Conclusive Presumption: That everyone
I. Effect and
Application of Laws
A. WHEN LAWS TAKE EFFECT
Art. 2. Laws shall take effect after fifteen
days following the completion of their
publication either in the Official Gazette, or in
a newspaper of general circulation in the
Philippines, unless it is otherwise provided.
(As amended by E.O. 200)
General Rules:
The clause "unless it is otherwise provided"
refers to the date of effectivity and not to the
requirement of publication itself, which
cannot in any event be omitted. [Tanada vs
Tuvera (1986)]
Publication is indispensable in every case,
but the legislature may in its discretion
provide that the usual fifteen-day period shall
be shortened or extended. [Tanada vs
Tuvera (1986)]
When, on the other hand, the administrative
rule goes beyond merely providing for the
means that can facilitate or render least
cumbersome the implementation of the law
but substantially increases the burden of
those governed, it behooves the agency to
accord at least to those directly affected a
chance to be heard, and thereafter to be duly
informed, before that new issuance is given
the force and effect of law. [Commissioner
vs. Hypermix (2012)]
Exception:
Interpretative regulations and those internal
in nature. [Tanada vs Tuvera (1986)]
B. IGNORANCE OF THE LAW
Art. 3. Ignorance of the law excuses no one
from compliance therewith. (2)
2
knows the law, even if they have no actual
knowledge of the law.
Mistake of Fact & Difficult Questions of
Law: These may excuse a party from the
legal consequences of his conduct; but not
ignorance of law:
 In specific instances provided by law,
mistake as to difficult legal questions has
been given the same effect as a mistake
 of fact. (Tolentino)
 The laws referred to by this article are
those of the Philippines. There is no
conclusive presumption of knowledge of
foreign laws. (Tolentino)
C. RETROACTIVITY OF LAWS
Art. 4. Laws shall have no retroactive effect,
unless the contrary is provided. (3)
General Rule: All statutes are to be construed
as having only prospective operation.
Exceptions
(1) When the law itself expressly
provides Exceptions to Exception:
Ex post facto law
Impairment of contract
(2) In case of remedial statutes
(3) In case of curative statutes
(4) In case of laws interpreting others
(5) In case of laws creating new rights
[Bona v. Briones (1918)]
(6) Penal Laws favorable to the accused
D. MANDATORY OR PROHIBITORY
LAWS
Art. 5. Acts executed against the provisions
of mandatory or prohibitory laws shall be
void, except when the law itself authorizes
their validity. (4a)
Art. 17, par. 3 Prohibitive laws concerning
persons, their acts or property, and those
 PERSONS
which have for their object public order, public
policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in
a foreign country. (11a)
E. WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the
waiver is contrary to law, public order, public
policy, morals, or good customs, or
prejudicial to a third person with a right
recognized by law. (4a)
Waiver – the relinquishment of a known right
with both knowledge of its existence and an
intention to relinquish it. [Portland v. Spillman]
Exceptions:
(1) If the waiver is contrary to law, public
order, public policy, morals or good
customs
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist
(4) If the right is a natural right
F. REPEAL OF LAWS
Art. 7. Laws are repealed only by
subsequent ones, and their violation or non-
observance shall not be excused by disuse,
or custom or practice to the contrary.
When the courts declared a law to be
inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are
not contrary to the laws or the Constitution.
(5a)
Two Kinds of Repeal (Tolentino)
Express or Declared – contained in a
special provision of a subsequent law
Implied or Tacit – takes place when the
provisions of the subsequent law are
3
incompatible or inconsistent with those
of an earlier law.
The fundament is that the legislature should be
presumed to have known the existing laws on the
subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any
implied repeal, and all efforts should be exerted
in order to harmonize and give effect to all laws
on the subject. [Republic vs. Marcopper Mining
(2000)]
G. JUDICIAL DECISIONS
Art. 8. Judicial decisions applying or
interpreting the laws or the Constitution shall
form a part of the legal system of the
Philippines. (n)
Jurisprudence cannot be considered as an
independent source of law; it cannot create
law. (1 Camus 38 as cited in Tolentino)
The interpretation or construction placed by the
courts establishes the contemporaneous
legislative intent of the law. The latter as so
interpreted and construed would thus
constitute a part of that law as of the date
the statute is enacted. It is only when a prior
ruling of this Court finds itself later overruled,
and a different view is adopted, that the new
doctrine may have to be applied prospectively
in favor of parties who have relied on the old
doctrine and have acted in good faith in
accordance therewith. [Pesca v Pesca (2001)]
H. DUTY TO RENDER JUDGMENT
Art. 9. No judge or court shall decline to
render judgment by reason of the silence,
obscurity or insufficiency of the laws. (6)
Exception:
This article does not apply to criminal
prosecutions because where there is no law
punishing an act, the case must be
dismissed. (Tolentino)
 PERSONS
I. PRESUMPTION AND
APPLICABILITY OF CUSTOM
Art. 10. In case of doubt in the interpretation
or application of laws, it is presumed that the
lawmaking body intended right and justice to
prevail. (n)
Art. 11. Customs which are contrary to law,
public order or public policy shall not be
countenanced. (n)
Art. 12. A custom must be proved as a fact,
according to the rules of evidence. (n)
J. LEGAL PERIODS
Art. 13. When the laws speak of years, months,
days or nights, it shall be understood that years
are of three hundred sixty-five days each;
months, of thirty days; days, of twenty-four
hours; and nights from sunset to sunrise.
If months are designated by their name, they
shall be computed by the number of days
which they respectively have.
In computing a period, the first day shall be
excluded, and the last day included. (7a)
Revised Administrative Code Section 31.
Legal Periods. - "Year" shall be understood to
be twelve calendar months; "month" of thirty
days, unless it refers to a specific calendar
month in which case it shall be computed
according to the number of days the specific
month contains; "day," to a day of twenty-four
hours; and "night," from sunset to sunrise.
Policy on Last Day being a Legal
Holiday/Sunday
 If the period arises by statute or orders
by the government, the last day will
However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
4
automatically be considered the next
working day
 If the period arises from a contractual
relationship, the act will still be due on
that Legal Holiday/Sunday
There obviously exists a manifest
incompatibility in the manner of computing
legal periods between the Civil Code and the
Revised Administrative Code of 1987. Since
the Administrative Code is the more recent
law, it governs the computation of legal
period [CIR vs Primetown (2007)]
K. APPLICABILITY OF PENAL LAWS
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 to
the principles of public international law and to
treaty stipulations. (8a)
Exemptions under International Law (Theory of
Extraterritoriality):
II. When the offense is committed by a foreign
sovereign while in Philippine territory
JJ. When the offense is committed by
diplomatic representatives
KK. When the offense is committed in a public
or armed vessel of a foreign country.
L. BINDING EFFECT
Art. 15. Laws relating to family rights and
duties, or to the status, condition and legal
capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
(9a)
Art. 16. Real property as well as personal
property is subject to the law of the country
where it is stipulated.
rights and to the intrinsic validity of
testamentary provisions, shall be regulated
by the national law of the person whose
 PERSONS

succession is under consideration, whatever Juridical Capacity Capacity to Act

may be the nature of the property and Fitness of man to be the Power to do acts
regardless of the country wherein said subject of legal relations with legal effect
property may be found. (10a) Passive Active
Aptitude for the Holding Aptitude for the
Art. 17. The forms and solemnities of contracts,
and Enjoyment of rights Exercise of rights
wills, and other public instruments shall be
Inherent in natural Must be acquired
governed by the laws of the country in which
persons
they are executed.
Lost upon death Lost through death
and other causes
When the acts referred to are executed
Can exist without Must exist with
before the diplomatic or consular officials of
capacity to act juridical capacity
the Republic of the Philippines in a foreign
Cannot be limited or May be restricted
country, the solemnities established by
restricted or limited
Philippine laws shall be observed in their
execution.
B. COMMENCEMENT AND
Prohibitive laws concerning persons, their acts
or property, and those which have, for their TERMINATION OF PERSONALITY
object, public order, public policy and good Art. 40. Birth determines personality; but
the conceived child shall be considered born
customs shall not be rendered ineffective by
for all purposes favorable to it, provided that
laws or judgments promulgated, or by it be born later with the conditions specified
determinations or conventions agreed upon in in the following article.
a foreign country. (11a)
Art. 41. For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mother’s womb.
(1) Persons and However, if the fetus had an intra-uterine life of
less than seven months, it is not deemed born
Personality if it dies within twenty-four hours after its
complete delivery from the maternal womb.

A. CONCEPT OF PERSON AND

Birth = complete removal of the fetus from the
PERSONALITY
mother’s womb; before birth, a fetus is
Art. 37. Juridical capacity, which is the merely part of the mother’s internal organs.
fitness to be the subject of legal 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
acquired and may be lost.

Note: Juridical capacity can exist even

without capacity to act; the existence of the
latter implies that of the former.

5
 PERSONS

Proof that the fetus was alive upon Criminal liability ends with death BUT civil
separation is Complete respiration = liability may be charged against the estate
test/sign of independent life [People v. Tirol, (1981)].
Note: Article 43 provides a statutory
Intra-Uterine Life When Considered Born presumption when there is doubt on the
7 months or more Alive upon delivery order of death between persons who are
Less than 7 months Alive only after called to succeed each other (only).
completion of 24 hours
from delivery The statutory presumption of Article 43 was
not applied due to the presence of a credible
Personality of Conceived Child eyewitness as to who died first [Joaquin v.
(1) Limited = only for purposes Navarro, (1948)].
FAVORABLE to it.
Compare Art. 43 with Rule 131, Sec.
(2) Conditional = it depends upon the child
3 (jj), presumption of Survivorship.
being born alive later.

