Civ Midterms Reviewer

PART I was a leap year).
It was promulgated July 6, 1987, after President Aquino

THE CIVIL CODE OF THE PHILIPPINES issued E.O. 209 promulgating the Family Code of the Philippines.
In sum: promulgation = 07/06/87
A. Preliminary Title Publication = 08/04/87
Effectivity = 08/03/88
Article 1. This act shall be known as the “Civil Code of the Philippines.”
Tañada v. Tuvera
1. Chapter 1: Effect and Effectivity of Laws FACTS:
a. When laws become effective EO 200 Petitioners were assailing the validity of several Presidential Decrees (so-
called secret degrees) of then President Marcos. They claimed that said
Article 2. Laws shall take effect after fifteen days following the decrees were not valid and did not take effect as they had not been
completion of their publication in the Official Gazette or in a newspaper published as required by the law, particularly of Article 2, NCC.
of general circulation in the Philippines, unless otherwise provided. This
Code shall take effect one year after such publication. (As amended by The government argued that publication in the O.G. is not a sine qua non
E.O. No 200, promulgated 18 June 1987). requirement for the effectivity of laws where the laws themselves provide
for their own effectivity dates. It is thus submitted that since the presidential
Q: Article 2 provides for the effectivity of two kinds of law, what are they? issuances in question contain special provisions as to the date they are to
A: Civil Code and ordinary laws. take effect, publication in the O.G., is not indispensable for their effectivity,
as Art. 2 of the NCC used the phrase “unless otherwise provided.”
Q: When does an ordinary law become effective?
A: An ordinary law becomes effective…
1. when expressly provided to take effect, or ISSUES
2. if no such date is provided, then 15 days following the completion
1. May the law dispense with publication as long as it provides for the
of its publication in the official gazette or in a newspaper of general
date of its effectivity?
circulation.
2. Must all laws be published?
3. Where must the publication be made to make a law effective?
Q: When did the Civil Code take effect?
4. When must the publication be made?
A: The new Civil Code took effect on August 30, 1950, one year after its
5. What is the purpose of publication?
publication in the O.G. on august 30, 1949.
Note: This is an example of an exception to the 15 day period since Art. 2

expressly provided that the NCC shall take effect one year after its HELD:
publication. Also, this is an exception to the general rule that the date of 1. NO. What the phrase “unless otherwise provided” in Art. 2 qualifies is
publication shall be that found in the O.G. or newspaper of general the 15-day period after publication for which a law takes effect and not
circulation and not the date of actual release thereof. The date of the O.G. the fact of publication. The law may provide that it shall take effect
containing the NCC was June 1949 but it was released only on August 30, after such period of time after publication other than 15 days (30 days, 1
1949. (Release date was used!) year, even immediately) but always with publication.
2. All laws of general application must be published such as penal laws;
Q: When did the Family Code took effect? laws of local application; private laws as in the case of grant of
A: It took effect on August 3, 1988, one year after completion of its citizenship to certain individuals. Thus, the SC declared that all
publication in a newspaper of general circulation on August 4, 1987. (1988 presidential issuance of general application which have not been
published shall have no force and effect, and it ordered that the
CIVIL LAW MIDTERMS REVIEWER 4C and 4D AY 2006-2007 1
by: Merlin Ang, Joyce Briones, Fritzzie Español, Trina Ilarde, Jew Lao, Mike Mate,
Bunny Quiros, Eeza Ramos, Victor Ramos, Clifton Sawit, Christine Trinidad
unpublished decrees be published in the O.G. immediately. Therefore,  Municipal ordinances dealing with internal regulations should
all laws must be published. apply the Local Government Code, no the New Civil Code. (old
3. The publication must be made in the O.G. (as declared by the SC in this reviewer)
case) or in a newspaper of general circulation (after EO 200 was passed). Note: The examples mentioned above are not technically laws but are mere
4. Publication must be made ‘as soon as possible.’ What this phrase internal rules and regulations.
means must be determined on a case-to-case basis.
5. The purpose of publication is to give the general public adequate notice Q: What does the phrase “unless otherwise provided” refer? Does this
of the various laws which are to regulate their actions and conduct as phrase dispense with publication?
citizens. Without such notice or publication, there would be no basis for A: No. It only qualifies the 15 day period after publication. Thus, as a
the application of the maxim “ignorantia legis no excusat” as declared general rule, laws take effect 15 days after publication. The exception is
in Article 3, NCC. when the law provides for a different period, in which case, the law shgall
take effect after such period, but always with publication. It can take effect
Q: Must all laws be published? immediately, provided it is published. (Tanada v. Tuvera).
A: Yes, all laws must be published. There is no exception to this rule. By
word “laws” we mean laws made or passed by the legislature. These are Q: How many times must a law be published?
laws of public nature, that us, affecting the interests of the public in general A: As a general rule, only once (1x). The law, however, can provide
and not only those of a particular group of private persons. (Tanada v. otherwise. In which case, said provision shall prevail. Thus, the law can
Tuvera) provide that it must be published once a week for 3 consecutive weeks or
that it must be published in four newspaper of general circulation for two
Q: Give examples of laws which must be published. consecutive weeks, etc.
A: There are 3.
1. Implementing Rules – if they implement the provisions of laws, Q: What part of the law should be published?
they should be published. A: The law should be published in its entirety, meaning its full text, in the
exact wording in which it was approved and passed by the legislature,
Note: Even in the absence of implementing rules, the publication of the including all the commas, periods, etc. The law does not allow publication of
law is sufficient to give effectivity to the law. Example: Expanded VAT summaries of legislation. There is no such thing as substantial compliance in
law – it took effect eve without publication of its implementing rules good faith regarding publication.
and regulations.
Q: How wide must the circulation be in order to be considered a newspaper
2. Central Bank Regulations – if it affects the public, publication is of general circulation?
necessary. A: There is no requirement in the law (E.O. 200) as to how wide the
3. Laws granting citizenship to certain individuals – example: law circulation must be in order to consider a newspaper one of general
granting Filipino citizenship to Ms. Mauritius. circulation. It is something that has to be defined on a case-to-case basis. For
4. Law naming a public schpp;, a street etc. example: BOI rules and regulations define a newspaper of general
circulation as one which has a circulation of at least 100,000 newspapers.
Q: Give examples of laws which need not be published. Furthermore, it also need not be of nationwide publication. As long as it is
 Internal regulations of administrative agencies because they are not published in the regional territory to which the law pertains, for instance, a
of public interests; law only affecting Metro Manila may be published only in Metro Manila. In
 Interpretative regulations issued by administrative bodies. this case, there is already sufficient compliance with the requirement of
 Internal rules and regulations for purpose of compliance with their publication.
administrative functions.

Q: Must the law be published in the Official Gazette and also in a newspaper required as a condition precedent to the effectivity of a law to inform the
of general circulation? public of the contents of the law or rules and regulations before their rights
A: No. the law uses the term “or” the law may be published in either the and interests are affected by the same. From the time the COA disallowed
O.G. or in a newspaper of general circulation. the expenses in audit up to the filing of herein petition the subject circular
remained in legal limbo due to its non-publication.
Dadole v. COA
FACTS: b. Mandatory effects of laws
In 1986, the RTC and MTC judges of Mandaue City started receiving
monthly allowances of P1,260 each through the yearly appropriation Article 3. Ignorance of the law excuses no one from compliance therewith.
ordinance enacted by the Sangguniang Panlungsod of the said city. In 1991,
Mandaue City increased the amount to P1,500 for each judge.  The law is deemed read in every (k) even if not expressly stated
therein.
On March 15, 1994, the Department of Budget and Management (DBM)  Instance when mistake of law can be a ground to annul a contract:
issued the disputed Local Budget Circular No. 55 (LBC 55) which provided
that conditions for granting additional allowances to national government 1. Article 526. He is deemed a possessor in good faith who is not
officials and employees assigned in local governments. It provided for aware that there exists in his title or mode of acquisition any flaw
immediate effectivity without need of publication. Petitioner judges argue which invalidates it.
that said circular is void for lack of publication. He is deemed a possessor in bad faith who possess in any
case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may
ISSUE: WON the DBM circular is void for lack of publication.
be the basis of good faith.
HELD:
 The DBM circular is void for lack of publication. Administrative
2. Article 1334: Vitiation of consent on the ground of mistake must be
rules and regulations must be published if their purpose is to
mutual.
enforce or implement existing law pursuant to a valid delegation.
3. Article 2154. If something is received when there is no right to
 It was held that a DBM circular that disallowed payment of demand it, and it was unduly delivered through mistake, the
allowances and other additional compensation to government obligation to return it arises.
officials and employees. 4. Article 2155. payment by reason of mistake in the construction or
 At the very least, before the said circular under attack may be application of a doubtful or difficult question of law may come
permitted to substantially reduce their income, the government within the scope of the preceding article.
officials and employees concerned should be apprised and alerted
by the publication of subject circular in the Official Gazette or in a Q: May a person be excused for non-compliance with a law which is difficult
newspaper of general circulation in the Philippines – to the end that to understand?
they be given amplest opportunity to voice out whatever A: No because the law provides that “ignorance of the law excuses no one
opposition they may have, and to ventilate their stance on the from compliance therewith.” For example: The expanded VAT law,
matter. This approach is more in keeping with democratic precepts assuming that it is difficult to understand, does not excuse a tax payer
and rudiments of fairness and transparency. subject to the VAT law from registering his company enterprise.
DBM-CCC No. 10 has been re-issued in its entirety and submitted for Q: However, is a mistake in the application or in the interpretation of a
publication in the Official Gazette per letter to the National Printing Office difficult provision of law excusable?
dated March 9, 1999. But this did not cure the defect because publication is

A: Yes, provided that such mistake was committed in good faith. The basis 4. Substantive rights are being declared for the first time and do not
for this is the third paragraph of Article 526. When there is a claim of good impair vested rights.
faith, this could lessen the liability of the person invoking it. 5. Tax laws (all the time)
6. Procedural laws (Liam Law Case)
Q: Distinguish ignorance of the law (mistakes of law) from ignorance of facts Ex. Spurious children under the old Civil Code now removed under the
(mistake of fact). Family Code and declared to have the same rights as illegitimate
A: Ignorance of the law is no excuse, that is, no excuse for not complying children. Even if they were born before the FC, they may now enjoy the
with the law, ignorance of the fact eliminates criminal intent as long as there rights of illegitimate children under the FC.
is no negligence. Therefore, a man who marries a second wife upon
reasonable belief after due search that his wife, missing for ten (10) years, is i) Exceptions
dead, does not incur criminal responsibility even if it turns out that his first
wife is still alive. This is merely ignorance of the fact. Q: What are the exceptions to these exceptions?
A:
However, a person who charges usurious rates (assuming that the Usury 1. An ex post facto law cannot be promulgated. An ex post facto law
Law is in effect) cannot claim justification in his ignorance of the usury law. is a subsequent penal law made to apply to acts which at the time
Cleary, this is ignorance of the law. of performance was not a crime.
2. When retroactivity would impair vested rights.
Q: Is ignorance of foreign law excusable? 3. When it is not favorable to the accused.
A: Ignorance of a foreign law would be a mistake of fact. Our courts do not Liam Law v. Olympic Sawmill
take judicial notice of foreign laws. Such laws must be alleged and proved.
Hence, the aforequoted provisions do not apply to foreign laws. FACTS
 Plaintiff loaned defendant P10K. When the loan was not paid on the
c. Irretroactivity of laws date, plaintiff agreed to extend the term of the loan.
 Another loan document was executed but the obligation was increased
Q: What is the general rule with regard to the effectivity of laws? by P6K. On due date of the extension, defendant still did not pay.
A: The general rule is that laws are prospective in nature. The reason for this Thus, plaintiff sued defendant.
is that if the rule was that laws were retroactive, grave injustice would occur,  Defendant alleged that the additional amount constituted usurious
for these laws would punish individuals for violations of laws not yet interest and that since the claim of usury was not denied specifically
enacted. While ignorance of the law does not serve as an excuse, such under oath by plaintiff (Section 9 of the Usury Law) then it was deemed
ignorance refers only to laws that have already been enacted. admitted.
Q: What are the exceptions to this rule? ISSUE: Whether or not plaintiff should have denied the allegation.
A: A law is retroactive when:
1. The law provides for its retroactive application. (Must) HELD:
Ex. The Family Code “shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the  NO. The foregoing provision envisages a complaint filed against an
Civil Code or other laws.” (Art 255, FC) entity which has committed usury, for the recovery of the usurious
2. Penal laws can be made retroactive provided it is favorable to the interest paid. In that case, if the entity sued shall not file its answer
accused and the accused is not a habitual criminal. under oath denying the allegation of usury, the defendant shall be
3. Curative legislation deemed to have admitted the usury. The provision does not apply to a

case, as in the present, where it is the defendant, not the plaintiff, who is with each other as they cannot exist together, then implied repeal may be
alleging usury. allowed.
 Usury law has been legally non-existent. Interest can now be charged
as lender and borrower may agree upon. The Rules of Court in regards Q: What is the effect of repeal of the repealing law? (Revival of Laws)
to allegations of usury, procedural in nature, should be considered A:
repealed with retroactivity. 1. Express Repeal – If you have a law which has been expressly
 Statutes regulating the procedure of the courts will be construed as repealed and the repealing law is itself repealed, the first law is not
applicable to actions pending and undetermined at the time of their considered revived, unless the third says that the first law has been
passage. Procedural laws are retrospective in that sense and to that revived.
extent. 2. Implied Repeal – if the first law is repealed impliedly then the
general rule is that the repeal of the repealing law revives the first
Art. 5. Acts executed against the provisions of mandatory or prohibitory law. The exception is that there is no revival if:
laws shall be void, except when the law itself authorizes their validity. a. The third law stated that the first law is not revived; or
b. The first and the third law are inconsistent.
d. Termination of effectivity of laws
Q: Is there a repeal by a lapse of time?
Note: The executive has no function in the termination of laws. Only the A: Yes. The law in this case had a certain period of time being effective. It
Judiciary and the legislature have the power to terminate a law. ceased to be effective upon the expiration of the time provided for its
effectivity. For example: Naturalization laws providing for a certain period
Art. 7. Laws are repealed only by subsequent ones, and their violation or of time whereby temporary status given to a foreigner expires after a certain
non-observance shall not be excused by disuse, or custom or practice to period of time (i.e. after 5 years, et.)
the contrary.
When the courts declared a law to be inconsistent with the Q: What is the effect of a law declared to be void or unconstitutional?
Constitution, the former shall be void and the latter shall govern. A: As a general rule, a law declared void has no effect because the law us
Administrative or executive acts, orders and regulations shall be deemed not to have existed at all and there was no period of time within
valid only when they are not contrary to the laws or the Constitution. which it took effect. The exception to this rule is when the judiciary
recognizes some of its effects prior to the declaration of nullity. (Doctrine of
Q: What is repeal? Operative Fact).
A: A law has a certain period of being effective until such time as it ceases to
be effective due to repeal. e. Waiver of Rights
Q: What are the kinds of repeal? Art. 6. Rights may be waived, unless the waiver is contrary to law, public
A: order, public policy, morals, or good customs, or prejudicial to a third
1. Express Repeal – a subsequent law is passed expressly stating that person with a right recognized by law.
a prior law has ceased to have any effect.
2. Implied Repeal – a subsequent law is passed which is inconsistent Q: Can rights be waived?
with a former law and the two are not capable of standing or A: Yes as long as the waiver is not contrary to law, public order, public
existing together. policy, morals, good customs, or is prejudicial to third persons with a right
recognized by law.
Q: Is implied repeal favored?
A: No. As a general rule, implied repeal is not favored. As long as you can Q: Give examples of waivers.
reconcile both laws, you must reconcile them. But if they are so inconsistent A:
1. Right of redemption –This right can be waived except if it Example: Legislature enacted EO 200 which provide that the
prejudices others. publication of laws may be made in a newspaper of general circulation.
2. Public land Act – Waiver of Homestead rights is against public This amended the decision of the SC in Tanada v. Tuvera.
policy.
Q: Can the SC amend or repeal laws?
Q: What are the restrictions as to waivers? A: No (Made reference to Old Reviewer)
A:
1. Capacity –prerequisite to waiver because one must have the will to Art. 9. No judge or court shall decline to render judgment by reason of the
waive; not valid if made by an incapacitated person. silence, obscurity or insufficiency of the laws.
2. The person must have the waivable right. For example, succession
is an inchoate right and so an heir cannot waive his rights before Q: What are the differences between criminal and civil cases, as far as this
the death of the testator. provision is concerned?
3. The waiver must not be against law, public order, public policy, etc. A: In criminal cases, if there is no law covering the particular situation, the
court must dismiss the same. In civil cases, even if there is no applicable law
f. Judicial decisions to cover the particular situation, the court must decide using:
1. rules of statutory construction
Art. 8. Judicial decisions applying or interpreting the laws or the 2. foreign decisions/laws
Constitution shall form a part of the legal system of the Philippines. 3. customs
a. used regularly
Q: Does the term “judicial decisions” under this article refer to all kinds of b. used uniformly
court decisions? c. lapse of time
A: No. It refers only to supreme court decisions and not to decisions Example: If a deeply religious mon, realizing that it was June 24th, Feast of
rendered by the the lower courts. St. John the Baptist, threw water at Portia on said day, the courts will
consider the practice of throwing water on that day.
Q: Since SC decisions also form part of the law of the land, do we apply the
rule on publication – that before they may be effective, they must be Q: What must be established for customs to be the basis of judicial
published? decisions?
A: No. Publication is not necessary. What is important is that such decision A: The custom must have:
are already final and executory. Judicial decisions are not like laws per se. 1. Some form of regularity
Their application is restricted in the sense that they apply only to parties in 2. been USED FOR A LONG TIME
the case. They may apply to other parties provided they involve the same 3. have been subject to IMPLIED ACQUIESCENCE from the
subject matter. (Paras Doctrine of Stare Decisis) legislative body.
Q: When does a judicial decision, which interprets a law, cease to be part of

the law of the land? Art. 10. In case of doubt in the interpretation or application of laws, it is
A: A judicial decision that interprets law cease to be part of the law of the presumed that the lawmaking body intended right and justice to prevail.
land:
1. When the SC reverses itself; and Art. 11. Customs which are contrary to law, public order or public policy
2. When the legislature passes a law that is opposed to an SC shall not be countenanced.
decision.
Example: Even if it is a custom in a certain area that men can have as many
wives as he like, such custom will not be upheld.
Art. 12. A custom must be proved as a fact, according to the rules of Q: When does art 13 apply?
evidence. A: This provision applies if the year, month or other unit of time is not
referred to by name. For Example: If the law says that a law is valid for “one
De Roy v. CA year or more” then you count 365 x (# of years); not the days of a particular
year.
FACTS
 This special civil action for certiorari seeks to declare null and void 2 This provision applies to all contractual stipulations, such as to a promissory
resolutions of the Special First Division of the CA. Petitioners are note. The reason behind this is that one has to read the law as part of every
assailing the denial of their motion for extension of time to file a motion contract.
for reconsideration and CA’s directive to enter judgment since the
decision has become final. While the second resolution pertains to the Q: What is the rule if the last day falls on a Sunday or a legal holiday?
denial of petitioner’s MR for having been filed out of time. A:
 Petitioners contended that the doctrine enunciated in the HABALUYAS 1. For CONTRACTS: The obligor is required to pay on said day
CASE (the 15-day period for appealing or for filing a MR cannot be extended) because the obligation was agreed upon by the parties and they are
should not be made to apply in the case at bar owing to the non- presumed to know that the last day agreed upon was a Sunday or
publication of the Habaluyas decision in the O.G. as of the time the Legal Holiday
subject decision of the CA was promulgated. Exception: If there is a stipulation to the contrary in the contract.
2. For RULES OF COURT, or OTHER LAWS which so specifically
ISSUE: Whether the court decisions of a case need to be published in the provide: One can file his papers on the next business day.
O.G. before they can be effective and binding.
Q: How about payment of taxes?
HELD: A: Although BIR officials are in the habit of extending deadlines, if the last
 NO. Contrary to petitioner’s view, there is no law requiring the day for the filing of returns or payments pf taxes should fall on a Sunday or
publication of SC decisions in the O.G. before they can be binding and a Holiday, it is best to file or pay up before such date.
as a condition to their becoming effective. It is the bounden duty of
counsel as lawyer in active law practice to keep abreast of decisions of Quiqui v. Boncaros
the SC particularly where issues have been clarified, consistently
reiterated, and published in the advance reports of SC decisions and in FACTS
such publications as the SCRA and law journals.  In the lower court, petitioners filed a complaint for reconveyance and
annulment of title with damages against respondents.
g. Computation of time  In an Order dated 16 July 1979, judge dismissed the compliant. Counsel
for petitioners received a copy of said order on 17 July 1979.
Art. 13. When the laws speak of years, months, days or nights, it shall be  On 17 August 1979, petitioners filed a MR of the order of the dismissal
understood that years are of three hundred sixty-five days each; months, dated 16 August 1979. Private respondents opposed the MR on the
of thirty days; days, of twenty-four hours; and nights from sunset to ground that it had been filed beyond the 30-day reglementary period
sunrise. under the Rules, the last day being 16 August 1979. The judge denied
If months are designated by their name, they shall be computed motion.
by the number of days which they respectively have.  Petitioners appealed the denial citing de las Alas case where it was
In computing a period, the first day shall be excluded, and the
stated that “a one day delay does not justify the dismissal of appeal.”
last day included.

ISSUE: Whether or not the MR was filed out of time. For Criminal laws: What is For Civil laws: What is importance is
HELD: important is the place where the act citizenship.
 YES. According to the Civil Code, in computing a period, the first day was committed, so even aliens here
shall be excluded and the last day shall be included. are liable for breach of criminal laws.
 Petitioners received a copy of the Order of Dismissal of their Complaint EXCEPTIONS (in international law) Our Citizens are covered wherever
on 17 July. In computing the 30-day period July 17 is excluded. Thus, 1. Diplomatic immunity they may be as regards:
petitioner had up to August 16 to file their MR. 2. 2. treaty stipulations 1. family rights and duties
 The observation in the de las Alas case does not apply to petitioners case 3. Philippine embassies 2. status
because the cited case is qualified by ‘under the circumstances obtaining in abroad 3. legal capacity (capacity of a
this case’. Petitioners did not even offer any reasonable explanation for 4. vessels or airplanes person that can produce
their delay. registered under Philippine legal effects)
 For the petitioners to seek exception for their failure to comply strictly laws 4. conditions
with the requirements for perfecting their appeal, strong compelling
reasons, like the prevention of a grave miscarriage of justice, must be Q: What is the significance of determining legal capacity of a person?
shown to exist in order to warrant the suspension of the rules. A: You can invoke legal capacity for purposes of entering into contracts, for
purposes of succession and for purposes of entering into marriage.
Art. 14. Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in the Philippine territory, subject Q: In determining the legal capacity of a person, what principles do we
to the principles of public international law and to treaty stipulations. apply?
A: General Rule: We apply the Nationality Principle.
Q: For purposes of criminal law, what principle do we apply? Exceptions:
A; We apply the principle of territoriality, which means that since any 1. If one enters into contracts involving real or personal properties
offense committed within our territory offends the state, any person, (I.E. sale, donation, mortgage)- LEX SITUS CELEBRATIONIS (or
whether citizens or aliens, can be punished for committing a crime here. law of the place where the property is located). As an exception to
this exception: In cases of succession, use Nationality Principle)
h. Nationality Principle 2. For the formal validity of wills – LEX LOCI CELEBRATIONIS (or
law oif the place where the contract is celebrated)
Art. 15. Laws relating to family rights and duties, or to the status, 3. Marriages – LEX LOCI CELEBRATIONIS; but only as to:
condition and legal capacity of persons are binding upon citizens of the a. Authority of the solemnizing officer
Philippines, even though living abroad. b. Marriage license
c. Marriage ceremony
Q: For purposes of Civil Laws, what principle do we apply?
A: We apply the principle of nationality, which in simpler terms means that Q: Armel married Gilbert in San Francisco (Where marriage of 2 persons of
regardless of where a person may be, the law of the country where he is a the same sex is allowed). A and B are both Filipinos. Is the marriage valid
citizen of, will follow him on matters dealing with family rights and duties, here in the Philippines?
status, condition and legal capacity. A: Looking at Article 26 of the Family Code:
Q: Distinguish Territoriality from nationality! Art. 26. All marriages solemnized outside the
Philippines, in accordance with the laws in
force in the country where they were
Territoriality Nationality solemnized, and valid there as such, shall also

be valid in this country, except those prohibited children of the American decedent in the Philippines are not entitled to
under Articles 35 (1), (4), (5) and (6), 3637 and 38. legitimes.
Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a Art. 17. The forms and solemnities of contracts, wills, and other public
divorce is thereafter validly obtained abroad by instruments shall be governed by the laws of the country in which they
the alien spouse capacitating him or her to are executed.
remarry, the Filipino spouse shall have capacity When the acts referred to are executed before the diplomatic or consular
to remarry under Philippine law. officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their
The exceptions provided therein do not refer to sexes of the contracting execution.
parties. The literal interpretation of the cited provision is that, if the marriage Prohibitive laws concerning persons, their acts or property, and
is valid in the country where it is celebrated, it is also valid in the country those which have, for their object, public order, public policy and good
where the parties are citizens. However, we have no jurisprudence yet to customs shall not be rendered ineffective by laws or judgments
confirm that such situation is covered by Article 17 of the NCC so this case promulgated, or by determinations or conventions agreed upon in a
remains to be in issue. foreign country.
i) Conflicts rules Q: To what does “LEX LOCI CELEBRATIONIS” apply?

A: It applies to formal requirements.
Art. 16. Real property as well as personal property is subject to the law of
the country where it is stipulated. Q: Distinguish between wills and contracts!!
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of successional rights BASIS WILLS CONTRACTS
and to the intrinsic validity of testamentary provisions, shall be regulated Extrinsic Validity Lex loci celebrationis; if Lex loci celebrationis
by the national law of the person whose succession is under aliens here then Except: property e.g.
consideration, whatever may be the nature of the property and regardless according to their mortgage, pledge; in
of the country wherein said property may be found. nationality, residence or which case: LEX SITUS
domicile
Q: Explain Renvoi!! Intrinsic Validty National law of the Parties can freely
A: Renvoi literally means a referring back. The problem arises when there is decedent stipulate as long as it is
a doubt as to whether a reference in our law (Such as art. 16 par 2) to a not contrary to law
foreign law (such as the national law of the deceased) Legal Capacity National law of the National law of the
1. is a reference to the internal law of said foreign law, OR decedent parties except if it
2. is a reference to the while of the foreign law, including its conflicts
involves real or personal
rules.
properties which is
In the latter case, if one state involved follows the Nationality theory, and governed by LEX SITUS
the other, the domiciliary theory, there is a possibility that the problem may
be referred back to the law of the first state.
Q: What is the rule of extraterritoriality?
A: Even if the act be done abroad, still if executed before Philippine
Example: In the case of Bellis v. Bellis, the court held that successional rights
Diplomatic and Consular officials, the solemnities of the Philippine laws
are determined by the national law of the testator, which in this case has US
shall be observed. The theory is that the act is being done within an
laws. If the US law does not provide for legitimes, then the illegitimate
extension of Philippine Territory.

 Furthermore, in the case of Quita v. CA, that once proven that
Q: Since Article 17 is silent as to what law should govern the intrinsic respondent was no longer a Filipino citizen when he obtained the
validity of contracts in general, what do we apply? divorce from petitioner, the ruling in Van Dorn would become
A: The prevailing rule in private international law is to consider the lex loci applicable and petitioner could very well lose her right to inherit from
voluntatis (the law of the place voluntarily selected) or the lex loci him.
intentionis (law of the place intended by the parties to the contract)  The CA failed to apply these doctrines in the case of Lorenze. Thus, the
ruling must be reversed.
Art. 18. In matters which are governed by the Code of Commerce and
special laws, their deficiency shall be supplied by the provisions of this 2. Chapter 2: Human Relations
Code.
Q: What is the relevance of these provisions?
Llorente v. CA A: These are all-encompassing provisions which serve as general guidelines
FACTS: to human relations. General in the sense that these provisions will not be
 Lorenzo and Paula were married in Camarines Sur. Before the outbreak applied to cases where more specific laws are provided. These provisions
of the Pacific War, Lorenzo departed for the US while Paula stayed in are also known as the lawyer’s bank for these are the laws to which a lawyer
their conjugal home in Camarines Sur. resorts should he run out of arguments.
 Lorenzo was then admitted to US citizenship. Upon the liberation of
the Philippines, Lorenzo was granted an accrued leave by the U.S. Navy a. Application
to visit his wife in the Philippines. When he went back, he discovered
that Paula was pregnant and was living in and having an adulterous De Tavera v. Phil. Tuberculosis Society
relationship with his brother. FACTS:
 Lorenzo returned to the US and filed for divorce with the Superior  Mita Pardo de Tavera filed a case against the respondents for
Court of the State of California. summarily removing her from her position, the lawful cause of which
 Lorenzo returned to the Philippines and married Alicia who had no she was not informed. Thereafter, Alberto Romulo was appointed to
knowledge o fthe first marriage even if they resided in the same town as the position.
Paula.  Defendants alleged that under the By-Laws of the Society, the position
 Before Lorenzo died, he executed a will which was pending before the is held at the pleasure of the Board and when the pleasure is exercised,
probate court. After his death, Paula filed with the same court a it only means that the incumbent has to vacate the same because her
petition for letters of administration over his estate in her favor. termed has expired.
 RTC found that the divorce decree granted to Lorenzo is void and
inapplicable in the Philippines, therefore the marriage he contracted ISSUE: Whether or not the removal was contrary to the CC provisions on
with Alicia is likewise void. human relations.
 CA: affirmed. HELD:
 NO. Petitioner cannot seek relief from the general provisions of the CC
ISSUE: Whether or not the divorce is valid. on Human Relations nor from the fundamental principles of the
HELD: Constitution on preservation of human dignity. While these provisions
 YES. In Van Dorn v. Romillo, Jr., the court held that owning to the present some basic principles that are to be observed for the rightful
nationality principle embodied in Article 15 of the CC, only Philippine relationship between human beings and the stability of social order,
nationals are covered by the policy against absolute divorces, the same these are merely guides for human conduct in the absence of specific
being considered contrary to the concept of public policy and morality. legal provisions and definite contractual stipulations.
In the same case, the court ruled that aliens may obtain divorces abroad,  In the case at bar, the Code of By-Laws of the Society contains a specific
provided they are valid according to their national law. provision governing the term of office of petitioner. The same
necessarily limits her rights under the CC and Constitution upon advantage of his position and of unlawfully refusing to give Curio his
acceptance of the appointment. clearance.
 Moreover, the act of the Board in declaring her position as vacant is not  Sandiganbayan acquitted Llorente but held him liable for civil damages.
only in accordance with the Code of By-Laws of the Society but also The Sandiganbayan ruled that Llorente was guilty of abusing his right
meets the exacting standards of honesty and good faith. The meeting of under Article 19 of the CC and as a public officer who caused damages
May 29, 1974, at which petitioner’s position was declared vacant, was to an aggrieved party under Art. 27. Llorente appealed to the SC.
called specifically to take up the unfinished business of the
Reorganizational Meeting of the Board of April 30, 1974. Hence, said ISSUE: Whether or not Llorente is liable for civil damages.
act cannot be said to impart a dishonest purpose or some moral HELD:
obliquity and conscious doing to wrong but rather emanates from the  YES. The acts of the petitioner were legal but it does not follow that his
desire of the Board to reorganize itself. acts were done in good faith. He had no valid reason to ‘go legal’ all of
a sudden with respect to Mr. Curio since he had cleared 3 employees
b. Duty to act with justice, observe honesty and good faith who were similarly circumstanced in that they all had pending
obligations when, their clearances were filed for consideration,
Art. 19. Every person must, in the exercise of his rights and in the warranting similar official action.
performance of his duties, act with justice, give everyone his due, and  It is no defense that the petitioner was motivated by no ill-will since the
observe honesty and good faith. facts speak for themselves. It is no defense either that he was, after all,
complying merely with legal procedures since he was not as strict with
Q: What is the consequence of not observing this article? respect to the 3 retiring other employees. There can be no other logical
A: In general, the violation of this article will result only in civil liability. In conclusion that he was acting unfairly, no more, no less, to Mr. Curio.
some cases, however, the same act may be the basis of criminal prosecution.  It is the essence of Article 19 of the CC, under which the petitioner was
made to pay damages, together with Article 27, that the performance of
Llorente v. Sandiganbayan duty be done with justice and good faith.
FACTS:
 The Philippine Coconut Authority (PCA) went through massive Q: Can a perfectly legal act be a source of civil liability?
reorganization. Some employees were required to apply for PCA A: Yes. The case of Lorente involved a perfectly legal act which became a
clearances in order to receive gratuity benefits. The rules provide that source of civil liability because it was done in bad faith. Furthermore, the
the clearance shall be signed by the PCA officers only when there is no Anti-graft and Corrupt Practice Act punishes evident bad faith of public
item appearing under “pending accountability” or after every item officials.
previously entered thereunder is fully settled. Settleemnt thereof shall
be written in red ink. Art. 20. Every person who, contrary to law, wilfully or negligently causes
 Despite this rule, it is the custom in the PCA for the responsible officer damage to another, shall indemnify the latter for the same.
to sign the clearances under the condition that any pending
accountability shall be offset by the gratuities which the terminated Art. 21. Any person who wilfully causes loss or injury to another in a
employee will receive later on. manner that is contrary to morals, good customs or public policy shall
 Mr. Llorente, the clearance officer, followed this practice in the past. compensate the latter for the damage.
But in one particular instance involving the clearance of Mr. Curio was
not cleared because of a pending accountability and was unable to seek Q: What does “contrary to law” in Art. 20 mean?
employment in other government offices. A: Contrary to law means that the act violated provisions of both the Civil
 After 3 attempts to get his clearance, Curio charged Llorent before the and Penal Codes.
Sandiganbayan. Curio accused Llorente of acting in bad faith, of taking
Q: Distinguish Art 20 from Art 21!!
Q: What if Vic simply said, “Joy, I shall marry you someday.” And Joy, not
ARTICLE 20 ARTICLE 21 wanting to miss this rare opportunity, set the wedding in two weeks time
1. The act is illegal. A law was 1. The act is not illegal. No law was and spent her life savings on the wedding preparations. Overwhelmed, Vic
violated. violated, but offended public backed out. Can this woman recover?
morals, good customs and public A: No she can’t. The law distinguishes between expenses in preparation for
policy. a concretely planned wedding, i.e. date definitely set by both parties etc.,
2. The act was done willfully or may 2. The act was done willfully. and the expenses incurred even if no concrete plans had been made. The law
have been negligently committed. allows recovery only for the concretely planned weddings for there, the
3. The intent of the offender is not 3. The intent of the offender is expenses were reasonably made.
important in determining liability. immaterial.
Q: What if Vic promised to marry Joy simply to seduce her?
c. Actions for breach of promise to marry A: Joy can recover damages, both actual and moral, because deceit is
involved in seduction.
Q: Vic and Joy became lovers. A month before their marriage, Felix
counseled Marvin against sealing a fate worse than death. The following Q: Vic dumps Joy. Joy, unable to accept her destiny, intentionally kicked the
morning, Vic hiked off to Montalban and broke Joy’s heart. Trying to hide bucket. Is Vic liable?
her grief, the ever poised Joy waited for Vic to finish squirming his way out A: No, Vic is not liable because two consenting adults are deemed to know
of their relationship and then thanked him for the time they had together. the risk of loving another and not being loved in return.
That afternoon however, Joy rushed to Judge Pimentel and filed a case for
actual and moral damages amounting to 2 Million Pesos. Can this poor heart Q: Vic and Joy are romantically r elated but have yet no plans of marriage.
broken woman recover damages? One day, they had casual sex. Can Joy recover moral damages?
A: It depends on the age of Joy. If she were still a minor, she can recover
A: Yes and No. We must distinguish between the recovery of moral moral damages. If she is already of legal age, she cannot recover.
damages from actual damages. The mere breach of a promise to marry will
not give rise to moral damages. The law considers such premarital relations Q: What if in the previous example, Joy got pregnant. Can she recover actual
as voluntarily chosen by the two consenting adults. After all, all is fair in hospital expenses?
love. However, if Joyce had incurred actual expenses, i.e., gowns, catering, A: Yes, but Dean says that the hospital bill, under the new rule, will be split
invitations, etc., in preparation of the wedding which had been concretely 50% on both parties.
planned, then such actual damages may be recovered. In the case of
Wassmer v. Velez, the SC allowed the bride-to-be to recover the expenses for Note: (Under the older version of this reviewer) It says that the girl can
the wedding. The basis for the damages was not for the breach of the recover the amount equal to the income lost during pregnancy and
promise but the actual expenditures. childbirth. The Dean however, didn’t mention this in class. According to the
Q: Vic hated Joy’s guts. He devised a plan to humiliate her. He awaited until old reviewer, actual damages include hospitalization and loss of earning
she was near menopause and proposed to marry her. On the day of their capacity.
wedding, Vic sent Joyce, who was waiting at the altar, a letter saying,
“Dream On.” Can Joyce recover moral and actual damages? Q: Joy is the breadwinner in her family. Because of their break up, she kills
A: Yes. Where a man deliberately fails to appear at the wedding in order to herself. Can her parents sue Vic for loss of income?
humiliate the woman inflicts irreparable injury to her honor. She can recover A: No they cannot. The law distinguishes between income lost by the
both moral and actual damages. deceived party due to pregnancy and income lost by the persons dependent
(e.g. family) on the deceived party due to her suicide. Income lost by the
dependents is not recoverable.

wedding by looking for pigs and chickens, inviting friends and relatives
Note: Ask Dean if the answer is correct. and contracting sponsors.
Q: Vic and Joy are engaged. One month before the wedding, naughty little ISSUE: Whether or not Article 21 is applicable and award of damages is
Joy had an affair with another man. She got pregnant but kept this from Vic. proper.
Can this wretched woeful man recover? HELD:
A: Yes, Vic can recover because in keeping her pregnancy a secret, Joy acted  YES. Article 21 is designed to expand the concept of torts or quasi-
with deception. But according to the old reviewer (older version), if there delict in this jurisdiction by granting adequate legal remedy for the
was no deception, as in Joy didn’t know that she was pregnant, she would untold number of moral wrongs which is impossible for human
not be liable. foresight to specifically enumerate and punish in the statue books.
 In the light of the above laudable purpose of Article 21, the court held
Bunag v. CA that where a man’s promise to marry in fact the proximate cause of the
FACTS: acceptance of his love by a woman and his representation to fulfill that
 A Complaint for damages for alleged breach of promise to marry was promise thereafter becomes the proximate cause of the giving of herself
filed by Zenaida Cirilo against Conrado Bunag Jr. and his father. On unto him in a sexual congress, proof that he had, in reality, no intention
August 20, 1983, on a finding that petitioner had forcibly abducted and of marrying her and that the promise was only a subtle scheme or
raped Zenaida, rendered a decision ordering Bunag to pay moral, deceptive device to entice or inveigle her to accept him and to obtain
exemplary and temperate damages. her consent to the sexual act, could justify the award of damages
 CA: affirmed decsion. pursuant to Article 21 not because of such promise to marry but because
 Bunag contends that both TC and CA failed to take into consideration of the fraud and deceit behind it and the willful injury to her honor and
the alleged fact that he and Zenaida had agreed to marry, and that there reputation which followed thereafter. It is essential, however, that such
was no case of forcible abduction with rape, but one of simple injury should have been committed in a manner contrary to morals,
elopement and agreement to marry. good customs, or public policy.
 Bunag further asserts that since the action involves a breach of promise
to marry, the TC erred in awarding damages.
d. Unjust enrichment at the expense of others
ISSUE: Whether or not award of damages is proper.
HELD: Art. 23. Even when an act or event causing damage to another's property
 NO. In this jurisdiction, we adhere to the time-honored rule that an was not due to the fault or negligence of the defendant, the latter shall be
action for breach of promise to marry has no standing in the civil law, liable for indemnity if through the act or event he was benefited.
apart from the right to recover money or property advanced by the
plaintiff upon the faith of such promise. Generally, therefore, a breach Q: What is the reason for this article?
of promise to marry per se is not actionable, except where the plaintiff A: Unless the benefited party indemnifies the other unjust enrichment will
has actually incurred expenses for the weeding and the necessary occur.
incidents thereof.
Give an example:
Baksh v. CA Richard’s cows were grazing. Suddenly a storm flooded the valley. The cows
FACTS: ran up the hill where Robert planted vegetables. Robert’s crops were
 This involves an Iranian who promised to marry a barrio lass from destroyed. Although Richard was not at fault, she benefited from what
Pangasinan. The parents of the girl made some preparations for the happened. Richard should indemnify Robert.
Q: Does the act have to be illegal?

A: No. Q: Is a public figures life always subject to public scrutiny?
A: No. Prying into the purely private lives of public figures may be the basis
Art. 24. In all contractual, property or other relations, when one of the of an action under this provision.
parties is at a disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age or other handicap, the Q: What sort of action may be filed under this provision?
courts must be vigilant for his protection. A: If the act is not yet accomplished, an action for injunction may be
instituted. If the damage has already been done, an action for damages may
Art. 25. Thoughtless extravagance in expenses for pleasure or display be instituted.
during a period of acute public want or emergency may be stopped by
order of the courts at the instance of any government or private charitable f. Liability of Public Officers
institution.
Art. 27. Any person suffering material or moral loss because a public
Q: What kind of court order is contemplated under this article? servant or employee refuses or neglects, without just cause, to perform his
A: Writ of Injunction official duty may file an action for damages and other relief against he
latter, without prejudice to any disciplinary administrative action that
Q: Who may file the action under this article? may be taken.
A: The government or a private charitable institution may file the action.
Under General Order No. 15, the action can also be filed by any private Art. 32. Any public officer or employee, or any private individual, who
individual. directly or indirectly obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of another person shall
Q: Is article 25 a valid limitation on property? be liable to the latter for damages:
A: Yes, under this article, ostentatious display property may be curtailed (1) Freedom of religion;
during times of emergency or acute public want. (2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
e. Rights to personal dignity and privacy (4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
Art. 26. Every person shall respect the dignity, personality, privacy and (6) The right against deprivation of property without due process of law;
peace of mind of his neighbors and other persons. The following and (7) The right to a just compensation when private property is taken for
similar acts, though they may not constitute a criminal offense, shall public use;
produce a cause of action for damages, prevention and other relief: (8) The right to the equal protection of the laws;
(1) Prying into the privacy of another's residence: (9) The right to be secure in one's person, house, papers, and effects
(2) Meddling with or disturbing the private life or family relations of against unreasonable searches and seizures;
another; (10) The liberty of abode and of changing the same;
(3) Intriguing to cause another to be alienated from his friends; (11) The privacy of communication and correspondence;
(4) Vexing or humiliating another on account of his religious beliefs, (12) The right to become a member of associations or societies for
lowly station in life, place of birth, physical defect, or other personal purposes not contrary to law;
condition. (13) The right to take part in a peaceable assembly to petition the
government for redress of grievances;
Q: If x’s picture is placed in the newspaper, is there an intrusion of privacy? (14) The right to be free from involuntary servitude in any form;
A: It depends. If X were a private individual, there will be an invasion of (15) The right of the accused against excessive bail;
privacy. If X were a government official or a movie star, there won’t be. (16) The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a

speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness in his behalf; Q: What should be the nature of the function of the public officer in order
(17) Freedom from being compelled to be a witness against one's self, or that Art. 27 would apply?
from being forced to confess guilt, or from being induced by a promise of A: The public officer must be exercising ministerial functions. (e.g. register
immunity or reward to make such confession, except when the person of deeds) Art. 27 does not apply to government officials performing
confessing becomes a State witness; discretionary functions.
(18) Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute which Q: May judges be held civilly liable for damages when they render an
has not been judicially declared unconstitutional; and adverse judgment?
(19) Freedom of access to the courts. A: No, because judges perform discretionary functions.
In any of the cases referred to in this article, whether or not the
defendant's act or omission constitutes a criminal offense, the aggrieved Q: How can judges be held civilly liable when they act with abuse of
party has a right to commence an entirely separate and distinct civil action discretion?
for damages, and for other relief. Such civil action shall proceed
A: File an action for Certiorari. Remember that one cannot file an action for
independently of any criminal prosecution (if the latter be instituted), and
damages against a judge, but under the Revised Penal Code, a judge may be
mat be proved by a preponderance of evidence.
held criminally responsible if he renders an unjust judgment.
The indemnity shall include moral damages. Exemplary damages may
also be adjudicated.
Q: What other government officials are immune from civil actions?
The responsibility herein set forth is not demandable from a judge unless
A: Officers of APT or PCGG. The law that created them specifically states
his act or omission constitutes a violation of the Penal Code or other penal
statute. that if, in the exercise of their function, said officers commit an act which
will ordinarily be the basis of civil damages, they shall be exempt from such
Art. 34. When a member of a city or municipal police force refuses or fails liability, although they are not immune form criminal prosecution. (They
to render aid or protection to any person in case of danger to life or may still be held liable under article 19, 20, and 21 under their personal
property, such peace officer shall be primarily liable for damages, and the capacity).
city or municipality shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of any criminal Q: What are the requisites for an action under Art. 27?
proceedings, and a preponderance of evidence shall suffice to support
such action. 1. That the defendant can be a public official charged with the
performance of official duties
Q: Are public officers liable under the Civil Code? 2. That there be a violation of an official duty in favor of an individual
A: Yes, Under Art. 27, 32, and 34. 3. That there be wilfullness or negligence in the violation of such
official duty; and
Q: Can they be held liable under Arts. 19, 20 and 21? 4. That there be an injury to the individual
A: Yes, but under these provisions, they will be held liable not in their
character as public officers but only as private individuals. Thus their Q; When is the defendant exempt from liability under Art. 27?
liability under Articles 19, 20 and 21 will not pass to the government; it is
merely a personal responsibility. There is no liability under Art. 27 if the non performance of official duty is
with just cause, such as impossibility of performance and contributory
Q: What does Article 27 refer to? negligence of the plaintiff
A: It refers to a public officer’s liability for NON FEASANCE, which means
that the officer refuses or neglects to do his official duties. Q: To whom does Art 32 apply?

Tabuena v. Sandiganbayan
It applies to both public officers or employees and private individuals who FACTS:
violate or obstruct any of the rights mentioned in the provision. It, however,  Luis Tabuena and Gerardo Dabao, both public officers, being then the
does not apply to judges unless they render an unjust judgment in violation General Manger and Assistant General Manager, respectively of Manila
of the Revised Penal Code. International Airport Authority (MIAA), they being the only ones
authorized to make withdrawals.
Aberca v. Ver  President Marcos instructed Tabuena over the phone to pay directly to
FACTS: the president’s office and in cash what the MIAA owes PNCC. A week
 Petitioners filed an action for damages against General Ver and later, Tabuena received from the private secretary of Marcos a
members of the Task Force Makabansa for alleged illegal searches and Presidential Memorandum reiterating in black and white such verbal
seizures conducted by the Task Force and other violations of their rights instruction.
and liberties guaranteed under the Constitution.  In obedience to Marcos’ instruction and memorandum, Tabuena with
 General Ver ordered the task force to conduct pre-emptive strikes the help of Dbao and Peralta, caused the release of P55M of MIAA
against known communist-terrorist (CT) underground houses in view funds by means of 3 withdrawals.
of increasing reports about CT plans to sow disturbances in Metro  The disbursement was, as described by Tabuena and Peralta
Manila. themselves, out of the ordinary” and “not based on the normal
 Plaintiffs allege, among others, that complying with said order, procedure.” Not only were there no vouchers prepared to support the
elements of the task force raided several places, employing in most disbursement, the P55M was paid in cold cash. Also, no PNCC receipt
cases defectively issued judicial search warrants; that during these for the P55M was presented.
raids, certain member of the raiding party confiscated purely personal  A case was filed in Sandiganbayan against the petitioners.
items belonging to them; arrested without proper warrants issued by  The defense of Tabuena and Prealta was that they acted in good faith.
the courts. Tabuena claimed that he was merely complying with the Marcos
memorandum which ordered him to forward immediately to the Office
ISSUE: Whether or not defendants are liable. of the President P55M in cash as partial payment of MIAAs obligations
HELD: to PNCC and that he was of the belief that MIAA indeed had liabilities
 YES. The fact that respondents as members of the AFP were merely to PNCC.
responding to their duty cannot be construed as a blanket license or a
roving commission untrammeled by any constitutional restraint. The ISSUE:
Constitution remains the supreme law of the land to which all officials,  Whether or not the defense of good faith is applicable.
high or low, civilian or military, owe obedience and allegiance at all  Whether or not petitioners are liable.
times.
 Article 32 of the CC which renders any public officer or employee or HELD:
any private individual liable in damages for violating the Constitutional  YES. As a recipient of a directive coming from the highest official of the
rights and liberties of another, as enumerated therein, does not exempt land no less, good faith should be read on a subordinate government
the respondents from responsibility. Only judges are excluded from official’s compliance, without hesitation nor any question with said
liability under the said article, provided their acts or omission do not order. Tabuena had no other choice but to make the withdrawals, for
constitute a violation of the Penal Code or other penal statue. that was what the Marcos Memorandum required him to do. He could
 Military authorities are not restrained from pursuing their assigned task not be faulted if he had to obey and strictly comply with the
or carrying out their mission with vigor but are required to observe presidential directive, and to argue otherwise is something easier said
constitutional and legal safeguards. than done. Marcos was undeniably Tabuena’s superior – the former

being then the President who unquestionably exercised control over UPON MOTION OF THE DEFENDANT, THE COURT MAY REQUIRE THE PLAINTIFF TO
government agencies such as MIAA and PNCC. FILE A BOND TO ANSWER FOR DAMAGES IN CASE THE COMPLAINT SHOULD BE
 Even if the order is illegal if it is patently legal and the subordinate is FOUND TO BE MALICIOUS.
not aware of its illegality, the subordinate is not aware of its illegality, IF IN A CRIMINAL CASE THE JUDGMENT OF ACQUITTAL IS BASED UPON
the subordinate is not liable, for then there would only be a mistake of REASONABLE DOUBT, THE COURT SHALL SO DECLARE. IN THE ABSENCE OF ANY
fact committed in good faith. DECLARATION TO THAT EFFECT, IT MAY BE INFERRED FROM THE TEXT OF THE
DECISION WHETHER OR NOT THE ACQUITTAL IS DUE TO THAT GROUND.
 YES. The subordinate who, in following an order of a superior, failed to
observe all auditing procedures of disbursement, cannot escape Q: What happens when one is prosecuted for a criminal charge?
responsibility for such omission but where he acted in good faith, his
liability should only be administrative or civil in nature, nor criminal. When a person is criminally prosecuted, he is either acquitted or convicted.
If he is convicted, in the absence of any independent civil action, the criminal
Q: To whom does Art 34 apply? conviction will also be the basis for his civil liability.
It applies to members of city or municipal police force who refuse or fail to Q: When a person is acquitted for the crime charged, may he still be held
render aid or protection to any person in case of danger to life or property liable for civil damages?
Q: What is the nature of liability of the police officer and that of the Yes. He is still liable for civil damages if the reason for acquittal is that his
municipal corporation under Art. 34? guilt has not been proved beyond reasonable doubt.
The liability of the police officer shall be primary while that of the municipal Q: When is the acquitted person free from civil liability?
corporation shall be subsidiary
1. His acquittal is grounded on the court’s finding that he did not
Q: Does Art 34 still apply considering the present structure of the police commit the crime
force? 2. The action has already prescribed
3. There are justifying circumstances except in the case of avoidance
No, because at present, the police force is under the control of the national of greater evil or injury
government. There is no city or municipal peace officers anymore. Local
governments only have administrative supervision over police officers. h. Independent Civil Actions and Prejudicial Questions
Q: May a policeman be held personally liable under Art 34?

Art. 30. When a separate civil action is brought to demand civil liability
Yes. Only the subsidiary liability of the city or municipality may not be arising from a criminal offense, and no criminal proceedings are instituted
invoked under the present structure of the police force. during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of.
g. Damages despite acquittal in criminal case Art. 31. When the civil action is based on an obligation not arising from
the act or omission complained of as a felony, such civil action may
ART. 29. WHEN THE ACCUSED IN A CRIMINAL PROSECUTION IS ACQUITTED ON proceed independently of the criminal proceedings and regardless of the
THE GROUND THAT HIS GUILT HAS NOT BEEN PROVED BEYOND REASONABLE result of the latter.
DOUBT, A CIVIL ACTION FOR DAMAGES FOR THE SAME ACT OR OMISSION MAY BE
INSTITUTED. SUCH ACTION REQUIRES ONLY A PREPONDERANCE OF EVIDENCE.
Art. 32. Any public officer or employee, or any private individual, who (15) The right of the accused against excessive bail;
directly or indirectly obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of another person shall (16) The right of the accused to be heard by himself and counsel,
be liable to the latter for damages: to be informed of the nature and cause of the accusation against
him, to have a speedy and public trial, to meet the witnesses face
(1) Freedom of religion; to face, and to have compulsory process to secure the attendance
of witness in his behalf;
(2) Freedom of speech;
(17) Freedom from being compelled to be a witness against one's
(3) Freedom to write for the press or to maintain a periodical self, or from being forced to confess guilt, or from being induced
publication; by a promise of immunity or reward to make such confession,
except when the person confessing becomes a State witness;
(4) Freedom from arbitrary or illegal detention;
(18) Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in
(5) Freedom of suffrage;
accordance with a statute which has not been judicially declared
unconstitutional; and
(6) The right against deprivation of property without due process
of law;
(19) Freedom of access to the courts.
(7) The right to a just compensation when private property is

In any of the cases referred to in this article, whether or not the
taken for public use;
defendant's act or omission constitutes a criminal offense, the aggrieved
party has a right to commence an entirely separate and distinct civil action
(8) The right to the equal protection of the laws; for damages, and for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be instituted), and
(9) The right to be secure in one's person, house, papers, and mat be proved by a preponderance of evidence.
effects against unreasonable searches and seizures;
The indemnity shall include moral damages. Exemplary damages may
(10) The liberty of abode and of changing the same; also be adjudicated.
(11) The privacy of communication and correspondence; The responsibility herein set forth is not demandable from a judge unless
his act or omission constitutes a violation of the Penal Code or other penal
statute.
(12) The right to become a member of associations or societies for
purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the

government for redress of grievances; Art. 33. In cases of defamation, fraud, and physical injuries a civil action
for damages, entirely separate and distinct from the criminal action, may
be brought by the injured party. Such civil action shall proceed
(14) The right to be free from involuntary servitude in any form;

independently of the criminal prosecution, and shall require only a RULE: Under the Rules of Court, when a criminal action is instituted, the
preponderance of evidence. civil action for recovery of indemnity arising from the offense charged is
impliedly instituted with the criminal action
Art. 34. When a member of a city or municipal police force refuses or fails EXCEPTION: unless the offended party:
to render aid or protection to any person in case of danger to life or 1. Expressly waives the civil action or
property, such peace officer shall be primarily liable for damages, and the 2. Reserves his right to institute it separately
city or municipality shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of any criminal After the criminal action has been commenced, the civil action cannot be
proceedings, and a preponderance of evidence shall suffice to support instituted until final judgment has been rendered in the criminal action. If,
such action. on the other hand, a civil action is filed ahead of the criminal action, under
the Rules, the subsequent filing of a criminal action shall:
Art. 35. When a person, claiming to be injured by a criminal offense, 1. Suspend the civil action until final judgment in the criminal
charges another with the same, for which no independent civil action is proceeding has been rendered or
granted in this Code or any special law, but the justice of the peace finds 2. It may cause the consolidation of the civil action to the criminal
no reasonable grounds to believe that a crime has been committed, or the action
prosecuting attorney refuses or fails to institute criminal proceedings, the
complaint may bring a civil action for damages against the alleged The Rule however is different in cases of independent civil actions. In such
offender. Such civil action may be supported by a preponderance of cases, the subsequent filing of a criminal action will NOT suspend the
evidence. Upon the defendant's motion, the court may require the proceedings in the civil case. Also, a civil action entirely separate and
plaintiff to file a bond to indemnify the defendant in case the complaint distinct from the criminal action may be brought by the injured party during
should be found to be malicious. the pendency of the criminal case
If during the pendency of the civil action, an information should be Q: When an action for criminal prosecution is instituted according to the
presented by the prosecuting attorney, the civil action shall be suspended rules, it will include the civil action. In this case, does one still have to file a
until the termination of the criminal proceedings. reservation?
Yes
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such Q: When is the independence of the civil action preserved?
fault or negligence, if there is no pre-existing contractual relation between When the civil action is instituted ahead of the criminal case. In this case,
the parties, is called a quasi-delict and is governed by the provisions of when a criminal action is later filed, the general rule in criminal procedure
this Chapter. (1902a) which suspends the civil case upon filing of a criminal case will not be
followed because an independent civil action may proceed independently of
Art. 36. Pre-judicial questions which must be decided before any criminal the criminal case.
prosecution may be instituted or may proceed, shall be governed by rules
of court which the Supreme Court shall promulgate and which shall not On the other hand, when the criminal action is instituted ahead, it will
be in conflict with the provisions of this Code. include the civil action unless one files a reservation. In the absence of a
reservation, then the civil suit is deemed to be filed with the criminal action.
Q: What are independent civil actions?
Q: Under what provisions of law may an independent civil action be
They are civil actions that are tried independently of the criminal action instituted?

1. Art 31 – when the civil action is not based on the felony complained proceed with the criminal case to determine whether the accused is guilty or
of innocent
2. Art 32 – violation of the bill of rights
3. Art 33 – defamation, fraud, physical injuries Q: Give an example of a pre-judicial question
4. Art 34 – failure of the member of the police force to render aid and In a criminal action for theft, if there is a civil case where the accused claims
protection ownership of the property he allegedly stole, the issue of ownership of the
5. Art 2176 – quasi-delicts thing taken is a pre-judicial question
Q: What is a pre-judicial question? Ching v. CA

A pre-judicial question is one raised in a criminal case by the accused, FACTS:
which is of such nature that, if decided favorably to the accused in a civil  Alfredo Ching was charged with 4 counts of estafa punishable under
case, will cause the supposed crime to disappear. the RPC in relation to PD 115, otherwise known as trust receipts law.
 Ching executed a trust receipt agreement in favor of Allied Banking
It is not the same case but two different scenarios. However the civil case is Corporation. Under the terms of which Ching agreed to sell the goods
intimately related or determinative of the criminal case’s issue. Note, that for cash with the express obligation to remit to Allied the proceeds of
the jurisdiction of the two cases are lodged on different courts the sale and/or to turn over the goods, if not sold, on demand.
However, Ching misappropriated and converted to his own personal
Q: What are the requisites for a pre-judicial question? use and benefit the goods and/or proceeds of the sale thereof, and
1. The issue in the civil case must be determinative of the issue in the despite repeated demands, failed to remit the proceeds of the sale of the
criminal case goods to Allied.
2. Jurisdiction to try said question must be lodged in another tribunal  On February 4, 1992, a case was filed against Ching by Allied.
ie, civil court.  On March 05, 1992, Ching filed a case for declaration of nullity of
documents and for damages. Furthermore, Ching filed for the
Q: What are the elements of the prejudical question under Rule 111, Sec 5 of suspension of the criminal proceedings on the ground of prejudicial
the Rules of Court? question in a civil action.
1. The civil action involves an issue similar or intimately related to the
issue raised in the criminal action ISSUE: Whether or not the declaration of nullity of the trust receipts in
2. The resolution o such issue determines whether or not the criminal question is a prejudicial question to the
action may proceed pending estafa case.
HELD:
Q: Between the civil case and criminal case, which should be filed first?  NO. A civil action for declaration of nullity of documents and for
It does not matter which between the civil and criminal case was filed ahead damages does not constitute a prejudicial question to a criminal case for
as long as there are two cases pending: one involving criminal and the other estafa where the alleged prejudicial question in the civil case does not
involving civil and both cases are interrelated so much so that the decision determine the guilt or innocence of the accused in the criminal action.
in the civil action is determinative of the guilt or innocence of the accused in Thus, even on the assumption that documents are declared null, it does
the criminal cases. not ipso facto follow that such declaration of nullity shall exonerate the
accused from criminal prosecution and liability. Accordingly, the
Q: Do they have to be pending in two courts? prosecution may adduce evidence to prove the criminal liability of he
accused for estafa, specifically under Article 315 of the RPC.
As long as there are two cases, one involving a criminal case and the other  A prejudicial question is one that arises in a case the resolution of which
involving a civil case, the civil case must first be resolved before one can is a logical antecedent of the issue involved therein, and the cognizance

of this pertains to another tribunal. It comes into play generally in a
situation where a civil action and a criminal action are both pending ISSUE: Whether or not there was grave abuse of discretion in refusing to
and thee exists in the former an issue which must be preemptively suspend the legal proceedings despite the pendency of the civil case for
resolved before the criminal action may proceed, because howsoever declaration of nullity of marriage.
the issues raised in the civil action is resoulved would be determinative HELD:
of the guilt of the accused in the criminal case.  NO. The outcome of the civil case for annulment of Arthur’s marriage
 Requisites of prejudicial questions: 1) civil action involves an issue to Liliana had no bearing upon the determination of his innocence or
similar or intimately related to the issue raised in the criminal action; guilt in the criminal case for bigamy, because all that is required for the
and 2) the resolution of such issue determines whether or not the charge of bigamy to prosper is that the first marriage be subsisting at
criminal action may proceed. the time the second marriage is contracted.
 The rationale behind the principle suspending a criminal case in view of
Te v. CA a prejudicial question is to avoid two conflicting decisions.
FACTS:  Neither did the filing of said civil case for annulment necessitate the
 Arthur Te and Liliana Caho were married in civil rites on September 14, suspension of the administrative proceedings before the PRC Board.
1988. They did not live together after the marriage although they would The concept of prejudicial question involves a civil and a criminal case.
meet each other regularly. Not long after Liliana gave birth to a girl on The court has previously ruled that there is no prejudicial question
April 21, 1989, Arthur stopped visiting her. where one case is administrative and the other is civil.
 On May 20, 1990, while his marriage with Liliana was subsisting,  Furthermore, Section 32 of the Rules and Regulations Governing the
Arthur contracted a second marriage with a certain Julieta Santella. Regulation and Practice of the PRC Board expressly provides that the
 On the basis of a comlaint-affidavit filed by Liliana sometime in June administrative proceedings before it shall not be suspended
1990, when she learned about Arthur’s marriage to Julieta, an notwithstanding the existence of a criminal and/or civil case against
information charging Arthur with bigamy was filed with the RTC of Arthur involving the same facts as the administrative case. It must also
Quezon City on August 9, 1990. be noted that the allegations in the administrative complaint before the
 Meanwhile, on July 20, 1990, Arthur filed in the RTC an action for the PRC Board are not confined to the issue of the alleged bigamous
annulment of his marriage to Liliana on the ground that he was forced marriage contracted by Arthur and Julieta. Arthur is also charged with
to marry her. He alleged that Liliana concealed her pregnancy by immoral conduct for continued failure to perform his obligations as
another man at the time of their marriage and that she was husband to Liliana and as father to their child, and for cohabiting with
psychologically incapacitated to perform her essential marital Julieta without the benefit of marriage.
obligations.
 On November 8, 1990, Liliana also filed with the PRC an administrative Torres v. Garchitorena
case against Arthur and Julieta for the revocation of their respective FACTS: This involves a land case. (not at all related to persons and family
engineering licenses on the ground that they committed acts of law)
immorality by living together and subsequently marrying each other HELD: A prejudicial question is understood in law as that which must
despite their knowledge that at the time of their marriage Arthur was precede the criminal action and which requires a decision before a final
already married to Liliana. judgment can be rendered in the criminal action with which said question is
 Arthur filed with Board of Civil Engineering of the PRC, where the closely connected.
administrative case for the revocation of his engineering license was
pending, a motion to suspend the proceedings therein in view of the B. Persons
pendency of the civil case for annulment of his marriage to Liliana and 1. Chapter 1: General Provisions
the criminal case for bigamy.
 PRC denied the motion.

Note that the Civil Code provisions on Title II on persons have NOT been 1. If the child had an intra-uterine life of at least 7 months, it shall be
repealed by the Family Code considered born if it is alive at the time it is completely delivered
from the mother’s womb
Q: What are the two classes of persons? 2. If the child had an intra-uterine life of less than 7 months, it is
Persons can either be natural or juridical. A natural person is created deemed born if it lives for at least 24 hours after its complete
naturally. It is produced naturally and can feel, smell, etc. One who delivery from the maternal womb. (resolutory condition)
understands consequences of your actions. A juridical person is created
artificially. Q: When does capacity to act being?
RULE: Stays from the time you are emancipated. Only upon emancipation
Natural persons does one become qualified for all acts of civil life and therefore one can enter
a. Juridical Capacity v. Capacity to Act into legal transactions without the presence of a guardian. Emancipation is
the time that one can enter into legal obligations and be bound on the basis
Art. 37. Juridical capacity, which is the fitness to be the subject of legal of these obligations which he or she has entered into.
relations, is inherent in every natural person and is lost only through
death. Capacity to act, which is the power to do acts with legal effect, is EXCEPTIONS: there are rare exceptions. One is: minor is qualified to do
acquired and may be lost. certain legal acts like at the age of seven, one can now open and manage a
bank account by himself.
Definitions:
Juridical Capacity Capacity to Act Q: When does juridical capacity end?
The fitness to be subject to legal The power to do acts with legal Juridical Capacity ends at the time of death. Juridical capacity really exists
relations effect from birth to death. Thus one can be the subject of legal relations from the
Passive attribute It is active because it is now the moment he or she is born except in certain cases, but juridical capacity only
person who is acting, the person terminates at the moment of death. Juridical capacity is not affected by
now entering into legal relations, the insanity, imbecility or any of the restrictions because it exists as long as one
person actively involved whether in is capable of being subject of legal relations. After death, one cannot be
the exercise of a right or the qualified to become the subject of legal relations except for one’s properties
enforcement of an obligation which will have to be determined and passed on in accordance with the
Without the help of others rules of succession. Rules of succession, however, cover only one’s
Can benefit from certain legal properties and not one’s person.
transactions entered into by others
(succession, support etc) Q: When does capacity to act end?
NOT donations since this requires Capacity to act also ends at the moment of death
acceptance of the donee
SUMMARY:
Q: When does juridical capacity begin? Juridical Capacity Capacity to Act
RULE: it starts with the birth of a natural person. It is something inherent. Start Birth Emancipation
End Death Death
EXCEPTION: in the case of a fetus which has not been born. The fetus can be
considered as being possessed of juridical capacity under certain conditions b. Restrictions and Modifications on Capacity to Act
which are favorable to it subject to the compliance of said conditions, which
are:

Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute, A prodigal is restricted or prohibited from managing his own property. This
prodigality and civil interdiction are mere restrictions on capacity to act, is the reason why a prodigal can be the subject of guardianship. But a
and do not exempt the incapacitated person from certain obligations, as guardian may be appointed only for purposes of managing his own
when the latter arise from his acts or from property relations, such as properties and NOT with respect to his person. Thus, a prodigal can enter
easements. into ordinary contracts, however, when it involves his properties, the right
of administration can be denied and can be transferred to another person.
Q: Can capacity to act terminate earlier than death?
No. Capacity to act terminates only at the moment of death but it can be Q: What is civil interdiction?
restricted or limited Civil Interdiction is an accessory penalty given to a criminal punishment by
imprisonment for 12 years and 1 day or more (Art 41, RPC)
Q: What are examples of restrictions to capacity to act?
According to At 38, they are: (MIIDmPCi) Q: How does civil interdiction restrict one’s capacity to act?
Minority A person sentenced to civil interdiction is deprived of the following rights:
Insanity 1. Parental or marital authority
Imbecility 2. To dispose of his property by an act inter vivos (he cannot donate
Deaf-Mute state but he can make a will because the latter is a disposition mortis
Prodigality causa)
Civil Interdiction 3. To manage his own properties
4. To be the guardian of the person and property of a ward
Q: How does minority, insanity, or imbecility restricts one’s capacity to act?
In the case of minority (below 18), insanity (where a person’s mind is sick), NOTE: Insanity, imbecility and minority are far beyond restrictions because
or imbecility (where a person thinks like a small child), one cannot enter into they cover all acts with legal effect unless one is represented by a guardian.
any kind of legal relations unless one is represented by a guardian. The other types of restrictions, ie, being a deaf-mute, prodigality and civil
interdiction, would only restrict one as regards certain types of legal
Q: How does being a deaf-mute restricts one’s capacity to act? relations, specifically the management of properties but not with respect to
RULE: it does not restrict one from any legal transaction. Though he cannot persons.
speak and hear, his mental faculties are fine and so he can enter into
contracts Q: What are the effects of the restrictions?
1. They do not extinguish capacity to act. They merely restrict or limit
EXCEPTION: being a witness to a will. There are instances where one has to it. Thus, an insane person’s contract is merely voidable, not void.
read the contract or interpret the contract repeatedly (when there is a 2. The incapacitated person is not exempt from certain obligations
requirement of “able to read and write”) arising from his acts, e.g., if he commits a crime his property may
still be held liable.
Q: What is prodigality?
Prodigality is the state of a person who wants to squander money. Dean Del: Art. 39. The following circumstances, among others, modify or limit
you are angry at money and angry with properties, you always want to capacity to act: age, insanity, imbecility, the state of being a deaf-mute,
spend them and squander them away. penalty, prodigality, family relations, alienage, absence, insolvency and
trusteeship. The consequences of these circumstances are governed in this
Q: How does prodigality restrict one’s capacity to act? Code, other codes, the Rules of Court, and in special laws. Capacity to act
is not limited on account of religious belief or political opinion.

