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PERSONS AND FAMILY RELATIONS

COMPLETE REVIEWER

Background on the Philosophy of the Civil Code:

Spanish Precedents of Philippine Law

The Philosophy of the Civil Code

Tasks of the investigator of the Philosophy of Law:
1. Trace the origin of law to its sources in human
nature;
2. Connect the law with the society that evolved and
the circumstances of the time in which it originated;
3. Relate the importance of the law under the influence
of economic, social and other conditions;
4. Point out the basic elements of the law;
5. Distinguish law from ethics.

Visigoths- Early settlers in Spain that were overrun by Moors

who converted the former into Christianity.
Moors- Promulgated non-barbaric laws
Alaric, Leader of the Goths- Promulgated Code of Alaric
which introduced barbaric tribal customs to Roman Law.
Fuerzo Juzgo- First great code of Spain combining Roman,
Germanic and Religious edicts.
Siete Partidas- Written by Fernando III and Alfonso X, it
contained laws based on Spanish Visigoths but patterned
after Institutes of Justinian.

Contained 7 codes pertaining to different aspects of

law.

First book contained natural laws, usages and

custom and administrative laws.

Second book contained administrative laws.

Third book contained court rules, land ownership and

possession laws and servitude laws.

Fourth book contained laws on persons and family

relations.

Fifth book contained laws on obligations and

contracts.

Sixth book contains laws on succession, intestacy,

heirship and guardianship.

Seventh book contained penal laws.

Our Civil Code was founded on the laws of Spain which was
based largely on Roman Law (Institutes of Justinian).
Corpus Juris Civilis- accumulation of old Roman Laws as
modified by early Christians.

Ancient Roman Law was the combination of tribal

customs, royal edicts, and priestly commands.
Ancient Romans fashioned their laws according to
their lifestyle, which at that time was greatly
influenced by religion.

Lex Jus- Command and Justice

In contrast to pater familias where heads of the

family are allowed to kill his children and wife.

Relationship was not only between men but between

God and men. Crimes, at that time, were considered
a disturbance of this relation.

Medieval Philosophy and its Influence

St. Augustine- The state is a kingdom of the Impious

Laws were designed to maintain and restore the

peace of the gods (pax decorum), peace between
men and peace between god and men.

St. Thomas Aquinas- Wrote the Summa Theologica

Theory of Injury and Liability- Injuring ones neighbor was

discouraged because such act would prompt gods to strike
back at the evil doer thereby causing the imperil of the entire
community.

It is only when law becomes distinguishable from religion

that its philosophy becomes discernible.

Bonus Pater Familias- Literally meaning good father of the

family, this was considered a standard by which one should
pattern his conduct.
- Roman law was typically, a law without ethics.

-Roman laws of property were extremely individualistic.

-Romans only recognized two forms of associationsocietas
and corporation.

Justicia Generalis- obligation of restitution

Justicia Particularis
o Justicia commutative- obligation of
restitution
o Justicia distribution- distributive justice
applying justice in geometric proportions.

1805- Civil Code became a model

-Four-book compilation of the Civil Code was promulgated.

Book One: Persons and Family Relations

Book Two: Property, Ownership and Modification

Book Three: Modes of Acquiring Ownership

Book Four: Obligations and Contracts

Two Principles to Moderate the Extreme Individualism of

Roman Law
goodness,

Lex Humana- Positive laws which are man-made

applications of natural laws.

Ordenamiento Alcala- spiritual aspects of contracts

Leyes de Toro- Written by the Spanish Cortes in 1502
Nueva Recopilacion- compilation of all Spanish Laws made in
1567
Novisisima Recopilacion- another compilation of Spanish
Laws.

Law of Contracts and Bailments- Someone who broke his oath

is considered a danger to society and is in danger of mortal
peril.

kindness,

Lex Naturalis- Natural laws which are made known

through reason.

Penal Principles

Philosophy of Private Roman Law

Humanitas- Considers
consideration for others.

Lex Externa- laws based on divine reason which

governs the world.

sympathy,

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giving a young woman contraceptives. A
Massachusetts law only allows the sale of
contraceptives with prescription from a physician
or a pharmacist for married couples.
Held: The statute violates the equal protection
clause of the 14th amendment in that it
discriminates between married and unmarried
couples. The means by which the State Interest is
protected is not rationally adequate whether the
interest be prevention of pre-marital sex or
health protection. For one thing, the measure
does not prevent extra-marital relations for
another, not all contraceptives are considered
dangerous. Lastly, the discrimination makes it
seem as though pre-marital conception and
sexually transmitted disease is punishment for
pre-marital sex. This punishment is then handed
out without due process of the law.

American Influence on the Civil Code

INDIVIDUALISM became a pervading theme during

the forging of the new Civil Code.
Bill of Rights
Seeking redress for grievances
Intersection of Modern Constitutional
Traditional Family Law

Developments and

Constitutional Provisions
Article II, Section 12: The State recognizes the sanctity of
family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents
in the rearing of the youth for civic efficiency and the
development of moral character shall receive support of the
government.
Article II, Section 14: The State recognizes the role of women
in nation building and shall ensure the fundamental equality
before the law of women and men.

Civil Personality

Article III, Section 1: No person shall be deprived of life,

liberty or property without due process of law, nor shall any
person be denied the equal protection of the laws.

Concepts and Classes of Persons

Person- any being that can be subject of legal relations.

Article XV, Section 1: The State recognizes the Filipino

family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total
development.

Classes of Persons:

Natural Persons- Human beings

Juridical Persons- entities formed by the association

of men.

Article XV, Section 2: Marriage, as an inviolable social

institution, is the foundation of the family and shall be
protected by the state.

Personality- aptitude of becoming subject of, active or

passive, juridical relations
Status of Persons- Legal condition or class which one belongs
in society
It is the legal or the juridical position of the
individual in society, or with regard to the rest of the
community

Griswold vs. Connecticut

Facts: Griswold was executive director of the
Planned Parenthood League while Buxton, his coplaintiff was a licensed physician who served as
director of the said league. Both were convicted
as accessories by virtue of a Connecticut birth
control law which bars them from giving
information, instruction and medical advice for
contraception, to married persons. A married
woman
was
examined
in
the
leagues
headquarters along with her husband and was
given a prescription for contraception.
Held: The Connecticut Statute which forbids
contraceptives abridges the right to marital
privacy without due process of the law. The state
interest protected by the statute, which is to
prevent extra-marital relations is carried out is a
manner so sweeping as to penalize the inherent
intimacies of couples who have the right to plan
their family.

It is determined by a series of personal qualities,

which respectively carry with them certain rights and
obligations.
A persons status serves to determine the nature and
number of rights and obligations.

Kinds of Status

Political or Civil, depending on whether he is

considered in the light of public law or private law.
Rights and obligations in connection with suffrage
refer to Political status while those arising from
family relations refer to Civil status.

Civil Status
Status as a member of society (i.e. resident or nonresident)
Status as a member of a family
Status with respect to the person himself (i.e. age,
mental condition, sex)
Profession cannot be considered status because the
qualities which create a status should be inherent in
the person himself.

Eisenstadt vs. Baird

Facts: William Baird was tried for exhibiting
contraceptives while delivering a lecture and for

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Facts: Ciriaco Baldesco and Bonifacio Tirol were
among the fourteen who murdered 7 members of
the family of Manibpol Kosain. They were
convicted of 7 murders and 2 frustrated murders
as Manibpol, the father and his daughter,
Undang, survived. In the course of the appeal,
while awaiting the final sentence, Baldesco died
in prison.
Held: Baldescos civil and criminal liabilities are
extinguished by his death however, indemnities
shall be paid for through his estate.

Characteristics of Status- the status of a person is outside the

commerce of man hence:
It is inalienable in that it cannot be transferred to
another;
It is imprescriptible in that it cannot be imposed on a
person;
It cannot be the subject of compromise;
It cannot be renounced;
It cannot be exercised by creditors
CC Article 37: Juridical Capacity is the fitness to be the
subject of legal relations. It is inherent in every natural
person and is lost only through death.
Capacity to act which is the power to do acts that have legal
effect, is acquired and may be lost.

CC Article 43: If there is doubt between two or more

persons called to succeed each other, as to which of them
died first, the one who alleges the death of one prior to
another shall have the burden of proof.
If no proof is available then it shall be presumed that they
died at the same time.
Note: There is an issue of succession and not just
survivorship.

Juridical Capacity- legal capacity

Capacity to Act- aptitude for the exercise of rights which is
conditional and variable, requiring intelligence and will.
CC Article 40: Birth determines personality.
The conceived shall be considered born for all purposes that
are favorable to it provided that it be born later.

-Rule 123, section 69, paragraph ii:

If two or more persons die in a calamity and it
cannot be shown who died first and there are no
circumstances by which it can be inferred, survivorship is
presumed from the probabilities resulting from the strength
and age of sexes.
1. <15 years, the older is presumed to have survived
2. > 60 years, the younger is presumed to have
survived
3. <15 and >60, the younger is presumed to have
survived
4. >15, <60 for both; male is presumed to have
survived if sexes are the same, then the older one.
5. <15 or > 60 and >15 ,<60, the younger is
presumed to have survived

Birth- removal of the fetus from the mothers womb

Conceived Child- can be given inheritance by will or donations
CC Article 41: The fetus is considered born if it is alive at the
time it is completely delivered from the mothers womb.
For premature birth of less than seven months, it is
considered born if it survives for at least 24 hours after its
delivery.
Separation- cutting of the umbilical cord
Test of life- complete respiration or in the case of a deceased
child, the lungs should float in water.
Viability- the childs ability to live which is presumed if it
survives separation from the mother

Geluz vs. Court of Appeals

Facts: Nita Villanueva has gone through abortion
thrice. Oscar Lazo sued Geluz the abortionist for
pecuniary damages which was granted by the
Court of Appeals and then appealed by Geluz in
the Supreme Court.

vs. Navarro
Facts: During the Liberation of Manila, Joaquin
Navarro Sr., his wife Angela Joaquin, his three
daughters, Pilar, Conception and Natividad and
Joaquin Navarro Jr together with his wife Adela
Conde and friend Francisco Lopez, sought refuge
inside German Club. The three daughters were
instantly killed. Joaquin Sr., Joaquin Jr., with his
wife and friend, fled the place leaving Angela
Joaquin in the German Club. Immediately after
leaving the place, as attested by Francisco Lopez,
Joaquin Jr. was shot in the head. Minutes later,
German Club collapsed presumably killing Angela
Joaquin inside. Days later, Joaquin Sr. died in a
confrontation.
The victims were survived by Ramon Joaquin,
natural child of Angela Joaquin by her first
marriage and Antonio C. Navarro, and son of
Joaquin Navarro by his first marriage.
The Court of Appeals invoked the statutory
provision on the presumption of survivorship.
Held: The statutory provision cannot be invoked
because there are evidences as attested to by
Joaquin

Held: An unborn child has no juridical capacity

and as such, the parents cannot sue for
pecuniary damages on its behalf. The child not
having been born, the parents are not in the
position to sue on its behalf because they cannot
be considered parents if there is no child to speak
of. Moral damages cannot be granted because of
the indifference of the father.
CC: Article 42: Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the
deceased shall be determined by law, by contract or by will.
-For certain purposes, the personality is deemed to continue
in the estate of the deceased which has a legal personality
independent of the heirs.

People vs. Tirol

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Francisco Lopez, from which it can be inferred
that Angela Joaquin survived Joaquin Navarro Jr.
before having died herself.

Held: Burden of proof for insanity lies on the

person who alleges it. There were no evidence to
prove insanity, save from the declaration of the
Court of First Instance. There were, in fact, a
preponderance of evidence stating otherwise,
among these are the lack of restriction on the
husband (the husband is not habitually
insane), the apparent sound mind of Villanueva
during the execution of the contract (he
understood the nature of the bond), and he
has made contracts prior to that (the husband
had not been insane prior to the execution
of the bond).

CC Article 44: The following are juridical persons:

1. The State and its Political Subdivisions
2. Public corporations, institutions and entities which
are created by law
3. Private corporations, partnerships and associations
to which the law grants juridicalpersonality.
-Corporation is an artificial being created by law and as such,
enjoys certain rights and privileges that can be afforded to it.
CC Article 45: Juridical Persons such as the state and public
corporations are governed by laws recognizing them.
Private corporations are governed by laws of general
application on the subject.

Restrictions
CC Article 6: Rights may be waived unless it is contrary to
law, public order, public policy, morals or good customs or
prejudicial to a third persons rights.

-Corporations are governed by its charter and the Corporation

Law
-Private Partnerships are governed by its articles of
association and their contract.

-Kinds of Rights:
1. Rights of Personality-rights which protect the human
personality.
2. Family Rights-rights of a person as a member of a family.
3. Patrimonial Rights- Rights referring to ownership, etc.

CC Article 46: Juridical Persons may acquire and possess

property, incur obligations and liability or criminal actions in
conformity with laws and regulations of the organization.
Juridical capacity is extinguished upon dissolution of
the corporation, association or partnership.

CC Article 38: Minority, imbecility, the state of being deaf

mute, prodigality and civil interdiction are mere restrictions
on capacity to act, and do not exempt the incapacitated
person from certain obligations.

CC Article 47: Properties and assets of dissolved

corporations or other entities shall be disposed of in
pursuance to the law or the charter creating them. If nothing
is specifically written, then it shall be applied for the benefit of
the region, province or municipality which it derived principal
benefits from.

Minority- by virtue of RA 6809, the age of majority has been

lowered to 18 from 21.
Insanity or Imbecility- includes various forms of mental
diseases. Some may sometimes only be mentally deficient.
Deaf-mute- No longer to be presumed an idiot and is now
considered capable of entering into contracts if is shown to
have sufficient mental capacity.
Prodigality- characterized by excessive drinking, gambling,
idleness or debauchery

Capacity to Act and Restrictions Thereon

Presumption of Capacity

Standard Oil Co. vs. Arenas

Facts: Juan Codina Arenas, Francisco Lara del
Pino (principals) and Alipio Lacso, Vincente
Sixto and Siy Ho (sureties) assumed obligations
to pay jointly and severally to Standard Oil Co.
the sum of P3,305.76 three months from the
execution of the bond, with 1% interest per
month.
Arenas and Lara del Pino failed to pay the bond
and, as sureties, Vincente Sixto along with Siy Ho
and Alipio Lacso are compelled to pay the said
amount. The court declared Vincente Sixto in
default for having failed to show up at the trial
concerning the said bond and was ordered to pay
the defendants the amoun. Elisa Torres de
Villanueva appeared in court alleging that her
husband, Sixto Villanueva, had been declared
permanentlyinsane by the Court of First Instance
of Manila and wishes for the exemption of the
husband from paying the said bond as he is said
to be suffering from monomania of wealth.

CC Article 39: The following circumstances limit a persons

capacity to act: Insanity, imbecility, being deaf-mute, civil
interdiction, prodigality, family relations, alienage, absence,
insolvency and trusteeship.
Capacity to act is not limited on account of religious belief or
political opinion.
A married woman, eighteen years of age are qualified for all
aspects of civil life except if specified otherwise.
Note: We always presume what is normal. Otherwise, our
daily lives will be greatly affected.
A. Minority
CC Article 1327: Unemancipated minors, insane or
demented persons and deaf-mutes incapable of writing,
cannot give consent to a contract.
CC Article 1390 (1): In cases where one of the parties is
incapable of giving consent to a contract, the contract
becomes voidable* or annullable even though there was no
damage to the contracting party.

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CC Article 1403 (3): A contract where both parties are
incapable of giving consent is unenforceable** unless ratified.

*Those which are indispensable for sustenance.

*A voidable contract is one whose validity can be disputed in

court as opposed to
**an unenforceable contract which is valid or binding only
between the two parties but is likewise unenforceable in
court.

Braganza vs. Villa Abrille

Facts: Rosario Braganza and her sons,
Guillermo and Rodolfo, signed a promissory
note indicating that they will pay a loan
given by a certain Fernando Villa Abrille. The
loan amounted to P70,000 in Japanese
currencies and, according to the promissory
note, Braganza will pay P10,000 in legal
currencies. The two sons were minors at the
time the contract was signed.
Held: The contract, insofar as the minors
were concerned was not valid. However, they
must make restitution insofar as they
benefit. As such, they not pay 2/3 of the
amount stipulated in the contract but merely
the amount that was loaned to them which
was P1,166.00 in legal currencies.

CC Article 1397: Persons who are capable cannot allege the

incapacity of those with whom they contracted.
CC Article 1399: An incapacitated is not obliged to make
restitution except in so far as he has benefited from the
contract.
CC Article 1426: There is no right to demand a thing or
price from a minor who, because of lack of consent from the
parent or guardian, upon the annulment of the contract,
returns the thing or price he received.
CC Article 1427: When a minor pays according to a contract,
without the consent of his parent or guardian, the sum of
money delivered cannot be returned to the minor because the
other party is expected to have spent it in good faith.

Effect on Contracts

Shields vs. Gross

Facts: In 1975, when Brooke Shields was 10,
a consent was given by her mother on her
behalf, indicating that the pictures taken by
Gary Gross may be used for whatever
purposes. Plaintiff requested the court to
prevent defendant from using her pictures.
Non-jury court prevented the defendant from
using the pictures for advertising or trade on
the grounds that court approval for a minor
was necessary to validate the consent, as
stated in Section 3-105 of the General
Obligations Law.
Held: By virtue of Section 50 and 51 of the
Civil Rights Law, a persons pictures, name,
etc., can be used if written consent is given.
If the person is a minor, his or her parents
can give the consent. As such, the consent
was valid. Section 3-105 cannot be invoked
as Shields did not fall under the categories
stipulated under the said statutory provision.

Mercado vs. EspirituFacts: The annulment of a deed of sale was

sought on the ground that two of the four parties
in the deed were minors when the deed was
executed. In the deed of sale the minors stated
they were of legal age when they made the
manifestation in front of the notary public and
then signed it.
Held: Contracts signed by minors who allege they
are of legal age and in fact, appear to be so, is
valid and binding. They are therefore estopped*
from alleging otherwise.
*barred from disputing the genuineness of the deed of sale,
as in the case of Mercado vs. Espiritu.

Bambalan vs. Maramba and Muerong

Facts: Isidro Bambalan was the heir of a piece of
land owned by Vicente Lagera, deceased.
Bambalan was forced by Maramba and Muerong
to whom the mother owed P150, to sign a deed of
sale as his mother will otherwise be put in prison.
Bambalan signed the contract and both Muerong
and Maramba knew of his age as they were the
ones who procured the cedula necessary to
certify the contract.
Held: Plaintiffs age was known to the contracting
parties as such, the contract is not valid and the
right of Bambalan as a minor can be enforced.

