PERSONS AND FAMILY RELATIONS - CONSOLIDATED (Session 8

to 12)
Procedure in Cases for Declaration of Nullity or Annulment
(Session 8 Procedure)
A. TRIAL AND EVIDENCE- ART. 48
1. The court shall order the prosecuting attorney to appear on behalf
of the Statea. To prevent collusion between the parties and
b. To take care that evidence is not fabricated or suppressed
Notes: A.M. No. 00-11-01-SC governs procedure in annulment and
declaration of nullity cases
Full-blown hearing is required; summary proceedings or default
judgment are not allowed.
Fiscal must be present and actively participate in the hearing except
if the annulment or declaration is strongly opposed
Collusion occurs where, for purposes of getting an annulment or nullity
decree, the parties come up with an agreement making it appear that
the marriage is defective due to the existence of any of the grounds for
annulment or nullity this renders the petition dismissible
What is not evidence of collusion:
1. Failure to file an answer
2. Failure to answer in connection with an agreement that the
respondent shall withdraw his opposition or not defend the evidence
can be evidence of collusion (but is not THE evidence of collusion)
3. An agreement to file an annulment or nullity case
4. Guilty party confesses to the offense
5. Defendant desires divorce and makes no defense
Stipulation of facts or confession of judgment if sufficiently supported
by other independent substantial evidence may warrant an annulment
of marriage or declaration of nullity.

Cardenas v. Cardenas and Rinen stipulation of facts (regarding the

two marriages) and the marriage contracts judgment based on
stipulation of facts is valid bec possibility of collusion is remote with 2
conflicting interests of the 2 wives; plus the 2 marriage certificates are
not stipulation of facts but rather evidence
B. SUPPORT PENDENTE LITE ART. 49, FC
During the pendency of the action and in the absence of adequate
written agreement between the spouses, the court shall provide for:
1. Support of the spouses; and
2. Custody and support of their common children

The court shall give paramount consideration to the material and

moral welfare of the children and their choice of parent with
whom they wish to remain.
b. Children below 7 years old shall not be separated from their
mother, unless the court finds compelling reasons to order
otherwise. (Art. 213, FC)
c. The appropriate visitation rights of the other parent.

Notes: support pendente lite and custody pendente lite can be

ordered; agreement can be disregarded
In nullity cases where support pendente lite is given and which where
eventually granted, the court shall order the recipient to return to the
giver of support the amounts already paid with legal interest from date
of actual payment (Sec. 7, Rule 61)
But in annulment cases- reimbursement does not apply
VISITATION RIGHTS - granted to the non-custodial parent

Silva v. CA- even if a parent has been legally deprived of visitorial

rights, this can be reinstated if it can be shown that the grounds
for deprivation have become too harsh or are not present
anymore.

Silva vs. CA- allegations against the character of petitioner

(father) even assuming as true, cannot be taken as sufficient
basis to render him an unfit father. The fears expressed by
respondent to the effect that petr shall be able to corrupt and

degrade children is but the product of respondents unfounded

imagination.

FINAL JUDGMENT Art. 50, FC

The final judgment shall provide for: (a) the liquidation, partition
and distribution of the properties of the spouses, (b) 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

of property or the conjugal partnership shall be notified of the
proceedings for liquidation.
3. The judgment, the partition and distribution of the properties,
and the delivery of the childrens presumptive legitimes shall be
recorded in the appropriate civil registry and registries of
property. (Art. 52, FC)
-in the partition of the conjugal dwelling and lot, article 102(6)
(on the absolute community of property regime) and 129(9) (on
the conj partnership of gains regime) shall apply
Unless otherwise agreed, the conjugal lot and dwelling shall be
adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below 7 yrs are
deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no
Majority, the court shall decide taking into consideration the best
interest of the children.
-If not recorded, the same shall not affect third persons. Noncompliance will also render a subsequent marriage by the former
spouse null and void (Art. 53, FC)

APPLICABLE CASES:
(1) VOID SUBSEQUENT MARRIAGES that occur as a result of nonobservance of Article 40 (final judgment declaring prior marriage void)

although void, the property shall be liquidated as if there is a conjugal

part of gains or an abs community of property
In all other cases of VOID MARRIAGE the property regime shall
be governed by the rule on co-ownership provided for in Articles 147
and 148 and shall be liquidated pursuant to the ordinary rules on coownership pursuant to the Civil Code (Dino vs. Dino); Articles 35, 36,
37, 38, and 4
Hence, in Void Marriages other than void subsequent marriage (ex.
Psych incapacity), Arts. 50 and 51 do not apply.
(2) voidable or annullable marriage under Art. 45
In other cases of a void marriage (not void subsequent
marriage), rule on co-ownership applies; dwelling shall be coowned equally in the absence of evidence that it is exclusive
property of one party. In case of liquidation, it can be sold and
proceeds divided equally or if exclusive, it shall be awarded to
such party.
No need to liquidate in the same proceedings for declaration of
nullity (Dino v. Dino)
ENTRY OF JUDGMENT AND DECREE OF NULLITY OF ANNULMENT Entry
of judgment is issued 15 days after decision unless there is a motion
for reconsideration;
Register Entry of Judgment in the lcr and, in subsequent void marriage,
register also approved partition and distribution of properties in the
proper registry of deeds, and delivery of presumptive legitime
Decree of Nullity or Annulment follows
ART. 51- PARTITION/DELIVERY OF PRESUMPTIVE LEGITIME
Presumptive Legitime legitime is that part of the testators property
which he cannot dispose of because the law has reserved it for certain
heirs who are, therefore, called compulsory heirs.
The JUDGMENT of annulment or nullity of marriage shall also provide
that the presumptive legitime of the common children shall be
delivered to the same in cash, property or sound securities, unless
there is a judicially approved agreement

Delivery of presumptive legitime applies to subsequent void marriages

(Art 40) and voidable marriages (Art 45)
Liquidation and partition of properties- if there is a pre-nuptial
agreement providing that separation of property regime governed the
marriage, then there is no need for liquidation and partition; in
Maquilan v. Maquilan, Gr No. 155409, June 8, 2007- partial voluntary
separation of property via a compromise agreement duly approved by
the court prior to judicial declaration of nullity of marriage is valid.
ART. 52-RECORDING
Recording in the civil registry and registry of property of the judgment
of annulment or of absolute nullity, partition and distribution, delivery
of presumptive legitimes of common marriage necessary to bind third
persons; non-compliance renders the subsequent marriage void and
shall be a cause for the non-issuance of a decree
Appropriate civil registry- where the court that issued the decision is
functioning and where the marriage was solemnized
STATUS OF CHILDREN- General Rule: children conceived or born
outside a valid marriage are illegitimate
Exceptions: The following are legitimate

Conceived or born before finality of judgment of annulment

B. conceived or born before finality of judgment of absolute
nullity of marriage under Article 36
C. conceived or born of subsequent marriage under Art. 53 (void
for failure to comply with requirements)
D.
Children of a marriage under Articles 41-42 (i.e., a
subsequent marriage after the spouse in a previous marriage is
declared presumptively dead) who were conceived before its
termination by the reappearance of the presumptively dead
spouse (Art. 43, par. 1)

APPLICABLE CASES OF ARTICLES 50 TO 52

1. Subsequent void marriages under Article 40

2. Article 45 voidable or annullable marriages

ALL OTHER CASES OF NULLITY: Rule on co-ownership will apply
in the division of properties acquired during the cohabitation;
liquidation, partition and distribution and need not be
adjudicated in same proceedings.
Delivery of presumptive
legitime, custody and support need not be adjudicated in the
same proceedings
LEGAL SEPARATION Session 9
DIVORCE, in general: Divorce means the legal dissolution of a lawful
union for a cause arising after marriage.
Two types:
1. Absolute Divorce terminates the marriage
2. Limited or Relative Divorce- merely suspends the marriage
and leaves the bond in full force.
Legal separation under Ph law falls under the second category.
CONCEPT OF LEGAL SEPARATION:
Legal separation is the suspension of the common marital life, both as
to person and property, by judicial decree, on any of the grounds
recognized by law
Distinguished from Separation of Property

Legal separation affects both person and property, while

separation of property affects property relations only.
B. Legal separation cannot be decreed based on the agreement
of the parties (Art. 60), while separation of property may be
effected by agreement of the parties, subject to judicial approval.
(Art. 134.)

Distinguished from Separation de facto

A. Legal Separation is decreed by court, while sep de facto is
actual separation without any court decree.

Legal separation dissolves the property relations and removes

the guilty partys capacity to inherit from the innocent party. Sep
de facto has no effect on property relations and capacity to
succeed

Distinguished from Annulment of Marriage

In legal separation, the marriage is not defective as the grounds

arise only after the marriage. In annulment, the marriage is
defective from inception, as the grounds existed prior to or at the
time of marriage.
B.
The parties may not remarry after a decree of legal
separation, unlike in annulment of marriage, where they can
remarry.

