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When law takes effect

• Article 2, CC: Laws shall take effect after 15 days following the completion of their publication either in
the O.G. or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

Tanada v. Tuvera:

Publication ~ indispensable requirement for effectivity of laws.

Why? To satisfy due process, to give the general public adequate notice of the various laws
which are to regulate their actions and conduct as citizens. Without publication, there would be no
basis for the maxim, ignorance of the law excuses no one.

Is publication required to be full? Yes. The mere mention of the number of the republic act, title
of such act, its whereabouts (e.g., with UP Law Center), and its supposed date of effectivity is not
sufficient. The publication must be in full or it is no publication at all, since its purpose is to
inform the public of the contents of the laws.

Laws ~ refers to all laws both of general and local application, including private laws. In particular, the
term covers (a) all statutes; (b) presidential decrees and executive orders promulgated by the President in
the exercise of legislative powers whenever the same are validly delegated by the legislature or directly
conferred by the Constitution; (c) administrative rules and regulations if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All
presidential decrees must be published, including even, say, those naming a public place after a
favored individual or exempting him from certain prohibitions or requirements. The circulars
issued by the Monetary Board must be published if they are meant not merely to interpret but to
"fill in the details" of the Central Bank Act which that body is supposed to enforce. (Que Po Lay

However, interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. The term
“Laws” also exclude municipal ordinances that are governed by the LGC and Supreme Court
decisions as held in De Roy vs. CA (*** there is no law requiring the publication of Supreme
Court decisions in the Official Gazette before they can be binding and as a condition to their
becoming effective).

Unless otherwise provided ~ refers to the 15 period and not to the publication requirement.

Three possibilities:

1. When a statute does not provide for its effectivity (i.e., no effectivity clause), then,
the statute shall take effect after the expiration of 15 days from the completion of its
publication either in the O.G. or in the newspaper of general circulation, i.e., on the
16th day.
2. When a statute provides for a different period longer or shorter than 15 days, then,
such period shall prevail provided that the requirement of publication is satisfied.

3. When a statute provides that it shall take effect immediately, then, it shall take effect
immediately but only AFTER its publication, totally dispensing the 15 day period as
provided in Article 2, CC.

Repeal of Laws

• Art. 7, CC: Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent
with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

2 Modes of Abrogating a Law:

1. By judicial means through a declaration of unconstitutionality

a. In deciding statute’s constitutionality, its validity is presumed and favored; whenever

possible, statutes should be given a meaning that will not make them conflict with
the Constitution.

b. Effect of declaration of unconstitutionality: Law is void; it is stricken off from the

statute book.

Total declaration of unconstitutionality ~ total abrogation of the law.

Partial declaration of unconstitutionality ~ partial abrogation of the law,

exception: indivisibility of legislative intent.

c. Operative Fact Doctrine: The actual existence of a statute, prior to determination

of unconstitutionality, is an operative fact and may have consequences which cannot
justly be ignored. For the operative fact doctrine to apply, there must be a law or
executive issuance, that is invalidated by the court. From the passage of such law or
promulgation of such executive issuance until its invalidation by the court, the
effects of the law or executive issuance, when relied upon by the public in good
faith, may have to be recognized as valid. {CIR v. San Roque Power Corp.}

2. By legislative means through a subsequent law (repeal)

a. A repeal may be express or implied.

Express repeal ~ the new law literally declares or identifies in specific terms the
particular laws and/or provisions of laws to be repealed.

Implied repeal ~ the new law contains provisions contrary to or inconsistent

with those of a former law without expressly repealing them. This is not

b. If the repeal is express, the old law is effectively abrogated and courts have no
business of determining whether the provisions of the old and the new laws are
irreconcilable. In other words, the old law is abandoned regardless of its
reconcilability or irreconcilability with the new law. However, if the repeal is
implied, the old law is abandoned only when it is irreconcilable with the new law.
c. Iloilo Palay v. Feliciano: There are two laws here. Old law (RA 2207): Should there
be an existing or imminent shortage in the local supply of rice of such gravity as to
constitute a national emergency, and this is certified by the National Economic
Council, the President of the Philippines may authorize importation thru any
government agency that he may designate. New law (RA 3452): The importation of
rice is only left to private parties upon payment of the corresponding taxes.
Petitioners opposed the rice importation by the government on the ground that it is
illegal for being contrary to the new law (RA 3452). Petitioner contended that RA
3452 expressly repealed RA 2207, because the repealing clause of RA 3452 provides
that “All laws or parts thereof inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.” The question may now be asked: what is
the nature of this repealing clause? It is certainly not an express repealing clause
because it fails to identify or designate the Act or Acts that are intended to be
repealed. Rather, it is a clause which predicates the intended repeal upon the
condition that a substantial conflict must be found in existing and prior Acts. Such
being the case, the presumption against implied repeals and the rule against strict
construction regarding implied repeals apply. Indeed, the legislature is presumed to
know the existing laws so that, if a repeal is intended, the proper step is to so express
it. The failure to add a specific repealing clause indicates that the intent was not to
repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist
in the terms of the new and old laws. Here there is no such inconsistency.

3. Will the repeal of the repealing law revive the first law? The answer is not a categorical
yes or a categorical no. The answer is it depends. There are 3 laws involved here.

a. US v. Soliman (1917): If the first law is repealed expressly by the second law, the
repeal of the second law by the third law does not revive the first law, unless
expressly so provided by the third law. But, if the first law is repealed impliedly by
the second law, the repeal of the second law by the third law revives the first law, the
third law provides otherwise.

Conflict of Laws

Article 14 (Territoriality Principle): 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 pubic international law and to treaty

Article 15 (Nationality Principle): Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living abroad.

• On family rights & duties:

Del Soccoro v. Van Wilsem (2014): Petitioner invokes Article 195 of the Family Code, which
provides the parent’s obligation to support his child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to Article 26 of the Family Code, respondent is not
excused from complying with his obligation to support his minor child with petitioner. HELD:
The obligation to give support to a child is a matter that falls under family rights and duties. Since
the respondent is a citizen of Netherlands, we agree with the RTC-Cebu that he is subject to the
laws of his country, not to Philippine law, as to whether he is obliged to give support to his child,
as well as the consequences of his failure to do so. However, it is incumbent upon respondent to
plead and prove that the national law of the Netherlands does not impose upon the parents the
obligation to support their child. The doctrine of processual presumption was applied in this case.
Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic.
• On status:

Van Dorn v. Romillo (1985): Pursuant to his national law, private respondent (American) is no
longer the husband of petitioner. He would have no standing to sue in the case below as
petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the
Decision of his own country's Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.

Pilapil v. Ibay-Somera (1989): Under Article 344 of the Revised Penal Code, the crime of
adultery cannot be prosecuted except upon a sworn written complaint filed by the offended
spouse. Private respondent, being no longer the husband of petitioner, had no legal standing to
commence the adultery case under the imposture that he was the offended spouse at the time he
filed suit. The fact that private respondent obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned in view of the nationality principle in our
civil law on the matter of status of persons.

• On divorce:

Garcia v. Recio (2001): An absolute divorce secured by a Filipino married to another Filipino is
contrary to our concept of public policy and morality and shall not be recognized in this
jurisdiction. Philippine law does not provide for absolute divorce; hence, our courts cannot grant

EXCEPTION: 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. (Article
26, 2nd paragraph, FC).

Republic v. Orbicedo (2005): We are unanimous in our holding that Paragraph 2 of Article 26 of
the Family Code should be interpreted to allow a Filipino citizen, who has been divorced by a
spouse who had acquired foreign citizenship and remarried, also to remarry. The reckoning point
is not the citizenship of the divorcing parties at the time of marriage but their citizenship at the
time of divorce.

o The availment by the Filipino spouse of the right to remarry is

however not automatic. It is subject to the condition that the
foreign divorce decree is judicially recognized first.

o Corpus v. Sto. Tomas: The registration of a foreign divorce

decree in the civil registry without the requisite judicial recognition
is patently void and cannot produce any legal effect. Article 407 of
the Civil Code mandates that incidents concerning civil status of
persons shall be recorded in the civil register by virtue of a judicial

Republic v. Manalo (2018): Does a Filipino citizen have the capacity to remarry under Philippine
law after initiating a divorce proceeding abroad and obtaining a favorable judgment against her
alien spouse who is capacitated to remarry? Answer: Yes, because of two reasons: One, paragraph
2 of Article 26 speaks of "a divorce x x x validly obtained abroad by the alien spouse capacitating
him or her to remarry. " Based on a clear and plain reading of the provision, it only requires that
there be a divorce validly obtained abroad. The letter of the law does not demand that the alien
spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It
does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign
divorce proceeding. And two, to interpret the word “obtained” to mean that the divorce proceeding
must be actually initiated by the alien spouse would depart from the true intent of the legislature.
The purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after a foreign divorce decree that is effective in the
country where it was rendered, is no longer married to the Filipino spouse.

