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EFFECT AND APPLICATION OF LAWS

The Civil Code took effect on August 30, 1950.
EFFECTIVITY OF LAWS (Art. 2)
General Rule: Laws take effect after 15 days following the completion of its publication in the Official
Gazette or in a newspaper of general circulation (EO No. 200).
The law shall take effect on the 16 th day because in counting the period, the first day is excluded
and the last day included (Art. 13, NCC).
No one shall be charged with notice of the statutes provision until publication is completed and
the 15 day period has expired.
Exception: Unless otherwise provided by the law (EO No. 200).

The exception refers to the 15-day period only and not the requirement of publication.

Publication is indispensable, absence of which will not render the law effective (Taada vs.
Tuvera GR No. L-63915, December 29, 1986)
Rules on Period Provided by Statute
1. Shorter/longer period than the 15-day - such period as provided in the statute shall prevail.
2. Takes effect immediately - it shall take effect immediately after publication with the 15-day
period being dispensed with (Taada vs. Tuvera G.R. No. L-63915, December 29, 1986).
3. No provision as to its effectivity - it takes effect 15 days following its publication.
Coverage (PLAC3E)
1. Presidential Decrees
2. Laws which refer to all statutes, including local and private laws
3. Administrative Rules and Regulations where purpose is to enforce/implement existing law
pursuant to a valid delegation
4. Charter of a City
EXECUTIVE COMMITTEE:
MANOLO ADEL SANTOS overall chairperson, KRISTINE ANNABELLEE HIPOS chairperson for academics, MINISTER
MOISES DU chairperson for hotel operations, EZEKIEL JOSHUA VILLENA vice-chairperson for operations, RYAN
DARYL PINEDA vice-chairperson for secretariat, DJOANIVIE JOMARE JUNASA vice-chairperson for finance, MARIE
MICAELA STA. ANA vice-chairperson for edp, DIOXENOS SULIT vice-chairperson for logistics
SUBJECT COMMITTEE:
CATHERINE FLORES subject chair, CAMHELLA SANDOVAL assistant subject chair, JEZREEL CARIDAD TAGUBA
edp, NOEL BURTON persons and family relations, AYLA HERAZADE SALENDAB property, KRISTINE PAULA CHU
and RIO ROSE SANTOS wills and succession, CHERRYLYN NAVARRA and RAMIILA QUINTO obligations and
contracts, THOMAS ANGELO SANTOS sales and lease, SOHAIRA DIMNATANG partnership, agency and trust,
LEANA MAE BLASCO credit transactions, CELESTINO VIERNES, JR. torts and damages, GENEVIEVE SEVIDAL land
titles and deeds, JOHN SAGABAEN conflict of laws
MEMBERS:
Alfredo Francisco Brettana, Alysse Adao, Angela Paminter, Angela Punzalan, Anthony Villamor, Arjay Manauis,
Arjel De Guzman, Avril Gamboa, Benjamin Estolas, Beverly Quintos, Cadilyn Bedol, Carissa Eano, Cecille
Benitez, Cerizar Torio, Charlotte Lyza Sayson, Chino Ramos, Christian Joy Ocampo, Cindy Villareal, Crystal Faith
De Torres, David Evelio Valencia, Denise Concepcion, Don Calugay, Donna Frances Ylade, Dorothy Kate
Punzalan, Emmanuel Jefferson Santiago, Erwin Legazpi, Eva Banzon, Farrah Mala, Felwin Rau Eltanal, Fernando
Tullao, Flocerfina Lloren, Garizaldy Anteola, Gideon Pea, Grace Del Rosario, Harold Talledo, Hera Aiza Barona,
Irene Lipat, Irir Fatima Cero, Irwin Pea, Isabel Suzara Zulueta, Jamella Anne Marie Joya, Jay Nieva, Jenno
Antonio Villanueva, Jerico Galvez, Jerzy Torres, Jhony Martin Alba, Joanna Marie Paguio, John Carlo Gil Sadian,
Karen Kaye Go, Karlo Dialogo, Katrina Daniela Chavez, Kelvin Brian Pe, Laurie Pe, Lendell Lota, Lorene Pe, Ma.
Buenafe Carandang, Ma. Elena Saludes, Ma. Louise Aviso, Mabelle Palay, Mae Lane Ong, Marife Andal, Mary
Eileen Ang, Mary Jane Perez, Naomi Abrejera, Narseen Love Joy Balajadia, Neo Valerio, Nino Martin Cruz, Norly
Villanueva, Paola Rodriguez, Patrick Maglinao, Peter Glen Vinluan, Peter Labuguen, Peter Vinluan, Pia Callueng,
Ralph Paguia, Ramona Diozo, Raymond Romano, Reinalee Susan Calvez, Roju Santino Ilagan, Ronald Ryan
Suarez, Simon Simon, Stacy Cunanan, Trixy Comia, Uelah Cangco, Vanessa Guinto, Vanessa Jacob, Victoria
Panganiban, Walter Fernandez, Wendy Lynne Hernandez- Magallanes, Zenaida Razon

5. Circulars issued by the Monetary Board where purpose is not merely to interpret but to fill in the
details of the Central Bank Act
6. Circulars and Regulations which prescribe a penalty for its violation (People vs. Que Po Lay, G.R.
No. L-6791, March 29, 1954)
7. Executive Orders (Taada vs. Tuvera G.R. No. L-63915, December 29, 1986).
Publication not Required (I L)
1. Interpretative regulations and those internal in nature, regulating only the personnel of the
administrative agency.
2. Letters of Instructions issued by administrative superiors on rules/guidelines to be followed by
subordinates in the performance of their duties (Taada vs. Tuvera, ibid).
Note: Date of effectivity of Municipal Ordinances is NOT covered by this rule but by the Local
Government Code. (Taada vs. Tuvera, supra).
IGNORANCE OF THE LAW EXCUSES
NO ONE (Art. 3)
Conclusive Presumption every person is presumed to know the law even if they have no actual
knowledge of the law.

Applies only to mandatory and prohibitory laws.

Does not apply to foreign laws because there is no judicial notice of such foreign laws; it must be
proved like any other matter of fact (Ching Huat vs. Co Heong L-1211, January 30, 1947).

Note: Mistakes in the application or interpretation of difficult or doubtful provisions of law may be the
basis of good faith and has been given the same effect as a mistake of fact, which may excuse one
from the legal consequences of his conduct (Art. 526, 2155, NCC).

NON RETROACTIVITY OF LAWS (Art. 4)

General Rule: No retroactive effect.
Exceptions: (P2UT NICE)
1. Tax laws when expressly declared or is clearly the legislative intent (Cebu Portland Cement vs.
Coll. G.R. No. 18649, February 27, 1965)
2. Interpretative statutes
3. Procedural or Remedial
4. Curative or Remedial statutes
5. Emergency laws
6. Laws creating new rights (Bona vs. Briones G.R. No. L-10806, July 6, 1918; Bustamante et al. vs.
Cayas, G.R. Nos. L-8562-8563, December 17, 1955)
7. Unless the law otherwise provides
8. Penal laws favorable to the accused.
Exceptions to the Exception: (EI)

1. Ex Post Facto Laws

2. Laws that impair obligation of contracts (Asiatic Petroleum vs. Llanes, G.R. No. L-25386, October
20, 1926)

ACTS CONTRARY TO LAW (Art. 5)

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General Rule: Acts contrary to mandatory or prohibitory laws are VOID.
Exceptions: (PAVE)
1.

The law makes the act valid but punishes the violator (ex. Marriage solemnized by a person
without legal authority)
2.
The law itself authorizes its validity (ex. Lotto, sweepstakes)
3.
The law makes the act only voidable (ex. Voidable contracts where consent is vitiated)
4.
The law declares the nullity of an act but recognizes its effects as legally existing (ex. Child
born before annulment of marriage is considered legitimate)

WAIVER OF RIGHTS (Art. 6)

General Rule: Rights can be waived.
Requisites for a valid waiver: (CUECF)
1.
2.
3.
4.

Full capacity to make the waiver.

Waiver must be unequivocal
Right must exist at the time of the waiver
It must not be contrary to law, public policy, morals or good customs or prejudicial to a third
person with a right recognized by law.
5.
When formalities are required, the same must be complied with.
Exceptions: (CPEN)
1.
2.
3.
4.