RECOGNITION OF DIVORCE

Divorce between Filipinos, even if obtained abroad, is not

recognized in the Philippines. Philippine personal laws govern
Filipinos, even those abroad (Art. 15, CC)
2. Divorce between aliens, obtained abroad, may be recognized
in the Philippines, provided it is consistent with their respective
national laws.
3. Divorce between an alien and a Filipino, obtained abroad by
the alien spouse, may be recognized in the Ph under Art. 26.
a. Thus, if the alien spouse is capacitated to remarry under
the said divorce, the Fil spouse is likewise capacitated to
remarry.
b. While Ph courts may recognize the foreign divorce in this
situation, the legal effects thereof, e.g., on custody, care
and support of children, must still be determined by Ph
courts. (Roehr v. Rodriguez, 404 SCRA 495 (2003)

GROUNDS FOR LEGAL SEPARATION

A. Time: The grounds for legal separation must have arisen or existed
after the marriage (unlike grounds for annulment of marriage)
B. Grounds: (Art. 55, FC)
1. Repeated physical violence or grossly abusive conduct
directed against the pet, a common child, or a child of the petitioner;
a. The physical violence must be repeated
b. Grossly abusive conduct may include maltreatment and
hurling insults and invectives. (Ong Eng Kiam v. Ong, GR No.
153206, Oct. 23, 2006);
need not be repeated; no exact
definition and determined on a case to case basis
2. Physical violence or moral pressure to compel the pet to change
religious or political affiliation
a. The violence or pressure need not be repeated; a single
incident is enough.
b. There must be coercion (physical or moral) by the resp
against the petr
3. Attempt of resp to corrupt or induce the petr, a common child, or a
child of the petr, to engage in prostitution, or connivance in such
corruption or inducement
4. Final judgment sentencing the respondent to imprisonment of
more than 6 years, even if pardoned;
A. The nature of the crime is not material, but since the
penalty should be imprisonment for more than 6 years, it is
relatively serious and non-probationable.
B. A subsequent executive pardon is not material
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
- if the drug addiction, habitual alcoholism, lesbianism or
homosexuality was existing at the time of marriage and was
concealed, it may amount to fraud which is a ground for
annulment of marriage
7. Contracting by the respondent of a subsequent bigamous marriage,
whether in the Ph or abroad- bigamy is the act of illegally contracting
a second marriage despite full knowledge that the first marriage is still
validly existing or without obtaining the needed judicial declaration of

presumptive death of the first spouse who was absent for 4 or 2

consecutive years pursuant to Art. 41, FC
8. Sexual infidelity or perversion
Sexual infidelity is sexual intercourse by a married person with
another person who is not his or her spouse; single act of sexual
intercourse is enough; short of adultery and concubinage
9. Attempt by the resp against the life of the petr
a. there must be an intent to kill, i.e., either attempted or
frustrated homicide, although prior conviction is not necessary
b. The attempt must be wrongful. If it is legally justifiable (i.e.,
in self defense or defense of a child, or if made by a person who
has caught his or her spouse having sexual intercourse with
another person), then it cannot be considered ground for legal
separation.
10. Abandonment of petr by resp without justifiable cause for more
than one year.
a. Abandonment is leaving the conjugal dwelling without intent
to return. (Art. 101, FC)
It must be abandonment without justifiable cause.
Physical separation alone is not abandonment; neither neglects
the management of conj partnership nor ceases to give support
to spouse is not abandonment
DEFENSES ART. 56

1.
2.
3.
4.

CONDONATION
CONSENT
CONNIVANCE
RECRIMINATION

1.
CONDONATION is the act of forgiving the offense after its
commission; implies a condition of future good behavior by the
offending spouse
-failure to look for adulterous wife is not consent or condonation
-it may be express or implied e.g. giving money
2. CONSENT when either of the spouses agreed to or did not object,
despite full knowledge, to the act giving rise to a ground for legal
separation

- agreement to live separately and that they will not object to the
others act of sexual infidelity, adultery or concubinage void but
expression of clear consent to the commission of sexual infidelity.
- consent may be deduced from the acts of the spouses
3. CONNIVANCE denotes direction, influence, personal exertion, or
other action with knowledge and belief that such action would produce
certain results and which results are produced.
4. RECRIMINATION OR EQUAL GUILT reason for the rule: equitable
maxim that he who comes into equity must come with clean hands; in
pari delicto

Ong vs. Ong

5. COLLUSION collusion and connivance are closely realted; collusion

is a corrupt agreement, while connivance is a corrupt consenting
6. PRESCRIPTION An action for legal separation must be filed within 5
years from the occurrence of the cause. --- not discovery
PROCEDURAL MATTERS
A. PRESCRIPTION within 5 years from occurrence of the cause
- in case of repeated sexual intercourse, counted from last act of
sexual intercourse
B. COOLING OFF PERIOD: the action cannot be tried before 6
months shall have elapsed since the filing of the petition. Purpose is to
encourage reconciliation
- six month cooling off period requirement can be dispensed with
if the ground involves violence against women or the child Sec.
19, RA 9262
- PACETE V. CARRIAGA, 231 SCRA 321
C. EFFORTS TOWARDS RECONCILIATION: court must take steps toward
reconciliation and is fully satisfied that reconciliation is highly
improbable
D. EVIDENCE no decree of ls shall be based upon a stipulation of
facts or a confession of judgment; court shall order prosec to take

steps to prevent collusion and to take care that the evidence is not
fabricated or suppressed
MANAGEMENT OF PROPERTIES DURING SUIT while case (decree of ls
was granted) was on appeal, wife filed a motion for issuance of prel inj
to stop the husband from interfering with her management of the
conjugal properties; h also filed motion to prevent wife from renewing
lease contracts; CA granted wifes motion-SC held: Art. 61 after filing of the petition, court shall appoint an
administrator if there is no agreement; in this case there was no
formal designation or appointment but such designation was implicit in
the decision of the tc; wife was administering the properties for almost
19 years
Death terminates legal separation case- this is a personal action.
EFFECTS OF LEGAL SEPARATION
-when the decree itself is issued, the finality of the separation is
complete after the lapse of the period to appeal even if the effects,
such as the liquidation of the property, have not yet been commenced
nor terminated.
1. Marriage bond maintained- can legally live apart, a spouse can still
be held criminally liable for bigamy, concubinage or adultery
2. Liquidation of property- offending spouse shall have no right to any
share of the net profits earned by the abs comm or conj part which
shall be forfeited in favor of the common children or, if none, ch of the
guilty spouse by a previous marriage or, in default of children, the
innocent spouse
3. CUSTODY of minor children innocent spouse; court shall take into
account all relevant considerations, esp the choice of the child over 7
y.o. unless the parent chosen is unfit (art. 213)
4. SUCCESSION the offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession; in
testamentary succession- revoked if the will was made before decree
of ls; if after decree, offending spouse may inherit
5. SUPPORT obligation of mutual support ceases; however, the court
may order the guilty spouse to give support to the innocent spouse
(Art. 198, FC)

6. DONATIONS AND INSURANCEspouse- revoked

donations in favor of offending

A. Donations he or she made in favor of the offending spouse

1. file an action to revoke the donation within 5 years from
the time the decree of ls becomes final
2. revocation shall be recorded in the registries of property
3. alienations, liens and encumbrances registered in gf
before the recording of the complaint shall be respected
B. Designation of the offending spouse as beneficiary in any insurance
police, even if such designation be stipulated as irrevocable.-shall take
effect upon written notification thereof to the insured; no prescriptive
period
RECONCILIATION
Reconciliation is the agreement by the spouses to live together again
and resume conjugal life.
How effected. If the spouses reconcile, a JOINT MANIFESTATION OF
RECONCILIATION UNDER OATH duly signed by the spouses shall be
filed with the court in the same proceedings for ls. Court approval is
not required.
Effects of Reconciliation (Art. 66, FC)
1. if ls proceedings are pending, it shall be terminated
2. final decree of ls shall be set aside.
- but the separation of property and any forfeiture of the share
already effected shall subsist
Exception: if the spouses agree to revive their former property
regime
i. Agreement to revive the former property regime shall be
under oath and shall specify the properties to be contributed to
the restored regime and those to be retained as separate
property; the names of all known creditors, their addresses and
amounts owing to each
Ii. Agreement of revival and the motion for its approval shall be
filed in same court with notice to the creditors named therein

Iii. After due hearing, the court shall in its order, take measures
to protect the interest of the creditors and such order shall be
recorded in the proper registries of properties
It shall not prejudice creditors who are not listed or notified
3. court order terminating the proceedings or setting aside the decree
of ls shall be recorded in the proper civil registries
A new action for ls may be filed if a NEW GROUND arises. It cannot be
based on a ground already pardoned.
MARITAL RIGHTS AND OBLIGATIONS Session 10
I. BASIC OBLIGATIONS
The husband and wife are obliged to: (Art. 68, FC)
A. LIVE TOGETHER
1. The H and W shall fix the family domicile.
disagreement, the court shall decide. (Art. 69)

In case of

2. 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. (Art. 69)
- However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Art. 69, FC)
3. A wife may justifiably refuse to live with her husband and sue
for separate maintenance if he maltreats her and cohabitation
becomes unbearable. (Goitia v. Campos Rueda, 35 Phil. 252
[1916])
4. Courts cannot force a person to live or cohabit with his
spouse, as cohabitation is a purely personal obligation. However,
they may impose material sanctions on such persons, such as
holding him or her liable for support and damages. (Arroyo v.
Vasquez de Arroyo, 42 Ph 54 [1921])

Also, abandonment without justifiable cause for more than one

year is a ground for legal separation.
5. It is possible for a husband to be held criminally liable for
raping his own wife. (Art. 266-C, RPC) In such a case, the
subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty.
B. OBSERVE MUTUAL LOVE, RESPECT AND FIDELITY
C. RENDER MUTUAL HELP AND SUPPORT
1. THE SPOUSES ARE JOINTLY RESPONSIBLE FOR THE SUPPORT
OF THE FAMILY. (ART. 70)
2. LIKEWISE, THE SPOUSES ARE JOINTLY RESPONSIBLE FOR THE
MANAGEMENT OF THE HOUSEHOLD. (ART. 71)
3. THE EXPENSES FOR SUCH SUPPORT AND OTHER CONJUGAL
OBLIGATIONS (INCLUDING HOUSEHOLD EXPENSES) SHALL BE
PAIDa. From the community property,
b. In the absence of community property, from the income or
fruits of the separate properties of the spouses;
c. If there is no sufficient income or fruits, from the separate
properties. (Art. 70, 71)
II. EXERCISE OF PROFESSION
A.
RIGHT TO PRACTICE:
Either spouse may exercise any
legitimate profession, occupation, business or activity without
the consent of the other. (Art. 73)
- the other spouse may object only on valid, serious, and moral
grounds. (Art. 73)
B. DISAGREEMENT: In case of disagreement, the court shall
decide whether or not:
1. The objection is proper, and
2. Benefit has accrued to the family prior to the objection or
thereafter.
A.
If the benefit accrued prior to the objection, the
resulting obligation shall be enforced against the
community property.
B.
If benefit accrued after the objection, the resulting
obligation shall be enforced against the separate property
of the spouse who has not obtained consent.

