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Conclusive Presumption: That everyone

I. Effect and knows the law, even if they have no actual


knowledge of the law.
Application of Laws
Mistake of Fact & Difficult Questions of
A. WHEN LAWS TAKE EFFECT Law: These may excuse a party from the
Art. 2. Laws shall take effect after fifteen legal consequences of his conduct; but not
days following the completion of their ignorance of law:
publication either in the Official Gazette, or in
 In specific instances provided by law,
a newspaper of general circulation in the mistake as to difficult legal questions has
Philippines, unless it is otherwise provided. been given the same effect as a mistake
(As amended by E.O. 200)
 of fact. (Tolentino)
 The laws referred to by this article are
General Rules:
those of the Philippines. There is no
The clause "unless it is otherwise provided"
conclusive presumption of knowledge of
refers to the date of effectivity and not to the
foreign laws. (Tolentino)
requirement of publication itself, which
cannot in any event be omitted. [Tanada vs
C. RETROACTIVITY OF LAWS
Tuvera (1986)]
Art. 4. Laws shall have no retroactive effect,
unless the contrary is provided. (3)
Publication is indispensable in every case,
but the legislature may in its discretion General Rule: All statutes are to be construed
provide that the usual fifteen-day period shall as having only prospective operation.
be shortened or extended. [Tanada vs
Tuvera (1986)] Exceptions
(1) When the law itself expressly
When, on the other hand, the administrative provides Exceptions to Exception:
rule goes beyond merely providing for the Ex post facto law
means that can facilitate or render least Impairment of contract
cumbersome the implementation of the law (2) In case of remedial statutes
but substantially increases the burden of (3) In case of curative statutes
those governed, it behooves the agency to (4) In case of laws interpreting others
accord at least to those directly affected a (5) In case of laws creating new rights
chance to be heard, and thereafter to be duly [Bona v. Briones (1918)]
informed, before that new issuance is given (6) Penal Laws favorable to the accused
the force and effect of law. [Commissioner
vs. Hypermix (2012)] D. MANDATORY OR PROHIBITORY
LAWS
Exception:
Art. 5. Acts executed against the provisions
Interpretative regulations and those internal
of mandatory or prohibitory laws shall be
in nature. [Tanada vs Tuvera (1986)]
void, except when the law itself authorizes
their validity. (4a)
B. IGNORANCE OF THE LAW
Art. 3. Ignorance of the law excuses no one Art. 17, par. 3 Prohibitive laws concerning
from compliance therewith. (2) persons, their acts or property, and those

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which have for their object public order, public incompatible or inconsistent with those
policy and good customs shall not be rendered of an earlier law.
ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in The fundament is that the legislature should be
a foreign country. (11a) presumed to have known the existing laws on the
subject and not have enacted conflicting statutes.
E. WAIVER OF RIGHTS Hence, all doubts must be resolved against any
Art. 6. Rights may be waived, unless the implied repeal, and all efforts should be exerted
waiver is contrary to law, public order, public in order to harmonize and give effect to all laws
policy, morals, or good customs, or on the subject. [Republic vs. Marcopper Mining
prejudicial to a third person with a right (2000)]
recognized by law. (4a)
G. JUDICIAL DECISIONS
Waiver – the relinquishment of a known right Art. 8. Judicial decisions applying or
with both knowledge of its existence and an interpreting the laws or the Constitution shall
intention to relinquish it. [Portland v. Spillman] form a part of the legal system of the
Philippines. (n)
Exceptions:
(1) If the waiver is contrary to law, public Jurisprudence cannot be considered as an
order, public policy, morals or good independent source of law; it cannot create
customs law. (1 Camus 38 as cited in Tolentino)
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist The interpretation or construction placed by the
(4) If the right is a natural right courts establishes the contemporaneous
legislative intent of the law. The latter as so
F. REPEAL OF LAWS interpreted and construed would thus
Art. 7. Laws are repealed only by constitute a part of that law as of the date
subsequent ones, and their violation or non- the statute is enacted. It is only when a prior
observance shall not be excused by disuse, ruling of this Court finds itself later overruled,
or custom or practice to the contrary. and a different view is adopted, that the new
doctrine may have to be applied prospectively
When the courts declared a law to be in favor of parties who have relied on the old
inconsistent with the Constitution, the former doctrine and have acted in good faith in
shall be void and the latter shall govern. accordance therewith. [Pesca v Pesca (2001)]

Administrative or executive acts, orders and H. DUTY TO RENDER JUDGMENT


regulations shall be valid only when they are Art. 9. No judge or court shall decline to
not contrary to the laws or the Constitution. render judgment by reason of the silence,
(5a) obscurity or insufficiency of the laws. (6)

Two Kinds of Repeal (Tolentino) Exception:


Express or Declared – contained in a This article does not apply to criminal
special provision of a subsequent law prosecutions because where there is no law
Implied or Tacit – takes place when the punishing an act, the case must be
provisions of the subsequent law are dismissed. (Tolentino)

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automatically be considered the next


I. PRESUMPTION AND working day
APPLICABILITY OF CUSTOM  If the period arises from a contractual
Art. 10. In case of doubt in the interpretation relationship, the act will still be due on
or application of laws, it is presumed that the that Legal Holiday/Sunday
lawmaking body intended right and justice to
prevail. (n) There obviously exists a manifest
incompatibility in the manner of computing
Art. 11. Customs which are contrary to law, legal periods between the Civil Code and the
public order or public policy shall not be Revised Administrative Code of 1987. Since
countenanced. (n) the Administrative Code is the more recent
law, it governs the computation of legal
Art. 12. A custom must be proved as a fact, period [CIR vs Primetown (2007)]
according to the rules of evidence. (n)
K. APPLICABILITY OF PENAL LAWS
J. LEGAL PERIODS Art. 14. Penal laws and those of public security
Art. 13. When the laws speak of years, months, and safety shall be obligatory upon all who live
days or nights, it shall be understood that years or sojourn in the Philippine territory, subject to
are of three hundred sixty-five days each; the principles of public international law and to
months, of thirty days; days, of twenty-four treaty stipulations. (8a)
hours; and nights from sunset to sunrise.
Exemptions under International Law (Theory of
If months are designated by their name, they Extraterritoriality):
shall be computed by the number of days II. When the offense is committed by a foreign
which they respectively have. sovereign while in Philippine territory
JJ. When the offense is committed by
In computing a period, the first day shall be diplomatic representatives
excluded, and the last day included. (7a) KK. When the offense is committed in a public
or armed vessel of a foreign country.
Revised Administrative Code Section 31.
Legal Periods. - "Year" shall be understood to L. BINDING EFFECT
be twelve calendar months; "month" of thirty Art. 15. Laws relating to family rights and
days, unless it refers to a specific calendar duties, or to the status, condition and legal
month in which case it shall be computed capacity of persons are binding upon citizens
according to the number of days the specific of the Philippines, even though living abroad.
month contains; "day," to a day of twenty-four (9a)
hours; and "night," from sunset to sunrise.

Policy on Last Day being a Legal Art. 16. Real property as well as personal
Holiday/Sunday property is subject to the law of the country
 If the period arises by statute or orders where it is stipulated.
by the government, the last day will
However, intestate and testamentary rights and to the intrinsic validity of
successions, both with respect to the order of testamentary provisions, shall be regulated
succession and to the amount of successional by the national law of the person whose

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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.

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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.

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D. JURIDICAL PERSONS E. RESTRICTIONS ON


Article 44. The following are juridical persons: CIVIL CAPACITY
(1)The State and its political subdivisions;
(2) Other corporations, institutions and entities E. 1. PRESUMPTION OF CAPACITY
for public interest or purpose, created by law; Article 37. Juridical capacity, which is the
their personality begins as soon as they have fitness to be the subject of legal relations, is
been constituted according to law; inherent in every natural person and is lost
(3) Corporations, partnerships and only through death. Capacity to act, which is
associations for private interest or purpose to the power to do acts with legal effect, is
which the law grants a juridical personality, acquired and may be lost. (n)
separate and distinct from that of each
shareholder, partner or member. (35a) E. 2. RESTRICTIONS ON CAPACITY
TO ACT
Article 45. Juridical persons mentioned in Nos. 1
Art. 38. Minority, insanity or imbecility, the
and 2 of the preceding article are governed by the
state of being a deaf-mute, prodigality and
laws creating or recognizing them.
civil interdiction are mere restrictions on
Private corporations are regulated by laws capacity to act, and do not exempt the
of general application on the subject. incapacitated person from certain obligations,
Partnerships and associations for private as when the latter arise from his acts or from
interest or purpose are governed by the property relations, such as easements.
provisions of this Code concerning
partnerships. Art. 39. The following circumstances, among
(36 and 37a) others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-
Article 46. Juridical persons may acquire mute, penalty, prodigality, family relations,
and possess property of all kinds, as well alienage, absence, insolvency and trusteeship.
as incur obligations and bring civil or criminal The consequences of these circumstances are
actions, in conformity with the laws and governed in this Code, other codes, the Rules of
regulations of their organization. (38a) Court, and in special laws.
Capacity to act is not limited on account of
Article 47. Upon the dissolution of religious belief or political opinion.
corporations, institutions and other entities for
A married woman, twenty-one years of age
public interest or purpose mentioned in No. 2 or over, is qualified for all acts of civil life,
of article 44, their property and other assets except in cases specified by law.
shall be disposed of in pursuance of law or the
charter creating them. If nothing has been
General rule: Incapacitated persons are not
specified on this point, the property and other
exempt from certain obligations arising from
assets shall be applied to similar purposes for
his acts or property relations.
the benefit of the region, province, city or
municipality which during the existence of the
institution derived the principal benefits from
the same. (39a)