Effect on Marriage of Minors

FC Article 5: Any male or female aged 18 and above, may

contract marriage.
FC Article 35: The following are void marriages from the
beginning:
1. Those contracted by any party below 18 years, even
with the consent of a parent or guardian
2. Those solemnized by a person not legally authorized
to perform a marriage unless the married couple
believed in good faith that the person was authorized

CC Article 1489: All persons authorized by the Code can

enter into a contract of sale. When necessaries* are sold and
delivered to a minor or a person without capacity, he must
pay a reasonable price therefore.

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3.

Those solemnized without a license

4.

Those bigamous or polygamous

Those contracted through a mistaken identity

5.

CC Article 1328: Contracts entered into during a lucid

interval are valid while those entered into in a state of
drunkenness is voidable.

Carillo vs. Jaojoco and Jaojoco

Facts: Adriana Carillo executed a deed of sale to
Justiniano Jaojoco. Nine days later, Carillo was
declared to be mentally incapacitated and then
died still later. Miguela Carillo appealed for the
annulment of the said contract stating that
Adriana Carillo could not have executed the deed
in a lucid state owing to the fact that the land of
over 300,000 hectares was sold for only P4,000.
Held: The contract is valid. Burden of proof of
mental incapacity lies on the person who alleges
it. No such proof exists and prior to the
confinement of the deceased in Hospicio de San
Lorenzo, she was able to manage her estate,
which had been left to her by her husband. Her
doctor and the one who executed the notarial
instrument also noted that the deceased was
responsive at the time they had been with her.

Moe vs. Dinkins

Facts: Maria Moe and Raul Roe alleged that the
New York Domestic law 15.2 which states that
males between 16-18 and females between 1418 must obtain parental consent to be granted
marriage, is unconstitutional. They stated that
they have a child born out of wedlock and they do
not wish for their child to grow up with the stigma
of illegitimacy. Cristina Coe and Pedro Doe filed a
motion to interfere as they had a stake at the
outcome of the trial. Cristina Coes mother, like
Marias also refused to give her consent to the
wedding but unlike Maria, Cristinas child was yet
to come.
Held: The States interest as parens patriae
(guardians of the country) in protecting minor
from making immature decisions is legitimate
and the manner by which this interest is
protected is proportionate to the interest.

Effects on Crime

RPC Article 12

RPC Article 12: The circumstances which exempt from

criminal liability are:
1. An imbecile or insane person (unless he acted during
a lucid interval),

2.
3.
4.
5.

US vs. Vaquilar
Facts: Evaristo Vaquilar killed his wife and
daughter and as such, he was convicted of
parricide for which he appealed. Witnesses do not
know of any prior disagreement between the
deceased and the defendant which may have
caused a sudden outrage. They witnessed
however, that the defendant looked like a
madman, going after everyone in sight. His eyes
were red and penetrating and he had complained
of stomach and head ache before the event
occurred.
Held: An extremely angry man often acts like a
madman. Although no prior disagreement was
witnessed, that is not sufficient as to say that the
defendant was in sane. Any person who allows his
or her anger to go so far as to make them
reckless does not excuse him from criminal
liability.

A person under 9 years of age*,

A person over 9 years of age but under 15, unless it
can be proven that he acted in discernment, in which
case, he will be sent to an institution servicing such
children with criminal liabilities.
Any person who causes an injury while performing a
lawful act,
Any person who acts under a compulsion of
irresistible force.

RPC Article 18: Accomplices are those who cooperate in the

execution of an offense by previous or simultaneous acts.
RPC Article 68: When the offender is a minor under 18 years
of age, if he is
1. Over 9 years and under 15 and it has been proven
that he acted with discernment then a discretionary
penalty shall be imposed which must always be
lower by two degrees than that which the law
prescribes for such crime.
2. Over 15 years and under 18 years of age, the
penalty being the next lower penalty prescribed by
law for that crime but always in the proper period.

Dumaguin vs. AI Reynolds, EJ Harrison and

Big Wedge Company
Facts: Paulo Dumaguin was admitted to Hospicio
de San Felipe as he was suffering from paranoia.
His wife had filed for guardianship which was
granted. Dumaguin later acquired a job as a
prospector who relocates mining claims to
ANACONDA group owned by AI Reynolds and EJ
Harrison. Ten mining claims were located and as
prospector, the claims were filed under
Dumaguins name in the Office of the Mining

B. INSANITY

Effect on Crimes

Effects on Contracts

CC Article 1327: (Page 5)

CC Article 1399: (Page 6)

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Recorder, until a deed of transfer was executed.
Dumaguin then asked the court that the deed of
transfer executed by him be considered null and
void because he did not possess the mental
capacity to execute such transfers.
Held: A person under guardianship could still
enter into a contract provided that he or she was
not in mental defect during the execution of the
contract. Also, having been employees of
ANACONDA group, it was within the confines of
their job to execute such transfers. Nevertheless,
if he did own the mining claims, it would have
been aptly named deed of transfer.

old girl who testified along with Rufina. The

defendant alleged that neither Rufina nor Severa
can testify as one was deaf and dumb and the
other too young.
Held: The theory that deaf and dumb persons
cannot testify as a competent witness has been
dispelled (People vs. de Leon) because it is not
sufficient. For as long as the requisite intelligence
required to understand the nature of the oath can
be proven then a deaf-mute can testify. In
relation to the seven year old, the court has held
that a child can testify as long as he or she can
understand the nature of the oath.

Effect on Marriage

Director of Lands vs. Abelardo

Facts: Director of land claims that the failure of
Fulgencia and Jose Dino to register any claim to
lots nos. 773 and 810 which was previously
owned by their grandmother, is due to their being
deaf and dumb. As such, they were unable to act
within the prescriptive period within which they
can register their claim.
Held: The state of being a deaf-mute is not
considered an incapacity that will prevent a
person from running of a prescriptive period.

FC Article 45: A marriage may be annulled for any of these

causes:
1. If the party was over 18 and under 21 and the
marriage was solemnized without the consent of
parents or guardian, unless after reaching the age of
21 the couple has continued to cohabit,
2. Either party was of unsound mind unless the party
has come to reason and freely cohabit,
3. Consent by either party was obtained by fraud or
force,
4. Either
party
was
physically
incapable
of
consummating the marriage and the incapacity is
incurable,
5. Either party was afflicted with STD which is
incurable.

D. Prodigality
RC Article 92 (2): Persons suffering the penalty of civil
interdiction, hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those of unsound mind and
other similar cases, cannot, without aid, take care of
themselves and manage their property.

FC Article 47: The persons who can file for an action for
annulment are:
1. By the party whose parent or guardian did not give
consent, within 5 years after attaining the age of 21,
or by the parent or guardian before the minor
reaches 21,
2. By the sane spouse who did not know of the other
persons insanity or by the guardian of the insane or
by the insane spouse during a lucid interval.
3. By the injured party, within years of the discovery of
fraud or force,
4. For the injured party, in relation to STD and
Impotence, after 5 years of marriage.

Martinez vs. Martinez

Facts: Pedro Martinez appealed to the Supreme
Court to declare his father, Francisco Martinez, a
prodigal. Pedro Martinez alleged that since his
fathers marriage to Anastacia Ilustre, his fathers
second wife, the wide and her parents have been
given properties amounting to $200,000. He
added that the administration has also been
turned over to his fathers wife. Defendant stated
that the son had, prior to the marriage, managed
the estate by power of attorney but it was
revoked because the son has mismanaged and
misappropriated the property. The estate was
said to have flourished since it was managed by
Francisco Martinez wife and one half has also
been in the ownership of Pedro Martinez, him
being the sole heir of the first wife.
Held: Acts of prodigality must show a morbid
state of mind and a disposition to spend, waste
and lessen the estate to such an extent as to
expose the family to poverty.

C. State of Being Deaf-Mute

CC Article 1327: (Page 5)
CC Article 807: If the testator* is deaf or a deaf-mute, he
must be able to personally read the will or designate two
persons to read it and communicate with him in a practicable
manner.
*A person whose property is transmitted through a will.
CC Article 820: Any person of sound mind and legal age, not
blind, deaf or dumb and able to read and write, may be a
witness to the execution of a will.

People vs. Sasota

Facts: Fidel Sasota was found guilty of raping
Rufina Barbuco, a deaf and dumb girl. The crime
was witnessed by Severa Barbuco, a seven-year

E. Civil Interdiction

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RPC Article 34: Civil interdiction shall deprive the offender of
the rights of parental authority or guardianship, either as to
person or property.

Section 11: Franchise, certificate or any form of authorization

for operation of public utility may be granted to citizens of the
Philippines or corporations, associations or organizations
where at least 60% of the capital is owned by Filipinos. All
executive and managing officers of public utilities must be
citizens of the Philippines.

RPC Article 11.2: Relatives that can be defended (without

criminal
liability):
spouses,
ascendants,
descendants,
legitimate, natural or adopted brothers and sisters, relatives
by affinity in the same degree or relatives by consanguinity of
the 4th civil degree.

PC Article XIVSection 4: Educational institutions, apart from those owned

by religious groups or mission boards must be owned solely
by citizens of the Philippines or corporations or associations at
wherein 60% of the capital is owned by citizens. Congress
may legislate to increase Filipino equity participation.
No educational institution shall be established exclusively for
aliens. No group of aliens shall comprise more than one third.
These provisions do not apply to schools established for
foreign diplomatic personnel and their dependents.
Revenues, grants and endowments shall be exempt from
taxes.

RPC Article 13.5: Acts which are committed in immediate

vindication of a grave offense to the one committing the
felony (are mitigating circumstances).
CC Article 54: Males 16 years upwards may contract
marriage while females 14 years upwards may contract
marriage.
CC Article 123: A person under civil interdiction may
contract marriage provided that there is a court designated
guardian available to witness the said marriage.

PC Article XVISection 11: Ownership and management of mass media shall

be limited to citizens of the Philippines or corporations,
cooperatives, associations wholly owned and managed by
such citizens.
Congress shall prohibit monopolies in commercial mass media
for the sake of public interest.
Filipino citizens or corporations and or associations wherein
seventy percent of capital is owned by citizens of the
Philippines shall be allowed to engage in the advertising
industry. All executive and managing officers must be citizens
of the Philippines.

F. Family Relations
FC Article 37: Marriages between ascendants and
descendants of any degree or between brothers or sisters full
or half-blood, are considered incestuous and void.
FC Article 87: Donations or grants given directly or indirectly
between spouses during marriage are void with the exception
of moderate gifts. The same is true for persons living together
as husband and wife.
-

This is dictated by the principle of unity of

personality of spouses.
Any person prejudiced by the donation or grant may
question its validity.

H. Absence
CC Article 390: An absentee shall be presumed dead for all
purposes, after an absence of seven years.
For purposes of succession, absentee shall be presumed dead
after 10 years or 5 years for those 75 and above.

CC Article 1109: Prescription* does not run between

husband and wife even though there is a separation of
property agreed upon in the marriage settlements. The same
is true between parents and children that are still minors or
those considered insane and between guardian and ward.

CC Article 391: The following are presumed dead for all

purposes:
1. Person on board a lost sea vessel or aeroplane,
2. Person missing for 4 years after taking part in a war,
3. Person who after being in danger of death has not
been heard from for four years.

CC Article 1490: Husband and wife cannot sell property to

one another when separation of property has been agreed
upon and there has been judicial separation.

FC Article 124: Conjugal partnership property belongs to

spouses, jointly. In case of disagreement, the decision of the
husband shall prevail and the wife may appeal for remedy in
court within 5 years since the implementation of the contract.
Spouse may assume sole powers in case the other is
incapacitated.
Encumbrance or disposal of property shall be with the
authority of the court or with the written consent of the
spouse.
A contract with the authorization of the spouse is binding.

G. Alienage
PC Article 12Section 2: All natural resources, with the exception of
agricultural lands, are owned by the state. As such,
exploration, development and utilization are under its full
control and supervision. The State may undertake such
activities directly, in co-production, joint venture or
production sharing with Filipino citizens or corporations or
associations where 60% of the capital is owned by Filipinos.
The same is true for agreements with foreign-owned
corporations.
Only small-scale utilization of marine life is allowed.
Section 7: No private lands shall be transferred to individuals,
corporations or associations qualified to acquire land, except
in cases of hereditary succession.
Section 8: Natural-born citizens of the Philippines who has
lost citizenship maybe a transferee of private lands subject to
limitations provided by law.

I. Marriage
CC Article 2259: The capacity of a woman to enter into
contract is governed by the civil code even if the marriage
occurred prior to the enactment of the said code.
RC Rule 3, Section 4: A married woman cannot be sued
alone without joining her husband except:
1. When they are judicially separated,
2. If they have been separated for at least 1 year,

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

When there is a separation of property agreed upon

in marriage settlements,
If the administration of all the property has been
transferred to her,
When the litigation is between husband and wife,
When the suit involves her paraphernal property,
When the action is a civil liability arising from a
criminal liability,
If the litigation is based on the profession,
occupation or a business in which she is engaged,

Ordinary contracts can be terminated by mutual

agreement of the parties while marriage cannot be
so terminated. Neither can it be terminated even
though one of the parties subsequently becomes
incapable of performing his part.
Breach of ordinary contracts gives rise to an action
for damages while breach of the obligations of a
husband or a wife does not give rise to such an
action..

- The States role is to protect the family as the foundation of

the nation.
PC Article XV*The states role is to protect the family as the foundation of
society.
Section 1: State recognizes the Filipino family as the
foundation of the nation.
Section 2: Marriage is an inviolable social institution.
Section 3: State shall defend1. The right of spouses to found a family in accordance
with their religion and the demands of responsible
parenthood.
2. The right of children to assistance, and special
protection.
3. The right of family to a family living wage income.
4. The right of families to participate in the planning
and implementation of policies and programs that
affect them.
Section 4: The family has the duty to care for its elderly
members.

Marriage
Nature of Marriage
-Procedure by which a man and a woman become
husband in wife, uniting for life.
-A status involving duties or responsibilities which
are no longer matter for private regulations but the concern
of the state.
-Civil or social institution which is the foundation of a
family and origin of domestic relations.

Breach of Promise
CC Article 19: Everyone must act with justice, give everyone
his due and observe honesty and good faith.
-The exercise of a right ends where the right disappears and
it disappears when it is abused, to the prejudice of others.
Good Faith- abstaining from taking advantage of others.

Purposes of Marriage
1. Reproduction
2. Education of the offspring
3. Mutual help

-A bride or groom who breaks an engagement without reason

causing moral and material injury to the other party is liable
for damages especially if the decision is made just before the
wedding and after a long engagement.

Immediate purpose: constitute a complete and perfect

community between two individuals of different sexes.
Remote purpose: preservation of human race.

CC Article 20: Every person who willfully or negligently

causes damage to another shall be liable for indemnity.

FC Article 1: Marriage is 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, except
that marriage settlements may fix the property relations
during the marriage within the limits provided by this code.

-A person is required to act with prudence and diligence.

CC Article 21: Any person who willfully causes loss or injury
to another in a manner contrary to morals, good customs or
public policy is liable for damages.
-Acts which are not unlawful but are likewise contrary to
morals or good customs, public order or policy shall fall under
this provision. This article was created to provide adequate
legal remedy.

Ordinary Contracts vs. Marriage Contracts:

Ordinary contracts may be entered into by any
number of persons of whatever sex while marriage
can be entered into only by one man and one
woman.
In ordinary contracts the agreement of the parties
have the force of law between them while in
marriage, the law fixes the duties and rights of the
parties.

Willful Act- an act done with knowledge of the effect

Seduction, wherein a woman who was promised with
marriage gives herself to a man but was later left by
the man qualifies as deceit and may be used as basis
for indemnity.
So long as there is a wrongful act and a resulting
injury, there should be civil liability.

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-The injury must be the proximate cause of an act.
-No person shall unjustly enrich himself at the expense of
another.

De Jesus vs. Syquia

Cesar Syquia had sexual relations with Antonia
Loanco. Through a letter to a priest, he had made
it apparent that he wanted the child carried by
Antonia to be recognized as his. In several other
letters, he referred to the child as junior. For a
while the two partners lived under one roof with
Antonias mother, after the birth of the child.
Another child was conceived, upon which, Syquia
left, never to be heard from again. At the
christening of the child, Antonia named the child
Ismael Loanco.
Antonia then filed a suit against Syquia, to
recover P30,000 for damages for breach of
promise to marry and to pay for her maintenance
along with the two children. Trial court ordered
that the first child be recognized and for Syquia
to pay a monthly maintenance of P50.
Held: Supreme Court affirmed the judgment on
the grounds that the breach of promise was not
satisfactorily proven, owing to the fact that the
sexual relations continued even after the birth of
the first child and even though there was still no
marriage. In relation to the second child being
recognized, there was no proof to compel such
action.

CC Article 2176- Whoever by act or omission causes

damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence is
considered a quasi-delict and is governed by law.

Wassamer vs. Velez

Francisco Velez and Beatrice Wassmer decided to
get married on Septemeber4, 1954. On Sept. 2,
Velez left a note saying that the said marriage
has to be postponed. The following day, another
note arrived saying the marriage was still going
to push through. After that, plaintiff has never
heard from him.
When plaintiff filed for evidence before the clerk
of court, the defendant was held in default and as
such, plaintiff was awarded P2,000 actual
damages, P25,000 moral damages and P2,500 for
attorneys fees. Defendant filed a motion for relief
and court gave both parties enough time to settle
outside of court. No such settlement happened
and several times, the defendant asked for
extension.
Held: The manner by which the defendant left the
plaintiff, only a few days before the wedding, was
contrary to good customs. At that time, the
wedding has been aptly prepared and the visitors
had been notified and so, that the plaintiff was
affected is no longer in question. Civil indemnity
is due in this case.

Marriage Models
Economics and the Public Purpose
By John Kenneth Galbraith
-Industrialization eliminated the need for women to work.
-Rising standards of popular consumptions saw the need for
household managersmarried women.
-The lady of the house is the chief menial to the household.
-Diversity and consumption increase made household
management complex thereby requiring management skills.
-Women were converted into crypto servants contributing
of the Gross National Product by way of efficient
consumerism.
Household- the disguise for the exercise of male authority
Neoclassical Consumer Equilibrium- the distribution of income
to various uses so that satisfactions are roughly equal to the
margin
-Decisions depend on who earns a living.
-Women had only the power to implement decisions and not
make them.
-The service of women to the economy is based on her sense
of duty and capacity to affection.