C. In either case, creditors who acted in good faith shall

not be prejudiced. (Art. 73)
III. REMEDY
A. The aggrieved party may apply to the court for relief when
one of the spouses1. Neglects his or her duties to the conjugal union
2. Commits acts which tend to bring danger, dishonor or
injury to the other or to the family (Art. 72)
B. Relief may consist of admonition or court injunction, on pain
of contempt.
However, injunction and contempt are not
available in case the act involved is purely personal, such as the
duty of cohabitation.
GENERAL PROVISIONS
A.
What governs the property relations:
the property relations
between husband and wife shall be governed in the following order
(Art. 74, FC)
1. By marriage settlements executed BEFORE the marriage;
2. By the provisions of the Family Code; and
3. By the local custom.
B. PROPERTY REGIME: Property regime is the system of property
relations applicable to the spouses. The law allows the future spouses
to select their property regime and, in case they fail to do so, the law
provides for a default or legal property regime.
1. As Agreed Upon in the Marriage Settlements The future
spouses may, in the marriage settlements, agree upon any of the
following regimes: (Art. 75, FC)
a. Absolute community of property (ACP)i. Present and future property are to be owned in
common (with exceptions). (Arts. 91, 92, FC)
Ii. Expenses are borne by the ACP. (Art. 94, FC)
b. Conjugal partnership of gains (CPG)
i. Present property continues to be owned by the
respective spouses. (Art. 109, FC)
Ii.
Future property is separate if acquired
gratuitously; common if acquired by onerous title or
at the communitys expense. (Arts. 109, 117, FC)
Iii. Fruits and earnings are common. (Art. 106, FC)
Iv. Expenses are borne by the CPG. (Art. 121, FC)

c. Complete separation of propertyi. Present and future property is owned by the holder
or acquirer (Art. 145, FC)
Ii.
Fruits are separate property of each owner
spouse. (Art. 145, FC)
Iii.
Expenses are contributed by each spouse
according to stipulation or in proportion to their
respective property or income. (Art. 146, FC)
d. Any other regime. - This may be any variation or
combination of the features of the foregoing regimes.
2. In Default of a Marriage Settlement In the absence of a
marriage settlement, or when the regime areed upon is void, the
system of ACP shall govern. (Art. 75, FC)
- The FC changed the rule under the CC providing for CPG as the
default or legal property regime.
ACP is seen as more
compatible with Filipino custom than the CPG.
C. MARRIAGE SETTLEMENTS
1. Nature.
A marriage settlement, also called ante-nuptial or pre-nuptial
agreement, is a contract entered into by a man and a woman
who intend to get married regulating their property relations
during marriage, including the property regime that will govern
their present and future properties.
2. When executed.
a. General Rule:
In order to be valid, the marriage
settlement, as well as the modifications thereto, must be
made BEFORE the celebration of the marriage (Art. 76 &
77, FC). Once the marriage is celebrated, the property
regime may generally no longer be altered.
b. Exceptions (Art. 76):
i. In cases of legal separation, upon reconciliation of the
spouses, they may agree to revive the former property
regime (Art. 66 & 67, FC); and
Ii. Judicial separation of property, in cases of abandonment
(Art. 128, FC), other grounds (Art. 135, FC), or by joint
petition of the spouses (Art. 136, FC)

Extrajudicial agreement of separation of property

(outside a pre-nuptial agreement) is void. (Quintana vs.
Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15)

3. Form. The marriage settlement (including any modification thereof)

must be: (Art. 77. FC)
a. In writing; and
b. Signed by the parties.
c. To bind third persons, they must be REGISTERED in
the local civil registry where the marriage contract is
recorded as well as in the proper registries of
properties.

Note: The marriage settlement is binding as between the parties

even if it is merely in private writing. However, for it to be
registered (and be binding to third persons), it must be in a
public instrument.

4. Capacity. In general, the parties must have capacity to enter into

contract.
A. Persons 18 to 21 years old- may execute marriage
settlements, but they shall be valid only if the persons
designated in Art. 14 to give consent to the marriage are
also MADE PARTIES to the agreement. (Art. 78, FC)
B. Persons under civil interdiction or any other disabilityhe/she may also execute but they shall be valid only if a
court-appointed guardian is made a party thereto. (Art. 79,
FC)
- The parent/guardian must CONSENT to the settlements (not
merely act as witness). [Mirasol v. Lim, 59 Phil. 701 (1934)]
5. Condition Precedent.
A. Everything stipulated in the settlements or contracts in
consideration of a future marriage (including donations
between prospective spouses made therein), shall be
rendered VOID if the marriage does not take place. (Art.
81, FC)
- However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (Art. 81, FC)
E.g. admission of paternity of illegitimate child.
B. The effectivity of the property regime stipulated in the
marriage settlement cannot be subjected to a suspensive

or resolutory period or condition, because that would entail

a change in the property regime during the marriage.
(Heirs of Ayuste v. CA, GR No. 118784, Sept 2, 1999 (J.
Vitug, concurring)
i. The property regime commences precisely at the time of
celebration of marriage, and any stipulation to the contrary
is void. (Art. 88, 107, FC)
Ii. There can be no change in the property regime after the
marriage is celebrated. (Art. 76, FC)
6. Validity of Stipulations. Like any other contract, the stipulations in
the marriage settlement must not be contrary to law, morals, good
customes, public order, or public policy. (Art. 1306, CC)
A. Examples of Valid Stipulations:
i.
Appointment of one of the spouses as the
administrator of the property.
Ii. Choice of law applicable to the property relations.
(Art. 80, FC)
Iii. Manner of division of the net conjugal or community
assets upon dissolution.
B. Examples of Void Stipulations:
i. Stipulation relieving a sopuse of marital or parental
obligations;
ii. Stipulation for the dissolution of the union;
Iii. Stipulation depriving one spouse of the right to seek
legal separation even when a ground therefor exists;
Iv. Stipulation prohibiting the surviving spouse from
remarrying;
D. CONFLICT OF LAW RULES
1. General Rule.
A.
The parties may stipulate in the marriage
settlement on which law will be applied to their
property relations.
B. In the absence of a contrary stipulation in the
marriage settlement, the property relations of the
spouses shall be governed by Philippine laws,
REGARDLESS of the place of the celebration of the
marriage and their residence. (Art. 80, FC)
2. Exception. The general rule does not apply in the
following cases: (Art. 80, FC)
a. Where both spouses are aliens;

b. With respect to the extrinsic validity of contracts

affecting property not situated in PH and executed in
the country where the property is located;
- The same rule applies on intrinsic validity, as
Real property as well as personal property is
subject to the law of the country where it is
situated. (Art. 16, CC)
c. With respect to the extrinsic validity of contracts
entered into in the Ph but affecting property situated
in a foreign country whose laws require different
formalities for its extrinsic validity.
- This may be considered exception to the lex
loci celebrationis rule:
The forms and
solemnities of contracts shall be governed by
the laws of the country in which they are
executed. (Art. 17, CC)

II. DONATIONS BY REASON OF MARRIAGE

A. NATURE AND REQUISITES- DONATIONS PROPTER NUPTIAS are
donations which are made1. BEFORE the celebration of the marriage,
2. IN CONSIDERATION of the marriage, and
3. in favor of one or both of the future spouses. (Art. 82, FC)
B. GOVERNING LAW: These donations are governed by the rules on
ordinary donations (Title III of Book III [Arts. 725-773] of the Civil Code,
insofar as they are not modified by the Family Code. (Art. 83, FC)
1. thus, the formalities of ordinary donations must be followed.
2. the rules on ACCEPTANCE under Arts. 748 and 749, CC must
be followed.
3. Principal modifications of the general rules of donations:
A.
Donations propter nuptias-if made by the future
spouses to each other, they cannot exceed 1/5 of the
donors present property;
B. Donations propter nuptias- may include future property;
governed by the provisions on testamentary succession
and formalities of wills (Art. 84, FC)
C. Donations Propter Nuptias- the causes for revocation
are as stated in Art. 86, FC, namely: (1) non-celebration or
declaration of nullity of marriage; (ii) lack of parental

consent; (iii) annulment of marriage, with the donee in bad

faith; (iv) legal separation, with the donee as theguilty
party; (v) fulfillment of resolutory condition; and (vi)
ingratitude.
C. EXTENT
1. If made by the future spouse- he or she cannot donate more
than 1/5 of his or her present property. (Art. 84, FC)
- any excess shall be considered VOID. (Art. 84, FC)
2. If the donation propter nuptias is made by a third party-the
donation may comprehend all the present property of the donor
or part thereof, provided that:
A. Donor reserves (in ownership or usufruct) sufficient
property for the support of himself or his relatives entitled
to his support; (Art. 750, CC) and
B. Legitimes are not impaired. (Art. 752, CC)
D. ENCUMBRANCE
1. donations by reason of marriage of property subject to
encumbrances shall be valid. (Art. 85, FC)
2. In case of foreclosure of the encumbrance A. If property is sold for less than the total amount of
the obligation secured, the donee shall not be liable
for the deficiency.
B. If the property is sold for more than the total
amount of said obligation, the donee shall be entitled
to the excess. (Art. 85, FC)
E. REVOCATION
1. Revocation by Donor. Art. 86, FC
A. If the marriage is not celebrated or judicially declared
void ab initio, excepti. Donations made in the marriage settlementsautomatically rendered void if marriage does not
take place (Art. 81);
ii.
If marriage is judicially declared void, and donee is
the guilty spouse while donor is the innocent spouserevoked by operation of law (Art. 50 in rel to Art.
43(3)
B. when the marriage takes place without the consent of
the parents or guardian, as required by law;

C. When the marriage is annulled, and the donee acted in

bad faith;
- if donor is the innocent spouse, donation is revoked by
operation of law. (Art. 50, in rel. to Art. 43[3],FC)
D. Upon legal separation, the donee being the guilty
spouse;
E. if it is with a resolutory condition and the condition is
complied with;
F. When the donee has committed an act of ingratitude as
specified in Art. 765, CC
2. Prescriptive Period for Action for Revocation:
A. Legal separation where the donee is the guilty spousewithin 5 years from the finality of the decree of the legal
separation;
B. If marriage is not celebrated or declared void ab initio10 years if written; 6 years if oral
C. if marriage takes place without the required parental
consent- 4 years
D. If the resolutory condition is not complied with 10
years if written; 6 years if oral
E. If marriage is annulled- 4 years
F. If donee committed an act of ingratitude- 1 year from
donors knowledge of the fact
3. Revocation by Operation of Law: no need for action for revocation
in the ff instances:
A. When a subsequent marriage is contracted by one
whose spouse has been declared dead, if the donee had
contracted the marriage in bad faith. (Art. 43[3], FC)
B. When a marriage is declared void ab initio or annulled
and the donee is the guilty party. (Art. 50, in rel. to Art.
43[3] and 44, FC)
- the first 2 instances apply when the donor is the innocent
spouse.
If the donor is a third party, an action for
revocation would be needed.