Article 16 (Lex Rei Sitae Principle): Paragraph 1 = Real property as well as personal property is subject to the law
of the country where it is stipulated. Paragraph 2 = However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country wherein said property may
be found.

Paragraph 1:

Orion Savings Bank v. Suzuki (2014): All matters concerning the title and disposition of real
property are determined by what is known as the lex loci rei sitae, which can alone prescribe the
mode by which a title can pass from one person to another, or by which an interest therein can be
gained or lost. This principle even governs the capacity of the person making a deed relating to
immovable property, no matter what its nature may be. Thus, an instrument will be ineffective to
transfer title to land if the person making it is incapacitated by the lex loci rei sitae, even though
under the law of his domicile and by the law of the place where the instrument is actually made,
his capacity is undoubted.

Paragraph 2:

Miciano v. Brimo (1927): A provision in a foreigner’s will to the effect that his properties shall
be distributed in accordance with Philippine law and not with his national law (Turkish law), is
illegal and void, for his national law cannot be ignored pursuant to Article 16.

Bellis vs. Bellis (1967): Suppose a foreigner dies leaving considerable amount of properties in the
Philippines but disposes of these properties in his last will and testament without respecting the
legitimes of his compulsory heirs, may the compulsory heirs invalidate the disposition on the
ground that it is inofficious? Answer: No. Article 16, par. 2, and Art. 1039 of the Civil Code,
render applicable the national law of the decedent, in intestate or testamentary successions, with
regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the
intrinsic validity of the provisions of the will; and (d) the capacity to succeed.

Follow up question, is it not that the Philippine law on legitimes is founded on sound public
policy and that Article 17, 3rd paragraph, provides that prohibitive laws concerning persons, their
acts or property, and those which have for their object public order, public policy and good
customs shall not be rendered ineffective by laws promulgated in a foreign country? And so, the
Philippine law on legitimes should therefore prevail over the national law of the foreign decedent?

Answer: The second paragraph of Art. 16 is a specific provision in itself which must be applied
in testate and intestate succession. It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes, Congress has not intended to extend the same
to the succession of foreign nationals. For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the decedent's national law. Specific provisions (Article 16,
second paragraph) must prevail over general ones (Article 17, 3rd paragraph).
Article 17 (Lex Loci Celebrationis Principle): The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are
executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons,
their acts or property, and those which have for their object public order, public policy and good customs shall not
be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country.

Hasegawa v. Kitamura (2007): With regard extrinsic validity of contract ~ lex loci
celebrationis or the "law of the place of the ceremony" or the law of the place where a contract
was made. But, with regard intrinsic validity ~ lex loci contractus or the law voluntarily agreed
upon by the parties or the law intended by them either expressly or implicitly. If the choice of law
by the contracting parties cannot be readily inferred, the "state of the most significant
relationship rule" applies. Under this rule, to ascertain what state law to apply to a dispute, the
court should determine which state has the most substantial connection to the transaction and the
parties (i.e., where the contract was made, was negotiated, was to be performed, and the domicile,
place of business, or place of incorporation of the parties). This rule takes into account several
contacts and evaluates them according to their relative importance with respect to the particular
issue to be resolved.

Kinds of Person

Quimiguing v. Icao: A woman was repeatedly forced to have sexual intercourse with a married and as a
result the woman became pregnant and had to stop studying. She filed a petition for support. Trial judged
dismissed petition for lack of cause of action since complaint did not allege that a child was born, although
it alleged that the petitioner is pregnant. Is trial judge correct? NO. Based on Article 40 of the Civil Code, a
conceived child, although unborn, is given a provisional personality for all purposes favorable to it and has
a right to support from its progenitors.

Geluz v. CA (1961): Can a parent invoke “provisional personality” of a conceived child to obtain damages
for and on behalf of an aborted child? NO. Article 40 of the Civil Code expressly limits the provisional
personality of a conceived child by imposing the condition that the child should be subsequently born alive.
Even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-
natal death, since no transmission to anyone can take place from on that lacked juridical personality. BUT
the parents can obtain damages in their own right against the doctor who caused the abortion on account of
distress and anguish attendant to its loss and disappointment of their parental expectation. Although parents
must be shown not to have given consent.

Continental Steel v. Accredited Voluntary Arbitrator: Continental Steel denied Hortillano’s claims for
bereavement and death benefits under the CBA because, accordingly, no death of an employee’s dependent
had occurred. The death of a fetus, at whatever stage of pregnancy, was excluded from the coverage of the
CBA since what was contemplated by the CBA was the death of a legal person, and not that of a fetus,
which did not acquire any juridical personality. Do you need to be born in order to die? SC: The reliance of
Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal definition of death is misplaced.
One, we need not establish civil personality of the unborn child herein since his juridical capacity and
capacity to act as a person are not in issue. It is not a question before us whether the unborn child acquired
any rights or incurred any obligations prior to his/her death that were passed on to or assumed by the
child’s parents. The rights to bereavement and death benefits in the instant case pertain directly to the
parents of the unborn child upon the latter’s death. Two, Articles 40, 41 and 42 of the Civil Code do
not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil
personality may be extinguished by death, it does not explicitly state that only those who have acquired
juridical personality could die. And three, death has been defined as the cessation of life. Life is not
synonymous with civil personality. One need not acquire civil personality first before he/she could die.
Even a child inside the womb already has life. No less than the Constitution recognizes the life of the
unborn from conception. If the unborn already has life, then the cessation thereof even prior to the child
being delivered, qualifies as death.


Article 1, FC: **** For the purpose of establishing a conjugal and family life.

o Marriage for the purpose of giving name to a child in the womb, can the marriage be annulled
because the child died before birth?
o Marriage for the purpose of obtaining the citizenship of the husband? (What is the difference
between limited purpose marriage and marriage in jest?) (Republic v. Albios)

Article 1, FC: **** Marriage is an inviolable social institution.

o PT & T vs. NLRC (1997): Can the employer validly terminate the employee on the ground that
the employee contracts marriage? NO, because it is a violation of the Constitution and the
fundamental right to pursue happiness. BUT, a requirement that a woman employee must remain
unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the
particular requirements of the job would justify the same.

o Duncan v. Glaxo (2004): Issue: Validity of the policy of a pharmaceutical company prohibiting
its employees from marrying employees of any competitor company. Held: The policy is valid.
Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other
confidential programs and information from competitors. The prohibition against personal or
marital relationships with employees of competitor companies upon Glaxo’s employees is
reasonable under the circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo only aims to protect
its interests against the possibility that a competitor company will gain access to its secrets and

o Tilar v. Tilar (2017): Is the RTC justified in dismissing the petition for nullity of marriage under
Article 36, FC on the ground that marriages solemnized and celebrated by the Church are
governed by Canon Law and so questions as to validity of church marriages are outside of the
province of ordinary courts? NO. Although, marriage is considered a sacrament in the Catholic
church, it has civil and legal consequences which are governed by the Family Code. As petitioner
correctly pointed out, the instant petition only seeks to nullify the marriage contract between the
parties as postulated in the Family Code of the Philippines; and the declaration of nullity of the
parties' marriage in the religious and ecclesiastical aspect is another matter. Notably, the
proceedings for church annulment which is in accordance with the norms of Canon Law is not
binding upon the State as the couple is still considered married to each other.

Void Marriages

AM No. 02-11-10-SC: Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (March 4, 2003)

• Applicable only to marriages solemnized under the FC.

• Only the husband or the wife can file a petition for nullity of marriage, during their lifetime.

