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(2018 BAR EXAMS)


1. Accion In Rem Verso vs. Solutio Indebiti

a) Similarities: In Both ---
i) Plaintiff suffers a loss;
ii) Defendant is enriched;
iii) Defendant’s enrichment is unjust because payment or delivery
to him is without legal or just cause;
iv) Defendant is obliged to return the unduly payment or delivery;
v) The objective is to prevent unjust enrichment.

b) Distinctions:
i) In the first, the source of obligation is law; while in the second,
the source is quasi-contract;
ii) In the first, the undue payment or delivery is not by reason of
mistake; while in the second, the undue payment or delivery is
by reason of mistake;
iii) The first can only prosper if plaintiff has no other legal remedy
under contract, quasi-contract, delict or quasi-delict.

2. Suit for Damages Under Article 28, Civil Code (Unfair Competition)
a) Concept is broader than in intellectual property laws. It does not
require patent.
b) Requisites for liability:
i) Act causes injury to a competitor or trade rival; and
ii) Such act is contrary to good conscience, or shocking to judicial
sensibilities, or otherwise unlawful. (Willaware Products Corp. v.
Jesichris Manufacturing Corp.)

3. Nationality Principle (Article 15) and Art. 17, par. 3, Civil Code.
a) Applies if issue is: status, condition, legal capacity of persons and his
family rights and duties.
b) Not applicable when:
i) Issue is capacity of heir to succeed. Govening law is national
law of decedent.
ii) Issue is legal capacity to acquire real properties. Governing law
is lex rei sitae.
iii) Issue is duty of a foreigner parent to give support to his child in
the Philippines. Even his national law does not oblige him to
give support, such law does not apply in the Philippines for two
(2) reasons: (1) in private international law, the forum may
refuse to apply applicable foreign law if the same is contrary to a
sound and well-established public policy of the forum; (2) a
foreign law cannot render ineffective Philippine laws which are
declarations of public policy. (Del Soccoro v. Van Wilsem)

4. Civil Personality of Conceived Child:

a) A person is possessed of civil personality if at the time of complete
i) Infant is alive, if it had an intra-uterine life of at least 7 months
ii) Infant survive for 24 hours, if intra-uterine life is less than 7
b) For those still in mother’s womb (conceived child), it also has civil
i) but only for purposes beneficial to the child (limited personality);
ii) such personality is provisional (temporary) subject to
compliance upon delivery of conditions mentioned in (a) above.
c) In the CBA, a union member is entitled to financial assistance in case
of death of a legitimate dependent. His 6-month child was delivered
dead by the wife. Employer refused to give financial assistance on the
ground that no death occurred in the family of the union. Employer
argued one cannot die if he is never possessed of civil personality.
Employer’s contention is wrong:
i) Death is simply cessation of life. A conceived child has life and
cessation of that life is death. Death extinguishes civil
personality but the latter is not a requirement for death.
ii) A conceived child is a dependent of union member because it
has civil personality for purposes beneficial to it while inside
mother’s womb.
iii) A child conceived inside a valid marriage is a legitimate
dependent because the status of legitimacy attaches from
iv) If issue is the right of the parent (and not the right of the
conceived child), there is no need to determine the civil
personality of the conceived child. (Continental Steel
Manufacturing Corp. v. Montano)

5. Prejudicial Question
a) Effect: only a ground for suspension of criminal case to await for
outcome of civil case.
b) Requisites:
i) civil case is filed ahead of the criminal case;
ii) issue in both cases are intimately related;
iii) issue in the civil determines whether the criminal case may
proceed or not.
c) Example No. 1: A got married to B in 1997 w/o a license. In 2010, A
married B w/o a judicial declaration of nullity of prior marriage. In 2015,
A filed petition to declare first marriage void on ground of absence of
marriage license. In 2016, he is prosecuted for bigamy. NO
PREJUDICIAL QUESTION because the civil case does not determine
the outcome of the criminal case. Whatever may be the outcome of the
civil case, the crime of bigamy has been committed.
d) Example No. 2: A and B signed a marriage contract without a
solemnizer. Subsequently, the solemnizer signed the same without the
parties. Said marriage contract was registered in the NSO. Thereafter,
A married C. After the marriage of A and C, A filed petition to cancel
the marriage contract between him and B under Rule 108. He was
subsequently charged with bigamy. THERE IS A PREJUDICIAL
QUESTION because the civil case is determinative of the criminal
case. If the civil case will be granted, the crime of bigamy is not

6. Absolute Divorces and Article 26, Par. 2, FC:

a) If divorce is obtained by a foreigner married to another foreigner, our
court can recognize the validity of such decree of divorce.
b) If divorce is obtained by a Filipino married to another Filipino, divorce is
void because it is contrary to public policy and morality.

c) If a Filipino is married to a foreigner, the divorce is recognized as valid

insofar as the Filipino citizen is concerned under Article 26, par. 2 of
the FC.
d) In determining the citizenship of the parties for purposes of determining
the validity of the divorce, the reckoning point is their citizenship at the
time the valid divorce decree is obtained (not the citizenship at the time
of the marriage). (Republic v. Orbecido III)