C. When the donation is made in the marriage settlement,

and the marriage does not take place. (Art. 81, in rel to
Art. 86[1],FC)
D. If the donation is subject to a suspensive condition and
the condition does not take place.
-

in the foregoing cases, assuming the property is not

returned despite the revocation, the donor may still
have to file an action to recover the property, but the
prescriptive period would be longer. (Arts. 1140 and
1141, CC)

F. DONATION BETWEEN SPOUSES

1. Before the marriage (in the marriage settlements)- the future
spouses cannot donate (inter vivos) to each other in their
marriage settlements more than 1/5 of their present property.
Any excess shall be considered void. (Art. 84, FC)
- the foregoing rule applies if the future spouses agree upon a
regime other than the ACP. In ACP, there is no need for the rule
bec the properties will become jointly owned anyway.
DONATION BETWEEN FUTURE SPOUSES- useless if the property
regime that will govern is ACP. Reason: the spouses become coowners
REQUISITES OF DONATION PROPTER NUPTIAS BETWEEN FUTURE
SPOUSES:
1) there must be valid marriage settlement; 2) the marriage
settlement must stipulate a property regime other than ACP; 3)
the donation contained in the marriage settlement must not be
more than 1/5 of his or her present property; 4) the donation
must be accepted by the would-be spouse; and 5) it must comply
with the requisites established in Title III of Book III of the CC on
donations.
2. During the marriage every donation or grant of gratuitous
advantage (e.g. usufruct or commodatum) direct or indirect,
between the spouses during the marriage shall be VOID. (Art.
87, FC)

A. Exception: Moderate gifts which the spouses may give

each other on the occasion of any family rejoicing (Art. 87,
FC)
Whether the gift is moderate depends on the
circumstances of the party (economic status). The
burden of proving that the gift is immoderate is on
the party assailing the donation.
B. The same prohibition shall also apply to persons living
together as husband and wife without a valid marriage.
(Art. 87, FC)
C. Reasons for the prohibition against spousal donation:
i.
To prevent the weaker spouse from being
influenced by the stronger spouse;
Ii. To protect creditors;
Iii.
To prevent an indirect modification of the
marriage settlement during the marriage, which is
not allowed. (Art. 76, FC)
D. The prohibition covers indirect donation, which would
include a donation by the spouse to his or her stepchild or
of other person of whom the other spouse is presumptive
heir. This would be a circumvention of the prohibition, and
not allowed.
E. The prohibition applies to donations Inter Vivos, and not
to donations mortis causa, which are governed by the rules
on testamentary succession.
F. Who may question validity of donation-the donor or his
heirs, or any person prejudiced by the donation.
G. SALE BETWEEN SPOUSES. For the same reasons that
spouses cannot donate property to each other, they are
also prohibited from selling property to each other. (Art.
1490, CC)
Exceptions:
(1) when a separation of property was agreed upon in the
marriage settlements; or
(2) when there has been a judicial separation of property.
(Art. 1490, CC)

The prohibition also applies to persons living together as H

and W without a valid marriage (common-law relationships)

Ching v. Goyanko, Jr., G.R. No. 165879, Nov. 10, 2006.

PROPERTY REGIMES
I. SYSTEM OF ABSOLUTE COMMUNITY OF PROPERTY (ACP)
A. GENERAL PRINCIPLES
1. Nature. In this regime, the H and W are JOINT OWNERS
of all the properties of the marriage. In general, all
properties owned by the spouses at the time of the
celebration of the marriage or acquired thereafter form a
common mass. After dissolution, this common mass is
divided between the spouses equally or in the proportion
agreed
Upon, irrespective of the value each one may have
originally owned. (Art. 91, FC)
2. ACP is the legal regime under the FC; if parties have no
marriage settlement or if their agreement is void
3. ACP shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied,
for the commencement at any other time shall be void.
(Art. 88, FC)
4. No waiver of rights, shares and effects of the ACP
DURING
the marriage can be made.
This is to protect a spouse from undue influence. (Art. 89)
A. Exception: In case of judicial separation of
property. (Art. 89, FC)
B. Form. The waiver either during the marriage upon
judicial separation of property, or after dissolution or
annulment of the marriage, shall appear in a public
instrument and shall be recorded in the lcr where the
marriage is recorded as well as in the proper
registries of property.

C. Remedy of creditors- petition the court to rescind

the waiver to the extent sufficient to cover the
amount of their credits. (Art. 89, FC; Art. 1052, CC)
5. Rules of Co-ownership. Shall apply in all matters not
provided for by the FC
B. WHAT CONSTITUTES COMMUNITY PROPERTY
1. In General. ALL the property owned by the spouses at the
time of celebration of the marriage (present property) or
acquired thereafter (future property). Art. 91, FC
2. Presumption. Property acquired during the marriage is
presumed to belong to the community, unless it is proved that it
is one of those excluded therefrom. (Art. 93,FC)
C. For this presumption to apply, it must be proven that the
property in question was acquired during the marriage.
- it is not sufficient that the proeprty is registered in the
name of X, married to Y. the clause married to Y is
merely descriptive of Xs civil status at the time the
property was registered in Xs name. Heirs of Jugalbot v.
CA, GR No. 170346, March 12, 2007
B. The presumption is not rebutted by the mere fact that the
deed of sale or certificate of title is in the name of one of the
spouses only. (Art. 116, FC)
C. What constitutes exclusive or reserved property
1. Excluded from the ACP:
A. Property acquired during the marriage by gratuitous
title (gifts or inheritance) by either spouse, and the fruits
and income thereof.
- unless the donor, testator or grantor expressly provides
that they shall form part of the community property. (Art.
92, FC)
B.
Property for personal and exclusive use of either
spouse.
- however, jewelry shall form part of the community
property. (Art. 92, FC)

C. Property acquired before the marriage by either spouse

who has legitimate descendants by a former marriage, and
the fruits and income thereof. (Art. 92, FC)
D. Property excluded by marriage settlements
2. If an exclusive property is later sold or exchanged, the price
or the newly acquired property remains exclusive.
II. CONJUGAL PARTNERSHIP OF GAINS (CPG)
A. General Principles
1. Nature. In CPG, the H and W place in a common fund:
(a) the proceeds, products, fruits and income from their
separate properties; (b) those acquired by either or both
spouses through their efforts; and (c) those acquired by
either or both spouses by chance. Upon dissolution, the
net gains or benefits shall be divided equally between
them, unless otherwise agreed in the marriage settlement.
(Art. 106, FC)
- The spouses are NOT CO-OWNERS of the conjugal assets.
During the existence of the marriage, each of the spouses
has a mere expectancy or inchoate right to the CPG
property, which does not vest or ripen into title until the
dissolution of the CPG and there are assets left after its
liquidation and settlement. Thus, a creditor of the husband
cannot attach or levy on of his joint bank account with
his wife.
2.
When applicable marriage settlement and CPGs
established before the effectivity of the FC
3. DISTINCTION BETWEEN ACP and CPG.
A. ACP- all the properties owned by the spouse at
the time of the marriage become community
property;
CPG- the properties owned by the spouse at the time
of the marriage remain separate property; only fruits
and income become community property
B. ACP- upon dissolution and liquidation of the ACP,
the spouses divide the net remainder of the ACP
properties;

CPG- upon dissolution and liquidation of the CPG, the

spouses divide the NET GAINS of the partnership,
while the separate properties of the spouses are
returned to them respectively.
4.
Commencement- at the precise moment that the
marriage is celebrated. Any stipulation xxx at any other
time shall be VOID.
5. No waiver of rights, shares and effects of the CPG
DURING the marriage can be made. This is to protect a
spouse from undue influence.
A. Exception: in case of judicial separation of property.
B. Form. Waiver (during marriage upon judicial separation
of property or after dissolution or annulment of marriage)
--- in a public instrument--- LCR and proper registries of
property.
C. Remedy of creditors. petition the court to rescind the
waiver --6. Rules of partnership shall govern the CPG in all that is
not in conflict with the FC or the marriage settlement.
The H and W are liable for conjugal obligations with
their separate properties if the conjugal assets are
insufficient. But such liability is SOLIDARY (Art. 121,
FC), unlike in ordinary partnership where such
liability is PRO RATA
B. WHAT CONSTITUTES CONJUGAL PROPERTY
1. CPG PROPERTIES. The following are conjugal propertiesArt. 117, FC
a.
Those acquired by onerous title during the
marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for
only one of the spouses
-property purchased with conjugal funds during
the marriage is considered conjugal property
-property acquired partly with paraphernal
(exclusive funds) of the wife and partly with
conjugal is held to belong to both patrimonies
in common, in proportion to the contributions
of each to the total purchase price.

