FAMILY CODE

(as amended)
ATTY. ALBINO (ALVIN) V.
GONZALES
Dean, College of Law
Chairman, People Law Enforcement
Board
President, Trial Lawyers Association of
the Philippines (Pangasinan Chapter)

IF YOU FAIL TO
PREPARE
PREPARE TO FAIL

MARRIAGE

marriage- special contract

- Permanent union
- Between man and woman
- Entered into an accordance with
law
- For the establishment of conjugal
and
family life

Aspects : -- 1. as a contract :
- only man and woman can enter
- permanent- only death can
extinguish
- rights and obligations not subject to
stipulations but fixed by law
except- marriage settlement on
property regime.
- breach results in penal and civil
sanctions.

As a status- inviolable social institution

- foundation of family
- institution of public order or
policy
- implication in two fieldspersonal rights
property relations

Requisites :
-essential1. Legal capacity of parties, 18 age,
male and female
no impidements in 37 or 38
2. consent freely given
in the presence of solemnizing officer .

-formal3. Authority of solemnizing officer

4. Marriage ceremony ( no form or rites
required)
appearance of parties before solemnizing officer
personal declaration that they take each other as husband or wife
in presence of two witnesses of legal age.

If there was no marriage ceremony, as

when the parties merely signed a
marriage contract without the
presence of the solemnizing officer,
there is no marriage to speak of, since
there is no actual marriage ceremony
performed between the parties by the
solemnizing officer, hence, there is no
need to file a summary proceding to
declare the marriage void. (Morigo vs
People, 476 SCRA 562 (2005).

The mere private signing of

a marriage contract bears
no semblance of a valid
marriage, and thus, need no
judicial declaration of nullity.
(Morigo, supra)

5. Valid marriage license, except ;

a- marriage in articulo mortis (either or
both, even if survived )
b- residence of either is so located that
no means of transportation to appear
before local civil registrar
c- marriage among muslims or members
of ethnic cultural communities, accdg. to
customs rites and practices.
d- Marriage between man and woman who
have cohabited for five years without
legal impediment to marry.
E- Celebrated in country where no
marriage license is required.?

In Sevilla vs Cardenas, 497 SCRA

428, the certification issued by
the Civil Registry of San Juan to
the effect that no marriage
license No. 2770792 was ever
issued by this office was
presented as evidence to prove
the absence of marriage license
for the purpose of declaring the
marriage void. Is the certification
sufficient?

No. The certification to be issued

by the local civil registrar must
categorically state that the
document does not exist in his
office or the particular entry could
not be found in the register
despite diligent search. Such
certification shall be sufficient
proof of lack or absence of record
stated in Section 28, Rule 132 of
the Rules of Court.

If the parties falsified their affidavit

stating therein that they had lived as
husband and wife for at least five
years prior to the marriage to exempt
themselves from the requirement of a
marriage license, when in truth and in
fact, they have fallen short of the
minimum five year requirement, will
they be estopped from questioning the
validity of their marriage or may the
marriage be still declared void on
ground of lack of a valid marriage
license?

The Court held that the falsity of an affidavit of

marital cohabitation, where the parties have in
truth fallen short of the minimum five-year
requirement, effectively renders the marriage void
ab initio for lack of marriage license. The falsity of
the allegation in the affidavit, which would have
qualified their marriage as an exception to the
requirement of a marriage license, cannot be a
mere irregularity, for it refers to the quintessential
fact that the law precisely required to be deposed
and attested by the parties under oath.
If the essential matter in the sworn affidavit is a
lie, then it is a mere scrap of paper, without force
and effect. Hence, it is as if there was no affidavit
at all.

Lastly, to settle all doubts, jurisprudence

has laid down the rule that the five-year
common-law cohabitation period under
Article 76 means a five-year period
computed back from the date of celebration
of marriage, and refers to a period of legal
union had it not been for the absence of a
marriage. It covers the years immediately
preceding the day of the marriage,
characterized by exclusivity- meaning no
third party was involved at anytime within
the five years- and continuity that is
unbroken (Republic vs Jose A. Dayot, GR
No. 175581, March 28, 2008.)

1. incumbent members of the judiciary

(within jurisdiction)
2. priests, etc., authorized by church,
registered In the civil
registrar general, acting within limits of
written authority
granted by church, one or both contracting
parties belongs
to the officers church
3. ship captain or airplane chief ( at sea, in
flight, for entire
voyage) in articulo mortis between passengers
or crew
members
4. military commander of a unit (battalion
commissioned
officer in articulo mortis within zone of military
operation in
the absence of Chaplain

Marriage Contract , signed by both

and attested by solemnizing officer)
In case of marriage in articulo mortis,
if party unable to sign marriage
certificate, one of the witness can
write the name of the party, attested
by the solemnizing officer

Place of solemnizationpublic
Except- articulo mortis
Remote place
Request of both parties in
writing, in a place or house
designated by them in
sworn statement

Absence of Essential
Formal req.- marriage void

Except- belief in good faith

of parties that party
solemnizing is duly authorized

Examples- absence of essential

req-lack of age- below 18
-parties of same sex
-prohibited by law to marry each
other
-Absence of consent- marriage in
jest

Examples of absence of formal

req.-Person solemnizing has no
authority except believed to be
duly authorized
-No marriage license, unless
excepted
-Expired marriage license
-Absence of marriage ceremony

Defect in essential req. - marriage

voidable
Ex:
-lack of parental consent
-consent obtained by fraud
-consent obtained by force

Irregularity in formal req. marriage valid,

but party responsible shall be civilly,
criminally and administratively liable.
Examples- marriage license not applied for in place
specified
- marriage license signed by mere employee of
LCR
with his authority, if without void
- 10 day posting not complied with
- no requirements on parental advice, marriage
counseling or family planning seminar
- no witness to marriage.

license- 120 days from

issuance, can be used
anywhere in the country

- automatically cancelled
if not
used upon the
expiration of
expiry date stamped
on face of

Marriage certificate- not an

essential or formal req. but best
proof of marriage
Copies to be given as follows :
-original to the parties
-duplicate and triplicate to the LCR of
place of marriage within 15 days after
marriage
-quadruplicate- retained by the officer

2. In December 2000, Michael and Anna, after

obtaining a valid marriage license, went to the
Office of the Mayor of Dagupan City to get
married. The Mayor was not there, but the Mayors
secretary asked Michael and Anna and their
witnesses to fill up and sign the required marriage
contract forms. The secretary then told them to
wait, and went out to look for the Mayor who was
attending a wedding in a neighboring municipality.
When the secretary cannot find the Mayor, he
requested the Vice-Mayor to celebrate the marriage.
Thereafter, Michael and Anna had three sons.
[a] Is the marriage of Michael and Anna valid,
voidable, or void? Explain your answer.
[b] What is the status of the three children of
Michael and Anna? Explain your answer.

Marriages solemnized outside countryvalid there as such shall also be valid in

this country, except :
article 35 (1) no legal capacity to get married
(4) bigamous or polygamous
(5) consent lacking because of
mistake
in identity of the other
Article 36- party psychologically incapacitated
Article 37- incestuous marriage
Article 38- marriage void by reason of public
policy

Divorce obtained by a
foreigner-spouse, the
Filipino spouse shall
likewise have the capacity
to remarry under Philippine
law.
(E.O. No. 227, july 17,1987)

In the case of Republic vs Orbecido III, (472

SCRA 114), the Court held that in applying
the provision of the 2nd par. of Article 26 FC,
the reckoning point is not the citizenship of
the divorcing parties at birth or at the time of
marriage, but their citizenship at the time a
valid divorce is obtained abroad by the alien
spouse capacitating him or her to remarry.
Thus, where both parties were Filipino
citizens at the time of the celebration of the
marriage, but later on, one of them becomes
naturalized as foreign citizen and thereafter
obtains a valid divorce decree, Article 26
applies.

Art. 35 void marriages

1. lack of age
2. no authority to solemnize- except either or
both believed
3. No marriage license, except provided by law
4. bigamous/polygamous marriages
except contracted in case spouse had been absent
for four years or two years, and present spouse
has a well-founded belief that absent spouse was
already dead.

4. contracted through mistake

of one party as to the
identity of the other
5. subsequent marriages void
under Art. 53 (subsequent
marriage without delivering
the presumptive legitimes of
compulsory heirs.

Subsequent
bigamous marriageValid if contracted after the
absence of four (4) years, if the
spouse has a well-founded
belief that the absent spouse is
already dead.

But, two (2) years absence sufficient in

case of disappearance under
circumstances indicating danger of death :
a- lost during sea voyage or airplane
missing
b- missing in action in war
c- under danger of death under
other circumstances

For purposes of contracting the

subsequent marriage, the
present spouse must institute a
summary proceeding for
declaration of presumptive
death of the absentee. (41)
This does not apply to
subsequent marriage
contracted before the
effectivity of the Family Code,
because the New Civil Code
does not require said

Since the second marriage took

place during the effectivity of
the New Civil Code, the
presumption of death is
established by law and no court
declaration is needed for the
presumption to arise, since
death is presumed to have taken
place by the seventh year of
absence pursuant to Art. 390 of
the Civil Code. (Valdez vs
Republic, 597 SCRA 13).