Period of Conception = the first 120 days of Art. 43 Rule 131, Sec. 3 (jj)
the 300 days preceding the birth of the child. Only use the presumptions when there are
no facts to get inferences from
A conceived child can acquire rights while Only use for Cannot be used for
still in the mother’s womb. It can inherit by succession succession purposes
will or by intestacy. purposes
In any circumstance Only during death in
An aborted fetus had conditional personality calamities, wreck, battle
but never acquired legal rights/civil or conflagration
personality because it was not alive at the
time of delivery from the mother’s womb. No Presumption of Survivorship in the Rules
damages can be claimed in behalf of the of Court (Rule 131, sec. 3, (jj.)
unborn child. [Geluz vs CA (1961)]
Age Presumed Survivor
C. DEATH Both under 15 Older
Both above 60 Younger
Art. 42. Civil personality is extinguished by
One under 15, the One under 15
death. The effect of death upon the rights and
obligations of the deceased is determined by other above 60
law, by contract and by will. Both over 15 and Male
under 60; different
Art. 43. If there is a doubt, as between two sexes
or more persons who are called to succeed Both over 15 and Older
each other, as to which of them died first, under 60; same sex
whoever alleges the death of one prior to One under 15 or over One between 15 and
the other, shall prove the same; in the 60, the other 60
absence of proof, it is presumed that they between those ages
died at the same time and there shall be no
transmission of rights from one to the other.

6
 PERSONS
D. JURIDICAL PERSONS
Article 44. The following are juridical persons:
(1)The State and its political subdivisions;
(2) Other corporations, institutions and entities
for public interest or purpose, created by law;
their personality begins as soon as they have
been constituted according to law;
(3) Corporations, partnerships and
associations for private interest or purpose to
which the law grants a juridical personality,
separate and distinct from that of each
shareholder, partner or member. (35a)
Article 45. Juridical persons mentioned in Nos. 1
and 2 of the preceding article are governed by the
laws creating or recognizing them.
Private corporations are regulated by laws
of general application on the subject.
Partnerships and associations for private
interest or purpose are governed by the
provisions of this Code concerning
partnerships.
(36 and 37a)
Article 46. Juridical persons may acquire
and possess property of all kinds, as well
as incur obligations and bring civil or criminal
actions, in conformity with the laws and
regulations of their organization. (38a)
Article 47. Upon the dissolution of
corporations, institutions and other entities for
public interest or purpose mentioned in No. 2
of article 44, their property and other assets
shall be disposed of in pursuance of law or 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 benefit of the region, province, city or
municipality which during the existence of the
institution derived the principal benefits from
the same. (39a)
7
E. RESTRICTIONS ON
CIVIL CAPACITY
E. 1. PRESUMPTION OF CAPACITY
Article 37. Juridical capacity, which is the
fitness to be the subject of legal 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
acquired and may be lost. (n)
E. 2. RESTRICTIONS ON CAPACITY
TO ACT
Art. 38. Minority, insanity or imbecility, the
state of being a deaf-mute, prodigality and
civil interdiction are mere restrictions on
capacity to act, and do not exempt the
incapacitated person from certain obligations,
as when the latter arise from his acts or from
property relations, such as easements.
Art. 39. The following circumstances, among
others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-
mute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are
governed in this 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 for all acts of civil life,
except in cases specified by law.
General rule: Incapacitated persons are not
exempt from certain obligations arising from
his acts or property relations.
 PERSONS
I. MINORITY
RA 6809 (1989): An act lowering the age of
majority from twenty-one to eighteen years.
Effects on Contracts
(1) They cannot give consent to a contract
(Art. 1327 (1))
(2) A contract where one of the parties is a
minor is voidable(Art. 1390(1))
(3) A contract is unenforceable when both
of the parties are minors (incapable of
giving consent) (Art. 1403(3))
(4) Minority cannot be asserted by the other
party in an action for annulment (Art. 1397)
(5) Not obliged to make restitution
exceptinsofar as he has been benefited
(Art. 1399)
(6) Minor has no right to demand the
thing/price voluntarily returned by him
(Art. 1426)
(7) Minor has no right to recover voluntarily
paid sum or delivered thing, if consumed
in good faith (Art. 1427)
(8) Must pay reasonable amount for
necessaries delivered to him (Art. 1489)
Estoppel works against minors who
misrepresent their ages in a contract and are
compelled to comply with its terms. (active
misrepresentation done by minors).
[Mercado vs Espiritu (1918)]
When a minor made no active
misrepresentation as to his minority and
such minority is known to the other party, the
contract is voidable (Art. 1403) as to the
minor. [Bambalan vs Miranda (1928)]
Minors are obliged to make restitution insofar
as they have been benefited (Art. 1399).
[Braganza vs Villa Abrille (1959]
8
Effects on Marriage
(1) May not yet contract marriage (Art. 5, FC).
(2) Marriages, where one of the parties is
below 18, even with the consent of
parents/guardians, are VOID (Art. 35, FC).
Effect on Crimes
(1) General rule: EXEMPTED from
criminal liability
(2) Exception: Acted with discernment,
and the minor is between 15 and 18
years of age.
II. INSANITY
Insanity includes many forms of mental
disease, either inherited or acquired. A person
may not be insane but only mentally deficient
(idiocy, imbecility, feeble-mindedness).
Effect on Contracts
(1) Incapacity to give consent to a
contract (Art. 1327(2))
(2) Contracts entered into during lucid
intervals are valid (Art. 1328)
(3) Restitution of benefits (Art. 1399)
(4) Voidable if one of the parties is insane
(Art. 1390)
(5) Unenforceable if both of the parties are
insane (Art. 1403 (3))
Effect on Crimes
General rule: EXEMPTED from criminal liability
Exception: Acted during lucid interval
Effect on Marriage
(1) May be annulled if either party was of
unsound mind unless the such party
after coming to reason, freely cohabited
with the other (Art. 45(2), FC)
(2) Action for annulment of marriage must be
filed by the sane spouse who had no
knowledge of the other’s insanity, or by
any relative/guardian of the insane before
the death of either party; or by the insane
spouse during a lucid interval or after
regaining sanity (Art. 47(2), FC)
 PERSONS
In the absence of proof that the defendant had
lost his reason or became demented a few
moments prior to or during the perpetration of
the crime, it is presumed that he was in a
normal condition of mind. It is improper to
conclude that he acted unconsciously, in order
to relieve him from responsibility on the ground
of exceptional mental condition, unless his
insanity and absence of will are proven. [USA
vs Vaguilar (1914)]
Capacity to act must be supposed to attach to
a person who has not previously been declared
incapable, and such capacity is presumed to
continue so long as the contrary be not proved,
that is, that at the moment of his acting he was
incapable, crazy, insane, or out his mind
[Standard Oil vs Arenas (1911)]
As no man would know what goes on in the mind
of another, the state or condition of a person’s
mind can only be measured and judged by his
behavior. Establishing the insanity of an accused
requires opinion testimony which may be given by
a witness who is intimately acquainted with the
person claimed to be insane, or who has rational
basis to conclude that a person was insane based
on the witness’ own perception of the person, or
who is qualified as an expert, such as a
psychiatrist. [Crewlink vs Teringtering (2012)].
III. DEAF-MUTISM
(5) Cannot give consent to a contract if
he/she also does not know how to
write (Art. 1327(2), CC)
(6) Can make a valid WILL, provided: he must
personally read the will. The contents of the
same have either been read personally by
him or otherwise communicated to him by 2
persons (Art. 807, CC)
(7) Cannot be a witness to the execution
of a will (Art. 820, CC)
(8) Voidable if one of the parties is deaf-
mute and does not know how to write
9
(1) Unenforceable if both of the parties are
deaf-mutes and does not know how to
write
IV. PRODIGALITY
INCOMPETENT INCLUDES PRODIGALS
(RULES OF COURT RULE 92, SEC 2)
Note: It is not the circumstance of
prodigality, but the fact of being under
guardianship that restricts capacity to act.
V. CIVIL INTERDICTION
(1) It is an accessory penalty imposed
upon persons who are sentenced to a
principal penalty not lower than
reclusion temporal (Art. 41, RPC).
(2) Offender is deprived of rights of parental
authority, or guardianship, of marital
authority, of the right to manage his
property and of the right to dispose of such
by any act inter vivos (Art. 34, RPC)
(3) For the validity of marriage settlements,
the participation of the guardian shall
be indispensable (Art. 123)
VI. FAMILY RELATIONS
(5) Justifying circumstance if acted in
defense of person/rights of spouse,
ascendants, descendants,
brothers/sisters, and other relatives up to
the 4th civil degree (Art. 11(2), RPC)
(6) Mitigating circumstance if acted in the
immediate vindication of a grave
offense/felony committed against his
spouse, ascendants or relatives of the
same civil degree (Art. 13(5), RPC)
(7) Incestuous and void marriages:
 Between ascendants and
 descendants of any degree;
 Between brothers and sisters, whether
 full or half-blood. (Art. 37, FC)
(8) Donations/grants of gratuitous advantage
between spouses during the marriage shall
 PERSONS
be VOID, except moderate gifts during
family occasions (Art. 87, FC)
1. Prescription does not run between
spouses, parent and child, guardian and
ward (Art. 1109)
2. Descendants cannot be compelled to
testify in a criminal case, against his
parents and grandparents
UNLESS: crime was against the
descendant OR by one parent
 against the other (Art. 215, FC)
3. Spouses cannot sell property to each
other, except:
Absolute separation is agreed
 upon in the marriage settlements
Judicial separation of property
 (Art. 1490)
4. A suit between family members cannot
prosper without any showing that earnest
effort towards a compromise have been
made but have failed (Art. 151, FC)
Exceptions: questions on civil
status of persons, validity of a
marriage or a legal separation, any
ground for legal separation, future
support, jurisdiction of courts,
future legitime (Art. 2035).
VII. ALIENAGE
Dual citizenship is different from dual allegiance.
The former arises when, as a result of the
concurrent application of the different laws of two
or more states, a person is simultaneously
considered a national by the said states. Dual
allegiance, on the other hand, refers to the
situation in which a person simultaneously owes,
by some positive act, loyalty to two or more
states. While dual citizenship is involuntary, dual
allegiance is the result of an individual’s volition.
For candidates with dual citizenship, it should
suffice if, upon the filing of their certificates of
candidacy, they elect Philippine citizenship to
terminate their status as persons with dual
citizenship considering that their condition is the
10
unavoidable consequence of conflicting laws of
different states. [Cordora vs COMELEC (2009)]
VIII. ABSENCE
Art. 390. After an absence of seven years, it
being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till
after an absence of ten years. If he disappeared
after the age of seventy-five years, an absence of
five years shall be sufficient in order that his
succession may be opened. (n)
Art. 391. The following shall be presumed
dead for all purposes, including the
division of the estate among the heirs:
1. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the loss
of the vessel or aeroplane;
2. A person in the armed forces who has
taken part in war, and has been missing for
four years;
3. A person who has been in danger of death
under other circumstances and his existence
has not been known for four years.
Art. 41. A marriage contracted by any person
during subsistence of a previous marriage shall
be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had
been absent for four consecutive years and the
spouse present has a well-founded belief that
the absent spouse was already dead. In case of
disappearance where there is danger of death
under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the
 PERSONS
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
Art. 42. The subsequent marriage referred to
in the preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless
there is a judgment annulling the previous
marriage or declaring it void ab initio.
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 subsequent marriage at
the instance of any interested person, with
due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed.
F. DOMICILE AND RESIDENCE OF
PERSON
For Natural Persons:
The place of their habitual residence (Art. 50)
For Juridical Persons:
The place where their legal representation is
established, or where they exercise their primary
functions, unless there is a law or other
provision that fixes the domicile (Art. 51)
Domicile vs. Residence
While domicile is permanent (there is intent
to remain), residence is temporary and may
be changed anytime (there is no necessary
intent to remain).
11
Requisites of Domicile (Callejo v. Vera)
(1) Physical Presence in a fixed place
(2) Intent to remain permanently (animus
manendi)
Kinds of Domicile
(1) Domicile of Origin
 Domicile of parents of a person at
 the time he was born.
(2) Domicile of Choice
 Domicile chosen by a person,
changing his domicile of origin.