Waiver is contrary to law, public order, public policy, morals or good customs;
If the waiver is prejudicial to a third party with a right recognized by law.
Alleged rights which really do not yet exist, as in the case of future inheritance
If the right is a natural right, such as right to be supported.

JUDICIAL DECISIONS FORM PART OF THE

LEGAL SYSTEM or DOCTRINE OF STARE
DECISIS (Art. 8)
DOCTRINE OF STARE DECISIS enjoins adherence to judicial precedents and is based on the
principle that once a question of law has been examined and decided, it should be deemed settled
and closed to further argument.
Judicial decisions, although in themselves not laws, assume the same authority as the statute itself
(People vs. Licera G.R. No. L-39990, July 2, 1975).

No publication required, binding on parties after the lapse of appeal period, and will bind all future
cases with identical facts, until reversed by SC.

They are part of the law as of the date of the enactment of said law because the Supreme Courts
interpretation merely establishes the contemporaneous legislative intent that the construed law
purports to carry into effect (People v. Licera G.R. No. L-39990, July 2, 1975).
HOWEVER, when a doctrine is overruled and a different view is adopted, the new doctrine should be
applied prospectively and should not prejudice parties who relied on the old doctrine (People v.
Jabinal G.R. No. L-30061, February 27, 1974).
CUSTOMS (Arts. 11 and12)

Rules of conduct formed by repetition of acts uniformly observed as a social rule. They are legally
binding and obligatory.
General Rule: Customs must be proved as a fact according to the rules of evidence.
Exception: A court may take judicial notice of a custom if there is already a decision rendered by the
same court recognizing the custom.
Requisites to Make a Custom an Obligatory Rule: (P2TO)
1.
2.
3.
4.

Plurality or repetition of acts;

Practiced by the great mass of the social group;
Continued practice for a long period of time;
The community accepts it as a proper way of acting, such that it is considered as obligatory
upon all.
RULE ON PERIODS (Art. 13)

1.
2.
3.
4.
5.
6.

Years - 365 days, unless year is identified

Months - 30 days, unless month identified
Days 24 hours
Nights-sunset to sunrise
Calendar week Sunday to Saturday
Week Count 7 days as indicated, not necessarily Sunday to Saturday
To count the period, first day is excluded, last day is included.
Exception: Rule does NOT apply to computation of age; each year is counted based on birth
anniversary.

Policy if the Last Day is a Sunday or a Legal Holiday:

1. If the act to be performed within the period is prescribed or allowed (1) by the Rules of Court, (2)
by an order of the court, or (3) by any other applicable statute, the last day will automatically be
considered the next working day.
2. If the act to be performed within the period arises from a contractual relationship, the act will
become due despite the fact that the last day falls on a Sunday or Holiday.
Applicable Laws
1. Penal Laws and laws of public security (Article 14)
Territoriality rule governs regardless of the nationality but subject to principles of international law
and to treaty stipulations.
2. Laws relating to family rights and duties, or to status, condition and legal capacity of
persons.
Nationality rule applies regardless of their place of residence.
Exception: Divorce validly obtained abroad by alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under Philippine law. (Article 26 (2) Family
Code)
3. Laws on property (real and personal)
Lex Rei SItae: The law of the country where the property is situated shall govern property
transactions. (Article 16 (1))
Exception: Order and amount of successional rights, intrinsic validity of testamentary provisions,
and capacity to succeed governed by the national law of decedent. (Article 16 (2))

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4. Laws on forms and solemnities
Lex Loci Celebrationis: Forms and solemnities of contracts, wills, and other public instruments
(extrinsic validity) shall be governed by the laws of the country in which they are executed. (Article
17)
Exceptions:
a. Marriage between Filipinos solemnized abroad shall be void though valid abroad when void
under Philippine laws. (Article 26(1) FC)
b. Intrinsic Validity of Contracts: Validity is determined by the following rules:
i. The law stipulated by the parties shall be applied;
ii. In default thereof, and the parties are of the same nationality, their national law shall be
applied;
iii. If the parties are not of the same nationalities, the law of the place of the perfection of the
obligation shall govern its fulfillment;
iv. If the above places are not specified and they cannot be deduced from the nature and
circumstances of the obligation, then the law of the passive subject shall apply.
Lex Nationalii
Art. 15, CC

Lex Rei Sitae

Art. 16, CC

Lex Loci Celebrationis

Art. 17, CC

Citizenship is the basis for

determining the personal law
applicable

Law of the place where the

property is situated is the basis for
determining law applicable

Law of the place where the contract was

executed is the basis for determining law
applicable

Covers family rights and

duties, status, condition and
legal capacity of persons.

Covers both real and personal

property

Covers only the forms and solemnities

(extrinsic validity)

Exception:

Exceptions:

Exceptions:

Art. 26, par. 2 of Family

Code

(CIAO)

1.
2.

Art. 26, par. 1 of Family Code

Intrinsic validity of contracts

Capacity to succeed
Intrinsic validity of the will
Amount of successional
rights

Order of succession

Rules on Personal Law: Domiciliary Rule and Nationality Rule Distinguished

Domiciliary Rule

Nationality Rule

Basis for determining personal law of an individual is his Basis for determining
DOMICILE
CITIZENSHIP

personal

law

is

his

5. Renvoi Doctrine: Occurs when a citizen of another country dies as a domiciliary of another
country. Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to
the internal law, the law of the forum shall apply.
Transmission Theory: If the foreign law refers it to a third country, the said countrys law shall
govern.
6. Doctrine of Processual Presumption
The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise,
such law shall be presumed to be exactly the same as the law of the forum.
Rule on Prohibitive Laws

General Rule: Prohibitive laws concerning persons, their acts or property, and laws which have for
their object public order, public policy or good customs are NOT rendered ineffective by laws, or
judgments promulgated or by determinations or conventions agreed upon in foreign country. ( Art.
17(3))

Exception: Art. 26, par. 2 Family Code (ex. Divorce Law)

HUMAN RELATIONS
ABUSE OF RIGHT (Art. 19)
Elements: (LEP)
1. Existence of a legal right or duty;
2. Which is exercised in bad faith;
3. For the sole intent of prejudicing or injuring another.
Doctine of Violenti Non Fit Injuria (to which a person assents is not esteemed in law as injury)
refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by
one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing
so (Nikko Hotel Manila Garden, et all vs. Roberto Reyes (Amay Bisaya) G.R. No. 154259, Feb. 28,
2005).
Damnum Absque Injuria (damage without injury) A person who exercises his legal right does no
injury. HOWEVER, it cannot be said that a person exercises a right when he unnecessarily prejudices
another or offends morals or good customs.

When damages result from a persons exercise of rights, it is damnum absque injuria (ABS-CBN
v. Republic Broadcasting Corp. G.R. No. 128690, January 21, 1999).

ACTS CONTRARY TO LAW (Art. 20)

Every person who is criminally liable shall also be civilly liable, whether the act is intentional or
unintentional.
ACTS CONTRA BONUS MORES (Art. 21)

Elements: (L-C-I)
1.
2.
3.

There is a legal act;

But which is contrary to morals, good customs, public order or public policy; and,
It is done with intent to injure.

Articles 19, 20 and 21 are related to one another and under these articles, an act which causes injury
to another may be made the basis for an award of damages (Albenson Enterprises Corp. v. CA, G.R.
No. 88694, January 11, 1993).
Articles 19 and 21 refer to INTENTIONAL acts while Article 20 pertains either to WILLFUL or
NEGLIGENT acts, which must be contrary to law. (Ibid.)
PRINCIPLE OF UNJUST ENRICHMENT
(Art. 22)

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Accion In Rem Verso action for recovery of what has been paid without just cause.
Application:
1. When someone acquires or comes into possession of something, which means delivery or
acquisition of things; AND
2. Acquisition is undue and at the expense of another, which means without just or legal ground.
Accion in Rem Verso and Solutio Indebiti
Accion In Rem Verso

Solutio Indebiti (Art. 2154)

It is not necessary that the payment be made by Payment was made by mistake is an essential
mistake, payment could have been made knowingly element to maintain the action for recovery.
and voluntarily but nevertheless, there would be
recovery of what has been paid

Requisites: (JELA)
1. Defendant has been enriched;
2. Enrichment is without just or legal ground;
3. Plaintiff has suffered a loss; and
4. He has no other action based on contract, quasicontract, crime or quasidelict.
Note: For a more comprehensive discussion of Articles 19-35, please see discussion thereof under
Torts.

