220, 221 and 225 of FC – in regard to PARENTS AND
CHILDREN.
 Such non-complied marital obligations must also be stated in the
petition.
 Proven by evidence and included in the test of the decision.

Page | 74
 7) Interpretations given by National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines.
 Though while not controlling or decisive, should be given great respect
by our court.

8) The Trial Court – must order the fiscal or prosecuting attorney and the
Solicitor General to appear as counsel for the state.
 No decision shall be handed down unless the SG issues a certification,
which will be quoted in the decision, briefly stating therein his reasons
for his agreement or opposition to the petition, as the case maybe.

 Since 1988 up to year 2008 – and of the numerous cases that reach the SC on
the grounds of PI, there were only TWO (2) CASES that were allowed by the
court to be terminated on the ground of PI.

1) The first one is - CHI MIN CHOI VS CA:

 The case of Chinese who refused to touch the wife for more than two
years.
 During the honeymoon, nothing happened until two years.
 And after examination of the woman – it was found out that she
remains a virgin – never been touch never been taken.
 And eventually the woman filed a petition for declaration of nullity of the
marriage on the grounds of PI.
 SC said: Yes that man was PI.
 The continuous refusal by a man, by a party – to engage in sexual
intercourse with the spouse with senseless refusal without any
justifiable reason, indicates the existence of PI according to the law.
 Sex is very important in marriage.
 That situation was created for purposes of procreation according to the
law.

2) The 2nd case: 2007 case of Antonio vs Reyes: (G.R. No. 155800, March
10, 2006)

 In this case the wife – was a pathological and congenital liar.

 Hindi lang sya congenital liar – she was a pathological one to the point
that she believes in that lies.
 She was a liar who cannot anymore distinguish what was fiction and
what was real.
 In this case, the wife is suffering from a kind of psychological disorder
where she could no longer distinguish between fiction and reality.
 According to the court – someone who cannot distinguish between
what is real and what is fiction cannot likewise have that ability to
comprehend the legal nature of the marital bond.
 And for that reason she is likewise totally unable to fulfil the essential
marital obligations.
 Anu ba yung ginagawa nung misis in the case of Antonio vs Reyes?

Page | 75
  She created fictitious friends. Siguro malungkot sya, kumuha sya ng
mga kaibigan na fictitious – si Ana at si Maria.
 Kaya lang, hindi lng basta ganun – si Ana at si Maria, sumusulat ng
mga letters nya.
 How? To her.
 Anu ginagawa nila? Nagkukuwento island and write letters to the
husband about the wife.
 And kwento ng mga kaibigan that the wife is a recording artist.
 Not only that. She was the number one recording artist of that popular
recording firm with gross annual sales of 2M.
 Hindi lng yun. To her OB GYNE – she likewise introduce herself as a
Doctor. Sabi nya she was a pedia. Hindi lang singer doctor pa.
 Worse, she believes in those lies. Sa kanya totoo yun.
 So kung ganito naman na kalala ang kaso – you do not need the help
of an expert witness.
 You will be able to prove the existence of PI – without the need of an
expert testimony.
 Other cases: TERRE vs TERRE; HALILI vs HALILI - other prevailing
jurisprudence.

ARTICLE 37 FC: INCESTOUS MARRIAGES:

 The term incestuous marriage is a technical term.
 In our jurisdiction there are only TWO (2) marriages which are void by reason
that they are Incestous:

TWO (2) KINDS OF INCESTOUS MARRIAGE:

1) Marriages involving ASCENDANTS and DESCENDANTS – of whatever
degree and whether the relationship be legitimate or illegitimate:
2) Marriages involving brothers and sisters – whether of FULL BLOOD or HALF
BLOOD and whether the relationship be legitimate or illegitimate.
 Those are the marriages considered to be INCESTUOUS.
 Incestuous – marriages na “kadiri in Filipino”

ARTICLE 38: MARRIAGES VOID BY REASON OF PUBLIC POLICY:

 These are marriages that are void simply by reason of PUBLIC POLICY.
 So pwede magbago ang public policy.
 There were come a time that these marriages will no longer be prohibited.

 EX. What are those marriages that are void by reason of public policy?

MARRIAGES VOID BY REASON OF PUBLIC POLICY:

1) Marriages between collateral blood relatives – up to the 4 th Civil Degree

– whether their relationship be legitimate or illegitimate.

 What are those marriages within the 4th civil degree?

Page | 76
  2nd degree relative mo – the brother and sister. They are
collateral relative within the 4th civil degree.
 That those marriages are void not simply because of public
policy because they incestuous under ART 37. So count yun.
 Marriages between an Aunt and a Nephew. (3 rd degree)
 Marriages between an uncle and a niece. (3 rd degree)
 Punta tayo sa 4th degree:
 First cousins – are within the 4th degree;
 So marriages involving 1st cousins are void marriage by
reason of public policy.
 So you can marry your 2nd cousins – that is not prohibited by our
law.
 So marriages between a 2nd cousins – is a valid marriage.

2) Marriages between a step parent and a step child:

 Ex. Husband No. 1 and Wife No. 2:
 They married.
 X will now be the step child of wife no. 2 and Y a step child of
Husband No. 1.
 So X and Y are step brother and sister
 Can the marriage between X and Y valid?
 That is not prohibited by ART 38.
 This used to be prohibited under the Civil Code.
 The CC consider this a marriage that is void by reason of
public policy.
 Kaya lang nagbago ang Public Policy natin – this is no
longer prohibited.
 This is now a valid marriage.
 Since this is not prohibited, then this is allowed.
 WHY? Because the law is in favor of the validity of
marriages.
 If not prohibited that marriage is valid, that is allowed.

 So what is contemplated by the law on marriage between W2

and Y; and H1 and X.
 There is a professor in Rockwell – he said that the basis
of that prohibition – is the marriage between H1 and W2
 Tanggalin mo daw yung marriage nay an – there is no
longer a basis for the prohibition.
 So parang ang sinasabi ng professor na yun – if the
marriage between H1 and W2 will no longer be there, for
whatever reason, either one of them dies, or the marriage
was annulled or declared null and void, there is no more
basis for the prohibition.
 Therefore W2 can now marry Y; and H1 can now marry
X.
 If we will to follow that kind of reasoning – so it would
appear that the prohibition – attaches only at the time that
the marriage is still there.
 That kind of interpretation will be absurd.
Page | 77
  Because if the marriage between W2 and H1 will still be
there – then W2 cannot marry Y and H1cannot marry X.
 That will be a bigamous marriage.
 NOTE: ART 38 contemplates a situation – where the marriage
between the two – is no longer there.
 So by that severance because the marriage is no longer there,
they are supposed to be allowed to marry each other.
 But by reason of public policy – they cannot and will not be
allowed to marry each other.
 WHY? Kasi in our culture, para mo na ring anak yung step son
or daughter mo.

 Ex. X is married to Y.
 Y is a child in law of F.
 Again – there is an interpretation in Rockwell – that since
the basis of this prohibition is the marriage of X and Y; or
the marriage of X and M,,,,,kung wala na ang marriage na
ito, and they are already free, M can now marry Y.
 Parang ganun ang interpretation.
 Again that kind of interpretation will be absurd
 Because the prohibition will only attach at the time that
the marriage is still there.
 Obviously Y cannot marry F, if Y is still married to X
 That will be a bigamous marriage.

 So ART 38 – applies to a situation – where Y can now marry F,

because the marriage is no longer there – and likewise since the
marriage is no longer there, for whatever reason.....
 But by reason of public policy, they cannot.
 Simply lang naman yun – can you legitimize yourself to marry
your biyenan.
 Precisely, that is the reason why our public policy prohibits it.
 NOTE: They are free to marry each other – but by reason of
public policy – they are prohibited.
 If they will marry each other – then that is a void marriage
 Once that relationship between them as parent and child exist,
that will forever remain.
 Kahit mamatay pa yung mga asawa nila.

LET US GO TO: PROHIBITION BY REASON OF ADOPTIVE RELATIONSHIP:

 The adopter and the adopted – the adopter is prohibited from marrying the
adopted and the surviving spouse of the adopted.

3) The adopter and the adopted – the adopter is prohibited from marrying
the adopted and the surviving spouse of the adopter.

ON THE PART OF THE ADOPTED AND THE SURVIVING SPOUSE OF

THE ADOPTED:
 TAKE NOTE: That the law uses the TERM – SURVIVING SPOUSE.
 So the reason for the termination of the marriage – must be DEATH.
Page | 78
  If it is not DEATH – there is no surviving spouse.
 So if the marriage was terminated – if the marriage between the adopted
and his or her spouse was terminated not by reason of DEATH – there is
no surviving spouse.
 There could be a FORMER SPOUSE.
 So if it is a case of marriage between the adopter and the former spouse
of the adopted – it appears that that is NOT PROHIBITED.
 Take note that what is not prohibited is allowed.
 Because the law is in favor of the validity of marriages.

ON THE PART OF THE ADOPTED:

The Prohibitions Are:

1) The ADOPTED – is prohibited from marrying – the ADOPTER;
2) The surviving spouse of the adopter;
3) And ANY legitimate child of the adopter; and
4) Another adopted child – of the same adopter.
 Take note that what is prohibited – is a marriage between the adopted, and
another legitimate child of the adopter.
 So if the marriage will involve the ADOPTED – and an ILLEGITIMATE
CHILD (adopted + Illegitimate child) – of the adopter, that is NOT
PROHIBITED.
 Since that is not prohibited – that is allowed.
 The law is in favor of validity of marriages.

4) When there is an INTENTIONAL KILLING of one of the spouses, precisely

for the PURPOSE of marrying the surviving spouse – that marriage is VOID
AB INITIO:
 Simple, that killing must be animated by that purpose of doing away with
one of the spouses, precisely for the purpose of marrying the surviving.
 The killing must be an Intentional one
 Because the law requires that the purpose of the killing – must be to do
away with the “SAGABAL”.
 And because the purpose is to marry the surviving spouse.
 The law does not require that the surviving spouse – must have
knowledge or committing in complicity with the other in order for the
marriage to be void.
 Kahit hindi nya alam, the marriage will be void.
 Even if the SS does not have knowledge – of the purpose of the other in
killing the deceased spouse – the subsequent marriage will likewise be
void ab initio.
 NOTE: The law likewise does not require a CRIMINAL CONVICTION
before a marriage can be declared void ab initio.
 Because the guilt can be proven – in the civil action for declaration of the
nullity of the marriage.

If you are an avid fun of Ramon Tulfo – and you are reading the column of
Ramon Tulfo:
 Matagal ng may binabanatan yan si Tulfo.
Page | 79
  At isa sa mga sinasabi ni Tulfo – there was this METROCOM during the time
of Marcos.
 This man was a former member of Metrocom.
 He was then assigned in Camp Crame.
 During the time that he was in Metrocom officer in Camp Crame – meron
silang prisoner in Crame
 Namimili daw sila ng asawa – pag maganda daw ang asawa
 So kwento ni Tulfo – nagustuhan nung Metrocom – yung asawa nung detainee
nila
 So ang ginawa daw – pinasagasaan sa pison yung prisoner. And the prisoner
died.
 And then eventually the Metrocom officer married the surviving spouse of the
prisoner.
 And the Metrocom later on became the Chief of the PNP, then later on became
a Senator and who became a former fugitive from justice then again became a
Senator.
 So kwento lang naman yan ni Tulfo, we don’t know if that was true.

o If that could have been true – that is an example of marriage which is void by
reason of public policy
o Because there was an intentional killing of one of the spouses – for the purpose
precisely of marrying the surviving.

LET US DISCUSS: ARTICLE 40 FC:

ARTICLE 40:
o Does ART 40 merely provides for the rule of procedure or is it a definition of a
void marriage different from the others?
o That is the question raised in relation to ART 40.
o Is it merely a rule of procedure?
o Or is it definition of a void marriage different from the others?
 If we will to consider ART 40 by itself – parang ang dating sa atin it is
merely a rule of procedure.
 But in relation to other provisions of the FC – it will become clear that Art
40 is not mere rule of procedure.
 That it is by itself a definition of a VOID marriage different from the
others.
 EX: If the subsequent marriage was entered into – in violation of
the requirements of ART 40, will that marriage fall under a
Bigamous marriage in ART 35 (4)?
 ANS: NO. WHY NOT?
 ART 35 (4) contemplates of a situation –
 In that ART 35 para 4 – the prior marriage must either be
valid or voidable.
 That is the bigamous marriage that is being referred to in
Art 35 para 4
 The prior marriage must either be valid or voidable.

Page | 80
  And during the subsistence of this marriage, one of the
parties thereto contracted a subsequent marriage.
 Yan ang tinatawag natin na bigamous marriage under ART
35 para 4.

o But ART 40 – contemplates of a different situation.

o In ART 40 – the prior marriage must be indeed VOID AB INITIO.
o ART 40, the prior marriage must be indeed void ab initio.
o Because if the marriage is valid or voidable – the marriage was void by reason
of ART 35 (4).
o And ART 35 (4) is different from ART 40?

o WHY? Because in the subsequent marriage is bigamous by reason of 35 (4)

 The PROPERTY REGIME of that subsequent BIGAMOUS or void
marriage – is ART 148 FC.
o But if the 1st marriage is void and one of the parties thereto contracted a
subsequent marriage – without first securing a judicial declaration of the nullity
of the 1st void marriage – the subsequent marriage is void not by reason of
ART 35 (4), but by reason of ART 40.
 And the PROPERTY REGIME of this void marriage is not ART 148
 It would still be either Absolute Community or Conjugal Partnership of
Gain (ACP/CPG), as the case maybe;
 That should be clear from the provision of ART 50 of FC.
 Sabi ng ART 50 of the FC – the effects of PARA 2 of ART 43 are
applicable to a marriage which is void under ART 40.
 At anu ang sinasabi ng provision ng ART 43 PARA 2 – the absolute
community or the conjugal partnership (ACP/CPG) is TERMINATED
and shall be SUBJECTED TO LIQUIDATION.
 NOTE: We will be discussing in the next few days – that this is the only
void marriage – where exceptionally the property regime of ACP/CPG
may possibly exist.
 So kung ito lang ang titingnan nyo – it will become clear, that ART 35 (4)
is different from ART 40 they are not the same.

o The situation contemplated in ART 40 – is that the prior marriage must be

indeed void ab initio.
o But one of the parties thereto contracted a subsequent marriage without 1 st
securing a judicial declaration of the nullity of that prior void marriage.

Q? Merong ibang nagsasabi – that the subsequent marriage – in this

situation is void BY REASON of ART 53
o So parang sinasabi ng ibang commentators there should be __ between ART
40 and ART 53
o So parang sinasabi ng ilang commentators - that if any of the parties in the
prior void marriage – contracted a subsequent marriage without complying with
the provision of ART 40 – the marriage will be considered void pursuant to ART
53

Page | 81
o So that kind of interpretation – does not recognize ART 40 as a separate void
marriage.

Is that interpretation correct?

Pareho ba ang ART 53 at ART 40?
o NO. They are different.

o ART 53 – contemplates of a situation where in the prior marriage, which might

either be VOIDABLE or VOID – take note that in ART 52, the prior marriage is
either void or voidable.
o But the prior void or voidable marriage – had already been TERMINATED.
o Because of the judgment of annulment or the declaration of nullity.
o But in ART 40 – the marriage is only void – and that marriage was not yet
terminated.
o Because one of the parties thereto – contracted a subsequent marriage –
without securing first a judicial declaration of the nullity of the 1 st.

DISTINCTIONS:
1. FIRST: In ART 40 – there is liability for the crime of BIGAMY – because
there has yet to be a judgment legally terminating the prior marriage.
In ART 53 – there is no liability of the crime of BIGAMY because there was
already a judgment terminating the prior marriage.

2. SECONDLY: In ART 53 – the children of void marriages under ART 53 –

are LEGITIMATE.
o That is clear from the provisions of ART 54.
 Children who are legitimate per ART 54:
 ART 36 – Pyschological Incapacity – children
conceived or born before the judgment of annulment or
absolute nullity of marriage under this.
 ART 53 – children conceived or born of subsequent
marriage under this.

How about the children of void marriages under ART 40?

o Tingnan natin ang provision of ART 50 – sabi dito, the effects of ART
43 PARA 2; 3;4; and PARA 5 – are APPLICABLE to marriages which
are void by reason of ART 40
o Take note: the provision of PARA 1 of ART 43 WAS LEFT OUT.
o So the PARA 1 of ART 43 – was not been complied. To a marriage
which is void under Art 40.
o Anu ang sinasabi ng PARA 1? – the children are legitimate.
o So it is the intention of ART 50 – that the children of marriages which
are void by reason of ART 40 – are NOT LEGITIMATE.
o The children are ILLEGITIMATE.
o So from those we can safely say – that ART 40 is different from the
provisions of ART 53.
o So my point is – ART 40 is a definition of a marriage which is
different from ART 35 (4) and different from ART 53.

Page | 82
 o And the situation contemplated in ART 40 – is that there must be a
prior void marriage and one of the parties thereto contracted a
subsequent marriage – without first securing a judicial declaration of
the nullity of the prior void marriage.

So what would be the effect of that in the subsequent marriage?

o ANS: The subsequent marriage is VOID.

What is the ground for its nullity?

o ANS: ART 40 itself.
o That is a definition by itself for a void marriage.
o And there will be a liability for the commission of a crime of BIGAMY
as ruled by the SC.
o REFRESH: If the prior void marriage in the prior marriage – was void
by reason other than the absence of Marriage Ceremony – if the
prior marriage was void other than the absence of Marriage
Ceremony; there is a need to comply with the provision of ART 40
(mandatory ito).
o Otherwise the subsequent marriage is void – and there will be a
liability for the crime of BIGAMY.
o But if the reason for the nullity of the 1 st marriage – is ABSENCE OF
MARRIAGE CEREMONY – then there is no need to comply with the
provision of ART 40.
o So the 2nd will become valid – and there will be no liability for
Bigamy.

LET US GO TO: ANNULMENT:

o The term annulment – presupposes that there must be something to be
annulled.
o So the term annulment must be used in relation to a marriage which is
VOIDABLE.
o REFRAIN – from using the TERM ANNULMENT – if you are married to a
marriage which is VOID AB INITIO.
o That will not be correct.
o If the marriage is void – there is nothing to annul.
o Pag sinabi mong to ANNUL – it presupposes the existence of a valid marriage
which can be INVALIDATED.
o So to be more PRECISE, to accurate and to be correct – refrain from using the
term annulment – if you are married to a marriage which is void ab initio. That
will not be correct.

In ANNULMENT – the marriage is VALID:

o BUT....there is a GROUND to INVALIDATE the marriage.
o So take note in annulment – it is the judgement of the court that will make the
marriage INVALID.
o In the absence of that court judgment - declaring such previous voidable
marriage void – the marriage continuous to be valid.
o That is the nature of a VOIDABLE marriage.
Page | 83
o THE NATURE OF A VOIDABLE MARRIAGE: “Valid until and unless Annulled”
by a judgment of a competent court.
o So in the absence of a judgment of annulment – that voidable marriage is
considered valid.
o But to distinguish it from a perfectly valid marriage – in voidable marriages –
while the marriage is valid there is a ground to invalidate it.
o But in void marriages – take note that the judgment of the court is not that
which produces the nullity of the marriage
o Because the nullity of the marriage – is already present from the very
beginning.
o Kaya ang tawag natin sa petition – is simply a declaration of the state of nullity
of the marriage which is already present from the very beginning.
o Except that in relation to marriage – the parties cannot decide for themselves –
whether or not their marriage is VOID.
o It is only the competent court that can do that.

o AGAIN: In void marriages – the judgment of the court – is not that produces
the nullity of the marriage. Because the nullity of the marriage is already
present from the very beginning.
o A voidable marriage is a valid marriage but it is suffering form a DEFECT.
o Kaya nga sometimes we referred to a voidable marriage as a defective
marriage.
o So there is a REASON/GROUND – to invalidate it.

What is the nature of that defense?

o TAKE NOTE: That a voidable marriage – is a marriage where there is a defect
in the GIVING of the CONSENT.
o GROUND for VOIDABLE MARRIAGE – is the giving of the consent.
o Consent was given – but that consent that was given is defective either
because of:
 Lack of parental consent – because the parties to it is suffering from
mental insanity; or
 There was a VITIATION of CONSENT ; or
 There was PHYSICAL INCAPABILITY of consummating the marriage;
or
 Because one of the parties is suffering from a transmissible disease or
STD which is serious and incurable

Can a voidable marriage be attack COLLATERALLY?

o NO.
o A voidable marriage can only be questioned – by way of a DIRECT ACTION;

And what is the direct action to question the validity of a voidable

marriage?
o It is a PETITION for ANNULMENT.
o So in any other kind of action – you may not question the validity of a voidable
marriage.
o It cannot be subjected to a collateral attack.
Page | 84
o Dapat must always be frontal.

o A voidable marriage can only be questioned – during the LIFETIME OF THE

BOTH OF THE SPOUSES.
o If the marriage was terminated – by reason of DEATH, and by reason of
annulment, take note that at the time that it was terminated it was a valid
marriage.
o Even if there is a ground to invalidate the marriage – but the reason for the
termination of the voidable marriage – is DEATH, take note that at the time that
it was terminated – it was a valid marriage.
o So that would produce the effect of – the marriage was valid and those effects
will forever remain.
o NOTE: So the effect of the marriage – will no longer be questioned.
o So upon the death of one of the spouses – no court petition for annulment can
entertained/initiated.
o So what is the effect? That marriage will forever be remain as valid.
o Isipin nyo lang – a voidable marriage can be annulled. It can only be
invalidated by a judgment of the court.
o It is the judgment of the court which produces the invalidity of the marriage
o In the absence of that judgment – the marriage will forever be remain valid

DEFECT OF MARRIAGE SUBJECT TO RATIFICATION:

o But the DEFECT of the marriage can be RATIFIED:
o A voidable marriage is subject to ratification.
o As to the manner of ratification – we will be discussing that later.

PETITION for ANNULMENT – SUBJECT TO PRESCRIPTION:

o But the action for annulment/the petition for annulment – is subject to
PRESCRIPTIVE PERIOD.
o GENERAL RULE: The DEFECT of voidable marriage – can be ratified
o EXCEPT: For the ground in PARA 5 & 6 of ART 45
o In those other grounds – the defect of the marriage is not subject to ratification
o So if the grounds is physical incapability of consummating the marriage or the
existence of STD is serious and incurable – the defect of the marriage is not
subject to ratification:

TWO (2) GROUNDS OF DEFECTIVE OR VOIDABLE MARRIAGES THAT IS

NOT SUBJECT TO RATIFICATION (Per ART 45)
1) Physical incapability of consummating the marriage
2) Existence of STD or transmissible disease – which is serious and
incurable
 Those are the only voidable marriages – were the DEFECT cannot
be ratified
o In all the other the DEFECT can be ratified:

WHAT ARE THOSE THAT CAN BE RATIFIED? (per ART 45)

1. Lack/absence of parental consent
2. Mental Insanity
Page | 85
 3. Fraud
4. Vitiation of Consent
5. X x x x

LET US DISCUSS ONE BY ONE: THE DIFFERENT GROUNDS FOR

RATIFICATION (UNDER ART 45 FC):

ARTICLE 45:
1)PARA 1: LACK/ABSENCE OF PARENTAL CONSENT:
 When is parental consent required? – when one of the parties is at least 18
but below 21.
 If one of the parties is below 18 – the marriage is void.
 But if one of the parties is at least 18 – he has the legal capacity to contract
marriage
 But in order for the consent to be perfectly valid – the law requires that there
must be a parental consent.
 So the effect of absence of Parental Consent – it renders the marriage
defective or voidable or annullable.
 Whose consent is required? Pag sinabing parental consent – dalawa pa ang
magulang (the father/the mother)

Whose consent is necessary?

 That is address by the provision of ART 14 FC
 The CONSENT referred to in ART 45 (1) must be the following in the order
mentioned:
1) Father;
2) Mother
NOTE: That if the CHILD IS LEGITIMATE – it is the consent of the FATHER
(sorry for the ladies – but this is true, this is provided for by the law) – it
is the consent of the father that is required.
 Yun ang tinatawag nating PARENTAL CONSENT – the FATHER’s Consent
(for legitimate child)
 So if it was the mother that gives the consent – the child was legitimated – it
was the mother who gave the consent – but the father is PRESENT and
able to give consent but simply submissive to his wife – then the Marriage
was celebrated WITHOUT Parental Consent and the marriage was voidable.
 NOTE: NO FATHERs CONSENT (PARENTAL CONSENT) = marriage is
defective, voidable or annullable (Grounds: Lack/Absence of Parental
Consent), for a child who is legitimate.

 But if the CHILD IS ILLEGITIMATE: - Since an illegitimate child whose

parental authority is only on the Mother – it is the consent of the mother
which is required by law (if the child is illegitimate).

Who can file the petition for annulment on the ground of lack/absence of
parental consent?
 ANS: IT DEPENDS:

Page | 86
  If the party whose parents did not give their consent – is still the __ one, it is
the person whose consent is required by law who can file the petition for
annulment. The NO CONSENT PARTY will file.
 In other words, the party himself cannot as yet filed the petition for
annulment.
 But once that party – reaches the age of 21 – the right of the parents to file
the petition for annulment will likewise ceased
 It was now the party himself – who can file the petition for annulment.

Within what PERIOD?

 Within 5 years – before the attainment of the age of 21
 Subject to the condition that there was no prior ratification of the defect of
the marriage.
 Within the 5 years period – there was that presumption that there was no
prior ratification of the defect

LET US TALK OF RATIFICATION:

If the grounds is Absence of Parental Consent – who can ratify the defect?
o ANS: Only the PARTY – whose parents are required to give consent – has
the right to ratify the defect of the marriage.
o Take note: That the parents – do not have the right to ratify the defect. Only
the party himself can ratify the defect of the marriage.

When can it be ratified?

o Upon attaining the age of 21.

How can it be ratified?

o So he cannot ratified the defect – prior to the age of 21
o They can only ratify upon reaching the age of 21.

o By simply show to PRE-COHABIT – with other spouse – for how long

would that pre-cohabitation?

o The law does not require for a minimum period.

o So if the pre-cohabitation is short or for 3 months, 5 months – it does not
matter.
o So long as it is a case of PRE-COHABITATION – after attaining the age of
21.

o EX. The party already reaches the age of 21.

o Nakisama pa rin sya sa asawa nya for a period of 1 year – then after the
period of 1 year – nagaway sila,
o So after the 1st year after attaining the age of let say 22 – she now wants to
file a petition for annulment.

Will that petition still prosper?

Page | 87
 o NO. Not anymore.
o The ground for annulment was already extinguished.

What is the effect of ratification?

o Ratification cleanses the contract of its defect from the very beginning.
o So thereby extinguishing the grounds for annulment.

2)PARA 2: MENTAL INSANITY:

o If the time of the celebration of the marriage – and one of the party is
suffering from mental insanity – the consent was given......but the consent
was defective.
o Then the marriage is voidable.

Who can file the petition for annulment?

Can the petition for annulment be filed by the same spouse? Kwidaw
kayo...
o ANS: IT DEPENDS.
o If the other spouse was aware of the other’s insanity – he or she cannot file
the annulment. Wala syang personality.
o In other words, the SANE spouse – can only file the petition for annulment if
he/she WAS NOT AWARE of the others insanity at the time of the
celebration of the marriage.

If she/he was not aware – hanggang kelan nya pwede ifile yung petition
for annulment?
o ANS: During the LIFETIME of the spouses.
o Provided that there was no ratification committed.
o But whether the other spouse has knowledge or not of the others insanity –
the SANE spouse can always file a petition for annulment.

WHEN? Once the insane – regains insanity – or during the period of

Lucid Interval
o Or even if he/she is suffering from insanity – his/her guardians can file on his
behalf – the petition for annulment.

Who can ratify the defect of annulment?

o Take note: It is ONLY the INSANE – who has the right to ratify the defect of
the marriage
o In other words – the SANE spouse has no right to ratify the defect.

How may the insane – ratify the defect of the marriage?

o Once he regains his/her sanity – or during the period of lucid interval if the
insane FREELY chooses to cohabit – with the SANE spouse...that will
amount to ratification.
o So if there was already a ratification of the marriage – take note that what
the effect of ratification is – it will now cure the ground for annulment.

o NOTE: So if the SANE spouse – has the right file the petition for annulment?

Page | 88
 o Pero naunahan sya – ng ratification of the defect.
o The sane spouse cannot anymore file the petition for annulment

3)PARA 3: FRAUD:
o Fraud – as a ground for annulment is technical
o There are only four (4) Instances which our law considers as FRAUD for
purposes of Annulment (provided for under ART 46).
o Other than those four, sabi ng batas:.....NO other MISREPRESENTATION
or DECEIT as to..................... may constitute as fraud for purposes of
annulling the marriage:
 Character
 Health
 Rank
 Fortune
 Chastity

WHAT ARE THE FOUR (4) CIRCUMSTANCES WHICH CONSTITUTE FRAUD

FOR PURPOSES OF ANNULMENT?

1. Non Disclosure of a FINAL CONVICTION – of a crime involving MORAL

TURPITUDE.

 NOTE: The mere NON disclosure without any intent of any

Concealment – the mere non disclosure will already amount to fraud
 What contemplates in this law for non disclosure – is the Final
Conviction – involving moral turpitude.
 But mere concealment – even without any intent – will already amounts
to Fraud.