If the subsequent marriage (by reason of

presumptive death of the absentee spouse)
took place prior to August 3, 1988, the
subsequent marriage is valid even if there was
no judicial declaration of presumptive death so
long as the prescribed period of absence is
met. (Armas vs Calisterio, 330 SCRA 2001).
But, if such subsequent marriage is celebrated
during the effectivity of the Family Code, the
requirement of judicial declaration of
presumptive death is absolute and
indispensable. In the absence thereof, the
sub- subsequent marriage is void and the
spouse present shall be liable for bigamy.
Article 41 FC was enacted to harmonize civil
law and Art. 349 of the RPC. (Manuel vs
Manuel, 476 SCRA 461)

In Republic vs Bermudez-Lorino, 449

SCRA 57, it was held that the order of
the trial court granting the petition for
judicial declaration of presumptive
death is immediately final and
executory. Hence, the right to appeal
was not granted to any of the parties
therein. It was therefore erroneous for
the OSG to file a notice of appeal, and
for the RTC to give due course thereto.
The ruling was reiterated in Republic
vs Tango, 594 SCRA 560)

While there is no appeal, an

aggrieved party may file a petition
for certiorari to question abuse of
discretion amounting to lack of
jurisdiction and such petition shall
be filed in the Court of Appeals in
accordance with the Doctrine of
Hierarchy of Courts. (Republic vs
Tango, supra)

Art. 36- Psychological incapacity to perform marital

obligationsReasons for Art. 361. New Code on Canon Law provides the same ground for
Declaration of nullity of marriage.
2. Parties who have church annulled marriage are given
cause
of action to have their marriages declared void by civil
law.
3. Parties to marriages that exists in name only since
they have
long been separated from each other because of the
inability
or failure of one of the parties to perform the essential
obligations of marriage.

marriage is defective or not, but whether there can be

fulfillment of the valid consent.
Examples of psychological incapacity:
1. Husband/wife refuses to dwell with and subsequently
leave the
Spouse without fault of the other;
2. Husband/wife leaves the spouse without justifiable cause;
3. Husband/wife refuses to have sex with the other spouse;
4. Wife refuses to have children;
5. There is unbearable jealousy on the part of either party,
hence,
Making life of the parties unbearable;
6. Immaturity or where is there is lack of rational judgment
and
Responsibility as when the husband refuses to support the
family;
7. Husband or wife cannot shoulder the heavy responsibility
of being
A parent;

Mere showing of irreconcilable

differences and conflicting personalities
does not constitute psychological
incapacity. (Republic vs. Court of Appeals,
and Roridel Molina, 268 SCRA 198).

bench, the interpretation of Art. 361. Burden of proof to show nullity belongs to plaintiff;
2. Root cause of psychological incapacity must be:
A- medically or clinically identified
B- alleged in the complaint
C- sufficiently proven by experts
D- clearly explained in the decision
3. The incapacity must be proven to be existing at
the time of
Celebration of marriage;
4. Incapacity must be shown to be medically or
clinically
Permanent or incurable;
5. Illness must be grave enough to bring about the
disability
to assume the essential obligations of marriage;
6. Non-complied marital obligations must be stated
in the
Petition and proven by evidence and included in
the text
of the decision;
7. The court must order the fiscal and solicitor
general to appear

In the case of Santos vs. CA,

240 SCRA 20, the Supreme
Court held that being of
unsound mind, drug addiction,
habitual alcholism, lesbianism,
or homosexuality may be
indicia of psychological
incapacity, depending on the
degree of severity of the
disorder.

In Marcos vs Marcos, 343 SCRA 755, the

SC clarified that there is no requirement
that the defendant spouse should be
personally examined by a physician or
psychologist as a condition sine qua
non for the declaration of nullity of
marriage based on psychological
incapacity.
Such psychological incapacity,
however, must be established by the
totality of the evidence presented
during trial.

But, in Bier vs Bier, 547 SCRA

123, the clinical psyschologist
relied only on the information
fed by the petitioner. Thus, the
Court considers the testimony
of the clinical psychologist
hearsay evidence since she
had no personal knowledge of
the alleged facts she was
testifying on.

Lately, in Ngo Te vs Yu-Te, 579 SCRA 193,

and Azcueta vs Republic, 588 SCRA 196, the
court relaxed the Molina guidelines by
relying heavily on the findings of the expert
witness (clinical pyschologist) in declaring
the marriage void on ground of
psychological incapacity.
The Court said- By the very nature of Art.
36, courts, despite having the primary task
and burden of decision-making, must not
discount but, instead, must consider as
decisive evidence the expert opinion on the
psychological and mental temperaments of
the parties.

In psychological incapacity, the spouse

declared to be psychologically
incapacitated has innate incapacity or
inability to comply with the essential
obligations of marriage because of an
utter insensitivity or inability to
understand such obligations (Santos vs
CA 240 20)
As such, he or she cannot be held
liable to pay moral damages to the
other spouse based on Article 2217
and 21 of the NCC which connotes
willfulness of the acts complained of.

If the same acts constitutive of

the psychological incapacity were
made the basis of the award of
moral damages, it is contradictory
to characterize acts as product of
pyschological incapacity, hence
beyond the control of the party
because of innate inability, while at
the same time considering the
same set acts as willfull.
(Buenaventura vs CA, 454 SCRA
261).

353, the respondent was a

pathological liar and which lies
were held to be indicative of her
failure to distinguish truth from
fiction, or at least abide by the
truth. In declaring her
psychologically incapacitated, the
Court held that a person unable to
distinguish between fantasy and
reality would similarly be unable to
comprehend the legal nature of
the marital bond, much less its
psychic meaning, and the

The Court may not refuse to apply the

guidelines in the Molina case simply
because the marriage is a mixed one and
that the respondent is a foreign citizen. The
SC held in Republic vs Quintero-Hermano
(428 SCRA 735) that such guidelines may
not be relaxed just because the spouse
alleged to be psychologically incapacitated
happens to be a foreign national. The
norms used for determining psychological
incapacity should apply to any person
regardless of nationality because the rules
were formulated on the basis of studies of
human behavior in general.

Art. 37 Incestous
marriages- between ascendants and
descendants of any degree
-between brothers and sisters,
whether of full or half blood.

Art. 38 Marriages void by reason of public

policy1. between collateral blood relatives,
whether
legitimate or illegitimate, up to the fourth
civil degree.
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between adopting parent and adopted child
5. between surviving spouse of the adopting
parent and the adopted child

6. between surviving spouse of the

adopted child and the adopter
7. between an adopted child and
legitimate child of the adopter
8. between adopted children of the
same
adopter
9. between parties where one, with the
intention to marry the other, killed
that
others spouse, or his own
spouse.

Nota bene: marriage

between the adopted child
and the illegitimate child of
the adopter is not included
in Article 38.

Who may file petition for declaration of

nullity of marriage?
A- In Ninal vs Bayadog, 328 SCRA 122, the
Supreme Court allowed the compulsory/legal
heirs to file petition for declaration of nullity
of their fathers marriage against
respondent after the death of their father.
B- Subsequently thereafter, the SC
promulgated the Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (AM No.
02-11-10-C), which took effect on March 15,
2003, and Section 2 thereof, makes it the
sole right of the husband or the wife to file a
petition for declaration of absolute nullity of
void marriage.

In Enrico vs Heirs of Sps. Medinaceli,

534 SCRA 418, the Court clarified that
the coverage of the AM No. 02-11-10-SC
extends only to those marriages entered
during the effectivity of the Family
Code, and its application is prospective.
In Carlos vs Sandoval, 574 SCRA 116, the
Court further clarified that AM No. 02-1110-SC, does not apply to cases already
commenced before March 15, 2003,
although the marriage involved was
celebrated during the effectivity of the
Family Code.

What rule will apply for marriages

celebrated under the Civil Code?
The absence of a provision in the
Civil Code cannot be construed as
a license for any person to
institute a nullity of marriage
case. Such person must appear to
be a party who stands to be
benefited or injured by the
judgment in the suit, or the party
entitled to the avails of the suit.
Hence, only the compulsory or
legal heirs of the deceased spouse

One who is not the real party in

interest in a complaint for declaration
of nullity of marriage cannot ask for
the setting aside of the decision
therein- his invocation of the States
interest in protecting the sanctity of
marriage does not give him the
standing to question the decision. By
law, it is the prosecuting attorney of
fiscal or the Solicitor General who
represents the interest of the State in
proceeding for the annulment or
declaration of nullity of marriage.

(Salamingo vs Rubica, 527 SCRA 1)

Period to file petition for

declaration of nullity of marriage- For marriages the prior to the
effectivity of the Family Code (Aug
3, 1988), the petition may be
filed by the real party-in-interest
even after the death of the
spouses. (Ninal vs Bayadog, 328
SCRA 122)

- If the marriage was celebrated

during the effectivity of the
Family Code but the petition was
filed before March 15, 2003, the
petition may be filed by the real
party-in-interest even after the
death of the spouses. (Carlos vs
Sandoval, supra).

Note: AM No. 02-11-10-SC does

not apply.