A married woman, twenty-one years of age or over, is qualified
Art. 40. Birth determines personality; but the conceived child shall be
for all acts of civil life, except in cases specified by law. (n) considered born for all purposes that are favorable to it, provided it be
Q: What is the difference between restrictions and born later with the conditions specified in the following article. (29a)
modifications?
Notice that the restrictions speak of minority, while the modification speaks Art. 41. For civil purposes, the fetus is considered born if it is alive at the
of age. This is because restrictions, unless you are talking only of restrictions time it is completely delivered from the mother's womb. However, if the
to properties, is a GENERAL PROHIBITION for one to enter into legal fetus had an intra-uterine life of less than seven months, it is not deemed
transactions regardless of what kind of legal transaction it is (except in the born if it dies within twenty-four hours after its complete delivery from
case of prodigality and civil interdiction) the maternal womb. (30a)
When one speaks of modifications, on the other hand, it is not an absolute Art. 42. Civil personality is extinguished by death.
prohibition because it varies depending on (1) who you are dealing with, (2)
what you are entering into, and (3) who are the parties involved and (4) the The effect of death upon the rights and obligations of the deceased is
circumstances under which the contract is being entered into. This is why for determined by law, by contract and by will. (32a)
purposes of modifications one doesn’t speak of minority but of age because
the age of a person can modify his being able to act with legal effect. For
NOTE: Sometimes it may be necessary to determine when the person died.
example, at the age of 23 one can enter into a marriage upon obtaining
You have two rules of survivorship. One is provided by the Civil Code and
parental advice. In other words, there are additional requirements imposed
the other is in the Rules of Court.
which varies from person to person, from age to age, or depending on the
kind of legal transaction one is entering into. The descriptions of
b. Rules on survivorship
modifications are more or less general as against those which cover
restrictions.
Art. 43. If there is a doubt, as between two or more persons who are called
to succeed each other, as to which of them died first, whoever alleges the
Q: Give examples where family relationships can modify one’s capacity to death of one prior to the other, shall prove the same; in the absence of
act proof, it is presumed that they died at the same time and there shall be no
First degree cousins are prohibited from marrying each other; or one may be transmission of rights from one to the other.
prohibited from sitting in the Board of Election Inspectors because of his
relationship with a particular candidate Presumptions on Survivorship under the Revised Rules of Court (Rule 131,
Sec 3 (jj))
Q: Give examples where alienage can modify one’s capacity to act?
An alien cannot buy real estate. He can only own a corporation until 40%, (JJ) THAT EXCEPT FOR PURPOSES OF SUCCESSION, WHEN TWO
30%, or 25% depending on the industry the corporation is engaged in. PERSONS PERISH IN THE SAME CALAMITY, SUCH AS WRECK, BATTLE,
OR CONFLAGRATION, AND IT IS NOT SHOWN WHO DIED FIRST, AND
2. Chapter 2: Natural Persons THERE ARE NO PARTICULAR CIRCUMSTANCES FROM WHICH IT CAN BE
INFERRED, THE SURVIVORSHIP IS DETERMINED FROM THE
a. When personality begins and ends PROBABILITIES RESULTING FROM THE STRENGTH AND THE AGE OF THE
SEXES, ACCORDING TO THE FOLLOWING RULES:
1. IF BOTH WERE UNDER THE AGE OF FIFTEEN YEARS, THE
OLDER IS DEEMED TO HAVE SURVIVED;

2. IF BOTH WERE ABOVE THE AGE SIXTY, THE YOUNGER IS Under the Civil Code, whoever alleges must prove. For purposes of proving
DEEMED TO HAVE SURVIVED; who died ahead of the other, one can either have actual proof or one can rely
3. IF ONE IS UNDER FIFTEEN AND THE OTHER ABOVE on a presumption. If they died on the basis of a calamity, then use the
SIXTY, THE FORMER IS DEEMED TO HAVE SURVIVED; presumption under the Rules of Court. If they did not die through a
4. IF BOTH BE OVER FIFTEEN AND UNDER SIXTY, AND THE calamity then use the Civil Code. Usually, determination of who died first
SEX BE DIFFERENT, THE MALE IS DEEMED TO HAVE SURVIVED, IF applies only to people related to each other or because of succession
THE SEX BE THE SAME, THE OLDER ; purposes.
5. IF ONE BE UNDER FIFTEEN OR OVER SIXTY, AND THE
OTHER BETWEEN THOSE AGES, THE LATTER IS DEEMED TO HAVE SUMMARY
SURVIVED.
Civil Code Rules of Court

NOTE: NCC covers all instances, not only calamities, where the parties Person who died must be called The person concerned must have
succeed each other. The ROC requisites are: upon to succeed each other. They died as a result of a calamity. They
1. Calamity may or may not die as a result of a may or may not be required to
2. No showing of who died first calamity succeed each other.
3. NOT succession
Q: A made a will and gave B a car. A and B are not related to each other.
Q: When do you use the Civil Code or the Rules of Court in determining
Both died in a car accident but there is doubt as to who died first. Are A and
survivorship?
B considered to be “persons who are called to succeed each other”?
Both rules apply when there is an absence of proof as to who died ahead of
Yes because A and B are called to succeed each other on the basis of a will.
the other. When there are facts, known or knowable, from which a
Thus the phrase “two or more persons who are called to succeed each other”
contrary conclusion can be inferred, neither Art 43 nor the ROC
will apply to both VOLUNTARY AND INVOLUNTARY HEIRS. In this case,
presumptions on survivorship can apply. In such a case, the rule on
the Civil Code provisions will apply.
preponderance of evidence controls.
3. Chapter 3: Juridical Persons
If there is an absence of proof, the Civil Code provision applies when the
a. Who are juridical persons
persons concerned are persons called upon to succeed each other, such as
father and son, or husband and wife. Also it applies to any circumstance of
Art. 44. The following are juridical persons:
death and not only those resulting from a calamity. (1) The State and its political subdivisions;
In the Civil Code, he who alleges must prove. So if one says that the father is
the one who died ahead of the son, he must prove that the father in fact died (2) Other corporations, institutions and entities for public interest
or purpose, created by law; their personality begins as soon as
ahead of the son. In the absence of proof, then they shall be deemed to have
they have been constituted according to law;
died at the same time and therefore, there will be no transmission of rights
or property from one to another.
(3) Corporations, partnerships and associations for private
The Rules of Court apply on the other hand, if both persons died as a result interest or purpose to which the law grants a juridical
of calamity, though they may or may not be required to succeed each other. personality, separate and distinct from that of each shareholder,
The rules of court provide us with a more definite presumption. partner or member. (35a)

Q: What are juridical persons? Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding
Essentially these are persons artificially created. They are created on the article are governed by the laws creating or recognizing them.
basis of law, on the basis of a charter, or on the basis of registration with the
Securities and Exchange Commission (SEC) Private corporations are regulated by laws of general application on the
subject.
Note that as far as juridical persons are concerned one does not talk about
birth but of creation. One does not give birth to a corporation nor a state. It is Partnerships and associations for private interest or purpose are governed
the creation of these corporation which signal the start of the corporate by the provisions of this Code concerning partnerships. (36 and 37a)
entity. It is a law, a charter, or the registration with the SEC that will give
them a separate existence from the members of the corporation.
Art. 46. Juridical persons may acquire and possess property of all kinds, as
well as incur obligations and bring civil or criminal actions, in conformity
Q: Is there a distinction between juridical capacity and capacity to act insofar
with the laws and regulations of their organization. (38a)
as juridical persons are concerned similar to that of natural persons (ie,
capacity to act starts only at the age of majority while juridical capacity starts
from birth)? Art. 47. Upon the dissolution of corporations, institutions and other
RULE: Juridical capacity and capacity to act coincide in the case of juridical entities for public interest or purpose mentioned in No. 2 of Article 44,
persons. Thus the moment a juridical person is legally created it their property and other assets shall be disposed of in pursuance of law or
immediately acquires the right to enter into legal transactions with legal the charter creating them. If nothing has been specified on this point, the
property and other assets shall be applied to similar purposes for the
effect or be subject of legal relations.
benefit of the region, province, city or municipality which during the
existence of the institution derived the principal benefits from the same.
Q: Can juridical capacity or capacity to act be also restricted or modified in
(39a)
the case of juridical persons?
Yes but only to some restrictions or modifications like insolvency or
citizenship. In the case of insolvency, for example, once a corporation is at Note: This article refers to public corporations or associations.
the process of liquidation, it is restricted because it cannot enter into new Please see page 28-A for a separate table on the differences between
obligations. In the case of citizenship, there are certain conditions which can natural persons and juridical persons.
be restricted or actions modified depending on the citizenship of the
corporation because of certain investment clause or certain nationality C. Domicile
qualifications. 1. Kinds
b. When personality begins and ends Art. 48. The following are citizens of the Philippines:
(1) Those who were citizens of the Philippines at the time of the
Q: When does juridical persons and capacity to act terminate in the case of adoption of the Constitution of the Philippines;
juridical persons?
They terminate at the moment they are dissolved. (2) Those born in the Philippines of foreign parents who, before
In the case of natural persons, it is death that terminates capacity to act or the adoption of said Constitution, had been elected to public
juridical capacity. office in the Philippines;
c. Rights of juridical persons (3) Those whose fathers are citizens of the Philippines;

(4) Those whose mothers are citizens of the Philippines and, individual. This is what the law calls a domicile of origin. Any
upon reaching the age of majority, elect Philippine citizenship; person can however change their domicile at will (domicile of
choice). But before one can change his domicile he must be a person
(5) Those who are naturalized in accordance with law. (n) who has capacity to act.
2. The moment one acquires a new domicile (domicile of choice) one
Art. 49. Naturalization and the loss and reacquisition of citizenship of the automatically loses his domicile of origin. One cannot have two
Philippines are governed by special laws. (n) domiciles at the same time vis-à-vis citizenship where there is such
a thing as dual citizenship
Art. 50. For the exercise of civil rights and the fulfillment of civil
Q: What are the rules for domicile of origin?
obligations, the domicile of natural persons is the place of their habitual
1. Legitimate child – domicile of choice of his father at the moment of
residence. (40a)
birth of the child
2. Illegitimate child – domicile of choice of the mother at the time of
Q: What is domicile? birth of the child
Domicile is that place where a person has certain settled, fixed, legal 3. Legitimated child – domicile of the father at the time of the birth of
relations because: the child. This is because legitimation takes effect from the time of
1. It is assigned to him by law AT THE MOMENT OF BIRTH the child’s birth
(Domicile of Origin) 4. Adopted child – the domicile of the REAL parents or parent by
2. It is assigned to him also by law AFTER BIRTH on account of a consanguinity
legal disability (Constructive Domicile) 5. a Foundling (abandoned infant whose parents are unknown) – the
3. Because he has his home there – that to which whenever he is country where it was found. If the parents become known, it is not
absent, he intends to return (Domicile of Choice)  there must be a foundling anymore. Therefore, follow the rule on legitimate or
substantial connection. illegitimate children.
2. Rules Q: What is the constructive domicile of a married woman?

Q: Is domicile the same as residence? Before the constructive domicile of a married woman is the domicile of
No. Domicile should not be equated with residence because residence is choice of her husband. The Family Code, however, fixes the domicile of the
temporary while domicile is more or less permanent. For example, Blanche husband and wife as jointly fixed.
may be residing in Makati now but her domicile is really in Bacolod because
she intends to return there every vacation or every time she has an Art. 51. When the law creating or recognizing them, or any other provision
opportunity to return or after she passes the bar. Residence may be a does not fix the domicile of juridical persons, the same shall be
boarding house, an apartment and others. understood to be the place where their legal representation is established
or where they exercise their principal functions.
RULE: Domicile and residence are not the same
EXCEPTION: For election purposes, one uses both domicile and residence Q: How do we determine the domicile of juridical persons?
interchangeably; and, procedural law 1. Get the domicile provided in the law creating them
2. If not provided, then where their legal representation is established;
Q: What are the principles of domicile? or
1. The right to a domicile is an inherent right. It is something that 3. Where they exercise their principal functions
comes with a person the moment he is born, and this continues
until a new domicile is established. Every person is born with a
domicile vis-à-vis citizenship where there can be a stateless
PART II In Re: Rufilo D. Bucana
FAMILY CODE OF THE PHILIPPINES (EO No 209) FACTS:
Bucana, a notary public, notarized the agreement between spouses, to wit:
A. Marriage "in case anyone of them will remarry both parties offer no objection and
waive all civil and criminal actions against them... entered into for the
1. Concept purpose of agreement to allow each and everyone of them to remarry
without objection or reservation . . .". His defense: the agreement was made
Q: When did the Family Code take effect? by his clerk; he refused to notarize it; it was left on his desk with numerous
The FC went to effect on August 3, 1988 papers; inadvertently got notarized; could not get back the copies from the
spouses since they could not be found; and, he was emotionally disturbed
Article 1. Marriage is a special contract of permanent union between a since his father (now deceased) was seriously ill. The immorality of the
man and a woman entered into in accordance with law for the agreement is not disputed.
establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences, HELD:
and incidents are governed by law and not subject to stipulation, except 1. It is for the notary to inform himself of the facts to which he intends
that marriage settlements may fix the property relations during the to certify, and to take part in no illegal enterprise. The notary public
marriage within the limits provided by this Code. is usually a person who has been admitted to the practice of law,
and as such, in the commingling of his duties as notary and lawyer,
Q: What re the elements of marriage? must be held responsible for both. We are led to hold that a
It is an institution characterized by: member of the bar who performs an act as a notary public of a
1. Marriage is a special contract disgraceful or immoral character may be held to account by the
2. It is a permanent union court even to the extent of disbarment.
3. The union is between a man and a woman 2. His defenses is actually a plea for clemency which is untenable. he
4. The union must be entered into in accordance with law should have exercised the requisite care required by law in the
5. The purpose of marriage is the establishment of conjugal and exercise of duties.
family life 3. Marriage is an inviolable institution. The agreement abets the
commission of a crime.
Q: Why is marriage a special contract?
As a general rule, the parties are free to stipulate any condition in an Q: What is meant by permanent union?
ordinary contract as long as they are not contrary to law, morals, good Marriage is a contact which can only be dissolved by the death of the other
customs, or public policy. In a marriage contract, however, one is not free to party unless it is annulled or declared null and void for legal cause by the
stipulate except as regards the property relationship of the husband and court. However, in these kinds of marriages you’re not putting an end to a
wife. This means that law and not by stipulations of the parties will govern marriage, but it is a marriage which suffers from defects from the very start.
the nature, consequences and incidents of marriage when there is a
provision of law that will apply. Q: What is the consequence of having marriage described as a permanent
union by the Family Code?
Q: What is meant by marriage as an “inviolable social institution” We will always adhere to the policy against divorce
Marriage is not merely a contract. It is the foundation of family life. This
means that all matters affecting marriage should be governed by law and
not be subject to stipulations of the parties except in the case of marriage
settlements which can be stipulated upon by the parties.
Q: Justice Caguiao argues the point that it is not for us to allow the contracting parties to
declaration of nullity based on psychological incapacity for it is a divorce in terminate the contract
disguise. Is his argument tenable? Any person with the capacity to act Only a man and a woman can
No. the declaration of nullity based on psychological incapacity is not a case can enter into an ordinary contract enter into a contract of marriage
of divorce. The breach of an ordinary contract While breach of the obligations of
gives rise to an action for damages husband and wife does not give
Q: Who can enter into a contract of marriage? rise to an action for damages but
Only a man and woman can enter into a contract of marriage. It is now a the law prescribes penal and civil
requirement which goes to the very essence of marriage. You cannot marry sanctions
another of the same gender
2. Essential and Formal Requirements
Q: What is the purpose of such requirement?
Since marriage is entered into for the purpose of establishing a conjugal and
family life and procreation of children, marriage between persons of the Art. 2. No marriage shall be valid, unless these essential requisites are
same sex would render the purpose of marriage ineffectual present:
Q: What are the differences between marriage and ordinary contracts?

(1) Legal capacity of the contracting parties who must be a male
Ordinary Contract Marriage Contract
and a female; and
It is a mere contract A marriage contract is an
agreement between parties and a
social institution (2) Consent freely given in the presence of the solemnizing
Agreements entered into usually In marriage, the nature, officer. (53a)
depend on the stipulation of the consequences and incidents are
contracting parties unless those governed by law except with Art. 3. The formal requisites of marriage are:
stipulations are against the law, public reference to marriage settlements (1) Authority of the solemnizing officer;
policy, public order, morals or good
customs (2) A valid marriage license except in the cases provided for in
The legal age for ordinary contracts is The legal age for entering into a Chapter 2 of this Title; and
the age of majority contract of marriage is the age of
majority however there are other (3) A marriage ceremony which takes place with the appearance
legal requirements for those below of the contracting parties before the solemnizing officer and their
the ages of 21 and 25 personal declaration that they take each other as husband and
An ordinary contract may end either In marriage, only death or the wife in the presence of not less than two witnesses of legal age.
through: annulment of marriage for legal (53a, 55a)
1. Express provision of law causes dissolves the marriage
2. Expiration of the term for contract Art. 4. The absence of any of the essential or formal requisites shall render
which the contract was the marriage void ab initio, except as stated in Article 35 (2).
executed
3. Fulfillment of the purpose of
A defect in any of the essential requisites shall not affect the validity of
the contract or
the marriage but the party or parties responsible for the irregularity shall
4. Mutual agreement by the be civilly, criminally and administratively liable. (n)
Q: What are the two types of requirements for marriage under the Family It is important to know the difference between these requirements because
Code? their absence, defect or irregularity will have different effects on the
These are reckoned at the time of the celebration of the marriage: marriage. An absence of either a formal or essential requirement results in a
1. Essential requirements – intrinsic aspect of the marriage void marriage. A defect in the essential requirement, i.e., there is an
2. Formal requirements – extrinsic aspect of the marriage irregularity in the manner of process of obtaining or complying with such
requirements will not affect the validity of the marriage. However, the party
Q: What are the essential requirements? at fault will be civilly, criminally and administratively liable.
1. Legal capacity
2. Consent by the spouses a. Legal Capacity
Q: What are the formal requirements? Article 2. No marriage shall be valid, unless these essential requirements
1. Authority of solemnizing officer are present:
a. R: Has authority 1. Legal capacity of the contracting parties who must be a
b. X: One contracting party has a good faith belief that the male and a female; and
solemnizing officer has authority 2. Consent freely given in the presence of the solemnizing
2. Valid Marriage license officer.
a. R: Need for a license
b. X: Q: What are the 2 essential requirements for a valid marriage?
i. Artciculo Mortis a. Legal capacity of the contracting parties, who must be male and
ii. Common law in continuous 5 years with no female; and
impediment to marry b. Consent of the parties, freely given in the presence of the
iii. No means of transport to obtain a license solemnizing officer.
3. Ceremony, requirements: N.B. These requirements refer to the contracting parties only.
a. Before solemnizing officer
b. At least 2 witnesses Q: What is legal capacity?
c. Personal declaration Legal capacity means that:
a. both parties must have the necessary age, the
minimum being 18;
NOTE: b. one party to the marriage must be a (born) a
Essential Requirements Formal Requirements man and the other a woman;
Void Void c. there must be no existing impediments such as:
Absent 1. incestuous marriage
2. marriage against public policy;
Irregularity No such thing as Voidable 3. prior existing marriage;
defective legal capacity; 4. psychological incapacity; and
its either present or 5. non-compliance with Article 53 in
absent. But the relation to Article 52 of the Family Code
provision says voidable regarding the partition, distribution of
the properties of the spouses and
Q: Why is there a need to distinguish between essential and formal delivery of the children’s presumptive
requirements? legitimes.

i) Sex Art. 16. In the cases where parental consent or parental advice is needed,
the party or parties concerned shall, in addition to the requirements of the
Q; Who can enter into a contract of marriage? preceding articles, attach a certificate issued by a priest, imam or minister
Only a man and a woman can enter into a contract of marriage. You cannot authorized to solemnize marriage under Article 7 of this Code or a
marry another of the same gender. Since marriage is entered into for the marriage counselor duly accredited by the proper government agency to
purpose of establishing a conjugal and family life and procreation of the effect that the contracting parties have undergone marriage
children, marriage between persons fo the same sex would render the counseling. Failure to attach said certificates of marriage counseling shall
purpose of marriage ineffectual. suspend the issuance of the marriage license for a period of three months
Q: Concerning the essential requisites of legal capacity, is it mandatory that from the completion of the publication of the application. Issuance of the
the contracting parties be born a man and a woman? What if Happy would marriage license within the prohibited period shall subject the issuing
one day marry the extremely voluptuous transvestite, Shola Luna? officer to administrative sanctions but shall not affect the validity of the
marriage.
ii) Age
Should only one of the contracting parties need parental consent or
Art. 5. Any male or female of the age of eighteen years or upwards not parental advice, the other party must be present at the counseling referred
under any of the impediments mentioned in Articles 37 and 38, may to in the preceding paragraph. (n)
contract marriage. (54a)
Q: What is the best evidence in determining the age of the contracting
Art. 14. In case either or both of the contracting parties, not having been parties”
emancipated by a previous marriage, are between the ages of eighteen and The birth certificate is the best evidence in determining the age of the parties.
twenty-one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of Q: Under the Family Code, what are the three significant age groups which
their father, mother, surviving parent or guardian, or persons having legal we must consider?
charge of them, in the order mentioned. Such consent shall be manifested a. if a party is below 18, he marriage is void because of absence of
in writing by the interested party, who personally appears before the legal capacity (Article 5);
proper local civil registrar, or in the form of an affidavit made in the b. if a party is between 18 and 21, the parties must first obtain the
presence of two witnesses and attested before any official authorized by consent of the father, the mother or the legal guardian without,
law to administer oaths. The personal manifestation shall be recorded in which the marriage is voidable;
both applications for marriage license, and the affidavit, if one is executed c. if a party is between 21 and 25, the parties shall be obliged to
instead, shall be attached to said applications. (61a) ask their parents or guardians for advice, otherwise, the
issuance of the marriage license shall be temporarily
Art. 15. Any contracting party between the age of twenty-one and twenty- suspended for 3 months.
five shall be obliged to ask their parents or guardian for advice upon the
intended marriage. If they do not obtain such advice, or if it be Q: Nene, a minor, procured the consent and blessings of her parents and
unfavorable, the marriage license shall not be issued till after three decided to marry a wealthy old man. Is the marriage valid?
months following the completion of the publication of the application NO. If one of the parties is below the age of 18, no amount of consent, even
therefor. A sworn statement by the contracting parties to the effect that that of their parents, will make the marriage valid.
such advice has been sought, together with the written advice given, if
any, shall be attached to the application for marriage license. Should the Q: If you get married on your 21st birthday, do you need parental consent or
parents or guardian refuse to give any advice, this fact shall be stated in advice?
the sworn statement. (62a)

The framers forgot to make a distinction. We do not have jurisprudence on aa) Incestuous relationship
this issue. However, if we look into the intent of the old Civil Code, it
should be 18 to below 21 years for parental consent and 21 and 25 for Art. 37. Marriages between the following are incestuous and void from the
parental advice. beginning, whether relationship between the parties be legitimate or
illegitimate:
Exactly: 18 years of age – parental consent
21 years of age – parental advice (1) Between ascendants and descendants of any degree; and
25 years of age – neither parental consent nor advice.
iii) Impediment by reason of: (2) Between brothers and sisters, whether of the full or half
blood. (81a)
Q: What are the different types of legal impediments?
a. incestuous marriage – based on close blood relationships Q: What are incestuous marriages?
(Article 37) This term is a technical term and does not merely imply marriages between
b. against public policy – these are impediments determined relatives within whatever degree of consanguinity or affinity. The Family
by law as contrary to the values desired by the Code now uses the universal definition of incestuous marriages – thus,
State.(Article 38) excluding first cousins from the former list. Incestuous marriages are those
c. prior existing marriage – (Article 35, par 4); so defined in Article 37 of the Family Code. Said Article provides the
d. subsequent marriage under Article 53 in relation to Article marriages between the following are incestuous and void from the
52 – the requirements of partition and delivery of beginning, whether the relationship between the parties be legitimate or
presumptive legitimes. illegitimate:
1. Between ascendants and descendants of any degree; and
Q: Is judicial declaration of nullity necessary in cases of voi marriages? 2. Between brothers and sisters, whether of full or half-blood.
For the purpose of remarriage, there must be always be judicial declaration N.B. The Family Code now makes no distinction between degree and
of nullity. For any other purpose, the nullity of the marriage may be raised legitimacy in incestuous marriages. Concerning collateral line, no
directly or collaterally. distinction is made, too, as regards legitimacy. You cannot marry any
ascendant or descendant regardless of how far removed.
Q: What if the marriage is merely voidable?
A direct proceeding (direct attack) is necessary to annul the marriage. bb) Public Policy
Q: A and B are married. The marriage is voidable. Without previous B Art. 38. The following marriages shall be void from the beginning for
married C. C then married D. is the marriage between B and C valid? What reasons of public policy:
about the marriage between C and D? (1) Between collateral blood relatives whether legitimate or
Since the marriage between A and B has not yet been annulled, the marriage illegitimate, up to the fourth civil degree;
between B and C is void. Though the marriage between B and C is void,
there must be a judicial declaration of nullity. Since there was no judicial (2) Between step-parents and step-children;
declaration, the subsequent marriage between C and D is also void. Always
for purposes of marriage, once must obtain a judicial declaration of nullity (3) Between parents-in-law and children-in-law;
or annulment of ALL previous marriages.
(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the Q: Are marriages between parents-in-law and children-in-law allowed?
adopted child; What if the spouse already died, can one marry his parent-in-law?
No. The reason given is Filipinos have extended families. Besides, if one
(6) Between the surviving spouse of the adopted child and the argues that the death of the spouse terminates the relationship between
adopter; parents-in-law and children-in-law, the provision will never have any
application. The argument is absurd. Moreover, marriages between in-law
(7) Between an adopted child and a legitimate child of the are against public policy, because such relationships are, by legal fiction,
adopter; parallel to that between a real parent and child. Thus, their marriage is
considered practically incestuous.
(8) Between adopted children of the same adopter; and
Q: What marriages between step-parents and step children prohibited?
Extended family ralations.
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own spouse. Q: Enzo married Carmela. Carmela died during their honeymoon. Enzo
(82) married Marife the following day. Marife died during their honeymoon.
Can Enzo now marry Carmela’s mommy?
a. Collateral blood relatives, whether legitimate or illegitimate, up to
the 4th civil degree of affinity or consanguinity. No. Even if Carmela’s mom is no longer Enzo’s-in-law, the parallel relation
of parent and child continues to exist.
Q; What do marriages between collateral blood relatives up to 4th civil
degree include? Q: What if a marriage was annulled? May the former parent-in-law marry
In includes relationship between: his former child-in-law?
1. Uncle and niece;
2. Aunt and nephew; Yes. Because when a marriage is annulled, it is considered as if there was no
3. First cousins; and marriage at all, so the prohibition does not apply since there is in law, no
4. Grandparents and Grandchildren. relation to speak of.
Q: Does the prohibition apply to illegitimate relationships? Q: is there an impediment between brothers-in-law and sisters-in-law?
YES. No, there is no prohibition. Once can marry his/her brother-in-law or sister-
in-law when one’s spouse dies.
Q: Hans is the half-brother of Ruby, can they get married?
No, they cannot. Article 37(2) does not make any distinction between full or c. Adoptive relationships
half blood relatives. The prohibition applies to both full and half-blood 1. Between adopter and adopted
relations.
Q: Is the marriage between an adopted child and the illegitimate children of
Q: Does this include relatives by affinity? the adopter possible?
No, the law says, collateral relatives. Yes, since the probation speaks only of legal adoption.
b. Between step-parents and step-child or between parent-in-law and d. Killing of the other spouse in order to remarry
child-in-law.
Q: In order for the impediment to exist, is criminal conviction necessary?

No. One must only establish death and the intention of the killing spouse. death of the absentee, without prejudice to the effect of reappearance of
the absent spouse. (83a)
Q: What if “A” killed his spouse “B” only to get his hands on the insurance
benefits acquired by “B”” Can “A” marry again? Art. 42. The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of
Yes, since in this case, the prohibition will not apply. For the prohibition to reappearance of the absent spouse, unless there is a judgment annulling
apply, the purpose for killing must be to marry another. the previous marriage or declaring it void ab initio.
cc) Prior existing marriage A sworn statement of the fact and circumstances of reappearance shall be
recorded in the civil registry of the residence of the parties to the
Q: How may marriage be terminated? subsequent marriage at the instance of any interested person, with due
Marriage may be terminated by: notice to the spouses of the subsequent marriage and without prejudice to
1. Death – You must show proof of death – Death Certificate. the fact of reappearance being judicially determined in case such fact is
Show this to Civil Registrar for issuance of a new marriage disputed. (n)
license.
2. Annulment
Art. 43. The termination of the subsequent marriage referred to in the
3. Death of Nullity preceding Article shall produce the following effects:
With regard to death, there is a question between actual death and

constructive death. (1) The children of the subsequent marriage conceived prior to its
termination shall be considered legitimate;
Q: How are bigamous or polygamous marriages impediments?
(2) The absolute community of property or the conjugal
They are impediments by virtue of a prior existing marriage. But there is the partnership, as the case may be, shall be dissolved and
exception in case of subsequent marriages by virtue of a declaration of liquidated, but if either spouse contracted said marriage in bad
presumptive death. faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children of
the guilty spouse by a previous marriage or in default of children,
Art. 41. A marriage contracted by any person during subsistence of a the innocent spouse;
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that (3) Donations by reason of marriage shall remain valid, except
the absent spouse was already dead. In case of disappearance where there that if the donee contracted the marriage in bad faith, such
is danger of death under the circumstances set forth in the provisions of donations made to said donee are revoked by operation of law;
Article 391 of the Civil Code, an absence of only two years shall be
sufficient. (4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance
For the purpose of contracting the subsequent marriage under the policy, even if such designation be stipulated as irrevocable; and
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive

(5) The spouse who contracted the subsequent marriage in bad Q: If no proceedings are instituted for the judicial declaration of
faith shall be disqualified to inherit from the innocent spouse by presumptive death or for the judicial declaration of annulment or nullity,
testate and intestate succession. (n) what is the effect on the subsequent marriage?
The subsequent marriage is null and void.
Art. 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 Q: What if the judicial declaration was done after the celebration of the
and testamentary dispositions made by one in favor of the other are subsequent marriage, is the subsequent marriage validated?
revoked by operation of law. (n)Article 41.
No. A subsequent judicial declaration (for nullity/annulment/presumptive
Q: What are the kinds of bigamous marriages? death) does not validate the second marriage.
There are actually two kinds:
1. The void bigamous marriage, which is contracted by a person Q: After the judicial declaration of nullity of the first marriage, is here still
during the subsistence of his or her previous marriage. Here, the an impediment for the spouse to remarry?
good faith of party who marries again is immaterial; the second
marriage would will be void. On the other hand, the person who Yes, there must be compliance with Article 52 and 53 (liquidation of the
marries in bad faith is even criminally liable for bigamy. absolute community property and distribution of presumptive legitimes to
2. The subsequent marriage discussed in cases of declaration of the children of the first marriage). Otherwise, the subsequent marriage will
presumptive death. be null and void.
1. Void Bigamous Marriage Q: What makes a marriage void under Article 53?
A party’s failure to comply with the requirements of Article 52, to wit:
Q: What is necessary before a party who had a previously subsisting a. Securing a judicial declaration of annulment or absolute nullity;
marriage, may marry again? b. Liquidation of the assets of the first marriage; and
c. Delivery of presumptive legitimes of the children.
For purposes of remarriage, one must first obtain a judicial declaration of
absolute nullity or a declaration of annulment of the previous marriage. 2. Presumptive Death Marriages
Any marriage entered into by a person during the subsistence of a previous
marriage is null and void.
Art. 41. A marriage contracted by any person during subsistence of a
Q: Is there any exception to the rule where a party may enter into a previous marriage shall be null and void, unless before the celebration of
subsequent valid marriage despite the existence of a prior marriage? the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that
The only exception where a party may enter into a subsequent marriage, the absent spouse was already dead. In case of disappearance where there
without going through the processes of filing for the nullity or annulment of is danger of death under the circumstances set forth in the provisions of
the previous marriage is provided in Article 41 where the present spouse Article 391 of the Civil Code, an absence of only two years shall be
must obtain a judicial declaration of presumptive death should he/she have sufficient.
a well-founded belief that the absent spouse is already dead. However, the
subsequent marriage shall be automatically terminated upon the recording For the purpose of contracting the subsequent marriage under the
of the affidavit of reappearance of the absent spouse. preceding paragraph the spouse present must institute a summary

death of the absentee, without prejudice to the effect of reappearance of about the requirement of the declaration of presumptive death. The Family
the absent spouse. (83a) Code now requires the proper proceeding of the declaration of presumptive
death. This is only available for the purposes of remarriage. This is not
necessary for purposes of administration of the properties of the absentee.
Q: What are the instances when the two-year limit apply?
Q: When can you avail of this action?
You can avail of this action after 4 years from ordinary disappearance or 2
years after extraordinary disappearance. Note that the 7 and 4-year limits
Art. 391. The following shall be presumed dead for all purposes, including
the division of the estate among the heirs: still apply for all other purposes other than remarriage.
Q: What if the absent spouse reappears?

(1) A person on board a vessel lost during a sea voyage, or an The Civil Code used to define this as a “bigamous voidable marriage.”
aeroplane which is missing, who has not been heard of for four
Once the absent spouse reappears, then you can annul the subsequent
years since the loss of the vessel or aeroplane;
marriage. But by virtue of the Family Code (Article 42), this concept is done
away with. Under the Family Code, the first marriage stands as valid, and
(2) A person in the armed forces who has taken part in war, and the second is immediately and automatically terminated.
has been missing for four years;
Q: May the present spouse choose which marriage he/she wants to subsist?
(3) A person who has been in danger of death under other No. There is no choice as to which marriage shall continue to subsist
circumstances and his existence has not been known for four because the moment the fist spouse reappears, it is the subsequent marriage
years. (n) that is automatically terminated. The present spouse cannot choose to
terminate the first marriage. Remember. The terms and conditions of
Q: Happy and Marife were married. Marife went away because she had to marriage, their nullity, their termination are governed by law and not
work as a belly dancer in Brunei. Happy knows this. But because of the subject to the option of the parties Once the absent spouse reappears and
length of time that Marife had been away, there was no certainty as to the judicial declaration of presumptive death is filed with the proper court,
whether she was still alive. Can Happy initiate an action for the declaration the subsequent marriage is automatically terminated.
of the presumptive death? Can Happy remarry and get Loi as his apouse?
Q: What are the requirements for reappearance?
No. The declaration must be given only when the spouse actually does not You don’t just show your face. Reappearance, to terminate the second
know where to contact the other spouse. If you know the spouse is merely marriage requires an affidavit of reappearance that would be filed by the
in another place r with another man, the Family Code will not allow a valid reappearing spouse himself of any interested person, with due notice to the
subsequent marriage. Note that the declaration of presumptive death will spouse of the subsequent marriage.
only be given when the present spouse is not certain whether the other
spouse is alive or dead and there is reasonable doubt as to the absent Q: Cam reappearance be contested?
spouse’s continued existence. The fact that you merely don’t receive any Yes. The affidavit of reappearance is not conclusive. The reappearing
communication from your spouse, or that the other spouse is merely away, spouse must be able to prove that he is not an impostor. This can be
or that there is mere separation, abandonment or living apart from each contested by any of the spouses to the second marriage if the affidavit was
other will not allow such declaration. filed by any interested party. It can also be contested by the previous spouse
and allege that the reappearing spouse is an impostor if it is the reappearing
Note that the Civil Code used to allow remarriage on the basis of mere spouse that files the affidavit.
though that the other spouse is dead. But the Family Code is now strict

Q: What happens if the affidavit if no affidavit is produced, or there is no If one spouse suffers prejudice. The present spouse has an interest in the
reappearance or the affidavit is successfully contested? existence in the first marriage. Even relatives have an interest. Even the
The second marriage may validly subsist. state has an interest in the marriage to make sure that family rights and
duties are complied with and the sanctity of the marriage protected.
Q: What if the opposite happen, such that the affidavit is upheld?
Then the second marriage is terminated not voided or annulled. The Q: What are the effects of the termination of the subsequent marriage?
children are legitimate.
Article 43. The termination of the subsequent marriage referred to in the
Q: What happens if no one files an affidavit of reappearance despite the preceding Article shall produce the following effects:
reappearance of the absentee spouse? Can we have a situation where there
are two validly subsisting marriages?
(1) The children of the subsequent marriage conceived prior to its
termination shall be considered legitimate;
No. there can be no such anomalous situation. Note that from the grant of
the declaration of the presumptive death, the previous marriage is declared
Terminated. So the second marriage must subsist. Until the affidavit of (2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
reappearance is filed, the second marriage validly subsists.
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community
N.B. The automatic termination of the second marriage will not apply if the
property or conjugal partnership property shall be forfeited in
previous marriage if the present spouse and the returning spouse has been
annulled or declared void by the courts.
the guilty spouse by a previous marriage or in default of children,
the innocent spouse;
Q: If the absent spouse is alive, but he does not want to file an affidavit of
reappearance because he does not want to destroy the second marriage, may
he be penalized by law? (3) Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
No, the law does not compel the absent spouse to file the affidavit of
reappearance. If he does not file, there is no penalty. The only effect is that
the first marriage is still considered terminated and the second marriage (4) The innocent spouse may revoke the designation of the other
continues to subsist. spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and
Q: Can the absent spouse then remarry?
No. The Family code authorizes the present spouse to remarry upon (5) The spouse who contracted the subsequent marriage in bad
compliance with the requirements of Article 41. But the absent spouse is not faith shall be disqualified to inherit from the innocent spouse by
so authorized by the Code. If the reappearing spouse gets married again to testate and intestate succession. (n)
another, the marriage is null and void.
Weigel v. Sempio-Dy
Q: If the reappearing spouse thus marries again, can the present spouse sue FACTS:
him/her for bigamy?  Karl Heinz Weigel asked for the declaration of nullity of his marriage
Yes. with Lilia Oliva Weigel on the ground that Lilia’s previous existing
marriage to Eduardo Maxion.
Q: What would be his/her interest in filing the action for bigamy?

 Lilia while admitting the existence of said prior subsisting marriage  YES. Under Article 40 of the FC, the absolute nullity of a previous
claimed that said marriage was null and void, she and Eduardo having marriage may be invoked for purposes of remarriage on the basis solely
been alleged forced to enter said marital union. of a final judgment declaring such previous marriage is void. Meaning,
 Lilia asked the court for an opportunity to present evidence that the first where the absolute nullity of a previous marriage is sought to be
marriage was vitiated by force and that Eduardo was already married invoked for purposes of contracting a second marriage, the sole basis
to someone else at the time of their marriage. acceptable in law, for said projected marriage to be free from legal
infirmity, is a final judgment declaring the previous marriage void.
ISSUE: Whether or not there is a need for Lilia to prove that her first  However, for purposes other than remarriage, no judicial action is
marriage was vitiated by force. necessary to declare a marriage an absolute nullity. For other purposes,
HELD: such as but not limited to the determination of heirship, legitimacy, or
 NO. There is no need for Lilia to prove that her first marriage was illegitimacy of a child, settlement of estate, dissolution of property
vitiated by force committed against both parties because assuming this regime, or a criminal case for that matter, the court may pass upon the
to be so, the marriage will not be void but merely voidable, and validity of marriage even after the death of the parties, and even in a
therefore valid until annulled. Since no annulment has yet been made, suit not directly instituted to question the validity of said marriage, so
it is clear that when she married Weigel she was still validly married to long as it is essential to the determination of the case. In such instances,
her first husband, consequently, her marriage to Weigel is void. evidence must be adduced, testimonial or documentary, to prove the
 Likewise there is no need of introducing evidence about the existing existence of grounds rendering such a previous marriage an absolute
prior marriage of her first husband at the time they married each other, nullity.
for then such a marriage though void still needs a judicial declaration of  The first marriage is void having been solemnized without the
such fact and for all legal intents and purposes she would still be necessary marriage license, and not being one of the marriage exempt
regarded as a married woman at the time she contracted her marriage from such requirement. Accordingly, the declaration in this case of
with Weigel. nullity of the previous marriage of the deceased does not validate the
second marriage. The fact remains that their marriage was solemnized
Carino v. Carino without first obtaining a judicial decree declaring the marriage of
FACTS: Nicdao is void. Thus, the second marriage is bigamous having been
 During the lifetime of SPO4 Santiago S. Carino, he contracted two solemnized during the subsistence of a previous marriage.
marriages, the first was with Susan Nicdao and the second with Susan
Yee. When he passed away, both wives claimed monetary benefits and Ty v. CA
financial assistance from various government agencies. FACTS:
 Susan Yee filed a case against Susan Nicdao praying for the return of at  Edgardo Reyes married Anna Villanueva in a civil ceremony. They had
least half of the death benefits of Carino. a church wedding. However, the Juvenile and Domestic Relations
 The marriage of Susan Yee with Carino took place during the Court declared their marriage null and void for lack of a valid marriage
subsistence of , and without first obtaining a judicial declaration of license.
nullity of marriage in the first marriage. However, she claimed that she  Before the decree was issued nullifying his marriage to Anna, he
had no knowledge of the previous marriage. As her defense, she claims married Ofelia.
that the first marriage was void ab inition because it was solemnized  After several years of marriage, Edgardo filed a case praying that his
without the required marriage license. marriage to Ofelia be declared null and void. He alleged that they had
no marriage license when they got married and that at the time of their
ISSUE: Whether or not there is a need for the judicial declaration of nullity marriage he was still married to Anna. On the other hand, Ofelia
or marriage. contends that Edgardo’s allegation is not true because a marriage
HELD: license was issued.

ISSUE: Whether or not the decree of nullity of the first marriage is required subjectivity to the vices of consent. In ordinary contracts, the consent must
before a subsequent marriage can be entered into validly? be manifested by the parties without the need of a witness of a notary
HELD: public, but in the special contract of marriage, the consent must be
 As a general rule, there is a need for the decree of nullity of marriage manifested before the solemnizing officer.
before a subsequent marriage can be contracted. However, the Court in
this case made an exception because 1) both marriages were celebrated Q: What happens when there is absolutely no consent or when the parties
before the family code; and 2) the provisions of the FC cannot be did not intend to be bound, as in the case of a joke, or movie play?
retroactively applied because to do so would prejudice the vested rights The marriage is void.
of Ofelia and of her children.
Q: What is the effect if there is a defect in the consent or if it is vitiated by
b. Consent error, fraud, intimidation or force?
The marriage is voidable.
Art. 6. No prescribed form or religious rite for the solemnization of the
marriage is required. It shall be necessary, however, for the contracting Q: Is vitiated consent the same as lack of consent? No.
parties to appear personally before the solemnizing officer and declare in Lack of Consent Vitiated Consent
the presence of not less than two witnesses of legal age that they take each The party did not agree to enter into There is an expression of consent but
other as husband and wife. This declaration shall be contained in the the marriage there are outside factors which
marriage certificate which shall be signed by the contracting parties and influence the consent given.
their witnesses and attested by the solemnizing officer. The marriage is void The marriage is merely voidable
In case of a marriage in articulo mortis, when the party at the point of Q: Is there such a thing as an internal consent?
death is unable to sign the marriage certificate, it shall be sufficient for No. Consent must be manifested through external acts like saying yes or
one of the witnesses to the marriage to write the name of said party, which nodding your head. What is important is that you signify your consent or
fact shall be attested by the solemnizing officer. (55a) perform this external act before the solemnizing officer.
Q: To what does consent refer? Q: To whom must consent be manifested?

Consent must be shown to the solemnizing officer.
Consent refers to the consent of the contracting parties and not of parental
consent. Consent is required because marriage is a contract, a voluntary act. Q: Is proxy marriage valid?
No. From the above requisites of a marriage ceremony, it can be inferred
Q: When we talk of defective essential requirement, to what does the law that the man and woman must personally declare that they accept each
refer? other as husband and wife. Futhermore, consent must be communicated
The law is referring to a defective consent and not on legal capacity. There personally before the solemnizing officer. Jurisprudence says that “before a
can be no defective legal capacity. One is either capacitated or not (18 years solemnizing officer” means actual presence before the solemnizing officer.
of not). No agents or attorneys in fact are allowed. As of this age, no jurisprudence
allows consent by telephone or fax messages. Basis, by the Dean, lies in the
Q: Is the consent required in marriage the same as the consent in ordinary requirement of personally manifesting your consent.
contracts?
The concept of consent is practically the same between ordinary contracts Q: Are common law marriages allowed?
and marriage. Although the subject matter may not be the same, the No. Common law marriages, whereby the parties just live together as
standards for determining consent are the same: (a) Voluntariness and (b) husband and wife without the celebration of marriage between them, is not

allowed because the parties must personally appear before the solemnizing not need to provide evidence for good faith since this is presumed. The one
officer and express their consent to the marriage contract. who alleges bad faith, is the one who must prove it.
c. Authority of Solemnizing Officer Member of the Judiciary
Art. 7. Marriage may be solemnized by: Q: Who are the members of the judiciary who can solemnize marriage?
Judges and Justices.
(1) Any incumbent member of the judiciary within the court's
jurisdiction; Q: Does this authority cover all courts?
Yes. Judges of the MTC or RTC, justices of the CA and SC, including judges
of the CTA and SB can solemnize marriages.
(2) Any priest, rabbi, imam, or minister of any church or religious
sect duly authorized by his church or religious sect and registered
Dean: The Family Code makes no distinction. At least, the weight of
with the civil registrar general, acting within the limits of the
authority is that the judges of the CTA and SB are authorized to solemnize
written authority granted by his church or religious sect and
marriages because they are after all, members of the judiciary. Even if they
provided that at least one of the contracting parties belongs to the
have limited jurisdiction, that aurhotiry includes solemnizing marriages.
solemnizing officer's church or religious sect;
However, there are those who are called judges or justices but are not (like
(3) Any ship captain or airplane chief only in the case mentioned in the Office of the SG or in Government Corporate Counsel). They cannot
in Article 31; solemnize marriages because they are not members of the Judiciary. Some
of them have only the rank justices but are not actually justices.
(4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military operation,
Q: Can judge of the barangay courts solemnize marriages?
likewise only in the cases mentioned in Article 32;
No. They are not members of the judiciary. They do not have the same
process of appointment as the judges and the justices. The latter are
(5) Any consul-general, consul or vice-consul in the case provided appointed by the President after being nominated by the JBC.
in Article 10. (56a)
Q: Is the Ombudsman authorized to solemnize marriages?
Q: How can we generally divide the solemnizing officers in marriages?
1. Members of the Judiciary No. Because he is not a member of the judiciary. He is a part of the
2. Mayors, as provided by the LGC prosecuting arm of the government (which is an executive function).
3. Religious
4. Others Q: Where does the authority of the judges or justices to solemnize marriages
5. Consuls come from? Is there a separate authority granted to them to solemnized
marriages?
Q: Is there any exception to the formal requirement of the authority of the They do not have any separate authority granted. They get their authority
solemnizing officer? from their appointment as judges or justices. So it is ex-officio. It’s a
Yes. Article 35(2) provides that marriages solemnized by any person not function of their office.
legally authorized to perform marriage are void, UNLESS such marriages
were contracted with either or both parties believing in good faith, that the Q: What are the limitations as to the authority of the judges or justices to
solemnizing officer had the legal authority to do so. Dean says that one does solemnize marriages?

1. Jurisdiction Dean: You will notice that there is now a shift insofar as religious people are
2. Period of incumbency. concerned because principally, the authority comes from the church and not
from the State. Unlike in the case of the judiciary where the authority really
Q: What do we mean by jurisdiction? comes from the State because it comes with their functions as judges, the
We are referring to territorial jurisdiction. If you are a judge of the RTC of authority of the religious people do not emanate from the State. The only
Makati, then you only have authority to solemnize marriages in the Makati thing that is required as far as the State is concerned is the fact that the
area. If you are a member of the SC, the whole Philippines is your territorial priest’s authority from the church is registered with the civil registrar
jurisdiction. So you can solemnize marriages all over the Philippines. With general. SO this is more a recording or registration than an approval.
respect to those with appellate jurisdiction, their territorial jurisdiction also
extend throughout the Philippines. Therefore, this is true with the CA, CTA Q; Leu us assume that for on reason or another, the Cardinal gives Mon the
and the SB. authority to solemnize marriages while he is still a seminarian. Is the
marriage valid? (Assume for this purpose that the Cardinal has the
Q; Is a judge required to solemnize a marriage within his sala? authority to grant the authority)
No. While it is prescribed, suggested and recommended that a marriage be
solemnized in the sala of the judge, this is not a mandatory requirement; Yes. We have to make a distinction between an irregularity and a total lack
therefore marriages can be solemnized outside the sala of a judge provided of authority. If a priest in fact does not have the authority from the church
that the place is still within the territorial jurisdiction of the judge. then he does not have the authority to solemnize marriages. But if a person
was granted the authority for one reason or another, even if the person is not
Q; What do we mean by period of incumbency? a qualified priest then there is an irregularity in obtaining the authority but
This refers to the time when the judge or justice take their oath of office up the fact that it has been irregularly issued does nto mean that he is not
to the time when they retire, or are terminated or separated from their office. authorized to solemnize marriages. The irregularity will not affect the
validity of the marriage but will subject the person to civil liabilities,
Q: Can they solemnize marriages during Saturdays, Sundays or Holidays? criminal prosecution or some administrative sanction.
Yes. When we speak of incumbency, we mean that a judge or justice does
not los authority just because it is a non-working day or holiday. Moreover, Q: What if the church or sect gives authority to one who is not a member of
they can also solemnize marriages at any time of the day or night. that church of sect?
Q: Suppose a judge has been suspended, can he still solemnize marriages? When we talk about authority of the religious people, we have to talk about
their own internal regulations. For as long as they have been authorized by
No. The authority to solemnize marriages comes from his function as a that church to solemnize marriages we are not really concerned about their
judge. So once that authority to exercise that function is suspended, then qualifications because what we are concerned about is the fact that they have
this includes also the authority to solemnize marriages. been authorized. But practically and in reality, most churches or sects do
not really grant authority unless the person is a member of that church of
Q: Where does the authority of the religious people to solemnize marriages sect.
come from?
Their authority emanates from their own religious sect, church or Ship Captain or Airplane Chiefs
denomination. So if you are already on ordained priest, and you have been
given the authority to solemnize the sacraments, including the sacrament of Art. 31. A marriage in articulo mortis between passengers or crew
matrimony, this is your authority. 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. (74a)

Yes. The authority of the airplane chief remains until that point in time
Q: Under what conditions can ship captains or airplane chiefs solemnize when the parties disembark from the airplane.
marriages?
1. It must be a marriage where at least one of the parties is in articulo Q: Happy had a flight from Manila to Davao but he had to stop at Cebu to
mortis catch a connecting flight to Davao. While at the Cebu airport, he suffered a
2. The marriage is between passengers or crew members. heart attack and wanted to marry Maife right away, can the airplane chief
3. The marriage may be solemnized not only while the ship is at sea solemnize the marriage? If es, which airplane chief can solemnize their
or the plane is in flight but also during stopovers at ports of call. marriage?
Q: What do we mean by in articulo mortis? Dean: A lot of questions have been generated by this term “stopover.”
A marriage in articulo mortis is solemnized where one o the parties is at the Obviously, if you are just staying in the place and taking the same plane to
point of death. your final destination, then there is really no problem there. Even assuming
that you are taking the same plane and you are told to disembark, will that
Q: What if one of the parties is terminally ill with cancer, and he is aboard a still be covered under the authority of the pilot? I would think that it will
PAL Flights, can he request the airplane chief to marry him and his still be within the authority of the pilot even if you are waiting there at the
girlfriend? airport terminal. If you are taking a connecting flight, is that considered a
No. In articulo mortis does not mean that a person is terminally ill but that stopover? If you have to be very liberal about it, then it is a stopover
that a person is at the point where he is about to die. SO even if the person because your voyage starts from manila and ends in Davao. Then in that
is sick with cancer and all of the doctors in the world have given him no instance, the only problem would be which pilot you are going to call.
hope of living, he cannot avail of the in articulo mortis provision. But it may Never mind, in all likelihood, you will not find the pilots anymore. And you
be a different story if he suffers a heart attack while on board and he is about will be dead by the time they will find one.
to die and he asks the airplane chief to marry him and his girlfriend. Then
the marriage may be validly solemnized by the airplane chief. Also remember that this provision will only apply to those marriages
solemnized within Philippine territory. So if you are taking a flight to San
Q: What is the effect on the marriage if the person at the point of death Francisco, and there is a stopover in Hawaii, even if you are in Hawaii and it
subsequently recovers? is a stopover, you cannot call on the pilot to solemnize your marriage
because it will not be considered valid because the provision applies only to
The marriage is still valid. It is not important whether a person does recover those marriages celebrated within the Philippine territory. The marriage
or does not recover. What is important is that a marriage is solemnized should be construed according to the laws of the state where it was
because one of the parties is at that point when he is about to die. celebrated. However, if the marriage was celebrated inside the plane then
the marriage is valid if the vessel of plane is of Philippine registry, because
Q: Can the ship captain solemnize a marriage between a passenger and a they are considered extensions of our territory.
stowaway?
Yes. The term passenger should be construed to mean somebody who is Military Commanders of a Unit
aboard the ship or airplane, whether he is a paying or non-paying passenger
and who is not a member of the crew. Art. 32. A military commander of a unit, who is a commissioned officer,
shall likewise have authority to solemnize marriages in articulo mortis
Q: What if the airplane lands at the airport and just before disembarking between persons within the zone of military operation, whether members
from the plane, one of the parties is about to die. Can the airplane chief of the armed forces or civilians. (74a)
solemnize the marriage?
Q: Under what conditions can military commanders solemnize marriages?

1. the marriage may be solemnized where at least one of the parties is Consul-General, Consuls or Vice-Consuls.
in articulo mortis, whether he be a civilian or a member of the
armed forces. Art. 10. Marriages between Filipino citizens abroad may be solemnized by
2. the officiating officer must be a commissioned officer—the officer a consul-general, consul or vice-consul of the Republic of the Philippines.
must command at least a battalion, and he must also at least have a The issuance of the marriage license and the duties of the local civil
rank of 2nd lieutenant. registrar and of the solemnizing officer with regard to the celebration of
3. the marriage must take place during the conduct of military marriage shall be performed by said consular official. (75a)
operations.
4. a chaplain must be assigned to the military an said chaplain must Q: Under what conditions can consuls solemnize marriages?
be absent at the time when the couple is to get married. 1. They can solemnize marriages only between Filipinos. They cannot
5. the marriage must be celebrated within the zone of military solemnize mix marriages. The Filipinos to be married need not be
operations. permanent residents of the foreign country. They may merely be
tourists.
Dean: This provision has always confused me. The Civil Code as well as 2. The marriage is celebrated in the Philippines consulate abroad.
the Family Code now provides that it must a military unit where a chaplain
is assigned and in the absence of such chaplain… What happens if there is Q: Can an ambassador solemnize marriages?
no chaplain assigned to that battalion? Does this mean that nobody can No. Only the consuls are authorized to solemnize marriages.
solemnize the marriage? It is rather strange. Well that is the law. Therefore,
if there is no chaplain attached to the military unit then it is not within the Q: If the consuls are on home leaves to the Philippines, can they solemnize
authority of the military commander to solemnize the marriages. marriages?
No.
Q: Who are the parties to the marriage?
They can be civilians o they can be members of the battalion. They can be Q: Are marriages solemnized by consular officials exempt from the
anybody within the vicinity of the military operations like those simply marriage license requirement?
watching the operations, military doctors, a member of a bandit group, etc. No. In this case, the consular official should issue the license and other
requirements. The duty of the Civil Registrar shall be preformed by the
Q: What is the zone of military operations? consular official.
This is not an accurately defined territory. But looking into the Committee Municipal and City Mayors
reports, this could mean any territory where military operations are being
conducted and military operations are defined as civil war, an action where The Civil Code gave mayors the authority to solemnize marriages. But the
there is use of military maneuver, rebellion, war and this even include police Family Code removed such authority because experience had shown that
actions. most violations of the law on marriage were committed by these politician
who desire to please their constituents. However, the Local Government
Q: Can a police general solemnize marriages? Code restored this aurhtority to the mayors, Therefore, mayors have again
Reviewer: Dean says yeah, if the solemnizing officer has the equivalent rank the authority to solemnize marriages.
of 2nd Lieutenant. But a hand-written annotation in the reviewer says this is
wrong. I suppose because Police are supposedly civilians. Non-civilians are Just like judges and justices, their authority emanates from the fact that they
the Military. (Primer: Fr. Bernas) have been elected and proclaimed as mayors. Again, with respect to the
period, it should be their incumbency, that is, from the time they are legally
proclaimed up to the end of their term, or end of their tenure by non-

reelection, removal or retirement. Furthermore, they are covered by solemnizes a marriage outside his court’s jurisdiction, there is a
territorial jurisdiction rule. So the mayor of Manila cannot solemnize resultant irregularity in the formal requisites laid down in Article 3,
marriages in Makati. which while it may not affect the validity of the marriage, may subject
the officiating official to administrative liability.
If the vice-mayor is the “acting mayor” then he can be a solemnizing officer.
Aranes v. Occiano
Beso v. Daguman FACTS:
FACTS:  Margarita Aranes charged Judge Occiano for gross ignorance of the law
 Zenaida S. Beso charged Judge Juan J. Daguman, Jr. with solemnizing because he solemnized her marriage without the requisite marriage
marriage outside his jurisdiction and of negligence in not retaining a license and at Nabua, Camarines Sur which is outside his territorial
copy and not registering the marriage contract with the office of the jurisdicion.
Local Civil Registrar. ISSUE: Whether or not Occiano is liable for solemnizing marriage outside
 Judge Daguman is a municipal judge of Sta. Margarita, Samar. He his area of jurisdiction.
solemnized the marriage of Beso in his residence in J.P.R. Subdivision in HELD:
Calbayog City, Samar.  YES. The territorial jurisdiction of Occiano is limited to the
ISSUE: Whether or not Daguman is liable for solemnizing marriage outside municipality of Balatan, Camarines Sur. His act of solemnizing the
his area of jurisdiction. marriage in Nabua, Camarines Sur is contrary to law and subjects him
HELD: to administrative liability.
 YES. As presiding judge of the MCTC Sta. Margarita Tarangnan-  Furthermore, he should be faulted for solemnizing a marriage without
Pagsanjan, Samar, the authority to solemnize marriage is only limited to the requisite marriage license. In People v. Lara, the court held that a
those municipalities under his jurisdiction. Clearly, Calbayog City is no marriage which preceded the issuance of the marriage license is void,
longer within his area of jurisdiction. and that the subsequent issuance of such license cannot render valid or
 There are only 3 instances, as provided by Article 8 of the FC, wherein a even add an iota of validity of such marriage. It is the marriage license
marriage may be solemnized by a judge outside of his chambers or at a that gives the solemnizing officer the authority to solemnize a marriage.
place other than his sala, to wit: Thus, the judge did not possess such authority when he solemnized the
1. when either or both of the contracting parties is at the point of marriage of Aranes.
death;
2. when the residence of either party is located in a remote place; Navarro v. Domagtoy
3. where both of the parties request the solemnizing officer in FACTS:
writing in which case the marriage may be solemnized at a  Navarro filed an administrative case against the MCTC Judge
house or place designated by them in a sworn statement to that Hernando Domagtoy for two specific acts namely: 1) for solemnizing
effect. the marriage despite the groom is merely separated from his wife; and
 In this case, there is no pretense that either Beso or his fiancé Yman was 2) solemnized the marriage outside his court’s jurisdiction.
at the point of death or in a remote place. Neither was there a sworn
written request made by the contracting parties to the Judge that the ISSUE: Whether or not the Mayor is liable.
marriage be solemnized outside his chambers or at a place other than HELD:
his sala. What, in fact appears on record is that respondent Judge was  YES. Inasmuch as respondent judge’s jurisdiction covers the
prompted more by urgency to solemnize the marriage because Beso municipalities of Sta. Monica and Burgos, he was not clothed with
was an overseas worker. authority to solemnize a marriage in the municipality of Dapa, Surigao
 Judges who are appointed to specific jurisdiction may officiate in del Norte. By citing Article 8 and the exceptions therein as grounds for
weddings only within said areas and not beyond. Where a judge

the exercise of his misplaced authority, the Judge demonstrated a lack (10) Full name, residence and citizenship of the guardian or
of understanding of the basic principles of civil law. person having charge, in case the contracting party has neither
father nor mother and is under the age of twenty-one years.
d. Marriage License
The applicants, their parents or guardians shall not be required to exhibit
Art. 9. A marriage license shall be issued by the local civil registrar of the their residence certificates in any formality in connection with the
city or municipality where either contracting party habitually resides, securing of the marriage license. (59a)
except in marriages where no license is required in accordance with
Chapter 2 of this Title. (58a) Art. 20. The license shall be valid in any part of the Philippines for a
period of one hundred twenty days from the date of issue, and shall be
 that the marriage license be issued by the local civil registrar of the city or deemed automatically cancelled at the expiration of the said period if the
municipality where either contracting party habitually resides is NOT a contracting parties have not made use of it. The expiry date shall be
mandatory requirement. stamped in bold characters on the face of every license issued.
Art. 11. Where a marriage license is required, each of the contracting Q. What is the marriage license?
parties shall file separately a sworn application for such license with the It is a piece of paper that you get from the Civil Registrar’s Office. It is a
proper local civil registrar which shall specify the following: formal requirement for a valid marriage.
(1) Full name of the contracting party; Q. What makes a marriage license void?
1. If it is not issued by the civil registrar or even if it was issued by the

(2) Place of birth;
civil registrar but signed b some unauthorized person; or
2. if the genuine license had expired
(3) Age and date of birth;
Q. What happens if somebody produces a fake marriage license form and
(4) Civil status; forges the signature of the civil registrar?
The marriage using that marriage license will be void. The good faith
(5) If previously married, how, when and where the previous exception will not apply here.
marriage was dissolved or annulled;
Q. How long will the marriage license remain valid after issuance?
It is valid for 120 days from the date of issuance and it shall be effective in
(6) Present residence and citizenship;
any part of the Philippines.
(7) Degree of relationship of the contracting parties; Q. What happens if the marriage license had already expired, does this mean
that you can no longer marry?
(8) Full name, residence and citizenship of the father; No, you can still marry, but you must first obtain another marriage license.
If you insist on marrying with the expired license, the marriage will be void.
(9) Full name, residence and citizenship of the mother; and
Q. H and W obtained a marriage license in Cebu. They got married in
Manila. Can they still use their license?

