Persons Reviewer (1D 2004)

PERSONS AND FAMILY RELATIONS
MIDTERMS
What is Marriage? Special contract of permanent union between a man and a woman entered into accordance with law for the establishment of conjugal and family life. Foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. What are the aspects of marriage? 1. Marriage is a special contract. Marriage a. Entered into only by one man and one woman b. The law fixes the rights and duties of the parties and not subject to stipulation, except fixing of property relations in marriage settlements c. Permanent contract which can only be dissolved by the death of the other party, or annulment, not by mutual agreement. d. Breach of obligations of husband and wife do not give rise to an action for damages but the law prescribes penal and civil sanctions therefor like criminal actions for adultery or concubinage, legal separation, action for support, etc. Ordinary Contracts a. May be entered into by any number of persons b. Agreement of parties has the force of law between them c. Can be terminated by mutual agreement of the parties d. Breach gives rise to an action for damages
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Once there is a valid contract of marriage, the status of marriage or of being married is created between the parties it is a status/relation/institution
As a status: a. Marriage is no longer just a contract but an inviolable social institution, which is the foundation of the family, so that the Constitution provides that it should be protected by the State (Sec. 2, Art. 15, 1987 Constitution) b. It being an institution of public order or policy, its nature, consequences and incidents are governed by law and not subject to stipulation. c. It carries with it implications in 2 fields: the realm of personal rights and obligations of the spouses, and the realm of property relations. Generally, the first field is a personal matter between husband and wife and will not ordinarily be interfered by the courts; in the second, there are several judicial sanctions applicable. Is the State deeply concerned with the maintenance of Marriage? Of course! Its the foundation of the family and the origin of domestic relations of the utmost importance to civilization, and social progress. Marriage is a new relation in the maintenance of which the general public is interested. (Perido v. Perido, 63 SCRA 97) May Notaries draw up an instrument destroying the inviolability of marriage? No! Those who do will be subject to disciplinary action. (Biton v. .. 62 Phil 7; In re Santiago, 70 Phil 66) What about the practice of polygamy in Islamic custom? Under the Muslim law, marriage has a different concept in that a Muslim can have as many as four wives at a time provided he can give then equal companionship and equal treatment. (Art 27, P.D 1083 or the Muslim Laws of the Philippines) What are the Principal effects of marriage? 1. The personal and economic relations between the spouses, which become sources of important rights and duties; 2. The legitimacy of sexual union and of the family 3. The personal and economic relations between parents and children, which give rise also to considerable rights and duties; 4. The family relationship, from which flow various judicial consequences; such as impediments to marriage, right to support, and rights to inheritance 5. Emancipation of the spouses from parental authority 6. Incapacity of the spouses to make donations to each other 7. Modification of criminal liability, such as by way of exemption when one spouse defends the other from unlawful aggression, or is the accessory after the fact or mitigation, when the crime is committed in vindication of a grave offense to the spouse, or aggravation when the injured is the spouse of the offender, such as in parricide. Art 2 (Internal) What are the two essential requisites of marriage? 1. The legal capacity of the contracting parties, who must be male and female and 2. Consent (of the parties) freely given in the presence of the solemnizing officer. What does legal capacity mean? Legal capacity means that the parties (a man and a woman) are at least 18 years of age and are not barred by any impediment to marry each other.
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What does consent freely given mean? It means that the consent is real and not vitiated or rendered defective by any of the vices of consent under Arts. 45 and 46 of the Code, like fraud, force, intimidation, undue influence, etc. (Note: Remember that consent vitiated by fraud, etc will only render the marriage voidable.) Must the parties appear personally before the solemnizing officer? Yes. Thus, this --- common law marriages and marriages by proxy. The appearance of the parties before the solemnizing officer will also give the party who is merely being forced, intimidated, or unduly pressured into the marriage an opportunity to inform the solemnizing officer of such fact so that the marriage ceremony may be suspended or stopped. Art. 3 (External) What does authority of the solemnizing officer mean? It means that the officiating officer must be clothed with the power to marry. The authority of an incumbent member of the Judiaciary is ---- with his incumbency as such. Once his membership in the judiciary is terminated for any cause, the authority ceases. As regards the ecclesiastical solemnizers, their authority depends upon the limit imposed in their written authority granted them by their respective church or sects. What is the marriage license? It is the written permission issued by the civil registrar to the contracting parties authorizing their marriage before any authorized solemnizing officer. The availability and presence of the license must be at the time of the celebration of the marriage. The subsequent issuance thereof will not cure the basic defect in the marriage. What is the marriage ceremony? It means the solemnizing of the marriage. There is no prescribed form or religious rites. It shall be necessary however of the contracting parties to appear personally before the solemnizing officer and declare in the presence of no less than 2 witnesses of legal age that they take each other as husband and wife. Case A&B lived together as husband and wife for many years, but in the office of the Manila Civil Registry, there was no record that a marriage between them had ever been celebrated. Are we to presume that they are married? Answer: Yes, because of their cohabitation for many years. Moreover the lack of a marriage record in Manila does not rebut the presumption of marriage, for the marriage could have been celebrated elsewhere. What is the distinction between an absent and defective requisite? The absence or absolute lack of an essential and formal requisite renders the marriage void ab initio. On the other hand, a defect in the essential requisite renders the marriage merely voidable. An irregularity in a formal requisite would not even affect the validity of the marriage, subject to the civil criminal or administrative liability of the party or parties responsible for each irregularity. When can there be absence of legal capacity? 1. Marriage between a 14 year old girl and 16 year old boy even if both have parental consent.
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A marriage between a boy of 18 and a girl of 16, both with parental consent. The girl here still has no legal capacity to get married. A marriage between 2 girls or between 2 boys. Parties of the same sex cannot get married. A marriage between parties who have a legal impediment to get married under Art. 37 and 38 of the Code, like first cousins.
When can there be absence of consent of contracting parties? 1. Marriage in jest with no intention on the parties to be bound 2. Marriage in the movies or in a TV or stage play When can there be absence of authority of solemnizing officer? 1. Marriage solemnized by a judge who has already retired. 2. Marriage solemnized by a judge outside his territorial jurisdiction 3. Marriage solemnized by a mayor after the Family Code takes effect (Under the Family Code, mayors who no longer have authority to solemnize marriages) 4. Marriages solemnized by a person who pretended to be a judge or a priest 5. Marriage solemnized or who is not registered with the Office of the Civil Registrar General under Art. 7 (2) Note: Remember that Art 35(2) the marriage is still valid even if solemnized by a person not legally authorized to perform marriages, provided either or both parties had believed in good faith that the solemnizing officer had the authority to do so.. When can there be an absence of a valid marriage license? 1. A marriage with no license, unless it falls under the exceptions. 2. A marriage with an expired license. When can there be an absence of marriage ceremony? 1. Common law marriages where the parties just live together as husband and wife with a marriage ceremony 2. A marriage by proxy, where one or both parties are merely represented by other persons When can there be effect of defect in any of the Essential requisites? 1. A defect in the legal capacity of either party, as when a girl or a boy between 18 and 21 years of age (i.e below 21 years) gets married without parental consent or 2. A defect in the consent of either party, which means that such consent was given under any of the circumstances that vitiate consent under Arts. 45 and 46 of the Code.
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When can there be irregularity in the formal requisites? 1. The marriage license was not applied for in the place where either contracting party habitually resides. 2. The marriage license was signed by a mere employee of the office of the proper local civil registrar, but with the latters authority. (If the employee was not authorized by the local civil registrar to sign for the license, the marriage will be void for lack of a valid license) 3. The 10 day posting of the application for the marriage license was not complied with but a license was nonetheless issued. 4. The parties did not actually declare to the solemnizing officer that they freely take each other as husband and wife 5. The parties did not comply with the requirements of parental advice (art. 15), marriage counseling (art. 16) or family planning seminar under PD 965 but they were still able to get a license. 6. There were no witnesses to the marriage. Case 1 X, the local civil registrar, issued a marriage license to H & A without posting the notice for the application of a license for a period of 10 consecutive days in the prescribed bulletin board (art. 17) Will this affect the validity of H & As marriage? Answer: Of course not! This is an irregularity that does not affect the validity of the marriage. The registrar X, however, is administratively liable for the non feasance Case 2 In H & As marriage ceremony, there were two witnesses J & K where 15 and 14 respectively. Will this affect the marriage of H & A? Answer: This is an irregularity (minority of the witnesses) that did not affect the validity of the marriage. There will be a sanction however for those responsible for the irregularity. Case 3 During the marriage ceremony, the priest, Q asked J if she would take H as her lawfully wedded husband. J replied, Yes. Q, however failed to ask the same question to H, Both J & K signed the marriage certificate. Would this affect the validity of the marriage? Answer: Again, failure to ask such question to groom is a mere irregularity, so long as the groom also signed the marriage certificate. Case 4 Michael, a Filipino citizen, underwent a sex change operation in Europe and then became Michelle. Later Michelle returned home to the Philippines to marry David, the man of her dreams. The eventually did get married. Is such marriage valid? Answer It is submitting that in such instance if the concerned homosexual had informed the civil registry of the change of his sex to that of a female and the same was duly recorded, marriage would be possible. Of course, it would be lest for the law making body to enact a law on the matter (pineda) Art 5 Why the increase in the legal age from 14 or 16 years old in the civil code to 18 years old in the family code. Marriage, which is the foundation of the family and one of the most if not the most important institution in mans life, calls for a stronger, physical , psychological, and emotional fitness and preparation to make it survive in the midst of life stress and attendant responsibilities including but not limited to the procreation, rearing and education of children, What is added to the age requirement? Added to the age requirement is the absence of any disqualification on the part of the contracting parties to marry each other. This if the marriage will result in an incestuous marriage (Art. 37) or in a marriage against public policy (art. 38) or in a bigamous or polygamous marriage (art. 35(4)) on in a void marriage under Art. 53, the marriage will be void. Art 6 Is there any prescribed form for the ceremony? No prescribed form for the marriage ceremony is required. It is essential however that there is personal appearance by the parties before the solemnizing officer and personal declaration that they take each other as husband and wife. Is signing by mark allowed? It now appears that the parties must sign their ordinary signatures on the marriage certificate. What is a common law marriage? A common law marriage is where the man and woman just live together as husband and wife without getting married. Obviously a common law marriage is one which has not had the benefit of a marriage ceremony. What requirements in this article will not render the marriage void? 1. Lack or absence of witnesses 2. No oral declaration before the solemnizing officer that they take each other as husband and wife 3. There was no marriage certificate or contract. Case A & B are deaf mute. Therefore in their marriage ceremony no oral declaration that they take each other as husband and wife is possible. Can they still get married?