7. Applicability of Article 26, Par. 2, FC

a) Article 26, par. 2, FC applies even if the divorce is obtained by the
foreigner, the Filipino spouse (Republic v. Manalo), or jointly by them
(Medina v. Koike).
b) Provided that the divorce obtained: (1) is valid pursuant to the national
law of the foreigner spouse; and (2) it capacitated the foreigner to
c) In short, if the foreigner spouse is released from the marriage, the
Filipino spouse is also released from the marriage regardless of who
may have obtained the divorce.
d) If the divorce and the subsequent marriage of the Filipino spouse
occurred prior to the effectivity of the FC, same rule above applies. But
the basis is not the FC but jurisprudence, such as Van Dorn v. Romillo,
Jr., Quita v. CA and Pilapil v. Ibay-Somera. (San Luis v. San Luis)
e) Our courts can also recognize a foreign judgment declaring the
marriage of a Filipino to a foreigner as void on the ground of bigamy.
There is no need to file another petition in the Philippines to have the
same marriage declared void ab initio. Otherwise, the foreigner is
already released from the marriage but the Filipino spouse is not and
that may not be allowed. (Fujiki v. Marinay)

8. Legal Capacity For Purposes of Marriage:

a) Age requirement: at least 18. Below 18, no capacity. Void marriage
under Art. 35 (1), FC.
b) Absence of impediment like a subsisting valid or voidable marriage,
Article 37 and Article 38.
c) Coming from Opposite Sex:
i) Determination of sex is determined by nationality principle.
Hence, if foreign law recognizes sex reassignment, foreign law
prevails as to the sex of the foreigner.
ii) For Filipinos, sex is determined at the time of birth by mere
visual examination of genitals.
iii) Such determination is immutable and cannot be changed by sex
re-assignment surgery (for Filipinos) because we do not have
laws recognizing its legal effects. (Silverio v. Republic)
iv) But if the person is suffering from an abnormality known as
Congenital Adrenal Hyperplasia resulting in doubts over the
genitals, the choice of the person prevails. (Republic v.

9. Consent in Marriage:
a) If consent is not given, there is no marriage. If consent is given but
defective, marriage is voidable.
b) If consent is given during the marriage ceremony and the same is not
defective, marriage is perfectly valid:
i) Even if there is no love. Love is not the only consideration for
marriage contract. (Republic v. Albios)

ii) Even if the only purpose of the marriage is to obtain foreign

citizenship and there was an agreement not to live together.
Because marriage can be entered into for any purpose not
contrary to law. (Republic v. Albios)

10. Marriage License:

a) If marriage is exceptional, no need for marriage license.
b) If marriage is NOT exceptional and celebrated w/o marriage license,
marriage is void.
c) If marriage is celebrated w/ a license but there was irregularity in
obtaining the license, marriage is valid. However, those responsible for
irregularity can be subject to administrative, civil or criminal liability.
d) Exceptional marriages:
i) articulo mortis marriages
ii) where parties reside in a very remote place
iii) both parties are Muslims or members of ethnic cultural
iv) legal ratification of marital cohabitation (Art. 34, FC)

11. Legal Ratification of Marital Cohabitation (Art. 34, FC)

a) Requisites: (1) man and woman lived together as husband and wife for
a minimum period of 5 years (counted backwards from the marriage
and must be uninterrupted); and (2) there is no impediment during the
5-year period of cohabitation. If complied, marriage does not require
b) If above requisites NOT complied but affidavit of cohabitation is
falsified, marriage is still void because marriage is not exceptional.
Principle of estoppel cannot be applied because validity of marriage is
determined by laws. Falsity of affidavit is not a mere irregularity but a
total absence of a formal requisite --- marriage license. (Republic v.
Dayot; De Castro v. Assidao-De Castro)

12. Void Marriage vs. No Marriage At All

a) If a marriage is celebrated but such marriage is void ab initio, there is a
need to have that marriage declared void ab initio for purposes of
contracting another marriage (Art. 40, FC). Here, the proper remedy is
a Petition for Declaration of Absolute Nullity of the Marriage and not a
petition for cancellation of the marriage contract under Rule 108. For
example, if the marriage is bigamous, the same cannot be declared
void in a petition under Rule 108. (Braza v. City Civil Registrar, City of
Himamaylan, Negros Occidental).
b) However, if no marriage took place, such as in a case where the
identity of a person was used in contracting a marriage to a Korean
national, the remedy of the aggrieved person is a petition for
cancellation and/or correction of entries in the Civil Registry under Rule
108 and not a petition for declaration of absolute nullity because there
is no marriage involving the aggrieved party that can be declared void
(Republic v. Olaybar). The same remedy is available to the parties who
merely signed a marriage contract privately without the presence of an
authorized solemning officer. Here, there is no marriage to speak of
because there is no marriage ceremony. (Morigo v. People)

c) If the marriage is void, there is a need to comply with the requirement

of Article 40 of the FC prior to contracting another marriage, otherwise
the crime of bigamy is committed (Mercado v. Tan). If there is no
marriage to speak of, there is no need to comply with the requirement
of Article 40 because the proper remedy is simply a petition under Rule
108 (correction and/or cancellation of entries in the civil registry).
(Morigo v. People and Republic v. Olaybar)