PREJUDICIAL QUESTION (Art. 36)

General Rule: If both criminal and cvil cases are filed in court, the criminal case takes precedence.
Exceptions:
1. In case of prejudicial questions, the criminal case is suspended because the issues in the civil
case are determinative of the outcome of the criminal case.
A prejudicial question is that which arises in a case, the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to another
tribunal (Yap v. Paras, G.R. No. 101236, January 30, 1992).
Requisites: (Section 7, Rule 111, Rules of Court)
a. Previously instituted civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action.
b. The resolution of such issue determines whether or not the criminal action may proceed.
2.

Independent civil action granted by law (CD-QR)

a. Breach of constitutional and other rights (Art. 32)
b. Defamation, fraud, physical injuries (Art. 33)
c. Refusal or failure of city or municipal police to give protection (Art. 34)
d. Quasi-delict or culpa-aquiliana (Art.2177)

Note: The Civil Code has SUPPLETORY application in matters governed by special laws.

CIVIL PERSONALITY
Aptitude of being the subject, active or passive, of rights and obligations.
Juridical Capacity and Capacity to Act

Juridical Capacity
Fitness to be the subject of legal relations (Art. 37)

Capacity To Act
Power to do act with legal effects (Art. 37)

Passive

Active

Inherent

Merely acquired

Lost only through death

Lost through death and other causes

Can exist without capacity to act

Cannot exist without juridical capacity

Cannot be limited or restricted

Can be restricted, modified or limited

Theories on Capacity to Act

Theory of General Capacities
Applies to natural persons

Theory of Special Capacities

Applies to juridical persons

One has the ability to do all things with legal effects

except only in those specific circumstances where the
capacity to act is restrained

This limits the power of juridical persons only to those

that are expressly conferred upon them or those which
can be implied therefrom or incidental thereto

Restrictions on Capacity to Act do not exempt the incapacitated person from certain obligations as
when the latter arise from his acts or from property relations such as easements (Art. 38): (MID-PC)
1.
2.
3.
4.
5.

Minority
Insanity or imbecility
State of being deaf mute
Prodigality
Civil interdiction

Modifications/ Limitations on Capacity to Act (Art. 39): (FI3T P2A3D)

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

Family Relations;
Insanity;
Imbecility;
Insolvency;
Trusteeship;
Penalty;
Prodigality;
Age;
Alienage;
Absence; and
State of being deaf-mute.

Note: The consequences of the restrictions and modifications in a persons capacity to act are
provided by the Civil Code, other codes, special laws, and the Rules of Court.

NATURAL PERSONS
Beginning of Personality
General Rule: Birth determines personality (actual personality) (Art. 40).
Exception: The law considers the conceived child as born for all purposes favorable to it if born alive.
Therefore, the child has a presumed personality, which has two characteristics:

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1. Limited; and
2. Provisional/conditional (Quimiguing vs. Icao, G.R. No. L-26795, July 31, 1970)
Note: The concept of provisional personality CANNOT be invoked to obtain damages for and in
behalf of an aborted child (Geluz vs. CA, G.R. No. L-16439, July 20, 1961).
When is a Child Considered Born:
General Rule: For civil purposes, the fetus is considered born if it is alive at the time it is completely
delivered from the mothers womb.
Exception: If the fetus had an intrauterine life of less than 7 months, it is NOT deemed born if it dies
within 24 hours after its complete delivery from the maternal womb (Article 41).
Presumption of Survivorship:
In case of doubt as to which of two or more persons called to succeed each other died first:
1.

2.

Whoever alleges the death of one prior to the other, shall prove the same
In the absence of proof, the presumption is that the parties died at the same time and there
shall be no transmission of rights from one another (Art. 43)

Note: Art. 43 apply when the parties are called to succeed each other or are heirs to one another. But
if the parties are not called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies.
Both are to be applied only in the absence of facts.
The legitimacy or illegitimacy of a child attaches upon his/ her conception (Continental Steel
Manufacturing Corp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13,
2009).

JURIDICAL PERSONS
The following are juridical persons:
1. State and its political subdivisions
2. Corporations, institutions and entities for public purpose or interest
3. Corporations, partnership and associations for private interest or purpose to which the law grants
a juridical personality, separate and distinct from that of each shareholder, partner or member
(Art. 44)
Creation:
1. For (1) and (2), by the laws creating or recognizing them; government corporations are created by
their special charters passed by the legislature
2. Private corporations are governed by BP 68; and
3. Partnerships and associations for private interest or purpose are governed by the provisions of
this Code concerning partnerships.
Note: The estate of a deceased should be considered an artificial or juridical person for the purposes
of the settlement and distribution of his estate which include the exercise during the judicial
administration thereof of his rights and the fulfillment of obligations which survived after his death
(Limjoco vs. Intestate Estate of Pedro Fragrante, No. L770 April 27, 1948).
Cessation of Civil Personality

1. If natural persons: by death (Art. 42)

The effect of death upon the rights and obligations of the deceased is determined by law,
contract, and by will because some rights and obligations survive the death of a person
2. If juridical persons: by termination of existence
Dissolution of private corporations is governed by Title IV of the Corporation Code
Dissolution of corporations for public interest or purposes is governed by the provisions of
their respective charters and in its absence by the Corporation Code

FAMILY CODE
The Family Code of the Philippines took effect on August 3, 1988.
MARRIAGE
A special contract of permanent union between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences and incidents are governed by law and not subject to
stipulation (Art. 1).
Although a marriage contract is considered a primary evidence of marriage, its absence is not

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always proof that no marriage took place. Testimony of one of the parties to the marriage,
witnesses or solemnizing officer is admissible to prove the fact of marriage. (Balogbog v. CA,
G.R. No. 83598, March 7, 1997).
Once the presumption of marriage arises, other evidence may be presented in support thereof.
The evidence need not necessarily or directly establish the marriage but must at least be enough
to strengthen the presumption of marriage. Every intendment of law leans toward legitimizing
marriage (Delgado vda de De la Rosa v. Heirs of Marciana vda de Damian, GR No 155733,
January 27, 2006)

Marriage and Ordinary Contract Distinguished

Marriage

Ordinary Contract

Special contract

Merely a contract

Social institution

Merely a contract

Governed by law on marriage

Governed by law on contracts

Not subject to stipulations except in property relations

Generally subject to stipulations

Legal capacity is required

Minors may contract thru their parents or guardians or

in some cases by themselves

Contracting parties must only be two persons one is

a female and the other is a male

Two or more parties regardless of gender

Parties can fix a period for its efficacy to be ineffective
after a few years

Permanent Union
Breach of obligations of husband and wife does not
give rise to an action for damages. The law provides
penal and civil sanctions such as prosecution for
adultery or concubinage and proceedings for legal
separation.
Can be dissolved only by death or annulment, not by
mutual agreement

Breach of ordinary contracts gives rise to an action for

damages

Can be dissolved by mutual agreement and by other

legal causes

Breach of Promise to Marry

General Rule: It is not by itself an actionable wrong (Hermosisima vs. CA L-14628, September 30,
1960). One cannot seek specific performance to compel marriage.
Exceptions: To be actionable, there must be another act independent of the breach of promise to
marry which gives rise to liability as where there was financial damage, social humiliation, and moral
seduction.
1. Mere breach of promise to marry is not an actionable wrong; but to formally set a wedding and go
through all the preparations and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages pursuant to Art. 21 NCC. (Wassmer vs. Velez,
No. L-20089, December 26, 1964)
2. Where a mans promise to marry was the proximate cause of giving herself unto him in sexual
congress and there is proof he had no intention of marrying her, the promise being a deceptive
device, damages may be awarded pursuant to Art. 21 NCC because of the fraud and deceit
behind it and the willful injury to her honor and reputation (Baksh vs. CA, G.R. No. 97336,
February 19, 1993).
Essential Requisites of Marriage: (LC)

11

1.

Legal capacity of the contracting parties, who must be a male and a female
a. Eighteen years old or above
b. Not under any impediment mentioned in Arts. 37 and 38 (Art. 5)
2.
Consent freely given in the presence of a solemnizing officer (Art. 2)
No particular form required
Capable of intelligently understanding the nature and consequences of the act
Formal Requisites of Marriage: (ALM)
1.
2.
3.