 A 3rd requisite is necessary –
intention not to return to one’s
domicile as his permanent place.

(3) Domicile by Operation of Law (i.e.,
Article 69, domicile of minor)
 A married woman does not lose her
domicile to her husband. (Romualdez-
Marcos vs. Comelec (1995))
III. Family Code
A. EFFECT AND RETROACTIVITY
Art. 255. This Code shall have retroactive
effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with
the Civil Code or other laws.
The Family Code took effect on August 3, 1988.
B. REPEAL AND AMENDMENT
Art. 254. If any provision of this Code is
held invalid, all the other provisions not
affected thereby shall remain valid.
 PERSONS

walk out of it when the matrimony is about to be

IV. Marriage and solemnized, is quite different. This is palpably and
Personal Relationship unjustifiably contrary to good customs for which
defendant must be held answerable in damages
Between Spouses in accordance with Article 21 aforesaid.
[Wassmer vs Velez (1964)]

A. CONCEPT OF MARRIAGE
Article 21 may be applied in a breach of
Art. 1, FC. Marriage is a special contract of promise to marry where the woman is a victim
permanent union between a man and a of moral seduction. [Baksh vs CA (1993)]
woman entered into in accordance with law
for the establishment of conjugal and family C. REQUISITES
life. It is the foundation of the family and an KINDS OF REQUISITES AND
inviolable social institution whose nature, EFFECTS OF NON-COMPLIANCE
consequences, and incidents are governed
by law and not subject to stipulation, except Essential Requisites (Art. 2)
that marriage settlements may fix the Legal Capacity of the contracting
property relations during the marriage within parties, who must be a male and a
the limits provided by this Code. female
Consent (of the parties) freely given in
1987 Constitution Article XV, Section 2. the presence of a solemnizing officer.
Marriage, as an inviolable social institution, is Formal Requisites (Art. 3)
the foundation of the family and shall be Authority of solemnizing officer
protected by the State.
A valid marriage
license Except:
Marriage is an institution, in the maintenance of
Marriages in articulo mortis or
which in its purity the public is deeply interested.
when one or both parties are at
It is a relation for life and the parties cannot
the point of death,
terminate it at any shorter period by virtue of any
Marriage in isolated places with
contract they may make
no available means of
.The reciprocal rights arising from this relation,
transportation,
so long as it continues, are such as the law
Marriage among Muslims or other
determines from time to time, and none other.
ethnic cultural communities,
[Goitia vs Campos Rueda (1916)]
Marriages of those who have
lived together as husband and
B. AGREEMENTS PRIOR wife without any legal
TO MARRIAGE impediment for at least 5 years
Extrajudicial dissolution of the conjugal Marriage Ceremony:
partnership without judicial approval is void. Appearance of contracting
[Espinosa vs Omana (2011)] parties in the presence of a
 solemnizing officer
Mere breach of promise to marry is not an Personal declaration that they
actionable wrong. But to formally set a take each other as husband and
wedding and go through all the above- wife in the presence of not less
described preparation and publicity, only to than 2 witnesses

12
 PERSONS
EFFECT OF ABSENCE OF REQUISITES
Absence Defect or Irregularity
Effect VOID VOIDABLE
ESSENTIAL REQUISITES
1. GENDER
Note: The best source for citing the
requirement of male/female is still statutory,
as provided explicitly in the Family Code.
Silverio v. Republic, (2007): Changing of
sex in one’s birth certificate on the basis of
sex reassignment was denied; otherwise, it
would result in confusion and would allow
marriage between persons of the same sex
which is in defiance of the law, as marriage is
a union between a man and a woman.
2. AGE
Legal Capacity (Art. 5)
Male or female 18 years old and above, not
under any of the impediments mentioned in
Art. 37 (incestuous marriages) & Art. 38
(marriages against public policy), may
contract marriage.
3. CONSENT FREELY GIVEN
Consent here refers to the consent of the
contracting parties; not of the
parent/guardian in those cases where such
consent is required (when either party is
between 18 to 21 years of age).
Absence:
People v. Santiago, (1927): A marriage
entered into by a person whose real intent
is to avoid prosecution for rape is void for
total lack of consent. The accused did not
intend to be married. He merely used such
marriage to escape criminal liability.
13
Defect:
Art. 45, FC. A marriage may be annulled for any
of the following causes existing at the time of the
marriage: xxx (3) that the consent of either party
was obtained by fraud, unless such party
afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the
other as husband and wife.
Fraud here refers to matters which relate to
the marital relation:
 Non-disclosure of previous conviction
by final judgment of a crime involving
 moral turpitude;
 Concealment of pregnancy by
 another man;
 Concealment of a sexually
 transmitted disease;
 Concealment of drug addiction,
alcoholism, lesbianism, or homosexuality
FORMAL REQUISITES
1. CEREMONY
Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required. (Art. 6)
The couple's written agreement where they
declare themselves as husband and wife,
signed by them before a judge and two
capable witnesses, even though it was
independently made by them, still counts as
a valid ceremony. (Martinez v. Tan, (1909))
Minimum requirements prescribed by law:
(1) Appearance of contracting parties
personally before the solemnizing officer
(Art. 3)
(5) Personal declaration that they take each
other as husband and wife. (Art. 3)
(6) Presence of at least two witnesses of
legal age. (Art. 3)
(7) The declaration shall be contained in the
Marriage Certificate. (Art. 6)
 PERSONS

Marriage certificate shall be signed by the
contracting parties and their witnesses and
attested by the solemnizing officer. (Art. 6)
Note: In a marriage in articulo mortis, when
one or both parties are unable to sign the
marriage certificate, it shall be sufficient for
one of the witnesses to write the name of
said party, which shall be attested by the
solemnizing officer. (Art. 6, par. 2)
Places where marriage SHALL be
publicly solemnized:
Chambers of the judge or in open court
Church, chapel, or temple
Office of the consul-general, consul, or
vice-consul (Art. 8)
Exceptions:
Marriages performed in articulo mortis
 or in remote places. (Art. 29)
Where both parties request in writing that
marriage be solemnized at a place
designated by them.
Non-compliance with this requirement
does not invalidate the marriage (premise:
more witnesses = more people can notify
officer of impediments to marriage).
AUTHORITY OF THE SOLEMNIZING
OFFICER
Who may solemnize marriage:
Incumbent member of the Judiciary
within his jurisdiction. (Art. 7)
Absence Effect
1. Authority by VOID
church/sect
2. Registered w/ civil VOID
registrar
3. Acting w/in written IRREGULARITY
authority
4. Either party belong IRREGULARITY
to that church/sect
Priest, Rabbi, Imam or Minister of any
Church or Religious Sect. Must be:
Duly authorized by his church or
religious sect
Registered with the civil registrar
general
Acting within the limits of the written
authority granted to him by his church
or religious sect.
At least one of the contracting parties
belongs to the solemnizing officer’s
church or religious sect. (Art. 7)
Ship Captain or Airplane Chief may
solemnize a marriage in articulo mortis
between passengers or crew members
(Art. 7, 31)
A Military commander of a unit may
solemnize marriages in articulo mortis
between persons w/in the zone of military
operation. (Art. 7, 32)
Consul-general, consul or vice-consul
may solemnize marriages between
Filipino citizens abroad. (Art. 7, 10)
Municipal and City Mayors (LGC sec.
444-455)
Exceptions – Art. 35
Marriage is void when solemnized by any
person not legally authorized to perform
marriages unless either or both parties
believed in good faith that the solemnizing
officer had legal authority to do so. (Art. 35
(2))
Absence & Irregularity of Authority of a
solemnizing officer
Where a judge solemnizes a marriage outside
his jurisdiction, there is a resultant irregularity
in the formal requisite laid down in Article 3,
which while it may not affect the validity of the
marriage, may subject the officiating official to
administrative liability. [Navarro v. Domagtoy
(1996); Aranes v. Occiano (2002)]