13. When Judicial Declaration is Necessary (If Prior Marriage is Void)

a) If second marriage took place prior to August 19, 1986: prevailing rule
at that time was that a void marriage is not subsisting and a judicial
declaration of absolute nullity is not required prior to contracting
another marriage. Hence, the second marriage is valid and no crime of
bigamy is committed. This is the Odayat doctrine. (Odayat v. Amante)
b) If second marriage took place after August 19, 1986 but prior to August
3, 1988: SC changed the rule. Even if the prior marriage is void, it is
subsisting unless judicially declared void. Hence, if another marriage is
contracted without a prior judicial declaration of absolute nullity of the
prior marriage, the second marriage is bigamous and void and the
crime of bigamy is committed. Basis is not FC but the case of Wiegel v.
c) If second marriage took place after the effectivity of the FC: Judicial
declaration of absolute nullity of a void marriage is necessary prior to
contracting another marriage, otherwise the second marriage is
bigamous and void and the crime of bigamy is committed. The basis
now is Article 40 of the FC.

14. Distinctions Between Bigamous Marriage In Article 35(4) and Article 40,
a) As to status of prior marriage: In Article 35(4), the prior marriage is
either valid or voidable; In Article 40, the prior marriage is void.
b) As to property regime: In Article 35(4), the void marriage is governed
by the property regime under Article 148 of the FC. In Article 40, the
void marriage is governed either by absolute community (if marriage is
celebrated without a marriage settlement) or by conjugal partnership of
gains or complete separation (if there is a marriage settlement
providing for such regime).
c) As to issuance of decree of absolute nullity: In Article 35(4), the decree
can be issued immediately even if there is a co-ownership because the
partition of the co-ownership is not required to be made in the same
proceeding for declaration of nullity of the marriage. In Article 40, if the
property regime is either absolute or conjugal, the decree cannot be
issued yet unless there is liquidation, partition and distribution of
properties and delivery of presumptive legitime. (Dino v. Dino)

15. A marriage can be declared void even if the action or proceeding is for:
a) action for support (De Castro v. Assidao-De Castro)
b) determination of entitlement to SSS death benefits (Carino v. Carino)
c) settlement of the estate of the deceased spouse because a void
marriage can be attacked collaterally.
d) BUT NOT: in a petition for correction and/or cancellation of entries in
the civil registry under Rule 108 (Braza v. City Civil Registrar)

16. Bigamy and Absolute Nullity of Second Marriage

a) Crime of bigamy is not committed if second marriage is void for
reasons other than the existence of the prior marriage. In bigamy, it is
necessary that the second marriage would have been valid had it not
been for the existence of the first marriage.
b) For example, if the second marriage is celebrated without a marriage
license, the crime of bigamy is not committed. (People v. De Lara; Go-
Bangayan v. Bangayan) However, if the reason for the absence of a
marriage license in the second marriage is because the parties made it
appear to be an exceptional marriage under Article 34 of the FC, the
parties cannot make use of their illegal act of feigning a marriage as
their defense in bigamy, otherwise it would make a mockery of the
sacred institution of marriage. (Santiago v. People)
c) However, if the second marriage is void by reason of psychological
incapacity (Art. 36, FC), the crime of bigamy is still committed because
the judicial declaration of absolute nullity of the marriage does not wipe
out the criminal liability of the accused for bigamy (Tenebro v. CA)
17. Personality to File Petition for Declaration of Absolute Nullity of Marriage
a) If marriage is celebrated during the effectivity of FC: (1) Only the
husband or the wife can file the petition (AM 02-11-10-SC); (2)
However, if the ground is bigamy, the aggrieved spouse in the prior
marriage has the personality to file the petition for the following
reasons: (i) the rule in AM 02-11-10 does not apply if the ground is
bigamy; (ii) in bigamy, the aggrieved spouse is the spouse in the prior
marriage; and (iii) the parties to the first marriage are the husband and
wife because the parties to the second marriage are not spouses (the
marriage being void). (Juliano-Llave v. Republic, Del Castillo Case); (3)
the petition can only be filed during the lifetime of the spouses.
b) If marriage is celebrated during the effectivity of the Civil Code: (1)
Only real parties-in-interest can file the petition; (2) the petition can be
filed even after the death of one of the spouses; (3) after death of one
of the spouses, the intestate or compulsory heirs of the spouses can
file the petition, being a real party in interest. (Ninal v. Bayadog;
Garcia-Quiason v. Belen)

18. Article 41, FC (Second Marriage By Reason of Presumptive Death)

a) If 2nd marriage is celebrated prior to effectivity of FC:
i) Requisites: period of absence required is 7 years and spouse
present believed in good faith that absentee is already dead.
Under the Civil Code, a judicial declaration of presumptive death
was not required.
ii) Status of second marriage: voidable and can only be terminated
by a judgment of annulment. Recording of affidavit of
reappearance is not applicable (it is applicable only for 2 nd
marriage celebrated during the effectivity of FC).