Authority of the solemnizing officer

Valid Marriage License
Marriage ceremony where the contracting parties appear before the solemnizing officer, with
their personal declaration that they take each other as husband and wife in the presence of not
less than two witnesses of legal age (Art. 3)

Effects of: (Art. 4)

1.

ABSENCE of essential or formal requisites: The marriage is VOID AB INITIO (ex: expired
marriage license, marriage by way of jest)
Exception: Marriage is valid where either or both parties believed in good faith that the
solemnizing officer had legal authority to do so when he had none at the time of the solemnization
of the marriage (Art. 35(2))

2.

DEFECT in any of the essential requisites: The marriage is VOIDABLE (ex: consent obtained
through force and intimidation)

3.

IRREGULARITY in any of the formal requisites: Does NOT affect the validity of the marriage
BUT will hold the party responsible for such irregularity civilly, criminally and administratively liable
Exception: Marriage is VOIDABLE where contracting party 18 years old or over but below 21
without the consent of the parents

Authority of Solemnizing Officer

It is not the presence/absence of the solemnizing officer which constitutes the formal requirement but
the absence/presence of the authority of such solemnizing officer at the time of the solemnization of
the marriage.
General Rule: The Solemnizing officer is not duty bound to investigate whether the marriage license
was regularly issued.

Must only determine if it was issued by a competent official

If so, it may be presumed that the said official fulfilled the duty to ascertain whether the
contracting parties fulfilled the requirements of law (People vs. Janssen)

Exception: In cases of marriage in articulo mortis, in remote places, and between a man and a
woman living together as husband and wife for at least 5 years without legal impediment to marry
each other

Solemnizing officer must take steps to ascertain the ages, relationship, and qualifications of
contracting parties (Art. 29)

Persons Authorized to Solemnize Marriages (Art. 7): PMJCCC

1. Priest, rabbi, imam or ministers of any church or religious sect
a. duly authorized by his church or religious sect

San Beda College of Law

2010 Centralized Bar Operations
b. registered with the Office of the Civil Registrar General
c. acting within the limits of the written authority granted
d. at least one of the parties belongs to the solemnizing officers church or religious sect
2. Municipal and city mayors (Local Government Code, January 1, 1992)
The term Mayor includes a Vice-Mayor who is the Acting Mayor or who is merely acting as
a Mayor (People vs. Bustamante, citing Laxamana vs. Baltazar)
3. Incumbent members of the judiciary within the courts jurisdiction
4. Ship captains or air plane chiefs (Art. 31)
Only in cases of marriages in articulo mortis between passengers or crew members
During the voyage, while plane is in flight or ship is at sea and during stopovers at ports of call
Assistant pilot has no authority to solemnize a marriage even if airplane chief dies during the
trip
5. Commanders of military unit, in the absence of chaplain (Art. 32)
Must be a commissioned officer rank should start from second lieutenant, ensign and above
(Webster Dictionary, 1991 edition)
Only in cases of marriage in articulo mortis between members of the armed forces or civilians
within the zone of military operation
6. Consul generals, consuls or viceconsuls of the Republic of the Philippines abroad (Art. 10)
Only in cases of marriage between Filipino citizens abroad
The marriage ceremony is in accordance with the laws of the Philippines (Art. 17, NCC)
Also performs the duties of the local civil registrar
Consuls on home assignment in the Philippines cannot solemnize marriage
Valid Marriage License
The license is valid in any part of the Philippines for 120 days from date of issue, which is the date
when the local civil registrar signed the license.

Automatically canceled at the expiration of the period if contracting parties have not made use
of it (Art. 20)
The requirement that the parties or one of them must reside in the place of the issuance of
the license is a mere formal requirement. If there is no compliance with the same, the defect is a
mere infirmity that does not affect the validity of the marriage (Ty vs. Court of Appeals, 2003).
When either or both parties are foreign citizens, they must first submit a CERTIFICATE OF
LEGAL CAPACITY TO MARRY issued by their diplomatic/consular officials before marriage
license can be obtained (Art. 21)

Exception: Marriage of both foreign citizens will be solemnized by their countrys consul-general
assigned in the Philippines, if their countrys law allows the same
Stateless persons/refugees from other countries shall submit an affidavit stating circumstances to
show capacity to contract marriage before a marriage license can be obtained (Art. 21)
Marriages Exempt from License Requirement (MOLAR) (Art.27)
1.

Among Muslims or members of ethnic cultural communities solemnized in accordance with

their customs, rites and practices (Art. 33)
2.
Solemnized outside the Phil. where no marriage license is required by the country where they
were solemnized
3.
Of a man and a woman who have lived together as husband and wife for at least 5 years and
without legal impediment to marry each other (Art. 34)
Requisites:

13

a. The man and woman must have been living together as husband and wife for at least five
years before the marriage;
b. The parties must have no legal impediment to marry each other;
c. The fact of absence of legal impediment between the parties must be present at the time
of marriage;
d. The parties must execute an affidavit stating that they have lived together for at least five
years (and are without legal impediment to marry each other); and
e. The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he had found no legal impediment to their marriage
(Manzano v. Sanchez G.R. No. MTJ001329, March 08, 2001)

The 5year period should be computed on the basis of cohabitation as husband and wife
where the only missing factor is the marriage contract to validate the union (ex: if both
cohabited at the age of 17, counting starts when parties reach 18 years)

This 5year period should be the years immediately before the day of the marriage and it
should be a period of cohabitation characterized by EXCLUSIVITY meaning no legal
impediment was present at any time within the 5 years and CONTINUITY that is unbroken
(Republic v. Dayot, G.R. No. 175581,March 8, 2008)

4.

5.

In articulo mortis
Remains valid even if ailing party subsequently survives (Art. 27)
In remote places
Residence of either party is so located that there is no means of transportation to enable them
to personally appear before the local civil registrar (Art. 28)

Marriage Ceremony
There is no particular form prescribed by the Family Code.
The absence of two witnesses of legal age is merely an irregularity but the party responsible for the
irregularity shall be civilly, criminally, and administratively liable.
Marriages by proxy

1. If it was solemnized in the Philippines, the marriage is VOID because physical appearance is
required under Art. 6.

2. If performed abroad, whether between Filipinos or foreigners or mixed, the controlling article is
Art. 26 of the Family Code.
Authorized Venues of Marriage (Art. 8)
General Rule: Must be solemnized publicly, and not elsewhere, in the:
1.
2.
3.

Chambers of the judge or in open court

Church, chapel or temple
Office of consulgeneral, consul or viceconsul

Exceptions:
1.
2.
3.

Marriage in articulo mortis;

Marriage in remote places;
Marriage at a house or place designated by the parties in a sworn statement to that effect,
with the written request of both parties to the solemnizing officer

Note: This provision is only directory and the requirement that the marriage be solemnized in a
particular or a public place is not an essential requisite.

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FOREIGN MARRIAGE
Validity of Marriage
General Rule: Where one or both parties to the marriage are citizens of the Philippines, the foreign
marriage is valid in this country if solemnized in accordance with the laws of the country of
celebration. (Art. 26)

In case a Filipino contracts a foreign marriage which is null and void in the place where it was
solemnized, the same shall also be null and void in the Philippines even if such was valid if
celebrated under Philippine laws
If both are foreigners, lex loci celebrationis applies

Exceptions: Foreign marriages shall not be recognized in the Philippines if: (B2MA-PIP)
1.
2.
3.
4.