• Enrico v. Medinaceli (2007): Only an aggrieved or injured spouse may file a petition for declaration of
absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the
spouses. However, compulsory or intestate heirs can still question the validity of the marriage of the
spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for
the settlement of the estate of the deceased spouse filed in the regular courts.

• Mallion v. Alcantara (2006): In 1995, petitioner filed a petition for declaration of nullity of marriage
before the San Pablo City RTC alleging that his wife was psychologically incapacitated to comply with the
essential marital obligations. That case was dismissed “upon the finding that petitioner “failed to adduce
preponderant evidence to warrant the grant of the relief he is seeking.” In 1999, petitioner filed another
petition for declaration of nullity of marriage on the basis that the marriage was celebrated without a valid
marriage license. Does the previous final judgment denying a petition for declaration of nullity on the
ground of psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack
of marriage license? HELD: Yes. In both petitions, petitioner has the same cause of action – the
declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of
action is predicated.

• Lam v. Chua (2004): {The petition here is grounded on Article 36, FC}. Insofar as the declaration of
nullity of the marriage between Adriana and Jose for being bigamous is concerned, the decision rendered
by the Pasay RTC could be declared as invalid for having been issued beyond its jurisdiction. Nonetheless,
considering that Jose, did not assail the declaration of nullity of his marriage with Adriana in his motion for
reconsideration which he filed with the Pasay RTC. In the petitions he filed in the Court of Appeals and
with us, he likewise did not raise the issue of jurisdiction of the Pasay RTC to receive evidence and render
judgment on his previous marriages with other woman which were not alleged in the petition filed by
Adriana. Petitioner Jose is estopped from questioning the declaration of nullity of his marriage with
Adriana and therefore, the Court will not undo the judgment of the Pasay RTC declaring the marriage of
Adriana and Jose null and void for being bigamous.

Enumerate the void marriages under the FC.

1. Article 4, FC
2. Article 35, FC
3. Article 36, FC
4. Article 37, FC
5. Article 38, FC
6. Article 40, FC
7. Article 41, FC
8. Article 44, FC
9. Article 53, FC

a. Art. 4: Those where any of the essential or formal requisites of marriage is absent.

Essential Requisites: (i) legal capacity of the contracting parties who must be a male and a female,
and (ii) consent freely given in the presence of the solemnizing officer.

*****Legal capacity to contract marriage is elaborated in Article 5 providing that “Any male or
female of the age of 18 years or upwards not under any of the impediments mentioned in Articles 37
and 38 may contract marriage.”

*****Estrada vs. Escritor: Escritor, a woman whose husband had already died, has been living
with Quilapio, who is also married, for twenty years. The cohabitation produced one child. Both
Escritor and Quilapio are members of the Jehovah’s Witnesses Church. With the attestation of the
church leaders, each of them signed ―Declaration of Pledging Faithfulness which, according to
their church beliefs, honors their cohabitation ― before god and man. This is to recognize the fact
that they no longer have bonds to their marriages, and that they declare faithfulness to each other. Is
the marriage between Escritor and Quilapio (evidenced by the Declaration of Pledging
Faithfulness) valid? NO. The SC did not recognize the validity of marriage. The Declarations of
Pledging Faithfulness were also not recognized as valid proof of their marriage.
*****Republic v. Albios (G.R. No. 198780, October 16, 2013): Is a marriage, contracted for the
sole purpose of acquiring American citizenship in consideration of $2,000 void ab initio on the
ground of lack of consent? NO. Albios and Fringer had an undeniable intention to be bound in
order to create the very bond necessary to allow the respondent to acquire American citizenship.
Only a genuine consent to be married would allow them to further their objective, considering that
only a valid marriage can properly support an application for citizenship. There was, thus, an
apparent intention to enter into the actual marriage status and to create a legal tie, albeit for a limited
purpose. Genuine consent was, therefore, clearly present. [A Limited Purpose Marriages are
marriages where a couple marries only to achieve a particular purpose or acquire specific benefits.
A Marriage In Jest is a pretended marriage, legal in form but entered into as a joke, with no real
intention of entering into the actual marriage status and with clear understanding that the parties
would not be bound. A Marriage In Jest is void ab initio for a complete absence of consent.]

Formal Requisites: (i) authority of the solemnizing officer, (ii) a valid marriage license, and (iii) a
marriage ceremony which take place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in
the presence of not less than 2 witnesses.

1. Remember Lex Loci Celebrationis. Thus, a quickie marriage between 2 Filipinos in
Hongkong without a marriage license and solemnized by a notary public there is valid in
the Philippines if valid there as such. Also, a proxy marriage in Malaysia is valid in the
Philippines if valid there as such.
2. BUT, if the marriage is solemnized in the Philippines, the formal requisites must be
complied with because absence of any of them would render the marriage void, as a rule.
3. Navarro vs. Domagtoy: A marriage solemnized by a judge outside of his territorial
jurisdiction is valid, but the judge may be held criminally, civilly, and administratively
4. Laxamana vs. Baltazar: The vice-mayor, by operation of law, assumes the office of the
acting municipal mayor during the suspension of the mayor. The marriage solemnized by
the vice-mayor is valid.
5. People vs. Whipkey: A marriage performed by a minister whose authority to solemnize a
marriage has expired is void ab initio, except when either or both of the contracting parties
believe in good faith that the minister had the authority.
6. Suppose the marriage is solemnized without witnesses, what is the status of the marriage?
VALID, as this is only a case of irregularity in the formal requisite.

b. Art. 35:
• Those contracted by any party below 18 years of age even with the consent of parents or
• Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so.
• Those solemnized without license, unless exempted.

*****Exempted from marriage license requirement:

a. Marriages in articulo mortis

b. Marriages in remote places
c. Marriages between Muslims or among members of the ethnic cultural
d. Marriages between a man and a woman who have lived together as husband
and wife for at least 5 years and without any legal impediment to marry each
e. Marriages solemnized outside the Philippines where no marriage license is
required by the country where it was solemnized.

*****Niñal vs. Bayadog: In order to be exempt from marriage license, the act of living
together must be characterized by exclusivity and continuity. There must be no legal
impediment to marry one another during the whole 5-year cohabitation immediately before
the day of the marriage. Otherwise, if the 5-year period is computed without any distinction
as to whether they were capacitated or not to marry, the law would then be sanctioning
immorality and encouraging parties to have common-law relationships.

*****Kho v. Republic: Petitioner was able to present a Certification issued by the

Municipal Civil Registrar of Arteche, Eastern Samar attesting that the Office of the Local
Civil Registrar "has no record nor copy of any marriage license ever issued in favor of
Raquel G. Kho [petitioner] and Veronica M. Borata [respondent] whose marriage was
celebrated on June 1, 1972. Thus, on the basis of such Certification, the presumed validity
of the marriage of petitioner and respondent has been overcome and it becomes the burden
of respondent to prove that their marriage is valid as it is she who alleges such validity. As
found by the RTC, respondent was not able to discharge that burden. Apropos is the case
of Nicdao Cariño v. Yee Cariño. There, it was held that the certification of the Local Civil
Registrar, that their office had no record of a marriage license, was adequate to prove the
non-issuance of said license. It was further held that the presumed validity of the marriage
of the parties had been overcome, and that it became the burden of the party alleging a
valid marriage to prove that the marriage was valid, and that the required marriage license
had been secured.

• Those bigamous or polygamous marriages not falling under Art. 41.

*****A judicial declaration of presumptive death is indispensable before the present

spouse may contract a subsequent valid marriage.

*****Republic vs. Cantor: Under Article 41 of the Family Code, there are (4) essential
requisites for the declaration of presumptive death:

• That the absent spouse has been missing for four consecutive years,
or two consecutive years if the disappearance occurred where there is
danger of death under the circumstances laid down in Article 391,
Civil Code;
• That the present spouse wishes to remarry;
• That the present spouse has a well–founded belief that the absentee
is dead; and
• That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.

x x x the present spouse must prove that his/her belief was the result of diligent
and reasonable efforts and inquiries to locate the absent spouse and that based
on these efforts and inquiries, he/she believes that under the circumstances, the
absent spouse is already dead. It requires exertion of active effort (not a mere
passive one) x x x criteria for determining the existence of a “well–founded
belief” under Article 41 x x x respondent merely engaged in a “passive search”
where she relied on uncorroborated inquiries from her in–laws, neighbors and
friends. She failed to conduct a diligent search because her alleged efforts are
insufficient to form a well–founded belief that her husband was already dead x
x x whether or not the spouse present acted on a well–founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent
spouse and the nature and extent of the inquiries made by the present spouse.