2. Concealment by the bride – at the time of the celebration of the marriage

– that she was pregnant by another man.

o Since the law speaks of CONCEALMENT – it is necessary that the bride –

at the time of the celebration of the marriage..... must be aware that she was
then pregnant
o Kung hindi nya alam – then there was no concealment
o And in order for that fraud to exist – it is necessary that the other party/that
the groom – was not be aware or need not have been aware – of the others
pregnancy
o So in other words – even in the absence of that knowledge – the groom can
be charged of the annulment of the others pregnancy depending on the
situation.
o Pero kung protruding na yung tiyan nung magpakasal – tapos the groom still
claims to have been unaware of the pregnancy – iba nay un... hindi na nya
pwede sabihin na fraud pa rin yun.
o So you cannot be charged of the existence of the others pregnancy.
Page | 89
3. Concealment of Drug Addiction; Habitual Alcoholism; Lesbianism or
Homosexuality:

o Take note: Those circumstances had already been in existence at the time
of the celebration of the marriage and there was concealment.
o In other words: The other party – must not be aware of the existence of any
of those circumstances.
o In annulment take note – as distinguish from legal separation....... the
ground must be existing at the time of the celebration of the marriage.
o So the drug addiction; habitual alcoholism; lesbianism; homosexuality - if
those existed AFTER the marriage – then that could not be taken as a
ground for annulment.
o It will now be a ground for legal separation:

NOTE: DISTICTION:
a) BEFORE/PRIOR or EXISTING at the time of the marriage (DA;HA;L or
H) – It will be a ground for Annulment for FRAUD
 The cause arises prior to the marriage or it is already existing at
the time of the celebration of the marriage.
b) If AFTER THE MARRIAGE – It will be a ground for Legal Separation.
 Nagging addict ako nung pinakasalan kita

o In legal separation – the cause arise only after the celebration of the
marriage
o Yan ang basic distinction between them.
o So if the other party – was aware of others DA;HA,L or H – then there was
no ground for annulment. There was no fraud.
o And likewise – those cannot be utilize for legal separation
o Because those causes – were already present at the time of the celebration
of the marriage.
o Eh papanu kung hindi mo alam – na ang pinakasalan mo pala homosexual
– at the time of the celebration of the marriage homosexuality already
existed ..... and your were not aware of that. You only discover that after a
year – nakita mo talaga you caught your husband in the act of sexual
intercourse with another man.
o Umuwi sya ng bahay after a week – humingi ng tawad- eh pinatawad mo
naman and you agree to make amend with your husband
o Tumagal kayo after a year – you change your mind, and you now decide to
file a petition

Will that still prosper?

o NO. Not anymore
o Because the defect was already been ratified.

Who can ratify it?

o Only the victim and Not the other spouse

4. CONCEALMENT OF STD OR COMMUNICABLE DISEASE

Page | 90
 o If the STD – existed at the time of the celebration of the marriage and the
spouse was aware of its existence and he or she did not disclose it to the
other
o And the other party was not aware of its existence
o So there was fraud
o Take note that if the ground is fraud – concealment of the STD – that is a
ground of annulment regardless of state of STD –
o Whether the STD is serious or not – or whether it is curable or incurable will
not matter
o Because the ground is not the mere existence of STD
o But the ground is – its concealment or non disclosure
o The defect of marriage can likewise be ratified.

Who can ratify?

o And only the victim – has the right to ratified the marriage
o HOW? By choosing to freely cohabit with the other UPON the DISCOVERY
of the fraud

What is the period for annulment?

o 5 years – upon discovery of the fraud
o Provided that there was no ratification
o So nalaman mo na homosexual pala – but you live with him for a period of 1
year – it will amount to the ratification of the defect.
o So after a year – you cannot anymore change your mind and file a petition
for declaration of annulment
o The annulment will no longer prosper – because the ground had already
been removed

4)PARA 4: VITIATION OF CONSENT:

o Consent may be vitiated either by Force, Intimidation of Undue Influence
(THREATS)
o With respect to these grounds take note that...in threat to enforce once legal
claim will not vitiate consent.
o Will not annul the consent.
o So the marriage is not annullable – if the threat is for the enforcement of a
legal claim.
o EX. So ngayun nagrereview kayo sa examination, nakabuntis kayo – tapos
sabi nung babae.... lagot ka isusumbong kita sa SC..hindi ka ngaun
makakakuha ng exam kung hindi mo ako pakakasalan.
o So pinamili ka kasal o pagiging lawyer mo? – so sabi mo kasal,,,,but after
passing the bar and after taking your oath - you file a petition for annulment
on the ground that your consent was vitiated
o Take note – the marriage is not annullable
o IN THREAT TO ENFORCE ONCE LEGAL CLAIM DOES NOT VITIATE
CONSENT. It does not annul consent.

5)PARA 5: PHYSICAL INCAPABILITY OF CONSUMMATING THE MARRIAGE

o It means physical disability of consummating sexual intercourse
Page | 91
 o So para 5 refers to - IMPOTENCY
o Take note that it is an impotency – which serves as a ground for annulment
o But NOT STERILITY
o In impotency – kahit anu gawin mo.. ayaw talaga mag flag raising....ayaw
talaga
o But pag sinabi mong STERILE – pwedeng lumaban yan
o So the grounds for annulment – is IMPOTENCY and NOT STERILITY
o And take note that if the ground is IMPOTENCY – it is incumbent on the part
of the petitioner to file the petition for annulment on the ground of impotency
on the part of the other party
o EXCEPT: If the DOCTRINE of TRENIAL COHABITATION – is applicable

What is the doctrine of Trenial Cohabitation?

o If after 3 years – from the time of the celebration of the marriage the woman
will remain a virgin that will be a presumption that the husband is
IMPOTENT.
o So the burden will now be shifted to the husband to prove that he is
impotent
o If the ground is impotency take note that – the defect of the marriage is not
subject to ratification.
o There is no ratification of the defect of the marriage if it is Ground No. 5.

6)GROUND NO. 6 PARA 6: THE MERE EXISTENCE OF STD AT THE TIME OF

THE CELEBRATION OF THE MARRIAGE BY ITSELF IS A GROUND FOR
ANNULMENT:
o But this time – it is necessary that the STD – must be of SERIOUS and
INCURABLE nature.
o If the ground is CONCEALMENT take note – as discussed earlier –
regardless of the nature of the STD – because the ground is afterall Fraud.
o But if the ground is the MERE EXISTENCE of STD – it must be necessary
that the STD must be SERIOUS AND INCURABLE or existing at the time of
the celebration of the marriage
o And the other party must not be aware of its existence
o Kung aware sya – pinatawad na nya
o And likewise – the other party must not be suffering from the same STD of
the same nature
o So kung pareho na serious and incurable at the time of the celebration of
the marriage – then there can be no petition for annulment that will prosper.

LET US GO TO: LEGAL SEPARATION (ART 55 FC):

o Under TITLE 2, ART 55 FC:
o Ideally, legal separation – it refers to a situation where the marriage is perfectly
valid.
o There is no ground to declare it void and likewise there is no ground for
annulment.
o Because if there is a ground for annulment or to declared it void – the remedy is
to file a petition for declaration of nullity or annulment.

Page | 92
 How do we distinguish Legal Separation from Annulment?
 In annulment – the marriage will be terminated.
 In Legal Separation – there is not termination of the marital bond.

Anu naman pinagkaiba ng Legal Separation from divorce?

 In divorce – there is severance of the marital bond.
 In LS – there is no severance of the marital bond.

Anu naman ang pinagkaibang annulment from divorce?

 In annulment – the cause/ground must already be present at the time of the
celebration of the marriage.
 In divorce – the cause/ground may arise AFTER the celebration of the
marriage.
o Those are the basic distinctions.

o Take Note: That in LS – regardless of the place or the occurrence of the ground
whether the ground occurred abroad or in the Philippines it is recognized as a
ground here in the Philippine court.

o That was ask once – in the bar examination.

o WHY? Because LS – is not a criminal case.
o So the principle of territoriality will not apply.
o EX. Even if the contracting of the subsequent marriage – is the ground for LS –
even if the ground for the subsequent marriage occurred in a foreign country –
but with respect for legal prosecution for Bigamy, the case will not prosper
o Because in a criminal law – it is necessary that before our court will assume
jurisdiction – the crime was committed in the Philippine territory.

LET US DISCUSS: THE GROUNDS FOR LS:

With respect to Physical Abuse – GR: it is necessary that there must be
REPETITIONS of the act.
 So the Physical Abuse – must be repeatedly resorted to
 It is clear on PARA 1 that the ground for LS – is REPEATED PHYSICAL
VIOLENCE.
 So the single act of physical violence – is not ordinarily a ground for LS

EXCEPT: In two (2) Situations:

1) If the single act of Physical Violence – will amount to an ATTEMPT
AGAINST THE LIFE of the petitioner that will be a ground for LS; or
2) If that physical violence – even if it was resorted to once – but it was
resorted to for the purpose of compelling the petitioner to change his or
her RELIGIOUS BELIEF or POLITICAL AFFILIATION – it is already a
ground for LS.
 But under this as a GR – there must be a repetitions of the act
 And since the law requires repetitions – ex. Isa beses ka pa lang
binugbog year 2003 – if it is not an attempt on your life or it is not for the

Page | 93
 purpose of compelling you to change your religious belief or political
affiliation, dapat magpabugbog ka ulit for the 2 nd time.
 So there must be repetitions.
 Binugbog ka ulit 2004 – tatakbo na yung prescriptive period beginning
2004.

What is the prescriptive period?

 5 years from the occurrence of the cause. So tatakbo na yung 5 year
prescriptive period
 Eh kung binugbog ka ulit 2005 – that will be construed as a separate
ground different from the 2004 occurrence.
 So another 5 year prescriptive period will commence on year 2005. So
tatakbo na yun
 Kaya nga yung 2004 incident – had already prescribed but not the 2005
 So if there will be a case in 2006 – that will constitute as another ground
different from the 2005 and different from the 2004.
 So another 5 year period – will commence to run

But there are two (2) grounds involve in para 1 of ART 55:
1) It is either repeated physical violence
2) Or grossly abusive conduct.
 This is not consider as physical
 Pwede verbal abuse

 In para 2, take note: That the violence is directed – against the petitioner
 So if the physical violence was directed against the child of the petitioner
or a common child and it was resorted to only ONCE...and the purpose is
to compel the child to change his/her religious belief or political affiliation
that is NOT A GROUND for LS.
 It is necessary in para 2 – that the physical violence must be DIRECTED
against the PETITIONER.

OTHER GROUND of LS: SEXUAL INFIDELITY:

o TAKE NOTE: It is necessary that the infidelity – must be sexual in nature.
o Does it refer to sexual intercourse – hindi naman
o If the act involve sexual and will amount to unfaithfulness – that will be
considered
o Ex. Nahuli mo na nakikipaghalikan sa sinehan
o Is that act sexual? Definitely. Is that infidelity? YEs
o So that is a ground for LS
o The law does not require – actual sexual intercourse
o Under the Civil Code – the infidelity must be in the nature of adultery or
concubinage.
o Mahigpit yun – because on the part of the wife – before she will be guilty of
adultery – it must be necessary that the wife has committed sexual intercourse
with a man other than her husband.

Page | 94
 o But under the provisions of the FC – even if the wife is engage in sexual
intercourse with another women – that will be sexual infidelity
o The FC does no longer require – that the infidelity must be in the nature of
adultery or concubinage
o So if you will be guilty of any sexual act – other than your spouse – whether you
are committing it in relation to an opposite sex or the person of the same sex –
that will still be SEXUAL INFIDELITY.

THE MOST IMPORTANT PART: IN LEGAL SEPARATION:

o The REQUIREMENT of COOLING OFF PERIOD.
o Take note: That it is only in LS – where there is a requirement of the observance
of Cooling-Off period.
o That is not required in annulment. That is not required in the declaration of nullity
of marriages.

For how long is that cooling off period?

o That cooling-off period – must be for a period of 6 months counted from the
DATE OF FILING of LS.

What is the purpose of the cooling-off period?

o As the words suggest – it is to require the parties to cool off their heads
o Para palamigin muna ang sitwasyon – because afterall, they may __ and
reconcile.
o Take NOTE: That in LS – the policy of the law – is as much as possible to deny
o The basic state policy in relation to LS – is that if there is a ground to deny LS it
must be denied.
o WHY? Because in LS – it presupposes that the marriage is valid.
o But the parties will simply be living separately from each other
o And it will eventually affect the strength – of the family
o So the policy of the law – is as much as possible – not to encourage LS
o Because eventually – it will affect the strength of the family and will eventually
extend to the marriage.
o Kaya mapapansin nyo – there are defenses in LS which we will discuss later on.
o During the cooling off period...one of the duties of the court is to CONVINCE
each of the parties to RECONCILE.
o Pursuant to the state policy that as much as possible – LS must be avoided.
o So the court during that period will convince the parties to reconcile

o But what is prohibited during that cooling-off period – is TRIAL of the case ON
ITS MERIT
o So the court is not prohibited – from hearing Motions and resolving motions
which will not affect the merit of the case
o EX: During the pendency of the petition for LS – during the cooling off period –
eh si Mister winawaldas na ang absolute property at conjugal partnership. There
will be no other way for the parties to protect their properties
o So the other party – in order to protect the property will be filing a motion to
protect and preserve the properties
o Can the court act on it during the cooling off period? YES
Page | 95
 o Again – what is prohibited is the trial of the case on the merits

o There is an important innovations introduced by RA 9262 – Violence against

women and children act (VAWC).
o Pursuant to the provisions of RA 9262 – in Section 19 thereof – if the alleged
ground in the petition for LS will at the same time constitute an act of violence
under RA 9262 – the law of the case – then there will be NO OBSERVANCE of
cooling off period.

o AGAIN – NO COOLING OFF PERIOD IF THE ALLEGED GROUND FOR THE

PETITION FOR LS IS AT THE SAME TIME AN ACT OF VIOLENCE UNDER
RA 9262
o This is a MANDATORY LAW. There is no observance of a cooling off period.
o In other words – the court is mandated to immediately try the case on its merit.
o Specially if there is a filed application – for the issuance of a temporary
protection order (TPO)

o Since the enactment of RA 9262 – it has not been ask in the BAR
o It may now appear probably this year – be ready for it.
o So tingnan nyo ang grounds – most of the grounds
o Most of the grounds in ART 55 – also constitute as an act of violence under RA
9262
LET US DISCUSS: THEDEFENSES IN LS (ART 56 FC):

o A petition for LS – must be denied if any of the following defenses will exist:

DEFENSES IN LEGAL SEPARATION:

1) Consent;
2) Condonation;
 What is the difference of CONDONATION from CONSENT?
 Consent – was given PRIOR to the commission of the act.
 Condonation – was given AFTER the commission of the
act.

3) Connivance;
 Anu naman pinagkaiba ng CONNIVANCE from CONSENT?
 In consent – the reason was given in advance – but the
other party did not actively participate in the commission of
the ground
 But in connivance – there was an ACTIVE involvement of
both parties in the commission of the ground

4) Collusion;
 Anu ba ang pinagkaiba ng COLLUSION from CONNIVANCE?
 In connivance – the other party actively participated in the
commission of the ground – but the ground was actually
committed.
Page | 96
  In collusion – it is possible that the ground was not actually
committed but it may appear – the spouses made it appear –
that the ground for LS was committed.
 They made it appear – for the purpose of securing a LS.
 Yan yung sinasabi nating collusion or sabwatan.

5) Mutual Guilt or Recrimination;

 If both parties gave ground or if both parties/spouses – gave ground
for reason of the existence of a ground for LS.
 The petition for annulment under PARA 1 of ART 45 – will be
remitted. Will be denied if the petitioner is likewise guilty of
committing another ground for LS.
 So long as the other is also guilty – of the grounds for LS – the
petition for LS will be denied.
 Yan ang tinatawag nating – recrimination or mutual guilt of the
spouses.

6) Lastly: Prescription:
 The prescriptive period is – 5 years
 The petition for LS must be filed within 5 years – from the
occurrence of the cause.
 NOTE: Even if the respondent failed to expressly – allege the
existence of any of those defenses, but if any of those defenses –
will be borne by the records of the case.
 EX. The fact of prescription was not raised by the respondent, in the
respondent’s opposition.
 But the matter of prescription was borne – it is bear in the record of
the case – take note: That the court may MOTO PRO PRIO
Dismissed or Denied the petition.
 WHY? The basic policy of the state is to deny the petition for LS – if
there is a reason to deny it.

NO PETITION FOR LS MAY BE MADE SOLELY BY REASON OF

STIPULATIONS OF FACTS OR CONFESSION OF JUDGMENT:
o Ang pinagbabawal ng batas is the issuance of the decree of LS SOLELY on
the mere basis alone of confession of judgment or stipulations of facts.
o What is Stipulation of Facts? – Before the trial of the case the parties will enter
into stipulations and admission – what is the purpose?- in order to avoid
prolonging the trial.
o If the set of facts were already admitted there is no more need for the parties to
prove it.
o Bawal yan sa LS, annulment and declaration of nullity
o The court cannot simply base its decision solely on stipulations of facts.
o The decision must be base on other evidence aside from stipulations of facts,
the decision must be base on other evidence other than confession of
judgment.

What are the effects of the decree of legal separation?

o The effect is it will only allow the parties to live separately from one another.
Page | 97
 o There is no severance of the marital bond.
o In other words – there are spouses.
o So they cannot contract another marriage – that will be bigamous.
o They cannot engage in sexual relationship with another partner otherwise they
will be guilty of committing the crime of bigamy.
o In which case the right of CONSORTIUM will be lost.
o Ngayun kung ayaw – tapos pinuwersa mo – then you will be liable for the
crime of marital rape.
o And in the case of the ladies – there are an additional remedy that they can
interpose which is provided for in RA 9262.
o Once there is LS – you have the right to leave separately from the husband.
o So kung makulit pa rin ang husband...at ayaw mo na talaga – then that will
cause annoyance to the wife. So what is the remedy. That will be a ground for
stoking
o And your remedy under RA 9262 – is to file a petition for the issuance of a
TPO to prohibit the husband from coming near you for a certain period, if they
apply for that as one of the relief – in your protection order.

THE MOST IMPORTANT EFFECT OF LS:

o The most important effect of LS is with respect to the property relations of the
spouses.
o The decree of LS is one of the ways – of terminating the absolute community
or conjugal partnership (ACP/CPG) of the spouses.
o Now the termination of ACP/CPG is different from its liquidation.
o Yung termination is automatic – upon the occurrence of the ground the
termination will arise.
o Liquidation is something else, liquidation requires a positive act on the part of
the spouses.
o Take note that even in LS – there shall be forfeiture of the NET PROFITS
o The net profits of the guilty spouse shall be forfeited in favor of common
children, in the absence of common children in favor of the legitimate children
of the guilty spouse and in the absence of children – in favor of the innocent
spouse.

Order of Distribution in case of Forfeiture of Net Profits from the Guilty

Spouse:
1) Common children;
2) Legitimate children of the guilty spouse; and
3) Innocent spouse
o Again take note – that what is subjected to forfeiture is only the net profits and
not the net asset of the guilty spouse.

And after the termination of the ACP/CPG – what will now govern the
property relation of their terminated ACP/CPG?
o It will now be govern by the REGIME OF COMPLETE SEPARATION.

LET US DISCUSS: THE EFFECT OF LS ON DONATION PROPTER NUPTIAS:

Page | 98
 o If the donee was the guilty spouse – the effect of the decree of LS will only
render the donation propter nuptias, revocable at the instance of the donor.

LET US DISCUSS: THE RIGHT OF THE PARTIES TO INHERIT FROM ONE

ANOTHER:
o Take Note:
o With respect to INTESTATE/LEGAL SUCCESSION – the guilty spouse is
disqualified to inherit from the innocent spouse.
o But with respect to TESTAMENTARY/TESTATE SUCCESSION – there is no
disqualification.
o TAKE NOTE: In case of testate/testamentary succession – only the
TESTAMENTARY DISPOSITION in favor of the guilty spouse existing at the
time of the issuance of the decree of LS – which will be considered, revoked by
operation of law.
o But there was no disqualification. After the issuance of the decree of LS – the
guilty spouse as a voluntary heir – that provision will not be considered as
effective/valid and binding. Because there was no disqualification.
o It is only in legal or intestate succession that there was a disqualification.
o Likewise if the guilty spouse was made as a BENEFICIARY in the
INSURANCE POLICY of the other – such designation will be revoked even if it
was classified as an irrevocable designation.

o What will happen to the children of the spouses?

o Wag nyo na pansinin yung sinasabo dyan na the custody of children will be
awarded or given to the innocent spouse.

o In matters of custody of the children that is not the rule.

o In matters of custody – the primary consideration is always the best welfare or
interest of the children.
o Since the spouses will not be separating – only one of them, will now be
entitled to exercise PARENTAL AUTHORITY.
o In those situation where the spouses will be separating – and our courts will be
required to pick – to designate between the two, as to who between the
mother and the father will exercise parental authority – take note that our law
does not sanctioned joint exercise of parental authority.
o You cannot find any situation – of the exercise of joint parental authority
o Under our laws, our courts are mandated to pick one or to choose between the
husband or the wife as to who between them will have the right to exercise the
right for parental authority.
o Take Note: That we are not depriving the other spouse of parental authority.
o The parental authority of the other – is NOT lost.
o Only the exercise of parental authority – is to be given to the other
o So the one who was given the RIGHT TO EXERCISE PARENTAL
AUTHORITY shall also have the RIGHT OF CUSTODY of the children.

WHAT IS THE RULE?

Page | 99
o In case of LS of the spouses – the prime consideration is the best welfare of
the children.
o Under our law – there is a presumption that if the child – is below 7 yo, the law
presumed that the mother is the better custodian. And it is to the best welfare
of a child that the child should not be separated from the mother.
o Yan ang tinatawag natin na – “TENDER AGE PRESUMPTION”
o So if you will be ask what is tender-age presumption – simply lang yun – that if
the child is below 7, the judge should not decide that the custody is for the
mother – because the law presume the mother is the better custodian.
o Unless, the mother is found to be UNFIT.

What would be the effect of the subsequent RECONCIALIATION of the

spouses?
o Tingnan natin – kelan ba nangyari ang reconciliation and what kind of
reconciliation took place?

If the reconciliation between the spouses occurred DURING THE

PENDENCY of the petition for LS – and the spouses informed the court
that they have reconcile – what is the effect?
o ANS: The effect is that the petition will simply be ceased/terminated.

But if the RECONCILIATION occurred – AFTER THE ISSUANCE of the

DECREE of LS, what would be the effect of such reconciliation?
o ANS: IT DEPENDS on the situation.
o If the reconciliation occurred – and the court was not informed, the court will
not have the occasion to issue a DECREE OF RECONCILIATION.
o So if the spouses simply reconcile IN FACT/DE FACTO – without informing the
court their reconciliation – that reconciliation will not have the effect of setting
aside the effects of LS decree.
o The reconciliation will not produce any legal effect.
o So in order for the reconciliation of the spouse to produce a legal effect – there
must be a decree of reconciliation.

o The decree of reconciliation is not provided for in our Family Law.

o San nakuha yun?
o That was provided for in the new rule – AM No. 02-11-11-SC or the new rule on
LS.

What is the decree of reconciliation?

o If the party decided to reconcile – the parties must have to inform the court that
they have already reconcile.

HOW?
o They should have to execute a JOINT MANIFESTATION under OATH – that
they have reconciled.
o And they are required to file that joint manifestation,

WHERE?

Page | 100
o In the same court that issued the decree of LS.
o Take note: a decree of LS – it does not attain finality
o At anytime it can be set aside by the parties – by filing with the court who
issued the decree of LS - the joint manifestation under oath as proof that they
have reconciled.
o Wala bang prescriptive period ang reconciliation?
o Wala. Pwede kahit kelan. Kahit after 5 years or bago sila mamatay pwede.
o They should always go back to the same court which issued the decree of LS.
o By simply filing – a joint manifestation under oath – that they have reconciled.
o Once you have done that – the court will now issue the DECREE OF
RECONCILIATION.

What would be the effect of a decree of reconciliation?

o ANS: A decree of reconciliation – will have the effect of SETTING ASIDE the
effects of the decree of LS.
o EXCEPT: With respect to the effect of LS on the PROPERTY RELATIONS of
the spouses.
o In other words, upon the issuance of the decree of reconciliation – the property
regime of the spouses is already COMPLETE SEPARATION.
o That regime will continue even after the issuance of the decree of
reconciliation.
o Take note: that prior to the issuance of the decree of reconciliation – it was
possible that there was already a forfeiture of the net profits........ that will
continue notwithstanding the issuance of the decree of reconciliation.

Can the spouses REVIVE their previous property regime which will either
be ACP/CPG?
o YES.

Can the spouses waive the forfeiture of the net profits?

o YES.

HOW?
o You must do something other than the joint manifestation under oath that they
reconciled.
o They must execute an agreement – that they will choose the REVIVAL of their
previous property regime.
o In their agreement for revival – the spouses are required to SPECIFY – the
properties that will be contributed anew, to the revived property regime.
o In other words the properties that will form part of the property regime will not
automatically be included in the revive property regime.
o Because the spouses in their agreement for revival – can only select/can only
specify – those properties that they choose to be contributed anew to the
revived property regime.

What should the spouses do with that agreement?

o They are required to have the agreement approve by the court.

Page | 101
o That agreement must be submitted to the court for approval.
o If not approved by the court – that agreement will not produce any legal
effect.
o In order for that agreement to produce any legal effect – it must be approved
by the court.

HOW?
o The spouses can file a motion for approval of the agreement for the revival of
their previous property regime.
o And during the hearing of the motion for the approval of that agreement – the
law requires that the respective creditors of the spouses – must be NOTIFIED
of the hearing.
o In order for those creditors to protect their interest.

Q? Instead of reviving their previous property regime – can the spouses

adopt a new property regime different from what they have prior to the
issuance of the decree of LS?
o EX. Dati ACP sila – it was terminated so planu nila ay complete separation,
after the issuance of LS,.... they have reconciled.

Can they now adopt CPG as their new property regime upon their
reconciliation?
o ANS: If you will be reading AM NO. 02-11-11-SC – or the new rule on LS –
o Under SEC 23 & 24 of the new rule on LS -
o It appears that 02-11-11 – allows the adoption of a property regime different
from what the spouses had, previous to the issuance of the decree of LS.
Are those provisions of 02-11-11 – are they valid?
o Pwede nating sabihin na they are not valid – because the substantive law on
the matter is the Family Code.
o Note: AM 02-11-11 is a mere rule of procedure promulgated by the SC. It is
merely procedural.
o And the substantive law/the family code – only allows the revival of the
previous property regime.....the Family code does not allow the adoption of a
new property regime.
o NOTE: FC only ALLOWS REVIVAL but NOT ADOPTION of the new property
regime.
o NOTE: And if there is a conflict/inconsistency between the substance and the
procedure, of course the procedure must submit to the substantive law.
o “The SPRING CANNOT RISE HIGHER THAN THE SOURCE”
o But even if we are to assume – for the sake of argument – that SECs 23 & 24
of 02-11-11, are valid – take note that the spouses may not still adopt ACP or
CPG as their new property regime, upon reconciliation.

WHY?
o Because if we will be adopting a new property regime different from what they
had – they are required to execute an agreement – for the adoption of ACP or
CPG as their new property regime.
o And that agreement is required to be submitted to the court for approval.

Page | 102
 ANU SABI NG FC?
o ART 88 & 107FC – mandatorily provides that the regime of ACP and CPG –
can only commence at the PRECISE MOMENT of the celebration of the
marriage.
o Any agreement providing for the commencement of those regimes at any other
time shall be null and void.
o It is clear that notwithstanding the rule – the spouses cannot still ADOPT the
ACP or CPG as their new property regime.
o Because that will be in conflict with the provisions of ART 88 & 107 of the FC.
o Siguro they can invent some other property regime – but not ACP or CPG.

RIGHTS AND OBLIGATION OF THE SPOUSES:

ART 68:
1) Live together;
2) Observe mutual love, respect and fidelity; and
3) Render mutual help and support

o Of all of those rights and obligations – take note that it is only the obligation to
render mutual help and support that which can be compelled by a court action.
o With respect to other obligations – in case of non observance – you cannot go
to court to compel the other spouse to comply the obligations.
o EX. There is an obligation for the spouses to be FAITHFUL with one another –
you cannot go to court and ask the court that your husband be faithful to you.
o It is only with respect to a situation to render mutual help and support – which
can be compelled legally by way of a court action.
ART 73 – pinakaimportante:
o The spouses cannot prevent – either the spouse – in engaging in any
legitimate activity, business or profession etc.
o Specially, be careful with respect to the husband – you must not prevent your
wife from engaging in any lawful business, profession, vocation, activity etc.
o Because pursuant to RA No. 9262 – that is an ACT of VIOLENCE.

BALIKAN LANG NATIN ANG LS IN RELATION TO CUSTODY OF CHILDREN:

o If the ground in LS – the woman/the wife – is suffering from a BATTERED
WOMAN SYNDROME, and it was the husband who was the perpetrator of that
syndrome,
o RA No. 9262 – mandatorily provides that the husband should be disqualified.
o The husband will be disqualified to have custody over the minor children – if it
was the husband who was the perpetrator of that syndrome.
o But on the part of the wife – the wife, who is suffering from a BWS, cannot be
disqualified to have custody over the minor children simply because she was
suffering from that BWS.
o Ex. If for the meantime the mother is not in a position to take care of the minor
children because she was suffering from that BWS, the husband cannot have
her wife declared to be disqualified or unfit.
o RA 9262 prohibits that.
Page | 103
 o Per 9262 – the wife who is suffering from BWS – can never be disqualified to
have custody over the children simply because she was suffering from that
BWS.

LET US GO TO: PROPERTY RELATIONS:

In general, what are the rules that shall govern the property relations of the
spouses?
1) Marriage Settlement;
2) By the provisions of the Family Code
3) By local customs.

o If you are to consider the provision of ART 74 – it may appear that it is

impossible for the property relations of the spouses to be govern by local
customs.
o Because in the absence of marriage settlement – pursuant to the provisions of
ART 75 – the regime of ACP will automatically apply pursuant to the provision
of the CODE.

So the question is when it could be possible to apply the local custom to

possibly govern the property relations of the spouses?
o Kung walang marriage settlement – the spouses shall be automatically govern
by ACP.
o So pwede lang if the spouses – will not execute a marriage settlement (pre-
nuptial agreement) and the regime agreed upon in that marriage settlement is
void, then the ACP established in the code shall govern.
o That is the only possible situation where the local customs may apply.

LET US DISCUSS: MARRIAGE SETTLEMENT:

o The purpose of the agreement between the spouses is – is to FIXED the
Property Relations of the spouses – during the marriage.
o That is the purpose of marriage settlement....to fixed the property relations of
the spouses during the marriage.

But when is that agreement required to be executed?

o ANS. That agreement is required to be executed PRIOR – to the celebration of
the marriage.
o But the purpose of that agreement is – it is intended to govern the property
relations of the spouses during the marriage.