Contracted by a national who is below 18 years of age (Art. 35(1))

Bigamous or polygamous except as provided in Art. 41, FC (Art. 35(4))
Contracted through mistake of one party as to the identity of the other (Art. 35(5))
Contracted following the annulment or declaration of nullity of a previous marriage but before
partition (Art.35(6))
5.
Void due to psychological incapacity (Art. 36)
6.
Incestuous (Art.37)
7.
Void for reasons of public policy (Art. 38)
Divorce
General rule: No divorce is allowed in the Philippines
Exceptions:
1. Between 2 aliens if valid in their national laws even if marriage was celebrated in the Philippines
2. Between a Filipino and an Alien if (a) there is a valid marriage celebrated between a Filipino
citizen and a foreigner; and (b) a valid divorce according to the national law of the foreigner is
obtained abroad by the alien spouse capacitating him or her to remarry. Art. 26(2))
The Filipino spouse should likewise be allowed to remarry as if he or she was a foreigner at
the time of the solemnization of the marriage. To rule otherwise would sanction absurdity and
injustice
Party pleading it must prove divorce as a fact and demonstrate its conformity to the foreign
law allowing it, which must be proved as courts cannot take judicial notice of foreign laws. If a
valid divorce decree has been obtained abroad, there is no more need to file an action to
nullify the marriage. The plaintiff has no more personality to sue since the marriage bond has
already been severed (Felicitas Amor-Catalan vs. CA, G.R. No. 167109, February 6, 2007).
Article 26 (2) applies where parties were Filipino citizens at the time of celebration of the
marriage, but later on, one of them becomes naturalized as a foreign citizen and obtains a
divorce decree because the reckoning point is their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry. (Rep. vs. Cipriano
Obrecido III, G.R. No. 154380, Oct. 5, 2005)
In Edgar San Luis v. Felicidad Sagalongos (G.R. No. 134029, February 6, 2007), whether a
Filipino who had been divorced by his alien spouse abroad may validly remarry in the
Philippines considering that the marriage was solemnized before the Family Code, it was held
that it need not retroactively apply the provisions of the Family Code, particularly Article 26,
par. (2), considering that there is sufficient jurisprudential basis allowing the retroactivity of the
Family Code.
There must be a showing that the divorce decree gave the foreigner spouse legal capacity to
remarry because in some jurisdictions, remarriage may be limited or prohibited (Bayot vs.
Bayot, G.R. No. 155635 & 163979, November 7, 2008).

15

VOID MARRIAGES (Art. 35)

Due to absence of any of the essential requisites: (BBLAPIS)
1. Contracted by any party below 18 years of age even with parental consent;
2. Solemnized by any person NOT LEGALLY authorized to perform marriages UNLESS one or both
of the parties believed in good faith that the solemnizing officer had the legal authority to do so;
3. Solemnized WITHOUT a license except as otherwise provided;
4. Bigamous or polygamous marriages except Art 41;
5. Marriages contracted through mistake of one of the parties as to the physical identity of the other
6. Subsequent marriages that are void under Article 53 of the Family Code
7. Contracted by a party who at the time of the marriage was psychologically incapacitated.
Note: Enumeration in Art 35 is NOT exclusive.
Psychological Incapacity (Art. 36)
No less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.
Its meaning is confined to the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the marriage. This psychological
condition must exist at the time the marriage is celebrated. (Santos vs. CA, G.R. No. 112019, January
4, 1995)
Requisites of Psychological Incapacity: (JIG)
1.

Gravity must be grave/serious such that the party would be incapable of carrying out the
ordinary duties required in a marriage;
2.
Juridical Antecedence Must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and
3.
Incurability Must be incurable or, even if it were otherwise, the cure would be beyond the
means of the party involved. (Santos vs. CA, G.R. No. 112019, January 4, 1995)
May involve a senseless, protracted and constant refusal to comply with the essential marital
obligations by one or both of the spouses although he, she or they are physically capable of
performing such obligations (Chi Ming Tsoi v. CA, G.R. No. 119190, Jan. 16, 1997)
A person who is unable to distinguish between fantasy and reality would be unable to comprehend the
legal nature of the marital bond much less its psychic meaning and the obligations attached to the
marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to
any legal or emotional commitments (Antonio v. Reyes, G.R. No. 155800, March 10, 2006)
While disagreements on money matters would, no doubt, affect the other aspects of ones marriage
as to make the wedlock unsatisfactory, this is not a sufficient ground to declare a marriage null and
void. In fact, the Court takes judicial notice of the fact that disagreements regarding money matters is
a common, and even normal, occurrence between husbands and wives. (Tongol vs. Tongol, G.R. No.
157610, October 19, 2007)
Petitioner is not entitled to moral damages based on declaration of psychological incapacity because
the award of moral damages should be predicated, not on the mere act of entering into the marriage,
but on specific evidence that it was done deliberately and with malice by a party who had known of his

San Beda College of Law

2010 Centralized Bar Operations
or her disability and yet willfully concealed the same. (Noel Buenaventura v. CA, et al., G.R. No.
127358, March 31, 2005)
Essential Elements: (MAVFFCCI)
1.
2.
3.
4.
5.
6.
7.
8.

Mental condition
Applies to a person who is maritally contracted to another
Marriage entered into with volition
Failure to perform or comply with the essential obligations in marriage
Failure to perform is chronic
Cause is psychological in nature
Cause is serious, with juridical antecedence, and must be incurable
Incapacity results in the failure of the marriage.

Jurisprudential Guidelines (Molina Doctrine) (Republic v. Molina G.R. No. 108763, February 13,
1997): (PROBE PIG)
1.
2.

3.
4.
5.
6.
7.
8.

Plaintiff has burden of proof;

Root cause of the psychological incapacity must be:
a. Medically or clinically identified
b. Alleged in the complaint:
i. Sufficiently proven by experts
ii. Clearly explained in the decision
Incapacity proven to be existing at the time of the celebration of marriage;
Incapacity must be permanent or incurable;
Illness is grave enough to bring about disability to assume essential marital obligations;
Marital obligations refer to Art. 6871, 220,221 and 225 of the FC;
Interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the
Philippines while not controlling should be given great respect;
Trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for
the state.

Note: The SC held in Te vs. Te (G.R. No. 161793, February 13, 200) as decisive the psychological
evaluation made by the expert witness and thus ruled that the marriage of the parties is null and void
on the ground of both parties psychological incapacity. The clinical psychologist did not personally
examine the respondent, and relied only on the information provided by petitioner. Further, the
psychological incapacity was not shown to be attended by gravity, juridical antecedence, and
incurability, deviating from Republic vs. CA and Molina (1997) ruling, upon the Courts reasoning that
the impositions of the Molina case were inappropriate, as cases of psychological incapacity should be
decided not on the basis of a priori assumptions, predictions or generalizations but according to its
own facts. Courts should interpret the provision on a case-to-case basis; guided by experience, the
findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.
The Molina doctrine has become a strait-jacket, forcing all sizes to fit into and be bound by it. The
Court in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage.
The wifes promiscuity and the psychiatrists report that she was suffering from social personality
disorder exhibited by blatant display of infidelity, emotional immaturity, and irresponsibility cannot be
equated with psychological incapacity (Dedel vs. Court of Appeals, G.R. No. 151867, January 29,
2004).
Similarly, the husbands alleged alcoholism, drunkenness, his habitual verbal and physical abuse of
the wife, failure to support the latter and her children, and unbearable jealousy, do not constitute
psychological incapacity (Republic vs. Melgar, G.R. No. 139676,March 31, 2006).
In Marcos v. Marcos (GR. NO. 136490, October 19, 2000), the SC held that psychological incapacity
may be established by the totality of the evidence presented. The facts alleged in the petition and the

17

evidence presented, considered in totality, should be sufficient to convince the court of the
psychological incapacity of the party concerned. (Bernardino S. Zamora vs. CA, G.R. No. 141917,
February 7, 2007)

The complete facts should allege the physical manifestations, if any, as are indicative of
psychological incapacity at the time of the celebration (Sec. 2(d) A.M. No. 02-11-10-SC, March
15, 2003)
There is NO REQUIREMENT that the person sought to be declared psychologically
incapacitated should be personally examined by a physician/ psychologist as a condition sine qua
non to arrive at such declaration. It can be proven by independent means that one is
psychologically incapacitated, There is no reason why the same should not be credited. (Republic
of the Philippines vs. Laila Tanyag-San Jose and Manolito San Jose, G.R. No. 168328, February
28, 2007)

Psychological incapacity is not meant to comprehend all possible cases of psychoses. The fourth
guideline in Molina requires that the psychological incapacity as understood under Art. 36 (FC) must
be relevant to the assumption of marriage obligations, not necessarily to those not related to
marriage, like the exercise of a profession or employment in a job (Tongol vs. Tongol, G.R. No.
157610, October 19, 2007).
The new Rule promulgated by the SC on 4 March 2003 on Annulment and Declaration of Nullity of
Marriage dispensed with the certification from the Solicitor General, stating therein his reasons for his
agreement or opposition to the petition. Attachment of expert opinions to the petition is also dispensed
with (Tongol vs. Tongol, G.R. No. 157610, October 19, 2007).
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M.
No. 02- 11- 10 SC, March 15, 2003), provides option to the trial judge to refer the case to a courtappointed psychologist/ expert for an independent assessment and evaluation of the psychological
state of the parties, in order to assist the court to arrive at an intelligent and judicious determination of
the case.
Note: Final judgment denying a petition for nullity on the ground of psychological incapacity bars a
subsequent petition for declaration of nullity on the ground of lack of marriage license. There is res
judicata (Mallion vs. Alcantara, G.R. No. 141528, October 31, 2006).
Incestuous marriages, whether the relationship is legitimate or illegitimate, between (Art. 37):
1.
2.