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I. MINORITY Effects on Marriage


RA 6809 (1989): An act lowering the age of (1) May not yet contract marriage (Art. 5, FC).
majority from twenty-one to eighteen years. (2) Marriages, where one of the parties is
below 18, even with the consent of
Effects on Contracts parents/guardians, are VOID (Art. 35, FC).

Effect on Crimes
(1) They cannot give consent to a contract (1) General rule: EXEMPTED from
(Art. 1327 (1)) criminal liability
(2) A contract where one of the parties is a (2) Exception: Acted with discernment,
minor is voidable(Art. 1390(1)) and the minor is between 15 and 18
(3) A contract is unenforceable when both years of age.
of the parties are minors (incapable of
II. INSANITY
giving consent) (Art. 1403(3))
Insanity includes many forms of mental
(4) Minority cannot be asserted by the other
disease, either inherited or acquired. A person
party in an action for annulment (Art. 1397)
may not be insane but only mentally deficient
(5) Not obliged to make restitution
(idiocy, imbecility, feeble-mindedness).
exceptinsofar as he has been benefited
(Art. 1399)
Effect on Contracts
(6) Minor has no right to demand the
(1) Incapacity to give consent to a
thing/price voluntarily returned by him
contract (Art. 1327(2))
(Art. 1426)
(2) Contracts entered into during lucid
(7) Minor has no right to recover voluntarily
intervals are valid (Art. 1328)
paid sum or delivered thing, if consumed
(3) Restitution of benefits (Art. 1399)
in good faith (Art. 1427)
(4) Voidable if one of the parties is insane
(8) Must pay reasonable amount for
(Art. 1390)
necessaries delivered to him (Art. 1489)
(5) Unenforceable if both of the parties are
Estoppel works against minors who insane (Art. 1403 (3))
misrepresent their ages in a contract and are
compelled to comply with its terms. (active Effect on Crimes
General rule: EXEMPTED from criminal liability
misrepresentation done by minors).
[Mercado vs Espiritu (1918)] Exception: Acted during lucid interval

When a minor made no active Effect on Marriage


misrepresentation as to his minority and (1) May be annulled if either party was of
such minority is known to the other party, the unsound mind unless the such party
contract is voidable (Art. 1403) as to the after coming to reason, freely cohabited
minor. [Bambalan vs Miranda (1928)] with the other (Art. 45(2), FC)
(2) Action for annulment of marriage must be
Minors are obliged to make restitution insofar filed by the sane spouse who had no
as they have been benefited (Art. 1399). knowledge of the other’s insanity, or by
[Braganza vs Villa Abrille (1959] 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)

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In the absence of proof that the defendant had (1) Unenforceable if both of the parties are
lost his reason or became demented a few deaf-mutes and does not know how to
moments prior to or during the perpetration of write
the crime, it is presumed that he was in a
normal condition of mind. It is improper to IV. PRODIGALITY
conclude that he acted unconsciously, in order INCOMPETENT INCLUDES PRODIGALS
to relieve him from responsibility on the ground (RULES OF COURT RULE 92, SEC 2)
of exceptional mental condition, unless his Note: It is not the circumstance of
insanity and absence of will are proven. [USA prodigality, but the fact of being under
vs Vaguilar (1914)] guardianship that restricts capacity to act.

Capacity to act must be supposed to attach to


V. CIVIL INTERDICTION
a person who has not previously been declared
(1) It is an accessory penalty imposed
incapable, and such capacity is presumed to
upon persons who are sentenced to a
continue so long as the contrary be not proved,
principal penalty not lower than
that is, that at the moment of his acting he was
reclusion temporal (Art. 41, RPC).
incapable, crazy, insane, or out his mind
(2) Offender is deprived of rights of parental
[Standard Oil vs Arenas (1911)]
authority, or guardianship, of marital
As no man would know what goes on in the mind
authority, of the right to manage his
property and of the right to dispose of such
of another, the state or condition of a person’s
by any act inter vivos (Art. 34, RPC)
mind can only be measured and judged by his
behavior. Establishing the insanity of an accused (3) For the validity of marriage settlements,
requires opinion testimony which may be given by the participation of the guardian shall
a witness who is intimately acquainted with the
be indispensable (Art. 123)
person claimed to be insane, or who has rational
basis to conclude that a person was insane based VI. FAMILY RELATIONS
on the witness’ own perception of the person, or (5) Justifying circumstance if acted in
who is qualified as an expert, such as a defense of person/rights of spouse,
psychiatrist. [Crewlink vs Teringtering (2012)].
ascendants, descendants,
brothers/sisters, and other relatives up to
the 4th civil degree (Art. 11(2), RPC)
III. DEAF-MUTISM
(6) Mitigating circumstance if acted in the
(5) Cannot give consent to a contract if
immediate vindication of a grave
he/she also does not know how to
offense/felony committed against his
write (Art. 1327(2), CC)
spouse, ascendants or relatives of the
(6) Can make a valid WILL, provided: he must
same civil degree (Art. 13(5), RPC)
personally read the will. The contents of the
(7) Incestuous and void marriages:
same have either been read personally by
him or otherwise communicated to him by 2  Between ascendants and
persons (Art. 807, CC)  descendants of any degree;
(7) Cannot be a witness to the execution  Between brothers and sisters, whether
of a will (Art. 820, CC)  full or half-blood. (Art. 37, FC)
(8) Donations/grants of gratuitous advantage
(8) Voidable if one of the parties is deaf-
mute and does not know how to write between spouses during the marriage shall

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be VOID, except moderate gifts during unavoidable consequence of conflicting laws of


family occasions (Art. 87, FC) different states. [Cordora vs COMELEC (2009)]
1. Prescription does not run between
spouses, parent and child, guardian and VIII. ABSENCE
ward (Art. 1109) Art. 390. After an absence of seven years, it
2. Descendants cannot be compelled to being unknown whether or not the absentee
testify in a criminal case, against his still lives, he shall be presumed dead for all
parents and grandparents purposes, except for those of succession.
UNLESS: crime was against the
descendant OR by one parent The absentee shall not be presumed dead for
 against the other (Art. 215, FC) the purpose of opening his succession till
3. Spouses cannot sell property to each after an absence of ten years. If he disappeared
other, except: after the age of seventy-five years, an absence of
Absolute separation is agreed five years shall be sufficient in order that his
 upon in the marriage settlements succession may be opened. (n)
Judicial separation of property
 (Art. 1490) Art. 391. The following shall be presumed
4. A suit between family members cannot
dead for all purposes, including the
prosper without any showing that earnest division of the estate among the heirs:
effort towards a compromise have been
made but have failed (Art. 151, FC) 1. A person on board a vessel lost during a sea
Exceptions: questions on civil voyage, or an aeroplane which is missing, who
status of persons, validity of a has not been heard of for four years since the loss
marriage or a legal separation, any of the vessel or aeroplane;
ground for legal separation, future 2. A person in the armed forces who has
support, jurisdiction of courts, taken part in war, and has been missing for
future legitime (Art. 2035). four years;
3. A person who has been in danger of death
VII. ALIENAGE under other circumstances and his existence
Dual citizenship is different from dual allegiance. has not been known for four years.
The former arises when, as a result of the
concurrent application of the different laws of two
Art. 41. A marriage contracted by any person
or more states, a person is simultaneously
during subsistence of a previous marriage shall
considered a national by the said states. Dual
be null and void, unless before the celebration of
allegiance, on the other hand, refers to the
the subsequent marriage, the prior spouse had
situation in which a person simultaneously owes,
been absent for four consecutive years and the
by some positive act, loyalty to two or more
spouse present has a well-founded belief that
states. While dual citizenship is involuntary, dual
the absent spouse was already dead. In case of
allegiance is the result of an individual’s volition.
disappearance where there is danger of death
For candidates with dual citizenship, it should
under the circumstances set forth in the
suffice if, upon the filing of their certificates of
provisions of Article 391 of the Civil Code, an
candidacy, they elect Philippine citizenship to
absence of only two years shall be sufficient.
terminate their status as persons with dual
citizenship considering that their condition is the
For the purpose of contracting the subsequent
marriage under the preceding paragraph the

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spouse present must institute a summary Requisites of Domicile (Callejo v. Vera)


proceeding as provided in this Code for the (1) Physical Presence in a fixed place
declaration of presumptive death of the (2) Intent to remain permanently (animus
absentee, without prejudice to the effect of manendi)
reappearance of the absent spouse.
Kinds of Domicile
Art. 42. The subsequent marriage referred to (1) Domicile of Origin
in the preceding Article shall be automatically  Domicile of parents of a person at
terminated by the recording of the affidavit of  the time he was born.
reappearance of the absent spouse, unless (2) Domicile of Choice
there is a judgment annulling the previous  Domicile chosen by a person,
marriage or declaring it void ab initio. changing his domicile of origin.