So necessarily, who are the parties to the agreement?

o Since the purpose of that agreement – is to fixed the property relations of the
spouses during the marriage – it is only the FUTURE SPOUSES who are
required to be parties to that marriage settlement.

EXCEPTION:

Page | 104
 1. If one of the parties is below 21yo but at least 18yo and for which the
parental consent is necessary in order for the marriage to become perfectly
valid.
 Then the persons required by law to be the parties to the marriage in
order for it to become perfectly valid is also required to be made a
party to the marriage settlement.
 Otherwise the marriage settlement will become invalid.
 So take note of that situation – so kahit merong marriage settlement
- but if the person whose consent is required by law is not made a
party to the marriage settlement.....the marriage settlement becomes
invalid.
 In which case the ACP will apply by default.
 NOTE: If one of the parties is suffering from INCAPACITY – the law
requires that the parties incapacitated must likewise be made a party
to the marriage settlement. Otherwise the marriage settlement will
be invalid.

IS THERE ANY FORMALITY REQUIRED IN A MARRIAGE SETTLEMENT?

o ART 77 – requires that the marriage settlement must be executed prior to the
marriage and it should be IN WRITING.

What is the effect if the marriage settlement is not reduced/embodied in

writing?
o If the requirement of formality under ART 77 is not complied with what would
be the effect?
o ANS. The effect is NOT provided for in ART 77 – but the effect is provided for
in ART 1423? para 2, sub para (c) of the STATUTE OF FRAUD.
o In which case, under the statute of fraud – any agreement in consideration of
marriage – is required to be in writing but ONLY for PURPOSES OF
ENFORCEABILITY and NOT FOR VALIDITY.
o So even if the marriage settlement is NOT IN WRITING – ex. Is that it was
entered into orally – that ORAL marriage settlement is not VOID.
o It is merely UNENFORCEABLE.

Could it be subject to ratification? – in the case of that oral agreement that

they should have to be govern by CPG?
o What if the parties have the agreement that they have to be govern by the
CPG? They can ratify it.
o But can that ratification affect the interest of the 3rd person?
o Maaaring on the part of the 3rd person they do not have a marriage settlement
o In which case the 3rd person will believe that the relation of the spouses is
govern by the regime of ACP.
o Even if the marriage settlement is valid between the parties and was merely
unenforceable - unless ratified, take note..... that the marriage settlement will
not prejudice the interest of 3rd person – because pursuant to the provisions of
ART 77 – a marriage settlement can only prejudice the interest of a 3 rd person
if it that MS is recorded in the office of the civil registry and in the registry of
property.

Page | 105
 o In a marriage settlement – it is necessary that the marriage must push through
– that the marriage must be celebrated.
o If the marriage was not celebrated – that MS is deemed defective and invalid.
o WHY? Because the purpose of the marriage settlement – is to govern the
property relation of the spouses during the marriage.
o So kung walang marriage – there was no use for that settlement
o So therefore, the validity or effectivity of the MS – depends upon the
celebration of the marriage.
o If the marriage was not celebrated – that MS becomes ineffective.
o It will be rendered ineffective, void or invalid.
o Including DONATION PRUPTER NUPTIAS embodied in that MS.
o That will also be rendered ineffective or invalid.
o But if there is any provision in the MS – which does not depend upon the
marriage for its validity – that provision in the MS will not be validated by the
non celebration of the marriage.
o EX. Will the Recognition of paternity be declared invalid? – YES. Because the
paternity does not depend upon the marriage for its validity or effectivity.

LET US GO TO: DONATION PROPTER NUPTIAS:

o A donation propter nuptias – is another agreement in consideration of a
marriage.
o It is a SPECIAL KIND of donation.
o It is a species of donation.

And in order for a donation to be considered propter nuptias – it must

embody the following characteristics:
1) It must be a donation by reason or in consideration of marriage.
2) The donation must be made prior to the celebration of the marriage.
3) The donation must be in favor of one or both of the future spouses (either
the groom or the bride).

o Take note that THE DONOR may either be THE BRIDE or THE GROOM or the
DONATION IS IN FAVOR of ONE or the OTHER.....or the donor will be
SOMEONE ELSE, a 3rd person.

Are there any formalities required in donation propter nuptias?

o YES THERE IS.
o Pursuant to the provision of ART 83 of the FC.....
o Ang sabi dun – the provision of the Civil Code on ordinary donations are also
applicable to donation propter nuptias in so far as they are not modified by the
provision of the FC.
o Therefore, the provision of ART 748 & 749 of the civil code on ordinary
donation – are also applicable to donation propter nuptias.

o In other words – if the donation propter nuptias will involve PERSONAL

PROPERTY (ART 748) – the value of which exceeds Php 5K – the law
requires that the donation as well as its ACCEPTANCE must be IN WRITING.
o Otherwise the donation is INVALID.
Page | 106
 o Minimum Requirement – the DONATION and ACCEPTANCE must be IN
WRITING.
o So whether it is a private or public instrument – it will not matter.

o But if the donation propter nuptias involves REAL PROPERTY (ART

749).........
o The law requires that the DONATION as well as the ACCEPTANCE must be
embodied in a PUBLIC INSTRUMENT.
 Specifying therein the property donated; and
 The value of the charges which the donee must satisfy
 NOTE: Acceptance – may be made in the same deed of donation or in a
separate PUBLIC DOCUMENT;
 If made in separate Public Document – the donor shall be notified
thereof in ANY authentic form
 Those STEPS shall be noted in BOTH the instruments.
o Otherwise, the donation propter nuptias shall be void.

LET US DISCUSS: THE EXTENT OF WHAT MAY BE DONATED:

Can there be a donation propter nuptias of FUTURE PROPERTY?
o ANS: IT DEPENDS.
o Dito natin titingnan ang donation propter nuptias between the future spouses
and coming from a 3rd person.

RULE 1:

If the donation propter nuptias is coming from a 3rd PERSON – so the

donation is in favor of one or both of the future spouses, coming from a 3 rd
parties:
o ANS: The law PROHIBITS – the donation of REAL PROPERTY of that 3 rd
person.
o The applicable provision is ART 751 of the civil code. (The donation cannot
comprehend future property)
o There can be NO DONATION of FUTURE PROPERTY.
o So that donation will be considered VOID.

RULE 2:

But if the donation propter nuptias is between the future spouses (between
the groom & the bride/the donor or the donee is one of them)
o ANS. The law allows donation of future property.

What do we mean by future property?

o A property which is not yet owned by the donor at the time of the donation.
o So if it is a donation propter nuptias – between the spouses – the law allows
donation of future property.
o But that donation – IS NOT CONSIDERED – INTER VIVOS.
o That donation is considered MORTIS CAUSA.

Page | 107
o It is considered as becoming effective only UPON DEATH and by reason of the
DONOR future spouse.
o Since it is a disposition mortis causa – it is required to be in the form of a LAST
WILL AND TESTAMENT.
o Otherwise it is an invalid disposition mortis causa.

o But if the donor is a 3 rd person – even if the donation is a donation propter

nuptias – there can be no donation of future property from a 3 rd person
pursuant to the provision of ART 751 NCC.
o That donation of future property coming from a 3rd person – may not even be
considered as a donation mortis causa.
o That donation is VOID.
o Again, what the law allows is the donation of future property coming from one
of the future spouses in favor of the other spouses
o But that donation is not inter vivos but a mortis causa one.

NOW.. If it is a donation between the future spouses - is there any

limitations? As to what may be donated by one to the other?
o It depends...on the property regime that will eventually govern the spouses
during the marriage.

o If the property regime of the future spouses – will be ACP – there is NO

LIMIT as to WHAT MAY BE DONATED by one to the other.
o So the donor future spouse may donate EVERTHING that he/she owns in
favor of the other future spouse.
o WHY? Because in ACP – “whatever is yours will also be mine because
whatever is mine is yours”

But if the property regime of the future spouse during the marriage will be
other than ACP – it may either be Complete Separation or CPG:...

o The other spouse cannot donate MORE THAN 1/5 of his/her PRESENT
PROPERTY in favor of the other future spouse.
o Yun ay kung ang magiging property regime nila – is other than ACP.
o Meron nang prohibition.
o So if the donation propter nuptias – is in excess of that 1/5 of the donation
o NOTE: Only the excess is considered INVALID.
o But as to the donation – that donation will be considered valid.
o If a donor is a 3rd person –
o So hindi papasok dito yung limitations
o So if the limitations is in an ordinary donations – anu ba yung mga limitation in
ordinary donation.
o That the donor – MUST RESERVE something for the support of himself and
for the support of those persons whom under the law is obliged to be given
legal support.
o And importantly – the donation must not be INOFFICIOUS.
Page | 108
o FINAL POINT: Although the donation propter nuptias is also an agreement in
consideration of marriage – it is different from marriage settlement.
o IN MARRIAGE SETTLEMENT – the validity or effectivity of the marriage
settlement depends upon the celebration of the marriage.
o If the marriage will not be celebrated the settlement will be ineffective, invalid.
o BUT IN A DONATION PROPTER NUPTIAS – which is in consideration of
marriage – take note that the validity of donation propter nuptias does not
depend upon the celebration of the marriage.
o If the marriage is not celebrated – the donation propter nuptias remains valid.
o EXCEPT: That it may be revoked by the donor. So it is merely REVOCABLE at
the instance of the donor.
o If not revoke the donation is still valid.
o EXCEPT: If the donation propter nuptias is embodied in a marriage settlement
in which case – if the marriage did not push through – then that donation
propter nuptias embodied in that marriage settlement will also VOID. That is
the only exception.

If the marriage will be declared void – what will be its effect upon the
donation propter nuptias?
o Generally, the donation propter nuptias – is merely revocable at the instance of
the donor.
o EXCEPT: In ART 44 of the FC – if a subsequent VOID marriage pursuant to
the provision of ART 44 – in which case the donation propter nuptias between
the future spouses is still REVOKE BY OPERATION OF LAW not merely
REVOCABLE.
o In ART 44 again – the donation propter nuptias between the future spouses – if
the marriage is void pursuant to ART 44 – any donation propter nuptias
between them/between the future spouses – is revoke by operation of law and
not merely revocable.
o But if the donation is coming from a third person – and the donation is void –
pursuant to ART 44 – that donation propter nuptias coming from a third person
is not revoked by operation of law. It is merely revocable pursuant to ART 86 of
the FC.

o Another EXCEPTION: If the ground is ART 40 – if the marriage is void

because of ART 40 – and it was the donee who contracted the marriage in bad
faith – in which case the donation propter nuptias in favor of the donee who
contracted the marriage in bad faith is revoked by operation of law and not
merely revocable.
o IN CASE OF ANNULMENT – there must be a final judgment of annulment
o And it is necessary that it must be the donee who contracted the marriage in
bad faith before the donation propter nuptias will be considered revocable
o So there must be a judgment of annulment if the ground – is the absence of
Parental Consent.
o If the ground is absence of parental consent – the mere existence of that
ground will already render that donation propter nuptias revocable without
need of judgment of annulment.

Page | 109
LET US DISCUSS: COMPLETE SEPARATION PER ART 147 AND
148 FC :
NOTE: That the REGIME OF ACP – is a SPECIAL FORM OF CO-OWNERSHIP.
o As expressly provided for by the FC – the provision of the Civil Code on CO-
OWNERSHIP is applicable to the regime of ACP in a suppletory concept.
o On the other hand the REGIME OF CPG – is a SPECIAL FORM OF
PARTNERSHIP.
o Therefore it is the provision of CC on Partnership that will apply suppletorily to
the regime of CPG.
o Why is it possible for ACP to govern the property relations of the
spouses?
o If the marriage took place prior to August 3, 1988, the regime of ACP can
possibly govern the property relation of the spouses, if it was provided for in
the marriage settlement.
o But if the marriage took place during the effectivity of the FC, the ACP may
possibly apply in TWO (2) SITUATIONS:

TWO (2) SITUATIONS IN CASE OF ACP:

1) If it was provided for in a marriage settlement.
2) Or even in the absence of a MS, or even if the marriage settlement is void
– because under the FC, it is the regime of ACP that applies BY DEFAULT,
in the absence of a marriage settlement or in case the marriage settlement
is invalid.

o On the other hand the regime of CPG – can possibly govern the property
relations of the spouses in the following situations:

FOLLOWING SITUATIONS THAT IS APPLICABLE TO CPG:

1) If the marriage took place by August 3, 1988 – the regime of conjugal
partnership will apply:
a) If it was provided for in a marriage settlement;
b) Or even in the absence of a marriage settlement or in case the
marriage settlement is invalid:
 Because under the NCC prior to the regime of the FC, it is the
regime of CPG that apply by default in case of absence of
marriage settlement or if the marriage settlement is invalid.

2) But if the marriage took place during the effectivity of the FC – the regime
of CPG will only apply if it was provided for in a marriage settlement.

LET US DISCUSS FIRST: SOME PROVISIONS WHICH ARE IDENTICAL TO THE

436:

o NOTE: That all property regimes COMMENCE – at the PRECISE moment of

the celebration of the marriage.
Page | 110
 o Because the purpose of family regime is to govern the property relations of
the spouses during the marriage.
o So necessarily the property regimes will commence at the precise moment of
the celebration of the marriage.
o BUT NOTE: With respect to ACP or CPG – that is a MANDATORY AND
PROHIBITORY PROVISION.
o Note: That those two regimes will only commence at the precise moment of
the celebration of the marriage.
o And any agreement or stipulations (express or implied) providing that those
two regimes can commence or start at any other time shall be null and void as
expressly provided for in ART 88 and ART 107 of the FC.
o So as we have previously discussed in LS – even if the rule in LS under Sec
23 and 24, although it may appear under the new rule on LS – the spouses
are not allowed to adopt a new property regime upon reconciliation....it is
submitted that they cannot adopt ACP or CPG as their new property regime
upon reconciliation because of the mandatory provision in ART 88 and 107 of
FC.
o ART 89 – is also applicable in the CPG – so there is no valid waiver of
RIGHTS, INTEREST, SHARES and EFFECTS of the ACP or CPG during the
marriage.

What is the reason for that prohibition?

o Simple lang there is nothing to be waived.
o During the marriage or prior to the liquidation of the ACP or CPG – that
interest that shares of the spouses in specific community or conjugal property
– DOES NOT AS YET EXIST.

o As explained by the SC in ABALOS vs MACATANGAY:

o Prior to the liquidation of the ACP or CPG – the interest of the spouses in the
SPECIFIC CONJUGAL PARTNERSHIP PROPERTY or SPECIFIC
ABSOLUTE COMMUNITY PROPERTY is for the meantime during the
marriage prior to the liquidation, it is for the meantime a MERE INCHOATE
INTEREST OR EXPECTANCY.
o And that interest does not ripen into an actual title until it is determined that
after liquidation there will be a net asset that will be left for distribution to the
spouses.
o That is the only time that the shares or interest will be given if there remains a
net asset that will be left after liquidation.
o So during the marriage or prior to the liquidation of the ACP or CPG – that
specific interest or shares does not as yet exist, so there is nothing to be
waived.

LET US DISCUSS: WHAT ARE THE PROPERTIES THAT ARE

INCLUDED IN THE ACP:
GENERAL RULE: Everything:

Page | 111
 o All properties of the spouses whether acquired prior to the celebration of the
marriage or during the marriage – they are included in the ACP.

PROPERTIES THAT ARE NOT INCLUDED IN THE ACP:

PROPERTIES ACQUIRED PRIOR TO THE MARRIAGE (IN ACP):
o Those properties that were ACQUIRED PRIOR TO THE CELEBRATION OF
THE MARRIAGE the GR, is that they are included in the ACP.

EXCEPTION:
1) If they will be excluded in the ACP by way of marriage settlement.
2) Even if there is no marriage settlement – but if one of the spouses are
legitimate descendants in a prior marriage all of his properties acquired
prior to the celebration of the marriage shall remain as his EXCLUSIVE
PROPERTY.
 Again if one of the parties are legitimate descendants in a prior
marriage all of his properties acquired prior to the celebration of
the marriage including the fruits and interest thereof shall remain
as his exclusive property.
 And of course those that are for PERSONAL and EXCLUSIVE
use are likewise exclusive property.
 With the EXCEPTION of JEWELRY.
 Jewelry is not for exclusive or personal use of the spouses they
shall form part of the ACP.

PROPERTIES ACQUIRED DURING THE MARRIAGE (IN ACP):

o Again GR: They are included in the ACP.

EXCEPTION:
1. When they are acquired through GRATUITOUS TITLE.
EXCEPTION TO THE EXCEPTION:
o Even if acquired through gratuitous title – but if the grantor expressly includes
that property in the ACP, it will be included in the ACP.
o And those that are acquired during the marriage that are for exclusive and
personal use of the spouses – that property with the exception again of the
JEWELRIES because it forms part of the ACP.

LET US GO TO: CONJUGAL PARTNERSHIP OF GAINS (CPG):

o The main difference between ACP and CPG – is that in CPG, properties that
were acquired by one of the spouses prior to the marriage – shall remain as
her or his EXCLUSIVE PROPERTY upon the celebration of the marriage.

TO ILLUSTRATE:

PROPERTIES ACQUIRED PRIOR TO THE MARRIAGE (IN CPG):

o In Conjugal Partnership – for properties that were acquired prior to the
celebration of the marriage – GR it is EXCLUSIVE (not included in the CPG).
Page | 112
o EXCEPTION: If they will be included by way of a marriage settlement.
o TAKE NOTE: Under the FC – the regime of CPG will only exist if it was
provided for in a marriage settlement.
o In the event that the spouses may include properties that they have prior to
the celebration of the marriage – in their Conjugal Partnership
o TAKE NOTE: Of the following LIMITATIONS:
o While they may include certain properties in their CPG, the ff are the
limitations:
1) Properties should not include more that 1/5 of their present properties;
 They cannot include in their CPG more than 1/5 of their present
properties.

2) If one of the spouses had legitimate descendants – in the prior marriage all
of his properties acquired prior to the marriage may not be included in the
conjugal partnership.
 In other words, those properties shall remain as exclusive
properties.
3) But while those properties were not included as CPG – the fruits of those
properties will be included in the CP

o That is the essence of Conjugal Partnership – the fruits are included.

PROPERTIES ACQUIRED DURING THE MARRIAGE (IN CPG):

TAKE NOTE OF THE PRESUMPTIONS:

o ART 116: Provides that all property acquired during the marriage in CP –
are presumed to be conjugal regardless or whether or not the contract was
made, entered into or the properties were registered only in the name of one
of the spouses.
o In CPG there is a presumption – that all properties acquired during the
marriage are presumed to be conjugal even if the contract were entered into
by one of the spouses and even if the title to the property was registered only
in the name of one of the spouses.

APPLICATION OF THE PRESUMPTION:

o But in order for that presumptions to apply – it is a CONDITION SINE QUA
NON – that there must be proof of acquisition during the marriage
o So if you are a creditor and you are interested in going after certain property –
that you are claiming that it is conjugal – that proof shall be required that that
property was acquired during the marriage.
o After which, if the creditor was able to proved that the property was acquired
during the marriage, then the presumption that it is a conjugal property will
now apply.
o BUT NOTE: That presumption is NOT CONCLUSIVE. The presumption is
REBUTTABLE.
o So the spouses may prove that the properties is afterall not conjugal but are
exclusive property.
Page | 113
o For properties that are acquired during the marriage in CP – in determining
this, we will be applying the two (2) Trier test.

TWO (2) TRIER TESTS:

o WHAT ARE THOSE TESTS?

1) The first test is the MANNER OF ACQUISITION.

 If acquired GRATUITOUSLY – EXCLUSIVE Property
 If acquired ONEROUSLY – there is a better test, the 2 nd test.

2) The 2nd test is the SOURCE OF FUND.

 If the source of fund is EXCLUSIVE MONEY – the property so
acquired is an exclusive property
 If the source of fund is CONJUGAL MONEY – the property so
acquired is conjugal partnership property.
o Again, for properties so acquired during the marriage – there are two trier
tests.

o The 1st test is the manner of acquisition

 How does this property acquired?
 If acquired GRATUITOUSLY – then it become an exclusive property of
one of the spouses.
 But if acquired through an ONEROUS TITLE – there is a 2 nd test

o The 2nd test is the source of fund.

 If the source of fund that were use in order to acquire the property is
exclusive money of one of the spouses – the property so acquired will
become an exclusive property.
 But if the funds that were used – were conjugal funds the property so
acquired will now be considered as conjugal partnership property.

 EXCEPTION:
 Exception is in the exercise of RIGHT OF REDEMPTION:
 In the exercise of right of redemption – the test is not the source
of fund
 The test is the OWNERSHIP OF THE RIGHT OF
REDEMPTION
 The property so redeem – will become an exclusive property of
the spouse who owns the right of redemption.
 Even if that fund will USE CONJUGAL FUNDS subject of course
to REIMBURSEMENT, if the redeemer will be using conjugal
funds.

o Having said that, let us enumerate those properties that are exclusive
property in CP:

EXCLUSIVE PROPERTY IN CONJUGAL PARTNERSHIP:

Page | 114
 1) Those that are owned by the spouses prior to the celebration of the
marriage (they are exclusive property).
2) Those acquired during the marriage – through GRATUITOUS TITLE
3) Those that are acquired during the marriage through the USE OF
EXCLUSIVE MONEY.
4) Lastly, those that are acquired through the EXERCISE OF RIGHT OF
REDEMPTION.

o Those are the exclusive property in CPG.

PROPERTIES THAT ARE CONJUGAL PARTNERSHIP PROPERTIES:

1) Those properties that was acquired during the marriage through
onerous title using conjugal fund.
2) Likewise, those that are acquired during the marriage through WORK,
INDUSTRY or LABOR of either of the spouses.
3) What else? Those that are acquired through GAMES OF CHANCE are
likewise included in the CP.
 Except that with respect to the LOSSES, the losses shall be
borne exclusively by the loser spouse.
4) Likewise, those properties that are acquired – through OCCUPATION
as mode of acquiring ownership (such as fishing and hunting)
5) Share of the spouse in the hidden treasure which the law awards to the
finder or the owner of the property which the treasure was found.
6) Those fruits that are included in the conjugal partnership whether those
fruits came from the exclusive property or conjugal partnership
property.
 But the basic difference is - if those fruits are coming from the
exclusive property – only the NET FRUITS shall be included in
the conjugal partnership.
 Bakit Net? Kc babawasin natin those expenses incurred in the
administration of the exclusive property shall be deducted from
the fruits.
 So only the net fruits coming from the exclusive property shall
be included in the conjugal.
 But if the fruits are coming from the conjugal partnership
property – the gross fruits shall be included in the conjugal
partnership.

With respect to LIVESTOCK – there is a SPECIAL RULE:

o EX: Prior to the celebration of the marriage – the groom brought into the
marriage 6 pigs while the bride brought 7 pigs.
o After 1 year of marriage – there is a LS – so the CPG was terminated
o There was liquidation:
o But during liquidation, what left of the pig of the groom is only 3, kc namatay
yung tatlo
o As for the bride, only 4 remains from the original 7; ......3 are dead;
o But at the time of the liquidation of the CPG – there were 18 pigs
o So ibig sabihin yung iba dyan anak na lang.

Page | 115
 o So how are we going to distribute the 18 pigs at the time of the liquidation of
the CPG?
o Ibabalik natin kay groom yung 6 nya.
o Ibabalik natin kay bride yung 7 nya.
o So that will be 13 minus 5
o All of the excess from the original shall be included in the CP.
o NOTE: In other words, with respect to LIVESTOCK – the offspring are not
necessarily included as fruits
o Although in other distribution – offspring is considered fruits.
o But for purposes of CP – the offspring are not necessarily included as
FRUITS.
o Only the excess of each kind that was brought into the marriage shall be
included in the CP.

LET US DISCUSS SOME: SPECIAL RULES IN CONJUGAL

PARTNERSHIP:

1. FIRST EXCEPTIONAL SCENARIO:

ACQUISITION BY WAY OF PURCHASE ON INSTALMENT:
If a certain property was acquired by one of the spouses brought into
the marriage by way of PURCHASE – and it is payable through
INSTALMENT – and all of the instalment payment were paid during the
marriage and some of the payment were made using the exclusive
fund and part of it using the conjugal fund.
 With that situation – there are certain purchase of the property prior
to the marriage and that is payable thru instalment and part of the
instalment will fall during the marriage – and some of the instalment
payment will be paid thru conjugal fund.
 There will be no problem if all the payment will be coming from the
exclusive money of the buyer. So that will be considered as an
exclusive property of the buyer. Because that property was acquired
using an exclusive money.
 But the problem in that situation – is that there were instalment
payment that were paid using conjugal fund

So how do we determine the ownership of that property?

 The debt (instalment) is not the source of fund
 Why? Because some of the instalment payment was paid using the
exclusive money of the buyer spouse and some of the payment was
made using the conjugal fund.
 Under the FC the ownership of the property – shall be determined
at the time of the VESTING of the ownership – so that is the test.
 In determining the ownership of that property – we will to consider
the time of the VESTING of the ownership of the property

If the ownership was VESTED, prior to the celebration of the marriage

– that will be an EXCLUSIVE property of the buyer spouse.
But if the ownership will be VESTED – during the marriage, that
property will become CONJUGAL PARTNERSHIP Property.
Page | 116
  But in either case – it is subject to REIMBURSEMENT.

If the contract was entered into was a CONTRACT OF SALE – and the
delivery was made prior to the celebration of the marriage.

 So that would be mean, that the ownership shall be vested prior

to the celebration of the marriage.
 In which case, that property will be considered as the exclusive
property of the buyer-spouse.

But if what was entered into was a CONTRACT TO SELL – remember

that there is a POSITIVE SUSPENSIVE CONDITION – which is the
FULL PAYMENT – of the purchase price.

 So in a CONTRACT TO SELL – there will only be a TRANSFER OF

OWNERSHIP – upon FULL PAYMENT
 Which will necessarily happen only during the marriage
 So if the contract that was entered into was a contract to sell –
necessarily that property will become a conjugal partnership
property because the VESTING of the OWNERSHIP will only occur
during the marriage.

2. SECOND EXCEPTIONAL SCENARIO: (CREDIT)

This time if there is a CREDIT belonging only to one of the
spouses
 But that credit is likewise payable on instalment.
 And some of the instalment payment will be made during the
marriage.

Q? WHO WILL BE THE OWNER OF THOSE AMORITIZATIONS

THAT WERE MADE DURING THE MARRIAGE?
 Tingnan natin kung may INTEREST RATE CREDIT o WALA.
 There is no problem if there is no interest.

 If it is just a payment of the principal – everything will be borne

by the creditor-spouse.

 But if the instalment payment – if there is an INTEREST –

involved upon the computation – and the instalment payment of the
amortization – and in that amortization there is a portion of interest
in the payment of the principal –

 So we will have to DISTINGUISH:

a) For that portion pertaining to the PRINCIPAL – that will
remain as exclusive property of the creditor spouse.
b) But for the portion pertaining to the PAYMENT OF
INTEREST – that will be considered as conjugal partnership
property
 Because that will be considered as FRUITS.

Page | 117
3. THIRD EXCEPTIONAL SCENARIO: (IMPROVEMENTS on EXCLUSIVE
PROPERTY)

The provisions of ART 120 FC:

o ART 120 of the FC – contemplates of a situation where there is an
EXCLUSIVE Property of one of the spouses.
o But it was subjected to an IMPROVEMENT – during the marriage.
o NOTE: The improvements occurred during the marriage.
o And the source of the funds – the funds that were used in that
improvement were either CONJUGAL FUND or from the EFFORTS of
either or both of the spouses.

So the REQUISITES of ART 120 are the following:

1) The property is either an exclusive property of one of the spouses.
2) That property was subjected to improvements during the marriage.
3) The source of improvement is either from CONJUGAL FUND or
from the EFFORTS of either or both of the spouses.

o If all of those requisites will be present, THEN WHAT IS THE RULE?

o We will simply COMPARE the COST of IMPROVEMENT – and any
RESULTING INCREASE in the VALUE of the Property by reason of the
improvement –
o Again, we will just be comparing the cost of improvement plus the
resulting increase – in the value of that property by reason of the
improvement
o We will be comparing that with the value of the property AT THE TIME
of the improvement.

RULE:
1) If the COST OF THE IMPROVEMENT and ANY RESULTING
INCREASE is ADDED by REASON of the IMPROVEMENT will be
GREATER than the value of the property at the time of the
improvement – the ENTIRE PROPERTY will become a CONJUGAL
PROPERTY including the exclusive property of the owner-spouse.
 EXAMPLE:
 Value of the Exclusive Property = 120k
 Cost of improvement (coming from conjugal funds or
effort of either or both spouses) = 100k
 Resulting increase = 50k
 Total of cost of Improvement + resulting increase = 150k
 PRODUCT = Entire property (all + exclusive property)
will become CONJUGAL PROPERTY

2) But if the cost of the improvement plus any resulting increases in

value by reason of the improvement – will be LESSER than the
value at the time of the improvement – everything/the entire
property will become an EXCLUSIVE property of the owner spouse.

Page | 118
 o But in either case – there must be a REIMBURSEMENT of funds of the
property coming from either.

WHEN WILL THERE BE A TRANSFER OF OWNERSHIP IN ART 120?

o TAKE NOTE: There will only be a transfer of ownership – upon FULL
REIMBURSEMENT of the amount.

WHY IS THE REIMBURSEMENT REQUIRED TO BE MADE?

o It is required to be made at the time of the liquidation of the CP –
o But the law does not prevent reimbursement at an earlier time
o If there will be a reimbursement at an earlier time there will be a transfer of
ownership upon reimbursement.

In relation to ART 120 – take note of the case of FERRER vs TEVES?

o In that case:
o The entire property becomes an exclusive property of the owner spouse.
o Because the cost of the improvement plus any resulting increases in value –
is lesser in value at the time of the improvement.
o But the owner spouse has the OBLIGATION TO REIMBURSE the conjugal
partnership for the cost of the improvement coming from the conjugal
partnership.
o But prior to the reimbursement – the owner-spouse – was able to sell the
ENTIRE property to a buyer.

So the Q in that case? May the conjugal partnership go after the buyer
for the reimbursement? Is the buyer obliged to reimburse the amount
that is due to the conjugal partnership?

o SC RULED: NO.
o WHY?
o ANS. The obligation to reimburse shall be remain as the obligation of the
owner-spouse even if the property was already transferred to another person.
o So the buyer does not acquire the obligation – of reimbursing the conjugal
partnership for the funds coming from the conjugal partnership.
o So that is the cases of Ferrer vs Teves.

