I.

At the age 18, Marian found out that she was pregnant. She insured
her own life and named her unborn child as her sole beneficiary. When
she was already due to give birth, she and her boyfriend Pietro, the
father of her unborn child, were kidnapped in a resort in Bataan where
they were vacationing. The military gave chase and after one week,
they were found in abandoned hut in Cavite. Marian and Pietro were
hacked with bolos. Marian and the baby she delivered were both found
dead, with the baby’s umbilical cord already cut. Pietro survived. Can
Marian’s baby be the beneficiary of the insurance taken on the life of
the mother? (5%)

EXAMINEE’S ANSWER:
Marian’s baby can be a beneficiary of the insurance policy.

An unborn child shall be considered born for all purposes that are favorable
to it, provided, it be born later in accordance with the Civil Code.

In this case, the child is considered born, since its umbilical cord is already
cut when found. An entitlement to the insurance proceeds is an incidence
that is favorable to the child.

PROF’S ANSWER:
Yes, Marian’s baby can be the beneficiary of her life insurance.

A conceived child is considered born for all purposes that are

favorable to it provided that it is born alive at the time it I completely
delivered from the mother’s womb.

Designation as a beneficiary in insurance policy is undeniably

favorable to the conceived child, and considering that the child’s
umbilical cord was already cut, we can safely infer that the child
was born alive when it was completely delivered from the womb of
Marian.

II.

Roderick and Faye were high school sweethearts. When Roderick was
18 and Faye, 16 years old, they started to live together as husband
and wife without the benefit of marriage. When Faye reached 18 years
of age, her parents forcibly took her back and arranged for her
marriage to Brad. Although Faye lived with Brad after the marriage,
Roderick continued to regularly visit Faye while Brad was away at
work. During their marriage, Faye gave birth to a baby girl, Laica.
When Faye was 25 years old, Brad discovered her continued liaison
with Roderick and in one of their heated arguments, Faye shot Brad
to death. She lost no time in marrying her true love Roderick, without
a marriage license, claiming that they have been continuously
cohabiting for more than 5 years. Was the marriage of Roderick and
Faye valid? (5%)

EXAMINEE’S ANSWER:
The marriage of Roderick and Faye was not valid because of the
absence of a marriage license.

It is true that the fact that a man and a woman live continuously and
exclusively as husband and wife for at least five years is one of the
exceptions from the requirement of marriage license, but the same is not
without a condition and that condition is that both of them must have no
legal impediment to marry each other.

In this case, the cohabitation of Roderick and Faye fell short of the
period of five years, for the reason that they were only able to do so for the
period of two years from the time when Faye was 16 years old up to the
time that she was forced by her parents to marry Brad. Although their
clandestine relationship continued after the marriage, those periods cannot
be counted, for the reason that at that time, Faye had already a legal
impediment.

PROF’S ANSWER:
No, the marriage between Roderick and Faye was not valid for lack
of marriage license.

Roderick and Faye were not exempted from marriage license.

Marital cohabitation as an exemption to marriage license only
applies when the man and woman lived together for five years
without legal impediment to marry.

Here, Roderick and Faye did not live together as husband and wife
for five years without legal impediment because at the time of their
cohabitation, Faye was still married to Brad.
 III.

Amor gave birth to Thelma when she was 15 years old. Thereafter,
Amor met David and they got married when she was 20 years old.
David had a son, Julian, with his ex-girlfriend Sandra. Julian and
Thelma got married. What is the status of the marriage between
Julian and Thelma? (5%)

EXAMINEE’S ANSWER:
The marriage between Julian and Thelma is valid.

A marriage between a step-brother and a step-sister is not among those

marriages under the Family Code which are void by reason of public policy.
The enumeration therein is exclusive and does not include a marriage
between a step-brother and a step-sister.

Hence, although Thelma is a step-sister of Julian and Julian is a step-

brother of Thelma, they can validly marry each other.

PROF’S ANSWER:
The marriage between Julian and Thelma is valid.