*****Problem: Ana is married to Jun who was among the passengers on board a
commercial jet plane which crashed in the Atlantic Ocean ten years ago and had never been
heard of ever since. Believing that her husband had died, Ana subsequently married Jose in
a ceremony officiated by the Parish Priest of Calamba, Laguna. Is the marriage of Ana and
Jose valid? Answer: IT DEPENDS. There are to relevant jurisprudence here.

Calisterio v. Calisterio (2000): In the case at bar, it remained

undisputed that respondent Marietta's first husband, James William
Bounds, had been absent or had disappeared for more than eleven years
before she entered into a second marriage in 1958 with the deceased
Teodorico Calisterio. This second marriage, having been contracted
during the regime of the Civil Code, should thus be deemed valid
notwithstanding the absence of a judicial declaration of presumptive
death of James Bounds.

Manuel v. People (2005): Articles 390 and 391, CC provide –

Art. 390. After an absence of seven years, it being unknown whether or

not, the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession. The absentee shall not be presumed dead
for the purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the loss
of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been
missing for four years;

(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven
years, it being unknown whether or not the absentee still lives, is
created by law and arises without any necessity of judicial
declaration. However, Article 41 of the Family Code, which amended
the foregoing rules on presumptive death, reads: Art. 41. A marriage
contracted by any person during the subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391 of the
Civil Code, an absence of only two years shall be sufficient. For the
purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Court for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse. With the effectivity of the Family Code, the period of seven
years under the first paragraph of Article 390 of the Civil Code was
reduced to four consecutive years. Thus, before the spouse present may
contract a subsequent marriage, he or she must institute summary
proceedings for the declaration of the presumptive death of the
absentee spouse, without prejudice to the effect of the reappearance of
the absentee spouse.

*****Republic v. Loreno: Summary proceedings under the Family Code is final and
executory pursuant to Article 247. Hence, a decision judicially declaring a person
presumptively dead is non-appealable. If appealed to the Court of Appeals, the latter has no
jurisdiction to try the case.

*****Matias v. Republic (2018): The petition for the declaration of presumptive death filed
by petitioner is not an action that would have warranted the application of Article 41 of the
FC because petitioner was not seeking to remarry (but to support availment of PD 1638,
Retirement Law for Military Personnel). A reading of Article 41 of the FC shows that the
presumption of death established therein is only applicable for the purpose of contracting a
valid subsequent marriage under the said law.

• Those contracted through mistake of one contracting party as to the identity of the other.
• Those subsequent marriages that are void under Article 53.

c. Art. 36: Those contracted by any party who, at the time of the celebration of the marriage, was
psychologically incapacitated to comply with the essential marital obligations of marriage (even if the
incapacity becomes manifest only after the solemnization).

*****Santos vs. CA: Psychological incapacity must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability. Psychological incapacity should refer to no less than a mental
(not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants
that concomitantly must be assumed and discharged by the parties to the marriage which, as so
expressed by Article 68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. The intendment of the law has
been to confine the meaning of "psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychological condition must exist at the time the marriage
is celebrated.

*****Republic vs. Molina: Mere showing of "irreconciliable differences" and "conflicting

personalities" in no wise constitutes psychological incapacity. It is not enough to prove that the
parties failed to meet their responsibilities and duties as married persons; it is essential that they
must be shown to be incapable of doing so, due to some psychological (nor physical) illness.

*****Can a person judicially declared as psychological incapacitated file the petition himself? Can
he marry again? YES, to both questions.

d. Article 37: Those that are incestuous:

• Between ascendants and descendants of any degree; and
• Between brothers and sisters, whether of the full or half blood.
e. Article 38: Those that are contrary to public policy:
• Between collateral blood relatives whether legitimate or illegitimate, up to the 4th civil degree.
• Between step-parents and step-children.
• Between parents-in-law and children-in-law.
• Between the adopting parent and the adopted child.
• Between the surviving spouse of the adopting parent and the adopted child.
• Between the surviving spouse of the adopted child and the adopter.
• Between an adopted child and a legitimate child of the adopter.
• Between adopted children of the same adopter.
• Between parties where one, with the intention to marry the other, killed that other person’s
spouse, or his or her own spouse.

*****Under the new Family Code, the following can

now marry each other:

1. Brother-in-law and sister-in-law

2. Stepbrother and stepsister
3. Guardian and ward
4. Adopted and illegitimate child of the adopter
5. Parties who have been convicted of adultery
or concubinage.

f. Article 40: Subsequent marriage contracted without first securing a judicial declaration of nullity of the
previous void marriage. [Art. 40 provides “The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage

*****Terre vs. Terre: Parties are not allowed to assume that their marriage is void even if such is
the fact. They must file an action for declaration of nullity under Art. 40 before they remarry.

*****Mercado vs. Tan-Mercado: Can Mercado invoke the absolute nullity of previous marriage
to defend his innocence in the crime of bigamy? No, because the declaration of absolute nullity of
his previous marriage came not before the celebration of the second marriage, but after, when the
case for bigamy was already tried in court. The declaration of nullity came only after the second
marriage was instituted, hence, by then, the crime had already been consummated. Mercado is guilty
of bigamy.

***** For the purposes of remarriage, the only legally acceptable basis for declaring a
previous marriage an absolute nullity is a final judgment declaring such previous marriage void,
whereas, for purposes other than remarriage, other evidence is acceptable. In a case for
concubinage, the accused need not present a final judgment declaring his marriage void for he can
adduce evidence in the criminal case of nullity of his marriage other than proof of final judgment
declaring his marriage void. Hence, the pendency of the civil action for nullity of marriage does not
pose a prejudicial question in a criminal case for concubinage.

*****Ty vs CA (2000): Where if the second marriage was contracted under New Civil Code
effectivity the parties must comply with the requirements of Article 40 (that is, contract a
subsequent marriage after obtaining a judicial declaration of nullity of the first marriage) only if the
second marriage was contracted after the Supreme Court’s decision in Wiegel vs Sempio-Diy (19
August 1986).
*****THUS, in Castillo v. Castillo (2016), the Supreme Court held: “In the present case, the
second marriage of private respondent was entered into in 1979, before Wiegel. At that time, the
prevailing rule was found in Odayat, Mendoza and Aragon. The first marriage of private respondent
being void for lack of license and consent, there was no need for judicial declaration of its nullity
before he could contract a second marriage. In this case, therefore, we conclude that private
respondent's second marriage to petitioner is valid.”

g. Article 44: Subsequent marriage contracted by a present spouse who acted in bad faith in pretending to
have well-founded belief that the absent spouse is already dead, with another person who also acted in
bad faith.

h. Article 53 (in relation to Article 52): Subsequent marriage contracted after the previous marriage is
annulled or nullified by a court judgment, but before the judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the properties of the spouses and the delivery of the
children’s presumptive legitimes are recorded in the appropriate civil registry and registries of

When Article 52, FC requires that the judgment of annulment or the judicial declaration of nullity
shall be recorded in the appropriate civil registry, it refers:

(a) To the local civil registry of the city or municipality where the court that issued the
decision is functioning (Article 409, Civil Code); AND
(b) To the local civil registry of the city or municipality where the marriage was solemnized.
(Section 7 of the Civil Registry Law, Act No. 3753).

In other words, upon finality of judgment, an entry of judgment and a decree of nullity or annulment
shall be issued which shall be registered in the local registries where the marriage was recorded and
where the court granting the petition is located. It shall be the duty of the successful petitioner to
send the copy of the final decree of the court to the proper local civil registrars. It shall be the duty
of the clerk of court which issued the decree to ascertain whether the same has been registered, and
if this has not been done, to send a copy of the said decree to the civil registry of the city or
municipality where the court is functioning.