If the marriage was celebrated during the

effectivity of the Family Code, and the
petition was filed on March 15, 2003 or
thereafter, the petition can be filed only by
either spouse and during their lifetime. No
such petition can be filed after death of
either spouses, and in case a party dies at
any stage of the proceedings before entry of
judgment, the court shall order the case
closed and terminated. (AM 02-11-10-SC) ,
but without prejudice to a collateral attack
that may be done by the compulsory/legal
heirs of the spouses upon death of a spouse
in a proceeding for settlement of the estate
of the deceased spouse. (Enrico vs Heirs of
Medinaceli and Carlos Sandoval, supra)

Action or defense for the

declaration of absolute nullity of
marriage shall not prescribe. (39)
(as amended by RA 8533, Feb. 23,
1998)
Absolute nullity of a previous
marriage may be invoked for
purposes of remarriage on the basis
solely of a final judgment declaring
such previous marriage void.(40)

What step must be

undertaken by the present
spouse before entering into s
subsequent marriage?
What is the effect of failure to
take such step?

One must first secure a final judicial

declaration of nullity of his previous
marriage before he can validly contract
another marriage and failure to do so shall
make him liable for the crime of bigamy if he
contracts a subsequent marriage. (MarbellaBobis vs Bobis, supra, Abunado vs People,
426 SCRA 562) (41)
Even if the prior marriage is void but a party
thereto fails to secure a judicial declaration
of its nullity before contracting another
marriage, the subsequent marriage is also
void. (Art. 50 FC, Carino vs Carino, 351 SCRA
127) and the party is liable for the crime of
bigamy.

To contract a subsequent
marriage, the other spouse
must be absent for 4 years
or 2 years, and the present
spouse has well-founded
belief that the absent
spouse was already dead.
(41)

When may the subsequent

bigamous marriage be
terminated?
The subsequent marriage shall be
terminated automatically by the
recording of the Affidavit of
Reappearance of the absent
spouse, unless there is a judgment
annulling or declaring the
previous marriage void. (42)

The sworn statement of

reappearance shall be recorded in
the civil registry of the residence
of the parties of the subsequent
marriage at the instance of any
interested person, with due
notice to the parties of the
subsequent marriage and without
prejudice to the fact of
reappearance being judicially
determined in case such fact is
disputed. (42)

If the absentee reappears, but no step is

taken to terminate the subsequent
marriage, either by affidavit or court action,
such absentees mere reappearance, even if
made known to the spouses in the
subsequent marriage, will not terminate
such marriage. Since the second marriage
has been contracted because of a
presumption that the former spouse is dead,
such presumption continues inspite of the
spouses physical appearance, and by fiction
of law, he or she must still be regarded as
legally an absentee until the subsequent
marriage is terminated as provided by law.
(SSS vs Jarque Vda. De Ballon, 485 SCRA
376)

Wife left the home, husband

inquired from friends, no news
about her, sent letter to former
place of work, but were returned. Is
this sufficient to declare wife
presumptively dead?
No. Spouse should not be
allowed, by the simple expedient
that one of them left the conjugal
home and never to return again, to
circumvent the laws on marriage
which is not an ordinary but special
contract of permanent union.

EFFECTSOF TERMINATION OF SECOND

MARRIAGE: (43)
1. Children of the second marriage
conceived prior to
termination shall be legitimate.
2. custody and support to be decided by
the court in
proper proceedings.
3. community property shall be dissolved
and liquidated,
but share of spouse in bad faith in the
net profits shall
be forfeited in favor of common
children, or children of
guilty spouse, or innocent spouse.

4. donations by reason of marriage

shall remain valid, but those in
favor of spouse in bad faith, shall
be revoke by operation of law.
5. innocent spouse may revoke
the designation of spouse in bad
faith as beneficiary in any
insurance policy, even if
designation is irrevocable.
6. spouse in bad faith shall be
disqualified to inherit from the
innocent spouse, whether by

IF BOTH IN BAD FAITH- (44)

1. marriage shall be void
2. donations by reason of
marriage
revoked by operation of
law
3. testamentary disposition
revoked by
operation of law

GROUNDS FOR ANNULMENT OF

MARRIAGE (45)
1. LACK OF PARENTAL CONSENT,
unless cohabited
freely after 21 years of age.
2. INSANITY, unless after coming to
reason cohabited freely with each
other.
3. CONSENT OBTAINED BY FRAUD,
unless with full
knowledge, cohabited freely

4. CONSENT OBTAINED BY FORCE,

INTIMIDATION, UNDUE INFLUENCE,
unless cause disappeared,
cohabited freely
5. IMPOTENCY, continuing and
appears to be incurable
6. PARTY AFFLICTED WITH
SEXUALLY TRANSMISSIBLE
DISEASE, found to be serious and
incurable
CONSENTINSANITY

parental, fraud, force,

A & B were sweethearts. B.

became pregnant. Knowing
that A was about to take bar
exam, B threatened A with
complaint for immorality in the
Supreme Court. As a
consequence of the threat, A
married B. Is the marriage
annullable on ground of
intimidation?

No, the threat to enforce ones

claim which is just and legal,
through competent authority, is
not the threat contemplated by
law to annul a marriage. The
threat must be unjust or illegal.
(Ruiz vs. Atienza, CA 40 Off Gaz.
1093).

FRAUD TO ANNUL A MARRIAGE (46)

CONCEALMENT OF CONVICTION by final
judgment of a
crime involving moral turpitude.
CONCEALMENT OF PREGNANCY BY WIFE
by another
man at the time of marriage
CONCEALMENT OF SEXUALLY
TRANSMISSIBLE DISEASE,
at the time of marriage
CONCEALMENT OF DRUG ADDICTION,
HABITUAL
ALCOHOLISM,
HOMOSEXUALITY
OR
LESBIANISM

NO other misrepresentation
or deceit as to character,
health, rank, fortune or
chastity shall constitute fraud
for annulment of marriage.

Plaintiff, a first year law

student, met the defendant in
March 1968. After several
meetings, became engaged
and were married. After 88
days, defendant gave birth to
child. Plaintiff abandoned
defendant and filed suit for
annulment on the ground of
fraud, as the defendant
assured that she was a virgin.
Will suit the prosper?

The marriage cannot be annulled. The law

is explicit, no other misrepresentation or
deceit as to character, health, rank,
fortune, or CHASTITY shall constitute
fraud for annulment of marriage.
On the ground that she was pregnant
by another man, the law is explicit.
There must be concealment. Here is there
is no possibility of concealment.
Defendant was already about 6 months
pregnant. At such advance stage of
pregnancy, concealment would be
impossible. (Buccat vs. Buccat, 72 Phil
19).
Accdg to medical authorities, when a

IMPOTENCYTest on Impotency- the test is not the

capacity to reproduce but the capacity
to copulate. (Sarao vs. Guevarra, CA
Off. Gaz. 263).
Physical incapacity as ground for
annulment of marriage refers to
inability to perform the sexual act, and
not sterility or inability to procreate.
(Menciano vs. San Jose, 89 Phil 63;
Jimenez vs. Canizares, 109 Phil 273).

If the spouse knew that the

other party is impotent, can
she ask for annulment of her
marriage?
How about if the man is
already 80 years old, can she
ask for annulment?

No. 1. To be entitled, party must be

unaware of the impotency because the law
requires that the party that can bring the
action must be the injured party. If she
knew, she is not an Injured party.
2. Estoppel. She is renouncing
copulation, which is a purely personal
right.
3. Sexual intercourse is not the only
end or purpose of marriage.
If the man is 80 years old, the wife
should know that he should be already

Doctrine of triennial cohabitation- the

presumption that the husband is
impotent should the wife still remain
a virgin after living together with the
husband for 3 years.
Can relative impotency be invoked to
annul marriage? Yes. In view of the
physical incapability of one party to
consummate said marriage with the
other.

Can a woman be compelled to

undergo physical examination to
determine her physical capacity for
copulation? (private part of the
woman to small to allow
penetration).

Yes. A physical examination in this case is

not self-incrimination. She is not charged
with any offense. She is not being
compelled to be a witness against herself.
Impotency, being an abnormal condition,
should not be presumed The presumption
is in favor of potency. (Jimenez
vs.Canizares, 109 Phil 273).

Who may bring an action

to annul a marriage?

PARTY TO ANNUL MARRIAGE (47)

PARENT/GUARDIAN without consent,
before 21, or
PARTY (whose parent did not give
consent)- within 5 years after 21 years
of age
SANE SPOUSE (if no knowledge)
RELATIVE/GUARDIAN OF INSANE
SPOUSE, at anytime before death of
EITHER PARTY,
INSANE during lucid interval or upon
regaining sanity

FORCE, ETC., INJURED PARTY,

WITHIN 5 YEARS AFTER
CESSATION THEREOF
IMPOTENCY, INJURED PARTY,
WITHIN 5 YEARS AFTER
MARRIAGE
SEXUALLY TD, INJURED PARTY,
WITHIN 5 YEARS AFTER
MARRIAGE

(48) IN ANNULMENT OR
DECLARATION OF NULLITY OF
MARRIAGE, COURT SHALL ORDER
PROSECUTOR TO APPEAR TO PREVENT
COLLUSION BETWEEN THE PARTIES
NO JUDGMENT ON STIPULATION OF
FACTS OR CONFESSION OF JUDGMENT
IN ANNULMENT OR NULLITY OF
MARRIAGE

49. DURING PENDENCY OF SUIT FOR

ANNULMENT OR NULLITY OF
MARRIAGE1. court provides for support of
spouses
2. custody and support of common
children
3. Custody shall be given to spouse
with due
consideration toa- moral and material welfare of
the children
B- their choice of parent they
wish to remain

AFTER ANNULMENT: (50, 51)

1. Community shall be dissolved and

liquidated
2. donations by reason of marriage
shall be valid
3. innocent spouse may revoke
designation of
guilty Spouse as beneficiary in
life insurance
policy, even if designation is
irrevocable.
4. guilty spouse shall be disqualified
to inherit
from innocent spouse

6. Orders the delivery of

presumptive legitimes
7. conjugal dwelling and lot shall
be
adjudicated to spouse whom
majority of
children choses to remain; in
case no
majority, court decides
8. either spouse may remarry, but
deliver
presumptive legitimes,
otherwise remarriage
is void
9. children conceived or born

If the judgment of
annulment or declaration of
nullity of marriage,
partition and distribution is
not registered, what is the
effect?