In loans secured by mortgage on exclusive

property, the proceeds are CONJUGAL if the
debt will be an obligation of the CPG (i.e., with
the consent of both spouses, OR will redound
to the benefit of the family).
b. Those obtained from labor, industry, work or
profession
Examples: salary, honoraria, prof fees,
business income, pensions, retirement pay
However, SSS benefits are not conjugal but
goes to designated beneficiary
C. The fruits (natural, industrial or civil) due or
received from the common property, as well as the
net fruits from the exclusive property

Of each spouse;

In case of fruits from exclusive

property, necessary and indispensable
expenses must be deducted first
therefrom; the remainder or net fruits
go to the CPG.

D. The share of each spouses in the hidden treasure

which law awards to the finder or owner of the
property where the treasure is found;
E.
Those acquired through occupation such as
fishing or hunting
F. Livestock existing upon dissolution of partnership
in excess of the number of each kind brought to the
marriage by either spouse; and
G. Those which are acquired by chance such as
winnings from gambling or betting
-losses are exclusive
2. Presumption. All property acquired during the marriage,
whether acquisition appears to have been made,
contracted or registered in the name of one or both
spouses--- presumed conjugal unless the contrary is
proved. (Art. 116, FC)

- presumption is not rebutted by mere fact that deed

of sale or certificate of title is in the name of one of
the spouses only.

However in case of registered land, a third party who

buys the property in good faith may rely on what
appears on the title. When the property is registered in
the name of only spouse and there is no showing as to
when the property was acquired by same spouse, this
may be an indication that the property belongs
exclusively to the said spouse. (PNB vs. CA, 153 SCRA
435 (1987)

Spouses Go v. Yamane, GR No. 160762, May 3, 2006

Mendoza v. Reyes, 124 SCRA 154 (1983)

C. WHAT CONSTITUTES EXCLUSIVE PROPERTY

1. EXCLUSIVE PROPERTIES (ART. 109, FC)
A. That which is brought to the marriage as his or
her own.
i. If property is mortgaged or encumbered, it
remains exclusive even if the CPG pays off the
mortgage credit. CPG merely has a right of
reimbursement from the owner spouse.
Ii.
Property alienated by spouse before
marriage but reacquired during marriage
because of annulment or rescission of contract
or revocation of donation- EXCLUSIVE
B. That which each spouse acquires during the
marriage
by
gratuitous
title
(donations
or
inheritance);
Moral damages for injured feelings awarded to
a spouse are exclusive;
compensatory or
actual damages (eg for lost earnings) are
conjugal.
C. That which is acquired by right of redemption, by
barter or by exchange with property belonging to
only one of the spouses.
If CPG paid the redemption price, CPGs right is
limited to reimbursement only.

- increases in value of exclusive property- if

increase is due to investment by CPG or through
efforts of the spouse, the increase is CONJUGAL. If
increase is unearned (due to time or general
increase in value of real property), it remains
exclusive.
-If exclusive property is burned or destroyed,
insurance proceeds exclusive
D. That which is purchased with exclusive money of
the wife or husband
2. Sole Disposition and Administration. the spouses
retain the ownership, possession, administration and
enjoyment of their exclusive properties. (Art. 110, FC)
A. A spouse may encumber or dispose of his or
her exclusive property, without the consent of the
other spouse. (Art. 111, FC)
B. A spouse may appear alone in court to litigate
with regard to his or her exclusive property.
3. Transfer of Administration. Either spouse may, during
the marriage, transfer the administration of his or her
exclusive property to the other by means of a public
instrument, recorded in the registry of property of the
place the property is located. (Art. 110,FC)
A. BUT if property is alienated--- proceeds shall be
turned over to the owner-spouse
B. Transfer of administration does not mean that
administrator becomes owner of the property.
D. SPECIAL RULES IN DETERMINING IF PROPERTY IS CONJUGAL
OR EXCLUSIVE
1. Rule on property bought on installments which is paid
partly from exclusive funds of either or both spouses and
partly from conjugal fundsA. Property belongs to the buyer spouse if full
ownership was vested before the marriage;
B. Property belongs to the CPG if such ownership
was vested during the marriage.

Any amount advanced by partnership or by either

spouse shall be reimbursed by the owner upon
liquidation of the partnership

In most cases, installment sales of real property are

contracts to sell, in which title does not vest until full
payment of the purchase price.
If property is bought on installment using only
exclusive funds of buyer spouse, the property is
exclusive, regardless of the date when ownership
vested.

2. Rule on credits and interest. Whenever an amount or

credit payable within a period of time belongs to one of the
spouses A.
Partial payments or installments on the
principal collected during the marriage shall be
exclusive property.
B.
The interests falling due during the
marriage shall belong to the CPG. (Art. 119,
FC)
3. Rule on improvements on separate property. Where
improvements (whether for utility or adornment) are made
on the separate property of one spouse, at the expense of
the partnership or through the efforts of either or both
spouses, the ownership of such improvements pertain A. To the conjugal partnership, when the cost
of improvement and any resulting increase in
value
EXCEED the value at the time of the
improvement.
- subject to reimbursement of the value
of the property of the owner-spouse at
the time of the improvement.
B. To original owner-spouse, when the cost of
improvement and increase in value does not
exceed the value of the property at the time of
the improvement
-likewise subject to reimbursement of the
cost of the improvement
Example:
Land valued at P2 million
belongs to H. CPG constructs a building
valued at P.5 Million, so that the
combined value of the land and the
building equals P3.5 Million. However, as
a result of the improvement, the
improved property (land plus building)

gets valued at P4.5 Million, for an

increasei n value of P1 Million. Now,since
the cost of improvement (P1.5 M) and the
increase in value (P1 M) EXCEED the
value of principal property at the time of
improvement (P2 M)
The land will become the property of the CPG, with
the right of reimbursement for the husband.
III. RULES COMMON TO ACP AND CPG
A. CHARGES AND OBLIGATIONS OF THE ACP/CPG
The obligations may be categorized into primary and
secondary. Primary obligations are those for which the
ACP/CPG is directly liable.
Secondary obligations are
actually personal obligations of either spouse, for which
the ACP/CPG may be held liable only in case the separate
property of the debtor-spouse is insufficient.
1. Primary Obligations. The ACP/CPG shall be liable for the obligations
or expenses listed below. If the ACP/CPG is insufficient, the spouses
shall be solidarily liable for the unpaid balance with their separate
properties. (Arts. 94, 121, FC)
A. Support of the spouses, their common children, and
legitimate children of either spouse.
B. Debts
1. contracted during or vbefore the marriage
insofar as they have redounded to the benefit of
the family; even without consent of the other
spouse to the extent that the family may have
benefited.
C. Expenses for Self-Improvement i. To enable either spouse to commence or
complete a professional or vocational
course,
or
other
activity
for
selfimprovement
Ii. Value of what is donated or promised by
both spouses in favor of their common
legitimate children for the purpose of
commencing or completing a professional ro

vocational course or other activity for selfimprovement.

D.
Incidental expenses- taxes, liens,
charges and expenses, including major or
minor repairs, upon the ACP/CPG property

All taxes and expenses for mere preservation

during the marriage upon the separate property of
either spouse (minor repairs)
Expenses of litigation between the spouses unless
the suit is found to be groundless. (par. 9)

2. Secondary Obligations. The ACP/CPG shall be liable for the ff

separate obligations of a spouse, but subject to the ff qualifications:
i. The ACP/CPG is liable only in case of absence or
insufficiency of the exclusive property of the debtorspouse;
Ii. For CPG to be liable, primary oblig of the CPG must
have been covered before CPG is to be liable for secondary
oblig
Iii. Considered advances to be deducted from the share of
debtor-spouse upon liquidation of ACP/CPG
a. Antenuptial debts without benefit to the family
b. Support of illegitimate children of either spouse;
C. Fines and indemnities
3. Gambling losses shall be borne by the loser and shall not be
charged to the ACP/CPG; but winnings shall form part of the ACP/CPG.

B.
OWNERSHIP,
ADMINISTRATION,
ENJOYMENT
AND
DISPOSITION OF THE ACP/CPG PROPERTY
1. Joint Administration- in case of disagreement, husbands
decision shall prevail, subject to recourse to the court by wife
(within 5 years from date of contract implementing such
decision).
2. Sole administration in Case of Incapacity. In case one spouse is incapacitated or unable to participate in
administration of the ACP/CPG properties
3. Disposition or Encumbrance- requires written consent of the
other spouse or authority of the court if other spouse cannot give

consent; in the absence of such authority or consent, the

disposition or encumbrance shall be void.

Note that the entire transaction is void, and not only as to the
share of the non-consenting spouse. The nullity is based not on
prejudice but on lack of consent of an indispensable party to the
contract- Villanueva v. Chiong, GR No. 159889, June 5, 2008.

Marital consent is required in a lease of an ACP/CPG realty for a

period of more than one year, such a lease being considered a
conveyance and encumbrance. - Roxas v. CA, GR No. 92245,
June 26, 1991.
3.
Donation.
Neither spouse may donate any community
property without the consent of the other.
4. Disposition by Will. either spouse may dispose of his or her
interest in the community property. Consent of the other spouse
is not needed bec the disposition will take effect upon death,
when the ACP will have been dissolved.

C. DISSOLUTION OF ACP/CPG
1. Causes of Termination of the ACP/CPG:
A. Death of either spouse;
B. Decree of legal separation;
C. Annulment or declaration of nullity of the marriage; or
D. Judicial separation of property during the marriage
2. Effect of Separation in Fact Between Spouses: No effect on
the ACP/CPG except the following:
A. Spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported.
But the oblig to give support by the spouse who leaves is
not extinguished.
B. 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.
C.
In the absence of sufficient ACP/CPG, the spouse
present shall, in a summary proceeding, be given judicial
authority to administer or encumber any specific property
of the other spouse and use the fruits or proceeds to
satisfy the latters share in the support of the family.