Due to the marriage of their parents, Julian and Thelma became

step-brother and step-sister. Marriage between step-brother and step-
sister is neither incestuous nor against public policy. Hence, their
marriage is valid.

IV.

In 1985, Sonny and Lulu, both Filipino citizens, were married in the
Philippines. In 1987, they separated, and Sonny went to Canada,
where he obtained a divorce in the same year. He then married
another Filipina, Auring, in Canada in January 1, 1988. They had two
sons, James and John. In 1990, after failing to hear from Sonny, Lulu
married Tirso, by whom she had a daughter, Verna. In 1991, Sonny
visited the Philippines where he succumbed to heart attack.

a) Discuss the effect of the divorce obtained by Sonny and Lulu in

Canada. (5%)

EXAMINEE’S ANSWER:
The divorce obtained in Canada does not affect the validity of the marriage
between Sonny and Lulu in the Philippines.

Divorce is not recognized in the Philippines. Although Sonny was in a foreign

country when he obtained the divorce, his status, legal capacity, and family
relation are still governed by Philippine laws.

PROF’S ANSWER:
The divorce obtained in Canada has no legal effect in the Philippine
for being contrary to public policy. Under Article 17 of the New Civil
Code, prohibitive laws which have for their object public policy shall
not be rendered ineffective by laws or judgment of a foreign country.

Since prohibition on absolute divorce is a matter of public policy,

any divorce obtained by Filipinos abroad, except in mixed
marriages, shall be without legal effect as far as the Philippines is
concerned.

b) Explain the status of the marriage between Sonny and Auring. (5%)

EXAMINEE’S ANSWER:
As far as the Philippine law is concern, the marriage between Sonny and
Auring is void.

Under the Family Code, a marriage contracted during the subsistence of

prior marriage is void, subject only to the exception in cases of absence or
where the prior marriage was dissolved or annulled. The marriage between
Sonny and Auring does not fall within the exception.

PROF’S ANSWER:
As far as Philippine law is concerned, the marriage between Sonny
and Auring is invalid for being bigamous. As stated earlier, the
divorce decree obtained by Sonny is ineffectual in the Philippines.

In the eyes of Philippine law, Sonny is married and any marriage

entered into is void for being bigamous.

c) Was Lulu correct in arguing that since her marriage with Tirso was
valid in Canada, it should likewise be valid in the Philippines?
EXAMINEE’S ANSWER:
Lulu was not correct.

Article 15 of the Family Code provides that laws relating to family rights and
duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.

Thus, although the marriage of Lulu with Tirso may be valid in Canada, it
cannot be valid in the Philippines.

PROF’S ANSWER:
No, Lulu is incorrect. While Article 26 of the Family Code provides
that valid marriages solemnized outside the Philippines shall be
valid in this country, it has no application when the marriage is
bigamous.

V.

Under Article 26 of the Family Code, when a foreign spouse divorces

his/her Filipino spouse, the latter may re-marry by proving only that
the foreign spouse has obtained a divorce against her or him abroad.
True or False. Explain (5%).

EXAMINEE’S ANSWER:
False. The statement falls short of the provision of Article 26 of the Family
Code because it only requires a Filipino spouse to prove that his or her
foreign spouse must obtain a divorce abroad when not only that is required
but also that the Filipino spouse must prove that the foreign spouse is
capacitated to re-marry.

PROF’S ANSWER:
False, the divorce decree must first be judicially recognized in the
Philippines before a Filipino spouse may remarry.

VI.

You are a Family Court judge and before you is a petition for the
Declaration of Nullity of Marriage (under Article 36 of the Family
Code) filed by Maria against Neil. Maria claims that Neil is
psychologically incapacitated to comply with the essential
obligations of marriage because Neil is a drunkard, a womanizer, a
gambler, and a mama’s boy-traits that she never knew or saw when
Neil was courting her. Although summoned, Neil did not answer
Maria’s petition and never appeared in court.

To support her petition, Maria presented three witnesses- herself, Dr.