Tanjanco vs. CA
Facts: Apolinario Tanjanco and Arceli Santos are
both of adult age. Santos consented to have
sexual intercourse with Tanjanco with the
promise of marriage. After almost a year of such
relationship, Santos conceived of a child and due
to humiliation she left her job at IBM Philippines
where she received P230/ month. Tanjanco, then
refused to marry Santos who was no longer able
to support herself and the child. She was then
prompted to sue for moral damages and to
compel the defendant to support herself and the
child.
Held: Article 21 cannot be invoked in this case as
it was already evident to the woman that
Tanjanco no longer had any intention of marrying
her even before she conceived of a child.
Seduction, an example given by the code
commission under Article 21 connotes deceit,
enticement, and abuse of confidence. Such
features are not present in the case wherein
there where several instances of sexual
intercourse for a period of almost one year.

Graham vs. Graham

Facts: On September 17, 1940, Sydney Graham
contracted with Margarethe Graham to the effect
that Margarethe shall pay Sydney the amount of
$300 per month until such time that the parties
no longer desire to continue with such an
arrangement. On July 11, 1933, the married
couple divorced. The plaintiff then filed a suit
against his former wife in order to claim the

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remaining amount of money that he should be
accorded by virtue of the contract. Plaintiff
alleged the contract was done so that he can
accompany his wife on her travels.
The total amount claimed until November 7, 1939
was $25,000 with 3% interest per annum. The
defendant on the other hand alleged that the
contract was not within the powers of a married
woman under a Michigan law and that the divorce
should have effected the termination of the said
contract.
Held: Under the Michigan law invoked by the
defendant, women have no general power to
enter into a contract except in separation of
properties. Also, private contracts between
married individuals which are contrary to public
policy are unenforceable by virtue of Sec. 587
entitled Bargain to Change Essential Obligations
of Marriage. The court held that if contracts
which are contrary to the essential obligations of
marriage wee permitted, it would invite an
endless field of controversy and litigation and
would destroy the element of flexibility needed in
making adjustments to the new conditions of
marital life.

Palermo went to court seeking that the

interpretation of the said rule be declared
erroneous
or
the
statute
be
declared
unconstitutional, it being in violation of the 14th
amendment due process and equal protection
clause.
Held: The use of a husbands name is customary
and as such, the common law does not compel
women to use their husbands name. In the past,
the husbands name was used to indicate the
marital status of a woman. A person has a
common right to adopt any name he or she wants
to be known with. The use of husbands name
was mainly for indicating marital status. It was
more by practice rather than by law.
Private Contracts: When Valid, When Void?

In Re: Santiago
Facts: This is an administrative case concerning
Atty. Roque Santiago who executed a document
wherein it was stipulated that Ernesto Baniquit
and his wife Soledad Colores were from then on,
separated, allowing either parties to marry again
without danger of becoming subject to any legal
action from either of the two parties. With this,
Baniquit got married to Trinidad Aurelio.
Santiagos mistake, according to him, was due
mainly to his idea that a seven-year separation
will allow for such action. In finding out his
mistake, he called on Baniquit who at that time,
was already married to someone else.
Held: The advice given and the document tended
to subvert the vital foundation of the family.
Marriage, as stated in Article 1 of the Family
Code, is not subject to the stipulation.

Challenges to the Traditional Marriage Models

Looking Backward in Order to Look Forward
By William H. Chafe
-In the 1970s, the status of women had already transformed
because of social and economic forces.
-After the baby boom of the 1950s, there was a downturn
in the birthrate such that by 1970s, the birthrate had
reached a level of zero population growth.
-There was a trend in later marriages and of young women of
child bearing age joining the labor force.
-Women also begun entering professions that have almost
exclusively been for men.
-By 1970s, the traditional norm of stay-at-home-mothers had
already changed.
Multiplier Effect- shifting values interacted with changing
economic conditions to create a new pattern of family and
work life.

Selanova vs. Mendoza

Facts: Judge Alejandro Mendoza prepared and
ratified a document extrajudicially liquidating the
conjugal partnership of Saturnino Selanova and
Avelina Ceriza. It was stipulated in the document
that the spouses should withdraw the adultery
and concubinage cases each had filed against
another. The defendant ratified the document
with the assurance that the spouses would ask
the Court of First Instance to approve the
agreement. According to the respondent, the
basis of the decision was Part 4 of Article 191 of
the Civil Code which stated that husband and
wife may agree upon the dissolution of marriage
subject to judicial approval.
Held: Respondents action was void as it violated
Article 221 of the Civil Code which states that
contracts and any extrajudicial agreements are
void.

The Changing Status of Women

Dunn vs. Palermo

Facts: Rosary Palermo who is married to Denty
Cheatham has continued to use her maiden name
since her marriage. Because of a state-wide
compulsory registration law, Palermo lodged
information of her change of address listing her
name as Palermo. The registrar was prompted to
purge the name of Palermo from the registration
list because Palermo refused to change her
name, citing Sec. 2-206 which states that
registration of a person shall be purged 90 days
after he changes his name or otherwise.

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Judicial sanction for annulment of marriage
should have been secured before hand.

Baker vs. State

Facts: Same-sex couples brought action against
the State, city and town seeking declaratory
judgment that the refusal to issue them marriage
licenses violated the common benefits clause of
the Vermont constitution. Plaintiffs claim that
denial of marriage license was tantamount to
denial of legal benefits and protections of marital
relations.
Held: Government is established for the common
benefit of the people and community as a whole.
The state interests in preventing the marriage of
same-sex couples which are: Procreation and
uniformity with other states, while valid, should
not be employed through a means that would
prevent same-sex couples from acquiring the
benefits inherent to married life.

Requisites of Marriage
Essential Requisites of Marriage
FC Article 2: Essential Requisites of marriage are
1. Legal capacity of contracting parties who must be
male or female.
2. Consent that is freely given in the presence of a
solemnizing officer authorized by the state to
conduct such marriage.
Legal Capacity of Male and Female

Jones vs. Hallahan

Facts: Two women appealed the decision of the
Circuit Court which held that both of them cannot
marry one another. Plaintiffs claim that the
decision abridges the Equal Protection clause and
Due
Process
clause
of
the
fourteenth
amendment.
Held: Marriage, in many widely circulated
dictionaries, are defined as a union between
man and woman, and there is no authority to
the contrary.
The plaintiffs were not being prevented by the
statutory provision to marry. Rather, they were
being prevented by themselves.

Defense of Marriage Act- Defense of marriage as an

institution, as upheld by 37 states in the United States
4 States have explicitly banned same-sex marriages.

Vermont and Massachusetts have come up with

legislation that would allow same-sex couples to
enjoy the benefits that opposite-sex married couples
enjoy. In Vermont, it is done through a civil union, in
Massachusetts, same-sex marriage is now allowed.

Consent Freely Given

FC Article 4: Marriage is rendered void in the absence of any
of the essential requisites (stated in Article 2 of FC). If there
is any irregularity in the formal requisites, the validity shall
not be affect validity but either or both parties are civilly,
criminally and administratively liable.

Goodridge vs. Department of Public health

Facts: In March and April of 2001, each of the
plaintiff couples attempted to obtain the marriage
license from their respective city or town clerks
office. After their requirements had been
completed, the clerk in each case refused to
accept the notice of intention to marry or denied
a marriage license on the ground that
Massachusetts does not recognize same-sex
marriages. Plaintiffs filed a suit alleging that
exclusion of same-sex couples from access to
marriage license and civil marriage and its
benefits is in violation of Massachusetts law.
Held: Without the right to marry or the right to
choose to marry, one is excluded from the full
range of human experience and denied full
protection of the laws for ones commitment to
lasting human relationships.
Held: Defense of procreation is not sufficient
because same-sex couples are still capable of
procreation although their methods may not be
traditional. Likewise, these couples are capable of
rearing children in such a setting, affirmed by the
Massachusetts law which allows adoption for
same-sex couples. Same-sex couples should be
afforded the same benefits as opposite-sex
couples by virtue of the Equal Protection and Due
Process clause of the 14th amendment.

FC Article 45: (page 8)

People vs. Felipe Santiago

Facts: Felipe Santiago raped Felicita Masilang, 18
years old, a few paces from Manila North Road.
After the deed was done, defendant brought the
girl to the house of Agaton Santiago, the
defendants uncle, who later found a protestant
minister who administered the marriage of
Santiago to Masilang. After the marriage, the
victim was given a few pesos and was told to
leave.
Held: The marriage is void first, because the
victim did not have his fathers consent to marry
and second, because the victim was under duress
and was thereby incapable of giving her consent
freely. Also, Felipe Santiago did not really intend
to marry Felicita Masilang. He only did so to
escape criminal liability. As such, the marriage is
void because the consent of Santiago is not freely
given. The consent referred to here is not the
consent of Felicita but that of Felipe who had no
intention of marrying Felicita.

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The same is true if the solemnizing priest s not
authorized by his church.
A resulting irregularity that will not affect the validity
of the marriage is one where there is mistake of fact
and not mistake of law.
Ignorantia legis non excusat
FC Article 10: Marriages between Filipino citizens abroad
may be solemnized by a consul or vice-consul of the Republic
of the Philippines. The issuance of the marriage license and
the duties of the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage shall be
performed by the consular official.

Buccat vs. Mangonon de Buccat

Eigenmann vs. Guerra
Facts: Petition was instituted by Eduardo
Eigenmann to annul his marriage to Maryden
Guerra on the grounds that he was a minor who
needed consent from his parents when he
married (16-20 years old) and such consent was
not given. He alleged that he was threatened and
coerced into the marriage and that the
solemnizing officer who administered the
marriage license was not authorized thereby
rendering the said license void ab initio.
Held: The marriage license confirmed that
plaintiff misrepresented himself to be of legal age
there for he is subject to an estoppel preventing
himself to invoke minority. The said threat was
not sufficient to hold that he was coerced into
consenting to the marriage because it was not
really threatening. Lastly, marriages solemnized
by a license obtained wrongfully, merely renders
the marriage to be irregular and is not null, void
or voidable.

FC Article 31: A marriage in articulo mortis* between

passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is
at sea or the plane is in flight but also during stopovers at
ports of call.
*At the point of death
FC Article 32: A military commander of a unit, who is a
commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons
within the zone of military operation, whether members of the
armed forces or civilians.
FC Article 4: The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in article 35 a.
A defect in any of the essential requisites shall
render the marriage voidable as provided in article 45.
An irregularity in the formal requisites shall not
affect the validity of the marriage but the party or the parties
responsible for the irregularity shall be civilly, criminally or
administratively liable.

Formal Requisites
- External to the parties
Formal Requisites of Marriage
FC Article 3: Formal Requisites of Marriage
1. Authority of the solemnizing officer,
2. Valid marriage license except in cases provided,
3. Marriage ceremony with the appearance of
contracting parties before a solemnizing officer,
4. Two witnesses that are of legal age,
5. Declaration that they take each other as man and
wife.

FC Article 35 (2): 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 god faith that the
solemnizing officer had legal authority to do so.

Authority of the Solemnizing Officer

CC Article 3: Ignorance of the law excuses no one from

compliance therewith.

FC Article 7: Marriage may be solemnized by:

1. Any incumbent member of the judiciary within the
courts jurisdiction;
2. Any priest, rabbi, imam or minister of any church or
religious sect duly authorized by his church or
religious sect and registered with the civil registrar
general, acting within the limits of the written
authority granted him by his church or religious sect
and provided that at least one of the contracting
parties belongs to the solemnizing officers church or
religious sect;
3. Any ship captain or airplane chief only in the cases
mentioned in Article 31;
4. Any military commander of a unit to which a chaplain
is assigned, in the absence of the latter, during a
military operation, likewise only in cases mentioned
in Article 32;
5. Any consul-general, consul or vice-consul in the case
provided in Article 10.
-

Navarro vs. Domagtoy

Facts: This is an administrative case filed by
Rodolfo G. Navarro against Hernando C.
Domagtoy
who
allegedly
solemnized
the
marriage between Gaspar A. Tagadan and Arlyn
Borja despite knowledge that the groom was only
separated with his former wife who was already
absent for seven years. Also, the respondent
judge also solemnized the marriage of Floriano
Sumaylo and Gemma del Rosario outside the
jurisdiction of the respondent.
Held: On the second marriage, there is a resulting
irregularity because marriage may only be
conducted elsewhere only if there is a written
request coming from both parties. In the case at
hand, the request only came from one party.
Judges may only officiate weddings within their
jurisdiction otherwise there will be an irregularity

Without registration of the solemnizing officer with

the office of the Civil Registrar the marriage is void.

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with the formal requisites. Article 8 states that
marriages may be conducted elsewhere provided
that there is written request coming from both
parties to the marriage.

claim that there was no marriage license was

only supported by a due search and inability to
find certification issued by the local civil
registrar of Pasig and Caustros own testimony.
Held: No marriage shall be solemnized without a
marriage license otherwise it will be rendered
void ab initio. The certification of due search and
inability to find is sufficient to hold that no proof
of license exists and the testimony is sufficient
because the marriage was a secret marriage and
under the circumstances it is understandable that
there can be no other witness.

Aranes vs. Occiano

Mercidita Aranes charged presiding judge
Salvador Occiano of gross ignorance of the law
for solemnizing her marriage with her husband
without a license and outside his jurisdiction.
Respondent judge claims that he agreed to
solemnizing the marriage provided that the
license will be delivered to him on the same day
however, no such license ever came. No record of
the application for a marriage license because it
was denied when the husband failed to present
the death certificate of his first wife.
Held: Respondent judge is liable for failure to
ascertain the existence of a marriage license.
Presenting a marriage license after the
solemnization of the wedding does not, in any
way validate the marriage. Also, under BP 129,
the authority of the judges of inferior courts to
solemnize marriage is confined to their territorial
jurisdiction. The authority of the judge to
solemnize a marriage is derived from the
marriage license.

Moreno vs. Bernabe

Facts: Marilou Nama Moreno filed the complaint
against Judge Jose C. Bernabe for grave
misconduct and gross ignorance of the law.
According to the complainant, respondent judge
solemnized her marriage with Marcelo Moreno,
assured that the contract will be released after 10
days. Respondent judge claims that the failure to
produce the contract was due to the failure of the
Local Registrar of Pasig to release the marriage
license. He was assured, when he solemnized the
marriage, that the license was forthcoming as
such, he agreed to conduct the ceremony but
reminded the plaintiff and her husband of the
consequences of conducting the ceremony
without a marriage license.
Held: Marriage ceremonies, absent of a marriage
license, are void ab initio.

Marriage License
FC Article 9: A marriage license shall be issued by the local
registrar of the city or municipality where either contracting
party habitually resides, except in marriages where no license
is required in accordance with chapter 2 of this Title.

People vs. Borromeo

Facts: Defendant Elias Borromeo appealed his
conviction of parricide and his sentence of
reclusion perpetua. On July 3, 1981, defendant
killed his wife, Susana Borromeo. He claimed that
Susana Borromeo was not his wife because no
marriage contract was executed during their
marriage.
Held: Defendant testified that he was indeed,
married to Susana Borromeo. Nevertheless, had
there been an actual absence of a marriage
contract, persons living together in apparent
matrimony are presumed to be married unless
evidence is presented to show otherwise. Such is
the common order of society. If parties were not
what they hold themselves to be, they will be
living in constant violation of the law.

FC Article 34: No marriage shall be necessary for the

marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal
impediment 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 solemnizing officer
shall also state under oath that he ascertained the
qualifications of the contracting parties and found no legal
impediment to the marriage.
PD965: A decree requiring applicants for marriage licenses to
receive instructions on family planning and responsible
parenthood.

Republic of the Philippines vs. CA and

Castro
Facts: Angelina M. Castro filed a petition for a
judicial declaration of nullity of her marriage to
Edwin F. Cardinas which was granted by the
Court of Appeals. Then petitioner Castro was
separated after four months of marriage with
Cardinas. As such, Castro sought for the nullity of
her marriage before she left for the US. Plaintiff
Republic of the Philippines challenged the
decision of the appellate court because Castros

Seguisabal vs. Cabrera

Facts: Andon Seguisabal charged Judge Jose
Cabrera of gross misconduct and grave ignorance
of the law for solemnizing the marriage of Jaime
Sayson and Marlyn Jagonoy without the requisite
marriage license. The respondent was also said to
have failed to transmit a copy of the marriage

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contract he signed to the Office of the Civil
Registrar of Toledo City within the required 15
days. The Respondent judge contended that he
agreed to solemnize the marriage of the two
parties with the agreement that the marriage
license will be given in the afternoon, which the
couple failed to do. Years later when Marlyn
Jagonoy returned asking for the marriage
contract so that she can claim the pension of her
deceased husband, respondent judge issued a
marriage contract despite of the knowledge that
there is still no marriage license as the deceased
and his widow failed to attend a family planning
session.
Held: Cabrera was expected to follow the dictates
of his profession. His decision to commit an act
outside the boundaries of the law cannot be
justified by good faith. Marriages solemnized
without a marriage license is void ab initio.

FC Article 29: The solemnizing officer shall state in an

affidavit the executed before the local civil registrar or any
other person legally authorized to administer oaths that the
marriage was performed in articulo mortis or that the
residence of either party, specifying the barrio or barangay, is
so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar
and that officer took the necessary steps to ascertain the
ages and relationship of the contracting parties and the
absence of legal impediment to marriage.
FC Article22: The marriage certificate shall state:
1. Full name, sec and age;
2. Citizenship, religion and habitual residence;
3. the date and precise time of the celebration;
4. That the proper marriage license has been issued
according to law;
5. That either or both of the contracting parties have
secured the parental consent (if it applies);
6. That either or both of the contracting parties have
complied with the legal requirement regarding
parental advice (where it applies);
7. That the parties have entered into a marriage
settlement, if any, attaching a copy thereof.

Ceremony

FC Article 23: It is the duty of the solemnizing officer to

furnish either of the contracting parties the original of the
marriage certificate and to send the duplicate and triplicate
copies not later that fifteen days after the marriage, to the
local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting the copies of
the marriage certificate. The solemnizing officer shall retain in
his file the quadruplicate copy of the marriage certificate, the
original of the marriage license, and the affidavit of the
contracting party regarding the solemnization of the marriage
in another place.

FC Article 6: No prescribed form or religious rite for the

solemnization of the marriage is required. It shall be
necessary however, for the contracting parties to appear
personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that they
take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed by
the contracting parties and their witnesses and attested by
the solemnizing officer.
In case of marriage in articulo mortis, when the
party at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses to the
marriage to write the name of said party, which fat shall be
attested by the solemnizing officer.

FC Article 24: It shall be the duty of the local civil registrar

to prepare the documents required and to administer oaths to
all interested parties without any charge in both cases. The
documents and affidavits filed in connection with applications
for marriage licenses shall be exempt from documentary
stamp tax.