3. Abandonment or Non-performance of Marital Obligations.

A. Remedy- aggrieved spouse may petition the court for
receivership, judicial separation of property, or authority to
be sole administrator of the ACP/CPG
B.
Obligations refer to marital, parental or property
relations
C. Spouse is deemed to have abandoned the other when
he/she has left the conjugal dwelling without intention of
returning.
The spouse who has left the conj dwelling for a
period of 3 months or has failed within 3 mos to give
information as to his or her whereabouts shall be
prima facie presumed to have no intention of
returning to the conjugal dwelling.
D. LIQUIDATION OF THE ACP/CPG ASSETS AND LIABILITIES
1. Pre-liquidation.-rules on co-ownership apply. Each may
dispose his or her undivided interest or pro indiviso share,
and not to any specific property or part of it. - Metrobank
v. Pascual, GR No. 163744, Feb. 29, 2008.
2. Liquidation Process.- ff procedure shall apply:
A. Inventory - common and exclusive
B. Payment of ACP/CPG debts out of ACP/CPG assets- if
insufficient, spouses are solidarily liable with their
exclusive properties.
C. Division of Net ACP Assets or of Net CPG Profits
i. Division shall be equal, unless
(1) a different proportion was agreed upon in the
marriage settlements,
Or (2) there has been a voluntary waiver of such
share
Ii. Forfeiture of net profits Art. 43(2) and Art. 63(2)

Iii. Delivery of presumptive legitimes to the common

children.
Iv. Conjugal dwelling- adjudicated to the spouse
with whom the majority of the common children
choose to remain.
(1) children below 7 years old mother
(2) court decides if no majority
3. Liquidation After Death of Either Spouse.
A. Through settlement proceedings.

B. Without Settlement Proceedings- surviving spouse

shall liquidate the ACP/CPG either judicially or
extrajudicially within 1 year from the death of the
deceased spouse.
- If no liquidation is made, then(1) any disposition of the community property of the
terminated marriage shall be void
-nullity applies only to the share of the heirs who did
not consent to the transaction- Metrobank v. Pascual
(2) should the surviving spouse contract a
subsequent marriage, a mandatory regime of
complete separation of property shall govern the
property relations of the subsequent marriage.
4. Support.- pending liquidation and until delivery of their
shares, the surviving spouse and children shall receive
support from the common mass of property.
i.
Even children who are already adults, married or
gainfully employed may receive support or allowanceSantero v. CFI, 153 SCRA 728.

JUDICIAL SEPARATION OF PROPERTY Session 11

A. INSTANCES OF SEPARATION OF PROPERTY
Separation of property between spouses DURING the marriage takes
place ONLY by virtue of the following: (Art. 134, FC)
1. By an express declaration in the marriage settlements; or
2. By judicial order, which may be eithera. Voluntary, or by agreement of the spouses
i. This is done by a verified petition filed jointly by the spouses
for the voluntary dissolution of the ACP or CPG and for the
separation of their common properties. (Art. 136, FC)
Ii. All creditors of the ACP and CPG, as well as the personal
creditors of the spouse, shall be notified. (Art. 136, FC)
Iii. Extrajudicial separation of property, or voluntary separation of
property without judicial approval, is void.
Iv. Voluntary separation is not perfected by mere consent, but only
upon approval of the court.

b. For sufficient cause: The following are sufficient causes for judicial
separation of property: (Art. 135, FC)
i. Spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction;
Ii. Spouse of the petitioner has been judicially declared an
absentee;
Iii. Loss of parental authority of the spouse of petitioner who has
been decreed by the court;
Iv. Spouse of the petitioner has abandoned the latter or failed to
comply with his or her marital, parental or property obligations;
V. Spouse granted the power of administration in the marriage
settlements has abused that power; and
Vi. At the time of the petition, the spouses have been SEPARATED IN
FACT for at least 1 year and reconciliation is highly improbable;
Vii. As an incident of a decree of legal separation.
3. By operation of law- a mandatory regime of complete separation of
property shall govern the subsequent marriage of a spouse who
has not liquidated the ACP or CPG of the previous marriage (Art.
103, 130, FC).
B. PROCEDURAL MATTERS
1. During the pendency of the proceedings, the ACP or CPG shall
pay for the support of the spouses and children. (Art. 137,
FC)
2. Once separation of property has been decreed, the ACP or
CPG shall be liquidated in conformity with the Family Code.
(Art. 137, Arts. 92 & 129, FC)
3. After dissolution of the ACP or CPG, the provisions on complete
separation of property shall apply. (Art. 138, FC)
4. The petition for separation of property and the final judgment
granting the same shall be recorded in the proper local civil
registries and registries of property. (Art. 139, FC)
C. EFFECTS OF SEPARATION OF PROPERTY
1. The ACP or CPG is dissolved;
2. Each spouse shall have exclusive ownership and administration of
his or her earnings and the fruits of his or her exclusive properties;
3. The obligation of the spouses to support their children continues,
each spouse contributing according to his income or property.
4. The mutual obligation of the spouses to support each other also

continues; and
5. As to creditors, the separation of property shall not prejudice the
rights previously acquired by them. (Art. 140, FC)
D. REVIVAL.
1. Manner. The spouses may revive their former property regime by
filing a MOTION in the same proceedings where separation of
property was decreed. (Art. 141, FC)
2. Grounds for Revival: (Art. 141, FC)
A. When the civil interdiction terminates;
b. When the absentee spouse reappears;
c. When the court is satisfied that the designated administratorspouse will not again abuse that power and authorizes the
resumption of said administration;
d. When the spouse who has left the conjugal home resumes common
life with the other;
e. When parental authority is judicially restored;
f. When the spouses who have separated in fact for at least one year,
reconcile and resume common life; or
g. In case of VOLUNTARY dissolution of the ACP or CPG, when the
spouses agree to the revival of the former property regime.
- But no voluntary separation of property may therafter be granted.
3. The revival of the former property regime shall be governed by
Article 67 (revival of property regime upon reconciliation in cases
of legal separation). (Art. 141, FC)
E. TRANSFER OF ADMINISTRATION OF EXCLUSIVE PROPERTY
1. Causes. The administration of all classes of exclusive property of
either spouse may be transferred by the court to the other spouse
in the following instances:
A. When one spouse becomes the guardian of the other;

b. When one spouse is judicially declared an absentee;

c. When one spouse is sentenced to a penalty which carries with it
civil interdiction; or
d. When one spouse becomes a fugitive from justice or is in hiding as
an accused in a criminal case. (Art. 142, FC)
2. Third Party as Administrator. If the other spouse is not qualified
by reason of incompetence, conflict of interest, or any other just

cause, the court shall appoint a suitable person to be the

administrator. (Art. 142, FC)
3. Distinguished from Administration of ACP/CPG Property.
Under Arts. 96 and 125, a spouse may assume sole powers of
administration over the ACP/CPG properties in case the other
spouse becomes incapacitated or unable to participate in the
administration. NO COURT INTERVENTION IS NECESSARY. This is
different from Art. 142, where administration of exclusive property
is transferred by the court.
V. REGIME OF SEPARATION OF PROPERTY
A. IN GENERAL
1. Nature. In the regime of separation of property, each spouse
retains ownership, management and control of his or her
property brought into the marriage and of the property he or
she acquired during the marriage, including all their fruits
and accessions, but under the obligation to contribute
proportionately to the family expenses.
B. WHAT RULES GOVERN
In case of conventional separation of property or separation of
property as agreed upon in the marriage settlements, the
property relations are governed1. By provisions of the marriage settlements, and
2. Suppletorily, by the provisions of the FC on Separation of
Property. (Art. 143, FC)
This should be distinguished from judicial separation of property,
governed by the rules discussed in the previous section.
C. SCOPE
1. Separation of property may refer to present or future property or
both. (Art. 144, FC)
2. Separation of property may be total or partial.
A. If partial, the property not agreed upon as separate shall
pertain to the absolute community. (Art. 144, FC)

D. EXCLUSIVE OWNERSHIP AND DISPOSITION

1. Each spouse shall own, dispose of, possess, administer and
enjoy his or her own separate estate, without need of the
consent of the other. (Art. 145, FC)

2. To each spouse shall belong all earnings from his or her

profession, business or industry and all fruits (natural,
industrial or civil) due or received during the marriage from
his or her separate property. (Art. 145, FC)
E. LIABILITY FOR FAMILY EXPENSES
- BOTH spouses shall bear the family expenses in proportion to
their income, or, in case of insufficiency or default thereof, to
the current market value of their separate properties.
- the liabilities of the spouses to creditors for family expenses
shall, however, be solidary. (Art. 146, FC)
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
The property regime of unions without marriage is governed by COOWNERSHIP, but there are differences between unions where the
parties are capacitated to marry each other and unions where the
parties are not.
A. PARTIES ARE CAPACITATED TO MARRY EACH OTHER
When a man and a woman who are capacitated to marry each other,
live exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage 1. Their wages and salaries shall be owned by them in equal shares.
(Art. 147, FC)
2. The property acquired by both of them through their work or
industry shall be governed by rules on co-ownership. (Art. 147,
FC)
a. For Art. 147, FC to apply, it is required that the man and woman:
(1) must be CAPACITATED to marry each other;
(2) LIVE EXCLUSIVELY with each other as husband and wife; and (3)
their union is WITHOUT THE BENEFIT OF MARRIAGE or their
marriage is VOID.
- Art. 147, FC may apply to marriages declared void for psychological
incapacity. (Art. 36)
VOID MARRIAGES REFERRED TO UNDER ART. 147 ARE THE FF:
1) void marriages under Art. 36-psychological incapacity
2) void marriages under Art. 44-subsequent void marriage where both
parties are in bf
3) void marriages under Art. 53-subsequent void marriage xxx prior
marriage xxx non recording
4)void marriages where there is absence of consent, authority of the
solemnizing officer, a valid marriage license, a marriage ceremony
as provided for in Art. 4, FC