Elsie Chan and Ambrosia. Dr. Chan testified on the psychological
report on Neil that she prepared. Since Neil never acknowledged nor
responded to her invitation for interviews, her report is solely based
on her interviews with Maria and the spouses’ minor children. Dr.
Chan concluded that Neil is suffering from Narcissistic Personality
Disorder, an ailment that she found to be already present since Neil’s
early childhood and one that is grave and incurable. Maria testified
on the specific instances when she found Neil drunk, with another
woman, or squandering the family resources in a casino. Ambrosia,
the spouses’ current household help, corroborated Maria’s testimony.
On the basis of the evidence presented, will you grant the petition?
(5%)

EXAMINEE’S ANSWER:

As the judge, I will not grant the petition.

Psychological incapacity, as a ground for nullity of marriage, is limited only

to the most serious cases of personality disorders. Even if taken as true,
being a drunkard, a womanizer, a gambler, and a mama’s boy, singly or
collectively, do not constitute psychological incapacity.

In this case, the evidence presented is insufficient to establish Neil’s

psychological incapacity. The psychological evaluation report of Dr. Chan
merely presented a general conclusion that Neil is suffering from Narcissistic
Personality Disorder but there was no factual basis thereof. Maria failed to
show that the alleged psychological incapacity of Neil is characterized by
gravity, juridical antecedence and incurability. Her testimony, the testimony
of their common children and that of Ambrosia were found to be self-serving
since Neil was not able to contradict the allegations against him.

OR

As the judge, I will grant the petition. While being a drunkard, womanizer,
gambler or mama’s boy does not per se constitute sufficient ground for the
nullity of marriage, but if it is grave enough that it amounts to a
psychological illness that makes a party incapacitated to perform the
marriage vows, it will suffice to declare the marriage a nullity.

In the instant case, the psychologist had sufficiently established that such
behaviors of Neil amounted to Narcissistic Personality Disorder and such
illness is grave, incurable and existing prior to the time of the celebration of
the marriage. In nullity cases, under Article 36 of the Family Code of the
Philippines, the findings and testimony thereon of the psychologist is
controlling. The fact that Neil was not personally examined by the
psychologist is of no moment, considering that the declarations before Dr.
Chan of Maria relative to the personality of the first is sufficient to arrive into
a psychological findings.

PROF’S ANSWER:
No, I will not grant the petition.

In order to prove psychological incapacity, it must be proved that

habitual drunkenness, womanizing, gambling, and being mama’s
boy are manifestations of the identified psychological illness. In this
case, while Maria found that Neil was a drunkard, womanizer,
gambler, and mama’s boy, there was no proof that these were caused
by Neil’s Narcissistic Personality Disorder.

VII.

Which of the following remedies: (a) declaration of nullity of marriage;

(b) annulment of marriage; and (c) legal separation, can an aggrieved
spouse avail himself/herself of:

A. If the wife discovers after the marriage that her husband has AIDS;
(5%)

B. If the wife went abroad as a nurse and refuses to come home after
the expiration of her 3-year contract;

C. If the husband discovers after the marriage that his wife has been
a prostitute before they got married; (5%)

D. If the husband has a serious affair with his secretary and refuses
to stop notwithstanding advice from relatives and friends; (5%)
E. If the husband beats up his wife every time he comes home drunk.
(5%)

EXAMINEE’S ANSWER:

A. If the wife discovers after the marriage that her husband has AIDS, she
may file a petition for annulment of marriage. AIDS is characterized as
sexually transmitted disease which under the Family Code, is a ground for
annulment of marriage.

PROF’S ANSWER:
Annulment on the ground that the husband contracted a sexually
transmitted disease which was serious and incurable.

B. If the wife went abroad as a nurse and refuses to come home after the
expiration of her 3-year contract, the husband may file a petition for legal
separation. Refusal to come home without justifiable cause or reason for
more than one (1) year can be considered as abandonment which under the
Family Code, is a ground for legal separation.