Yes. A marriage license is good anywhere in the Philippines. It can be used Q. What if you are between the ages of 21 and 25 and to do away with the
in places other than one where the marriage license was issued. It is not advice of your parents, you stated in our application that you are more than
necessary to obtain the marriage license from the place where the marriage 25 years age, what will happen to the marriage?
is to be celebrated,
This has no effect on the marriage. If you are between the ages of 21 and 25
Q. What is the exception to the rule requiring a marriage license. and you do not obtain parental advice, the only effect is that the marriage
The exceptions to this requirement are marriages in articulo mortis and those license should not be issued until after a period of 3 months. The issuance of
other exceptions as provided for in the Family Code (Arts. 27-34). the marriage license is based on the misrepresentation made is merely an
NOTE: Marriages solemnized between two Filipinos outside of the irregularity in a formal requisite which neither makes the marriage void nor
Philippines may be celebrated before the Philippine Consulate, not the voidable.
Philippine Embassy. These marriages still require the marriage license, to be
issued by the consul. i. Procedure in Obtaining a Marriage License
Q. What will be the state of validity of a marriage where the marriage license Art. 12. The local civil registrar, upon receiving such application, shall
applicant misrepresented certain information (fake age or wrong place of require the presentation of the original birth certificates or, in default
residence) and the civil registrar nonetheless issued a license? thereof, the baptismal certificates of the contracting parties or copies of
such documents duly attested by the persons having custody of the
It depends. Misrepresentation on matters concerning the minimum age for originals. These certificates or certified copies of the documents by this
marriage, sex and the existence of legal impediments will be considered a Article need not be sworn to and shall be exempt from the documentary
defect which would result in a void marriage. Misrepresentation concerning stamp tax. The signature and official title of the person issuing the
parental consent and advice is a mere irregularity in the marriage license. certificate shall be sufficient proof of its authenticity.
Irregularities in the formal requisites do not invalidate a marriage. They only If either of the contracting parties is unable to produce his birth or
subject the person guilty of the irregularity to the appropriate penalties. baptismal certificate or a certified copy of either because of the
destruction or loss of the original or if it is shown by an affidavit of such
party or of any other person that such birth or baptismal certificate has not
Q. X is 17 yrs. Old. He stated that he was 18 yrs. Old in his application. A
yet been received though the same has been required of the person having
license is issued.
custody thereof at least fifteen days prior to the date of the application,
such party may furnish in lieu thereof his current residence certificate or
X’s marriage will be void. The issuance of the marriage license is not
an instrument drawn up and sworn to before the local civil registrar
conclusive as to the existence of legal capacity. Legal capacity is not
concerned or any public official authorized to administer oaths. Such
determined by the civil registrar. If there is a defect on the legal capacity of
instrument shall contain the sworn declaration of two witnesses of lawful
the parties, the issuance of the license will not correct that defect. age, setting forth the full name, residence and citizenship of such
contracting party and of his or her parents, if known, and the place and
Q. What is the effect if you are between the ages of 18 and 21 and because date of birth of such party. The nearest of kin of the contracting parties
you do not want to get the consent of your parents, you stated in your shall be preferred as witnesses, or, in their default, persons of good
application that you are 26 years of age? reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if
The marriage will be voidable. The marriage suffers from a defect, not by the parents of the contracting parties appear personally before the local
reason of the misrepresentation made before the civil registrar, but because civil registrar concerned and swear to the correctness of the lawful age of
you are required to obtain the consent of your parents and the absence of said parties, as stated in the application, or when the local civil registrar
that leads to a voidable marriage. shall, by merely looking at the applicants upon their personally appearing

before him, be convinced that either or both of them have the required Q. In obtaining a marriage license, there are certain things which the civil
age. registrar will ask of you. What is the purpose for this?
Art. 17. The local civil registrar shall prepare a notice which shall contain Most of these requirements are for the purpose of determining whether you
the full names and residences of the applicants for a marriage license and are possessed with legal capacity to enter into marriage. You will notice,
other data given in the applications. The notice shall be posted for ten however, that in most cases, the examination of the civil registrar is limited
consecutive days on a bulletin board outside the office of the local civil to the age of the applicant and this is why he asks for the birth certificate. If
registrar located in a conspicuous place within the building and on the basis of the birth certificate, the applicant is qualified to enter into a
accessible to the general public. This notice shall request all persons marriage on account of his age, then the civil registrar will issue the
having knowledge of any impediment to the marriage to advise the local marriage license.
civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication. With respect to other impediments on account of public policy or incestuous
relationships, this is something which the local civil registrar cannot really
Art. 18. In case of any impediment known to the local civil registrar or
determine. He cannot determine whether or not prior existing marriage
brought to his attention, he shall note down the particulars thereof and
exists because the civil registrar’s office does not have computerized records
his findings thereon in the application for marriage license, but shall
of all marriages celebrated elsewhere in the Philippines. So essentially if
nonetheless issue said license after the completion of the period of
there is an impediment or there is somebody who wishes to object to the
publication, unless ordered otherwise by a competent court at his own
issuance of a marriage license, what the civil registrar can do is to note down
instance or that of any interest party. No filing fee shall be charged for the
the objection or opposition. He is powerless to rule on the objection or to
petition nor a corresponding bond required for the issuances of the order.
make a determination of whether or not an impediment exists unless, of
Art. 19. The local civil registrar shall require the payment of the fees course, it is on the basis of the birth certificate.
prescribed by law or regulations before the issuance of the marriage Thus, anyone who knows of any impediment shall not only come
license. No other sum shall be collected in the nature of a fee or tax of any forward before the local civil registrar, he should file the necessary action in
kind for the issuance of said license. It shall, however, be issued free of court to prevent the civil registrar from issuing the marriage license.
charge to indigent parties, that is those who have no visible means of
income or whose income is insufficient for their subsistence a fact Q. Can the civil registrar refuse to issue a marriage license?
established by their affidavit, or by their oath before the local civil No. The civil registrar is not a judicial body. It makes no determination of
registrar. whether or not the applicants are legally capacitated or not. The civil
registrar can make an initial determination s to whether you are legally
Art. 24. It shall be the duty of the local civil registrar to prepare the qualified to enter marriage or not. But this determination is not legally
documents required by this Title, and to administer oaths to all interested conclusive. So, you cannot say that because you have been granted a
parties without any charge in both cases. The documents and affidavits marriage license, you are actually capacitated to enter into a valid marriage.
filed in connection with applications for marriage licenses shall be exempt The function of the civil registrar is largely ministerial. For as long as you
from documentary stamp tax. submit all the requirements, they must issue the marriage license.
Art. 25. The local civil registrar concerned shall enter all applications for Q. Does the civil registrar have the discretion not to issue a marriage license
marriage licenses filed with him in a registry book strictly in the order in when somebody objects to its issuance?
which the same are received. He shall record in said book the names of the No. The civil registrar must still issue the marriage license, unless there is a
applicants, the date on which the marriage license was issued, and such court order prohibiting him from doing so.
other data as may be necessary.
Q. What is the purpose of the posting requirement?

The purpose is to have anyone who knows of any impediments to the
marriage to raise their objections. Objections should be raised, not to the Q. Who is going to give parental consent?
civil registrar but to the court. When you go to the court, you should ask for a) father;
the issuance of an order of prohibition to be issued against the civil registrar. b) mother;
c) anyone exercising substitute authority;
Q. Is it possible for the local civil registrar to initiate proceedings in court? d) persons considered as guardians; and
Yes, but do not rely on it heavily because you cannot expect him to institute e) persons of legal charge
the necessary proceedings. The law says he can, but if he does not or is not (in the order stated)
willing, there is no consequence.
Q. What if your father is still alive, but despite that you obtained the consent
Q. What must be presented to the civil registrar in obtaining a marriage required from your grandmother, what is the effect thereof?
license? This is not the consent required under the Family Code, thus the civil
We must make a distinction between applicants for registrar may refuse to issue you the license.
1. First marriages;
2. Subsequent marriages; and Q. What if you misrepresented to the civil registrar that your parents are
3. Alien applicants already dead, and by virtue of this, the civil registrar issued you a license
based on the consent given by your grandmother?
1. FIRST MARRIAGES
Marriage is valid. The marriage, however, is defective because there is no
Q. How is age shown? parental consent and therefore the marriage will still be considered voidable.
By presenting a copy of the birth certificate. This is the best evidence of one’s If you do not present the proper parental consent, then it is as if there was no
age. It does not necessarily mean that one is actually of the age represented parental consent given.
in the birth certificate.
Q. If you are between the ages of 21 and 25, what is necessary?
Q. What if you do not have a birth certificate? You are required to present a copy of the parental advice. The application
In lieu of the birth certificate, the applicant may present his: has attached to it a form for this purpose. All you have to do is to let your
a)baptismal certificate; parents sign it and state if the advice is favorable or not. An unfavorable
b)residence certificate; advice is not a valid parental advice.
c)parents who can affirm that he is at least 18 yrs. old;
d) face-age may, most of the time, be determined from the face; the Q. What is the effect of the absence of parental advice?
civil registrar can make an on the spot determination Parental advice is more for purposes of obtaining a marriage license. Its
absence will not affect the validity of a marriage provided that you have a
Q. If you are between the ages of 18-21, what may be required of you? marriage license. If there is no parental advice or if the parental advice is
You need to present a copy of your parental consent. The form of the unfavorable, you have to wait for 3 months before the license will be issued.
parental consent is already attached to the application. All your parents If, without waiting for three months, and for some reason you were able to
need to do is to fill up and sign the attached form. obtain a marriage license, then the marriage will merely be irregular, for
which reason the person responsible for the issuance of the marriage license
Q. If you do not present parental consent, can the civil registrar refuse to will be liable.
issue the marriage license?
Yes. While we say that the duty of the civil registrar is ministerial, the same Q. In addition to the requirement of either parental consent or parental
is only true if all the documentary requirements are presented. advice, what is necessary?

The contracting parties also need the certificate of marriage counseling from Yes. A marriage license is not a blanket authority to marry anyone. The
a priest or any other government agency, otherwise the local civil registrar license specifically states the parties to be married. Aside from that, the
shall suspend the issuance of the marriage license for 3 months after the marriage license is valid only for 120 days.
completion of publication.
Q. How is the marriage terminated?
Q. Who are required to go through marriage counseling? 1. Death
If either of the parties is between the ages of 18 ad 25, BOTH of the parties 2. Annulment of the marriage
must go through marriage counseling. 3. Declaration of nullity of the marriage
2. SUBSEQUENT MARRIAGES Q. What needs to be presented by a person, whose previous marriage was
terminated by death, to obtain a marriage license?
Art. 13. In case either of the contracting parties has been previously 1. death certificate of the previous spouse; or
married, the applicant shall be required to furnish, instead of the birth or 2. judicial declaration of presumptive death if basis is presumptive
baptismal certificate required in the last preceding article, the death death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his Q. If the previous marriage was terminated through its annulment or
or her previous marriage. declaration of its nullity, what must the person present to obtain a marriage
In case the death certificate cannot be secured, the party shall make an license?
affidavit setting forth this circumstance and his or her actual civil status He needs to present a copy of the final order of the court approving the
and the name and date of death of the deceased spouse. annulment or the declaration of nullity of his first marriage.
Q. What must be presented before a party can enter into a subsequent Q. What if the first marriage was terminated by divorce? Does divorce
marriage? authorize you to enter into a subsequent marriage?
He/she must prove the termination of his/her previous marriage by As a general rule, NO. But if you had been previously married to an alien,
presenting either of the following: and he has obtained the divorce, it is possible for the Filipino spouse to
1) in case of death of spouse-death certificate or declaration of present the divorce decree to obtain a marriage license for his second
presumptive death; marriage. It is necessary, however, for the Filipino spouse wishing to obtain
2) in case of annulment of voidable marriage- judicial decree of a marriage license to convince the civil registrar that:
annulment; 1. the alien spouse was in fact an alien at the time of the celebration of
3) in case of declaration of nullity of void marriage- judical decree of the marriage;
nullity; 2. the alien spouse obtained the divorce; and
4) in case of divorce; 3. such decree capacitated the alien spouse to contract a second
a) if foreign divorce-judicial decree of absolute divorce marriage
b) if issued during the Japanese occupation- decree of
absolute divorce, if recognized as valid. Q. Is it necessary for one who has been previously married to present his
c) If issued on the basis of Art.26 of the Family Code- judicial birth certificate in obtaining a marriage license?
decree of absolute divorce No, it is no longer required, because it is assumed that one who has been
previously married was already qualified at the time of the celebration of the
Q. Is it still necessary for one who has been previously married to obtain first marriage.
another marriage license?

Q. If you are between the ages of 18 and 21, do you still have to present No, they are not. They are required to secure a marriage license but not the
parental consent even if you have been previously married? usual marriage license.
No. According to the Family Code, “unless you had been previously
emancipated by a prior marriage, then you must present parental consent.” Q. What must they get instead?
It is assumed that you had been given parental consent for your previous They must get a certification from their consular official that they are legally
marriage. capacitated to marry.
NOTE: It has been argued, however, that parental consent must be obtained Q. What is the purpose for this?
anew. The consent given for the previous marriage is not a blanket consent This certification is solely for the purpose of issuing a marriage license by
to marry anyone the child pleases. the local civil registrar. Pursuant to the nationality theory, all he needs to
present is a certificate of legal capacity issued by his own consular office. We
Q. Is parental advice necessary for a person between the ages of 21 and 25, do not contest whether that certification is true or not. Thus the certification
who has been previously married, to obtain a marriage license for has to be accepted on its face value by the local civil registrar.
contracting a second marriage?
Q. What if the alien is in fact not legally capacitated to marry, what is the
Yes. There is no exception similar to the exception given for parental effect of the certification?
consent. Since parental advice is not based on parental authority but on filial The marriage is void. The certification will not validate the marriage entered
love and respect, no matter how old you are, getting parental advice is part into.
of the Filipino tradition.
Q. What do stateless individuals and refugees who wish to marry in the
Unfortunately however, this has resulted in an absurd situation because if Philippines have to present?
you apply the provision which says that you are required to get parental In case of stateless individuals (those who have lost their citizenship and
consent or advice, you have to go through the marriage counseling course. have not acquired a new one) as well as refugees (only those who are
In effect, those persons between the ages 18 and 21, who have been citizens of other countries who have come to the Philippines seeking asylum
previously married are no longer required to get marriage counseling, while or under refugee status from their own countries and not Filipino refugees
persons older than them have to go through marriage counseling. who obtain refugee status in other countries), they are required to submit a
Dean does not think that the effect discussed above was intended sworn affidavit stating therein that:
by the framers of the Family Code. However, it leaves us with no choice, 1. they do not have any country or citizenship; and
because that is how the provision was literally interpreted. 2. they are qualified to marry
This affidavit takes the place of all documentary requirements.
4. ALIEN APPLICANTS
Q. Is the affidavit self-serving?
Art. 21. When either or both of the contracting parties are citizens of a Yes, but it is the best that our laws can come up with since no
foreign country, it shall be necessary for them before a marriage license consular official can certify to their legal capacity to marry.
can be obtained, to submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or consular officials. Q. What is the purpose of the affidavit?
Stateless persons or refugees from other countries shall, in lieu of the It is solely for the purpose of obtaining a marriage license.
certificate of legal capacity herein required, submit an affidavit stating the
circumstances showing such capacity to contract marriage. Q. What is the effect if the statements in the affidavit are not true?
Q. Are aliens who wish to get married in the Philippines exempt from
getting marriage license?
In addition to being liable for stating untruthful statements in the affidavit Art. 32. A military commander of a unit, who is a commissioned officer,
which is subscribed under oath or notarized, the marriage would still not be shall likewise have authority to solemnize marriages in articulo mortis
considered as valid, if in fact, there are several impediments to the marriage. between persons within the zone of military operation, whether members
of the armed forces or civilians.
Q. If such foreigner marry a Filipino, what requirements should be complied
with? Art. 33. Marriages among Muslims or among members of the ethnic
Insofar as the Filipino spouse is concerned, the requirements given by the cultural communities may be performed validly without the necessity of
Family Code should be followed. marriage license, provided they are solemnized in accordance with their
customs, rites or practices.
ii. Marriages Exempt from Marriage Licenses
Art. 34. No license shall be necessary for the marriage of a man and a
Art. 27. In case either or both of the contracting parties are at the point of woman who have lived together as husband and wife for at least five
death, the marriage may be solemnized without necessity of a marriage years and without any legal impediment to marry each other. The
license and shall remain valid even if the ailing party subsequently contracting parties shall state the foregoing facts in an affidavit before
survives. any person authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the qualifications of
Art. 28. If the residence of either party is so located that there is no means the contracting parties are found no legal impediment to the marriage.
of transportation to enable such party to appear personally before the
local civil registrar, the marriage may be solemnized without necessity of Q. There are certain marriages where the requirement of a marriage license
a marriage license. is not required. What are these marriages?
1) Article 27-where either or both of the contracting parties
Art. 29. In the cases provided for in the two preceding articles, the are at the point of death (marriage in articulo mortis)
solemnizing officer shall state in an affidavit executed before the local 2) Article 28-where the residence of either party is so located
civil registrar or any other person legally authorized to administer oaths that there is no means of transportation to enable such
that the marriage was performed in articulo mortis or that the residence of party to appear personally before the local civil registrar
either party, specifying the barrio or barangay, is so located that there is (marriage in a remote place)
no means of transportation to enable such party to appear personally 3) Article 33- marriage among Muslims or among members
before the local civil registrar and that the officer took the necessary steps of the ethnic cultural communities; if solemnized in
to ascertain the ages and relationship of the contracting parties and the accordance with their customs, rites or practices.
absence of legal impediment to the marriage. 4) Article 34- marriage of a man and a woman who have
lived together as husband and wife for at least 5 years and
Art. 30. The original of the affidavit required in the last preceding article, without legal impediment to marry each other.
together with the legible copy of the marriage contract, shall be sent by
the person solemnizing the marriage to the local civil registrar of the Q. Are these type of marriages still subject to other requirements?
municipality where it was performed within the period of thirty days Yes. The requirement that there be no impediment to the marriage
after the performance of the marriage. applies to all kinds of marriages even to those exempt from a marriage
license. So when you speak of a marriage exempt from the requirement of
Art. 31. A marriage in articulo mortis between passengers or crew marriage license, only the marriage license is exempt. In some cases, the
members may also be solemnized by a ship captain or by an airplane pilot authority of the solemnizing officer is different as in the case of marriage in
not only while the ship is at sea or the plane is in flight, but also during
articulo mortis, but obviously essential and formal requisites must be
stopovers at ports of call.
present.

1. IN ARTICULO MORTIS formal requirement. A marriage license is exempt in any case where the
foregoing conditions appear. Filing of the affidavit is only a post-marriage
Q. If the marriage is in articulo mortis, do you still have to comply with the requirement.
requirement regarding authority of the solemnizing officer? Yes.
2. REMOTE PLACE
Q. Who are the persons who can solemnize a marriage in articulo mortis?
Essentially all those who are authorized to solemnize marriage under Article Q. What is a remote place?
One where there is no means of transportation, whether public or private,
7. The important point to remember is that it is not only the ship captain or whether one kilometer away or thousands of kilometers away. It doesn’t
airline chief pilot or military commander who are given the authority to have to be separated by bodies of water.
solemnize marriage in articulo mortis. Judges, justices, religious people as
well as mayors are likewise authorized to solemnize marriages. In all cases, A remote place is a relatively new concept. Under the Civil Code, the remote
a marriage license is not required. place is to be justified as a place which is x number of kilometers away from
the local civil registrar. The old concept was commensurate on the basis of
Q. What happens if either or both parties in a marriage in articulo mortis distance rather than difficulty or absence of means of transportation. The
actually recover? Family Code now dispenses with the distance requirement. It doesn’t have
Their marriage remains valid. There is no need for them to remarry. to fall within a certain radius or exceed a certain number of kilometers from
the local civil registrar.
Q. How do you prove that the marriage was in fact celebrated?
The solemnizing officer will make an affidavit stating the circumstance/s Q. What is therefore the test in determining a remote place?
under which the marriage was celebrated (i.e. there was no marriage license Is there a means of transportation? Whether public or private. It doesn’t
and the parties or either of them was at the point of death at the time of matter if one or both of the parties have physical disabilities.
celebration of the marriage or that the residence of either party is located in a
remote place, and that he took the necessary steps to ascertain the ages and Q. Assuming that a person who desires to get married lives in one of the
relationship of the contracting parties and the absence of a legal impediment islands of Palawan and there is no public transportation going to the local
to the marriage). civil registrar which is in Puerto Princesa, but there are fishermen who ply
the sea in that area and their bancas will permit him to get to Puerto
Q. Where does the solemnizing officer file the affidavit? Princesa. Is this person exempt from the requirement of a marriage license?
With the civil registrar’s office of the place where the marriage was
celebrated. No. What is contemplated in the exemption from getting a marriage license
is the absence of any means of transportation to go to the local civil registrar.
Q. If for one reason or another, the solemnizing officer fails or forgets to file For as long as there is a means of transportation, whether public or private,
the affidavit, will that have any effect on the validity of the marriage? the place will not be considered as a remote place.
No. Whether he files the affidavit or not, the marriage will still be considered
valid. The only effect is that it becomes more difficult to prove the Q. What if the place can be traveled only by foot, is there a means of
celebration of the marriage. transportation?
None. Such is a remote place. Walking is not considered a means of
Q. Is it correct to say that the affidavit is a substitute in lieu of the marriage transportation.
license?
No. The affidavit is not a substitute in lieu of the marriage license because to Q. If you go to the strict interpretation of a remote place, invariably what
say so would make the marriage void on the ground of the absence of a happens to the solemnizing officer? Can you find one there?

Invariably, you cannot find one. Remember, a barangay captain/local Q. If a woman has been cohabiting with a married man for 2 years and his
chieftain cannot solemnize marriage. wife dies and the two of them cohabited again for 3 years, can they avail of
this provision?
3. MUSLIM MARRIAGES No. There must be no impediments during the 5-year period.
Q. What is exempt in marriage among Muslims or among members of ethnic Moreno v. Bernabe
cultural communities? FACTS:
They are exempt from getting a marriage license, if not required under their  Marilou Moreno filed this complaint against Judge Jose Bernabe of the
customs, rites or practices. Thus, we have to look into their customs, rites MTC for grave misconduct and gross ignorance of the law. She alleged
and practices. Thus rule will only apply if both husband and wife are that she and Marcelo were married before the said Judge. She avers
Muslims or if the husband is a Muslim (as, according to Dean, provided in that the judge assured her that the marriage contract will be released 10
the Muslim Code). If only the woman is a Muslim, apply the requirements of days after the marriage. Complainant visited the judge only to find out
the Family Code that she could not get the marriage contract because the office of the
local civil registrar failed to issue a marriage license.
5-YEAR COHABITATION ISSUE: Whether or not Judge is liable.
NOTE: elements: HELD:
a. exclusivity-absence of third parties  YES. The FC provides that the formal requisites of marriage are, inter
b. continuity-cohabitation as husband and wife 5yrs immediately alia, a valid marriage license except in the cases provided for therein.
preceeding the marriage Complementarily, it declares that the absence of any of the essential or
c. No impediments during the 5-yr period formal requisites shall generally render the marriage void ab initio and
that, while an irregularity in the formal requisites shall not affect the
Q. Therefore, how old should one be if marrying under this type of validity of the marriage, the party or parties responsible for the
marriage? At least 18 years old. irregularity shall be civilly, criminally and administratively liable.
 The Judge, by his own admission, solemnized the marriage between
Q. Assuming the contracting party/parties are between the ages of 18 to 21, Marilou and Marcelo without the required marriage license, has
do they still need parental consent? dismally failed to live up to his commitment to be the embodiment of
Yes, because in the absence of parental consent, the marriage will be competence, integrity and independence, and to his promise to be
considered voidable. There is no provision exempting parental consent. If faithful to the law.
the party/parties are between 18 to 21 years old, no matter how long they
have been cohabiting with each other, parental consent is still necessary. Sy v. CA
FACTS:
Q. If the parties are between 21 and 25, do they need parental advice?  Filipina Sy and Fernando Sy contracted marriage without a marriage
No. Parental advice is a marriage license requirement. So if a marriage license. Filipina filed a case for the declaration of absolute nullity of her
license is dispensed with, then there is no more reason for the parties to get marriage.
parental advice. Besides, because the effect of absence of parental advice ISSUE: Whether or not the marriage is void from the beginning for lack of
merely suspends the issuance of a marriage license until after three months marriage license.
and since you are exempt from getting a marriage license, there is no effect HELD:
at all. Furthermore, they don’t need it since in all likelihood, they have  YES. The date of issue of the marriage license and marriage certificate,
breached their parents’ advice by cohabiting. September 17, 1974, is contained in their marriage contract while the
date of the celebration of their marriage was November 15, 1973. Thus,
on the day of the marriage ceremony, there was no marriage license. A

marriage license is a formal requirement; its absence renders the is aware or has knowledge of any impediment to the union of the two
marriage void ab initio. shall make it known to the local civil registrar.
 From the time Pepito’s first marriage was dissolved to the time of his
Niñal v. CA marriage with respondent, only about 20 months had elapsed.
FACTS:  A voidable marriage cannot be assailed collaterally except in a direct
 Pepito Ninal was married to Teodulfa Bellones on September 26, 1974. proceeding while a void marriage can be attacked collaterally even after
Out of their marriage were born herein petitioners. Teodulfa was shot the death of either party.
by Pepito resulting in her death on April 24, 1985. 1 year and 8 months
later, Pepito and Notma Badayog got married without any marriage Forja-Manzano v. Sanchez
license. In lieu thereof, Pepito and Norma executed an affidavit stating FACTS:
that they lived together as husband and wife for at least 5 years and  Herminia Borja-Manzano avers that she was the lawful wife of the late
were thus exempt from securing a marriage license. David Manzano, having been married to him on May 21, 1966 in
 Thereafter, Pepito died in a car accident. After their father’s death, Caloocan City. On March 22, 1993, however, her husband contacted
petitioners filed a petition for declaration of nullity of marriage of another marriage with one Luzviminda Payao before respondent Judge.
Peptio and Norma alleging that the said marriage was viod for lack of When the judge solemnized said marriage, he knew or ought to know
marriage license. that the same was void and bigamous, as the marriage contracted
clearly stated that both contracting parties were separated.
ISSUE: Whether or not the cohabitation period referred to in the FC should  The judge contend that he officiated the marriage without the
be for a continuous period and exclusive with each other as husband and knowledge that Manzano was legally married. What he knew was that
wife regardless of whether there is a legal impediment to their being the two had been living together as husband and wife for 7years
lawfully married. already without the benefit of marriage, as manifested in their joint
affidavit.
HELD:
 NO. The five-year period should computed on the basis of a ISSUE: Whether or not respondent judge is liable.
cohabitation as ‘husband and wife’ where the only missing factor is the HELD:
special contract of marriage to validate the union. In other words, the 5-  YES. Article 34 of the FC provides that for legal ratification of marital
year common-law cohabitation period, which is counted back from the cohabitation to apply, the following requisites must concur:
date of celebration of marriage, should be a period of legal union had it 1. The man and woman must have been living together as
not been for the absence of the marriage. This 5-year period should be husband and wife for at least five years before the marriage;
the years immediately before the day of the marriage and it should be a 2. The parties must have no legal impediment to marry each
period of cohabitation characterized by exclusivity – meaning no third other;
party was involved at any time within the 5 years and continuity – that 3. The fact of absence of legal impediment between the parties
is unbroken. Otherwise, if that continuous 5-year cohabitation is must be present at the time of marriage;
computed without any distinction as to whether the parties were 4. The parties must execute an affidavit stating that they have
capacitated to marry each other during the entire 5 years, then the law lived together for at least 5 years and are without legal
would be sanctioning immorality and encouraging parties to have impediment to marry each other; and
common law relationships and placing them on the same footing with 5. The solemnizing officer must execute a sworn statement that
those who lived faithfully with their spouse. he had ascertained the qualifications of the parties and that he
 Reason for the requirement of marriage license: to notify the public that had found no legal impediment to their marriage.
two persons are about to be united in matrimony and that anyone who  Not all of these requirements are present in the case at bar. It is
significant to note that in their separate affidavits the fact of their prior

existing marriage. Also, in their marriage contract, it was indicated that 1. The contracting parties must appear personally before the
both were ‘separated’. solemnizing officer.
 Judge knew or ought to know that a subsisting previous marriage is a 2. Personal declaration that they accept each other as husband and
diriment impediment, which would make the subsequent marriage null wife.
and void. In fact, in his comment, he stated that he had known that the 3. Presence of not less than two witnesses of legal age.
late Manzano was married he would have discouraged him from 4. Public Ceremony
contracting another marriage. And Judge cannot deny knowledge of
Manzano’s and Payao’s subsisting previous marriage, as the same was The declaration shall be contained in the marriage certificate which
clearly stated in their separate affidavits which were subscribed and shall be signed by the contracting parties and their witnesses and
sworn to before him. attested by the solemnizing officer. (this does not affect validity of the
 The fact that Manzano and Payao had been living apart from their marriage)
respective spouses for along time already is immaterial. Article 63 (1) of
the FC allows spouses who have obtained a decree of legal separation to Requirements 1 and 2 are mandatory while requirements 3 and 4
live separately from each other, but in such a case the marriage bonds are merely directory.
are not severed. Elsewise stated, legal separation does not dissolve the
marriage tie, much less authorize the parties to remarry. This holds true Q. Which parts of the ceremony are vital?
all the more when the separation is merely de facto, as in the case at bar. It is clear from this provision that the law does not require any
particular form for the ceremony. All that the law requires is that both
e. Ceremony parties personally appear before the solemnizing officer and declare that
they take each other as husband and wife. All the other elaborate rituals and
Art. 6. No prescribed form or religious rite for the solemnization of the formalities which we commonly associate with marriage are optional.
marriage is required. It shall be necessary, however, for the contracting
parties to appear personally before the solemnizing officer and declare in The absence of the other requirements of this article will not affect the
the presence of not less than two witnesses of legal age that they take each validity of the marriage, thus if:
other as husband and wife. This declaration shall be contained in the a. there were no witnesses;
marriage certificate which shall be signed by the contracting parties and b. the declaration was not done orally;
their witnesses and attested by the solemnizing officer. c. no marriage certificate or contract
In case of a marriage in articulo mortis, when the party at the point of the validity of the marriage is not affected
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 Q. Does the venue or manner of celebrating the ceremony affect the validity
fact shall be attested by the solemnizing officer. of the marriage?
Article. 8. The marriage shall be solemnized publicly in the
No. This does not go into the formal requisites. You can get
chambers of the judge or in open court, in the church, chapel or temple, or
married anywhere so long as the solemnizing officer has the proper
in the office the consul-general, consul or vice-consul, as the case may be,
authority and you personally declare your consent to him.
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
Q. What about the requirement in Article 8 that requires that the marriage be
where both of the parties request the solemnizing officer in writing in
solemnized publicly?
which case the marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect.
This requirement is not mandatory. The fact is, the parties can
Q. What are the requirements for a marriage ceremony? request the solemnizing officer in writing, before the celebration, that the

marriage be held elsewhere, like a residence, or any other place the parties Art. 23. It shall be the duty of the person solemnizing the marriage to
may agree on. And even if they do not make this request, if the solemnizing furnish either of the contracting parties the original of the marriage
officer does in fact solemnize the marriage in a “non-public” place, he has certificate referred to in Article 6 and to send the duplicate and triplicate
impliedly consented to the ceremony. copies of the certificate not later than fifteen days after the marriage, to
Thus, the ceremony being held in a public place is not mandatory. the local civil registrar of the place where the marriage was solemnized.
In fact, it can be held anywhere. The only exception: where the solemnizing Proper receipts shall be issued by the local civil registrar to the
officer is a judge, then the ceremony has to be held within the territorial solemnizing officer transmitting copies of the marriage certificate. The
jurisdiction of his court. This also applies when the solemnizing officer is the solemnizing officer shall retain in his file the quadruplicate copy of the
Mayor. marriage certificate, the copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting
Q. With regard to the requirement of at least 2 witnesses of legal age, does party regarding the solemnization of the marriage in place other than
any defect render the marriage invalid? Is this requirement part of the those mentioned in Article 8.
mandatory requirements for purposes of the validity of the marriage?
This involves the following scenarios: Both witnesses are absent; Q. What about the marriage certificate? Is it part of the essential formal
Only 1 witness is absent; or both are not of legal age. The opinions involve requisites of a valid marriage? Is it like the marriage license?
two schools of thought. The Dean espouses one side: that the presence of
witnesses is not a mandatory requirement so there can be no void marriage. No. Unlike the license, the marriage certificate is not a requisite for
This is because any doubt must be resolved in favor of marriage. The other a valid marriage. It is issued after the parties have celebrated their marriage
position stresses that it is a mandatory requirement which would affect the and is a contract signed after the celebration in order to evidence the
validity of the marriage. But no jurisprudence is yet present in either schools marriage’s existence. Even without the certificate, the marriage will be valid
of thought even if this element is required in marriage ceremonies. as long as all the essential and formal requisites are present. Thus, failure of
one or both parties to sign the certificate or the omission of the solemnizing
3. Non-essential Requirements officer to forward a copy of the certificate to the proper civil registry does
not invalidate the marriage.
a. Marriage Certificate The certificate is merely evidentiary. It is considered as the best
evidence of the existence of marriage. Of course it is not the only proof of
Art. 22. The marriage certificate, in which the parties shall declare that marriage for in the absence of a certificate, the existence of the marriage can
they take each other as husband and wife, shall also state: still be proven by other evidence.1
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence; COMMENTS: While generally, as against one who presents a marriage
(3) The date and precise time of the celebration of the marriage; certificate and one who presents secondary evidence of marriage, the former
(4) That the proper marriage license has been issued according to law, will prevail, the Rivera case ruled otherwise because it was shown that there
except in marriage provided for in Chapter 2 of this Title; were two different Venacio Riveras.
(5) That either or both of the contracting parties have secured the All things being equal, however, and there being no dispute as
parental consent in appropriate cases; regards the identity of the person, the marriage certificate is still the best
(6) That either or both of the contracting parties have complied with the
legal requirement regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, 1
The Rules of Court provide for a disputable presumption of marriage
attaching a copy thereof. when a man and a woman live together and carry themselves as husband
and wife.

evidence of the existence of marriage. Being a document, the certificate is the  Catalina Sanchez claiming to be the widow of Roberto Sanchez, averred
best evidence of the facts stated therein and is considered as primary that her husband was the owner of a 275 sq. meter parcel of land located
evidence. In the absence of the certificate, secondary evidence is admissible in Cavite which was registered without her knowledge in the name of
to prove the existence of marriage. One may even rely on the presumption of the petitioners on the strength of an alleged deed of sale executed in
marriage provided for in the Rules of Court. their favor by her late husband.
 The petitioners questioned the personality of Catalina to file the
Balogbog v. CA complaint, contending that the late Roberto Sanchez was never married
FACTS: but had a common-law wife by whom he had two children.
 Private respondents are heirs of the deceased Basilio and Genovena
Balogbog. ISSUE: Whether or not a marriage contract is sufficient to prove the
 Leonica and Gaudioso Balogbog are the children of Basilio and existence of the marriage.
Genovena who died instate. They had an older brother, Gavino, but he HELD:
died in 1935 predeceasing their parents.  YES. Catalina Sanchez has proved her status as the widow of Roberto
 In 1968, PR brought an action for partition and accounting against with her submission of the marriage contract. It is strange that the trial
petitioners, claiming that they were legitimate children of Gavino by court should reject said evidence in favor of the TCT describing Roberto
Catalina Ubas and that, as such they were entitled to the 1/3 share of as ‘single’ disregarding the elementary principle that the best
Gavino in the estate of their grandparents. documentary evidence of a marriage is the marriage contract itself. A
 In the their answer, petitioners denied knowing PR. They alleged that Torrens certificate is the best evidence of ownership of registered land,
their brother Gavino died single and without issue in their parent’s not of the civil status of the owner.
residence. In the beginning they claimed that the properties of the
estate had been sold to them by their mother when she was still alive, Delgado v. Rustia
but they later withdrew this allegation. FACTS:
 To prove the existence of the marriage, PR presented witnesses who  Sometime in 1917, Guillermo Rustia proposed marriage to Josefa
testified as to the celebration of the marriage. Delgado but whether a marriage in fact took place is disputed.
According to petitioners, the two eventually lived together as husband
ISSUE: Whether or not marriage license is the sole evidence that may be and wife but were never married. To prove their assertion, petitioners
presented to prove the existence of marriage. point out that no record of the contested marriage existed existed in the
HELD: civil registry.
 NO. Although a marriage contract is considered primary evidence of  On the other hand, oppositors insist that the absence of a marriage
marriage, the failure to present it is not proof that no marriage took certificate did not of necessity mean that no marriage transpired. They
place – other evidence may be presented to prove marriage. maintain that Guillermo Rustia and Josefa Delgado were married on
 An exchange of vows can be presumed to have been made from the June 3, 1919 and from then on lived together as husband and wife. To
testimonies of the witnesses who state that a wedding took place, since support their proposition, oppositors presented the Philippine Passport
the very purpose for having a wedding is to exchange vows of marital of Josefa Rustia; titles to real properties in the name of Guillermo
commitment – it would indeed be unusual to have a wedding without indicating that he was married to Josefa; certificate of identity issued to
an exchange of vows and quite unnatural for people not to notice its Mrs. Guillerma Rustia by Carlos P. Romulo.
absence.
ISSUE: Whether or not a marriage contract is the only proof for the
Villanueva v. CA existence of marriage.
FACTS: HELD:

 YES. Although a marriage contract is considered a primary evidence of No. The marriage is void for the Philippine Embassy would be
marriage, its absence is not always proof that no marriage in fact took considered as an extension of Philippine territory, and as such, must comply
place. Once the presumption of marriage arises, other evidence may be with the requisites provided in the Family Code. (anyways, the thing is
presented in support thereof. The evidence need not necessarily or consul general issues marriage license, right?)
directly establish the marriage but must at least be enough to strengthen
the presumption of marriage. Q. What are the exceptions? (to lex loci celebrationis)
 Here, the certificate of identity issued to Josefa as Mrs. Gullermo Rustia, 1) Those contracted by any party below 18 years of age
the passport, and the titles to the properties, more than adequately This does not mean that if the parties are between 18 and
support the presumption of marriage. These are public documents 21 and they get married abroad that parental consent is dispensed
which are prima facie evidence of the facts stated therein. with. With respect to two Filipinos getting married abroad, under
the Civil Code, the requirements relating to parental consent
4. Marriages celebrated outside the Philippines should be complied with at all times. Otherwise, the marriage will
a. Validity and Exceptions be voidable.
Art. 26. All marriages solemnized outside the Philippines, in accordance 2) Those bigamous ad polygamous marriages not falling under
with the laws in force in the country where they were solemnized, and Article 41
valid there as such, shall also be valid in this country, except those With respect to divorces obtained abroad by Filipinos,
prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. these are not recognized under Philippine law. The only exception
Where a marriage between a Filipino citizen and a foreigner is to this rule is under the second paragraph of Article 26.
validly celebrated and a divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to remarry, the Filipino spouse 3) Those contracted through mistake of one contracting party as to the
shall have capacity to remarry under Philippine law. (As amended by identity of the other.
Executive Order 227) This is really a case where there is no consent to the
marriage.
Q. What is the rule on marriages celebrated outside the Philippines?
Under the article, if the marriage is in accordance with the laws of 4) Those subsequent marriages that are void under article 53
the country where celebrated, and valid there as such, the marriage shall be
valid in the Philippines. The article therefore applies as the general rule the 5) Cases falling under Article 36 (psychological incapacity)
principle of lex loci celebrationis, but only as to the requirement of marriage
license, authority and ceremony. The essential requisites are still governed 6) Incestuous marriages under Article 37
by Philippine laws.
Note, however, that the first paragraph of Art.26 refers only to 7) Marriages that are void as being against public policy under Article
marriages between Filipinos or between a Filipino and an alien (with respect 38
to the Filipino spouse). The validity of marriages between aliens will have to
be determined in accordance with their own national law, following the COMMENTS: It is apparent that if any of the impediments to a valid
nationality principle. marriage under the Family Code exist, even marriages solemnized abroad
are void. Note that the list of exceptions even includes void marriages under
Q. A&B, both Filipinos, decided to get married before the consul general in Article 53 of the Family Code2.
the Philippine embassy in Washington without obtaining the needed
marriage license. Is the marriage valid?
2
Due to failure to liquidate property regime, distribute presumptive
legitime, etc.
Another important point is that regardless of where the marriage is
solemnized, the requirements of capacity and consent must be complied The Class’ Position: We should not construe Art. 26 in isolation. Art. 1
with. Thus, the essential requisites must always be complied with. (deemed clearly provide that marriage is a sacred union b/w man and woman. This is
to include sex). a clear expression of the public policy underpinning the FC. While same-sex
marriages are not included in Art. 38, this is not to say that same-sex
Q. What about the formal requisites? marriages are not contrary to public policy (ed: yes, the public policy of
civilizations stuck in the stone age). In fact the whole FC was premised on the
With respect to the formal requisites, the rule of lex loci celebrationis fact that marriage is only b/w man and woman.
is followed. Thus, the authority of the solemnizing officer, the need for a Neither can two gay men/women, find recourse under Art. 26. That refers
marriage license, and even the type of ceremony required, are all merely to the formal requisites of marriage, and as such, the essential
determined by the laws of the place where the marriage is celebrated. requisite (of penis and vagina) should not be considered as dispensed with
by the simple fact of having your marriage solemnized abroad. To allow
Q. The State of Nevada allows marriages to be celebrated over the telephone such a view would violate our public policy. (Of course, you could just go to
via conference calls, proxy marriages and marriages by fax transmission. Spain or San Francisco and get married there and not come back. Then get
Will marriages between Filipinos celebrated in Nevada by any of these citizenship. If you’re gay, and you want to get married, do you really think
means recognized in the Philippines? that the Philippines is the best place for you? Leave now, my homosexual
friend, and find peace in another place.)
Yes (claims the Dean). Insofar as proxy marriages and marriages by In any event, should this situation face our courts, the “James” Dean Del
telephone, etc. are concerned, if they are valid where the marriage is believes that the same-sex marriage wouldn’t be recognized here. Also,
celebrated, then they should be valid in the Philippines. Firstly, formal according to her, a marriage b/w a man and a former man (sex change)
requisites are not dealt with in Article 26, by way of exception, in the same would probably have a better chance. (Because now it would be between a
manner as the essential requisites. Secondly, while for marriages here, penis and a hole. But then again, the rectum works just as well. Hmmm.
consent is connected with the ceremony, for marriages abroad, the ceremony Tasty.)
is in accordance with lex loci celebrationis. The only strict “consent exception”
under Article 26 is in cases of mistaken identity. Q: Does the first paragraph of Art. 26 apply to foreigners?
No. Only to Pinoys. Foreigners are governed by the laws of their own
Q. What about same sex marriages celebrated abroad? Would they be country.
recognized in the Philippines?
Note: Art. 26 doesn’t apply:
DEAN’S POSITION: If we go strictly by Article 26, it would seem that they To a divorce obtained by a Pinoy abroad, from his Pinoy spouse – even if the
would be recognized in the Philippines. Article 26 does not include the divorce is valid. The reason is that divorce is not allowed in this country and
requirement that the parties have to be a man and a woman as one of the a Filipino is governed by his national law wherever he goes (Art. 15, CC); or,
exceptions to the general rule that marriages celebrated abroad, if valid To a divorce obtained by a former Pinoy, who obtained such after his
there, are valid here. Art.26 is a special provision which delas specifically naturalization. This might open the door to rich Pinoys obtaining
with the case of marriages celebrated abroad and expressly enumerates what naturalization abroad for no other reason than to get the fuck out of their
the exceptions are to the lex loci celebrationis rule. Thus, inclusio unius est loveless marriages. Hells yeah!
exclusio alterius. The requirements as regards the need for the parties to be of
the opposite sex are general provisions in relation to marriages in general in b. Foreign Divorce
the Philippines. The application of Art.26 as it is currently worded would
lead to the conclusion that same sex marriages would be recognized in the Q: Will divorces obtained in another country be recognized in the
Philippines. Philippines?

It depends. If 2 Americans got a divorce in the States, of course it’ll be legal separation which is still pending before the RTC of Manila on
recognized, silly. If 2 Pinoys got a divorce in the State, then it won’t be January 23, 1983.
recognized.  The Scheonberg Local Court of Germany issued the decree of divorce
on the ground of failure of marriage of the spouses. On June 27, 1986,
Van Dorn v. Romillo after the issuance of the divorce decree, petitioner’s husband filed two
FACTS: complaints for adultery before the City Fiscal of Manila alleging that
 Alice Van Dorn is a Filipino citizen while Richard Upton is a US citizen. while still married to said respondent, petitioner had affairs with two
They were married in Hongkong. Subsequently, the parties were men.
divorced in Nevada.  Petitioner then filed a special civil action for certiorari and prohibition
 Richard filed a suit against Alice in RTC Pasay, stating that Alice’s on the ground that the court has no jurisdiction to try the case of
business in Ermita is conjugal property of the parties and asking that adultery since the purported complainant, a foreigner, does not qualify
Alice be ordered to render an accounting of that business, and that as an offended spouse having obtained a final decree of divorce under
Richard be declared with right to manage the conjugal property. his national law prior to his filing of the complaint.
 Alice moved to dismiss the case on the ground that the cause of action is
barred by previous judgment in the divorce proceedings in Nevada, ISSUE: Whether the foreigner husband has the legal capacity to sue.
wherein Richard acknowledged that he and Alice had no community HELD:
property. The lower court denied the petition.  The foreigner husband has no legal capacity to sue.
 Under Art. 344 of the RPC, the crime of adultery as well as other crimes
ISSUE: What is the effect of the foreign divorce on the parties and their against chastity cannot be prosecuted except upon a sworn written
alleged conjugal property in the Philippines? complaint filed by the offended spouse. It is therefore indispensable
HELD: that the status and capacity of the complainant to commence the action
 It is true that owning to the nationality principle embodied in Art. 15 of be established and it must exist at he time he initiates the action. In the
the CC, only Philippines nationals are covered by the policy against present case, the fact that the husband obtained a valid decree in his
absolute divorces, the same being considered contrary to our concept of country before the action is admitted.
public policy and morality. However, aliens may obtain divorces  Under Art. 15 of the CC, only Philippine nationals are covered by the
abroad, which may be recognized in the Philippines, provided they are policy against absolute divorces since it is contrary to our concept of
valid according to their national law. public policy and morality. However, aliens may obtain divorces
 Pursuant to Richard’s national law, he is no longer Alice’s husband. He abroad, which may be recognized in the Philippines, provided that they
would have no standing to sue in the case below as Alice’s husband are valid according to their national law. Since pursuant to his national
entitled to exercise control over conjugal assets. As he is bound by the law, private respondent is no longer the husband of petitioner before
decision of his own country’s court, which validly exercised jurisdiction instituting this action, he would have no standing to file the complaint
over him, he is estopped by his own representation. for adultery.
Pilapil v. Ibay-Somera Q: What are the requisites for the 2nd paragraph of Art. 26?
FACTS: Marriage is b/w a Filipino and a foreigner
 Imelda Pilapil, a Filipino citizen, and private respondent Geiling, a
German national, were married in the Federal Republic of Germany. - determine citizenship at the time of celebration
After about 3 ½ years, marital discord set in which resulted to a - for subsequent changes in citizenship:
separation de facto between them and a divorce initiated against
petitioner by the husband in Germany before the Seconberg Local Court 2 Pinoys get married and one later becomes a citizen of another country, Art.
in January 1983. He claimed that there was a failure of their action for 26 won’t apply since this’d be a circumcision, este circumvention of our

laws. BUT, the new alien (ex-Pinoy) can remarry, since the nationality that Paula was pregnant and was living in and having an adulterous
principle applies (Llorente). HOWEVER, Dean says that the Pinoy should be relationship with his brother.
able to get married (since this would allow equalization of the status of the  Lorenzo returned to the US and filed for divorce with the Superior
parties, which is exactly why Art. 26 exists in the first place) Court of the State of California.
2 aliens get married, and one later becomes Pinoy (like Norman Black, or  Lorenzo returned to the Philippines and married Alicia who had no
Dayanara). Art. 26 not applicable. He’s fucked. Can’t get a divorce now, knowledge o fthe first marriage even if they resided in the same town as
bitch. Paula.
2 Pinoys get married, both become citizens of another country. Art. 26  Before Lorenzo died, he executed a will which was pending before the
doesn’t apply. Instead, use the nationality principle. probate court. After his death, Paula filed with the same court a
Dual citizenship. If the parties are citizens of both the Philippines and some petition for letters of administration over his estate in her favor.
other country, the prohibitions and exceptions of Art. 26 would still apply.  RTC found that the divorce decree granted to Lorenzo is void and
BUT, that’s only if the issue arises here. If it arises in a 3rd country (i.e., not inapplicable in the Philippines, therefore the marriage he contracted
one of the ones of which the party is a citizen), then who knows? Dual with Alicia is likewise void.
citizenship considerations really only apply in 3rd party countries anyway.  CA: affirmed.
(For a fuller discussion of this principle, please refer to your Conflicts notes.)
ISSUE: Whether or not the divorce is valid.
Divorce obtained at the behest of the alien, NOT the Pinoy. HELD:
Divorce decree must capacitate the alien to remarry  YES. In Van Dorn v. Romillo, Jr., the court held that owning to the
nationality principle embodied in Article 15 of the CC, only Philippine
Q: Does Art. 26 terminate the marriage? nationals are covered by the policy against absolute divorces, the same
No. It only recognizes the absurd situation of a Filipino still being married to being considered contrary to the concept of public policy and morality.
the alien, while the latter can fuck around without consequences. The very In the same case, the court ruled that aliens may obtain divorces abroad,
purpose of Art. 26 is to equalize the situation. provided they are valid according to their national law.
 Furthermore, in the case of Quita v. CA, that once proven that
Q: Does Art. 26 have a retroactive effect? respondent was no longer a Filipino citizen when he obtained the
It depends. If before the effectivity of the FC, a divorce was obtained, the divorce from petitioner, the ruling in Van Dorn would become
Filipino spouse can remarry provided the requirements in Art. 26 are found. applicable and petitioner could very well lose her right to inherit from
(Dunno what this is based on. Probably Van Dorn though.) him.
 The CA failed to apply these doctrines in the case of Lorenze. Thus, the
Q: Does Art. 26 apply wherever the marriage is celebrated? ruling must be reversed.
YES, baby.
Garcia v. Recio
Llorente v. CA FACTS:
FACTS:  Recio, a Filipino, was married to Editha an Australian citizen. They
 Lorenzo and Paula were married in Camarines Sur. Before the outbreak lived together as husband and wife in Australia. On May 18, 1989, a
of the Pacific War, Lorenzo departed for the US while Paula stayed in decree of divorce, purportedly dissolving the marriage was issued by an
their conjugal home in Camarines Sur. Australian family court.
 Lorenzo was then admitted to US citizenship. Upon the liberation of  On June 26, 1992, Recio became an Australian citizen and he married
the Philippines, Lorenzo was granted an accrued leave by the U.S. Navy Garcia. However, they separated without prior judicial dissolution of
to visit his wife in the Philippines. When he went back, he discovered their marriage.

 Garcia filed a complaint for declaration of nullity of marriage on the other. Upon advice of a mutual friend, they decided to obtain a divorce
ground of bigamy – Recio allegedly had a prior subsisting marriage at from the Dominican Republic.
the time he married her.  ON June 12, 1984, the civil court in the Dominican Republic ratified the
divorce by mutual consent of Tristan and lily. Subsequently, on June
ISSUE: 23, 1984, RTC Makati City, ordered the complete separation of
 Whether or not the divorce between Editha and Recio is valid. properties between Tristan and Lily.
 Whether or not Recio was proven to be legally capacitate to marry.  On July 14, 1984, Tristan married Elmar O. Perez in the State of Virginia
HELD: in the US and both lived as husband and wife. During their
 Philippine law does not provide for absolute divorce, hence, the courts cohabitation, Perez discovered that the divorce decree issued by the
cannot grant it, and a marriage between 2 Filipinos cannot be dissolved court in the Dominican Republic which dissolved the marriage between
even by a divorce obtained abroad. In mixed marriages involving a Tristan and Lily was not recognized in the Philippines and that her
Filipino and a foreigner, Article 26 of the FC allows the former to marriage to Tristan was deemed void under Philippine Law.
contract a subsequent marriage in case the divorce is ‘validly obtained  On August 13, 2001, Tristan filed a petition for the declaration of nullity
abroad by the alien spouse capacitating him or her to remarry.’ A of his marriage to Lily with RTC Q.C. Subsequently, Perez filed a
divorce obtained abroad by a couple, who are both aliens, may be Motion for Leave to File Intervention claiming she has a legal interest in
recognized in the Philippines, provided it is consistent with their the matter in litigation because she knows certain information which
respective national laws. might aid the court in the disposition of the case.
 Before a foreign judgment is given presumptive evidentiary value, the
document must be first presented and admitted in evidence. A divorce ISSUE: Whether or not Perez may intervene in the proceedings.
obtained abroad is proven by the divorce decree itself. Indeed the best HELD:
evidence of a judgment is the judgment itself. The decree purports to be  NO. Under the law, Perez was never the legal wife of Tristan, hence her
a written act or record of an act of an official body or tribunal of a claim of legal interest has no basis.
foreign country.  When Perez and Tristan married, Tristan was still lawfully married to
 The legal capacity to contract marriage is determined by the national Lily. The divorce decree that Tristan and Lily obtained from the
law of the party concerned. The certificate mentioned in Article 21 of Dominican Republic never dissolved the marriage bond between them.
the FC would have been sufficient to establish the legal capacity of It is basic that the laws relating to family rights and duties, or to the
Recio, had he duly presented it in court. A duly authenticated and status, condition and legal capacity of persons are binding upon citizens
admitted certificate is prima facie evidence of legal capacity to marry on of the Philippines, even though living abroad. Regardless of where the
the part of the alien applicant for a marriage license. As it is, however, citizen of the Philippines might be, he or she will be governed by the
there is absolutely no evidence that proves Recio’s legal capacity to Philippine laws with respect to his or her family rights and duties, or to
marry Garcia. his or her status, condition and legal capacity. Hence, if a Filipino
 A divorce decree does not ipso facto clothed a divorcee with the legal regardless of whether he or she was married here or abroad, initiates a
capacity to remarry – he must adduce sufficient evidence to show the petition abroad to obtain an absolute divorce from the spouse and
foreign State’s personal law governing his status, or at the very leas, he eventually becomes successful in getting an absolute divorce decree, the
should still prove his legal capacity to contract the second marriage. Philippines will not recognize such absolute divorce.
Perez v. CA & Catindig 5. Void and Voidable Marriages

FACTS: a. Difference between void and voidable
 Tristan Catindig married Lily Gomez twice (Central Methodist Church
and then at Lourdes Catholic Church). Several years later, the couple VOID VOIDABLE
encountered marital problems that they decided to separate from each

NATURE Inexistent from time of Valid until annulled  Karl Heinz Weigel asked for the declaration of nullity of his marriage
performance with Lilia Oliva Weigel on the ground that Lilia’s previous existing
marriage to Eduardo Maxion.
RATIFICATION Nope Yes. Either by free
 Lilia while admitting the existence of said prior subsisting marriage
cohabitation or by
claimed that said marriage was null and void, she and Eduardo having
prescription
been alleged forced to enter said marital union.
 Lilia asked the court for an opportunity to present evidence that the first
EFFECT ON No community property. ACP – unless another
marriage was vitiated by force and that Eduardo was already married
PROPERTY Only co-ownership (Art. system is agreed upon
to someone else at the time of their marriage.
147) the marriage settlement
EFFECT ON Illegitimate. Except: Legitimate. If conceived ISSUE: Whether or not there is a need for Lilia to prove that her first
KIDS Art. 54 before decree. marriage was vitiated by force.
Art. 53 HELD:
 NO. There is no need for Lilia to prove that her first marriage was
HOW IT MAY BE Directly or collaterally. Only direct – i.e., need vitiated by force committed against both parties because assuming this
IMPUGNED BUT, if for the purposes of the JDN to be so, the marriage will not be void but merely voidable, and
a subsequent remarriage, Can’t be impugned after therefore valid until annulled. Since no annulment has yet been made,
need the JDN. (Niñal) the death of the parties. it is clear that when she married Weigel she was still validly married to
Can still be impugned her first husband, consequently, her marriage to Weigel is void.
even after the death of the  Likewise there is no need of introducing evidence about the existing
parties. prior marriage of her first husband at the time they married each other,
for then such a marriage though void still needs a judicial declaration of
such fact and for all legal intents and purposes she would still be
i) Necessity of court declaration regarded as a married woman at the time she contracted her marriage
with Weigel.
Art. 40. The absolute nullity of a previous marriage may be invoked for Terre v. Terre
purposes of remarriage on the basis solely of a final judgment declaring FACTS:
such previous marriage void. (n)  Jordan Terre is a member of the Philippine Bar. Complainant Dorothy
Terre is a high school classmate of the respondent. She married a
- final judgment  even if decision has been rendered but it’s still not final, certain Merlito Bercenilla while Jordan remained single.
your second marriage, mr. can’t-keep-it-in-his-pants, is void.  Jordan was aware of Dorothy’s marital status. He then started courting
- last clause (“bases solely of a final judgment…”)  means that if want to her but nothing happened. Later, Jordan moved to Manila to study law
remarry, you definitely need this, and NO COLLATERAL ATTACKS at the Lyceum while Dorothy went to Manila also to study college.
allowed. Jordan continued courting her with more persistence. Convinced and
- no amount of nullity of the 1st marriage will validate the 2nd marriage if having favorable response from her mother and ex-in-laws, Dorothy
there’s a violation of Art. 40 agreed to marry Jordan. She wrote ‘single’ in her marriage license as
her status. They got married and out of this union, Jason Terre was
Weigel v. Sempio-Dy born.
FACTS:  All through their marriage, Dorothy supported Jordan through his
studies in addition to his allowance from his parents. Support from

Dorothy continued until the time Jordan disappeared in 1981. She was either or both parties believing in good faith that the solemnizing
not aware of the reason of his disappearance until she discovered that officer had the legal authority to do so;
he was married to a certain Vilma Malicdem. She filed a case for
abandonment of a minor and one for bigamy. Later, she charged Jordan (3) Those solemnized without license, except those covered the
with ‘grossly immoral conduct’ consisting of contraction a second preceding Chapter;
marriage and living with another woman other than her while the prior
marriage is subsisting. (4) Those bigamous or polygamous marriages not failing under
 Jordan successfully evaded 5 attempts to serve a copy of the complaint. Article 41;
Thereafter, he appeared and presented his defense that he was the one
hurt because of Dorothy’s prior marriage to Merlito. Furthermore, he
(5) Those contracted through mistake of one contracting party as
alleged that Jason was not his but Merlito’s as declared in Jason’s birth
to the identity of the other; and
certificate.
HELD: (6) Those subsequent marriages that are void under Article 53.
 A marriage contracted in good faith with woman already married is
valid. Hence, contracting a subsequent marriage with another woman - grounds 1-3 and 5 represent a lack of one of the essential requisites.
would be bigamous. Even if the court is to assume that Jordan Terre
held a mistaken belief in good faith, the same result will follow. For if Q: Is the enumeration exclusive?
the court to hold Jordan to his own argument, his first marriage to
Dorothy must be deemed valid, with the result that his second marriage No. Those which lack the essential or formal requisites (not covered in Art.
to Helina Malicdem must be regarded as bigamous and criminal in 35) are void even if not included herein. Also, common-law marriages,
character. marriage by proxy and marriage in jest are void, even if not included. Art.
53 also gives another instance. Finally, there are the next few succeeding
ii) Effect on filiation of children articles.
Q: What are the different types of void marriages?

Art. 54. Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final and Those void due to the absence of essential/formal requisites (Art. 4 and Art.
executory shall be considered legitimate. Children conceived or born of 35(1)(2)(3)(5))
the subsequent marriage under Article 53 shall likewise be legitimate. Void bigamous marriages. (Art. 35(4), in relation to Art. 41)
Marriage done subsequent to a declaration of nullity/annulment of the 1st
marriage, but w/o complying with the requirements of Art. 52 (Art. 53)
6. Void Marriages Psychological incapacity (Art. 36)
a. Grounds Incestuous marriages (Art. 37)
Marriages against public policy (Art. 38)
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age i) lack of essential/formal requirements (see previous
even with the consent of parents or guardians; discussion)
Below 18
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with

Q: Does parental consent correct this? Q: What are the exceptions to this requirement?
No. Marriage is void even if parental consent was given. This is because the
essential requisites of legal capacity is lacking. Marriages in articulo mortis.
Marriages in a remote place
Q: Must both be under 18 for the marriage to be void? Marriages b/w Muslims, or b/w non-Christians
No. It’s void whether only one or both are under 18. Marriages b/w parties who have been cohabiting together for at least 5
years.
Solemnizing officer had no authority
Republic v. CA
Q: What is the exception to this ground? FACTS:
When either or both contracting parties believed in good faith that the  Angelina Castro filed case for judicial declaration of nullity of her
solemnizing officer had legal authority. The belief of only one of them marriage to Edwin F. Cardenas on the ground that no marriage license
suffices. was ever issued to them prior to the solemnization of their marriage.
Good faith, under this exception, means the innocent party exerted  As proof, Castro offered in evidence a certification from the Civil
reasonable inquiry and investigation. Note that “good faith” only refers to Register of Pasig stating that the marriage license allegedly issued in the
the authority of the SO. You can’t claim good faith for the lack of other municipality does not appear in their records.
requirements. Of course, if you believed in good faith that marriage would
be a blessed union full of sunny days and wild nights of animalistic, ISSUE: Whether or not the documentary and testimonial evidence
unbridled and unending passion in bed with your spouse, then that’s presented are sufficient to establish that no marriage license was issued.
another question altogether. You’re probably insane. This might make it HELD:
voidable. Who knows? Good thesis topic.  YES. As custodians of public documents, civil registrars are public
officers charged with the duty of maintaining a register book where
Q: Nad and Rosy Palms got married. Their marriage was solemnized by a they are required to enter all applications for marriage licenses,
barangay captain (Bgy. Captain Barbell) Can Nad claim that his marriage is including the names of the applicants, the date the marriage license was
void because he believed in good faith that Bgy. Capt. Barbell had legal issued and such other relevant data. The certification of ‘due search and
authority to solemnize? inability to find’ issued by the civil registrar of Pasig enjoys probative
value, he being the officer charged under the law to keep a record of all
No. Good faith is not applicable in a case like this where there is a mistake in data relative to the issuance of a marriage license. Unaccompanied by
the INTERPRETATION OF THE LAW – regardless of how macho Capt. any circumstance of suspicion and pursuant to Section 29 Rule 132, a
Barbell is. certificate of ‘due search and inability to find’ sufficiently proved that
his office did not issue marriage license to the contracting parties.
Q. Nad and Rosy Palms got married before Bgy. Capt. Barbell whom they  Absence of marriage license renders the marriage void ab initio. Thus,
thought to be Mayor Barbell. Is the marriage valid if they invoke the good the marriage contracted was void from the beginning.
faith provision?
ii) Bigamous/polygamous marriages
Yes. A mayor has capacity to solemnize marriage. In this case, the parties
believed in good faith that Capt. Barbell had legal authority. The mistake Q: What is the effect of good faith of one of the parties?
committed is a MISTAKE OF FACT not a mistake of law. None, bitch. It’s immaterial.
No Marriage License - the only exception to this case is a valid application of Art. 41 (i.e., absence
of one of the spouses)

 Gregorio Nolasco filed a petition for the declaration of presumptive
aa) effect of absence death of his English wife Janet Monica Parker. Nolasco claimed that
bb) declaration of presumptive death Janet left their conjugal home after she gave birth to their child. He was
at such time detailed as a seaman overseas. He further alleged that
- absence does not mean that one spouse is merely gone from the place  upon discovery of the absence of Janet, he immediately returned to
absence here generally has more connotations of death than anything else Antique where he left her. He said that his efforts to look for her
- so, absence implies uncertainty as to whether the person is dead or alive  everytime his ship docked in England proved fruitless. He also said
a mere lack of awareness as to his whereabouts is obviously not enough that all the letters he had sent to his missing spouse at No. 38 Ravena
Road, Allerton, Liverpool, England, the address of the bar where he and
Q: In case of absence and remarriage under Art. 41, what periods do we Janet first met, were all returned to him. He further claimed that he
follow? inquired among friends but they to had no news of Janet Monica.
The menstrual period. Joke! Duh! In case of ordinary absence – 4 years. In  TC granted Nolasco’s petition. CA affirmed the decision holding that
case of extraordinary absence – 2 years. Once these periods are done, go to NOlasco sufficiently established a basis to form a belief that his absent
court and get that declaration, baby. But, you use these periods only for the spouse had already died.
purposes of remarriage. Use the ones in the Civil Code for all other  The RP appealed to the CA contending that the TC erred in declaring
purposes. Janet presumptively dead because Nolasco had failed to show that there
existed a well founded belief for such declaration.
- however, once death is proven (by the actual body, DNA evidence, etc.),
there’s no need to wait for the period to finish ISSUE: Whether or not Nolasco has a well-founded belief that his wife is
already dead.
Q: What are the stages of absence? HELD:
Appointment of a legal representative for administration of the property.  NO. There are 4 requisites for the declaration of the presumptive death
Court declaration of absence for the separation of property. under Art. 41 of the FC:
Court declaration of presumptive death. 1. That the absent spouse has been missing for 4 consecutive
years, or 2 consecutive years if the disappearance occurred
Q: If there is a court declaration of presumptive death, can the absentee were there is danger of death under the circumstances laid
remarry? down in Art. 391 of the CC;
Nope. Only the present spouse can remarry. If the absentee spouse 2. That the present spouse wishes to remarry;
remarries, then it’s bigamous. 3. That the present spouse has a well-founded belief that the
absentee is dead; and
Q: So, what are the requisites for a valid subsequent marriage? 4. That the present spouse files a summary proceeding for the
Absence of the other spouse declaration of presumptive death of the absentee.
Period of absence  The SC believes that Nolasco failed to conduct a search for his missing
Judicial declaration of presumptive death wife with such diligence as to give rise to a “well-founded belief” that
Good faith of the marrying spouse she is dead. The investigation allegedly conducted by Nolasco in his
Someone who will marry the present spouse (not really a requisite, but this attempt to ascertain Janet’s whereabouts is too sketchy to form a basis of
is kind of a no brainer, don’t you think?) a reasonable or well founded belief that she was already dead. When he
arrived in San Jose, Antique, after learning of Janet’s departure, instead
Republic v. Nolasco of seeking the help of local authorities or of the British Embassy, he
FACTS: secured another seaman’s contract and went to London instead of
Liverpool where Janet used to reside.