A sworn statement of the fact and  A 3rd requisite is necessary –
circumstances of reappearance shall be intention not to return to one’s
recorded in the civil registry of the residence domicile as his permanent place.

of the parties to the subsequent marriage at (3) Domicile by Operation of Law (i.e.,
the instance of any interested person, with Article 69, domicile of minor)
due notice to the spouses of the subsequent  A married woman does not lose her
marriage and without prejudice to the fact of domicile to her husband. (Romualdez-
reappearance being judicially determined in Marcos vs. Comelec (1995))
case such fact is disputed.

F. DOMICILE AND RESIDENCE OF


PERSON
III. Family Code
A. EFFECT AND RETROACTIVITY
For Natural Persons:
The place of their habitual residence (Art. 50) Art. 255. This Code shall have retroactive
effect insofar as it does not prejudice or impair
For Juridical Persons: vested or acquired rights in accordance with
The place where their legal representation is the Civil Code or other laws.
established, or where they exercise their primary The Family Code took effect on August 3, 1988.
functions, unless there is a law or other
provision that fixes the domicile (Art. 51)
B. REPEAL AND AMENDMENT
Art. 254. If any provision of this Code is
Domicile vs. Residence
held invalid, all the other provisions not
While domicile is permanent (there is intent
affected thereby shall remain valid.
to remain), residence is temporary and may
be changed anytime (there is no necessary
intent to remain).

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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

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PERSONS

EFFECT OF ABSENCE OF REQUISITES Defect:


Art. 45, FC. A marriage may be annulled for any
Absence Defect or Irregularity
of the following causes existing at the time of the
Effect VOID VOIDABLE marriage: xxx (3) that the consent of either party
was obtained by fraud, unless such party
ESSENTIAL REQUISITES afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the
other as husband and wife.
1. GENDER
Note: The best source for citing the
Fraud here refers to matters which relate to
requirement of male/female is still statutory,
the marital relation:
as provided explicitly in the Family Code.
 Non-disclosure of previous conviction
Silverio v. Republic, (2007): Changing of by final judgment of a crime involving
sex in one’s birth certificate on the basis of  moral turpitude;
sex reassignment was denied; otherwise, it  Concealment of pregnancy by
would result in confusion and would allow  another man;
marriage between persons of the same sex  Concealment of a sexually
which is in defiance of the law, as marriage is  transmitted disease;
a union between a man and a woman.  Concealment of drug addiction,
alcoholism, lesbianism, or homosexuality
2. AGE
FORMAL REQUISITES
Legal Capacity (Art. 5)
Male or female 18 years old and above, not
1. CEREMONY
under any of the impediments mentioned in
Marriage Ceremony
Art. 37 (incestuous marriages) & Art. 38
No prescribed form or religious rite for the
(marriages against public policy), may
solemnization of marriage is required. (Art. 6)
contract marriage.

The couple's written agreement where they


3. CONSENT FREELY GIVEN
declare themselves as husband and wife,
Consent here refers to the consent of the
signed by them before a judge and two
contracting parties; not of the
capable witnesses, even though it was
parent/guardian in those cases where such
independently made by them, still counts as
consent is required (when either party is
a valid ceremony. (Martinez v. Tan, (1909))
between 18 to 21 years of age).
Minimum requirements prescribed by law:
Absence: (1) Appearance of contracting parties
personally before the solemnizing officer
People v. Santiago, (1927): A marriage (Art. 3)
entered into by a person whose real intent (5) Personal declaration that they take each
is to avoid prosecution for rape is void for other as husband and wife. (Art. 3)
total lack of consent. The accused did not (6) Presence of at least two witnesses of
intend to be married. He merely used such legal age. (Art. 3)
marriage to escape criminal liability. (7) The declaration shall be contained in the
Marriage Certificate. (Art. 6)

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

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A marriage which preceded the issuance of the II. Foreign National


marriage license is void and the subsequent
issuance of such license cannot render valid the When either or both parties are foreign
marriage. Except in cases provided by law, it is nationals: Certificate of legal capacity to
the marriage license that gives the solemnizing contract marriage, issued by a diplomatic or
officer the authority to solemnize a marriage. consular official, shall be submitted before a
[Aranes v Occiano (2002)]. marriage license can be obtained (Art. 21)

3. LICENSE REQUIRED Stateless persons or refugees from other


countries: affidavit stating circumstances
GENERAL RULE: License required showing capacity to contract marriage,
instead of certificate of legal capacity (Art. 21)
Article 9 - Issued by local registrar of city or
municipality where either contracting party III. Exceptions
habitually resides
Marriage in articulo mortis (Art. 27)
Article 11 - Each contracting party should file  The marriage may be solemnized without 
the necessity of a marriage license.
separately.
 It remains  even if ailing party
valid
survives.
PD 965, Sec.3, par.2 - No marriage license Between passengers or crew members
shall be issued by the Local Civil Registrar in a ship or airplane (Art. 31)
unless the applicants present a certificate, Persons within a military zone (Art. 32)
issued at no cost to the applicants, by an Marriage in Remote and inaccessible
Office of Family Planning that they had places (Art. 28)
received instructions and information on Marriages by Muslims and Ethnic cultural
family planning and responsible parenthood. minorities provided they are solemnized
in accordance with their customs, rites or
Where Valid: License valid in any part of the practices. (Art. 33)
Philippines Marriage by parties who have Cohabited
Period of Validity: It will be valid for 120 for at least 5 years without any legal
days from date of issue, automatically impediment to marry each other. (Art. 34,
cancelled at the expiration of such period. Ninal vs. Badayog (2000))

Requisites for the 5-year cohabitation to


I. Special Situations be valid for the exemption from acquiring
Anyone between 18-21 years old who has a marriage license
not yet been emancipated must present the The man and woman must have been
written consent that was given by his or her living together as husband and wife for at
parent or guardian. (Art. 14) least five years before the marriage;
Anyone between 21-25 must ask for advice The parties must have no legal
from his or her parents or guardians. If the impediment to marry each other;
advice wasn’t obtained, the marriage license The fact of absence of legal impediment
will only be released 3 months after the between the parties must be present at
publication of the application. (Art. 15) the time of marriage;

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(4) The parties must execute an affidavit (6) That requirement as to parental advice was
stating that they have lived together for at complied with, when required
least five years [and are without legal (7) That parties have entered into marriage
impediment to marry each other]; and settlements, if any (Art. 22)
(5) The solemnizing officer must execute a
sworn statement that he had ascertained Note: Not an essential or formal requisite
the qualifications of the parties and that he without which the marriage will be void
had found no legal impediment to their (Madridejo v. de Leon (1930))
marriage.
(Borja-Manzano vs. Judge Sanchez (2001)) Best evidence that a marriage does exist.
[Tenebro v. CA (2004)]

4. MARRIAGE CERTIFICATE
D. LAW GOVERNING VALIDITY OF
Absence and irregularity of marriage MARRIAGES ABROAD
license and contract
General rule in contracts
Republic v. CA and Castro (1994): There is As to form: Governed by the laws of the country in
a presumption of regularity of official acts, which they were executed (NCC Art. 17)
and the issuance of the Civil Registrar of a
As to substantive requirements: Laws
Certificate of Due Search and Inability
relating to family rights and duties, or to the
to Find the application for a marriage
status, condition and legal capacity of
license certifies its inexistence, rendering
persons, prohibitive laws regarding the
the marriage VOID.
person, his or her property, those which have
for their object public order, public policy and
Moreno v. Bernabe (1995): Before a marriage
good customs bind all Filipinos regardless of
can be solemnized, a valid marriage license must
location. (NCC Art. 15, 17)
be presented first, otherwise, it is VOID.