 The judgment of annulment or absolute

nullity of marriage, partition and
distribution of the properties of spouses
and delivery of presumptive legitimes
shall be recorded in the civil registry
and registry of properties, otherwise,
the same shall not affect third persons.
If not registered, the subsequent
marriage of either of former spouses
shall be null and void. (52)

Where there are no properties

of the spouses which could be
the subject of liquidation, and no
legitimes to be delivered, is
there a need for recording of the
judgment of annulment or
absolute nullity of marriage?

 There is no need for recording of the

judgment in the appropriate registries
of property where there are no
properties that would be subject of
liquidation, partition and distribution
and no presumptive legitimes that
could be delivered. Logically, our
governing laws do not require such
judgment to be furnished and
recorded in the registries of property.

LEGAL SEPARATION (55)

1. PHYSICAL VIOLENCE repeated
GROSSLY ABUSIVE CONDUCT
2. PHYSICAL VIOLENCE OR MORAL
PRESSURE to
change politic or religion
3. ATTEMPT TO CORRUPT
INDUCE to engage in
prostitution
3. FINAL JUDGMENT WITH
IMPRISONMENT OF
MORE THAN 6 YEARS, even if
pardoned
4. DRUG ADDICTION, HABITUAL

5. LESBIANISM, HOMOSEXUALITY
6. BIGAMOUS MARRIAGE, ANYWHERE
contracted
7. SEXUAL INFIDELITY OR
PERVERSION
8. ATTEMPT AGAINST LIFE
9. ABANDONMENT FOR MORE THAN
ONE YEAR,
without justifiable cause

GROUNDS FOR DENIAL (56)

1.CONDONATION - forgiven
2. CONSENT- agreed
3. CONNIVANCE4. MUTUAL GUILT- both had given ground
5. COLLUSION- both agree to commit or
appear to commit
6. PRESCRIPTIONTIME TO FILE- 5 YEARS FROM OCCURRENCE
(57)
NO TRIAL BEFORE 6 MONTHS FROM FILING
OF PETITION (58)
NO JUDGMENT UNLESS EARNEST EFFORTS
FOR RECONCILIATION MADE DURING

Under Section 19 of RA 9262 (AntiViolence Against Women and Children

Act of 2004), the requirement of six
months cooling-off period under
Article 58 FC shall not apply where
violence, as specified in RA 9262, is
alleged as the ground for legal
separation.
Ex. Repeated physical violence against
the wife or common children. In such
cases, the court shall proceed on the
main case and other incidents of the
case as soon as possible.

If the ground for legal separation is

any act of violence punishable
under RA 9262, said law prohibits
the awarding of custody of minor
children to the perpetrator of a
woman who is suffering from
battered woman syndrome.
The victim who is suffering from
battered woman syndrome shall
not also be disqualified from having
custody of her children. (Sec. 28,
RA 9262)

H instituted an action for legal

separation against his wife, W on
the ground of adultery. It was
however established during trial
that after Hs discovery of his
wifes
infidelity, he still had sexual
intercourse with
her twice. Will the action prosper?

 No. The act of H in having sexual

intercourse with W in spite of his
knowledge of the latters
infidelity is an act of implied
condonation. Such act of
condonation shall bar the
granting of a decree of legal
separation. (Ginez vs Bugayong,
100 Phil 616)

A caught his wife, B, having illicit

relations with P. He then told her that he
will file an action against her for legal
separation which the latter agreed
provided that no criminal charges shall be
filed against her. The complaint was filed
and B defaulted. When questioned by the
Fiscal, B signified her conformity to the
legal separation. Is there collussion? Is
there confession of judgment to bar the
decree of legal separation?

 The confession made outside of the

court is not a confession of judgment.
Confession of judgment happens when
defendant appears in court and
confesses to the right of the plaintiff to
judgment or files a pleading expressly
agreeing to plaintiffs demand.
There is evidence of adultery
independent of the confession, upon
which the decree may be granted.

 What the law prohibits is a

judgment based exclusively or
mainly on defendants confession.
Otherwise, if a confession can
defeat the action ipso facto, any
defendant, who opposes the
separation, will immediately
confess judgment, purposely to
prevent it. (Ocampo vs.
Florenciano, 107 Phil 35)

 A and B entered into a contract

whereby they agreed to live
separately and that they are free
to cohabit with anyone.
Thereafter A cohabited with M
and had seven children with her.
B filed an action for legal
separation against A. Will the
action prosper?

 No.
The action has prescribed. Action for
legal separation prescribed in 5 years.
By their express agreement, B had
consented or condoned the act of A.
Having consented or condoned the acts
of A, he is undeserving of courts
symphaty.
B is not an innocent spouse. She is aware
of the cohabitation between A and M.

Effects of filing of legal separation

(61)
Spouses are entitled to live
separately
No more right of carnal
intercourse
Court shall designate H or W to
manage the community property
Court shall provide for the
support of the spouses and the
common children

Effects of decree of legal separation

(63, 64)
Spouse shall live separately, but
marriage bond shall not be
severed
Community property shall be
dissolved and liquidated.
Offending spouse forfeits share
in the profits
Offending spouse disqualified to
inherit from innocent spouse

 Innocent spouse may revoke donations in

favor of offending spouse, as well as
designation as beneficiary in any
insurance policy, even irrevocable
Disposition in the will in favor of
offending spouse is revoked by operation
of law.
Custody of minor children awarded to
innocent spouse, provided that no child
below 7 years shall be separated from the
mother

A married woman may use:

1. Her maiden first name and
surname and add her husbands
surname; or
2. Her maiden first name and her
husbands surname, or
3. Her husbands full name, but
prefixing a word indicating that she
is his wife, such as Mrs.

In case of legal separation, the wife shall

continue using her name and surname
employed before the legal separation.
(Art. 372 FC)
In case of anulment of marriage, if the
wife is the guilty party, she shall resume
her maiden name and surname. If she is
the innocent spouse, she may resume her
maiden name and surname, or continue
using the former husbands surname,
unless: the court decress otherwise; or
she or the former husband is married
again to another person. (Art. 371 NCC )

 A brought an action for legal

separation against his wife B on
ground of adultery. He likewise
asked the Court for the
forfeiture of the share of B in the
community profits. During the
pendency of the case, A died.
May the heirs of A be substituted
in his behalf?

 The action for legal separation, which

involves nothing more than separation
from bed and board is purely personal.
Being personal in character, the death of
one party to the action causes the death
of the action itself.
Even if the action involves property rights,
the abatement still applies. The property
rights are mere effects of a decree of legal
separation. Without the decree, such
rights do not come into existence.

Reconciliation (65)
If the spouses should reconcile,
the corresponding manifestation
under oath duly signed by them
shall be filed with the court in
the same proceeding for legal
separation.

Effects of reconciliation (66)

Legal separation proceedings,
if pending, shall be terminated in
whatsoever stage.
Final decree of legal
separation shall be set aside, but
separation of property and
forfeiture shall subsists, unless
the property agree to revive
their former regime.

The use of the husbands

surname during the marriage is
permissive and not obligatory.
Hence, a married woman may
retain the use of her maiden
name. (In re: Josephine P. UyTimosa, Bar matter No. 1625,
July 18, 2006)

Revival of former regime

(67)
Spouse should execute an agreement under
oath and specify the following:
1. properties to be contributed anew to
the restored regime
2. properties to be retained as separate
of each
3. the names of all their known creditors,
addresses
and amounts owing to each

The agreement shall be approved and

recorded. Does not prejudice creditor
without notice, unless debtor-spouse has
sufficient separate property

The Rule on Legal Separation (AM No. 02-1111-SC) appears to allow the spouses, upon
reconciliation and with intervention of the
court, to adopt a new property regime
different from that which they had prior to
the filing of the petition for legal separation.
(Sec. 23(e) and 24, AM No. 02-11-11-SC).
It is submitted, however, that the parties
may not adopt absolute community or
conjugal partnerhip of gains as their new
property regime because regimes cannot
commence at any other time except the
precise moment of the celebration of
marriage and any stipulation to the contrary
is expressly declared by law to be void. (Art.
88 and 107, FC)

RIGHTS AND OBLIGATIONS BETWEEN

HUSBAND AND WIFE:
Obligations : (article 68)
-To live together
wife to live with husband
except :
a- residence dangerous
b- husband has not fixed
residence
c- husband carries shameful
business at
home
-To observe mutual love, respect, and

Q. W, wife, abandoned her

husband, H, without justifiable
reason, can H ask the court to
order W to return to the
conjugal home under penalty
of contempt? What other
remedies are available to H?

