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CIVIL LAW REVIEW

Art. 15. Laws relating to family rights and duties, or to the


status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.

Theories on Personal Law:


1.

Domiciliary theory - the personal laws of a person are


determined by his domicile

2.

Nationality theory - the nationality or citizenship determines the


personal laws of the individual

Under Article 15, the Philippines follows the nationality theory. Family
rights and duties, status and legal capacity of Filipinos are governed by
Philippine law.

General Rule: Under Article 26 of the Family Code, all marriages


solemnized outside the Philippines in accordance with the laws in force in
the country where they were solemnized and valid there as such, is also
valid in the Philippines.

Exception: If the marriage is void under Philippine law, then the marriage
is void even if it is valid in the country where the marriage was
solemnized .
Exception to the exception:
1. Article 35, 2, Family Code
Art. 35. The following marriages shall be void from the
beginning:
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
2. Article 35, 3, Family Code
Art. 35. The following marriages shall be void from the
beginning:
(3) Those solemnized without license, except those covered
the preceding Chapter;
Even if the foreign marriage did not comply with either s 2 and 3 of
Article 35, Philippine law will recognize the marriage as valid as long as it
is valid under foreign law.

Art. 16, 1.
Real property as well as personal property is
subject to the law of the country where it is stipulated.

Lex situs or lex rei sitae governs real or personal property (property is
subject to the laws of the country in which it is located).

In Tayag vs. Benguet consolidated, the SC said that Philippine law shall
govern in cases involving shares of stock of a Philippine corporation even
if the owner is in the US.

Art. 16, 2. However, intestate and testamentary successions,


both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.

This is merely an extension of the nationality theory in Article 15.

The national law of the decedent regardless of the location of the property
shall govern. Thus, the national law of the decedent shall determine who
will succeed.

In Miciano vs. Brimo, the SC said that the will of a foreigner containing the
condition that the law of the Philippines should govern regarding the
distribution of the properties is invalid.

In Aznar vs. Garcia, what was involved was the renvoi doctrine. In this
case, the decedent was a citizen of California who resided in the
Philippine. The problem was that under Philippine law, the national law of
the decedent shall govern. On the other hand, under California law, the
law of the state where the decedent has his domicile shall govern. The SC
accepted the referral by California law and applied Philippine law (single
renvoi).

Problem: What if the decedent is a Filipino domiciled in a foreign country


which follows the domiciliary theory?
According to Professor Balane, one way to resolve the situation is
this Philippine law should govern with respect to properties in Philippine
while the law of the domicile should govern with respect to properties
located in the state of domicile.

Art. 17. The forms and solemnities of contracts, wills, and


other public instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a foreign

country, the solemnities established by Philippine laws shall be


observed in their execution.
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Lex loci celebrationis (formal requirements of contracts, wills, and other
public instruments are governed by the country in which they are
executed)
There is no conflict between the 1 st of Article 16 and the 1st of Article
17 since they talk of 2 different things.
Thus, the formal requirements of a contract involving real property in the
Philippines must follow the formal requirements of the place where the
contract was entered into. However, if what is involved is not the formal
requirements, then the law of the place where the properties (whether
real or personal) are located shall govern.
V. Foreign Marriages and Foreign Divorces

Art. 26, 1.
All marriages solemnized outside the
Philippines, in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles 35 (1),
(4), (5) and (6), 3637 and 38.

General Rule: Foreign marriages which are in accordance with the law in
force in the country where they were solemnized and valid there are valid
in the Philippines.

Exception: Void marriages under Philippine Law

Exception to the exception:


1. Article 35, 2
Art. 35. The following marriages shall be void from the
beginning:
(2) Those solemnized by any person not legally authorized
to perform marriages unless such marriages were
contracted with either or both parties believing in good
faith that the solemnizing officer had the legal
authority to do so;
2. Article 35, 3

Art. 35. The following marriages shall be void from the


beginning:
(3) Those solemnized without license, except those covered
the preceding Chapter;
Art. 26, 2. Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under
Philippine law.