b) If 2nd marriage is celebrated during the effectivity of FC:

i) Requisites: (1) period of absence is 4 or 2 years; (2) spouse
present must have a well-founded belief that absentee is
already dead; and (3) spouse present must obtain a judicial
declaration of presumptive death.
ii) Status of second marriage: If the foregoing requisites are
complied, second marriage is perfectly valid. If not complied,
second marriage is void for being a bigamous marriage.
iii) How to terminate second marriage: If second marriage is valid, it
can be terminated either by: (a) recording of affidavit of
reappearance; or (b) judicial declaration of its dissolution or
termination. If second marriage is void for being bigamous, the
remedy is a petition to declare it as void (and not recording of
affidavit of reappearance which is applicable only to a valid
marriage) and the aggrieved spouse in the prior marriage has
the personality to file such petition.
iv) Effect of bad faith: (a) If the spouse present contracted the
second marriage in bad faith, the marriage is void for being
bigamous (because he did not have a well-founded belief that
the absentee spouse is already dead), even if the second
spouse contracted the marriage in good faith (Santos v.
Santos); (b) If the spouse present contracted the second
marriage in good faith, the marriage is valid even if the second
spouse contracted the marriage in bad faith. Here, upon the
termination of the marriage either by recording of affidavit of
reappearance or judicial declaration of its termination, the
second spouse is disqualified to inherit from the other (either by
testate or intestate succession) and the donation propter nuptias
in his favor is revoked by operation of law; (c) If both parties
contracted the marriage in bad faith, the marriage is void (Art.
44, FC).
19. Absolute Community and Conjugal Partnership – Disposition or
Encumbrance (Arts. 96 and 124, FC)
a) Requirement: To be valid, both husband and wife must give their
consent or there must be court authorization. In the absence of
consent by both spouses or court authorization, the sale or mortgage is
VOID IN ITS ENTIRETY. But considered as a continuing offer.
b) For the buyer to invoke good faith: he must be able to prove that he
exercised due diligence: (1) in determining the validity of the title; and
(2) in ascertaining the capacity of the transacting spouse to represent
the other spouse. (Aggabao v. Parulan)
c) For conjugal partnership established under the Civil Code: If the sale
by one of the spouses without the consent of the other took place prior
to the effectivity of the FC, apply the rules under the Civil Code. Under
the Civil Code, the sale is not void but merely voidable and can be
annulled within 10 years from the sale. If the sale took place after the
effectivity of the FC, apply the rule in Article 124 of the FC. Hence, the
sale is void.

20. Absolute Commnuity and Conjugal Partnership --- When Terminated By

Death of One of the Spouses (Arts. 103 and 130, FC)
a) The surviving spouse has mandatory obligation to liquidate the
property regime within one year from the death of the deceased
b) Effect of failure to liquidate: (i) if surviving spouse contracts another
marriage, the second marriage shall be governed mandatorily by a
regime of complete separation; and (ii) any disposition or encumbrance
of any community or conjugal property is VOID IN ITS ENTIRETY.
c) Rules for Conjugal Partnership Established Under the Civil Code: If
conjugal partnership still existed upon the effectivity of the FC and
conjugal partnership is terminated only during the FC, apply the rule in
(b) above as established in Article 130 of the FC. If conjugal
partnership is already terminated upon the effectivity of the FC, Article
130 cannot apply. Instead, the sale by the surviving spouse without the
consent of the children (co-owners of the estate of the deceased) is not
entirely void but will only affect the ideal share of the selling co-owner
in the co-ownership but without affecting the ideal shares of the other
co-owners who did not give their consent. (Domingo v. Molina and
Heirs of Go, Sr. v. Servacio)

21. Obligations of Absolute Community or Conjugal Partnership

a) these 3 obligations: (i) support of illegitimate children; (ii) ante-nuptial
debt which did not redound to the benefit of the family; and (iii) civil
liability arising from delict or quasi-delict, are chargeable to the
separate property of debtor-spouse.
b) However, if debtor-spouse does not sufficient property to pay for said
obligations, in absolute community, the property can be compelled to
advance the payment. In conjugal partnership, however, the conjugal
partnership will only become liable if the other obligations of the
conjugal partnership are already satisfied.

22. Article 147 and 148 of Family Code

a) Property regime applicable to: (i) void marriages (except a void
marriage under Article 40); and (ii) unions of man and woman without
the benefit of marriage
b) Void marriage: For void marriages under Articles 35(2), 35(3), 35(5),
35(6) and 36, they are governed by the property regime under Article
147. For void marriages under Articles 35(1), 35(4), 37, 38 and 44,
they are governed by the property regime under Article 148.
c) Unions without marriage: If exclusive cohabitation and parties are not
suffering from any impediment, property regime is that provided under
Article 147. If cohabitation is not exclusive, or even if exclusive but the
parties are not free to marry each other, property regime is that
provided under Article 148.
d) When Co-ownership exists for properties acquired during cohabitation:
In Article 147, if acquired thru joint efforts even if the effort of one is
simply maintenance of the household or taking care of the family. In
Article 148, co-ownership can only exist if both parties can prove
ACTUAL CONTRIBUTION in the form of money, property or industry.
The manner of registration of the property is immaterial.

23. Sale of Family Home Under Article 160 of FC

a) Family Home is not protected from claims mentioned in Article 155: (i)
non-payment of taxes; (ii) debts incurred prior to constitution of FH; (iii)
debts secured by the FH; and (iv) non-payment of wages in
construction of FH or non-payment of supplies in construction of FH.
b) But FH can be sold upon order of the court under Article 160, if the
following requisites are present: (i) judgment creditor is not one of
those mentioned in Article 155; (ii) at the time of the constitution, actual
value of FH did not exceed P300,000 in urban areas or P200,000 in
rural areas; (iii) after constitution, the actual value increased beyond
P300,000 or P200,000, as the case may be; and (iv) reason for the
increase in value is “voluntary improvement.” Voluntary improvement is
by reason of any voluntary action of any of the beneficiaries. (Eulogio
v. Bell, Sr.)
c) If the reason for the increase is “involuntary improvement” (or an
increase not due to any voluntary action of the beneficiaries), the FH is
still protected even if its actual value already exceeded P300,000 or
P200,0000, as the case may be. (Eulogio v. Bell, Sr.)