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Answer: Of course! Whats to stop two people who are madly in love? If the contracting parties are deaf-mute, signs will be sufficient. (People v. Cotas, 40 O.G. 3154) Art 7 Who among the members of the judiciary may solemnize a marriage? Any incumbent member of the judiciary may solemnize marriage. All incumbent judges of lower courts and justices of the appellate courts are included. So also are the justices of the Sandiganbayan. However, officers exercising only quasijudicial functions are not included. How can the members of the judiciary exercise such authority with respect to their territorial jurisdiction? A municipal trial judge cannot exercise his authority to marry beyond the limits of his territorial jurisdiction as a judge. Nor a RTC judge beyond his regional assignment. Moreover, they must solemnize marriage publicly in their chambers or in an open court which presupposes office days (Gabriel v. Gabriel C.A 56 O.G. 3555) While Justices of the Supreme Court , the Court of Appeals, the Sandiganbayan, and the Court of Tax Appeals have national jurisdiction, under Art. 8, it is essential that the marriage should be solemnized publicly in their chambers or in an open court (Session Hall) and not elsewhere. Are mayors authorized to solemnize marriages? What is the purpose of such inclusion/exclusion? Yes. Under the Local government Code of 1991, Mayors can now solemnize marriage. What are the requisites so that a religious solemnizer may be authorized by law to solemnize marriages? 1. Duly authorized by their respective churches or sects. 2. They must be duly registered with the Office of the City Registrar General. 3. They must act within the limits of their written authority from their churches or sections. 4. At least one of the contracting parties belong to the solemnizing officers church or religious sect. Short of there requirements, they cannot solemnize marriages. If they do, they are criminally liable (Art. 362, RPC) To whom shall religious solemnizers register to be duly authorized to solemnize marriages? They must register with the Civil Registrar General because it is necessary for such official to have supervision and control over priests and ministers of the gospel for purposes of the preparation and proper execution of documents attendant to the celebration of marriages. In the Civil Code this job used to belong to the director of the Bureau of Public Libraries. Why must one of the parties belong to the solemnizing officers church or religious sect? The requirement is intended by the Code to prevent parties who are in a hurry to get married from approaching alleged ministers of questionable religious sects with officers around the City Hall of Manila and other places who make a business out of solemnizing marriages, usually instant ones. (i.e. without the required marriage license by making it appear that the parties had already cohabited for at least 5 years even if such is not the fact) What marriages may ship captains or airplane chiefs solemnize? These persons can solemnize marriages only in articulo mortis between passengers or crew members not only while she is at sea or the place is in flight, but also during stopovers at ports of call, because the authority is given during the voyage and in such cases the voyage is not yet terminated. what is the plane has landed
Can any ship officer or airplane pilot solemnize marriages? No. He must be the captain of the ship or the chief pilot of the airplane. What are the requirements so that a military commander may solemnize marriages? 1. The military commander must be a commissioned officer, meaning an officer in the armed forces holding rank by virtue of a commission from the President and not a mere corporal or sergeant, should start from 2 nd lieutenant, ensign and above. 2. He can solemnize marriage only if it is in articulo mortis 3. It must be between persons within the zone of military operations, whether members of the armed forces or civilians 4. The unit of the military commander, according to the committee, must be a battalion not just a company 5. A chaplain must be assigned to that unit 6. Said chaplain must be absent at the time of the marriage The committee considers the situation one of emergency, which includes military .. Police actions, declared or undeclared wars, civil war or rebellion When may consuls, consul generals or vice consuls solemnize marriages? In accordance with art. 10 they may only solemnize marriages between Filipinos abroad in the foreign assignments of these officials. Consuls on home assignment in the Philippines cannot solemnize marriages. May the President of the Philippines, the chief of staff and the armed forces and the ambassadors solemnize marriages? By the principle of inclusion unios exclusion est alterius no other officers, not even the president, the chief of staff and the ambassadors are authorized to perform marriages? Art 8 Is this provision mandatory or directory? This provision is only directory, not mandatory, so that noncompliance therewith will not invalidate the marriage.
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Why the requirement on public solemnization of the marriage? First of all, the State takes an active interest in the marriage. Secondly, the more people witness the marriage, more people can notify the solemnizing officer if they know of any impediment to said marriage. What are specific venues of marriage? If the solemnizing officer is a judicial officer, the public solemnization can only be performed either in (1) the judges chamber or in (2) open court. If it is an ecclesiastical solemnizer, the marriage must be celebrated in the church, chapel, or temple. If it is a consul-general, consul, or vice-consul, as the case may be, in their respective offices abroad. The law is explicit it must be there and not elsewhere. What happens in the event of a violation of these? Violation of the provision will subject the solemnizer to criminal and administrative sanctions, although it is believed that the marriage remains valid if the solemnization though not in the chambers or in open courts, church, or office of the consul, is celebrated within the territorial jurisdiction of the solemnizer. Are there any exceptions to the venue rules? Excepted from the specified venues are marriages contracted in articulo mortis and marriages in remote places (art29) and those where both parties formally request the solemnizing officer the celebration of the marriage at the house or place designated by them in a sworn statement to that effect. A man and a woman who have lived together as husband and wife for at least 5 years and without any legal impediment may have their marriage celebrated elsewhere other than the venues fixed by law if they both request in writing. Under the Civil code, there were specifically mentioned as an exception to the general rule on public solemnization of marriage. In the present article, they were omitted. But they fall now within the coverage of the clause or where both parties request the solemnizing officer in writing in which case the marriage maybe solemnized at a house or place designated by them in a sworn statement to that effect. When are instances when public solemnization is not needed? 1. in marriages articulo mortis 2. In marriages in remote places 3. When both of the parties requests in writing for solemnization in some other place Note: There is a mistake in Paras. The fourth item read when both of the parents When the Family Code provision mentions parties instead of parents Can the Marriage be solemnized by a judge on a Sunday, which is not an office day? No, according to Gabriel v. Gabriel, C.A, 56 O.G. 3555. (Remember one of the questions in the bar exam concerning the CA justice on vacation in Cebu solemnized a marriage? It is possible that if the justice was on vacation it well could have been a public holiday, e.g Christmas or Holy Week break. Therefore on the Gabriel case, there could not have been office hour that time. But this is only by simple analogy. There still isnt any jurisprudence on the matter.) Art 9 Who shall issue the marriage license? And where? The marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides. EXCEPT in marriages where no license is required in accordance with Chapter 2 of this Title. How can this provision be useful? This provision is useful in small communities where the people know one another because the names of the applicants for marriage license are posted by the local civil registrar under Art 17 and any one who knows of an impediment to an intended marriage may inform him about it. What if this provision is violated? A violation of this provision will not invalidate the marriage license, but the party who falsified his or her application for marriage license by stating that he or she is a resident of the place where the license was applied for is criminally liable. Is the solemnizing officer required to investigate the validity of the marriage license? No. The solemnizing officer is not required to investigate whether or not the license was issued in the place required by law. (People v. Jansen) Is a license needed for religious ratification? No. Religious ratification of a valid marriage does not require a marriage license. Art. 10 Is a marriage license still required under this article? A marriage license is still required to be issued by the consular official who will solemnize the marriage. The marriage involved here, thus, is not of an exceptional character. When is the article applicable? This article is applicable only if the contracting parties are Filipino citizens who may be domiciled or sojourning abroad. If one of the parties is a foreigner, this article cannot apply. Filipino citizens abroad may mean Filipinos permanently residing abroad or who are mere transients or vacationists there. Art 11 Why would the application for a marriage license be under oath?
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The application for marriage license is required to be under oath so that the applicants would tell the truth in their applications. If they lie regarding any detail therein, they will be committing perjury. Who shall administer the oath? The oath to the application shall be administered by the local civil registrar with whom the application for license is filed. Why do the parties have to file separate sworn applications? The two parties to the intended marriage are required to file separate or individual sworn applications because the data that they will state under oath are different What if the parties give false information in their application? Even if the parties falsify the information given in their marriage applications, such as their age, civil status, absence of relationship with each other, etc the marriage license will still be valid if issued by the local civil registrar of the place where the application is file, but the party who gave wrong information would be civilly, criminally, and administratively liable. What if the local civil registrar issues the license with knowledge of such falsity? If the local civil registrar, knowing the falsity of the information, in the application, still issues the license, he shall be civilly, criminally, and administratively liable, but a marriage solemnized pursuant to said license will still be valid. Art. 12 Steps: 1. 2. 3. 4. 5.
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The local civil registrar receives the application He requires the presentation of the original birth certificates, because it is the best proof of ones age. If the birth certificate is not available, then a baptismal certificate will do If the baptismal certificate is in custody of another, copies of these may be submitted, duly attested by the person having the copy of the original If still no baptismal certificate can be produced, or if it is shown by an affidavit of the contracting party or of any other person that a birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at 15 days prior to the date of the application, such party may furnish his current residence certificate in lieu thereof. An instrument drawn up and sworn to before the local civil registrar concerned of any public official authorized to administer oaths is also acceptable. This instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and place and date of birth of such contracting party. The nearest kin shall be preferred as witnesses, or in default thereof, persons of good reputation in the province or the locality.
In sum: In the following order, these are required to be submitted as proof of age: 1. Birth certificate (can it be a photocopy?) 2. Baptismal certificate 3. Residence certificate 4. A sworn instrument/ declaration of two witnesses When can a birth certificate or baptismal certificate not be required? 1. If the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of the said parties as stated in their application or 2. When the local civil registrar merely looks at the applicants upon their personal appearance before him, and shall have been convinced that either or both of them have the required age. When does this article not apply? This article does not apply to parties who had been previously married (art 13) Art 13 What if the spouse had been previously married? What will be presented instead of birth or baptismal certificate will depend upon the case of dissolution upon the cause of dissolution of the previous marriage: 1. death death certificate 2. annulment of voidable marriage judicial decree of annulment 3. declaration of nullity of a void marriage judicial declaration of nullity Is it possible that a death certificate may not have been secured? What then? Yes. Such as when the death is due to an airplane crash where the passengers could no longer be identified or the bodies could no longer be recovered. An affidavit to that effect will suffice. Art. 14 When is parental consent required? Parental consent is required when the boy or the girl is 18 and above but below 21 years old What if a marriage is solemnized without such consent? The marriage becomes voidable. What if the applicant had been voluntarily emancipated, though still below 21 years old? He or she does not need parental consent. What form shall parental consent take?