Requisites of Marriage Ceremony:

For both parties to appear personally before the
solemnizing officer;
That there is presence of not less than two witnesses
of legal age;
That both party take each other as husband and wife

Requisites of a Marriage Ceremony

Martinez vs. Tan

Facts: Rosalia Martinez and Angel Tan signed a
petition directed to the Justice of Peace stating
therein their agreement to contract marriage.
The document was signed by the defendant and
plaintiff and the Justice of Peace and two
witnesses namely Zacharias Esmero and Pacita
Ballori. A certificate of marriage was likewise
signed by the Justice and the witnesses attesting
that a marriage did ensue. Plaintiff alleged that
she did not attend the ceremony and that she
only signed it. Rosario Bayot attested that on the
day of the marriage, the plaintiff never left her
company. Pacita Ballori attested otherwise. Apart
from that, several letters from the plaintiff for the
defendant prove that plaintiff indeed intended to
marry the defendant.

FC Article 8: The marriage shall be solemnized publicly in

the chambers of the judge or in open court, in the church,
chapel or temple, or in the office of the consul-general, consul
or vice-consul, as the case may be, and not elsewhere,
except in cases of marriages contracted on the point of death
or in remote places in accordance with Article 29 of this Code,
or where both of the parties request the solemnizing officer in
writing in which case, the marriage may be solemnized at a
house or place designated by them in a sworn statement to
that effect.
- Whatever venue is chosen, it must be within the jurisdiction
of the solemnizing officer.
FC Article 28: If the residence of either party is so located
that there is no means of transportation to enable such party
to appear personally before the local civil registrar, the
marriage may be solemnized without the necessity of a
marriage license.
Applicable when one of the parties is handicapped

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Held: The documents signed were sufficient to
prove that what took place before the Justice of
Peace was legal and the ceremony amounted to a
wedding.

Trinidad vs. CA, Trinidad and Trinidad

Facts: Arturio Trinidad, was the son of Inocentes
Trinidad and nephew of Lourdes and Felix
Trinidad. The three siblings, Inocentes, Lourdes
and Felix, inherited a piece of land from their
father, Patricio Trinidad. Defendants claimed that
the land in question has been in their possession
since the death of their father and that Inocentes
died in 1941 and not in 1944 as alleged by
Arturio. They also contend that Inocentes never
fathered a child nor was he ever married. Arturio
on the other hand alleged that his father was
married to Felicidad Molato, his mother. Several
witnesses living within the neighborhood testified
to the marriage and the birth of Arturio and that
Arturio contrary to the claims of Lourdes and
Felix had lived in their house for some time.
Relevant public documents valuable as evidence
were destroyed during the war.
Held: Marriage may be proven by relevant
evidences such as: testimony of a witness to the
matrimony, public and open cohabitation, birth
and baptismal certificate signed by the couple or
a mention of the marriage in other public
documents. Two witnesses attested that the
couple cohabited and that Arturio was their son.
As proof of filiation with Felix and Lourdes, two
family pictures were shown where Arturio was in
the company of Lourdes and Felix and the
witnesses likewise attested that Arturio had lived
with his aunt and uncle. The preponderance of
evidence supported the claims of Arturio.

Melecio Madridejo vs. Gonzalo de Leon

Facts: Eulogio de Leon and Flaviana Perez had
one childDomingo de Leon. In the year 1915,
Eulogio died leaving Flaviana with Domingo.
Flaviana later lived with Pedro Madridejo and
bore a childMelecio. On June 8, 1920, Flaviana,
knowing that she will die soon, married Pedro.
She died the following day. Melecio Madridejo
claimed that he is the next of kin of Domingo de
Leon who died as well. Defendant claimed that
the wedding of Pedro and Flaviana was not valid
because the solemnizing officer failed to send a
copy of the marriage certificate to the Municipal
Secretary. Also, Melecio Madridejo was allegedly
not a legitimate child.
Held: Forwarding of the marriage certificate is not
an essential requisite of the marriage. Failure to
do so does not invalidate the marriage. For a
subsequent marriage to effectively legitimate a
child born out of wedlock, the child must be
acknowledged by the parents in some public
document or be in the uninterrupted possession
of the status of a natural child. In the case at
hand, Melecio Madridejo was not legitimated. No
public document to that effect exists and he was
not able to prove that he has been in an
uninterrupted status of the natural child.
Presumption of Marriage

Vda. De Jacob vs. CA and Pilapil

Facts: Plaintiff claimed to be the surviving spouse
of Dr. Alfredo E. Jacob and appointed special
administratix for his estates by virtue of a
reconstructed marriage contract recognized by
their solemnizing officer who admitted that he
lost the marriage contract earlier on. The court of
appeals ruled against the plaintiff on the grounds
that no copy of the contract was sent and no
record of the marriage existed and that Dr.
Alfredo signed the contract with his thumbmark
and not with his own name. Lastly, court of
appeals stated that the reconstructed marriage
contract was signed by Benjamin Molina and not
by Jose Centera who the plaintiff said allegedly
lost the marriage contract.
Held: Dr. Alfredo and Plaintiff Tomasa had lived
together for over five years and the deceased
signed an affidavit to that effect. According to
Article 76 of the Civil Code, no marriage license
shall be necessary when a man and a woman
who have reached the age of majority have lived
together as husband and wife for at least five

CC Article 220: In case of doubt, all presumptions favor the

solidarity of the family. Thus, every intendment of law or
facts leans toward the validity of marriage, the indissolubility
of the marriage bonds, the legitimacy of children, the
community of property during marriage, the authority of
parents over their children, and the validity of defense for any
member of the family in case of unlawful aggression.
RC Section 3 Rule 131: That persons acting as copartners
have entered into a contract of copartneship;
1. That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage;
2. That property acquired by a man and a woman who is
capacitated to marry each other and who live exclusively with
each other as husband and wife without the benefit of
marriage or under void marriage, has been obtained by their
joint efforts, work or industry.
3. That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have
acquire properly through their actual joint contribution of
money, property or industry, such contributions and their
corresponding shares including joint deposits of money and
evidences of credit are equal.

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years. Also, failure to send a copy of the marriage
certificate for record purposes does not invalidate
the marriage. It was not the petitioners duty to
ensure that the copy reached the civil registrars
office. Secondary evidence proved that there was
a ceremony. The solemnizing officer and Adela
Pilapil attested to that effect. Also the name of
the couple was recorded in the Book of
marriages.
- In the absence of a marriage contract, there should be proof
of due execution which can be given by witnesses and proof
of loss of marriage certificate before the reconstructed
certificate may be admitted

Void Marriages
FC Article 4: The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35.
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites of shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.
FC Article 35: The following marriages shall be void from the
beginning:
1. Those contracted by any party below eighteen years
of age, even with the consent of parents or
guardians;
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;
3. Those solemnized without a license, except those
covered by the preceding chapter;
4. Those bigamous or polygamous marriages not falling
under Article 41;
5. Those contracted through mistake of one contracting
party as to the identity of the other;
6. Those subsequent marriages that are void under
Article 53.
-

In ordinary contracts (1) the child will not be

emancipated from parental authority. In marriage,
the child will be emancipated.
If it is a mistake of fact, the marriage is valid. If it is
a mistake of law, the marriage is void.
Paragraph 5 refers to physical mistake in identity.
Other fraudulent misrepresentation would not apply.

FC Article 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 solemnization.
-Psychological incapacity to comply is different from inability
to understand because the latter is a vice of consent, without
which, an essential requisite of marriage is lacking.
Reasons for adopting psychological incapacity as a ground for
declaration of nullity:
Substitute for divorce

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-

Solution of church-annulled marriages

To give remedy to the parties imprisoned
marriage.

Facts: Respondent alleged that her husband

Reynaldo
Molina
was
psychologically
incapacitated because he showed signs of
immaturity, irresponsibility and dependence. She
also averred that her husband was never honest.
The Court of Appeals and Regional Trial Court
upheld that the marriage was indeed, void.
Held: Psychological incapacity should refer to a
mental and not physical incapacity. It is confined
to the most serious personality disorders clearly
demonstrative of an utter insensitivity or inability
to give meaning and significance to the marriage.
It is not enough that the parties failed to meet
their responsibilities. It is essential that they must
be shown as incapable of doing so.

by

Psychological incapacity vs. Vice of consent

a person may fully agree but may not understand
the obligations of marriage.
Psychological incapacity is not a vice of consent but
there is a lack of legal capacity, an essential requisite
of marriage.
Psychological Incapacity vs. Insanity
Insanity has varying degree;
Insanity is curable
There are lucid intervals in insanity
Insanity is a ground for annulment in other countries
Note: Psychological incapacity was not defined using
examples to avoid ejusdem generis (exclusive enumeration)
which might limit the applicability of the provision. It is
therefore judged according to the facts of the case.
-

Molina Guidelines in Applying Article 36

1. The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should
be resolved in favor of the existence and
continuation of the marriage and against its
dissolution and nullity.
2. The root cause of the psychological incapacity must
be (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts
and (d) clearly explained in the decision. The person
alleged to be incapacitated must be psychologically
ill to the extent that the person could not have
known the obligations he was assuming or knowing
them could not have given a valid assumption
thereof.
3. The incapacity must be proven to be existing at the
time of the celebration of the marriage. The evidence
must show that the illness was existing when the
parties exchanged vows.
4. Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability
may be absolute or relative only in regard to the
other spouse. Such incapacity must also be relevant
to the assumption of marriage obligations.
5. Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage. The illness must be shown
as downright inability or incapacity.
6. The essential marital obligations are:
a. The husband and wife are obligated to live
together, observe mutual love, respect and
fidelity, and render mutual help and support
(FC Article 68).
b. The husband and wife shall fix the family
domicile. In case of disagreement, the court
shall decide. The court may exempt one
spouse from living with the other if the
latter should live abroad or there are other
valid and compelling reasons for the
exemption. However, such exemption shall
not apply if the same is not compatible with
the solidarity of the family (FC Article 69).
c. The spouses are jointly responsible for the
support of the family. The expenses for
such support and other conjugal obligations
shall be paid from the community property
and in the absence thereof, from the income
or fruits of their separate properties. In case
of insufficiency or absence of said income or

Psychological incapacity should exist at the time of

the marriage.
Psychological incapacity is restricted to disorders
demonstrative of the utter sensitivity or inability to
give meaning and significance to the marriage.

Examples of psychological incapacity:

1. Homosexuality;
2. Satryiasis or Nymphomania;
3. Epilepsy with permanently recurring maladaptive
manifestationsl
4. Extremely low intelligencel
5. Habitual Alcoholism;
6. Criminality
Manifestations of psychological incapacity:
Refusal of wife to dwell with the husband after
marriage;
Affliction which makes common life unbearable;
Sociopathic anomalies on husbands part

Santos vs. Bedia-Santos

Facts: Louel Santos who was married to Julia
Bedia-Santos wishes to annul his marriage based
on Article 36 of the Family Code. Respondent has,
for the last seven years since filing for the
annulment, resided in the United States and has
contacted the petitioner only twice.
Held: Psychological incapacity refers to the
mental, not physical incapacity. It must be
characterized
by
gravity,
juridical
antecedence and incurability for it to be
considered
a
psychological
incapacity.
Psychological incapacity is not a vice of consent.
A person may have given his or her consent
freely without understanding the obligations of
the contract. Without consent, a marriage is void
ab initio. Without the ability to understand the
nature of the contract, the marriage is merely
voidable.
Republic of the Philippines vs. Molina

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d.

7.

several
lawsuits
against
him
indicating
psychological incapacity and that his wife was
immature, carefree and had no intentions of
procreative sexualityas sufficient evidence.
Held:
Psychological
incapacity
must
be
characterized by gravity, juridical antecedence
and incurability. The testimony of the expert
doctor and the respondent only showed that the
two cannot get along with each other.

fruits, such obligations shall be satisfied

from their separate properties (FC Article
70).
The management of the household shall be
the right and duty of both spouses. The
expenses for such management shall be
paid in accordance with the provisions of
Article 70 (FC Article 71).

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.

Tsoi vs. CA
Facts: Respondent Gina Lao Tsoi filed for
annulment of her marriage to petitioner Chi Ming
Tsoi on the ground of psychological incapacity.
Respondent alleged that since their marriage in
May 22, 1988 until March 15, 1989, the couple
has not consummated their marriage. Defendant
contended that it was the wifes fault that their
marriage was not consummated. A physician
examined both plaintiff and defendant and
attested that neither of them had any physical
problem. Defendant alleged that the wife was
afraid to consummate the marriage and afraid
that she would have to return the jewelry given to
her.
Held: Whether or not it was the husband who
refused to consummate the marriage is
immaterial. The fact still stands that it has not
been consummated. There may be physical and
not psychological reasons as to why the marriage
should not be annulled but the evidence to that
effect was not presented. Catholic marriage
tribunals attribute the causes to psychological
incapacity than stubborn refusal. The natural
order between spouses is sexual intimacy.

Apiag vs. Cantero

Facts: Maria Apiag filed an administrative case
against
her
husband,
respondent
judge,
Esmeraldo G. Cantero. The Court of Appeals
decided that the respondent acted in grave
misconduct. The plaintiff and respondent were
married and petitioner bore 2 children by that
marriage. After the second child was born,
respondent judge left for no reason. Plaintiffs,
through their counsel asked respondent for
support and for the children to be declared legal
heirs. Complainants subsequently learned that
respondent has contracted another marriage with
whom
he
had
5
children.
Respondent
misrepresented himself in his declaration of
assets and liabilities by putting the name of the
second wife on the said statement. He contended
that the first marriage was void ab initio because
he and his first wife never cohabited and he was
forced into the marriage. He added that he and
the petitioners have settled amicably and he has
agreed to give the children of his retirement
benefits.
Held: While he did not act in grave misconduct,
he acted in impropriety when he failed and
refused to attend to the needs of his children.
Although it is undisputed that the judge did not
obtain a judicial declaration of nullity of his first
marriage,
pursuant
to
the
jurisprudence
prevailing at the time of the second marriage, it
has been established that no such declaration
was necessary.

Antonio vs. Reyes

Facts: Petitioner filed a petition for the
declaration of his marriage to respondent as null
and void on the grounds of psychological
incapacity as manifested by several instances of
lying and concealment of an illegitimate child by
Respondent Ivonne Reyes. Petitioner alleged that
respondent fabricated stories which bordered on
the ridiculous.
Held: Marriage was void by virtue of the Molina
guidelines, fulfilled by the Petitioner.

Choa vs. Choa

Facts: Respondent Alfonso Choa filed a complaint
for the annulment of his marriage to petitioner
Leni Choa on the grounds of psychological
incapacity. Petitioner filed a demurrer of evidence
(an objection or exception by one of the parties in
an action at law to the effect that the evidence
which the adversary produced is insufficient in
point of law to make out a case and sustain the
issue). The demurrer of evidence was dismissed
by the appellate court which upheld that the
claims of Alfonso Choathat her wife had filed

FC Article 37: Marriages between the following are

incestuous and void from the beginning, whether the
relationship between the parties is legitimate or illegitimate.
1. Between ascendants and descendants of any degree
and
2. Between brothers and sisters, whether of full or half
blood.
FC Article 38: The following marriages shall be void from the
beginning for reasons of public policy:

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

Between
collateral
blood
relatives,
whether
legitimate or illegitimate, up to the fourth civil
degree;
Between step-parents and step-children;
Between parents-in-law and children-in-law;
Between the adopting parent and the adopted child;
Between the surviving spouse of the adopting parent
and the adopted child;
Between the surviving spouse of the adopted child
and the adopter;
Between an adopted child and a legitimate child of
the adopter;
Between adopted children of the same adopter; and
Between parties where one, with the intention to
marry the other, killed that other persons spouse or
his or her own spouse.

1.

2.
3.

A person on board a vessel lost during sea voyage,

or an airplane which is missing, who has not been
heard of for four years since the loss of the vessel or
airplane;
A person in the armed forces who has taken part in
war, and has been missing for four years;
A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.

People vs. Mendoza

Facts: Appellant was married to Jovita de Asis on
August 5, 1936. On May 14, 1941, appellant
married Olga Lema. On February 2, 1943, the first
wife of appellant died. On August 19, 1949,
appellant married one Carmencita Panlilio.
Appellant was then charged with bigamy but he
contended that his marriage to Olga Lema was
void ab initio and therefore non-existent. In that
light, he claimed, that his marriage to Carmencita
was not bigamous.
Held: The marriage law in effect at the time the
appellant contracted with his second wife, Olga
Lema, states that his marriage to Lema was void
ab initio. No judicial decree was necessary to
establish its invalidity.

FC Article 39: The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe. However, in
the case of marriages celebrated before the effectivity of this
code and falling under Article 36, such action or defense shall
prescribe in ten years after this code shall have taken effect.
FC Article 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.
- Final judgment is needed to avoid confusion because one of
the parties may contract another marriage which would be
bigamous and therefore void during the pendency of the trial
for the other marriage.

Tolentino vs. Paras

Facts: Serafia Tolentino was the wife of the
deceased, Amado Tolentino. Petitioner requested
the correction of an entry on the death certificate
of the deceased which states that the name of his
surviving spouse was Maria Clemente. Amado
Tolentino married his second wife, Maria
Clemente while his first marriage was still in
effect. When the deceased was charged with
bigamy, he pleaded guilty and served the
corresponding
sentene.
The
petition
was
dismissed by Hon. Edgardo Paras on grounds that
the issue was a marital relationship, and that the
court has no jurisdiction.
Held: The petition was meritorious. The court had
jurisdiction because the wife was, initially,
seeking a judicial declaration that she was the
lawful spouse of the deceased. The plea of guilt
of the deceased effectively established that the
second marriage was in fact, void ab initio and
that the petitioner was the lawful spouse.

FC Article 41: A marriage contracted by any person during

the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four* consecutive years and
the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph, the spouse present must institute a
summary
proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
FC Article 44: If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by
operation of law.
RA 8533
CC Article 390: After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of
succession. The absentee shall not be presumed dead for the
purposes of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years,
an absence of five years shall be sufficient in order that his
succession may be open.

Wiegel vs. Sempio-Diy

Lilia Wiegel appealed for the reversal of the
decision of respondent judge, Sempio-Diy
because, in the petition for the declaration of
nullity of marriage filed by Karl Heinz Wiegel
against petitioner, respondent judge ruled
against the presentation of evidence. When
petitioner was married to the plaintiff, she had a
previous existing marriage. Petitioner claimed

CC Article 391: The following shall be presumed dead for all

purposes, including the division of the estate among the
heirs;

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that the first marriage was void ab initio because
she was forced into marrying her first husband.
Held: There was no need to present evidence
because if there had been, in fact, intimidation
during the first marriage, the said marriage would
have been rendered voidable and not void. Had
the marriage been void, a judicial declaration
would still be necessary.