 The court also views Nolasco’s claims that Janet declined to give any Q: Same unfortunate facts as above. Can Jang say that he’s legally married to
information as to her personal background even after she had married Trina, his real lover and whom he intended to marry?
Nolasco. This is too convenient an excuse to justify his failure to locate
her. The same can be said of the alleged letters Nolasco had sent to his No. Consent of the contracting parties must be given before a solemnizing
wife which Nolasco claims were all returned to him. Nolasco said he officer. Here, Trina failed to give her consent to marry before a solemnizing
had lost these returned letters, under unspecified circumstances. officer.
 Neither did the SC give much credence to his bare assertion hat he had
inquired from other friends of her whereabouts, considering that he was Incestuous Marriages
unable to identify them in his testimony.
 The spouses should not be allowed, by the simple expediency of
agreeing that one of them leave the conjugal dwelling and never to Art. 37. Marriages between the following are incestuous and void from the
return again, to circumvent the policy of the laws on marriage. beginning, whether relationship between the parties be legitimate or
illegitimate:
Q: What happens to the 2nd marriage in case of reappearance of the absent
spouse? (1) Between ascendants and descendants of any degree; and
The 2nd marriage is AUTOMATICALLY TERMINATED when the
AFFIDAVIT OF REAPPEARANCE is filed with the civil registrar, either by
(2) Between brothers and sisters, whether of the full or half
the absentee spouse or by other interested persons.
blood. (81a)
Mistake as to Identity
Q: Why are they considered void?
Q: To what does this mistake refer? Gee, I dunno. Incestuous marriages are universally or almost universally
considered immoral and void as they contravene human nature, degrade the
Must be with regard to the PHYSICAL IDENTITY, and not with regard family, and offend decency and moral. (Not to mention produce retarded
merely to the character, health, rank, fortune or chastity of one party. kids.)
Neither will mistake as to the size of your husband’s butongtong matter.
Art. 38. The following marriages shall be void from the beginning for
Q: What is the reason for this rule? reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
The total lack of CONSENT to marry that particular person. Again, the size illegitimate, up to the fourth civil degree;
of your husband’s butongtong wouldn’t matter, since you’re not marrying
his butongtong, now are you? (Unless, of course, you are. But that’s an (2) Between step-parents and step-children;
entirely different matter.)
(3) Between parents-in-law and children-in-law;
Q: Jang and Trina decided to get married. At the wedding ceremony, it was
Ilards, the twin of Trina, who showed up and got married to Jang without (4) Between the adopting parent and the adopted child;
Jang’s knowledge. Is the marriage between Jang and Ilards valid?
No. The marriage was contracted through mistake of Jang as to Ilards’ (5) Between the surviving spouse of the adopting parent and the
adopted child;
identity. (lasing siguro)

(6) Between the surviving spouse of the adopted child and the marriage still exists, so obviously, no application; for art. 41, not sure (basta,
adopter; Dean Del said so)
(7) Between an adopted child and a legitimate child of the Q: What are the requirements under the foregoing articles?
adopter; court declaration of annulment/nullity (only where 52/53 apply)
distribution and liquidation
(8) Between adopted children of the same adopter; and delivery of the presumptive legitimes
SC Circular (2004):
(9) Between parties where one, with the intention to marry the
No entry of judgment, unless:
other, killed that other person's spouse, or his or her own spouse.
(82)
it’s entered in the civ registry where the marriage was celebrated and where
the judgment of annulment/nullity was decreed
Q: Why are these marriages considered against public policy? entered in the property registry where the real property is located
delivery of presumptive legitimes is proven
- B/w collateral blood relatives – known deleterious effects of the marriage
- B/w in-laws – offensive to sensibilities - Is the foregoing still applicable considering that finality occurs ipso facto
- B/w parties to adoption, etc. – adoption creates the relationship of parent- after the lapse of the requisite period to appeal? Will the validity of the 2nd
child, so it’s the same reasons for prohibiting a parent or parent in-law from marriage be affected? In other words, how much worth is the entry of the
marrying the child decree when you already have the judgment?  Hells yeah! 52/53 have to
- B/w legit kid of adopter and adopted and b/w adopted children of the be followed anyway. So if you don’t comply with them, you’re fucked, entry
same adopter – because they’re brother and sister of judgment or no entry of judgment.
- B/w parties where one killed the spouse of the other or his/her own
spouse – contrary to human experience and it promotes crime cc) Termination of subsequent marriage
iii) Psychological incapacity of parties
Failure to Distribute Presumptive Legitimes
Art. 36. A marriage contracted by any party who, at the time of the
Art. 52. The judgment of annulment or of absolute nullity of the marriage, celebration, was psychologically incapacitated to comply with the
the partition and distribution of the properties of the spouses and the essential marital obligations of marriage, shall likewise be void even if
delivery of the children's presumptive legitimes shall be recorded in the such incapacity becomes manifest only after its solemnization.
appropriate civil registry and registries of property; otherwise, the same
shall not affect third persons. Q: What is the reason for including psychological incapacity?
The reason is that the will of the party is affected. The PI must exist at the
Art. 53. Either of the former spouses may marry again after compliance start of the marriage. It means that the party can’t comply with the essential
with the requirements of the immediately preceding Article; otherwise, obligations of the marriage – i.e., he’s incapacitated to do so.
the subsequent marriage shall be null and void.
Q: What are the “essential martial obligations” referred to?
- legitimes computed as of the time of dissolution 1. help and support
- these articles are not applicable to a marriage dissolved by death, legal 2. living together
separation or art. 41  in death failure to comply with dissolution and 3. love, respect and fidelity
liquidation procedures only affects the property regime; in leg sep, the

These marital obligations include those to one’s spouse and to the children.
In other words, PI is available if the spouse is psychologically incapacitated Q: What are some indications of PI?
to be a spouse or to be a father/mother. Homosexuality or lesbianism
Excessive and promiscuous sexual hunger (yum!)
Q: Is it possible for the grounds of PI to overlap and be also applicable to Extremely low intelligence
annulment and nullity? What about legal separation? Immaturity – i.e., lack of an effective sense of rational judgment and
Jang Moreno has 3 testicles – they’re named Left, Right, and Micoy. responsibility otherwise particular to infants
Epilepsy with permanently recurring mal-adaptive manifestations (like
Yes. In such a case, file for either annulment or nullity. If the action for Julius Caesar – et tu, Brute?)
annulment has prescribed, file for nullity. Habitual alcoholism
The grounds claimed could also equal legal separation, instead of PI. Criminality
(Siangco, Quintero, Dedel, etc.) Refusal of wife to live with her husband for no reason, OR REFUSAL TO
HAVE SEX WITH HIM, or to have kids
Q: Differentiate PI from vice of consent. Sociopathic anomalies like sadism or infliction of physical violence,
PI has nothing to do with consent. A person might give free and voluntary continued laziness, indolence, drug dependence or some kind of
consent to a marriage, but his will may not be capable of fulfilling such psychosexual anomaly
rights and obligations. Hence, PI is not a question of defective consent, but a
question of fulfillment of valid consent. The indications must exhibit: a) gravity; b) antecedence; c) incurability
(Santos)
Q: Distinguish PI from incapacity.
Mental incapacity or insanity of some kind, like physical incapacity, is a vice Q: Who can file?
of consent; while PI is not a specie of vice of consent. As already stated, a Either. Even the one with PI. (Chi Ming Tsoi)
person might have given valid consent, but because of some psychological
disorder, he is unable to assume the essential obligations of marriage. Q: Does the action prescribe?
So, even if you have some kind of illness, or you’re slightly insane (who No. It’s just like any other action for nu,llity.
isn’t?), or you have some physical incapacity, but you can still comply with
your marital obligations, ok ka pa, pare ko. Q: What’s the status of the kids?
Furthermore, insanity or mental incapacity: If conceived or born before the decree, they’re legit (art. 54)
may be of varying degree; Jurisprudential Development

may be curable (hence the marriage can be ratified)
may be sporadic (lucid intervals) - Santos: 3 characteristics (gravity, antecedence, incurability)
is a ground for annulment only in many countries - Molina: 8 criteria for determining PI
- Antonio: lying is a ground (but see the facts of the case)  this case, though
Q: When must PI be present? stating that the Molina guidelines aren’t set in stone, still followed Molina 
At the time of the marriage, though it might manifest only after. in other words, according to the best civ review professor, ever, Molina is
still controlling
Q: Is the spouse with PI disqualified from marrying again? - also the Dean said that Antonio was probably decided the way it was
Nope. The PI will be revealed when the license for the 2nd marriage is because of the weight given by the Church to the previously approved papal
applied for anyway. This puts the other spouse on guard. annulment  in other words, who are we to mess with the Pope? Il Papa!
Besides, the PI can be relative – i.e,, only PI as to the current spouse. (Molina)

- the Dean also pointed out that Chi Ming Tsoi really had to do more with outright refusal or neglect in the performance of some marital
impotence  i.e., it should’ve been found voidable obligations. Mere showing of irreconcilable difference and conflicting
personalities is no wise constitutes psychological incapacity. It is not
Molina guidelines: enough to prove that the parties failed to meet their responsibilities and
burden of proof on petitioner; marriage presumed duties as married persons, it is essential that they must be shown to be
medically/clinically proven by experts (but now, expert evidence isn’t incapable of doing so, due to some psychological illness.
required)  Psychological incapacity should refer to no less than mental incapacity
exists at time of celebration (prove it existed both before and during) to the most serious of personality disorders clearly demonstrative of an
incurable – can be absolute or relative (i.e., you can marry again, psycho) utter insensitivity or inability to give meaning and significance to the
gravity marriage. It must exist at the time the marriage is celebrated. It must be
weight given to Church decisions – but the law isn’t just made for Catholics characterized by:
role of fiscal – Sol Gen not required to comment anymore; but they’re still 1. gravity;
needed to prevent collusion 2. judicial antecedence;
essential martial obligations – refer to those found in the FC 3. incurability
 The Court handed down the following guidelines for Art. 36:
Q: Is the action also imprescriptible even w/ regards to marriages under the 1. The burden of proof to show the nullity of the marriage
Civil Code? belongs to the plaintiff. Any doubt should be resolved in favor
No. For marriage solemnized before the FC, the action for nullity prescribes of the existence and continuation of the marriage and against
in 10 years. The FC took effect on Aug. 3, 1988. the dissolution and nullity.
2. The ROOT CAUSE of the psychological incapacity must be: a)
Nad Pugeda likes boys. medically or clinically identified; b) alleged in the complaint; c)
sufficiently proven by experts; and d) clearly explained in the
Republic v. Molina decision. The evidence must convince the court that the
FACTS: parties, or one of them, was mentally or psychologically ill to
 Roridel Molina filed a verified petition for declaration of nullity of such an extent that the person could not have known the
marriage to Reynaldo on the ground of psychological incapacity. obligations he was assuming, or knowing them, could not have
 She said that Reynaldo showed signs of immaturity and irresponsibility given valid assumption thereof.
as husband and father since he preferred to spend more time with his 3. The incapacity must be proven to be existing at the time of the
peers and friends on whom he squandered money; depended on his celebration of the marriage. The manifestation of the illness
parents for aid and assistance; and was never honest with her in regard need not be perceived at such time, but the illness itself must
to their finances. have attached at such moment, or prior thereto.
 Reynaldo was relived of his job in Manila and since then she had been 4. Such incapacity must also be shown to be medically or
the sole breadwinner of the family. clinically permanent or incurable.
 Thereafter, she resigned from her job in Manila and went to live with 5. Such illness must be grave enough to bring about the disability
her parents; a few weeks later, Reynaldo left and had since then of the party to assume the essential obligations of marriage.
abandoned them. 6. The essential marital obligations must be those embraced by
Art. 68 to 71 of the FC as regards the husband and wife as well
ISSUE: Whether or not Reynaldo is psychologically incapacitated. as Art. 220, 221 and 225 of the same Code in regard to parents
HELD: and their children.
 NO. There is no clear showing that the psychological defect spoken of
is an incapacity. It appears that it is more of a difficulty, if not an

7. Interpretation by the National Appellate Matrimonal Tribunal testimony of Dr. Antonio Gauzon failed to identify and prove the root
of the Catholic Church in the Philippines while not controlling cause of the alleged psychological incapacity. His testimony established
or decisive, should be given great respect by the courts. merely that the spouses had an incompatibility, a defect that could
possibly be treated or alleviated through psychotherapy.
Sin v. Sin  A medical examination is not a condition sine qua non to a finding of
FACTS: psychological incapacity, so long as the totality of evidence presented is
 Florence filed with RTC a complaint for declaration of nullity of enough to establish the incapacity adequately. Here, however, the
marriage against Philipp on the ground of psychological incapacity. totality of evidence presented by Alfonso was completely insufficient to
 RTC and CA dismissed the complaint. sustain a finding of psychological incapacity – more so without any
ISSUE: Whether or not the dismissal is proper. medical, psychiatric or psychological examination.
HELD:
 YES. Through out the trial, the State did not participate in the Dedel v. CA
proceedings. While the fiscal filed with the RTC a manifestation stating FACTS:
that he found no collusion between the parties, he did not actively  David Dedel filed a complaint for the declaration of nullity of his
participate therein. Other than entering his appearance at certain marriage to Sharon based on psychological incapacity.
hearings of the case, nothing more was heard from him. Neither did the  He avers that during their marriage, Sharon turned out to be an
presiding Judge take any step to encourage the fiscal to contribute to the irresponsible and immature wife and mother. She had extra-marital
proceedings. affairs with several men; a dentist in the AFP; a Lieutenant in the PSC
 The task of protecting marriage as an inviolable social institution and later a Jordanian National.
requires vigilant and zealous participation and not mere pro-forma  She was once confined in the Manila Medical City for treatment.
compliance. The trial court must order the prosecuting attorney or Despite the treatment, she did not stop her illicit relationship with the
fiscal and Solicitor General to appear as counsel for the State. No Jordanaian named Mustafa whom she married and with whom she had
decision shall be handed down unless the Solicitor General issues a 2 children. She later abandoned David to join Mustafa in his country
certification which will be quoted in the decision briefly stating therein with their 2 children.
his reason for his agreement or opposition as this case may be, to the ISSUE: Whether totality of the evidence presented is enough to sustain a
petition. The Solicitor General shall discharge the equivalent function finding that Sharon is psychologically incapacitated.
of the defensor vinculi contemplated under Canon 1095. HELD:
 NO. The difficulty in resolving the problem lies in the fact that a
Choa v. Choa personality disorder is a very complex and elusive phenomenon which
FACTS: defies easy analysis and definition. In this case, Sharon’s sexual
 Alfonso Choa filed before RTC a complaint for the declaration of nullity infidelity can hardly qualify as being mentally or psychologically ill to
of his marriage to Leni based on her alleged psychological incapacity. such an extent that she could not have known the obligations she was
 Alfonso complains about 3 aspects of Leni’s personality; namely, her assuming, or knowing them, could not have given a valid assumption
alleged: 1) lack of attention to their children; 2) immaturity; and 3) lack thereof. It appears that Sharon’s promiscuity did not exist prior to or at
of an intention of procreative sexuality. the inception of the marriage. What is, in fact, disclosed by the records
ISSUE: Whether or not Leni is psychologically incapacitated. is a blissful marital union at its celebration, later affirmed in church
HELD: rites, and which produced four children.
 NO. The evidence adduced by Alfonso merely shows that he and his  Sharon’s sexual infidelity or perversion and abandonment do not by
wife could not get along with each other. There was absolutely no themselves constitute psychological incapacity within the
showing of the gravity or juridical antecedence or incurability of the contemplation of the FC. Neither could her emotional immaturity and
problems besetting their marital union. Furthermore, the expert irresponsibility be equated with psychological incapacity. It must be

shown that these acts are manifestations of a disordered personality incapable of doing so due to some psychological, not physical illness.
which make Sharon completely unable to discharge the essential There was no proof of a natal or supervening disabling factor in the
obligations of he marital state, not merely due to her youth, immaturity persons, an adverse integral element in the personality structure that
or sexual promiscuity. effectively incapacitates a person from accepting and complying with
 At best, the circumstances relied upon by David are grounds for legal the obligations to marriage.
separation.
Siayngco v. Siayngco
Republic v. Quintero-Hamano FACTS
FACTS:  Juanita Carating- Siayngco and Manuel were married at civil rites and
 Lolita Quinter-Hamano filed a complaint for declaration of nullity of before the Catholic Church. After discovering that they could not have
her marriage to her husband Toshio Hamano, a Japanese national, on a child of their own, the couple decided to adopt a baby boy.
the ground of psychological incapacity.  After 24 years of married life together, Manuel filed for the declaration
 Toshio was psychologically incapacitated to assume his marital of its nullity on the ground of psychological incapacity of Juanita. He
responsibilities, which incapacity became manifest only after the alleged that all throughout their marriage, his wife exhibited an over
marriage. One month after their marriage, Toshio returned to Japan domineering and selfish attitude to wards him; that she complained
and promised to return by Christmas to celebrate the holidays with his about almost everything and anyone connected with him; that she
family. After sending money to Lolita for 2 months, he stopped given showed no respect or regard at all for the prestige and high position of
financial support. She wrote him several times but he never responded. his office as judge of MTC; that she would yell and scream at him and
Sometime in 1991, Lolita learned from his friends that Toshio visited the throw objects around the house within the hearing of their neighbors.
Philippines but he did not bother to see her and their child.
 TC: marriage is null and void. ISSUE: Whether or not Juanita is psychologically incapacitated.
HELD:
ISSUE: Whether Toshio is psychologically incapacitated.  NO. The case involves a husband who is constantly embarrassed by his
HELD: wife’s outbursts and overbearing ways, who finds his wife’s obsession
 NO. The totality of evidence presented fell short of proving that Toshio with cleanliness and the tight reign on his wallet ‘irritants’ and who is
was psychologically incapacitated to assume his marital responsibilities. wounded by her lack of support and respect for his person and his
His act of abandonment was doubtlessly irresponsible but it was never position as a judge. However, these inadequacies of Juanita which led
alleged nor proven to be due to some kind of psychological illness. Manuel to file a case against her do not amount to psychological
After Lolita testified on how Toshio abandoned his family, no other incapacity to comply with the essential marital obligations.
evidence was presented showing that his behavior was caused by a  Manuel failed to prove that his wife’s lack of respect for him, her
psychological disorder. Although, as a rule, there was no need for an jealousies and obsession with cleanliness, her outbursts and her
actual medical examination, it would have greatly helped Lolita’s case controlling nature are grave psychological maladies that paralyze her
had she presented evidence that medically or clinically indentified his from complying with the essential obligations of marriage. Neither is
illness. there any showing that these defects were already present at the
 Abandonment is also a ground for legal separation. There was no inception of the marriage or that they are incurable. In fact, Dr. Maaba
showing that the case at bar was not just an instance of abandonment in reported that Juanita was psychologically capacitated to comply with
the context of legal separation. The Court cannot presume the basic and essential obligations of marriage.
psychological defect from the mere fact that Toshio abandoned his  An unsatisfactory marriage is not a null and void marriage. Mere
family immediately after the celebration of the marriage. It is not showing of ‘irreconcilable differences’ and ‘conflicting personalities’ in
enough to prove that a spouse failed to meet his responsibility and duty no wise constitutes psychological incapacity.
as a married person; it is essential that he must be shown to be

Antonio v. Reyes imagination when he discovered they were not known in or
FACTS: connected with Blackgold.
 Petitioner and respondent met in August 1989 when petitioner was 26 o She represented herself as a person of greater means, thus, she
and respondent was 36 years of age. Barely a year after their first altered her payslip to make it appear that she earned a higher
meeting, they got married before a minister of the gospel and income. She bought a sala set from a public market but told
subsequently church wedding. petitioner that she acquired it from a famous furniture dealer.
 On March 8, 1993, petitioner filed a petition to have his marriage to o She exhibited insecurities and jealousies over him to the extent
respondent declared null and void on the basis of that respondent is of calling up his officemates to monitor his whereabouts. When
psychologically incapacitated to comply with the essential obligations he could no longer take her unusual behavior, he separated
of marriage. from her in August 1991. He tried to attempt a reconciliation
 As manifestations of respondent’s alleged psychological incapacity, but since her behavior did not change, he finally left her for
petitioner claimed that respondent persistently lied about herself, the good in November 1991.
people around her, her occupation, income, educational attainment and  In support of his petition, petitioner presented a psychiatrist and a
other events or things. clinical psychologist who stated that respondent’s persistent lying was
o She concealed the fact that she previously gave birth to an abnormal or pathological. They further asserted that respondent’s
illegitimate son, and instead introduced the boy to petitioner extreme jealousy was also pathological. It reached the point of paranoia
as the adopted child of her family. She only confessed the truth since there was no actual basis for her to suspect that petitioner was
about the boy’s parentage when petitioner learned about it having an affair with another woman.
from other sources after their marriage.  TC: declared marriage null and void.
o She fabricated a story that her brother-in-law, Edwin David,  Before the trial court rendered its decision, the Metropolitan Tribunal of
attempted to rape and kill her when in fact, no such incident the Archdiocese of Manila annulled the Catholic marriage of the parties,
occurred. on the ground of lack of due discretion on the part of the parties.
o She misrepresented herself as a psychiatrist to her obstetrician, During the pendency of the appeal before the CA, the Metropolitan
Dr. Consuelo Gardiner, and told some of her friends that she Tribunal’s ruling was affirmed with modification by both the National
graduated with a degree in psychology, when she was neither. Appellate Matrimonial Tribunal, which held instead that only
o She claimed to be a singer or a free-lance voice talent affiliated respondent was impaired by lack of due discretion. Subsequently, the
with Blackgold Recording Company (Blackgold); yet, not a decision of the National Appellate Matrimonial Tribunal was upheld by
single member of her family ever witnessed her alleged the Roman Rota of the Vatican.
singing activities with the group. In the same vein, she  CA: reversed RTC since the totality of the evidence presented was
postulated that a luncheon show was held at the Philippine insufficient to establish respondent’s psychological incapacity.
Village Hotel in her honor and even presented an invitation to
that effect ISSUE: Whether or not the facts as presented by petitioner sufficiently meets
o She invented friends named Babes Santos and Via Marquez, the standards set for the declaration of nullity of a marriage under Article 36
and under those names, sent lengthy letters to petitioner of the FC.
claiming to be from Blackgold and touting her as the “number
one moneymaker” in the commercial industry worth P2 HELD:
million. Petitioner later found out that respondent herself was  YES. The present case sufficiently satisfies the guidelines in Molina:
the one who wrote and sent the letters to him when she o First. Petitioner had sufficiently overcome his burden in
admitted the truth in one of their quarrels. He likewise realized proving the psychological incapacity of his spouse. Apart from
that Babes Santos and Via Marquez were only figments of her his own testimony, he presented witnesses who corroborated
his allegations on his wife’s behavior, and certifications from

Blackgold Records and the Philippine Village Hotel Pavillon able to commit to the basic tenets of relationship between
which disputed respondent’s claims pertinent to her alleged spouses based on love, trust and respect.
singing career. He also presented two (2) expert witnesses o Sixth. The Court of Appeals clearly erred when it failed to take
from the field of psychology who testified that the aberrant into consideration the fact that the marriage of the parties was
behavior of respondent was tantamount to psychological annulled by the Catholic Church. The appellate court
incapacity. In any event, both courts below considered apparently deemed this detail totally inconsequential as no
petitioner’s evidence as credible enough. Even the appellate reference was made to it anywhere in the assailed decision
court acknowledged that respondent was not totally honest despite petitioner’s efforts to bring the matter to its attention.
with petitioner. Such deliberate ignorance is in contravention of Molina, which
o Second. The root cause of respondent’s psychological held that interpretations given by the National Appellate
incapacity has been medically or clinically identified, alleged Matrimonial Tribunal of the Catholic Church in the
in the complaint, sufficiently proven by experts, and clearly Philippines, while not controlling or decisive, should be given
explained in the trial court’s decision. The initiatory complaint great respect by our courts. As noted earlier, the Metropolitan
alleged that respondent, from the start, had exhibited unusual Tribunal of the Archdiocese of Manila decreed the invalidity of
and abnormal behavior “of peren[n]ially telling lies, the marriage in question in a Conclusion dated 30 March 1995,
fabricating ridiculous stories, and inventing personalities and citing the “lack of due discretion” on the part of respondent.
situations,” of writing letters to petitioner using fictitious Such decree of nullity was affirmed by both the National
names, and of lying about her actual occupation, income, Appellate Matrimonial Tribunal, and the Roman Rota of the
educational attainment, and family background, among others. Vatican. In fact, respondent’s psychological incapacity was
o Third. Respondent’s psychological incapacity was established considered so grave that a restrictive clause was appended to
to have clearly existed at the time of and even before the the sentence of nullity prohibiting respondent from contracting
celebration of marriage. She fabricated friends and made up another marriage without the Tribunal’s consent.
letters from fictitious characters well before she married  The Court thus acknowledges that the definition of psychological
petitioner. Likewise, she kept petitioner in the dark about her incapacity, as intended by the revision committee, was not cast in
natural child’s real parentage as she only confessed when the intractable specifics. Judicial understanding of psychological incapacity
latter had found out the truth after their marriage. may be informed by evolving standards, taking into account the
o Fourth. The gravity of respondent’s psychological incapacity is particulars of each case, current trends in psychological and even
sufficient to prove her disability to assume the essential canonical thought, and experience. It is under the auspices of the
obligations of marriage. It is immediately discernible that the deliberate ambiguity of the framers that the Court has developed the
parties had shared only a little over a year of cohabitation Molina rules, which have been consistently applied since 1997. Molina
before the exasperated petitioner left his wife. Whatever such has proven indubitably useful in providing a unitary framework that
circumstance speaks of the degree of tolerance of petitioner, it guides courts in adjudicating petitions for declaration of nullity under
likewise supports the belief that respondent’s psychological Article 36. At the same time, the Molina guidelines are not set in stone,
incapacity, as borne by the record, was so grave in extent that the clear legislative intent mandating a case-to-case perception of each
any prolonged marital life was dubitable. situation, and Molina itself arising from this evolutionary understanding
o Fifth. Respondent is evidently unable to comply with the of Article 36. There is no cause to disavow Molina at present, and indeed
essential marital obligations as embraced by Articles 68 to 71 of the disposition of this case shall rely primarily on that precedent. There
the Family Code. Article 68, in particular, enjoins the spouses is need though to emphasize other perspectives as well which should
to live together, observe mutual love, respect and fidelity, and govern the disposition of petitions for declaration of nullity under
render mutual help and support. As noted by the trial court, it Article 36.
is difficult to see how an inveterate pathological liar would be

 Of particular notice has been the citation of the Court, first in Santos
then in Molina, of the considered opinion of canon law experts in the - before this article was amended, the second sentence read: “However, in
interpretation of psychological incapacity. This is but unavoidable, case of marriage celebrated before the effectivity of this Code and falling
considering that the Family Code committee had bluntly acknowledged under Art. 36, such action or defense shall prescribe in 10y after this Code
that the concept of psychological incapacity was derived from canon shall take effect”
law, and as one member admitted, enacted as a solution to the problem
of marriages already annulled by the Catholic Church but still existent Q: Why is an action for nullity imprescriptible?
under civil law. It would be disingenuous to disregard the influence of Mere lapse of time cannot give effect to a marriage or any other contract that
Catholic Church doctrine in the formulation and subsequent is null and void.
understanding of Article 36, and the Court has expressly acknowledged
that interpretations given by the National Appellate Matrimonial
Tribunal of the local Church, while not controlling or decisive, should Art. 40. The absolute nullity of a previous marriage may be invoked for
be given great respect by our courts. Still, it must be emphasized that purposes of remarriage on the basis solely of a final judgment declaring
the Catholic Church is hardly the sole source of influence in the such previous marriage void. (n)
interpretation of Article 36. Even though the concept may have been
derived from canon law, its incorporation into the Family Code and
Q: If Mansi and Vic marry prior to the procurement of a declaration of
subsequent judicial interpretation occurred in wholly secular
nullity of marriage by Mansi before her previous marriage, what is the effect
progression. Indeed, while Church thought on psychological incapacity
on this 2nd marriage?
is merely persuasive on the trial courts, judicial decisions of this Court
interpreting psychological incapacity are binding on lower courts.
It will be void! Parties to a marriage should not be allowed to assume that
 The interpretation of Article 36 relies heavily on a case-to-case
their marriage is void, even if that’s the case – they must first secure a JDN
perception. It would be insensate to reason to mandate in this case an
before they’ll be allowed to marry again.
expert medical or clinical diagnosis of incurability, since the parties
But, remember that the JDN is only for purposes of remarriage. If a party
would have had no impelling cause to present evidence to that effect at
simply wants to declare a sibling illegitimate, there’s no need for the JDN.
the time this case was tried by the RTC more than ten (10) years ago.
From the totality of the evidence, the Court is sufficiently convinced
that the incurability of respondent’s psychological incapacity has been
established by the petitioner. Any lingering doubts are further dispelled Art. 41. A marriage contracted by any person during subsistence of a
by the fact that the Catholic Church tribunals, which indubitably previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consider incurability as an integral requisite of psychological incapacity,
consecutive years and the spouse present has a well-founded belief that
were sufficiently convinced that respondent was so incapacitated to
the absent spouse was already dead. In case of disappearance where there
contract marriage to the degree that annulment was warranted. All told,
is danger of death under the circumstances set forth in the provisions of
the court conclude that petitioner has established his cause of action for
Article 391 of the Civil Code, an absence of only two years shall be
declaration of nullity under Article 36 of the Family Code. The RTC
sufficient.
correctly ruled, and the Court of Appeals erred in reversing the trial
court.
For the purpose of contracting the subsequent marriage under the
b. Declaration of Nullity preceding paragraph the spouse present must institute a summary
ART. 39. THE ACTION OR DEFENSE FOR THE DECLARATION OF ABSOLUTE NULLITY OF death of the absentee, without prejudice to the effect of reappearance of
the absent spouse. (83a)
A MARRIAGE SHALL NOT PRESCRIBE.

He was in the armed forces and had take part in war
He was in danger of death under other circumstances
The 2 year period is computed from the occurrence of the event.

Art. 42. The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of Q: What is the effect of the filing of the affidavit of reappearance.
reappearance of the absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio. Automatic termination of the subsequent marriage.
A sworn statement of the fact and circumstances of reappearance shall be Q: Is the filing of the affidavit conclusive as to the fact of reappearance?
recorded in the civil registry of the residence of the parties to the
subsequent marriage at the instance of any interested person, with due No. See last sentence of art. 42.
notice to the spouses of the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined in case such fact is Q: Can the reappearing spouse remarry?
disputed. (n)
No. If he does, his marriage is bigamous.
Q: What are the 2 kinds of bigamous marriages contemplated under the
above article?
Art. 43. The termination of the subsequent marriage referred to in the
That which is contracted by a person during the existence of his previous preceding Article shall produce the following effects:
marriage. The good faith of the remarrying party is immaterial, and the 2nd
marriage will be void. At the same time, if he’s in bad faith, he may even be (1) The children of the subsequent marriage conceived prior to its
criminally liable for bigamy. termination shall be considered legitimate;
That which is contracted by a persons whose spouse has been absent for 4
consecutive years (or 2, depending on the facts), such person having a well- (2) The absolute community of property or the conjugal
founded belief that the absent spouse is already dead AND after having the partnership, as the case may be, shall be dissolved and
latter judicially declared presumptively dead in a summary proceedings. liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community
Q: What is the purpose of requiring the declaration of presumptive death? property or conjugal partnership property shall be forfeited in
Protects the 2nd spouse from a bigamy prosecution. With the judicial the guilty spouse by a previous marriage or in default of children,
declaration, the good faith is established. the innocent spouse;
Q: What do you mean by absent spouse? (3) Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
Gone for at least 4 years, unknown whether or not he’s still alive, and the donations made to said donee are revoked by operation of law;
present spouse has a well-founded belief, yada, yada, yada.
The 4 year period is reduced to 2, if there was danger of death surrounding (4) The innocent spouse may revoke the designation of the other
the disappearance, as in the cases under art. 391 of the Civil Code: spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and
On board a vessel lost during a sea voyage, or an airplane which is missing

(5) The spouse who contracted the subsequent marriage in bad cohabiting with another woman and that he had been disposing of
faith shall be disqualified to inherit from the innocent spouse by some of her properties without her knowledge or consent.
testate and intestate succession. (n)  The petition prayed that a TRO or a writ of preliminary injunction be
issued enjoining Roberto from exercising any act of administration and
Q: What’s the effect of termination on the kids of the 2nd marriage? ownership over said properties; their marriage be declared null and
Kids conceived before termination are legit and their custody and support void and of no force and effect; and Delia be declared the sole and
shall be decided by the court in the proper proceeding in case of dispute. exclusive owner of all properties acquired at the time of their void
marriage and such properties be placed under the proper management
Q: What’s the effect on the ACP or CPG? and administration of the attorney-in-fact.
Dissolved and liquidated. But, if one was in bad faith, his share in the net  Roberto filed a motion to dismiss.
profits will be forfeited in favor of:  RTC: denied motion to dismiss.
 CA: affirmed. It observed that the separation and subsequent
Common kids; but if none, distribution of the properties acquired during the union can be had only
The kids of the guilty spouse by a previous marriage; if none, upon proper determination of the status of the marital relationship
The innocent spouse between the parties, whether or not the validity of the first marriage is
denied by Roberto. Furthermore, in order to avoid duplication and
Q: What happens to donations propter nuptias? Art. 43(3) multiplicity of suits, the declaration of nullity of marriage may be
Q: What about designations of the guilty spouse in life insurance? Art. 43(4) invoked in the same proceeding together with the partition and
Q: What about designations in the will of the innocent spouse in favor of the distribution of the properties involved.
guilty? Art. 43(5) ISSUE:
 Whether or not a petition for judicial declaration of a void marriage is
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said necessary. If in the affirmative, whether the same should be filed only
marriage shall be void ab initio and all donations by reason of marriage for purposes of remarriage.
and testamentary dispositions made by one in favor of the other are  Whether or not the same case is the proper remedy of Domingo to
revoked by operation of law. (n) recover certain real and personal property allegedly belonging to her
exclusively.
Q: What is meant by both spouses being in bad faith? HELD:
They both knew that the absent spouse was alive when they contracted the  YES. A declaration of the absolute nullity of a marriage is now
subsequent marriage explicitly required either as a cause of action or a ground for defense.
Where the absolute nullity of a previous marriage is sought to be
Domingo v. CA invoked for purposes of contracting a second marriage, the sole basis
FACTS: acceptable in law for said projected marriage to be from legal infirmity
 Delia Domingo filed a petition for the declaration of nullity of marriage is a final judgment declaring the previous marriage void.
and separation of property against Roberto.  Under Article 40 the final judgment declaring the previous marriage
 Unknown to her, Roberto had a previous marriage with one Emerlina void need not only be obtained only for purposes of remarriage.
dela Paz which marriage is valid and still existing and that she came to  When a marriage is declared void ab initio, the law states that the final
know of the prior marriage only in 1983 when Emerlina sued them for judgment therein shall provide for the liquidation, partition and
bigamy. distribution of the properties of the spouses, the custody and support of
 Since 1983 up to the filing of the petition, Roberto was unemployed and the common children and the delivery of their presumptive legitimes,
completely dependent upon her for support and subsistence. Sometime unless such matters had been adjudicated in previous judicial
in 1989, while on her one-month vacation, she discovered that he was proceedings.

 Delia’s ultimate prayer for separation of property will simply be one of complaint for declaration of nullity of marriage filed by Zorayda, it was
the necessary consequences of the judicial declaration of absolute alleged that Estrellita and Tamano were married in accordance with the
nullity of their marriage. Thus, Roberto’s suggestion that in order for provision of the Civil Code. Never was it mentioned that Estrellita and
their properties to be separated, an ordinary civil action has to be Tamano were married under Muslim laws. That she was in fact
instituted for that purpose is baseless. The FC has clearly provided the married to Tamano under Muslim laws was first mentioned only in her
effects of the declaration of nullity of marriage, one of which is the MR.
separation of property according to the regime of property relations  Nevertheless, the RTC was not divested of jurisdiction to hear and try
governing them. It stands to reason that the LC before whom the issue the instant case despite the allegation in the MR that Estrellita and
of nullity of a first marriage is brought is likewise clothed with Tamano were likewise married in Muslim rites. This si because a
jurisdiction to decide the incidental questions regarding the copule’s court’s jurisdiction cannot be made to depend upon defenses set up in
property. the answer, in a motion to dismiss, or in a motion for reconsideration,
but only upon the allegations of the complaint. Jurisdiction over the
Tamano v. Ortiz subject matter of a case is determined from the allegations of the
FACTS: complaint as the latter comprises a concise statement of the ultimate
 Senator Mamintal Tamano married Haja Putri Zorayda Tamano in civil facts constituting the plaintiff’s causes of action.
rites. Their marriage supposedly remained valid and subsisting until  As alleged in the complaint, Estrellita and Tamao were married in
his death. Prior to his death, Tamano also married Estrellita Tamano in accordance with the CC. Hence, contrary to the position of Estrellita,
civil rites in Malabang, Lanao del Sur. CC is applicable in the instant case. Assuming that indeed petitioner
 Zorayda joined by her son filed a complaint for declaration of nullity of and Tamano were likewise married under Muslim laws, the same
Marriage of Tamano and Estellita on the ground that it was bigamous. would still fall under the general original jurisdiction of the RTC.
 Estrellita filed a motion to dismiss alleging that the RTC was without Article 13 of PD NO. 1083 does not provide for a situation where the
jurisdiction over the subject and nature eo the action. She alleged that parties were married both in civil and Muslim rites. Consequently, the
only a party to the marriage could file an action for annulment of shari’a courts are not vested with original and exclusive jurisdiction
marriage, hence, it was only Tamano who could file an action for when it comes to marriages celebrated under both civil and Muslim
annulment of their marriage. She likewise contend that since Tamaon laws.
and Zorayda were both Muslims and married in Muslim rites the
jurisdiction to hear and try the case was vested in the shari’a courts. Niñal v. Badayog
 TC: denied motion to dismiss and ruled that the instant case was FACTS:
properly cognizable by the RTC.  Pepito Ninal was married to Teodulfa Bellones on September 26, 1974.
 CA: ruled that the case falls under the exclusive jurisdiction of shari’a Out of their marriage were born herein petitioners. Teodulfa was shot
courts only when filed in places where there are shari’a courts. But in by Pepito resulting in her death on April 24, 1985. 1 year and 8 months
places where there are no such courts, it could properly be filed before later, Pepito and Notma Badayog got married without any marriage
the RTC. license. In lieu thereof, Pepito and Norma executed an affidavit stating
that they lived together as husband and wife for at least 5 years and
ISSUE: Whether or not RTC has jurisdiction over all actions involving the were thus exempt from securing a marriage license.
contract of marriage and marital relations.  Thereafter, Pepito died in a car accident. After their father’s death,
HELD: petitioners filed a petition for declaration of nullity of marriage of
 YES. Personal actions, such as the instant complaint for declaration of Peptio and Norma alleging that the said marriage was viod for lack of
nullity of marriage, may be commenced and tried where the plaintiff or marriage license.
any of the principal plaintiff’s resides, or where the defendant or any of
the principal defendants resides, at the election of the plaintiff. In the

ISSUE: Whether or not the cohabitation period referred to in the FC should frequented their house and even tutored Cojuangco’s 22-year old
be for a continuous period and exclusive with each other as husband and daughter, Maria Luisa, then a student of Assumption Convent.
wife regardless of whether there is a legal impediment to their being  Without the knowledge of Cojuangco, Palma married Lisa in H.K. It
lawfully married. was only the next day that Conjuangco was informed and Palma
HELD: assured him that everything is legal. Cojuangco was shocked, knowing
 NO. The five-year period should computed on the basis of a fully well that Palma is a married man and has 3 children.
cohabitation as ‘husband and wife’ where the only missing factor is the
special contract of marriage to validate the union. In other words, the 5- ISSUE: Whether or not Palma should be held liable.
year common-law cohabitation period, which is counted back from the HELD:
date of celebration of marriage, should be a period of legal union had it  YES. Palma married LIsa while he has a subsisting marriage with
not been for the absence of the marriage. This 5-year period should be Elizabeth Hermosisima. Undoubtedly, Palma’s act constitute grossly
the years immediately before the day of the marriage and it should be a immoral conduct, a ground for disbarment. He made a mockery of
period of cohabitation characterized by exclusivity – meaning no third marriage which is a sacred institution demanding respect and dignity.
party was involved at any time within the 5 years and continuity – that His act of contracting a second marriage is contrary to honesty, justice,
is unbroken. Otherwise, if that continuous 5-year cohabitation is decency and morality.
computed without any distinction as to whether the parties were  The circumstances here speak of a clear case of betrayal of trust and
capacitated to marry each other during the entire 5 years, then the law abuse of confidence. Moreover, he availed of Cojuangco’s resources by
would be sanctioning immorality and encouraging parties to have securing a plane ticket from Cojuangco’s office in order to marry his
common law relationships and placing them on the same footing with daughter in H.K. without his consent.
those who lived faithfully with their spouse.  Palma’s culpability is aggravated by the fact that Lisa was 22 and was
 Reason for the requirement of marriage license: to notify the public that under psychological treatment for emotional immaturity.
two persons are about to be united in matrimony and that anyone who  Palma is disbarred from the practice of law.
is aware or has knowledge of any impediment to the union of the two
shall make it known to the local civil registrar. c. Declaration of Nullity v. Bigamy
 From the time Pepito’s first marriage was dissolved to the time of his
marriage with respondent, only about 20 months had elapsed. Marbella-Bobis v. Bobis
 A voidable marriage cannot be assailed collaterally except in a direct FACTS:
proceeding while a void marriage can be attacked collaterally even after  Isagani Bobis contracted a first marriage with Maria Dulce. Without
the death of either party. said marriage having been annulled, nullified or terminated, Isagani
contracted a second marriage with Imelda Marbella-Bobis and allegedly
Cojuango v. Palma third marriage with Julia Sally Hernandez.
FACTS:  Imelda filed against Isagani an information for bigamy. Thereafter,
 Eduardo Cojuangco filed with the court the instant complaint for Isagani initiated a civil action for the judicial declaration of absolute
disbarment against Atty. Leo Palma alleging as grounds “deceit, nullity of his first marriage on the ground that it was celebrated without
malpractice, gross misconduct in office, violation of his oath as a lawyer a marriage license. He then moved for the suspension of the
and grossly immoral conduct.’ proceedings in the criminal case for bigamy invoking the pending civil
 Cojuangco and Palma met sometime in the 70’s . Cojjuangco was a case for nullity of the first marriage as prejudicial question to the
client of ACCRA and Palma was the lawyer assigned to handle his criminal case.
cases. Consequently, Palma’s relationship with Cojuangco’s family  TC: granted the motion to suspend.
became intimate. He traveled and dined with them abroad. He

ISSUE: Whether or not the civil case is a prejudicial question in the criminal HELD:
case of bigamy.  YES. When the Information was filed, all the elements of bigamy were
HELD: present. It is undisputed that Vincent married Thelma in 1976 while
 NO. In the case at bar, Isagani’s clear intent is to obtain a judicial that marriage was still subsisting, he contracted a second marriage, this
declaration of nullity of his first marriage and thereafter to invoke that time with Ma. Consuelo Tan who subsequently filed the Complaint for
bery same judgment to prevent his prosecution for bigamy. He cannot bigamy.
have his cake and eat it too. Otherwise, all that an adventurous  The fact that Vincent subsequently obtained a judicial declaration of the
bigamist has to do is disregard Art. 40 of the FC, contract a subsequent nullity of the first marriage was immaterial. To repeat, the crime had
marriage and escape a bigamy charge by simply claiming that the first already been consummated by then. Moreover, his view effectively
marriage is void and that the subsequent marriage is equally void for encourages delay in the prosecution of bigamy cases; an accused could
lack of a prior judicial declaration of nullity of the first. simply file a petition to declare his previous marriage void and invoke
 In a recent case for concubinage, the court held that the pendency of a the pendency of that action as a prejudicial question in the criminal
civil case for declaration of nullity of marriage is not a prejudicial case.
question (Beltran v. People). This ruling applies here by analoby since  The elements of the crime of bigamy:
both crimes presuppose the subsistence of a marriage. 1. That the offender has been legally married;
 The burden of proof to show the dissolution of the first marriage before 2. That the marriage has not been legally dissolved or, in case of
the second marriage was contracted rests upon the defense, but that is a his or her spouse is absent, the absent spouse could not yet be
matter that can be raised in the trial of the bigamy case. presumed dead according to the CC;
 Per current jurisprudence, a marriage thought void still needs a judicial 3. That he contracts a second or subsequent marriage;
declaration of such fact before any party can marry again; otherwise the 4. That the second or subsequent marriage has all the essential
second marriage will also be void. The reason is that, without a judicial requisites for validity.
declaration of nullity, the first marriage is presumed to be subsisting. In
the case at bar, Isagani was for all legal intents and purposes regarded Morigo v. People
as a married man at the time he contracted his second marriage with FACTS:
Imelda.  Lucio and Lucia married on August 30, 1990 at the Iglesia de Filipina
Nacional at Bohol. After their marriage, Lucia reported back to her
Mercado v. Tan work in Canada leaving Lucio behind.
FACTS:  After one year, Lucia filed with the Ontario Court a petition for divorce
 Dr. Vincent Mercado and Ma. Consuelo Tan got married on June 27, against Lucio which was granted by the court on January 17, 1992 and
1991 before MTCC-Bacolod City. There is no dispute either that at the to take effect on February 17, 1992.
time of the celebration of the wedding with Consuelo, Vincent was  On October 4, 1992, Lucio married Maria Jececha Lumbago.
actually a married man, having been in lawful wedlock with Ma.  On September 21, 1993, Lucio filed a complaint for judicial declaration
Thelma Oliva in a marriage ceremony solemnized on April 10, 1976. of nullity of marriage in the RTC. He seeks the declaration of nullity of
 A letter-compliant for bigamy was filed by Conseulo . his marriage with Lucia on the ground that no marriage ceremony
 After more than a month from the filing of the bigamy case, Vincent actually took place.
filed an action for Declaration of Nullity of Marriage against Ma.  On October 19, 1993, Lucio was charged with Bigamy.
Thelma V. Oliva. Thereafter, a decision was rendered declaring the  RTC: guilty of bigamy.
marriage null and void.  CA: affirmed.
 Lucio contends that he should not be faulted for relying in good faith
ISSUE: Whether or not the element of previous legal marriage is present in upon the divorce decree of the Ontario court. He highlights the fact that
order to convict Vincent. he contracted the second marriage openly and publicly, which a person

intent upon committing bigamy would not be doing. Furthermore, his ISSUE: Whether or not the court erred in convicting Tenebro for the crime
lack of criminal intent is material to a conviction or acquittal in the of bigamy despite clear proof that his marriage has been declared null and
instant case. void.
 During the pendency of the bigamy case, RTC of Bohol declared the
annulment of the marriage. HELD:
 NO. As soon as the second marriage to Ancajas was celebrated, during
ISSUE: Whether or not Lucio committed bigamy and if so, whether his the subsistence of the valid first marriage, the crime of bigamy had
defense of good faith is valid. already been consummated.
HELD:  A marriage contracted during the subsistence of a valid marriage is
 YES. In the instant case, no marriage ceremony at all was performed by automatically void, the nullity of this second marriage is not per se an
a duly authorized solemnizing officer. Lucio and Lucia merely signed a argument for the avoidance of criminal liability for bigamy.
marriage contract on their own. The mere private act of signing a  Although the judicial declaration of the nullity of a marriage on the
marriage contract bears no semblance to a valid marriage and thus, ground of psychological incapacity retroacts to the date of the
needs no judicial declaration of nullity. Such act alone, without more, celebration of the marriage insofar as the vinculum between the spouses
cannot be deemed to constitute liable for bigamy unless he first secures is concerned, it is significant to note that said marriage is not without
a judicial declaration of nullity before he contracts a subsequent legal effects. Among these effects is that children conceived or born
marriage. Thus, Lucio was not married to Lucia at the time he before the judgment of absolute nullity of the marriage shall be
contracted the marriage with Maria Jececha. considered legitimate. There is therefore a recognition written into the
 Lucio was acquitted. law itself that such a marriage, although void ab initio, may still
produce legal consequences. Among these legal consequences is
Tenebro v. CA incurring criminal liability for bigamy.
FACTS:
 Veronico Tenebro, contracted marriage with Leticia Ancajas on April 10, Abunado v. People
1990. They lived together continuously and without interruption until FACTS:
the latter part of 1991, when Tenebro informed Ancajas that he had been  On September 18, 1967, Salvador married Narcisa at the Manila City
previously married to a certain Hilda Villareyes on November 10, 1986. Hall. In 1988, Narcisa left for Japan to work but returned to the
Invoking the previous marriage, Tenebro left the conjugal dwelling Philippines in 1992, when she learned that her husband was having an
which he shared with Ancajas, stating that he was going to cohabit with extra-marital affair and has left their conjugal home.
Villareyes.  After earnest efforts, Narcisa found Salvador in Q.C. cohabiting with Fe
 On January 25, 1993, Tenebro contracted yet another marriage, this one Corazon Plato. She also discovered that on January 10, 1989, Salvador
with a certain Nilda Villegas. When Ancajas learned of this third contracted a second marriage with a certain Zenaida Binas.
marriage, she verified from Villreyes whether the latter was indeed  On January 19, 1995, an annulment case was filed by Salvador against
married to Tenebro. Villareyes confirmed that Tenebro was indeed his Narcisa. On May 18, 1995, a case for bigamy was filed by Narcisa
husband. against Salvador and Zenaida.
 Thereafter, Ancajas filed a complaint for bigamy against Tenebro
 Tenebro’s defense: he and Villareyes were not validly married to each ISSUE: Whether or not Salvador Abunado is liable for bigamy.
other since no marriage ceremony took place to solemnize their union. HELD:
He said that he signed a marriage contract merely to enable her to get  YES. The subsequent judicial declaration of the nullity of the first
the allotment from his office in connection with his work as a seaman. marriage was immaterial because prior to the declaration of nullity, the
 RTC: guilty crime had already been consummated. Moreover, petitioner’s assertion
would only delay the prosecution of bigamy cases considering that an

accused could simply file a petition to declare his previous marriage (5) That either party was physically incapable of consummating
void and invoke the pendency of that action as a prejudicial question in the marriage with the other, and such incapacity continues and
the criminal case. appears to be incurable; or
 The outcome of the civil case for annulment of petitioner’s marriage to
Narcisa had no bearing upon the determination of Salvador’s innocence (6) That either party was afflicted with a sexually-transmissible
or guilt in the criminal case for bigamy, because all that is required for disease found to be serious and appears to be incurable. (85a)
the charge of bigamy, because all that is required for the charge of
bigamy to prosper is that the first marriage is subsisting at the time the - Regarding the above prescriptive periods, they are normally counted from
second marriage is contracted. the time the defect has ceased. Except:
When the action is not brought by a spouse (in cases of insanity or lack of
7. Voidable Marriages parental consent).
a. Grounds Incurable causes – counted from the time of celebration (since they’re
neverending!) (impotency, STD)
Art. 45. A marriage may be annulled for any of the following causes, Lack of Parental Consent
existing at the time of the marriage:
Q: To whom does the first ground apply?
(1) That the party in whose behalf it is sought to have the The baby (between 18 and 21) that didn’t get the approval of mommy and
marriage annulled was eighteen years of age or over but below daddy.
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute Q: Who may file the action?
parental authority over the party, in that order, unless after The parents, guardian, etc.
attaining the age of twenty-one, such party freely cohabited with The party whose parent did not give consent.
the other and both lived together as husband and wife;
Q: If both are between 18 and 21 and both their sets of parents didn’t give
(2) That either party was of unsound mind, unless such party consent, who may bring the action?
after coming to reason, freely cohabited with the other as Both sets of parents. Either separately or jointly.
husband and wife; The principle of in pari delicto doesn’t apply in this case. Thus, even if both
sets of parents failed to consent, they can both still file.
(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts Q: If one set gave their consent but the other didn’t?
constituting the fraud, freely cohabited with the other as husband Those who didn’t give their consent can file.
and wife;
Q: If the parents file, but the parties love each other – a la Capulet v.
(4) That the consent of either party was obtained by force, Montague – can the evil, cold-hearted court still annul the marriage?
intimidation or undue influence, unless the same having Hells yeah, Shakespeare. Besides, the lovers can still remarry at 21.
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife; Q: Can the spouses bring the action?
Yes. Upon reaching 21.

Q: If both didn’t get the consent, can either of them file upon reaching 21?
Does Captain Barbell wear yellow? Yup! Q: What if the parents didn’t give consent, but then they saw their
grandchild (who didn’t look like a little gremlin) and fell in love with him,
Q: Suppose only the wife was under 21, and didn’t get consent? Can she file then they gave their consent. BUT, upon realizing that he did look like a
when she’s 21? little gremlin, they decided to file an action for annulment. What happens
Does Captain Barbell have red briefs? Yup! then?
They can still file.
Q: In the foregoing case, can the husband (who was over 21 when they got
married) file? Q: What is the effect of cohabitation after the decree of annulment has been
Does Captain Barbell have brown briefs? NO. (But I do, because I’m issued?
foregoing taking a poop for this reviewer) None. Except for some sweet, sweet lovin’. But legally, none.
Q: When may the action be filed? Insanity

Anytime before 21 – by the parents, etc. who didn’t give consent
Within 5 years after reaching the age of 21 – by the party whose parents - this is not the same concept as insanity under succession
didn’t consent. The action is allowed past the age of 21 since this deals with
a lack of an essential requisite. Q: When should the insanity exist?
At the time of the marriage.
Q: How is the marriage ratified?
By cohabitation after reaching 21. Any cohabitation before 21 will not ratify Q: What does “at the time of marriage” mean?
the marriage. Even if you have sex during that time. Even if it’s in the butt. The precise moment when the marriage is sealed – i.e., the moment the party
gives his consent. It doesn’t refer to the day or the hour that the ceremony
Q: What is cohabitation? takes place. So, even if at the beginning of the ceremony the spouse was
Act of consummating the marriage – i.e., F-U-C-K-I-N-G (including in the sane, but at the precise moment when he is about to say “I do”, nabaliw, the
butt). marriage is voidable. (Of course, that could just be cold feet, but who are we
to judge?
Q: Can the parties file for annulment after ratification?
No. The ratification cures the defect. In other words, love conquers all. Q: What is the presumption regarding sanity?
If insane before the marriage and thereafter, but there’s no proof that he was
Q: Can the parents ratify by giving their consent after the celebration? nuts at the precise moment of giving consent, he’s presumed insane at the
No. They can never ratify. The only means of ratification is cohabitation. time of giving consent. But, this is merely a REBUTTABLE presumption. If
(Even if the parents have sex with each other in the butt). the “insane” spouse can prove otherwise, then the marriage is valid.
Q: May the attendance of the parents at the wedding ceremony be construed Q: Who may file?
as consent? Sane spouse – if he had NO KNOWLEDGE of the insanity
No. Consent has to be given in a specific form – included in the marriage Relative, guardian, etc.
license application. If the parents/parties fail to comply with this, there’s no Insane spouse
consent.
- The requirement of lack of knowledge of the sane spouse, capacitating him
Q: What if the parents consent after the marriage? to file the action for annulment is different when it comes to psychological
Still voidable. Consent must be given before the celebration. incapacity. In the latter case, there’s no knowledge requirement.

Yes. During the lucid interval. Why wait? She won’t get any better looking.
Q: If the parents knew of the insanity, can they still file? Yes. Plastic surgery isn’t that good.
Q: What’s the prescriptive period? Q: What if he continues to cohabit with the ugly spouse during his lucid
If by the sane spouse, most commentators seem to think that it is any time interval (because, despite her looks, she has a hypnotic vagina), and then
before the death of the crazy one. But Dean Del says “Hells no, biatch. That becomes nuts again?
shiznit ain’t fo me, ya hear?!” Thus, the “anytime before the death” phrase The cohabitation during the lucid interval ratifies the marriage. The
only refers to the parents of the crazy one (notice the semi-colon in the reversion to his former condition won’t make the marriage voidable again.
provision). Thus, the FC does not provide for a period. Of course, since it’s
not the intent of the Code Commission to make this imprescriptible, Fraud
considering that the nature of a voidable marriage makes it prescriptible,
then apply art. 1149 of the Civil Code: “All actions whose period aren’t fixed Art. 46. Any of the following circumstances shall constitute fraud referred
prescribe in five years from the time the right of action accrues.” Thus, if it’s to in Number 3 of the preceding Article:
the sane spouse filing the petition, the prescriptive period is 5 YEARS FROM (1) Non-disclosure of a previous conviction by final judgment of
THE DISCOVERY OF THE INSANITY. the other party of a crime involving moral turpitude;
If filed by the parent, etc. of Mr. Crazy, then anytime before this death. The (2) Concealment by the wife of the fact that at the time of the
Dean says that this is basically making it imprescriptible! (since when dies, marriage, she was pregnant by a man other than her husband;
the marriage is terminated).
(3) Concealment of sexually transmissible disease, regardless of
If filed by the insane spouse. Either during a lucid interval or after regaining its nature, existing at the time of the marriage; or
sanity. Again, however, our benevolent Dean has an enlightened
explanation. After regaining sanity, the ex-Mr. Crazy should be given 5
(4) Concealment of drug addiction, habitual alcoholism or
YEARS FROM THE TIME HE REGAINED HIS SANITY.
homosexuality or lesbianism existing at the time of the marriage.
Q: Will the action, filed while Mr. Crazy is still crazy, prosper? Yes.
No other misrepresentation or deceit as to character, health, rank, fortune
Q: How is the marriage ratified? or chastity shall constitute such fraud as will give grounds for action for
the annulment of marriage. (86a)
Free cohabitation after the spouse regained sanity. If during, any act of
cohabitation will not ratify the marriage, even if the sane spouse already
Q: What’s the meaning of fraud in ordinary contracts?
knows of the insanity.
The use of insidious words or machinations in order to obtain consent from
a party.
Q: Can the guardian over the person or property of Mr. Crazy give his
consent?
Q: What’s the meaning of fraud as applied to the contract of marriage?
No. The consent required in this case is personal. It must be given by the
It’s obviously not the same. In marriage and for annulment, fraud is strictly
parties themselves.
limited to the instances in Art. 46. Any other fraudulent act, if not mentioned
there, can’t justify the annulment.
Q: If the spouse was crazy at the time of the marriage, then undergoes a
So, for example, if your girlfriend tells you that when you get married, she’ll
lucid interval for one month, and upon realizing that his spouse is hideous,
be a “freak in the sheets” so to speak, but turns out to be allergic to the penis,
becomes insane again, can he file?
you’re screwed, my friend. This is not one of the grounds of fraud.

Previous final conviction - The conviction must have been issued in a separate case. The crime can’t be
proven in the same annulment case because what you need to prove in the
Q: What’re the elements? annulment is the already previous final conviction.
Final conviction
Crime involves moral turpitude Conviction of a Crime in Nullity, Annulment and Legal Separation
The conviction exists/is final at the time of celebration (so if the conviction Nullity Annulment Legal Separation
occurs during the marriage, it’s not a ground)
Non-disclosure of the conviction The crime is limited to Crimes involving moral Crime must have a
that of killing one’s turpitude penalty of more than
Q: JC “STM RULES” De Veyra was convicted of homicide. He appealed. spouse (parricide) or 6y imprisonment.
Pending the appeal, he married some Wonder Woman, but didn’t disclose the crime of killing the There is no limit as to
the incident. Wonder Woman later on found out and wanted to annul the spouse of another for the kind of crime. The
marriage. Will her action prosper? the purposes of stress is on the
marrying that person penalty.
No. The provision says that the conviction has to be both “previous” and
“final”. So, if the case is pending appeal, it’s obviously not final. As such, no
ground for annulment exists. Concealment is Concealment is essential Concealment is
immaterial. – in order that you can immaterial.
Q: JC was convicted for jaywalking. Again, he didn’t disclose this to his say it amounts to fraud.
future wife. Can she thereafter annul the marriage? You don’t need a Need a conviction. Need a conviction.
No. This isn’t a crime involving moral turpitude. conviction.
Length of penalty Length of penalty Imprisonment for
Q: What is a crime involving moral turpitude? immaterial. immaterial. more than 6y.
One that reflects on the moral character of the accused – e.g., estafa, perjury,
homicide, etc. It does not include crimes based on negligence – e.g.,
homicide through reckless imprudence. Pregnancy
Q: JC was convicted and sentenced for 10 days. Can the marriage be - this crime can only be committed by women. Duh! Men rule!
annulled?
Depends. For annulment, what’s important is that the crime involves moral Q: What must be concealed?
turpitude (as an aside, typing turpitude over and over again officially The pregnancy itself; AND
SUCKS). So, if the crime here involves moral turpitude, then the marriage That another man is the father.
can be annulled.
Q: When must the pregnancy exist?
Q: What if the crime involved moral turpitude (there it is again, I hate that At the time of celebration.
fucking word), but JC was only sentenced to pay a fine. Is there annulment?
Yes. The penalty isn’t limited by the law to imprisonment only. So long as Q: Ilards got pregnant by Felix and gave birth to a mutant prior to her
there’s a crime of moral turpitude (AAAAARRGGGHHHH!!!!), the marriage with Franco. Franco later finds out. Will his action for annulment
conviction can be ground for fraud, and thus for annulment. prosper?
No. The pregnancy must exist at the time of celebration, NOT before.
The reason for this ground is to prevent confusion as to paternity (unless the
kid’s freaking ugly, then noone’s gonna claim paternity). Non-disclosure of
a child (not the pregnancy) prior to marriage won’t lead to confusion (since Q: Ilards is 5 months pregnant. Franco, knowing that, and assuming the
the kid would be legit if born in the marriage). child to be his, married her (much to the chagrin of non-morons
everywhere). He later on found out the kid wasn’t his and filed for
Q: Ilards got pregnant by Mang Nats after her marriage to Franco. Can annulment. During the trial, Ilards claims that there was no concealment
Franco file? because she thought he knew that the kid wasn’t his; and that, if he had
No. The pregnancy must exist at the time of the marriage. Of course, Franco simply asked, she would’ve told him the truth. Will the action prosper?
can file a case for legal separation.
Q: Ilards goes out and, due to her insatiable appetite for BIRD, sleeps with The underlying issue in this case is whether or not there exists an obligation
different men. She then gets married. At the time of her marriage, she was 2 to disclose the pregnancy by another man (i.e., the second aspect of the
weeks pregnant with some other guy (not the husband). She was, however, concealment). This is debatable. In other words, I just wasted my time and
unaware of this because she took precautions (like coating the inside of her yours by typing something that has no definite answer. And I just realized it
pekers with Ben-Gay). If the husband later finds out, can he file? after I typed. Shet.
If, however, pregnancy is apparent and the man has still yet to tap dat ass,
No. Concealment presupposes knowledge. If one doesn’t know she’s then he has no basis to presume the child is his (no, Jang, you cannot get a
pregnant, then obviously there’s no intention to mislead. According to the woman pregnant if you do it in her butthole.)
Dean, this line of thinking prescinds from the fact that fraud is used as the
basis for the ground. But, if one wants to argue the other way, use the basis Q: What if the kid was stillborn or eventually dies?
as uncertain paternity, in which case, intention to mislead is not a requisite. Same rules.
Also, during the first 2 weeks of pregnancy, you can rarely tell that you’re
pregnant. Unless you have a mutant vagina, like some people I know. Q: May damages be awarded?
(Ahem, ahem). If you actually spend for the hospitalization, and all other fun stuff, then of
course you can get actual damages.
Q: Ilards was 3 months pregnant at the time of her marriage. An annulment According to the Dean, moral damages might be awarded – so long as you
case was filed by her husband. She claimed that she didn’t know, thus there can prove one of the grounds. (e.g., besmirched reputation, and other)
was no concealment. Will the action prosper?
It depends on the proof presented. At this stage, it’s harder to prove lack of Q: Who can file?
knowledge of pregnancy – biological changes are obvious, not getting The husband, silly. It can never be the woman, since she’s not the injured
period, etc. party. Being a skanky ho is not tantamount to injury contemplated by law.
Q: Ilards, if 5 months preggers at the time of her marriage. Will the Q: What’s the prescriptive period?
annulment prosper? 5 years from knowledge of the pregnancy by another man. (i.e., 5 years for
As a general rule, you can’t conceal pregnancy if it’s already at this stage knowing that your wife is a skank OR 5 years from having your pride
because it’s pretty darn obvious. Therefore, though the woman fails to make handed to you on a platter)
a disclosure, the husband ought to know that she’s knocked up. There are,
however, exceptions. The SC, in one case, recognized the instance wherein Q: Ilards is 2 months preggers. Thereafter, she had sex with Felix. Then she
the woman was naturally round and plump, and had a big ol’ booty – thus told him that he was the dad. They got married. Felix treated the child as his
the concealment was upheld. Of course, in that same case, the SC said that if until the kid, at 8 years old, began to outgrow him, get red hair and become
the circumstances were otherwise, then her husband should’ve known about just a little bit overweight. Then, one day, he looked at the child and realized
the pregnancy even if there was no disclosure. Jang Moreno is a sex-god. that the kid looked really familiar – it was a younger version of Kuya Niño!
Felix, ashamed (because Ilards said Kuya Niño had a bigger bird), filed an

action for annulment on the 9th birthday of Kuya Jr. Will the annulment not acquire the disease) but the party who has been defrauded and thereby
prosper? also injured.
Yes. Knowledge of the pregnancy by another man need not take place at any Q: What is the prescriptive period for this ground?
time before birth. It can come to the husband’s attention even after the Five years from the discovery of the fraud.
woman has delivered, and may even come to his attention years after the
birth. Concealment of drug addiction, habitual alcoholism, homosexuality or
lesbianism
STD
Q: Mr. A concealed from his wife that he goes out drinking every Friday
Q: What you mean by an STD? (What kind of a question is this? Who the night with his barkada. Can his wife file a case for the annulment of
hell wrote the original reviewer? Were they in the stone-age?) marriage on the ground of concealment of habitual alcoholism?
It is a disease that can be transferred from one to another by the insertion of No. Habitual Alcoholism under this ground contemplates a disease.
the penis in the vagina, the penis in the rectum, the penis in the mouth, the
vagina in the mouth, etc. Q: Mrs. A filed a case for the annulment of marriage based on the ground of
For this ground, however, it is not required that the disease be actually concealment of homosexuality. Mr. A claims that there was no concealment
transmitted. It’s sufficient if it MAY be transmitted through fucking. Cliff because he only discovered his homosexuality after their marriage. Will such
Sawit has a big penis. Thus, if you get syphilis through an injection, it’s a defense prosper?
considered an STD and would fall under this ground. There are cases where homosexuals and lesbians refuse to acknowledge
their homosexuality until after their marriage. In these cases, there can be no
Q: What does “regardless of its nature” mean? concealment and as such, the action of annulment of marriage cannot
Means that the STD under this ground can be either curable or incurable, prosper.
provided that it is present at the time of the marriage and that its existence
was concealed. Q: Mr. A has sexual relations with both men and women. Does he fall under
the term “homosexuals”?
Q: What is the reason for this ground? The literal definition of homosexuality is attraction to the same sex. Thus, a
Protection of the health of the spouses. Thus, if one spouse got crabs (not the person attracted to both men and women is not, in the true sense of the
type you eat), but was cured before the marriage, it won’t be a ground since word, a homosexual. But Dean thinks that the intent of the family code is to
it won’t jeopardize the health of the spouses. cover all forms of sexual perversion and thus, this ground may cover a
bisexual.
Q: If the existence of the STD was disclosed, can the non-STD carrying
spouse file an action for annulment? Note: The law covers both “practicing” and “non-practicing” homosexuals
The healthy spouse can’t file an action for fraud since there was no because the law does not distinguish.
concealment involved. But, if the disease is serious and appears to be
incurable, the spouse can file an action for annulment under Art. 45(6). 4) Force, Intimidation, or Undue Influence
Q: What is force?
Q: Who can bring an action for the annulment of marriage based on fraud There is force when in order to wrest consent, violence is employed.
because of concealment of a sexually transmissible disease?
The law states that only the injured party can file a case for the annulment of Q: What is undue influence?
marriage. When the law states “injured party” it does not refer to physical
injury due to contamination of the disease (thus the uninjured party need

There is undue influence when a person takes improper advantage of his Note: A threat to disbar a person is sufficient to allow annulment of
power over the will of another, depriving the latter of a reasonable freedom marriage if it has no legal basis. Thus, if the threat is used as a tool for
of choice. blackmail (without any legal grounds or basis for such a threat) then
annulment will not be allowed.
Q: What is intimidation?
There is undue influence when one of the contracting parties is compelled Q: Who must commit the fraud, intimidation, or undue influence for it to be
by a reasonable and well-grounded fear of an imminent and grave evil upon a ground?
his person or property, or upon the person or property of his spouse, It must be committed by either the guilty spouse or a 3rd person.
descendants or ascendants, to give his consent.
Q: Who should bring the action?
Note: The definitions of force, intimidation, and undue influence are the The action may be brought by a friend of the injured spouse within 5 years
same as those applied in ordinary contracts. from the time the cause ceases and may be ratified when the spouses freely
cohabit after the cause has ceased or disappeared.
Q: What is the reason for these grounds?
Vitiation of consent. 5) Impotency
Q: What is impotency?
Q: Can the force, intimidation, or undue influence be exercised by a 3rd Impotency is the inability to perform the marital act (S-E-X) because of some
person? incapacity of one of the parties. It applies to both sexes. A woman can also
YES. Just like in ordinary contracts, force, intimidation, or undue influence be impotent, in the legal sense. Unlike the old Civil Code, the Family Code
may be committed by a 3rd person. An example is a “shotgun marriage” has a provision regarding relative impotency. A man is relatively impotent
where the father threatens you with a gun to marry his daughter. This is when he is impotent with regard to his wife yet potent with other women. In
differentiated from fraud which must be committed by one of the parties to such case, annulment may be had.
the marriage.
Q: What is the difference between sterility and impotency?
Q: Is undue influence synonymous with reverential fear? Sterility is the inability to produce an offspring. Often a spouse who is sterile
No. An example of reverential fear is a case where X wants to please his or barren will resort to adoption to have children. It is not a ground for
parents and decides to marry the girl they like. In this case, there is no annulment. On the other hand, impotency is the inability to have sex and is
ground for annulment because X knew what he was entering into, and he a ground for annulment. In men, for example, impotency is the inability to
still exercised his free will. Consent is not vitiated. have an erection.
Q: What kind of intimidation is a ground for annulment of marriage? Q: Is there impotency in women?
Intimidation must be evil and imminent or based on a well-grounded fear. Theoretically, women can always have sex. There are cases, however, when
As such, one must make a distinction as to the nature and gravity of the the vagina is so small as to prevent the entry of the penis. In such a case, the
intimidation. If the intimidation is slight, e.g. “I will punch you,” “I will SC ruled that the marriage may be annulled. But that cases was decided a
make sure that you don’t graduate with honors,” then it is not sufficient for long time ago when appropriate technology did not yet exist. Now, such a
the annulment of marriage. defect can be cured through surgery, and there would not be a ground for
The threat of disinheritance is not a sufficient ground for annulment. annulment as the defect is not incurable. Nevertheless, the old case shows
Also, if intimidation has a legal basis, as when one is forced to marry a girl that the SC decided that a woman can be impotent if she cannot
because of a threat to prosecute for rape, there would be no legal ground for consummate the marital act because of a physical defect of her organ. Where
annulment. there is no opening or if it were too small, such that the woman cannot have
sex without excessive pain or injury, there may be ground for annulment.