LET US THE ADMINISTRATION OF ABSOLUTE

DISCUSS:
COMMUNITY OR CONJUGAL PARTNERSHIP PROPERTY:

WHAT IS THE RULE?

o The rule is JOINT ADMINISTRATION and MANAGEMENT.
o BUT if one of the spouses is INCAPACITATED or UNABLE to PARTICIPATE –
in the administration or management of the property – the OTHER SPOUSE
may ASSUME SOLE ADMINISTRATION.
o BUT NOTE: The power to administer – does NOT INCLUDE the POWER to
DISPOSE or to ENCUMBER any property of the conjugal partnership or of the
absolute community.
Page | 119
o On the matter of disposition or encumbrance of either of the community
property or conjugal partnership property.
o In order for the disposition or to encumber to be valid – it must have the
CONSENT of BOTH of the spouses.
o If the consent of one cannot be obtained – at least there must be court
authorization.
o So if there is a disposition or encumbrance of any community or conjugal
property will not have the consent of both of the spouses – or at least court
authorization – the disposition or encumbrance is void ab initio.
o But nevertheless – while it is void – the law will treat it as a CONTINUING
OFFER on the part of the spouse who contracted and on the part of the 3 rd
person with whom he contracted with.
o And the OFFEREE is of course – the other spouse.

o EX. If the husband for example – mortgage a conjugal partnership property

without the consent of the wife.

 Can we consider that the mortgage be valid with respect to the share of
the consenting spouse in that conjugal partnership property?
o If the husband will mortgage the conjugal partnership property without the
consent of the wife;

 Can we consider the mortgage VALID with respect to the SHARE OF THE
HUSBAND (consenting spouse) in that SPECIFIC CONJUGAL
PARTNERSHIP PROPERTY and INVALID ONLY with respect to the share
of the NON CONSENTING SPOUSE (wife)?
o The validity of the disposition with respect to the husband can only be
sanctioned if we will be applying the provision of the Civil Code on CO-
OWNERSHIP (ART 493).
o In which case, we will be treating that transaction not as a disposition of that
specific property – but only as to the disposition of the IDEAL SHARE of the
ideal co-owner

Does the provision of ART 493 applicable – to the CPG?

o ANS. NO.
o ART 493 NCC – cannot be applied to the regime of CPG because conjugal
partnership – is a SPECIAL FORM OF PARTNERSHIP.
o And it is the provision of the civil code on PARTNERSHIP that apply in
suppletory character to the regime of CPG.
o So therefore, the entire transaction is considered as INVALID.
o It cannot be considered as valid with respect to the share of the consenting
spouse.
o Because co-ownership on the Civil Code does not apply.

o EX. Ibahin natin ang sitwasyon:

o What if that property is now an ACP – and it was mortgage by the husband
without the consent of the wife.

Page | 120
  Can we now consider the transaction as valid – with respect to the share
of the husband in that SPECIFIC ABSOLUTE COMMUNITY PROPERTY
and invalid only with respect to the share of the wife?
o ANS. The answer is still NO.
o Prior to the liquidation of the ACP – ART 493 of the Civil Code does not apply.

o WHY? Because of the ruling in ABALOS vs MACATANGAY:

o Prior to the liquidation of the ACP – that ideal share of the spouses in that
specific community property – does not as yet EXIST.
o Their interest prior to liquidation – is a mere inchoate interest which will only
ripen into an ACTUAL TITLE – if after liquidation there will be NET ASSET that
will be left, that will be distributed to the spouses.
o So prior to the liquidation of that ACP – that share does not exist as yet.
o So we will be applying the principle that “YOU CANNOT GIVE, WHAT YOU
DO NOT HAVE”. NO ONE CAN GIVE WHAT HE DOES NOT HAVE.
o So whether it is ACP or CPG – in the absence of CONSENT of BOTH of the
spouses or at least court AUTHORIZATION – the entire disposition or
encumbrance shall be considered void ab initio.
o The transaction is VOID in its entirety.

o NOTE: That the law does not require with respect to the giving of the consent
of the spouses – the law does not require ANY FORM.
o The consent of the spouses need not be explicit.
o So long that it will be proven that consent was given – in whatever manner it
was given – the requirement of the law has been satisfied.

o EX. In the case of PELAYO vs PEREZ

o The wife acted as one of the witnesses in the sale of the conjugal property
that was made by the husband.
o But later on, the wife questioned the validity of the sale - on the ground that
her consent was not obtained.
o SC said – he was there during the sale – and in fact he did not interpose any
objection, nakapirma pa nga sya as one of the witnesses.
o So there was IMPLIED CONSENT according to the SC.

LET US DISCUSS: THE OBLIGATION OF THE ACP AND CPG:

o Pagdating dito siple lang naman nyan
o Tatlong tao lang ang tatandaan nyo.
1) Support of the spouses
2) Support of the common children; and
3) Support of the legitimate child of either of the spouses
 Only those shall be the obligation of the ACP or the CPG

o NOTE: The support of OTHER PERSON – shall come from the SEPARATE
PROPERTY of the spouse who is obliged to give support.

Page | 121
 DEBTS AND OBLIGATIONS CONTRACTED BY
LET US GO TO:
THE SPOUSES:

DEBTS CONTRACTED PRIOR TO THE MARRIAGE:

o If the debt was contracted PRIOR to the celebration of the marriage – o
tinatawag nating ANTE-NUPTIAL DEBT –
o GENERAL RULE: ante-nuptial debt shall not be the obligation of the ACP or
the CPG –
o UNLESS the same has REDOUNDED TO THE BENEFITS of the family.
o So if the ante-nuptial debt – does not redounded to the benefit of the family –
the same shall remain as the obligation of the DEBTOR-SPOUSE.

LET US GO TO: DEBTS INCURRED DURING THE MARRIAGE:

o If the debt was incurred by both of the spouses – automatic – that is the
obligation of the ACP or CPG.
o Likewise, if the debt was contracted but WITH the CONSENT of the other
spouse – that is subject to the obligation of the ACP or CPG.
o But if the debt was contracted by one WITHOUT the CONSENT of the other –
even if the debtor spouse is the ADMINISTRATOR spouse – GR: such debt is
not the obligation of the ACP or CPG.
o UNLESS it redounded to the benefit of the family.

o Now who must be going to prove, that the debt has redounded to the
benefit of the family?
o That is the problem ordinarily of the creditor.
o The creditor has the obligation to prove – that the debt has redounded to the
benefits of the family.

o Take Note: That there will be a legal PRESUMPTION.

o If the debt was contracted by one – without the consent of the other but it was
use for the family business
o Again, Even if the debt was use for the FAMILY BUSINESS – even if the debt
was contracted only by one of them without the consent of the other – it will
create the presumption that such debt has redounded to the benefit of the
family.
o But with respect to that point – let us be careful – titingnan natin

Is the debtor-spouse – the PRINCIPAL BORROWER?

o If the debtor-spouse is the PRINCIPAL BORROWER – and he was the only
recipient of the proceeds of the loan ....... and the loan were use for the family
business – it will create the presumption that such has redounded to the
benefit of the family.
o But if the spouses ACTED merely as a GUARANTOR or a SURETY – of
another person, and it was that another person who obtain the proceeds of
the loan.

Page | 122
 o In that situation, the debt is NOT presumed to have redounded to the benefit
of the family.
o It will be the BURDEN of the CREDITOR – to prove that having acted as a
surety or guarantor – have redounded to the benefit of the family.

WHAT IF ONE OF THE SPOUSES IS THE PRESIDENT OF A COMPANY?

o And the principal borrower is the company.
o And the President/husband was required to act as a SURETY or the
GUARANTOR of the loan of the corporation.
o Can we say that that debt has redounded to the benefit of the family because
afterall the husband is the President of the company and has receiving
salaries from the corporation?
o That is NOT the KIND of DEBT contemplated by the law.
o The BENEFIT – that is contemplated by the law is the DIRECT BENEFIT from
the PROCEEDS of the loan.

LET US GO TO: TAXES AND EXPENSES:

o On the matter of taxes tingnan natin –
o If the tax is falling on the community or conjugal property – that tax is the
obligation of the ACP or CPG.
o But if the tax is falling on an Exclusive property ......
o GENERAL RULE: That is the obligation of the SEPARATE PROPERTY of the
spouses.
o EXCEPT: If the property was being used for the benefit of the family.
o But if that property was being used by the family – the tax will now be the
obligation of the ACP or CPG.

EXPENSES INCURRED FOR THE REPAIR OF THE PROPERTY:

o If the repair is to be made on the ACP or CPG – whether the repair is major or
minor then the expenses incurred is for the account of the ACP or CPG.
o But if the property subjected to repair is an EXCLUSIVE property......
o GEN RULE: That is not the obligation of the ACP or of the CPG.
o EXCEPT: If three (3) requisites will be present:

THREE (3) REQUISITES ON THE REPAIR OF EXCLUSIVE PROPERTY:

1) The repair is MADE DURING the marriage;
2) That property is USED by the family; and
3) The PURPOSE OF THE REPAIR is for the PRESERVATION of that
exclusive property.

o If all of those 3 requisites will be present, the expenses for the repair will now
be borne by the ACP or CPG.
o The repair on a separate property shall become the obligation of the ACP or
CPG – if it was made during the marriage; the property is used by the family
and the purpose of the repair is PRESERVATION of the property.

CASE OF BUADO VS CA (GR No. 145222 – Apr 24, 2009):

Page | 123
 o We are __ with that if one of the spouses is liable to PAY CIVIL LIABILITY
arising from DELICT OR QUASI-DELICT that is the obligation of the separate
obligation of the debtor-spouses.
o That is not the obligation of the ACP or CPG.
o But what if the debtor spouse does not have any property or what if the
property was not sufficient to cover for that civil liability?

Q? May the AC property or CP property be required or compelled to advance

the PAYMENT OF THE CIVIL LIABILITY?
o ANS: We will have to distinguish.
o If the property regime is ACP – the Absolute Community can be compelled
and be required to advance the payment of civil liability arising from DELICT
or QUASI-DELICT, if the debtor-spouse does not have sufficient SEPARATE
Property to pay for it.
o But if the property regime is CPG – the CPG cannot be compelled or
required to advance the payment of civil liability.
o There is no obligation for the CPG to advance the payment of civil liability
arising from delict or quasi-delict.
o That is one of the basic distinctions between ACP and CPG.

NOTE: That the said ruling of the SC in BUADO vs CA – is also applicable to

the following THREE (3) OBLIGATIONS:
1) Payment of ANTI-NUPTIAL DEBT - which did not redound to the benefit of
the family;
2) Payment of LEGAL SUPPORT - due to an ILLEGITIMATE child; and
3) Payment of civil liability arising from delict or quasi-delict.

o So with respect to the following three (3) obligations:

1) Payment of Ante-nuptial debt which did not redound to the benefit of the
family; and
2) Payment of legal support due to an illegitimate child –
3) Payment of civil liability arising from delict or quasi-delict.
RULES APPLICABLE:

A. If the property REGIME IS ACP – the AC can be required to advance the

payment of those obligations in the event that the debtor-spouse, does not
have sufficient property to pay for it.
B. But the CPG - cannot be required to advance the payment of those
obligations.

 WHY? If you will look at the provisions on conjugal partnership, the CP will
only be liable for the payment of those obligations – in case of the
INSUFFICIENCY OF THE PROPERTY of the debtor spouse if the other
obligations of the CP had already been satisfied.
 So merong PREFERENCE in CPG
 Unahin muna yung ibang obligasyon ng Conjugal bago ang CPG can be
required to pay those three obligations in the event of insufficiency of
property of the debtor spouse.

Page | 124
LET US DISCUSS: THE DIFFERENT WAYS OF TERMINATING
THE ACP OR CPG:

1. DEATH
 Since death is one of the ways of terminating the marriage – upon the
death of one of the spouses the ACP or CPG – is likewise terminated.
 BUT NOTE of there is a mandatory requirement on the part of the
surviving spouse - in case the termination is by way of death.
 The surviving spouse – is required by law to liquidated the ACP or CPG
within the period of ONE (1) YEAR from the death of the deceased
spouse.

What would be the consequences for failure to liquidate the ACP or

CPG within 1 year upon the death of the deceased spouse?

 ANS: THE FOLLOWING ARE THE CONSEQUENCES:

1) Any disposition or encumbrance of the property of the ACP or the
CPG shall be void.
2) In the event that the surviving spouse – will contract a subsequent
marriage, the subsequent marriage shall be governed mandatorily
by the regime of COMPLETE SEPARATION.

2. The FC mentioned the DECLARATION OF NULLITY of marriages – as a

way of terminating the ACP or CPG.
o Take note that we will be discussing later that if the marriage is void –
ordinarily there is no ACP, there is no CPG
o Because the property regime in VOID marriages – is either ART 147 or
148.
o There is only ONE VOID marriage – where ACP or CPG may possibly
exist.
o Anu yun?
o That VOID marriage by reason of – ART 40 FC
o So it is only in a void marriage – by reason of ART 40 – that the declaration
of nullity of the marriage will serve as a means of terminating the ACP or
CPG.
o So when the FC speaks of the declaration of nullity of marriage as a way of
terminating the ACP or CPG – it only refers to that void marriage by reason
of ART 40.

3. Annulment of marriage – is also a way of terminating the ACP or CPG.

4. Likewise, a decree of legal separation.

5. And also in judicial separation of property whether the purpose is

voluntary, we likewise terminate the ACP or CPG.
o TAKE NOTE: The spouses cannot terminate their ACP or CPG – by way of
an EXTRA-JUDICIAL AGREEMENT.

Page | 125
 o Even if the spouses do execute an agreement for the termination of their
ACP or CPG – but if that agreement was not approve by the court, that
agreement will not produce any legal effect.
o Likewise, the SEPARATION DE FACTO – separation-in-fact of the spouses
will not affect the ACP or CPG

LET US DISCUSS: COMPLETE SEPARATION:

When it would be possible for COMPLETE SEPARATION of property to
govern the relations of the spouses?

o ANS: It will govern only in the following situations:

1) If it was provided for in a marriage settlement.
2) By virtue of a court order – either obtained in Legal Separation or voluntary
separation of property or Separation of property by reason of a cause.
3) Lastly, if there was a prior marriage which was terminated by death and
the surviving spouse has not liquidate the ACP or CPG of the prior
marriage within the period of 1 year from the death of the deceased
spouse and the subsequent spouse contracted a subsequent marriage –
then the subsequent marriage will be govern mandatorily by a regime of
COMPLETE separation.
o So those are the three situations where complete separation may govern the
property relations of the spouses.

o NOTE: The separation of property may either be – PARTIAL or TOTAL

o If the separation agreed upon is only PARTIAL – with respect to the other
property – that will be govern by the REGIME OF ACP.
o The separation of property may refer only to present property but not to
future property.

LET US DISCUSS: JUDICIAL SEPARATION OF PROPERTY:

o Judicial Separation of property may be had by the spouses – either
VOLUNTARILY.
o If not voluntarily – there must be a CAUSE.
o Or even in the absence of a ground – the spouses can FILE a JOINT
PETITION for the voluntary separation of their property.
o The net effect of that voluntary separation is the termination of their ACP or
the CPG.
o And afterwhich they shall be governed by a REGIME OF COMPLETE
SEPARATION.
o If it is a case of VOLUNTARY SEPARATION – there is no need for a CAUSE
or GROUND or REASON for the separation of the property.
o The spouses can resort to that and agree without any reason.
o EXCEPT: That the agreement of the parties to terminate their ACP or CPG
must be APPROVE by the COURT.

Page | 126
 o Again, as has been said earlier – the agreement to terminate the ACP or CPG
will have no legal effect if it was not approve by the court.

After resorting to voluntary separation of their property – can they

REVERT back to their PREVIOUS Property Regime?
o ANS: YES. They can do so. Simply by executing an agreement for the revival
of their previous property regime.
o And the procedures are the same procedure that was previously discussed in
the case of Revival of the previous property regime of the spouses upon
Reconciliation in case of Legal Separation.

Q? After the spouses have revived their previous property regime – can
they resort again to Voluntary separation of their property?
o ANS: NO.
o WHY? Because VOLUNTARY SEPARATION can only be DONE only ONCE.
o If the spouses cannot agree – to voluntary separation – there can only be
judicial separation pursuant to a cause, if there will be a cause that will
support it.
o And the CAUSE was enumerated in the FC.

After resorting to judicial separation of their property by reason of a

cause – can the spouses revive their previous property regime?
o ANS: Yes. Upon the cessation of the cause.

Can they revert back again to judicial separation?

o ANS: YES. If there will be a NEW CAUSE.

Can they revert back again to their previous property regime?

o ANS: Yes upon the CESSATION OF THE NEW CAUSE.

Can they revert back again to Judicial Separation?

o ANS: So long as there will be a new cause and so on and so forth.

LET US DISCUSS: ART 147 AND ART 148:

There are two (2) situations contemplated in 147 and 148.
1) FIRST: No marriage.
2) SECOND: There is marriage but the marriage is VOID.

Let us discuss the first. (1) NO MARRIAGE:

o If there is no marriage – the property regime will be 147 if two (2) requisites
will be satisfied:

TWO (2) REQUISITES IN 147:

1) The man and woman are cohabiting as husband and wife EXCLUSIVELY.
2) They are CAPACITATED to marry each other.

Page | 127
o Both requisites must be satisfied in order for the cohabitation to fall under ART
147.
o It must be a case of EXCLUSIVE COHABITATION.
o In other words, even if they are capacitated to marry each other but the
cohabitation is not exclusive – if it is a case of multiple alliances – ex. Binata
ka, marami ka kinakasama and you are capacitated to marry each other –
again with respect to this thing both are capacitated to marry each
other.....then that kind of cohabitation will not fall under 147. It will fall under
148 (multiple alliances).

(2) THEY ARE CAPACITATED TO

LET US DISCUSS the 2 nd:
MARRY EACH OTHER:
o In other words, even if the cohabitation is EXCLUSIVE but if the two are not
capacitated to marry each other then it will fall under ART 148.
o As had been, both requisites must be satisfied in order for that cohabitation to
fall under 147.
o Again, it must be a case of Exclusive Cohabitation and they are capacitated to
marry each other.
o If both requisites will not be satisfied that cohabitation will fall under 148.
o In other words if the marriage is VOID – there is no ACP or CPG.
o In void marriages – regardless of the cause thereof, the property regime is
either 147 or 148.
o There is no ACP/there is no CPG – in a VOID MARRIAGE.

EXCEPT: (only 1 exception)

o In a VOID marriage by reason of ART 40.
o That is the only VOID marriage where ACP or CPG may exceptionally exist.
o In other words, marriages other than ART 40 – the property regime is either
147 or 148.

When is there a VOID marriage under 147 and where is it under 148?
o That differs on the GROUND.

NOTE:
o If the GROUND FOR NULLITY – is NOT ABSENCE OF LEGAL CAPACITY
then that would be 147.
o But if the GROUND FOR NULLITY – is ABSENCE OF LEGAL CAPACITY that
will fall under 148.

Example of VOID marriages that will fall UNDER ART 147:

1) The marriage which is void simply because there was NO MARRIAGE
LICENSE.
2) A marriage which is void by reason of PSYCHOLOGICAL INCAPACITY
(ART 36 FC) – according to the SC in a number of cases.
3) A void marriage by reason of – FAILURE to COMPLY of the procedural
requirement in ART 52.
 In other words, a void marriage under ART 53 – will likewise fall
under 147.
Page | 128
 Example of VOID marriages that will fall UNDER ART 148:
1) If one of the parties is BELOW 18yo.
 WHY? Because the ground for the nullity – is absence of LEGAL
CAPACITY.
2) Incestuous marriages – marriages which are void by reason of PUBLIC
POLICY.
 WHY? Because the ground for the nullity is absence of LEGAL
CAPACITY.
3) Bigamous marriages
4) Marriage under the state of ADULTERY or CONCUBINAGE.
5) Polygamous marriages

o After having determined the COHABITATION of marriages that will fall under
147 or 148 – LET US NOW DISCUSS:

THE CONSEQUENCES OF ART 147 & 148:

HOW DO WE DISTRIBUTE?

1) SALARY and WAGES - earned by the parties during the cohabitation:

 If the property REGIME is ART 147 – with respect to salaries and
wages - shall be OWNED EQUALLY by the parties.
 Even if only one of them is the ACTUAL EARNER.

 But if the property REGIME is ART 148 – with respect to wages

and salaries – the same shall be OWNED EXCLUSIVELY by the
party who actually earned it.

2) What about the PROPERTIES ACQUIRED DURING the cohabitation?

 So walang problema sa properties acquired PRIOR TO
COHABITATION.
 Walang problema sa properties acquired AFTER THE
COHABITATION.
 The only problem is with those properties that will be acquired
DURING the cohabitation.

 HOW DO WE TREAT THOSE PROPERTIES?

 If the property regime is ART 147 – with respect to properties
acquired during the cohabitation – through the JOINT EFFORT of
the parties there can be a state of CO-OWNERSHIP over those
properties.
 And there is a presumption that the parties are EQUALLY
ENTITLED.
 They have an EQUAL SHARE in the co-ownership if the property
regime is 147.
 Again, in 147 the properties acquired during the cohabitation by
joint efforts of the parties shall be under state of co-ownership and
Page | 129
 the parties shall be presumed that they have equal interest in the
co-ownership.
 And what is important in 147 – is that even if the effort/even if the
contribution of one, is only in the form of MAINTENANCE and
TAKING CARE of the family household – the same is considered as
SUFFICIENT CONTRIBUTION.
 Then you will have a share in the property under the state of co-
ownership.

 But ART 148 – provides a LIMITED CO-OWNERSHIP

 With respect to ART 148 – the properties acquired during the
cohabitation – the same shall be considered under the state of
special co-ownership ONLY IF there was PROOF of ACTUAL
CONTRIBUTION in the form of MONEY; INDUSTRY or
PROPERTY.
 Again, in 148 in order for the co-ownership to arise – there must be
ACTUAL PROOF – of actual contribution in the form of money,
property or industry.
 In other words, in 148 – if the contribution of one is simply in the
forms of maintenance and taking care of the household/family home
– the same is not considered as sufficient contribution because the
law requires ACTUAL CONTRIBUTION – in the form of money,
industry or property.
 In the absence of PROOF of Actual Contribution – co-ownership
does not arise.

LET US GO BACK TO ART 147:

o In 147 – there is a state of co-ownership with respect to properties acquired
during the cohabitation through the JOINT EFFORTS of the parties.
o But take note that even if there is a co-ownership in 147 – ART 493 NCC does
not apply.
o In other words, Anu ba sabi ng ART 493 of NCC – ART 493 of the NCC
provides that one of the co-owners can dispose or encumber the IDEAL
SHARE of the other in the properties even without the consent of the other co-
owner
o But take note in 147 – there can be NO DISPOSITION or ENCUMBRANCE of
the IDEAL SHARE of one of the parties in the co-ownership WITHOUT having
the CONSENT of the other party, if the disposition or encumbrance is to be
made DURING the cohabitation.
o In 147 one of the co-owners – cannot dispose or encumber his IDEAL SHARE
in the co-ownership DURING the cohabitation without the consent of the other
co-owner.
o Any such disposition or encumbrance shall be considered as INVALID.
o In other words, in order for ART 493 NCC to apply in 147 – the disposition or
encumbrance must be made AFTER the cohabitation.

o As what had been resolved in the case of METROPOLITAN BANK AND

TRANS COMPANY vs PASCUAL (2008).

Page | 130
 o NOTE: In ART 147 – if there was a marriage and the marriage is void – and
one of the parties ACTED IN BAD FAITH, the SHARE of the one who acted in
bad faith in the co-ownership shall be forfeited.

IN FAVOR OF WHOM?
1) Common children if there is any;
2) In the absence of common children - In favor of surviving legitimate
descendants of the one who contracted the marriage in BAD FAITH;
3) In the absence of children – in favor of the other party who contracted the
marriage in GOOD FAITH.

o NOTE: In ART 148 – if there was a valid marriage – the share of one in the
co-ownership shall pertain to the VALID MARRIAGE.
o In the absence of a valid marriage – if one of the parties or both of them –
contracted the marriage in bad faith, then there shall likewise be a forfeiture of
the share in the co-ownership in favor of whom?

IN FAVOR OF WHOM?
1) Common children if there is any;
2) In the absence of common children - In favor of surviving legitimate
descendants of the one who contracted the marriage in BAD FAITH;
3) In the absence of children – in favor of the other party who contracted
the marriage in GOOD FAITH.

LET US GO BACK: TO THE PROCEDURE IN THE LIQUIDATION OF ACP

AND CPG:

o TAKE NOTE: That TERMINATION is different from LIQUIDATION.

o TERMINATION – will arise/it is automatic - upon the occurrence of the
cause
o But with respect to LIQUIDATION – requires a POSITIVE ACT on the part
of the spouses.

METROPOLITAN BANK AND TRANS COMPANY (MBTC) vs

PASCUAL (2008):
o In the case of MBTC vs PASCUAL -
o The marriage was terminated by the declaration of the nullity of the marriage
of the spouses on the ground that one of them is PSYCHOLOGICALLY
INCAPACITATED.
o The judgment became FINAL.
o After the judgment became final – later on the woman dispose one of the
properties that was ACQUIRED DURING THE COHABITATION but the
disposition is without the consent of the MAN/the other former spouse.

A. WAS THE DISPOSITION VALID OR NOT?

o Nagkaroon pa ng discussion ang SC. Was the property a conjugal partnership
property?

Page | 131
o SC said: It was acquired during the marriage – so it is presumed to be
conjugal.
o In the first place – the marriage was already declared void – on the ground of
ART 36 FC (Psychological Incapacity).

o In a number of cases previous to MBTC vs PASCUAL – the SC already

pronounced that if the marriage is void due to PI – the property regime is ART
147.

CASES PREVIOUS TO MBTC:

1) Malverse? vs RTC of QC (Branch 102)
2) Buenaventura vs CA
3) Mercado vs pren?
o That if the marriage is void by reason of PI – the property regime is ART 147
o So therefore there is NO CPG.
o So in discussing the Question of whether or not the property is Conjugal – it is
NOT.

B. WAS THE DISPOSITION VALID WITHOUT THE CONSENT OF THE OTHER

PARTY?
o VALID.
o Nagkaroon ba ng ganitong diskusyon ang SC.
o Sabi ng SC – the marriage was already terminated but there was NO
LIQUIDATION of the CPG.
o So the SC – came up with a TERM – we refer to that as the determination of
the marriage but prior to the liquidation of CPG ___ the pre-liquidation stage.
o During the pre-liquidation stage – the property is under the state of co-
ownership.
o So the SC – applies the provision of ART 493 NCC.
o So the court declared that transaction as valid with respect to the share of
other co-owner.
o But it did not affect the share of the non consenting co-owner.
o NOTE: The property regime of the parties is 147 if the marriage is void by
reason of Psychological incapacity.
o And under 147 – the disposition of the ideal share of one is without the
consent of the other is prohibited only during the cohabitation.
o If the disposition of the ideal share – was made DURING THE
COHABITATION – the disposition is INVALID.
o But if the DISPOSITION – was made AFTER the COHABITATION – ART 493
NCC will now apply.
o Because there is a state of co-ownership and there was no more prohibition in
the cohabitation – in which case ART 493 of NCC will now apply
o And now one of the co-owners - can dispose validly his ideal share without
need of any consent of the other co-owner
o In the case of MBTC vs Pascual – since the disposition was made AFTER the
cohabitation of the parties.....naghiwalay na sila after the declaration of nullity,
so ART 493 will now apply.
o Because the provision under 147 – is no longer applicable.
Page | 132
LET US NOW DISCUSS ART 150 AND 151:
o Let me illustrate ART 151.
o In cases of SUIT – of the members of the same family the law requires that
there must be PRIOR EXHAUSTION/EXERTION of EARNEST EFFORT –
towards a COMPROMISE.
o If the suit involves members of THE SAME FAMILY – the law requires that
prior filing of the suit there must be EXHAUSTION/EXERTION first of
EARNEST EFFORT towards a COMPROMISE.
o That requirement according to the SC – is JURISDICTIONAL.
o Meaning – there must be a CONDITION PRECEDENT before the institution
of the action.
o If not complied with – there is a ground for the dismissal of the complaint.
o Because a condition precedent is not complied with.
o So if the ground is for failure to comply with ART 151 – it is a ground for the
dismissal of the complaint.
o But the requirements of Earnest Effort towards a Compromise – is required
only if the SUIT – involves MEMBERS of THE SAME FAMILY.

SO WHO WILL BE CONSIDERED AS MEMBERS OF THE SAME FAMILY?

o The term members of the same family – refers to the FAMILY RELATIONS
provided for in ART 150.
o So those persons enumerated under ART 150 are considered as members of
the same family.
o The SC had already explained in a number of cases that the term “members
of the same family” in ART 151 – refers to the family relations who were
included in ART 150.
o So only those enumerated in ART 150 are considered as members of the
same family.

Who are those?

1) Spouses (husband and wife)
2) Ascendants and descendants
3) Parent and children
4) Brothers and sisters – whether of full or half blood.

o Or it does not state whether – it legitimate or illegitimate – because the law did
not qualify.
o Pwede bang parents-in-law; children’s-in-law – mga IN-LAWS are NOT
CONSIDERED as members of the same family.
o So once there is a STRANGER to the suit – whether PARTY DEFENDANT or
PARTY PLAINTIFF – once there is a stranger to the suit or one who is not a
member of the same family then there is no need for an Earnest Effort
towards a compromise.
o EARNEST EFFORT towards a COMPROMISE – is required only if the suit is
EXCLUSIVELY between or among members of the same family.

Page | 133
 o Once there is A STRANGER to the suit – or one who is not a member of the
same family – there is no need to comply with the requirement of earnest
effort towards a compromise in ART 151.
o So if the suit involves your in-laws – then there is no need for an earnest effort
towards a compromise because there is now a stranger to the suit.
o Ganun lang naman kasimple ang ART 150-151.