Marriages Celebrated Abroad


People v. Borromeo (1984): Non-existence of
GENERAL RULE: Marriages solemnized
a marriage contract does not invalidate the
abroad in accordance with the laws in force
marriage as long as all the requisites for its
in that country shall be valid in the
validity are properly complied with.
Philippines. (Art 26, par.1)

Marriage Certificate EXCEPTIONS:


Where parties declare that they take each Marriage between persons below 18
other as husband and wife; contains the ff: years old (Art. 35(1))
Full name, sex, age of party Bigamous or polygamous marriage (Art.
Citizenship, religion, habitual residence 35(4))
Date and precise time of celebration of Mistake in identity (Art. 35 (5))
marriage Marriages void under Article 53 (Art. 35 (6))
That marriage license was properly Psychological incapacity (Art. 36)
issued (except in marriages of Incestuous marriages (Art. 37)
exceptional character) Marriage void for reasons of public
That parental consent was secured, policy (Art. 38)
when required

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PERSONS

Essential requisites Formal requisites divorce.


Inherent in the parties, Requirements
carried everywhere independent of the Llorente v. CA (2000): Citizenship at the
parties time the divorce is obtained determines its
Lex Nationalii – Laws Lex loci celebrationis- validity. Since H was no longer a Filipino
relating to family rights if valid where citizen when he divorced W, the nationality
and duties, or to the celebrated, then principle did not apply to him anymore and
status, condition, and valid everywhere; the divorce is valid.
legal capacity of forms of contracting
persons are binding marriage are to be Garcia v. Recio (2001): A divorce decree
upon Phil citizens even regulated by the law obtained by the foreign spouse is
though living abroad where it is recognized under Phil law if it is executed
(Art. 15) celebrated. (Art. 26) in accordance with the foreigner’s
Foreign marriages void Foreign marriages national law. The party must prove
under Phil law due to may be void under divorce as a fact and that said divorce is
lack of an essential Phil law due to obtained in conformity with the law
requisite, even if valid absence of a formal allowing it, before the Philippine courts
under foreign laws, will requisite under can take judicial notice.
not be recognized. foreign laws.
E. COMMON-LAW MARRIAGES
Proof of Foreign Marriage in order that it
may be upheld: Art. 147. When a man and a woman who are
Provisions of the foreign law capacitated to marry each other, live
Celebration of the marriage in exclusively with each other as husband and
accordance with said provisions wife without the benefit of marriage or under
a void marriage, their wages and salaries
Foreign Divorces shall be owned by them in equal shares and
Those obtained by Filipino citizens the property acquired by both of them
are void under Philippine law. through their work or industry shall be

If the foreign spouse obtains a valid governed by the rules on co-ownership.
divorce decree abroad capacitating
him/her to remarry, the Filipino spouse In the absence of proof to the contrary, properties
shall have capacity to remarry under acquired while they lived together shall be
Philippine law. (Art. 26, par.2) presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by
Van Dorn v. Romillo (1985): A divorce them in equal shares. For purposes of this Article,
obtained by the foreign spouse in a party who did not participate in the acquisition
accordance with the said spouse’s by the other party of any property shall be
national law is recognized in the deemed to have contributed jointly in the
Philippines and releases Filipino spouse acquisition thereof if the former's efforts consisted
from their marriage. in the care and maintenance of the family and of
the household.
Quita v. Dandan (1998): The citizenship of
the spouses at the time of the divorce Neither party can encumber or dispose by acts
determines their capacity to obtain a valid inter vivos of his or her share in the property

17
PERSONS

acquired during cohabitation and owned in without being lawfully married, nevertheless
common, without the consent of the other, there is between them an informal civil
until after the termination of their partnership which would entitle the parties to
cohabitation. an equal interest in property acquired by their
joint efforts [Lesaca vs Lesca (1952)]
When only one of the parties to a void marriage
is in good faith, the share of the party in bad Such form of co-ownership requires that the
faith in the co-ownership shall be forfeited in man and woman living together must not in
favor of their common children. In case of any way be incapacitated to contract
default of or waiver by any or all of the common marriage. [Eugenio vs Velez (1990)]
children or their descendants, each vacant
share shall belong to the respective surviving The falsity of the affidavit cannot be considered
descendants. In the absence of descendants, as a mere irregularity in the formal requisites of
such share shall belong to the innocent party. marriage. The law dispenses with the marriage
In all cases, the forfeiture shall take place upon license requirement for a man and a woman
termination of the cohabitation. (144a) who have lived together and exclusively with
each other as husband and wife for a
Art. 148. In cases of cohabitation not falling under continuous and unbroken period of at least five
the preceding Article, only the properties acquired years before the marriage. The aim of this
by both of the parties through their actual joint provision is to avoid exposing the parties to
contribution of money, property, or industry shall humiliation, shame and embarrassment
be owned by them in common in proportion to concomitant with the scandalous cohabitation
their respective contributions. In the absence of of persons outside a valid marriage due to the
proof to the contrary, their contributions and publication of every applicant’s name for a
corresponding shares are presumed to be equal. marriage license. [De Castro vs De Castro
The same rule and presumption shall apply to (2008)]
joint deposits of money and evidences of credit.
F. VOID AND VOIDABLE MARRIAGES
If one of the parties is validly married to Presumption of Marriage
another, his or her share in the co-ownership Presumption in favor of a valid marriage
shall accrue to the absolute community or (Art 220, CC)
conjugal partnership existing in such valid The presumption that a man and a woman
marriage. If the party who acted in bad faith is deporting themselves as husband and wife
not validly married to another, his or her shall have entered into a lawful contract of
be forfeited in the manner provided in the last marriage is satisfactory if uncontradicted.
paragraph of the preceding Article. (Sec. 3 (aa), Rule 131, ROC)
In marriages of exceptional character, the
The foregoing rules on forfeiture shall existence of the marriage is presumed, even
likewise apply even if both parties are in both in the TOTAL ABSENCE of a marriage
faith. (144a) license. (Vda. De Jacob v CA (1999))
If a marriage certificate is missing, and all
Though there is no technical marital means HAVE NOT YET BEEN EXHAUSTED to
partnership between person living maritally find it, then the marriage is presumed to exist
(Sevilla v. Cardenas (2006))

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Absence of a marriage certificate is not proof of Marriage where any party is below
absence of marriage. To prove the fact of eighteen years of age even with the
marriage, the following would constitute consent of parents or guardians
competent evidence: (1) the testimony of Marriage solemnized by any person not
witnesses to matrimony; (2) documentary legally authorized to perform marriages
photos or videos of the wedding; (3) the unless such marriages were contracted
couple’s public cohabitation; and (4) birth and with either or both parties believing in good
baptismal certificates of children born during faith that the solemnizing officer had legal
the union. (Trinidad v CA (1998)) authority to do so.
Note: One’s belief in good faith that the
F. 1. VOID MARRIAGES solemnizing officer has the required
authority is a mistake of fact, and not of
Type of Void Marriages law.
Absence of any formal/essential requisites Marriage solemnized without a valid
Bigamous and polygamous marriages marriage license, except in marriages
Subsequent marriage, upon under exceptional circumstances
reappearance of spouse Bigamous or polygamous marriages
Bad faith of both spouses not falling under Article 41 (Art. 41:
Psychologically Incapacitated spouse subsequent marriage by present spouse
Void subsequent marriages who obtained a declaration of
Incestuous Marriages presumptive death for absent spouse
Non-compliance with recording prior to the subsequent marriage)
requirement after declaration of nullity There is a mistake as to the identity of
the other contracting party
Art. 39. The action or defense for the Subsequent marriages that are void under
declaration of absolute nullity shall not Article 53 (Non-compliance with Art. 52)
prescribe. However, in case of marriage
celebrated before the effectivity of this To be considered void on the ground of
Code and falling under Article 36, such absence of a marriage license, the law
action or defense shall prescribe in ten requires that the absence of such marriage
years after this Code shall taken effect. (As license must be apparent on the marriage
amended by Executive Order 227) (n) contract, or at the very least, supported by a
certification from the local civil registrar that
a. Absence of Requisites no such marriage license was issued to the
Art. 4(1): The absence of any essential or formal parties. [Alcantara vs Alcantara (2007)]
requisites shall render the marriage void ab initio,
except as stated in Article 35 (a).
An action for nullity of marriage is
imprescriptible. [Republic vs Dayot (2008)]