Moreover, since relative impotency is now the rule, the wife’s vagina can reason is that the impotency must be continuous and incurable. Besides, the
only be too small in relation to the husband’s penis. The marriage can be spouse might have hoped things would get better.
annulled if the opening is too small for the husband, even if it were just right
for lesser, or rather, other men. Q: Is it possible to ratify this defect through cohabitation?
NO. The Family Code requires impotency be serious and incurable.
Q: What if you were potent when the marriage was celebrated and then Therefore there is no such thing as ratification based on this ground. Besides,
subsequently became impotent, what then? the FC does not provide for ratification of marriages where one spouse was
Unfortunately, impotency after the celebration of the marriage is not a impotent at the time of the celebration of the marriage.
ground for annulment, or even legal separation.
Q: What if the penis was cut off a la Bobbitt?
Q: What if both parties are impotent? Can the parties file an action for Magpusoy na lang kayo. Again, this is not a ground for annulment. The
annulment? ground must exist at the time of the marriage, not during or after.
Theoretically, there is no injured party, therefore there is no party
authorized to file the action. However, it can be interpreted the other way 6) Serious and Incurable Sexually Transmissible Diseases
around. Since both are impotent with respect to each other, either can file the Q: What is the difference between the sexually transmissible diseases in Art.
action since each was injured by the other. The problem is that there is no 45 and 46?
jurisprudence on this. However, the basis of the ground is that the marital
act is an essential marital obligation and if it cannot be done, there should be Article 45 Article 46
aground for annulment. Therefore either party can file the action. 1. The STD itself is a ground 1. The STD is a type of fraud,
for annulment. which in turn is the ground
NOTE: Justice Sempio-Diy says that no party can file the action since there is for concealment.
no “injured party”. However if you look into the reason for getting married 2. The STD doesn’t have to be
and the fact that one of the essential marital obligations is to perform the concealed. 2. The STD must be
marital act, then either party can file the action since they are injured by such concealed.
occurrence. Dean’s position is the second one. (They can still be potent with 3. The STD must be serious
others.) and incurable. 3. The STD does not have to
be serious and incurable.
Q: What is required in order for impotency to be a ground?
Impotency must be continuous and incurable. Therefore, if it can be
corrected by medication, ointments, creams, or surgery, then it is not Q: Give an example of an STD that is serious, incurable, and is often not
incurable and is not a ground. concealed.
Q: Who can file? AIDS. One can acquire it at the time of marriage without knowing. Without
1. The injured party or the potent one can file the action for knowledge, concealment is not possible. And because of its seriousness and
incurability, Article 45 will apply.
annulment. However, the party filing the case must prove the
impotency. One can prove it thought the examination of doctors, Q: Who can file for annulment in case of sexually transmissible disease?
but not through demos. The injured party (the healthy spouse) is the only one who can file the
action.
Q: What if the spouse already knew of the impotency before the marriage?
He can still bring the case for annulment. Knowledge in this case is not Q: What if both husband and wife are afflicted?
relevant since the law does not require you to be ignorant of such a fact. The In case both are afflicted, there is no injured party. The determination as to
who is the injured party should be made from the time of the marriage and
not at the time of the institution of the action. Therefore you cannot raise the Serious sexually Healthy party Within 5 years no, action
defense that the other party cannot file the action since she had already been transmissible after the prescribes
afflicted, and therefore, no longer an injured party. The 5-year prescriptive disease marriage
period is counted from the time of the marriage. For health reasons, this
cannot be ratified by cohabitation. Pendency of action
b. Who may bring action to annul; period Art. 48. In all cases of annulment or declaration of absolute nullity of
c. Ratification marriage, the Court shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
Ground Who can file When Ratification between the parties and to take care that evidence is not fabricated or
Lack of parental Underaged Within 5 years Yes, suppressed.
consent party after reaching cohabitation
21 years after reaching 21 In the cases referred to in the preceding paragraph, no judgment shall be
years based upon a stipulation of facts or confession of judgment. (88a)
Parents & Before the NO
Guardians underaged Art. 49. During the pendency of the action and in the absence of adequate
party reaches provisions in a written agreement between the spouses, the Court shall
21 provide for the support of the spouses and the custody and support of
Insanity Sane spouse Before the only insane their common children. The Court shall give paramount consideration to
death of the party can ratify the moral and material welfare of said children and their choice of the
sane party during a lucid parent with whom they wish to remain as provided to in Title IX. It shall
interval also provide for appropriate visitation rights of the other parent. (n)
Parents, Before the
guardians, death of either
Art. 212. In case of absence or death of either parent, the parent present
relatives party
shall continue exercising parental authority. The remarriage of the
Insane spouse During lucid Yes,
surviving parent shall not affect the parental authority over the children,
interval or after cohabitation
unless the court appoints another person to be the guardian of the person
regaining during a lucid
or property of the children. (n)
sanity and interval
before the
Custody of children
death of the
Q: When we speak of custody of children, to whom do we refer?
sane spouse
When we speak of custody of children, we refer to those below 18 years of
Fraud Injured party Within 5 years Yes,
age. Children of 18 years or above may go wherever they want.
from discovery cohabitation
of fraud after knowledge (In the case of minor children, we have said that the effect will have to be
of fraud distinguished between the time of bringing the action and the time when the
Force, Injured party Within 5 years yes, cohabitation decree of nullity or annulment has been given. With respect to the custody
Intimidation & from cessation after cause has of the children, if this is considered statutory, whatever arrangement
Undue Influence of cause disappeared between the spouses may be terminated if in fact the marriage is annulled or
Impotence Potent party Within 5 years no, action declared null and void. If the position is for the maintenance of the marriage,
after the prescribes then the children will have to go back to the parents.)
marriage

Q: During the pendency of the action of annulment or nullity of marriage, primordial consideration is what is in the best interest of the children, and in
may custody of minor children be based on a written agreement between the making the decision, the court will ask the children for their choice.
spouses?
YES. For purposes of those cases when the action for nullity or annulment is Q: Must the court follow the choice of the children in granting custody?
pending before the court, the first thing the court will look for is the written No. Even the court does ask, it doesn’t necessarily have to follow the choice
agreement between the parties with respect to the custody of the children. of the children. The court will try to give way to the choice of the children
The court will respect the written agreement. unless their choice of parent is not in their best interest. The child will be
asked to choose if he is old enough to understand.
Q: During the pendency of the action for annulment or nullity, what shall
the court do if there is no written agreement? Q: If the children are below 7 years of age, to whom shall their custody be
The court will make provisions for custody based on what is in the best given?
interest of the children. If the children are below 7 years of age, they are presumed to have chosen
It is possible that the parties will not agree on anything. Many of these cases their mother. They should not be separated from their mother unless she is
are really very bitter fights. They really are very much in a fight and they unfit to take care of the children.
cannot agree on anything, in which case, the court will make provisions for
the custody of the children at the time the case is pending. The only criteria Q: What is the reason for not separating the children from their mother?
followed by the court is that which is in the best interest of the children. This is because of the bond that exists between the mother and the child. It is
the mother who can best take care of her children.
Q: During the pendency of the proceedings, what is the nature of the
custody ordered by the courts? Q: What does ‘unfitness’ mean?
It is merely temporary custody of the children. “Unfitness” is not determined by morality or wealth. Whether the mother is
physically fit to take care of the children is normally based on health
Q: During the pendency of the action for annulment or nullity, will the court reasons. In later decisions of the court, moral fitness is invoked because of
ask the children for their choice of parent? certain actions on the part of the mother.
At this point, the court will not ask the children for their choice because
nothing is permanent yet. Q: Can custody be denied on ground of moral “unfitness”?
Yes. In one case, custody was denied because the mother was living with the
Q: When will the court ask the children regarding their choice of parent? child’s uncle (brother of the child’s father). In this case, the court said that
The choice of the children will be asked at the time the decision has become the child cannot grow up in that kind of environment. In another case,
final and the drecree of nullity of annulment is issued. So once the decision custody was also denied to the mother because she was a prostitute and she
is made for the marriage to be terminated, the court will make provisions or brought her customers to the house. It’s all right to be a prostitute as long as
part of its decision will be for the purpose of arranging for custody of the she doesn’t bring customers to the house. The moment she does, then that’s
children. a different story. It gives children the wrong impression.
Q: Are the courts obliged to ask the child to make a choice? No. Q: In recent cases, what is the main consideration in determining fitness?
The main consideration in recent cases has been whether the child can grow
Q: When the decree of annulment or nullity is issued, will the court ask for a up with a normal attitude. In a place where multiple acts of immorality
written agreement between the spouses? occur, the court would deny custody. The court must decide, using its
No. The court will no longer ask for a written agreement between the discretion, what is in the best interest of the child.
spouses because this is also in conformity with the decision of the court. The

Q: If the child is less than 7 years old, custody will be awarded to the mother same amount of support. It is dependent on the capacity of the spouses and
if there is no ground to declare her unfit. What happens when the child on the needs of the children.
reaches 7 years of age? Can the judgment be changed?
Yes. It is possible to change the judgment as long as the child has passed the Q: Does a judgment for support become final?
mandatory age of 7 years. The husband may institute a case for custody of Any judgment for support never becomes final because at any stage, the
the children. In that case, the father may allege that it is in the best interest of judgment can be changed by the court in the same case. These cases remain
the child that custody be turned over from the mother to him. in the dockets of the court and may be changed.
Support of Minor Children and of the Spouses Q: May support be asked for in a separate action? May it be asked for in the
Q: When we speak of support, what kind of support do we refer to? same action for the declaration of nullity or annulment of marriage?
Support can mean support before or after the termination of the marriage, or An action for support may be in a separate action. If it is possible for one to
support of the spouses or of the children. institute a separate action, it is also possible for the court to make provisions
Support: for support in the action for declaration of annulment or nullity of the
A. Support of Children marriage.
a. Pending action for nullity or annulment Q: is it possible for the spouses to agree on the support of the children?
Yes, the court will assess any voluntary agreement for the support of the
b. After decree of nullty or annulment children. Once the written agreement is approved by the court then it
becomes part of the judgment. Any time you wish to change it, you must
B. Support of spouses then file the necessary pleading together with the necessary motion in court.
a. Pending action for nullity or annulment Q: What must the court consider in granting support to the children?
Regardless of who is at fault, judgment for support of the children will
b. After decree of nullty or annulment always be dependent on the resources of the spouses and the needs of the
children.
Q: During the pendency of the action for nullity or annulment of marriage, Q: During the pendency of the action for nullity or annulment of marriage,
how shall the children be supported? how shall the spouses be supported?
In the case of the children, the children will have to be supported out of the GENERAL RULE: The spouses will have to be supported from the conjugal
conjugal partnership or absolute community property. There is no or absolute community property.
termination of the conjugal partnership or absolute community yet. There is no liquidation yet. Note that later Family Code provisions say that
whatever they receive during the pendency of the proceedings is considered
Q: After the declaration of nullity or annulment of the marriage, how shall an advance on their share of the conjugal or absolute community property.
the children be supported? Once the marriage is terminated, it shall be considered as an advance on
After the termination, support will continue, but it will be borne by the their share.
spouses. The children will have to be supported out of the separate
properties of the spouses after liquidation. After liquidation, the decision of EXCEPTION: The right of the spouses to receive support depends on the
the court will always say that the children will be supported by both provisions of the Rules of Court.
parents. If this is supposed to be equal, it must be proportionate to the Support will be denied if the evidence is strong that he/she is guilty of the
income and properties of the spouses. We may have a case where the cause of the annulment or nullity of marriage.
housewife has no income while the husband does. They cannot give the

Q: Give examples wherein support may be denied to a spouse during the
pendency of the proceedings. Note: After the termination of the marriage, the court will not allow written
If the reason for the nullity of the marriage is that the wife was previously agreements of the parties because the written agreements during the
married, the 2nd marriage being therefore null and void. Should evidence of pendency of the case are merely temporary.
guilt be strong, for instance if the husband is able to present 2 marriage
certificates as evidence of 2 marriages, then support can be denied even General Rule: Spouses are to be supported from the conjugal or absolute
during the pendency of the action for nullity. The reason for this is that it is community of property – Amount received considered advance on their
almost certain that the marriage will be terminated and that she is guilty of share
the cause for nullity. Based on the Rules of Court, the court may deny
support pendente lite. Exception: Rules of Court; Support denied to spouse guilty of cause of
There was also the case where the woman was guilty of adultery On the nullity or annulment and there is strong evidence of the same
basis of the wife’s final conviction of adultery, the court denied support After decree: No obligation to give support
pendente lite. Evidence was strong that she was guilty of the cause for legal
separation. The same principle applies to declaration of nullity or Q: What are the other effects of the decree of annulment and declaration of
annulment. nullity?
What automatically flows out of the decree is the liquidation of the conjugal
Q: What is the basis of the action for the declaration of nullity or annulment or absolute community of property. Liquidation must be held after the
is something involuntary? Will support pendente lite be denied? termination of the marriage.
If you refer to impotence or insanity or something involuntary, no one is at
fault. During the pendency of the proceedings, the spouses will be Q: Do you have to make a prayer for the liquidation of the conjugal or
supported out of the conjugal or absolute community property. absolute community of property?
Liquidation is automatic. Normally, court decisions make provisions for the
Q: After the termination of the marriage, how shall the spouses be liquidation of the conjugal or absolute community of property. Some
supported? decisions make a general statement that the conjugal or absolute community
In case of brothers, sisters, or children, relationship is the basis of support. In of property will be liquidated in accordance with the decision. Liquidation is
the case of the spouses, the basis of support is the fact of marriage. The a necessary consequence.
moment the marriage is terminated, there is absolutely no obligation to give
support. In case of annulment of declaration of nullity, regardless of who is Q: What shall be the effect if there is no liquidation of the conjugal or
at fault, the marriage is terminated and there is no obligation to give support absolute community of property?
to the other spouse. You must liquidate, otherwise the subsequent marriage that you enter into
will be null and void. Liquidation must be done whether it is on account of
Q: Is the rule the same in cases of legal separation? annulment or nullity of marriage.
The rule is different for legal separation, where the marriage bond is not
severed. Q: What are the other effects of the decree of nullity or annulment of the
marriage?
8. Procedure and Effects of Termination of Marriage Aside from liquidation, the delivery of presumptive legitime of the children
is a necessary consequence.
NOTE: Please see page 93-A for a separate table on the effects of termination
of marriage.

dismissed the petition because Petitioner failed to avail of other available
Tuason v. CA remedies ie, new trial, appeal and petition for relief, to name a few
FACTS:
Mrs. Tuason filed a petition for annulment or declaration of nullity of her ISSUE: WON the order declaring nullity of marriage ought to be annulled.
marriage with Petitioner, on the ground of psychological incapacity.
Petitioner answered the complaint the suit resulted to a no-holds barred HELD: Yes.
litigation. When Respondent rested her case, Petitioner failed to appear and 1. Extrinsic Fraud - Petitioner must allege that the ordinary remedies are no
was subsequently delcared in default. The Trial Court decided in favor of longer available through no fault of hers. He must also justify for failure to
Respondent. Since no appeal was had, Respondent sought for the avail of these remedies. In the case at bar, she failed to allege that these
dissolution of the CPG. Petitioner opposed and sought relief from judgment remedies are no longer available through no fault of her own.
2. Lack of Jurisdiction - The CA overlooked this ground since it was not
ISSUE: WON a petition for relief from judgment is warranted? stated as a cause of action. However, it was in the material allegations of her
HELD: No. petition. It may be assailed at any time, directly or collaterally or by resisting
1. The TC's decision became final and executory. There is no showing of: (a) judgment or final order in any action whenever invoked provided it is not
fraud, accident, mistake or excusable negligence and (b) a meritorious barred by laches.
defense or cause of action. A. Substituted Service - Modes of service should be strictly followed and
2. There is no violation of due process despite Petitioner's confinement or substituted service is a derogation of the usual method. A cursory reading of
rehabilitation. The failure of his counsel to inform the court of this the petition yields to a prima facie meritorious case. The Sheriff did not state
fact is not excusable and binding upon him. Likewise is his counsel's failure the fact of substituted service or the impossibility to locate the Defendant
to inform him of the adverse judgment to enable him to appeal. [Petitioner in the case at bar].
3. There was no need for the prosecutor to intervene since the court's B. Trial Court and Prosecutor - Prosecutor is the counsel for the state, to be
declaration of his default. The prosecutor will only intervene to determine ordered by the Court to object when there is collusion or fabricated
WON there is collusion or evidence fabricated, particularly if the evidence. He is the equivalent function of the defensor vinculi in Canon Law
Respondent of a case did not answer a complaint. In this case, Petitioner did
reply to the complaint and actively participated in the case Yu v. Yu
Ancheta v. Ancheta FACTS:

FACTS:
Petitioner and Respondent were married but lived separately. Petitioner
Petitioner Eric Yu filed a petition for habeas corpus against his estranged
sought to dissolve the CPG and obtain a judicial separation of property. The
wife Caroline for having allegedly withheld from him the custody of their
judgment, conformable to a compromise agreement, was rendered where
minor child Bianca. Respondent Caroline filed a petition for declaration of
Respondent will vacate the house and have Petitioner and kids live there.
nullity against petitioner.
Later Respondent wanted to marry again and filed for declaration of nullity
alleging Petitioner was psychologically incapacitated. In the petition, he
indicated Petitioner's old address. Thus summons was served to the old Subsequently, the petition for habeas corpus was dismissed by the CA.
address, received by their son. The Sheriff did not indicate to the court of the Meanwhile, petitioner filed his own petition for declaration of nullity of
substituted service; hence, Petitioner did not appear, declared in default and marriage and dissolution of the absolute community of property before the
Respondent was able to obtain the declaration through ex-parte Pasig RTC, with prayer for the award to him of the sole custody of Bianca.
proceedings, without any objection from the Prosecutor. Petitioner filed to
annul the order of nullity alleging (a) extrinsic fraud with regard to the Respondent argues that the Pasig RTC never acquired jurisdiction over the
address alleged and (b) lack of jurisdiction to render the decision. CA custody issue raised therein. She claims that for the Pasig court to acquire

jurisdiction over the custody issue after the dismissal of the habeas corpus legitimes, unless such matters had been adjudicated in previous judicial
petition before the Court of Appeals, petitioner must re-plead his cause of proceedings.
action for custody and invoking said cause anew.
All creditors of the spouses as well as of the absolute community or the
ISSUE: WON the Pasig RTC acquired jurisdiction over the issue of custody conjugal partnership shall be notified of the proceedings for liquidation.
HELD: The Pasig RTC acquired jurisdiction. In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102 and
129.
 By petitioner’s filing of the case for declaration of nullity of
marriage before the Pasig RTC he automatically submitted the
issue of the custody of Bianca as an incident thereof. After the Art. 43. The termination of the subsequent marriage referred to in the
appellate court subsequently dismissed the habeas corpus case, preceding Article shall produce the following effects:
there was no need for petitioner to replead his prayer for custody
for the custody issue in a declaration of nullity case is deemed (1) The children of the subsequent marriage conceived prior to its
pleaded. Section 21 of the “Rule on Declaration Of Absolute termination shall be considered legitimate;
Nullity Of Void Marriages and Annulment of Voidable Marriages”
provides that upon entry of judgment granting the petition, or in (2) The absolute community of property or the conjugal
case of appeal, upon receipt of entry of judgment of the appellate partnership, as the case may be, shall be dissolved and
court granting the petition, the Family Court shall proceed with liquidated, but if either spouse contracted said marriage in bad
liquidation, partition and distribution of the properties of the faith, his or her share of the net profits of the community
spouses, including custody, support of common children. property or conjugal partnership property shall be forfeited in
 The petition filed by petitioner for the declaration of nullity of favor of the common children or, if there are none, the children of
marriage before the Pasig RTC is the more appropriate action to the guilty spouse by a previous marriage or in default of children,
determine the issue of who between the parties should have the innocent spouse;
custody over Bianca in view of the express provision of the second
paragraph of Article 50 of the Family Code. This must be so in line (3) Donations by reason of marriage shall remain valid, except
with the policy of avoiding multiplicity of suits. that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
9. Presumptive Legitime
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article policy, even if such designation be stipulated as irrevocable; and
43 and by Article 44 shall also apply in the proper cases to marriages
which are declared ab initio or annulled by final judgment under Articles (5) The spouse who contracted the subsequent marriage in bad
40 and 45. faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody and Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
support of the common children, and the delivery of third presumptive 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 NOTE: Presumptive legitime is called “presumptive” because at the time the
revoked by operation of law. (n) marriage is terminated either by decree of annulment or declaration of
nullity, it approximates the amount of legitime the children would receive
Art. 51. In said partition, the value of the presumptive legitimes of all from their parents.
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 Q: What is the basis of the computation of presumptive legitime?
the parties, by mutual agreement judicially approved, had already The presumptive legitime is computed based on the inventory and assets of
provided for such matters. the spouses as of the time of the termination of the marriage.
The children or their guardian or the trustee of their property may ask for Q: Outline the procedure in getting the presumptive legitime.
the enforcement of the judgment.
PROCEDURE:
1. Get the total assets – conjugal partnership or absolute community
The delivery of the presumptive legitimes herein prescribed shall in no
way prejudice the ultimate successional rights of the children accruing assets.
upon the death of either of both of the parents; but the value of the
properties already received under the decree of annulment or absolute 2. Liquidate the assets – Prepare the inventory, then pay off the debts
nullity shall be considered as advances on their legitime. (n) of the conjugal partnership or absolute community assets.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, 3. Derive the net assets after payment of debts
the partition and distribution of the properties of the spouses and the
delivery of the children's presumptive legitimes shall be recorded in the 4. Proceed with the process of dissolution by giving each spouse his
appropriate civil registry and registries of property; otherwise, the same or her conjugal share. Each share then becomes the separate
shall not affect third persons. (n) property of the spouse.
Q: How do you distinguish “true legitime” as used in succession from NOTE: The decree of annulment/declaration of nullity automatically
“presumptive legitime” as used in the Family Code? requires the spouses to liquidate the assets. Otherwise, the subsequent
TRUE LEGITIME PRESUMPTIVE LEGITIME marriage would be void.
1.) It is that part of the estate 1.) This comes from the
of a deceased person separate assets of the Q: Suppose out of liquidation of the conjugal partnership/absolute
which has to be parents after liquidation community property, each spouse gets P1,000 each. What is the presumptive
legitime of the child?
mandatorily set aside for and partition.
P1,000. To illustrate:
the heirs. husband wife
a b
2.) This is delivered to the 2.) This is delivered to the heir x y
compulsory heirs after after termination of the
death of a party, after marriage before succession Given the whole square as the total conjugal or community assets, after
succession opens. opens. liquidation and partition, the husband technically gets the parts coded as
“a” and “x”, while the wife technically gets parts “b” and “y”. We then get

half of what each spouse gets and give that to the child. Computation shows 2. Marriages annulled by final judgment under Article 40 and Article
that the total conjugal assets amount to P2,000 since each spouse gets P1,000. 45 (this refers to the grounds for annulling a voidable marriage).
Get half of what each spouse gets and you get P500 from each spouse, to be Q: What does Article 43 (2) provide?
given to the child as presumptive legitime. The kid therefore gets P500 + 1. There must be a liquidation of the absolute community of property
P500 = P1,000. or conjugal partnership of gains once there is a termination of the
subsequent marriage.
Note: Presumptive Legitime does not take the place of the other assets which
the child is supposed to get by reason of the termination of marriage of his
2. There must be a determination of whether one of the spouses was
parents.
guilty of bad faith in contracting said subsequent marriage. This is
Ex. Child is also entitled to support even after the termination of the important because if one of them was in bad faith then there should
marriage. (This applies whether or not the kid is a minor.) be a forfeiture of his/her share.
Rule in support: The amount of support depends on the resources of the
giver and the needs of the recipient. Q: What happens to the share of the spouse in bad faith?
His or her share shall be forfeited in favor of the following in the order
Q: Assuming the same facts in the above case, the presumptive legitime is mentioned:
P500 from the father’s assets alone. Where will the child get his support? 1. The common children (if there are common children, forfeiture will
Support will come from the income which the father will earn in the future. always be in favor of the common children)
Q: Aside from presumptive legitime and support, what else would the child
get from his parents by reason of the termination of their marriage? 2. The children of the guilty spouse by a previous marriage
The child may also get some of the property by reason of forfeiture.
3. The innocent spouse
Forfeiture
Q: When can the child be entitled to forfeiture? Q: What happens if there is no spouse in bad faith?
It is possible that the marriage was terminated because one spouse is guilty Then there will be no forfeiture. Examples of cases where spouses are not in
of any of the grounds for annulment. bad faith are in cases of insanity, sexually transmissible diseases, and
psychological incapacity.
Q: What kind of marriages does Article 43 refer to?
This provision refers only to the automatic termination of subsequent Q: What if both spouses were in bad faith?
marriages under Article 41 (an absent spouse who was declared as Then Article 44 should apply. Article 44 says that a subsequent marriage
presumptively dead files an affidavit of reappearance). Therefore, the contracted by both parties in bad faith is null and void. And the effect of this
enumerated effects of Article 43 refer only to this kind of marriage. marriage is that donations propter nuptias and testamentary disposition made
by one in favor of the other are revoked by operation of law.
Q: But have these effects not been expanded to cover other void or voidable
marriages? Q: Does the provision on forfeiture apply to cases where both spouses are in
Yes. Article 50 paragraph 1 has expanded the applicability of these effects to bad faith?
other marriages, namely: No. Article 43 (2) is very specific in stating that there shall only be a
1. All marriages that have been declared void ab initio. forfeiture in cases where either of the spouses are in bad faith. If both of the
spouses are in bad faith then it should be Article 44 that should apply. And

this article refers to only two effects: that donations propter nuptias and 1. Forfeiture – because it is possible that after forfeiture proceedings,
testamentary dispositions are revoked by operation of law. one of the spouses would be left with nothing.
Furthermore, the concept of in pari delicto does not apply to annulment of
marriages or declaration of nullity of marriages. It only applies to cases of 2. Presumptive legitime – computed on the remaining assets.
legal separation.
3. Support –we presume that the spouses would earn income even
Q: How do you determine the amount to be forfeited? after termination of the marriage.
The share of the guilty spouse in the conjugal partnership/absolute
community is in fact forfeited in favor of common children. Theoretically,
Q: What happens if later on, succession opens?
the children could get the whole share of the guilty spouse.
Assume marriage is terminated in 1994 and the mother later dies in the year
2000. The assets of the parents after termination of marriage would either
Q: What happens if after the forfeiture, the guilty spouse has no more assets?
contract or grow. In computing the assets subject of legitime, there is the
Where can the child get his presumptive legitime?
process of collation. Collation includes presumptive legitime as part of
If that is the case, then the child is not entitled to presumptive legitime.
assets. You deducts presumptive legitime because the heir already received
However, it is possible that the guilty spouse’s assets subject to forfeiture is
this beforehand.
not the entirety of his assets. Take for instance: If we are talking about the
Assuming that the amount of assets upon termination of marriage is P1,000
conjugal partnership of gains, only the profits are supposed to be forfeited. If
and it grew to P2,000 upon the mother’s death. The kid already got P500 as
the guilty spouse has separate property, the child can still claim his
presumptive legitime in 1994. The kid will later get another P500 out of the
presumptive legitime.
balance in the year 2000. This is because the total legitime to be received by
the child is ½ of P2,000 which is P1,000.
SUMMARY:
1. Upon termination of marriage, the spouses are bound to deliver the
RULES FOR SUPPORT OF SPOUSES IN LEGAL SEPARATION
following to their children: After Decree of Legal Separation
Guilty Spouse: The guilty spouse CAN or MAY be denied support. This is
a. Presumptive legitime – ½ share of each parent something that is discretionary for the court.
Innocent Spouse: It is possible for the innocent spouse to get support from
b. Support the guilty spouse. (This is something that may not be done in case of
annulment or nullity of marriage where the marriage is terminated between
c. Forfeiture – entire share of guilty parent goes to common the spouses.)
children
Q: Under Article 41 of the Family Code (reappearance of the absent spouse),
2. The above-mentioned benefits do not exclude each other. how is support and custody of the children obtained?
With respect to support and custody of children, once the marriage is
3. The children have the right to compel their parents to deliver to terminated these issues (custody and support) may not be litigated in the
them their presumptive legitime. case for termination of marriage. Termination under Article 41 is automatic
from the time of filing of notice of reappearance of the absent spouse. If they
cannot, then the only thing that they can do is to file a separate proceeding.
The requirement of the Family Code is not just to set aside, but to deliver the One will have to file an action for custody and prove that it is required for
presumptive legitime of children. purposes of the support of the children. A separate proceeding must be filed
Q: What is the order of preference? for the custody or support of the children. Whoever wants custody must file

an action for the same. In case of support, you will have to file the necessary INTRODUCTION
action. In the Philippines, we do not allow divorce. We only allow legal
separation. Legal separation means that the couple can live separately from
ANNULMENT OR NULLITY OF MARRIAGE each other because it is a separation from bed and board. However, this does
SUMMARY OF RULE ON SUPPORT AND CUSTODY not mean that a spouse can enter into a subsequent marriage because legal
separation does not cut off the marital bonds. The spouses are still
Support of Children: considered married to each other but there is no obligation to live as
Pendente lite: Children to be supported from the conjugal or husband and wife. The effect of this is that if the wife goes out with other
absolute community of property men or if the husband goes out with other women, there is still the danger of
After Decree: Children to be supported from the separate committing adultery or concubinage provided the elements of the crime are
properties of the spouses based on parents’ resources and children’s needs present. Therefore, legal separation allows the couple to live separately from
Support of Spouses: each other but it does not allow them to contract a subsequent marriage, and
Pendente Lite: neither does it allow them to get into extra-marital affairs.
Art. 86. A donation by reason of marriage may be revoked by the Furthermore, legal separation provides for the liquidation of the
donor in the following cases: conjugal or absolute community of property. To this extent, it is the same as
xxx in declaration of nullity of marriages or in the annulment of marriages.
3. When the marriage is annulled, and the done acted in bad faith Accordingly, they are all the same insofar as properties are concerned but as
In annulment of marriage, there is an inconsistency between Article 43 and to personal relations, legal separation is quite different from the two because
Article 86(3) because Art. 43 makes the revocation mandatory while in Art. it does not cut off the marriage bonds.
86 revocation becomes merely directory. There is no inconsistency when it And finally, as to the causes of legal separation, the have to exist
comes to void marriages since donations propter nuptias are automatically AFTER the celebration of the marriage. Unlike in annulment of marriages
revoked. Art. 43 is, however, consistent with Art. 86 when it states that and declaration of nullity, the grounds therefore exist at the time of the
revocation of designation of the spouse as beneficiary in life insurance may celebration of the marriage.
be revocable.
1. Grounds
NOTE: If marriage is terminated by reason of Art. 41, delivery of
presumptive legitime is not required because Art. 532 specifically covers I. Art. 55. A petition for legal separation may be filed on any of the
decree of annulment/declaration of nullity of marriage only. following grounds:
II. (1) Repeated physical violence or grossly abusive conduct
Q: Is there a requirement of resignation in the delivery of presumptive directed against the petitioner, a common child, or a child of
legitime? the petitioner;
The judgment of annulment or absolute nullity of marriage, the partition III. (2) Physical violence or moral pressure to compel the petitioner to
and distribution of the properties of the spouses, and the delivery of the change religious or political affiliation;
children’s presumptive legitimes shallbe recoreded: IV. (3) Attempt of respondent to corrupt or induce the petitioner, a
a.) In the appropriate civil registry and common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or
b.) In the registries of property of the places where the real properties inducement;
V. (4) Final judgment sentencing the respondent to imprisonment of
distributed and delivered are located. more than six years, even if pardoned;
VI. (5) Drug addiction or habitual alcoholism of the respondent;
B. Legal Separation VII. (6) Lesbianism or homosexuality of the respondent;

VIII. (7) Contracting by the respondent of a subsequent bigamous were not very specific in including actions against the guilty spouse’s
marriage, whether in the Philippines or abroad; child then they should not be included. She believes that this provision
IX. (8) Sexual infidelity or perversion; of law talks about the grounds for legal separation. The focus here is the
X. (9) Attempt by the respondent against the life of the petitioner; or marriage relations of the husband and wife. The grounds mentioned
XI. (10) Abandonment of petitioner by respondent without here should be committed against the innocent spouse, whether directly
justifiable cause for more than one year. or indirectly. So if it is committed against the innocent spouse,
XII. For purposes of this Article, the term "child" shall include a child obviously, there is a reason for separation from bed and board. If it is
by nature or by adoption. (9a) committed against the common children then this is an indirect offense
against the innocent spouse. If it is committed against the innocent
Repeated Physical Violence or Grossly Abusive Conduct spouse’s own child then again there is an indirect offense against the
Q: This ground really speaks of two grounds. What are they? innocent spouse. But when the guilty spuse commits it against his or
1. Repeated physical violence – this means that in cannot be just one her own child, there is really no offense against the innocent spouse.
act of physical violence. It has to be repeated. How many times is The guilty spouse should be held liable under a different provision of
‘repeated’? There is no jurisprudence on this. But what is important law. The child can institute a separate action against the guilty spouse.
The latter can be deprived of parental authority. Therefore, there is a
here is that the act has been done a number of times and the act
reason for not including it as a ground for legal separation. Be that as it
involves physical harm.
may, the framers did intend that they should be covered. Therefore,
their intention should prevail.
2. Grossly abusive conduct – this, as distinguished from the above,
does not refer to the number of times the act is committed. The  last say: INCLUDED (intent of framers)
ground can involve only ONE act but the act is GROSSLY abusive
conduct. This may be an act which subjects the spouse to Physical Violence or Moral Pressure to Compel the Petitioner to Change Religion or
humiliation or shame. Ex. Incessant nagging by a spouse, Political Affiliation
humiliating a spouse in front of his/her friends or calling him/her
Q: This ground also talks of two grounds, what are they?
names in front of his/her friends.
1. Physical violence to compel a change in religion or political
Q: These actions are committed against who? affiliation – As distinguished from the first ground mentioned
1. The petitioner – this refers to the innocent spouse above, the physical violence in this case need not be repeated. A
single act of physical violence would be sufficient as a ground for
2. A common child (legitimate AND illegitimate) legal separation.
2. Moral pressure to compel a change in religion or political affiliation
3. The petitioner’s child – This refers to any other kind of pressure that is not physical. Ex. If
the wife says to the husband, “I will not sleep with you again for
Q: What happens if the act is committed by the guilty spouse on his one year until you become an NPC member.”
own child but who is not a child of the innocent spouse?
Certain commentators do believe that there is a ground for legal Q: If Marife subjects Happy to several beatings in order to convert him into
separation. This is based on the fact that the deliberations of the framers the INK religino, can this be a ground for legal separation?
of the Family Code show that they intended to include them. The
principle that the intention of the framers of the law should prevail is Yes. This ground applies to all kinds of religion.
applied here. However, the law does not reflect this intention. It is the
position of Dean Del-Castillo that since the framers of the Family Code
Q: If Pitsy is a member of the Abu Sayaf and he beats his wife in order for Q: Can this ground apply to a situation where the wife compels the husband
her to become an Abu Sayaf follower, can this situation fall under this to have relationships with other women or when the husband compels the
provision? wife to have relations with other men?
Yes, for as long as this is done for profit.
No, because most people really consider them as bandits and not a political
entity. Q: What if there was compulsion to do it? What if the spouses agree that the
wife must sell herself in order for them to have money, is there still a ground
(GAC?) for legal separation?
Q: What if Chelo was pressured by her husband to transfer from Lakas- Is this not equal to corrupt?
NUCD to NPC, can this be a ground for legal separation? No. It seems that the elements of compulsion and voluntariness are
Yes, because this involves moral pressure to compel the spouse to change important here.
her political affiliation. What is involved here is a change in political
ideology. Q: Can this apply to children forced to do pornographic movies?
Yes. This provision should apply to all kinds of sexual acts done for profit.
Q: What is Chelo’s husband merely pressured her to vote for Danding
during the last presidential election but did not pressure her to become an Q: Does corruption include begging?
NPC member, can there be a ground for legal separation? No. Begging is only a ground for suspension of political authority and not a
No. This is different from compelling one to change his/her political ground for legal separation. The acts involved here should be directed to
affiliation. prostitution.
Does it amount to the same thing? Q: The law says “attempt” to corrupt into prostitution. Supposing there was
a successful corruption into prostitution, would there still be a ground for
Q: Can the physical violence or moral pressure stated here be asserted on the legal separation?
children? Yes. We should not construct the meaning of this provision to merely an
No. This ground specifically mentions that the physical violence or moral “attempt”. This provision should include the other stages like frustrated
pressure is exerted only on the petitioner. The children are not excluded. and consummated.
Attempt to Corrupt Petitioner or Child to Engage in Prostitution Final Judgment Sentencing Respondent to More Than Six Years Imprisonment
Q: The attempt to corrupt or induce into prostitution is directed against Q: What are the requirements in order for this ground to apply?
who? 1. The spouse must have been convicted by final judgment.
1. The petitioner 2. He must have been sentenced to more than 6 years imprisonment.
2. A common child
3. The petitioner’s child *Many of the grounds for legal separation are criminal acts. But for
purposes of legal separation, there need not be conviction except for this
intent to induce GS’s kid ground. So in all other cases like attempt on the life, physical violence, etc., a
criminal suit is filed against the guilty spouse but for purposes of legal
*As to the children, it does not matter whether they are male or female. separation, the innocent spouse can prove those actions in the proceeding
And, we should also include here the intention of the members of the for legal separation and the latter being a civil case, proof beyond reasonable
Committee attempts to corrupt the guilty spouse’s own child. doubt is required. However, when we talk of this ground, conviction is

necessary because the test is the penalty actually imposed. Which means If the 4 grounds were not concealed from the other spouse or if they arose
that if there is no conviction then there is no penalty yet. after the marriage then these can be grounds for legal separation.
Q: When should the conviction occur? Q: What if the wife tolerates her husband who is a drug addict, can there
At any time during the marriage. If the guilty spouse was convicted after still be a ground for legal separation?
the celebration of the marriage, the proper question to ask is, “what is the
penalty?” and not “what is the crime?” If the penalty is more than six years Yes. Toleration should be distinguished from consent. If the wife
then this should be a ground for legal separation. encouraged the husband to become a drug addict or if both spouses are
drug addicts then the court should disallow the proceeding for legal
Q: Does the crime have to involve moral turpitude? separation to continuing.
No. It can be any crime provided the penalty imposed is more than 6 years.
Contracting by One Spouse of Another Marriage
*If this sentence had been served and it is concealed and involves moral
turpitude, this can be a ground for annulment of marriage. (old reviewer) Q: Why is there need to include this as a ground for legal separation?
The law frowns on infidelity.
Q: What is the meaning of the phrase “even if pardoned”?
This refers to the pardon of the Chief Executive (the President) and not the Q: What if a Filipino goes to the US and contracts a subsequent marriage
pardon of the offended party or innocent spouse. A pardon merely allows with an American but does not have sexual intercourse with her. Here
the spouse not to serve the sentence but it does not erase the crime merely married her in order to acquire a green card. They even live
committed nor the sentence imposed. If the pardon was granted by the separately. Would there still be a ground for legal separation? Yes.
offended spouse, this can only be a ground for the dismissal of the action for
legal separation. Q: Even if there was no infidelity committed as when the Filipino tells his
first spouse that he is doing this only tob e able to stay in the US and earn
Drug Addiction or Habitual Alcoholism money for their family?
Lesbianism or Homosexuality Yes, because the law does not distinguish whether the second marriage was
consummated or not. It is the act of contracting the marriage whether here
Q: What does lesbianism or homosexuality mean? or abroad which gives rise to the ground for legal separation. However, if it
This means attachment by one spouse to the same sex for sexual fulfillment. can be proved that the Filipino wife consented to such an arrangement or
connived with the husband then the action should be dismissed.
Q: Distinguish these 4 grounds from those of void and voidable marriages.
If the 4 grounds were present at the time of the marriage and has deprived Q: If the husband did not contract a subsequent marriage but is only living
the spouse of the capacity to perform the essential marital obligations of with another woman, is there a ground for legal separation?
marriage then these can be grounds for declaration of nullity due to Yes, but the ground is not contracting a bigamous marriage but rather sexual
psychological incapacity (Art. 36). infidelity.
If the 4 grounds were present at the time of the marriage but were concealed (under a different ground)
from the other spouse, such shall constitute fraud which is the ground for
annulment of marriage. *If the subsequent marriage was celebrated abroad, criminal charges of
bigamy cannot be filed here due to the principle of territoriality. However,
(I can’t decipher the notes in this part ) the civil action for legal separation – due to this ground can be filed here in
the Philippines.

Sexual Infidelity or Perversion Q: Must there be a previous conviction?
No. It is not necessary for the spouse who attempted against the other to be
Q: What does “sexual infidelity” mean? convicted for the legal separation to be granted. As a petition for legal
There is sexual infidelity when one of the spouses have sexual intercourse separation is civil in nature, what is necessary only is a preponderance of
with another other than his or her spouses. This ground embraces adultery evidence and not proof beyond reasonable doubt.
and concubinage.
Q: Is there any exception to the rule?
This ground takes the place of adultery on the part of the wife and
concubinage on the part of the husband in the Civil Code. This change Yes, as when the act of the respondent spouse was justified, as when a
answers the demands of Filipino women for the elimination of the double husband catches the wife in the act of adultery. Lso when the respondent
standard between men and women since concubinage on the part of the spouse acts in self-defense or in defense of a child against the unlawful
husband is very hard to prove (the man usually just keeps a mistress in aggression of the other spouse.
another place but goes home to his wife every evening) while one sexual
intercourse with another man is already adultery on the part of the wife. Q: Is there a ground for legal separation if the act is the result of criminal
negligence?
Q: What is “sexual perversion”? No, because in this case there would be an absence of intent to kill.
It is something done outside of the ordinary. It is forced upon the other
spouse or on another person. And the perversion must be sexual. This does Abandonment of One Spouse by the Other for More Than One Year
not refer to any other kind of perversion.
 without justifiable cause
Q: What if there was no force committed that the act done was sexually  without intent to return
perverted is there still a ground for legal separation?
No. There must be no consent on the part of the spouse. Q: From what period is the abandonment counted for there to be a ground
for legal separation?
* For these two grounds, the court is given leeway in determining whether The period is to be counted from abandonment.
the acts of the spouse fall under these two grounds and justify an action for
legal separation. They may be determined on a case-to-case basis. Q: Can the spouse file for legal separation from the mere occurrence of the
abandonment?
Attempt Against the Life of the Other No. It is necessary for the spouse to wait for a period of one year.
Q: If the husband merely beats the wife, it is enough to constitute an attempt Q: What must the nature of the abandonment be?
against the life of the other? It is necessary that the abandonment be without justifiable cause and
No, this ground presupposes an intent to kill. If the husband merely beats without intention of returning.
the wife, this may constitute physical violence and which if repeated may
also be a ground for legal separation. Q: If there is only physical separation between the spouses, but they still
support each other and also support and maintain the children, is there
Q: Does this ground include all the stages of commission of a felony? abandonment?
No. This includes all the stages of a commission except consummated as No, this case does not constitute abandonment.
then there would no longer be a need to file for legal separation as the
marriage has already been terminated by the death of the spouse.

Q: Is there any other provision in the Family Code which provide for a Code previously required at least one year residency before one may avail of
shorter period of time for abandonment to be considered? the remedy of legal separation from Philippine courts.
Yes. A later provision in the Family Code provides that abandonment is
presumed from an absence of three months. This case, however, does not Q: Who must institute the action?
give the abandoned spouse the right to file for legal separation. At this The FC is explicit that the action must be instituted by the innocent spouse.
stage, your remedies are limited to asking for the judicial separation of Thus, if both spouses have given ground for legal separation, they are both
property, transfer of administration and receivership. In short, after an disqualified from instituting the action. For them to be disqualified, it is not
absence for three months the abandoned spouse’s remedy is limited only to necessary that they have given the same ground for legal separation. As
property relations. In order to have a remedy with respect to private there is no hierarchy in the grounds provided by law, so long as one has
relations, the abandoned spouse must wait for a period of one year. given ground for legal separation he or she should be disqualified from
(some scribbles I can’t decipher) filing the action. It is not a defense that the ground given by the other be
graver or shows a more despicable character.
2. Procedure
Q: What is the prescriptive period for filing an action for legal separation?
Article 57. An action for legal separation shall be filed within five years The period is five (5) years counted from the occurrence of the cause.
from the time of the occurrence of the cause.
(knowledge not required)
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. Q: Is the prescriptive period also counted from the time of the knowledge?
No. Such was provided only in the Old Civil Code which has been
Article 59. No legal separation may be decreed unless the Court has taken eliminated under the FC.
steps toward the reconciliation of the spouses and is fully satisfied,
despite such efforts, that reconciliation is highly improbable. Q: What is the implication of the reckoning period for the filing of an action
for legal separation?
Art. 60. No decree of legal separation shall be based upon a stipulation of This implies that the period shall begin to run even if the offended spouse
facts or a confession of judgment. had no knowledge thereof whatsoever. Thus the five year period may lapse
In any case, the Court shall order the prosecuting attorney or fiscal even if the other spouses was totally ignorant of the cause.
assigned to it to take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed. (101a)
Q: What is the procedure in an action for legal separation?
same: cooling off period
Q: When can an action for legal separation be instituted?
The procedure is almost the same in all aspects as that of an action for the
As a general rule, an action for legal separation may be instituted from the
declaration of nullity and annulment. The only difference is that it is only in
time the cause or ground occurs. The exception in this case of abandonment
an action for legal separation that there is the 6 (six) month cooling off
which erquires a period of one year from the abandonment before the action
period.
for legal separation may be filed.
Q: What must be done during this cooling off period?
(some scribbles that I can’t decipher)
The judge must exert every available effort to make sure that the persons
reconcile. It is also to afford the parties time to think about the implications
Q: Who may avail of the remedy of legal separation
of the action he or she has instituted.
Anybody who has a ground for asking for legal separation may so institute
the action. This action is not limited to Filipino citizens alone. The Old Civil

Legal separation presupposes the existence of a valid marriage, thus it is not The hearing proper can be held only after the termination of the cooling off
advisable to precede an action for annulment or nullity or marriage with an period and after the fiscal has submitted a report to the effect that there is no
action for legal separation because the mere filing of an action for legal collusion between the parties.
separation is deemed an admission of the existence of a valid marriage.
Q: Can a decree of legal separation be granted based on a stipulation of facts
Q: What will happen if one of the spouses during the cooling off period or a confession of judgment?
commits an act which constitutes as a ground for legal separation? No. As in the case of an action for the declaration of nullity of marriage and
This may then be raised as a defense by the other spouse. The necessity that annulment, a decree of legal separation cannot be granted based on a
the action be instituted by an innocent spouse does not contemplate only of stipulation of facts or a confession of judgment.
the period before the filing of the action. The spouse who initiated the
action must be innocent even during the intervening period.  refuses to live with the other spouse depsite dismissal of action for legal
separation – penalty: ground for denial of the right to receive support
Q: Is the court prohibited from making any actions in the case during the  if refusal for (can’t decipher)
cooling off period?
No. The court can issue injunctive orders, order the giving of support and Pacete v. Carriaga
such other incidental matters not dealing with the main issue of legal FACTS:
separation. A and B are spouses, and A (husband) married C. A acquired vast properties
and placed them under his, C's or their children's names. B filed this case to
Q: What is the effect of the absence of a cooling off period to the decree of (1) Nullify the A and C marriage and (2) be legally separated with A. In the
legal separation? case, A and C twice asked for 30-days extension. In the second motion, the
 decree void court granted 20 days. Hence on their third request (for 15 days) the Court
The absence of a cooling off period shall be a ground for the declaration of denied the motion and declared them in default - granting the prayer of B.
nullity of the decree. It is a procedural requirement which if not followed Before the SC via petition for certiorari, A and C seek to reverse the default
may be a ground for reversing the judgment in the action. order
Q: When can the action be set for hearing? ISSUE: WON the default order ought to be reversed
It is only when the judge has made a determination that there is no HELD: Yes.
possibility of reconciliation between the parties that the action is set for 1. RULE the proper remedy is either to appeal from the judgment by default
hearing. or file a petition for relief from judgment. EXCEPTION: petition for
certiorari when the default order is improperly declared, or even when it is
Q: What is the duty of the fiscal in actions for legal separation? properly declared, where GAD attended the declaration.
It is the duty of the fiscal to ensure that there is no collusion between the 2. Court to order the Prosecutor to intervene. Prosecutor to investigate if
parties. He must submit a report to the effect that there is no collusion collusion exists or evidence is fabricated. In legal separation, the case will
between the parties. not be tried before 6 months have elapsed since filing (cooling off period)
3. Petitioner prayed for legal separation. That other remedies, whether
Q: What if the fiscal finds that there is collusion between the parties? principal or incidental, have likewise been sought in the same action cannot
This is a ground for the dismissal of the action. dispense, nor excuse compliance, with any of the statutory requirements.
Q: When can the hearing proper be held? 3. Defenses

Art. 56. The petition for legal separation shall be denied on any of the of adultery and condonation of one act by the husband does not necessarily
following grounds: imply condonation of the other acts.
(1) Where the aggrieved party has condoned the offense or act There is no such thing as blanket condonation. You can only forgive specific
complained of; actions which have already been done and not those which are yet to be
done.
(2) Where the aggrieved party has consented to the commission of
the offense or act complained of; Q: How is the condonation given?
Condonation may either be express or implied.
(3) Where there is connivance between the parties in the
Q: What is the case of an implied condonation?
commission of the offense or act constituting the ground for legal
separation;
 continued cohabitation
 continuous support
(4) Where both parties have given ground for legal separation;
Continued habitation and continuous giving of support after knowledge of
(5) Where there is collusion between the parties to obtain decree the ground has been considered as acts of condonation.
of legal separation; or
Q: Voluntary sexual intercourse with the guilty spouse after full knowledge
(6) Where the action is barred by prescription. (100a) of the offense has been deemed as condonation. When is not deemed so?
There is no condonation if the purpose of the sexual intercourse was
Q: What must be done in order for such defenses be appreciated by the a) to save the marriage and maintain harmony
court? b) for purposes of attempting reconciliation but the attempt was
These defenses may be raised either in the answer or at anytime before a unsuccessful
judgment is made on the action.
Q: Does living together after discovery of the commission of a ground for
Q: What if a spouse who does not file an answer to an action for legal legal separation necessarily imply condonation? presumably yes, but …
separation filed by the other spouses against him? No. The fact of living together under one roof always give rise to a
The court may dictate the other spouse to file an answer. In actions for legal presumption of cohabitation. But if it is proven that even if the spouses live
separation, there can be no judgment based on the default of the other. together, they stay in separate rooms, sleep on different beds, the
presumption is rebutted.
Where the Aggrieved Party has condoned the offense or act complained of
Q: If the guilty spouse leaves the conjugal home after his or her deeds were
Q: What is the meaning of condonation for purposes of legal separation? discovered and the innocent spouse does not actively look for him or her, is
Condonation is an act of forgiveness. As before one may forgive, the act this case of condonation?
must have arleady been committed thus this is manifested only after the No, it is the duty of the spouse to return home.
commission of the ground.
Where the Aggrieved Party has Consented to the Commission of the Offense or Act
Remember that the act of the condonation must be for each and every cause. Complained of
Thus each sexual intercourse by the wife with another man is a separate act
 manifested before commission of the ground

legal separation when there is actually none or when there is a suppression
Q: What is the meaning of consent for purposes of legal separation? of evidence of a valid defense.
It is manifested before the commission of the ground for legal separation. It
must be a consent for the specified ground relied upon in the action for legal Q: Differentiate connivance and entrapment.
separation. Connivance is a case where for example the husband hires a detective to
sleep with his wife in order to have evidence for adultery.
Q: How is consent given?
Consent may either be express or implied. Entrapment is a case where the husband make it appear to the wife that he is
leaving for a week and then surprises the wife in the act of sexual
Q: What is a case of an express consent? intercourse with another man.
When a wife agrees to allow the husband to sleep with other girls.
Mutual Guilt
Q: What is the nature of such an agreement?
Agreements of this character are void and cannot be enforced against the Q: What is mutual guilt?
other spouse. It cannot be raised as a defense in a criminal action for This is a case where both spouses have been given ground for the filing of an
adultery or concubinage. But for purposes of legal separation this type of action for legal separation.
agreement can be used as a defense in an action for legal separation.
Q: For this defense to be appreciated, must the ground given be of the same
Q: What does implied consent presuppose? knowledge magnitude?
Implied consent presupposes knowledge. One cannot consent to something No, it is not necessary that the grounds be the same or at least of the same
he or she does not have knowledge of. magnitude. For purposes of legal separation all grounds are equal.
Q: What if one of the spouses is gay and such was known to the other at the Prescription (See Previous Discussion)
time of the marriage, can the normal spouse file an action for legal
separation? 4. Liquidation
In this case it is clear that one cannot file an action for annulment of a. Effect of death of one of the parties
marriage on the ground of fraud as there was no concealment as to the real
character of the spouse. It may however be used as a ground for legal LAPUZ V. EUFEMIO
separation. Knowledge at the time of the marriage is not considered as FACTS: Eufemio S. Eufemio and Carmen Lapuz lived as husband and wife
consent when the normal spouse married the gay spouse relying on the from 1934 to 1943 when Eufemio abandoned Carmen. They had no children
promise of the latter that he will turn straight. but they acquired properties during their marriage. In 1949, Carmen
discovered Eufemio cohabiting with another woman, Go Hiok. In 1953,
Connivance & Collusion Carmen filed a petition for legal separation and prayed that Eufemio be
 Connivance – participant deprived of his share of the conjugal partnership profits. In 1969, while this
 Collusion - appearance case was still pending, Carmen died in a car accident. Eufemio moved to
dismiss.
Connivance involves some participation from the part of the other spouse,
whether directly or indirectly. Collusion appears only after and this does not ISSUE: Should the petition be dismissed?
presuppose an existence of a ground for legal separation. There is collusion HELD: YES. An action for legal separation which involves nothing more
when the spouses only agree to make it appear that there is a ground for than bed-and-board separation is purely personal. As such, the death of one
of the parties to the action causes the death of the action itself. Moreover, in

Art. 108, the Code allows the spouses to reconcile and stop the proceedings of the Old Civil Code mandates the dissolution and liquidation of the
or even rescind a decree already rendered. property regime of the spouses upon the finality of the decree of legal
separation. Such liquidation and dissolution are necessary consequences of
Even if this case involves property rights, since these property the final decree. This legal effect automatically follows as an inevitable
rights are intransmissible, they cannot survive if the plaintiff dies prior to incident. American jurisprudence held that the provisions of the decree of
this decree. These rights are mere effects of a decree of separation, their legal separation should definitely and finally determine the property rights
source being the decree itself. Without the decree these rights do not come and interests of the parties. Furthermore, it has been held that the settlement
into existence. These claims are merely rights in expectation. of some property rights between the parties is an incident of every decree of
divorce where there is any property involved.
Macadangdang v. CA
FACTS: Filomena Gaviana Macadangdang and Antonio Macadangdang got Therefore, the division of the conjugal properties is a mere incident of the
married in 1946 after living together for 2 years. Their business grew from a decree of legal separation that has become final. The conjugal partnership is
humble sari-sari store to an extensive empire engaged in merchandising, automatically dissolved by means of the final decree.
trucking, transpo, rice and corn mill stripping, etc. In short, they got really
rich. By the time this action was filed, they had 6 kids. Q: What is the difference between the Lapuz case and the Macadangdang
case?
After years of wealth and luxury, their relationship worsened. Both accused The difference lies in the time when the spouse died. In Lapuz, the spouse
each other of having extramarital affairs. Married life became intolerable died before a decree of separation had been issued by the trial court. Thus,
and they separated in 1965. The wife went to Cebu. Later, she went back to before the judgment of the trial court could be reversed, the plaintiff-spouse
Davao and discovered the illicit affairs of her husband. She then initiated a died. As such, the action for legal separation beig purely personal, the
suit for legal separation. The trial court granted said legal separation action could no longer continue. In any event, the mariage having
ordering the husband to pay P10K as support for the wife and the children terminated, the case would be moot and academic. The only reason the
until an administrator could be appointed to take care of the conjugal father of the wife wanted to continue the action was to obtain a liquidation
properties prior and pending liquidation. Several motions objecting to this of the conjugal properties. Remember, one of the effects of a decree of legal
was made but the court denied these and ruled in favor of the wife. The separation. In addition, the guilty spouse’s share in the liquidation is
husband appealed to the CA. The CA dismissed this appeal. Hence, the forfeited in favor of either the common children, the children of the guilty
case was brought before the SC. Pending the appeal to the SC the husband spouse, or the innocent spouse, in that order. In the case of Lapuz, there
died. His counsel moved to dismiss the case against him. The wife agreed were no common children and neither were there any other children to
in principle. speak of. Thus, had the action for legal separation continued, the wife’s
share in the conjugal properties would have been the whole thing i.e., her
ISSUE: Whether the death of the husband rendered the case moot and own share plus the share forfeited by her husband. Then, the wife having
academic died, and the husband being disqualified from succeeding by testate or
intestate succession, the parents would have inherited the entire thing. That
HELD: NO. Note that the lower court had resolved only the issue of legal was why they wanted to continue the legal separation case.
separation and reserved for supplemental decision the division of the
conjugal properties. The decision as regards granting the decree of legal To illustrate:
separation is not compatible merely because no liquidation was made. The
decision granting legal separation has become final and executory since the (1) Shares of husband and wife if action continued:
law explicitly and clearly provides for the dissolution and liquidation of the
conjugal partnership of gains or the absolute community of property as Share of
among the effects of the final decree of legal separation. Note that Art. 106 husband

(Forfeited in Share of wife NO. Under Article 63(4) “the offending spouse shall be disqualified from
favor of wife) inheriting from the innocent spouse by intestate succession.” Although the
(50%) Dean discussed some things in her lecture to the effect that the husband
(50%) being a guilty spouse disqualified him from inheriting under the laws of
succession, i.e., by giving ground for disinheritance or by being an unworthy
(2) Shares of husband and wife because action was terminated: (due to death) heir, all that needs to be done is to look at Art. 63(4) for the answer.
Share of the But, it must be remembered that while all testamentary provisions in favor
husband in the Share of wife of the guilty spouse are revoked by operation of law, according to Sempio-
Conjugal Assets Dy, this applies to testamentary provisions existing at the time of the decree
of legal separation is issued. Later on, if the innocent spouse makes another
Husband’s will which contains provisions in favor of the guilty spouse, it is perfectly
share as valid.
surviving
spouse  automatic
As it was, the SC ruled that these property “rights” arising from legal 5. Effects of legal separation pendente lite/after finality
separation were merely inchoate rights, i.e., mere expectations. These were
not considered as being transmissible by nature to the parents of the wife. Art. 61. After the filing of the petition for legal separation, the spouses
The cause of action was not one which survived the death of the wife. The shall be entitled to live separately from each other.
liquidation of the conjugal assets would have to be done in the proceedings The court, in the absence of a written agreement between the spouses,
for the settlement of the wife’s estate. shall designate either of them or a third person to administer the absolute
community or conjugal partnership property. The administrator
On the other hand, in the Macadangdang case, the plaintiff spouse had died appointed by the court shall have the same powers and duties as those of a
after a decree of legal separation had been issued. What was at issue was guardian under the Rules of Court. (104a)
the need to liquidate the conjugal property. The SC held that since the
decree of legal separation had already become final, the death of the spouse  pending state
did not render the case moot and academic. The case had already been
decided and the defendant spouse had been found by the trial court as Art. 62. During the pendency of the action for legal separation, the
having given cause for legal separation. According to the SC, the liquidation provisions of Article 49 shall likewise apply to the support of the spouses
of the conjugal properties was but a mere incident to the action for legal and the custody and support of the common children. (105a)
separation and is but an effect of the issuance of a decree of legal separation.
Therefore, once a decree is issued and becomes final, the results thereof are Q: What are the effects of legal separation?
considered as mere incidents. Thus, the death of one of the spouses after the  children conceived before/after legal separation  legit
decree has become final does not result in the dismissal of the action. The  children conceived after annulment  illegit even if proven to be fathered
liquidation of the properties and the other effects of the decree may still be by the husband and wife
determined by the court.  voluntary community – voluntary dissolution; can only be revived once
Q: But couldn’t the husband in the Macadangdang case still inherit from the (1) The husband and wife are entitled to live aparat. Thus, the
wife, since he is a surviving spouse? husband has no right to sexual intercourse with his wife, and if he forces
himself upon her, he can be charged with rape.
HELD: YES. The Supreme Court has held in the case of Quintana v. Lerma (24
This is of course merely a temporary measure, the continuation of Phil 285) that adultery is a good defense against an application for support
which depends on the outcome of the action for legal separation. On the one pendente lite. Under the Rules of Court, in fact, the court is obliged to make a
hand, if the action is dismissed the wife or husband should return to the preliminary finding on the possible outcome of the case in determining
conjugal dwelling. But, they cannot be compelled to do so. The whether support pendente lite is applied for. The SC emphasized that the
consequences of refusing to return to the dwelling could be the loss of the right to separate support or maintenance presupposes the existence of
right to demand support or even damages as against the spouse who refuses justifiable cause for the spouse claiming the right to live separately.
to return. On the other hand, if the decree of legal separation is issued, the
entitlement to live separately is made permanent, unless the spouses Q: In actions for annulment or nullity of marriage, support granted during
reconcile. the pendency of the proceedings are considered as advances of the share of
the spouses in the conjugal or community property. Does the same hold
(2) With respect to the administration of the conjugal or community true in actions for legal separation?
properties, the spouses can agree in writing as to who will be the
administrator thereof. Otherwise, the court will determine who will be the If a decree of legal separation is issued, it is the opinion of the Dean that
administrator. during the liquidation of the properties, the support which the spouses
received during the pendency of the action should be considered as
(3) CUSTODY OF MINOR CHILDREN advances from their share. It goes without saying that if the decree is not
The spouses can agree in writing as to which of them will have custody issued, there is no liquidation to speak of.
during the pendency of the case. In the absence of an agreement, the court
will issue an order providing for the custody of the children. At this point, After Finality
there is no preference as to which spouse will be granted custody. The court
will decide on the basis of the best interests of the child.  live separately
 ACP/CPG dissolved & liquidated  forfeiture
(4) SUPPORT  Custody
The general rule is that the support of the spouses will come from the  disqualified: from intestate succession; testate provisions revoked & DL
absolute or conjugal property because the guilt of the defendant spouse has
yet to be established. The exception is found in the Rules of Court. Art. 63. The decree of legal separation shall have the following effects:
Lerma v. CA
(1) The spouses shall be entitled to live separately from each
FACTS: On 18 November 1969, Concepcion Lerma instituted proceedings
other, but the marriage bonds shall not be severed;
for legal separation from her husband Teodor, charging that he had
committed concubinage. At the time she filed the case, there was a pending
criminal case for adultery against Concepcion which had been filed by (2) The absolute community or the conjugal partnership shall be
Teodoro. During the pendency of the legal separation case, Concepcion dissolved and liquidated but the offending spouse shall have no
moved for, and was granted support pendente lite. Teodoro objected on the right to any share of the net profits earned by the absolute
ground that the pending adultery case against Concepcion should be community or the conjugal partnership, which shall be forfeited
considered as a basis to deny her motion to support pendente lite. in accordance with the provisions of Article 43(2);
ISSUE: Is a charge of adultery sufficient basis to deny a spouse support (3) The custody of the minor children shall be awarded to the
pendente lite during an action for legal separation? innocent spouse, subject to the provisions of Article 213 of this
Code; and

(4) The offending spouse shall be disqualified from inheriting revoked by operation of law. If, however, the innocent spouse subsequently
from the innocent spouse by intestate succession. Moreover, makes a new provision for the guilty spouse in his or her will, it is valid.
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of law. (106a) Q: Without a decree of legal separation, will the fact that the spouse was
convicted of adultery or concubinage disqualify him or her from inheriting
from the other spouse?
Q: What are the effects after the decree of legal separation has been issued?
According to Sempio-Dy, this would not disqualify the convicted spouse.
LOOK IT UP! Just kidding. Article 1032 of the Civil Code does not mention adultery or concubinage as a
(1) The spouses are now entitled to live separately for good. But since the basis for making an heir unworthy to succeed. Moreover, Article 1002
marriage is not terminated, the obligation to mutual fidelity subsists. If provides that “in case of a legal separation if the surviving spouse gave
either party gets married again, he or she commits adultery or concubinage, cause for legal separation, he or she shall not have any of the rights” to
respectively. In addition, the wife cannot be compelled to have sexual intestate succession. Thus, there must be a decree of legal separation before
intercourse with the husband. unworthiness as an heir may exist.
If the husband and wife start living together again, the Dean said that this Q: Can the wife drop her husband’s family name after the decree of legal
would amount to the annulment of the decree of legal separation. This may separation is issued?
be true, but until the spouses actually file a joint manifestation under oath to NO because the marriage is not terminated. Sempio-Dy cites the case of
that effect with the court which issued the decree of legal separation, the Laperal v. Republic (6 SCRA 357) which held that wife has been granted legal
decree is not set aside. separation cannot petition to be allowed to revert to her maiden name. To
allow the wife to do so would give the impression that she is no longer
(2) CUSTODY OF MINOR CHILDREN married when in truth she still is.
The custody of the children is given to the innocent spouses, except for the
children under seven years of age who are to remain in the custody of the Art. 64. After the finality of the decree of legal separation, the innocent
mother as a general rule. So even if the wife is the guilty spouse, the spouse may revoke the donations made by him or by her in favor of the
children under 7 years of age stay with her, unless the court finds that she is offending spouse, as well as the designation of the latter as beneficiary in
unfit to care for them. any insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be recorded in the
(3) SUPPORT: registries of property in the places where the properties are located.
Since the marriage is not terminated, the basis for the right to support still Alienations, liens and encumbrances registered in good faith before the
exists. As a general rule, however, is that there is no obligation to give recording of the complaint for revocation in the registries of property shall
support after the decree is issued. The court MAY require the guilty spouse be respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification thereof to
to support the innocent spouse. This is not automatic and is left to the
the insured.
discretion of the court. Of course, the children will continue to receive
support from the separate properties of the spouses.
The action to revoke the donation under this Article must be brought
Q: Is the guilty spouse entitled to legitime from the innocent spouse? within five years from the time the decree of legal separation become
final. (107a)
NO. The guilty spouse is automatically disqualified from succeeding by
intestate succession from the innocent spouse. As we have stated above, the Q: Are donations proper nuptias and designations in insurance policies in
provisions in the innocent spouse’s will in favor of the guilty spouse are favor of the guilty spouse automatically revoked in cases of legal separation?