Ans. No, bec. Cohabitation is

purely personal obligation (Arroyo
vs. Vasquez de Arroyo, 42 Phil. 54)
Remedies : A- withhold support
B -recover moral
damages
C- ask court to
counsel
The refusal of the wife to
perform her wifely duties, her
denial of consortium and her
desertion of her husband would
certainly constitute a wilful
infliction of injury upon her

Who fixed domicile?

Both, in case of disagreement,
court decides (article 69)
The court may exempt spouse from
living with the other :
A- if spouse lives abroad
B- other valid and compelling
reason for
exemption

Support of the family joint

responsibility of both (Art. 70)
Order :
a- from community property
b- income or fruits of separate
property
C- separate property of spouses
(proportionate to their properties,
but to creditors, solidarily liable).

Management of household- right and duty

of both (article 71) expenses to be paid in
the same order as in support
Profession or occupation- wife may
exercise without consent of husband but
Husband may object on valid, serious and
moral grounds
In case of disagreement court decides
on whether or not objection proper, and
benefits accrued to the family.
If benefit accrued to family prior to
objection , resulting obligation shall be
enforced against the absolute community;
after objection, against separate property

Under RA 9262, if the husband

prevents his wife from
engaging in any legitimate
profession, occupation or or
activity, he has committed an
act of violence punishable by
said law (Sec. 5(e), RA 9262),
except in cases where the
husband objects on valid,
serious and moral grounds.
(Sec. 3(a) (D) (1), RA 9262).

Legal sanctions : ( petition

court for relief) (72) If spouse
1. neglects duties to
conjugal union
2. commits acts which tend
to bring
danger, dishonor or injury
to the
other or to the family.

Exercise of profession- (73)

-either spouse may exercise without the
consent of the other
-spouse may object on valid, serious
and moral grounds
-in case of disagreement, the court shall
decide whether or not the objection is
proper and benefit accrued to the
family before objection or thereafter.
-if the benefit accrued prior, the
resulting obligation shall be enforced
against the separate property of spouse
who has not obtained consent.

PROPERTY RELATIONS BETWEEN

HUSBAND AND WIFE:
Governed By :
1.marriage settlement
2.family code
3. local customs (ARTICLE 74)

Property regimes (article 75)

1. absolute community
2. conjugal partnership gains
3. complete separation of property
4. combination of the above regimes
5. any other regimes, like dowry
system
6. in case of void regime- governed by
absolute
community.

Q. A, married B, a very rich

woman. When B died, A claimed
of the properties of B on the basis
of a public instrument executed by
A and B whereby all their separate
properties were converted into
conjugal properties. Is the claim
valid?

Ans. The claim is not valid.

1. Property relations between
husband and wife cannot be
changed, altered or modified during
marriage.
2. The public instrument, if given
effect, would result in giving validity
to donation between spouses which
is not allowed by law.
3. It would allow commission of
fraud by the spouses.

Forms of marriage settlement

or modification : (77)
1. Must be in writing
2. Must be signed by both
3. Must executed before
marriage
Must be registered to affect
third parties

In case real properties

are contributed, the
marriage settlement must
be in public document and
recorded in the local civil
registry and register of
deeds, in order to affect
third persons.

No more minors needing

assistance of guardian for
purposes of marriage
settlement as the age of
majority has been lowered to
18, which is also the age of
If suffering from civil interdiction,
marriage.
to be assisted by legal guardian in
executing marriage settlement.
(79)

Any modification,
alteration or change in
the marriage settlement
must be made before the
celebration of the
marriage. (76)

Effect of non-celebration of
marriages: (81)
1. property regime
2. donation proper nuptias
3. other stipulation
in consideration of
marriage ARE
RENDERED VOID
However, stipulations that do
not depend on the
celebration of marriage shall

Property relations governed by : Philippine

law, except contrary stipulation in marriage
settlement. (irrespective of place of
marriage and residence of parties)
The rule does not apply1. both spouse are alien
2. extrinsic validity of contracts
affecting property not situated in the Phil
and
executed in country where the property is
located
3. extrinsic validity of contracts entered in
Phil. but
affecting property situated outside of RP
whose laws require different formality for

DONATIONS PROPTER
NUPTIAS (82)
Req.
1. made before marriage
2. in consideration thereof
3. in favor of one or both of
the future
spouses

Excepted: (not considered donation

propter nuptias)
-Ordinary weeding gifts after
marriage
-Donation before but not in
consideration
of the marriage
- Donation to other persons even if
founded on the intended marriage
-Insurance contract over the life of
spouse
(belong to the beneficiary)

Limitations:
-no limitation if spouse
agrees on
absolute community
- if not absolute community1/5 of
present property
-In case of future propertyrule on
succession

GROUNDS FOR REVOCATION : (86)

1. non-celebration of marriage
2. marriage judicially declared void ab
initio
A- if in marriage settlementautomatically revoked
B- if not in M S - if written-10 years, if
oral- 6 years
3. marriage without parental consent
(action must
be filed within 4 years)
4. Marriage annulled, donee acted in
bad faith- 4 yrs
5. Legal separation, donee is guilty

Property donated with

encumbrance : (86)
Valid
if foreclosed :
A- sold for less than the
obligationdonee not liable for
deficiency
B- sold for more than the
obligationdonee entitled to

DONATION BETWEEN SPOUSES :

(87)
direct-void
indirect- void (where spouses
is the presumptive heir of
donee)
except : moderate gifts on
family
rejoicings.
*Rule applies to common-law

Q. X had been taking care of B until

she got married to A. Prior to the
marriage, A executed a deed of
donation, with the following conditions:
1. if there are children to their marriage,
the property shall go to said children; 2.
if there are no children, and A should die
ahead, shall be given to his brothers;
3. if there are no children, and B should
die ahead, shall go to X. Nine monts
after their marriage, B died without
issue. X filed an action to enforce the
donation. Will the action prosper?

Ans.

No, action will not prosper.

1. Donation is not a donation propter

nuptias. It was not made in favor of B,
the wife.
2. It cannot be a valid donation inter
vivos because there was no
acceptance by the donee.
3. It cannot be a valid donation mortis
causa because it was not executed in
the formality of will; besides, A is still
alive. (note: there was substitution of
heirs).

Q. X executed a donation propter

nuptias in favor of his prospective
wife, Y, who accepted the same. The
marriage however did not take place.
The creditors of X filed an action to
recover the property donated on the
ground that the marriage was not
celebrated. Will the action prosper?
Suppose the donation was made in
the marriage settlement, will the
answer be the same?

Ans.

No, the action will not prosper.

A donation propter nuptias is only

REVOCABLE by the donor if the
marriage is not celebrated. If the donor
did not bring an action for revocation
within the period of limitation, then the
donation would forever be valid.
However, if the donation was made in
the marriage settlement, then the
donation is revoked by operation of
law.

Q. A donation propter nuptias

was given by X to Y. They were
subsequently married.
Thereafter, Y discovered that X
was previously married. Y
brought an action to annul their
bigamous marriage, which was
granted. X filed an action to
revoke his donation as their
marriage was judicially declared
void. Will the action prosper?

Ans. No, the action will not

prosper.
A donation propter nuptias is
revocable in case the marriage is
annulled, and the donee acted in
bad faith. In this case, Y, the wife,
who was the donee, did not act in
bad faith. Rather, it was the donor
who acted in bad faith. Hence,
donation cannot be revoked by the
donor.

Q- A and B, both single, lived

together as husband and wife,
without the benefit of
marriage. During their
cohabitation, A donated a
house and lot to B. When A
died, the heirs of A bring an
action to recover the property
donated. Will the action
prosper?

Ans.

The action will prosper

Donation between spouses who

are legally married is void. Same
rule applies to persons living
together as husband wife without
a valid marriage. To allow a
different rule is to put premium to
illegimate relationship.

Q. X donated a parcel of land

to his common-law wife, Y.
Thereafter, X and Y got
married. Shortly after their
marriage, X died. The sister of
X filed an action to recover the
property donated by X on the
ground that it is void. Will the
action prosper?

Ans. The action will prosper, but only

to of the property.
The donation made by X to his commonlaw wife Y is admittedly void. Donation
between legally married spouses is
void. Said rule applies in equal measure
to illegitimate relations.
Y is however entitled to share of the
property, being an intestate heir, as she
was legally married to X before he died.
The other shall go to the sister of X,
who is also his intestate heir.

PROPERTY RELATIONS :
ABSOLUTE COMMUNITY- governs
after the effectivity of the family
code, unless different regime agreed
upon by the spouses. .
COMMENCEMENT: precise moment
marriage is celebrated.
WAIVER of rights, interests, shares
and effects of community property
during the marriage- VOID

EXCEPT:
1. waiver takes place upon judicial
separation
of property
2. waiver takes place after marriage
had been
dissolved or annulled.
WAIVER must appear in public
instrument and recorded.
Creditors of waiving spouse may
petition the court to rescind waiver to
the extent of their credit.

COMMUNITY PROPERTY
CONSIST OF:
1. all properties owned by
the spouses
at the time of celebration
of marriage
2. all properties acquired
after marriage.