24. Paternity and Filiation: Presumption of Legitimacy

a) Any child conceived or born inside a valid marriage is presumed
legitimate (meaning child of the husband and the wife), even if the
spouses are already separated or even if the child is conceived or born
by the wife in a bigamous marriage.
b) If the husband is still alive, only the husband has the right to impugn
the child’s legitimacy: (i) the child’s mother cannot declare against the
child’s legitimacy; (ii) the paramour cannot admit his paternity over the
child; and the child cannot choose to be the child of someone else.
c) Upon the death of the husband, his heirs may exceptionally impugn the
child’s legitimacy in 2 situations: (i) if the prescriptive period has not yet
expired; or (ii) if the child is born only after the husband’s death.

25. Paternity and Filiation: Action to prove legitimate or illegitimate filiation

filed by the child
a) manner of proving and proof to be used, the same
b) the action must be filed during the lifetime of the child but the right is
transmitted to his heirs if the child dies during minority or in a state of
c) The action may be filed by the child even after the death of the alleged
parent, except in action to prove illegitimate filiation using proof under
paragraph 2 of Article 172 where the action is required to be filed
during the lifetime of the alleged parent, otherwise already barred.
d) Status and filiation cannot be the subject of a compromise agreement.

26. Paternity and Filiation: Birth certificate

a) General rule: A birth certificate is not a competent proof of filiation in
the absence of signature of the alleged parent. But signing using
thumbprint is allowed. (2016 jurisprudence)
b) Exception: Even if the birth certificate is not signed by the putative
father, the same is considered competent proof of filiation against him
if he participated in the preparation of the birth certificate either by: (i)
supplying the information in the birth certificate, including the fact of his
paternity (Ilano v. CA), or (ii) registering the birth certiticate in the civil
registry (Arado v. Alcoran).

27. Paternity and Filiation: Public and Private Instrument of Admission of

a) Public Instrument: The SSS Form E-1 (Personal Records of SSS
member with the SSS, where beneficiaries are named with statement
of relationship with said beneficiaries) is a public document of
admission of filiation. (Aguilar v. Siasat, Del Castillo case)
b) Private Instrument: To be competent proof, 2 requisites: (1) there must
be statement of admission of filiation; and (2) it must be signed.
c) Requirement of signature in private handwritten instrument of
admission of filiation: (a) where the private handwritten instrument is
the lone piece of evidence submitted to prove filiation, there should be
strict compliance with the requirement that the same must be signed by
the acknowledging parent (if not signed, not a competent proof of
filiation); (b) where the private handwritten instrument is accompanied
by other relevant and competent evidence, it suffices that the claim of
filiation be shown to have been made and handwritten by the
acknowledging parent as it is merely corroborative of such other
evidence (competent proof even if not signed). (Dela Cruz v. Gracia,
reiterated in Aguilar v. Siasat)

28. Right of illegitimate child to use surname of illegitimate father

a) If not acknowledged by the father, he does not acquire the right to use
the father’s surname. He only has the right to use mother’s surname.
b) If acknowledged by the father in writing, child acquires the right to use
the father’s surname but the use of the father’s surname is not
mandatory. The right belongs to the child, he may choose not to use it.
(Grande v. Antonio) However, when the child is still a minor, the
decision of whether to use the father’s surname is within the ambit of
the mother’s exercise of parental authority. Hence, the father cannot
compel the mother to register the child under his name.
c) The voluntary acknowledgment of paternity must be signed. Article 176
must be read in conjunction with Articles 175 and 172 (Dela Cruz v.

29. Requirement of Joint Adoption by spouses

a) Rule: If the adopter is married, requirement of joint adoption is
mandatory, even if the child to adopted is already of legal age.
b) Exceptions to requirement of joint adoption:
(1) If one is seeking to adopt the legitimate child of his/her spouse;
(2) If one is seeking to adopt his/her own illegitimate child, but the
consent of his/her spouse is mandatory. The other spouse must be
served with summons by personal service, otherwise the court
does not acquire jurisdiction over the adoption case. (Castro v.
(3) If the spouses are legally separated.