34 which states that no license shall be necessary

for the marriage of a man and a woman who have
lived together as husband and wife for at least 5
years.
Held: The requisite of Article 34 is that there is no
legal impediment between the parties. The said
article is merely a ground for exemption for
marriage license. The judge knew of the
subsisting marriage as it was stated in the
marriage certificate and in the affidavit signed by
the parties.

Terre vs. Terre

Facts: Petitioner charged Atty Jordan Terre with
gross immoral conduct for contracting a second
marriage while he has a subsisting marriage. The
petitioner alleged that while she was still in her
previous marriage with her first cousin, she was
courted by defendant and was advised that she
was free to contract a second marriage because
her first marriage was void. Petitioner took the
advise and married herein respondent but, after a
few years, the respondent took off. Later the
petitioner found out that respondent had
contracted another marriage.
Held: A judicial declaration is necessary to
determine whether a person is legally free to
contract a second marriage. Without such
declaration, the subsequently existing marriage is
sustained.

Domingo vs. Court of Appeals

Facts: Delia Soledad Domingo sought the judicial
declaration of nullity of marriage and separation
of property against petitioner Roberto Domingo
on the grounds that the petitioner had a valid and
existing marriage with one Emerlinda dela Paz.
The first wife sued petitioner for bigamy.
Respondent claimed that the petitioner has been
dependent on her and since she left to work in
Saudi, she has amassed some P350,000 worth of
properties which were under the possession and
administration
of
herein
petitioner
until
respondent found out about the first marriage.
Petitioner alleged that there was no cause for
action because the marriage was void ab initio
and judicial declaration of nullity of marriage is
only sought for purposes of remarrying and no
such intention has been expressed.
Held: Although it is stated in the Family Code that
judicial declaration is needed for purposes of
remarrying, it does not expressly state that it is
exclusive for that purpose alone. The Family Code
provides that among the effects of the judicial
declaration is the immediate separation of
property.

Atienza vs. Brillantes

Facts: Complainant charged respondent Judge
Fransisco Brillantes with gross immoral conduct
after having found said respondent sleeping in his
own bed, apparently cohabiting with his wife.
Complainant left his wife and kids. Complainant
alleged that the said judge was, at that time,
married to one Zenaida Ongkiko with whom he
had 5 children. Respondent denied the allegation
saying that his marriage with Ongkiko was void
ab initio because it was solemnized without a
marriage license. Respondent likewise argued
that Article 40 of the family code was not in effect
when his first marriage took place.
Held: Judicial declaration of nullity of a previous
marriage is needed for purposes of remarriage.
The Family Code can be applied retroactively so
long as vested rights will not be impaired by its
application.

Effects of Nullity
FC Article 50: The effects provided for by paragraphs 2, 3,
4, and 5 of Article 43 and Article 44 shall also apply in the
proper cases to marriages which are declared void ab initio or
annulled by final judgment under Article 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses and the custody and support of the common children,
and the delivery of the presumptive legitimes, unless such
matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified for
the proceedings for liquidation.
In the partition, the conjugal dwelling and the log on which it
is situated shall be adjudicated in accordance with the
provisions of Articles 102 and 129.

Borja-Manzano vs. Sanchez

Facts: Complainant avers that she is the lawful
wife of the late David Manzano. Her husband
contracted another marriage while the first one
was still in effect, solemnized by herein
respondent judge. Respondent contends that he
did not know that the two were only legally
separated and that all he knew was the two had
been cohabiting for seven years. He cited Article

FC Article 51: In said partition, the value of the presumptive

legitimes of all common children, computed as of the date of
final judgment of the trial court, shall be delivered in cash,

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property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such
matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
the children accruing upon the death of either or both of the
parents but the value of the properties already received under
the decree of annulment or absolute nullity shall be
considered as advances on their legitimes.
FC Article 52: The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the childrens
presumptive legitimes shall be recoded in the appropriate civil
registry and registries of property; otherwise, the same shall
not affect the third persons.
FC Article 53: Either of the former spouses may marry again
after compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall
be null and void.
FC Article 54: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory shall be
consicered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.

Ninal vs. Bayadog

Facts: Petitioners request the annulment of the
marriage of their father to Norma Bayadog. On
September 26, 1974, Pepito married Teodulfa.
Teodulfa died on April 24, 2985 and, on
December 11, 1986, Pepito married Norma
Bayadog. The marriage was contracted without a
license. Instead, the couple signed an affidavit
stating that they had been cohabiting as husband
and wife for 5 years. The code in effect during the
time of the marriage was the Civil Code.
According to Article 76 of the said code, marriage
between a man and a woman who have been
living together for more than 5 years no longer
requires a marriage license. Pepito died in
February of 1997.
Held: Marriage of Pepito Ninal Sr. and Norma
Bayadog is null and void. It is evident that only 20
months elapsed between the time of the death of
the first wife and the marriage with the second
wife. Had the two been cohabiting for five years,
such cohabitation, and the marriage, was not
within the capacity of the deceased. The children
do not have standing to cause action but,
because the marriage was null and void, it is
likewise non-existent.

Voidable Marriages
Grounds for Annulment
FC Article 45: A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
1. That the party in whose behalf it is sought to have
marriage annulled was eighteen years of age or over
but below twenty-one, and the marriage was

- For marriages of exceptional character, there should be no

legal impediment on the part of either party. The one
contracting a marriage should have legal capacity to do so.

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2.
3.

4.

5.
6.

solemnized without the consent of the parents,

guardian or person having substitute parental
authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as
husband and wife;
That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with
the other as husband and wife;
That the consent of either party was obtained by
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
That the consent of either party was obtained by
force, intimidation or undue influence, unless the
same having disappeared or ceased, such party
thereafter freely cohabited with the other as husband
and wife;
That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable;
That either party was afflicted with a sexuallytransmitted disease found to be serious and appears
to be incurable.

3.

Concealment of sexually transmissible disease,

regardless of its nature, existing at the time of the
marriage;
4. Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism existing at the time
of the marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will
give grounds for action for the annulment of marriage.
-A marriage cannot be annulled simply on the ground that the
wife concealed the fact that she had been lewd and corrupt
and had an illegitimate child prior to the marriage.
FC Article 48: In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the
prosecution attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or
suppressed.
RPC Article 344: The crimes of adultery and concubinage
shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both
alive, nor in any case, if he shall have consented or pardoned
the offenders.

Annulment and Legal Separation:

Annulment is caused by some circumstance existing
at the time of the marriage while legal separation
arises after the celebration of the marriage;
Annulment of marriage terminates the marital bond
between the parties while legal separation does not;
Annulment of marriage once final, cannot be set
aside so as to restore the marital relation while legal
separation may be terminated and marital relations
resumed by the reconciliation of the parties.

Force- Physical injury, violence, irresistible intimidation or

threat
Undue influence- a person who takes improper use of his
power
-

The person who can ratify is the injured party;

The injured party can file for annulment within five
years
If the injured party freely cohabited after the
cessation of the ground for annulment (except in
impotence and sexually transmitted diseases), he is
estopped from annulling the marriage.
RATIFICATION cures the defect of the marriage and it
retroacts to the day of the marriage or the day of giving
consent.

The presumption of the law is generally in favor of sanity

and he who alleges the insanity of another has the
burden of proving it. Once general insanity is proved to
exist, it is presumed to continue; and if a recovery or a
lucid interval is alleged, the burden to prove such is on
the person making it.
A marriage may be annulled where one of the parties was
so intoxicated he or she had no mental capacity to give
valid assent.

Katipunan vs. Tenorio

Facts: Plaintiff Marcos Katipunan brought action
against Rita Tenorio seeking the annulment of
their marriage. He alleged that the defendant
was not of sound mind at the time they
contracted marriage. According to the guardian
of the defendant, Tenorio only suffered ailment
after giving birth to her 4th child.
Held: The couple cohabited for seven years and
plaintiff admitted that there had been lucid
intervals therefore, the marriage cannot be
annulled. Insanity has to be a permanent
condition. If at the time of the celebration of the
marriage there was nothing wrong with the
mental health of the other spouse, marriage
cannot be annulled.

For
physical
incapacity,
impotence
or
sexually
transmitted disease to be a ground for annulment the
following must concur:
1. That it exists at the time of the celebration of the
marriage;
2. That it continues to the time when the case for
annulment is being tried;
3. That it appears to be incurable,
4. That the other contracting party is aware of it.
- In impotence, the person cannot have sex. In sterility, the
person cannot procreate.
- Impotence is not a ground for declaration of nullity because
the injured spouse may accept the impotence of his or her
spouse.
FC Article 46: The following shall constitute fraud:
1. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude;
2. Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other
than her husband;

Aquino vs. Delizo

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Facts: Petitioner requests the annulment of her
marriage on the ground of fraud, claiming that his
wife was 4 months pregnant at the time that they
were married and the child was that of another
man. The appellate court dismissed the petition
on the grounds that it was unbelievable that the
petitioner was unable to tell if his wife was
pregnant.
Held: Petition must be granted because
pregnancy is hardly noticeable at five months
and the wife was plump.

orifice of the vagina of his wife was too small to

allow penetration. For that reason, petitioner has
left the conjugal abode. The defendant failed to
comply with the order of medical examination
and so, the lower court granted the annulment.
Held: Presumption will always be in favor of
potency. It is understandable that a woman would
refuse to subject herself to physical examination.
The testimony of one party is not sufficient to
annul the marriage because to do so will open the
court to cases of collusion between the spouses
for the annulment of their marriage.

Anaya vs. Palaroan

Facts: Defendant Fernando filed an action for
annulment on grounds that his consent to the
marriage was obtained through force and
intimidation. The complaint was dismissed.
Herein petitioner then sought the annulment of
her marriage to Fernando on the grounds of
fraud, saying that her husband concealed the fact
that he had marital relations with another woman
prior to the marriage.
Held: Concealment of premarital relations was
not among the kinds of fraud stated in the Civil
Code (Family Code). The pertinent provision is
not subject to interpretation as it was also
expressly stated that no other misrepresentation
or deceit shall constitute fraud.

Sarao vs. Guevara

Facts: On the day of the marriage of the plaintiff
and the defendant, the marriage was not
consummated because the defendant complained
of pains. The defendant was operated on and her
uterus and ovaries were surgically removed. The
removal rendered the defendant incapable of
procreation as such, plaintiff wants his marriage
with the respondent annulled.
Held: Impotency is not inability to procreate but
inability to copulate. Inability to copulate cannot
be a ground for annulment and a temporary or
occasional incapacity cannot be used as a ground
to nullify a marriage.
People vs. Santiago

Ruiz vs. Atienzs

Acts: Plaintiff requests the annulment of her
marriage on the ground that his consent was
given under duress. His wife, whom he had
premarital relations, bore a child. When the child
was born, the father of his wife allegedly
approached him with a knife and in the company
of a lawyer. The lawyer threatened his entrance
to the bar.
Held: Petition cannot be granted because the
petitioner had several chances of escape before
the marriage and because his wife bore his own
child. Where a man marries under threat of or
constrain from lawful prosecution for seduction or
bastardy, he cannot avoid marriage on the
ground of duress. Proof of bodily harm must be
sufficiently shown. Threat to obstruct admission
to the bar does not constitute duress. Only if the
threat is so grave that the person is not acting in
his own freewill that a marriage becomes void.

Suntay vs. Cojuangc-Suntay

Facts: Petitioner opposed the petition filed by
respondent for the issuance of letters of
administration (of the estate of her paternal
grandmother) in her favor on the grounds that he
was the surviving spouse of the deceased, and
that the petitioner and the deceased have been
alienated from the family of the respondent. He
likewise alleged that respondent was not a
legitimate child because the marriage of her
parents, Emilio Aguinaldo Suntan (son of
petitioner) and Isabenl Cojuangco-Suntay was
declared null and void because Emilio was found
to be schizophrenic at the time of his marriage.
Held: A child born out of a voidable marriage
before the decree of annulment is considered a
legitimate child.
-

RELUCTANCE vs. VITIATION

In reluctance, the person consents to the marriage
but gives it anyway.
In vitiation, there is an actual, external force

Jimenez vs. Canizares

Facts: Petitioner filed an action to annul his
marriage to respondent on the ground that the

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Void marriages are deemed never to have taken

place at all but the children born of that marriage
who are called natural children by legal fiction have
the same status, rights and obligations as
acknowledged children.
Voidable marriages are considered valid and
produces all it civil effects until it is set aside by final
judgment of a competent court in an action for
annulment. The annulment fo the marriage dissolves
the special contract but the effects of the marriage

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will not be wiped out completely. Children born of
voidable marriages shall be considered legitimate.

in the proper cases to marriages which are declared void ab

initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children and
the delivery of their presumptive legitimes unless such
matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it
is situated shall be adjudicated in accordance with Articles
102 and 129.

To annul means to reduce to nothing. Null and void

means something does not exist from the beginning.

Marriage when one spouse is absent

CC Article 83: A marriage subsequently contracted by any
person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal
and void from its performance unless:
1. The first marriage was annulled or dissolved;
2. The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee though he
has been absent for less than seven years, is
generally considered as dead and believed to be so
by the spouse present at the time of contracting
such subsequent marriage, or if the absentee is
presumed dead according to articles 390 and 391.
The marriage so contracted shall be valid in any of
the three cases until declared null and void by a
competent court.

FC Article 51: In said partition, the value of the presumptive

legitimes of all common children, computed as of the date of
the final judgment of the trial court shall be delivered in cash,
property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such
matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
the children accruing upon the death of either or both of the
parents; but the value of the properties already received
under the decree of annulment or absolute nullity shall be
considered as advances on their legitimes.

CC Article 85: A marriage may be annulled for any of the

following causes, existing at the time of the marriage:
(2) In a subsequent marriage under article 83, number 2,
that the former husband or wife is believed to be dead was in
fact living and the marriage with such former husband or wife
was then still in force.

FC Article 52: The judgment of annulment or of absolute

nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons.

Jones vs. Hortiguela

Facts: Petitioner requests that she be declared
the sole heir of the intestate estate of Marciana
Escano, her mother. Prior to the motion, at the
time when petitioner was still a minor,
respondent was awarded a fixed rate of P10,000
for the administration of the estate of the
deceased. Petitioner alleged that when her
mother remarried in May 1927, the judicial
declaration of the absence of her father was not
yet effective. As such, the marriage of the
deceased and the respondent was null and void.
Held: Petition denied. Absence of one spouse
shall be counted from the last day of
communication or from the reception of the last
news regarding the absent spouse. In this case,
the first spouse was absent for 9 years.
Effects of pending action or decree

FC Article 53: Either of the former spouses may marry again

after compliance with the requirements. Subsequent marriage
shall be null and void.
FC Article 54: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.
CC Article 371: In case of annulment of marriage, and the
wife is the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may continue
employing her former husbands surname, unless:
1. The court decrees otherwise;
2. She or the former husband is married again to
another person.

FC Article 49: During the pendency of the action and in the

absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support
of the spouses and the custody and support of their common
children. The Court shall give paramount consideration to the
moral and material welfare of said children and their choice of
parent with whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights for the
other parent.

CC Article 369: Children conceived before the decree

annulling a voidable marriage shall principally use the
surname of the father.
Jurisdiction

Estrellita J. Tamano vs. Hon. Rodolfo Ortiz

Facts: Petitioner assailed the decision of a lower
court which rejected the motion to dismiss she
filed against the motion for declaration of nullity

FC Article 50: The effects provided for by paragraphs (2),

(3), (4), (5) of the Article 43 and by Article 44 shall also apply

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filed by private respondent. Private respondent
alleged that the marriage of the Petitioner to her
husband must be declared null and void on the
ground of bigamy. At the time of the marriage of
petitioner and her deceased husband, private
respondent was still also married with him.
Petitioner contended that the Regional Trial Court
had no jurisdiction because both the petitioner
and the deceased were Muslims.
Held: Under the Judiciary Reorganization Act of
1980, Regional Trial Courts have jurisdiction over
all actions involving the contract of marriage and
marital relations. In this case, both the petitioner
and the deceased were married through a civil
wedding and whether or not they were likewise
married in a Muslim wedding, sharia courts are
still not vested with original and exclusive
jurisdiction over marriages married under civil
and Muslim laws.

LEGAL SEPARATION
Grounds
FC Article 55: A petition for legal separation may be filed on
any of the following grounds:
1. Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
3. Attempt of respondent to corrupt or induce
petitioner, a common child, or a child of the
petitioner to engage in prostitution, or connivance in
such corruption or inducement;
4. Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
5. Drug addiction or habitual alcoholism of the
respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting of respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt of the respondent on the life of the
petitioner;
10. Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term child shall include
a child by nature or by adoption.
Violence- must be of a serious degree but does not have
to amount to an attempt against the life of the defendant
The violence must be repeated, to the extent
that common life with defendant becomes
extremely difficult for the plaintiff.

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Physical violence or moral pressure to compel

the plaintiff to change religious or political
affiliation need not be repeated. There must
be some element of coercion present, whether
physical or moral.

The guilt for the corruption or inducement to

prostitution must be on only one spouse.

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-

The crime for which a spouse may have been

convicted may have no bearing at all on the
relationship of the husband and wife.

If drug addiction, habitual alcoholism,

lesbianism or homosexuality existed at the
time of marriage but were unknown to the
other party, they would constitute a ground
for annulment of marriage as fraud. If they
come to exist after the celebration of the
marriage, they become grounds for legal
separation.

Every subsequent marriage, where there is a

subsisting prior marriage, should give the
other spouse the right to ask for legal
separation. This is so because the spouse who
has remarried has cohabited with another
person.

Under the Family Code, every act of sexual

infidelity by either husband or wife is a ground
for legal separation.

Sexual perversion as a ground for legal

separation includes all unusual or abnormal
sexual practices which may be offensive to the
feelings or sense of decency of either husband
or wife. There must also be an element of
coercion exercised by the defendant to make
the plaintiff submit to the act.

There is abandonment when one spouse

leaves the other without intent to return.

Attempt on the life must imply that there is

intent to kill

Legal Separation vs. Separation of Property

In legal separation, there is a suspension of
the common marital life, both as to person
and property.
In separation of property, only the property
relation is affected and the spouses may
continue living together.
Separation of property can be effected by
agreement of the spouses, subject to judicial
approval; but a decree of legal separation
cannot be rendered upon agreement of the
parties.
Legal Separation vs. Separation of Spouses
Legal separation can be effected only by
decree of the court; but the spouses may be
separated in fact without any judgment of the
court.