PROPERTIES EXCLUDED :
1. acquired by gratuitous title,
including fruits and
income, except when grantor
declares them to
form part of the community
property.
2. property for personal and
exclusive use of
spouses, except jewelry, which
are community
property

CHARGES UPON ABSOLUTE

COMMUNITY:
1. SUPPORT for spouses, common
children, and
legitimate children of each
spouse
2. DEBTS and obligation contracted
during
marriage by : A-administrator
spouse
B- Both spouses
C- One spouse
with consent of

4.TAXES liens, charges and

expenses, including
major or minor repairs upon
community
property.
5. TAXES and expenses for
preservation made
during marriage upon separate
property of
either spouse use by family.
6. EXPENSES to enable either spouse
to commence
or complete a professional,

8. VALUE of what is donated or

promised by both
spouses to their common children
for the
exclusive purpose of commencing or
completing
professional or vocational course
or for selfimprovement.
9. ANTENUPTIAL DEBTS of either
spouse that do not
redound to the benefits of the
family, SUPPORT for

If the community property is not

sufficient, the separate property of
either spouse shall be solidarily
liable for the unpaid balance.
LOSSES IN GAMBLING, betting,
sweepstakes, or any other kind of
gambling, whether prohibited or
permitted by law, shall be borne by
the loser, and not chargeable to the
community, but winning pertains to
the community.

In the system of absolute

community, liabilities
incurred by either spouse by
reason of crime is
chargeable to the absolute
community property, in the
absence or insufficiency of
the exclusive property of
the debtor-spouse. (Buado
vs CA 586 SCRA 397)

ADMINISTRATION & ENJOYMENT of

community property- BOTHIn case of DISAGREEMENThusbands decision prevails, but
wife may seek recourse in court
within 5 years from date of contract
implementing the decision.
In case of incapacity or inability
to participate in administration- the
other spouse shall assume sole
power, but cannot dispose or
encumber community property,
without court approval or consent of

DISPOSITION OR ENCUMBRANCE of
community property- BOTHIf made by one, without consent of the
other, it shall be considered as continuing
offer on the part of the consenting spouse,
and may be perfected as a binding
contract upon the acceptance by the other
spouse or authorization by the court
before the offer is withdrawn by either or
both offerors..
If consent is withheld or cannot be
obtained- COURT may give the authority
as warranted by the circumstances.
EITHER spouse may dispose by will his/her

DONATION OF COMMUNITY
PROPERTY- BOTH
- except moderate donations
to charity OR on occasion of
family rejoicing OR family
distress.

DISSOLUTION OF ABSOLUTE
COMMUNITY REGIME1. death of either spouse
2. decree of legal
separation
3. marriage is annulled or
declared void
4. Judicial separation of
property under
134 to 138

ARTICLE 134- SEPARATION OF

PROPERTY DURING THE MARRIAGE
TAKES PLACE ONLY BY JUDICIAL
ORDERDONE under A- Art. 136- by agreement where
they jointly file
a verified petition
for voluntary
dissolution of the
absolute
community property

ARTICLE 1351. spouse convicted with penalty of

CIVIL
INTERDICTION
2. spouse judicially declared an
ABSENTEE
3. LOSS OF PARENTAL AUTHORTITY
decreed by
court
4. ABANDONMENT by the spouse
OR failure to
comply with obligation
5. ABUSE OF POWER OF
ADMINISTRATION

SEPARATION DE FACTO OF SPOUSESshall not affect the absolute community

property- except:
A- spouse who leaves conjugal home or
refuses to live
therein- shall have no right to be
supported.
B- consent of spouse to any transaction
is needed
judicial authorization shall be
obtained in summary
proceedings
C- if community property not sufficient,
separate
property of both spouses shall be
solidarily liable for

ABANDONMENT BY SPOUSE OF
THE OTHER
Abandoned when spouse left
conjugal dwelling without any
intention of returning.
Presumed to have no
intention of returning when
spouse left conjugal dwelling
after 3 months or within said
period give no information as to
his/her whereabouts.

REMEDY OF ABANDONED
SPOUSE1. receivership
2. judicial separation of
property
3. Petition for authority to be
sole
administrator of community
subject to
such precautionary
conditions as court
may impose.

LIQUIDATION OF ABSOLUTE COMMUNITY

ASSETS AND LIABILITYPROCEDURES :
1. prepare inventory of absolute and separate
properties
2. Pay debts and obligations
If not sufficient-separate propertysolidarily liable
3. NET REMAINDER shall be divided equally
except- a- different divisions agreed
upon in marriage
settlement.
B- Voluntary waiver by one
spouse of his

5. conjugal dwelling and lot

adjudicated :
a- agreement of the parties
b- spouse, majority of the
common children
chooses to remain, child
below 7,
presumed to have chosen
the mother
c- if no majority- court decides
taking into
consideration the best

TERMINATION OF COMMUNITY
PROPERTY BY DEATHA- liquidated in the proceeding for
settlement of
estate deceased.
B- Surviving spouse shall liquidate
community
property judicially or
extrajudicially, within one
year from death of deceased
spouse.
C- If no liquidation after one year
from deathDISPOSITION OR ENCUMBRANCE
involving the

LIQUIDATION OF COMMUNITY
PROPERTIES OF TWO MARRIAGESA- DETERMINE the capital, fruits
and income
of each community property
upon such
proof as may be considered
according to
the rules of evidence.
B- in case of doubt as to which
the community
the existing properties belong,
they be shall

CONJUGAL PARTNERSHIP OF
GAINS
1. property of regime that
applies when agreed upon
in the marriage
settlement.
2. conjugal partnership of
gains
already established
between spouses before

RIGHT OF EACH SPOUSE IN THE

CONJUGAL PROPERTY DURING
MARRIAGE IS MERELY INCHOATEThus, a private creditor of the
husband cannot attach or levy on
one-half of the joint account of the
spouses in a bank on the ground that
it is the share of the husband in said
account.
The right of the husband to
one half of the properties of the
conjugal partnership does not vest
until its dissolution and there are net

The Family Code, which took effect

on 3 August 1988, provides that any
alienation or encumbrance made by
the husband of the conjugal
partnership property without the
consent of the wife is void.
However, when the sale was made
before the effectivity of the FC, the
applicable law is the New Civil Code.

Article 173 of the New Civil Code

provides that the disposition of
real property of the conjugal
partnership without the wifes
consent is not void but merely
voidable and the wife could,
during the marriage and within
10 years from the questioned
transaction, seeks its annulment.
(Heirs of Ignacia Aguillar-Reyes
vs Mijares, 410 SCRA 97).

However, any alienation or encumbrance

made after August 3, 1988 when the Family
Code took effect by the husband or the wife
of the conjugal partnership property
without the consent of the other is null and
void. (Heirs of Ignacia Aguillar-Reyes,
supra).
The present law specifically requires the
written consent of the other spouse, or
authority of the court for disposition or
encumbrance of conjugal partnership
property without which, the disposition or
encumbrance shall be void. (Abalos vs
Macatangay, 439 SCRA 649).

The reason for the rule- is that the right

of the husband or the wife to one-half of
the conjugal assets does not vest until
the liquidation of the conjugal
partnership, or after the dissolution of
the marriage, when it is finally
determined that, after settlement of the
conjugal obligations, there are net assets
left which can be divided between the
spouses or their respective heirs. Prior
thereto, the interest of each spouse in
the conjugal assets is inchoate, a mere
expectancy, which constitute neither a
legal nor an equitable estate. Hence,
either of the spouse may not give what he
has not.

In Homeowners Savings & Loan Bank vs

Dailo (453 SCRA 282), the bank contended
that the mortgage of a conjugal property
by the husband without the consent of the
wife is not void in its entirety but valid
with respect to the share of the consenting
spouse, citing Art. 493 of the NCC, which
allows a co-owner to dispose of his aliquot
share without the consent of the other coowner. The Court held that the rules of coownership do not apply to the property
relations of conjugal partnership of gains
because said property regime is a special
type of partnership.

In Pelayo vs Perez, 459 SCRA 475,

the Court held that when a wife
affixed her signature to a Deed of
Sale on the space provided for
witnesses, she was deemed to have
given her implied consent to the
contract of sale. Hence, the consent
of a spouse to the disposition does
not have to be explicit or set forth
in any particular document so long
as it is shown by acts of the spouse
that such consent or approval was
indeed given.

COMMENCEMENT, WAIVER OF
RIGHTS SHARES, EFFECTS OF
ABSOLUTE COMMUNITY
APPLIES TO CONJUGAL
PARTNERSHIP OF GAINS.

EXCLUSIVE PROPERTY OF EACH

SPOUSE1. brought to the marriage as
his/her own.
2. acquires during marriage by
gratuitous title
(by donation or will, either singly
or jointly, if
share designated- per designation
if not- share
and share alike)
3. acquired by right of redemption,
by barter or by
exchange with property

In conjugal partnership regime, if a

spouse acquires a property through
the exercise of the right of
redemption solely pertaining to
him/her, the property so acquired is
his/her exclusive property, even if
conjugal funds were used in the
redemption. Villegas vs Lingan, 526
SCRA 63). But the owner-spouse has
the obligation to reimburse the
conjugal partnership for the funds
coming from said property regime.

The wife during the

marriage sold under pacto
de retro her paraphernal
property consisting of house
and lot. A few weeks later,
the wife died. The husband
redeemed the property
using his exclusive funds. To
whom will the property
belong, husband or wife?