30. Retroactive effects of decree of adoption

a) For purposes beneficial to child: the effects of adoption decree retroact
to the day of filing of petition, even if adopters may have died prior to
the issuance of the decree.
b) No retroactive effect for the purpose of imposing liability to adopters for
torts: Adopting parents are not liable for the civil liability arising from
delict or quasi-delict committed by the adopted child during the time
that adopting parents had no actual custody over the child. The
retroactive effects of the decree of adoption cannot be applied in said
situation. (Tamargo v. CA)

31. Effects of decree of adoption

a) Severance of legal ties: All legal ties between the biological parents
and the adopted child are severed. Included in these legal ties are
parental authority, visitation right and the tie which serves as the basis
for legal support.
b) Effect of death of both adopters when adopted is still a minor: If both
adopters died during the minority of the adopted child, the legal ties
between the biological parents and the adopted child (which had been
severed by the adoption decree) are deemed to have been
automatically restored, applying by analogy Sec. 20 of the Domestic
Adoption Act. (Bartolome v. SSS)

32. Support
a) Basis of support: The basis of support is simply the relationships
mentioned in Articles 195 and 196 of the Family Code, subject to the
order of liability in Article 199. Support is not based on parental
authority. Hence, grandparents will become liable for support to their
grand children even if the parents are still exercising their parental
authority if the latter do not have the means to provide support.
b) Manner of giving support: At the option of the giver, the support may
either be in the form of: (1) paying a fixed allowance; or (2) receiving
and maintaining in the family dwelling the person to be supported.
However, the giver may not choose option no. 2 if there is a legal or
moral obstacle thereto. Example: The wife left the family dwelling
because he caught the husband in an act of infidelity with the caregiver
of her mother-in-law. Thereafter, the wife demanded legal support for
her minor children from the paternal grandparents (because the
husband does not have the means to provide support). The Court ruled
that the grandparents may not choose the second option and compel
the grand-children to go back to the family dwelling. Since the grand-
children are with their mother, they cannot be compelled to go back to
the house of the grand-parents because that will also be forcing their to
go back to the house which is the scene of the husband’s infidelity. The
same, according to the Court, amounted to a moral obstacle for
choosing the second option.

33. Parental Authority

a) If child is legitimate: Both parents have parental authority over their
minor children. But in case of separation, the court should choose who
should be entitled to exercise parental authority. In all controversies
involving the custody of minor children, the paramount consideration is
the best welfare of the child, taking into account all relevant
considerations (financial, emotional, psychological, spiritual, choice of
the child, etc.).
b) Tender-age presumption rule: If the age of the legitimate child is below
seven years old, the law mandates that the child should not be
separated from the mother unless the court finds compelling reasons to
order otherwise. This rule is mandatory and any agreement to the
contrary is void. (Dacasin v. Dacasin)
c) If child is illegitimate: An illegitimate child is under the parental authority
only of the mother. Hence, an illegitimate father is not entitled to have
custody over the illegitimate child even if he admits his paternity. But
an illegitimate father is entitled to visitation rights.

34. Funerals
a) Rule: As to who shall have the duty and the right to make funeral
arrangements, the same follow the same order of liability established
for support in Article 199 of the Family Code (Art. 305, Civil Code).
Thus, the paramour does not have such right to make funeral
arrangements over the objection of the legal wife (Valino v. Adriano).
b) Wishes of the deceased: The funeral shall be in accordance with the
wishes of the deceased. However, for the wishes of the deceased to
govern, it must be embodied in a last will and testament. Likewise, said
wishes may not contravene the provisions of Article 305. Hence, the
husband cannot validly wish that he be buried in the family mausoleum
of the paramour against the wishes of his legitimate family. In other
words, said wish cannot prevail over the right and the duty of his loved
ones under Article 305 to make the proper funeral arrangements.
(Valino v. Adriano)


35. Public Dominion and Patrimonial Properties of the State

a) Distinctions: The first cannot be validly alienated, while the second can
be validly alienated. The first cannot be appropriated, while the second
can be appropriated by private individuals. Hence, the first may not be
acquired thru prescription, while the second may be acquired thru
acquisitive prescription (Heirs of Malabanan v. Republic, citing Article
1113 of the Civil Code). The first cannot be validly subjected to
attachment, levy, execution or force sale, while the second can be
validly attached, levied upon and sold at the auction. The first cannot
be burdened with voluntary easement, while the second can be.
b) Distinctions between Sec. 14(1) and Sec. 14(2) of Property
Registration Decree: As to basis of grant of title: In Sec. 14(1), the
basis is possession and occupation of the land dating back to June 12,
1945 or earlier; in Sec. 14(2), the basis is acquisitive prescription; As to
applicable law: In Sec. 14(1), the basis is the Public Land Act (CA No.
141); in Sec. 14(2), the basis is the Civil Code; As to the property
involved: Sec. 14(1) applies to agricultural lands of the public domain
declared alienable and disposable; Sec. 14(2) applies to patrimonial
lands of the State. In Sec. 14(1), the agricultural land is not required to
be declared alienable and disposable also as of June 12, 1945, it is
sufficient that it is already alienable and disposable at the time of the
filing of the application for registration (Heirs of Malabanan v.
Republic). If all the requisites of Sec. 14(1) are present, the land
ceases to be part of the lands of the public domain and is, by operation
of law, converted into private property.
c) Conversion of agricultural lands into patrimonial: The fact that
agricultural lands have been declared alienable and disposable did not
automatically convert the same to patrimonial property. They remain to
be properties of public dominion. In order for said properties to be
converted into patrimonial, the following must be complied: (1) there
must be an express declaration that they are no longer intended for
public use, public service and for the development of the national
wealth or an express declaration of their conversion into patrimonial;
and (2) such express declaration must be in the form of a law passed
by Congress or in the form of a presidential proclamation in cases
where the President has been expressly authorized by Congress to do
so (Heirs of Malabanan v. Republic). Once the agricultural land is
converted into patrimonial, the applicant cannot, for purposes of
prescription, add the period of his possession of the property during the
time that said property was property of public dominion. This is
because a property of public dominion is not susceptible to
prescription. Hence, the period of prescription cannot run. (Heirs of
Malabanan v. Republic)