General Rule: Foreign divorces obtained by Filipino citizens will be


considered void and are not recognized.

Exception: In case the parties to the marriage are a Filipino citizen and a
foreigner. If the foreigner obtains a valid foreign divorce, the Filipino
spouse shall have capacity to re-marry under Philippine law.

However, if it is the Filipino citizen who secures the divorce, the divorce
will not be recognized in the Philippines.

Requisites of Article 26, 2


1.

The marriage must be one between a Filipino and a foreigner

2.

Divorce is granted abroad

3.

Divorce must have been obtained by the alien spouse.

4.

Divorce must capacitate the alien spouse to remarry.

Article 26, 2 has a retroactive effect if no vested rights are affected.

Problem: Suppose at the time of the marriage, both are Filipinos. Later
on, one spouse is naturalized. This spouse obtains a foreign divorce. Will
Article 26, 2 apply?
2 views:
1. Justice Puno

It wont. Article 26, 2 requires that at the time the marriage is


celebrated, there must be 1 foreigner.

2. DOJ Opinion
It applies, Article 26, 2 is not specific.
Psychological Incapacity (Article 36)
Art. 36. A marriage contracted by any party who, at
the
time
of
the
celebration,
was
psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization.

Psychological incapacity is not a substitute for divorce. The


theory behind psychological incapacity is that one or both of the
spouses cannot discharge one or more of the essential marital
obligations (Article 68). There must be an absolute incapability
to do so.

During the 1st years of the effectivity of the Family Code, many
couples resorted to Article 36 as a convenient way to end their
marriage. As a result of these abuses, the Supreme Court
became very strict in applying Article 36.

Psychological incapacity must exist at the time the marriage is


celebrated (like impotence). However, psychological incapacity
need not be manifested at the time of the celebration of the
marriage. This is the tricky part.

In Santos vs. CA, the Supreme Court enumerated the following


characteristics of psychological incapacity:
1. Gravity
2. Juridical antecedence
3. Incurability

In Republic vs. CA (Molina), the Supreme Court reiterated Santos


vs. CA. Furthermore, the Supreme Court laid down several
guidelines:
1. The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubts should be resolved in
favor of the existence and continuation of the marriage and
against the dissolution and nullity.
2. The root cause of the psychological incapacity must be:
a. Psychological and not physical (although psychological
incapacity can be manifested physically)
b. Medically or clinically identified
c. Alleged in the complaint
d. Proved
sufficiently
psychologists)

by

experts

(i.e.

psychiatrists,

e. Clearly explained in the decision


3. The incapacity must be proven to be existing at the time of
the celebration of the marriage.
4. Such incapacity must also be shown to be medically or
clinically permanent or incurable.

5. Such illness must be grave enough to bring about the


disability of the party to assume the essential obligations of
marriage
6. The essential marital obligations must be those embraced by
Articles 60 to 71 of the Family Code as regards the husband
and wife, as well as Articles 220, 221 and 225 of the same
Code in regard to parents and their children. Such noncomplied marital obligations must also be stated in the
petition, proven by evidence and included in the test of the
decision.
7. Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our
courts.
8. The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the State.
The Solicitor Generals role is to issue a certification stating
why he does or does not agree.

In Chi Ming Tsoi vs. CA, the convergence of all the factors stated
in the complaint amounted to psychological incapacity.
Void under Article 40
Art. 40.
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.

Even if the 1st marriage is void, there is still a need for a


summary proceeding declaring such marriage void ab
initio. Thus, if a 2nd marriage is contracted without first
securing the declaration of nullity with regard to the 1 st
marriage, then the 2nd marriage is also void. Plus, bigamy
has been committed.
a. Qualified Presumptive Death (Article 391)
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;

(3) A person who has been in danger of death under


other circumstances and his existence has not been
known for four years.