Property still belongs to the

wife. Property acquired by right
of redemption is exclusive
property. What matter is the
origin of the right, if the right of
redemption pertains to the wife,
then it belong to the wife if
redeemed. Husband can recover
the amount used to redeem.

H before marriage with W

was given by his friend a
usufruct over a riceland for
5 years. Two years
thereafter, H married W. Is
the usufruct conjugal or
exclusive?

The right of usufruct is

exclusive, but the fruits
derived from said right is
conjugal. Income or fruits of
the separate property of the
spouses is conjugal.

OWNERSHIP, POSSESSION,
ADMINISTRATION, ENJOYMENT OF
EXCLUSIVE PROPERTY- retains by the
owner spouse. But fruits of the
separate property belongs to the
conjugal partnership of gains
Owner spouse may mortgage,
encumber, alienate, or dispose her
exclusive property. Spouse may
appear alone in court to ligitate.

TRANSFER OF ADMINISTRATION
OF EXCLUSIVE PROPERTY TO
OTHER SPOUSE- by public
instrument, recorded in registry
property where property is
situated.
Alienation by spouse
automatically terminate the
administration and proceeds shall
be turned over to owner-spouse.

PROPERTY DONATED TO SPOUSE :

1. if jointly with designation of
shares- shall pertain
to the donee-spouse as his or her
own exclusive
property.
2. if jointly, without designation of
shares- shall
pertain to the spouses - share and
share alike.
3. If jointly, without designation of
shares, and one

CONJUGAL PARTNERSHIP PROPERTY :

1. ACQUIRED by onerous title during
marriage at the expense
of common fund.
- the test is the origin of the money
invested in the purchase, if it came from
conjugal funds, the property acquired is
conjugal. (Rivera vs. Batallones, CA 40 OG
2090).
2. OBTAINED labor, industry, work or
profession of either or
both spouse
- but teachers gratuity under special law,
being remuneratory is not conjugal. (Alano vs.
Florido, 61 phil 303)

3. FRUITS, natural, industrial or civil due or

received during
marriage from the common property and
from the exclusive
property of each spouse.
4. SHARE of either spouse in the HIDDEN
TREASURE as a finder or
owner of the property where treasure found
5. ACQUIRED through OCCUPATION such as
fishing or hunting
6. LIVESTOCKS existing upon dissolution of the
partnership in
excess of the number of each kind brought
to the marriage by

H and W bought a fishpond from X

for P48,000, payable in 3 equal
installments. The first installment
was paid with funds belonging
exclusively to W, while the 2nd and
3rd installments were paid with
funds borrowed by both from Y. In
securing said loan, several lands
belonging to W were given. Is the
fishpond paraphernal or conjugal?

Suggested answerThe fishpond is partly

paraphernal (1/3) and partly
conjugal (2/3). The amount
borrowed is conjugal in character
because they are acting for the
benefit of the partnership. The
collateral does not affect the
status of the fishpond.

PROPERTY BOUGHT ON INSTALLMENTSIf paid partly from exclusive funds,

partly from conjugal funds1. belongs to spouse if ownership
was vested before
marriage
2. but to the conjugal partnership if
ownership was
vested after marriage.
In either case, amount advanced by
the spouse or partnership shall be
reimbursed upon liquidation of the
partnership.(118)

CREDITS PAYABLE IN
INSTALLMENTS- (119)
credit payable in installments
within a period of time, the
installments payable during
marriage belongs to the spouse
but interests thereon belongs to
the partnership.

A obtained a loan in the

amount of P20,000 from W
prior to Ws marriage to H a
year later. Said loan was to
be payable in 3 years by
way of monthly
installments. To whom shall
the installments due during
marriage belong? How
about the interests?

The credit is separate

property of W. Installments
in payment thereof is also
separate. However, the
interests due during
marriage shall belong to the
conjugal partnership.

IMPROVEMENTS ON SEPARATE
PROPERTY OF SPOUSE(120)
Elements :
1- improvements are for utility or
adornment
2. made in separate property of the
spouse
3. by the conjugal partnership or
through acts or
efforts of either or both spouse.

RulesA- shall pertain to the conjugal

partnership if the cost of
the improvement and resulting
increase in value is
more than the value of the property
at the time of
the improvement.
B- shall pertain to the owner-spouse if
the cost of the
improvement and resulting increase
is less than the
value of the property at the time of
improvement.

The obligation to reimburse for

the cost of the improvements,
under Art. 120 FC, rests on the
spouse upon whom ownership of
the entire property is vestedthere is no such obligation on the
part of the purchaser of the
property, in case the property is
sold by the owner-spouse prior to
reimbursement. (Ferrer vs Ferrer,
508 SCRA 570)

CHARGES AND OBLIGATION OF THE

CONJUGAL PARTNERSHIP (121)
1. support of the spouses, support of the
common
children, support of the leg children of
either
spouse
2. debts and obligation contracted
during marriage by :
administrator-spouse for benefit of
partnership, both
spouses, by one of them with the
consent of the

4. All taxes, liens, charges and expenses,

including minor or
major repairs upon conjugal property.
5. All taxes and expenses for mere
preservation made during
marriage upon separate property of either
spouse
6. Expenses to enable either spouse to
commence or complete
a professional, vocational or other activity
for selfimprovement.
7. Antenuptial debts of either spouse insofar
as they have
redounded to the benefit of the family.

9. Expenses for litigation between

the spouse
unless the suit is found
groundless.
If the conjugal property is
insufficient, the spouse shall be
solidarily liable with their separate
properties.

ADDITIONAL CHARGES- (122)

10. personal debts contracted by either
spouse before or during
marriage, to the extent that they
redounded to the benefit
of the family.
11. Fines and pecuniary indemnities, and
12. Support of illegitimate children- shall be
charged to the
conjugal property after payment of the
obligations from (a)
to (1), and the spouse liable has no
exclusive property or
insufficient to pay for the fines, pecuniary

Conjugal property cannot be

held liable for the personal
debts contracted by one
spouse, unless some
advantage or benefit is
shown to have accrued to
the conjugal partnership.
(Buado vs CA, 586 SCRA
397)

community where liabilities

incurred by either spouse by
reason of a crime or quasi-delict is
chargeable to the absolute
community property, in the
absence or insufficiency of the
exclusive property of the debtorspouse, the same advantage is not
accorded in the system of
conjugal partnership. The conjugal
partnership of gains has no duty to
make advance payments for the

Legal presumption that debt

redounds to the benefit of the
family- If either spouse contracts
an obligation on behalf of the
family business, there is a legal
presumption that such obligation
redounds to the benefit of the
conjugal partnership. (SEBTC vs
Mar Tierra Corp. 508 SCRA 419;
Ayala Investment and
Development vs CA 286 SCRA 272)

Thus1. If the husband himself is the

principal obligor in the contract,
ie., the direct recipient of the
money and services to be used in
or for his own business or
profession, the transaction falls
within the term obligations for
the benefit of the conjugal
partnership.

2. But if the money or services

are given to another person or
entity and the husband acted
only as a surety or guarantor,
the transaction cannot by itself
be deemed an obligation for
the benefit of the conjugal
partnership. It is for the benefit
of the principal debtor and not
for the surety or his family.

ADMINISTRATION AND ENJOYMENT OF

CONJUGAL PROPERTY. (124)
-shall belong to both spouses jointly in
case of disagreement, husbands decision
prevails
- wife may go to court for relief, within
five years from dateof contract
implementing said decision
- if spouse is incapacitated or unable to
participate in administration of conjugal
property, other spouse may assume sole
powers of administration- except- power to

- in the absence of the court

authority or consent of the other
spouse, the disposition or
encumbrance shall be void
however, the transaction shall be
considered as continuing offer on
the part of the consenting spouse
and third person, and perfected as
a binding contract upon the
acceptance by the other spouse or
approval by the court before offer
is withdrawn by either or both
offerors.

DONATION OF CONJUGAL
PROPERTY (125)
either can not donate without
the consent of the other
except- moderate donations to
charity or on occasions of family
rejoicing or family distress.

DISSOLUTION OF CONJUGAL
PARTNERSHIP (126)
1. upon death of either spouse
2. when there is decree of legal
separation
3. when the marriage is annulled or
declared void
4. in case of judicial separation of
property during
marriage under Art 134-138

SEPARATION DE FACTO- (127)

shall not affect the conjugal partnership
spouse who leaves the conjugal home
or refuses to live therein without just
cause, shall have no right to be
supported
-when consent of spouse to any
transaction is required, judicial
authorization shall be obtained in a
summary proceeding.
- Present spouse may be given judicial
authority to dispose or encumber
separate property of other spouse to

if spouse abandons the other

without just cause or fails to comply
with his/her obligations, the
aggrieved spouse may petition court
for :
1- receivership
2. judicial separation of property
3. authority to be sole administrator
of conjugal property.

-SPOUSE DEEMED TO HAVE

ABANDONED THE OTHER- when she or
he left the conjugal dwelling without
any intention of returning
- SPOUSE who left the conjugal
dwelling for a period of three months
or has failed within the same period to
give any information as to his/her
whereabouts shall be prima facie
presumed to have no intention of
returning to the conjugal dwelling.