Case: Mercado-Fehr v. Fehr, GR No. 152716, Oct. 23, 2003.

b. Properties acquired during cohabitation shall be presumed to have
been obtained by their JOINT efforts and shall be owned by them
in equal shares. (Art. 147, FC)
- Note that the presumption may be rebutted by proof that the
property was (i) acquired by gratuitous title; or (ii) acquired before
the cohabitation. These properties are not covered by Art. 147, FC
which covers only properties ACQUIRED by work or industry during
cohabitation.
c. A party shall be deemed to have contributed jointly in the
acquisition in a property even if his or her efforts consisted in the
care and maintenance of the family and household.
d. Neither party can encumber or dispose inter vivos of his or her
share in such co-owned property, without the consent of the other,
until after the termination of their cohabitation. (Art. 147, FC)
e. When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith shall be forfeited in favor of:
i. Their common children.
Ii. In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall belong
to the respective surviving descendants.
Iii. In the absence of descendants, such share shall belong to the
innocent party.
The forfeiture shall take place upon the termination of the
cohabitation. (Art. 147, FC)
B. PARTIES ARE NOT CAPACITATED TO MARRY EACH OTHER
In cases of cohabitation not falling under Art. 147, FC (i.e., where
the parties have NO LEGAL CAPACITY to marry or have some
impediment to marry each other)
Marriages referred to in Art. 148, FC
1. living together as h and w without the benefit of marriage but are
not capacitated to marry
2. an adulterous relationship
3. bigamous or polygamous marriage
4. incestuous void marriages under Art. 37
5. void marriages by reason of public policy
1. wages and salaries earned by each party belong to him or her
exclusively (or to the ACP/CPG), if the earner is married).
2. only the properties acquired by both of the parties through their

actual joint contribution of money, property, or industry shall be

owned by them in common in proportion to their respective
contributions. (Art. 148, FC)
a. Under Art. 148, FC, there is no presumption that properties are
acquired by joint efforts; actual contribution must be proven
(unlike in Art. 147, FC). Without proof of actual contribution, coownership does not exist.
Case: Acre v. Yuttiki, GR No. 153029, Sept 27, 2007
b. Contributions in the form of care of the home, children and
household, or spiritual or moral inspiration, are excluded or not
counted (unlike in Art. 147, FC)

Case: Carino v. Carino, 351 SCRA 127, 135 (2001)

c. The same rule and presumption applies to joint deposits of money
and evidences of credit. (Art. 148, FC)
Note the important DIFFERENCES between unions where the parties
are capacitated to marry each other and unions where the parties
are not:
i. Parties are capacitated- care and maintenance of the family
and household are deemed contribution in the acquisition of
property;
Parties are not capacitated- care and maintenance are not
counted; there must be actual or direct contribution.
ii. Parties are capacitated- property acquired during the cohabitation
are presumed to be acquired by joint efforts, and therefore coowned;
Parties are not capacitated- no such presumption
d. If one of the parties is validly married to another, his or her share in
the co-ownership shall accrue to the ACP or CPG existing in such
valid marriage.
e. If the party who acted in bad faith is not validly married to another,
his or her share in the co-ownership shall be forfeited in favor of:
i. Their common children.
Ii. In case of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to their
respective surviving descendants.
Iii. In the absence of descendants, such share shall belong to the
innocent party.

The forfeiture shall take place upon the termination of the

cohabitation. (Art. 148, FC)
The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith. (Art. 148, FC)
THE FAMILY HOME
A. Nature & Characteristics: The family home, constituted jointly by
the h and w or by an unmarried head of a family, is the dwelling
house where they and their family reside, and the land on which it
is situated. (Art. 152,FC)
1. Ownership. The family home must be ACP/CPG property or
exclusive property of either spouse with the latters consent. If
constituted by an unmarried head of family, it must be his or her
own property.
- nevertheless, property subject of a conditional sale on installments
where ownership is reserved by the vendor only to guarantee
payment of the purchase price may be constituted as a family
home.
2. Legal Effects. Unlike ordinary property, the family home has the
following distinctive characteristics:
a. The family home is generally free from execution, forced sale,
or attachment.
B. The family home may be sold, donated or encumbered by its
owner with the written consent of the person constituting the
same, the latters spouse, and a majority of the beneficiaries
of legal age. In case of conflict, the court shall decide.
c. Generally, the family home shall continue and cannot be partitioned
despite the death of one or both spouses or of the unmarried head
for a period of 10 years or for as long as there is a minor
beneficiary.
3. Only one family home. A person may constitute, or be the
beneficiary of, only one family home.
4. Applicability to existing homes. All existing family residences at the
time of the effectivity of the fc (aug 3, 1988) are considered family
homes and are PROSPECTIVELY ENTITLED to the benefits accorded
to a family home under the FC.
For debts incurred during the Civil Code, the family home must have
been constituted under its provisions for it to enjoy exemption
from attachment.
B. HOW/WHEN CONSTITUTED. - from the time it is occupied; no

judicial proceedings or registration of public instruments is

necessary (unlike in the CC)
C. DURATION- from the time of its constitution and so long as any of
its beneficiaries ACTUALLY RESIDES therein, the family home
continues to be such.
1. Actual residence by the beneficiaries is essential; not enough that
house is occupied by maids or overseers.
2. Effect of Death- continues for a period of 10 years or for as long as
there is a minor beneficiary. The heirs cannot partition the same
unless the court finds compelling reasons therefor.
After the period provided by law, the heirs may keep the property
intact by not partitioning it. However, it will cease to be a family
home.
D. BENEFITS:
1. General Rule: EXEMPT from execution, forced sale or
attachment.
- a claim for exemption should be set up and proved BEFORE the
sale of the property at public auction, and failure to do so
may estop the party from later claiming the exemption.
2. Exceptions:
a. for nonpayment of taxes
b. debts incurred prior to the constitution of the family home- even if rendered after the constitution of the family home.
c.For debts secured by mortgages on the premises before or
after such constitution; and
d. For debts due to laborers, mechanics, architects, builders,
materialmen includes repair and after creation of family
home
E. BENEFICIARIES
1. H AND W, or UNMARRIED PERSON who is HEAD OF A FAMILY;
and
2. Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who
are living in the family home and who depend upon the head
of the family for legal support.
REQUIREMENTS
A. The beneficiary must have the aforementioned relationship
with the head of the family;
B. He or she must be actually living in the family home; and
C. He or she must be dependent on the head of the family for

legal support.
Descendants include grandchild of of head of family. However, if
the grandchild is not dependent on the said head for support
(having a parent), he cannot be considered a beneficiary.
F. VALUE:
shall not exceed at the time of its constitution, the
amount of P300K in urban areas, and P200K in rural areas.
-- family home may be attached or levied upon on execution when the
actual value of the family home exceeds the maximum
If the increased actual value resulted from subsequent voluntary
improvements
3. bidding and disposition of proceeds
A. At the execution sale, no bid below the value allowed for a
family home shall be considered.
B. The proceeds shall be appliedFirst, to the amount mentioned in Art. 157
Then, to the liabilities under judgment and costs
Excess, if any, shall be delivered to the judgment debtor.
4. If there are creditors with special credits enumerated in Art. 155
(which are enforceable against the entire family home regardless
of its value)
A. Other creditors not covered by Art. 155 must show that the value of
the Family home exceeds not only the maximum allowed by law
but also the amount of such special credits under Art. 155, before
they can attach or execute on the family home.
B. In case of such attachment or execution, the proceeds should first
be applied to their credits, even before the amounts in Art. 157 are
paid.
At the execution sale, no bid below the value allowed for a family home
shall be considered.
Example:
QC House and lot constituted in 2015 worth P2M
Husband incurred arrears in real estate taxes in the amount of P200K
Wife incurred credit card debt P250K (redounded to benefit of family)
Credit card company filed suit for collection.
Execution sale
Sold at public auction for P1.8M
Apply P1.8M proceeds shall be applied or paid in the following order:
First, pay the real estate taxes P200K
Second, give the maximum value provided by law under Art. 157 to the

H and W P300K
Third, pay credit card- P250K
Excess, give to H and W

PATERNITY AND FILIATION Session 12

I. IN GENERAL
A. DEFINITION: Paternity (or maternity) is the status or relation
of the parent with respect to his or her child. Filiation is the
status or relation of a child with respect to his or her parents.
B. KINDS OF FILIATION: The filiation of children may be1. By nature a. Legitimate or b. illegitimate
2. By adoption. (Art. 163, FC)
II. LEGITIMATE CHILDREN
A. WHO ARE LEGITIMATE.
1. GENERAL RULE. Children conceived OR born
during the marriage of the parents are legitimate.
(Art. 164, FC)
a. A child conceived before marriage
(premarital) but born after his parents got
married, is legitimate.
b. A child conceived during marriage, but born
after the marriage has already been
terminated (due to the death of the father
or the annulment of a voidable marriage), is
legitimate.