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Parental consent may be in the form of a (1) sworn statement acknowledged in the presence of two witnesses before any official authorized to administer oaths, or (2) the parents or guardian may appear personally before the local civil registrar and accomplish the written consent before him. Art 15 When shall parental advice be necessary? It shall be necessary when any contracting party is between the age of 21 and 25 Why the need for parental advice? It is in keeping with Philippine tradition of honoring ones parents (filial respect) by seeking their guidance or informing them about his or her intended marriage. What happens if parental advice was not obtained or is unfavorable? The lack of parental advice or unfavorable parental advice does not bar the marriage from taking place, but the requirement is a vehicle to induce further and more mature reflection by the parties on the decision to get married during the 3-month period that they are required to wait before they are issued a license. Note that the failure to obtain parental advice spoken of here is undeliberate. From what time shall the 3 month period be computed? The 3 month period is computed from the completion of the 10 day publication of the application for a marriage license. If the parties get married within said period, the marriage is void, as no license had been yet obtained. If they were able to get a license without the required parental advice, the marriage is still valid, but they will be liable criminally and civilly for falsifying their applications for marriage license. What if both parties deliberately refused to obtain parental advice? The marriage license must not be issued. It is submitted however that the better remedy would be for the local civil registrar to initiate a case in the appropriate court to prevent the issuance of the license in line with the remedy allowable in Art. 18 when an impediment to the marriage is made known to him. This way, the controversy can be judicially ventilated and the spirit behind art. 18 will not be frustrated. Art 16 When does this article apply? This article applies only in cases where parental consent and parental advice are necessary What is the purpose of marriage counseling? Te purpose of the requirement is to enable the parties to find out if they are compatible before they get married. Psychological incapacity as defined in Art 36 of the Code on the part of either party may also be discovered through marriage counseling. Experience has shown that many marriages, especially teenage marriages, have failed because of the lack of pre-marital counseling to the parties. While some members of the Committee believe that this requirement does not accord with the customs of the Filipinos and may be disregarded, the majority of the members think it is a wise requirement and should be included in the family code, since law should be an instrument of change for the better. Who will do the counseling? The (1) priest or minister of the church or religious sect to which the party concerned belongs, or (2) a marriage counselor accredited by the proper government agency will do the counseling. They shall also issue the certificate to certify that the parties have undergone marriage counseling. What is the effect of the lack of certificate of marriage counseling? The effect of the lack of the certificate of marriage counseling is the same as the lack of parental advice; i.e the issuance of the marriage license is suspended for 3 months. What if only one of the parties need parental consent or advice? In this case the other party still must be present at the counseling. Art 17 Is the 10 day posting rule mandatory or directory? The 10 day period must be construed to be mandatory such that any license issued without following the period is void and ineffective. This will prevent unscrupulous people from deliberately seeking the immediate release of a marriage license to create a pretext for its annulment in the future. What is the purpose of the posting requirement> It is to inform the public of the intended marriage so that if they know of any legal impediment thereto, they may inform the local civil registrar about it. While such requirement may be of practical value in big cities and communities, it is very useful in small towns and municipalities where practically everybody knows everyone else. Where must the bulletin be? It must be strategically located in the building where the office of registrar is located and not only conspicuous but also accessible for the latters guidance. Art 18 What is the local civil registrar required to do? 1. He shall note down the particulars thereof and his findings thereon in the very application for marriage license itself and then refer the matter to the competent court if he thinks such action is warranted. 2. He shall issue the license after completion of the period of publication UNLESS otherwise ordered by a competent court at the instance of an interested party or even at his own instance. 1D 04 7
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Art 19 Is there any prescribed fee for the issuance of the license? Yes. The amount is minimal. Many people will be discouraged and would rather take common law cohabitation if high fees will be imposed for issuance of marriage licenses. It is for the same reason that it should be issued for free to indigent parties those who have no visible means of income or whose income is insufficient for their subsistence. Art 20 Where can the license be used? It can be used anywhere in the Philippines but not in foreign countries. How long shall the license be valid? The license is good for only 120 days. It is not subject to extension and once it has expired, it is deemed cancelled and cannot be used anymore. If the parties still want to get married after the expiration of the license, they must apply for a new license. What does the Family code require in terms of the expiry date? It mist be stamped in bold characters on its face, so that the parties will be fully aware of its expiration date. Art 21 Why must a certificate of legal capacity be issued to foreigners who wish to contract marriage in the Philippines? The capacity of a foreigner to get married in the Philippines is governed by his national law, a foreign law, so that our government offices and courts cannot take judicial notice of said law. Who shall issue the certificate of legal capacity? The certificate of legal capacity should be issued by the proper diplomatic or consular officials since they are the ones who know the national law of the foreigner and whether he has capacity to marry under said law. What about divorces foreigners? A divorced foreigner can be issued a marriage license to marry again in the Philippines provided that he can present the certificate above mentioned, which means that his divorce is recognized by his own country. Art 22 Is the certificate an essential requisite of marriage? No. (Madridejo v. de Leon 55 Phil 1) An oral solemnization of the marriage is sufficient. Failure to sign the marriage contract does not invalidate the marriage. How may existence of marriage be proven? The best evidence of the existence of a marriage is the marriage certificate but it is not the only evidence that can be admitted to prove the existence of a marriage. They may also be proven by: 1. Testimonies of witness (US v. Memoracion 34 Phil 633) 2. Land titles (Padilla v. Howard, 96 Phil 983) 3. Declaration of the one of the parties (People v. Alday 59 )G 411) 4. By a last will and testament 5. By the legal presumption that a man and a woman deporting themselves to be husband and wife entered into a lawful Contract of Marriage (Revised Rules of Court) This presumption, however, prevails only if unrebutted. What is the difference between a marriage license and a marriage certificate? The marriage license is an essential requisite for marriage while the marriage certificate is not. The marriage license, issued prior to the marriage, is the authority to celebrate the marriage while a marriage certificate is the marriage contract certifying the celebration of the marriage. Case 1 X, the solemnzing officer, failed to send a copy of the marriage contract to the proper local civil registrar. Will this invalidate the marriage? Answer: No. Such an omission does not invalidate the marriage. Case 2 T made a will where he stated that W was his wife. The will was duly probated. Is the will admissible to prove the existence of the marriage? Answer: Yes. As already mentioned, W can be considered as the wife, otherwise T would not have made this admission against his own pecuniary interest. Case 3 In an attempt to disprove the existence of a marriage, the priest who allegedly solemnized it testified he could not remember what was said during the wedding. He was corroborated in this by one of the parties. However, there was a greater mass of evidence pointing to prolonged cohabitation. Is the marriage still valid? Answer: Yes. The marriage was properly celebrated and it continues to be presumed valid. Case 4 X claimed the deceased Y had cohabited with her and as a result several children were born. However, the deceased contracted a marriage with another and X and her children were made to move into a house nearby. Y subsequently died. X stepped forward and alleged she was the real and legitimate wife of the deceased, entitled to the rights of a legitimate wife in the deceaseds estate. However, she was not able to present any marriage certificate and in the civil registry there no
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entry of such a marriage. This absence has not been adequately explained. Was there a marriage between plaintiff X and the decease? Answer: No. There are several circumstances to show that there was no marriage between the plaintiff X and the deceased. No certificate of marriage or entry thereof in the civil registry has been presented nor has satisfactory explanation of the absence been offered. Common observations and human psychology reject the thought that this woman could have consented with complete resignation that she be banished for good from conjugal home with her children in order that her husband might live in peace with another woman, rear children, and enjoy the home and fortunes she claims to have helped build and earn. And no intelligent person would likely have been so unmindful of social convention and so reckless of penal consequences as publicly to marry twice while his first wife was alive and live with his new wife in plain and constant sight of his former and legitimate wife and children. Case 5 X claims to have been married to Y. There is no proof to such a marriage except the testimony of X and her counsel. Moreover, it was proven that at one time, the girl had alleged that she was the common law wife of Y; that in a previous affidavit she made, she had stated that she was single. Also , no document was ever introduced. The testimony was even conflicting as to who really had solemnized the alleged marriage. Is X indeed married to Y? Answer: Apparently, no marriage took place. The presumption of marriage arising from cohabitation of the man and the woman ender the Rules of Court cannot certainly be applied under the circumstances. Art 23 How copies of the marriage certificate should be made? The certificate must be prepared in quadruplicate: 1. Orignal copy to be furnished to either of the contracting parties; 2. Duplicate and triplicate copies to be sent to the local civil registrar of the place where the marriage was solemnized not later than 15 days after the marriage; 3. Quadruplicate copy to be retained by the solemnizing officer, together with the original marriage license and in proper cases the affidavit of a party or parties for the celebration of the marriage outside the regular venue provided under Art 8 of the Family Code. What if no one receives a copy of the marriage certificate? If no one receives a copy of the marriage certificate the validity of the marriage is not affected. (Madridejo v. de Leon 55 Phil 1) Art 24 Who shall be responsible for the preparation of all documents required by the title of marriage? The local civil registrar has the duty too prepare the documents required by this Title, and also to administer oaths to all interested parties. In both preparation of documents and administration of oaths, the charges shall be free. Furthermore, no documentary stamp tax shall be imposed. Art 25 How shall all application be entered in the registry book? The local civil registrar shall enter all the applications for marriage license field with him in a registry book strictly in the order in which the same are received. The applications should be duly numbered, to avoid the bad practice in offices of the local civil registrar of leaving certain numbers in the registry book of application for marriage license blank and then selling these blank spaces to couples who want instant licenses (i.e without complying with the 10 posting) by antedating the dates of their applications for marriage license. Art 26 When shall a foreign marriage, although valid in the country of celebration, still be void in the Philippines? 1. Either or both parties did not have the legal capacity to get married (art 35 (1)) 2. The marriage is immoral for being bigamous or polygamous (art 35 (4)) 3. Consent of one party is lacking because of mistake as to the identity of the other (art 35 (5)) 4. One of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations (art 36) 5. The marriage is incestuous (art 37) 6. The marriage is void by reasons of public policy (art 38) 7. Art 35 (6) dist;n of legitime 8. Common law Note: there are 16 in all At what instances can a Filipino citizen can well be considered as divorced and may remarry? Art 26(2) Art 26 as amended by EO 227, states that when 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 the Philippine Law. According to Atty. Sta. Maria, this is perhaps the only known instance when a Filipino can possess a divorce status. Note likewise that the alien spouse have been capacitated to remarry. If the alien spouse is not rendered capacitated to marry despite the divorce due for instance to prohibitions in his or her national law, the aliens marriage with the Filipino subsists and the latter in turn is not rendered free to remarry. What is the purpose of Art 26 (2)
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The idea of the amendment is to avoid the absurd situation of a Filipino as being still married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her national law. What are the requirements to prove a foreign marriage? 1. There must be the existence of the pertinent provision of the foreign marriage law 2. The celebration or performance of the marriage in accordance with said law Needless to say the foreign law is not of judicial notice, and it must therefore be proved as a fact. Hence, if there is no competent testimony on what said law is, the court cannot be convinced morally of the existence of such a marriage. (Adong v. Cheong Seng Gee, 43 Phil 43) Case 1 A and B, both Filipinos were married in the US. Not long after, A divorced B. Then B married X. Is Bs marriage to X valid? Answer: No. There marriage of B and X is void for being bigamous. The divorce obtained by A is not recognized in the Philippines. Before the eyes of the Philippine law, A and B are still married to each other. Art 26 requires that the Filipino is married to a foreigner and the latter sought and obtained the divorce. Case 2 A & B both Filipinos are married to each other. A later became an American citizen. Thereafter, A divorced S. in the US. B married X. Is the marriage of B and X valid? Answer: No. Because it is a bigamous marriage considering that the divorce obtained is not recognized in the Philippines. The intent of the law is that the foreigner in Art 26 must be a non- Filipino at the time of the marriage. Considering therefore that art 26 (2) allows a Filipino citizen to be divorced and be remarried, should said provision be scrapped altogether? This question requires no definite answer. However, Pineda makes an observation on the issue. He noted that the said provision titled the law in favor of Filipinos who are married to foreigners but relegated to the side Filipinos who are divorced by their Filipino spouses abroad. Obviously, according to him, this created class legislation. To maintain equality, either the law be scrapped altogether of it be amended to allow Filipinos divorced by their Filipino spouses abroad, to enjoy the same opportunity or freedom to remarry. Is is submitted, the first option is the better option as Filipinos are brought up under the a different culture, religious beliefs and moral orientation in family life. To them marriage is a special contract of permanent union which no man shall put asunder. Art 26 (2) contradicts the basic principle of permanence and solidarity in the family which principle is enviously enshrined no less in the 1987 Constitution which the Filipino people had overwhelmingly ratified. Among its protective provisions are that the State should recognize the sanctity of family lie and shall protect and strengthen the family as a basic autonomous social institution. Allowing or recognizing divorces of Filipinos under the guise or form is violative of the basic Christian principles of marriage for which the country is known to be a faithful adherent. Moreover, recognition of divorce contravenes basic state policy of the Republic of the Philippines. Divorce destroys the sanctity of the family life as well as the solidarity of the family as a basic autonomous social institution. Divorce does not promote total development of the family but allows and encourages its destruction from within. Case 3 N, a citizen of Turkey, is validly married there simultaneously to 3 women by each of whom he has children. Will the marriage be considered as valid in the Philippines? Answer: For the purpose of cohabitation in the Philippines, only the marriage should be considered as valid; but for the purpose of considering legitimacy of the children, the marriages are all to be considered as valid. Case of doubt, we must resolve the same in favor of the legitimacy of children. Thus, it has been said that a marriage from this viewpoint in one respect, and valid in another. Art 27 What is marriage in articulo mortis? It is when one or both of the contracting parties at the point pf death. In such cases, there is no need for a marriage license because obviously, the dying party would already be dead by the time the license is issued. What happens if the dying party survives or recovers? The marriage remains valid even if the ailing or dying party survives or does not die. Who may solemnize marriages in articulo mortis? The marriage in this case may be solemnized by a priest or a minister of any religious sect, a judge, a ship captain, airplane pilot and military commander. Is there distinction between being At the point of death and in danger of death? Yes, thus a member of the army who takes part in a military operation against the NPAs or the Muslim insurgents may be in danger of death but not at the point of death/ Art 28 What does no means of transportation mean? This means that there must be no means of transportation at all. If such party can reach the municipal building by boat or cart, or even just riding on an animal like a horse, carabao or cow, be he or she is not exempt from a marriage license although there may be no roads or railroad in their place. What affidavit is required in the two preceding articles?