LET US DISCUSS NOW: THE CONCEPT OF FAMILY HOME:

o Let us compare the manner of constitution of the FAMILY HOME under the
CIVIL CODE and the FAMILY CODE.
o FAMILY HOME – is the family residence or dwelling including the land where
it is situated

UNDER THE CIVIL CODE:

o A family dwelling will only be constituted as a family home – by way of either a
JUDICIAL or EXTRAJUDICIAL CONSTITUTION.

1) JUDICIAL - is by filing an action in court for the constitution of the FH.

2) EXTRAJUDICIAL – is by way of executing a public instrument declaring
the family dwelling as a family home and the public instrument must be
recorded in the registry of property.
o
o So under the NCC – that is the manner of constituting a FH.
o Under the NCC – the mere actual occupancy of a family dwelling as a family
residence shall automatically convert the family dwelling into a FH.
o But it must be necessary that there must be ACTUAL OCCUPANCY.
o And it must be necessary that the actual occupancy must be made by a
BENEFICIARY of the FH.
o So in other words – if the actual occupancy was made only by a “KATIWALA”,
katulong or administrator, one who is not a beneficiary of the family home –
that family residence is not constituted as a FH.
o Again, it must be necessary that the ACTUAL OCCUPANCY must be made by
the BENEFICIARY of the FH.
o So under the FC – a family dwelling is automatically constituted as a FH upon
mere ACTUAL OCCUPANCY by a beneficiary to a home.

Q? Yung provision of the FC, may retroactive effect ba yan?

o EX. Between 1985 the husband and wife purchase a house and lot and
beginning 1985 they occupied it as a family residence.
o But in 1986 to 1988 – there is no constitution of the family dwelling as a FH by
way of either judicial or extrajudicial constitution.
o Dumating ang FC – ang sabi ng FC mere ACTUAL OCCUPANCY will
automatically constitute as a FH.
o May that provision be applied retroactively so that to make that house a FH
beginning 1985.

o ANS: NO.

Page | 134
 o There is no retroactive provision of the FC
o But that house – is automatically constituted as a FH beginning – THE
EFFECTIVITY OF THE FC (August 3, 1988).
o It cannot be considered as a FH since 1985.
o Because the provision of the FC – do not have retroactive application.
o Importante yan – because if there were OBLIGATIONS contracted prior to the
constitution of the FH- the FH does not enjoy any exception.

WHAT IS THE IMPORTANCE OF THE CONCEPT OF A FAMILY HOME?

o The importance of the concept is that a FH – enjoys PROTECTION.
o Protection from what?
o Protection from:
 Forced sale;
 Attachment;
 Levy; and
 Execution.
o In other words, a FH cannot be subjected to attachment, forced sale or
execution.
o BUT THERE IS A QUALIFICATION – protection accorded by law to a FH is
subject to a MAXIMUM AMOUNT.

What is the MAXIMUM AMOUNT?

1. Php 300,000.00 – in Urban areas;
2. Php 200,000.00 – in rural areas

o In other words, while the FH is protected to attachment, levy, forced sale or

execution - it is protected only up to the amount of 300k in urban and 200k in
rural
o Take note: That in ART 160 FC – if there is a CREDITOR who is not
mentioned in ART 155 FC – if there is a creditor not belonging to ART 155
FC16, and that creditor believes and has a well founded belief that the value of
the FH EXCEEDS the maximum amount allowed by law – then that creditor
can apply for an ORDER FOR THE SALE of the FH.
o Again, because the FH does not enjoy protection beyond the 300k or 200k
amount as the case maybe.
o So if the creditor has a well founded belief that the value of the FH exceeds
the amount of 300k or 200k as the case maybe – that creditor can apply to
recover for the sale of the FH
o NOTE: The 300k and 200k – is protected
o So sabi ng batas there can be NO FEE LOWER THAN the - 300k or 200k
o WHY? Kc yung 300k or 200k – ibabalik natin yan sa Family.

16
ART 155. The FH shall be exempt from execution, forced sale or attachment, except:
1) For non payment of taxes;
2) For debts incurred prior to the constitution of the FH;
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.
Page | 135
 o FOR WHAT PURPOSE?
o For the creation of another FH.
o So in other words, the judgment creditor will only be entitled to the EXCESS.
o EXCESS beyond 300k or 200k
o Only the excess can be apply to the judgment credit.

o BUT NOTE: There is a 2nd case for which the FH does not enjoy any
protection at all.
o Zero protection – even with respect to that 300k or 200k.
o And those range are enumerated in ART 155 FC
o There are four cases were the FH does not enjoy any protection at all even
with respect to that amount of 300k or 200k as the case maybe.

WHAT ARE THOSE CLAIMS?

1) Non payment of taxes;
2) Debt incurred prior to the constitution of the FH;
3) Debt secured by the FH as a collateral (on a real estate mortgage),
whether the debt was contracted PRIOR or AFTER the constitution of the
FH; and
4) Debts for unpaid wages for workers in relation to the construction of the
FH
 Or claims due to suppliers who furnished the materials – for non
payment of the materials in relation to the construction of the FH.
o In view of all of the above – the FH does not enjoy any protection.
o The FH does not enjoy any protection if it was made as Collateral in a REAL
ESTATE MORTGAGE (REM).

WHO ARE THE BENEFICIARIES OF THE FM (ART 154 FC17)?

o Take note that a person can only be a beneficiary of ONE FH.
o So kahit marami kang bahay you are entitled only to 1 FH.
o Kahit marami kang pamilya – you are entitled to only 1 FH.
o You can be a beneficiary of only one FH.
o With respect to the beneficiaries of a FH, take note there are two (2) sets of
beneficiaries:

TWO (2) SETS OF BENEFICIARIES OF THE FAMILY HOME:

1) FIRST SET OF BENEFICIARIES: The person who constituted the FH.

 Who are they?
a) The husband and wife.
b) Or an UNMARRIED Head of the Family.

2) SECOND SET OF BENEFICIARIES: The relatives of the person who

constituted the FH.
a) Either the parents
17
ART 154. The beneficiaries of the FH are:
1. The husband and wife, or an unmarried person who is the head of the family; and
2. Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate
or illegitimate, who are living in the FH and who depend upon the head of the family for legal support.
Page | 136
 b) Children
c) Ascendants
d) Descendants – it contemplates all descendants of the person who
constituted the FH WITHOUT DISTINCTION (Patricio vs Dario III).

 Ubi lex non distinguit nec nos distinguire debemos. – “Where

the law does not distinguish, we should not distinguish”.
 BUT NOTE: In case of grandchild – the HIERARCHY or the
ORDER OF LIABILITY for support must be establish to determine
the requirement that the minor (or grandchild) beneficiary actually
living in the FH is dependent for legal support upon the head of the
family.
 So if the grandchild still has the father to support him, the
grandmother who is the surviving spouse of the person who
constituted the FH cannot be said to be the Head of the Family
whom the grandchild must be dependent for legal support
 The father of the child shall first - then the grandmother only in the
absence of the father of the dependent child.
 We follow the HIERARCHY OR THE ORDER OF LIABILITY for
SUPPORT under ART 199 FC18.

e) Brothers or sisters
 (whether legitimate or illegitimate)
 Note: In-Laws included – case of Patricio vs Dario III

BUT NOTE:
 But with respect to the 2nd set of beneficiaries, in order for them to
be a beneficiary there are two (2) requirements:
1) They must be actually living in the FH; and
2) They are dependent for support upon the head of the family.
 Otherwise, they are not beneficiary.
 Remember that – the 2nd part is the tricky and a possible bar
problem.

o Tandaan: They must be those enumerated in – ART 154 FC.

o So relatives’ sila – parents, ascendants, descendants, children, brothers or
sisters (whether FULL or HALF BLOOD/whether LEGITIMATE or
ILLEGITIMATE).
o Subject to the CONDITIONS that they are beneficiaries who are (1)
ACTUALLY LIVING in the FH and (2) they are dependent for LEGAL
SUPPORT upon the head of the family.
o Otherwise, they are not beneficiaries of the FH.

18
ART 199 FC. 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.
Page | 137
 WHAT WILL BE THE EFFECT OF THE DEATH OF THE PERSON WHO
CONSTITUTED THE FH?
o So pag namatay yung person who constituted the FH, so magiging part na
sya ng inheritance.
o Can it be subjected to PARTITION – pwede ba?
o ANS: It depends:
RULE:
1. If it continues to be a FH after the death of the person who constituted it -
the law PROHIBITS the PARTITION of the FH unless there is a
COMPELLING REASON to do so.
2. But if the FH no longer continues as such after the death of the person
who constituted it – it can now be subjected to PARTITION.
When will the FH continue upon the death of the person who constituted
it?
o ANS: Sabi ng Batas – ART 159 FC19
o Upon the death of the person who constituted the FH – the FH continues as
such, for another period of TEN (10) years from the death of the person who
constituted it – if there is a beneficiary residing therein AT THE TIME of the
death of the person who constituted the FH.
o Again, so long as there is a beneficiary – whether MINOR or of person of
LEGAL AGE – actually living at the FH upon the death of the person who
constituted it, the FH continues for another 10 years.

WHAT WILL HAPPEN AFTER THE LAPSE OF 10 YEARS? (BAR Q)

o If there will be a MINOR BENEFICIARY after 10 years – then FH continues as
such until the minor reaches the age of majority.
o And during the time that the FH continues as such, the law PROHIBITS the
PARTITION of the FH unless there is a COMPELLING REASON to do so.

Case of PERLA PATRICIO VS MARCELINO DARIO III (GR No. 170829 –

Nov 20, 2006)
o In this case, it was the husband who constituted the FH.
o And the husband of course has a wife and two children A&B and all of legal
age.
o And “A” likewise has a minor child “C”.
o Upon the death “A”
o The parties are: W, A,B and C
o But W, A&B at the time of “H” death – they were NOT RESIDING in the FH.
o Only “C” was residing in the FH
o And W & A after the death of H, cannot agree to Partition the House and Lot.
o But “A” oppose the Partition – on the ground that upon the death of “H” –
continues as FH
o Why? Because “C” is still living with them.

19
ART 159. The FH 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 courts find compelling reasons therefor. This rule shall apply regardless of whoever owns the
property or constituted the FH.
Page | 138
Q? In order for the FH to continue as such, “C” must be a beneficiary of the
FH. But is “C” a beneficiary of the FH?
o Take note that “C” is only a relative of the person who constituted the FH.
o So in order for “C” to become a beneficiary – he must satisfy two requisites:
(1) Is he actually living in the FH?
 YES. That requirement was satisfied
(2) Is he dependent for Legal Support upon the head of the Family?
 Who is now the head of the family?
 So it is “W”
 Is “C” dependent for legal support to “W”?

o Because under the FH – if there are two or more persons who maybe obliged
to give legal support there is an ORDER OF LIABILITY under the provision of
ART 199 FC.
o ART 199 said – if there are two or more persons liable to give support there is
AN ORDER OF LIABILITY.

WHO SHALL BE LIABLE IN THE ORDER MENTIONED?

1) Spouse;
 So kung meron kang asawa – the one who is primarily liable to you
– should be your spouse.
 Kung wala asawa, bababa tayo.
2) Descendants in the nearest degree;
 Kung walang descendants – aakyat tayo
3) Ascendants in the nearest degree; and
4) Lastly, brothers or sisters.
o Ok let us go back to “C”

WHO IS LIABLE TO “C”?

o According to SC there is an order of liability.
o Since “C” is not married – the one who will be liable to “C” will be the
ascendants. But sabi ng FC – the ascendants in the nearest degree.

Who is the ascendant in the nearest degree?

o So it is “A” who is liable to “C” for legal support.
o Therefore, “C” is dependent for legal support not from “W” but from “A”
o So, “C” is not a beneficiary of the FH.
o Since at the time of “H” death there is no beneficiary residing in the FH - it can
now be subjected to partition.

TAKE NOTE: That the RIGHT to invoke the defense of FH – is PERSONAL to

the beneficiaries.
o That defense cannot be invoked by __. It must be invoke personally by the
beneficiary of the FH.

When is the proper time to invoke it?

o ANS. It must be invoked PRIOR to the AUCTION SALE.
o So if it will be invoked only after the auction sale – then that would be too late.
Page | 139
LET US NOW DISCUSS: PATERNITY AND FILIATION:
o There will be several cases that will be asked on PATERNITY AND
FILIATION.
o When we talk of PATERNITY – paternity means the civil status of the
FATHER in relation to the child.
o When we talk of FILIATION – it is the civil status of the PARENTS in relation
to the child.

WHAT ARE THOSE RULES PROVIDING PATERNITY?

o We don’t need rules, governing maternity, naintindihan nyo naman siguro
kung bakit.
o NOTE: The mother is sure but the father is not.
o The mother is sure that she is the mother but the father is not sure whether
indeed he is the father of the child.
o In our rules, meron tayong tinatawag na NATURAL FILIATION and
ARTIFICIAL FILIATION.
o
1. In NATURAL FILIATION – there is a blood relationship, whether that
relationship be legitimate or illegitimate.

 EXCEPTION: ARTIFICIAL INSEMINATION:

 There is only one case of natural filiation that there is no blood
relationship. We refer to that as ARTIFICIAL INSEMINATION using
a DONORs SPERM.
 If the husband agrees to have ARTIFICIAL INSEMINATION using a
donors sperm – and BOTH the husband and the wife CONSENTED
to that AI in WRITING
 And the WRITTEN AUTHORIZATION was EXECUTED PRIOR to
the BIRTH of the child.
 The child is considered a LEGITIMATE child of the husband and the
wife even if the child is not related by blood to the husband.
 That is a case of natural filiation.
2. The ARTIFICIAL FILIATION – it is an artificial one by way of ADOPTION.
 In that kind of relation the blood relationship may either be
legitimate or illegitimate.

LET US DISCUSS FIRST: ARTIFICIAL INSEMINATION:

o Alam nyo nab a yung konsepto ng AI?
o Only the FERTILIZATION – will be place outside the body of the woman.
o Yun lang FERTILIZATION.
o So the Fertilization stage – will takes place outside the body of the woman
thru ARTIFICIAL means.
o But after the Fertilization – the FERTILIZED EGG – will again be inserted
inside the woman’s body.
o It is necessary – and tinatawag nating AI – the FERTILIZED EGG must be
carried by the mother

Page | 140
 DOES SURROGACY RECOGNIZE IN OUR JURIS?
o NO. Our law does not recognize a SURROGATE mother of the child.

o What is that?
o Yung uupa ka ng ibang tao para magdalangtao.
o Our law does not sanction the SURROGATE MOTHER CONTRACT.
o That is against morality that is contrary to public policy.
o The law does not recognize its validity.
o What the law recognizes is Artificial Insemination.

o In AI – the egg is from the mother but the sperm may either come from the
husband or from a donor.
o The only requirement in artificial insemination is that BOTH the husband and
the wife must GIVE CONSENT in ADVANCE and they may RATIFY the
ARTIFICIAL INSEMINATION using either the sperm of the husband or the
sperm of a donor (ART 164 FC).
o But it is necessary that the CONSENT or RATIFICATION – must be IN
WRITING and it must be made PRIOR to the BIRTH of the child. The
instrument must likewise be registered in the civil registry together with the
birth certificate of the child.
o If the husband agrees to an AI using a donor’s sperm – later on he CANNOT
IMPUGN the legitimacy of the child on grounds or any known scientific
reasons.
o The law prohibits the act of impugning the child’s legitimacy – by resorting to
biological or scientific reason.
o In that situation the husband is already ESTOPPED from impugning the
legitimacy of the child in case of AI using a donor’s sperm.

LET US DISCUSS: NATURAL FILIATION:

o Natural filiation – which may either be LEGITIMATE or ILLEGITIMATE.
o TAKE NOTE: That the legitimacy of the child is determined in that part of the
validity of the marriage of their PARENTS.
o If the marriage of the parents is perfectly VALID – the child is legitimate.
o If the marriage of the parents is VOIDABLE – so if the period of conception
to the birth – took place prior to the finality of the judgment of annulment, the
child is legitimate.
o But if the marriage is VOID – GR. The child is illegitimate.
 EXCEPT: If the marriage is VOID because of ART 36 (Psychological
Incapacity) or because of ART 53.

o So we can establish the following rules:

 If the BIRTH or the CONCEPTION (take note it may either be the birth
or conception)
 If either of the conception or the birth took place inside a valid
marriage, the child is LEGITIMATE.
 It is sufficient that either the conception or the birth took place inside a
valid marriage, then the child is legitimate.

Page | 141
  But in order for the child to be ILLEGITIMATE – it must be necessary
that BOTH the CONCEPTION and the BIRTH took place OUTSIDE of
a valid marriage.
 So if the marriage is void, the conception and the birth took place
outside of a valid marriage.
 So generally the child would be illegitimate.
 EXCEPT: If the marriage is void by reason of ART 36 and 53.
 Those are the only two kinds of VOID marriages which produce
legitimate children.
o Because of the provision of ART 164 (AI) – there is a PRESUMPTION in
favor of legitimacy if the child is CONCEIVED or BORN inside a valid
marriage.
o The law presumed that the child is legitimate.
o Anu ibig sabihin nun – the presumption of the law is in favor of INNOCENCE.
o The law is favoring INNOCENCE. The law presumed that the culprit was the
husband.
o So the law presumed that it is the husband who is the father.
o So under that presumption – so long as the conception took place inside a
valid marriage the law presumed that the child is a legitimate child of the
husband and the wife. So the law presumed that the husband is the father of
the child.
o NOTE: That is the presumption of the HIGHEST ORDER.
o That presumption is NOT CONCLUSIVE – it can be rebutted
o But in order to rebut that presumption – there must be a clear CONVINCING
EVIDENCE to the contrary.

LET US APPLY THE PRESUMPTION – let us give an example on how that

presumption applies, by discussing two cases ON PRESUMPTIONS:

1. FIRST CASE: YAO vs TILLAO (2001 case)?

 This was already ask in the bar examination.
 The woman in that case was lovingly married to the husband (JOSE
YULO).
 And they were only SEPARATED IN FACT.
 And during that separation in fact – the woman had an illicit relation
on a wealthy Chinese.
 There was no marriage. The woman simply cohabited with the
wealthy Chinese.
 And out of that illicit relationship – a child was born.
 And the child was named after the wealthy Chinese.
 While the child was still young – the wealthy Chinese died.
 But the child was not given any share of the inheritance.
 So in order for the child to have a share in the inheritance – the
mother on behalf of the child filed an action – for the
RECOGNITION OF THE CHILD as an illegitimate child of the
deceased.

QUESTION? May the child be recognized as an illegitimate child

of the Chinese?
Page | 142
 ANS: NO.
 WHY NOT? Because the child is presumed to be a legitimate child
of the husband and the wife.
 Because the child was conceived and born inside a valid marriage.

What if in that case the biological father – the Chinese –

recognized the child as his, by signing/by recognizing his
paternity on the birth certificate of the child?
 ANS: Such recognition by the biological father cannot be given legal
effect.

WHY NOT? FOR TWO REASONS:

a) First Reason: The legitimacy of the child cannot be IMPUGNED
except by way of a DIRECT ACTION.
o And what is that direct action to impugn the legitimacy?
 It is an action impugning the legitimacy.
 In other words, the legitimacy of the child cannot be
questioned indirectly by way of a COLLATERAL ATTACK.
 So when the biological father admitted paternity over the
child – take note that it has the effect of COLLATERALLY
ATTACKING the legitimacy of the child which is not
sanctioned by the law.

b) Second reason: Under our law it is only the husband/the

presumed father who has the right to IMPUGN the child’s
legitimacy – if the presumed father is still ALIVE.
 The right to impugn the child legitimacy – is strictly a
personal right of the husband.
 So if the husband impugns the child’s legitimacy – parang
inaamin nya sa buong mundo na merong ipot sa ulo nya.
 So the law grants the husband, the right to keep the
secret to himself.
 So he may choose to keep the secret for himself by not
impugning the child’s legitimacy.
 Or he may choose of disclosing it to the public by filing an
action impugning the child’s legitimacy.
 So binibigyan ng batas ang asawang lalaki na hindi
Makita ng iba yung invisible na nakapatong sa ulo mo.
 Ikaw lang nakakaalam nun.
 But once you filed an action to impugn the legitimacy of
the child, you are making that known to the public.
 So if the husband is alive - only the husband can impugn
the child’s legitimacy.

 So following that principle, the child himself cannot

choose his own filiation
 The child cannot choose his own father.
 The child cannot file an action to claim illegitimate filiation
against the biological father.

Page | 143
 Why NOT?
o First. Because that action to claim legitimate filiation is an
INDIRECT WAY of impugning his own legitimacy.
 That is not sanctioned by the law.
o Secondly, the child has NO PERSONALITY to impugn his
own legitimacy.
 Only the husband/the presumed father has the right to do
that.

 So in that situation – the illegitimate child can only file

an action to claim legitimate filiations against the
biological father – if the husband was able TO
SUCCESSFULLY IMPUGNED the child’s legitimacy.
 So if the husband did not impugn the child’s legitimacy -
that child will no longer be considered as a legitimate
child of the husband and the wife.
 The relationship will forever be fixed.
 Bakit hindi ba pwede patunayan na ang tutuong tatay ay
ang namatay thru DNA analysis/testing? That the
deceased is indeed the biological father of the child.
 Hindi pwede yan. Saan mo pwede patunayan yan?
 It is only the husband who has the right to
impugn/question the legitimacy of the child.

 So even if in that situation – what happen to the

testimony of the mother?
 The mother filed an action – to claim that the child was
the illegitimate child of the wealthy Chinese. What now
happen to her testimony?

DECLARATION AGAINST ILLEGITIMACY:

 TAKE NOTE: of ART 167 FC20 (Declaration Against

ILLEGITIMACY)
 The mother cannot declare the illegitimacy of the child
even if the mother was sentenced to be an adulteress. So
even if the mother was adulterer/mother was unfaithful –
the mother cannot impugn against the illegitimacy of the
child.
 Bakit ipinagbabawal ng batas yun?
 In other words, the testimony of the mother, saying to the
effect that the child is not that of his husband – is
inadmissible as evidence.
 The mother cannot impugn against the illegitimacy of the
child.

20
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.
Page | 144
  So any testimony coming from the mother – saying that
the husband is not the father – is INADMISSIBLE as
evidence.
 NOTE: But ART 167 – applies to a situation when the
mother is saying that the child is mine but the husband is
not the father. That is the situation where 167 will apply.
 But if the mother says – that the child is not her child –
and not of her husband – ibang sitwasyon yun. That is
not a declaration against illegitimacy.
 Because the mother is saying that the child is not the
child of both the spouses.
 EX. Katulong na nabuntis. Then the katulong nilagay sa
birth cert ng bata na ang nanay at tatay ay ang amo nya.
So she made it appear that the parent of the child is her
amo’s.
 So the amo did not know na meron pa pala silang anak.
 So namatay yung amo lalaki- so there are properties left.
 That was the time that the child appeared – claimed the
surviving spouse as his mother and the deceased as his
father
 So the surviving spouse filed a petition to declare the
birth cert of the alleged sibling as fictitious, false,
fraudulent. So she filed a petition for declaring the BC as
null and void.
 So if the child will be using ART 167 – he cannot do that.
His defense and contention is not tenable.
 Because the mother is not saying that the child is hers
and the father is her husband.
 So ART 167 does not apply.

What about ART 170? Where is it applicable?

 It is applicable only in impugning the legitimacy of the child.
 In actions impugning the child’s legitimacy – the husband is saying
that the child is of his wife – but not his child.
 So if the case is that the spouses claim that it is not their child.
 So if that is the case the period of 1, 2 or 3 years will not apply.
 So the action is to declare the BC as fictitious.....which is
IMPRESCRIPTIBLE.

LET US GO BACK TO: IMPUGNING THE CHILD’S ILLEGITIMACY:

 As had been said – if the husband is ALIVE – it is only the HUSBAND
who can file an action.
 EXCEPTION: The ACTION TO IMPUGN THE CHILD’S LEGITIMACY
may be filed by the HEIRS OF THE HUSBAND in TWO (2)
SITUATIONS.

a) FIRST: If the husband dies prior to the lapse of the prescriptive

period.
b) SECOND: If the husband dies prior to the birth of the child.

Page | 145
  So in other words, if the child was born after the death of the
husband.
 In those two situations – the HEIRS of the husband may file the action
to impugn the child’s legitimacy.
 In relation to the 2 situations – if the husband has already filed an
action impugning the child’s legitimacy – and he died WITHOUT having
DISISTED therefrom – the HEIRS may ONLY SUBSTITUTE as party
plaintiff for the petitioner.

Who are the heirs that can file the action to impugn the child’s
legitimacy?
 Diba the surviving child is also an heir to the deceased
 Can the surviving child impugn the child’s legitimacy?
 ANS: NO.
 Why? Because of ART 167.
 So the heirs of the husband are those heirs other than the
surviving daughters or sons.

WHAT IS THE PERIOD OF PRESCRIPTION? (ART 170)

 ANS. It is either 1, 2 or 3 years.
 ONE YEAR – counted from the time of having knowledge of the fact of
birth or the fact of registration.
 What if the birth took place within the city or municipality where the
birth took place or the registration took place?
 The period to do this is 1 year if the husband is residing in the same
city or municipality in the Philippines, 2 years if not residing in the
same city or municipality in the Phils and 3 years if residing abroad?
 Ganun din with respect to the heirs – if any of the heirs is residing in
the same city or municipality that will be 1 year.
 But if all the heirs are not residing in the same city or municipality but
all are residing in the Philippines that is 2 years.
 And 3 years if they are ABROAD.

WHAT ARE THE GROUNDS TO IMPUGN THE CHILD’S

LEGITIMACY?

A. FIRST: PHYSICAL IMPOSSIBILITY: - on the part of the husband to

have sexual intercourse with the wife during the PERIOD OF
CONCEPTION.
 So it must be necessary that the physical impossibility must
be proven to exist during the period of conception.

 WHAT IS THE PERIOD OF CONCEPTION?

 Madali lang yan – Bibilang tayo pabalik. We will COUNT
BACKWARDS from 300 days reckoned from date of the birth
of the child.
 After computing the 300 days – the first 120 days of the 300
days IMMEDIATELY PRECEDING the birth of the child – that
is where the action is. This is the period of conception.
Page | 146
  Dun nangyayari yung conception. Duon nangyayari yung
sexual intercourse.
 So if there is physical impossibility on the part of the husband
to have sexual intercourse with the wife during the first 120
days of the 300 days immediately preceding the birth of the
child – then the husband can successfully impugn the child’s
legitimacy.
 What are the reasons that may be cited by the husband to
say that there is physical impossibility of sexual intercourse
during the period of conception.

THERE ARE THREE (3) REASONS THAT HE CAN BE USE

BY THE HUSBAND FOR PHYSICAL IMPOSSIBILITY:

1) Physical incapacity to have sexual intercourse with

the wife;
 This is what we called IMPOTENCY on the part of
the husband.
 Take note: That it is only IMPOTENCY – as the
ground to impugn the legitimacy but NOT
STERILITY.
 IMPOTENCY – means hindi na pwede kahit anu
pang gawin hindi na puputok.
 STERILE – puputok pa yan pwede pang lumaban
 Sterile person is capable of producing millions of
spermatozoa. Hindi nga lang sigurado. Pero
pwede pang makabuo yan.
 Our law does not exclude sterility and it is only
impotency that is included as a ground

2) Because the spouses are living separately – in such a

way that sexual intercourse is highly impossible.
 Kapag magkahiwalay – it is necessary that the
sexual intercourse is HIGHLY IMPOSSIBLE in
order that living separately can be used as a
ground to impugn the child’s legitimacy.
 Requisites are: (1) living separately; and (2) sexual
intercourse is HIGHLY IMPOSSIBLE.

3) The husband is suffering from serious illness – that

the serious illness MUST ABSOLUTELY PREVENT the
sexual intercourse.
 It must be necessary that the serious illness must
ABSOLUTELY PREVENT sexual intercourse.

B. SECOND: FOR BIOLOGICAL OR SCIENTIFIC REASON.

 EXCEPT: But this biological or scientific reason – cannot be
availed of by the husband – if the husband agrees to Artificial
Insemination using a donor’s sperm.

Page | 147
 EX. BLOOD TESTING:
 Can the result of blood testing be used that he is not the
father?
 YES
 WHY? Because if the PURPOSE OF THE BLOOD TESTING –
is to prove that the husband is not the father – the result of
blood testing is CONCLUSIVE.
 If the PURPOSE is to DISPROVE PATERNITY – the result of
blood testing is NOT CONCLUSIVE.
 The father can use it to disprove paternity but the child cannot
use blood testing to disprove paternity.
 Because the use of blood testing is CONCLUSIVE only to
disprove paternity but INCONCLUSIVE to prove paternity.

How about DNA TEST/ANALYSIS.

 Whether the purpose is to DISPROVE or PROVE paternity –
DNA evidence – is a COMPETENT Evidence.
 So the husband can use DNA test to prove or disprove
paternity.

C. LASTLY: ARITIFICIAL INSEMINATION:

o In AI – the only ground to disprove legitimacy is when the
CONSENT was VITIATED either through:
(1) Fraud
(2) Violence
(3) Undue Influence
(4) Mistake.

LET US DISCUSS: ART 168:

o Art 168 – Contemplates of a situation where the previous marriage was
terminated
o And subsequently after the termination of the previous marriage – the
previous wife contracted another marriage WITHIN 300 days AFTER the
TEMINATION of the prior marriage.
o So there was a subsequent marriage within 300 days after the termination of
the prior marriage.
o And a child was born later on.

NOW who is the father of the child?

Does the child belong to the prior marriage or to the subsequent marriage?
o ANS: It depends
o In order for the child to belong to the 1 ST MARRIAGE – it is necessary that the
child must be born within 180 days AFTER the solemnization of the
second/subsequent marriage.
o But the child must be born within 300 days from the termination of the
subsequent or that prior marriage.
o So two (2) requisites must be complied with.
1) The child must be born within 300 days after the termination of the
prior marriage
Page | 148
 2) The child must be born within 180 days after the solemnization of the
second marriage.

o If the child was born AFTER – the 180 days period from the solemnization
of the subsequent marriage – that CHILD is considered as the child of the
second marriage.