 insurance – 5 years also – nope! The petitioner now assails this order, arguing that since Art. 124 of the
NO. Unlike in the case of annulment or nullity of marriages, there is no Family Code provides for a joint administration of the conjugal properties
doubt that a decree of legal separation only entitles the innocent spouse to by the husband and wife, no injunctive relief can be issued against one or
revoke the donation which he or she made to the guilty spouse. Article 64 the other because no right will be violated. He also notes that the CA failed
uses the word MAY and thus the choice is with the innocent spouse. Of to appoint an administrator of the conjugal assets as mandated by Art. 61.
course, the revocation of donations proper nuptias must be done within 5
years from the date of the decree of legal separation became final. Also, ISSUE: WON the wife may be allowed to continue with her administration
with respect to donations, the revocation must be registered in the proper pending the appointment of an administrator over the whole mass of
registries of property in order to affect third parties. conjugal assets
HELD: The wife may thus be allowed.
With respect to designations of the guilty spouse as a beneficiary in an  Art. 124 does indeed grant to the spouses joint administration over
insurance policy, the innocent spouse may revoke the same even if the the conjugal properties. However, Article 61 states that after a
designation is considered irrevocable. Also, there is no prescriptive period petition for legal separation has been filed, the trial court shall, in
for the revocation of the designation in the insurance policy. The same may the absence of a written agreement between the couple, appoint
be revoked as long as the policy is ineffective. either one of the spouses or a third person to act as the
administrator.
Sabalones v. CA  While it is true that no formal designation of the administrator has
FACTS: been made, such designation was implicit in the decision of the trial
Samson T. Sabalones was an ambassador , married to Remedios Gaviola- court denying the petitioner any share in the conjugal properties
Sabalones. When Sabalones retired in 1985 and came back to the Philippines (and thus also disqualifying him as administrator thereof). That
but not to his wife and their children. Four years later, he filed an action for designation was in effect approved by the Court of Appeals when it
judicial authorization to sell a building and lot located at issued in favor of the respondent wife the preliminary injunction
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the now under challenge.
conjugal partnership. In her answer, his wife opposed the authorization  The primary purpose of the provisional remedy of injunction is to
because she and the children were dependent on rentals from another preserve the status quo of the things subject of the action or the
conjugal property for support. She also informed the court that he had not relations between the parties and thus protect the rights of the
returned to his legitimate family and was instead maintaining a separate plaintiff respecting these matters during the pendency of the suit.
residence with a second wife, Thelma Cumareng and their three children. In  The wife has been administering the subject properties for almost
her prayer, she asked the court to grant the decree of legal separation and 19 years now, apparently without complaint on the part of the
order the liquidation of their conjugal properties, with forfeiture of her petitioner.
husband's share therein because of his adultery.  In her motion for the issuance of a preliminary injunction, the
respondent wife alleged that the petitioner's harassment of their
The court decreed the legal separation of the spouses and the forfeiture of tenant at Forbes Park would jeopardize the lease and deprive her
the petitioner's share in the conjugal properties, declaring as well that he and her children of the income therefrom on which they depend for
was not entitled to support from his respondent wife. This decision was their subsistence. These allegations, none of which was refuted by
appealed to the respondent court. Pendente lite, the respondent wife filed a the husband, show that the injunction is necessary to protect the
motion for the issuance of a writ of preliminary injunction to enjoin the interests of the private respondent and her children and prevent
petitioner from interfering with the administration of their properties in the dissipation of the conjugal assets.
Greenhills and Forbes Park. CA granted the preliminary injunction.
6. Reconciliation effects

Art. 65. If the spouses should reconcile, a corresponding joint Q: How is legal separation different from other cases like declaration of
manifestation under oath duly signed by them shall be filed with the nullity or annulment?
court in the same proceeding for legal separation. (n)
 effect of reconciliation (vis-a-vis to children) – still legitimate, joint
Art. 66. The reconciliation referred to in the preceding Articles shall have custody, receive support:
the following consequences: o revival of property regime – from the ACP/CPG
o separation of property after leg sep  fixing the resources of the
respective spouses
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and Unlike other cases, a decree of legal separation never becomes final. The
records of the case will always remain with the court in which it was tried
because at any stage, even after the so-called finality of the judgment (final
(2) The final decree of legal separation shall be set aside, but the in a sense that there is no more appeal), one can still make additional filings
separation of property and any forfeiture of the share of the
and there can still be additional effects which can be felt after the issuance of
guilty spouse already effected shall subsist, unless the spouses
a decree of legal separation. One of these is reconciliation.
agree to revive their former property regime.
Q: Is reconciliation is different from mere condonation. Reconciliation is
The court's order containing the foregoing shall be recorded in the proper more than just forgiving. It involves forgiving and forgetting and getting
civil registries. (108a) back together again as if nothing happened. It is possible for a spouse to
condone what the other has done but their relationship will never be the
Art. 67. The agreement to revive the former property regime referred to in same again. In reconciliation, however, aside from forgiving, the parties
the preceding Article shall be executed under oath and shall specify: also decide to live together just like the time before the issuance of a decree
of legal separation.
(1) The properties to be contributed anew to the restored regime;
Q: What is the effect of reconciliation on the proceedings on the decree of
(2) Those to be retained as separated properties of each spouse; legal separation?
and 1. If the spouses reconcile after the issuance of a decree of legal separation,
the decree will be rescinded, although the separation of property or any
forfeiture of the share of the guilty spouse already effected shall subsist
(3) The names of all their known creditors, their addresses and
unless the parties agree to revive their former property regime.
the amounts owing to each.
2. If the spouses reconcile after the issuance of a decree of legal separation,
The agreement of revival and the motion for its approval shall be filed the decree will be rescinded, although the separation of proerpty or any
with the court in the same proceeding for legal separation, with copies of forfeiture of the share of the guilty spouse already effected shall subsist
both furnished to the creditors named therein. After due hearing, the court unless the parties agree to revive their former property regime.
shall, in its order, take measure to protect the interest of creditors and such
order shall be recorded in the proper registries of properties. Q: After the spouses have reconciled, can they still file an action for legal
separation against the other?
The recording of the ordering in the registries of property shall not Yes. After reconciliation, if one of the spouses commits another act
prejudice any creditor not listed or not notified, unless the debtor-spouse constituting a ground for legal separation, the innocent spouse can file
has sufficient separate properties to satisfy the creditor's claim. (195a, another action for legal separation based on the new ground.
108a)

Q: In order for the court to rescind the decree of legal separation, it has to be Q: What is the effect of the reconciliation between husband and wife on their
advised of the fact of reconciliation. How do the parties inform the court of property relations?
the fact of reconciliation?
1. The separation of property between the spouses and any forfeiture in
The law requires the parties to submit a joint manifestation under oath duly the share of the guilty spouse shall continue to subsist after the
signed by them. The joint manifestation must be filed in the court which reconciliation, unless the spouses agree to revive their former property
issued the decree of legal separation or where the action is pending. regime.
Thereafter, the court will issue a decree rescinding the decree of legal 2. If the spouses agree to revive their former property regime, they shall
separation. execute an agreement under oath specifying:
a. the properties they are controlling anew to the restored regime;
Q: What will happen if the parties do not file a joint manifestation? b. the properties retained by each spouse as separate property;
There can be no formal declaration of the rescission of the decree of legal c. the names and addresses of all known creditors of each spouse, the
separation. amounts owing to each, and the liens held by each, if any.
Q: What will happen if the parties do not file a joint manifestation? 3. The spouses should then submit to the court the agreement of revival
There can be no formal declaration of the rescission of the decree of legal together with a motion asking for its approval. Copies of said
separation. It is however incorrect to say that they are still legally separated agreement and motion shall be furnished the creditors named therein.
if they do not file a joint manifestation because truthfully, they should be 4. After due hearing, the court shall issue an order approving the
considered as being married and no longer legally separated in view of the agreement but it shall take measures to protect the interest of the
reconciliation. creditors named therein.
5. The court order approving the parties’ agreement shall be recorded in
The formality of filing a joint manifestation under oath should only be the proper registries of property in all the places where the spouses
confirmation that the parties have in fact reconciled and will only be the have properties. Such recording, however, shall not affect creditors
basis for the court to issue a formal decree for rescission of legal separation. who have not been notified of the proceedings.
The fact of reconciliation is the one which actually rescinds the decree of
legal separation. Q: After the issuance of a decree of legal separation and the liquidation of
the absolute community or the conjugal partnership, there will be separation
(Note: According to Justice Sempio-Dy, however, it is only upon the of property. In case of reconciliation, will the former property regime be
issuance of a court order setting aside the decree of legal separation that said automatically revived?
decree becomes ineffective.)
No. The revival of the former property relations is not automatic. The
Q: Is there a need to register the court order setting aside the decree of legal spouses will have to file the necessary pleading in court to inform it that
separation? they are reviving their former property regime.
Yes. The court order setting aside the decree of legal separation shall be
recorded in the civil registry where said decree was entered, as well as the Q: Is it possible for the parties to reconcile and have the decree of legal
civil registry of the place where the parties reside, if they have changed separation rescinded without the old property regime?
residence after the decree.
Yes, it is not mandatory to bring back the properties to the former property
 rescission should also be recorded regime. The parties can opt for a rescission of the decree of legal separation
without however disturbing the regime of separation of property. Once the

community of property has been liquidated, there is no obligation on their properties to satisfy the obligation in their favor because not all separate
part to go back to the absolute community of property. obligations are chargeable to the absolute community or conjugal
partnership. That is the reason why the court will require notices to the
Q: If the spouses decide to go back to absolute community or conjugal creditors and will require you to file an inventory of all your credits and
partnership, what will happen to the properties which were liquidated and how much you owe to each creditors.
have become separate properties after the issuance of the decree of legal
separation? Q: What happens to creditors who are not listed among the creditors of each
of the spouses and are not notified of the proceedings where the spouses
If the spouses want to revive their old property regime, their properties will bring back their properties to the absolute community or conjugal
have to be contributed anew to the conjugal or absolute community. The partnership?
spouses may choose which properties they may want to contribute anew.
Those which are not contributed anew remain to be separate properties of They will not be prejudiced by the return of these properties to the absolute
the spouses. community or conjugal partnership. This means that the creditors who have
not been notified can go after these properties as if they are not conjugal or
Q: Are the spouses required to seek court approval in case they want to absolute community property. So even if the nature of the debt is such that
revive their former property regime? it cannot be ordinarily charged to the conjugal or absolute community of
Yes. The revival of the old property regime as well as the contribution of property, they will still be permitted to go after these properties because
new properties or properties which were formerly included in the absolute they have not been notified of the proceedings. As an exception, they will
community of property of conjugal partnership of gains require a process of not be allowed to go after these properties if the debtor has adequate
approval by the courts which issued the decree of legal separation. The separate properties. The reason for the exception is that the debtor still has
purpose of the court approval is to protect the creditors. This also explains sufficient property to satisfy the claim of his creditors, so it will not be
the need to state the names of the creditors and the debts owing to them in necessary for them to go after the properties which have been contributed to
the petition filed with the court. the absolute community or conjugal partnership. Note, however, that this
rule refers to credits which were incurred after the liquidation but before the
Q: How are the creditors prejudiced by the revival of the old property reconciliation.
regime?
Once a decree of legal separation is issued and a liquidation takes place, the Q: What is the effect of reconciliation to donations proper nuptias?
entire community of property is divided into 2. One half goes to the wife In case of legal separation, the innocent spouse has the option of revoking
and the other goes to the husband. These properties become separate donations proper nuptias made in favor of the offending spouse. If the
properties. In the meantime that they are governed by separation of innocent spouse does not revoke the donations proper nuptias, the
property, they will necessarily incur obligations. These will have to be reconciliation will not change anything. They remain to be donated. But if
separate obligations which may be charged against their separate properties. the innocent spouse revokes the donation proper nuptias after the issuance
If the spouses decide to maintain the separate proeprties despite of a decree of legal separation, the property donated goes back to him. Once
reconciliation, the creditors are not affected because they can always go after there is reconciliation, the innocent spouse can no longer donate the
the separate properties of the spouses. But if they agree to bring back the property back to the other spouse because of the prohibition on donation
properties to either the conjugal or absolute community of property, the between spouses. In other words, once the donation is revoked, it remains
creditors will be prejudiced. How? Separate obligations can only be revoked forever.
charged, as a general rule, on separate properties. They cannot be charged,
except for limited exceptions, to the absolute community of properties. So Q: What then can the innocent spouse do if he wants to return the property
that if you bring back all your separate properties to the conjugal or absolute to the other spouse?
community, in effect, you cut off the right of the creditors to go after these

If he really wants to return the property so that the other spouse can use it, innocent spouse by reason of unworthiness. Reconciliation between
the only way to do that is to agree to return it to the conjugal or absolute the spouses removes such unworthiness, so that after the husband
community of property. Of course, this is not the same as donation proper and wife have reconciled, the offending spouse may then be
nuptias because in donation proper nuptias, the property donated becomes allowed to inherit from the innocent spouse through intestate
separate properties provided that you are governed by conjugal partnership succession. The reason is that at the time of the latter’s death, the
of gains because if you are governed by absolute community, the effect of ground for the prohibition no longer exists.
donation proper nuptias is different. While donations proper nuptias given 2. Testate Succession – when a decree of legal separation is issued, the
before the celebration of the marriage, at the time it is donated, it will be provisions in the will of the innocent spouse in favor of the
considered as separate property but the rule in absolute community is that offending spouse are automatically revoked. After reconciliation,
all properties belonging to the spouses before the marriage becomes part of the innocent spouse is allowed to institute again (a positive act) the
the absolute community of property unless you have offending spouse as heir
Q: What then can the innocent spouse do if he wants return the property to Q: What is the effect of reconciliation on cases where the innocent spouse
the other spouse? designated the guilty spouse as testamentary heir after the issuance of the
If he really wants to return the property so that the other spouse can use it, decree of legal separation?
the only way to do that is to agree to return it to the conjugal or absolute
community of property. Of course, this is not the same as donation propter If one is designated as a voluntary heir after the issuance of a decree of legal
nuptias because in donation propter nuptias, the property donated becomes separation then that is a valid designation and will continue to be valid even
separate property provided that you are governed by conjugal partnership after there has been reconciliation between the spouses
of gains because if you are governed by absolute community, the effect of
donation propter nuptias is different. While donations propter nuptias given Q: Can the innocent spouse refuse to designate the guilty spouse as
before the celebration of the marriage, at the time it is donated, it will be testamentary heir?
considered as separate property but the rule in absolute community is that Yes. The institution of a voluntary heir is always voluntary and therefore
all properties belonging to the spouses before the marriage becomes part of cannot be compelled even if there has been reconciliation between the
the absolute community of property unless you have legitimate spouses.
descendants. If you have legitimate descendants at the time of the marriage,
once it is donated it is separate property but at the time of the marriage they Q: What is the effect of reconciliation on the rights and obligations between
become absolute community property unless you have legitimate husband and wife?
descendants before the celebration of the marriage. There is a difference in After the husband and wife have reconciled, they will have to go back to the
effect if you are governed by absolute community or conjugal partnership of same conjugal dwelling and they will be bound by the same rights and
gains. obligations as before the issuance of the decree of legal separation.
Q: What happens to the revocation of the designation as beneficiary in an C. Rights and Obligations Between Husband and Wife
insurance policy?
If it is revoked because of the decree of legal separation, there is nothing
which will prohibit the innocent spouse from designating again the other as Art. 68. The husband and wife are obliged to live together, observe mutual
beneficiary in the insurance policy love, respect and fidelity, and render mutual help and support. (109a)
Q: What is the effect of reconciliation to succession? Art. 69. The husband and wife shall fix the family domicile. In case of
1. Intestate succession – when the parties are legally separated, it is disagreement, the court shall decide.
possible that the offending spouses will not inherit from the

The court may exempt one spouse from living with the other if the latter 3. To render mutual help and support
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 1. To live together
compatible with the solidarity of the family. (110a)
Q: What is the meaning of the spouses’ duty to live together?
Art. 70. The spouses are jointly responsible for the support of the family.
The expenses for such support and other conjugal obligations shall be It refers to two things:
paid from the community property and, in the absence thereof, from the 1. Actually and physically living together under one roof
income or fruits of their separate properties. In case of insufficiency or 2. Cohabitation
absence of said income or fruits, such obligations shall be satisfied from
the separate properties. (111a) Q: What is meant by actually and physically living together under one roof?
It refers to the obligation of the husband and wife to live in the conjugal
Art. 71. The management of the household shall be the right and the duty dwelling. Thus, the husband and the wife may validly agree to live in
of both spouses. The expenses for such management shall be paid in separate apartments, but anyone of them may at any time demand that the
accordance with the provisions of Article 70. (115a) other live with him or her in his or her apartment because maintaining a
conjugal dwelling is an obligation mandated by law
Art. 72. When one of the spouses neglects his or her duties to the conjugal
union or commits acts which tend to bring danger, dishonor or injury to Q: Who shall fix the family domicile?
the other or to the family, the aggrieved party may apply to the court for The husband and wife shall fix the family domicile. If they disagree, the
relief. (116a) court will decide but it can only choose among the alternatives presented by
the spouses.
Art. 73. Either spouse may exercise any legitimate profession, occupation,
Q: What will happen if one spouse (eg wife) refuses to live with the other?
business or activity without the consent of the other. The latter may object
It depends. If the husband likewise refuses to live with her, then there is no
only on valid, serious, and moral grounds.
problem. However, if the husband does not like the idea of his wife
maintaining a separate dwelling, he can avail of several remedies. He can,
In case of disagreement, the court shall decide whether or not: for example, refuse to give support to his wife, or sue her for moral
damages, or he can seek the court to counsel her under Art 72 of the Family
(1) The objection is proper; and Code. He may not, however, use physical force to compel his wife to move
to his house
(2) Benefit has occurred to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the Q: Can one be exempted from living with his or her spouse?
resulting obligation shall be enforced against the separate Yes but he must first go to court to seek exemption from the obligation of
property of the spouse who has not obtained consent. living with his or her spouse.
The foregoing provisions shall not prejudice the rights of creditors who It is quite strange that the parties have to seek exemption from the court. It is
acted in good faith. (117a) very seldom that parties go to court to seek exemption. Nevertheless it is a
legal requirement and if the spouse does not comply with this requirement,
Q: what are the personal obligations of the spouses to each other? the other spouse can simply stop sending support.
1. To live together
2. To observe mutual love, respect and fidelity Q: What are the grounds for the court to issue an exemption?

1. If the other spouse is living abroad (eg, one spouse works in Q: How is the duty to observe mutual love different from the obligation of
Europe or in Japan, or if the wife works as a stewardess in a foreign mutual respect and fidelity?
airline, or if the husband has to study abroad.) With respect to the duty to observe mutual love, the fact that one does not
2. There are other valid and compelling reasons for the exemption love his or her spouse will not give rise to any legal consequence. It is not a
ground for legal separation nor for the termination of the marriage. Even if
Q: What could valid and compelling reason to live separately with your the husband does not love his wife, as long as he complies with his
spouse? obligations, there can be no legal consequence. In fact as long as he
Job constraints. For example, the husband is assigned in Tawi-tawi. If the voluntarily said “yes” during the marriage, even if he does not love her
wife does not have anything to do in Manila, she must join her husband in there is nothing he can do. She cannot seek the issuance of legal processes to
Tawi-tawi. But if she has a job in Manila, or if the children are going to compel him to love her.
school and there is no adequate schooling in Tawi-tawi, then the wife can
validly seek an exemption. That may be considered as valid and compelling But with respect to the obligations of mutual respect and fidelity, these must
reason. On the other hand, if the wife refuses to live with her husband in be complied with otherwise there will be legal consequences. For example, a
Tawi-tawi just because she considers herself a city girl and not used to violation of the obligation to observe mutual respect may be a cause for legal
provincial life, that will not be considered a valid and compelling reason to separation or a violation of the obligation to observe fidelity may be used as
exempt her from the obligation to live with her husband. a ground for a criminal action for adultery or concubinage.
Q: What is meant by cohabitation? Mutual Respect

It means not only sharing the same roof but also sharing the same bed.
Cohabitation is not only a right. It is also an obligation. Thus, if the husband Q: What does the duty to observe mutual respect mean?
insists that he wants to make love with his wife tonight, it is her obligation It refers to respect for one’s person as well as respect for his body. It means
to make love with him tonight. that one must not use abusive language, or humiliate or embarrass his or her
spouse. Respect for the body of the person means that one should not inflict
Q: Can one spouse refuse to have sex with the other spouse? physical injuries on another person. Violation of this obligation may be a
Yes. As between husband and wife, they will have to understand each ground for legal separation. (eg grossly abuseive conduct, repeated physical
other’s feelings. However, if the refusal is without justifiable cause that can violence)
be ground for withholding of support.
Mutual respect also includes respect for each other’s profession. The mutual
Insofar as cohabitation is concerned, while husband and wife can insist on respect provision mandates that husband and wife to recognize their spouse
their conjugal rights, they will have to balance the interest and the needs of need to grow professionally.
one another. If one is married to a person who has an unsatisfiable need for
sex, then there is reason to refuse and that can also be considered as a Q: Does one need the consent of his or her spouse to exercise his or her
justifiable reason for maintaining a separate residence. Likewise, if one’s profession as to pursue any calling?
spouse refuses to have sex with him or her except every quarter, that would No. one is not required to get the consent of his or her spouse for as long as
also be a valid and compelling reason to live separately because one can he is pursuing a legitimate exercise of profession or business
always insist on your conjugal obligation.
Q: can a spouse object to the exercise of profession by his or her spouse?
2. Observe mutual love, respect and fidelity of community Yes. But only on valid, serious and moral grounds. For example, if the wife
works as a cashier in a massage parlor, the husband has reason to object to
Mutual Love her work because it exposes her to the possibilities of being raped or to so
much temptation. This may be considered as a legitimate cause for objection.

transactions of the spouse who acted without the consent of the
Q: Is the financial capability of the husband considered as a valid reason for other became part of the absolute community or conjugal
the objection? properties
2. If the properties accrued AFTER the objection, the resulting
No. under the Civil Code, the husband may object to his wife’s exercise of a obligations of the spouse who acted without the consent of the
profession or occupation or engaging in a business if his income is sufficient other shall be enforced only against his or her separate properties
for the family. Under the Family Code, however, the ability of the husband
to provide for all the needs of the family cannot be used as a ground for Note however that the creditors who acted in good faith (ie without
objection to the other’s pursuit of profession. Under the Family Code, the knowledge of the objection) are allowed to go after either the absolute
ground for the objection must be something serious or something which will community or conjugal properties or the separate properties of the spouse
give rise to the destruction of the family. with whom they contracted.
Q: Supposing X’s wife is an actress. Does X have a valid reason to object to WARNING: The official printed text of the Family Code has an error. It
her showbiz career? indicates that obligations incurred prior to the objection cannot be charged
against the absolute community. The Code Commission has explained that it
Its debatable. If she is an ST star, there is a basis for the objection because it is an error in printing. This should refer only to obligations incurred after
might destroy the solidarity of the family. But if she is a legitimate stage the objection because the law does not require prior consent. The objection,
actress, it would seem that X would have no valid reason to object. if legitimate, can come afterwards, and in anything one spouse does after the
objection, he or she will have to assume the risk of all liabilities. But before
Q: If the husband objects to the exercise by his wife of her profession and the the objection, because there is no requirement of prior consent, if it is
court finds that there is a valid ground for the objection, can the husband something which will result to the benefit of the family, it will have to be
compel his wife to resign from her job? charged to the absolute community or conjugal partnership. The criterion to
be used to determine whether it may be charged to the absolute community
No. The ruling of the court will not affect the right of the wife to exercise her or conjugal partnership is the BENEFIT WHICH WILL REDOUND TO THE
profession. The consequences of such ruling will only affect the properties of BENEFIT OF THE FAMILY. For example, the wife is a real estate broker and
the spouses. the husband is able to prove later that her continued exercise of her
profession will endanger the solidarity of the family because she will have to
Q: What will happen if the court finds that the objection is proper? go to various places and there is great risk of temptation, or that it would be
It will only have an effect on the obligations incurred by the spouse pre-judicial to her health. Any obligation that she may incur after the
exercising the profession, occupation, business or activity. If he or she insists husband’s objection shall be her separate obligation, but all benefits will
to work, engage in business or exercise his or her profession have to accrue to the conjugal or absolute community. Before the objection,
notwithstanding the objection, all the obligations that he or she will incur all her earnings and obligations will have to be charged to the absolute
will not be charged to the absolute community or conjugal partnership. community or conjugal partnership.
Q: Is the absolute community or the conjugal partnership liable for the acts
or transactions of the spouse who acted without the consent or Mutual Fidelity
notwithstanding the objection of the other?
It depends. Q: What is the consequence of a violation of the obligation to observe
1. if the benefit has accrued to the family prior to the objection, the mutual fidelity?
absolute community or conjugal partnership is liable for the
obligations incurred since all the profits or income from the acts or

The violator may be penalized for adultery or concubinage or he may be absolute / conjugal property which is principally responsible to the support
sued for legal separation on the ground of sexual infidelity, or he may be of the spouses and the children. If one does not have separate properties,
deprived of the right to support then he can incur an advance from the absolute / conjugal property which
will be deducted from his share during liquidation.
3. Expenses for support of family and payment of conjugal
obligations Q: In what order must the obligation to support be satisfied?
a. From where expenses taken
1. From the community property or conjugal property
Art. 70. The spouses are jointly responsible for the support of the family. 2. From the income or fruits of the separate properties of the spouses
The expenses for such support and other conjugal obligations shall be 3. From the separate properties of the spouses (in this case, the
paid from the community property and, in the absence thereof, from the spouses are solidarily liable to the creditors)
income or fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be satisfied from Q: What is the order of payment provided for in Art. 94 and Art. 121
the separate properties. (general obligations)?
Q: To whom are the spouses jointly responsible for? Art. 94. The absolute community of property shall be liable for: xxx
The spouses are jointly responsible not only for their own support but for If the community property is insufficient to cover the foregoing liabilities,
the support of the whole family. Family under this provision does not refer except those falling under paragraph (9), the spouses shall be solidarily
to the extended family but to the spouses and the children. Though parents liable for the unpaid balance with their separate properties.
and sisters or brothers of the spouses may be entitled to support under the
provisions governing support (eg descendants, ascendants, brothers and Art. 121. The conjugal partnership shall be liable for: xxx
sisters) but the PRIMARY responsibility of the spouses lies with the If the conjugal partnership is insufficient to cover the foregoing liabilities, the
members of the family. Thus, if a married individual has insufficient means spouses shall be solidarily liable for the unpaid balance with their separate properties
to support other people aside from his own family, then he will have no
obligation to support such other people. This is because the obligation of These articles prescribe only two sources for the satisfaction of the obligation
support depends on the financial resources of the giver. to support in the following order:
1. Absolute/conjugal property
Q: A is the son of B. To enable A to finish his education, B sacrificed and 2. Separate personal property
worked very hard until his son was able to obtain a college degree. A
graduated and is now working at a small firm. He married a year later. Q: Is there a discrepancy between Art 70 and Art 94 and Art 121?
Because of insufficient funds and a growing family, A could no longer Art 70 Arts 94 and 121
support B. B claims, however, that A has an obligation to reciprocate the Provides for three sources Provides for only two sources
support B gave him. Is such contention true? Sources
Order 1. Community/conjugal 1. Community/conjugal
No. prior to A’s marriage, A may have a legal obligation to support B but
property property
after the marriage, A’s primary responsibility rests with his family.
2. Income or fruits of 2. Separate properties
Although it is clearly a Filipino tradition to reciprocate the support that
the separate
one’s parents have showered on a person, such reciprocity has no legal basis
properties of the
once the child is married and has insufficient funds to support his parents.
spouses
3. Separate properties of
Also it must be noted that support given to the parents and brothers or
the spouses
sisters must be charged to the separate property of the spouse and not to the
FOR PROPER REMEDY, WHICH MUST BE FOR PROPER REMEDY, WHICH MUST BE
AVAILED OF WITHIN FIVE YEARS FROM AVAILED OF WITHIN FIVE YEARS FROM
THE DATE OF THE CONTRACT THE DATE OF THE CONTRACT
IMPLEMENTING SUCH DECISION. IMPLEMENTING SUCH DECISION.
Q: How do we reconcile these provisions?
Art 70 refers to the order in satisfying the obligation to support while Arts 94 IN THE EVENT THAT ONE SPOUSE IS IN THE EVENT THAT ONE SPOUSE IS
and 121 refer to the order in satisfying all other kinds of obligations. As INCAPACITATED OR OTHERWISE INCAPACITATED OR OTHERWISE
such, if the issue is regarding the obligation to support, one must use the UNABLE TO PARTICIPATE IN THE UNABLE TO PARTICIPATE IN THE
order provided in Art 70. On the other hand, if the issue relates to any other ADMINISTRATION OF THE COMMON ADMINISTRATION OF THE CONJUGAL
obligations, use Arts. 94 and 121. PROPERTIES, THE OTHER SPOUSE MAY PROPERTIES, THE OTHER SPOUSE MAY
ASSUME SOLE POWERS OF ASSUME SOLE POWERS OF
Also one must note the distinction regarding the conjugal partnership’s and ADMINISTRATION. THESE POWERS DO ADMINISTRATION. THESE POWERS DO
community property’s treatment of the fruits and separate properties. Under NOT INCLUDE DISPOSITION OR NOT INCLUDE DISPOSITION OR
ENCUMBRANCE WITHOUT AUTHORITY ENCUMBRANCE WITHOUT AUTHORITY
the conjugal partnership of gains, fruits of separate properties are
OF THE COURT OR THE WRITTEN OF THE COURT OR THE WRITTEN
considered conjugal properties while under the absolute community
CONSENT OF THE OTHER SPOUSE. IN CONSENT OF THE OTHER SPOUSE. IN
property, they are considered as separate properties. Thus one may also
THE ABSENCE OF SUCH AUTHORITY OR THE ABSENCE OF SUCH AUTHORITY OR
reconcile the provisions even with regard to the satisfaction of the obligation
CONSENT, THE DISPOSITION OR CONSENT, THE DISPOSITION OR
to support in the following manner:
ENCUMBRANCE SHALL BE VOID. ENCUMBRANCE SHALL BE VOID.
HOWEVER, THE TRANSACTION SHALL HOWEVER, THE TRANSACTION SHALL
Art 70 Art 94 Art 121
BE CONSTRUED AS A CONTINUING BE CONSTRUED AS A CONTINUING
Absolute / Absolute Conjugal OFFER ON THE PART OF THE OFFER ON THE PART OF THE
First conjugal property property CONSENTING SPOUSE AND THE THIRD CONSENTING SPOUSE AND THE THIRD
property Fruits of separate PERSON, AND MAY BE PERFECTED AS A PERSON, AND MAY BE PERFECTED AS A
Second Fruits of separate Fruits of separate properties (as BINDING CONTRACT UPON THE BINDING CONTRACT UPON THE
properties properties (as part of the ACCEPTANCE BY THE OTHER SPOUSE OR ACCEPTANCE BY THE OTHER SPOUSE OR
part of the conjugal AUTHORIZATION BY THE COURT AUTHORIZATION BY THE COURT
separate property) BEFORE THE OFFER IS WITHDRAWN BY BEFORE THE OFFER IS WITHDRAWN BY
Third Separate properties) Separate EITHER OR BOTH OFFERORS. EITHER OR BOTH OFFERORS.
properties Separate properties
properties A. Administration
Administration can be given to only one spouse (or to a bank etc)

Q: What does “joint administration” mean?
Joint administration means that for every act of administration, both
Absolute Community Conjugal Partnership husband and wife must agree
ART. 96. THE ADMINISTRATION AND ART. 124. THE ADMINISTRATION AND
ENJOYMENT OF THE COMMUNITY ENJOYMENT OF THE CONJUGAL
Q: What if both spouses cannot agree?
PROPERTY SHALL BELONG TO BOTH PARTNERSHIP SHALL BELONG TO BOTH
Art 96 provides that in case of disagreement, the husband’s decision shall
SPOUSES JOINTLY. IN CASE OF SPOUSES JOINTLY. IN CASE OF
prevail (no need to go to court). But the wife can always go to court and seek
DISAGREEMENT, THE HUSBAND'S DISAGREEMENT, THE HUSBAND'S
the appropriate remedies, ie, receivership, transfer of administration
DECISION SHALL PREVAIL, SUBJECT TO DECISION SHALL PREVAIL, SUBJECT TO
(specially if husband is mismanaging the properties), separation of the
RECOURSE TO THE COURT BY THE WIFE RECOURSE TO THE COURT BY THE WIFE
properties of the spouses whether voluntary or under Art 135.
COURT FOR RECEIVERSHIP, FOR COURT FOR RECEIVERSHIP, FOR
JUDICIAL SEPARATION OF PROPERTY JUDICIAL SEPARATION OF PROPERTY,
OR FOR AUTHORITY TO BE THE SOLE OR FOR AUTHORITY TO BE THE SOLE
ADMINISTRATOR OF THE ABSOLUTE ADMINISTRATOR OF THE CONJUGAL
Q: Within what period must the wife go to court? COMMUNITY, SUBJECT TO SUCH PARTNERSHIP PROPERTY, SUBJECT TO
The wife must go to court within five years from the date of the contract PRECAUTIONARY CONDITIONS AS THE SUCH PRECAUTIONARY CONDITIONS
implementing the husband’s decision and if there is no contract, from the COURT MAY IMPOSE. AS THE COURT MAY IMPOSE.
time of the husband’s act.
THE OBLIGATIONS TO THE FAMILY THE OBLIGATIONS TO THE FAMILY
Q: What is the obligation of the court when the wife avails of this remedy MENTIONED IN THE PRECEDING MENTIONED IN THE PRECEDING
within five years? PARAGRAPH REFER TO MARITAL, PARAGRAPH REFER TO MARITAL,
It is not the business of the court to investigate whether the decision of the PARENTAL OR PROPERTY RELATIONS. PARENTAL OR PROPERTY RELATIONS.
husband is proper or not. The court’s authority is limited to the
determination whether the husband has abused his discretion. The court A SPOUSE IS DEEMED TO HAVE A SPOUSE IS DEEMED TO HAVE
cannot make the decision in behalf of the spouses. It must simply find out ABANDONED THE OTHER WHEN HER OR ABANDONED THE OTHER WHEN HE OR
whether the husband abused the powers of administration before it will SHE HAS LEFT THE CONJUGAL SHE HAS LEFT THE CONJUGAL
grant the relief prayed to by the wife. DWELLING WITHOUT INTENTION OF DWELLING WITHOUT INTENTION OF
RETURNING. THE SPOUSE WHO HAS RETURNING. THE SPOUSE WHO HAS
Q: What if one spouse is unable to participate (resides in Saudi Arabia) or is LEFT THE CONJUGAL DWELLING FOR A LEFT THE CONJUGAL DWELLING FOR A
incapacitated (low IQ) to administer the properties? PERIOD OF THREE MONTHS OR HAS PERIOD OF THREE MONTHS OR HAS
In the event that one spouse is incapacitated or otherwise unable to FAILED WITHIN THE SAME PERIOD TO FAILED WITHIN THE SAME PERIOD TO
participate in the administration of the common properties, the other spouse GIVE ANY INFORMATION AS TO HIS OR GIVE ANY INFORMATION AS TO HIS OR
may assume sole power of administration not including disposition or encumbrance HER WHEREABOUTS SHALL BE PRIMA HER WHEREABOUTS SHALL BE PRIMA
which must have the authority of the court or the written consent of the FACIE PRESUMED TO HAVE NO FACIE PRESUMED TO HAVE NO
other spouse INTENTION OF RETURNING TO THE INTENTION OF RETURNING TO THE
CONJUGAL DWELLING CONJUGAL DWELLING
Q: Does the spouse need to acquire a court order before it can exercise sole
administration in case of incapacity of the other spouse?
No. the phrase “assume sole administration” means that one can
immediately assume sole administration without going to court. Cases of SUMMARY:
incapacity or inability to participate in the administration of the properties Sole administration WITHOUT court approval may be exercised in the
must be distinguished from the other causes where court approval is following cases:
necessary. These other causes wherein court approval is necessary can be 1. Incapacity (incapacity need not be declared by the court) or
found in Art. 101 and 128. 2. Inability to participate in the joint administration of properties
Absolute Community Conjugal Partnership Sole administration WITH court approval may be exercised in the following
ART. 101. IF A SPOUSE WITHOUT JUST ART. 128. IF A SPOUSE WITHOUT JUST cases:
CAUSE ABANDONS THE OTHER OR CAUSE ABANDONS THE OTHER OR 1. Abandonment of the other spouse
FAILS TO COMPLY WITH HIS OR HER FAILS TO COMPLY WITH HIS OR HER a. Left the conjugal dwelling for a period of three months
OBLIGATIONS TO THE FAMILY, THE OBLIGATION TO THE FAMILY, THE b. Failed within the period of three months to give any
AGGRIEVED SPOUSE MAY PETITION THE AGGRIEVED SPOUSE MAY PETITION THE information as to his whereabouts

2. Failure to comply with his or her obligations to the family Absolute Community Conjugal Partnership
3. The spouse has abused his or her powers of administration ART. 98. NEITHER SPOUSE MAY ART. 125. NEITHER SPOUSE MAY
DONATE ANY COMMUNITY PROPERTY DONATE ANY CONJUGAL PARTNERSHIP
WITHOUT THE CONSENT OF THE PROPERTY WITHOUT THE CONSENT OF
B. Dispositions OTHER. HOWEVER, EITHER SPOUSE THE OTHER. HOWEVER, EITHER SPOUSE
MAY, WITHOUT THE CONSENT OF THE MAY, WITHOUT THE CONSENT OF THE
OTHER, MAKE MODERATE DONATIONS OTHER, MAKE MODERATE DONATIONS
Q: What are the acts of disposition?
FROM THE COMMUNITY PROPERTY FOR FROM THE CONJUGAL PARTNERSHIP
Acts of disposition include sale, transfer, assignment or donation
CHARITY OR ON OCCASIONS OF FAMILY PROPERTY FOR CHARITY OR ON
REJOICING OR FAMILY DISTRESS. OCCASIONS OF FAMILY REJOICING OR
Q: What is the requirement as to the disposition of absolute or conjugal
FAMILY DISTRESS.
properties?
Disposition of absolute or conjugal properties, whether real or personal
Q: Mr A decides to donate a car to Mr B without the prior consent of his
require the unanimous consent of both husband and wife
wife. Is such donation valid?
No. an act of donation is an act of disposition. Thus, for any donation of
Q: A bought his wife a refrigerator for their first wedding anniversary. On
absolute or conjugal property, both husband and wife must agree to such
their 25th anniversary, he decided to sell it so he can buy a new one. The
donation. Otherwise, such donation shall be void.
wife, however, does not want to part with the refrigerator and therefore did
not consent to the sale of the refrigerator. What is the effect of the wife’s lack
One must also note the rules on the formalities of donation eg, it must be
of consent to the act of disposition?
written if it involves real properties and must be in a public instrument, with
the signatures of both husband and wife. Otherwise, the donation shall be
The law provides that in the absence of such authority or consent, the
considered void.
disposition or encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the
Q: Mrs A wanted to give P50.00 during the celebration of the mass. She
third person, and may be perfected as a binding contract upon the
asked the permission of Mr. A. Mr. A disagreed. If Mrs. A proceeded to
acceptance by the other spouse or authorization by the court before the offer
donate the P50.00 will such donation be void?
is withdrawn by either or both spouses.
No.
RULE: a donation requires the consent of both husband and wife to be
It must be noted that this provision brought about a confusion of the laws
considered valid.
governing void and voidable transactions. Obligations and contracts law
EXCEPTION: if the donation is a moderate donation for charity, then such
provide that a void contract cannot be ratified. But in this case we encounter
donation does not require the consent of the husband.
a hybrid: the transaction involving an act of disposition is void, however it
remains valid as a continuing offer which can be accepted at any time by
Q: Mrs. A wants to give her mother a gift worth P500.00 for her birthday.
reason of the consent of the non-consenting spouse. In effect, the void
Can she donate such gift without the consent of her husband?
contract is in reality a voidable contract because it can be ratified. However,
Yes. The gift may be considered a moderate donation on occasion of a family
the Family Code uses the term void.
rejoicing. Hence, there is no need for the consent of the other spouse.
Another difficulty with this provision is the fact that there is no deadline
Q: The relative of Mrs. A died. She wants to give P2,000.00 to the family of
prescribed for the other spouse to give his or her consent to the transaction.
her deceased relative. Does she need the prior consent of her husband before
Thus, one can validate a void contract 10 or 20 years after it has been entered
she can donate the money?
into.

No. the donation may be considered a moderate donation on the occasion of (2) Benefit has occurred to the family prior to the objection or
a family distress. As such, there is no need for consent from the other thereafter. If the benefit accrued prior to the objection, the
spouse. resulting obligation shall be enforced against the separate
property of the spouse who has not obtained consent.
Q: How does one determine what is “moderate”?
The foregoing provisions shall not prejudice the rights of creditors who
The definition of moderate is not fixed for it would depend on the resources acted in good faith. (117a)
of the absolute or conjugal property of the spouses. If one earns a P100,000
monthly salary, a P5,000 donation is moderate. If a person earns P5,000 NOTE: Par. 2 of the second paragraph of this article should read:
monthly, however a P500 donation is not moderate.
(2) Benefit has accrued to the family prior to the objection or thereafter. If
Q: Mr A gave Mrs B a necklace. Can Mrs. B accept such donation without the benefit accrued prior to the objection the resulting obligation shall be
the prior consent of her husband? enforced against the community property. If benefit accrued thereafter,
Yes. Unlike the Civil Code, the consent of the husband is required before the such obligation shall be enforced against separate property of the spouse
wife can accept any donation. The rationale behind this provision was to who has not obtained consent.
avoid alienation of affection. However, such provision was deleted by the
Family Code. Under the Family Code, there is no provision requiring
Q: What does “legitimate” mean?
consent of the other spouse prior to acceptance of a donation. Thus, one can
Legitimate refers to a profession, occupation, business, or activity that is not
accept or reject a donation without the consent of the other spouse.
only lawful but is also honest and moral
4. Management of Household
Q: What is the obligation of the court if there is disagreement as to the
profession of one spouse?
Art. 71. The management of the household shall be the right and the duty
of both spouses. The expenses for such management shall be paid in The court will determine:
accordance with the provisions of Article 70. 1. Whether the objection is proper
2. Whether benefit has accrued to the family prior to the objection or
Management of the household refers to the taking care of the groceries, thereafter
washing the dishes, taking care of the kids, cleaning the toilet. This must be
shared responsibility, shared management, shared obligation of the husband Go v. CA
and wife. FACTS: Petitioners Nancy and Alex Go provided for the video coverage
of the wedding of the respondent spouses Ong for a fee. However, they
5. Exercise of Profession accidentally erased it so when it was sought to be claimed by
respondents, the petitioners could no longer give it. The court imposed
a liability for damages based on Art. 1170 of the Civil Code:
contravention of the tenor of the obligation.
Art. 73. Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other. The latter may object
ISSUE: Are the petitioner-spouses jointly and severally liable for the
only on valid, serious, and moral grounds.
damages awarded to respondents?
In case of disagreement, the court shall decide whether or not: HELD: NO. Under Art. 73 of the Family Code, the wife may exercise
any profession, occupation or engage in business without the consent of
(1) The objection is proper; and the husband. In this case, it was only petitioner Nancy Go who entered
into the contract with private respondent, she was acting alone for her will govern their present and future properties during
sole interest. Consequently, she is solely liable to private respondents their marriage
for the damages awarded below, pursuant to the principle that contracts - This is the ONLY EXCEPTION allowing the parties to
produce effect only as between the parties who execute them. enter into an agreement governing their relationship,
because only property erlations are governed
- It is a contract limited to property relations
Institution and Defense of actions - Personal relations are covered by the rule on
“inviolability” of marriage. But provisions on personal
Q: Must the wife implead her husband when she files a suit? relations can be included as long as such are in compliance
with the law
No. it must be noted that the provision requiring that a wife must implead a
husband before instituting or defending an action has been deleted from the 2. The provisions of the Code or Philippine Law
Family Code. Although the Rules of Court still contain a similar provision - This is in case there is no marriage settlement or the
such rule cannot be considered controlling because substantive rights cannot marriage settlement is void
be amended by procedural rules. Thus, the wife can sue and be sued in her - If at least one of the parties to the marriage is a Filipino,
own capacity without impleading her husband unless she is suing on the the Family Code shall govern their property relations. If
basis of a conjugal or absolute obligation. both spouses are aliens we cannot use the provisions of
the Family Code because we adhere to the principle of
D. Property Relations Between Husband and Wife nationality. If there is mixed nationality, ie husband is
1. How governed Filipino while the wife is an alien, however, the
Philippines will consider their marriage as being governed
Art. 74. The property relationship between husband and wife shall be by the absolute community of property. Even if according
governed in the following order: to the laws of the alien spouse their property relationship
(1) By marriage settlements executed before the marriage; is conjugal partnership, the Philippines will still consider
their property regime as being governed by the absolute
(2) By the provisions of this Code; and community of property. If conflict arises, however, it will
be settled in accordance with the rules of public
(3) By the local custom. (118) international law
- Under the Family Code, if there is no marriage settlement,
the property regime of ABSOLUTE COMMUNITY OF
Under the above article, the agreement of the parties embodied in the
PROPERTY (ACP) shall govern. This is actually an
marriage settlement executed by them before their marriage prevails over
extension of the NATIONALITY PRINCIPLE because
the provisions of the law on the matter of their property relations during
whether the marriage is celebrated here or abroad, or
their marriage
whether the couple are living here or broad, for so long as
at least one of the parties is a Filipino, then in the absence
Q: What shall govern the property relations of spouses? The property
of a marriage settlement, the Family Code will apply and
relations of the spouses shall be governed by:
their property relations will be that of ACP
1. Marriage settlements executed before the marriage
- “Marriage settlement” which is also called antenuptial
EXCEPTION: Article 80
agreement, is a contract entered into by a man and woman
who intend to get married, fixing the property regime that

Art. 80. In the absence of a contrary stipulation in a marriage settlement, But any amendment in the Family Code regarding the regime of the CPG
the property relations of the spouses shall be governed by Philippine must necessarily affect the property regime of those couples.
laws, regardless of the place of the celebration of the marriage and their
residence. 3. Local Customs
- isolated cases: example: dowry system
This rule shall not apply:
2. Marriage Settlements
(1) Where both spouses are aliens; (their national laws will apply)
Art. 75. The future spouses may, in the marriage settlements, agree upon
(2) With respect to the extrinsic validity of contracts affecting the regime of absolute community, conjugal partnership of gains,
property not situated in the Philippines and executed in the complete separation of property, or any other regime. In the absence of a
country where the property is located; (extrinsic validity of the marriage settlement, or when the regime agreed upon is void, the system
contract will be governed by the LEX SITUS or the law of the of absolute community of property as established in this Code shall
country where the property is situated) and govern. (119a)
(3) With respect to the extrinsic validity of contracts entered into Art. 76. In order that any modification in the marriage settlements may be
in the Philippines but affecting property situated in a foreign valid, it must be made before the celebration of the marriage, subject to
country whose laws require different formalities for its extrinsic the provisions of Articles 66, 67, 128, 135 and 136. (121)
validity. (124a) (LEX SITUS applies. the contract is executed in the
Philippines and there is no proof to the extrinsic requirements Art. 77. The marriage settlements and any modification thereof shall be in
according to the law where the property is situated. there exists a writing, signed by the parties and executed before the celebration of the
presumption that the formalities are the same as those required marriage. They shall not prejudice third persons unless they are registered
under Philippine Law. therefore, if one wants to use the formalities in the local civil registry where the marriage contract is recorded as well as
according to the law where the property is situated, one must in the proper registries of properties. (122a)
present proof that such laws are different from those of the
Philippines. if there is no proof regarding the difference between
Q: What are the property regimes that may be agreed upon in the marriage
the two laws, there is a presumption that they are the same.
settlement?
application of this provision does not mean imposition of
The future spouse may, in their marriage settlement, agree on:
Philippine law but merely application of our laws because of a
1. The regime of absolute community
presumption)
2. Conjugal partnership of gains
3. Complete separation of property
SUMMARY 4. A combination of the above regimes
Apply the law of the place where the property is located (lex situs). But if 5. Any other regime like the dowry system
one cannot prove the law of the place where the property is located, it is
presumed to be the same as Philippine law The marriage settlement can provide in general way but the regime or
combination of regimes that the parties want but once a regime is chosen, all
Note: Marriages entered into before the effectivity of the Family Code are properties are governed by that regime. The parties cannot exclude specific
not affected by this provision, meaning in the absence of a marriage properties from the regime.
settlement, their property regime will be Capital Partnership of Gains (CPG).

Whatever by the regime agreed upon, it must not be contrary to law, morals, 4. With respect to the formal requirements, the marriage settlement
good customs, public order or public policy. must be in writing for enforceability
5. The marriage must subsequently be celebrated and the marriage
Q: Suppose the parties in their marriage settlement expressly reject the must be valid
absolute community regime established by the Family Code but do not 6. The marriage settlement must be registered with the local civil
agree on any system to govern their property relations during their registrar otherwise it is not binding on third parties. This is a non-
marriage, what system will apply? essential requisite and not for purposes of validity between the
spouses. It must however be a public instrument to be (can’t
1. First determine the intention of the parties as to what system they decipher)
really want and for this purpose, their contemporaneous and
subsequent acts shall be considered (art 1371 NCC) Note: the parties cannot stipulate therein that they can have personal
2. If the intention cannot be ascertained, then apply the local custom relations with other people, because that will be a void provision. Note,
in accordance with par 3 of art 74 of the FC however, that the nullity of one provision will not render the whole
3. If there is no local custom, apply the rules on co-ownership document invalid. The document will still be valid, minus that particular
void provision.
Q: Suppose the parties did not enter into a marriage settlement?
Apply also the system of absolute community Q: When should a change or modification in the MS be made?
RULE: any change or modification must be done before the marriage, which
Q: Suppose some provisions of the marriage settlement are void or some are will not require court approval. After the celebration of marriage, the
valid. What is the effect? property relation is fixed either because it is fixed by a marriage settlement
The nullity of the void provisions will not nullify the valid ones, provided or by the Code. No change will be allowed even with court approval (Art.
the later can stand by themselves 76, FC)
Q: What if the marriage settlement is completely void? EXCEPTION:

In this case, the system of absolute community established in the Family 1. In cases of conciliation after legal separation has been granted, the
Code should be applied parties are given the discretion to decide which properties shall
remain separate properties and which properties will become
a. Requirements absolute or conjugal property
2. In case of receivership, separation of property (voluntary or for
Q: What are the requirements for a marriage settlement? cause) or change to sole administration, on the grounds provided
1. The parties can stipulate any form of property relations or they can for by law, there would also be a modification of the prior marriage
make up their own form as long as none of the stipulations violate settlement. In cases such as these, one of the spouses did not
the ‘inviolability’ of marriages. Therefore, the terms of the comply with the duties concomitant with the administration (as
settlement are not necessarily limited to those concerning the distinguished from the situation where the sole administration is
regime of property, but may also contain provisions on the allowed because one of the spouses is unable to administer the
personal relations of the spouses conjugal properties)
2. It must be exercised before the celebration of the marriage. If it is 3. Valid causes for judicial separation of property3
not so executed, the regime of property will be ACP
3. The parties to the marriage settlement are only the future spouses
(can’t decipher) were the donor can be a third party.
3 ART. 135. ANY OF THE FOLLOWING SHALL BE CONSIDERED SUFFICIENT
CAUSE FOR JUDICIAL SEPARATION OF PROPERTY:
4. In case of voluntary dissolution of conjugal/absolute community  The common denominator among these exceptions is that the
property regime (Art 136). This does not require the occurrence of modification involved can only be done with the consent of the
any cause except the agreement of the parties.4 court. In all exceptions, court approval is required. Where the
marriage is celebrated, the only way you can change the marriage
NOTE: settlement is through the courts. The parties by themselves cannot
change the marriage settlement
 Except with respect to reconciliation after legal separation has been
(1) THAT THE SPOUSE OF THE PETITIONER HAS BEEN obtained, the change can only be from conjugal partnership or
SENTENCED TO A PENALTY WHICH CARRIES WITH IT CIVIL absolute community to that of the regime of separation of property.
INTERDICTION;
The last three exceptions refer to separation of properties. There is
no case where a marriage starts of with separation of properties
(2) THAT THE SPOUSE OF THE PETITIONER HAS BEEN
and then the property regime was changed to conjugal partnership
JUDICIALLY DECLARED AN ABSENTEE;
or absolute community of property even in reconciliation after legal
(3) THAT LOSS OF PARENTAL AUTHORITY OF THE SPOUSE OF separation (because this would only allow you a revival of the
PETITIONER HAS BEEN DECREED BY THE COURT; former property regime)
(4) THAT THE SPOUSE OF THE PETITIONER HAS ABANDONED
THE LATTER OR FAILED TO COMPLY WITH HIS OR HER b. Capacity of Parties
OBLIGATIONS TO THE FAMILY AS PROVIDED FOR IN ARTICLE
101; Q: Who can be the parties to the Marriage Settlement?
(5) THAT THE SPOUSE GRANTED THE POWER OF The parties to the marriage settlement are only the future spouses (unlike
ADMINISTRATION IN THE MARRIAGE SETTLEMENTS HAS the Donation Propter Nuptias where the donor can be a third party)
ABUSED THAT POWER; AND
Q: Are there exceptions to this rule?
(6) THAT AT THE TIME OF THE PETITION, THE SPOUSES HAVE
The exceptions are: 2 schools of thought
BEEN SEPARATED IN FACT FOR AT LEAST ONE YEAR AND
RECONCILIATION IS HIGHLY IMPROBABLE.
IN THE CASES PROVIDED FOR IN NUMBERS (1), (2) AND (3), THE
#1 Art. 78. A minor who according to law may contract marriage may also
PRESENTATION OF THE FINAL JUDGMENT AGAINST THE GUILTY OR
execute his or her marriage settlements, but they shall be valid only if the
ABSENT SPOUSE SHALL BE ENOUGH BASIS FOR THE GRANT OF THE
persons designated in Article 14 to give consent to the marriage are made
DECREE OF JUDICIAL SEPARATION OF PROPERTY. parties to the agreement, subject to the provisions of Title IX of this Code.
(120a)
4 ART. 136. THE SPOUSES MAY JOINTLY FILE A VERIFIED PETITION WITH
THE COURT FOR THE VOLUNTARY DISSOLUTION OF THE ABSOLUTE The minor referred to in this Article is one who can get married with
COMMUNITY OR THE CONJUGAL PARTNERSHIP OF GAINS, AND FOR THE parental consent, that is one who is at least 18 but below 21 years old. In this
SEPARATION OF THEIR COMMON PROPERTIES. case the parents of the minor have to be made parties to the marriage
ALL CREDITORS OF THE ABSOLUTE COMMUNITY OR OF THE CONJUGAL settlement and must also sign the document otherwise the settlement will be
PARTNERSHIP OF GAINS, AS WELL AS THE PERSONAL CREDITORS OF THE void. Also the order provided in giving consent to the marriage must be
SPOUSE, SHALL BE LISTED IN THE PETITION AND NOTIFIED OF THE followed in determining which parent must sign.
FILING THEREOF. THE COURT SHALL TAKE MEASURES TO PROTECT THE
CREDITORS AND OTHER PERSONS WITH PECUNIARY INTEREST. The code provides for this requirement because at the time of the Family
Code was made, the age of majority was still fixed at 21. the effect of RA No.

6809 which lowered the age of majority to 18 is still doubtful. Dean Del Yes because the validity of the marriage settlement is dependent on the
Castillo, however, feels strongly that the reduction of the age has affected celebration of the marriage. Since the parties entered into marriage when
this provision. She opines that the sole basis for the participation of the they were already at 18, the settlement is valid (provided parents
parents was because those between 18-21 were still considered as minors. participated)
Also, if RA 6809 has capacitated the individual to perform all acts of civil life
without any need of parental consent except marriage, then an individual at Note: Difference between Marriage Settlement and ordinary contracts: if you
18 can already enter into a marriage settlement (treats only of properties) enter into an ordinary contact without consent, the contract is merely
which is different from entering into a marriage (treats of the personal voidable. But in case of Marriage Settlements, if the consent of the parties
aspect). Some however argue that the requirement still holds despite RA (manifested by their participation in the contract) is not obtained, the MS is
6809. they state that since the law feels that parental consent is necessary void.
before a party between 18 to 21 can enter into marriages then it must also
feel that such individual also needs parental guidance and protection before c. Formalities
entering into a marriage settlement.
Q: What are the formal requirements of a marriage settlement?
Note: there is no equivalent provision in the case of DPNs. Therefore, the 1. As between the parties
DPNs parents participation is not required a. Must be in writing (may be private or public instrument)
b. Must be signed by the parties
If the parties to the marriage are below 18, the participation of the parents in c. Must be executed before the marriage
the Marriage Settlement will not cure the defect of the marriage settlement d. If a party executing the settlement needs parental consent
because one of the essential requisites of a valid marriage settlement is the for the marriage, the parent or guardian whose consent to
marriage takes place. If the marriage cannot take place because the parties the marriage is needed must be made a party to the
are below 18, then the marriage settlement will not be valid. agreement (Art 78)
e. If a party executing the settlement is under civil
#2 Art. 79. For the validity of any marriage settlement executed by a interdiction or any other disability (like deaf-mutism,
person upon whom a sentence of civil interdiction has been pronounced prodigality, etc but not insanity), the guardian appointed
or who is subject to any other disability, it shall be indispensable for the by the court must be made a party to the marriage
guardian appointed by a competent court to be made a party thereto. settlement
(123a) 2. In order to affect third persons
a. All the above requirements as between the parties
In case of persons under civil interdiction, the participation of the guardian b. The marriage settlement must be registered in the local
appointed by the court is also required civil registry where the marriage contract is recorded as
well as in the proper registries of property. Hence a
By the phrase “other disability” means other persons who may enter into a private instrument will not suffice. The government must
marriage even under some disability, like deaf-mutes, spendthrifts, or be in a public document or the same cannot be registered.
insolvents but not insane since they cannot contact marriage even with the
consent of their parents or guardians (gist: incapacitated – governed by the If the marriage settlement is not registered, it will not prejudice third
ordinary rules of contract law) persons and the ACP will apply as to them
Q: If the parties entered into a marriage settlement and got married at 18 is it Q: Can either party compel the other to reduce the marriage settlement into
valid? a public document?

The Family Code does not state whether the writing is necessary for validity Donations propter nuptias are governed primarily by the Family Code and
or enforceability or for purpose of convenience only. However, under Art by the rules on ordinary donations as supplement.
1203(2), agreements in consideration of marriage (other than mutual
promise to marry) are governed by the Statute of Frauds. Therefore, Q: Distinguish donations propter nuptias from ordinary donations
marriage settlements must be in writing otherwise it shall be unforceable. Donations Propter Nuptias Ordinary Donations
Does not require express acceptance Express acceptance is necessary
Difference between Marriage Settlement and Donation Propter Nuptias as to
formalities May be made by minors Cannot be made by minors directly
but may be made by legal
Marriage Settlement Donation Propter Nuptias representatives
If it is not in writing, it is If it does not follow the rules on May include future property Cannot include future property
unenforceable ordinary donations, it is void Once present property is donated No limit to donation of present
and the property regime is (can’tt property other than inofficiousness
Art. 81. Everything stipulated in the settlements or contracts referred to in read this part) absolute community,
the preceding articles in consideration of a future marriage, including the donation must be limited to 1/5
donations between the prospective spouses made therein, shall be of properties
rendered void if the marriage does not take place. However, stipulations Grounds for revocation are in Art Grounds for revocation are found in
that do not depend upon the celebration of the marriages shall be valid. 865 the law on damages
Q: What is the reason for the rule?