PROF’S ANSWER:
Legal separation on the ground of abandonment so long as the
absence of the spouse must be for more than one year.

C. If the husband discovers after the marriage that his wife has been a
prostitute before they got married, none among the three remedies is
available for him. Misrepresentation or concealment as to chastity is not a
ground for annulment of marriage.

D. If the husband has a serious affair with his secretary and refuses to stop
notwithstanding advice from relatives and friends, the aggrieved wife may
file a petition for legal separation. Serious affair with the secretary can be
considered as sexual infidelity which under the Family Code, is a ground
for legal separation.

PROF’S ANSWER:
Legal separation on the ground of infidelity or sexual perversion.

E. If the husband beats up his wife every time he comes home drunk, the
aggrieved wife may file a petition for legal separation. Repeated physical
violence or grossly abusive conduct directed against the aggrieved spouse
is a ground for legal separation.

PROF’S ANSWER:
Legal separation on the ground of repeated physical violence or
grossly abusive conduct.

VII.

On May 1, 1975 Facundo married Petra by whom he had a son Sotero.

Petra died on January 1, 2002. Before his demise, Facundo had
married, on 1 July 2002, Querica. Having lived together as husband
and wife since July 1, 1990, Facundo and Quercia did not secure a
marriage license but executed the requisite affidavit for the purpose.

To ensure that his inheritance rights are not adversely affected by his
father’s subsequent marriage, Sotero now brings a suit to seek a
declaration of the nullity of the marriage of Facundo and Querica,
grounded on the absence of a valid marriage license. Querica
contends that there was no need for a marriage license in view of
having lived continuously with Facundo for five years before their
marriage and that Sotero has no legal personality to seek a
declaration of nullity of the marriage since Facundo is now deceased.

A. Is the marriage of Facundo and Querica valid, despite the absence

of a marriage license? Explain. (5%)

EXAMINEE’S ANSWER:
A. The marriage of Facundo and Querica is not valid by reason of the
absence of a marriage license.

The Family Code provides that the exemption from the requirement of a
marriage license requires that the man and woman must have lived together
as husband and wife for at least five years without any legal impediment
to marry each other.

In the present case, the cohabitation of Facundo and Querica from 1990 up
to January 1, 2002 when Petra died was one with a legal impediment. On
the other hand, the cohabitation thereafter until the marriage on July 1,
2002, although free from legal impediment, did not meet the 5-year
cohabitation requirement.
PROF’S ANSWER:
No, the marriage is invalid.

Under the marital cohabitation rule as exception to marriage

license, the man and woman must be living together as husband and
wife for five years without any legal impediment to marry.

In this case, the marital cohabitation of Facundo and Querica

cannot be reckoned from 1990 since at that time, he was still
married to Petra, and therefore, he was suffering from legal
impediment to marry.

B. Rule on the petition filed by Sotero (5%)

EXAMINEE’S ANSWER:
The petition filed by Sotero is meritorious.

A void marriage celebrated prior to the effectivity of A.M. No. 02-11-10,

which took effect on March 15, 2003, may be questioned by any real party
in interest in any proceeding where the resolution of the issue is material.

Considering that Sotero is a compulsory heir of Facundo and Petra, and the
marriage between Facundo and Querica was celebrated in July 1, 2002, he
has the personality to question the validity of the marriage of his deceased
father, Facundo and Querica as it affects his successional rights.

PROF’S ANSWER:
The petition should be dismissed. Only the husband or the wife may
file a direct action to nullify a marriage. While the heirs or other
interested parties may raise the nullity of marriage, they can only
do so through a collateral attack , but not through a direct action
to nullify the marriage.
X.

What is the status of the following marriages and why?

(a) A marriage between two 19-year olds without parental consent.