LET US GO TO: ART 169:

o ART 169 – contemplates a situation where there was a prior marriage which
was terminated
o And after the termination of the prior marriage – a child was born later on.
o And there was NO SUBSEQUENT MARRIAGE.
o If the child was born – AFTER 300 days
o The rule is “whoever alleges the legitimacy or illegitimacy of the child has the
burden of proving”

2. SECOND CASE (PRESUMPTIONS of FILIATION): CONCEPCION VS

CA (2005):
o The wife contracted a 1st marriage
o And during the subsistence of that prior marriage the wife contracted a
2nd bigamous marriage. So meron na syang dalawang husband.
o And during the 2nd marriage – nag jack empoy yung magasawa in the 2 nd
marriage – which produce a child.
o When the 2nd husband learned of the existence of the 1 st marriage – the
2nd husband filed a petition for declaration of the nullity of the 2 nd
marriage on the ground that it was bigamous.
o And it was declared null and void by the court because it was bigamous.
 What happens to the child of the 2nd marriage?
o The child is declared as an illegitimate child
o Because according to the civil code – it is a product of void marriage.
o So according to the trial court since the child is illegitimate – the parental
custody goes to the mother.
o But the father was granted the visitation rights.
o But since it is the 2nd husband that filed the petition – the 1 st husband
filed a petition to revoke the visitation rights.
o CA granted the petition and it revokes the visitation rights – but not on
the grounds cited – but on the ground that the 2 nd husband is not the
father of the child.
o Why? Because according to CA – since the child was conceived and
born inside a valid marriage (the 1 st) – so the child is presumed to be a
legitimate child of the 1st marriage.
o And this decision of the CA – was affirmed in toto by the SC.
o So in this particular case – there was a 2 nd marriage which happens to be
void. So the child born to the 2nd marriage will necessarily be born and
conceived inside a valid marriage.
o So the child of the 2nd marriage will be considered and presumed to be a
legitimate child of the 1st marriage.
o NOTE:
Page | 149
 o In the petition of declaration of nullity take note that the 2 nd husband
claimed that the child was the product of the 2 nd marriage
o What happen to the testimony of the wife?
o The testimony of the wife cannot be used as defense.
o Why? Because that is a declaration against the legitimacy of the child.
o On the part of the 2nd husband – his admission of paternity cannot be
given legal effect because it has the effect of impugning the legitimacy of
the child.
o And the 2nd husband has no personality – to question the legitimacy of
the child.
o That is strictly a personal right of the 1 st husband who is presumed to be
the father.

LET US ACTION TO PROVE LEGITIMATE OR

DISCUSS:
ILLEGITIMATE FILIATION: (ART 172)
o The law said – the MANNER and EVIDENCE shall be the same.
o The manner of proving legitimate filiation and the manner of proving
illegitimate filiation as well as the evidence that can be used shall be the same
– whether the action is to claim legitimate or illegitimate filiation.
o Nagkaiba lang sila – with respect to a situation where the action to claim
legitimate or illegitimate filiation will be based on secondary evidence.

 WHAT IS THIS SECONDARY EVIDENCE?

o ANS: We are referring to the 2nd paragraph of ART 17221
There are TWO (2) KINDS OF EVIDENCE that may be use – whether to
prove legitimate or illegitimate filiation:

1. PRIMARY EVIDENCE – provided for in the 1st paragraph

 First; Anu yun? Birth Certificate; and
 Second; any instrument recognizing paternity whether that
instrument is private or public and signed by the PUTATIVE
FATHER.
 Yan ang tinatawag nating primary evidence.
 So if it is the primary evidence that is used – whether the action is
to prove legitimate or illegitimate filiation – there is a
difference.....the manner and prescriptive period shall be the same
 So the action can be filed even after the death of the putative father.
 Because the father has already __ recognition when he was still
alive.

21
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 instrument and signed by the
parents 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 ROC and special laws.
Page | 150
  But if the evidence used – is the 2 nd paragraph of ART 172 – or
secondary evidence

2. SECONDARY EVIDENCE – provided for in 2nd para

 But if the evidence used – is the 2 nd paragraph of ART 172 – or
secondary evidence
 If the action is to prove legitimate filiation – and the evidence that
will be used will be either:
a. Open and Continuous possession of the status as legitimate
child
b. Any other means allowed by the ROC and special laws
 NOTE: The action to prove legitimate filiation must be filed
DURING the lifetime of the putative father.
 Otherwise, the action will not prosper.

 WHO WILL FILE THE ACTION?

o GR. If the child is alive, general rule, it must be filed by the child.

 WHAT IS THE PRESCRIPTIVE PERIOD?

o During the lifetime of the child.

o EXCEPT: If the action is to claim illegitimate filiation and the evidence that will
be used is the secondary evidence – it is necessary that the action must also
be filed during the lifetime of the putative father. Otherwise the action will be
considered as barred.

o EXCEPTION:
o The heirs may exceptionally filed the action in behalf of the child in two (2)
situations:
1. If the child dies during the state of minority; and
2. The child dies during the period of insanity.

o When the child dies after the filing of the action and without having desisted
therefrom – the heirs may substitute as party plaintiff.

 If it will be the heirs who will filed the action – because the child dies
during minority or insanity – what is the prescriptive period?
o ANS: 5 years.
o 5 years from the death of the child.

THE EVIDENCE – THAT CAN BE USED BY

LET US DISCUSS:
THE CHILD TO PROVE LEGITIMATE OR ILLEGITIMATE
FILIATION:
o Let us consider again ART 172 – there are two paragraphs.
o TAKE NOTE: that if the evidence to be used is the first paragraph – there is
no need to file an action to prove illegitimate filiation.

Page | 151
 o Why? The law no longer requires it.
o Because there was already voluntary recognition on the part of the alleged or
putative father.
o On the part of the legitimate father – there is already VOLUNTARY
RECOGNITION.
o But it must be necessary that there must be SIGNATURE of the alleged father
in the birth certificate or any instrument in order that there can be voluntary
recognition.
o Problema lang: If there was voluntary recognition but upon the death of the
legitimate father – it happens that the heirs will not recognize the child as a
legitimate child of the deceased.
o Mapipilitan ang bata to prove that he is an illegitimate child.
o And in that situation – we will use the primary evidence – to prove that he is
an illegitimate child of the deceased.

LET US CONSIDER: THOSE EVIDENCE ENUMERATED IN 1ST AND 2ND

PARA OF ART 172:

A. PRIMARY EVIDENCE: (1ST PARA ART 172)22

1) RECORD OF BIRTH APPEARING IN THE CIVIL REGISTRY OR A

FINAL JUDGMENT:
 Is it necessary that the BC must be signed by the putative father
before it can be used as COMPETENT evidence?
 If signed by the putative father – pwede rin....... there is now a
competent evidence to prove paternity – if signed by the putative
father.
 But the fact that it was not signed by the putative father will not
automatically __ that it will not be used as evidence.
 Because what is important is not actually the signature of the
putative father.
 But the PARTICIPATION of the putative father – in the
PREPARATION of the BC.
 In other words, even if the signature of the putative father does not
appear in the BC – but the putative father has participated in the
preparation of the BC – by supplying the information and
everything.....including the fact of his paternity, then the BC can be
used as evidence to prove paternity even if it was not signed by the
putative father.
 What is important is the involvement/participation of the putative
father in the preparation of the BC.

EX. Case of Inato vs CA?

 There was a lawyer
 He has a beautiful and sexy secretary.
 Xxxxxxxxxxx
22
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 (PARA 1)
Page | 152
  During the trial it was proven that the alleged father actively involve
in the preparation of the BC only that he was not able to sign it.
 SC rule. That the BC even if it was not signed, it is a competent
evidence to prove paternity.

2) INSTRUMENTS, WHETHER PUBLIC OR PRIVATE:

 But it must be necessary that the instrument must be for the
PURPOSE of recognizing PATERNITY and it must be SIGNED by
the putative father.
 The signature of the father must be there.
 EX. Love letter – you acknowledge in that love letter the paternity of
the child – that is a competent evidence to prove paternity if that
letter was signed by the letter sender.

o So that is the primary evidence to prove filiation.

 MAY THE ACTION USING PRIMARY EVIDENCE BE FILED EVEN AFTER THE
DEATH OF THE PUTATIVE FATHER?
o ANS: YES. If that is the case – the action can be filed even AFTER the death
of the putative deceased father
o NOTE: In the absence of the primary evidence – the child may used
secondary evidence

B.SECONDARY EVIDENCE: (2ND PARA ART 172)23

 WHAT ARE THOSE SECONDARY EVIDENCE?
1) Open and continuous possession of the status of a legitimate child
or illegitimate child.
 So if there were acts done habitually, consistently and persistently
by the alleged father – treating the child as his.
 Kaya lang those actions must not be consistent with CHARITY.
 If those acts can simply be explained as an act of CHARITY – that
will not be considered as open and continuous possession of the
status as a legitimate child.
 It must be necessary that the showing of paternal feelings is not
attributable to charity.
 Pero kung umaattend na ng PTA – iba na yun. That may now
amount to an open and continuous possession of a legitimate child.


2) Any other means or evidence allowed by the ROC and special laws.

23
ART 172. The filiation of legitimate children is established by any of the following:
(2) An admission of legitimate filiation in a public document or a private written instrument amd signed
by the parent concerned. (PARA 2)
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.

Page | 153
  Anu anu yun?

 A. RESULT OF BLOOD TESTING.

 Can the result of blood testing be used by the child to prove that
someone is his father?
 NO.
 Because if the purpose is to prove paternity – the result of blood
test is inconclusive/not conclusive.
 It is not a competent evidence to prove paternity.

 NOTE: But if the result of blood testing was used by the

husband to disprove/deny paternity – then the result of blood
testing is CONCLUSIVE.
 So it can be use by the husband to deny paternity.

 B. RESULT OF DNA ANALYSIS:

 Can it be use by the child to prove that someone is his
father?
 YES.
 Whether the purpose is to prove or disprove paternity – the result of
DNA test is conclusive.

 How about PHYSICAL RESEMBLANCE? Magakamukhang

magkamukha.
 May this be used as competent evidence?

 1. CASE OF PEGIE VS CA?

 SC ruled. That physical resemblance – is a competent evidence.
 But note: The decision of the SC – in this case – is a mere OBITER.
 Because the physical resemblance was not the issue in the case of
___

 2. CASE OF CABATINGAN VS CA.

 The issue of physical resemblance as competent evidence was the
precise issue in the case of Cabatingan vs CA
 Meron matandang haciendero
 The haciendero – lang ang nakatira sa bahay nya together with the
maid.
 Sa facts of the case lang – the maid has a child
 But later on – after the reach an age of discernment – the child filed
an action to claim legitimate filiation with the haciendero.
 Sabi nung nakakita – oo nga pag pinaglapit parang pinagbiyak na
bunga.
 Yung haciendero naman talaga ang ama
 So sabi the trial court – in the mind of the court – there is no doubt
that the alleged father is indeed the father of the child because of

Page | 154
 the striking physical resemblance between the two when they were
brought in court.
 When the case reach the SC – it said – in this case of DNA analysis
that extremely subjective test of physical resemblance is not a
competent evidence to prove paternity.
 That is a direct ruling in the case of Cabatangan vs CA.
 Physical resemblance is not competent evidence to prove paternity.

RIGHTS OF LEGITIMATE CHILDREN

LET US COMPARED THE:
AND THE ILLEGITIMATE CHILDREN:

1. LEGAL SUPPORT:
o Both are entitled to LEGAL SUPPORT.
o The only difference – the support of the legitimate children shall be the
obligation of the ACP or CPG
o While the support of the illegitimate children – shall be the obligation of the
separate property of the illegitimate parent.
o Again, if the property regime – is ACP and the spouse is obliged to give
support to the illegitimate – whose illegitimate spouse does not have sufficient
property, the ACP can provide the advance in the payment of the legal support
due to an illegitimate child

o But if the property regime is that of CPG - the CPG cannot be required
provide or give the advance in the payment of the legal support to an
illegitimate child.

2. RIGHT TO INHERIT:
o With respect to the right to inherit.
o BOTH are considered as – COMPULSORY HEIRS
o And both are considered as LEGAL or INTESTATE HEIR.
o EXCEPT: That the LEGITIME of the legitimate child – is twice that of the
illegitimate.
o In other words, the legitime of an illegitimate child – is ½ of each of the
legitimate children.

3. LEGAL SUCCESSION
o The share of the illegitimate – is ½ of the share of each of the legitimate
children.

FOR BAR EXAM: QUESTIONS MIGHT CENTER ON THE RIGHTS OF

ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THE ILLEGITIMATE
FATHER.

LET US DISCUSS: THE LAW INTRODUCED BY SENATOR RAMON REVILLA TO

ART 176 FC (RA No. 9255)
Page | 155
 o WHAT IS THE RULE?
o If the child is legitimate – the child shall have the right to make use of the
surname of both the father and the mother.
o But the child shall use principally the surname of the mother.
o That is the rule if the child is legitimate.
o But if the child is illegitimate – the rule is that he will use the surname of the
mother.
o So in the absence of voluntary recognition – the mother cannot make use of the
surname of the illegitimate father in registering the BC of the child.

LET US DISCUSS: THE AMENDMENT INTRODUCED BY SEN REVILLA SR TO

ART 176 FC24:
o Because of the amendment introduced by Sen Revilla – an illegitimate child now
acquires RIGHT to make use of the SURNAME of the father – if there was
VOLUNTARY RECOGNITION by the illegitimate father either in the (1) birth
certificate (2) or any instrument (whether private or public) provided that the
instrument will recognize paternity.
o So those are the only instances – where the illegitimate child – is allowed to
make use of the surname of the illegitimate father.
o In other words, if it is a case of – COMPULSORY or JUDICIAL RECOGNITION –
of paternity (in other words – there is no voluntary recognition) but the child was
able to prove that he was an illegitimate child (either thru open or continuous
possession of the status as illegitimate child or DNA test) – the CHILD IS NOT
ENTITLED to make use of the surname of the father.
o Under Remedial Law – the child will only be allowed to make use of the surname
if the RECOGNITION was VOLUNTARY on the part of the illegitimate father
(either thru BC or any instrument – private or public – executed by the
illegitimate father).

Q? Is the signature of the legitimate father necessary in order for the child to
be entitled to make use of the surname of the illegitimate father? (in re 2008
case)

Case of DELA CRUZ vs GRACIA (G.R. No. 177728 July 31, 2009)
o In this case: There was an autobiography executed by the alleged father in his
own handwriting.
o And in that autobiography – there was recognition made by the man that he was
the father of the child.
o EXCEPT: That the private handwritten instrument was not signed by the alleged
father.

24
ART 176. Illegitimate children shall use the surname and shall under the parental authority of their mother, and shall be
entitled to support in conformity with this code. However, illegitimate children may use the surname of their father if their
filiation has been expressly recognized by their father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right
to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child (As amended by RA No. 9255. See IRR on p.662)
Page | 156
 Q? Does the Revilla law requires that the BC or instrument recognizing
paternity be signed by the putative father before the child can be entitled to
make use of the surname of the illegitimate father?
o If you are going to look at the provision of ART 176 – there is no express
requirement there that the instrument must be signed by the illegitimate father.
o SC said: ART 176 FC should be read in conjunction with ART 172 of the FC
o If we read ART 176 in conjunction with ART 172 – it now becomes clear that the
instrument whether public or private must be signed by the Putative father.
o It must be signed by the putative/illegitimate father – before the child can be
allowed to make use of the surname of the illegitimate father.
o That is one of the decision – in DELA CRUZ vs GRACIA.
o It simply says – that even if ART 176 is not explicit in requiring the signature of
an illegitimate father – sabi ng court .....ART 176 should be read in conjunction
with ART 172 FC.
o So it becomes clear that the instrument showing paternity must be signed by the
alleged or putative father.

GO BACK TO: DELA CRUZ VS GRACIA:

o So there was a private handwritten instrument by the alleged father –
recognizing paternity – except that handwritten instrument was not signed by the
alleged father.

Q? Can the child make use of the private instrument – to be entitled to use
the surname of the illegitimate father?
o RULING: The SC made a distinction:
o If that private handwritten instrument which was not signed by the father – is the
SOLE/ONLY EVIDENCE to prove filiation or to prove paternity – then the
STRICT requirement of the law that the instrument must be signed – should
apply.
o In other words if that is the only document to prove paternity or filiation – it must
be signed by the putative father before the child can be allowed to make use of
the surname of the illegitimate father.
o BUT: If there are OTHER COMPETENT and RELEVANT EVIDENCE to prove
paternity and filiation – and that private handwritten instrument which was not
signed is merely CORROBORATIVE, then the court may apply it liberally.
o In the case of DELA CRUZ vs GRACIA – aside from the autobiography, there
are other evidence to prove paternity.

o EX. Testimony of witnesses.

o Since there are other evidence to prove filiation or paternity – in which case the
autobiography merely becomes corroborative.
o The SC ruled to allow the child to use the surname of the putative father even if
the instrument was not signed by him.
o That is very important ruling and CLARIFICATION – with respect to the
application of ART 176 of the FC and it was decided by no less than JUSTICE
CONCHITA CARPIO-MORALES.
o TAKE NOTE: That pursuant to the REVILLA LAW – the child is not OBLIGED to
make use of the surname of the illegitimate father.

Page | 157
 o The child – has not OBLIGATION to make use of the surname of the illegitimate
father.
o REVILLA LAW – only grants the child an OPTION – to make use of the surname
of the illegitimate father if the child would want to make use of it.
o And the child can only use the surname of the illegitimate father if there was a
voluntary recognition.

LET US GO TO: LEGITIMATION: (ART 177)

o May be a source of potential BAR Exam Question – because of RA No. 9858
(2009).
o When we talk of the STATUS of the child – the child is either be legitimate or
illegitimate.
o Wala tayong tinatawag na legitimated status.
o We will only use the term legitimated – with respect to those child who are for
the meantime illegitimate but they are capable of becoming legitimate – simply
by the subsequent marriage of the BIOLOGICAL PARENTS.
o So if those children who can be legitimated prior to the marriage of their parents
– so the status of the children – is for the meantime illegitimate.
o But once the biological parent would be married – the status of the child would
be RAISED to that of LEGITIMACY.
o Malinaw naman ang FC natin – the filiation of the child is either Legitimate or
Illegitimate. Wala tayong tinatawag na legitimated status.

WHAT ARE THE REQUISITES OF LEGITIMATION?

WHO ARE QUALIFIED TO BE LEGITIMATED?

1. REQ No. 1: It is necessary that the child must be CONCEIVED and BORN –
OUTSIDE of WEDLOCK.
 Because if the conception and birth was made inside a valid marriage –
the child becomes legitimate or at least presumed to be legitimate.
 So it must be necessary that conception and birth must take place –
outside of wedlock.

2. REQ No. 2: In legitimation it is the POINT OF CONCEPTION – which is

MATERIAL.
 So under the 2nd requisite, it must be necessary that at the time of the
child’s conception – the biological parents were not married to each
other
 That they must be BOTH CAPACITATED to marry each other at that
time – or even at the time they are disqualified to marry each other –
the reason for DQ is simply one of them or both of them are below
18yo.
 That is the amendment introduce by RA No. 9858.
 Prior to the amendment introduced by RA No. 9858 – in order for the
child to be legitimated – it was required before that at the time of the
child’s conception the parents must not be suffering from any legal
impediment.
 So if the parent were suffering from legal impediment at the time of the
child’s conception – the child may not be legitimated.
Page | 158
  That was the rule prior to RA No. 9858.
 In 2009, RA 9858 was passed and it took effect in 2009 – under the
amendment – that even if at the time of the child’s conception the
parent are disqualified to marry each and they are merely DQ because
one or both of them are below 18yo – the child can still be legitimated.

MAY R.A. NO. 985825 BE GIVEN RETROACTIVE APPLICATION?

 YES. Because it create a NEW substantive right subject to the
limitation that it must not prejudice another acquired right of the same
origin?.
 EX. Merong nabuntis prior to 2009 – or nung 2005 nabuntis 16 yo –
after 3 years 2008, nagpakasal si babae at lalaki...at that time the child
was not yet legitimated (wala pa RA No. 9858)
 3 months after the marriage – namatay yung isa sa mga magulang –
so nagkaroon ng legal succession.
 So the s the succession was open – the right to succession at the time
of the death of the decedent.
 So the child will inherit at that time – as an illegitimate child.

 Eh dumating ang RA 9858 – in 2009....pwede ba iinvoke yan ng bata to

say that he can now inherit as a legitimate child?
 If that will result in the impairment of the share of the others – if it will
result in prejudice to the others – hindi pwede.
 In that case, RA 9858 cannot be given retroactive application.

3. REQ No. 3: The biological parent must subsequently marry each other.
 Take note that in legitimation – it takes place ipso facto/ automatic upon
the mere marriage of the parents without need of any additional act.
 Yun lang.
 The marriage of the parents will have the effect of RAISING the status
of the child from illegitimacy to legitimacy ipso jure/ipso facto -
automatic.

Kailangan pa bang baguhin yung entry sa civil registry?

 NO. Hindi na kailangan.
 The effect of legitimate will produce – even without correcting the
entries in the BC of a child.
 A child became a legitimate child – upon the mere marriage of the
parents.
 Babalikan lang natin yung entry sa Civil registry – for purposes of
CONVINIENCE.
 Pero hindi na kailangan yun actually.
 The child becomes legitimate – upon the mere marriage of the parent.
 But it is necessary that the subsequent marriage of the parent must not
be void ab initio.
 In other words, if the subsequent marriage of the parent is void ab initio
– legitimation did not take place.
25
ART 177. Children conceived and born outside of wedlock of parents, who, at the time of conception of the former, were
not DQ by any impediment to marry each other, or were so DQ only because either or both of them were below 18 years of
age, may be legitimated. (As amended by RA No. 9858, December 20, 2009)
Page | 159
 4. REQ No. 4: But it is necessary that the subsequent marriage of the parent
must not be void ab initio.
 In other words, if the subsequent marriage of the parent is void ab initio
– legitimation did not take place.
 So if all those 4 requisites are present – then the child is automatically
raised to the status of legitimacy upon the mere marriage of the parent.
 Without need of ANY ADDITIONAL ACT.
 And the effects of legitimation – will RETROACT to the date of the birth
of the child.
 So the child will be considered legitimate – from the time of his birth.

May the legitimation take place even if the subsequent marriage of

the parent will happen after the DEATH of the child?
 YES. The provision of the FC is clear – that even if the child was
already dead – at the time of the marriage of the biological parent, the
legitimation of the child will eventually benefit the child’s heirs.

May legitimation be impugned?

 YES.

Who can impugn the legitimation that had taken place?

 Only the compulsory or intestate heirs of the parents – will have the
personality to impugn the legitimation that has already taken place.

Within what period can you impugn?

 Within the period of 5 years from the death of the parent.
 From the death of any of the parent.

What are the grounds to impugn legitimation?

 The grounds are simply – the failure to make the requisites of
legitimation.

LET US DISCUSS: ADOPTION:

o Adoption is an attempt to duplicate the filiation that exists in nature.
o What are the important things that you have to consider in adoption?
o When we talk of adoption – it is always a JUDICIAL ACT.
o Adoption is a judicial process.
o So in order for the effect of adoption to be had, there must be a decree of
adoption.

o In the absence of a decree of adoption the child is not entitled to rights that had
been enjoyed by legitimate children.
o EX. A mere ampon or ampon ampunan – treated as a child by a certain couple
but without passing the judicial process of adoption and in an absence of
adoption decree – that child is not entitled to the rights of a legitimate child.
o Ex. Simulation of the birth of the child.

What is simulation of birth?

Page | 160
 o The alleged parent will falsify the alleged birth of the child to make it appear that
they are the biological parent.
o Where in truth and in fact they are related at all with each other.
o That is considered as falsification.
o In SB since the child is not related at all to the alleged parent – the child does
not acquire the rights that are being enjoyed by the legitimate children.

There are three (3) existing laws in relation to adoption:

1) The provisions of the FC.
 The provisions of the FC are not expressly repealed by the Domestic
ADOPTION ACT and the Inter-Country Adoption Act.
 Kung titingnan nyo yun dalawang batas – there was no express repeal
of the provision of adoption in the FC.
 So there can only be a repeal of the provision of the FC – by way of an
IMPLIED REPEAL.
 In case of total repugnancy between the provision of the FC and the
inter-country adoption act.
 We have domestic adoption act and inter-country adoption act.
2) Domestic Adoption Act; and
3) Inter-country Adoption Act.

o Before we discuss the two (domestic adoption & inter-country adoption) – be

reminded of the TWO (2) BASIC POLICIES of the state in relation to adoption:

TWO (2) BASIC STATE POLICIES AND RULE OF PREFERENCE:

1) 1st RULE: As much as possible the state does not encourage adoption.
 As much as possible – if the parents are still alive and able the child
should not be separated from the biological parents.
 But if there is a real need for adoption the law prefers (1) the
EXTENDED FAMILY or (2) an UNRELATED PERSON.
 That is the 1st rule of preference.
 If there is a need for adoption our law prefers the extended family of
the child over that of an unrelated person.

2) 2nd RULE: If there is a need for the child to be adopted the law prefer
DOMESTIC Adoption over INTER-COUNTRY Adoption.
 If domestic adoption of the child is available – the inter-country
adoption may not be resorted to.
 Inter-country adoption can only be resorted to – if it is a remedy of last
resort and it is to the best interest of the child.
 Take note of those basic policies.

LET US DISTINGUISH: DOMESTIC FROM INTER-COUNTRY

ADOPTION:
o The adoption is domestic – if the entire judicial processes (beginning from the
filing of the petition for adoption up to the issuance of the decree of adoption) will
takes place within the Philippine courts.

Page | 161
 o On the other hand Inter-Country Adoption – is where the entire judicial
processes (beginning from the filing of the petition for adoption up to the
issuance of the decree of adoption) will take place before a foreign court.
o In inter-country adoption – the only participation of the Philippines is merely
ADMINISTRATIVE.
o If the filing of the administrative petition takes place either in the Philippines or in
a counterpart agency in a foreign country.
o Inter-country adoption takes place outside of the Philippines – only the
administrative aspect take place here in the Philippines.

o We will be concerning ourselves with the ADOPTION OF A FILIPINO CHILD.

o Wala tayong pakialam sa adoption of a foreign child.

DOMESTIC ADOPTION:
When must the adoption be domestic and when it must be inter-country?
o In BOTH – the prospective adopter may either be a citizen of the Philippines or a
foreigner.
If the prospective adopter is a citizen of the Philippines when must the
adoption be domestic and when it must be inter-country?

FOR FILIPINO ADOPTER:

o DOMESTIC – if the prospective adopter is a Filipino citizen and he is a
permanent resident of the Philippines, the adoption must be pursuant to
Domestic Adoption.
o INTER-COUNTRY - BUT if the Filipino citizen is a PERMANENT resident of a
foreign country – the adoption must be pursuant to inter-country adoption.

FOR FOREIGN ADOPTER:

When can a foreigner avail of Domestic Adoption?
o There are two (2) principal requisites that must be present:

TWO (2) REQUISITES FOR FOREIGNER TO AVAIL OF DOMESTIC ADOPTION:

1. The requirement of RESIDENCY.

 In order for a foreigner to be entitled to resort to domestic adoption – it
must be necessary that the foreigner must have been a resident of the
Philippines for AT LEAST 3 Continuous YEARS....PRECEDING the
DATE of the FILING of the petition for domestic adoption.
 And that residency – must be maintained at least up to the issuance of
the decree of adoption.
 Kung saan sya titira after the issuance of the decree of adoption – wala
na tayo pakiaalam dun.
 The concern of our law – is that the foreigner who filed a petition for
adoption in the Philippines can avail of domestic adoption – if the
foreigner is a residence of the Philippines for at least 3 continuous
years immediately preceding the date of the filing of the petition for
adoption and that residency is maintained at least up to the issuance of
adoption decree.
Page | 162
 2. The foreigner must be issued a certification that he is LEGALLY
CAPACITATED to adopt under HIS NATIONAL LAW.

 But the requirement of RESIDENCY and CERTIFICATION – can be

WAIVED in the following situations:

THREE (3) REQUIREMENTS WHERE RESIDENCY AND

CERTIFICATION FOR A FOREIGNER MAY BE WAIVED:
a) If the prospective adopter is a former Filipino citizen – seeking to
adopt a relative within a 4th degree of consanguinity or affinity.
b) If he is a foreigner seeking to adopt – the legitimate child of his or
her spouse.
c) Lastly, if he is a foreigner – married to a Filipino Citizen – and the
two of them are JOINTLY adopting a relative of the Filipino spouse
within the 4th degree of consanguinity or affinity.

 In those 3 situations the requirement of RESIDENCY and

CERTIFICATION may be WAIVED.
 Those are the requirements before a foreigner may be allowed to adopt
domestically.
 If those are not complied with the foreigner can only adopt – by way of
Inter-Country Adoption.

LET US DISCUSS: INTER-COUNTRY ADOPTION PROCEDURE:

26
(R.A. No. 8043)
o As had been said – in an inter-country adoption the entire judicial processes will
takes place outside of the Philippines.
o The judicial petition for adoption – will be filed in a foreign court up to the
issuance of the decree of adoption.
o What is filed in the Philippines is merely – the administrative aspect of the
petition for inter-country adoption.
o The only participation of the Philippines in Inter-Country Adoption is merely
administrative.

Where can that administrative application for inter-country adoption be

filed?
o ANS: It can be filed – either in the Family Court where the prospective adoptee
is residing or where the prospective adoptee may be found.
o That is the VENUE.