14
 PERSONS
A marriage which preceded the issuance of the
marriage license is void and the subsequent
issuance of such license cannot render valid the
marriage. Except in cases provided by law, it is
the marriage license that gives the solemnizing
officer the authority to solemnize a marriage.
[Aranes v Occiano (2002)].
3. LICENSE REQUIRED
GENERAL RULE: License required
Article 9 - Issued by local registrar of city or
municipality where either contracting party
habitually resides
Article 11 - Each contracting party should file
separately.
PD 965, Sec.3, par.2 - No marriage license
shall be issued by the Local Civil Registrar
unless the applicants present a certificate,
issued at no cost to the applicants, by an
Office of Family Planning that they had
received instructions and information on
family planning and responsible parenthood.
Where Valid: License valid in any part of the
Philippines
Period of Validity: It will be valid for 120
days from date of issue, automatically
cancelled at the expiration of such period.
I. Special Situations
Anyone between 18-21 years old who has
not yet been emancipated must present the
written consent that was given by his or her
parent or guardian. (Art. 14)
Anyone between 21-25 must ask for advice
from his or her parents or guardians. If the
advice wasn’t obtained, the marriage license
will only be released 3 months after the
publication of the application. (Art. 15)
15
II. Foreign National
When either or both parties are foreign
nationals: Certificate of legal capacity to
contract marriage, issued by a diplomatic or
consular official, shall be submitted before a
marriage license can be obtained (Art. 21)
Stateless persons or refugees from other
countries: affidavit stating circumstances
showing capacity to contract marriage,
instead of certificate of legal capacity (Art. 21)
III. Exceptions
Marriage in articulo mortis (Art. 27)
 The marriage may be solemnized without 
the necessity of a marriage license.
 It remains  even if ailing party
valid
survives.
Between passengers or crew members
in a ship or airplane (Art. 31)
Persons within a military zone (Art. 32)
Marriage in Remote and inaccessible
places (Art. 28)
Marriages by Muslims and Ethnic cultural
minorities provided they are solemnized
in accordance with their customs, rites or
practices. (Art. 33)
Marriage by parties who have Cohabited
for at least 5 years without any legal
impediment to marry each other. (Art. 34,
Ninal vs. Badayog (2000))
Requisites for the 5-year cohabitation to
be valid for the exemption from acquiring
a marriage license
The man and woman must have been
living together as husband and wife for at
least five years before the marriage;
The parties must have no legal
impediment to marry each other;
The fact of absence of legal impediment
between the parties must be present at
the time of marriage;
 PERSONS
(4) The parties must execute an affidavit
stating that they have lived together for at
least five years [and are without legal
impediment to marry each other]; and
(5) The solemnizing officer must execute a
sworn statement that he had ascertained
the qualifications of the parties and that he
had found no legal impediment to their
marriage.
(Borja-Manzano vs. Judge Sanchez (2001))
4. MARRIAGE CERTIFICATE
Absence and irregularity of marriage
license and contract
Republic v. CA and Castro (1994): There is
a presumption of regularity of official acts,
and the issuance of the Civil Registrar of a
Certificate of Due Search and Inability
to Find the application for a marriage
license certifies its inexistence, rendering
the marriage VOID.
Moreno v. Bernabe (1995): Before a marriage
can be solemnized, a valid marriage license must
be presented first, otherwise, it is VOID.
People v. Borromeo (1984): Non-existence of
a marriage contract does not invalidate the
marriage as long as all the requisites for its
validity are properly complied with.
Marriage Certificate
Where parties declare that they take each
other as husband and wife; contains the ff:
Full name, sex, age of party
Citizenship, religion, habitual residence
Date and precise time of celebration of
marriage
That marriage license was properly
issued (except in marriages of
exceptional character)
That parental consent was secured,
when required
16
(6) That requirement as to parental advice was
complied with, when required
(7) That parties have entered into marriage
settlements, if any (Art. 22)
Note: Not an essential or formal requisite
without which the marriage will be void
(Madridejo v. de Leon (1930))
Best evidence that a marriage does exist.
[Tenebro v. CA (2004)]
D. LAW GOVERNING VALIDITY OF
MARRIAGES ABROAD
General rule in contracts
As to form: Governed by the laws of the country in
which they were executed (NCC Art. 17)
As to substantive requirements: Laws
relating to family rights and duties, or to the
status, condition and legal capacity of
persons, prohibitive laws regarding the
person, his or her property, those which have
for their object public order, public policy and
good customs bind all Filipinos regardless of
location. (NCC Art. 15, 17)
Marriages Celebrated Abroad
GENERAL RULE: Marriages solemnized
abroad in accordance with the laws in force
in that country shall be valid in the
Philippines. (Art 26, par.1)
EXCEPTIONS:
Marriage between persons below 18
years old (Art. 35(1))
Bigamous or polygamous marriage (Art.
35(4))
Mistake in identity (Art. 35 (5))
Marriages void under Article 53 (Art. 35 (6))
Psychological incapacity (Art. 36)
Incestuous marriages (Art. 37)
Marriage void for reasons of public
policy (Art. 38)
 PERSONS
Essential requisites Formal requisites
Inherent in the parties, Requirements
carried everywhere independent of the
parties
Lex Nationalii – Laws Lex loci celebrationis-
relating to family rights if valid where
and duties, or to the celebrated, then
status, condition, and valid everywhere;
legal capacity of forms of contracting
persons are binding marriage are to be
upon Phil citizens even regulated by the law
though living abroad where it is
(Art. 15) celebrated. (Art. 26)
Foreign marriages void Foreign marriages
under Phil law due to may be void under
lack of an essential Phil law due to
requisite, even if valid absence of a formal
under foreign laws, will requisite under
not be recognized. foreign laws.
Proof of Foreign Marriage in order that it
may be upheld:
Provisions of the foreign law
Celebration of the marriage in
accordance with said provisions
Foreign Divorces
Those obtained by Filipino citizens
are void under Philippine law.

If the foreign spouse obtains a valid
divorce decree abroad capacitating
him/her to remarry, the Filipino spouse
shall have capacity to remarry under
Philippine law. (Art. 26, par.2)
Van Dorn v. Romillo (1985): A divorce
obtained by the foreign spouse in
accordance with the said spouse’s
national law is recognized in the
Philippines and releases Filipino spouse
from their marriage.
Quita v. Dandan (1998): The citizenship of
the spouses at the time of the divorce
determines their capacity to obtain a valid
17
divorce.
Llorente v. CA (2000): Citizenship at the
time the divorce is obtained determines its
validity. Since H was no longer a Filipino
citizen when he divorced W, the nationality
principle did not apply to him anymore and
the divorce is valid.
Garcia v. Recio (2001): A divorce decree
obtained by the foreign spouse is
recognized under Phil law if it is executed
in accordance with the foreigner’s
national law. The party must prove
divorce as a fact and that said divorce is
obtained in conformity with the law
allowing it, before the Philippine courts
can take judicial notice.
E. COMMON-LAW MARRIAGES
Art. 147. When a man and a woman who are
capacitated to marry each other, live
exclusively with each other as husband and
wife without the benefit of marriage or under
a void marriage, their wages and salaries
shall be owned by them in equal shares and
the property acquired by both of them
through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be
presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition
by the other party of any property shall be
deemed to have contributed jointly in the
acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of
the household.
Neither party can encumber or dispose by acts
inter vivos of his or her share in the property
 PERSONS
acquired during cohabitation and owned in
common, without the consent of the other,
until after the termination of their
cohabitation.
When only one of the parties to a void marriage
is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in
favor of their common children. In case of
default of or waiver by any or all of the common
children or their descendants, each vacant
share shall belong to the respective surviving
descendants. In the absence of descendants,
such share shall belong to the innocent party.
In all cases, the forfeiture shall take place upon
termination of the cohabitation. (144a)
Art. 148. In cases of cohabitation not falling under
the preceding Article, only the properties acquired
by both of the parties through their actual joint
contribution of money, property, or industry shall
be owned by them in common in proportion to
their respective contributions. In the absence of
proof to the contrary, their contributions and
corresponding shares are presumed to be equal.
The same rule and presumption shall apply to
joint deposits of money and evidences of credit.
If one of the parties is validly married to
another, his or her share in the co-ownership
shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is
not validly married to another, his or her shall
be forfeited in the manner provided in the last
paragraph of the preceding Article.
The foregoing rules on forfeiture shall
likewise apply even if both parties are in both
faith. (144a)
Though there is no technical marital
partnership between person living maritally
18
without being lawfully married, nevertheless
there is between them an informal civil
partnership which would entitle the parties to
an equal interest in property acquired by their
joint efforts [Lesaca vs Lesca (1952)]
Such form of co-ownership requires that the
man and woman living together must not in
any way be incapacitated to contract
marriage. [Eugenio vs Velez (1990)]
The falsity of the affidavit cannot be considered
as a mere irregularity in the formal requisites of
marriage. The law dispenses with the marriage
license requirement for a man and a woman
who have lived together and exclusively with
each other as husband and wife for a
continuous and unbroken period of at least five
years before the marriage. The aim of this
provision is to avoid exposing the parties to
humiliation, shame and embarrassment
concomitant with the scandalous cohabitation
of persons outside a valid marriage due to the
publication of every applicant’s name for a
marriage license. [De Castro vs De Castro
(2008)]
F. VOID AND VOIDABLE MARRIAGES
Presumption of Marriage
Presumption in favor of a valid marriage
(Art 220, CC)
The presumption that a man and a woman
deporting themselves as husband and wife
have entered into a lawful contract of
marriage is satisfactory if uncontradicted.
(Sec. 3 (aa), Rule 131, ROC)
In marriages of exceptional character, the
existence of the marriage is presumed, even
in the TOTAL ABSENCE of a marriage
license. (Vda. De Jacob v CA (1999))
If a marriage certificate is missing, and all
means HAVE NOT YET BEEN EXHAUSTED to
find it, then the marriage is presumed to exist
(Sevilla v. Cardenas (2006))
 PERSONS
Absence of a marriage certificate is not proof of
absence of marriage. To prove the fact of
marriage, the following would constitute
competent evidence: (1) the testimony of
witnesses to matrimony; (2) documentary
photos or videos of the wedding; (3) the
couple’s public cohabitation; and (4) birth and
baptismal certificates of children born during
the union. (Trinidad v CA (1998))
F. 1. VOID MARRIAGES
Type of Void Marriages
Absence of any formal/essential requisites
Bigamous and polygamous marriages
Subsequent marriage, upon
reappearance of spouse
Bad faith of both spouses
Psychologically Incapacitated spouse
Void subsequent marriages
Incestuous Marriages
Non-compliance with recording
requirement after declaration of nullity
Art. 39. The action or defense for the
declaration of absolute nullity shall not
prescribe. However, in case of marriage
celebrated before the effectivity of this
Code and falling under Article 36, such
action or defense shall prescribe in ten
years after this Code shall taken effect. (As
amended by Executive Order 227) (n)
a. Absence of Requisites
Art. 4(1): The absence of any essential or formal
requisites shall render the marriage void ab initio,
except as stated in Article 35 (a).
Art. 5: Any male or female of the age of
eighteen years or upwards not under any of
the impediments mentioned in Articles 37
and 38, may contract marriage.
Void from the Beginning (Art. 35)
19
Marriage where any party is below
eighteen years of age even with the
consent of parents or guardians
Marriage solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted
with either or both parties believing in good
faith that the solemnizing officer had legal
authority to do so.
Note: One’s belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of
law.
Marriage solemnized without a valid
marriage license, except in marriages
under exceptional circumstances
Bigamous or polygamous marriages
not falling under Article 41 (Art. 41:
subsequent marriage by present spouse
who obtained a declaration of
presumptive death for absent spouse
prior to the subsequent marriage)
There is a mistake as to the identity of
the other contracting party
Subsequent marriages that are void under
Article 53 (Non-compliance with Art. 52)
To be considered void on the ground of
absence of a marriage license, the law
requires that the absence of such marriage
license must be apparent on the marriage
contract, or at the very least, supported by a
certification from the local civil registrar that
no such marriage license was issued to the
parties. [Alcantara vs Alcantara (2007)]
An action for nullity of marriage is
imprescriptible. [Republic vs Dayot (2008)]
b. Bigamous and polygamous marriages
Article 40 (No Judicial Declaration Of Nullity)
A person entered into a subsequent marriage
without first getting a judicial declaration of
nullity of the first void marriage
 PERSONS
Article 41 (Presumptive Death)
Failure of the spouse present to obtain a
judicial declaration of presumptive death
before entering a subsequent marriage
Article 44 (Bad Faith of both spouses)
Both spouses entering a subsequent
marriage after presumptive death, who acted
in bad faith
It is now settled that the fact that the first
marriage is void from the beginning is not a
defense in a bigamy charge. As with a
voidable marriage, there must be a judicial
declaration of the nullity of a marriage before
contracting the second marriage. [Mercado
vs Tan (2000)]
The accused may still be charged with the
crime of bigamy, even if there is a subsequent
declaration of the nullity of the second
marriage, so long as the first marriage was
still subsisting when the second marriage was
celebrated. [Capili vs People (2013)]
The mere private act of signing a marriage
contract bears no semblance to a valid
marriage and thus, needs no judicial
declaration of nullity. Such act alone, without
more, cannot be deemed to constitute an
ostensibly valid marriage for which
petitioner might be held liable for bigamy
unless he first secures a judicial declaration of
nullity before he contracts a subsequent
marriage. [Morigo vs Morigo (2004)]
c. Subsequent Marriage when one
spouse is absent
Requirements for Subsequent Marriage to be
Valid When Prior Spouse is Absent (Art. 41):
Subsequent marriage due to ordinary
absence where:
Absent spouse had been absent for 4
consecutive years;
20
The spouse present had a well-founded
belief that absent spouse is dead; and
Judicial declaration of
presumptive death was secured (no
prejudice to the effect of the
reappearance of the absent spouse).
Subsequent marriage due to
extraordinary absence where:
Absent spouse had been missing for
2 consecutive years;
There is danger of death under the
circumstances set forth in Art. 391
CC attendant to the disappearance;
The spouse present had a well-
founded belief that the missing
person is dead; and
Judicial declaration of
presumptive death was secured (no
prejudice to the effect of the
reappearance of the absent spouse).
Extraordinary circumstances (Art. 391, CC):
ON BOARD VESSEL lost at sea
voyage, airplane,
ARMED FORCES in war, or
DANGER OF DEATH under other
circumstances, existence not known
Notes:
Institution of a summary proceeding
is not sufficient. There must also be a
summary judgment. (Balane)