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It is an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such a party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of the legal impediments to the marriage. Note that this affidavit is not required in the cases of marriage in articulo mortis performed by a ship captain, airplane pilot , and military commander. Art 30 What is the affidavit for anyway? The affidavit of the solemnizing officer required by this Art takes the place of the marriage license and constitutes an assurance that the parties are of the proper ages and that there is no impediment to their marriage. What happens if there is no affidavit in a marriage in articulo mortis? The lack of the affidavit does not invalidate the marriage in articulo mortis. Also the failure of the solemnizing officer to comply with this requirement will not invalidate the marriage. Is there any particular form of marriage in articulo mortis? No particular form of the marriage in articulo mortis is required. The law as much as possible intends to give legal effect to the marriage. (Cruz v Catandes, CA 39 OG 18 p 324) Note: These involve exceptional marriages, so note the 30 day period with which to send the affidavit to the local civil registrar. In ordinary marriage, the period is only for 15 days Art 31 In the words of the great Atty. De Leon, this is self-explanatory. Just note that airplane pilot here should read airplane chief in accordance with Art 7, Art 32 See notes on military commanders in Art 32 Art 33 Must the members of the ethic cultural live in non-Christian provinces? So long as the parties are Muslim or members of other cultural minorities, their marriage are exempt from the requirement of a marriage license if performed in accordance with their customs or practices even if such marriages are held outside non-Christian provinces. Art 34 (Common law relationships, no license necessary) What are the requisites for the application of this article? 1. The man and woman must have been living together as husband and wife for at least 5 years before the marriage 2. The parties must have no legal impediment to marry each other, e.g they are not first cousins 3. The fact of absence of legal impediments between the parties must be present at the time of the marriage, not during their 5 year cohabitation 4. The parties must execute an affidavit stating that they have lived together for at least 5 years 5. The solemnizing officer must also execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediments to their marriage. What is the purpose of the article? The article is intended to facilitate and encourage the marriage of persons who have been living in a stat of concubinage for more than 5 years. The publicity and ----------- on the securing of a marriage license might deter such persons from legalizing their union hence theur marriage is exempted from such requirement. Sempio-Diy adds that the marriage of the parties will result in the legitimization of the natural children born to then during their cohabitation. What is the effect of a false affidavit of the parties? If the parties falsify their affidavit in order to have an instant marriage, although the truth is that they have not been cohabiting for 5 years, their marriage will be void for lack of a marriage license, and they will also be criminally liable. Case 1 A 23 year old woman married a 21 year old man without a marriage license but previous to the marriage they had been living together for 3 years. Is the marriage void? Answer: Yes. It is void because they have not lived together for 5 years. Case 2 A man 30 years old has been living together for 5 years as the common law husband of a girl who is not 20 years old. Do you believe that they can get validly married even without a marriage license? Answer: No, for the girl is still a minor and therefore cannot as yet marry. Art 35
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Is parental consent material in a marriage where one of the parties is below 18 years of age? No. The marriage is void even if the parties had parental consent because the essential requisite of legal capacity of the contracting parties is lacking. What is the exception in a case of non-authority of the solemnizing officer? The only exception is when either or both of the contracting parties entered into the marriage believing In good faith that the solemnizing officer had the legal authority to do so. Good faith shall be ascertained after reasonable inquiry and investigation Atty. Sta. Maria stresses that in order to qualify under the good faith provision, it is necessary that the solemnizing officer must be one of those listed in Art. 7. In other words, the non authority of the solemnizing officer could only result from the fact that he or she is not duly registered by the civil registrar and/or is not authorized by his religious sect. The example given in class concerned a couple married by a mayor. The good faith of both spouses is immaterial here, because the mayor is not qualified to solemnize a marriage in the first place. Is good faith material in a bigamous marriage? No. The good faith of either party is immaterial. What marriages are exempt from the license requirement? There are 1. In articulo mortis 2. Remote places 3. Articulo mortis in ship or airplane 4. Articulo mortis within the zone of military operations 5. Among Muslims or among members of ethnic cultural communities 6. Between a men and women who have lived for more than 5 years as husband and wife without legal impediments. Why dies mistaken identity render the marriage void ab initio There was really no consent to the marriage on the part of the party that made the mistake as to the identity of the other Case 1 A was in love with B and the two decided to get married. At the wedding ceremony, however. It was C, the twin brother of B, who appeared and who actually got married to A without the latters knowledge. Is the marriage valid? Answer: No. This is clearly a mistake by one party as to the identity of the other. Case 2 A and B agreed to get married but at the wedding ceremony, another woman who was heavily veiled appeared and actually got married to A. Is the marriage valid? Answer: No, another mistaken identity case. Note: In other words, the mistake here is with regard to the physical identity of one of the parties and not with regard merely to the character, health, rank, fortune, or chastity of one party to the marriage. That is, there was a substitution of another party for the party who agreed to the marriage, without the knowledge of the other contracting party. Is the enumeration of Void marriage in this article exclusive? The enumeration of void marriages in not intended to be exclusive, as there are marriages, which lacy any of the essential or formal requisites of marriage under Art 2 & 3 even if this Art. Does not include them, like marriages in jest, common law marriages in jest, common law marriages, marriages by proxy, etc. A second marriage without complying with art 52 (delivery of the presumptive legitime of the children of the annulled marriage or the marriage that was declared void ab inito) is also null and void under art 53. Art. 36 How is psychological incapacity defined in the family code? The family code did not define the meaning of psychological incapacity. The concept is based on Canon Law, which also made no attempt to define the term. The absence of the definition will invite multifarious interpretations from different courts trying cases for declarations of nullity of marriages based on psychological incapacity. Ultimately, this will result in judicial legislation by the courts which will feel free to fill up the vacuum left in the Code. The Legislature may solve this problem either by abolishing the article or by defining the term for the guidance of our courts. The only guidance provided by the Code is that the psychological incapacity prevents the subject from complying with the essential marital obligations of marriage which is still very general. What do church precedents indicate about psychological incapacity? Considering that psychological incapacity is just lifted from the Canon law the pertinent decisions of the marriage tribunals of the Catholic Church may be used as precedents if they are not contrary to the civil law and existing civil jurisprudence. Aside from the well-known psychological cases of psychoses, psycho neuroses, and other psychic disorders, which render a party or spouse psychologically unfit to assume the essential functions and duties of marriage, the following may also be considered as causes of psychological incapacity: (1) homosexuality, (2) lesbianism, (3) satyriasis, (4) nymphomania, (5) emotional immaturity or irresponsibility, (6) epilepsy, (7) habitual alcoholism, and (8) .. this list is not exclusive. Dr. Gerardo Veloso, a former presiding judge of the Marriage Tribunal of the Catholic Archdiocese of Manila, psychological incapacity must be characterized by (1) gravity, or grave or serious such that the party cannot carry out the ordinary duties required in married life; (2) juridical antecedent that it must be rooted in the part history of the party antedating the marriage although the overt manifestations may emerge only after the marriage; and (3) it must be incurable and even if it is so, the cure is beyond the means of the party involved.
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Does psychological incapacity mean lack of consent to marry? No. Psychological incapacity has nothing to do with consent to marriage. A person might have given free and voluntary consent to a marriage (that is, his mind knew what marriage is all about and all the rights and obligations arising therefrom) but his will may not be capable of fulfilling such rights and obligations. Hence, psychological capacity is not a question of defective consent but a question of fulfillment of a valid consent. What does our learned professor say as regards to psychological incapacity? Atty. Sta. Maria stresses to look into the circumstances of each case you must not only look at the big things, but small and medium sized things as well he said with conviction on that rainy day of August. What are essential marital obligations? 1. To present children based on the universal principle that procreation of children through sexual cooperation, is the basic end of marriage. 2. To live together under one roof (art 68, Family code) for love, sexual comfort, and loyalty to one another are basic postulates of marriage 3. To render mutual help and support (art 68) for assistance in necessities, both temporal and spiritual, is essential to sustain the marriage 4. To jointly support the family (for the spouses) are joint administrator in the partnership 5. Not to commit acts which will bring danger, dishonor, or injury to each other or to the family (art 72) for the safety and security of the family at all times is a primordial duty of the spouses. Note that some marital obligations are not essential to the marriage as, for example, failure of one spouse to have recalled the wedding anniversary. It really boils down to what atty. Sta. Maria said: You may include this example as basis for psychological incapacity, but you must take into consideration the big, little, and medium sized things. Atty. Sta. Maria wont even consider support as a sole ground for psychological incapacity. Moreover, the Code Committee would like the judge to interpret the provision on a case to case basis guided by experience, the findings of experts and researches in psychological disciplines, and by decisions of church tribunals, which although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon law. What are the distinctions between psychological and physical incapacity Psychological incapacity 1. Refers to the spouses lack of willingness to perform the essential obligations in marriage although sexually potent 2. It is a ground for the declaration of nullity of a marriage for being voidable (art 45) 3. Action on this ground does not prescribe if the marriage was celebrated on or after Aug 3, 1988. If celebrated before this date, action prescribes after 10 years. (art 39) Physical incapacity 1. Refers to sexual impotence or to the physical inability of the spouse to perform the sexual act 2. Ground for annulment of marriage for being void 3. Action on this ground prescribes 5 years after the marriage (art 47 (5))
What are the distinctions between psychological and mental incapacity? Mental capacity or insanity of some kind, like physical incapacity is a vice of consent, while psychological incapacity is not a species of vice of consent. As already stated, a person might have given valid consent to a marriage but because of a psychological disorder in his makeup, he is unable to assume the essential obligations of marriage. Furthermore, insanity or mental incapacity: 1. may be of varying degrees 2. Is curable, being an illness; hence, the marriage is capable of ratification or consolidation 3. has lucid intervals 4. is a ground only for annulment of marriage in many countries Must psychological incapacity be present at the time of marriage? Yes. To be a ground for declaration of nullity of marriage, the psychological incapacity of either party to comply with the essential marital obligations must already be present at the time of the marriage although it might have become manifest only after the marriage. Case X cracked up under the responsibility of keeping with the behavior of his children as well as the general responsibility of being a parent. Was X psychologically capacitated at the time of the marriage, considering he cracked up because of his children? Answer: The Code Committee referred this situation to Gerard Healy, S.J. Father Healy said that the psychological disorder in that persons character has always been there all the time, for if having children would cause a person to crack up this world would be filled with disturbed people. Is the psychologically incapacitated person disqualified from marrying again? According to Father Healy, the Church does not impose an absolute prohibition for a person proven to have a psychological defect to marry again because he or she may get the right partner who understands his problem. He says that a person with psychological incapacity may be all right for B but not for C because the former relationship compensates while the latter aggravates the problem.
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The Committee also believes that there is no need to disqualify the psychologically incapacitated from contracting another marriage because the fact of his psychological incapacity for marriage would be revealed anyway when he applies for a marriage license for the second marriage and the other party is thus placed on guard to conduct discreet investigation about the matter. Art 37 Why are incestuous marriages void from the beginning? Incestuous marriages are universally or almost universally considered immoral and void as the contravene human nature, degrade the family and offend decency and morals. Why are marriages between collateral blood relatives up to the 4th civil degree void from the beginning for reasons of public policy? There are known deleterious effects of such marriages on the offsprings. As established by scientific researches and by experience marriages between first cousins or other close blood relatives usually result in degenerate children pr children born with organic defects like weak or retarded minds, deafness, mutism, nearsightedness, etc. What relationships are not included in Arts 37& 38? 1. Brother in law and sister in law 2. Stepbrother and stepsister 3. guardian and ward 4. adopted and illegitimate children of the adopter 5. Adopted son of the husband and adopted daughter of the wife 6. Parties who have been convicted of adultery or concubinage. Case 1 M marries W, who has daughter D. When W dies, may M marry D? Answer: No, because he is her stepfather. Case 2 G marries B. May Gs mother marry Bs father? Answer: Yes, because the law provides no impediment for them, assuming that all other requisites are present. Case 3 M adopts B, a boy. Later M marries W. Subsequently M dies. May B marry W? Answer: No because the sdopted child (B) cannot marry the surviving spouse of the adopter (M) Case 4 M adopts B, a boy. Later B marries G. Subsequently B dies. May M marry G? Answer: No, because the adopter (M) cannot marry the surviving spouse of the adopted child (B). Case 5 H and A are validly married. Later A commits adultery with P. A and P are convicted. Later, after prison, if H is already dead, may A marry P? Answer: Yes, for there is no prohibition under the law. Case 6 May a Roman Catholic priest get married? Answer: Yes, under the civil law for his being a priest is not, under our law, a disqualification. Thus, it is legally possible for such a priest to have a legitimate child. Is there need to await a judgment of conviction? It is believed that there is a need. Since the intention to marry is subject to proof, there is a need to await a judgment of conviction before we can conclude that the marriage is void. It may happen that the killer is acquitted and the intention to marry was not proven. In other words, the determination of whether the marriage is void depends upon the judgment of conviction with a finding that the motive of the killer was to kill the deceased, so he or she could marry the other. The intention to marry is the obstacle to the validity of the marriage. An exception may emerge in case an independent civil action is pursued and the purpose of the killing was established therein. Art 39 What is prescription? Prescription of action is the recognized principle in law whereby a cause of action, if not filed within the period fixed by all will no longer be entertained by a court at some future time. What is imprescriptibility? It means that the action for defense can be raised at anytime without regard to period such as when a contract is void. The Article provides for imprescriptibility of an action or defense for the declaration of absolute nullity of a marriage. Is there an exception to its imprecriptibility? The article provides for one exception which arises when a party at the time of the celebration of the marriage was psychologically incapacitated to comply with the essential obligations of married life even if the incapacity became manifest only after its solemnization. But this exception applies only if the marriage was celebrated before the effectivity of the Code. And the prescriptive period is 10 years from the effectivity or until August 3, 1988. In marriages celebrated on or after the effectiviity of the Code and there being psychological incapacity as contemplated in Art 36 the action for annulment is imprescriptible, Art 40 Considering marriages void ab initio are marriages that did not exist in the first place, why the need for a judicial declaration of nullity of marriage?