People vs. Zapata and Bondoc

Facts: Petitioner husband Andres Bondoc filed a
complaint of adultery against his wife, Guadalupe
Zapata and her paramour, Dalmacio Bondoc. The
two respondents cohabited and had repeated
sexual intercourse from 1946 to March 1947. The
defendant wife entered a plea of guilty and was
sentenced to suffer four months in prison.
Respondent Dalmacio Bondoc on the other hand,
claimed that he did not know that Guadalupe
Zapata was married. On September 1948,
petitioner once again filed a complaint of adultery
for acts committed from March 1947 to
September 1948. Defendant then filed a motion
to quash on the ground that they will be twice put
in jeopardy. The motion was granted by the lower
court on the ground that adulterous acts must be
considered as a continuing offense.
Held: The court held that adultery as a crime of
result and not of tendency, is consummated at
the moment of carnal union. Continuous crimes
exist if there is a plurality of acts performed
separately during a period of rime, unity of penal
provisions violated and unity of criminal intent or
purpose. In short, continuous crimes are aimed at
committing a single offense. In adultery, each
instance of sexual intercourse is a separate
crime. Also, the court held that there is no legal
provision which bars the filing of as many
complaints for adultery as there were adulterous
acts committed.

Under Article 101 of the Family Code, the

spouse who has left the conjugal dwelling for
a period of three months or has failed within
the same period to give any information as to
his or her whereabouts, shall be prima facie
presumed to have no intention of returning to
the conjugal dwelling.

CC Article 97: A petition for legal separation may be filed:

1. For adultery on the part of the wife and for
concubinage on the part of the husband as defined in
the Penal Code; or
2. An attempt by one spouse against the life of the
other.
Adultery- The act of a wife having sexual intercourse with any
other man not her husband will constitute adultery.
Concubinage- The act of the husband having sexual
intercourse with his wife shall constitute concubinage if:
1. He maintains a mistress in the conjugal dwelling;
2. there is sexual intercourse with the other woman
under scandalous circumstances;
3. the husband cohabits with another woman other
than his wife in any other place.

Munoz vs. Del Barrio

Facts: Felicidad Munoz and Jose del Barrio
quarreled frequently and on those occasions,
petitioner
complained
that
the
husband
maltreated her. In 1947, they separated but on
December 1950 and September 1951, the
husband once again maltreated petitioner,
prompting her to institute an action for legal
separation on the ground of attempt to life.

Cohabit- to dwell or live together in the same house as

husband and wife.

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Petitioner requested that she be given custody of
her children, that whatever will remain of the
conjugal property be divided, and the conjugal
partnership be dissolved.
Held: The Supreme Court affirmed the decision of
the lower court. It held that the alleged
maltreatment cannot constitute an attempt to life
because such has to be characterized by intent to
kill which was not sufficiently proven especially
since the respondent only used his bare hands.
Intent to kill, the court said, must be established
with clear and convincing evidence.

claimed that he was drunk at the time of the

incident.
Held: To convict a man of the offense being a
common drunkard it is necessary to show that he
is a habitual drunkard to the point that he has a
fixed habit of drunkenness.
Lapus Sy vs. Sy Uy
Facts:A case for legal separation was filed by
Carmel Lapuz Sy against Eufemio Sy Uy on the
ground of abandonment. She prayed for the
issuance of a decree of legal separation and that
her partner be deprived of their conjugal
partnership profits. Petitioner also claimed that
respondent was cohabiting with a certain Go
Hiok. Respondent then filed a counter-dlaim for
the declaration of nullity ab initio of his marriage
with petitioner on the ground that he had a
subsisting marriage with Go Hiok. During the
course of the trial, petitioner died and her father,
Macario Lapuz, moved to substitute. Eufemio
moved to dismiss the substitution because the
death of the petitioner should, as he alleged,
abate the action for legal separation.
Held: The death of one of the parties to the action
abates the action itself because action for legal
separation is purely personal hence, when one of
the parties is dead, there is no longer a need for
the decree. Conjugal property are likewise not
assignable or transmissible therefore, it doesn
not warrant a continuation of the action through
substitution.

Gandionco vs. Penaranda

Facts: Respondent judge Hon. Senen C.
Penaranda ordered petitioner to pay for the
support of private respondent Teresita Gandionco
and his child. Private respondent filed a complaint
for legal separation against petitioner on the
ground of concubinage. Private respondent
likewise requested for support and payment of
damages. Petitioner Froilan Gandionco claims
that the civil action for legal separation and the
application for support should be suspended
because of the pending criminal case for
concubinage filed against him. His contention was
based on Article 111 Section 3 of the 1985 Rules
on Criminal Procedure which states that a
pending civil action instituted for civil liabilities
should be suspended until the criminal action
arising from the same offense is over.
Held: The court held that a civil action for legal
separation
may
proceed
ahead
of
or
simultaneously with a criminal action for
concubinage because the said civil action is not
one to enforce civil liability but rather to obtain
the right to live separately. Petitioners argument
that conviction for concubinage must be secured
before an action on legal separation can prosper
lacks merit because unlike in criminal procedures,
proof of concubinage in a civil procedure is based
on preponderance of evidence and not proof
beyond reasonable doubt.

Dela Cruz vs. Dela Cruz

Facts: Estrella dela Cruz filed a complaint against
her husband alleging that the latter has
abandoned their family and has not slept or
visited the conjugal dwelling since 1955; that
defendant was mismanaging their conjugal
partnership properties and as such has abused
his powers of administration and that defendant
had a concubine named Nenita Hernandez.
Petitioner then asked for the separation of their
property, a monthly support of P2,500 during the
pendency of the action and payment of P20,000
in attorneys fees.
Defendant contended that he did not abandon his
family and has not failed to give them a monthly
allowance of around P1,500. He stated that he is
merely separated from his wife because he
cannot concentrate on their business but he
never failed to visit his family. Petitioner allegedly
played
mahjong
often
while
respondent
consistently applied his industry so that their
business will grow.
Held: The court held that abandonment must be
real abandonment and not mere separation. It

US vs. McMann
Facts: Defendant Robert McMann and one McKay
were
employed
at
the
Quartermasters
Department of the Army. While at the place of a
certain Moro, Amay Pindolonan asking for
matches to light a cigarette, McMann suddenly
fired at McKay. McKay was struck in the back of
the head and killed instantly. Amay Pindolonan
tried to run but McMann also shot him. Defendant
claimed that he had no intention to shoot McKay
as they were good friends and that the shooting
was merely an accident. The defendant also

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must not only be physical estrangement.
Abandon in ordinary sense means to forsake
completely with intent never again to resume or
claim ones rights or interests. There must
therefore be absolute cessation of marital
relations, duties and rights with the intention of
perpetual separation.

with the belief that her husband will not return

again. Complainant returned and filed a
complaint of adultery against respondents. The
court held in favor of the plaintiff but opined that
the plaintiff treated his family with cruelty in
abandoning them. After sentence, accused wife
left her paramour and begged for the forgiveness
of plaintiff but she was turned away. She then
went back to Marcelo Ramos. Plaintiff then left for
Hawaii and upon his return after seven years, he
once again filed a charge of adultery.
Held: The court held that under Article 34 of the
RPC, the offended party cannot file a complaint of
adultery if he consented to it. The court was of
the belief that complainants action of turning
away the defendant constituted a consent and as
such he estopped from filing a case.

Defenses
FC Article 56: The petition for legal separation shall be
denied on any of the following grounds:
1. Where the aggrieved party has condoned the offense
or act complained of;
2. Where the aggrieved party has consented to the
commission of the offense or act complained of;
3. Where there is connivance between the parties in the
commission of the offense or act constituting the
ground for legal separation;
4. Where both parties have given ground for legal
separation;
5. Where there is collusion between the parties to
obtain the decree of legal separation; or
6. Where the action is barred by prescription.
-

-Constructive Abandonment- The injured party

leaves the wife or the spouse refuses the re-entry
of the offending spouse.
De Ocampo vs. Florenciano
Facts: Petitioner Jose de Ocampo filed a
complaint of adultery against his wife but was
denied by the Court of First Instance. Through
several testimonies, it was found that in March
1951, defendant maintained illicit relations with
one Jose Arcalas. After plaintiff found out,
defendant was sent to Manila to study wherein
she had several illicit relations with other men.
On June 1955, plaintiff found his wife in the act of
sexual intercourse with one Nelson Orzame.
Plaintiff then and there told his wife of his
intention of filing for legal separation. The Court
of Appeals held that the time for filing a charge of
adultery on the first case had prescribed. Also, on
the second case, CA held that they cannot render
a decree of separation on the ground of
confession of judgment.
Held: The court held that the confession of
judgment--which happens when a defendant
confesses in court the right of plaintiff to his
demand, did not occur because such confession
happened outside of court. Had there been a
confession of judgment, the decree should still be
granted since there was a preponderance of
evidence as provided by the plaintiff. If the court
will not allow separation despite of the evidence,
any defendant who opposes separation will
merely confess in court.

Condonation is the forgiveness of a marital

offense constituting a ground for legal
separation, and bars the right to legal
separation. It may be expressed, in the sense
that it is in writing or implied as inferred from
the action of the injured party.
Where a party has clear and convincing
knowledge
of
the
offense
and
then
deliberately and willfully cohabits or has
sexual intercourse with the offender, he or she
thereby impliedly pardoned the offenders act.
Consent is agreement or conformity in
advance of the commission of the act which
would be a ground for legal separation.
Connivance implies agreement, express or
implied, by both spouses.
A husband who actively connives in the
adultery of his wife by procuring her to be
lured into the commission of the act will very
generally be presumed to have consented to
the adultery and will be denied legal
separation on that ground.
A husband must not actively participate in
preparations for the suspected misconduct by
providing opportunity for the wrongdoing.
Collusion is the agreement between husband
and wife for one of them to commit or to
appear to commit or presented in court as
having committed, a matrimonial offense, or
to suppress evidence of a valid defense, for
the purpose of enabling the other to obtain
legal separation.

People vs. Sensano and Ramos

Facts: After the birth of the first child of
complainant Mariano Ventura and respondent
Ursula Sensano, complainant left for Cagayan de
Oro. Complainant did not write, call or send
anything in form of support for three years.
Respondent then cohabited with Marcelo Ramos

Sargent vs. Sargent

Facts: Petitioner Donald Sargent charged his wife,
respondent Frances L. Sargent with adultery
alleging that defendant wife had illicit relations
with Charles Simmons, a black man and the

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couples driver. Petitioner alleged that defendant
wife contracted gonorrhea from the illicit
relations. Petitioner then hired detectives to
prove the said illicit relations, and said detectives
testified along with other servants, all of whom
were employed by petitioner. The detectives in
one instance shut the door of the room of
respondent wife while respondent Charles
Simmons was inside to make it appear as though
they were having illicit relations.
Held: The court held in favor of the defendant.
The detectives surveilled Mrs. Sargent for over
seven weeks but no solid evidence of the alleged
adultery was procured. Mr. Sargent also appeared
to have connived with the detectives to show that
his wife was indeed having sexual relations.
Where the husband employs detectives to get
evidence of his wifes adultery, but the adultery is
brought about by the detective himself, legal
separation can be denied on the ground of
connivance.

petitioner and respondent once again had sexual

intercourse.
Held: The court held in favor of the defendant as
they found it impossible that a man may have
sexual relations and not condone the said
relations. Unwillingness, the court said, is not the
same as involuntariness.
Bugayong vs. Ginez
Facts: After their marriage, petitioner Benjamin
Bugayong and Defendant Leonila Ginez agreed
that defendant would stay with petitioners
sisters while petitioner worked in the United
States as a serviceman. For some time,
defendant lived with petitioners sisters but she
eventually left to live with her mother and then
moved to Dagupan to study. Petitioner received
letters from his sister-in-law that defendant was
having adulterous relations and petitioner alleged
that defendant herself wrote him that she was
kissed by another man. When petitioner returned,
they lived together for two nights and one day.
On the second day, when petitioner asked the
defendant if there was any truth to the
allegations of adultery, defendant did not answer
but instead, left. The petition was dismissed by
the lower court on the ground that petitioner had
condoned the said illicit relations of his wife.
Held: The petitioner, having slept with the
defendant for two nights, has condoned the
adulterous relations. Any cohabitation with the
guilty party, after the commission of the offense,
and with knowledge or belief is considered
conclusive evidence of condonation.

Brown vs. Yambao

Facts: William H. Brown filed an action to obtain
legal separation against his wife, Juanita Yambao.
He found out that his wife has adulterous
relations with one Carlos Feld at the time when
petitioner was interred by the Japanese invaders.
He discovered the said relation when in 1945, his
wife begot a child. A document was executed for
the liquidation of their conjugal partnership
property and as such, complainant wants
confirmation of liquidation, custody of children
and the disqualification of defendant from
succession. In the cross examination of petitioner
it was found that he was also cohabiting with
another woman and had a child with that woman.
Held: The court held that the misconduct of
petitioner barred him from obtaining legal
separation and in this case, the misconduct and
failure of the wife to institute action against
petitioners
misconduct
constituted
circumstantial evidence of collusion.

Matubis vs. Praxedes

Facts: Soccoro Matubis filed a complaint for legal
separation alleging that Zoilo Praxedes had
abandoned her and was guilty of concubinage.
According to her testimony, barely a year after
their marriage, plaintiff and defendant agreed to
live separately after failing to agree on where
they should live as husband and wife. They
entered into an agreement which stipulated the
conditions and provisions for their de facto
separation. In 1955, defendant began cohabiting
with another woman and had another child by
her.
Held: The time for instituting action has
prescribed. The stipulations in the agreement
which stated that both spouses relinquished their
rights as husband and wife, and was free to get
any mate and live with him or her as husband
and wife, constituted consent and condonation.

Willan vs. Willan

Facts: Husband appeals the decision by court to
deny his petition for the dissolution of his
marriage on the ground that he condoned the
cruelty of his wife. Petitioner alleged that his wife
repeatedly assaulted him, was habitually
offensive and frequently demanded to have
sexual intercourse with him. Respondent
allegedly resorted to violence and pestering,
forcing complainant to agree to sexual
intercourse. Solicitors have allegedly written the
wife regarding the matter but to no avail. The
night before leaving the conjugal dwelling,

When to File/ Try Actions

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Somosa Ramos vs. Vamenta Jr. and
Clemente Ramos
Facts: Petitioner Lucy Somosa Ramos filed a civil
case for legal separation against Clemente
Ramos on the ground of concubinage and
attempt to life. She also sought the issuance of a
writ of preliminary mandatory injunction for the
return of her paraphernal and exclusive property
then in the administration of the defendant. An
opposition to the hearing of the motion was filed
based on Article 103 of the Civil Code which
states that an action for legal separation shall not
be tried before six months had elapsed since the
filing of the petition. Respondent judge held in
favor of the defendant who claimed that any
prospect for reconciliation will be lost if the
motion was tried.
Held: The court held that Art. 103 of the Civil
Code is not an absolute bar to the hearing of a
motion for preliminary injunction prior to the
expiration of the six-month period. Art. 104 states
that the court may appoint another person to
manage the property should it deem it proper.
The six-month bar should not have the effect of
overriding the provisions such as determination
of the custody of the children, alimony and
support pendent lite.

FC Article 57: An action for legal separation shall be filed

within five years from the time of the occurrence of the
cause.
FC Article 58: An action for legal separation shall in no case
be tried before six months shall have elapsed since the filing
of the petition.
- If the ground for legal separation is violence against women,
there should be no effort to compromise.
FC Article 59: No legal separation may be decreed unless
the Court has taken steps towards the reconciliation of the
spouses and is fully satisfied, despite such effort, that
reconciliation is highly improbable.
FC Article 60: No decree of legal separation shall be based
upon a stipulation of facts or a confession of judgment. In any
case, the Court shall order the prosecuting attorney or fiscal
assigned to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed.

Contreras vs. Macaraig

Facts: Elena Contreras appealed the decision of
the Juvenile and Domestic Relations court of
Manila which dismissed her complaint of adultery
against Cesar J. Macaraig on the ground that the
time for filing an action has prescribed. In 1961,
defendant met Lily Ann Alacala and had started
to come home late and be away often. In
September 1962, Avelino Lubos, the family
driver, told Elena that her husband was living
with Alcala. When defendant came home in
October, plaintiff did not verify the report so that
defendant will not get angry. In April 1963,
plaintiff once again heard rumors of the alleged
misconduct of her husband. It was only upon
hearing reports that Lily Ann Alcala had given
birth did plaintiff sent Mrs. Felicisima Antioquo to
investigate. The latter confirmed on October 1963
that a child had been born by Alcala, bearing the
surname of defendant. Plaintiff, through her
father and sister-in-law, tried to convince the
defendant to come back but defendant told her
that he can no longer leave Lily Ann. The lower
court held that the word cognizant does not
connote the date when proof was sufficient
because the time indicated by the code would
have been rendered meaningless as all one
would need to do is fix the date.
Held: The court held that plaintiff had reason not
to file an action because she had hoped that
defendant would return. The only time that
defendant therefore that plaintiff became
cognizant of the alleged infidelity of the
defendant was when the husband stated that he
was living with, and no longer be leaving, Lily Ann
Alcala.

Effects of Filing a Petition

FC Article 61: After the filing of the petition for legal
separation, the spouses shall be entitled to live separately
from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or a third
person to administer the absolute community or conjugal
partnership property. The administrator appointed by the
court shall have the same powers and duties as those of
guardian under the Rules of Court.
FC Article 62: During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise apply to
the support of the spouse and the custody and support of the
common children.
-

The spouses can live separately from each

other;
The administration of the common property,
whether in absolute community or conjugal
partnership gains, shall be given by the court
to either of the spouses or to a third person,
as is best for the interest of the community;
The court shall provide for the support
between the spouses and the custody and
support of the common children;
When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be necessary unless
such spouse voluntarily gives consent.

Alimony pendent elite- During the pendency of the suit for

legal separation, it is the duty of the court to grant alimony to

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Petitioner opposed the ruling of the lower court
on the ground that his wife committed adultery.
Held: The court held that while adultery is a good
defense, it should be established by competent
evidence. In the case at hand, petitioner did not
present evidence to that effect. Also, the plaintiffrespondent was not asking for mere support but
for her share of the conjugal property or alimony.
Complainant has also proven the grounds of legal
separation through competent evidence.
Property relations of unmarried couples is that of
co-ownership based on actual contribution and
not the presumed half and half as it is in conjugal
partnership.

the wife and to make provisions for the support of the

children not in the possession of the father.
An action for legal separation is based on the
assumption that there is a valid, subsisting
marriage thus, if defendant contends that the
marriage is not valid, alimony pendente elite
shal be denied.
Custody of the children may be determined by:
1. Agreement of the spouses which shall not be
disturbed unless prejudicial to the children;
2. Court order which shall be based on the sound
discretion of the judge, taking into account the
welfare of the children.