Only the spouse present can file or
institute a summary proceeding for
the declaration of presumptive death
of the absentee. (Bienvenido case)

While an action for declaration of death
or absence under Rule 72, Section
1(m), expressly falls under the
category of special proceedings, a
petition for declaration of presumptive
death under Article 41 of the Family
Code is a summary proceeding, as
provided for by Article 238 of the same
Code. [Republic vs Granada (2012)]
 PERSONS

The belief of the present spouse must be circumstances;

the result of proper and honest to 4 years under
goodness inquiries and efforts to 2 years under extraordinary
ascertain the whereabouts of the absent
extraordinary circumstances
spouse and whether the absent
circumstances
spouse is still alive or is already
dead. This is drawn from As to In order to Declaration of
circumstances before and after the remarriage remarry, presumptive
disappearance and the nature and summary death is not
extent of inquiries made. [Republic vs proceeding is necessary
Granada (2012)] necessary

As to who can Can be The spouses

Effect of Reappearance of Absent
institute the instituted by themselves
Spouse GENERAL RULE: The subsequent
action the spouse
marriage remains valid.
present, any
EXCEPTION: It is automatically terminated by
interested
the recording of the affidavit of reappearance
of the absent spouse at the instance of any
party, and the
subsequent
interested person, with due notice to the
spouse
spouses of the subsequent marriage. (Art. 42)
As to effect on Subsequent Upon
Note: It is the recording of the affidavit of subsequent marriage is reappearance,
reappearance that automatically terminates marriage automatically judicial
the subsequent marriage. Hence, if absentee terminated by proceeding is
spouse reappears without recording affidavit of the recording necessary to
reappearance, then there is no legal effect. of an affidavit declare
Meanwhile, absentee spouse cannot remarry. of marriage null
(Tolentino) reappearance and void
of the absent
EXCEPTION TO THE EXCEPTION: If spouse
there is a judgment annulling the
previous marriage or declaring it void ab As to ground Well founded Generally
initio. (Art. 42) belief that the believed to be
absent spouse dead
Good Faith: PERIOD of absence for is dead
PRESUMPTIVE DEATH is MANDATORY
thus cannot be shortened by good faith and
if be done so will be VOID.
Related Provisions
Difference between Absence in the Civil
Code and Family Code

Family Code Civil Code

As to period 4 years under Absent for at
normal least 7 years;