Art. 5: Any male or female of the age of


eighteen years or upwards not under any of b. Bigamous and polygamous marriages
the impediments mentioned in Articles 37 Article 40 (No Judicial Declaration Of Nullity)
and 38, may contract marriage. A person entered into a subsequent marriage
without first getting a judicial declaration of
Void from the Beginning (Art. 35) nullity of the first void marriage

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The spouse present had a well-founded


Article 41 (Presumptive Death) belief that absent spouse is dead; and
Failure of the spouse present to obtain a Judicial declaration of
judicial declaration of presumptive death presumptive death was secured (no
before entering a subsequent marriage prejudice to the effect of the
reappearance of the absent spouse).
Article 44 (Bad Faith of both spouses) Subsequent marriage due to
Both spouses entering a subsequent extraordinary absence where:
marriage after presumptive death, who acted Absent spouse had been missing for
in bad faith 2 consecutive years;
There is danger of death under the
It is now settled that the fact that the first circumstances set forth in Art. 391
marriage is void from the beginning is not a CC attendant to the disappearance;
defense in a bigamy charge. As with a The spouse present had a well-
voidable marriage, there must be a judicial founded belief that the missing
declaration of the nullity of a marriage before person is dead; and
contracting the second marriage. [Mercado Judicial declaration of
vs Tan (2000)] presumptive death was secured (no
prejudice to the effect of the
The accused may still be charged with the reappearance of the absent spouse).
crime of bigamy, even if there is a subsequent
declaration of the nullity of the second Extraordinary circumstances (Art. 391, CC):
marriage, so long as the first marriage was ON BOARD VESSEL lost at sea
still subsisting when the second marriage was voyage, airplane,
celebrated. [Capili vs People (2013)] ARMED FORCES in war, or
DANGER OF DEATH under other
The mere private act of signing a marriage circumstances, existence not known
contract bears no semblance to a valid
marriage and thus, needs no judicial Notes:
declaration of nullity. Such act alone, without Institution of a summary proceeding
more, cannot be deemed to constitute an is not sufficient. There must also be a
ostensibly valid marriage for which summary judgment. (Balane)

petitioner might be held liable for bigamy Only the spouse present can file or
unless he first secures a judicial declaration of institute a summary proceeding for
nullity before he contracts a subsequent the declaration of presumptive death
marriage. [Morigo vs Morigo (2004)] of the absentee. (Bienvenido case)

While an action for declaration of death
c. Subsequent Marriage when one
or absence under Rule 72, Section
spouse is absent
1(m), expressly falls under the
category of special proceedings, a
Requirements for Subsequent Marriage to be
petition for declaration of presumptive
Valid When Prior Spouse is Absent (Art. 41):
death under Article 41 of the Family
Subsequent marriage due to ordinary Code is a summary proceeding, as
absence where: provided for by Article 238 of the same
Absent spouse had been absent for 4 Code. [Republic vs Granada (2012)]
consecutive years;

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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 e. Psychological incapacity


7 years, it being unknown whether or not Contracted by any party who, at the time of
the absentee still lives, he shall be the celebration, was psychologically
presumed dead for all purposes, except for incapacitated to comply with the essential
those of succession. marital obligations of marriage, even if such
incapacity becomes manifest only after its
The absentee shall not be presumed dead solemnization (Art. 36)
for the purpose of opening his succession
till after an absence of 10 years. If he Republic v. Molina, (1997):
disappeared after the age of 75 years, an The burden of proof to show the nullity of the
absence of 5 years shall be sufficient in marriage belongs to the plaintiff. This is to be
order that his succession may be opened. investigated by the OSG for collusion.
The root cause of the psychological incapacity
Art. 391, Civil Code. The following shall be must be: (a) medically or clinically identified,
presumed dead for all purposes, including the (b) alleged in the complaint, (c) sufficiently
division of the estate among the heirs: proven by the experts, (d) clearly explained in
A person on board a vessel lost during the decision.
a sea voyage, or an aeroplane which The incapacity must be proven to be
is missing, who has not been heard of existing at “the time of the celebration”
for four years since the loss of the of the marriage.
vessel or aeroplane; Such incapacity must also be shown to be
A person in the armed forces who has medically or clinically permanent or
taken part in war, and has been missing incurable.
for four years; Such illness must be grave enough to bring
A person who has been in danger of about the disability of the party to assume the
death under other circumstances and essential obligations of marriage.
his existence has not been known for The essential marital obligations must be
four years. those embraced by Articles 68 up to 71
of the Family Code as regards the
husband and wife as well as Articles 220,
Notes: 221, and 225 of the same Code in regard
Although 7 years is required for the to parents and their children.
presumption of death of an absentee in the Interpretations given by the National
CC, the FC makes an exception for the Appellate Matrimonial Tribunal of the
purpose of remarriage by limiting such Catholic Church in the Philippines,
requirement to 4 years. while not controlling/decisive, should be
given great respect by our courts.
d. Bad Faith of Both Spouses The trial court must order the prosecuting
Art. 44. If both spouses of the subsequent attorney or fiscal and the Solicitor General
marriage acted in bad faith, said marriage to appear as counsel for the state. No
shall be void ab initio and all donations by decision shall be handed down unless the
reason of marriage and testamentary Solicitor General issues a certification.
dispositions made by one in favor of the
other are revoked by operation of law. (n) Santos v. Bedia-Santos, (1995): Laid down 3
characteristics for determining psychological

22
PERSONS

incapacity: gravity, antecedent, and incurability. Between collateral blood relatives,


legitimate or illegitimate, up to the fourth
Tsoi v. CA, (1997): Refusal of husband to civil degree.
have sex was interpreted as psychological Between step-parents and step-children.
incapacity. “A man who can but won’t is Note: Stepbrothers and stepsisters
psychologically incapacitated” can marry because marriages
between them are not among those
Marcos v. Marcos (2000): Psychological  enumerated in Article 38.
incapacity maybe established by the totality of Between parents-in-law and children-
the evidence presented. Personal medical in-law.
examination could be dispensed with. Between adopting parent and adopted
child.
Republic v. San Jose (2007): There is no Between the surviving spouse of the
requirement that the respondent be medically adopting parent and the adopted child.
examined first. Between the surviving spouse of the
adopted child and the adopter.
Antonio v. Reyes, (2006): “Pathological liar” Between an adopted child and a
considered as psychological incapacity, legitimate child of the adopter.
Molina guidelines met. Between adopted children of the same
adopter.
Kalaw v. Fernandez (2015): In the task of Between parties where one, with the
ascertaining the presence of psychological intention to marry the other, killed that
incapacity as a ground for the nullity of other person's spouse, or his or her
marriage, the courts, which are concededly own spouse.
not endowed with expertise in the field of
psychology, must of necessity rely on the Relationships outside of Art. 37 and 38 which
opinions of experts in order to inform are not impediments to marriage: brother-in-
themselves on the matter, and thus enable law with sister-in-law, stepbrother with
themselves to arrive at an intelligent and stepsister, guardian with ward, adopted with
judicious judgment. illegitimate child of the adopter, adopted son
of the husband with adopted daughter of the
f. Incestuous marriages wife, parties who have been convicted of
adultery
Article 37 (Incestuous):
Between ascendants and descendants
of any degree, legitimate or illegitimate h. Non-compliance with recording
Between brothers and sisters, whether requirement after declaration of nullity
full or half blood, legitimate or illegitimate Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
g. Against Public Policy requirements of recording under Art. 52 have
not have been complied with, shall be null
and void.