MOREOVER, the registries of property referred to in Article 52, FC refer to the registries of
properties where the properties are located. So, if there are many properties located in various
places, registration must be made in each of the registries of properties where each property is

1. What is the status of children in void marriages? As a rule, ILLEGITIMATE. EXCEPTIONS: (1)
Children conceived or born before the judgment of absolute nullity of marriage under Article 36
has become final and executory shall be legitimate, and (2) Children conceived or born of the
subsequent void marriage under Article 53 shall be legitimate. (Art. 54, FC).

2. What rule governs the property relations of the parties in void marriages? Answer: Dino v. Dino
(2011): Arts. 147 & 148, FC. EXCEPTION: Void marriage under Art. 40, FC which is governed
by Art. 50 in relation to Art. 43, par. 2, FC.

*****Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property acquired by both of them through
their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed
to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate in the acquisition by the other party
of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired
during cohabitation and owned in common, without the consent of the other, until after the termination
of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the
co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any
or all of the common children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon termination of the cohabitation.

*****Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties
acquired by both of the parties through their actual joint contribution of money, property, or industry
shall be owned by them in common in proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in such valid marriage. If the party who acted in
bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last
paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in both faith.

***** Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article
44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.

***** Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects:


(2) The absolute community of property or the conjugal partnership, as the case may be, shall
be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her
share of the net profits of the community property or conjugal partnership property shall be
forfeited in favor of the common children or, if there are none, the children of the guilty spouse
by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the
marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith
as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and intestate succession.
*****Valdez v. RTC (1996): Whether or not Article 147 of the Family Code applies to cases
where the parties are psychologically incapacitated. HELD: YES. The term “capacitated” in
Article 147, specifically in the first paragraph of the law, refers to legal capacity of a party to
contract marriage, or any male or female of the age of 18 years or upwards not under any of
the impediments mentioned in Articles 37 and 38 of the Code.

Voidable Marriages

1. Article 45, FC
2. Article 46, FC
3. Article 47, FC

GROUNDS for Annulment

*****Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That either party was 18 years of age or over but below 21, and the marriage was solemnized without
the consent of the parents, guardian or person having substitute parental authority over the party, in that

(2) That either party was of unsound mind.

Interesting Question: Maria is proven to be insane in 1990. But she recovered

from insanity in 1992. She became insane again in 1995. In other words, Maria is
insane but has lucid intervals. Suppose Maria and Pedro married in 1996 but few
months thereafter, Pedro filed a petition for annulment of marriage on the ground of
Maria’s insanity. Will case prosper? Larson v. Larson (US, 1963): The plaintiff
has not satisfied the burden of proving, clearly and definitely, that the defendant
was an "insane person" at the particular time of this marriage, March 21, 1950, that
she was at that time incapable of understanding the nature of the act, that she had
insufficient mental capacity to enter into the status and understood the nature,
effect, duties, and obligations of the marriage contract, that she was mentally
incapable of giving an intelligent, understanding consent, or that her mind could
not and did not act rationally regarding the precise thing in contemplation,
marriage, and this particular marriage in dispute.

(3) That the consent of either party was obtained by fraud. {Fraud here must be employed to obtain
consent of the other party}

Circumstances constituting fraud: (Art. 46) [There should be bad faith here]

a. Non-disclosure of conviction by final judgment of crime involving moral turpitude

b. Concealment of pregnancy by another man

• Anaya v. Palaroan (1970): This fraud is limited only to the wife and not the
husband, on the grounds that the husband may be misled in devoting his
attention to a child that is not his.
• The concealment of pregnancy must be done in bad faith. If the wife believed
that she was not pregnant, then the marriage cannot be annulled. Pregnancy at
the time of marriage is not enough to annul the same.
• If the condition was readily apparent to the man, he cannot claim lack of
knowledge. However, a woman four (4) months pregnant cannot immediately
be apparent to be so, and the husband may still claim the grounds.
• Aquino v. Delizo: Conchita Delizo was fat, so it was not obvious that she
was pregnant. Respondent also attempted to conceal the pregnancy. He
marriage was annulled by grounds of fraud.
• If a woman pretends to be pregnant in order to convince the man to marry
her, this cannot be grounds for annulment as there is no pregnancy to conceal.

c. Concealment of sexually transmissible disease, regardless of nature, existing at the time of


d. Concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism

Almelor v. RTC (2008): Even assuming, ex gratia argumenti, that Manuel is a

homosexual, the lower court cannot appreciate it as a ground to annul his marriage
with Leonida. The law is clear. A marriage may be annulled when the consent of either
party was obtained by fraud, i.e., concealment of homosexuality. Nowhere in the said
decision was it proven by preponderance of evidence that Manuel was a homosexual at
the onset of his marriage and that he deliberately hid such fact to his wife. It is the
concealment of homosexuality, and not homosexuality per se, that vitiates the
consent of the innocent party. Such concealment presupposes bad faith and intent to
defraud the other party in giving consent to the marriage. Consent is an essential
requisite of a valid marriage. To be valid, it must be freely given by both parties. An
allegation of vitiated consent must be proven by preponderance of evidence. The
Family Code has enumerated an exclusive list of circumstances constituting fraud.
Homosexuality per se is not among those cited, but its concealment. This
distinction becomes more apparent when we go over the deliberations of the
Committees on the Civil Code and Family Law, to wit:

Justice Caguioa remarked that this ground should be eliminated in the

provision on the grounds for legal separation. Dean Gupit, however, pointed
out that in Article 46, they are talking only of "concealment," while in the
article on legal separation, there is actuality. Judge Diy added that in legal
separation, the ground existed after the marriage, while in Article 46, the
ground existed at the time of the marriage. Justice Reyes suggested that, for
clarity, they add the phrase "existing at the time of the marriage" at the end of
subparagraph (4). The Committee approved the suggestion.

To reiterate, homosexuality per se is only a ground for legal separation. It is its

concealment that serves as a valid ground to annul a marriage. Concealment in this
case is not simply a blanket denial, but one that is constitutive of fraud. It is this
fundamental element that respondent failed to prove.

(4) That the consent of either party was obtained by force, intimidation or undue influence.

*****Under our law, there is violence when in order to wrest consent, serious or
irresistible force is employed. On the other hand, there is intimidation when one of the
contracting parties is compelled by a reasonable and well-grounded fear of an
imminent and grave evil upon his person or property, or upon the person or property of
his spouse, descendants or ascendants, to give his consent (Article 1335, Civil Code).
Finally, there is undue influence when a person takes improper advantage of his power
over the will of another, depriving the latter of a reasonable freedom of choice (Article
1337, Civil Code).
*****In case of fraud or force or intimidation, only the “injured party”, which means
the aggrieved spouse and not the parents or guardians can file the case for annulment.
In cases provided for under Article 45 (3), (4), (5), and (6), the person given legal
standing is the “injured party”. In these cases, no other person can file the case for the
injured party. So, if an injured party were married because of force or intimidation and
thereafter, such party became insane, the parents or legal guardian of such aggrieved
party who eventually became insane, cannot file a case for annulment for him/her.

(5) That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable. {Physical incapacity, not psychological incapacity}

Requisites of Annulment due to Impotence: a. Impotence exists at the time of the celebration
of marriage; b. Permanent; c. Incurable; d. Unknown to the other spouse; e. The other spouse
must not also be impotent himself or herself.

People v. Fontanilla: An adult male is presumed to have normal powers of virility. To

destroy the presumption, plaintiff must (a) adduce sufficient evidence to prove the
contrary or (b) establish the requisite facts for the operation of the doctrine of triennial
cohabitation. [Doctrine of Triennial Cohabitation: Presumption that the husband is
impotent should the wife still remain a virgin after 3 years of living together with her

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears
to be incurable.

WHO can file a petition for annulment of marriage and WHEN should the petition be filed?