Ascendants & Descendants of any degree;

Brothers & Sisters whether full or halfblood

Those contrary to public policy contracted between (Art. 38): (C-KA3PS3)

1.
2.
3.
4.
5.
6.
7.
8.
9.

Collateral blood relatives whether legitimate or illegitimate up to the 4 th civil degree

Stepparents & step children
Parentsinlaw & childreninlaw
The adopting parent & the adopted child
The surviving spouse of the adopting parent & the adopted child
The surviving spouse of the adopted child & the adopter
Adopted child & a legitimate child of the adopter
Adopted children of the same adopter
Parties where one, with the intention to marry the other, killed the latters spouse, or his/her
spouse.
There is no need for conviction in a criminal case of the guilty party. The fact of killing
committed by one of the parties to the marriage can be proved in a civil case

The following can now marry each other: (LSG-CA)

San Beda College of Law

2010 Centralized Bar Operations
1.
2.
3.
4.

Brotherinlaw and sisterinlaw;

Stepbrother and stepsister;
Guardian and ward;
Adopted and illegitimate child, parents and relatives by consanguinity or affinity of the
adopter;
5.
Parties who have been convicted of adultery or concubinage.
6.
Collateral relatives by the half blood
Void Subsequent Marriages
1. Without judicial declaration of nullity of previous void marriage (Art. 40)
2. Without judicial declaration of presumptive death of absent spouse (Art. 41)
3. Where the absent spouse was presumed dead, and both the present spouse and wouldbe
spouse were in bad faith in contracting marriage (Art. 44)
4. Failure to comply with Art 52 requiring the partition and distribution of properties and delivery of
childrens presumptive legitimes which should be recorded in the appropriate civil registry and
registry of property after obtaining judgment for declaration of nullity or annulment (Art. 53).
Note: Failure to record in the civil registry and registry of property the judgment of annulment or of
absolute nullity of the marriage, partition and distribution of the property of the spouses and the
delivery of the childrens presumptive legitimes shall not affect third persons (Arts. 5253).
Void and Voidable Marriage Distinguished
Void

Voidable

Decree of nullity

Decree of annulment

Incapable of ratification

Ratified by free cohabitation

Can be attacked directly or collaterally

Can be attacked directly only

Coownership of properties through joint actual

contributions

Generally Conjugal Partnership or Absolute Community

Always void

Valid until annulled

Action for declaration of nullity does not prescribe

Action prescribes

Only the spouses can have their marriage declared

void starting March 15, 2003; but before such date,
any interested party can do so

Those provided under Art. 47

Judicial Declaration of Nullity

The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous marriage void (Art. 40).
Remarriage is not the sole purpose of declaration of nullity of a marriage as it can be declared
void for other purposes
For purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an
absolute nullity is a final judgment declaring such previous marriage void
Parties to a marriage should not be permitted to judge for themselves its nullity, only competent
courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is
beyond question (Landicho vs. Rolova L-22579, February 23, 1968).
One who enters into a subsequent marriage without first obtaining such judicial declaration is
guilty of bigamy. This principle applies even if the earlier union is characterized by statute as
void. (Manuel vs. People, G.R. No. 165842,November 29, 2005)

Interestingly, in Lucio Morigo vs. People, GR No. 145226, Feb. 6, 2004, the SC ruled that a

19

judicial declaration of nullity is NOT NEEDED where NO MARRIAGE CEREMONY at all was
performed by a duly authorized solemnizing officer, as where the parties merely signed a
marriage contract on their own without the presence of the solemnizing officer
For purposes other than remarriage, such as but not limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of property regime or criminal case, other
evidence is acceptable to show the nullity of the marriage and the court may pass upon the validity of
marriage so long as it is essential to the determination of the case (Nial vs. Bayadog, G.R. No.
133778, March 14, 2000).
Collateral attack of marriage is allowed
In a case for concubinage, the accused need not present a final judgment declaring his marriage
void, for he can adduce evidence in the criminal case of the nullity of his marriage other than
proof of a final judgment declaring his marriage void (Beltran vs. People, G.R. No. 137567, June
20, 2000).
Who may file Action for Declaration of Nullity
Before March 15, 2003 Any interested party can file a direct case for nullity of marriage, e.g., a
father can file a case for declaration of nullity of a bigamous marriage entered into by his daughter
and a married man.
March 15, 2003 and onwards A petition for declaration of absolute nullity of void marriage may be
filed solely by the husband or wife. A.M. 02-11-10-SC which provides for the same is prospective in its
application. (Juan de Dios Carlos vs. Falicidad Sandoval, G.R. No. 179922, December 16, 2008)
Imprescriptibility of Action for Declaration of Nullity
General Rule: The action or defense for the declaration of absolute nullity of a marriage shall not
prescribe (Art. 39, as amended by R.A. 8533 approved on February 23, 1998).
Declaration of Nullity not a Prejudicial Question
The pendency of the civil action for nullity of marriage does not pose a prejudicial question in a
criminal case for concubinage. (Beltran vs. People, G.R. No. 137567, June 20, 2000). This ruling
applies in a case for bigamy by analogy since both crimes presuppose the subsistence of a marriage.
(Bobis vs. Bobis, G.R. No.138509, July 31, 2000).

BIGAMOUS MARRIAGES (Art. 41)

General Rule: A marriage contracted by any person during the subsistence of a previous valid
marriage shall be null and void (Gomez v. Lipana, GR. No. L23214, June 30, 1970)
Exception: Before the celebration of the subsequent marriage, a declaration of presumptive death is
obtained after complying with the following requirements: (JAB)
1. Absence of the other spouse must have been for 4 consecutive years, or 2 years where there
was danger of death under circumstances laid down in Art. 391 of the NCC
2. Well-founded belief of the present spouse who wishes to marry that absent spouse is already
dead
3. Judicial declaration of presumptive death; present spouse must file a summary proceeding for the
declaration of the presumptive death of the absentee without prejudice to the latters
reappearance
Note: This is intended to protect the present spouse from criminal prosecution for bigamy under Art
349 of the Rev Penal Code. However, if the bigamous marriage was committed abroad, the guilty
party cannot be criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial
in nature.
Exception to the exception: If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations made by one in favor of the other are revoked by

San Beda College of Law

2010 Centralized Bar Operations
operation of law. (Art. 44)
Effect of Reappearance of Absent Spouse:
General Rule: The subsequent bigamous marriage under Article 41 remains valid despite
reappearance of the absentee spouse.
Exception: Subsequent marriage is automatically terminated if the reappearance was recorded in a
sworn statement in the civil registry of the residence of the parties to the subsequent marriage at the
instance of any interested person with due notice to said spouses, without prejudice to the fact of
reappearance being judicially determined in case such fact is disputed.
Exception to the exception: If there was a previous judgment annulling or declaring the first
marriage a nullity, the subsequent bigamous marriage remains valid.
Notes:

If the absentee reappears, but no step is taken to terminate the subsequent marriage either by
affidavit or by court action, such absentees mere reappearance, even if made known to the
spouses in the subsequent marriage will not terminate such marriage (SSS v. Bailon, G.R. No
165545, March 24, 2006).
Judgment declaring a spouse presumptively dead is unappealable because the proceedings
thereon are summary in nature as per Art. 153 FC. The remedy is special civil action for certiorari
(Heirs of Maura So vs. Obliosca, G.R. No. 147082, January 28, 2008).

See Comparative Chart on Effects of Declaration of Nullity, Annulment and Termination of Marriage in
Art. 41 and Legal Separation.

VOIDABLE MARRIAGES (Art. 45)

Grounds: (UPFAVS) must exist AT THE TIME of marriage
1.

Age of the party in whose behalf the marriage is sought to be annulled was 18 years of age or
over but below 21, and the marriage was solemnized without the consent of the parents, guardian
or person exercising substitute parental authority over the party, in that order;

2.
3.