Article 38 (Against Public Policy): Art. 52. The judgment of annulment or of


absolute nullity of the marriage, the partition

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PERSONS

and distribution of the properties of the Article 43 and 44 (Effects of Termination


spouses and the delivery of the children's of Bigamous Marriage under Art. 42)
presumptive legitimes shall be recorded in
the appropriate civil registry and registries of Art. 43:
property; otherwise, the same shall not affect Children of subsequent marriage –
third persons. conceived prior to its termination
considered legitimate; custody and
Previous marriage declared void ab support decided by court in a proper
initio or annulled proceeding.
Property Regime – dissolved and
Under the Civil Code (superseded by the liquidated (party in bad faith shall forfeit
Family Code), there was no need for a his/her share in favor of the common
judicial declaration of nullity of a previous children or if there are none, children of
marriage for a subsequent marriage to be the guilty spouse by a previous
valid (People v. Mendoza (1954)) marriage, and in case there are none, to
the innocent spouse).
Atienza v. Brillantes, (1995): Even if the Donation propter nuptias – remains
judge’s first marriage contracted in 1965 was valid, (but if the donee contracted
void for not having a marriage license, the marriage in bad faith, donations are
requirement for a judicial declaration of revoked by operation of law)
nullity in Art. 40 still applies for his Insurance benefits – innocent spouse
subsequent marriage contracted in 1991. may revoke designation of guilty party as
beneficiary, even if such designation is
Apiag v. Cantero, (1997): Where both stipulated as irrevocable.
marriages were contracted prior to the Succession Rights – Party in bad faith shall
effectivity of the FC, the requirement of Art. be disqualified to inherit from the innocent
40 does not apply to the second marriage spouse, whether testate or intestate.
where a right is already vested and on which
the FC cannot have retroactive effect. Article 44 (Donations):
If both spouses of the subsequent marriage
Domingo v. CA, (1993): The judicial acted in bad faith, all donations by reason of
declaration of nullity can be invoked for marriage and testamentary dispositions
purposes other than remarriage. Article 40 made by one party in favor of the other are
was interpreted as being a requirement for revoked by operation of law.
purposes of remarriage but not limited for
that purpose. Separation of property is also Who may file the petition for nullity of
a valid purpose for filing for a judicial void marriages?
declaration of nullity.
GENERAL RULE: Only the husband or wife may file
The word “solely” in Art. 40 referred to the petition. (AM No. 02-11-10 SC, Sec. 2a)
validating subsequent marriages but NOT to
Specifically, A.M. No. 02-11-10-SC extends
limiting the purposes for which a judicial
only to marriages covered by the Family Code,
declaration of nullity can be invoked.
which took effect on August 3, 1988, but, being
a procedural rule that is prospective in
application, is confined only to proceedings

24
PERSONS

commenced after March 15, 2003. [Ablaza Art. 48 (2): In the cases referred to in the
vs Republic (2010)] preceding paragraph, no judgment shall be
based upon a stipulation of facts or
EXCEPTIONS: confession of judgment.
Nullity of marriage cases commenced before
the effectivity of A.M. No. 02-11-10-SC Stipulation of Facts: An admission by both
Marriages celebrated during the effectivity of parties after agreeing to the existence of any
the Civil Code. [Carlos vs Sandoval (2008)] of the grounds or facts that would constitute
a void/voidable marriage
However, the absence of a provision in the
Civil Code cannot be construed as a license Confession of judgment: The admission by
for any person to institute a nullity of one party admitting his/her fault to cause the
marriage case. Such person must appear to invalidity of the marriage.
be the party who stands to be benefited or
injured by the judgment in the suit, or the Participation of the OSG
party entitled to the avails of the suit. [Carlos The obvious intent of the AM 02-11-10-SC was
vs Sandoval (2008)] to require the OSG to appear as counsel for the
State in the capacity of a defensor vinculi (i.e.,
Procedure in attacking a void marriage
defender of the marital bond) to oppose
GENERAL RULE: Void Marriages may be
petitions for, and to appeal judgments in favor
attacked collaterally or directly.
of declarations of nullity of marriage under
Article 36 of the Family Code, thereby ensuring
EXCEPTION: A person in a void marriage
that only the meritorious cases for the
must first file for a declaration of nullity in
declaration of nullity of marriages based on
order to subsequently marry
psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical
Requisites for valid remarriage:
antecedence-would succeed. [Mendoza vs
Republic (2012)]
Art. 52. The judgment of annulment or of
absolute nullity of the marriage the partition
and distribution of the properties of the No Motion to Dismiss
spouses and the delivery of the children's AM 02-11-10-SC Sec.7 prohibits the filing of
presumptive legitimes shall be recorded in a motion to dismiss in actions for annulment
the appropriate civil registry and registries of of marriage. [Aurelio vs Aurelio (2011)]
property; otherwise the same shall not affect
third persons. (n)
Effect of pendency of action for
declaration of nullity:
The previous marriage should be
The court shall provide for the support
judicially declared void or annulled (final
of the spouses,
judgment) (Terre v. Terre (1992),
The custody and support of the common
Atienza v. Brillantes (1995));
children, giving paramount consideration
Must comply with the requirements of
to their moral and material welfare, their
Art. 52.
choice of parent with whom they wish to
remain.
Safeguard against collusion and No
The court shall also provide for visitation
confession of judgment
rights of other parent. (Art. 49)

25
PERSONS

Effect of res judicata The children/guardian/trustee of property


Suffice it to state that parties are bound not may ask for the enforcement of the
only as regards every matter offered and judgment (Art. 51(2))
received to sustain or defeat their claims or The delivery of the presumptive legitimes
demand but as to any other admissible shall not prejudice the ultimate
matter which might have been offered for that successional rights, but the value of the
purpose and of all other matters that could properties already received shall be
have been adjudged in that case. [Mallion vs considered as advances on their legitime
Alcantara (2006)] (Art. 51(3))

Effect of final judgment declaring nullity GENERALLY, children born or conceived


The effects provided for by paragraphs (2), (3), within void marriages are illegitimate.
and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages EXCEPTIONS:
which are declared void ab initio or annulled Children conceived or born before
by final judgment under Articles 40 and 45 the judgment under Article 36 has
(Art. 50(1)).  become final and executory (Art. 54)
Children conceived or born of
Final judgment in such cases shall provide subsequent marriages under Article
for the: 53 (Art. 54)
Liquidation, partition, and distribution of 
the properties of the spouses 2. VOIDABLE OR ANNULLABLE
Custody and support of the common MARRIAGE
children
Delivery of their presumptive legitimes Art. 14: In case either or both of the contracting
 Unlesssuchmattershadbeen parties, not having been emancipated by a
adjudicated in previous judicial previous marriage, are between the ages of
 proceedings (Art. 50(2)) eighteen and twenty-one, In addition to the
All creditors of the spouses/property regime requirements of the preceding articles:
shall be notified of the proceedings for Exhibit to the local civil registrar the consent
liquidation (Art. 50(2 and 3)) to their marriage of their father, mother,
surviving parent or guardian, or
persons having legal charge of them, in
In the partition, the conjugal dwelling and  the order mentioned
lot shall be adjudicated to the spouse with
Manifested in writing by the interested
whom majority of the common children who personally appears 
remain (Art. 102 and 129) (Art. 50(4)
 party,
the proper local civil registrar, or
before

In the form of an affidavit made in the


presence of two witnesses and
Presumptive legitimes, computed as of the
 by law to administer oaths
attested before any official authorized
date of the final judgment, shall be delivered
in cash, property or sound securities: The personal manifestation shall be recorded
Unless the parties, by mutual agreement in both applications formarriage license,
and the affidavit, if one
judicially approved, had already provided
for such (Art. 51(1))

26
PERSONS

is executed instead, shall be attached Commission believes that no such


to said applications. ratification can be made by the parent.

Grounds for Annulment


Article 4 states that “xxx A defect in any of Moe v. Dinkins, (1981): In defending the
the essential requisites shall render the requirement of parental consent, the Court
marriage voidable as provided in Article 45.” held that the State has power to make
adjustments in the constitutional rights of
Article 45. Marriage may be annulled on the minors based on the following grounds: 1)
following grounds existing at time of marriage: the peculiar vulnerability of children, 2) to
One of the parties is 18 or above but protect minors from immature decision
below 21 years old, and there is no making and prevent unstable marriages, 3)
parental consent. on the presumption that parents act in the
Either party was of unsound mind best interests of their children in child
(insanity). rearing.
The consent of either party was obtained
through fraud (different from mistake in Insanity
identity) Mental incapacity or insanity is a vice of
The consent of either party was obtained consent; insanity (1) of varying
through force, intimidation, or undue degrees, (2) curable being an illness,
influence. capable of ratification or convalidation,
Either party is physically incapable of (3) has lucid intervals, (4) ground
consummating the marriage (impotence; only for annulment in many countries
this is different from sterility, which is the Can be ratified by cohabitation after
inability to produce offspring). insanity is cured or during a lucid
Either party has a serious and incurable interval
sexually-transmissible disease, even if Mere mental weakness is not a ground
not concealed.* for annulment, but if found grave
enough, it may amount to
Action to Annul: Action in rem, concerns psychological incapacity.
status of parties; res is relation between Intoxication, somnambulism where one
parties or marriage tie; jurisdiction depends had no mental capacity to give
on nationality or domicile not the place of consent is equivalent to insanity
celebration. Must EXIST AT THE TIME of the celebration
of the marriage. Insanity that occurs after
Grounds for Annulment explained: the celebration of marriage does not
constitute a cause for nullity (Katipunan
Lack of parental consent v. Tenorio (1937))
18 ≤ x < 21 without parental consent Law presumes SANITY, burden of proof
Ratified by party 18 or above but below on party alleging insanity
21 upon free cohabitation upon
reaching 21. Fraud
TOLENTINO: parents whose consents were
Only those enumerated in Art. 46:
wanting may ratify before 21; this right Non-disclosure of previous 
can be waived; however, the Code CONVICTION by final judgment of a