*****Answer (Art. 47, FC):

1. Contracting party whose parent, or guardian, or person exercising substitute parental authority did not give
his/her consent, w/in 5 years after attaining the age of 21 unless after attaining the age of 21, such party freely
cohabited with the other as husband and wife; or the parent, guardian or person having legal charge of the
contracting party at any time before such party has reached the age of 21;

2. The sane spouse who had no knowledge of the other’s sanity; or by any relative, guardian, or person having
legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid
interval after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with
the other husband and wife;

3. The injured party whose consent was obtained by fraud, w/in 5 years after the discovery of the fraud, provided
that said party, with full knowledge of the fact constituting the fraud, has not freely cohabited
with the other husband and wife;

4. The injured party whose consent was obtained by force, intimidation, or undue influence, w/in 5 years from the
time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or
undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other
husband and wife;

5. The injured party where the other spouse is physically incapacitated of consummating the marriage with the
other and such incapacity continues and appears to be incurable, w/in 5 years after the celebration of marriage;
6. The injured party where the other party was afflicted with a sexually transmissible disease found to be serious
and appears to be incurable, w/in 5 years after the celebration of the marriage.

NOTE: For paragraph 5 & 6, the prescriptive period is 5 years after the celebration of marriage, not from
discovery of the existence of the ground for annulment. So, if after the marriage in 2010, the impotent
husband immediately flew abroad to work there and returned to Philippines in 2016, and during the
supposed first sexual encounter with the wife, the latter discovered the impotency of the husband that is
serious and incurable already existing at the time of the marriage, should the wife file a petition for
annulment of marriage? Answer: NO, the action already prescribed.

Venue: Family Court of the province or city where the petitioner or the respondent has been residing for at least 6
months prior to the date of filing (or nonresident respondent: where he may be found in the Philippines) AT THE

Legal Separation

***** Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of
the cause.

***** Laperal v. Republic (1962): Legal separation alone is not a ground for wife's change of name. A
woman’s married status is not affected by a decree of legal separation, there being no severance of the vinculum,
and under Article 372 of the New Civil Code, she must continue using the name and surname employed by her
before the separation.

***** Effect of Death of a Party. If a party dies prior to the entry of judgment, the case shall be terminated. If a
party dies after the entry of judgment, the judgment shall bind the parties and their successors-in-interest. (Section
21, AM No. 02-11-11-SC Re Rule on Legal Separation).

Property Relations during Marriage

*****Marriage Settlements (See Articles 74-81, FC)

*****Donation by Reason of Marriage (See Articles 82-87, FC)

Matabuena v. Cervantes: If the policy of the law is, according to Justice J.B.L. Reyes, to prohibit donations in
favor of the consort and his descendants because of fear of undue and improper pressure or influence upon the
donor, a prejudice deeply rooted in our ancient law, then there is every reason to apply the same prohibitive
policy to those living together as husband and wife without benefits of nuptials. As Ulpian pointed out, it would
not be just, as marriage remains the cornerstone of our family law, reason and morality alike demand that
disabilities attached to marriage should likewise attach to concubinage. Donation given by a person to his/her
alleged partner to fall under the last paragraph of Article 87, it must be shown that said donation was
made at a time when they were still living together as husband and wife without benefit of marriage.

Agapay v. Palang: Husband sold a property to his wife of a subsequent bigamous marriage for the purpose of
removing property from the effects of Article 148. The testimony of the notary public, Atty. Constantino Sagun,
testified that the so‐called house and lot that Erlinda “bought” was actually purchased and paid for by Miguel
Palang and instructed the lawyer to put Erlinda’s name as buyer. The transaction is thus properly a donation of
Miguel to Erlinda but one which is clearly void and inexistent by express provision of the law because it was
made between parties guilty of adultery and concubinage at the time of donation under Article 739 of the Civil
Code. In addition, Article 87 expressly prohibit donations between spouses that now applies to people living
together as husband and wife even without valid marriage. In this case, the conveyance of the property was not
by way of sale but a donation and therefore void. {Married couple = prohibited from making donation to each
other, from selling to each other, & from leasing to each other. But those in common law relationship, they may
sell or lease to each other.}

*****(Special Kind of Co-ownership) Relate to ordinary co-ownership.

Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case
of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy,
which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common
properties, the other spouse may assume sole powers of administration. These powers do not include disposition or
encumbrance without authority of the court or the written consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as
a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by
either or both offerors. (206a)

Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the
conjugal properties, the other spouse may assume sole powers of administration. These powers do not include
disposition or encumbrance without authority of the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall
be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is
withdrawn by either or both offerors.

*****Alinas v. Victor (2008): The husband sold a conjugal property without the consent of the wife.
HELD: Article 124 of the Family Code states that the administration and enjoyment of the conjugal
partnership property shall belong to both spouses jointly. In the event that one spouse is incapacitated or
otherwise unable to participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration. These powers do not include the powers of disposition or
encumbrance which must have the authority of the court or the written consent of the other spouse. In
the absence of such authority or consent the disposition or encumbrance shall be void. Thus,
pursuant to Article 124 of the Family Code and jurisprudence, the sale of petitioners' conjugal property
made by petitioner Onesiforo alone is void in its entirety {Unlike in the case of ordinary co-ownership;
the sale of husband’s portion is also avoided}.

*****Matthews v. Taylor (2009): During their marriage, Benjamin (British) and Joselyn (Filipina)
acquired the Boracay property in 1989. Said acquisition was evidenced by a Deed of Sale with Joselyn
as the vendee. The property was also declared for taxation purposes under her name. When Joselyn
leased the property to petitioner Matthews, Benjamin sought the nullification of the contract on two
grounds: first, that he was the actual owner of the property since he provided the funds used in
purchasing the same; and second, that Joselyn could not enter into a valid contract involving the subject
property without his consent. Is the lease of a parcel of land entered into by a Filipino wife without
the consent of her British husband valid? HELD: In addressing the matter before us, we are
confronted not only with civil law or conflicts of law issues, but more importantly, with a constitutional
question. Benjamin, being an alien, is absolutely prohibited from acquiring private and public lands in
the Philippines. Considering that Joselyn appeared to be the designated "vendee" in the Deed of Sale of
said property, she acquired sole ownership thereto. This is true even if we sustain Benjamin’s claim that
he provided the funds for such acquisition. By entering into such contract knowing that it was illegal,
no implied trust was created in his favor; no reimbursement for his expenses can be allowed; and
no declaration can be made that the subject property was part of the conjugal/community
property of the spouses. In any event, he had and has no capacity or personality to question the
subsequent lease of the Boracay property by his wife on the theory that in so doing, he was merely
exercising the prerogative of a husband in respect of conjugal property. To sustain such a theory would
countenance indirect contravention of the constitutional prohibition. If the property were to be declared
conjugal, this would accord the alien husband a substantial interest and right over the land, as he would
then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not
permit him to have.

*****Jader-Manalo v. Camaisa (2002): The present controversy had its beginning when petitioner
Thelma A. Jader-Manalo allegedly came across an advertisement placed by respondents, Spouses
Camaisa, in the Classified Ads Section in a newspaper for the sale of their ten-door apartments.
Interested in buying the two properties, she negotiated for the purchase through a real estate broker, Mr.
Proceso Ereno, authorized by respondent spouses. Subsequently, the sale was agreed upon. This
agreement was handwritten by petitioner and signed by Edilberto. When petitioner pointed out the
conjugal nature of the properties, Edilberto assured her of his wife's conformity and consent to the sale.
When petitioner met again with respondent spouses and the real estate broker at Edilberto's office for the
formal affixing of Norma's signature, she was surprised when respondent spouses informed her that they
were backing out of the agreement because they needed "spot cash" for the full amount of the
consideration. Petitioner reminded respondent spouses that the contracts to sell had already been duly
perfected and Norma's refusal to sign the same would unduly prejudice petitioner. Still, Norma refused
to sign the contracts prompting petitioner to file a complaint for specific performance and damages
against respondent spouses. HELD: The law requires that the disposition of a conjugal property by the
husband as administrator in appropriate cases requires the written consent of the wife, otherwise, the
disposition is void. Thus, Article 124 of the Family Code provides: “the administration and enjoyment of
the conjugal partnership property shall belong to both spouses jointly...In the event that one spouse is
incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other
spouse may assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the written consent of the
other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void.”
The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be
effective, the consent of both husband and wife must concur. Respondent Norma Camaisa admittedly
did not give her written consent to the sale. Even granting that respondent Norma actively participated in
negotiating for the sale of the subject properties, which she denied, her written consent to the sale is
required by law for its validity. Significantly, petitioner herself admits that Norma refused to sign the
contracts to sell. Respondent Norma may have been aware of the negotiations for the sale of their
conjugal properties. However, being merely aware of a transaction is not consent.