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The Code Committee believes that parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact, but must first secure a judicial declaration of the nullity of the marriage before they should be allowed to marry again. There is also sufficient jurisprudence to support this. (Weigel v. Sempio- Diy, 143 SCRA 499; Vda de Consuegra v. GSIS, 37 SCRA 315) Apparently, the old rule that where a marriage is illegal and void from its performance no judicial decree is necessary has been changed. The article is also for the protection of the spouse who, believing that his or her marriage is null and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. Art 41 What are the kinds of bigamous marriages under this article? 1. The void bigamouse marriage which is contracted by a person during the subsistence of his or her previous marriage. Here, the good faith of the party who marries again is immaterial; the second marriage would still be void. On the other hand, the person who marries again in bad faith is even criminally liable for bigamy and 2. The voidable bigamous marriage, which is contracted by a person whose spouse has been absent for 4 consecutive years (in ordinary absence) or 2 years (in extraordinary absence under art 391 of the Civil code) said person having a well rounded belief that his or her spouse was already dead, and ofter having the latter judicially declared presumptively dead in a summery proceeding as provided by this Code. What is the meaning of absent spouse under this article? Absent spouse means that the other spouse has been missing for at least 4 years, it being known whether or not he or she is still alive, and the present spouse having a well founded belief that the missing person is already dead. The period of 1 year is however reduced to 2 years if in the disappearance of the missing spouse there was danger of death as provided in Art 391 of the Civil Code namely 1. The missing person was on board a vessel lost during a sea voyage, or an airplane which is missing. 2. The missing person was in the armed forces and had taken part in war, 3. The missing person was in danger of death under other circumstances. The two year period is computed from the occurrence of the event from which death is presumed. Case H and W were Filipinos validly married in the Philippines. Later H and W went to America and obtained a divorce considered valid in Reno, the ground being mental cruelty. Subsequently H married S, a Hollywood actress, the marriage being performed in California, where the marriage was considered as valid. Later H and S came to the Philippines. Is the marriage valid and can H be successfully prosecuted in the Philippines for the crime of bigamy? Answer: The marriage is void, it being considered bigamous. The divorce is not recognized in the Philippines. But the husband cannot be convicted for the crime of bigamy for the crime, if any was committed, took place outside the territorial jurisdiction of the Philippines. In sum Requisites for the remarriage in order not to be bigamous: 1. Absent spouse must have been absent for at least 4 years consecutive years or at least for 2 years. If the disappearance fall under any of the circumstances set forth in Art 391 of the Civil code. 2. Present spouse had a well founded belief that the spouse was already dead 3. Institution of an action (summary proceeding) for the declaration of the presumptive death of the absentee 4. Favorable judgments. Art 42 What was the similar civil code provision on this? Under art 83 of the Civil Code, the second marriage contracted by a person with an absent spouse remains valid until annulled by a competent court upon the reappearance of the missing spouse, which action for annulment may be filed, according to Art. 87 by the returning spouse during his or her lifetime or by either spouse of the subsequent marriage of the present spouse, during the lifetime of the other. This however, gives rise to the anomalous situation, if nobody files said action for annulment, of the present spouse having two husbands or two wives, (the returning spouse and the second spouse) both entitled to exercise conjugal rights. The Civil code offers no solution to this situation. How was this cured by the Family Code? These complications have now been settled by the new provision by providing for the (1) automatic termination of the subsequent spouse upon the registration of the affidavit of reappearance of the returning spouse. Thus, the first marriage prevails. (2) The affidavit of reappearance may be recorded by the returning spouse or by any interested person. (3) Due notice of the recording of the affidavit of reappearance must be sent to the spouses of the subsequent marriages. Also (4) the fact of reappearance may be referred to the courts in a proper action if such fact is disputed. (5) The automatic termination of the second marriage will not apply if the previous marriage of the present spouse and the returning spouse has been annulled or declared void by the court. Note: Atty. Sta. Maria did point out once that the reason for the recording of the affidavit of reappearance was to cure the disturbance caused by the reappearance of the absentee spouse. What criticisms may arise form this solution? It may be unduly harsh and oppressive to the spouses of the second marriage who may really love each other and would like to stay married, just as it might constitute an undue imposition on the present spouse to live with the returning first spouse even if he or she does not want to do so. The Code Committee is of the opinion, however, that the automatic termination of the second marriage upon the return of the absent spouse is the better solution because if the solution is left to the present spouse he or 1D 04 15
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she may decide to keep both marriages. On the other hand, the absent spouse who returns cannot marry again if his or her spouse decides to stick to the second marriage. Or the returning spouse can even blackmail the spouses to the second marriage by threatening to annul their marriage if they do not pay off. The second marriage, on the other hand, will remain insecure and hanging, because it may be annulled by either of the parties during each others lifetime. Finally, the automatic termination of the second marriage upon the reappearance of the absent or missing spouse is a risk that the parties to said marriage knew they were taking when they entered into such marriage, so that if it does happen, they have no reason to complain. Art 43 What is the effect of the automatic termination of the subsequent marriage? 1. The children of the subsequent marriage conceived before its termination shall be considered legitimate and their custody and support shall be decided by the courts in the proper proceeding in case of dispute in accordance with the Codes provisions on custody of children and support. 2. The absolute community of property or conjugal partnership of the second marriage shall be dissolved and liquidated but if one of the parties to the marriage was in bad faith, his or her share in the net profits shall be forfeited in favor of the common children or in none, the children of the guilty spouse by a previous marriage or in default of such children the innocent spouse. 3. Donations by reason of marriage shall remain valid, but such donations in favor of the guilty spouse are revoked by operation of law. Art 44 What if both spouses acted in bad faith? The said marriage will be void an initio, and all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law. Note: By the spouses having acted in bad faith under this Article means that both spouses to the subsequent marriage knew that the absent spouse was still alive when they entered into said marriage. Art 45 What are the grounds for the annulment of marriage? 1. Lack of parental consent a. This applies to parties who, being 18 years and above but below 21 years of age, get married without parental consent. b. The marriage may, however, be ratified if the parties freely cohabit with each other upon reaching 21 years of age. Mere transient sexual intercourse is not sufficient. c. The parents can ask for the annulment of the marriage before the child reaches the age when he or she can already get married without parental consent and this right of the parents can be waived. 2. Insanity of the parties a. The marriage can be ratified by the sane partys cohabitation with the other after the latters insanity has been cured (i.e the latter has returned to reason) because insanity is sometimes curable. b. Mere mental weakness that does not deprive a party of the capacity to understand and appreciate the consequences of the step he or she is taking, does not affect the validity of the marriage, unless it amounts to psychological incapacity to perform the essential marital obligations under Art, 26 in which case the marriage may even be declared null and void. c. Intoxication which results in lack of mental capacity to give consent is equivalent is equivalent to insanity; so is somnambulism d. The insanity of one party is present at the time of the marriage, not prior or subsequent thereto, e. Since the presumption of the law is generally in favor of sanity, the burden of proof is on the party who alleges the insanity of the other. 3. Fraud not all kinds of fraud will justify the annulment of marriage, but only those enumerated in Art 46 (it is exclusive!) 4. Force, intimidation or undue influence a. Intimidation one of the contracting parties is compelled by reasonable & well grounded fear of an imminent & grave evil upon his person or property or upon the person or property of his spouse, descendants or ascendants to give his consent. b. Undue influence a person takes improper advantage of his power over the will of another, depriving the latter of reasonable freedom of choice. 5. Impotency a. This refers to lack of power to copulate, not mere sterility b. The impotency of one party must be present at the time of the marriage, must be continuous, and must appear incurable. Thus, where the impotency can be removed by surgical operation, the marriage is not annullable. c. Only the potent spouse can file the action for annulment and he or she must not have been aware of the others impotency at the time of the marriage d. Can the court assume that the wife is impotent and annul the marriage upon complaint of her husband if she refuse to submit to a physical examination to determine her potency? No. The refusal of the wife to be examined does not create a presumption of her impotency because Filipino girls are inherently shy and bashful. The trial court must order the physical examination of the girl, because without proof of impotency she is presumed to be potent. To order her to submit to a physical examination does not infringe on her constitutional right against self incrimination. e. Relative impotency: This may now be invoked as a ground for annulment under the family code. (i.e. the physical incapability of one party to consummate the marriage with the other. The Committee has decided to include relative impotency of one party as a ground of annulment of marriage because there are cases where a person is impotent with respect to his spouse but not with other men or women.
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MIDTERMS
In Art. 45 (6) the fact that one party is afflicted with a sexually transmissible disease found to be serious and appears to be incurable is a ground for annulment of marriage, whether such fact was concealed or not from the other party, as long as the disease was present at the time of the marriage. The sick party might not even have known of his own illness at the time of the marriage, but once the illness is discovered, the other party is entitled to annul the marriage on the theory that if she or he had known about it, she or he would not have contracted to the marriage. In Art 46 (3), however, the concealment of a sexually transmissible disease by the sick party from the other party which constitutes fraud that would justify the annulment of their marriage refers to any kind of sexually transmissible disease regardless of its nature; i.e., whether serious or not, or incurable or curable at the time of the marriage but did not inform the other party about it, and the latter discovers such fact only on the night after the wedding. The healthy party can annul the marriage on the ground of fraud. Case 1 A raped B, and then forced B to marry him. A had no intention at all of living with B. When A was prosecuted for the crime of rape, he offered the marriage as defense. Should A still be convicted? Answer: Yes. A should be convicted. The consent of the girl as vitiated by duress. The marriage ceremony was performed merely as a device by the accused to escape punishment. Case 2 A wife felt great pain during copulation, so an operation was made on her by a doctor with her and her husbands consent. The operation was successful but now the husband has lost all sexual desire for the wife since he was a witness to the operation and all its sordid details and because the wife is now sterile. He asked for annulment. Answer: The annulment cannot be granted because the apparent impotence of the wife was merely temporary and as a matter of fact, she is no longer impotent. Sterility is not a ground for annulment. Art 46 What constitutes fraud? 1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude 2. Concealment by the wife of the fact that at the time of the marriage she was pregnant by another man 3. Concealment of a sexually transmissible disease (must be existing at the time of marriage) or 4. Concealment of drug addiction, habitual alcoholism, homosexuality, or lesbianism (must be existing at the time of marriage) The grounds for fraud are exclusive Case X had an illegitimate child born of her after leading a lascivious life. Later she met Y; who married her not knowing of her previous life and unaware of the childs existence. When he discovered the truth, he asked for annulment. Answer: Annulment denied, since this kind of fraud is not of those contemplated by the law. Art 47 Case C, a man married B, a woman. It turned out that B was insane when the ceremony was performed. May C ask for annulment of marriage? Answer: If C knew of this insanity during the marriage ceremony he cannot bring action for annulment but if the insanity was concealed, then he may bring an action for annulment. Art 48 What will the court do in all cases of the declaration of absolute nullity of marriages? The court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. The trial or prosecuting fiscal of the court shall be ordered to appear whether the defendant appears or not. The reason for the intervention of the trial fiscal of the court at the trial of any case involving the annulment or declaration of nullity of a marriage is because marriage is not just a contract between the parties but a social institution in the preservation of which the State is interested. Case: Petitioner sued to annul his marriage. His wife did not answer nor appear. So the judge referred the matter to the city fiscal to determine whether or not collusion exists. Petitioner refused to be interrogated by the fiscal, claiming that he did not want to reveal his evidence in advance. Can the court properly dismiss the annulment suit? Answer: Yes. The court can dismiss the suit for failure of the petitioner to cooperate, resulting in the failure of the fiscal to determine whether or not collusion exists. The State is vitally interested in the preservation of the sacred institution of marriage. Art 49 Who shall take care of the support of the spouses and custody and support of their common children? 1. During the pendency of the case for annulment of marriage or declaration of nullity of marriage, the court shall provide for the support of the spouses and the custody and support of their common children, unless the parties have already agreed in writing on such matters, which agreement the court will then enforce. 2. The support of the spouses and the children during the pendency of the case shall of course come from the absolute community or conjugal properties of the spouses.