Person on board a vessel lost during a sea voyage, missing


airplane , person in the armed forces who has taken part in war,
a person who has been in danger of death under other
circumstances and his existence is not known.

General Rule: 4 years for all purposes

Exception: 2 years for purposes of remarriage (Article 41,


Family Code)
Art. 41.
A marriage contracted by any person
during subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the subsequent
marriage
under the preceding paragraph the spouse
present
must institute a summary proceeding as
provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.

When can you ask for a decree of presumptive death for


purposes of remarriage?
1. 4 years after disappearance
2. 2 years if the circumstances fall under Article 391

Under these rules on presumptive death, there is no need for a


court decree.
The mere running of the period raises the
presumption of death.

However, for purposes of remarriage, a summary proceeding is


required under Article 41 of the Family Code. Otherwise, the
subsequent marriage is void.

In the case of Eastern Shipping vs. Lucas, the Supreme Court did
not apply Article 391. The Supreme Court said that Article 391 is
a rebuttable presumption. Being a presumption, Article 391 is
applied only if there is no evidence. In this case, the Supreme

Court had enough evidence to rule that the seaman was really
dead.
1. Legal Separation

See Articles 63 and 64 for the effects.


Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be
severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net
profits earned by the absolute community or the
conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of
Article 213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession.
Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.

Art. 64.
After the finality of the decree of legal
separation, the innocent spouse may revoke the donations
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where
the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording
of the complaint for revocation in the registries of property
shall be respected. The revocation of or change in the
designation of the insurance beneficiary shall take effect
upon written notification thereof to the insured.
The action to revoke the donation under this Article
must be brought within five years from the time the decree
of legal separation become final.
Art. 76. No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least five

years, desire to marry each other. The contracting parties shall


state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The official, priest or
minister who solemnized the marriage shall also state in an affidavit
that he took steps to ascertain the ages and other qualifications of
the contracting parties and that he found no legal impediment to
the marriage. (n)
Art. 87. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage.

General Rule: During the marriage, the spouses may not donate
to one another.

Exception: Spouses may give moderate gifts to each other on the


occasion of any family rejoicing.
NOTE: Article 87 is applicable to common-law spouses (Matabuena
vs. Cervantes)

This is to minimize improper or undue pressure as well as to prevent


the spouses from defrauding their creditors.
Administration and Enjoyment of Community Property

Art. 96, 1. The administration and enjoyment of the


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

Administration of the community property belongs to both


spouses jointly.

Both spouses must consent to the encumbrance or disposition of


the community property.

Art. 96 (2), 2.
In the event that one spouse is
incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse
may assume sole powers of administration. These powers do
not include disposition or encumbrance without authority of
the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or

encumbrance shall be void. However, the transaction shall


be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer
is withdrawn by either or both offerors.

The other spouse may assume sole powers of administration


when:
1. The other spouse is incapacitated.
2. The other spouse is unable to participate (i.e., abroad)

The power to administer does not include the power to dispose


or encumber solely by 1 spouse. Court authority or the approval
of the other spouse is required.
Charges upon the Conjugal Partnership of Gains

The charges upon the CPG are parallel to the charges on the ACP.
Art. 121. The conjugal partnership shall be liable
for:
(1) The support of the spouse, their common children,
and the legitimate children of either spouse;
however, the support of illegitimate children shall
be governed by the provisions of this Code on
Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of gains,
or by both spouses or by one of them with the
consent of the other;
(3)
Debts and obligations contracted by either
spouse without the consent of the other to the
extent that the family may have benefited;
(4)
All taxes, liens, charges, and expenses,
including major or minor repairs upon the conjugal
partnership property;
(5) All taxes and expenses for mere preservation made
during the marriage upon the separate property of
either spouse;

There is no requirement here that it be used by the family since


the CPG is the usufructuary of the property.