The reason is that since the Marriage Settlement is only an accessory contract
dependent for its existence on the intended marriage of the parties, if such 5ART. 86. A DONATION BY REASON OF MARRIAGE MAY BE REVOKED BY
marriage does not take place, the Marriage Settlement will become void
THE DONOR IN THE FOLLOWING CASES:
except for stipulations (like recognition of illegitimate children) that do not
depend upon the celebration of the marriage for their validity.
(1) IF THE MARRIAGE IS NOT CELEBRATED OR JUDICIALLY
DECLARED VOID AB INITIO EXCEPT DONATIONS MADE IN THE
MARRIAGE SETTLEMENTS, WHICH SHALL BE GOVERNED BY
ARTICLE 81;
3. Donations by Reason of Marriage
(2) WHEN THE MARRIAGE TAKES PLACE WITHOUT THE
CONSENT OF THE PARENTS OR GUARDIAN, AS REQUIRED BY
LAW;
Art. 82. Donations by reason of marriage are those which are made before
(3) WHEN THE MARRIAGE IS ANNULLED, AND THE DONEE
its celebration, in consideration of the same, and in favor of one or both of
ACTED IN BAD FAITH;
the future spouses. (126)
(4) UPON LEGAL SEPARATION, THE DONEE BEING THE GUILTY
SPOUSE;
Q: How does the Family Code define donations by reason of marriage?
Donations by reason of marriage (or ordinary propter nuptias) are those
(5) IF IT IS WITH A RESOLUTORY CONDITION AND THE
which are made before its celebration, in consideration of the same, and in CONDITION IS COMPLIED WITH;
favor of one or both of the future spouses. (6) WHEN THE DONEE HAS COMMITTED AN ACT OF
INGRATITUDE AS SPECIFIED BY THE PROVISIONS OF THE CIVIL
Q: what rules govern donations propter nuptias? CODE ON DONATIONS IN GENERAL.

a. Requirements administration of such properties. Any act of disposition performed by the
parents or guardian must be made with the consent of the court.
Art. 83. These donations are governed by the rules on ordinary donations Q: Can a minor receive donations?
established in Title III of Book III of the Civil Code, insofar as they are Yes, but acceptance shall be done through his parents or his legal
not modified by the following articles. (127a) representative. (Art. 741 Civil Code)
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, c. Formalities
between the spouses during the marriage shall be void, except moderate
gifts which the spouses may give each other on the occasion of any family Q: What law governs the formalities of donations propter nuptias?
rejoicing. The prohibition shall also apply to persons living together as The rules on ordinary donations shall apply. Non-compliance with the
husband and wife without a valid marriage. (133a) formalities shall make the donation void. Under the present rule, the
provisions of statutes of frauds will no longer apply to donations propter
Q: What are the requisites of donations propter nuptias? nuptias.
1. It must be made before the celebration of the marriage:
a. It ordinarily takes effect immediately since it would be Q: What are the formalities required in donations propter nuptias?
void once the future spouses become husband and wife by 1. If the donation involves personal property, the donation may be
virtue of Art 87 made orally or in writing. Oral donation requires the simultaneous
2. It must be made in consideration of the marriage delivery of the thing or of the document representing the thing
3. It must be made in favor of one or both of the future spouses donated, and acceptance of the thing donated.
b. Capacity of Parties 2. If the value of the personal property donated exceeds P5K, the
donation and the acceptance must be made in writing.
Q: Who may be a party to a donation proper nuptias?
The future spouses, as well as third persons may be parties to a donation 3. If the property donated is an immovable, the donation must be
propter nuptias. The participation of a third party, however, is limited to made in a public document. The donation and acceptance may be
that of a donor. Thus, in a donation propter nuptias, the donor can be either made in the same or in separate documents.
of the future spouses or a third person, but the donee must be one or both
spouses. Q: Is the express acceptance of the donee necessary in donations propter
nuptias?
Q: Should the parents of either or both spouses be made parties to a Yes. The acceptance must also comply with the formalities prescribed by
donation propter? law.
No. Unlike in marriage settlement, the parents of either or both spouses are
not parties to donations propter nuptias. When one reaches the age of 18, NOTE THE FOLLOWING PROVISIONS GOVERNING ORDINARY
parental consent is no longer necessary to capacitate him to make a DONATIONS:
donation.
Under the law, a minor is prohibited from making donations. The parents Art. 728. Donations which are to take effect upon the death of the donor partake of
or guardian of such minor are also prohibited from donating the properties the nature of testamentary provisions, and shall be governed by the rules established
of the minor because their function is limited only to management and in the Title on Succession. (620)

Art. 729. When the donor intends that the donation shall take effect during the Art. 749. In order that the donation of an immovable may be valid, it must be made
lifetime of the donor, though the property shall not be delivered till after the donor's in a public document, specifying therein the property donated and the value of the
death, this shall be a donation inter vivos. The fruits of the property from the time of charges which the donee must satisfy.
the acceptance of the donation, shall pertain to the donee, unless the donor provides
otherwise. (n) The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the
Art. 734. The donation is perfected from the moment the donor knows of the donor.
acceptance by the donee. (623)
If the acceptance is made in a separate instrument, the donor shall be notified thereof
Art. 735. All persons who may contract and dispose of their property may make a in an authentic form, and this step shall be noted in both instruments. (633)
donation. (624)
d. Properties Covered; Limitations
Art. 737. The donor's capacity shall be determined as of the time of the making of the
donation. (n)
Art. 84. If the future spouses agree upon a regime other than the absolute
community of property, they cannot donate to each other in their marriage
Art. 739. The following donations shall be void: settlements more than one-fifth of their present property. Any excess shall
be considered void.
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills. (130a)
(2) Those made between persons found guilty of the same criminal offense,
in consideration thereof;
Q: What properties may be donated by reason of marriage?
The donor may donate both present and future properties. The rule in
(3) Those made to a public officer or his wife, descedants and ascendants, ordinary donations is that one can only donate present property, except if
by reason of his office. the donation will take effect mortis causa, in which case, it is required that
the donation should follow the formalities of a will. The same rule applies to
In the case referred to in No. 1, the action for declaration of nullity may be brought donations propter nuptias
by the spouse of the donor or donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action. (n) Q: What are the rules regarding the limitations of donations propter
nuptias?
Art. 748. The donation of a movable may be made orally or in writing. 1. If the donation is made between the spouses
a. If the property donated is present property
An oral donation requires the simultaneous delivery of the thing or of the document i. If the future spouses agree upon a regime other
representing the right donated. than absolute community of property, they
cannot donate to each other in their marriage
settlement more than 1/5 of their present
If the value of the personal property donated exceeds five thousand pesos, the
property. Reason for ACP exception: anything
donation and the acceptance shall be made in writing, otherwise, the donation shall
you receive as a donation is actually part of the
be void. (632a)
absolute community and those owned by both
spouses.

ii. If the future spouses agree to adopt the regime of and the property is sold for less than the total amount of the obligation
ACP, there is no limitation as to the properties secured, the donee shall not be liable for the deficiency. If the property is
which they can donate to each other sold for more than the total amount of said obligation, the donee shall be
entitled to the excess.
b. If the property donated is future property
i. Art 84, par 2 states that donations of future Q: May properties subject to an encumbrance be the subject of a donation
property shall be governed by the provisions on propter nuptias?
testamentary succession. This means that Yes. Art 85 provides that donations by reason of marriage subject to
donations must not be inofficious, i.e., it must not encumbrance shall be valid
impair the presumptive legitime of compulsory
heirs of the donor. If it impairs the presumptive Q: What is the effect of the foreclosure of the property subject to
legitime of the compulsory heirs of the donor, the encumbrance?
donation shall be reduced to the extent of the In case of foreclosure of the encumbrance and the property is sold for less
impairment. Therefore, the limit is inoffiousness than the amount of the obligation secured, the donee shall not be liable for
the deficiency. But if the property is sold for more than the total amount of
2. If the donation is made by a third party in favor of either or both the obligation, the donee shall be entitled to the excess. Before foreclosure,
spouses the donor may continue paying.
a. If the property donated is present property
i. The donation must not be inofficious, otherwise Q: Can the donee file an action against the donor if the mortgaged property
it can be reduced which was donated by reason of marriage is subsequently foreclosed?
No. The donee however cannot be required to pay any deficiency
ii. If the donor is an ascendant or parent and the
donation consists of jewelry, clothing or outfit e. Revocation
which were given as wedding gifts, the donation
is not subject to any limitation. But if the
donation involves other properties, then it must Art. 86. A donation by reason of marriage may be revoked by the donor in
not exceed 1/10 of the property disposable by the following cases:
will. The excess shall be subject to a reduction
(1) If the marriage is not celebrated or judicially declared void ab
iii. Article. 1070 states: Wedding gifts by parents and initio except donations made in the marriage settlements, which
ascendants consisting of jewelry, clothing, and shall be governed by Article 81;
outfit, shall not be reduced as inofficious except
insofar as they may exceed one-tenth of the sum
(2) When the marriage takes place without the consent of the
which is disposable by will. (Dean may have parents or guardian, as required by law;
overlooked this)
b. If the property donated is future property – the only (3) When the marriage is annulled, and the donee acted in bad
faith;
limitation is the donation must be inofficious
Art. 85. Donations by reason of marriage of property subject to (4) Upon legal separation, the donee being the guilty spouse;
encumbrances shall be valid. In case of foreclosure of the encumbrance

(5) If it is with a resolutory condition and the condition is
complied with; Q: Does the Art 86 par 3 apply to cases where the marriage is annulled on
the ground of lack of parental consent?
(6) When the donee has committed an act of ingratitude as No. This rule excludes a case where the marriage is annulled on the ground
specified by the provisions of the Civil Code on donations in of lack of parental consent because that case is covered by par. 2 of Art 86
general. (132a)
PROBLEM: Art 86 conflicts with Art 43. Under Art 86, if the marriage is
Q: What are the grounds for the revocation of a donation propter nuptias? annulled and there is bad faith on the part of the donee, the donation is only
1. If the marriage is not celebrated or judicially declared void ab revocable. However, under Art 43, it will be considered a case of automatic
initio, except donations made in the marriage settlements which revocation. These provisions are irreconcilable because they essentially
shall be governed by Art. 81 of the Family Code cover one and the same thing. Sempio-Diy tries to reconcile the two
2. When the marriage takes place without the consent of the parents provisions by saying that Art 86 will apply only if the donation is made by
or guardian, as required by law third persons but not if it is made by the future spouses. According to Dean
3. When the marriage is annulled, and the donee acted in bad faith Del Castillo, it is difficult to find legal basis for that argument because Art 86
4. Upon legal separation, the donee being the guilty spouse makes no distinction as to who is the donor. As long as it’s a donation
5. If it is with a resolutory condition and the condition is complied propter nuptias and the marriage is annulled by reason of bad faith of one
with spouse, then it is considered as recovable. This case would require
6. When the donee has committed an act of ingratitude legislative amendment. This is not like the case of marriages which are
judicially declared as void. If you try to reconcile this with Art 43, which
Q: Is the revocation of donations propter nuptias under Art 86 automatic? states that if the marriage is judicially declared as void and the donee is the
No. Art 86 uses the word “may.” Thus, to revoke the donation, the donor spouse in bad faith, then it is considered as automatically revoked. This is
must apply before the court and the application must be based on the still reconcilable because Art 86, par. 1 does not require that it is the donee
grounds enumerated in Art 86 who must be in bad faith. If the donee is in good faith or if there is no spouse
which is in bad faith, you apply Art 86 which means that it is recovable at
Q: what is the first ground for revocation of donations propter nuptias? the option of the donor.
The first ground covers two instances:
1. Marriage is not celebrated Q: What is the fourth ground for revocation of donations propter nuptias?
2. Marriage is judicially declared void Upon legal separation, the donee being the guilty spouse. Art 86 is
consistent with the rules on legal separation. They both provide that a
donation made in favor of the guilty spouse is revocable.
NOTE: NO PAGE 192 IN THE REVIEWER
Q: What is the fifth ground for revocation of donations propter nuptias?
If it is with a resolutory condition and the condition is complied with
Q: What are the differences between par. 2 and par. 3 of Article 86
Par 2 Par 3 Q: What is strange about the concept of resolutory condition under Art 86
Annulment is not necessary The marriage is actually annulled par. 5 of the Family Code?
It applies only to marriages where It applies to all cases of annulment The concept is different from the concept of resolutory condition under the
one or both the parties is between except in the case of lack of parental law on obligations and contracts. Under the Oblicon, if an obligation is
the ages of 18 and 21 consent subject to a resolutory condition, the obligation immediately becomes valid
It applies WON the donee is in good It applies only if the donee is in bad but the moment the resolutory condition happens, the obligation is
or bad faith faith terminated. In Art 86 of the FC, if the donation is subject to a resolutory

condition and it happens, the donation may be revoked at the instance of the a. 5 years from the time the decree of legal separation has
donor. That is not the concept of a resolutory condition under the law on become final (art 64 FC)
obligations and contracts.
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect,
Q: What is the sixth ground for revocation of donations propter nuptias? between the spouses during the marriage shall be void, except moderate
When the donee has committed an act of ingratitude as specified in the Civil gifts which the spouses may give each other on the occasion of any family
Code rejoicing. The prohibition shall also apply to persons living together as
husband and wife without a valid marriage. (133a)
Q: What are the acts of ingratitude specified?
4. System of Absolute Community of Property
Art. 765. The donation may also be revoked at the instance of the donor, by reason of a. When applicable
ingratitude in the following cases:
(1) If the donee should commit some offense against the person, the honor Art. 88. The absolute community of property between spouses shall
or the property of the donor, or of his wife or children under his parental commence at the precise moment that the marriage is celebrated. Any
authority; stipulation, express or implied, for the commencement of the community
(2) If the donee imputes to the donor any criminal offense, or any act regime at any other time shall be void. (145a)
involving moral turpitude, even though he should prove it, unless the
crime or the act has been committed against the donee himself, his wife or
children under his authority;
(3) If he unduly refuses him support when the donee is legally or morally NOTE: MISSING PAGE
bound to give support to the donor.
Q: What are the prescriptive periods for the filing of action for revocation of Art. 89. No waiver of rights, shares and effects of the absolute community
donations propter nuptias? of property during the marriage can be made except in case of judicial
1. If the marriage is not celebrated (except Art 81 which are separation of property.
automatically void)
a. Written donations – 10 years (Art 1144 par 1)
When the waiver takes place upon a judicial separation of property, or
b. Oral donations – 6 years (Art 1145, par 1)
after the marriage has been dissolved or annulled, the same shall appear
2. If the marriage is declared void ab initio
in a public instrument and shall be recorded as provided in Article 77. The
a. Written donations – 10 years
creditors of the spouse who made such waiver may petition the court to
b. Oral donations – 6 years
rescind the waiver to the extent of the amount sufficient to cover the
3. When the marriage takes place without parental consent amount of their credits. (146a)
a. 4 years being an injury founded upon contract (Art 1146,
par 1)
4. If resolutory condition is not complied with Q: What is the reason for the rule?
a. Written donations – 10 years To avoid undue influence exerted by one spouse to the other
b. Oral donations – 6 years
5. When the marriage is annulled Q: What is the difference between waiver under CPG and waiver under
a. 4 years ACP?
6. If the donee committed an act of ingratitude While Art 146 of the CC prohibits waiver of “gains or effects” of the CPG
a. 1 year from the donor’s knowledge of the fact (Art 769) during the marriage, Art 89 of the FC makes the provision more broad by
7. In case of legal separation using the all-inclusive terms “rights, interests, shares and effects”

All properties belonging to the spouses before the marriage, except those
Q: When is waiver allowed? excluded by law, are automatically converted into community or common
Waiver by one spouse is allowed in the following cases: property, without need of any judicial act on the part of the owner-spouse
1. With the marriage subsisting, in case of a judicial separation of transferring the same to the community. The same is true with properties
property, which includes the dissolution of the ACP or CPG as a acquired by either spouse or in the name of both spouses during the
result of legal separation marriage
2. In case the marriage is dissolved by death of one spouse or
annulled c. Separate Properties
Q: What is the form of the waiver? Q: Can the spouses exclude specific properties?
1. The waiver appears in a public instrument The spouses have no option to exclude specific properties from the
2. Te waiver must be recorded in the office of the local civil registrant community.
where the marriage contract is recorded and in the proper registries
of properties
Art. 92. The following shall be excluded from the community property:
Q: Is oral waiver valid?
(1) Property acquired during the marriage by gratuitous title by
No. There must be a public instrument containing the waiver either spouse, and the fruits as well as the income thereof, if any,
unless it is expressly provided by the donor, testator or grantor
Q: What is the remedy of the creditor of the spouse who made the waiver? that they shall form part of the community property;
Creditors of the spouse who made the waiver may petition the court to
rescind the waiver to the extent of the amount sufficient to cover their
(2) Property for personal and exclusive use of either spouse.
credits
However, jewelry shall form part of the community property;
Q: Does it apply to involuntary waivers?
This provision is limited to voluntary waivers, the reason being to avoid (3) Property acquired before the marriage by either spouse who
undue influence between the spouses, and does not affect judicial transfers has legitimate descendants by a former marriage, and the fruits as
well as the income, if any, of such property. (201a)
Art. 90. The provisions on co-ownership shall apply to the absolute
community of property between the spouses in all matters not provided Q: What does “gratuitous title” mean?
for in this Chapter. By donation, or testate or intestate succession. Intestacies are included
especially as there are more intestacies than testacies.
b. Properties Covered
Q: What else are excluded?
The fruits and income of the property acquired by donation or succession
Art. 91. Unless otherwise provided in this Chapter or in the marriage
are excluded
settlements, the community property shall consist of all the property
owned by the spouses at the time of the celebration of the marriage or
acquired thereafter. Q: Any exceptions?
Exception is when the donor, testator or grantor has expressly provided in
the donation, will or grant that the property shall form part of the ACP of
Q: What properties do into ACP?

the spouses, in which case such property and its income and fruits will be
community property. Art. 93. Property acquired during the marriage is presumed to belong to
the community, unless it is proved that it is one of those excluded
therefrom. (160)
Properties for the personal and exclusive use of either spouse except jewelry
Q: To what does the presumption apply
The presumption applies to all properties acquired during the marriage.
Q: What is contemplated in this provision?
Therefore in order that the presumption can be invoked, the property must
These are properties not only intended for the personal use of either spouse
be shown to have been acquired during the marriage. The presumption is
but those of exclusive use of each
rebuttable only by strong, clear and convincing evidence. The presumption
is stronger when creditors of the spouses are involved than when only the
Q: Why are jewelry excluded?
spouses of their successors in interest are involved. The presumption is not
Even if they are being used exclusively by either spouse because they are
rebutted by the mere fact that the deed of sale or certificate of title is in the
valuable and expensive and should form part of the community.
name of only one spouse. The presumption does not apply to properties
excluded from the ACP under Art 92.
Properties acquired before marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as the income, if
5. Conjugal Partnership of Gains
any, of such property
a. When applicable
Q: What is the intent of the rule?
This rule is intended to protect the rights of legitimate children and Article 105. In case the future spouses agree in the marriage
descendants of the first marriage since the FC has adopted the system of settlements that the regime of conjugal partnership of gains shall govern
absolute community between the spouses and if properties of a widow or their property relations during marriage, the provisions in this Chapter
widower acquired during the first marriage are not excluded from the ACP shall be of supplementary application.
in her or his second marriage, the rights of the children and descendants of The provisions of this Chapter shall also apply to conjugal
the first marriage over said properties may be prejudiced. partnerships of gains already established between spouses before the
effectivity of this Code, without prejudice to vested rights already
Q: What properties are excluded? acquired in accordance with the Civil Code or other laws, as provided in
It excludes from the ACP inheritance from a child by a former marriage who Article 256.
has full blood brothers and sisters, and the presumptive legitime of children
by a former marriage. All these excluded properties are already included in Article 106. Under the regime of conjugal partnership of gains, the
the property acquired before the marriage by either spouse who has husband and wife place in a common fund the proceeds, products, fruits
legitimate descendants by a former marriage? and income from their separate properties and those efforts acquired by
either or both spouses through their efforts or by chance, and, upon
dissolution of the marriage or of the partnership, the net gains or benefits
Q: How does this affect the right of children of the second marriage?
obtained by either or both spouses shall be divided equally between
The above rule does not affect the rights of children of the second marriage
them, unless otherwise agreed in the marriage settlements.
to inherit their shares of the properties of their father or mother acquired
during his or her first marriage under the law on succession. The rule is
Article 107. The rules provided in Articles 88 and 89 shall also apply
intended merely to prevent the merger of properties of the spouse acquired
to conjugal partnership of gains.
during a former marriage with the other. ACP in the second marriage, if said
spouse has legitimate children or descendants by his or her first marriage

Article 108. The conjugal partnership shall be governed by the rules
on the contract of partnership in all that is not in conflict with what is Q: Can a spouse waive his/her rights, interests, shares and effects in the
expressly determined in this Chapter or by the spouses in their marriage conjugal partnership during the marriage?
settlements. NO, except in the following cases:
1. There is judicial separation of property while the marriage is
Q: What is the “conjugal partnership of gains” property relation? subsisting.
It is a system of property relations whereby the husband and the wife place 2. The marriage is dissolved either by death or annulment. (Articles
in a common fund: 89 and 107)
1. the proceeds, products and income of their separate properties (i.e.,
rentals); Q: What rules shall govern this property regime?
2. everything acquired by them through their efforts (i.e., their work, 1. The provisions in the marriage settlement.
labor or industry, whether singly or jointly); and 2. The provisions in the Family Code.
3. everything acquired by them through chance (i.e., winnings from 3. The provisions on ordinary partnership, but only with respect to
gambling, hidden treasure and those acquired through fishing and those not in conflict with what is expressly provided for in the
hunting). Family Code and in the marriage settlements. (Article 108)
And upon dissolution of the marriage or of the partnership, the net gains or Q: Distinguish between absolute community of property and conjugal
benefits from the partnership shall be divided equally between the spouses, partnership of gains.
unless they have agreed on another manner of division in their settlement.
[Sempio-Diy]
Absolute Community of Property Conjugal Partnership of Gains
Q: When will this property regime apply? 1. All the properties owned by the 1. Each spouse retains his/her
spouses at the time of marriage property before the marriage
For marriages celebrated or to be celebrated after the Family Code takes become community property. and only the fruits and income
effect, the regime of conjugal partnership of gains shall only apply when the of such properties become part
spouses so provide in a marriage settlement executed prior to the marriage. of the conjugal properties
If they fail to make such a provision, the absolute community of property during the marriage.
regime shall apply. 2. Upon dissolution and 2. Upon dissolution of the
liquidation of the community partnership, the separate
For marriages celebrated prior to the effectivity of the Family Code and property, what is divided properties of the spouses are
where the regime of conjugal partnership had already been established equally between the spouses or returned and only the net
between the spouses, this shall continue to govern their property relations. their heirs is the net remainder of profits of the partnership are
But with respect to provisions under the Family Code on conjugal the properties of the absolute divided equally between the
partnership which have amended provisions of the Civil Code on conjugal community. spouses or their heirs.
partnership, the spouses will now have to be governed by these
amendments. b. Properties Covered
Q: When does this property regime commence? Conjugal Partnership Property or Exclusive Property; How to Determine
It commences at the precise moment that the marriage is celebrated. Any Q: Give the broad guidelines in determining whether property acquired is
stipulation, express or implied, for the commencement of the regime at any conjugal or exclusive.
other time shall be void. (Articles 88 and 107). If the following requisites are present, the property is conjugal: (DOC)
1. The property is acquired during the marriage. Property acquired by onerous title during the marriage at the expense of
2. The property is acquired on the basis of onerous title. common fund
3. The property was acquired at the expense of the common fund.
Q: What does “onerous” mean?
NOTE: All three requisites must be met regardless of for whose benefit the “Onerous” means that something is received which in return would require
property is to be used. Anything short of those requirements, invariably, some form of payment, either through service or property. It does not have
will make the property exclusive. to be for value.
Presumptions NOTES: onerous - purchase

- barter/exchange/redemption
Article 116. All property acquired during the marriage, whether the - labor, work, etc. also falls here
acquisition appears to have been made, contracted or registered in the
name of one or both spouses, is presumed to be conjugal unless the Q: Cite examples of property acquired by onerous title.
contrary is proved. 1. Car bought by the husband for the family using conjugal funds.
2. Car bought by the husband for the use of the wife using conjugal
Q: What is the presumption as to properties acquired during the marriage? funds even if he placed the car in her name.
3. The husband in an action for damages based on breach of contract
They are presumed to be conjugal unless the contrary is proved. and quasi-delict was awarded moral and exemplary damages. The
awarded damages are conjugal because the airplane tickets were
Articles 117 and 109 of the Family Code purchased using conjugal funds. (Zulueta vs. Pan Am Airways, 49
SCRA 1)
Article 117. The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the Q: In spite of #3 above, what is the status of damages received?
expense of the common fund, whether the acquisition be for the Actual damages and loss of earning capacity have always been considered
partnership, or for only one of the spouses; as onerous and form part of conjugal property. Likewise, attorney’s fees are
(2) Those obtained from the labor, industry, work or profession of for services rendered and so, they are conjugal.
either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the Moral damages for besmirched reputation, humiliation and embarrassment,
marriage from the common property, as well as the net fruits from the on the other hand, are not considered as onerous and are, therefore,
exclusive property of each spouse; exclusive. Exemplary damages which are imposed in order to give an
(4) The share of either spouse in the hidden treasure which the law example to the whole world is gratuitous and is also exclusive. (Dean Del-
awards to the finder or owner of the property where the treasure is found; Castillo)
(5) The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the treasure is found; Property acquired through the labor, industry, work, profession of either or
(6) Those acquired through occupation such as fishing or hunting; both spouses
(7) Livestock existing upon the dissolution of the partnership in
excess of the number of each king brought to the marriage by either Q: Cite examples of this.
spouse; and
1. Backpay representing salaries of a spouse, although payment is
(8) Those which are acquired by chance, such as winnings from
delayed and made only after the death of one of the spouses.
gambling or betting. However, losses therefrom shall be born exclusively
2. Although under the contract between the husband and the
by the loser-spouse.
employer, the former’s earnings are payable to the wife, the

earnings of the husband are still conjugal. (Rosales de Echaus vs. Share of either spouse in hidden treasure, whether as finder or owner of
Gan, 55 Phil. 527) property where treasure is found
3. Pensions or retirement pay where premiums are deducted from the
salaries of the retired spouse are conjugal. (Bowers vs. Roxas, 69 Q: Give the rules under this provision.
Phil. 626) 1. If the owner of the property where the treasure is found is one of
the spouses and the treasure is found by a stranger, the one-half
Fruits from common property, and net fruits of exclusive property of each share of the owner goes to the conjugal partnership.
spouse 2. If the property belongs to a stranger and the finder is one of the
spouses, the one-half share of the finder-spouse is also conjugal.
Q: Cite examples of this.
1. All kinds of fruits from conjugal properties as well as exclusive Property acquired through occupation such as fishing or hunting
properties of the spouses, like young of animals, produce of land,
earnings from business, etc. are conjugal. Q: Why is property acquired through occupation conjugal?
2. If fruits were pending on separate property of a spouse at the time Because the property is acquired on the basis of labor, industry and efforts.
of the marriage, the harvest collected during the marriage is
conjugal. Q: What kinds of animals and fishes are included in this provision?
3. The wife, before her marriage, received five years advance in The provision includes wild animals caught by the husband in the forest
rentals from the tenant of a paraphernal building. One year later, while hunting and all kinds of marine life caught while fishing. (The theory
she got married. The rentals for the first year are paraphernal, here is that the animals and fishes form part of the res nullius.)
while the rentals corresponding to the four years falling due during
the marriage are conjugal. Livestock existing at dissolution of partnership in excess of what is brought
by either spouse to the marriage
NOTE: When we speak of fruits of separate properties, the law uses the
phrase “net fruits,” which means that the conjugal partnership cannot collect Q: How do we determine which livestock form part of the conjugal
everything that is earned out of separate properties. The conjugal partnership?
partnership shall only be entitled to the NET fruits, that is, fruits less the 1. Count the number of livestock you have at the time of the marriage.
expenses incurred in the maintenance of the separate property. For 2. Count the number of livestock you have at the time of termination
example, with regard to agricultural crops, you have to deduct the expenses of the conjugal partnership.
for the gathering of the crops from the value of the fruits gathered. The 3. Deduct #1 from #2.
conjugal partnership will only be entitled to the value of the fruits after the RESULT = Fruits belonging to the conjugal partnership.
expenses for growing and gathering them are deducted.
Q: Give an example of this.
DEAN DEL-CASTILLO: We must also make a distinction between fruits and Farmer Mon had 3 pigs and 2 horses. Then he got married to Marife. But
increments or appreciation in value. Enzo bought property while he was unfortunately, after just 2 years of marriage, they had their marriage
still single for P100. After he got married, he was able to sell it for P1M. declared null and void on the ground of psychological incapacity on the part
This is clearly a case of appreciation of value of the property and so, the of __________. At the time of the termination of the marriage, Mon had
difference in value (P1M less P100) still belongs to Enzo, who exclusively already 5 pigs and 3 horses. The 2 pigs and 1 horse are considered as
owns the property. However, if he leases the property to Jo, the rentals that forming part of the conjugal properties of the spouses. As Dean Del-Castillo
he will earn are considered as fruits of that property and therefore, conjugal. says, you do not have to make “tatak” the animals at the beginning of the
(increase in value ≠ fruits) marriage to indicate that the animal is your exclusive property, you only
have to count how many they are.

Property acquired by chance, such as winnings from gambling or betting rescission of the contract, or the revocation of donation if the
property was donated.
Q: Give the rules under this provision. 4. Donations propter nuptias belongs to each of the spouses on an
All winnings in a game of chance form part of the conjugal partnership. All exclusive and separate basis. It is made before the celebration of
losses, however, are charged to the separate property of the spouse who the marriage and becomes effective immediately. And it does not
incurred them. matter whether the future spouse or a third person is the donor.
NOTE: We have to make a distinction between a game of chance and a game NOTES: key is ownership!
of skill. Property acquired on account of a game of skill is conjugal because it
is based on efforts and industry of the spouse. If property is lost in a game Property acquired by either spouse during the marriage by gratuitous title
of skill, such can be charged to the conjugal partnership. This is unlike a
game of chance where losses are chargeable on the separate property of the Q: Give examples of this.
spouse. In the case of basketball stars, where they acquire property on the 1. Property acquired during the marriage by either spouse through
basis of skill, expenses for training should be chargeable to the common testate or intestate succession or by donation.
fund. 2. A gratuity given out of pure liberality by an employer to either
spouse for long, faithful and dedicated service.
Q: If the winning ticket in a lottery or in the sweepstakes was given to a
spouse by a friend, are the winnings conjugal or exclusive? Q: What is the status of moderate gifts given during the marriage?
It is believed that the ticket would be considered a donation and the Exclusively for CPG, any property acquired during the marriage by
winnings therefrom will not be part of the conjugal property unless the gratuitous title is exclusive. Moderate gifts are property acquired through
donor expressly provides so. [Sempio-Diy] gratuitous title.
Article 109. The following shall be the exclusive property of each But make a distinction between jewelry given under ACP and CPG. Under
spouse: ACP, there is a provision which provides that jewelry is always conjugal
(1) That which is brought to the marriage as his or her own; regardless of whether it was acquired gratuitously or onerously. Under
(2) That which each acquires during the marriage by gratuitous title; CPG, there is no such provision. Therefore, if jewelry was given
(3) That which is acquired by right of redemption, by barter or by gratuitously then we should follow the rules in CPG and conclude that the
exchange with property belonging to only one of the spouses; and jewelry is exclusive property. (Dean Del-Castillo)
(4) That which is purchased with exclusive money of the wife or of
the husband. Property acquired by right of redemption, barter or exchange with exclusive
property
Property brought to the marriage by each spouse as his or her own
Q: What is the test in determining whether property acquired by barter or
Q: Give examples of this. exchange is conjugal or exclusive?
1. House and lot or car owned by either spouse before the marriage. The test is to determine the nature of the property you used to barter or
2. Property defectively acquired by either spouse (like under a exchange for the new property. If the property used in the exchange or
voidable contract) before the marriage, but the defect in the title barter is exclusive, then the newly acquired property is also exclusive. If the
was cured during the marriage. property used in the exchange or barter is conjugal property, then the
3. Property alienated by either spouse before the marriage but newly-acquired property is also conjugal.
reacquired during the marriage because of the annulment or

Q: What is the test in determining whether the property to be redeemed is Article 118. Property bought on installments paid partly from
conjugal or exclusive? exclusive funds of either or both spouses and partly from conjugal funds
The test is to determine who owns the right of redemption. belongs to the buyer or buyers if full ownership was vested before the
In the case of a pacto de retro, which was executed prior to the celebration of marriage and to the conjugal partnership if such ownership was vested
the marriage, we assume that the spouse used his/her own property for the during the marriage. In either case, any amount advanced by the
purpose of the transaction. The right of redemption, therefore, was acquired partnership or by either or both spouses shall be reimbursed by the owner
on the basis of the fact that the property used in the transaction is separate. or owners upon liquidation of the partnership.
And so, the right of redemption is also separate. Even if the exercise of the
right of redemption is done after the celebration of the marriage, the Q: When does this Article apply?
property redeemed is still separate and exclusive property. If conjugal This Article applies when property is bought on installments by either the
funds were used to redeem the property then the owner-spouse owes the husband or wife before the marriage but was fully paid only after the
conjugal funds for the amount used to redeem the property. marriage using conjugal funds.
With regard to property which is conjugal and is the subject of a pacto de Q: How is the status of the property determined if it is bought on
retro sale, the right of redemption belongs to the conjugal partnership. installments?
Therefore, the property redeemed forms part of the conjugal partnership. The status is determined by asking the question: “When did ownership
transfer?”
Q: Cite examples of these.
If the property was bought on installment by a spouse before the marriage
1. Barter: Property inherited by wife from her father was exchanged and the contract of sale is such that ownership was already vested on the
by her with another property. The newly-acquired property is buyer-spouse at the time of the execution of the contract, the property is
paraphernal. exclusive, even if installments on the price up to full payment came from the
2. Redemption: Wife sold a piece of land with a right to repurchase conjugal funds. The amounts paid by the conjugal partnership shall,
before her marriage. During the marriage, she and her husband however, be reimbursed to it by the owner-spouse at the time of the
redeemed it with conjugal funds. The land is still paraphernal but liquidation of the partnership.
the wife must indemnify the conjugal partnership with the
redemption money upon liquidation. If, however, the contract of sale of installment is such that ownership did not
3. Exchange: Wife’s paraphernal building was insured before the vest on the buyer at the time of the execution of the sale and ownership
marriage but burned during the marriage and the wife collected the vested only after the whole price was paid during the marriage and out of
insurance. The insurance money is paraphernal. conjugal funds, the property is conjugal, but the conjugal partnership shall
reimburse the buyer-spouse the installment paid by him or her before the
Property purchased with exclusive money of either spouse marriage.
Q: Cite examples of this. Q: Give an example of property bought on installment where ownership
1. A diamond ring purchased by the wife with her own money is vested at the time of execution of the contract.
paraphernal. Contract of sale. Happy, while still single, bought a car under a contract of
2. Land acquired by the wife with her exclusive money is sale. Under the law on sales, ownership transfers to him immediately upon
paraphernal, even if her title describes her as “A, married to B.” the execution of the contract even if he is still amortizing the payments to the
car. Happy, therefore, is the exclusive owner of the car even after he gets
Property Bought on Installment married.

If Happy uses the salaries earned by him after the marriage, which under Article 113. Property donated or left by will to the spouses, jointly
CPG is conjugal property, to pay the amortizations on the car then upon the and with designation of determinate shares, shall pertain to the donee-
liquidation of conjugal partnership, Happy has to reimburse said amounts. spouse as his or her own exclusive property, and in the absence of
designation, share and share alike, without prejudice to the right of
Q: Give an example of property bought on installment where ownership accretion when proper.
vests only after the full price is paid.
Contract to sell. Under the law on sales, ownership is not transferred until Article 114. If the donations are onerous, the amount of the charges
full payment of the purchase price is made. shall be borne by the exclusive property of the donee-spouse, whenever
they have been advanced by the conjugal partnership of gains.
DEAN DEL-CASTILLO: One of the ways in determining whether a contract
is a contract of sale or a contract to sell is that whenever property is bought Q: What is the rule with regard to property donated or left by will to the
on installment basis and it is a basis on a contract of sale, there is a mortgage spouses?
normally attached to it. If there is a designation of the shares of each spouse in the property, they
will own their respective shares exclusively.
Credits Payable
If there is no designation of the shares of the spouses in the property, then
Article 119. Whenever an amount or credit payable within a period of they will share it fifty-fifty, or one-half goes to the wife and the other half to
time belong to one of the spouses, the sums which may be collected the husband.
during the marriage in partial payments or by installments on the
principal shall be the exclusive property of the spouse. However, interests The property, in this case, is exclusive to the spouses because it is acquired
falling due during the marriage on the principal shall belong to the by gratuitous title.
conjugal partnership.
Q: Is there a right of accretion between the spouses as regards donated
Q: When does this Article apply? property?
This Article applies when one of the spouses lends out money or property YES. The right of accretion takes place when either spouse:
prior to the celebration of the marriage but only receives back the money or 1. refuses to accept;
property plus the interests after the celebration of the marriage. 2. is incapacitated to accept; or
3. predeceases or dies before the perfection of the donation.
Q: Is the money or property you lent out (principal) conjugal or exclusive?
Exclusive, even if payment was made before or after the celebration of the Q: Is there an exception to the rule on the right of accretion?
marriage, because it is only the return of the money or property lent which is YES. There can be no right of accretion when the donor provides that there
exclusive. can be no right of accretion in the deed of donation.
Q: Are interests paid conjugal or exclusive? Retirement benefits, Pensions, Annuities, Gratuities, Usufructs, etc.
It depends. Interests are considered fruits of the principal property which
under CPG should form part of the conjugal property. And so, with respect Article 115. Retirement benefits, pensions, annuities, gratuities,
to interest payments made before the celebration of the marriage, these are usufructs and similar benefits shall be governed by the rules on
considered as exclusive property while interest payments made after the gratuitous or onerous acquisitions as may be proper in each case.
celebration of the marriage are considered conjugal.
Q: Are gratuities conjugal or exclusive?
Donations

Being gratuitous, they are exclusive. Gratuities are not based on services O.G. 12th Supp. No. 18, p. 86), this is a gratuity and should be
rendered but are rewards in consideration of good services/deeds, over and considered separate property.
above what is due. There are not based on any legal obligation to pay.
COMMENTS: There are two kinds of retirement plans: contributory and
Q: Are pensions conjugal or exclusive? non-contributory plans. In the case of the government, it usually has
Conjugal, because they are normally defined as additional compensation for non-contributory plans. That is why in the case of Sarmiento, who was
services rendered. They are income coming from industry or work. a government employee (PNB), the SC held that the retirement pay was
a gratuitous acquisition and therefore, an exclusive and separate
Q: Are retirement benefits conjugal or exclusive? property of the husband. But in most private companies, employees
It depends. If they are contributory then they are conjugal. If they are non- contribute to their own retirement plans. So in the case of contributory
contributory then they are exclusive. retirement plans, retirement benefits should form part of the conjugal
partnership.
Sarmiento v. IAC
FACTS: There are two cases involved here. In the first case, Norma Improvements
Sarmiento sued her husband, Cesar Sarmiento, for support. The lower
court rendered judgment ordering Cesar to pay Norma P500.00 per Article 120. The ownership of improvements, whether for utility or
month as support. Cesar appealed this decision. Norma, on the other adornment, made on the separate property of the spouses at the expense of
hand, moved for execution pending appeal. The CA found Cesar’s the partnership or through the acts or efforts of either or both spouses
appeal as unmeritorious and dismissed the same. shall pertain to the conjugal partnership or to the original owner-spouse,
In the second case, Norma brought another action against Cesar for the subject to the following rules:
declaration that the retirement benefits due to Cesar from PNB (Cesar When the cost of the improvement made by the conjugal partnership
was a former PNB employee) as conjugal and that 50% thereof belonged and any resulting increase in value are more than the value of the property
to her as her share. Cesar failed to appear during the pre-trial at the time of the improvement, the entire property of one of the spouses
conference and was declared in default. The RTC rendered judgment in shall belong to the conjugal partnership, subject to reimbursement of the
favor of Norma and ordered PNB to deliver ½ of the retirement benefits value of the property of the owner-spouse at the time of the improvement;
due to Cesar to Norma. Hence, this petition for certiorari and otherwise, said property shall be retained in ownership by the owner-
prohibition. spouse, likewise subject to reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested
upon the reimbursement, which shall be made at the time of the
ISSUE: WON retirement benefits due to the husband is conjugal liquidation of the conjugal partnership.
property of which ½ should be delivered to the wife.
Q: What are the rules regarding ownership of principal and improvements
made on the principal? Use the example of land being the principal and a
HELD: NO, it is not conjugal property. The directive to deliver ½ of the
house built on the land as the improvement.
retirement benefits to the wife makes the default judgment illegal
because retirement benefits have been adjudged as gratuities or reward
Rule 1 IF land = belongs to conjugal partnership
for lengthy and faithful service of the recipient and should be treated as
house = used conjugal funds
separate property of the retiree-spouse. Thus, if the monetary benefits
are given gratis by the government because of previous work (like the
THEN obviously, the land as well as the house belong to the conjugal
retirement pay of a provincial auditor in Mendoza vs. Dizon, L-387,
partnership.
October 25, 1956; or that of a Justice of the Peace (Elcar vs. Eclar, CA-40
Rule 2 IF land = belongs to conjugal partnership

house = used separate funds of the land. In the formula of Sempio-Diy, you are given two distinct values,
namely: the cost of the improvement and the increased value of the land. It
THEN the land remains to be conjugal. There can never be any instance is not included in the latter cost of the improvement.
where conjugal property becomes separate property through the use of
separate funds. Although there are instances where separate property Therefore:
becomes conjugal through the use of conjugal funds. 1. If the value of the land is more than the cost of the house then the
land remains as separate property and the house becomes separate
The house, likewise, is conjugal. Article 121 paragraph 4 provides for property. The owner-spouse of the land has to reimburse the
reimbursable expenses chargeable to the conjugal partnership. This is conjugal partnership for the amounts it used to build the house.
regardless of the value of the house, that is, even if the house may be worth 2. If the cost of the house is more than the value of the land, then both
more than the house, it does not make the house the separate property of the the house and the land are conjugal. But the conjugal partnership
spouse. The conjugal partnership, in this case, must reimburse the spouse must reimburse the owner-spouse of the land for the value of the
who used his/her funds for the amounts spent to build the house. This is land.
illustrative of the principle that the accessory follows the principal. Under
the laws on property, the land is always the principal and whatever you Q: When does ownership over the entire property vest on the owner-
build on it will always be the accessory. spouse or conjugal partnership, as the case may be?
Upon the reimbursement of the improvement or the value of the property,
Rule 3 IF land = belongs to separate property as the case may be.
house = used conjugal funds
Q: When should reimbursement be made?
THEN we have to modify the principle that the accessory follows the
principal. The Family Code provides that we have to compare the value of Reimbursement should be made at the time of liquidation of the conjugal
the property before the improvement and the value of the improvement. partnership. And so, until reimbursement is made, the owner-spouse still
The higher of the two values is the principal. retains ownership over the parcel of land.
NOTES: whenever the land is conjugal, then the property is always conjugal. Q: Can reimbursement be made at any time before liquidation?
Only when the land is exclusive will the rule on comparison of values apply. Of course. Then upon reimbursement, ownership is transferred.
Q: How do we determine the value of the property (land)? Rule 4 IF land = belongs to separate property
Get its value at the time of acquisition. house = used separate funds
Q: How do we determine the value of the improvement? THEN obviously, both the land and the house are the separate property of
Two ways: that spouse.
1. Add: cost of the improvement on the separate property + resultant
increase in the value of the property due to the improvement. c. Exclusive Properties
[Sempio-Diy]
2. Subtract: value of the land now – value of the land at the time of Rights with Respect to Exclusive Properties
acquisition. (Dean Del-Castillo)
Article 110. The spouses retain the ownership, possession,
NOTE: The reason for the simplified formula of the Dean is that she believes administration and enjoyment of their exclusive properties.
that the cost of the improvement is usually the resultant increase in the value Either spouse may, during the marriage, transfer the administration of
his or her exclusive property to the other by means of a public instrument,
which shall be recorded in the registry of property of the place where the Wong v. IAC
property is located. FACTS: Romarico Henson married Katrina Pineda. They had 3 children
but from early on in the marriage lived separately. During the marriage
Article 111. A spouse of age may mortgage, encumber, alienate or Romarico purchased a parcel of land in Angeles City with money
otherwise dispose of his or her exclusive property, without the consent of borrowed from an officemate.
the other spouse, and to appear alone in court to litigate with regard to the
same. Katrina meanwhile incurred an indebtedness to Anita Wong upon her
failure to return some jewelry left on consignment and to pay the value
Article 112. The alienation of any exclusive property of a spouse thereof. Anita and her husband filed against the Hensons an action for
administered by the other automatically terminates the administration collection of a sum of money. Judgment was rendered ordering the Hensons
over such property and the proceeds of the alienation shall be turned over to pay the Wongs. A writ of execution was issued and Romarico’s lots in
to the owner-spouse. Angeles were levied upon and sold at public auction.
Q: What are the rights of the spouses with respect to their exclusive Romarico filed an action for annulment of the court’s decision, the levy and
properties?
the auction sale. He claimed that he had nothing to do with Katrina’s
1. each spouse has the right to retain ownership, possession,
business transactions, which he did not authorize, and that the properties
administration and enjoyment of his/her exclusive property.
levied upon and sold at public auction were his own capital properties. The
(Article 110 par. 1)
lower court ruled in his favor and this was affirmed by the IAC.
2. As a consequence of the rights of ownership, the owner-spouse
may mortgage, encumber, alienate or otherwise dispose of his/her
ISSUES:
exclusive property without the consent of the other spouse.
1. Are the properties in question conjugal?
(Article 111)
2. If so, should the properties be made to answer for the indebtedness
3. The owner-spouse can also appear alone in court to litigate with
incurred by Katrina?
regard to his/her exclusive property. (Article 111)
4. Either spouse may, during the marriage, transfer the administration
HELD:
of his/her exclusive property to the other by means of a public
1. YES. Having been acquired during the marriage, the properties are
instrument, which shall be recorded in the registry of property of
presumed to belong to the conjugal partnership even though the spouses
the place where the property is located. (Article 110 par. 2)
had been living separately. The presumption subsists in the absence of a
5. The spouse who had transferred administration of his/her
clear and convincing evidence to prove the properties were exclusively
property to the other spouse automatically terminates the
owned by Romarico. While there is proof that he bought the lots with
administration when he/she alienates the property subject of
money borrowed from an officemate, it is unclear where he obtained the
administration. (Article 112)
money to repay the loan. Proof on this matter is very important considering
that in determining the nature of property acquired during coverture, the
6. Charges upon and obligations of the Absolute
controlling factor is the source of the money used in the purchase.
Community/Conjugal Partnership
2. NO. Notwithstanding the conjugal nature of the properties,
a. Differences
Katrina’s indebtedness may not be paid for by them as her obligation has
not been shown by the creditor Wong spouses to be one of the charges
NOTE: Please see page 148-A for a separate table on charges and obligations
against the conjugal partnership. In addition to the fact that her rights over
of ACP/CPG
the properties are merely inchoate prior to the liquidation of the conjugal
partnership, the consent of her spouse and her authority to incur such
indebtedness has not been alleged in the complaint nor proven at the trial.

Moreover, under the Civil Code, a wife may bind the conjugal partnership benefits must be one directly resulting from the loan. It cannot merely be a
only when she purchases things necessary for the support of the family; by-product or a spin-off of the loan itself. The "benefits" contemplated by
when the administration of the conjugal partnership is transferred to the the exception in Article 122 (Family Code) is that benefit derived directly
wife by the courts or by the husband; and when the wife gives moderate from the use of the loan. In the case at bar, the loan is a corporate loan
donations for charity. Having failed to establish that any of these extended to PBM and used by PBM itself, not by respondent husband or his
circumstances occurred, the Wongs may not bind the conjugal assets to family.
answer for Katrina’s personal obligation to them although they may proceed Moreover, acting as surety is not part of the business of the respondent
against her separate properties. husband. The fact that on several occasions the lending institutions did not
require the signature of the wife and the husband signed alone does not
Ayala Investments v. CA mean that being a surety became part of his profession. Neither could he be
FACTS: Respondent Alfredo Ching executed security agreements in favor of presumed to have acted for the conjugal partnership.
PBM, of which he is the EVP, making himself jointly and severally liable for
the P50.3M credit line extended to PBM by Ayala Investment and Dev’t. What is the meaning of “for the benefit of the conjugal partnership”?
Corp (AIDC). PBM failed to pay the loan, and 3 of the conjugal properties of The debts contracted by the husband during the marriage relation, for and in
respondent Alfredo with his wife Encarnacion were scheduled for auction the exercise of the industry or profession by which he contributes toward the
sale. CA ruled that that the conjugal partnership of private respondents is support of his family, are not his personal and private debts, and the
not liable for the obligation by the respondent-husband. products or income from the wife's own property, which, like those of her
husband's, are liable for the payment of the marriage expenses, cannot be
ISSUE: Under Article 161 of the Civil Code, what debts and obligations excepted from the payment of such debts. (Javier vs. Osmeña)
contracted by the husband alone are considered "for the benefit of the The husband, as the manager of the partnership (Article 1412, Civil Code),
conjugal partnership" which are chargeable against the conjugal has a right to embark the partnership in an ordinary commercial enterprise
partnership? Is a surety agreement or an accommodation contract entered for gain, and the fact that the wife may not approve of a venture does not
into by the husband in favor of his employer within the contemplation of the make it a private and personal one of the husband. (Abella de Diaz vs.
said provision? Erlanger & Galinger, Inc.)
Debts contracted by the husband for and in the exercise of the industry or
HELD: The security here is not chargeable against the CPG. profession by which he contributes to the support of the family, cannot be
The burden of proof that the debt was contracted for the benefit of the deemed to be his exclusive and private debts. (Cobb-Perez vs. Lantin).
conjugal partnership of gains, lies with the creditor-party litigant claiming as . . . if he incurs an indebtedness in the legitimate pursuit of his career or
such. In the case at bar, AIDC failed to prove that the debt was contracted by profession or suffers losses in a legitimate business, the conjugal partnership
the respondent husband for the benefit of the CPG. What is apparent from must equally bear the indebtedness and the losses, unless he deliberately
the facts of the case is that the judgment debt was contracted by or in the acted to the prejudice of his family. (G-Tractors, Inc. vs. Court of Appeals)
name of the Corporation PBM and respondent husband only signed as
surety thereof. The debt is clearly a corporate debt and AIDC’s right of RULES:
recourse against respondent husband as surety is only to the extent of his a) If the husband himself is the principal obligor in the contract, i.e.,
corporate stockholdings. It does not extend to the CPG of his family. he directly received the money and services to be used in or for his own
It is true that the family will benefit in the ff. ways: husband’s employment business or his own profession, that contract falls within the term . . . .
would be prolonged because of the loan he guaranteed, shares of stock of obligations for the benefit of the conjugal partnership." Here, no actual
the family with PBM would appreciate if rehabilitation would ensue benefit may be proved. It is enough that the benefit to the family is apparent
following the loan obtained, the husband’s prestige in the corporation at the time of the signing of the contract. From the very nature of the
would be enhanced if he succeeds in rehabilitating PBM. However, these contract of loan or services, the family stands to benefit from the loan facility
are not the benefits contemplated by Article 161 of the Civil Code. The or services to be rendered to the business or profession of the husband. It is

immaterial, if in the end, his business or profession fails or does not succeed. ISSUE: Is the wife, Encarnacion Ching, who was not a party to the collection
Simply stated, where the husband contracts obligations on behalf of the case, allowed to file a separate case as a 3rd party claimant without
family business, the law presumes, and rightly so, that such obligation will encroaching upon the jurisdiction of a co-equal and coordinate court?
redound to the benefit of the conjugal partnership.
b) On the other hand, if the money or services are given to another HELD: NO. Under Section 16 of Rule 39 of the Rules of Court, a separate
person or entity, and the husband acted only as a surety or guarantor, that and distinct case from that in which the execution has issued is proper if
contract cannot, by itself, alone be categorized as falling within the context instituted by a “stranger” to the latter suit. Upon the other hand, if the claim
of "obligations for the benefit of the conjugal partnership." The contract of of impropriety on the part of the sheriff in the execution proceedings is
loan or services is clearly for the benefit of the principal debtor and not for made by a party to the action, not a stranger thereto, any relief therefrom
the surety or his family. No presumption can be inferred that, when a may only be applied with, and obtained from, the executing court. This is
husband enters into a contract of surety or accommodation agreement, it is true even if a new party has been impleaded in the suit.
"for the benefit of the conjugal partnership." Proof must be presented to Is a spouse, who was not a party to the suit but whose conjugal
establish benefit redounding to the conjugal partnership. property is being executed on account of the other spouse being the
judgment obligor, considered a “stranger?” NO, the husband/wife of the
Ching v. CA judgment debtor cannot be deemed a “stranger” to the case prosecuted and
FACTS: Petitioner Alfredo Ching (once again) acted as a surety for Cheng adjudged against his wife/husband, which would allow the filing of a
Ban Yek & Co., Inc. Family Savings Bank then filed a complaint for separate and independent action.
collection of a sum of money w/ the CFI of Manila against Cheng and Clearly, it was inappropriate for petitioners to institute a separate case for
petitioner Ching. The conjugal property belonging to petitioner and his wife annulment when they could have easily questioned the execution of their
Encarnacion were levied upon. conjugal property in the collection case. In fact, the trial court in the Rizal
Petitioner spouses then filed w/ the CFI of Rizal a petition seeking to declare annulment case specifically informed petitioners that Encarnacion Ching’s
illegal the levy on attachment upon their conjugal property. TC dismissed rights could be ventilated in the Manila collection case by the mere expedient
for lack of jurisdiction as the subject property were already under custodia of intervening therein. Apparently, petitioners ignored the trial court’s
legis w/ the CFI of Manila. advice, as Encarnacion Ching did not intervene therein and petitioners
Meanwhile, the CFI of Manila rendered judgment in favor of the Bank and, instituted another annulment case after their conjugal property was levied
consequently, the conjugal properties were sold through public auction. CA upon and sold on execution.
affirmed this judgment and this became final. There have been instances where the SC ruled that a spouse may file a
In an effort to prevent the deputy sheriff from consolidating the sale, separate case against a wrongful execution. However, in those cases, the
petitioners filed a second annulment case w/ the RTC of Makati, seeking to institution of a separate and independent action was allowed because what
declare void the levy and sale on execution of their conjugal property. The were executed upon were the paraphernal or exclusive property of a spouse
petitioners won. The Bank appealed to the CA, which reversed the Makati who was not a party to the case. In those instances, said spouse can truly be
RTC decision, declaring that the Makati annulment case is barred by res deemed a “stranger.” In the present case, the levy and sale on execution was
judicata because of the prior Rizal annulment case and Manila collection case. made upon the conjugal property.
The SC ruled that the Makati annulment case should have been dismissed
from the start for lack of jurisdiction. The RTC of Makati does not have the
authority to nullify the levy and sale on execution that was ordered by the
CFI of Manila, a co-equal court. The determination of whether or not the
levy and sale of a property in execution of a judgment was valid, properly
falls within the jurisdiction of the court that rendered the judgment and
issued the writ of execution.

Article 122. The payment of personal debts contracted by the Q: Is it possible for a married couple to have illegitimate children?
husband or the wife before or during the marriage shall not be charged to YES. Common children of the couple born before they were married and at
the conjugal partnership except insofar as they redounded to the benefit a time when an impediment existed to their being married are considered
of the family. illegitimate. These children cannot even be legitimated upon the marriage
Neither shall the fines and indemnities imposed upon them be of the parents. But they are entitled to support from the community
charged to the partnership. property/conjugal partnership as common children of the spouses.
However, the payment of personal debts contracted by either spouse
before the marriage, that of fines and indemnities imposed upon them, as Q: How are the illegitimate children of the spouses to be supported?
well as the support of illegitimate children of either spouse, may be They are to receive support from the separate property of the spouse who is
enforced against the partnership assets after the responsibilities their parent. However, where such parent has no separate property or
enumerated in the preceding Article have been covered, if the spouse who where it is insufficient, the absolute community or the conjugal partnership
is bound should have no exclusive property or if it should be insufficient; shall advance the support, which shall be deducted from the spouse’s share
but at the time of the liquidation of the partnership, such spouse shall be upon liquidation. (Article 197)
charged for what has been paid for the purposes above-mentioned.
NOTE: Dean says this is one of those instances where there is bias against
NOTES: Difference with respect to antenuptial debts that did not redound to illegitimate children.
the benefit of the family.
ACP – Article 94(9) CPG – Article 122 Q: Are these advances for support of illegitimate children of one spouse
May be enforced outright from the May only be enforced from conjugal treated differently under ACP and CPG?
community properties. properties after the other YES. Look at Article 94 (9) on ACP and Articles 121 and 122 on CPG.
responsibilities (1-9) under Art. 121
have been covered, AND, the spouse Q: How are the advances for support of illegitimate children of one
who is bound does not have spouse treated under CPG?
sufficient exclusive property. Under CPG, before an illegitimate child can be given support advanced from
But at the time of the liquidation of the ACP or CPG, the spouse-debtor shall the conjugal partnership, all the obligations listed under Article 121 must
be charged for what has been paid. (With respect to ACP, it is considered as first be satisfied. (Article 122) This, in effect, gives preference to the creditors
an advance of his/her share in the ACP upon liquidation.) over the illegitimate children of one spouse.
Charges and Obligations Q: Why does the law impose this condition?
Support (Articles 94[1] for ACP and 121[1] for CPG) Under CPG, there is a greater chance that the spouse obliged to give support
to his/her illegitimate children still has separate properties with which to
Q: Who are the persons entitled to support from the community satisfy such support, since separate properties of the spouses remain
property/conjugal partnership? separate even after the marriage.
a) The spouses;
b) Their common children, legitimate or illegitimate; and Q: How are advances for support of illegitimate children of one spouse
c) The legitimate children of either spouse. treated under ACP?
Under the ACP regime, no such condition is imposed. That is, the support
Q: What does support include? of illegitimate children of one spouse can be advanced directly from the
Support comprises everything indispensable for sustenance, dwelling, absolute community property (if there is no separate property or if such
clothing, medical attendance, education and transportation, in keeping with property is insufficient) as one of the listed charges under Article 94, without
the financial capacity of the family. (Article194) first satisfying obligations to other creditors.

Q: Why is there no such condition imposed under ACP? 1. By agreement of the spouses in the marriage settlement;
The reason for this is that under the ACP regime, there is only a slight 2. Where the other spouse is incapacitated or otherwise unable to
chance that the spouse obliged to give support to his/her illegitimate participate in the administration of the ACP/CPG;
children has separate properties, since almost all of his/her properties at the 3. Where the court grants sole administration to one spouse because
time of the marriage are brought into the community property. of abandonment, mismanagement, failure to comply with
obligations to the family, etc.
DEAN DEL-CASTILLO: The imposition of the condition under the CPG
(Article 122 with respect to support of illegitimate children of one spouse) is Q: When are the debts/obligations incurred by the administrator-spouse
based on the assumption that such spouse has sufficient separate properties. chargeable to the ACP/CPG?
This is an assumption made by the law which does not properly consider the The debts/obligations incurred by the administrator-spouse are chargeable
fact that many couples enter into a marriage without any property of their to the ACP or CPG only when such expense is for the benefit of the family.
own, so that even under the CPG property regime the spouses would not
have exclusive properties. Q: When are the debts/obligations incurred by only one spouse, without
the consent of the other, chargeable to the ACP/CPG?
What happens if there are no separate properties or where the conjugal Again, they are chargeable to the ACP/CPG only if such expense has
partnership properties are insufficient to cover even the charges that first benefited the family.
should be satisfied under Article 121? Well, too bad for the illegitimate
children of that spouse. They will not be able to receive support from the NOTE: As long as the debts/obligations are incurred by only one spouse
conjugal properties. (either as the administrator-spouse or because of absence of consent of the
other spouse), there must be benefit to the family in order that they be
Debts and Obligations Contracted DURING the chargeable to the ACP/CPG.
marriage (Articles 94 [2], [3] for ACP and 121 [2], [3] for CPG)
Q: Why must there be benefit to the family in these cases?
Q: What are the 4 situations covered by debts contracted DURING the As only one spouse is in effect incurring the debt, there is no presumption
marriage? that the expense was for the benefit of the family. The spouse involved
1. Where the administrator-spouse alone entered into the obligation; could be incurring the debt for his/her exclusive benefit. Moreover, the
2. Where both spouses contracted the debt; spouses have joint administration under the Family Code, and one should
3. Where one spouse incurred the debt with the consent of the other; not act without the consent of the other. [Sempio-Diy]
4. Where one spouse contracted the debt without the consent of the
other. Q: Who has the burden of proving that the debt/obligation is for the
benefit of the family?
Q: How else can these 4 situations be classified? The creditor.
They can be classified basically into 2 groups, to wit?
1. Where only one spouse incurred the debt/obligation – Q: What if the creditor fails to prove that the family benefited?
a) As the administrator-spouse, or Then the debt or obligation can be charged only against the separate
b) Without the consent of the other spouse. property of the spouse who incurred the debt. (See Wong vs. IAC, infra)
2. Where both spouses incurred the debt/obligation –
a) Both spouses contracted the debt; or Q: Must debts/obligations incurred by both spouses be proven to be for
b) One spouse contracted the debt with the consent of the the benefit of the family?
other. NO. Where both spouses incur the debt or where one does so with the
consent of the other, the presumption is that such debt was incurred for the
Q: When does one spouse become the administrator-spouse?
benefit of the family. Therefore, the creditor need not prove the benefit to
the family in order that the debt be chargeable to the ACP/CPG. Q: What are minor repairs?
Minor repairs are those for mere preservation of the property or those
DEAN DEL-CASTILLO: This is the reason why creditors required both caused by ordinary wear and tear.
spouses to sign a loan instrument (under the phrase “with marital consent”),
precisely so that the creditor can enforce the obligation against the Q: Are taxes and expenses on separate properties also chargeable to the
ACP/CPG and dispensing with the requirement of proving benefit to the ACP or CPG?
family. It depends. The rule is different depending on whether the property regime
is ACP or CPG. (Compare Article 94 [5] and Article 121 [5])
COMMENT: What is the common denominator of these cases? According to
Dean, if the loan is incurred by one spouse for business purposes (i.e. to Under ACP, taxes and expenses for mere preservation are chargeable to the
finance his/her business), for as long as the business itself supports the ACP when made upon separate property of either spouse used by the
family in some way, then such loan or other obligation is for the benefit of family. Under CPG, there is no such qualification that the separate property
the family and is chargeable to the ACP/CPG. The loan itself need not be used by the family.
benefit the family to be chargeable to the ACP/CPG.
Q: What is the reason behind this distinction as regards separate property
NOTES: of the ACP?
- Look at the nature of the transaction and not the actual result. The reason for the distinction is that the conjugal partnership is the
- If he/she went into the business with the view of benefiting the usufructuary of all separate properties of the spouses and is entitled to all
family = chargeable. their fruits; hence, it is required to pay for all taxes and expenses for mere
preservation on said properties since such would really benefit the family.
Taxes, Liens, Charges, Expenses and Repairs on Property
(Articles 94 [4], [5] for ACP and 121 [4], [5] for CPG) In ACP however, the absolute community is not entitled to the fruits of all
properties excluded from the community under Art. 92. Therefore, it has no
Q: When are taxes, liens, charges and expenses upon properties chargeable obligation to pay for the taxes and expenses of preservation of separate
to the ACP/CPG? properties of the spouses, except only if it is using said properties. (Sempio-
Diy)
These are chargeable to the ACP/CPG whenever they are made upon either
community properties or conjugal properties. Q: What kind of expenses on separate properties are chargeable to the
ACP/CPG?
NOTE: Expenses on separate properties which are chargeable to the ACP/CPG are
1. Taxes here include those on the community/conjugal property itself limited to those for mere preservation or for minor repairs. Major repairs
and also on its fruits, since the fruits of these properties also belong to should already be paid by the owner-spouse (Sempio-Diy). Useful or
the ACP/CPG. luxurious expenses on separate properties are also not chargeable to the
2. Most taxes are treated as expenses for mere preservation. ACP/CPG (old reviewer)
3. Repairs on community/conjugal properties are borne by the ACP/CPG,
whether major or minor. Q: Cite an example of this situation.
A building exclusively owned by the wife was completely burned. If she
Q: What are major repairs? would like to reconstruct the building, she will have to pay with her own
Major repairs are those caused by extraordinary events such as storms, exclusive money, since that is no longer an expense for mere preservation
floods, earthquakes, fire, etc., affecting the substance and not just the but an extraordinary or major repair.
enjoyment of the property.
Q: What if the antenuptial debt did not redound to the benefit of the family
6.1.4. Expenses for professional, vocational or self-improvement (such as fines and damages)?
course of either spouse [Articles 94 (6) for ACP and 121 (6) for CPG] Under ACP, if the antenuptial debt did not redound to the benefit of the
family, the applicable law is Art. 94 (9). That is, such antenuptial debt will be
Q: What is included in “activity for self-improvement”? charged to the ACP in case of absence or insufficiency of the exclusive
Self-improvement activities include seminars, lectures, speech power property of the debtor-spouse.
lessons, self-defense courses, cooking lessons, etc. (Sempio-Diy)
Under CPG, if the antenuptial debt did not benefit the family, the applicable
DEAN DEL CASTILLO: “Self-improvement” could also cover Rotary Club rule is Art. 122, par. 3. That is, such antenuptial debt will be charged against
membership and golf club dues, where the spouse concerned uses these the CPG in case of absence or insufficiency of the separate property of the
activities to meet clients. Beauty parlor expenses and exercise or weight debtor-spouse and after all other charges against the CPG under Art. 121
control courses could also be charged to the ACP/CPG, especially if the have been covered.
spouse is in a profession where he/she needs to meet people and look
presentable (like models, insurance agents). Where such antenuptial debt did not benefit the family but is still properly
charged against the ACP/CPG, this is treated as an advance from the
Q: What is the intention of the law in providing for this? community property or conjugal partnership, the same to be repaid upon
The intention of the law is to encourage the spouses to improve themselves liquidation by the debtor-spouse.
for the benefit not only of their families but of the nation as a whole
(Sempio-Diy) 6.1.6. Donations by spouses to children [Articles 94 (8) for ACP
and 121 (8) for CPG]
6.1.5. Antenuptial debts that benefited the family [Articles 94 (7)
for ACP and 121 (7) for CPG] Q: What are the requisites under this provision?
1. the donation or promise is made by both spouses;
Q: What are “antenuptial debts”? 2. during the marriage;
3. in favor of their common legitimate children; --excludes illegitimate
These refer to obligations entered into by either spouse before the children; must be both common and legitimate
celebration of the marriage. 4. for the exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-
Q: When are antenuptial debts of either spouse chargeable to the improvement
ACP/CPG?
They are chargeable to the ACP or CPG when such have redounded to the All these requisites must concur in order that the value of what is donated or
benefit of the family. promised by the spouses be chargeable to the ACP or CPG.
Q: Cite examples. DEAN DEL CASTILLO: Educational expenses already fall under support so
1. expenses incurred by the wife on a building owned by her before this provision really covers those expenses other than for tuition or school.
the marriage but which became community property after the For instance, if the spouses donate a car to their son so that he can get to and
marriage from school, the value of the car would be chargeable to the ACP/CPG if
2. loans incurred by the husband before the marriage for the purchase they can justify the expense as necessary to complete his education.
of the conjugal home or with which to start a business intended for
the support of the family Q: How are donations other than the above treated?

1. donations made by only one spouse are chargeable against the They are chargeable against the ACP/CPG in case of absence or
separate property of that spouse insufficiency of the separate property of the debtor-spouse.
2. donations to third persons can be chargeable to the ACP/CPG if
they are moderate gifts made on the occasion of family rejoicing or Q: Does the treatment differ under ACP or CPG?
demise YES, the treatments are different. Under ACP, liabilities incurred by either
3. donations between spouses are prohibited, except again moderate spouse by reason of a crime or quasi-delict are charged against the
gifts made on the occasion of family rejoicing ACP/CPG as one of the expenses under Art. 94 (9).
6.1.7. Expenses for litigation between spouses [Articles 94 (10) for Under CPG, fines and indemnities imposed upon a spouse are charged
ACP and 121 (9) for CPG] against the ACP/CPG only after the other charges under Art. 121 have been
satisfied.
Q: Cite examples of litigation between spouses.
Actions for declaration of nullity or annulment, legal separation, support, NOTE: The same rule are applied with regards the following: (1) support of
physical injuries or separation of property brought by one spouses versus illegitimate children of only one spouse; (2) antenuptial debts that did not
the other. benefit the family; (3) fines and indemnities or liabilities for crimes or quasi-
delicts.
Q: When are litigation expenses between spouses chargeable to the
ACP/CPG? 6.2. Spouses solidarily liable to creditors with their separate properties
These expenses are chargeable against the ACP/CPG as long as some [Articles 94 and 121, last paragraphs]
ground exists for bringing the suit. It is not necessary that the spouse who
brought the suit actually obtains favorable judgment. Q: What happens where the absolute community or conjugal partnership is
insufficient to cover the enumerated charges?
Q: When are expenses of litigation between spouses not chargeable to the
ACP or CPG? Where either the absolute community or conjugal partnership is insufficient
to cover the foregoing charges, the spouses are then solidarily liable for the
Expenses of litigation between spouses are not chargeable to the ACP or unpaid balance with their separate properties.
CPG where the suit is fond to be groundless.
Q: What is the reason behind this rule?
Q: What is meant by “groundless”? The reason for this rule is that the spouses are normally joint administrators
“Groundless” means that the action brought was baseless. If the spouse ho of the community or conjugal property. Thus, if it incurs more liabilities than
brought the suit did not win solely because of insufficiency of evidence or it can pay, they must answer to creditors in solidum with their separate
failure to prove, the action is not considered to be groundless. properties. (Sempio-Diy)
Q: How are litigation expenses of groundless suits paid? 6.3. Losses/winnings from games of chance and gambling
If the suit is found to be groundless then the costs are paid for by the
separate property if the spouse who brought the action. Absolute Community of Property Conjugal Partnership of Gains
Art. 95. Whatever may be lost Art. 123. Whatever may be lost
6.1.8. Fines and indemnities [Articles 94 (9) for ACP and 122 for during the marriage in any game of during the marriage in any game of
CPG] chance, betting, sweepstakes, or any chance or in betting, sweepstakes, or
other kind of gambling, whether any other kind of gambling whether
Q: When are fines and indemnities chargeable to the ACP of CPG? permitted or prohibited by law, shall permitted or prohibited by law, shall

be borne by the loser and shall not be borne by the loser and shall not
be charged to the community but be charged to the conjugal Q: Does the mere fact of registration in the name of one spouse (i.e. maiden
any winnings therefrom shall form partnership but any winnings name of the wife) create an indisputable presumption that the property
part of the community property. therefrom shall form part of the belongs to such spouse?
conjugal partnership property.
NO. If it is proven that the property was acquired during the marriage, the
Q: How are losses during the marriage in games of chance, betting, presumption of ownership by the absolute community/conjugal partnership
sweepstakes and other kinds of gambling treated? still applies. The mere fact of registration in the name of one spouse does not
These losses are borne by the losing spouse personally and are not charged confer ownership to the person named. The titling of properties merely
against either the community property or conjugal partnership. confirms what is already existent. Thus, should there be proof that the
parties are married and that the property was acquired during the marriage
Q: What about winnings? using money or property owned in common, the property shall be treated as
Winnings from games of chance or gambling, whether permitted or part o the conjugal partnership property or by gratuitous title, in which case,
prohibited by law, become part of the community property or conjugal the property shall be treated as part of the absolute community.
partnership.
But if there is no proof as to when the property was acquired, the courts will
Q: What if the winning ticket in a lottery was given to a spouse by a friend? refuse to apply the presumption. This of course refers merely to cases of
It is believed that the ticket would be considered a donation or property conjugal partnership of gains, where properties acquired before the
acquired by gratuitous title and the winnings therefrom would not form part marriage are considered as separate properties. This is not the case in
of the community property or conjugal partnership (Sempio-Diy) absolute community of property where the general rule is all properties
owned prior to the marriage shall form part of the absolute community,
7. Ownership, Administration and Disposition of Absolute except when proof has been shown that the spouse has had legitimate
Community/Conjugal Partnership Properties descendants prior to the marriage.
a. Presumption of Ownership/Effect of registration in name of one
of the spouses Q: Happy registered conjugal property in his name saying he was married to
Ms. Lomibao, who is actually his mistress. Will it affect the absolute or
7.1. Presumption of ownership/effect of registration in name of one of the conjugal partnership properties because he registered it in his name and
spouses stated that he was married to another person who is not his wife?
Q: What is the presumption with regards ownership of property acquired NO. It is still the property of the absolute/conjugal partnership properties of
during the marriage? the legitimate spouses. The mistress was deemed to have merely held the
It is presumed that the property is part of the absolute community of property in trust for the benefit of the real wife.
property or the conjugal partnership property, as the case may be.
Q: What presumption is created by the registration of the property in the
Q: When does the presumption apply? name of one spouse with the appendage “married to…”?
The presumption applies only when it is proven that the property was
acquired during the marriage and in the absence of proof to the contrary. The appendage does not mean that the property is owned by the
absolute/conjugal partnership property. It may give an indication that it is
Q: Is it possible that there will still be a conflict as to when the property was merely a description. If the spouse under whose name it was registered can
acquired despite the fact that the property is registered? prove that it was acquire using separate funds, it can still be considered as
YES since the date o registration is not necessarily the date of acquisition separate or exclusive property or acquired by gratuitous title.