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PERSONS AND FAMILY RELATIONS 3. 4. 5.
MIDTERMS
After the annulment or declaration of the nullity of the marriage, support between the spouses shall already cease, since they are no longer husband and wife and had no more duty to support each other, but they shall continue to support their children. As to the custody of the children, the court should be guided by the best interests and welfare of said children, taking into account all relevant considerations, as well as the choice of the child over 7 years of age as to the parent he would like to live with unless the parent chosen is unfit. (art 213 (1)) No child under 7 years old shall, however, be separated from the mother, unless the court finds compelling reason to order otherwise (art 213 (2))
Art 50 What will happen if the marriage is declared ab initio of annulled by final judgment under art 40 & 45? 1. The final judgment of annulment or declaration of nullity of marriage shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of the presumptive legitimes of said children, unless such matters had already been adjudicated in previous proceedings 2. All creditors of the spouses as well as of their absolute community or conjugal partnership shall be notified of the proceedings for liquidation and should be allowed to intervene to protect their interests. 3. In the partition, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with arts. 102 and 129 a. Said house and lot shall be adjudicated to the spouse with whom the majority of the common children should choose to remain. b. Children below 7 years are deemed to have chosen the mother, unless the court decided otherwise. c. In case there is no majority (of the common children) the court shall decide taking into account the best interest of the children. Art 51 Is the delivery of the presumptive legitime compulsory? 1. If the delivery of the childrens presumptive legitimes is not made although ordered by the court, the children, or their guardians or trustees, may ask the court to enforce said judgment. 2. The delivery of the presumptive legitimes of the children shall be considered advances on their legitimes and shall not prejudice their ultimate successional rights accruing to them upon the death of either of their parents. Art 52 What should be done after the decree of annulment or absolute nullity of marriage? 1. The judgment of annulment or absolute nullity of marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded. a. In the appropriate civil registry b. In the registries of property of the places where the real properties distributed and delivered are located. 2. Third persons will not be affected and prejudiced by the aforesaid judgment unless the recording aforementioned is complied with. Art 53 What will be the effect of art. 52 is not followed? 1. Either of the former spouses may marry again only after complying with all the requirement s of the preceding art. 2. If any of them marries again without complying with such requirements, the subsequent marriage shall be null and void. Art 54 What will be the status of the children conceived or born before the judgment of absolute nullity of marriages under art. 36 & 53? (36, 52-54) 1. Children conceived or born of the subsequent marriage under art. 53 shall, however, be legitimate, although said subsequent marriage is null and void. The Committee does not want the children to suffer because of the faults of their parents. 2. Children conceived or born before the judgment of annulment of marriage under the preceding provisions shall be considered legitimate. This is because voidable or annullable marriages are valid until annulled. 3. Children of marriages that are judicially declared null and void ab initio are because illegitimate (art 165) except for children born of the void marriages under art 36 and under the immediately preceding art. 58 4. Note that there are more natural children by legal fiction under the Family Code, which classifies children only as legitimate or illegitimate. Case 1 A brother and a sister got married and had a child Maria. What is the status of the child if conceived and born before the declaration of the absolute nullity of the marriage? Answer: The child is illegitimate. Whether the child was conceived or born before the declaration of the absolute nullity of the marriage is of no moment. The marriage is void ab initio in the beginning. What is contemplated in the law is that if the child was born under circumstances provided in Art. 36, 52-54? Case 2 X married Y through fraud. Later a child Z was born. One month afterwards an action for annulment was brought by Y and after a few weeks the decree of annulment was granted. What is the status of Z? Answer: Legitimate because it had bee born previous to the annulment. Legal Separation Absolute divorce - dissolves the marriage and the parties can marry again.
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PERSONS AND FAMILY RELATIONS Legal separation or relative divorce - is only separation from bed and board but the parties remain married.
MIDTERMS
Are foreign divorces obtained by Filipinos valid in the Philippines? No. Because divorce is not allowed in the Philippines and Filipinos cannot evade Philippine law by going abroad and getting divorces there under art 15 of the civil code of the Philippines. Philippine law governs the status of Filipinos wherever they may be and even if they are abroad. Legal separation distinguished from annulment of marriage 1. In legal separation the marriage is not defective; in annulment, the marriage is defective. 2. In legal separation, the grounds arise after the marriage; in annulment, the grounds must exist at the time of or before the marriage. 3. In legal separation, the parties are still married to each other, and cannot remarry; in annulment the marriage is set aside and the parties can marry again. Art 55 When are the grounds for legal separation? Exclusive grounds!!! *to protect sanctity of marriage* 1. Repeated physical violence or grossly abusive conduct a. This may be directed against the petitioner, a common child, or a child of the petitioner. b. This ground will give relief to wives who are often maltreated or grossly insulted by their husbands. But even wives can also be guilty of grossly abusive conduct against their husbands, like constant nagging of the husband. 2. Physical violence or Moral pressure to compel the petitioner to change religion or political affiliation. This ground was included because there are known cases of a husband inflicting violence or using force on his wife to compel the latter either to follow his religion or his political affiliation. 3. Attempt to corrupt petitioner or child to engage in prostitution 4. Imprisonment of more than 6 years even if pardoned (final judgment) 5. Drug addiction or Habitual Alcoholism a. If the drug addiction or habitual alcoholism of one spouse was present at the time of the marriage and has deprived him or her of the capacity to perform the essential obligations of marriage, it can even amount to psychological incapacity under art 36 which is a ground for declaring the marriage null and void. b. If the drug addiction or habitual alcoholism is concealed from the other spouse, it also constitutes fraud which is a ground for annulment of marriage if present at the time of the marriage. (Art. 46 (4)) 6. Lesbianism or homosexuality 7. Contracting by one spouse of another marriage anywhere. (bigamy) o If the husband did not contract a second marriage but is only living with another woman, the ground will be sexual infidelity under par. 8 of this art. 8. Sexual infidelity or Perversion o This ground takes the place of the ground of adultery on the part of the wife and concubinage on the part of the husband in the Civil code. This change answers the demands of Filipino women for the elimination of the double standard between men and women, since concubinage on the part of the husband is very hard to prove (the man usually just keeps a mistress in another place but goes home to his wife every evening) while one sexual intercourse with another man is already adultery on the part of the wife. 9. Attempt by one spouse against the life of the other. a. This implies intent to kill; i.e. attempted or frustrated parricide. b. If the act of the respondent spouse is justified, as when a husband catches his wife in the act of adultery, there is no ground for legal separation. c. Likewise, if the respondent spouse acts in self defense or in defense of a child against the unlawful aggression of the other spouse, there is no ground for legal separation. d. If the act is the result of criminal negligence, the ground does not exist since there is no intent to kill. 10. Abandonment of one spouse by the other for more than one year. a. Abandonment is not mere separation but when one spouse leaves the family and the conjugal dwelling with no intention of returning (art 101) Hence, there is a complete cessation of marital relations between husband and wife, both personal and property, as well as parental relations with children. b. The abandonment must be for more than one year c. If there is only physical separation between the spouses, but they still support each other and also support and maintain the children, there is no abandonment. Art. 56 When will the petition for legal separation be denied? 1. Condonation of the offense or act complained by the aggrieved party. (after the act) 2. Aggrieved party has consented (before the act) 3. When there is connivance between parties in the commission of the offense (corrupt consenting) 4. When both parties are guilty (pari delicto) 5. When there is collusion between the parties (corrupt agreement) 6. Action already prescribed. Defenses to Legal separation 1. Condonation a. Its the forgiveness or pardon of the guilty spouse by the aggrieved spouse. b. It comes after, not before, the commission of the offense c. While there may be implied Condonation, if the innocent spouse has voluntary sexual intercourse with the guilty spouse after full knowledge of the offense, there is no Condonation if the reason for the sexual intercourse was to save the marriage and maintain harmony or for the purpose of attempting a reconciliation but the attempt was unsuccessful 1D 04 19
PERSONS AND FAMILY RELATIONS 2.
MIDTERMS
3.
4.
5.
6.
Consent a. It is prior to the act b. Where the spouses entered into an agreement that each could live with and have carnal knowledge with other persons without interference from each spouse. The agreement is null and void being contrary to law and morals but it may be considered consent which bars an action for legal separation. (People v. Schneckenburger) This is an example of express consent. c. Example of implied consent. The husband was abandoned by the wife who later lived with another man. The husband took no action against the wife but even went to Hawaii. After 7 years, the husband returned and filed an action against the wife for adultery. The wife was acquitted on the ground that the husbands conduct warranted the interference that he had consented to the philandering of his wife. Connivance a. A husband who actively connives in the adultery of his wife by luring her into adultery cannot ask for legal separation on the ground of connivance. Is it the duty of the husband to protect his wife from temptation and not connive in her downfall. b. Thus, a husband who hires a detective to spy on his wife and tells the latter to have sexual intercourse with her in order to have evidence is a case of connivance. c. But connivance must be distinguished from entrapment. Where a husband tells the wife that he is going out of town but does not really go away but goes to their conjugal home at midnight to catch the wife with a lover and later surprises the wife In the act of adultery, there is no connivance. Mutually Guilty a. This defense is based on the principle that a person must come to court with clean hands. It matters not whether it was the petitioner or the respondent who committed the first offense, or one is more guilty than the other. b. The parties being both guilty, there is no offended spouse who deserves to file the action and this is true even if one spouse has been pardoned by the other spouse but the latter has not been pardoned. Collusion a. This means that the spouses agree to make it appear in court that one of them has committed a ground for legal separation or to suppress evidence of a valid defense to such action, for the purpose of enabling the other to obtain a decree of legal separation. For example, one spouse files a case for legal separation on the ground of the infidelity of the other, and the other spouse agrees not even to answer or deny the charge, and does not also appear in court at all. b. Under art. 60 of the Code, legal separation cannot be decreed on a stipulation of facts or a confession of judgment (which can imply collusion between the parties) and the court shall order its prosecuting fiscal to take steps to prevent collusion between the parties and to take care that the evidence presented by either of them is not fabricated. Prescription of the Action a. In the case of adultery by the wife, each act of sexual intercourse is a separate act of adultery. Hence, the prescriptive period shall be computed from the last act of adultery unless there was Condonation or consent. b. Where the wife heard rumors of her husbands infidelity but did not discuss the matter with her husband, and it was only later that she confronted him and he admitted the act, the period of prescription must be computed from such admission and not from her receipt of hearsay information about her husbands infidelity.
Case X and Y, husband and wife, respectively, were legally married. Later Y abandoned X. Y lived with Z. X did nothing to interfere with the relations of his wife and her paramour. He even went to Hawaii, completely abandoning his wife Y for more than 7 years. Later X returned and charges Y and Z with adultery. Is Y guilty of adultery? Answer: Y should be acquitted because As conduct warranted the interference that in truth, as well as in fact, he had consented to the philandering of his wife. Art 57 Legal separation = 5 years prescription Until when can the aggrieved spouse file for legal separation? The period for prescription under the above article is not within 5 years from the time of the occurrence of the cause, which is long enough for any aggrieved spouse to discover the cause and to bring the matter to court. If he or she still does not file the action within said period of five years, he or she is deemed to have waived the right to file the same or to have preferred not to file the action. Art 58 Cooling off period How long will it take before an action for legal separation commence? This article is intended to give the spouse a chance to reconcile. The 6 month period after the filing of the action is a cooling off period given by law to the spouses during which their passion may subside, the offended spouse may forgive the offending spouse and reconciliation between them may take place. Art 59 When will the decree of legal separation not be granted? 1. Like all cases involving spouses and members of the same family, the courts is enjoined to take steps toward the reconciliation of the spouses and must be fully satisfied that, despite such efforts, reconciliation is highly improbable. 2. Again the purpose of this article is to see to it that all avenue for reconciliation are exhausted to prevent the breakup of the marriage, before legal separation is granted. The court muse use its morals influence over the parties and its persuasive powers to try to reconcile them. Many parties in fact go to court in the heat or anger and passion without even talking to each other about their problem, so that the court must give them opportunities for communication as well as provide them with counseling before it should heat the case on the merits. Thus it is the practice of family courts to set the case for legal separation for reconciliation conferences many times and only when they do not succeed in reconciling the spouses that they set the case for hearing on the merits.