*****PNB v. Reyes (2016; J. Leonen): Venancio married Lilia in 1973. They purchased 3 lots in
Bulacan, which were later mortgaged to PNB to secure a loan (as working capital for family printing
business). When the spouses failed to pay their loan, PNB foreclosed the 3 properties. Thereafter,
Venancio filed a complaint for annulment of certificate of sale and real estate mortgage against PNB. He
claimed that the mortgage constituted over the properties was void because Lilia undertook the loan and
mortgage without his consent and falsified his signature on the PNs. Both RTC and CA ordered the
annulment of the mortgage and directed Lilia to reimburse petitioner the loan amount with interest.
Before the SC, two relevant questions were raised: (1) Whether the real estate mortgage is void; and
(2) Whether the conjugal partnership can be held liable for the loan contracted unilaterally by

HELD: Regarding the first, the real estate mortgage over a conjugal property is void because the
Venancio did not give consent. The Court of Appeals committed no reversible error in affirming the
ruling of the Regional Trial Court. The real estate mortgage over the conjugal properties is void for want
of consent from Venancio. The Family Code is clear: the written consent of the spouse who did not
encumber the property is necessary before any disposition or encumbrance of a conjugal property can
be valid.

Regarding the second, although petitioner cannot foreclose the mortgage over the conjugal property in
question, it can still recover the loan amount from the conjugal partnership. Article 122 provides: “The
payment of personal debts contracted by the husband or the wife before or during the marriage shall not
be charged to the conjugal partnership except insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
However, the payment of personal debts contracted by either spouse before the marriage, that of fines
and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may
be enforced against the partnership assets after the responsibilities enumerated in the preceding Article
have been covered, if the spouse who is bound should have no exclusive property or if it should be
insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what
has been paid for the purposes above-mentioned.”

Article 122 applies to debts that were contracted by a spouse and redounded to the benefit of the family.
It applies specifically to the loan that Lilia contracted, but not to the mortgage. Ayala Investment &
Development Corp. v. Court of Appeals has explained how Article 121 should be applied:

(A) If the husband himself is the principal obligor in the contract, i.e., he directly received the
money and services to be used in or for his own business or his own profession, that contract
falls within the term "x x x obligations for the benefit of the conjugal partnership. " Here, no
actual benefit may be proved. It is enough that the benefit to the family is apparent at the time
of the signing of the contract. From the very nature of the contract of loan or services, the
family stands to benefit from the loan facility or services to be rendered to the business or
profession of the husband. It is immaterial, if in the end, his business or profession fails or does
not succeed. Simply stated, where the husband contracts obligations on behalf of the family
business, the law presumes, and rightly so, that such obligation will redound to the benefit of
the conjugal partnership.

(B) On the other hand, if the money or services are given to another person or entity, and the
husband acted only as a surety or guarantor, that contract cannot, by itself, alone be
categorized as falling within the context of "obligations for the benefit of the conjugal
partnership." The contract of loan or services is clearly for the benefit of the principal debtor
and not for the surety or his family. No presumption can be inferred that, when a husband enters
into a contract of surety or accommodation agreement, it is "for the benefit of the conjugal
partnership." Proof must be presented to establish benefit redounding to the conjugal

There are two scenarios considered: one is when the husband, or in this case, the wife, contracts a loan to
be used for the family business and the other is when she acts as a surety or guarantor. If she is a mere
surety or guarantor, evidence that the family benefited from the loan need to be presented before the
conjugal partnership can be held liable. On the other hand, if the loan was taken out to be used for the
family business, there is no need to prove actual benefit. The law presumes the family benefited from the
loan and the conjugal partnership is held liable.

*****On Articles 103 & 130, FC. Be careful when you are given a problem here. IF dissolution of marriage by
death took place after August 3, 1988, Family Code provision applies (either Article 103 or 130, FC). IF
dissolution of marriage by death took place before August 3, 1988, Civil Code provision applies (Article 493,

Domingo v. Molina (2016): There is no dispute that Anastacio and Flora Domingo married before
the Family Code’s effectivity on August 3, 1988 and their property relation is a conjugal partnership.
Conjugal partnership of gains established before and after the effectivity of the Family Code are
governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property
Relations Between Husband and Wife) of the Family Code. This is clear from Article 105 of the Family
Code which states: x x x The provisions of this Chapter shall also apply to conjugal partnerships of gains
already established between spouses before the effectivity of this Code, without prejudice to vested
rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256.
The conjugal partnership of Anastacio and Flora was dissolved when Flora died in 1968, pursuant
to Article 175 (1) of the Civil Code (now Article 126 (1) of the Family Code). Article 130 of the Family
Code requires the liquidation of the conjugal partnership upon death of a spouse and prohibits any
disposition or encumbrance of the conjugal property prior to the conjugal partnership liquidation, to
quote: “Upon the termination of the marriage by death, the conjugal partnership property shall be
liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial
settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property
either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the
lapse of the six month period no liquidation is made, any disposition or encumbrance involving the
conjugal partnership property of the terminated marriage shall be void.” While Article 130 of the
Family Code provides that any disposition involving the conjugal property without prior liquidation of
the partnership shall be void, this rule does not apply since the provisions of the Family Code shall be
"without prejudice to vested rights already acquired in accordance with the Civil Code or other laws.”

(*****The conjugal partnership of Anastacio and Flora being dissolved before the effectivity of
the Family Code [1968], the applicable law therefore is Article 493 of the Civil Code, which states
that “each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership.”)

Thus, Anastacio, as co-owner, cannot claim title to any specific portion of the conjugal properties
without an actual partition being first done either by agreement or by judicial decree. Nonetheless,
Anastacio had the right to freely sell and dispose of his undivided interest in the subject property.

*****On Article 120, FC: The ownership of improvements, whether for utility or adornment, made on the
separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both
spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following
rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are
more than the value of the property at the time of the improvement, the entire property of one of the spouses shall
belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at
the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse,
likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire
property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the
conjugal partnership.

Ferrer v. Ferrer (2006): Prior to his death, husband sold his parcel of land over which a residential
building was constructed using conjugal funds. The surviving spouse sought reimbursement of half of
the amount of the improvement from the purchaser on the basis of Article 120 of the Family Code.
HELD: SC rejected the claim for reimbursement. Article 120, FC does not give a cause of action on
the part of the surviving spouse to claim from subsequent buyers of the property of the deceased
husband. Under, Article 120, FC, the obligation to reimburse rests on the spouse upon whom ownership
of the entire property is vested. There is no obligation on the part of the purchaser of the property, in
case the property is sold by the owner-spouse. *****What is incontrovertible is that the respondents,
despite the allegations contained in the Complaint that they are the buyers of the subject premises, are
not petitioner’s spouse nor can they ever be deemed as the owner-spouse upon whom the obligation to
reimburse petitioner for her costs rested. It is the owner-spouse who has the obligation to reimburse the
conjugal partnership or the spouse who expended the acts or efforts, as the case may be. Otherwise
stated, respondents do not have the obligation to respect petitioner’s right to be reimbursed.
Title V. The Family

Family Home (Articles 152-162, FC)

1. What comprises the FH? Answer: The dwelling house where the family reside, and the land on which it
is situated (152). The family home must be part of the properties of the absolute community or the
conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also
be constituted by an unmarried head of a family on his or her own property (156). The actual value of
the family home shall not exceed, at the time of its constitution, the amount of the 300K pesos in urban
areas, and 200K pesos in rural areas, or such amounts as may hereafter be fixed by law (157).

2. Benefits of FH? Answer: Art. 153. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed
by law.

3. How is FH constituted?

De Mesa vs. Acero (2012): The foregoing rules on constitution of family homes, for purposes of
exemption from execution, could be summarized as follows:

First, family residences constructed BEFORE the effectivity of the Family Code or before August 3,
1988 must be constituted as a family home either judicially or extrajudicially in accordance with the
provisions of the Civil Code in order to be exempt from execution;

Second, family residences constructed AFTER the effectivity of the Family Code on August 3, 1988
are automatically deemed to be family homes and thus exempt from execution from the time it was
constituted and lasts as long as any of its beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially constituted as a family home
prior to the effectivity of the Family Code, but were existing thereafter, are considered as family
homes by operation of law and are prospectively entitled to the benefits accorded to a family home
under the Family Code.