Lacerna in said certificate of title is merely descriptive of the civil status of
Important points to remember: Martin Lacerna, the registered owner, and does not necessarily prove that
the land is "conjugal" property of Lacerna and petitioner herein. Neither can
Q: When may a spouse / interested party validly invoke the presumption petitioner invoke the presumption established in Article 160 of the Civil
that the disputed property is conjugal? Code that property acquired during the marriage belongs to the conjugal
He/she must first present proof that the disputed property was acquired partnership, there being no proof of her alleged marriage to Martin Lacerna
during the marriage before the same may be deemed conjugal (Mendoza v except that which arises by implication from the aforestated entry in the
Reyes) certificate of title and for the far more compelling reason that the homestead
claim on the land was shown to have been perfected during Martin
Q: If the registration of the property is in the name of one of the spouses Lacerna's previous marriage to a Eustaquia Pichan. Moreover, the
only, what is the effect on the presumption that such property is conjugal? presumption does not operate where there is no showing as to when
a. if the one invoking the presumption failed to show when the property property alleged to be conjugal was acquired.
was acquired, the property belongs exclusively to the spouse in whose In other words, for the presumption to apply, you have to
name the property is registered (Ong v CA) prove 2 things:
b. if the one invoking the presumption has successfully proven that the 1. That the spouses are actually married, which should be
property was indeed acquired during the marriage, the fact that the shown by proof other than the mere statement in the
land is later registered in the name of one of the spouses does not certificate of title as in the case above.
destroy its conjugal nature (Mendoza v Reyes) 2. That the property was acquired during the marriage.
Q: What are some of the instances when the Court ruled that there is no Estonina v. CA
sufficient proof that the disputed property was acquired during the HELD: The presumption under Article 160 of the Civil Code that all
marriage? property of the marriage belongs to the conjugal partnership applies only
when there is proof that the property was acquired during the marriage.
a. mere use of the surname of the husband in the tax declaration of the Otherwise stated, proof of acquisition during the marriage is a condition sine
subject property is not sufficient proof that said property was acquired qua non for the operation of the presumption in favor of the conjugal
during the marriage and is therefore conjugal (Ong v CA) partnership. In the case at bench, the petitioners have been unable to
b. a Torrens title issued to “Martin Lacerna married to Epifania Magallon” present any proof that the property in question was acquired during the
is merely descriptive of civil status of Martin and does not necessarily marriage of Santiago and Consuelo. They anchor their claim solely on the
prove that the land is their conjugal property (Magallon v Montejo, fact that when the title over the land in question was issued, Santiago was
Jocson v CA) already married to Consuelo as evidenced by the registration in the name of
"Santiago Garcia married to Consuelo Gaza". This, however, does not suffice
Magallon v. Montejo to establish the conjugal nature of the property. In Jocson vs. CA, it was held
ISSUE: Whether a supposed wife may claim property to be community that the certificate of title is insufficient.
property on the basis of the title of the supposed husband. The fact that the properties were registered in the name of "Emilio Jocson,
married to Alejandra Poblete" is no proof that the properties were acquired
HELD: NO. From the averments of the petition, it is evident that the during the spouses' coverture. Acquisition of title and registration thereof
petitioner Epifania Magallon relies mainly, if not solely, on the fact that the are two different acts. It is well settled that registration does not confer title
certificate of title to the land carries her name as the "wife" of the owner but merely confirms one already existing… It may be that the properties
named therein, Martin Lacerna. The certificate of homestead stated: "... under dispute were acquired by Emilio Jocson when he was still a bachelor
MARTIN LACERNA, Filipino, of legal age, married to Epifania Magallon ..." but were registered only after his marriage to Alejandra Poblete, which
The phrase "married to Epifania Magallon written after the name of Martin

explains why he was described in the certificates of title as married to the The paraphernal or conjugal nature of the property is not determinative of
latter. the ownership of the disputed property. If the property was paraphernal as
Contrary to petitioner's position, the certificates of title show, on their face, contended by petitioners, Gertrudes would have the absolute right to
that the properties were exclusively Emilio Jocson's, the registered owner. dispose of the same, and absolute title and ownership was vested in
This is so because the words "married to" preceding "Alejandra Poblete" are petitioners upon the failure of Gertrudes to redeem the property. On the
merely descriptive of the civil status of Emilio Jocson … In other words, the other hand, if the property was conjugal as private respondents maintain,
import from the certificates of title is that Emilio Jocson is the owner of the upon the death of Adriano Leis, the conjugal partnership was terminated,
properties, the same having been registered in his name alone, and that he is entitling Gertrudes to one-half of the property. Adriano's rights to the other
married to Alejandra Poblete. half, in turn, were transmitted upon his death to his heirs, which includes his
widow Gertrudes, who is entitled to the same share as that of each of the
Cruz v. Leis legitimate children. Thus, as a result of the death of Adriano, a regime of co-
FACTS: After the marriage of Adriano and Gertrudes, the latter acquired ownership arose between Gertrudes and the other heirs in relation to the
from the then Department of Agriculture and Natural Resources (DANR) a property.
parcel of land. The Deed of Sale described Gertrudes as a widow, and Incidentally, there is no merit in petitioners' contention that Gertrudes'
subsequently, a TCT was issued in the name of "Gertrudes Isidro," who was redemption of the property from the Daily Savings Bank vested in
also referred to therein as a "widow." Adriano died. ownership over the same to the exclusion of her co-owners. We dismissed
Thereafter, Gertrudes obtained a loan from petitioner-spouses. For failure of the same argument by one of the petitioners in Paulmitan vs. Court of Appeals,
Gertrudes, however, to repurchase the property in due time (she tried to where one of the petitioners therein claimed ownership of the entire
repurchase but did it beyond the prescribed period), ownership thereof was property subject of the case by virtue of her redemption thereof after the
consolidated in the name of Alexander Cruz in whose name a TCT was same was forfeited in favor of the provincial government for non-payment
issued, canceling the TCT in the name of Gertrudes. Meanwhile, prior to the of taxes. We held however, that the redemption of the land "did not
said consolidation of ownership, part of the property was disposed of to terminate the co-ownership nor give her title to the entire land subject of the
different persons. co-ownership."
A distinction of WON the property is conjugal is important as it will
determine how much of the property could have properly been disposed of
by Gertrudes and the heirs (private respondents) of Adriano in favor of Anno v. Anno
other persons, and how much of the property was transferred to petitioner- FACTS: During the marriage of petitioner Dolores Pintiano-Anno and
spouses for failure of Gertrudes to repurchase it. respondent Albert Anno (spouses Anno), they acquired a 4-hectare public,
unregistered, virgin, agricultural land in Lamut, Becket, La Trinidad,
ISSUE: WON the property is conjugal property of the spouses Adriano and Benguet. In 1974, the land was declared for tax purposes solely in the name
Gertrudes. of her husband, respondent Albert Anno, under the tax declaration.
Respondent thereafter sold the property, and in the documents he declared
HELD: YES. The RTC rendered a decision in favor of private respondents, that he is the lawful owner and possessor of the subject land. Thus, such
holding that the land was conjugal property since the evidence presented by documents of transfer did not bear the signature and written consent of
private respondents disclosed that the same was acquired during the petitioner as the wife of the vendor, respondent Albert.
marriage of the spouses and that Adriano contributed money for the
purchase of the property. Thus, the court concluded, Gertrudes could only ISSUE: Whether the subject land belongs to the conjugal partnership of gains
sell to petitioner spouses her one-half share in the property. The Court of of spouses Anno and thus cannot be validly conveyed by one spouse
Appeals affirmed, holding that since the property was acquired during the without the consent of the other.
marriage of Gertrudes to Adriano, the same was presumed to be conjugal
property under Article 160 of the Civil Code.

HELD: NO, it is not conjugal, petitioner failed to show when the property written consent of the other spouse. In the absence of such authority or
was acquired by her and her spouse. consent, the disposition or encumbrance shall be void. However, the
Indeed, all property of the marriage is presumed to be conjugal in nature. transaction shall be construed as a continuing offer on the part of the
However, for this presumption to apply, the party who invokes it must first consenting spouse and the third person, and may be perfected as a
prove that the property was acquired during the marriage. Proof of binding contract upon the acceptance by the other spouse or authorization
acquisition during the coverture is a condition sine qua non to the operation by the court before the offer is withdrawn by either or both offerors.
of the presumption in favor of the conjugal partnership.
To prove that spouses Anno acquired the subject land during their marriage, Art. 124. The administration and enjoyment of the conjugal partnership
petitioner presented her 1963 marriage contract with respondent Albert and shall belong to both spouses jointly. In case of disagreement, the
the initial 1974 tax declaration over the property. She likewise testified that husband's decision shall prevail, subject to recourse to the court by the
she and her husband diligently paid the taxes thereon and worked on the wife for proper remedy, which must be availed of within five years from
land. However, a careful examination of the records shows that petitioner’s the date of the contract implementing such decision.
evidence failed to prove that the subject land belongs to the conjugal
In the event that one spouse is incapacitated or otherwise unable to
partnership of spouses Anno. Petitioner did not identify, either by
participate in the administration of the conjugal properties, the other
testimonial or documentary evidence, when she and her husband,
spouse may assume sole powers of administration. These powers do not
respondent Albert, first occupied and possessed the land. While the initial
include disposition or encumbrance without authority of the court or the
tax declaration she presented was dated 1974, it cannot be automatically
written consent of the other spouse. In the absence of such authority or
deduced therefrom that occupation of the subject land was likewise done in
consent, the disposition or encumbrance shall be void. However, the
the same year. To so conclude will amount to speculation or conjecture on
transaction shall be construed as a continuing offer on the part of the
the part of the court. As correctly pointed out by the appellate court, consenting spouse and the third person, and may be perfected as a
declaration of a land for taxation purposes cannot be equated with its binding contract upon the acceptance by the other spouse or authorization
acquisition for, in the ordinary course of things, occupation of a piece of land by the court before the offer is withdrawn by either or both offerors.
usually comes prior to the act of declaring it for tax purposes. More
importantly, the 1974 tax declaration presented by petitioner cannot be Q: Who are charged with the administration of the community/conjugal
made a basis to prove its conjugal nature as the land was declared for tax partnership property?
purposes solely in the name of her husband, respondent Albert, who sold
the land as his exclusive property. In a long line of cases, this Court has held The administration of community/conjugal partnership property belongs to
that tax declarations, especially of untitled lands, are credible proof of claim both spouses jointly. This means that both spouses administer together, or
of ownership and are good indicia of possession in the concept of an owner. each spouse may administer with the consent of the other, expressly or
impliedly.
b. Joint Administration
However, should the administration be entrusted to only one spouse with
Art. 96. The administration and enjoyment of the community property the consent of the other, it is necessary for the administrator-spouse to
shall belong to both spouses jointly. In case of disagreement, the
obtain written consent of the other spouse in entering into contracts which
husband's decision shall prevail, subject to recourse to the court by the
either disposes or creates an encumbrance over the community/conjugal
wife for proper remedy, which must be availed of within five years from
partnership property. Otherwise, the contract shall be void. This rule applies
the date of the contract implementing such decision.
regardless of the nature of the property and the amount involved.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other Q: Does the rule on joint administration apply as well to marriages
spouse may assume sole powers of administration. These powers do not celebrated prior to the effectivity of the Family Code?
include disposition or encumbrance without authority of the court or the YES. The same rule applies to marriages celebrated during the Civil Code.

spouse may assume sole powers of administration, which do not, however,
i) Disagreement include the powers of disposition or encumbrance.
Q: What happens in case of disagreement between the spouses? Q: In the case presented above, how will the administrator spouse dispose or
In case of disagreement between the spouses, the decision of the husband create an encumbrance over the property?
shall prevail, subject to recourse to the court by the wife for a proper The administrator spouse must either seek authority from the courts or
remedy. Should the wife decide not to go to court, this implies that she obtain the written consent of the other spouse.
already agreed to the decision of the husband.
Q: What is the state of a contract entered into by the administrator spouse
Q: Within what period should the wife seek recourse to the courts? without authority from the courts nor the written consent of the other
The wife has within 5 years from the date of the contract implementing the spouse?
questioned decision to seek recourse to the court. In the absence of such authority or consent, the disposition or encumbrance
shall be VOID.
Q: What is the proper relief to be granted by the court?
The court cannot impose its own decision over that of the spouses. The court Q: Will such void contract ever ripen into a valid contract?
can not supplant the husband’s decision. It must choose between the options YES. The transaction entered into, despite being void, shall be construed as a
proposed by the parties. If the husband’s decision was erroneous but was continuing offer on the part if the consenting spouse and the third person,
the result of his honest judgment, it should be nullified by the court. and may be perfected as a biding contract upon the acceptance by the other
spouse or authorization by the court before the offer is withdrawn by either
Q: Can the wife seek relief from the courts even prior to the perfection of the or both offerors.
contract implementing the decision?
YES. The wife may go to court even before the husband implements his Reyes v. Alejandro
decision on an action for injunction to stop the husband form implementing FACTS: Erlinda Reynoso filed a petition praying for the declaration of the
his decision. absence of her husband Roberto L. Reyes alleging that her husband had
been absent from their conjugal dwelling since April 1962 and since then
Q: Can the party with whom the husband contracted use as a defense his had not been heard from and his whereabouts unknown. The petition
being a third party to the dispute between the husband and the wife? further alleged that her husband left no will nor any property in his name
NO. Third persons who deal with the husband cannot complain if the nor any debts. She stated that her only purpose in filing the petition is to
contract is set aside by the court, for by dealing with the husband without establish the absence of her husband, invoking Article 384 of the Civil Code,
the consent of the wife, they are forewarned that the wife is given by law the among others.
right to question the transaction in court.
ISSUE: May a petition to have a spouse judicially declared an absentee
ii) Sole/Transfer of Administration prosper if the absentee spouse has left no properties?
Q: Should any of the spouses be incapacitated or otherwise unable to HELD: NO. The need to have a person judicially declared an absentee is
participate in the administration of the common properties can the when he has properties which have to be taken cared of or administered by
capacitated spouse be the sole administrator of the same? a representative appointed by the Court (Article 384, Civil Code); the spouse
of the absentee is asking for separation of property (Article 191, Civil Code)
YES. In the event that one spouse is incapacitated or otherwise unable to or his wife is asking the Court that the administration of property in the
participate in the administration of the community property, then the other marriage be transferred to her (Article 196, Civil Code). The petition to

declare the husband an absentee and the petition to place the management Rules of Court. Consequently, a spouse who desires to sell real property
of the conjugal properties in the hands of the wife may be combined and as such administrator of the conjugal property must observe the
adjudicated in the same proceedings. procedure for the sale of the ward’s estate required of judicial guardians
It will thus be noted that said provisions of the New Civil Code are under Rule 95, 1964 Revised Rules of Court, not the summary judicial
concerned with absence only with reference to its effects on property. The proceedings under the Family Code.
primordial purpose of this declaration is to provide for an administrator of
the property of the absentee. c. Dispositions/Donations
Uy v. CA Art. 97. Either spouse may dispose by will of his or her interest in the
ISSUE: Whether petitioner Gilda L. Jardeleza as the wife of Ernesto community property.
Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering
him comatose, without motor and mental faculties, and could not manage Q: Can either spouse specify in his or her will that he or she bequeaths to a
their conjugal partnership property may assume sole powers of certain person a specific property owned by them in common?
administration of the conjugal property under Article 124 of the Family NO. The law in providing that either spouse may make a disposition by will
Code and dispose of a parcel of land with its improvements, worth more made reference only to the interest of the respective spouses in the
than twelve million pesos, with the approval of the court in a summary community property.
proceedings, to her co-petitioners, her own daughter and son-in-law, for
the amount of eight million pesos. Q: Why is the authority to dispose by will limited only to the interest of
either spouse in the community property?
HELD: NO, the procedural rules on summary proceedings in relation to The will should refer only to the share of either spouse in their absolute
Article 124 of the Family Code are not applicable. Because Dr. Jardeleza, community, since it is not yet known at the time of the making of the will
Sr. was unable to take care of himself and manage the conjugal property whether such specific property will be adjudicated to the deceased spouse or
due to illness that had rendered him comatose, the proper remedy was the not at the time of the liquidation of the absolute community.
appointment of a judicial guardian of the person or estate or both of such
incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court. Q: Should the disposition in the will refer to a specific property, is the
In regular manner, the rules on summary judicial proceedings under the disposition deemed ineffective?
Family Code govern the proceedings under Article 124 of the Family NOT NECESSARILY. If said specific property is adjudicated to the
Code. The situation contemplated is one where the spouse is absent, or deceased spouse then the disposition can be given effect.
separated in fact or has abandoned the other or consent is withheld or
cannot be obtained. Such rules do not apply to cases where the non- Art. 98. Neither spouse may donate any community property without the
consenting spouse is incapacitated or incompetent to give consent. In this consent of the other. However, either spouse may, without the consent of
case, the trial court found that the subject spouse "is an incompetent" who the other, make moderate donations from the community property for
was in comatose or semi-comatose condition, a victim of stroke, charity or on occasions of family rejoicing or family distress.
cerebrovascular accident, without motor and mental faculties, and with a
diagnosis of brain stem infarct. In such case, the proper remedy is a Art. 125. Neither spouse may donate any conjugal partnership property
judicial guardianship proceedings under Rule 93 of the 1964 Revised without the consent of the other. However, either spouse may, without the
Rules of Court. consent of the other, make moderate donations from the conjugal
partnership property for charity or on occasions of family rejoicing or
Even assuming that the rules of summary judicial proceedings under the
family distress.
Family Code may apply to the wife's administration of the conjugal
property, the law provides that the wife who assumes sole powers of
Q: Can either spouse donate community property without the consent of the
administration has the same powers and duties as a guardian under the
other?
NO. Neither spouse may donate community property without the consent of Art. 142. The administration of all classes of exclusive property of either
the other. spouse may be transferred by the court to the other spouse:
Q: What is the nature of a donation made by one spouse without the consent (1) When one spouse becomes the guardian of the other;
of the other? (2) When one spouse is judicially declared an absentee;
The donation made by one spouse without the consent of the other shall be (3) When one spouse is sentenced to a penalty which carries with it
void. civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as
Q: What is the nature of a donation made by the husband to his mistress? an accused in a criminal case.
The donation shall be void not only by virtue of Art. 98 but also by virtue of
Art. 739 of the Civil Code. 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
Q: Within what period of time must the non-consenting spouse seek for the to be the administrator.
declaration of the inexistence of the donation?
There is n period. The donation being void is totally inexistent, thus the Q: As a general rule, who owns, administers and disposes of his/her own
action or defense for the declaration of its inexistence is imprescriptible exclusive property?
The owner-spouse is the one who owns, administers and disposes of his/her
Q: What are the exceptions to the general rule that donations made by one own exclusive properties.
spouse without the consent of the other is void?
1. moderate donations to charity; Q: When can the separate property be held liable for common debts?
2. moderate donations on occasions of family rejoicing or family
distress; and If the community/conjugal partnership is insolvent or insufficient to cover
3. Moderate gifts of the spouses to each other on the occasion of any common debts, one can petition the court to enforce such liabilities against
family rejoicing. the separate property of either spouse.
Q: What is a “moderate” gift? Q: May the administration of the exclusive property of one spouse be
A gift is moderate depending on the: transferred to the other spouse?
1. financial circumstances of the couple; YES. The administration of all classes of exclusive property of either spouse
2. value of the property donated; may be transferred by the court to the other spouse in the following cases:
3. their social position 1. when one spouse becomes the guardian of the other;
2. when one spouse is judicially declared an absentee;
Q: Does the prohibition on donations between spouses apply to parties 3. when one spouse is sentenced to a penalty which carries with it
living together as husband and wife without a valid marriage? Why? civil interdiction; or
YES. The same prohibition should lie for the following reasons: 4. When one spouse becomes a fugitive from justice or is hiding as an
1. the possibility of undue influence between the parties; and accused in a criminal case.
2. those living in guilt would turn out to be in a better position than
those in legal union if the prohibition is not applied to them Q: What if the other spouse has a low IQ and is not capable of administering
any property?
8. Ownership, Administration and Disposition of Article 142 of the Family Code provides that if the other spouse is not
Separate/Exclusive Properties qualified by reason of incompetence or any other just cause, the court shall
appoint a suitable person to be the administrator. Hence, the exclusive
property of one spouse may also be administered by a third person
Q: What is the difference between the transfer of administration of HELD: NO. Under Arts. 136-137 of the old CC, the wife retains ownership
exclusive/separate properties from one spouse to the other and the of paraphernal property, and the only way that the husband shall have
assumption of sole administration of conjugal properties by one spouse (Art. administration over it is if the wife delivers the same to the husband by
96 and 124, FC) means of a public instrument, recorded in the Registry of Property,
empowering the latter to administer such property. There is nothing in the
Sole administration by one spouse of the absolute community or conjugal records that will show that Vicente was the administrator of the paraphernal
properties can be done without need of court approval if the other spouse is properties of Clara during the lifetime of the latter. Thus, it cannot be said
incapacitated or when one spouse is otherwise unable to participate in the that the sale which was entered into by Felipe and Vicente had its inception
administration of their common properties. There is no need for court before the death of Clara and was entered into by the former for and on
authorization in this case because the spouses have joint administration of behalf of the latter, but was only consummated after her death. Vicente,
the community or conjugal properties so that if one of them is incapacitated therefore, could not have validly disposed of the lot in dispute as a
or, for any other reason, cannot participate in such administration, the other continuing administrator of the paraphernal properties of Clara.
spouse can assume sole administration of their common properties (Sempio- It is also undisputed that the probate court appointed Vicente as
Diy, p. 200) administrator of the estate only 3 months after the sale had taken place. The
inevitable conclusion is, therefore, that the sale between Vicente and Felipe
Q: May one spouse dispose of the separate property of the other spouse? is void ab initio, the former being neither an owner nor administrator of the
NO. Only the owner-spouse can dispose of his/her separate properties. subject property.
Pursuant to Sec. 1, Rule 89 of the Rules of Court, after the appointment of
Q: H, husband of W, owns as part of his exclusive properties a large house Vicente as administrator of the estate of Clara, he should have applied
worth P10M. H was later convicted for murder and sentenced to reclusion before the probate court for authority to sell the disputed property in favor
perpetua. W petitioned and was granted administration of H’s exclusive of Felipe. If the probate court approved the request, then Vicente would
properties including the house. She then offered to sell it to X. when have been able to execute a valid deed of sale in favor of the Felipe.
questioned by X as regards her authority to sell the house, she claims that as Unfortunately, there was no effort on the part of the administrator to comply
an administrator she had authority to sell the house. Is her contention with the above-quoted rule of procedure, nor on that of Felipe to protect his
correct? interests.
NO. What Art. 142 of the Family Code grants to the transferee is only the 9. Dissolution of the Absolute Community/Conjugal Partnership
right of administration. As such, the transferee may not exercise acts of
disposition over the property. Art. 99. The absolute community Art. 126. The conjugal partnership
terminates: terminates:
Manotoc Realty Inc. v. CA (1) Upon the death of either (1) Upon the death of either
FACTS: Felipe Madlangawa had been occupying a part of the land owned spouse; spouse;
by Clara Tambunting as the latter’s paraphernal property, with the (2) When there is a decree of legal (2) When there is a decree of legal
understanding that he would eventually buy the lot. Clara died and her separation; separation;
estate was placed under custodia legis. Felipe then made a downpayment to (3) When the marriage is annulled (3) When the marriage is
the husband of Clara, Vicente Legarda, as part of the purchase price of the or declared void; or annulled or declared void; or
property he occupied. Around 3 months later, the court appointed Vicente (4) In case of judicial separation of (4) In case of judicial separation
as a special administrator of the estate. property during the marriage of property during the
under Articles 134 to 138. marriage under Articles 134 to
ISSUE: WON the sale by Vicente to Felipe was valid. 138.

dissolved, but the marriage is dissolved as well. However, in the case of
a. Grounds legal separation and voluntary separation of properties under Arts. 135 and
136, the marriage is not dissolved but the property relationship is.
Q: What are the grounds for the dissolution of the Absolute Community
Property or the Conjugal Partnership of Gains? Partosa-Jo v. CA
1. death of one of the parties; FACTS: The petitioner, Prima Partosa-Jo (wife), had an agreement with the
2. declaration of nullity; private respondent, Ho Hang (husband), for her to temporarily live with her
3. annulment of marriage; parents during the initial period of her pregnancy and for him to visit and
4. legal separation; support her. They never agreed to separate permanently. In 1942, when
5. Voluntary separation of property on account of Arts. 135 and 136 petitioner returned to respondent, the latter refused to accept her. Petitioner
then filed a complaint for judicial separation of conjugal property.
Art. 135. Any of the following shall be considered sufficient cause for
judicial separation of property: ISSUE: WON there’s ground for separation of the CPG.
(1) That the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction; HELD: YES. During the rendition of the judgment of the lower court and
(2) That the spouse of the petitioner has been judicially declared an the CA, the applicable provisions were those under the CC (Art. 78 [3]). The
absentee; SC nonetheless applied the Family Code since upon the time of appeal
(3) That loss of parental authority of the spouse of petitioner has been thereto, said Code had already taken effect. It held:
decreed by the court; …an appellate court, in reviewing a judgment on appeal, will dispose of a
(4) That the spouse of the petitioner has abandoned the latter or failed question according to the law prevailing at the term of such disposition, and
to comply with his or her obligations to the family as provided for in not according to the law prevailing at the time of rendition of the appealed
Article 101; judgment. The court will therefore reverse a judgment which was correct at
(5) That the spouse granted the power of administration in the marriage the time it was originally rendered where, by statute, there has been an
settlements has abused that power; and intermediate change in the law which renders such judgment erroneous at
(6) That at the time of the petition, the spouses have been separated in
the time the case was finally disposed of on appeal.
fact for at least one year and reconciliation is highly improbable.
There are 2 grounds for which an aggrieved spouse may file for judicial
In the cases provided for in Numbers (1), (2) and (3), the presentation of
separation of property under Art. 128 of the FC:
the final judgment against the guilty or absent spouse shall be enough
1. Abandonment by a spouse of the other without just cause; and
basis for the grant of the decree of judicial separation of property. (191a)
2. Failure of one spouse to comply with his or her obligations to the
Art. 136. The spouses may jointly file a verified petition with the court for family without just cause, even if she said spouse does not leave the other
the voluntary dissolution of the absolute community or the conjugal spouse.
partnership of gains, and for the separation of their common properties. Abandonment implies a departure by one spouse with the avowed intent
never to return, followed by prolonged absence without just cause, and
All creditors of the absolute community or of the conjugal partnership of without in the meantime providing in the least for one's family although
gains, as well as the personal creditors of the spouse, shall be listed in the able to do so. There must be absolute cessation of marital relations, duties
petition and notified of the filing thereof. The court shall take measures to and rights, with the intention of perpetual separation.
protect the creditors and other persons with pecuniary interest. The record shows that as early as 1942, the private respondent had already
rejected the petitioner, whom he denied admission to their conjugal home in
NOTE: In the first 3 cases, i.e., death of one of the parties, declaration of Dumaguete City when she returned from Zamboanga. The fact that she was
nullity and annulment of marriage, not only the property relations is not accepted by Ho demonstrates all too clearly that he had no intention of

resuming their conjugal relationship. Moreover, beginning 1968 until the without compliance with the contract a subsequent marriage
determination by this Court of the action for support in 1988, the private foregoing requirements, a without compliance with the
respondent refused to give financial support to the petitioner. The physical mandatory regime of complete foregoing requirements, a
separation of the parties, coupled with the refusal by the private respondent separation of property shall govern mandatory regime of complete
to give support to the petitioner, sufficed to constitute abandonment as a the property relations of the separation of property shall govern
ground for the judicial separation of their conjugal property. subsequent marriage. (n) the property relations of the
In addition, the petitioner may also invoke the second ground allowed by subsequent marriage. (n)
Article 128, for the fact is that he has failed without just cause to comply
with his obligations to the family as husband or parent. Apart form refusing Q: When is the liquidation done in case one of the spouses die?
to admit his lawful wife to their conjugal home in Dumaguete City, Jo has
freely admitted to cohabiting with other women and siring many children In case one of the spouses die, liquidation is done during the settlement of
by them. The private respondent has not established any just cause for his the estate of the deceased spouse. There is no need to institute a separate
refusal to comply with his obligations to his wife as dutiful husband. proceeding because it is part of the settlement proceeding.
Their separation thus falls also squarely under Article 135 (6) FC, providing
as follows: … That at the time of the petition, the spouse have been Under the laws of succession and estate taxation, the first step taken during
separated in fact for at least one year and reconciliation is highly the settlement proceedings of a married person is the liquidation of the
improbable. absolute community property or the conjugal partnership because what is
covered by the rules of succession is only the share of the spouse who died.
Death of one of the parties Thus after liquidation, the estate will be divided into half and only the half-
share of the deceased spouse shall be subjected to settlement proceedings
Art. 103. Upon the termination of Art. 130. Upon the termination of and estate taxes. The other half, on the other hand, will pass on to the
the marriage by death, the the marriage by death, the conjugal surviving spouse as his rightful share. Thus, the procedure followed is the
community property shall be partnership property shall be same procedure provided under the rules of succession.
liquidated in the same proceeding liquidated in the same proceeding
for the settlement of the estate of for the settlement of the estate of Q: What are the different ways of liquidating the Absolute Community
the deceased. the deceased. Property of the Conjugal Partnership of Gains under this ground?
1. by judicial liquidation (no time limit)
If no judicial settlement proceeding If no judicial settlement proceeding 2. by extrajudicial liquidation under Rule 74 of the Revised Rules of
is instituted, the surviving spouse is instituted, the surviving spouse court (within 1 year)
shall liquidate the community shall liquidate the conjugal
property either judicially or extra- partnership property either Q: When must liquidation be completed?
judicially within six months from judicially or extra-judicially within The surviving spouse must liquidate the community property either
the death of the deceased spouse. If six months from the death of the judicially or extrajudicially within one year from the death of the deceased
upon the lapse of the six months deceased spouse. If upon the lapse spouse.
period, no liquidation is made, any of the six-month period no
disposition or encumbrance liquidation is made, any As a general rule, liquidation must be done within one year. However, if
involving the community property disposition or encumbrance judicial settlement proceeding is instituted then the prescriptive period does
of the terminated marriage shall be involving the conjugal partnership not apply because such proceedings normally take longer than a year.
void. property of the terminated marriage
shall be void.
Q: A died on Nov. 1, 1994. His wife B failed to liquidate their conjugal
Should the surviving spouse
property (no judicial settlement). On Nov. 1, 1995, B sold a parcel of land
contract a subsequent marriage Should the surviving spouse

belonging to their conjugal property to C. On Nov. 2, 1996, B married C. Art. 50. (2nd and 3rd paragraph)
How would B’s failure to liquidate their conjugal property affect such
transactions? The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody and
Failure to liquidate the conjugal property within one year results to the support of the common children, and the delivery of third presumptive
following consequences: legitimes, unless such matters had been adjudicated in previous judicial
proceedings.
First: Any disposition or encumbrance involving the community property of
the terminated marriage shall be void. Hence the sale of the parcel of land by All creditors of the spouses as well as of the absolute community or the
B to C is void. conjugal partnership shall be notified of the proceedings for liquidation.
Second: Should the surviving spouse contract a second marriage, a Art. 51. (1st paragraph) In said partition, the value of the presumptive
mandatory regime of complete separation of property shall govern the 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
property relations of the second marriage. Thus, B’s marriage to C is valid
securities, unless the parties, by mutual agreement judicially approved,
but their property relations shall be governed by the complete separation of
had already provided for such matters.
property. Separation of property is necessary to avoid confusion and to
protect the heirs of the first spouse.
Art. 52. The judgment of annulment or of absolute nullity of the marriage,
the partition and distribution of the properties of the spouses and the
Q: A died on Feb. 1984, or 4 yrs before the Family Code (Aug. 3, 1988), but
delivery of the children's presumptive legitimes shall be recorded in the
upon effectivity of the Family Code there has been no liquidation yet, the appropriate civil registry and registries of property; otherwise, the same
surviving spouse must liquidate within one year from the effectivity of the shall not affect third persons. (n)
Family Code. Hence, B must liquidate the conjugal properties on or before
August 3, 1988. (old reviewer) Art. 53. Either of the former spouses may marry again after compliance
with the requirements of the immediately preceding Article; otherwise,
The dissolution must be registered in the registry of property in order to the subsequent marriage shall be null and void.
affect third persons dealing in good faith with the property (old reviewer)
Q: When is liquidation done in case the marriage is annulled or has been
Annulment and Declaration of Nullity of Marriage declared null and void?
Liquidation of the conjugal properties is usually ordered by the court upon
Q: What provisions govern dissolution of conjugal properties due to the promulgation of the final judgment annulling the marriage or declaring the
annulment and declaration of nullity of marriage? marriage null and void. Art. 50 of the Family Code provide that “The final
Art. 43. The termination of the subsequent marriage referred to in the judgment in such cases shall provide for the liquidation, partition and
preceding Article shall produce the following effects: distribution of the properties of the spouses…” Thus, liquidation is done in
the same proceeding for the annulment or declaration of nullity of marriage.
(2) The absolute community of property or the conjugal partnership, as
the case may be, shall be dissolved and liquidated, but if either Q: A and B’s marriage is declared null and void. No liquidation took place
spouse contracted said marriage in bad faith, his or her share of the after the declaration of nullity. B sold a parcel of land to C. is such
net profits of the community property or conjugal partnership
disposition valid? NO.
property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous
Q: A and B’s marriage is annulled. No liquidation took place after the
marriage or in default of children, the innocent spouse;
annulment. B subsequently married C. is such marriage valid?

NO. Art. 53 provide that the subsequent marriage shall be null and void for obtained in a summary obtained in a summary
failure to comply with the requirements of Art. 52. proceeding; proceeding;
(3) In the absence of (3) In the absence of
NOTE: Failure to liquidate within one year because of the death of a spouse sufficient community sufficient conjugal
does not render a subsequent marriage void but only imposes the regime of property, the separate partnership property, the
separation of property to govern the property relations of the second property of both spouses separate property of both
marriage. On the other hand, failure to liquidate after an annulment or shall be solidarily liable spouses shall be
declaration of nullity renders the subsequent marriage void due to Arts. 52 for the support of the solidarily liable for the
and 53. family. The spouse support of the family.
present shall, upon The spouse present shall,
Legal Separation proper petition in a upon proper petition in a
summary proceeding, be summary proceeding, be
Q: When is liquidation done in cases of legal separation? given judicial authority given judicial authority
Art. 63. The decree of legal separation shall have the following effects: to administer or to administer or
encumber any specific encumber any specific
(2) The absolute community or the conjugal partnership shall be separate property of the separate property of the
dissolved and liquidated but the offending spouse shall have no right other spouse and use the other spouse and use the
to any share of the net profits earned by the absolute community or fruits or proceeds thereof fruits or proceeds thereof
the conjugal partnership, which shall be forfeited in accordance with to satisfy the latter’s to satisfy the latter’s
the provisions of Article 43(2); share (178a) share. (178a)
Q: A and B are legally separated. No liquidation was done after the legal Q: When is there Separation in Fact or Separation De Facto?
separation. B sold a parcel of land belonging to the absolute community By separation in fact of de facto between the spouses is meant that they are
property. Is such sale valid? NO. no longer living together, ie., their cohabitation or common life under the
same roof is terminated, although there is no legal separation between them.
b. Separation with dissolution- effects The absolute community property or conjugal partnership property between
the spouses is not affected by their separation de facto except as provided in
Article 100. The separation in fact Article 127. The separation in fact Art. 100. [Sempio-Diy]
between husband and wife shall between husband an wife shall not
not affect the regime of absolute affect the regime of conjugal Q: Happy and Marife were separated because of Happy’s infidelities.
community except that: partnership except that: Happy left the conjugal home and decided to live with his mistress. Every
(1) The spouse who leaves (1) The spouse who leaves 15th or 30th of the month, however, Happy would wait for Marife to ask for
the conjugal home or the conjugal home or money. He claims that since their marriage is not yet terminated, he is still
refuses to live therein, refuses to live therein, entitled to support. Is Happy’s contention correct?
without just cause, shall without just cause, shall
not have the right to be not have the right to be NO. The spouse who leaves the conjugal home or refuses to live therein
supported; supported; without just cause does not have the right to be supported.
(2) When the consent of one (2) When the consent of one
spouse to any transaction spouse to any transaction
of the other is required of the other is required Q: Given the same facts above, is Marife, however, entitled to support from
by law, judicial by law, judicial Happy?
authorization shall be authorization shall be

YES. Though Happy is not entitled to support from Marife, his obligation to precautionary conditions as the subject to such precautionary
support Marife if the latter needs support, is not, however, extinguished. court may impose. conditions as the court may impose.
The obligations to the family The obligations to the family
Q: Marife desires to sell an apartment belonging to the absolute community mentioned in the preceding mentioned in the preceding
property. Does she still need the consent of Happy to make such disposition paragraph refer to marital, parental paragraph refer to marital, parental
valid? or property relations. or property relations.
YES. It must be emphasized that the absolute community has not yet A spouse is deemed to have A spouse is deemed to have
terminated by virtue of the separation. Since the law requires that any abandoned the other when he or abandoned the other when he or
disposition of the absolute community requires the consent of both spouses she has left the conjugal dwelling she has left the conjugal dwelling
then Happy’s consent must be obtained to make the disposition valid. without any intention of returning. without any intention of returning.
However, if Happy refuses to give his consent or is not available to give the The spouse who has left the The spouse who has left the
required consent, then authorization may be obtained from the court in a conjugal dwelling without any conjugal dwelling without any
summary proceeding. intention of returning. The spouse intention of returning. The spouse
who has left the conjugal dwelling who has left the conjugal dwelling
Q: How will the family of Happy and Marife be financially supported? for a period of three months or has for a period of three months or has
failed within the same period to failed within the same period to
give any information as to his or give any information as to his or
1. Support of the family will be taken from the absolute
her whereabouts shall be prima her whereabouts shall be prima
community property.
facie presumed to have no facie presumed to have no
2. If the community property is insufficient for such support
intention of returning to the intention of returning to the
or in the absence of community property, the separate
conjugal dwelling. (178a) conjugal dwelling. (167a, 191a)
properties of the spouses shall be solidarily liable for the
support of the family.
3. If it is necessary to administer or encumber any specific
Q: distinguish Separation De Facto from Abandonment.
separate property of the spouse who has left for the
Separation de facto is, as already stated, the termination of the cohabitation or
support of the family, the spouse present, may upon
common life of the spouses under the same roof, but the spouses might still
proper petition in a summary proceeding, ask for judicial
be complying with their mutual duty of support, as well as their duty to
authority to administer or share encumber such property
support and maintain the children.
and use its fruits or proceeds to satisfy the share of the
Abandonment on the other hand, is not mere separation de facto but implies
other spouse in the support of the family. And if the
an intention never to return to the conjugal home and without providing for
present spouse has no separate property at all, the support
the needs and maintenance of one’s family.
of the family shall come solely from the fruits or proceeds
of the separate properties of the other spouse.
Q: In case of abandonment, what is the remedy available to the present
spouse?
Article 101. If a spouse without just Article 128. If a spouse without just
In such case, the present spouse may petition the court for:
cause abandons the other or fails to cause abandons the other or fails to
(a) receivership
comply with his or her obligations comply with his or her obligations
(b) judicial separation of property; or
to the family, the aggrieved spouse to the family, the aggrieved spouse
(c) authority to be the sole administrator of the absolute community,
may petition the court for may petition the court for
subject to such precautionary conditions as the court may impose
receivership, for judicial separation receivership, for judicial separation
of property or for authority to be of property or for authority to be
the sole administrator of the the sole administrator of the Q: When is a spouse presumed to have abandoned the other spouse?
absolute community subject to such conjugal partnership property,
A spouse is prima facie presumed to have abandoned the other spouse and to such date ought to be given to the husband, as property w/c are still
the family and to have no more intention of returning to the conjugal considered conjugal (fruits of conjugal property are conjugal) not otherwise
dwelling if: specifically assigned to the wife.
(a) He or she has left the conjugal dwelling for a period of three
months; or 10. Liquidation of Absolute Community/Conjugal Partnership
(b) He or she has failed within the same period of three months to give Assets and Liabilities
any information as to his or her whereabouts. a. Procedure
Toda v. CA 10.1 Forfeiture

FACTS: The spouses filed a joint petition for judicial dissolution of conjugal
partnership. Along with the petition was a compromise agreement signed Article 102. Upon dissolution of Article 129. Upon the dissolution
by the spouses, providing for their shares in the conjugal properties upon the absolute community regime, of the conjugal partnership regime,
dissolution. The lower court granted dissolution. There were properties the following procedure shall the following procedure shall
(like cash dividends), however, that were disputed after dissolution as to apply: apply;
whether it was conjugal or separate. If conjugal, the other spouse has a (1) An inventory shall be prepared (1) An inventory shall be prepared,
share, and conversely, if separate, the other does not get a share. shall be prepared, listing separately listing separately all the properties
One of the agreements with respect to shares of stock was that, all the properties of the absolute of the conjugal partnership and the
upon dissolution, such shares were to be given to the wife. Moreover, community and the exclusive exclusive properties of each spouse.
properties not otherwise specifically assigned to the wife were to be properties of each spouse. (2) Amounts advanced by the
awarded to the husband. The parties are disputing, among others, on how (2) The debts and obligation of the conjugal partnership in payment of
the cash dividends of such shares should be distributed to the spouses. absolute community shall be paid personal debts and obligations of
out of its assets. In case of either spouse shall be credited to
insufficiency of said assets, the the conjugal partnership as an asset
ISSUE: When does the compromise agreement take effect, from the time the
spouses shall be solidarily liable there of.
spouses signed it or from the time it was approved by the trial court?
for the unpaid balance with their
separate properties in accordance (3) Each spouse shall be
HELD: From the time it was approved by the TC. Under Article 190 of the
with the provisions of the second reimbursed for the use of his or her
Civil Code, "(i)n the absence of an express declaration in the marriage
paragraph of Article 94. exclusive funds in the acquisition
settlements, the separation of property between spouses during the marriage
of property or for the value of his or
shall not take place save in virtue of a judicial order." Hence, the separation her exclusive property, the
of property is not effected by the mere execution of the contract or ownership of which has been
agreement of the parties, but by the decree of the court approving the same. vested by law in the conjugal
It, therefore, becomes effective only upon judicial approval, without which it partnership.
is void. Furthermore, Article 192 of said Code explicitly provides that the (4)The debts and obligations of the
conjugal partnership is dissolved only upon the issuance of a decree of conjugal partnership shall be paid
separation of property. out of the conjugal assets. In case
Consequently, the conjugal partnership of the spouses should be considered of insufficiency of said assets the
dissolved only at the time when the TC approved their joint petition for spouses shall be solidarily liable
voluntary dissolution of their conjugal partnership. Conformably thereto, for the unpaid balance with their
the shares of stock awarded to the wife only becomes hers after the TC’s separate properties, in accordance
approval. And so the cash dividends declared after such date should with the provisions of paragraph
pertain to the wife, as fruits of her separate property; and that declared prior (2) of Article 121

YES. Preparation of an inventory is included, however, it may be dispensed
with if there is a renunciation of rights in favor of the other spouse. Article
(3) Whatever remains of the (5) Whatever remains of the 179 of the NCC provides as follows:
exclusive properties of the spouses exclusive properties of the spouses
shall thereafter be delivered to each shall thereafter be delivered to each Article 179. Upon the dissolution of the conjugal partnership, an
of them. of them. inventory shall be formed, but such inventory shall not be necessary:
(6) Unless the owner has been (1) If, after the dissolution of the partnership, one of the spouses
indemnified form whatever source, should have renounced its effects and consequences in the due
the loss or deterioration of time or
movables used for the benefit of (2) When separation of property has preceded the dissolution of
the family, belonging to either the partnership.
spouse even due to fortuitous
event, shall be paid to said spouse Q: What is the difference between the New Civil Code procedure for the
from the conjugal funds, if any liquidation of properties and that of the Family Code?
(4) The net remainder of the (7) The net remainder of the
properties of the absolute conjugal partnership properties As stated above, liquidation under the New Civil Code may or may not
community shall constitute its net shall constitute the profits, which include preparation of an inventory depending on whether there was
assets, which shall be divided shall be divided equally between renunciation made by one spouse. On the other hand, the Family Code
equally between husband and wife, husband and wife, unless a requires that an inventory must be made despite the existence or non-
unless a different proportion or different proportion or division existence of a renunciation.
division was agreed upon in the was agreed upon in the marriage
marriage settlements, or unless settlement or unless there has been It must be noted that the Family Code does not prohibit renunciation or
there has been a voluntary waiver a voluntary waiver or forfeiture of waive of rights as long as it is contained in a public instrument and is
of such share as provided in this such share as provided in this recorded in the civil registry as to bind third persons. Since a waiver of
Code. For purposes of computing Code. rights might prejudice the creditors of the spouse concerned, preparation of
the net profits subject to forfeiture the inventory was made mandatory by the Family Code.
in accordance with Articles 43, No.
(2) and 63, No. (2), the said profits
Q: Is this waiver in effect a sale or transfer of assets from one spouse the
shall increase in value between the
other which is prohibited during the subsistence of marriage?
market value of the community
property at the time of the
NO. The basis of the prohibition regarding the sale, donation or transfer of
celebration of the marriage and the
properties from one spouse to the other while they are married is that such
market value at the time of its
dissolution sale, donation or transfer will prejudice the creditors. In this case, however,
the waiver is only allowed to operate after the debts to the creditors have
already been paid. As such, one must first have to go through the process of
NOTE: Exclusive properties, however, must not be included in the
liquidation and the payment of conjugal obligations before one can
computation of net profits.
determine what is being waived in favor of the other spouses. This is the
reason why one has to go through all these procedure even if the other
Q: Under the New Civil Code, is a preparation of an inventory part of the
spouse has already waived his / her rights in favor of the other.
procedure for the liquidation of conjugal properties?
Q: Give instances when one spouse is entitle to reimbursement for the use
of his or her exclusive funds by the conjugal partnership.
1. Payment of personal debts contracted by the husband or the wife
before or during the marriage insofar as they have redounded to Q: What is the Absolute community property or conjugal partnership
the benefit to the family. (Art. 22, FC) property is insufficient to pay the community debts?
2. taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse which was In case of insufficiency of said assets, the spouses shall be solidarily liable for
paid from the exclusive property of the spouse. the unpaid balance with their separate properties. However, as between the
spouses the liability is equal because under the Family Code the spouses are
Q: Give instances when the ownership of an exclusive property has been given joint administration.
vested by law to the conjugal partnership. Whatever remains of their separate property shall thereafter be delivered
1. Property bought on installment paid partly from exclusive funds of back to the owner-spouse.
either or both spouses and partly from conjugal funds when full
ownership was vested during the marriage. (Art. 118, FC) Division and delivery of the net assets/profits to both spouses
2. When the cost of improvement made on the separate property of
one spouse at the expense of the partnership, and any resulting Q: What if the Absolute community property or conjugal partnership
increase in value are more than the value of the property at the property is sufficient to pay the community debts?
time of the improvement, the entire property of the spouse shall
belong to the conjugal partnership, subject to reimbursement of the If the community property is sufficient and there is a remainder after
value of the property of the owner-spouse at the time of the payment of all debts, the remainder shall constitute the net assets / profits
improvement. (Art 120. FC) which shall be subject to delivery and forfeiture.
NOTE: Although theoretically this liability is a conjugal obligation and Q: The family code uses the term “net asset” when referring to the
must fall under the third step ie., payment of conjugal debts, it takes remainder of the Absolute community property and “net profit” when
precedence over all kinds of conjugal obligations and thus must come as a referring to the remainder of the conjugal partnership of gains. What is the
preferred step before payment of other obligations. However, no actual difference between both?
payment of money is done at this stage for this procedure merely involves
paper computations which is accounted and offset with advances mad by The formula for computing net assets and net profits is the same i.e., assets –
the conjugal partnership made in favor of the spouse. liabilities –net assets/ profits. As such, both net assets and net profits are the
bases for the division between husband and wife of the community
Payment of Absolute Community or Conjugal Partnership obligations property. The difference lies in the amount to be forfeited.
Q: What are the obligations required to be paid under this provision? In Conjugal partnership of gains, the net profit or the share of the spouse in
The charges listed under Articles 102 and 129 of the Family Code owing to the conjugal partnership property is the amount subject to forfeiture.
the: Therefore, the total share of the spouse in the conjugal partnership property
1. Creditor-spouse is subject to forfeiture.
2. Creditor-third person
In Absolute community property, however, the whole amount of the net
Q: How must the obligations be paid? asset is not subject to forfeiture. In order to get the basis for forfeiture, one
The obligations must be paid in cash if the creditor is a third person. must get the net profits which is defined as the increase in the value between
However, obligations owing to a spouse need not be immediately paid and the market value of the community property at the time of the celebration of
may be off-set with his/her other debts to the community property or added the marriage and the market value at the time of its dissolution (Art. 102,
to his share later on. par. 4). The net profits is the amount subject to forfeiture and not the net

assets. Thus, in absolute community property regimes, a guilty spouse may the spouse entitled can live there and both parties will be considered co-
get his /her share without any amount being forfeited (if there is no increase owners of the conjugal dwelling.
in the amount of the community property from the celebration of the
marriage to its dissolution) or she/he will be liable for forfeiture without b. Two or more marriages
receiving any share.
10.2 Two or more marriages
Q: how will the net assets / profits be divided between spouses’?
The net assets / profit shall be divided equally between the spouses unless: Article 104. Whenever the Article 131. Whenever the
liquidation of the community liquidation of the conjugal
(a) a different proportion or division was agreed upon in the properties of two or more marriages partnership properties of two or
marriage settlement, or contracted by the same person more marriages contracted by the
(b) there has been a voluntary waiver by one spouse of his or before the effectivity of this Code is same person before the effectivity
her share. carried out simultaneously, the of this
respective capital, fruits and Code is carried out simultaneously,
income of each community shall be the respective capital, fruits and
determined upon such proof as ma income of each partnership shall be
Delivery of presumptive legitime be considered according to the determined upon such proof as
rules of evidence. In case of doubt may be considered according to the
Q: When is delivery of presumptive legitime required? as to which community the existing rules of evidence. In case of doubt
Delivery of presumptive legitime is required only in cases of annulment and properties belong, the same shall as to which partnership the existing
nullity of marriage. It is not required in legal separation, separation of be divided between or among the properties belong, the same shall
property, voluntary dissolution or death. In cases of death, ther is delivery different communities in be divided between and among the
not of presumptive legitime bu ACTUAL legitime [old reviewer] proportion to the capital and different partnerships in
duration of each (189 a) proportion to the capital and
Q: to whom will the conjugal dwelling and lot be given? duration
Conjugal dwelling and lot shall be adjudicated as follows:
(a) In accordance with the agreement of the parties, if any;
(b) If the parties did not make any agreement on the matter, it shall be Q: What is the procedure in the liquidation of Community properties of two
adjudicated to the spouse with who0m the majority of the common marriages?
children choose to remain; Unless all the heirs come to an agreement as to how to divide the
(c) Children below 7 years old are deemed to have chosen the mother community properties of two marriages, the following procedure in the
unless the child decides otherwise. liquidation of such properties shall be followed:
(d) In case there is no such majority among the children, the court shall (1) First, determine the capital fruits and income of each
decide the matter, taking into consideration the best interests of the community upon such proof as may be considered
children. according to the rules of evidence.
(2) In case of doubt as to which community the existing
NOTE: the conjugal dwelling will be part of the spouse’s share in the properties belong, they shall be divided between the two
community property and is not considered free or extra. As recompense, the communities in proportion to the capital and duration of
other spouse will be given other properties. If there are no other properties each.
left then the spouse entitled to live in the conjugal house and lot must pay
the other spouse with cash or other properties. However, in the meantime Q: The first marriage lasted for 10 years and the second marriage for 20
years, and the values of the respective capitals of each marriage had been
more or less equal. How should the property be divided between the two spouses would be conjugal, including those acquired through their industry.
marriages? Hence, the fruits and income of Cesario's share in the inheritance from wife1
and of his conjugal share in the property of the 1st conjugal partnership
In the absence of acceptable evidence, the second marriage will get twice as would form part of the conjugal partnership properties of the 2nd marriage.
much properties as those of the first marriage. [Sempio-diy] The fruits and income derived or acquired through these last-mentioned
properties would likewise be conjugal in nature.
Q: the first marriage lasted for 18 years and the second, for 46 years. How It would have been ideal had there been a liquidation of the conjugal
will the properties be divided? partnership properties of the 1st marriage. Unfortunately, it cannot be
The properties shall be divided in the proportion of 18 to 46, if the capital of determined from the records the amount of such properties at the time of
either marriage or the contribution of each spouse cannot be determined wife1’s demise. There is a dearth of proof on this matter. What appears
with mathematical certainty. (De Ocampo v. Delizo, 69 SCRA 216) evident, however, is that, considering the continuity in the operation of the 2
businesses during the 2nd marriage which spanned a period of 14 years, and
Dael v. Intermediate APPELLATE COURT the fact that after Cesario's death wife2 still actively engaged in the same
FACTS: Cesario Cabutihan got married twice, the first was with Bienvenida business until her own death 5 years later, the properties enumerated in the
Durana (wife1). Around 1 year after wife1 died, Cesario married wife1’s inventories submitted to the probate court could not all have been properties
sister, Victorina Durana (wife2). Thereafter, Cesario died, with wife 2 also of the first marriage.
passing a few years later. Inevitably, the problem is how to apportion the properties involved between
During the 2nd marriage, the spouses were engaged in a copra business and the two conjugal partnerships. On this score, guidance should be sought
a public transportation business, with wife2 managing the former. After the from the provisions of the Civil Code to the effect that whenever the
demise of Cesario, wife2 and the private respondent-heirs entered into an liquidation of the partnership of two or more marriages contracted by the
extra-judicial settlement of his estate. Part of the properties adjudicated to same person should be carried out at the same time and there is no evidence
wife2 include the copra business and some of the vehicles used in the to show the capital or the conjugal property belonging to each of the
transportation business. The lower courts, however, held that the copra partnerships to be liquidated, the total mass of the partnership property
business as well as the properties acquired during the 2nd marriage were shall be divided between the different partnerships in proportion to the
assets of the conjugal partnership of the 1st marriage. duration of each and to the property belonging to the respective spouses.
The 1st marriage existed for approximately 15 years, while the 2nd marriage
ISSUE: To which marriage do the contested properties belong? lasted for about 14 years. Applying the aforestated rule, the 1st conjugal
partnership will be prorated a share of fifteen twenty-ninths (15/29) of the
HELD: When wife1 died, the first conjugal partnership was automatically properties, while the 2nd conjugal partnership will get fourteen twenty-
dissolved. That conjugal partnership was then converted into an implied ninths (14/29) thereof. Not to be included, however, are the real properties
ordinary co-ownership. It was also at this point in time that the inheritance listed as belonging to the estate of Cesario as the latter's inheritance from his
was transmitted to the heirs of wife1. Thus, her heirs acquired respective parents.
and definite rights over one-half (1/2) of the conjugal partnership property One-half of the properties that pertain to the 1st conjugal partnership belong
which pertained to wife1. Consequently, whatever fruits or income may to Cesario as his conjugal share therein, while the other half shall be
thereafter be derived from the properties, including the copra business, considered as inherited by him and his 5 children as the heirs of wife1.
would no longer be conjugal but would belong in part to the heirs in The properties pertaining to the 2nd partnership shall also be equally
proportion to their respective shares. The fruits and income of the other half divided, one-half to belong to Cesario and the other to wife2 as their
of the property of the conjugal partnership would exclusively belong to respective shares in their conjugal partnership properties. The share of
Cesario. Cesario should then be divided among his heirs, namely, wife 2 and his 5
The 2nd marriage also produced the corresponding legal consequences. children.
From that moment on, the fruits or income of the separate properties of the

Article 132 The Rules of court on the administration of estates of enough basis for the grant of the decree of judicial separation of
deceased persons shall be observed in the appraisal and sale of property property.
of the conjugal partnership, an other matters which are not expressly
determined in this Chapter. Article 136 The spouses may jointly file a verified petition with
the court for the voluntary dissolution of the absolute community or the
Article 133 From the common mass of property, support shall be conjugal partnership of gains and for the separation of their common
given to the surviving spouse and to the children during the liquidation of properties.
the inventoried property and until what belongs to them is delivered; but All creditors of the absolute community or of the conjugal
from this shall be deducted that amount received for support, which partnership of gains as well as the personal creditors of the spouse, shall
exceeds the fruits or rents pertaining to them. be listed in the petition and notified of the filing thereof The court shall
take measures to protect the creditors and other persons with a pecuniary
c. Order of payment interest.
Q: What is the order of payment? Article 137 Once the separation of property has been decreed,
the absolute community or conjugal partnership of gains shall be
Follow the ordinary rules of preference among creditors liquidated in conformity with this code.
During the pendency of the proceeding for separation of
11. Separation of Properties During Marriage property, the absolute community or the conjugal partnership shall pay
for the support of the spouses and their children.
Article 134 In the absence of an express declaration in the
marriage settlements, the separation of property between spouses during Article 138 After dissolution of the absolute community or of the
the marriage shall not take place except by judicial order. Such judicial conjugal partnership, the provisions on complete separation of property
separation of property may either be voluntary or for sufficient cause. shall apply.
Article 135 Any of the following shall be considered sufficient Article 139 The petition for separation of property and the final
cause for the judicial separation of property; judgment granting the same shall be recorded in the proper local civil
1.) That the spouse of the petitioner has been sentenced to a registries and registries of property.
penalty which carries with it civil interdiction;
2.) That the spouse of the petitioner has been judicially declared Article 140 The separation of property shall not prejudice the
an absentee; rights previously acquired by creditors.
3.) That loss of parental authority of the spouse of petitioner has
been decreed by the court; Q: When may there be a separation of properties during marriage?
4.) That the spouse of the petitioner has abandoned the latter or The ff. are the instances when there may be separation of properties during
failed to comply with his or her obligations to the family as marriage:
provided for in Article 101; 1.) When the future spouses agree in the marriage settlements
5.) That the spouse granted the power of administration in the that their property relations shall be governed by the regime of
marriage settlements has abused that power; and separation of property (See succeeding topic)
6.) That at the time of the petition, the spouses have been 2.) When the spouses enter into a voluntary dissolution of the
separated in fact for at least one year and reconciliation is absolute community or conjugal partnership
highly improbable; 3.) When there are sufficient causes for judicial separation of
In the cases provided for in #1,2, and 3, the presentation of the property
final judgment against the guilty or absent spouse shall be

a. Voluntary Dissolution spouse leaves without intention of returning, whereas in separation de facto,
both spouses agree to live separately.
Q: When may a voluntary dissolution of the property relations occur?
This can occur upon the option of both of the spouses. The spouses must c. Procedure
jointly file a verified petition for voluntary dissolution. Note that judicial
approval is required for voluntary dissolution of the absolute community or Q: Discuss the procedure required for a voluntary agreement of separation
conjugal partnership. of properties.
1. File a verified petition with the court for voluntary dissolution of
Q: What are the grounds for the voluntary dissolution of the existing existing property regime. Both spouses must file a joint petition.
property relation in order to have a separation of property during marriage? 2. The petition must list all the creditors of the existing property
regime, including guarantors and insurers, as well as personal
No grounds exist for voluntary dissolution. The court has the discretion to creditors of the spouses.
grant the award or not. If there is no reason at all for the petition, the court 3. Notify personally the creditors in the list.
may disapprove the same, since the intention of the law is to preserve the 4. Provide for support pendent lite.
absolute community or conjugal partnership as much as possible. However, 5. Enter a decree and the final judgment shall be recorded in the
when the spouses voluntarily agree to enter into a dissolution, but cannot proper local civil registries; and the registry of property.
agree as to what properties to divide, the dissolution will be considered Q: Is there a need for publication of the petition
involuntary, in which case, any of the grounds in Art. 135 must be present.
(old reviewer) Publication is not prescribed by the Code because it is expensive and does
not serve its purpose in most cases because the publication is usually made
b. Grounds for Separation of Properties in newspapers that nobody reads. Besides, Art. 140 provides that the
separation of property between the spouses does not prejudice rights
Q: What are the sufficient causes for judicial separation of property? previously acquired by creditors. But in exceptional cases, like if the
The ff. are the sufficient causes: spouses have an extensive business which reaches to may parts of the
1. that the spouse of the petitioner has been sentenced to a penalty country, publication may be ordered for the protection of the creditors.
which carries with it civil interdiction;
2. that the spouse of the petitioner has been judicially declared an d. Revival of old Property Regime
absentee;
3. That loss of parental authority of the spouse of petitioner has been Article 141. The spouses may, in the same proceedings where separation
decreed by the court; of property was decreed, file a motion in court for a decree reviving the
4. That the spouse of the petitioner has abandoned the latter or failed property regime that existed between them before the separation of
to comply with his or her obligations to the family s provided for in property in any of the following instances:
Article 101;
5. That the spouse granted the power of administration in the 1.) When the civil interdiction terminates;
marriage settlements has abused that power; and 2.) When the absentee spouse reappears;
6. That at the time of the petition, the spouses have been separated in 3.) When the court, being satisfied that the spouse granted the
fact for at least one year and reconciliation is highly improbable power of administration in the marriage settlements will not
again abuse that power, authorizes the resumption of said
NOTE: Only three months of abandonment is required for judicial administration;
separation of property as enunciated in Art. 101 (3) whereas one year is 4.) When the spouse who has left the conjugal home without a
required for legal separation of spouses (Art. 55 (10)). In abandonment, the decree of legal separation resumes common life with the other;

5.) When parental authority is judicially restored to the spouse
previously deprived thereof; The revival of the former property regime shall be governed by Article 67.
6.) When the spouses who have been separated in fact for at least
one year, reconcile and resume common life; or Article 67. The agreement to revive the former property regime
7.) When after voluntary dissolution of the absolute community of referred to in the preceding Article (Article 66) shall be executed under
property or conjugal partnership has been judicially decreed oath and shall specify:
upon joint petition of the spouses they agree to the revival of the 1.) The properties to be contributed anew to the restored
former property regime. No voluntary separation of property regime;
may thereafter be granted. 2.) Those to be retained as separate properties of each spouse;
The revival of the former property regime shall be governed by and
Article 67. 3.) The names of all their known creditors, their addresses and
the amounts owing to each.
Article 142 The administration of all classes of exclusive The agreement of revival and the motion for its approval shall be
property of either spouse may be transferred by the court to the other filed with the court in the same proceeding for legal separation, with
spouse: copies of both furnished to the creditors named therein. After due
1.) When one spouse becomes the guardian of the other; hearing the court shall, in its order, take measures to protect the interest of
2.) When one spouse is judicially declared an absentee; creditors and such order shall be recorded in the proper registries of
3.) When one spouse is sentenced to a penalty which carries with it properties.
civil interdiction; The recording of the order in the registries of property shall not
4.) When one spouse becomes a fugitive from justice or is in hiding prejudice any creditor not listed or not notified, unless the debtor spouse
as an accused in a criminal case; has sufficient separate properties to satisfy the creditor’s claim.
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 Q: Would reconciliation mean automatic revival of the former property
in the administrator. regime?
No. Automatic revival does not follow. They must first file a motion in the
Q: What are the grounds for the revival of the old property regime? same proceedings where separation of property was decreed if they want
1.) When the civil interdiction terminates; such revival. An automatic revival is very cumbersome as an inventory and
2.) When the absentee spouse reappears; a statement of the properties newly contributed by the parties to the revived
3.) When the court, being satisfied that the spouse granted the power regime must again be made. And creditors would not know that there has
of administration in the marriage settlements will not again abuse been a reconciliation between the parties and a return to their former regime
that power, authorizes the resumption of said administration; unless there is a judicial decree to that effect and the decree is registered in
4.) When the spouse who has left the conjugal home without a decree the proper civil registries and registry of properties.
of legal separation resumes common life with the other;
5.) When parental authority is judicially restored to the spouse Q: What is the subject matter tackled in Article 142
previously deprived thereof; It refers to the cases when the court may transfer administration of all classes
6.) When the spouses who have been separated in fact for at least one of exclusive property of one spouse to the other.
year, reconcile and resume common life; or
7.) When after voluntary dissolution of the absolute community of Q: When can this happen?
property or conjugal partnership has been judicially decreed upon The court may do so in the ff. instances:
joint petition of the spouses they agree to the revival of the former 1.) When one spouse becomes the guardian of the other;
property regime. No voluntary separation of property may 2.) When one spouse is judicially declared an absentee;
thereafter be granted.

3.) When one spouse is sentenced to a penalty which carries with it Under this regime, each spouse retains ownership, management and control
civil interdiction; of their properties before the marriage. Those acquired during the
4.) When one spouse becomes a fugitive from justice or is in hiding as marriage, and the earnings, fruits, accessories, etc. of the separate properties
an accused in a criminal case. shall also be treated as separate properties.
Q: How many times may dissolution and revival occur? Q: When can the regime of separation of property exist?
The general rule is that dissolution and revival may be done only once. 1.) By agreement of the parties in the marriage settlement; or
However, when there is another ground for dissolution in Art. 135 that 2.) Upon a court decree (previous topic)
happens, then another dissolution may occur and another revival once said
ground disappears. Q: Is there any way by which this regime be changed during the marriage?
No. Once the spouses choose separation of property, they are forever bound
Q: What is the procedure for revival? by it. This is unlike absolute community or conjugal partnership where the
1.) File a motion for revival in the same court that granted the spouses may later opt for separation of properties and then later revive the
separation of properties old property regime.
2.) List the creditors of both spouses
3.) Notify the creditors Q: How are family expenses shouldered?
4.) A decision is rendered
Family expenses shall be borne by the spouses in proportion to their income,
12. Regime of Separation of Property or, in case of insufficiency thereof, by the current market value of their
separate properties. However, the spouses may agree upon a different
Article 143. Should the future spouses agree in the marriage settlements sharing of family expenses. However, as regards creditors, the liability of
that their property relations during marriage shall be governed by the spouses for family expenses is solidary.
regime of separation of property, the provisions of this Chapter shall be of
suppletory application.
Article 144. Separation of property may refer to present or future

property or both. It may be total or partial. In the latter case, the property
not agree upon as separate shall pertain to the absolute community.
Article 145. Each spouse shall own, dispose of, possess,

administer and enjoy his or her own separate estate, without need of the
consent of the other. To each spouse shall belong all earnings from his or
her profession, business or industry and all fruits, natural, industrial or
civil or received during the marriage from his or her separate property.
Article 146. 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 liability of the spouses to creditors for family expenses shall,
however, be solidary.
Q: What happens under the regime of separation of property?


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PART I was a leap year).

It was promulgated July 6, 1987, after President Aquino

Note: This is an example of an exception to the 15 day period since Art. 2

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Q: When does a judicial decision, which interprets a law, cease to be part of

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i) Conflicts rules Q: To what does “LEX LOCI CELEBRATIONIS” apply?

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Q: Does the act have to be illegal?

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Q: May a policeman be held personally liable under Art 34?

(7) The right to a just compensation when private property is

(13) The right to take part in a peaceable assembly to petition the

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Q: What is a pre-judicial question? Ching v. CA

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Civil Code Rules of Court

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2. Rules Q: What is the constructive domicile of a married woman?

Q: What are the differences between marriage and ordinary contracts?

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With regard to death, there is a question between actual death and

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Q: What if the absent spouse reappears?

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Q: To what does consent refer? Q: To whom must consent be manifested?

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c. Authority of Solemnizing Officer Member of the Judiciary

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1. If it is not issued by the civil registrar or even if it was issued by the

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