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MIDTERMS
Art 60 How come no degree of legal separation is base upon a stipulation of facts or a confession of judgment? Legal separation cannot be granted on stipulation of facts or confession of judgment. 1. There must be proof of the ground for legal separation, not a mere stipulation or agreement of the parties that such ground exists or a confession of judgment on the part of the respondent or defendant spouse. This rule is intended to prevent collusion between the parties. 2. Rule 19 of the Revised Rules of Court also requires that in actions for annulment of marriage or legal separation, the material facts alleged must be proved and a judgment on the pleading is not allowed. 3. A decree of legal separation based on a mere stipulation of facts of the parties, without proof of such facts, is void and of no affect. 4. Proof of the facts may be either direct or circumstantial and mere preponderance of evidence is enough, unlike in criminal cases where there must be proof beyond reasonable doubt. 5. If the defendant does not answer the complaint or appear at the trial, the plaintiff or petitioner must still present his or her evidence. 6. Even if the defendant admits the allegations of the petition or the complaint, if there is evidence of the ground for legal separation independently of such admission, the decree is still valid. What the law prohibits is a judgment based solely on the defendants confession. Intervention of Trial fiscal Under the above article of the Family code, however, the court is required in every case to order its trial fiscal to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. In other words, whether the defendant answers the complaint or not, and appears at the trial or not, the trial fiscal must always be present at the trial in representation of the State, and may cross examine the witnesses and the documentary evidence presented to prevent the presentation of false evidence or the suppression of the true evidence. The fiscal can also oppose the complaint or petition through the presentation of his own evidence if in his opinion, the proof presented by the plaintiff or the petitioner is insufficient, dubious, or fabricated. Bar Question: May the court issue a degree of legal separation based upon facts stipulated by the spouses? If so, why? If not, why not? Answer: No. If the decree is based solely on the stipulation of facts. Yes. If there be other evidence of the existence of a ground for legal separation. Art 61 What are the effects of filing for a legal separation? 1. Spouses are already entitled to live separately from each other 2. Husband has no more right to have sexual intercourse & he cannot force himself upon her or else he will be charged. 3. In the absence of an agreement between the parties, the court shall designate the husband or the wife to manage the absolute community or conjugal partnership properly. 4. The court may even designate a third person to administer the properties of the couple. Art 62 What will happen during the pendency of the action for legal separation? See annotations on Art. 49 Effect of death of plaintiff or petitioner during pendency of action: 1. An action for legal separation is purely personal between the spouses. Hence, the death of one party causes the death of the action itself and the action must be dismissed. 2. It was held that the action did not survive the death of the wife. Even if the action involved property rights of the deceased wife, these rights were intransmissable; mere effects of legal separation and mere rights in expectation before the finality of the decree. Hence, they cannot survive if the plaintiff dies prior to the decree. Art 63 What are the effects of the decree of legal separation? 1. Spouse entitled to live separately, but marriage bonds are not severed: a. Parties cannot get married again to others because they are still married. If either party gets married again, he or she commits bigamy. b. Although the parties have the right to live separately from each other, the obligation of mutual fidelity remains. Hence the wife may be convicted of adultery or the husband of concubinage, if either commits any of such crimes. 2. Offending spouse disqualified from inheriting from innocent spouse by interstate succession, and provisions in his favor in will of latter revoked by operation of law. a. In short, the offending spouse cannot inherit from the innocent spouse in both testate and intestate succession. b. The offending spouse is not even entitled to the legitime. c. Even if the offended spouse forgets or fails to revoke a will in favor of the offending spouse, the will becomes ipso jure revoked (operation of law) d. The conviction of the wife of adultery does not disqualify her to inherit from the offended husband, if there is no decree of legal separation between then, for Art 1032 of the Civil Code does not make such act one of unworthiness that would render the guilty spouse incapable of succeeding from the innocent spouse. To disqualify the wife from inheriting from the offended husband, the latter must file a case of legal separation against the former.
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Support between the spouses in legal separation 1. During the pendency of the proceedings, the spouse and the children shall be supported from the properties of the absolute community of the conjugal partnership. (art. 199) 2. After the decree of legal separation, the obligation of mutual support between the spouses ceases. 3. The court may, however, order the guilty spouse of support the innocent one specifying the terms of such order, if the latter needs such support considering that they are still married. Can the wife drop the name of her husband after the decree of legal separation? No, because they are still married. And this is true whether she is the guilty part or not. Art 64 What will happen after the finality of the decree of legal separation? Donations propter Nuptias between the spouses: 1. The innocent spouse may revoke donations made by him or her in favor of the offending spouse with 5 years from such finality. 2. Is shall be recorded in the registries of property in the place where the donated properties are located. 3. Alienations encumbrances and liens registered in good faith before the recording of the complaint for revocation in the registries of properties shall be respected. Note that donations propter nuptias by the guilty spouse are not automatically revoked after the decree of legal separation. The innocent spouse has to file an action to revoke and if he or she does not do so, within the prescriptive period the action cannot be filed anymore. Furthermore, if the innocent spouse dies without filing the action, the donation sits. Insurance policies with guilty spouse as beneficiary 1. The innocent spouse may also revoke any insurance policy where the guilty spouse has been designated as a beneficiary after the decree of legal separation has become final. 2. There is no prescriptive period for the innocent spouse to revoke insurance policies in favor of the guilty spouse. He or she may do so as long as the policy is effective. Art 65 What will happen if the spouse reconciled? 1. 2. On their personal relations: a. Reconciliation means resumption of cohabitation and marital relations. b. It is a bilateral act requiring the common consent of the spouses express or implied. On the proceedings for and decree of legal separation: a. If the proceeding are still pending, they will be terminated in whatever stage. b. If there is already a decree of legal separation, it will be set aside by a court order to the affect. c. The court order setting aside the decree of legal separation shall be recorded in the civil registry where said decree of legal separation shall be recorded in the civil registry where said decree was entered as well as the civil registry of the place where the parties reside, if they have changed residence after the decree. On the property relations of the spouses. a. Under the Civil code, the reconciliation of the spouses results in the automatic revival of their conjugal partnership or other property regime that prevailed between them prior to the legal separation (art. 108 (2)) without prejudice to acts and contracts executed by the spouses during their separation. (art 195) b. If the spouses agree to revive their former property regime, they shall execute an agreement under oath specifying: i. The properties they are contributing anew to the restored regime ii. The properties retained by each spouse as separate property and iii. The names and addresses of all known creditors of each spouse the amounts owing to each, and the liens held by each if any. c. Copies of the agreement and the motion shall be furnished the creditors named in the agreement. d. After due hearing, the court shall issue an order approving the agreement but it shall take measure to protect the interests of the creditors named therein. e. The court order approving the parties agreement shall be recorded in the proper registries of property in all the places where the spouses have properties. This recording is in addition to the recording of the order setting aside the decree of legal separation in the civil registry where the decree of legal separation is recorded as well as in the place where the parties reside, if they have changed residence. In other words, there will be double recording; in the proper registries of property and in the proper civil registries. f. The recording of the said order shall not, however, prejudice creditors not listed or not notified of the proceeding, unless the debtor-spouse has sufficient separate properties to satisfy the claims of such creditors. In other words, the revival of the old property regime between the parties is without prejudice to vested rights already acquired by creditors in favor of unsecured creditors. Thus: i. Contractual lien holders retain their liens ii. Creditors without liens are given a legal lien iii. In case of insufficiency of properties of the debtor-spouse with which to pay his or her creditors, the future share of said spouse in the community or conjugal properties will answer for his personal obligations.
3.
Art 68 What are the personal obligations of the spouses to each other? 1. To live together 2. To observe mutual love, respect, and fidelity 3. To render mutual help and support
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Duty to live together 1. The duty to live together includes cohabitation or consortium and sexual intercourse. a. The right to sexual intercourse involves normal intercourse. Thus the wife may refuse to have sexual intercourse with the husband if he resorts to abnormal or perverted practices. (Art 55) b. The wife can also refuse to have sexual intercourse with the husband is she is ill, if it would endanger her health, or if he is suffering from some venereal disease. 2. The wife has the duty to live with her husband but she may refuse to do so in certain cases like a. If the place chosen by the husband as family residence is dangerous to her life b. If the husband subjects her to maltreatment or abusive conduct or insults making common life impossible. c. If the husband compels her to live with his parents but she cannot get along with her mother in law and they have constant quarrels. Case If the wife abandons the conjugal home without justifiable cause, can the husband compel her to come home under pain of contempt of court? Answer: No. Because cohabitation is purely personal obligation and to compel the wife to comply with such obligation would be a violation of her personal liberty which is guaranteed by the Constitution But the husband has the following remedies: 1. To withhold support from the wife (Art 100(1) and 123(1)) 2. To recover moral damages from the wife 3. To ask the Court to counsel his wife under Art 72 Art 69 Who will fix the family domicile? 1. It is no longer the sole prerogative of the husband to fix the family domicile. It must be a joint decision of the spouses, and in case they disagree, the court shall decide. 2. Once the matter is decided by the spouses a. If one of the spouses should live abroad b. There are other valid and compelling reasons 3. The court may likewise exempt the wife from living if the latter is just in the Philippines, b. from the family home. Art 70 Who shall be responsible for the support of the Family? The spouses are jointly responsible for the support of the family. And this is so because they are now joint administrators of community or conjugal property. * Sorry only half of the page was photocopied kasi. Such support shall be satisfied in the following: 1. From the community property or conjugal partnership. 2. From the income or fruits of the .. spouses 3. Third, from the separate properties of the spouses. Art 72 What will happen when on spouse neglects his duties to .. 1. This article cover both cases of: a. Either spouse neglecting his or her duties b. Either spouse committing act which tend to . Injury to the other or to the family 2. The injury contemplated by this Art is no. physical, moral, emotional , or psychological a. If the wife spends all her time are the ca. neglecting the home and the children b. If the husband keeps on drinking and the. Come home c. If the wife refuses to live with her reason. Property Relations between husband and wife Art 74 What property relations shall govern between husband and wife? In the following order: 1. Marriage settlements executed before the marriage 2. Provisions of the Code 3. Local custom. Theory of the Law on Property Relations of Spouses The law gives the parties the freedom to determine before the marriage what property regime would govern their marriage. Only if they do not enter into a marriage settlement would the provisions of the Family Code on absolute community regime apply between them. Meaning of Marriage settlement By marriage settlement which is also called antenuptial agreement is meant a contract by a man and a woman who intend or plan to get married fixing the property regime that will govern their present and future properties during their marriage.