Dela Vina vs. Villa Real

Facts: Respondent Narcisa Geopano filed a
complaint against Diego delaVina alleging that he
committed acts of adultery with one Ana Calog.
Respondent likewise alleged that she had been
rejected from their conjugal home and had no
means of support. She requested for the decree
of divorce, partition of conjugal property and
alimony. After filing the complaint, respondent
also found that petitioner was trying to alienate
the conjugal property to the prejudice of the
plaintiff. Thus, plaintiff asked that a preliminary
injunction be issued against defendant. The lower
court ruled in favor of plaintiff-respondent as
such, herein petitioner contended that the court
had no jurisdiction over the case because the
domicile residence of the wife was not Iloilo and
that as administrator of the conjugal property, he
had a right to alienate his wife.
Held: The court held that a wife may acquire
another and separate domicile from that of her
husband when the theoretical unity of husband
and wife is dissolved or if husband has given
cause for divorce or where there is separation of
the parties by agreement or a permanent
separation due to desertion or cruel treatment or
where there has been a forfeiture of the benefit
of domicile. Also, petitioners claim that he had a
right to alienate responded lacked merit. Court
held that when the harmonious relationship
between husband and wife ceases, it is but right
that the husbands powers of administration be
curtailed in light of the pendency of the action for
separation.

Pendente Lite: Pending Litigation

Effects of Decree

Banez vs. Banez

Facts: On Sept. 23, 1996, Aida P. Banez was
legally separated from Gabriel Banez on the
ground of the latters sexual infidelity. Included in
the decision is the dissolution of their conjugal
property relations, division of their net conjugal
assets, forfeiture of respondents share in favor of
the common children and the urgent ex parte
motion to modify the decision and oblige
petitioner to pay as attorneys fees 5% of the
total value of respondents ideal share. On the
motion for execution, respondent Gabriel
opposed. Trial court denied Aidas motion for
moral and exemplary damages and litigation fees
but granted the motion for execution. Petitioner
was thereby ordered to post a P1.5 M bond which
she did. The Court of Appeals set aside the writ
for execution.
Held: The court denied the motion of execution n
the ground that execution pending appeal is
allowed when superior circumstances demanding
urgency outweigh the damages that may result
from the issuance of the writ. Otherwise, the writ
will be a tool for oppression and inequity. Such
urgency is not manifested by the case at bar.
Legal separation is not one where multiple
appeals are allowed. The issues involved in the
case are of the same marital relationship
between the parties. In this case, dissolution is a
mere incident of legal separation. As such, no
separate action may be taken.

Reyes vs. Ines-Luciano and Reyes

Facts: Celia Ilustre Reyes filed a complaint for
legals separation against her husband, Manuel J.
C. Reyes on the ground that the latter had
attempted to kill the plaintiff. Plaintiff and herein
respondent asked for support pendent elite for
her and her three children which was granted by
the lower court and respondent judge awarded
plaintiff with P5,000 in monthly support.

FC Article 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

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3.
4.

had two children. The divorce only awarded Mrs.

La Rue with alimony and allowance for
healthcare. Their home which was once under the
name of Mrs. La Rue was transferred under Mr. La
Rue prior to the decree of divorce.
Held: Where the spouse has foregone career
opportunities at the behest of the primary wage
earning spouse, and throughout the long
marriage has remained in the home to rear
children and provide suitable environment for the
family, the homemaker spouse shall have an
equitable interest in real property acquired by the
wage earning spouse during their marriage.

profits earned by the absolute community or the

conjugal partnership which shall be forfeited in
accordance with the provisions of Article 43(2);
The custody of the minor children shall be awarded
to the innocent spouse, subject to the provisions of
Article 213 of this code; and
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.
The obligation of mutual fidelity remains. The only
sanction in case of adultery or concubinage shall be
penal.
After the decree, the obligation of mutual support
between the spouses ceases; however the court may
order that the guilty spouse shall give support to the
innocent spouse.
A parent shall still have a right to access his child
under court regulation, unless he forfeited the
privilege or if it would injuriously affect the child.
The guilty spouse shall not be entitled to the
legitime.
A decree of separation which does not include an
order of division of properties is not an incomplete
judgment. The rules on dissolution and liquidation of
property regime shall be applied when the decree of
legal separation becomes final.

Doctrine of Equitable Distribution

Permits a spouse who has made material economic
contributions toward the acquisition of property
which is titled in the name or under the control of
the other spouse, to claim an equitable interest in
such property in proceeding to seek a divorce.
The concept of homemaker services is not to be
measured by some mechanical formula but instead
rests on showing that the homemaker has
contributed to the economic well-being of the family
unit.
Custody

FC Article 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 has become final.
-

Determining the Best Interest of the Child:

1.

Gender and Tender Years Presumption: When

dealing with children of tender years, the natural
mother is presumed in absence of evidence to the
contrary, to be the proper person vested with
custody of such children.

PD 603 Article XVII: In case of separation of his parents,

no child under five years of age shall be separated from his
mother unless the court finds compelling reasons to do so.

Ex Parte Devine
Facts: Petitioner Christopher P. Devine and
respondent Alice Beth Clark Devine were
separated on March 29, 1979. The couple had
two children considered to be of tender years
based on the Tender Years Presumption. Both
Mrs. Devine and Mr. Devine were found to be fit
to care for the children but on account of the
Tender Years Presumption, custody was awarded
to respondent. Petitioner contended that the
Tender Years Presumption deprived him of the
constitutionally
mandated
right
of
equal
protection of the law.
Held: Petition is granted. Case remanded to the
lower court.
In common law, the Tender Years Presumption
was in favor of the husband who was the master
of the family. While Alabama recognize the
factual presumption that mothers are inherently
suitable to care for and nurture young children,
the presumption is weakening in other states.

The donations subsist if action is not taken before

the death of the spouse.

PD 612 (Insurance Code) Sec. 11: The insured shall have

the right to change the beneficiary he designated in the
policy, unless he has expressly waived this right in said
policy.
Dissolution and Liquidation of ACP or CPG

La Rue vs. La Rue

Facts: Upon the divorce of Walter F. La Rue from
Betty J. La Rue in March 1980, the trial court held
that the wife, having been a homemaker, was not
entitled to her claim to the equitable distribution
of marital assets. Petitioner Betty La Rue worked
in the early part of their marriage until Mr. La
Rue, herein respondent, convinced her to stop
working and become a homemaker. The couple

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With this presumption, it becomes the fathers
burden to prove that the mother is unfit to care
for their common child. The constitutionality of
this presumption, the court held, may not be
lawfully mandated solely on the basis of sex.

bigamy against her. In December 1992,

respondent filed a writ for habeas corpus. The
trial court dismissed the petition but the decision
was reversed by the CA.
Held: The presumption that children under seven
years of age can best be taken care of by the
mother is rebuttable. The task of appointing
custody cannot be solely based on the child alone
but several other considerations. The seven year
age is not based on the date petition was filed
but the date decision is rendered. As such, the
preference of the children should be taken into
consideration in deciding the matter of their
custody.

Cervantes vs. Fajardo

Fact: This is a petition for a writ of habeas corpus
of minor Angeline Anne C. Cervantes filed by
Nelson L. Cervantes and Zenaida C. Cervantes
against Gina Carreon Fajardo and Conrado
Fajardo. After the birth of Angeline Anne,
respondents offered the child for adoption to
Zenaida, Ginas sister, and Nelson, her brother-inlaw. The petitioners have taken care of the child
since she was two weeks old and an Affidavit of
Consent to Adoption was executed. On Aug. 20,
1987, the petition for adoption was granted and
the childs surname was changed to Fajardo. She
was, from that decision, freed from parental
authority and legal obligation of her natural
parents. On April 1987, petitioners received a
letter from respondents demanding P150,000 for
the return of their adopted child who was taken
by respondent Gina Carreon.
Held: The court reaffirmed the decision of the
lower court. The provision that no mother shall be
separated from a child under five years of age
will not apply where the court finds compelling
reasons to rule otherwise. Because the adoptive
parents are legally married and the respondents
relationship with her husband is that of common
law and that respondent has given birth to a child
by another man, the court held that it will be in
the childs best interest to stay with her adoptive
parents.

Celis vs. Cafuir

Facts: Respondents Soledad Cafuir and her
husband Jose Simeon appealed the decision of
the lower court granting the writ of habeas
corpus to Ileana Celis and ordering the delivery of
the child to petitioner. Petitioner, after giving
birth to Joel (John) Cafuir turned over custody to
Soledad, fearing the extreme displeasure and
anger of her father. Soledad provided for all the
needs and comforts of the child, including a nurse
hired to care for the child. After marrying Agustin
C. Rivera, petitioner filed the suit for habeas
corpus. Respondents argued that petitioner
executed documents to the effect that she has
renounced the custody of her children. The first
stated that the child was entrusted to
respondents while the second stated that Soledad
is the real guardian of the child and no one may
adopt the child except for Soledad.
Held: The document cannot be taken to imply
that petitioner has renounced the custody of her
child. The child was, as the first document stated,
merely entrusted and such arrangement was
not permanent. Having been emancipated from
her father, Ileana was in the position to care for
her child and as such, has a right to do so.

Espiritu v. Court of Appeals

Facts:
Petitioner
Reynaldo
Espiritu
and
respondent Teresita Masauding met in 1976. In
1977, respondent left for Los Angeles, California
to work as a nurse. In 1984, National Steel
Corporation
sent
petitioner
to
Pittsburgh
Pennsylvania as a liason officer and from then on,
petitioner and respondent maintained a common
law relationship. On August 16, 1986, their first
child was born. The couple was married in
October 1987 in the Philippines. After that, they
had another child who was born in 1988. While in
the US, respondent left her children with
Petitioner to continue working in California while
the latter was in Pittsburgh. Petitioner returned to
the Philippines but upon being sent to Pittsburgh
decided to leave his children with his sister
Guillerma Layug. Teresita claimed that she did
not immediately follow her children because she
was afraid that Reynaldo has filed a case of

FC Article 210: Parental authority and responsibility may not

be renounced or transferred except in the cases authorized by
law.
2.

Parental unfitness:

Feldman vs. Feldman

Facts: In a habeas corpus proceeding, the lower
court transferred from the mother to the
unmarried father the custody of their two infant
children who previously had continuously resided
with the mother. The couple was divorced in July
1970 on the ground of cruel and inhuman
treatment on the part of the husband who was
involved in extramarital relations prior to the

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dissolution of their marriage. The wife on the
other hand, had a relationship to another man
subsequent to the decree of divorce. Petitioner
Philip Feldman alleged that he observed a copy of
Screw Magazine (which possesses dubious
redeeming social values) and that he found
letters (some with explicit photographs attached)
which were responses to an advertisement for
another couples or groups for fun and games,
in the house of respondent Mady Feldman.
Respondent wife alleged that the advertisement
was done for fun and that the evidence showed
that her private sex life in no way affected the
children and that the children were provided for.
Held: Court held that amorality, immorality,
sexual deviation and aberrant sexual practices do
not, on its face, constitute unfitness for custody.
The trial courts ruling that parents who
participate in a culture of free sex were unfit to
care for children was a dangerous conclusion.
Also, the right of women to engage in private
sexual activities which do not affect her
relationship with her children is protected by her
right to privacy. If courts recognized the rights of
unmarried men to engage in extramarital
relations, there is no reason to impose stricter
standards on women. The evidence of the
obscene materials was likewise out of reach of
the children. As such, they are not, on its face,
detrimental to the childrens welfare.

in cases of adoption, guardianship and surrender

to childrens home or an orphan institution.
Petitioners previous inattention cannot be
immediately construed as abandonment. His
effort to keep custody of the child is a sign that
he is willing to rectify his mistakes.

Role of the Childs Preference

FC Article 49: The court shall give paramount

consideration to the moral and material welfare of said
children and their choice of the parent with whom they wish
to remain as provided for in Title IX.
FC Article 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 is unfit.
No child shall be separated from the mother unless the court
finds compelling reasons to order otherwise.

David v. CA
Facts: Petitioner Daisie T. David worked as
secretary of private respondent Ramon R. Villar
who was then married and had a family. They had
intimate relations which produced three children,
Christopher,
Christine and Cathy. Private
respondents wife was aware of the existence of
the illegitimate children. Christopher was taken
by respondent on a trip to Boracay. Upon their
return, respondent refused to return the child
prompting petitioner to file for a write of habeas
corpus. The trial court granted the petition but
the Court of Appeals reversed the decision on the
ground that the trial court had no jurisdiction
over the case as the children were borne out of
adulterous relations. Temporary custody was
awarded to respondent until such time that the
issue on custody and support was determined in
a proper case. Petitioner contended that the writ
of habeas corpus applied to all cases of illegal
confinement or detention or by which the rightful
custody og any person is withheld.
Held: Article 213 of the FC states that custody of
a child under six will be given to the mother
unless the court deems it proper to rule
otherwise. Absent any showing that petitioner is
unfit (although admittedly, she is not as well-off
as respondent), custody shall be given to her. As
the child is over the presumed tender years,
custody must still remain with the mother as the
child has categorically expressed preference to
live with his mother.

Santos Sr. vs. Court of Appeals

Facts: Court of appeals granted custody of 6 year
old Leouel Santos Jr., son f petitioner Leouel
Santos Sr. and Julia Bedia-Santos to the latters
parents, Leopoldo and Ofelia Bedia. Leouel
Santos Sr. is an army lieutenant while Julia Bedia
was a nurse working in the US. Since release from
the hospital, Leouel Jr. had been in the custody of
respondents. Julia has reportedly sent financial
support while Leouel Santos had done no such
thing. On Sept. 2, 1990, Leouel took his son from
respondents prompting respondents to file a
Petition for Care, Custody and Control of Minor
ward Leouel Santos Jr. Petitioner argued that
private respondents have failed to show that
petitioner was an unfit and unsuitable father and
as such, Article 214 of the Family Code cannot be
applied. Private respondents contended that they
can provide a comfortable life to the child and
that petitioner, being a soldier, will not be able to
care for the child.
Held: Custody granted to petitioner. When a
parent entrusts the child to another, what is
given is merely temporary custody and not a
perpetual renunciation of parental authority. A
waiver of parental authority can only be executed

Pizarro vs. Vasquez

Facts: This suit for obtaining support from
defendant was instituted by Maria Pizarro and her
minor children, Gloria, Julita and Lorenzo. Plaintiff

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and defendant separated on the ground that the
latter committed acts of infidelity and cruelty.
Defendant denied the claim and alleged that
there is no contract of separation and that Maria
Pizarro committed acts of adultery. The evidence
of said adulterous relations was the birth of
Lorenzo 11 months after the couple separated.
Petitioner explained that they had sexual
intercourse sometime in November 1933 during
the town fiesta in the belief that defendant had
changed.
Held: Claims of plaintiff that defendant had kept a
mistress and had maltreated her were not
contradicted. Also, absent any evidence that
plaintiff
indeed
committed
adultery
and
considering the prima facie presumption of
innocence, plaintiff should be given support by
the defendant.

Facts: Appelant Gwendolyn McCoy was pregnant

with her first child, Jonathan Conway, at 15 years
old. During pregnancy, Michael Garska, herein
petitioner, did not give any support. When the
child was born, petitioner sent food and diapers.
The baby developed a chronic respiratory
infection and to be able to use the United Mine
Workers medical insurance of her grandfather,
appellant agreed to the adoption of Jonathan by
her grandparents. The petition was dismissed on
the ground that the child had not lived with the
grandparents for the requisite six months. Upon
learning the action for adoption, petitioner filed
for a writ of habeas corpus which was granted by
the lower court.
Held: While the tender years presumption in favor
of the mother is no longer in effect, custody
should still be granted to appellant on the basis
that she has been the primary caretaker of the
child in question. Logically, the primary caretaker
parent is not in superior financial position as
such, the material welfare of the child depends
on the award of support. Court therefore held
that the presumption is in favor of the primary
caretaker parent if he or she meets the minimum
objective standard for being a parent. The
presumption shall only apply to children of tender
years. Custody was granted to Gwendolyn McCoy.
Court held that manipulation of the welfare
system to provide for the childs healthcare shall
not be construed as an attempt to abandon the
child.

Laxamana vs. Laxamana

Facts: Petitioner Reymond Laxamana was a
graduate of Bachelor of Laws while respondent
Ma. Lourdes Laxamana held a degree in Banking
and Finance. Upon marriage, respondent quit her
job and became a full time housewife while
petitioner managed buy and sell, fishpond and
restaurant businesses. The couple had three
children. In October 1991, petitioner was confined
in Estrellas Home Care Clinic for being a drug
dependent. He was again confined in 1996 for
rehab. In 1997, petitioner was declared drug free
but respondent alleged otherwise stating that
petitioner has become irritable since his return
and had even maltreated her at one point.
Respondent abandoned petitioner in June 1999
taking the children with her. Petitioner filed a writ
for habeas corpus for visitation rights which the
court granted. The parties were ordered to
undergo psychological evaluation which they
passed except for the psychologists opinion that
petitioner, in his belief, was not completely drug
free.
Held: Case was remanded. It is the duty of the
court to hold a trial notwithstanding the
agreement of the parties to submit the case for
resolution on the basis of a psychiatric report.
While petitioner had a history of drug
dependence, records were inadequate to show
his moral, financial and social well-being. There is
therefore no proof that he is unfit to care for his
children. The court also failed to consider the
preference the choice of the children who were
then 14 and 15 years old.

Other Effects

CC Article 372: When legal separation has been granted, the

wife shall continue using her name and surname employed
before the legal separation.
-

This is so because her married status is not affected

by the separation.
After legal separation, the marriage bonds are not
severed.

CC Article 370: A married woman may use:

(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's
surname or
(3) Her husband's full name, but prefixing a word
indicating that she is his wife, such as "Mrs."

Matute vs. Macadalo

Facts: Petitioner Rosario Matute and private
respondent
Armando
Medel
were
legally
separated on the ground of adultery committed
by petitioner with her brother-in-law. Custody of
the four minor children was thereby awarded to
Armando.
With
permission
from
private

Presumption of Primary Care Taker

Garska vs. McCoy

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respondent, petitioner brought her children to
Manila to attend her fathers wake. Thereafter,
she filed a civil suit, praying for custody of her
children whom she alleged has expressed
preference to stay with her. Three of the said
children were no longer of tender years.
Armando moved to have Rosario charged with
contempt of court for disobeying the courts
decision to grant custody to Armando but the
court did not accede owing to the fact that
Armando consented. However, the court did not
grant custody to petitioner. Petitioner argued that
the act of adultery she was charged with does not
constitute moral depravity. Armando was found
to be living with a different woman and such
relations were likewise adulterous.
Held: Alleged errors by respondent were merely
errors of judgment and not errors of jurisdiction.