21
 PERSONS
Art. 390, Civil Code. After an absence of
7 years, it being unknown whether or not
the absentee still lives, he shall be
presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead
for the purpose of opening his succession
till after an absence of 10 years. If he
disappeared after the age of 75 years, an
absence of 5 years shall be sufficient in
order that his succession may be opened.
Art. 391, Civil Code. The following shall be
presumed dead for all purposes, including the
division of the estate among the heirs:
A person on board a vessel lost during
a sea voyage, or an aeroplane which
is missing, who has not been heard of
for four years since the loss of the
vessel or aeroplane;
A person in the armed forces who has
taken part in war, and has been missing
for four years;
A person who has been in danger of
death under other circumstances and
his existence has not been known for
four years.
Notes:
Although 7 years is required for the
presumption of death of an absentee in the
CC, the FC makes an exception for the
purpose of remarriage by limiting such
requirement to 4 years.
d. Bad Faith of Both Spouses
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 and testamentary
dispositions made by one in favor of the
other are revoked by operation of law. (n)
22
e. Psychological incapacity
Contracted by any party who, at the time of
the celebration, was psychologically
incapacitated to comply with the essential
marital obligations of marriage, even if such
incapacity becomes manifest only after its
solemnization (Art. 36)
Republic v. Molina, (1997):
The burden of proof to show the nullity of the
marriage belongs to the plaintiff. This is to be
investigated by the OSG for collusion.
The root cause of the psychological incapacity
must be: (a) medically or clinically identified,
(b) alleged in the complaint, (c) sufficiently
proven by the experts, (d) clearly explained in
the decision.
The incapacity must be proven to be
existing at “the time of the celebration”
of the marriage.
Such incapacity must also be shown to be
medically or clinically permanent or
incurable.
Such illness must be grave enough to bring
about the disability of the party to assume the
essential obligations of marriage.
The essential marital obligations must be
those embraced by Articles 68 up to 71
of the Family Code as regards the
husband and wife as well as Articles 220,
221, and 225 of the same Code in regard
to parents and their children.
Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines,
while not controlling/decisive, should be
given great respect by our courts.
The trial court must order the prosecuting
attorney or fiscal and the Solicitor General
to appear as counsel for the state. No
decision shall be handed down unless the
Solicitor General issues a certification.
Santos v. Bedia-Santos, (1995): Laid down 3
characteristics for determining psychological
 PERSONS
incapacity: gravity, antecedent, and incurability.
Tsoi v. CA, (1997): Refusal of husband to
have sex was interpreted as psychological
incapacity. “A man who can but won’t is
psychologically incapacitated”
Marcos v. Marcos (2000): Psychological
incapacity maybe established by the totality of
the evidence presented. Personal medical
examination could be dispensed with.
Republic v. San Jose (2007): There is no
requirement that the respondent be medically
examined first.
Antonio v. Reyes, (2006): “Pathological liar”
considered as psychological incapacity,
Molina guidelines met.
Kalaw v. Fernandez (2015): In the task of
ascertaining the presence of psychological
incapacity as a ground for the nullity of
marriage, the courts, which are concededly
not endowed with expertise in the field of
psychology, must of necessity rely on the
opinions of experts in order to inform
themselves on the matter, and thus enable
themselves to arrive at an intelligent and
judicious judgment.
f. Incestuous marriages
Article 37 (Incestuous):
Between ascendants and descendants
of any degree, legitimate or illegitimate
Between brothers and sisters, whether
full or half blood, legitimate or illegitimate
g. Against Public Policy
Article 38 (Against Public Policy):
23
Between collateral blood relatives,
legitimate or illegitimate, up to the fourth
civil degree.
Between step-parents and step-children.
Note: Stepbrothers and stepsisters
can marry because marriages
between them are not among those
 enumerated in Article 38.
Between parents-in-law and children-
in-law.
Between adopting parent and adopted
child.
Between the surviving spouse of the
adopting parent and the adopted child.
Between the surviving spouse of the
adopted child and the adopter.
Between an adopted child and a
legitimate child of the adopter.
Between adopted children of the same
adopter.
Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her
own spouse.
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-in-
law with sister-in-law, stepbrother with
stepsister, guardian with ward, adopted with
illegitimate child of the adopter, adopted son
of the husband with adopted daughter of the
wife, parties who have been convicted of
adultery
h. Non-compliance with recording
requirement after declaration of nullity
Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have
not have been complied with, shall be null
and void.
Art. 52. The judgment of annulment or of
absolute nullity of the marriage, the partition
 PERSONS
and distribution of the properties of the
spouses and the delivery of the children's
presumptive legitimes shall be recorded in
the appropriate civil registry and registries of
property; otherwise, the same shall not affect
third persons.
Previous marriage declared void ab
initio or annulled
Under the Civil Code (superseded by the
Family Code), there was no need for a
judicial declaration of nullity of a previous
marriage for a subsequent marriage to be
valid (People v. Mendoza (1954))
Atienza v. Brillantes, (1995): Even if the
judge’s first marriage contracted in 1965 was
void for not having a marriage license, the
requirement for a judicial declaration of
nullity in Art. 40 still applies for his
subsequent marriage contracted in 1991.
Apiag v. Cantero, (1997): Where both
marriages were contracted prior to the
effectivity of the FC, the requirement of Art.
40 does not apply to the second marriage
where a right is already vested and on which
the FC cannot have retroactive effect.
Domingo v. CA, (1993): The judicial
declaration of nullity can be invoked for
purposes other than remarriage. Article 40
was interpreted as being a requirement for
purposes of remarriage but not limited for
that purpose. Separation of property is also
a valid purpose for filing for a judicial
declaration of nullity.
The word “solely” in Art. 40 referred to
validating subsequent marriages but NOT to
limiting the purposes for which a judicial
declaration of nullity can be invoked.
24
Article 43 and 44 (Effects of Termination
of Bigamous Marriage under Art. 42)
Art. 43:
Children of subsequent marriage –
conceived prior to its termination
considered legitimate; custody and
support decided by court in a proper
proceeding.
Property Regime – dissolved and
liquidated (party in bad faith shall forfeit
his/her share in favor of the common
children or if there are none, children of
the guilty spouse by a previous
marriage, and in case there are none, to
the innocent spouse).
Donation propter nuptias – remains
valid, (but if the donee contracted
marriage in bad faith, donations are
revoked by operation of law)
Insurance benefits – innocent spouse
may revoke designation of guilty party as
beneficiary, even if such designation is
stipulated as irrevocable.
Succession Rights – Party in bad faith shall
be disqualified to inherit from the innocent
spouse, whether testate or intestate.
Article 44 (Donations):
If both spouses of the subsequent marriage
acted in bad faith, all donations by reason of
marriage and testamentary dispositions
made by one party in favor of the other are
revoked by operation of law.
Who may file the petition for nullity of
void marriages?
GENERAL RULE: Only the husband or wife may file
the petition. (AM No. 02-11-10 SC, Sec. 2a)
Specifically, A.M. No. 02-11-10-SC extends
only to marriages covered by the Family Code,
which took effect on August 3, 1988, but, being
a procedural rule that is prospective in
application, is confined only to proceedings
 PERSONS
commenced after March 15, 2003. [Ablaza
vs Republic (2010)]
EXCEPTIONS:
Nullity of marriage cases commenced before
the effectivity of A.M. No. 02-11-10-SC
Marriages celebrated during the effectivity of
the Civil Code. [Carlos vs Sandoval (2008)]
However, the absence of a provision in the
Civil Code cannot be construed as a license
for any person to institute a nullity of
marriage case. Such person must appear to
be the party who stands to be benefited or
injured by the judgment in the suit, or the
party entitled to the avails of the suit. [Carlos
vs Sandoval (2008)]
Procedure in attacking a void marriage
GENERAL RULE: Void Marriages may be
attacked collaterally or directly.
EXCEPTION: A person in a void marriage
must first file for a declaration of nullity in
order to subsequently marry
Requisites for valid remarriage:
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 delivery of the children's
presumptive legitimes shall be recorded in
the appropriate civil registry and registries of
property; otherwise the same shall not affect
third persons. (n)
The previous marriage should be
judicially declared void or annulled (final
judgment) (Terre v. Terre (1992),
Atienza v. Brillantes (1995));
Must comply with the requirements of
Art. 52.
Safeguard against collusion and No
confession of judgment
25
Art. 48 (2): In the cases referred to in the
preceding paragraph, no judgment shall be
based upon a stipulation of facts or
confession of judgment.
Stipulation of Facts: An admission by both
parties after agreeing to the existence of any
of the grounds or facts that would constitute
a void/voidable marriage
Confession of judgment: The admission by
one party admitting his/her fault to cause the
invalidity of the marriage.
Participation of the OSG
The obvious intent of the AM 02-11-10-SC was
to require the OSG to appear as counsel for the
State in the capacity of a defensor vinculi (i.e.,
defender of the marital bond) to oppose
petitions for, and to appeal judgments in favor
of declarations of nullity of marriage under
Article 36 of the Family Code, thereby ensuring
that only the meritorious cases for the
declaration of nullity of marriages based on
psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical
antecedence-would succeed. [Mendoza vs
Republic (2012)]
No Motion to Dismiss
AM 02-11-10-SC Sec.7 prohibits the filing of
a motion to dismiss in actions for annulment
of marriage. [Aurelio vs Aurelio (2011)]
Effect of pendency of action for
declaration of nullity:
The court shall provide for the support
of the spouses,
The custody and support of the common
children, giving paramount consideration
to their moral and material welfare, their
choice of parent with whom they wish to
remain.
The court shall also provide for visitation
rights of other parent. (Art. 49)
 PERSONS
Effect of res judicata
Suffice it to state that parties are bound not
only as regards every matter offered and
received to sustain or defeat their claims or
demand but as to any other admissible
matter which might have been offered for that
purpose and of all other matters that could
have been adjudged in that case. [Mallion vs
Alcantara (2006)]
Effect of final judgment declaring nullity
The effects provided for by paragraphs (2), (3),
and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages
which are declared void ab initio or annulled
by final judgment under Articles 40 and 45
(Art. 50(1)).
Final judgment in such cases shall provide
for the:
Liquidation, partition, and distribution of
the properties of the spouses
Custody and support of the common
children
Delivery of their presumptive legitimes
 Unlesssuchmattershadbeen
adjudicated in previous judicial
 proceedings (Art. 50(2))
All creditors of the spouses/property regime
shall be notified of the proceedings for
liquidation (Art. 50(2 and 3))
In the partition, the conjugal dwelling and
lot shall be adjudicated to the spouse with
whom majority of the common children
remain (Art. 102 and 129) (Art. 50(4)
Presumptive legitimes, computed as of the
date of the final judgment, shall be delivered
in cash, property or sound securities:
Unless the parties, by mutual agreement
judicially approved, had already provided
for such (Art. 51(1))
26
The children/guardian/trustee of property
may ask for the enforcement of the
judgment (Art. 51(2))
The delivery of the presumptive legitimes
shall not prejudice the ultimate
successional rights, but the value of the
properties already received shall be
considered as advances on their legitime
(Art. 51(3))
GENERALLY, children born or conceived
within void marriages are illegitimate.
EXCEPTIONS:
Children conceived or born before
the judgment under Article 36 has
 become final and executory (Art. 54)
Children conceived or born of
subsequent marriages under Article
53 (Art. 54)

2. VOIDABLE OR ANNULLABLE
MARRIAGE
Art. 14: In case either or both of the contracting
parties, not having been emancipated by a
previous marriage, are between the ages of
eighteen and twenty-one, In addition to the
requirements of the preceding articles:
Exhibit to the local civil registrar the consent
to their marriage of their father, mother,
surviving parent or guardian, or
persons having legal charge of them, in
 the order mentioned
Manifested in writing by the interested
who personally appears 
 party,
the proper local civil registrar, or
before
In the form of an affidavit made in the
presence of two witnesses and
 by law to administer oaths
attested before any official authorized
The personal manifestation shall be recorded
in both applications formarriage license,
and the affidavit, if one
 PERSONS
is executed instead, shall be attached
to said applications.
Grounds for Annulment
Article 4 states that “xxx A defect in any of
the essential requisites shall render the
marriage voidable as provided in Article 45.”
Article 45. Marriage may be annulled on the
following grounds existing at time of marriage:
One of the parties is 18 or above but
below 21 years old, and there is no
parental consent.
Either party was of unsound mind
(insanity).
The consent of either party was obtained
through fraud (different from mistake in
identity)
The consent of either party was obtained
through force, intimidation, or undue
influence.
Either party is physically incapable of
consummating the marriage (impotence;
this is different from sterility, which is the
inability to produce offspring).
Either party has a serious and incurable
sexually-transmissible disease, even if
not concealed.*
Action to Annul: Action in rem, concerns
status of parties; res is relation between
parties or marriage tie; jurisdiction depends
on nationality or domicile not the place of
celebration.
Grounds for Annulment explained:
Lack of parental consent
18 ≤ x < 21 without parental consent
Ratified by party 18 or above but below
21 upon free cohabitation upon
reaching 21.
TOLENTINO: parents whose consents were
wanting may ratify before 21; this right
can be waived; however, the Code
27
Commission believes that no such
ratification can be made by the parent.
Moe v. Dinkins, (1981): In defending the
requirement of parental consent, the Court
held that the State has power to make
adjustments in the constitutional rights of
minors based on the following grounds: 1)
the peculiar vulnerability of children, 2) to
protect minors from immature decision
making and prevent unstable marriages, 3)
on the presumption that parents act in the
best interests of their children in child
rearing.
Insanity
Mental incapacity or insanity is a vice of
consent; insanity (1) of varying
degrees, (2) curable being an illness,
capable of ratification or convalidation,
(3) has lucid intervals, (4) ground
only for annulment in many countries
Can be ratified by cohabitation after
insanity is cured or during a lucid
interval
Mere mental weakness is not a ground
for annulment, but if found grave
enough, it may amount to
psychological incapacity.
Intoxication, somnambulism where one
had no mental capacity to give
consent is equivalent to insanity
Must EXIST AT THE TIME of the celebration
of the marriage. Insanity that occurs after
the celebration of marriage does not
constitute a cause for nullity (Katipunan
v. Tenorio (1937))
Law presumes SANITY, burden of proof
on party alleging insanity
Fraud
Only those enumerated in Art. 46:
Non-disclosure of previous 
CONVICTION by final judgment of a
 PERSONS
crime involving MORAL
TURPITUDE
Concealment by wife at the time of
  was pregnant
marriage, that she
by another man
 Concealment of STD regardless of
nature existing at time of marriage
Concealment of drug addiction,
habitual alcoholism,
homosexuality, 
lesbianism
 existing at time of marriage
NO other misrepresentation or deceit
of CHARACTER, HEALTH, RANK,
FORTUNE OR CHASTITY shall
constitute FRAUD.
Conviction of Crime:
 requisites are
 Moral turpitude
 