Unsound mind of either party

Consent of either party obtained by fraudulent means as enumerated in Art. 46: (NPSD)
a. Nondisclosure of a previous conviction by final judgment of the other party of a crime
involving moral turpitude;
b. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a
man other than her husband;
Must have been done in bad faith. If the woman did not expressly inform the man of her
pregnancy but such physical condition was readily apparent to the man, he cannot claim
lack of knowledge thereof. (Buccat vs. Buccat, G.R. No. 47101, April 25, 1941)
c. Concealment of a sexually transmissible disease, regardless of its nature, existing at the time
of the marriage; and
Nature or gravity of disease is irrelevant; it is enough that there was concealment at the
time of the ceremony
d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at
the time of the marriage

4.

Vitiated consent of either party through force, intimidation or undue influence

Criminal liability attaches to anyone who uses violence, intimidation and fraud in contracting a
marriage (Art. 350 RPC)

21

5.

Physical incapability of either party to consummate the marriage with the other, and such
incapacity continues and appears to be incurable (impotency)
Permanent inability on the part of one of the spouses to perform the complete act of sexual
intercourse, arising from physical and other causes, including psychological causes
Need not be universal; condition may exist only as to the present spouse and not as to others
Requisites for annulment due to Impotence: (CUPIN)
a.
b.
c.
d.
e.

It exists at the time of the celebration of the marriage;

It is permanent;
It is incurable;
It is unknown to the other spouse;
The other spouse must not also be impotent.

Doctrine of Triennial Cohabitation Presumption that the husband is impotent should the wife still
remain a virgin for at least 3 years from time spouses started cohabiting.
6.

Sexually transmissible disease of either party found to be serious and appears to be

incurable.
Elements: (ESSA)
a.
b.
c.
d.

Existing at the time of marriage

Sexually transmissible disease
It is serious; and
Appears incurable

The enumeration in Article 46 is EXCLUSIVE (Anaya vs. Palaroan, GR. No. L27930, November 26,
1970).
Note: Misrepresentation as to character, health, rank, fortune or chastity is NOT a ground for
annulment.
Persons Who May
Sue
Injured party

Prescrip-tive
Period
W/in 5 years from the
time
the
force,
intimidation, or undue
influence ceased

Fraud

Injured party

W/in 5 years from the

discovery of fraud

Free cohabita-tion even

with full know-ledge of
facts constitu-ting the
fraud

Incapabi-lity to consummate

Injured party

W/in 5 years after the

celebration
of
the
marriage

No
ratification
since
defect is permanent

Insanity

Sane spouse who has

no know-ledge of the
insanity

Anytime
before
the
death of either party

Free cohabita-tion after

insane regains sanity

Relative, guardian or
persons having legal
charge of the insane

Anytime
before
the
death of either party

Free cohabita-tion after

insane regains sanity

Grounds (F2I2NS)
Force, intimidation, or
undue influence

Ratifi-cation
Free cohabita-tion after
disap-pearance of force,
intimida-tion / undue
influence respect-tively

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Non consent

STD

Insane spouse

During lucid interval or

after regaining sanity

Parent/ legal guardian

having charge of the
noconsent party

Anytime before the no

consent party reaches
21

No consent party

W/in 5 years
reaching 21

Injured party

W/in 5 years after the

celebration
of
the
marriage

after

Free cohabita-tion after

reaching age of 21

No ratifica-tion since
defect is perma-nent.

Note: Whichever comes first may convalidate the marriage: Cohabitation OR Prescription.
Additional Requirements for Annulment or Declaration of Nullity
Prosecuting attorney or fiscal should:
1. Appear on behalf of the state
2. Take steps to prevent collusion between the parties
3. Take care that evidence is not fabricated or suppressed
Collusion
Public Prosecutor shall be ordered by the court to investigate and to submit a report on whether
parties are in collusion when:
1. No answer is filed or the answer does not tender an issue;
2. Respondent filed his answer but failed to appear at the pre-trial (Secs. 8(3) and 13(b), A.M. No.
02-11-12-SC, March 15, 2003)
Note: The same also applies to Legal Separation pursuant to Secs. 5(c) and 10(2) of A.M. No. 02-1111-SC, March 15, 2003.
There will be collusion only if the parties had arranged to make it appear that a ground existed or had
been committed although it was not, or if the parties had connived to bring about a matrimonial case
even in the absence of grounds therefor (Ocampo vs. Florenciano, GR. No. L13553, February 23,
1960).
However, petitioners vehement opposition to the annulment proceedings negates the conclusion that
collusion existed between the parties. Under these circumstances, the nonintervention of a
prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the
validity of the proceedings in the trial court (Tuason vs. CA, G.R. No. 116607, April 10, 1996).
Decision
No judgment on the pleadings, summary judgment, confession of judgment, or judgment by default
shall be allowed.
If the defendant spouse fails to answer the complaint, the court CANNOT declare him or her in
default. But instead, should order the public prosecutor to determine if collusion exists between the
parties.
Note: The same also applies to Legal Separation

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After court grants petition, it shall issue the decree of absolute nullity or annulment only after
compliance with the following:
1. Must proceed with the liquidation, partition, and distribution of the properties of the spouses
including custody and support of the common children unless such matters had been adjudicated
in previous judicial proceedings
2. Delivery of the childrens presumptive legitimes
3. Registration of the entry of judgment granting petition for declaration of absolute nullity or
annulment in the Civil Registry where the marriage was celebrated and in the Civil Registry of the
place where the FC was located
4. Registration of approved partition and distribution of properties of the spouses in the proper
Registry of Deeds where the real properties are located
Note: The same applies to Legal Separation.
In case of annulment or declaration of absolute nullity of marriage, Art.49 of the Family Code grants
visitation rights to a parent who is deprived of the custody of the children. Such visitation rights flow
from the natural right of both parents to each others company. There being no such parent child
relationship between them, Gerardo has no demandable right to visit the child of Mario with Theresa
(Concepcion vs. CA GR. No. 12345, August 31, 2005).
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (A.M. 001101SC)

This took effect on March 15, 2003.

This Rule shall govern petitions for declaration of absolute nullity of void marriages and
annulment of voidable marriages under the Family Code of the Philippines.

The Rules of Court have suppletory application.

For a more comprehensive discussion on the procedural aspects of the Rule, please refer to the
Remedial Law Memory Aid.

LEGAL SEPARATION
Exclusive Grounds: (SAMBALIPAD)
1.

Repeated physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner

2.

Attempt of the respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement
Refers to prostitution only and irrespective of the age of the child

3.

Attempt by the respondent against the life of the petitioner

4.

Final judgment sentencing the respondent to imprisonment of more than 6 years even if
pardoned

5. Drug addiction or habitual alcoholism of the respondent

6. Lesbianism or homosexuality of the respondent
7. Abandonment of the petitioner by the respondent without justifiable cause for more than 1 year
There must be absolute cessation of marital relations, duties, and rights, with the intention of
perpetual separation (Partosa-Jo vs. CA, G.R. No. 82606, December 18, 1992).
Abandonment implies total renunciation of duties.
8. Physical violence or moral pressure to compel petitioner to change religious or political affiliation

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9. Contracting by respondent of a subsequent bigamous marriage; and
10. Sexual infidelity or perversion.
Sexual perversion includes engaging in such behavior not only with third persons but also
with the spouse
CoolingOff Period 6-month period from the filing of the petition designed to give the parties
enough time to further contemplate their positions with the end in view of attaining reconciliation
between them. No action for Legal Separation shall be tried during such period (Art. 58). It is a
mandatory requirement and its non-compliance makes the decision infirm. (Pacete vs. Carrianga,
G.R. No. 53880, March 17, 1994)
Grounds for Denial of Petition (Art. 56): (C4MPDR)
1. Condonation of the offense or act complained of. But failure of the husband to look for his
adulterous wife is NOT condonation to wife's adultery (Ocampo vs. Florenciano, G.R. No. L
13553, February 23, 1960).
The act of the husband in having sexual intercourse with his wife in spite of his knowledge of
the latters infidelity is an act of implied condonation. (Ginez v. Bugayong, G.R. No. L-10033,
December 28, 1956)
2. Consent to commission of offense or act complained of
3. Connivance between parties of commission of offense or act constituting ground
Connivance is corrupt consenting
4. Collusion between parties
Collusion is corrupt agreement between the spouses to procure divorce or legal separation
5. Mutual Guilt or where both parties have given ground for legal separation
6. Prescription
An action for legal separation shall be filed within 5 years from time of occurrence of the
cause (Art. 57)
7. Death of either party during the pendency of the case (LapuzSy vs. Eufemio, G.R. No. 113842,
August 3, 1994)
8. Reconciliation of the spouses during the pendency of the case
By filing in the same proceeding a joint manifestation under oath, duly signed by the spouses
(Art. 65)
Effects of Filing Petition: (LDS)
1. The spouses shall be entitled to live separately from each other
2. In the absence of an agreement between the parties, the court shall designate the husband, the
wife, or a third person to manage the absolute community or conjugal partnership property (Art.
61)
3. The husband shall have no more right to have sexual intercourse with his wife.
Decision
No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (Art. 59)
Note: The wife who has been granted legal separation cannot petition to be allowed to revert to her
maiden name.