1. FIRST STEP: FILING OF PETITION FOR ADOPTION:

a. Family Court;
b. Inter-Country Adoption Board (ICAB)

26
Republic Act 8043
The Inter-Country Adoption Act of 1995
"AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER
PURPOSES"

Page | 163
o In which case, the application is to be filed in the Philippines; or
o The application can be filed in the home country of the prospective adopter
through a counterpart agency of our ICAB (INTER-COUNTRY ADOPTION
BOARD).
o If the inter-country adoption was allowed there must be a counterpart agency or
ICAO, in the home country of the prospective adopter.
o So the application may be filed by the prospective adopter in the counterpart
agency or ICAB.
o And such application must be TRANSMITTED to ICAB
o If the application was filed before the Family Court – ang gagawin lang ng
Family Court – is merely to DETERMINE the SUFFICIENCY of the application
with respect to the substance and form.
o Sasabihin lang ng court ...... the application is sufficient in form and in
substance.
o Afterwhich, the application will now be transmitted to ICAB.
o TAKE NOTE: That the participation of the court with that adoption is not
JUDICIAL, it merely ADMINISTRATIVE.
o So the application will now be processed by the Inter-Country Adoption Board
(ICAB)

2. SECOND STEP: MATCHING:

o So if the application is already with the ICAB – the NEXT STEP is the
MATCHING of the prospective adopter to the adoptee.
o Imamatch/titingnan kung pwede.
o If ICAB will come up with a prospective party – the counterpart agency of ICAB
in the HOME COUNTRY of the prospective adopter will be INFORMED
o And the prospective adopter – will be required to go to the Philippines to
personally meet the child.
o So PERSONAL MEET-UP yun – our law requires personal meet-up.

o Pag pinick-up yung bata sa Pilipinas, anu gagawin?

3. THIRD STEP: SUPERVISE TRIAL CUSTODY:

o And the supervise trial custody will start in the home country of the prospective
adopter.
o Bakit ilalabas yung bata – kc yun na yung magiging bagong tahanan nya.
o So iaadjust nya yung bata – sa bago nyang environment (so that is the
purpose).
o The entire supervise trial custody will TAKE PLACE IN THE HOME COUNTRY
of the prospective adopter.
o NOW: If the supervise trial custody will be UNSUCCESSFUL – our law said, as
much as possible – the child should not be RETURNED immediately to the
Philippines.
o REPATRIATION – is a remedy of last resort.

Page | 164
 o So if the supervise trial custody will not be successful – ICAB will look for other
prospective ADOPTERS.
o Instead of returning the child to the Philippines.
o Repatriation must be resorted to only as a last remedy.
o Bakit ganun? Kc nga pag binalik mo agad yung bata – feeling nya rejected na
sya.
o It may eventually affect the growth of the child.
o NOTE: If the supervise trial custody – should prove to be SUCCESSFUL and
ICAB was informed that the supervise trial custody was successful – the child is
now ready to be adopted by the prospective adopter.

4. FOURTH STEP: FILING OF JUDICIAL PETITION FOR

ADOPTION: (Note: with written consent from DSWD as a condition
precedent)

o And the prospective adopter can now file/can now commence – the JUDICIAL
PETITION for adoption.
o But before filing the judicial petition for adoption – it must be necessary that the
DSWD must ISSUE a WRITTEN CONSENT for the adoption of a Filipino Child
before a foreign court.
o So yun ang isang kailangan sa inter-country – the WRITTEN CONSENT of the
DSWD in the adoption.
o So if there was already a written consent from the DSWD – the judicial petition
for adoption can now be filed before the foreign court leading to the issuance of
the decree of adoption.

o As to the effect of the foreign decree of adoption – that is the question........

o Because the effects of foreign decree of adoption shall be governed by the LAW
of the PLACE where the adoption decree was issued.
o Since that is a foreign law – our court cannot take cognizance of the existence of
a foreign law.
o The effects of a foreign decree of adoption – shall be determined by the law of
the place where it was issued.

MANDATORY REQT FOR DOMESTIC ADOPTION (R.A. No.

8552)27 AND INTER-COUNTRY ADOPTION (R.A. No. 8043)
o NOTE: Whether it is Inter-country or domestic – in order for the child to be
considered available for adoption there must first be a DECLARATION THAT
THE CHILD IS LEGALLY FREE AND AVAILABLE FOR ADOPTION.

27
Republic Act No. 8552 February 25, 1998
AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES

Page | 165
 Who can issue the declaration that the child is legally available for
adoption?
o Under the provisions of Domestic Adoption Act and Inter-Country Adoption Act –
that declaration can be made either administratively by the DSWD or by the
COURT in a judicial petition.
o BUT there was RA 9523 enacted in 200928
o RA 9523 is an amendment to the provision of Domestic Adoption Act and Inter-
Country Adoption Act.
o Because of the amendatory laws pursuant to RA 9523 – it is now the DSWD
who now has the SOLE RIGHT to declare a child legally available for adoption.
o Under the present law – it is now the DSWD who has the right to declare a child
legally available for adoption.
o In other words RA 9523 has the effect of removing the rights from the court to
issue such declaration.
o The aspect of declaration the child legally available or free for adoption has been
made entirely administrative.
o The right to issue the declaration is now exclusively vested upon the DSWD.
o Only the DSWD can declare a child legally available or free for adoption.
o And the certification issued by the DSWD is the only evidence that the child is
legally available for adoption.
o So in any proceedings for adoption whether domestic or inter-country – the
process begins with an administrative application or petition for the declaration
of the child as legally available for adoption and such petition must be filed
before the DSWD.
o And the certification to be issued by the DSWD shall be the primary evidence
that may be used that the child is indeed legally available for adoption.

WHO CAN BE ADOPTED IN INTER-COUNTRY ADOPTION?

o In inter-country adoption – the child must be legally available or free for
adoption.
o But in inter-country – only the child who is below 18yo can be declared legally
available for adoption.
o The child must be below 18yo.
o In inter-country adoption – it is required that the adopter must be at least 27yo
and there must be a 16 years gap/difference between the prospective adopter
and prospective adoptee.
o But the 16 years gap – is NOT REQUIRED if the prospective adopter is the:
a) Biological parent; and
b) Spouse of the biological parent of the prospective adoptee.

LET US NOW DISCUSS: DOMESTIC ADOPTION PROCEDURE:

28
Republic Act No. 9523 March 12, 2009
AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE A "CHILD
LEGALLY AVAILABLE FOR ADOPTION" AS A PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE CERTAIN
PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC ACT NO. 8043,
OTHERWISE KNOWN AS THE INTER-COUNTRY ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS
THE CHILD AND YOUTH WELFARE CODE, AND FOR OTHER PURPOSES.

Page | 166
 IN DOMESTIC ADOPTION WHO MAY BE ADOPTED?
o Only the legally available child – and under domestic adoption – a child which is
below 18yo and legally available for adoption.
o In domestic it must be necessary that the child must be below 18 yo/minor.

EXCEPTION:
o Even a person of LEGAL AGE – can be adopted by way of domestic adoption if
that person has been HABITUALLY, CONSISTENTLY treated as a child of the
prospective adopter SINCE MINORITY.
o In domestic adoption it must likewise necessary that there must be a 16 years
gap between the adopter and the adopted.
o But that 16 years gap does not apply – again, if the prospective adopter is the
biological parent of the prospective adoptee.
o It likewise does not apply if the prospective adopter is the spouse of the
biological parent of the prospective adoptee.

IN A DOMESTIC ADOPTION, WHERE MUST THE PETITION BE FILED?

o It must be filed before the Family Court.

WHERE IS THE VENUE?

o In the Family Court where the prospective adopters RESIDE.
o After the filing of the petition for adoption – the law requires that there must be a
CASE STUDY REPORT – to be done by a LICENSE SOCIAL WORKER.
o In other words – hindi pwedeng magproceed sa trial – in the absence of the
CASE STUDY REPORT coming from a license social worker.

o Likewise, the court will not issue a decision – in the absence of a SUPERVISE
TRIAL CUSTODY.
o Subok muna..titingnan kung magkiclick talaga.
o And during the supervise trial custody – TEMPORARY CUSTODY and
TEMPORARY PARENTAL AUTHORITY shall be vested upon the prospective
adopter.

FOR HOW LONG IS THE SUPERVISE TRIAL CUSTODY?

o It is six (6) months.

MAY THE SIX MONTHS PERIOD BE SHORTENED?

o YES. It may be shortened upon the discretion of the court.
o It is address to the sound discretion of the court.

 EXCEPT:
o If the prospective adopter is a foreigner – it must be necessary that the
supervise trial custody period must be completed.
o But the 6 months supervise trial custody maybe shortened – even if the
prospective adopter is a foreigner in the following situations:

3 SITUATIONS TO SHORTEN THE 6 MONTHS SUPERVISE TRIAL CUSTODY:

Page | 167
 1) If the prospective adopter is a former Filipino citizen seeking to adopt a
relative within the 4th civil degree of consanguinity or affinity.
2) Or if the foreigner seeking to adopt the legitimate child of her spouse.
3) Or if a foreigner is married to a Filipino citizen – and the two of them are jointly
seeking to adopt a relative of the spouse within the 4 th civil degree of
consanguinity or affinity.

o Whether it is domestic or inter-country adoption – if the prospective adopter is

married – the law requires that there must be JOINT ADOPTION.
o Both the husband and the wife must jointly adopt.

IS THE REQUIREMENT JOINT ADOPTION BY THE MARRIED COUPLE

MANDATORY?
o YES.

WHAT WILL BE THE EFFECT IF THAT REQUIREMENT IS NOT SATISFIED?

o Decided case IN RE PETITION OF MACHAEL JUDE LIM (G.R. Nos. 168992-93
May 21, 2009)
o That the provision of domestic adoption acts – requiring JOINT ADOPTION of
the spouses is MANDATORY.
o And if the requirement should not be complied with – the petition should be
DISMISSED.
o GEN RULE: If the prospective adopter is married – the rule is that the adoption
should be JOINTLY made by the Husband and the Wife.
o But the rule is NOT ABSOLUTE in DOMESTIC ADOPTION, there are 3
exceptions:

THREE (3) EXCEPTIONS IN DOMESTIC ADOPTION ACT FOR JOINT

ADOPTION BY SPOUSES:

 Joint adoption is not necessary in the following 3 situations:

1) If the partner is seeking to adopt the legitimate child of his/her spouse.

 Hindi na kailangan ng joint adoption – because in relation to one of the
spouses – the child is already legitimate.
 So there is no need for the concerned parent to adopt the child.

2) If one is seeking to adopt his or her own illegitimate child.

 BUT......the CONSENT of the OTHER SPOUSE is necessary.
 Why? Because it is as if “rubbing salt to the wound”
 And in fact the other spouse may prevent the adoption – because the
law requires the consent of other spouse in such a situation.

3) Lastly, if the spouses are legally separated.

o So those are the 3 situations where joint adoption is not required.

WHAT ARE THE EFFECTS OF DOMESTIC ADOPTION?

Page | 168
o The most important effect of adoption – is that it would RAISE the status of the
adopted child to the status of LEGITIMACY.
o Take note that in the MODERN CONCEPT of adoption – it is supposed to be for
the benefit of the adopted and not for the benefit of the adopter.
o So if you will be confronted with a problem where you will be required to apply
that principle, adoption under the Modern Concept is supposed to be for the
benefit of the child and not of the adopter.
o Although when the concept was invented initially – it was invented for the
purpose of the adopter.
o But as the concept had evolved – under the modern concept – it now appear to
be for the benefit of the adopted/adoptee/child.
o That is the most important effect of adoption – to RAISE the child to the status of
legitimacy.
o NOTE: In adoption – it creates only a PERSONAL RELATIONSHIP between the
adopter and the adopted/adoptee.
o In other words, the adoptee is not related to other relatives of the adopter and
vice versa.
o But that principle of course – presupposes a situation that the adopted is not
related by blood to the adopter.
o Iaadopt lang natin yung principle that adoption creates no personal relationship
between the adopted and the adopter – if there is no blood relationship between
the two.

EX. Of the application of that principle:

o The adopted is not related to the adopter.
o After the adoption, the adopter dies.
o Subsequently, the mother of the adopter also dies.

May the adopted represent the adopter for the adopters’ inheritance coming
from the adopters’ parent? Pwede ba?
o NO. WHY?
o Because in representation – it is necessary that the representative must also be
qualified to inherit from the person from whom the person represented would
have inherited.
o And the principle in adoption – is that it only creates personal relationships
between the adopter and the adopted.
o In other words, the adopted is not related to the deceased, which is a
requirement in representation.
o BUT NOTE: That rule applies only – if there is no BLOOD relationship between
the adopter and the adopted.
o But the rule that the adoption only creates a personal relationship between the
adopter and the adopted will not apply if there is a blood relationship between
the adopter and the adopted.

o Ex. The adopted is the legitimate child. Is there a blood relationship between
them? YES there is.

Page | 169
 In the absence of adoption – if the legitimate father dies - may an illegitimate
child inherit by way of representation?
o Assuming that the child is the illegitimate child of the deceased.
o May the illegitimate child inherit from the legitimate parent of the deceased
by way of representation?
o NO. WHY?
o Because of IRON BARRIER/CURTAIN RULE.
o The law prohibits inheritance by operation of law between legitimate and
illegitimate....between these two person.

But what if the illegitimate child will be adopted by the adopter?

What will be the effect of that adoption?
o The child will be raised to the status of legitimacy.

Does that adoption create only a personal relation between the two?
o NO.
o The child is related by blood to the parent and also to the grandparent.

Can the adopted now inherit by right of representation from the

grandparent?
o Pwede? Magaapply pa ba yung iron barrier/curtain rule?
o NO. Hindi na.

PARENTAL AUTHORITY OVER THE

LET US DISCUSS:
ADOPTED CHILD:
o One of the effects of adoption is that PARENTAL AUTHORITY exercised by the
biological parent shall now be SEVERED and shall be VESTED upon the
adopter.
o Provided that the adopter is not the biological parent of the adopted.
o Again as to parental authority – the PA of the biological parent shall be severed
and the same shall be vested upon the adopter.
o And all the TIES existing between the biological and the adopted shall likewise
be severed and the same shall be transferred in favor of the adopter.

LET US DISCUSS THE: RIGHT OF THE ADOPTED CHILD TO USE THE

SURNAME OF THE ADOPTER:
o Our law mandates that the adopted child shall used the surname of the adopter.
o And that will be implemented in the new birth certificate that will be issued in
favor of the adopted child.
o In the amended BC – the adopted child will now make use of the surname of the
adopter.

MOST IMPORTANT:
THE EFFECT OF ADOPTION WITH RESPECT
LET US DISCUSS:
TO SUCCESSION:
o Will the adopted be a compulsory or intestate heir of the adopter and vice versa?
Page | 170
 o Will the adopter be likewise a compulsory or intestate heir of the adopted?
o Sabi ng batas.
o With respect to succession – as between the two – they will be entitled to
reciprocal rights of succession without any distinction from that which exists in
legitimate filiation.
o Anu ibig sabihin nun?...without any distinction.
o It means that the adopter and the adopted will become heirs of each other
whether compulsory or INTESTATE29.
o Let us go back to the 1st effect of adoption – that the child will be raised to the
status of legitimate child and therefore that adopted child will be entitled to all the
rights that will be enjoyed by the legitimate children.
o Ang sabi ng batas.....without ANY DISCRIMINATION.
o So kung anu ang lahat na naienjoy ng legitimate child will likewise be enjoyed by
an adopted child.
o EX. The existence of a legitimate child will exclude the ascendants from
compulsory and intestate succession.

QUESTION: May an adopted child likewise EXCLUDE the legitimate

ascendant from compulsory and intestate succession?
o ANS: YES
o Because the adopted child is entitled to the rights that are being enjoyed by
legitimate children WITHOUT ANY DISCRIMINATION.
o Whatever is being enjoyed by the legitimate child should likewise be enjoyed by
an adopted without any discrimination.

May the adopted child remain as a compulsory or intestate heir of the

biological parent and vice versa?
o With respect to that question there are TWO CONFLICTING VIEWS among
different civil law experts:

There is an Obiter Dictum by the SC in IN THE MATTER OF THE ADOPTION

OF STEPHANIE NATHY ASTORGA GARCIA (G.R. No. 148311. March
31, 2005)

o In that case - the SC made an obiter to the effect that under the provision of the
FC and domestic adoption act – the adopted child remains to be an INTESTATE
heir of the biological parent.
o If the child will remain to be an intestate heir of the biological parent necessarily
the child will also remain as compulsory heir of the biological parent.
o But that pronouncement of the SC in the case of ASTORGA GARCIA is merely
an obiter because that was not the issue in that case.
29
ART 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall
acquired the reciprocal rights and obligations arising from the relationship of parent and child,
including the right of the adopted to use the surname of the adopters.
(2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the
adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental
authority over the adopted shall be exercised jointly by both the spouses; and
(3) The adopted shall remain an INTESTATE HEIR of his parents and other blood relatives.
Page | 171
o The issue in that case is – may the adopted child make use of the surname of
the mother as her MAIDEN name? That was the issue in that case (already ask
in the bar).
o RULING: SC said YES. The child can make use of the surname of the mother as
her maiden name.

But if you were to examine the provision of Domestic Adoption Act – what is
the intention of th DAA? It said that:
1) The biological parent and the adopted child can inherit from each other by
way of testamentary succession.
 There is a provision in DAA to the effect that the biological parent and the
adopted can inherit by way of testamentary succession.

 What is the purpose of including that provision in the law?

 Isn’t it in testamentary succession you can name any person even a
stranger as your voluntary heir...so long as there is no impairment of the
legitime. You can make anybody as your voluntary heir in testamentary
succession.
 Siguro when that provision was included in DAA – it can only be that both of
them can inherit to each other only by way of testamentary succession.
 In order to give effect to that provision ..... yun lang dapat __ that they can
only inherit form each other by way of testamentary succession.
 In other words, they can no longer inherit from each other by intestate or
compulsory succession.

2) Only the TIES between the biological and the adopted are severed and
the same shall be vested in favor of the adopter.
 The right to succeed by way of compulsory or intestate succession is
pursuant to that LEGAL TIE that exists between the two.
 And that kind of succession – is a succession by operation of law.

 So in the absence of that legal tie (vinculum juris) – which is already

considered severed – there is no basis for intestate or compulsory
succession.
 Ang sagot naman ng iba tama dapat ang dalawang interpretation – if that
provision was not included in PARENTAL AUTHORITY.
 Eh nakalagay yung provision na yun hindi sa succession but in Parental
Authority.
 Kahit na that is only an effect in the drafting of the law, but the intention is
the severance of all the ties...existing between the donor and that of the
adopted.

 AND MOST IMPORTANTLY: Under DAA – the intent is to keep the entire
adoption proceedings CONFIDENTIAL.
 Unang una – upon the issuance of the decree of Legal Separation – the
original BC of the child will be CANCELLED.
 It will be stamped cancelled.
 And it will be replaced by a new one, an amended one.
 But the law provides that there should be no showing in the amended
certificate to indicate that it was only an amended
Page | 172
  So the intent of the law is that it will be made to appear that an amended
BC is the ORIGINAL.
 And in that amended BC (new cert to be issued) the law requires that it
would be made to appear that an adopter is now the parent of the adopted.
 And it is in fact required that the adopter should make use of surname of
the adopter.

3) The law further provides that all the records of the proceedings shall be
SEALED and KEPT CONFIDENTIAL.
 And the same can only be open pursuant to a court order in a case related
to the adoption
 And only for the best interest and welfare of the adopted child.
 The records of the proceeding can only be open in an action which is for
the benefit of the adopted.
 And the court may RESTRICT the use of the records.

 So what is the intent of the DAA?

 The intent of the DAA – is to keep the adoption proceeding SECRET.
 In other words, there is no way on the part of the adopted child to be aware
that he was just an adopted if the same will not be disclosed to him.
 If the adopted is not aware that he is merely an adopted how he is going to
acquire a right to inherit wherein in the first place __ ___
 So the intention of DAA – is i believe BIOLOGICAL to say that the intention
of the DAA is to REMOVE the RECIPROCAL rights of succession exists
between the adopter and the adopted.
 Because those are not included in the legal tie that was severed and
transferred in favor of the adopter.
 So this is not yet a settled issue.

LET US GO BACK TO CASE OF: UY VS CA?:

Let us go back to paternity and filiation:
o Take note that the MATTER of paternity and filiation – must be establish in a
JUDICIAL proceedings and by applying the law.
o In other words, the matter of paternity and filiation cannot be made the subject of
a COMPROMISE AGREEMENT.
o Take note that under ART 2035 NCC30 – civil status is one of the issues which
cannot be made the subject of a COMPROMISE AGREEMENT.
o Again, the matter of paternity and filiation cannot be made the subject of a
compromise agreement.

o EX. In the case of UY vs CA.

30
ART 2035. No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.

Page | 173
 o There was an action between the petitioner and the respondent.
o And in that action – there was a previous action between the petitioner and the
respondent.
o And in that previous action – the two enters into a compromise agreement
o In the compromise agreement that was entered between the petitioner and the
respondent – there was a statement there that the petitioner was not an
illegitimate child of the parent of the respondent.
o There was such statement/admission in the Compromise agreement that the
petitioner is not an illegitimate child of the parent of the respondent.
o And that compromise agreement was approved by the court.
o Subsequently a new case was filed by the petitioner involving the same cause of
action for RECOGNITION of paternity.
o Respondent pala dito is the late father. The alleged illegitimate parent. So there
was compromise agreement between the two
o A new action was filed against the same respondent for the same cause of
action (for recognition of paternity).
o Ang sabi ng respondent hindi pwede yan.
o Because there was already a compromise agreement in a previous action and
that compromise agreement – since it was already approved by the court – it
now constitute as RES JUDICATA.
o Is that correct?
o RULING: SC said there was none.
o Because the matter of paternity and filiation cannot be made the subject matter
of a compromise agreement.
o So the compromise agreement between the petitioner and the respondent, even
if it was approved by the court, it was NOT VALID.
o So the 2nd action may still PROSPER.

31
o In another case: RIVERO vs CA :
o Upon the death of the brother of the parent someone appeared and claiming to
be an illegitimate child of the deceased.
o The deceased was survived by several legitimate children
o And one of those several legitimate children had entered a compromise
agreement with the person who’s claiming to be an illegitimate child of the
deceased.
o Sabi nung legitimate child – cge bibigyan na lang kita ng kunting pera, titigil ka
na ba?
o Eh cguro malaki yung inheritance – pumayag naman yung claimant.
o And the two of them entered into a compromise agreement.
o And in that compromise agreement there was recognition that the claimant is
indeed an illegitimate child of the deceased.
o But the compromise agreement was entered only by one of the several
legitimate children.

31
G.R. No. 141273 (May 17, 2005). JOSE RIVERO, JESSIE RIVERO and AMALIA RIVERO, petitioners, vs.
COURT OF APPEALS, MARY JANE DY CHIAO *-DE GUZMAN, and BENITO DY CHIAO, JR., represented by his
uncle HENRY S. DY CHIAO, respondents.

Page | 174
o Then the other legitimate children when they have learned of the compromise
agreement, they questioned its validity.
o And true enough SC said – that compromise agreement is not valid.
o Because the matter of paternity and filiation cannot be made the subject matter
of any compromise agreement/settlement.
o The same should be establish by way of a judicial proceeding in accordance
with the provisions of the law.

o And what about the admission made by one of the legitimate children?
o Can we consider that as evidence?
o ANS: NO.
o Because the admission was not made by the alleged father. The alleged father is
already dead.
o In order for an ADMISSION to be a COMPETENT EVIDENCE – in order to
prove paternity – the admission must come from the putative/alleged father.

QUESTIONS:
1. On person authorize to solemnize marriage – What if the incumbent member
of the judiciary (judge) is on official leave?
Is he/she authorize to solemnize marriage during that period?
o Ans. YES
o Because he is an incumbent and still a member of the judiciary.
o At best, that would merely constitute as an irregularity in the formal
requisite which will not affect the validity of the marriage.
o If he is still incumbent – he has the authority to solemnize the marriage.
o So the marriage remains valid.

2. An unmarried woman gave birth to a son. Ten years thereafter, the father
acknowledges the child. What would now be the status of the acknowledge
child in his birth certificate?
o ANS: If they are not married, the child will still be illegitimate.
o Except that the child is now recognize as the illegitimate child of the
father
o And the child will be entitled to demand support from the illegitimate
father.
o That would entitle the child to make use of the surname of the
illegitimate father if the recognition of paternity was done in writing and
signed by the putative/illegitimate father.

3. Will the death of the putative father ipso facto negates the application of DNA
testing? If the sample is already available prior to the death of the putative
father, may that sample be used for examination?
o ANS: It depends. It may depend on the situation.
o If the death of the allege father occurred during the pendency of the
case and the court already allows the use of DNA testing and pursuant
to that court order samples of the father were given and it was
preserve.
o I believe in that case, the case may continue.
Page | 175
LET US CLARIFY THE CASE OF: CONCEPCION VS CA:
o In the case of Concepcion – it was the mother who contracted into a
subsequent marriage.
o Baliktarin natin sitwasyon – what if it is the HUSBAND who contracted a
subsequent marriage.
o In that subsequent marriage the husband had a child with the second wife.

What is the status of the child?

o The child is illegitimate.
o Because it was born in a VOID marriage.
o In other words, the child is conceived and born outside of a valid marriage.

REPEAT:
o In Concepcion vs CA it was the wife who contracted a subsequent marriage.
o And the wife begot a child in that 2nd marriage.
o So the child is PRESUMED to be – a LEGITIMATE child of the 1 st marriage.
o Because the child was conceived and born inside a valid marriage.
o So kung babaguhin natin sitwasyon – si lalaki naman who contracted a
subsequent bigamous marriage.
o In that subsequent bigamous marriage – the husband has another child.

What is the status of the child in the bigamous marriage?

o The child is illegitimate because the child is a product of a void marriage.
o NOTE: The PRESUMPTION of LEGITIMACY will not apply.

RESCISSION OF THE DECREE OF ADOPTION:

o TAKE NOTE: That under the domestic adoption act – it is only the adopted
child who has the right to RESCIND the decree of adoption.
o In other words the right of the adopter under the FC – to likewise rescind the
adoption was already REMOVE by the domestic adoption act.
o So with respect to that issue – it is the domestic adoption act the will prevail
as clarified by the SC in the case of LANGOG?.
o Under the DAA – it is only the adopted child who has the right to RESCIND
the decree of adoption.
o The adopter no longer has the right to rescind the decree of adoption.
o NOTE: But if the adopted child committed an act which will be a ground for
DISINHERITANCE, the remedy of the adopter is to simply disinherit the
adopted child from the right to inherit.

What is the ground that may be use by the child to rescind the decree of
adoption?
1) Repeated physical or verbal maltreatment by the adopter despite
undergoing counselling.
2) Attempt on the life of the adopted.
3) Sexual assault on the part of the adopter.
Page | 176
 4) Failure to comply with parental duties; or
5) Neglect of parental duties.

What are the effects of the decree of rescission/rescinding the decree of

adoption?
1) If the child is still a minor – the parental authority of the biological parent
shall be RESTORED.
 In other words the Parental Authority of the adopter – shall be
SEVERED and the PA of the biological parent shall be restored.
2) The RECIPROCAL rights of the adopter and the adoptee shall be
SEVERED.
3) With respect to the BIRTH CERTIFICATE of the child – the new BC of the
child will be CANCELLED and the ORIGINAL BC of the child will be
RESTORED.
4) With respect to SUCCESSION – the RECIPROCAL rights of the adopter
and the adopted to inherit from each other – shall likewise be
TERMINATED.
 But the right shall be terminated only as to the date – of the
JUDICIAL DECREE of RESCISSION.
 If any VESTED RIGHT – has already been acquired – pursuant to
that adoption prior to the issuance of that decree of rescission – that
vested right will no longer be affected.

32
LET US DISCUSS: SUPPORT: (ART 194 FC)
o SUPPORT – is anything which is INDESPENSABLE for the:
1. Sustenance;
2. Clothing;
3. Dwelling;
4. Medical support/attendance;
5. Educational support;
6. Transportation; etc. –in keeping with the financial capacity of the family.

o The provision of the FC – under ART 195 FC33 – is with respect to LEGAL
SUPPORT.

32
ART 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or to and from place of work.
33
ART 195. Subject to the provisions of the suceedign articles, the ff: are obliged to support each other to the
whole extent set forth in the preceding articles:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
(5) The legitimate brothers and sisters, whether of full or half-blood.
Page | 177
 o And take note that the basis of legal support – is the lega; relationship existing
between and among the parties enumerated in ART 195 and 19634.

Who are entitled to be supported?

1) Spouses;
2) Ascendants and descendants;
3) Parents and their children including the children of the latter whether the
children are legitimate or illegitimate.
4) Brothers and sisters whether of half blood or full blood; and
5) Brothers and sisters who are not legitimately related.

o But with to the brothers and sisters who are not legitimately related –
the right to received legal support will ceased if:
1. The brother or sister who is claiming support is over 21 yo (or of age).
2. The need for the support is because of an act which is attributable to the
fault or negligence of the claimant.
 If those requisites will be present – then the right to demand legal
support ceases if they are illegitimately related.

LET US DISCUSS: THE RIGHT OF THE SPOUSES TO DEMAND

SUPPORT TO EACH OTHER:
o It is necessary that the spouse claiming support must be the legitimate one.
o So there must be a valid marriage.
o That right to demand legal support by the spouses – the same is considered
TERMINATED upon declaration of the nullity of the marriage; upon annulment
of the marriage or even upon the issuance of the decree of Legal Separation.
o But in the case of LS – if the decree of LS was issued ....GR the right of the
spouses to demand support to each other ceases.
o EXCEPT: If the court in the LS case – will order the guilty spouse to continue
giving legal support to the innocent spouse.
o But in the absence of that court order in the LS case – the rule is that the right
of the spouses to demand support from each other ceases upon the issuance
of the decree of LS.

o ADULTERY – on the part of the wife is a DEFENSE that can be availed of on

the part of the husband to deny legal support to the wife.
o But if the parties are EQUALLY AT FAULT – they are both guilty of in pari
delicto – of course the husband cannot avail that defense of adultery.

TAKE NOTE: of the ORDER in ART 199 FC35:

34
ART 196. Brothers and sisters not legitimately related, whether of the full or half blood, are likewise bound to
support each other to the full extent set forth in ART 194 except only when the need for support of the brother
or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence.
35
ART 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the ff:
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.
Page | 178
 o There is an order of liability in giving support if there are two or more persons
who may be liable orbe recipient of the support or liability shall be borne in the
order mentioned in ART 199.
1) Spouses;
 The one who is obliged to give support to you will be your
spouse.
 Case: PELAYO VS LORO?
 The wife was in the house of the in-laws.
 And at that time the wife is about to deliver the baby.
 So in-laws called for the help of a physician/doctor.
 Consequently, the woman died.
 Ayaw magbayad nung husband ng professional fees of the doctor.