(2%)
(b) A marriage between two 21-year olds without parental advice.
(2%)
(c) A marriage between two Filipino first cousins in Spain where
such marriage is valid. (2%)
(d) A marriage between two Filipinos in Hong Kong before a notary
public. (2%)
(e) A marriage solemnized by a town mayor three towns away from
his jurisdiction, (2%)

SUGGESTED ANSWER:
(a) A marriage between two 19-year olds without parental consent is
voidable. Being both 19 years old, the consent of the parties is not full
without the consent of their parents. The consent of the parents of the parties
to the marriage is indispensable for its validity.

PROF’S ANSWER:
Voidable because the parties are 18 years old and above but below
21, and the marriage was solemnized without the consent of the
parents.

(b) A marriage between two 21-year olds without parental advice is valid.
An absence of parental advice is merely an irregularity affecting a formal
requisite and does not affect the validity of the marriage itself. This is
without prejudice to the civil, criminal, or administrative liability of the party
responsible therefor.

PROF’S ANSWER:
Valid because lack of parental advice does not affect the validity
of marriage.

(c) A marriage between Filipino first cousins is void by reason of public

policy. The fact that it is considered a valid marriage in Spain does not
validate it because this fall on the exception stated in Article 26 of the Family
Code.

PROF’S ANSWER:
Void because their marriage cannot be recognized as valid in the
Philippines for being contrary to public policy.

(d) If the marriage before a notary public is valid under Hongkong Law, then
the marriage is also valid in the Philippines. Otherwise, a marriage that is
not valid under Hongkong law will not also be valid in the Philippines.

PROF’S ANSWER:
Valid because formalities of marriage are governed by the country
where it is celebrated. If a notary public is authorized to solemnize
marriage in Hongkong, then it is valid in the Philippines.

(e) A marriage solemnized by a town mayor three towns away from his
jurisdiction is valid. Under the Local Government Code, the authority of a
mayor to solemnize marriages is not restricted within his municipality. And
even assuming that his authority is restricted within his municipality, such
marriage will nevertheless, be valid because solemnizing the marriage
outside said municipality is a mere irregularity which does not affect the
validity of marriage.

PROF’S ANSWER:
Void because a town mayor has no authority to solemnize marriage
outside his territorial jurisdiction.

IX.

Saul, a married man, had an adulterous relation with Tessie. In one

of the trysts, Saul’s wife, Cecile, caught them in flagrante. Armed with
gun, Cecile shot Saul in a fit of extreme jealousy, nearly killing him.
Six (6) years after the incident, Saul filed an action for legal
separation against Cecile on the ground that she attempted to kill
him. Give the two (2) grounds for the dismissal of the case. (10%).

EXAMINEE’S ANSWER:

The two (2) grounds for the dismissal of the case are prescription and mutual
guilt.

The Civil Code provides that an action for legal separation shall be filed
within five (5) years from the time of the occurrence of the cause. An action
filed beyond that period is deemed prescribed. Considering that Saul filed
an action for legal separation against Cecile only after six (6) years from the
incident, such is barred by prescription.

Under the same Code, mutual guilt is also one of the grounds for the denial
of petition for legal separation. In the instant case, there is mutual guilt since
Saul had an adulterous relation with another woman at the time when
Cecile shot him when she caught them in flagrante.
PROF’S ANSWER:

The grounds for dismissal are prescription and that both of them
have given grounds for legal separation.

An action for legal separation should be brought within five (5) years
from the occurrence of the cause. Since the action was brought six
(6) years after the incident, the action already prescribed.

Among the grounds for the dismissal of an action is when both

spouses gave ground for legal separation. While Cecille attempted
to kill Saul, the latter was also guilty of sexual perversion, which
are both grounds for legal separation.

PROF’S ANSWER:

Presumptive legitime is that part property which would have

belonged to the children, if there have been death at the moment.

Presumptive legitimes are delivered upon annulment of voidable

marriages, and exceptionally, to void marriage for failure to comply
with Article 40, in relatin to Article 52 and 53 of the Family Code.

Under Article 53 of the Family Code, the failure to comply with

delivery of presumptive legitimes shall render the subsequent
marriage as void ab initio but children conceived or born out of the
said void marriage shall be considered legitimate.