(6) Expenses to enable either spouse to commence or


complete a professional, vocational, or other
activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they
have redounded to the benefit of the family;
(8)
The value of what is donated or promised by
both spouses in favor of their common legitimate
children for the exclusive purpose of commencing
or completing a professional or vocational course
or other activity for self-improvement; and
(9)
Expenses of litigation between the spouses
unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable for the
unpaid balance with their separate properties.
Property Regime of Unions Without Marriage

According to Professor Balane, we should not use the term


common-law spouses simply because we are not a common law
country.

For Articles 147 and 148 to apply, the persons living together as
husband and wife must still be of different sexes.

Art. 147. When a man and a woman who are capacitated


to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivos
of his or her share in the property acquired during

cohabitation and owned in common, without the consent of


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

Requisites of Article 147:


1.

The man and the woman must have capacity to marry


each other.

2.

The man and the woman cohabit.

3.

The cohabitation is exclusive.

4. The man and the woman are not married to each other or are
married to each other but the marriage is void.

Under Article 147, the property regime between the man and the
woman would be special co-ownership.

The special co-ownership covers:


1. Wages and salaries of either the man and the woman
2. Property acquired through the work or industry of either or both

If the partner did not acquire the property directly, that


partner's efforts must consist of the care and maintenance of
the family and of the household in order for such party to own
1/2 of the acquired property.

In Maxey vs. CA, the SC said that the co-ownership arises


even if the common-law wife does not work is not gainfully
employed. The common-law wife is still a co-owner since she
ran the household and held the family purse even if she did
not contribute thereto.

The difference between this special co-ownership and the ordinary


co-ownership is in Article 147, 3. In this special co-ownership, the
following cannot be done:
1.

The co-ownership cannot


cohabitation is also terminated.

be

terminated

until

the

2.

The co-owner may not dispose or encumber his share in


the property.

Art. 148. In cases of cohabitation not falling under the


preceding Article, only the properties acquired by both of the
parties through their actual joint
contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and
evidences of credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in both faith.

Article 148 governs live-in partners who do not fall under Article
147.

Article 148 will apply if:


1. The live-in partners do not have the capacity to marry each
other; or

2.

Example of this is that there is an impediment of relationship,


crime or age.
The cohabitation is not exclusive.

The special co-ownership only covers property acquired by both


parties through their actual joint contribution of money, property or
industry. This is very similar to an ordinary partnership.

If a live-in partner is legally married to someone else, the share of


that live-in partner will accrue to the property regime of his or her
existing valid marriage.

If the party who acted in bad faith is not validly married to another his or her
share shall be forfeited to their common children or descendants. In the
absence of descendants, such share shall belong to the innocent party.
Proof of Filiation
Art. 172.
The filiation of legitimate children is
established by any of the following:
(1)
The record of birth appearing in the civil register or
a final judgment; or

(2)

An admission of legitimate filiation in a public


document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2)
Any other means allowed by the Rules of Court and
special laws.

Proof of filiation of a legitimate child is very liberal:


1. Record of birth
2. Final judgment
3. Admission in a public document
4. Admission in a private handwritten instrument and signed by the
said parents
5. Open and continuous possession of the status of a legitimate
child
6. Any other means allowed by the Rules of Court (i.e. baptismal
certificate, family bibles, common reputation respecting
pedigree, testimony of witnesses, etc.)

Proof of filiation is very liberal because the law favors legitimacy. It


is better to treat an illegitimate child as legitimate then to commit
an error and treat a legitimate child as an illegitimate.
Art. 213.
In case of separation of the parents, parental
authority shall be exercised by the parent designated by the Court.
The Court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

The 2nd paragraph of Article 213 provides that no child under 7 years of
age shall be separated from the mother, unless the court finds compelling
reasons to order otherwise.

In earlier cases, the mother was almost always the custodian of a child
who is below 7 years. There is a trend of liberalizing this. Courts will
always look at the best interest of the child as the criterion.