Conviction
Concealment of Pregnancy
Fraud against very essence of
marriage; importance of procreation
of children; an assault to the
 integrity
 of the union by introducing
 the time of the marriage.
ALIEN BLOOD
If husband knew of pregnancy, the
 marriage cannot be annulled on
the ground of concealment
May be ratified upon free cohabitation
after knowledge of fraud.
Art. 45 STD Art. 46 STD
Ground for annulment The STD is a type of
fraud which is a
ground for annulment
Does not have to be Must be concealed
concealed
Must be serious and Need not be serious
incurable nor incurable
The STD itself is the It is the concealment
ground for annulment that gives rise to the
annulment
Effect of Cure to Fraud in Art. 46:
Recovery or rehabilitation from STD, drug
addiction, and habitual alcoholism will NOT
28
BAR ACTION for annulment; The defect is
not the disease, but the FRAUD which
VITIATED CONSENT.
Buccat v. Mangonon de Buccat, (1941):
W gave birth 3 months after marriage, H
filed for annulment: concealment of non-
virginity. Denied. Court held that it was
unbelievable that husband could not have
noticed when wife had been at least 6
months pregnant prior to marriage.
Aquino v. Delizo, (1960): The Supreme
Court granted annulment because the wife
concealed the fact that she was 4 months
pregnant during the time of the marriage.
Since Delizo was “naturally plump,” Aquino
could hardly be expected to know, by mere
looking, whether or not she was pregnant at
Almelor v. RTC, (2008): It is the concealment
of homosexuality, and not homosexuality per
se, that vitiates the consent of the innocent
party. Such concealment presupposes bad
faith and intent to defraud the other party in
giving consent to the marriage.
Force, intimidation, undue influence
FORCE must be one as to prevent
party from acting as a free agent; will
destroyed by fear/compulsion
INTIMIDATION must be one as to
compel the party by a reasonable/well-
grounded fear of an imminent and
grave evil upon his person/properties
DEGREE OF INTIMIDATION: age,
sex, condition of person borne in mind
Threat or intimidation as not to act as
FREE AGENT; i.e. threatened by armed
demonstrations (Tiongco v. Matig-a)
Committee added “undue influence”,
maybe compelled to enter out of
REVERENTIAL FEAR e.g., fear of
 PERSONS
causing distress to parents,
grandparents, etc.
(f) May be ratified upon cohabitation after
force, intimidation, or undue influence
has ceased or disappeared.
e. Impotency
(a) Must exist at time of marriage, and be
continuous and incurable. If incapacity
can be remedied or is removable by
operation, NOT ANNULLABLE (Sarao v
Guevarra(1940))
(b) Physical condition: sexual intercourse
with a person of the opposite sex is
impossible, not mere sterility
(c) Only the potent spouse can file the
action for annulment and he/she must
not have been aware of the other’s
impotency at the time of marriage
(Sempio-Diy)  vagina
 If he/she was aware, it is
implied that he/she renouncedf. Sexually-transmissible disease serious and
copulation by consenting to
the marriage. (Tolentino)
(d) When both spouses are impotent,
marriage cannot be annulled because
neither spouse is aggrieved. (Sempio-
Diy)

An impotent plaintiff could not
have expected copulation with
the other spouse. (Tolentino)
(e) POTENCY PRESUMED; party who
alleges impotency has burden of proof
(Jimenez v Canizares (1960))
(f) REFUSAL of wife to be examined
DOES NOT PRESUME impotency
because Filipino women are inherently
shy & bashful; TC must order physical
examination because w/o proof of
29
impotency, she is presumed potent; to
order her to undergo physical exam
does not infringe her right against self-
incrimination (Jimenez v Canizares)
NOTE: If she continues to refuse the
physical exam, she can be held in
contempt & ordered confined in jail
until she does so
(g) Villanueva vs. CA (2006): Absence of
cohabitation is not a ground for
annulment.
(h) RELATIVE IMPOTENCY: may now be
invoked because there are cases where
one is impotent with respect to his/her
spouse but not with other men or
women.
(i) EXAMPLE: penile erection to other
women possible; unusually large penis
cannot fit with abnormally small
incurable
(a) Should exist at the time of the
marriage
(b) Should be found serious
(c) Should appear to be incurable
(d) Reason: danger to the health of spouse
& offspring/s
(e) Same as incurable impotency

(f) Not subject to ratification cannot be
ratified or convalidated by
cohabitation:
Affliction of STD is unknown to
the other spouse (Balane)
The other spouse must also be
free from a similar STD. (Balane)
 PERSONS

Who may file, Prescription, Ratification

Ground Who can file Prescription Ratification

(Art. 45) (Art. 47) (Art. 47) (Art. 45)
Lack of Party 18 or above but Within 5 years after Free cohabitation after
parental below 21 attaining 21. attaining age of 21.
consent Parent or guardian who Before party below 21
did not give consent reaches 21.
Insanity Sane spouse with no Any time before the death Free cohabitation of insane
knowledge of the other’s of either party party after insane party
insanity comes to reason

Legal guardian of insane

party
Insane party During lucid interval or
after regaining sanity, and
before death
Fraud Injured party (defrauded Within 5 years after Free cohabitation after
party) discovery of fraud having full knowledge of
fraud
Force, Injured party Within 5 years after Free cohabitation after the
intimidation, disappearance of force, force or intimidation or
undue undue influence, or undue influence has
influence intimidation ceased or disappeared
Impotence Potent spouse Within 5 years after Cannot be ratified but
marriage action prescribes
STD Healthy party Within 5 years after Cannot be ratified but
marriage action prescribes