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Even if the parents are separated de facto, still in the absence of judicial grant of custody to one
parent, both parents are entitled to the custody of their child. The remedy of habeas corpus may be
resorted to by the parent who has been deprived of the rightful custody of the child (Salientes v.
Abanilla, G.R. No. 162734, August 29, 2006).
Note: A decree of legal separation, on the ground of concubinage, may issue upon proof of
preponderance of evidence in the action for legal separation. No criminal proceedings or conviction is
necessary.
Effects of Reconciliation of the Spouses (Art. 66):
1.

The legal separation proceedings, if still pending, shall thereby be terminated at whatever
stage.
2.
The final decree of legal separation shall be set aside, but the separation of property and any
forfeiture of share of the guilty spouse already effected shall subsist, unless the spouses agree to
revive their former property regime.
Revival of Property Regime (Art. 67)
Agreement of revival and motion for its approval shall be filed in court in the same proceeding for legal
separation and shall be executed under oath and shall specify:
1. Properties to be contributed anew to restored regime;
2. Those to be retained as separated properties of each spouse;
3. Names of all known creditors, addresses, and amounts owing to each
After due hearing, court shall take measures to protect interest of creditors and such order shall be
recorded in the proper registries of properties but the same shall not prejudice creditors not listed or
notified, unless debtor-spouse has sufficient separate properties to satisfy creditors claim.
Rule on Legal Separation (A.M. 021111SC)
This took effect on March 15, 2003.
This Rule shall govern petitions for legal separation under the Family Code in the Philippines; the
Rules of Court shall apply suppletorily.
Please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule.

Termination

Declaration Of Nullity

Annulment

Legal Separation

(Art.41)

(Art. 40)

(Art. 45)

(Art. 55)

Valid until annulled or

terminated

No
dissolution
of
marriage,
only
separation of bed-andboard; entitled to live
separately

Marital Status
Subsequent
marriage
automatically terminated
by
affidavit
of
reappearance

Previous marriage, void ab

initio

Status of Children Born/Conceived Before Termination

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Legitimate

Illegitimate except those as

provided in Art. 36 and 53

Legitimate

Legitimate

Custody of Children
Custody in case of
dispute shall be decided
by the court in separate
proceedings for custody
but same considerations
as in Declaration of Nullity

During Pendency:
1.
2.

Written Agreement
Absence thereof, court decides based on best interest of child and may award
it in the following order of preference:
a. Both parents jointly
b. Either parent, may consider choice of child over 7 years unless parent
chosen is unfit
c. Surviving grandparent, if several then choice of child over 7 years unless
grandparent chosen is unfit/ disqualified
d. Eldest brother/sister over 21unless unfit/ disqualified
e. Any other person deemed by court who is suitable
After Decree:
To the innocent spouse but no child under 7 shall be separated from the mother
unless there are compelling reasons
Child Support

Support in case of dispute

shall be decided by the
court
in
separate
proceedings for custody
but same considerations
as in Declaration of Nullity

During pendency:
1.
2.

Written agreement
In the absence thereof, from properties of the absolute community of property
(ACP) or conjugal partnership (CP)
After Decree:
Either parent/ both may be ordered by court to give an amount necessary for
support in proportion to resources/means of giver and necessities of recipient
Spousal Support
During pendency:
1.
2.

3.

1.
2.
3.
4.

Written agreement
In the absence thereof, from properties of the ACP or CP, considered as
advance to be deducted from share during liquidation
Restitution if after final judgment court finds that persons providing support
pendent lite is not liable therefor (Sec. 7, Rule 61, ROC)
Property Relations

ACP or CP shall be dissolved and liquidated

If either spouse contracted marriage in bad faith, he or she has no right to any
share of net profits earned by ACP or CP
Net profits shall be forfeited in favor of common children, or if none, children of
guilty spouse by previous marriage, or in default thereof, the innocent spouse
In all other cases of void marriage, Art. 147 and 148 applies (Valdes vs. RTC)

In addition, for marriages under Art. 40 and 45:

1.

2.

2.

3.

All creditors of spouses and of the ACP or CP shall be notified of the proceedings
for liquidation
Conjugal dwelling and lot on which it is situated shall be adjudicated pursuant to
Art. 102 and 129

Presumptive Legitime
1.

1.

Delivery of presumptive legitime of all common

children computed as of date of final judgment

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ACP or CP shall be
dissolved
and
liquidated.
Offending
spouse
has no right to any
share of net profits
earned by ACP or
CP
Net profits shall be
forfeited in favor of
common children, or
if none, children of
guilty spouse by
previous marriage,
or in default thereof,
the innocent spouse

2.

1.

2.

Shall remain valid,

unless
donee
contracted marriage
in bad faith, in which
case, donation to
said donee shall be
revoked by operation
of law.
If both spouses of
subsequent marriage
acted in bad faith,
donations
propter
nuptias made by one
in favor of the other
are
revoked
by
operation of law

1.

2.

3.

4.

without prejudice to ultimate successional rights of

children accruing upon death of either or both
parents
Shall be considered as advances on common
childrens legitime (Art. 51)
Donation Propter Nuptias
Shall
remain
valid,
unless
donee
contracted marriage in
bad faith, in which case,
donation to said donee
shall be revoked by
operation of law.
If both spouses of
subsequent
marriage
acted in bad faith,
donations
propter
nuptias made by one in
favor of the other are
revoked by operation of
law (Art. 44)
If both spouses in good
faith, donor after finality
of decree may revoke
pursuant to Art. 86(1)
If
marriage
not
celebrated:
a. Those stipulated in
marriage settlement
are void (Art. 81)
b. Those
excluded
from
marriage
settlement or if no
such contract, may
be
revoked
by
donor (Art. 86(1))

1.

Shall remain valid,

unless
donee
contracted marriage
in bad faith, in
which
case,
donation to said
donee shall be
revoked
by
operation of law.
(Art. 43(3))
2. No conflict with Art.
86(2) as such does
not require that
marriage
be
annulled first before
donor may revoke
donation donor
has 5 years from
time
he
had
knowledge of lack
of consent; cannot
revoke
if
had
knowledge thereof
before the marriage
(Sta.
Maria,
Melencio Jr. S,
Persons
and
Family
Relations
Law, fourth Edition,
2004)
3. Conflict with Art.
86(3) but Art. 43(3)
prevails more in
harmony
with
general
purpose/intent
of
act (Ibid.)
Insurance Policy

Innocent spouse may revoke designation of spouse in bad faith as beneficiary even if
stipulated as irrevocable (Art. 43(4))

1.

2.

Donor
is
given
option to revoke or
not, if donor decides
to revoke, must do
so within 5 years
from
finality
of
decree
But if ground for
legal separation is
sexual
infidelity
(adultery
or
concubinage),
donation
between
persons
guilty
thereof at time of
donation is void
(Art. 739(1)NCC)

Innocent spouse may

revoke donations made
by him or her in favor of
offending spouse as well
as designation of latter
as beneficiary even if
stipulated as irrevocable
(Art. 64). Action to
revoke donation must be
brought within 5 years
from finality of decree

Succession
1.

2.

Spouse in bad faith disqualified to inherit from innocent spouse by testate or

intestate succession
If both spouses of subsequent marriage acted in bad faith, testamentary
dispositions made by one in favor of the other are revoked by operation of law
(Art. 44)

1.

Offending
spouse
disqualified
from
inheriting
from
innocent spouse by
intestate succession

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2. Provisions in favor
of offending spouse
made in the will of
innocent spouse are
revoked
by
operation of law
(Art. 63(4))

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