1.

Laperal vs. Republic of the Philippines

Facts: Elisea Laperal has been legally separated
from her husband Enrique Santamaria. During
their marriage, petitioner used the latters
surname. She prayed that she be allowed to use
her maiden name considering that she and her
husband had not lived together for a long time.
Petition was opposed b y the City Attorney of
Bagiuo but in a motion for reconsideration, the
petition was granted on the basis that the use of
the married name will give rise to confusion in
finances and the eventual liquidation of the
conjugal assets.
Held: The language of the statute is mandatory
and a woman shall continue using her married
name because her married status is unaffected
by her legal separation. The fact of legal
separation alone is not a sufficient ground to
justify a change of name.

The properties to be contributed anew to the

restored regime;
2. Those to be retained as separate properties of each
spouse; and
3. The names of all their known creditors, their
addresses and the amounts owing to each.
The agreement of revival and the motion for its approval
shall be filed with the court in the same proceeding for
legal separation, with copies of both furnished to the
creditors named therein. After due hearing, the court
shall, in its order, take measures to protect the interest
of creditors and such order shall be recorded in the
proper registries of properties.
The recording of the order in the registries of property
shall not prejudice any creditor not listed or not notified
unless the debtor-spouse has sufficient separate
properties to satisfy.
- The word revive implies that the conjugal property
regime prior to the decree of legal separation would be
restored however, parties are still allowed to stipulate
what would be brought into the revived property regime.

Reconciliation must
be
a
voluntary
mutual
agreement to live together as husband and wife.
Filing of manifestation is only needed to terminate
the case in court and for purposes of future property
relations of the spouses.
If the reconciliation takes place after the decree of
legal separation has been handed down by the court,
the decree is set aside, and all the orders in that
decree will have no effect, except as to the property
relations of the spouses. The community of property
or conjugal partnership of gains is not automatically
revived.
After the spouses have reconciled, a new action for
legal separation can be based only on the
subsequent or other causes, but not on the causes
already pardoned.

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

Reconciliation
FC Article 65: If the spouses reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed
with the court in the same proceeding for legal separation.

FC Article 26: 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 in those
prohibited under Articles 35 (1), (4), (5), and (6), 36, 37
and 38.
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 the
capacity to remarry under Philippine laws.

FC Article 66: The reconciliation referred to in the preceding

article shall have the following consequences:
1. The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
2. The final decree of legal separation shall be set aside
but the separation of property and any forfeiture of
the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their
former property regime.
The courts order containing the foregoing shall be recorded in
the proper civil registries.

FC Article 67: The agreement to revive the former property

regime referred to in the preceding Article shall be executed
under oath and shall specify:

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General rule is a marriage valid where it was

celebrated is valid everywhere.
Exceptions to the general rule:
o
Marriages which are contrary to the law of
nature and good morals as generally
recognized in Christian countries (ex.
polygamous and incestuous marriages).

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petition for the right to administer the estate of
Arturo. Blandina Dandan, claiming to be the
surviving spouse of Arturo, along with her six
children filed their opposition to Javier, praying
that the administration of the estate be granted
instead to their lawyer. In 1987, petitioner moved
for immediate declaration of the heirs of
respondent and distribution of his estate. The
Dandan family did not appear in court. Arturos
brother, Ruperto and Fe Quita were declared the
only heirs of Arturo. The trial court held that a
foreign divorce sought by Filipinos after the
effectivity of the Civil Code is not recognized in
this jurisdiction. As such, Blandina was not a
legitimate spouse. As proof of filiation of the
children was presented, partial reconsideration
was granted by the court in favor of Arturos
illegitimate children.
Held: The mere fact that petitioner declared
Arturo was Filipino and thus remained legally
married to her in spite of the divorce implies that
Quita was no longer a Filipino citizen at that time.
As such, the trial court should have conducted a
hearing to establish the citizenship. Quita has
apparently testified that she has been a US
citizen since 1954.

Marriages which the local law-making power

has declared shall not be allowed any
validity.
Foreign marriages under Articles 35 (those
contracted below 18, those polygamous and
bigamous, those contracted through mistake in
identity and those void under Article 53), 36
(Psychological incapacity), 37 (Incestuous Marriages)
and 38 (Marriages void by reason of public policy).
Laws on legal capacity to marry are binding to
Filipinos in all countries.
While the forms of entering into the contract of
marriage are to be regulated by the law where it is
celebrated, the essentials of the contract depend
upon the law of the domicile for the parties.
o

FC Article 26 vs. CC Article 15

Article 26 corrects the riduculous situation wherein a
Filipino who married a foreigner remains married
inspite of a divorce decree issued in a different
country.
Article 26 is more restrictive in that it requires that
the divorce be secured by the foreign spouse and
that Filipinos naturalized as citizens of other
countries are exmept from the application of the law.

Van Dorn vs. Romillo

Facts: Petitioner Alicia Reyes Van Dorn is a citizen
of the Philippines while private respondent
Richard Upton is a citizen of the US. The couple
was married in Hong Kong and had two children.
They lived together in the Philippines until their
divorce in 1982. They were divorced in Nevada.
After the divorce, petitioner married Theodore
Van Dorn.
Private respondent filed a suit
claiming that the Galleon shop, petitioners
business is conjugal property. Petitioners motion
to dismiss was not granted by respondent judge,
Hon. Manuel V. Romillo Jr. According to petitioner,
respondent is estopped from claiming the alleged
conjugal property because of the representation
he made in the divorce proceedings that they had
no community of property.
Held: There is no question as to the validity of
that Nevada divorce or divorce in any state in the
United States. The decree is binding on private
respondent as an American Citizen. Aliens may
obtain divorces abroad, which may be recognized
in the Philippines provided that they are valid
according to their national law. As such,
respondent is no longer the legal husband of
herein petitioner.

Llorente vs. Court of Appeals

Facts: Lorenzo Llorente was an enlisted
serviceman of the US Navy from 1927 to 1957. In
1937, he and Paula were married. Before the war,
Lorenzo Llorente went to the United States
leaving Paula in the Philippines. In 1943, Lorenzo
acquired US Citizenship. Upon his return after the
war, he discovered that his wife was pregnant
and was cohabiting with his brother Ceferino. She
later gave birth to a son by the adulterous
relation. Lorenzo refused to forgive Paula and the
couple drew an agreement which stated that
family allowances would be suspended, marital
union will be dissolved and a separate agreement
on the conjugal property was to be made. The
agreement was duly signed and notarized. In
1951, Lorenzo filed for a divorce and which was
decreed one year later. Upon his return he
married Alicia who had no knowledge of his prior
marriage. In 1981, a will was executed to the
effect that all his property will be given to Alicia
and his kids by her. In 1983, Lorenzo petitioned
for Alicia to be the administrator of their conjugal
property which was denied as he was still alive.
Lorenzo died on June 1985 and a few months
after his death, Paula filed a petition for letters of
administration as the surviving spouse of
Lorenzo. The lower court held that Lorenzos
marriage with Alicia was void and that Paula
should get 1/3 of the properties.

Quita vs. CA and Dandan

Facts: Fe Quita married Arturo Padian in the
Philippines in 1941. The couple agreed to live
separately until 1950 when petitioner sued Arturo
for divorce. After the decree of divorce Fe
married a certain Felix Tupaz whom she divorced
and then a certain Wernimont. Arturo died in
1972 without a will. Lino Javier Inciong filed a

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Held: Divorce obtained in a foreign country is
recognized in this jurisdiction. Lorenzo was no
longer a Filipino Citizen when he obtained
divorce.

Idris Yasin contracted another marriage and as

sch, petitioner asked that she be allowed to
resume use of her maiden name and surname,
Hatima Centi y Saul. The Sharia court stated that
she did not file the petition in sufficient form and
substance provided for in Rule 103 of the Rules of
Court.
Petitioner
filed
a
motion
for
reconsideration stating that the petition she filed
is not covered by the rules of court but is merely
a petition to resume the use of her maiden name
and surname after the dissolution of her marriage
by divorce.
Held: The true and real name of a person is that
given to him and entered into the civil register.
While it is true that under Article 376 of the Civil
Code, no person can change his name or
surname without judicial authority, nonetheless,
the only name that may be changed is the true
and official name. Petitioner is not seeking to
change her registered name but for her to be
allowed to resume the use of it. The procedures
for change of name under the Rules of Court shall
not be applied to judicial confirmation of the right
of a divorced woman to resume her maiden name
and surname.

Garcia a.k.a. Recio vs. Recio

Facts: Rederick Recio, a Filipino, was married to
an Australian, Editha Samson, in Malabon on
1987. The couple lived together as husband and
wife in Australia but on 1989 they divorced. In
1992, Recio became an Australian citizen. He
married Grace Garcia two years later and in their
marriage license, he declared that he was a
Filipino. A year after their marriage, Garcia and
Recio started living separately and their assets
were divided in 1996. Grace filed a petition for
nullity on the ground of bigamy alleging that she
learned of Recios prior marriage to Samson only
in November of 1997. Recio argued that he
revealed his prior marriage in 1993. In 1998, a
divorce from Garcia was secured as such,
respondent moved to dismiss petition of Garcia
on the ground that there was no longer a cause
of action.
Held: The Case was remanded to the trial court
for the purpose of obtaining evidence to show
respondents legal capacity to marry. The best
evidence of divorce is the decision itself as
authenticated by the consular officer. Proof of the
existence of provision on divorce and the alleged
divorce decree are likewise necessary to show
capacity to remarry. It was found that no decree
of absolute divorce has been given but divorce in
the sense of legal separation.
- There is no judicial cognizance of foreign laws
there is therefore an additional requirement now,
to show the effects of the divorce decree.

Code of Muslim Personal Laws

Art. 46. Divorce by talaq. (1) A divorce by talaq may be
effected by the husband in a single repudiation of his wife
during her non-menstrual period (tuhr) within which he has
totally abstained from carnal relation with her. Any number of
repudiation made during one tuhr shall constitute only one
repudiation and shall become irrevocable after the expiration
of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or
second time, shall have the right to take her back (ruju)
within the prescribed 'idda by resumption of cohabitation
without need of a new contract of marriage. Should he fail to
do so, the repudiation shall become irrevocable (Talaq bain
sugra).

Intrinsic vs. Extrinsic

- In intrinsic there is absence of the
essential requisites (Article 15 applies).
- In extrinsic, lex law psy celebrationis or
valid in the country, valid everywhere.
- Extrinsic pertains to the formalities or
formal requisites which ay be dictated by
the country decreeing the divorce (Article
26 applies).
- The same is true for rules of succession.

Art. 47. Divorce by Ila. Where a husband makes a vow to

abstain from any carnal relations (ila) with his wife and keeps
such ila for a period of not less than four months, she may be
granted a decree of divorce by the court after due notice and
hearing.
Art.
48. Divorce by zihar. Where the husband has
injuriously assimilated (zihar) his wife to any of his relatives
within the prohibited degrees of marriage, they shall mutually
refrain from having carnal relation until he shall have
performed the prescribed expiation. The wife may ask the
court to require her husband to perform the expiation or to
pronounce the a regular talaq should he fail or refuse to do
so, without prejudice to her right of seeking other appropriate
remedies.

Muslim Divorces
Yasin vs. Sharia District Court
Facts: Hatima Yasin, a Muslim Filipino of legal
age, was married to Hadji Idris Yasin until their
divorce in May 13, 1984. After their divorce, Hadji

Art. 49. Divorce by li'an. Where the husband accuses his

wife in court of adultery, a decree of perpetual divorce may
be granted by the court after due hearing and after the

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parties shall have
imprecation (li'an).

performed

the

prescribed

acts

of

(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;

Art. 50. Divorce by khul'. The wife may, after having

offered to return or renounce her dower or to pay any other
lawful consideration for her release (khul') from the marriage
bond, petition the court for divorce. The court shall, in
meritorious cases and after fixing the consideration, issue the
corresponding decree.

(b) The spouses shall lose their mutual rights of inheritance;

(c) The custody of children shall be determined in accordance
with Article 78 of this code;
(d)The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been affected after the
consummation of the marriage, or one-half thereof if effected
before its consummation; .chan robles virtual law library

Art. 51. Divorce by tafwid. If the husband has delegated

(tafwid) to the wife the right to effect a talaq at the time of
the celebration of the marriage or thereafter, she may
repudiate the marriage and the repudiation would have the
same effect as if it were pronounced by the husband himself.

(e) The husband shall not be discharged from his obligation to

give support in accordance with Article 67; and

Art. 52. Divorce by faskh. The court may, upon petition of

the wife, decree a divorce by faskh on any of the following
grounds :

(f) The conjugal partnership, if stipulated in the marriage

settlements, shall be dissolved and liquidated.
Art. 55.Effects of other kinds of divorce. The provisions of
the article immediately preceding shall apply to the
dissolution, of marriage by ila, zihar, li'an and khul', subject
to the effects of compliance with the requirements of the
Islamic law relative to such divorces.

(a) Neglect or failure of the husband to provide support for

the family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing
him to imprisonment for at least one year; .chan robles
virtual law library

Section 2. 'Idda.

(c) Failure of the husband to perform for six months without

reasonable cause his marital obligation in accordance with
this code;

Art. 56. 'Idda defined. 'Idda is the period of waiting

prescribed for a woman whose marriage has been dissolved
by death or by divorce the completion of which shall enable
her to contract a new marriage.

(d) Impotency of the husband;

Art. 57. Period. (1) Every wife shall be obliged to observe

'idda as follows:

(e) Insanity or affliction of the husband with an incurable

disease which would make the continuance of the marriage
relationship injurious to the family;

(a) In case of dissolution of marriage by death, four months

and ten days counted from the death of her husband;

(f)Unusual cruelty of the husband as defined under the next

succeeding article; or

(b) In case of termination of marriage by divorce, for three

monthly courses; or

(g) Any other cause recognized under Muslim law for the
dissolution of marriage by faskh either at the instance of the
wife or the proper wali..chan robles virtual law library

(c) In case of a pregnant women, for a period extending until

her delivery.

Art. 53. Faskh on the ground of unusual cruelty. A decree

offaskh on the ground of unusual cruelty may be granted by
the court upon petition of the wife if the husband:

(2) Should the husband die while the wife is observing 'idda
for divorce, another 'idda for death shall be observed in
accordance with paragraph 1(a).
.chan robles virtual law library

(a) Habitually assaults her or makes her life miserable by

cruel conduct even if this does not result in physical injury;

FC Article 100: The separation in fact between husband and

wife shall not affect the regime of absolute community except
that:
1. The spouse who leaves the conjugal home or refuses
to live therein, without just cause, shall not have the
right to be supported;
2. When the consent of one spouse to any transaction
of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
3. In the absence of sufficient community property, the
separate property of both spouses shall be solidarily
liable for the support of the family. The spouse
present shall, upon proper petition in a summary
proceeding, be given judicial authority to administer
or encumber any specific separate property of the
other spouse and use the fruits of proceeds thereof
to satisfy the latters share.

(b) Associates with persons of ill-repute or leads an infamous

life or attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or
prevents her from exercising her legal rights over it;
(d) Obstructs her in the observance of her religious practices;
or
(e) Does not treat her justly and equitably as enjoined by
Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. A talaq or
faskh, as soon as it becomes irrevocable, shall have the
following effects:

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and herein petitioner were married in December

1986. Their marriage produced one child born in
July 1992. Petitioner began working in the US on
October 1988 and became a resident alien in
1992. She was able to construct a house in
Mandaue using her earnings. Respondent stayed
with her in the US twice while she was pregnant
and when she gave birth to Rey Perez II. Unlike
his wife, he had only a tourist visa and was
unemployed in the US. The family went back to
Cebu in 1993 but after a few weeks, Nerissa went
back to the US because the husband preferred to
stay behind to take care of his sick mother.
Nerissa filed a petition for a writ of habeas corpus
asking respondent Rey Perez to surrender
custody of their son to her. Lower court granted
the custody to the mother based on Article 213 of
the Family Code. CA reversed the decision and
granted the custody to the father instead.
Held: Article 213 of the FC provides that in case
of separation of parents, no child under 7 years of
age shall be separated from the mother unless
Since the code did not qualify the word
separation to mean legal separation couples
separated in fact are still covered by its terms.
The provision likewise mandates that the child
under seven years of age shall be in the custody
of the mother absent any showing that the
mother is unfit to care for the child. In the case
herein, the Petitioner alleged that the mother will
not be able to take care of the child as she works
as a nurse. The Court however held that such a
supposition is unfounded especially as there are
means by which the mother could take care of
the child despite the demands of her profession.

Separation of fact refers to the actual definite

separation of the persons of husband and wife,
thereby terminating cohabitation or common life
under the same roof without judicial order. There is
no separation of fact if business affairs only require
that they occupy separate residences but their
relations continue to be intimate and friendly.
The spouse who leaves the conjugal home without
justification loses the right to be supported by the
other spouse but his obligation to support the latter
is not extinguished.
Judicial authorization is necessary when the consent
of one spouse is necessary for a transaction but
cannot be obtained.

FC Article 127: The separation in fact between the husband

and wife shall not affect the regime of conjugal partnership,
except that:
1. The spouse who leaves the conjugal home or refuses
to live therein, without just cause, shall not have the
right to be supported;
2. When the consent of one spouse to any transaction
of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
3. In the absence of sufficient conjugal partnership
property, the separate property of both spouses shall
be solidarily liable for the support of the family. The
spouse present shall upon petition in summary
proceeding, be given judicial authority to administer
or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof
to satisfy the latters share.
FC Article 239: When a husband and wife are separated in
fact, or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the consent of
the other spouse is required by law but such consent is
withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts. The petition shall
attach the proposed deed, if any, embodying the transaction
and, if none, shall describe in detail the said transaction and
state the reason why the required consent thereto cannot be
secured. In any case, the final deed duly executed by the
parties shall be submitted and approved by the court.
FC Article 242: Upon the filing of the petition, the court shall
notify the other spouse, whose consent to the transaction is
required, of said petition, ordering said spouse to show cause
why the petition should not be granted, on or before the date
set in said notice for the initial conference. The notice shall be
accompanied by a copy of the petition and shall be served at
the last known address of the spouse concerned.
FC Article 246: If the petition is not resolved at the initial
conference, said petition shall be decided in a summary
hearing on the basis of affidavits, documentary evidence or
oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses to
be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses.
FC Article 247: The judgment of the court shall be
immediately final and executory.

Perez vs. Court of Appeals

Facts: Rey Perez, a doctor of medicine practicing
in Cebu and his wife, Nerissa a registered nurse

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