30
 PERSONS AND FAMILY RELATIONS
Marriages Not Subject to Ratification/
Convalidation by cohabitation
One spouse is incurably impotent (Art. 47
– prescription: 5 years)
One spouse has an incurable STD (Art.
47 – prescription: 5 years)
Presence of Prosecutor
Art. 48: To prevent collusion between the
parties, fabrication or suppression of
evidence, the prosecuting attorney or fiscal
shall appear on behalf of the State.
Corpuz v. Ochoterena, (2004): In a legal
separation or annulment case, the prosecuting
attorney must first rule out collusion as a
condition sine qua non for further proceedings.
A certification by the prosecutor that he was
present during the hearing and even cross-
examined the plaintiff does not suffice to comply
with the mandatory requirement.
Marriages dissolved by foreign judgment
Aliens may obtain divorces abroad, which
may be recognized in the Philippines,
provided they are valid according to their
national law. The marriage tie when thus
severed as to one party, ceases to bind either.
[Van Dorn vs Romillo (1985)]
A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the Civil
Code. In mixed marriages involving a Filipino
and a foreigner, Article 26 of the Family Code
allows the former to contract a subsequent
marriage in case the divorce is “validly
obtained abroad by the alien spouse
capacitating him or her to remarry.” A divorce
obtained abroad by a couple, who are both
aliens, may be recognized in the Philippines,
provided it is consistent with their respective
national laws. [Garcia vs Recio (2001)]
31
Courts will only determine (1) whether the
foreign judgment is inconsistent with an
overriding public policy in the Philippines; and
whether any alleging party is able to prove an
extrinsic ground to repel the foreign judgment,
i.e. want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law
or fact. If there is neither inconsistency with
public policy nor adequate proof to repel the
judgment, Philippine courts should, by
default, recognize the foreign judgment as
part of the comity of nations. [Fujiki vs
Marinay (2013)]
G. THE LAW ON SEPARATION OF
THE SPOUSES
SEPARATION IN FACT
Art. 239. When a husband and wife are
separated in fact, or one has abandoned the
other and one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by law
but such consent is withheld or cannot be
obtained, a verified petition may be filed in
court alleging the foregoing facts.
The petition shall attach the proposed deed, if
any, embodying the transaction, and, if none,
shall describe in detail the said transaction and
state the reason why the required consent
thereto cannot be secured. In any case, the final
deed duly executed by the parties shall be
submitted to and approved by the court. (n)
AGREEMENT TO SEPARATE
A notary public should not facilitate the
disintegration of a marriage and the family by
encouraging the separation of the spouses
and extrajudicially dissolving the conjugal
partnership. [Espinosa vs Omana (2011)]
 PERSONS AND FAMILY RELATIONS
ABSOLUTE DIVORCE
Article 26, par. 2 Where a marriage between
a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under
Philippine law. (As amended by Executive
Order 227)
If both parties are Muslims, there is a
presumption that the Muslim Code or Muslim
law is complied with. If together with it or in
addition to it, the marriage is likewise
solemnized in accordance with the Civil Code of
the Philippines, in a so-called combined Muslim-
Civil marriage rites whichever comes first is the
validating rite and the second rite is merely
ceremonial one. But, in this case, as long as
both parties are Muslims, this Muslim Code will
apply. [Zamoranos vs People (2011)]
One of the effects of irrevocable talaq, as well
as other kinds of divorce, refers to severance
of matrimonial bond, entitling one to remarry.
[Zamoranos vs People (2011)]
Note: The grounds for legal separation are
exclusive. (Article 55)
These must be filed within 5 years after
occurrence of cause (Article 57)
Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of
the petitioner;
Physical violence or moral Pressure to
compel the petitioner to change religious
or political affiliation;
Attempt of respondent to Corrupt or
induce the petitioner, a common child, or
a child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement;
32
Final judgment sentencing the respondent
to imprisonment of more than six years,
even if pardoned;
Drug addiction or habitual alcoholism of
the respondent;
Lesbianism or Homosexuality of the
respondent;
Contracting by the respondent of a
subsequent Bigamous marriage, whether
in the Philippines or abroad;
Sexual infidelity or perversion;
Attempt by the respondent Against the
life of the petitioner; or
Abandonment of petitioner by respondent
without justifiable cause for more than one
year.
People v. Zapata and Bondoc (1951):
Adultery is not a continuing crime; it is
consummated at every moment of carnal
knowledge. Thus, every sexual act is a
ground for legal separation.
Gandioco v. Peñaranda (1989): For
sexual infidelity as a ground for legal
separation, there is no need for a prior
conviction for concubinage, because
legal separation only requires a
preponderance of evidence, as opposed
to proof beyond reasonable doubt.
Lapuz Sy v. Eufemio (1972): The death of
one party in a legal separation case abates
the action. This is because the death of either
spouse automatically dissolves the marriage.
An action for legal separation is also purely
personal between the spouses.
Dela Cruz. v. Dela Cruz (1968):
Abandonment is not mere physical
estrangement but also financial and
moral desertion. There must be an
absolute cessation of marital relations,
duties, and rights with the intention of
perpetual separation.
 PERSONS AND FAMILY RELATIONS
Almelor vs RTC (2008): It is the
concealment of homosexuality, and not
homosexuality per se, that vitiates the
consent of the innocent party. Such
concealment presupposes bad faith and
intent to defraud the other party in giving
consent to the marriage.
Acts of Violence according to RA 9262
Causing physical harm to the woman or
her child;
Threatening to cause the woman or her
child physical harm;
Attempting to cause the woman or her
child physical harm;
Placing the woman or her child in fear of
imminent physical harm;
Attempting to compel or compelling the
woman or her child to engage in conduct
which the woman or her child has the right
to desist from or desist from conduct which
the woman or her child has the right to
engage in, or attempting to restrict or
restricting the woman's or her child's
freedom of movement or conduct by force or
threat of force, physical or other harm or
threat of physical or other harm, or
intimidation directed against the woman or
child. This shall include, but not limited to,
the following acts committed with the
purpose or effect of controlling or restricting
the woman's or her child's movement or
conduct:
Threatening to deprive or actually
depriving the woman or her child
of custody to her/his family;
Depriving or threatening to deprive
the woman or her children of
financial support legally due her or
her family, or deliberately providing
the woman's children insufficient
financial support;
33
Depriving or threatening to
deprive the woman or her child of
a legal right;
Preventing the woman in
engaging in any legitimate
profession, occupation, business
or activity or controlling the victim's
own money or properties, or solely
controlling the conjugal or
common money, or properties;
Inflicting or threatening to inflict physical
harm on oneself for the purpose of
controlling her actions or decisions;
Causing or attempting to cause the woman or
her child to engage in any sexual activity
which does not constitute rape, by force or
threat of force, physical harm, or through
intimidation directed against the woman or her
child or her/his immediate family;
Engaging in purposeful, knowing, or
reckless conduct, personally or through
another, that alarms or causes substantial
emotional or psychological distress to the
woman or her child. This shall include, but
not be limited to, the following acts:
Stalking or following the woman or
her child in public or private places;
Peering in the window or lingering
outside the residence of the
woman or her child;
Entering or remaining in the
dwelling or on the property of the
woman or her child against her/his
will;
Destroying the property and
personal belongings or inflicting
harm to animals or pets of the
woman or her child; and
Engaging in any form of
harassment or violence;
Causing mental or emotional anguish,
public ridicule or humiliation to the woman
or her child, including, but not limited to,
repeated verbal and emotional abuse, and
denial of financial support or custody of
 PERSONS AND FAMILY RELATIONS
minor children of access to the woman's
child/children.
DEFENSES
Grounds for denying legal separation (Article
56):
Condonation by aggrieved party
Consent by aggrieved party to the
commission of the offense
Connivance between parties in the
commission of the offense
Mutual guilt or Recrimination between
spouses in the commission of any ground
for legal separation
Collusion between parties to obtain
decree of legal separation
Prescription of action for legal separation
(Art. 57: 5 years from occurrence of the
cause of action)
Reconciliation of parties during
pendency of action (Art. 66 par.1)
Death of either party during pendency of
action (Lapuz-Sy vs. Eufemio)
WHEN TO FILE/TRY ACTIONS
An action for legal separation shall be filed
within five years from the time of the
occurrence of the cause. (Art. 57)
COOLING-OFF PERIOD
RECONCILIATION EFFORTS
Action cannot be tried before six months have
elapsed from the filing of the petition (Art. 58).
Actions cannot be tried unless the court has
attempted to reconcile the spouses, and
determined that despite such efforts,
reconciliation is highly improbable (Art. 59)
Note: This is without prejudice to judicial
determination of custody of children, alimony,
and support pendente lite.
Araneta vs. Concepcion, (1956): Courts
can still resolve other issues, pending the
waiting period or cooling off period. In
resolving other issues, courts should try not
to touch, as much as possible, on the main
issue (i.e. adultery if that is the ground
used). However, Court must still receive
evidence if just to settle incidental issues of
support and custody.
Note: This provision of the Family Code
dictating a mandatory 6-month cooling-off
period does not apply in cases where
violence, as used in RA 9262 (Anti-Violence
against Women and their Children), is
alleged. The case should be heard as soon as
possible by the court.
CONFESSION OF JUDGMENT
No decree of legal separation shall be based
upon a stipulation of facts or a confession of
judgment (Art. 60, par. 1. FC).
Note: Art. 60 par. 1 applies only if the judgment
was based solely on the stipulation of facts or
solely on the confession of judgment. Thus, if
other grounds were used, Art. 60 par. 1 is not
applicable. (Balane)
Ocampo v Florenciano (1960): The
AND prohibition on confession of judgment does not
mean that the Court will not grant petition if one
party admits to being guilty of the charges of
adultery. The point of this provision is that the
Court should still admit evidence, not decide
just based on an admission of guilt. Because
what is prohibited is handing down a decree of
legal separation based solely on a confession
of judgment.
EFFECTS OF FILING PETITION
The spouses are entitled to Live separately,
but the marital bond is not severed. (Art. 61
(1))
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 PERSONS AND FAMILY RELATIONS
Administration of Community or Conjugal
Property – If there is no written agreement
between the parties, the court shall designate
one of them or a third person to administer the
ACP or CPG. (Art. 61, par. 2)
EFFECTS OF PENDENCY
The Court shall provide for: (Art. 62, cf. Art.
49. FC)
 Support of spouses
Custody of children
The court shall give custody of children to
one of them, if there is no written
agreement between the spouses. 
Visitation rights of the other spouse
EFFECTS OF LEGAL SEPARATION
The spouses can live separately (Art. 63)
but the marriage bonds are not severed.
The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty
spouse shall be forfeited in favor the
common children, previous children, or
innocent spouse, in that order (Art. 63. cf.
Art. 43, par. 2).
Custody of the minor children shall be
awarded to the innocent spouse (Art. 63,
cf. Art 213)
Guilty spouse shall be disqualified
from Inheriting from innocent spouse by
intestate succession. The provisions in
favor of the guilty party in the will of the
innocent spouse shall also be revoked by
operation of law. (Art. 63)
Donations in favor of the guilty spouse
may be revoked (Art. 64) but this action
35
prescribes after 5 years from the decree
of legal separation.
(6) Innocent spouse may also revoke
designation of guilty spouse as
beneficiary in an Insurance policy, even
if such stipulations are irrevocable. (Art.
64. FC, cf. PD 612, sec. 11)
Obligation for Mutual support ceases, but
the court may order the guilty spouse to
support the innocent spouse. (Art. 198)
The wife shall continue to use the Surname of
the husband even after the decree for legal
separation. (Laperal v. Republic (1992))
RECONCILIATION
Should the spouses reconcile, they should file a
corresponding joint manifestation under oath
of such reconciliation, duly signed by them and
filed with the court in the same proceeding for
legal separation. (Art. 65)
Effects of Reconciliation
Proceedings for legal separation shall be
terminated at whatever stage. (Art. 66)
If there is a final decree of legal separation, it
shall be set aside. (Art. 66)
The separation of property and forfeiture of
share of guilty spouse shall subsist, unless the
spouses agree to revive their former property
regime or to institute another property regime.
(Art. 66 cf. Art. 67)
Joint custody of children is restored.
The right to intestate succession by guilty
spouse from innocent spouse is restored.
The right to testamentary succession
depends on the will of the innocent spouse.
 PERSONS AND FAMILY RELATIONS

Annex to Void and Voidable Marriages and Legal Separation

Grounds
Void Marriages Voidable Marriages Legal Separation
(1) One is a minor (10) Lack of parental (17) Repeated Physical Violence
(2) No authority to marry consent (18) Pressure to compel to change
(3) No valid marriage (11) Insanity religious/political affiliations
license (12) Fraud (19) Corruption / Inducement to engage in
(4) Bigamous and (13) Force, prostitution
polygamous Intimidation or (20) Final judgement with sentence of more
marriages (14) Undue Influence than 6 yrs.
(5) Mistake of identity (15) Impotence (21) Drug Addiction / Habitual Alcoholism
(6) Void subsequent (16) 6. Serious and (22) Homosexuality / Lesbianism
marriage Incurable STD (23) Bigamous marriage
(7) Psychological (24) Sexual Infidelity
incapacity (25) Attempts against the life of petitioner
(8) Incestuous Marriages (26) 10. Abandonment without just cause for
(9) 9. Marriages against more than 1 year
public policy

Effects of Filing / Pending Decree

Void/Voidable Marriages Legal Separation
Support for the spouses
Custody and support for the children
Visitation rights to the other spouse

Effects of Affidavit of Reappearance, Judicial Declaration of Nullity, Annulment and Legal Separation
Void Marriages Terminated Marriage Voidable Legal Separation
(Art. 41) Marriages
Status of Marital ties
Severed Severed Severed Not Severed
Status of Marriage
Void ab initio Subsequent marriage Void Valid
is terminated (not
invalidated)
Status of Children born and conceived before termination
Illegitimate Legitimate Legitimate Legitimate
EXCEPT: Art. 36 and 35
conceived and born before
judgment (legitimate)
Custody of Children
Court Proceeding Court Proceeding Court Proceeding Innocent Spouse
Property Relations
1. Dissolution and Liquidation of properties
a. Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order):
i. Common children
ii. Children of the guilty spouse by previous marriage

36
 PERSONS AND FAMILY RELATIONS

The innocent spouse

Notification of creditors with the proceedings for liquidation
Conjugal dwelling to be adjudicated to the spouse who has custody of majority of common
children
Insurance policy may be revoked only by the innocent spouse (Legal Separation: Only
within 5 years)
Spouse in bad faith/guilty shall be disqualified to inherit from innocent spouse (intestate
succession only in legal separation)
Donation Propter Nuptias
Valid, but if done contracted marriage in bad faith, revoked by operation of May be revoked
law within 5 years