 QUESTION? May the in-laws be compelled to pay for the professional

fees of the doctor considering that it was the in-laws who availed of the
service of the doctor?
 SC said, NO.
 The obligation to render mutual help and support is the obligation of
the spouses.
 So it is the husband who has the obligation to pay for the
professional fees of the doctor.
2) Descendants in the nearest degree.
3) Ascendants in the nearest degree:
 So the grandparent does not become liable to the grandchild if there is a
parent who is able to give legal support.
 Case: PATRICIO VS DARIO III
4) Lastly, Brothers and sisters.
o Now, if there are two or more claimants from one person – the order of liability
in ART 199 shall likewise be followed.
o EXCEPT if the concurrence of liabilities will be the spouse and their children.
o If the claimant will be the spouse – and the children from the other spouse –
who is the parent of the children .....the children can have PRIORITY over the
spouse.
LET US DISCUSS: THE AMOUNT OF LEGAL SUPPORT:
o Take note that with respect to the amount of legal support shall depend on two
(2) things:
1) The NEED of the RECIPIENT; and
2) The CAPACITY of the GIVER.
o So in any action for legal support – take note that with respect to the amount
of legal support – the JUDGMENT of the court DOES NOT attain FINALITY.
o At anytime the amount of legal support can be change
o Because the amount of legal support shall depend on two things: (1) the
capacity of the giver; and (2) the need of the recipient.
o From time to time pwede magbago yun.
o So the parties can always ask for modification with respect to the amount of
the legal support.

Page | 179
 o NOTE: The person who is obliged to give legal support may give support in
two (2) ways:
1) Either by giving a FIXED ALLOWANCE; or
2) By simply retaining the RECIPIENT in the household.
o So if you are one of the spouses – you have the conjugal dwelling – without
justifiable reason and the one who left the conjugal dwelling demanded
support from the other – the other spouse can require the one who left the
conjugal dwelling to LIVE in the conjugal dwelling.
o That is one way of giving support – by simply retaining the recipient in the
conjugal dwelling.
o If the other spouse will not accept that kind of concession – he or she will lose
the right to be supported.
o But that 2nd manner of giving support cannot be resorted to if there is a legal
or valid oppression.
o EX. Kaya lumayas yung babae dahil ginagawang punching bag.
o If that will be the case the giver of the support/ the other spouse may not
choose the 2nd mode in giving support to the other spouse because there is a
valid reason on the part of the other spouse to leave the conjugal dwelling.
o In excess of what is given in legal support – yun ang tinatawag nating
CONTRACTUAL SUPPORT.

o CONTRACTUAL SUPPORT – is not the legal support that was provided for in
ART 195.
o Or even if the recipient of the support or the giver of the support – are those
mentioned in ART 195 & 196 but if the support is already IN EXCESS of what
is given in legal support – then the EXCESS shall now be considered as
CONTRACTUAL.

What is the difference between Legal support and Contractual support?

o In legal support the basis is the LAW.
o In contractual support the basis is the WILL of the giver.
o In legal support, the same cannot be subjected to ATTACHMENT, LEVY or
EXECUTION.
o Whereas contractual support – can be subjected to ATTACHMENT, LEVY or
EXECUTION.
o Legal support – cannot be RENOUNCED and it cannot be TRANSMITTED in
favor of a 3rd person.
o But in contractual support – can be RENOUNCED and it can be
TRANSMITTED in favor of a 3rd person.
o The law prohibits the compromise to demand of future or legal support. So
there can be NO COMPROMISE AGREEMENT with respect to the right to
receive future legal support.
o But the right to receive contractual support – can be the subject of a
compromise agreement.

LET US DISCUSS: PARENTAL AUTHORITY:

o Parental authority – simply refers to the MASS OF RIGHT and OBLIGATION
that the parents enjoy over their UNEMANCIPATED children.
Page | 180
o But in the MODERN CONCEPT – the emphasis is not so much on the right
but on the obligation.
o In other words, the obligations sphere is paramount.
o Binigyan sila ng karapatan dahil marami silang tungkulin.
o So that is the concept of parental authority.
o Ordinarily, PA is exercise only with respect to an unemancipated minor.
o Who is unemancipated? The minor....one who is below 18
o So ordinarily, PA ceases when the person reaches the age of majority.
o (we will be discussing that in connection with emancipation).

o In the ff situations even if the person already reach the age of majority the
authority of the parents still exist:
1) If the child who already reaches the age of 18 but still below 21 will
contract a marriage.
 Our law requires parental consent otherwise the marriage will
become voidable.
2) Likewise, even if the child is already 18 but below 25 – our law still
requires parental advice for purposes of the requirement of getting a
marriage license.
3) Likewise, even if the party reaches the age of 18 but still below 21 – then
that party if he will be entering a contract of marriage and prior to the
celebration of the marriage – that party will be entering in a marriage
settlement ... our law requires that the person whose consent is needed
must be made a party to the marriage settlement. Otherwise the marriage
settlement will be invalid.
4) Lastly, even if the child is already 18 but below 21 – but if the child
commits a delict or quasi-delict – the parents will be VICARIOUSLY
LIABLE pursuant to the provision of ART 2180 NCC in relation to ART
236 FC.
 Provided that the child is still LIVING – in the custody of the
parents.
o The important principle in PA – is that PA cannot be WAIVE it cannot be
RENOUNCED.
o EXCEPT: In those instances expressly allowed by law.
WHAT ARE THOSE INSTANCES WHERE THE LAW ALLOWS A VALID
RENUNCIATION AND A WAIVER OF PARENTAL AUTHORITY?
1) Adoption;
 The effect of adoption is that the PA shall be severed and the same
shall be transferred upon the adopter.

2) Guardianship
 In guardianship – the PA of the parent shall likewise be waived in favor
o the guardian.
3) In case of voluntary or involuntary commitment of the child to the care of
the DSWD or to any institution accredited by the DSWD.
4) Lastly, for purposes of imposing disciplinary action upon the child.
 The child may be temporarily committed to the care of child-rearing
institution

Page | 181
  And during those periods the PA of the parents shall be for the
meantime be transferred to the care of the child-rearing institution.
o Those are the only situations where our law allows a valid waiver or
renunciation of PA.
o EX. OFW who work abroad and entrusted the custody of the child to other
person or to her relative.

o Q? Can she reovered the custody of the child whom she entrusted to
other person or her relatives. Anung sasabihin ng pinagiwanan? NASAN
KA.............
o Those will be the argument of the custodian.

o Q? Can she recover?

o ANS: YES. Because PA cannot be waived, it cannot be renounced.
o What was given to the friend or the relative was not PERMANENT CUSTODY.
o Because PERMANENT CUSTODY – is an offshoot of PA.
o What was given to the friend or to the relative – was not PERMANENT
CUSTODY but merely TEMPORARY CUSTODY.
o Pursuant to the provisions of the family code PA cannot be waived, cannot be
renounced except in those instances expressly allowed by law and that is not
one of those instances where the law allows a valid waiver or renunciation of
PA. Again what was given to a friend is not permanent custody because
permanent custody is an offshoot of the exercise of PA which was not validly
waived, which was not validly renounced. So what was given to a friend was
merely a temporary custody.
o So at anytime – the one who is entitled to PA can recover the custody of the
child.

o In relation to PA there is such action as PARENTAL PREFERENCE

RULE.
o The parents – are always preferred.
o On the matter of custody of the children – the parents are always preferred
over someone who is not the parent.
o Even if one of the parent – is absent, unsuitable or dead.....the MAIN PARENT
shall continue to have PA over the child even if later on that parent will __
o Hindi maapektuhan ang PA nya.
o Unless the court will appoint another guardian over the person of the minor
children.

o But the problem is dun sa mother at sa father.

o IF THE CHILD IS LEGITIMATE – so both the father and the
mother has PA over the minor child.
o So ok lang yan kung nagkakasundo ang dalawa. Problem is what if the two
will separate either because of separation de facto or because of legal
separation or because of annulment of the marriage?
o In which case – if the marriage is annulled – the children will remain to be
legitimate.

Page | 182
o So both the mother and the father will still have PA.
o And even in cases of the declaration of the nullity of marriages on the ground
of ART 36 (PI) and ART 53 – the children is still legitimate
o Kaya lang maghihiwalay na yung dating magasawa –
o So in this case both the father and the mother still have PA.

Does our law sanction the exercise of JOINT PA?

o NO. The law does not sanction the exercise of joint PA in case of
SEPARATION of the parent.
o In case of the separation of the parent look at the provision of our law
o Our law requires the court to designate
o Our law requires the court to choose between the mother and the father as to
who between the two shall be entitled to the exercise of PA.
o Pwde lang mangyari yung exercise of JOINT PA – if that will be provided for in
the agreement between the H and W.
o But if they cannot agree in the exercise of Joint PA – our law directs the court
to choose between the conteding parties as to whom between them shall be
entitled to the exercise of PA.

o But when the court chooses one of the spouses to be entitled to the exercise
of PA – take note that the law is not DEPRIVING the other spouse of PA.
o What is given to the other spouse is merely the right to exercise PA.
o But the PA authority of the other parent – can only be lost pursuant to a
ground provided for under the FC.
o And that ground may either be death.
o So when the other spouse died – who may exercise the right of PA?
o Q? May the other spouse exercise his right of PA?
o YES. Under the parental preference rule.
o So the concept Absolute PA will not yet come into play.
o So in those situations where the spouses will be separated,...whathever will
be the reason for the separation (i.e. separation de facto, LS, annulment,
declaration of nullity - provided that the ground is either ART 36 or 53 in those
situations – the children will remain to be legitimate).
o But the spouse will now be separated – and the court is required to choose
who between the H & W will be entitled to the exercise of PA.

What is the rule? Kaninu natin ibibigay?

o The consideration is not what has been observed in LS.
o In ALL controversies affecting custody – the only consideration and the
manner of consideration is – the BEST WELFARE OF THE CHILDREN.
o Who between them will give the child a better life.
o That is the magic word “BEST WELFARE OF THE CHILD”.
o By taking considerations all the RELEVANT FACTORS such as: (1) financial;
(2) moral development of the child (3) social welfare of the child (4) education
etc.
o In othe words, money or financial matters is only one of the several
considerations.

Page | 183
o So hindi kesyo mayaman yung isa kesa sa isa...eh dun na ibibigay ang
exercise of PA dun sa mas mayaman.
o They have to take into considerations all the relevant factors.
o NOTE: But in our law – if the child is below 7 – there is a presumption that the
mother is the better custodian.
o There is a PRESUMPTION IN LAW – that it is to the best welfare of the child
– that the child SHOULD NOT BE SEPARATED FROM THE MOTHER.
o That is what we called “TENDER AGE PRESUMPTION”.

o So if you will be ask in the bar – explain the tender age presumption.
o ANS: Yun lang yun. That if the child is 7 the law presumed that the mother is
the better custodian. That the child should not be separated from the mother.
o UNLESS the mother – is found to be UNFIT.

When can we DQ the mother? When can we say that the mother is
UNFIT?
o Kung lesbian – would that automatically treat the mother unfit over the
custody over the minor children?
o ANS: NO.

Infedility of the moher? Would that necessarily constitute to declare the

mother UNFIT?
o NO.

Adultery, prostitute?
o NO.

WHEN DID WE SAY THAT THE MOTHER IS UNFIT TO TAKE CUSTODY

OF THE MINOR CHILDREN?
o Dapat yung ginagawa ng nanay – will ADVERSELY AFFECT – the growth of
the child.
o Kung hindi naman alam ng anak na ang nanay nya a unfaithful, prostitute,
lesbian...that will have any effect upon the child.
o Hindi naman porke prostitute ka – ay hindi ka na pwedeng magaling na ina.
o In other words, the action of the mother must have an adverse effect upon the
growth of the child.
o Or that those actions from the mother will make her NEGLECTFUL of her
parental duties to the child.
o So if you will be confronted with a question in bar examination – tingnan nyo
na lang kung may adverse effect ba yung ginagawa ng nanay sa anak
o Or napapabayaan na ba ng nanay yung anak nya.
o That is the only time that we can DQ the mother of having the custody over
the minor child.
o Those are the rules if the child is a legitimate child.

o BUT IF THE CHILD IS ILLEGITIMATE:

o Take note: That ONLY the MOTHER – shall have parental authority over an
illegitimate child.
Page | 184
o In other words – illegitimate father has NO PA over an illegitimate child.

Can the illegitimate father acquire PA over the illegitimate child, if he

recognizes paternity over the illegitimate child?
o ANS: NO.
o The matter of PA is provided for by law.
o So the right of PA cannot be adjudicated by the illegitimate father except by
mere expedient of recognizing paternity over an illegitimate child.
o So the recognition of paternity by the illegitimate father over the illegitimate
child will not grant him Parental Authority.
o So in other words, he will not be entitled parental custody over the minor child.
o WHY? Because custody – is an offshoot of the exercise of PA. (na wala ang
illegitimate father)

Pwede bang ipa DQ ng illegitimate father yung mother?

o YES.
o But the custody of the child will not necessarily be given to the illegitimate
father.
o BAKIT?
o Kc meron pa tayong tinatawag na SUBSTITUTE PARENTAL AUTHORITY.

o Pag dinisqualify na ang nanay – who will exercise PA over the

ILLEGITIMATE CHILD?
o ANS: The surviving MATERNAL GRAND PARENT.
o And not the illegitimate father.
o Because the illegitimate father has no PA.
o Therefore, he will not be entitled to Substitute PA.
o ZERO sya.
o So in the absence of the mother, it will be the surviving maternal grandparents
that will be entitled to exercise SUBSTITUTE PA.
o AGAIN: The recognition that was made by the illegitimate father will not grant
him PA and that would not entitle him to have custody over the minor child.
o Makakasama pa sa kanya yung gagawin nyang recognition.......WHY?
o That would make him liable to give legal support to the illegitimate child.
o And if that recognition was made in writing signed by the illegitimate father –
that will entitle the child to make use of the SURNAME of the illegitimate
father.
o But while the illegitimate father was not entitled to have custody over the
minor child – the illegitimate father is nonetheless entitled to VISITATION
RIGHT.

What is visitation right?

o Visitation right – is the right of a NON CUSTODIAL PARENT whether
legitimate or illegitimate to have ACESS over the child.

o Sinu tinatawag nating non custodial?

o If the child is illegitimate – the illegitimate father is the non custodial.

Page | 185
 o If the child is legitimate – the other parent was not designated by the court to
be entitled to the exercise of PA – is necessarily non custodial.
o So in case of separation de facto – the court does not award the custody of
the child to the mother – then the mother is the non custodial, entitled to
visitation right.
o In case of Legal separation – where the court awarded the custody of the
child to the mother – so the father is the non custodial.
o In case of annulment – where the custody over the minor child is awarded to
the mother – the father is non custodial.
o Ganun din in the declaration of nullity of marriages on the ground of ART
36 and 53.
o So the visitation right – is an inherent and natural right of a parent whether
legitimate or illegitimate to have access to the children.
o NOTE: The MINIMUM REQUIREMENT OF VISITATION RIGHT – is the
EXISTENCE of PARENT and CHILD relationships whether the relationship be
legitimate or illegitimate.

GO BACK TO THE CASE OF: CONCEPCION VS CA:

o In the case of Concepcion – the women contracted a subsequent bigamous
marriage.
o The child in the subsequent marriage – is presumed to be the child of the
valid 1st marriage.
o So if the 2nd husband is the biological father – he will not be able to prove that
he is the biological father.
o There is no way that he can prove that he is the biological father unless the 1 st
husband will be successfully IMPUGNED the legitimacy of the child.
o In the event that the 1 st husband did not impugn the child’s legitimacy – the
child is considered as the legitimate child of the 1 st marriage.
o So therefore – the 2nd husband even if he was the biological father – is not
entitled to VISITATION rights.
o Because as far as the law is concerned – there is no parent and child
relationship existing between the child and the biological father.
o That is the MINIMUM REQ is visitation right.
o MINUMUM REQ - EXISTENCE of PARENT and CHILD relationships whether
the relationship be legitimate or illegitimate.

ANU YUNG TINATAWAG NATING: SUBSTITUTE PARENTAL

AUTHORITY:
o The concept of substitute parental authority – will only come into play – even
in the ABSENCE of BOTH parents.
o In other words – both the father and the mother are absent.
o Both the father and the mother are dead.
o Both the father and the mother are unsuitable.
o In the case of absence, death or unsuitability of both parents – the concept of
substitute parental authority will come into play.
o In other words, hindi pwedeng magsabay and PA at ang Substitute PA ng mga
parents. Hindi pwede magsabay yan.

Page | 186
 o The substitute PA will only exist in the absence of parents.
o Either because both are dead, both are absent or both are unsuitable.

Who are entitled to exercise substitute PA? (ART 216 FC)36

o In the order mentioned by the law:

1) First: Surviving grandparents, as provided in ART 21437;

 If the child is legitimate – the proble is there are two surviving
grandparents.
 Merong maternal and paternal line.
 What is the rule?
 The best consideration – is the welfare of the child.
 Considering of course all the relevant factors.
 If the child is illegitimate – only the mother has parental authority.
 So in the absence of the mother – papasok kaagad yung
konsepto ng substitute PA.
 Who is entitled to exercise Substitute PA?
 Only the maternal line.
 Hindi pwede yung paternal – kc yung father nga wala.
Always the maternal line.

2) The oldest brother or sister, over 21 years of age, unless unfit or

disqualified; and
3) The child’s actual custodian, over 21 years of age, unless unfit or
disqualified.

LET US DISCUSS THE CONCEPT OF: SPECIAL PARENTAL

AUTHORITY:
o Why SPECIAL?
o The PA is special – because that PA exist only – when the child in under the
supervision, instruction or custody of those person given by law to exercise
PA.

Who are those persons entitled to exercise SPECIAL PA?

o Sabi ng batas – the school, the administrator of the school, the teachers, and
any institution, entity or individual engage in child care.
o So long as the child is under the supervision, custody or instruction of those
persons.
36
ART 216 FC. In default of parents or a judicially appointed guardian, the ff: persons shall exercise substitute
parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in ART 214 FC;
(2) The oldest brother or sister, over 21 years of age, unless unfit or disqualified; and
(3) The child’s actual custodian, over 21 years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the child becomes necessary,
the same order of preference shall be observed.
37
ART 214FC. 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.
Page | 187
 o But take note, the most important provisions there – is that SPECIAL PA exist
for all authorize activities – whether that acitivity is done INSIDE or OUTSIDE
of the school premises – so long that it is in pursuance of an AUTHORIZE
ACTIVITY.
o Kasama dyan, yung picnic, excursion authorize by the school.
o Ex. What about waiver na pinapapirmahan ng bata sa magulang. What will
happen. Can you still sue the school?
o ANS: YES.
o The exercise of PA cannot be waived, it cannot be renounced.
o That is not a valid waiver of PA.
o The provision of ART 218 FC38 – to the effect that PA cannot be waived or
renounced. It applies to all kinds of Parental authority whether it is the PA of
the parents or substitute PA or the special PA of the school, administrator etc.

IMPORTANT CONCEPT IN RE-PARENTAL AUTHORITY:

What if the child committed a DELICT or QUASI-DELICT?

Who will be liable for the delict or quasi-delict committed by the child?
o ANS: If the child is still a minor (below 18)– at the time of the commission of
the delict or quasi-delict – it will be the Family Code which will be applicable.

o What is the period? Where was the delict or quasi-delict committed?

o If the delict or quasi-delict is committed while the child – was under SPECIAL
PA of the school adnminitrator etc – it is those person exercising SPECIAL PA
who shall be PRIMARILY LIABLE for the payment of the civil liability arising
from delict or quasi-delict.

o What about the parents? – they are considered SUBSIDIARILY LIABLE for
the payment of those civil indemnities.
o Pag pinagusapan natin and subsidiary liability - the parents or those persons
exercising substitute PA will only become liable in case of insolvency of those
persons exercising Special PA.
o But whether it is PRIMARY or SUBSIDIARY liability – there is a defense that
can be PUT UP in order to escape from the liability to pay the civil indemnity.
o Panu yung depensa na yun? That those persons exercising PA or those
exercising SUBSTITUTE PA or SPECIAL PA – have EXERTED DUE
DILIGENCE/all efforts in preventing the damage.
o If they can prove that they exercise all the diligence required to prevent the
damage – they may not be liable.

o But if the DELICT or QUASI-DELICT was committed by the child – while the
child was not under the Special PA of the school, administrator etc…(wala
naman sa eskwelahan. Walang pasok nung araw na yun) – who may be
liable?
38
ART 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child
care 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.
Page | 188
 o The parent of the child – will be liable for the resulting civil liability.
o But of course the parents – can put up the defense that they have observed
all the diligence required in order to prevent damage.

o If the child is already 18 but below 21 – and the child commits delict or quasi-
delict – May the parent become liable for the payment of the civil
liability?
o ANS: YES
o But the liability now will be VICARIOUS.
o In other words, the child will be liable under ART 2176 CC39 – but the parents
will become VICARIOUSLY liable pursuant to ART 2180 NCC40. (para 1 was
repealed by ART 221 FC41 – acc to Balane)
o So kung merong sariling property yung bata – the child can be sued
separately or the parents can be sued separately pursuant to VICARIOUS
LIABILITY.
o Or they can be sued TOGETHER – and their liability will be SOLIDARY.

LET US DISCUSS: THE PARENTAL AUTHORITY OF THE PARENTS OVER THE

PROPERTIES OF THEIR MINOR CHILDREN:
Are the parents considered as the guardians – of the properties of their
minor children?
o ANS: YES
o Without need of court appointment.
o The parent are considered as LEGAL GUARDIAN – of the properties of their
minor children WITHOUT NEED OF COURT APPOINTMENT.
o But if the property of the child – EXCEEDS Php 50K – the law requires the
parents to get a BOND – EQUIVALENT to AT LEAST 10% of the value of the
property.
o But take note – that the legal guardianship of the parent over the property of
their minor children does not ENTITLE the parents – to SELL or ENCUMBER
the properties of their minor children.
o Especially if the property – is a REAL PROPERTY.

NOTE:
o On the matter of disposition of encumbrance of real property of the minor
children – the parents are required to resort – to GUARDIANSHIP
Proceeding.

39
ART 2176 NCC. Whoever by acts or omission causes damage to another, there being fault or negligence,
obliged to pay the damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
40
ART 2180. (para 1 was repealed by ART 221 FC – according to BALANE) x x x x x x PARA 2. “The father and, in
case of his death or incapacity, the mother, are responsible for the damages caused by the minor who live in
their company”.
41
ART 221 FC. 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 thei company and under
their parental authority subject to the appropriate defenses provided by law.
Page | 189
 o This time if the parents will sell a real property belonging to the minor or
encumdering a property belonging to the minor children – the parents are now
required to resort to guardianship proceeding.
o And in that guardianship proceeding – the parent are required to OBTAIN
court AUTHORIZATION for the disposition or encumbrance.
What will happen to the transaction – if the parents will dispose or
encumber a real property of their minor children in the absence of a court
approval?
o Pursuant to the decision of the SC – in the case of ENTON VS QUINTANA?:
o Any disposition or encumbrance of the property of the ward/minor children
without the approval of the court – the transaction is considered VOID AB
INITIO.

Can the parents – lease the property of their minor children without
court approval?
o ANS: It depends.
o If the lease is to be recorded – that will now become an act of STRICT
OWNERSHIP/ an act of DOMINION.
o Or even if not recorded – but the term of the LEASE is MORE than a YEAR –
the law requires the parents to obtain court authorization.
o Otherwise the lease – will not be considered as valid.

LET US DISCUSS: EMANCIPATION:

o EMANCIPATION – is the manner of freeing the child from Parental Authority
of the parent.
o Under present laws – there is only one way of attaining emancipation.
o By simply – attaining the age of MAJORITY.

And what is the age of majority under existing laws? – 18 yo.

o So once the child – reaches the age of 18 – he or she is AUTOMATICALLY –
emancipated.
o Freed from the parental authority – of the parents.
o EXCEPT: In those instances – expressly reserved by law.

What are the instances where the law reserved the authority of the parent if
the child had already reach the age of 18yo?42
o Yung binanggit natin kanina.
42
In the ff situations even if the person already reaches the age of majority the authority of the parents still exist:
1) If the child who already reaches the age of 18 but still below 21 will contract a marriage.
 Our law requires parental consent otherwise the marriage will become voidable.
2) Likewise, even if the child is already 18 but below 25 – our law still requires parental advice for
purposes of the requirement of getting a marriage license.
3) Likewise, even if the party reaches the age of 18 but still below 21 – then that party if he will be
entering a contract of marriage and prior to the celebration of the marriage – that party will be
entering in a marriage settlement ... our law requires that the person whose consent is needed
must be made a party to the marriage settlement. Otherwise the marriage settlement will be invalid.
4) Lastly, even if the child is already 18 but below 21 – but if the child commits a delict or quasi-delict –
the parents will be VICARIOUSLY LIABLE pursuant to the provision of ART 2180 NCC in relation to
ART 236 FC.
 Provided that the child is still LIVING – in the custody of the parents.
Page | 190
 o Even if the child has already reach the age or 18 but below 21 – for purposes
of contracting marriage then parental consent is necessary.
o In marriage settlement – the law requires that the parent concerned shall be
made a party to the marriage settlement.
o Otherwise the marriage settlement – will become invalid.
o If the child is below 25 – parental advice is still necessary for purposes of
getting a marriage license.
o And, If the child commits a delict or quasi-delict – if the child is 18 but below
21 – the parents will still be vicariously liable.
o With the condition – that the child is still living in the company of the parents.

CORRECTION OF ENTRIES IN
LASTLY, LET ME DISCUSS:
THE BIRTH CERTIFICATE:
o You are all familiar with RA No. 1948
o “Administrative correction and change of 1st NAME”.
o So because of RA 1948 – there can be a correction of entry or change of 1 st
name – by way of ADMINISTRATIVE CORRECTION or change of 1 st name.
o If the grounds in RA 1948 will be present.
o Aside from those grounds provided for in RA 1948 – the rule is that …before
there can be a change of 1 st name – there must be a judicial proceeding for
that purpose.
o And there must be a VALID REASON for changing one’s 1st name.
o Hindi pweden kung gusto or nakursunadahan lang magpalit ng 1 st name ay
papayagan ka na. Hindi pwede.
o Recall the case of Silverio vs Republic – a sex reassignment surgery is not
a valid ground for change of 1st name.
o But in case of Republic vs Kagandahan – the condition of Jennifer was not
by reason of his own fault – she was allowed to correct the entry in her birth
certificate and change the entry in the BC with respect to the status from
female to male.
o And as a consequence of that – the court also awarded to change his 1 st
name to be consistent in the correction in the birth certificate.

LET US DISCUSS THE CASE OF: PLAZA VS CITY OF HIMAMAYLAN NEGROS

OCCIDENTAL?:
o A case decided by Justice CARPIO-MORALES.
o The 1st wife found out that the husband had a 2 nd marriage.
o And in the 2nd marriage there was child.
o And it was made to appear that the child in the 2 nd marriage was
LEGITIMATED because of the marriage of the Husband & the 2 nd Wife.
o Upon discovery of the existence of that 2 nd marriage – and upon discovering
that the alleged child in the 2 nd marriage was allegedly legitimated because of
the marriage of the parties in the 2 nd marriage…..the 1st wife filed a petition for
correction of entry in the BC of the child pursuant to RULE 108 ROC.

Page | 191
 o But in the petition – the grounds for the correction of entry – is that the child
should not be considered legitimated because the 2 nd marriage was allegedly
void because it was bigamous.
o So the petition makikita nyo was the validity of the 2 nd marriage.
o And secondly, she was questioning the legitimacy of the child.
o And since the petition was filed after the action – under RULE 108 was filed
after March 15 of year 2003 –
o The SC said: The matter is now governed by Administrative Matter No. 02-
11-10.
o Unang una with respect to jurisdiction: The regular RTC does not have
jurisdication over the action.
 Because in reality – the action is for the declaration of the nullity of the
2nd marriage.
 And the declaration of the nullity of the 2 nd marriage – cannot be done
by way of RULE 108 ROC.

o An action for the declaration of the nullity of the marriage should be filed
pursuant to the provision of AM No. 02-11-10.
o Likewise, the manner of questioning the legitimacy of the child – cannot be
done INDIRECTLY by way of RULE 108.

o SC said: In the case of Brasas/Plaza? vs City Civil Registrar

o In that case, the legitimacy of the child will depend on the validity of the 2 nd
marriage.
o If the 2nd marriage will be declared void, then necessarily the child will become
illegitimate and not capable of becoming legitimated.
o But the same cannot be done under the remedy allowed in RULE 108.
o A petition for the declaration of the nullity of the marriage – must be filed
before the FAMILY COURT.
o In other words, the regular court has no jurisdiction over that kind of action.

CUES: ANU ANG MGA LALABAS IN PERSON AND FAMILY

RELATIONS?
1) On the question of who has the right to file the petition for declaration of
nullity.
 In other words, yung application of AM No. 02-11-10.
2) Take note of the cases of CARLOS vs SANDOVAL (2009) and the case of
ENRICO vs The heirs of Sps. Medinasen?
3) The application of AM No. 02-11-10.
 It applies only to marriages covered by the Family Code.
 And only if the petition is filed on or before March 15 of year 2003.
 Because AM No. 02-11-10 does not apply RETROACTIVELY.
 Other than that – the rule is that – if the marriage is not covered by AM
No. 02-11-10, because the marriage occurred prior to the FC, or even if
the marriage occurred during the FC – but the petition was already filed

Page | 192
 prior to March 15 of year 2003, the rule simply is – that the petitioner
MUST be the REAL PARTY in INTEREST.
 What kind of interest is being referred to – SUCCESSIONAL RIGHT.
 So it is only the intestate and compulsory heirs may file the petition for
the declaration of nullity….upon the death of the spouses.
 If one spouses is still alive – yung interest nila _____
 But that petition can still be filed after the death of the spouses and 02-
11-10 is not applicable.
 But if 02-11-10 is applicable – only the spouses can file the petition for
declaration of nullity of the maarige.
 While the heirs (intestate or compulsory) may no longer have the right
to file the petition for declaration of nullity.
 They can only collaterally attack – the validity of the marriage upon the
death of the spouses during the settlement of the estate of the
deceased spouse.

- END -

Page | 193