36. Properties of Provinces, Cities and Municipalities

a) Can Congress deprive a province of its property without payment of
just compensation?: If the property is a property of public dominion
(public property), it belongs to the State and the province is merely a
trustee of said property. Hence, Congress has absolute control over
said property. Congress may deprive the province of said property and
give it to someone else without payment of just compensation. On the
other hand, if the property is a patrimonial property of the province, the
latter cannot be deprived of the same without payment of just
compensation. (Sangguniang Panlalawigan of the Province of Bataan
v. Garcia)
b) How to classify property of LGUs: The properties of the LGUs are
classified in accordance with the actual use to which the property is
devoted. If it is actually being used for some public or governmental
purpose, then it is classified as a public property. If it is actually being
used for some proprietary or commercial purpose, then it is classified
as a patrimonial property. (Province of Zamboanga Del Norte v. City of
c) Sangguniang Panlalawigan of the Province of Bataan v. Garcia: There
were two state-run schools in the Province of Bataan situated on lands
registered in the name of the province. The titles to said properties
were used by the province as collateral for its loan with Land Bank.
Congress then passed a law integrating the two schools to form a
State College and transferred the ownership of the properties (where
the schools are situated) in favor of the State College. Thereafter, the
State College made a demand upon the province for the surrender of
the titles to the properties. The province questioned the validity of the
law contending that it was deprived of its properties without payment of
just compensation. RULING: The properties in question are properties
of public dominion of the province because they are actually being
used for some public purpose --- public education. Hence, Congress
has absolute control over said properties and it can give said
properties to the State College without need of paying the province just

37. Accession: Concept of Builders In Good Faith

a) Limited and Expanded definition of concept of builder in good faith:
Under the limited or traditional definition, the builder, at the time of the
building, believed himself to be the owner of the land because he has a
title or mode of acquisition in his favor over the land and he was
ignorant of the existence of any flaw or defect in his title or mode
invalidating the same. Under the expanded definition, the builder knew,
at the time of the building, that he was not the owner of the land but the
construction was made with the express consent or permission of the
landowner. (Communities Cagayan, Inc. v. Nanol, Del Castillo case)
b) Communities Cagayan, Inc. v. Nanol: The spouses purchased a house
and lot from a developer for a price of less than P500,000. The parties
executed a Contract to Sell. Upon delivery of the property to the
buyers, they demolished the original house and constructed a new
house, with the express permission of the developer, costing P3.5
Million. After several years of paying the installments on the purchase
price, the husband died and the widow failed to continue the
installments. The developer cancelled the Contract and demanded for
the return of the property. Are the buyers builders in good faith? The
Court held that since the construction of the new house was made with
the consent of the developer (landowner), the buyers were builders in
good faith under the expanded definition of the said concept. Applying
Article 448 of the Civil Code, the developer has the following options:
(1) to appropriate the new house by paying its value, minus the value
of the old house demolished by the builders; or to (2) to compel the
builders to buy the land.
c) Department of Education v. Casibang: The landowner allowed the
Department of Education to construct a public school on his property.
Upon the death of the landowner, his heirs demanded for the return of
the land to them. Is the Department of Education a builder in good
faith? The Court held that even if the Department of Education is a
mere possessor by tolerance, it is nonetheless a builder in good faith
under the expanded definition of the concept considering that the
landowner expressly consented/permitted to the construction of the
school building. Applying Article 448 of the Civil Code, the heirs of the
landowner have two options under said law. However, since the option
of appropriation of the school building is not practicable, the Court
ordered the Department of Education to simply buy the land.
d) Sarmiento v. Agana and Padilla, Jr. v. Malicsi: In Sarmiento, the Court
applied the expanded definition even if the one who gave the
permission for the construction of the house turned out to be not the
real owner of the land. In Sarmiento, however, the one who gave such
permission is a close relative of the builder (they are parent and child).
In Padilla, however, the one who gave the permission (and who turned
out to be not the real owner of the land) is a total stranger to the
builder. Here, the Court refused to apply the earlier ruling in the
Sarmiento case because the parties are totally strangers to each other.
The Court held in Padilla that the fact that the builder was a total
stranger to the one who gave the permission should have put the
builder on guard. Hence, he cannot claim to have acted in good faith.

38. Alluvium
a) Requisites in order for additional soil deposit to become private
property: (1) the process of depositing soil must be thru a gradual and
imperceptible process; (2) the process of depositing soil must be the
exclusive work of nature (otherwise, the additional soil deposit will
remain to be property of public dominion); and (3) the accretion must
take place on rivers, creeks, streams or lakes (if the accretion takes
place on a sea, the additional soil deposit becomes property of public
b) In alluvium, the water level is more or less maintained. If the land is
formed by reason of the recession of the water level from the river
banks, the same is not accretion, but simply a case of a river drying
up. A dried-up river bed belongs to the State. (Republic v. Santos III)
c) The lessee of a parcel of land bordering a creek noticed the downward
slope of the riprap constructed by the DPWH on the creek. He sought
the permission of the DPWH to fill the downward slope of the riprap to
level it with the leased premises. After he filled up said portion, he put
up a beerhouse on the property and sold the beerhouse to another
person. When the lessor learned that another person was occupying
the adjacent property, he filed an ejectment case against said
occupant claiming that the filled up portion is an integral part of his
land being an accretion thereof. The Court ruled that said portion
cannot be considered an alluvium because the latter is required to be
the exclusive work of nature. (Daclison v. Baytion)