27
PERSONS

crime involving MORAL BAR ACTION for annulment; The defect is


TURPITUDE not the disease, but the FRAUD which
Concealment by wife at the time of VITIATED CONSENT.
  was pregnant
marriage, that she
by another man
 Concealment of STD regardless of Buccat v. Mangonon de Buccat, (1941):
nature existing at time of marriage W gave birth 3 months after marriage, H
Concealment of drug addiction, filed for annulment: concealment of non-
habitual alcoholism,
homosexuality, 
lesbianism virginity. Denied. Court held that it was
 existing at time of marriage unbelievable that husband could not have
NO other misrepresentation or deceit noticed when wife had been at least 6
of CHARACTER, HEALTH, RANK, months pregnant prior to marriage.
FORTUNE OR CHASTITY shall
constitute FRAUD. Aquino v. Delizo, (1960): The Supreme
Conviction of Crime:
 requisites are Court granted annulment because the wife
 Moral turpitude
  concealed the fact that she was 4 months
Conviction
Concealment of Pregnancy pregnant during the time of the marriage.
Fraud against very essence of Since Delizo was “naturally plump,” Aquino
marriage; importance of procreation could hardly be expected to know, by mere
of children; an assault to the
 integrity looking, whether or not she was pregnant at
 of the union by introducing
 the time of the marriage.
ALIEN BLOOD
If husband knew of pregnancy, the
 marriage cannot be annulled on Almelor v. RTC, (2008): It is the concealment
the ground of concealment of homosexuality, and not homosexuality per
May be ratified upon free cohabitation se, that vitiates the consent of the innocent
after knowledge of fraud. party. Such concealment presupposes bad
faith and intent to defraud the other party in
Art. 45 STD Art. 46 STD giving consent to the marriage.
Ground for annulment The STD is a type of
fraud which is a
ground for annulment Force, intimidation, undue influence
Does not have to be Must be concealed FORCE must be one as to prevent
concealed party from acting as a free agent; will
Must be serious and Need not be serious destroyed by fear/compulsion
incurable nor incurable INTIMIDATION must be one as to
The STD itself is the It is the concealment compel the party by a reasonable/well-
ground for annulment that gives rise to the grounded fear of an imminent and
annulment grave evil upon his person/properties
DEGREE OF INTIMIDATION: age,
Effect of Cure to Fraud in Art. 46: sex, condition of person borne in mind
Recovery or rehabilitation from STD, drug Threat or intimidation as not to act as
addiction, and habitual alcoholism will NOT 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

28
PERSONS

causing distress to parents, impotency, she is presumed potent; to


grandparents, etc. order her to undergo physical exam
(f) May be ratified upon cohabitation after does not infringe her right against self-
force, intimidation, or undue influence incrimination (Jimenez v Canizares)
has ceased or disappeared. NOTE: If she continues to refuse the
physical exam, she can be held in
e. Impotency contempt & ordered confined in jail
(a) Must exist at time of marriage, and be until she does so
continuous and incurable. If incapacity (g) Villanueva vs. CA (2006): Absence of
can be remedied or is removable by cohabitation is not a ground for
operation, NOT ANNULLABLE (Sarao v annulment.
Guevarra(1940)) (h) RELATIVE IMPOTENCY: may now be
(b) Physical condition: sexual intercourse invoked because there are cases where
with a person of the opposite sex is one is impotent with respect to his/her
impossible, not mere sterility spouse but not with other men or
(c) Only the potent spouse can file the women.
action for annulment and he/she must (i) EXAMPLE: penile erection to other
not have been aware of the other’s women possible; unusually large penis
impotency at the time of marriage cannot fit with abnormally small
(Sempio-Diy)  vagina
 If he/she was aware, it is
implied that he/she renouncedf. Sexually-transmissible disease serious and
copulation by consenting to incurable
the marriage. (Tolentino) (a) Should exist at the time of the
(d) When both spouses are impotent, marriage
marriage cannot be annulled because (b) Should be found serious
neither spouse is aggrieved. (Sempio- (c) Should appear to be incurable
Diy) (d) Reason: danger to the health of spouse

An impotent plaintiff could not & offspring/s
have expected copulation with (e) Same as incurable impotency

the other spouse. (Tolentino) (f) Not subject to ratification cannot be
(e) POTENCY PRESUMED; party who ratified or convalidated by
alleges impotency has burden of proof cohabitation:
(Jimenez v Canizares (1960)) Affliction of STD is unknown to
(f) REFUSAL of wife to be examined the other spouse (Balane)
DOES NOT PRESUME impotency The other spouse must also be
because Filipino women are inherently free from a similar STD. (Balane)
shy & bashful; TC must order physical
examination because w/o proof of

29
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/ Courts will only determine (1) whether the
Convalidation by cohabitation foreign judgment is inconsistent with an
One spouse is incurably impotent (Art. 47 overriding public policy in the Philippines; and
– prescription: 5 years) whether any alleging party is able to prove an
One spouse has an incurable STD (Art. extrinsic ground to repel the foreign judgment,
47 – prescription: 5 years) i.e. want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law
Presence of Prosecutor or fact. If there is neither inconsistency with
Art. 48: To prevent collusion between the public policy nor adequate proof to repel the
parties, fabrication or suppression of judgment, Philippine courts should, by
evidence, the prosecuting attorney or fiscal default, recognize the foreign judgment as
shall appear on behalf of the State. part of the comity of nations. [Fujiki vs
Marinay (2013)]
Corpuz v. Ochoterena, (2004): In a legal
separation or annulment case, the prosecuting G. THE LAW ON SEPARATION OF
attorney must first rule out collusion as a THE SPOUSES
condition sine qua non for further proceedings.
A certification by the prosecutor that he was SEPARATION IN FACT
present during the hearing and even cross-
examined the plaintiff does not suffice to comply Art. 239. When a husband and wife are
with the mandatory requirement. separated in fact, or one has abandoned the
other and one of them seeks judicial
Marriages dissolved by foreign judgment authorization for a transaction where the
consent of the other spouse is required by law
Aliens may obtain divorces abroad, which but such consent is withheld or cannot be
may be recognized in the Philippines, obtained, a verified petition may be filed in
provided they are valid according to their court alleging the foregoing facts.
national law. The marriage tie when thus
severed as to one party, ceases to bind either. The petition shall attach the proposed deed, if
[Van Dorn vs Romillo (1985)] any, embodying the transaction, and, if none,
shall describe in detail the said transaction and
A marriage between two Filipinos cannot be state the reason why the required consent
dissolved even by a divorce obtained abroad, thereto cannot be secured. In any case, the final
because of Articles 15 and 17 of the Civil deed duly executed by the parties shall be
Code. In mixed marriages involving a Filipino submitted to and approved by the court. (n)
and a foreigner, Article 26 of the Family Code
allows the former to contract a subsequent AGREEMENT TO SEPARATE
marriage in case the divorce is “validly A notary public should not facilitate the
obtained abroad by the alien spouse disintegration of a marriage and the family by
capacitating him or her to remarry.” A divorce encouraging the separation of the spouses
obtained abroad by a couple, who are both and extrajudicially dissolving the conjugal
aliens, may be recognized in the Philippines, partnership. [Espinosa vs Omana (2011)]
provided it is consistent with their respective
national laws. [Garcia vs Recio (2001)]

31
PERSONS AND FAMILY RELATIONS

ABSOLUTE DIVORCE Final judgment sentencing the respondent


to imprisonment of more than six years,
Article 26, par. 2 Where a marriage between even if pardoned;
a Filipino citizen and a foreigner is validly Drug addiction or habitual alcoholism of
celebrated and a divorce is thereafter validly the respondent;
obtained abroad by the alien spouse Lesbianism or Homosexuality of the
capacitating him or her to remarry, the Filipino respondent;
spouse shall have capacity to remarry under Contracting by the respondent of a
Philippine law. (As amended by Executive subsequent Bigamous marriage, whether
Order 227) in the Philippines or abroad;
Sexual infidelity or perversion;
If both parties are Muslims, there is a Attempt by the respondent Against the
presumption that the Muslim Code or Muslim life of the petitioner; or
law is complied with. If together with it or in Abandonment of petitioner by respondent
addition to it, the marriage is likewise without justifiable cause for more than one
solemnized in accordance with the Civil Code of year.
the Philippines, in a so-called combined Muslim-
Civil marriage rites whichever comes first is the People v. Zapata and Bondoc (1951):
validating rite and the second rite is merely Adultery is not a continuing crime; it is
ceremonial one. But, in this case, as long as consummated at every moment of carnal
both parties are Muslims, this Muslim Code will knowledge. Thus, every sexual act is a
apply. [Zamoranos vs People (2011)] ground for legal separation.