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MIDTERMS
Art 75 What are the property regimes that may be agreed upon in the marriage settlements? 1. The future spouses may, in their marriage settlement agree on: a. The regime of absolute community b. Conjugal partnership of gains c. Complete separation of property d. A combination of the above regimes e. Any other regime like the dowry system, whereby the female before the marriage delivers a dowry or property to the male to help out in the marriage obligations, but at the end of the marriage, the property or its value must be returned. 2. Whatever be the regime agreed upon, it just, however, not be contrary to law, morals, good customs, public order, or public policy (art 1306, civil code) 3. The marriage settlement can provide in a general way for the regime or combination of regimes what the parties want, but once a regime is chosen all properties are governed by that regime. The parties cannot exclude specific properties from the regime. 4. To eliminate doubt, the parties must identify their specific properties in their marriage settlements by their titles. Art 76 Examples of provision in the marriage settlement that are void: 1. A provision prohibiting any party from marrying another 2. A provision that the spouses will live separately 3. A provision imposing a fine for infidelity 4. A provision depriving either party from asking for legal separation when there is a ground to do so; 5. A provision prohibiting the survives will manage the community or conjugal properties 6. A provision that a third person will manage the community or conjugal properties 7. A provision that all the properties of the wife will belong to the husband (this is contrary to Art 84 providing that the future spouses cannot donate more than 1/5 of their present property to the other and if one does, the excess is void.) When can a modification in a marriage settlement be made? 1. To be valid, any modification in the marriage settlement must be made before the marriage 2. Any extra judicial agreement between the spouses separating their properties is void. Art 77 What are the steps in drafting a marriage settlement? Form of the marriage settlement: 1. As between parties a. Must be in writing (maybe private or public instrument) b. Must be signed by the parties c. Must be executed before the marriage d. If a party executing the settlement needs parental consent for the marriage, the parent or guardian whose consent for the marriage is needed must be made a party to the agreement (art 78) e. If a party executing the settlement is under civil interdiction or any other disability (like deaf-mutism, prodigality, etc. but not insanity), the guardian appointed for the court may be made a party to the settlement. 2. In order to affect third persons: a. All the above requirements as between parties b. The marriage settlement must be registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. Hence a private instrument will not suffice. The agreement must be in a public document, or the same cannot be registered. Why is there a need for registration? The marriage settlement does not only affect the parties but also affects third persons who may enter into contracts or either of them. Hence, third persons should know what property regime governs the property relations of the spouses. If the marriage settlement is not registered, it will not prejudice third persons, and the absolute community regime will apply as to them. Can either party compel the other to reduce the marriage settlement into a public document? Yes. Since it is already required to be in writing. If, therefore, it is already in a private document, either party may compel the other to reduce the same into a public document so that it can be registered in order to affect third persons. Art 78 May a minor get into marriage settlements? 1. The minor referred to is one who can get married with parental consent; that is, one who is at least 18 but below 21 years old, whether male or female. 2. The parent or guardian who is required to the marriage of the minor must actually be made a part to the agreement otherwise, the marriage settlement of the minor is void 3. By being a party to the agreement means that the parent or guardian must also sign the same. Hence, if he or she was present but did not sign the agreement, said agreement is void. 4. The idea in requiring the parent or guardian to be made a party the agreement is to give him or her the opportunity to participate in the discussion as to what the agreement shall contain. One of the parties being a minor, the presumption is that he cannot take care of his own interests and needs the help of his parent or guardian 1D 04 24
PERSONS AND FAMILY RELATIONS 5.
MIDTERMS
6.
The participation of the parent or guardian in the agreement is to capacitate the minor to enter into the same and not for the purpose of imposing a liability on said minor. If there is no parent or guardian, the person exercising substitute parental authority over the minor should be the one to participate and sign the marriage settlement with him.
Art 79 What will happen if a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any disability entered into a marriage settlement? 1. If the judicial guardian of the person under disability or under civil interdiction does not sign the marriage settlement, as a party thereto, the marriage settlement is void. 2. By the phase other disability: means other person who may enter into a marriage even under some disability, like deaf-mutes, spendthrifts, or insolvents, but not insanes since they cannot contract marriage even with the consent of their parents or guardians. Art 80 Exceptions to the application of Philippine Law where there is conflict of laws 1. Where both parties are aliens. ( In this case, their national law will apply) 2. With respect to the extrinsic validity of contract over properties located abroad and executed in the country where the property is located (In this case, the extrinsic validity of the contract will be governed by the lex situs or the law of the country where the property is situated. 3. With respect to the extrinsic validity of contract over properties locate abroad, even if the contract is entered into in the Philippines, in ones where the law of the countries where the properties are located require different formalities for their extrinsic validity. (Again the lex situs, applies in these cases. Art 81 1. 2. Reasons for rule: Since the marriage settlement is only an accessory contract dependent for its existence on the intended marriage of the parties, if such marriage does not take place, the marriage settlement will become void and ineffective except stipulations therein that do not depend upon the celebration of the marriage for their validity. Example of exception: Recognition of an illegitimate child in the marriage settlement Definitions propter nuptias are also rendered void under the above provision if the --------- does not take place. Under the Civil code, such donations are not automatically revoked by the non-celebration of the marriage, but still need to be revoked by the donor under Art. 132 (2)
3.
Donations by reason of marriage Art 82 What are the requisites of donations propter nuptias? 1. Must be made before the celebration of the marriage 2. Must be made in consideration of the marriage 3. Must be made in favor of one or both of the future spouses What are excluded from donation? 1. Ordinary wedding gifts, which are give to the spouse after the celebration of the marriage 2. Donations made in favor of future spouses made before the marriage by not in consideration thereof 3. Donations made in favor of persons other than the spouse (like the parents of the female of children of one spouse by the previous marriage) even though they may be founded on the intended marriage. Art 83 What are forms of donations propter nuptias? 1. Under the able art., the form of donations propter nuptias follows those of ordinary donations, including oral donations, as established in Title III of Book III of the Civil code on donations. 2. The above article amends art 132 of the Civil code which provides that the form of donations propter nuptias shall be regulated by the Statute of Frauds. Art 84 What is the limitation to donations of present property? 1. Limitation does not apply if the property relations of the future spouses will be governed by the system of absolute community of property , since all the properties of the parties (only with certain exceptions) will become absolute community anyway. 2. But if the future spouses agree on a regime other that the absolute community of property, they cannot donate to each other in their marriage settlements more than 1/5 of their present property. Any excess shall be considered void. Note: Donations propter nuptias of future property shall, however, be govered by the provisions on testamentary succession and the formalities of wills. Hence, they are revocable, unlike donations of present properties in the marriage settlement which cannot be revoked except if the marriage does not take place since marriage settlements modified much less revoked after the marriage. Case: The future spouses donated to each other in their marriage settlements of their respective properties. Will the donation be reduced? Answer: If the property regime is that of absolute community, no deduction will be made, otherwise, the donations will be reduced to 1/5. Art 85 Can a property which is subject to encumbrance be donated by reasons of marriage? 1D 04 25
PERSONS AND FAMILY RELATIONS Yes.
MIDTERMS
a.
b.
In case of foreclosure of the encumbrance and the property is sold for less than the amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of the obligation the donee shall be entitled to excess.
Case A parcel of land mortgaged for P100,000 in favor of a bank, was donated to a future bride. Unfortunately, the donor0debter was unable to pay the mortgage debt when it matured and th lad was sold during the foreclosure sale. If the selling price is different from the debt of P100,000, what happens is case of a deficiency or excess? Answer: The donee shall not be liable for the deficiency but in case of an excess, said donee is entitled to said excess. Art 86 What are grounds for the revocations of donations propter nuptias? 1. If the marriage is not celebrated. (If, however, the donation is made in a marriage settlement, there is no need to revoke the same if the marriage does not take place because under Art 81, the donation is automatically rendered void.) 2. If the marriage is judicially declared void ab initio. But if the donee acted in bad faith and the donor is the other spouse, there is no need for an action for revocation because the donation is revoked by operation of law. (art. 50 in relation to art 43) 3. When the marriage takes place without the consent of the parents or guardian as required by law 4. When the marriage is annulled and the donee acted in bad faith, but id the donor is the other spouse, the donation is again revoked by operation of law 5. Upon legal separation, the donee being the guilty party 6. If the donation is with a resolutory condition and the condition is complied with 7. When the donee has committed an act of ingratitude as specified by the provisions of the Civil code on donations in general. Art 87 Donations void under this article 1. Donations between the spouses during the marriage 2. Any grant of gratuitous advantage between the spouse during the marriage, direct or indirect like: a. Donation to a step child or a child of the other spouse by another marriage, since if the child dies, the other spouse inherits the property donated. b. Donation to a person of whom the other spouse is a presumptive heir at the time of the donation, as a donation to a brother of the other spouse. What are the reasons for the prohibition of donation between spouses? 1. To prevent the next spouse from being influence by the stronger spouse, whether by abuse of affection or by threats or violence 2. To protect creditors 3. To prevent an indirect modification of the marriage settlement during the marriage, which is not allowed. Art 76 Who may question the validity of a donation? 1. Only any person prejudiced thereby, like the donor or his heirs. 2. In one case, the husband donated an automobile to his wife, who insured it for P3,000. Later, the car was completely destroyed and the wife sought to collect from the insurance company the indemnity. But the latter claimed in defense that the wife had no insurable interest in the car, its donation to her by her husband being void. Held: The insurance company cannot challenge the donation, since it had no rights or interest in the car in question, remote or inchoate. Does the prohibition also apply to parties living together without the benefit of marriage? The prohibition applies, under the second sentence of the above article, even to parties living together as husband and wife without a valid marriage, as: 1. In common law marriage 2. Parties living in a state of adultery or concubinage What are the exceptions to the prohibitions? Moderate gifts which the spouses may give each other on the occasion of any family rejoicing. a. To determine whether a gift is moderate or not, the social position of the family, its financial condition, its usages and customs and other circumstances of the parties should be considered. b. A car may be a moderate gift, depending on the circumstances (Harding vs. Commercial Union Ass. Co., supra) SYSTEM OF ABSOLUTE COMMUNITY Regime of Absolute Community Explained: In this regime, the husband and the wife are co-owners of all the properties that they bring into the marriage and those acquired by each or both of them during the marriage (except for those expressly excluded by Art. 92 of this Code), which properties upon the dissolution of the dissolution of the marriage, the spouses or their heirs will divide equally. While in the conjugal partnership of gains, only the net profits of the partnership are divided between the spouses, in the absolute community, the entire common mass of properties is divided between them, each spouse losing the ownership of the properties brought into marriage.
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MIDTERMS
WHEN WILL THE REGIME OF ABSOLUTE COMMUNITY OF PROPERTY BETWEEN SPOUSES COMMENCE?
1. 2.
3.
Under Art. 145 of the Civil Code, the conjugal partnership between the spouses shall commence precisely on the date of the marriage, and any stipulation to the contrary shall be void. Said provision of the Civil Code, is however, inaccurate, because the property relations of the spouses do not begin on the date of the date of the marriage but on the precise moment or actual time the marriage is celebrated on a certain date. Thus, if the marriage is solemnized in the afternoon or evening on a certain date, the system of absolute community actually commences at the precise moment of the wedding that afternoon or evening and not before.
ARTICLE 89 WHY IS THERE A PROHIBITION ON WAIVER OF RIGHTS? To avoid undue influence exerted by one spouse on the other. Waiver by one spouse is, however, allowed in the following cases: 1. 2. With the marriage subsisting, in case of a judicial separation of property, which includes the dissolution of the absolute community or conjugal partnership as a result of legal separation. In case the marriage is dissolved (by death of one of the spouses) or annulled.
In the above cases, 1) the waiver must appear in a public instrument (an oral waiver is void.) and 2) the waiver must be recorded in the office of the local civil registration where the marriage contract is recorded and in the proper civil registries of property. 3. 4. Creditors of the spouse who made the waiver may, however, petition the court to rescind the waiver to the extent of the amounts sufficient to cover their credits. This provision is limited to voluntary waivers, the reason being to avoid undue influence between the spouses, and does not, therefore, affect judicial transfers.
Art 90 Rules on co-ownership are suppletory to the provisions of this Chapter on the system of absolute community of property between the spouses. Art 91 What constitutes community property? Unless otherwise provided in this chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. The spouses have no option to exclude specific properties from the community (unless provided for in the marriage settlement) Art 92 Properties excluded from the community 1. Properties acquired by either spouse during the marriage by gratuitous title: a. By gratuitous title means by donation or testates or interstate succession b. The fruits and income of the property acquired by donation or succession are also excluded. c. Exception When the donor, testator, or grantor has expressly provided in the donation will or grant that the property shall form part of the community of property of the spouses. 2. Properties for the personal and exclusive use of either spouse except jewelry a. A car, although belonging to the one spouse before the marriage will become community property because it can be used by both spouses; use is not exclusive. b. Jewelry form part of the community because they are valuable and expensive. 3. Properties acquired before the marriage by either spouse who has legitimate descendants by the former marriage, and the fruits as well as the income, if any, of such property. This rule is intended to protect the rights of the legitimate children and descendants of the first marriage. Art 93 What is presumed to belong to the community property? Property acquired during the marriage is presumed to belong to the community; unless it is proved that it is one of those excluded there from. 1. The presumption applies to all properties acquired during the marriage. Therefore, in order that the presumption can be invoked, the proper must be shown to have been acquired during the marriage. 2. The presumption is rebuttable only by strong, clear and convincing evidence. 3. The presumption is stronger when creditors of the spouses are involved then when only the spouses or their successors in interest are involved. 4. The presumption is not rebutted by the mere fact that the deed of sale of certificate is in the name of only one spouse 5. The presumption does not apply to properties excluded from the absolute community under Art 90.
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