The family home’s exemption from execution must be set up and proved to the Sheriff before
the sale of the property at public auction x x x petitioners should have asserted the subject property
being a family home and its being exempted from execution at the time it was levied or within a
reasonable time thereafter. For all intents and purposes, the petitioners’ negligence or omission to
assert their right within a reasonable time gives rise to the presumption that they have abandoned,
waived or declined to assert it. Since the exemption under Article 153 of the Family Code is a personal
right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed period
and it is not the sheriff’s duty to presume or raise the status of the subject property as a family home.

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

5. Exception to the Exception: Art. 155. The family home shall be exempt from execution, forced sale or
attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the
family home; (3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered
service or furnished material for the construction of the building.
6. Article 160, FC: When a creditor whose claims is not among those mentioned in Article 155 obtains a
judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth
more than the maximum amount fixed in Article 157, he may apply to the court which rendered the
judgment for an order directing the sale of the property under execution. The court shall so order if it
finds that the actual value of the family home exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and
results from subsequent voluntary improvements introduced by the person or persons constituting the
family home, by the owners of the property, or by any of the beneficiaries, the same rule and procedure
shall apply.

Eulogio v. Bell (2015): Respondents’ family home was built in 1985. At the time, it had a fair
market value of 126,000.00. In 1998, petitioner as creditor claimed that the actual value of
respondents’ family home already exceeded the 300,000 limit in urban areas, because of the
conversion of the land where it stood from residential to commercial. Can petitioner avail of
Article 160, FC and, thus, execute his credit against respondent’s family home? HELD: No. A
distinction must be made between voluntary and involuntary improvements in the sense that if
the value of the family home exceeded the maximum amount because of voluntary
improvements by the one establishing the family home, Article 160, FC will apply; but if it is
through an involuntary improvement, like conversion into a commercial area or the
establishment of roads and other facilities, the one establishing the family home should not be
punished by making his home liable to creditors. To warrant the execution sale of respondents’
family home under Article 160, petitioners needed to establish these facts: (1) there was an
increase in its actual value; (2) the increase resulted from voluntary improvements on the
property introduced by the persons constituting the family home, its owners or any of its
beneficiaries; and (3) the increased actual value exceeded the maximum allowed under Article

7. True or False? Not all family dwellings are FH? True or False? A person can only have one FH for
purposes of availing the benefits of FH under the FC? True.

*****Article 150: Family relations include those (1) Between husband and wife; (2) Between parents and
children; and (3) Among brothers and sisters, whether of the full or half-blood.

*****Article 151: No suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply
to cases which may not be the subject of compromise under the Civil Code.


1. If a stranger is included in a suit between family members.

2. If the case is not subject to a compromise as provided in Article 2035, CC – civil status of
persons, validity of marriage or of legal separation, any ground for legal separation, future
support, jurisdiction of courts, and future legitimes.
3. If there is waiver by the parties.
4. If the action is not a civil action but a special proceedings like a petition for the settlement
of estate, guardianship, and custody of children, and habeas corpus. (Manalo v. CA, 2000).

Hontiveros v. RTC (1999): The absence of the verification required in Art. 151 does not affect the
jurisdiction of the court over the subject matter of the complaint. The verification is merely a formal
requirement intended to secure an assurance that matters which are alleged are true and correct. If the
court doubted the veracity of the allegations regarding efforts made to settle the case among members of
the same family, it could simply have ordered petitioners to verify them. As this Court has already ruled,
the court may simply order the correction of unverified pleadings or act on it and waive strict
compliance with the rules in order that the ends of justice may be served. Otherwise, mere suspicion or
doubt on the part of the trial court as to the truth of the allegation that earnest efforts had been made
toward a compromise but the parties efforts proved unsuccessful is not a ground for the dismissal of an
action. Only if it is later shown that such efforts had not really been exerted would the court be justified
in dismissing the action. *****Moreover, as petitioners contend, Art. 151 of the Family Code does not
apply in this case since the suit is not exclusively among family members. Citing several cases decided
by this Court, petitioners claim that whenever a stranger is a party in a case involving family members,
the requisite showing of earnest efforts to compromise is no longer mandatory. They argue that since
private respondent Ayson is admittedly a stranger to the Hontiveros family, the case is not covered by
the requirements of Art. 151 of the Family Code. We agree with petitioners. The inclusion of private
respondent Ayson as defendant and petitioner Maria Hontiveros as plaintiff takes the case out of the
ambit of Art. 151 of the Family Code. Under this provision, the phrase members of the same family
refers to the husband and wife, parents and children, ascendants and descendants, and brothers and
sisters, whether full or half-blood. Religious relationship and relationship by affinity are not given any
legal effect in this jurisdiction. Consequently, private respondent Ayson, who is described in the
complaint as the spouse of respondent Hontiveros, and petitioner Maria Hontiveros, who is admittedly
the spouse of petitioner Augusto Hontiveros, are considered strangers to the Hontiveros family, for
purposes of Art. 151.

Heirs of Favis v. Gonzales (2014): Thus was it made clear that a failure to allege earnest but failed
efforts at a compromise in a complaint among members of the same family, is not a jurisdictional defect
but merely a defect in the statement of a cause of action. Versoza was cited in a later case as an instance
analogous to one where the conciliation process at the barangay level was not priorly resorted to. Both
were described as a "condition precedent for the filing of a complaint in Court." In such instances, the
consequence is precisely what is stated in the present Rule. Thus: x x x The defect may however be
waived by failing to make seasonable objection, in a motion to dismiss or answer, the defect being a
mere procedural imperfection which does not affect the jurisdiction of the court. In the case at hand, the
proceedings before the trial court ran the full course. The complaint of petitioners was answered by
respondents without a prior motion to dismiss having been filed. The decision in favor of the petitioners
was appealed by respondents on the basis of the alleged error in the ruling on the merits, no mention
having been made about any defect in the statement of a cause of action. In other words, no motion to
dismiss the complaint based on the failure to comply with a condition precedent was filed in the trial
court; neither was such failure assigned as error in the appeal that respondent brought before the Court of
Appeals. Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is wholly
applicable to respondent. If the respondents as parties-defendants could not, and did not, after filing
their answer to petitioner’s complaint, invoke the objection of absence of the required allegation on
earnest efforts at a compromise, the appellate court unquestionably did not have any authority or basis
to motu propio order the dismissal of petitioner’s complaint. {So, courts cannot dismiss moto proprio
the complaint based on non-compliance of Article 151, FC}


*****Concepcion vs. CA: A child born inside a valid marriage is legitimate. Hence a child born inside a
bigamous marriage which is void is the child of the first marriage which has not been nullified or annulled. An
agreement by parties as to the status of a child is void. Only the law determines legitimacy or illegitimacy. Thus,
an admission in pleadings by the wife and his second husband that the child is their legitimate son cannot stand in
the face of proof that the first valid marriage of the wife was not annulled or nullified and hence the child is the
legitimate child in the eyes of the law of the first husband. Any declaration of the mother that her child is
illegitimate has no probative value.

*****IN OTHER WORDS, only the HUSBAND (as a rule) can bring an action to impugn the legitimacy of the

*****Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the
knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs,
should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his
default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was
recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the
birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be
counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth,
whichever is earlier.

*****MAY the heirs of the husband bring the action? Answer: Art. 171. The heirs of the husband may impugn
the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the
husband should died before the expiration of the period fixed for bringing his action; (2) If he should die after the
filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the
husband. (262a)

*****WHAT are the ground to impugn the legitimacy of the child? Answer: Art. 166. Legitimacy of a child may
be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the
first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual
intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of
the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or
ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue

*****Salas v. Matusalem (2013): A certificate of live birth purportedly identifying the putative father is not
competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of
the certificate. Thus, if the father did not sign in the birth certificate, the placing of his name by the mother,
doctor, registrar, or other person is incompetent evidence of paternity. Neither can such birth certificate be taken
as a recognition in a public instrument and it has no probative value to establish filiation to the alleged father.