One of the effects of irrevocable talaq, as well Gandioco v. Peñaranda (1989): For
as other kinds of divorce, refers to severance sexual infidelity as a ground for legal
of matrimonial bond, entitling one to remarry. separation, there is no need for a prior
[Zamoranos vs People (2011)] conviction for concubinage, because
legal separation only requires a
preponderance of evidence, as opposed
Note: The grounds for legal separation are to proof beyond reasonable doubt.
exclusive. (Article 55)
These must be filed within 5 years after Lapuz Sy v. Eufemio (1972): The death of
occurrence of cause (Article 57) one party in a legal separation case abates
Repeated physical violence or grossly the action. This is because the death of either
abusive conduct directed against the spouse automatically dissolves the marriage.
petitioner, a common child, or a child of An action for legal separation is also purely
the petitioner; personal between the spouses.
Physical violence or moral Pressure to
compel the petitioner to change religious Dela Cruz. v. Dela Cruz (1968):
or political affiliation; Abandonment is not mere physical
Attempt of respondent to Corrupt or estrangement but also financial and
induce the petitioner, a common child, or moral desertion. There must be an
a child of the petitioner, to engage in absolute cessation of marital relations,
prostitution, or connivance in such duties, and rights with the intention of
corruption or inducement; perpetual separation.

32
PERSONS AND FAMILY RELATIONS

Depriving or threatening to
Almelor vs RTC (2008): It is the deprive the woman or her child of
concealment of homosexuality, and not a legal right;
homosexuality per se, that vitiates the Preventing the woman in
consent of the innocent party. Such engaging in any legitimate
concealment presupposes bad faith and profession, occupation, business
intent to defraud the other party in giving or activity or controlling the victim's
consent to the marriage. own money or properties, or solely
controlling the conjugal or
Acts of Violence according to RA 9262 common money, or properties;
Causing physical harm to the woman or Inflicting or threatening to inflict physical
her child; harm on oneself for the purpose of
Threatening to cause the woman or her controlling her actions or decisions;
child physical harm; Causing or attempting to cause the woman or
Attempting to cause the woman or her her child to engage in any sexual activity
child physical harm; which does not constitute rape, by force or
Placing the woman or her child in fear of threat of force, physical harm, or through
imminent physical harm; intimidation directed against the woman or her
Attempting to compel or compelling the child or her/his immediate family;
woman or her child to engage in conduct Engaging in purposeful, knowing, or
which the woman or her child has the right reckless conduct, personally or through
to desist from or desist from conduct which another, that alarms or causes substantial
the woman or her child has the right to emotional or psychological distress to the
engage in, or attempting to restrict or woman or her child. This shall include, but
restricting the woman's or her child's not be limited to, the following acts:
freedom of movement or conduct by force or Stalking or following the woman or
threat of force, physical or other harm or her child in public or private places;
threat of physical or other harm, or Peering in the window or lingering
intimidation directed against the woman or outside the residence of the
child. This shall include, but not limited to, woman or her child;
the following acts committed with the Entering or remaining in the
purpose or effect of controlling or restricting dwelling or on the property of the
the woman's or her child's movement or woman or her child against her/his
conduct: will;
Threatening to deprive or actually Destroying the property and
depriving the woman or her child personal belongings or inflicting
of custody to her/his family; harm to animals or pets of the
Depriving or threatening to deprive woman or her child; and
the woman or her children of Engaging in any form of
financial support legally due her or harassment or violence;
her family, or deliberately providing Causing mental or emotional anguish,
the woman's children insufficient public ridicule or humiliation to the woman
financial support; or her child, including, but not limited to,
repeated verbal and emotional abuse, and
denial of financial support or custody of

33
PERSONS AND FAMILY RELATIONS

minor children of access to the woman's Araneta vs. Concepcion, (1956): Courts
child/children. can still resolve other issues, pending the
waiting period or cooling off period. In
DEFENSES resolving other issues, courts should try not
Grounds for denying legal separation (Article to touch, as much as possible, on the main
56): issue (i.e. adultery if that is the ground
used). However, Court must still receive
Condonation by aggrieved party evidence if just to settle incidental issues of
Consent by aggrieved party to the support and custody.
commission of the offense
Connivance between parties in the Note: This provision of the Family Code
commission of the offense dictating a mandatory 6-month cooling-off
Mutual guilt or Recrimination between period does not apply in cases where
spouses in the commission of any ground violence, as used in RA 9262 (Anti-Violence
for legal separation against Women and their Children), is
Collusion between parties to obtain alleged. The case should be heard as soon as
decree of legal separation possible by the court.
Prescription of action for legal separation
(Art. 57: 5 years from occurrence of the CONFESSION OF JUDGMENT
cause of action) No decree of legal separation shall be based
Reconciliation of parties during upon a stipulation of facts or a confession of
pendency of action (Art. 66 par.1) judgment (Art. 60, par. 1. FC).
Death of either party during pendency of
action (Lapuz-Sy vs. Eufemio) Note: Art. 60 par. 1 applies only if the judgment
was based solely on the stipulation of facts or
WHEN TO FILE/TRY ACTIONS solely on the confession of judgment. Thus, if
An action for legal separation shall be filed other grounds were used, Art. 60 par. 1 is not
within five years from the time of the applicable. (Balane)
occurrence of the cause. (Art. 57)
Ocampo v Florenciano (1960): The
COOLING-OFF PERIOD AND prohibition on confession of judgment does not
RECONCILIATION EFFORTS mean that the Court will not grant petition if one
Action cannot be tried before six months have party admits to being guilty of the charges of
elapsed from the filing of the petition (Art. 58). adultery. The point of this provision is that the
Court should still admit evidence, not decide
Actions cannot be tried unless the court has just based on an admission of guilt. Because
attempted to reconcile the spouses, and what is prohibited is handing down a decree of
determined that despite such efforts, legal separation based solely on a confession
reconciliation is highly improbable (Art. 59) of judgment.

Note: This is without prejudice to judicial EFFECTS OF FILING PETITION


determination of custody of children, alimony, The spouses are entitled to Live separately,
and support pendente lite. but the marital bond is not severed. (Art. 61
(1))

34
PERSONS AND FAMILY RELATIONS

Administration of Community or Conjugal prescribes after 5 years from the decree


Property – If there is no written agreement of legal separation.
between the parties, the court shall designate (6) Innocent spouse may also revoke
one of them or a third person to administer the designation of guilty spouse as
ACP or CPG. (Art. 61, par. 2) beneficiary in an Insurance policy, even
if such stipulations are irrevocable. (Art.
EFFECTS OF PENDENCY 64. FC, cf. PD 612, sec. 11)
The Court shall provide for: (Art. 62, cf. Art. Obligation for Mutual support ceases, but
49. FC) the court may order the guilty spouse to
 Support of spouses
Custody of children
support the innocent spouse. (Art. 198)
The wife shall continue to use the Surname of
The court shall give custody of children to
the husband even after the decree for legal
one of them, if there is no written
separation. (Laperal v. Republic (1992))
agreement between the spouses. 
Visitation rights of the other spouse
RECONCILIATION
EFFECTS OF LEGAL SEPARATION Should the spouses reconcile, they should file a
The spouses can live separately (Art. 63) corresponding joint manifestation under oath
but the marriage bonds are not severed. of such reconciliation, duly signed by them and
The ACP or CPG shall be dissolved and filed with the court in the same proceeding for
liquidated, and the share of the guilty legal separation. (Art. 65)
spouse shall be forfeited in favor the
common children, previous children, or Effects of Reconciliation
innocent spouse, in that order (Art. 63. cf. Proceedings for legal separation shall be
Art. 43, par. 2). terminated at whatever stage. (Art. 66)
Custody of the minor children shall be If there is a final decree of legal separation, it
shall be set aside. (Art. 66)
awarded to the innocent spouse (Art. 63,
The separation of property and forfeiture of
cf. Art 213)
share of guilty spouse shall subsist, unless the
Guilty spouse shall be disqualified spouses agree to revive their former property
from Inheriting from innocent spouse by regime or to institute another property regime.
intestate succession. The provisions in (Art. 66 cf. Art. 67)
favor of the guilty party in the will of the Joint custody of children is restored.
innocent spouse shall also be revoked by The right to intestate succession by guilty
operation of law. (Art. 63) spouse from innocent spouse is restored.
Donations in favor of the guilty spouse The right to testamentary succession
depends on the will of the innocent spouse.
may be revoked (Art. 64) but this action

35
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