B. Children conceived as a result of ARTIFICIAL INSEMINATION of the

wife with the sperm of the husband or that of a donor or both are
likewise legitimate children of the husband and his wife
Provided that both h and w authorized or ratified such
insemination in a WRITTEN INSTRUMENT executed and
signed by them BEFORE the birth of the child. (Art. 165, FC)
The instrument shall be recorded in the civil registry together with the
birth certificate of the child. (Art. 165, FC)

C. The child shall be considered legitimate although the mother may

have declared against its legitimacy or may have been sentenced
as an adulteress. (Art. 167, FC)
This is to protect the child from the passions of the parents.
Adulteress mother herself would not be certain who is the
father.
D. Rules in case the marriage is terminated AND THEN the mother
gives birth to a child:
Arts. 168 and 169, FC
Exceptions. The following are also considered LEGITIMATE by express
provision of law:
a. children conceived or born before the finality of the judgment
of annulment. (Art. 54, FC)
b. Children conceived or born before the finality of the judgment
of absolute nullity of the marriage under Art. 36 (psych inc)
C. Children conceived or born of the subsequent marriage under
Art. 53 (void for failure to comply with requirements of
delivery of presumptive legitimes,etc.)
d. Children of a marriage under Articles 41-42 (i.e., a subsequent
marriage after the spouse in a previous marriage is declared
presumptively dead) who were conceived before its termination by
the reappearance of the presumptively dead spouse. (Art. 43, par.
1, FC)
B. RIGHTS OF LEGITIMATE CHILDREN
1. To bear the surnames of the father and the mother in
conformity with the provisions of the
Civil Code on Surnames:
a. Legitimate ch may not adopt the surname of a person
who is not their father, to avoid confusion of paternity.
Republic v. CA, GR No. 88202, Dec. 14, 1998
b. A child who is already of age may adopt the surname of his or her
mother, if there is a good reason therefor, such as to avoid
confusion, or racial prejudice.
Alfon v. Republic, 97 SCRA 858 (1980)
This is not allowed for minor children.
Lin Wang v. Cebu City Civil Registrar, GR No. 159966, March 30, 2005.
2. To receive support from their parents, their ascendants, and in
proper cases, their brothers and sisters, in conformity with the

provisions of the FC on support;

And
3. To be entitled to the legitime and other successional rights granted
to them by the Civil Code. (Art. 174, FC)
C. ACTION TO IMPUGN LEGITIMACY
1. In general, the legitimacy of a child can be impugned only in a
direct action brought for that purpose (not by collateral
attack), on the grounds specified by law, by the proper
parties, and within the prescriptive period provided by law.
The following rules apply to a CASE WHERE A FATHER OR
HIS HEIR denies that a certain person is HIS LEGITIMATE
CHILD. They do not apply to cases where a couple
denies a certain child to be theirs, or where a mother
denies a child to be hers.
Cases: De Jesus v. Estate of Juan Gamboa Dizon, GR No. 142877, Oct.
2, 2001
Benitez-Badua v. CA, 299 SCRA 468
Cabatbat-Lim v. IAC, 166 SCRA 451
2. Grounds. Legitimacy of a child may be impugned ONLY (exclusive)
on the following groundsa. It was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300
days which immediately preceded the birth of the child
because of: (Art. 166, FC)
i. Physical incapacity of the h to have sexual intercourse with his w
(impotence not sterility)
Ii. H and w were living separately in such a way that sexual
intercourse was not possible;
Iii. Serious illness of the h, which absolutely prevented sexual
intercourse.
Concepcion v. CA, GR No. 123450, Aug. 31, 2005
b. For biological or other scientific reasons, the child could not have
been that of the h, except in case of artificial insemination. (Art.
166, FC)
Ex. DNA testing, or blood exclusion tests
3. Prescriptive Period for filing action to impugn legitimacy (Art. 170,
FC)
a. If the h or any of his heirs resides in the city or municipality
where the birth took place or was recorded, within 1 year.

b. If the h or all of his heirs do not reside at the place of birth or

recording, within 2 years if they reside in the Ph, or within 3
years if they reside abroad.
C. The period is counted from the knowledge of the birth or from its
recording in the civil register, whichever is earlier. (Art. 170, FC)
D. After the lapse of the prescriptive period, the childs legitimate
status becomes fixed and can no longer be assailed. The
prescription is intended to prevent the status of a child from being
in a state of uncertainty for a long time, as well as to force early
action so that evidence could be promptly produced while still
available.
4. Who may Impugn.
A. Generally, only the husband can impugn.
B. Exception. The HEIRS of the husband may impugn the filiation of
the child within the period prescribe in Art. 170, FC only in the ff.
cases:
i. If the H dies before the expiration of the period fixed for
bringing the action;
Ii. If he should die after the filing of the complaint without having
desisted therefrom; or
Iii. If the child was born after the death of the husband. (Art. 171, FC)
Example: A legitimate child cannot impugn his own legitimacy by
claiming that he is the illegitimate child of someone else. (De
Jesus v. Estate of Juan Gamboa Dizon, GR No. 142877, Oct. 2,
2001)
CASE: CONCEPCION V. CA, GR NO. 123450, AUG. 31, 2005
Gerardo and Theresa were married, lived in Quezon City, and had a
son, Gerry. The marriage was nullified because Theresa was
previously married to another man, Mario. It was held that
Gerardo cannot have visitation rights over Gerry, because Gerry is
considered the legitimate son of Mario, as the legal husband of
Theresa. For Gerardo to claim paternity over Gerry would make
Gerry an illegitimate child, and only Mario
can impugn Gerrys legitimacy. Moreover, since Mario also lived in
Quezon City, sexual access between him and Theresa was not
proven to be impossible. It does not matter that Theresa claimed
that she never lived with Mario, because a mother cannot declare
against the legitimacy of her son.
D. ACTION TO CLAIM LEGITIMACY
1. WHO MAY FILE

A. The child; or
B. The childs heirs, should the child die during minority or in a
state of insanity. (Art. 173, FC)
Prescriptive Period
a. If by the child-during his lifetime;
- the action already commenced by the child shall survive
notwithstanding the death of either or both parties (Art. 173, FC)
b. If by the childs heirs-within 5 years form childs death. (Art. 173,
FC)
F. PROOF OF FILIATION OF LEGITIMATE CHILDREN: The filiation of
legitimate children is established by any of the following (Art. 172,
FC)1. Primary Evidence:
A. The record of birth appearing in the civil register or a
final judgment; or
-however, if the alleged father did not sign or participate in the
preparation of the birth certificate, it cannot prove paternity.
b. An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
2. Secondary Evidence (if there is no primary evidence)
A. Open and continuous possession of the status of a legitimate
child- ex. Use of fathers surname, receipt of support from
parents, social recognition
B. Any other means allowed by the rules of court and special
laws. (Art. 172, FC)- ex. Baptismal cert, judicial admission,
family Bible, common reputation respecting pedigree,
admission by silence, testimonies of witnesses
DNA testing may be used to prove filiation. It may be ordered by the
court motu propio or upon the application of any interested person
to determine paternity.
Estate of Ong v. Diaz, GR No. 171713, Dec. 17, 2007.
III. ILLEGITIMATE CHILDREN
A. WHO ARE ILLEGITIMATE
1. GENERAL RULE: Children conceived AND born outside a valid
marriage are illegitimate, unless otherwise provided in this
Code. (Art. 165, FC)
2. Exceptions: legitimate by express provision of law:
A. Children conceived or born before the finality of the judgment
of annulment

B. Children conceived or born before the finality of the judgment of

absolute nullity of the marriage for psych incapacity
C. Children conceived or born of the subsequent marriage under Art.
53 (void for failure to comply with requirements of delivery of
presumptive legitimes) Art. 54, FC
D. Children of subsequent marriage under Arts. 41-42 conceived
before its termination by the reappearance of the presumptively
absent spouse (Art. 43, par. 1)
B. ESTABLISHING ILLEGITIMATE FILIATION
EVIDENCE. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
2.Prescriptive Period. Same as actions to claim for legitimacy
Who may file and when
The child during his or her lifetime
Childs heirs should the child die during minority or in a state of
insanity-within 5 years from childs death. (Art. 173, FC)
B. However, when the action is based on secondary evidence (Art.
172, par. 2, FC), the action must be brought during the lifetime of
the alleged parent. (Art. 175, FC)
-this is to give the parent a chance to rebut the secondary evidence
presented against him, which can be easily perjured. (Estate of
Ong v. Diaz)
(question: what if the secondary evidence is DNA testing which is very
reliable and can be done even after parent has already died?)
C. Rights of Illegitimate Children
1. to use the surname of their mother (Art. 176, FC)
However, illegitimate children may use the surname of their FATHER if
their filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument
is made by the father. (Art. 176, FC as am by RA 9255)
B. The father has the right to institute an action before the regular
courts to prove non-filiation during his lifetime (Art. 176, FC as am
by RA 9255)
2. to be under the parental authority of their mother (Art. 176)
3. to receive support in conformity with the FC (Art. 176)
- the illegitimate child is entitled to support from his FATHER and NOT
ONLY FROM HIS MOTHER. - Montefalcon v. Vasquez, GR No.
165016, June 17, 2008.
4. to be entitled to legitime consisting of of the legitime of a

legitimate child. (Art. 176, FC)

IV. LEGITIMATED CHILDREN
A. LEGITIMATION: It is the process or mode by which children
conceived and born outside of marriage are given the status of
legitimacy through the subsequent marriage of their parents.
B. Who may be legitimated. A child conceived and born outside of
wedlock of parents who, at the time of the childs conception, were
not disqualified by any impediment to marry each other or were
disqualified only because either
or both of them were below 18 years of age (Art. 177, FC as am by RA
9858)
Ex. At the time of conception of the child, one or both parents are
married to other parties- child cannot be legitimated
If the impediment was removed by the time of birth (e.g., declared a
nullity or death) the child still cannot be legitimated
-if the impediment was removed, and the parents have already married
each other by the time of birth of the child, the child is LEGITIMATE
under Art. 164
2. At the time of conception, one or both parties are below 18 years of
age- child can be legitimated bec the impediment was merely due
to minority)
B. How legitimation takes place: by a subsequent valid marriage
between parents. (Art. 178, FC)
1. The annulment of a voidable marriage shall not affect the
legitimation. (Art. 178, FC)
-if the marriage turns out to be void, there is no legitimation (nullity
retroacts).
2. The legitimation of children who died before the celebration of the
marriage shall benefit their descendants. (Art. 181, FC)
C. EFFECTS
1. Legitimated children shall enjoy the same rights as legitimate
children.
2. the effects of legitimation shall retroact to the time of the childs
birth.
D. Impugning Legitimation: Legitimation may be impugned only by
those who are prejudiced in their rights, within 5 years from the
time their cause of action accrues. (Art. 182)
-cause of action accrues from the death of the alleged parent, as the
impugners successional rights are vested at that time.