39. Voting Requirement in Co-ownership

a) Action in ejectment: Any one of the co-owners may bring an action in
ejectment, without joining the other co-owners. But the suit must be
instituted for the benefit of all. If the suit is brought only for the purpose
of the plaintiff co-owner who claims to be the sole owner, the action will
not prosper. The term “ejectment” includes all kinds of actions the
purpose of which is recovery of possession, including replevin, accion
interdictal, accion publiciana, accion reinvindicatoria and even an
action for revival of judgment, if the enforcement of the judgment will
result in recovery of possession.
b) Repair for preservation: The act of repairing the co-owned property for
the purpose of preserving it may be made at the will of one of the co-
owners, without needing the consent of the others. After incurring the
expense, he may demand proportionate contribution from the others.
The others may choose either: (1) to pay their proportionate
contribution; or (2) to renounce so much of their interest in the co-
ownership corresponding to their share of the expenses.
c) Expenses for improvement, expenses for embellishment, and act of
administration: To be decided by the majority. In co-ownership,
majority refers to the controlling interest.
d) Act of alteration: Unanimous consent of the co-owners is necessary.
Allowing a third to construct his house on the co-owned property is an
act of alteration.
e) As to ideal share: A co-owner has absolute ownership over his ideal
share. He can alienate, encumber or lease it without need of getting
the consent of the other co-owners. Hence, a co-owner cannot be
forced to sell his ideal share (Arambulo v. Nolasco).

40. Prescription in Co-ownership

a) General rule: prescription does not lie in favor of a co-owner as against
another co-owner because the possession by a co-owner is for the
benefit of all. This rule applies only when the co-owner is still being
recognized. From the moment that the co-ownership is repudiated,
prescription will commence to run.
b) Requisites for effective repudiation of co-ownership: (1) he performed a
clear act of repudiation; (2) such act of repudiation is made known to
the others; (3) evidence thereon must be clear and convincing; and (4)
his possession is open, continuous, exclusive and notorious.
Ordinarily, the cancellation of a title in the name of all co-owners and
replacing it with a new title in the name of only one of the co-owners is
a clear of repudiating the co-ownership. However, such act does not
effectively repudiate the co-ownership when he allowed another co-
owner to build his house on the co-owned property. (Vda. de
Figuracion v. Figuracion-Gerilla)
c) Partition: As a rule, a co-owner can demand partition at any time.
Hence, an action for partition is imprescriptible. This rule, however,
applies only so long as the co-ownership is still being recognized. From
the moment that the co-ownership is effectively repudiated, an action
for partition that may be filed by the others is, in reality, no longer for
partition but for reconveyance of property (recovery of their ideal
shares), hence, subject to prescription.
d) If an earlier action for partition by a co-owner is dismissed for failure to
prosecute, the same cannot prevent the same from co-owner for
demanding partition. Between the procedural rule of dismissal with
prejudice and the substantive right of a co-owner to demand partition at
any time, the latter must prevail. (Quintos v. Nicolas)

41. Doctrine of irrevindicability of a movable:

a) Possession of a movable acquired in good faith is already equivalent to
title. This is the doctrine of irrevindicability. But this rule does not apply
to cases of: (1) lost movable and (2) unlawful deprivation of
b) In case of a lost movable, the previous possessor can always recover
the possession of the movable from the finder. Even if the finder
already sold the movable to a third person who acted in good faith, the
previous possessor can still recover possession from such third person
without need of returning the price for which such third person had paid
for the movable. The previous possessor is required to return the price
for which the third person had paid for the movable only when the
movable was acquired by the third person in good faith at a public sale.
c) The term “unlawful deprivation” is not limited to cases of theft or
robbery but also includes cases of abuse of confidence. But in abuse
of confidence, there is no intent to make the delivery. The term
“unlawful deprivation” cannot, however, be over-stretched to include
cases of valid sale (where there is intent to make the delivery for the
purpose of transferring ownership).
d) See Siy v. Tomlin (in the Mock Bar materials)

42. Nuisance Per Se and Nuisance Per Accidens

a) If the nuisance is always a nuisance under any and all conditions, it is
a nuisance per se. If the nuisance is not always a nuisance but will
become a nuisance depending only on the situation to which it is
applied, it is a nuisance per accidens.
b) Only a nuisance per se can be subjected to summary abatement. If the
nuisance is not a nuisance per se, it requires a judicial determination
that it is indeed a nuisance and only the court can order its abatement.
c) The LGU cannot, in the disguise of police power, cause the summary
abatement of a property, business or activity if the latter is not a
nuisance per se.
d) However, the Chief Local Executive (Mayor) has the power to cause
the demolition of illegal structure constructed without the requisite
building permit. Under the Local Government Code, Mayors were
granted powers to enforce the provisions of the National Building
Code. Here, there is no need for a judicial proceedings because the
illegal structure is being demolished not because it is a nuisance, but
because of the violation of the National Building Code. (Aquino v.
Municipality of Malay, Aklan)