LIQUIDATION OF CONJUGAL PARTNERSHIP

ASSETS AND LIABILITIES(129)
PROCEDURES :
1. inventory of conjugal and separate
properties
2. amounts advanced by the conjugal
partnership in payment of personal debts of
either spouse shall be credited to the
partnership as asset thereof.
3. Reimbursement to the spouse/s of :
A- exclusive fund for acquisition of
property

4. debts and obligation of partnership shall be paid

5. remainder of the exclusive property shall be delivered
to each of them
6. loss of deterioration of movable belonging each
spouse used for benefit of family shall be paid from
common funds
7. net remainder of conjugal assets shall be divided
equally between spouses, unless different proportion
agreed upon in marriage settlement, or unless waived or
forfeited as provided in the code
8. the presumptive legitimes of common children shall
be delivered upon partition
9. conjugal dwelling and lot on which is situated shall be
adjudicated to the spouse with whom the majority of the
common children choose to remain unless otherwise
agreed upon by the spouses, provided that children

LIQUIDATION OF CONJUGAL
PARTNERSHIP OF 2 OR MORE
MARRIAGES(131)
Elements1. two or more marriages contracted
by the same person.
2. marriages contracted before the
effectivity of this code
3. liquidation carried out
simultaneously

rules1. respective capital, fruits, and

income of each partnership
shall be determined, upon
proof allowed under the rules
of evidence
2.

in case of doubt as to which

partnership the existing
properties belong, the same
shall be divided between or
among the different
partnership in proportion to

SEPARATION OF PROPERTY OF
SPOUSES :
SEPARATION OF PROPERTY TAKES
PLACE :
1. if stipulated in marriage
settlement
2. by judicial order
A- voluntary
B- sufficient cause

VALID CAUSES FOR JUDICIAL

SEPARATION OF PROPERTY:
1. CIVIL INTERDICTION
2. ABSENTEE(JUDICIAL)
3. LOSS PARENTAL AUTHORITY
(court decree)
4. ABANDONMENT OF SPOUSE
5. FAILURE TO COMPLY WITH
MARITAL
OBLIGATION IN 101-marital,
parental and
property obligations.
6. ABUSE OF POWER
ADMINISTRATION

VOLUNTARY SEPARATION OF PROPERTY :

Rules1. joint petition (verified)
2. creditors of community and personal
notified
3. creditors of community and personal
listed
4. court takes measure to protect creditors
or persons with
pecuniary interests
5. once decreed, liquidation of community
property
6. During, pendency, community pays for
support of sp and
separation of property applies.
7. After dissolution, provisions on complete
separation of

REVIVAL OF THE PRIOR PROPERTY

REGIME : BY FILING A PETITION IN THE
SAME COURT DECREE WAS ISSUED IN
THE FOLLOWING CASES :
1. civil interdiction terminates
2. absentee reappears
3. court satisfied spouse will not
again abuse
administration
4. spouse returns to resume common
life
5. parental authority judicially
restored
6. spouses absent for one year

ADMINISTRATION OF EXCLUSIVE
PROPERTY OF SPOUSE TRANSFERRED
TO OTHER :
1. spouse becomes guardian of other
2. spouse declared absentee
3. spouse under civil interdiction
4. Spouse is fugitive from justice
5. if the spouse is disqualified
because of :
incompetence
conflict of interest
or other just cause- court shall
appoint a

REGIME OF COMPLETE
SEPARATION OF PROPERTY
1. agreed upon in marriage
settlement
2. decreed by court in proper
cases
NOTE : COMPLETE SEPARATION
OF PROPERTY REGIME CANNOT
BE CONVERTED INTO ANY OTHER
REGIME DURING MARRIAGE
BECAUSE THERE IS NO LAW

KINDS :
AS TO EXTENT- A- total or
partial
AS TO KINDS-a- present, bfuture, c-both

RIGHTS OF SPOUSES IN
COMPLETE SEPARATION OF
PROPERTY :
1. OWN, DISPOSE, POSSESS,
ADMINISTER THEIR SEPARATE
PROPERTY
2. OWN THE EARNINGS FROM
BUSINESS, PROFESSION OR
INDUSTRY AND FRUITS OF THEIR
PROPERTY.

OBLIGATIONS :
1. BEARS FAMILY EXPENSES
PROPORTIONATE TO INCOME OR
CURRENT
VALUE OF SEPARATE PROPERTIES.
2. LIABLE SOLIDARILY TO
CREDITORS FOR FAMILY EXPENSES.

RULES IN CASES OF UNIONS WITHOUT

MARRIAGE:
FIRST GROUP:
1. CAPACITATED TO MARRY
2. LIVE EXCLUSIVELY WITH EACH OTHER
AS H AND W
3. WITHOUT BENEFIT OF MARRIAGE
SECOND GROUP :
Living together under a void marriage
With previous valid marriage

RULES ON PROPERTY RELATIONS :

1. wages and salaries owned by both in equal
shares. Irrespective of who is earning.
2. Properties acquired during cohabitation :
A- if acquired by donation, succession or
exchange- separate property. - fruit and income
thereof- separate
B- if acquired by parties through work or
industry
rules of co-ownership applies(proportionate to
their efforts in acquiring)
if no proof, presumed equal, hence equal
sharing.
NOTE : a party who did not actually participate in
the acquisition shall be deemed to have

In torres vs. Yaptinchay- the

supreme court held that where
the only contribution of the
common-law wife in the
acquisition of the properties was
moral or inspirational in character,
her interest as co-owner of such
properties shall be determined by
the courts by using their sound
discretion.

MANAGEMENT SHALL BE JOINT

NO ENCUMBRANCE OR DISPOSITION
BY ACT INTER VIVOS WITHOUT
CONSENTOF THE OTHER, UNTIL THE
TERMINATION OF COHABITATION

SPECIAL RULES APPLICABLE TO

VOID MARRIAGES :
IF ONLY ONE PARTY IN GOOD
FAITH, the OTHER GUILTY PARTY
SHALL FORFEIT HIS SHARES AS
FOLLOWS:
common children
in default thereof, to common
childs
descendants

RULES ON SPECIAL VOID MARRIAGES such

as :
Bigamous, adulterous, concubine, both
married to others, multiple alliancesOnly properties acquired by parties through
their actual joint contribution of money,
property or industry shall be owned in
common in proportion to their contribution,
HENCE :
- wages and salaries belong to him
exclusively
- care by one party of home, children, and
household or spiritual or moral inspiration
provided to other, not included in article.
- IF ONE PARTY IS VALIDLY MARRIED TO

-IF PARTY IN BAD FAITH IS NOT VALIDLY

MARRIED TO ANOTHER- share shall be
forfeited in favor of common children
or descendants of common children.
- IF BOTH PARTIES IN BAD FAITHSHARE shall be forfeited in favor of
common children or descendants of
common children.(rule in pari delicto
does not apply)

FAMILY HOMEElements1. constituted jointly by husband and

wife or by an
unmarried head of a family
2. dwelling house where they and
their family reside
land on which it is situated
- property subject of conditional sale on
installments, where ownership is
reserved by vendor only to guarantee
payment of purchase price may be
constituted as a family home. (156)

LIMITATIONS ON CONSTITUTION OF
FAMILY HOME :
1. each family have only one home
2. family home can be constituted
only on the dwelling place and
therefore, in the locality where the
family has its domicile.
- there must be actual occupancy
of the family home with the intention
of dedicating the premises for such
purpose.
3. the value of family home exempt
from seizure of creditors can not

COMMENCEMENT OF FAMILY HOME (153)

The family home is constituted on the
house and lot from the time it is occupied
as a family residence, and continues so
long as any of its beneficiaries actually
resides therein.
From the time of constitution, the family
home is exempt from execution, forced sale
or attachment except for1. non-payment of taxes
2. debts incurred prior to its
constitution
3. debts secured by mortgages on the
premises before or after its constitution
4. debts due to laborers, mechanics,

EXEMPTIONto the extent of P300,000.00 in

case of urban areas (chartered
cities) and P200,000.00 in case of
rural areas.(157)

BENEFICIARIES OF FAMILY
HOME (154)
1. husband and wife or
unmarried person who is head
of the family
2. their parents,
ascendants, descendants,
brothers and sisters living in
the family home and
dependent for support upon
the husband and wife, or head
of the family.

SALE, DONATION, ASSIGNMENT OR

ENCUMBRANCE OF FAMILY HOME(158)
1. may be sold, alienated, donated,
assigned or encumbered by the
owner/s thereof
2. with written consent of- person constituting the same
-his spouse and
- majority of the beneficiaries
of legal age
in case of conflict, court shall decide

EFFECT OF DEATH OF SPOUSES OF

HEAD AND FAMILY -(159)
family home shall continue
despite death of one or both
spouses or the unmarried head of
family for a period of 10 years or
for as long as there is a minor
beneficiary. The family home
continues until the beneficiary
becomes of age. (Patricio vs Dario
III, 507 SCRA 438)
Heirs can not partition the family

PROCEDURE FOR CLAIMS OF

CREDITORS OF FAMILY HOME (160)
creditors claim is not one of those
for which family home is not exempt
obtains a judgement in his favor
reasonable ground to believe that
family homes value is more than
the amount fixed by law for its
exemption
creditor may apply to the court
rendering judgment for an order for
the sale of the family home.
The court shall order sale if the
family homes value is in excess of
the amount fixed by law on its

FAMILYPOLICY- (149)
Family is the foundation of the nation
Family is the basic social institution which
public policy cherishes and protects.
Family relations are governed by law
No customs, practice or agreement
destructive of the family shall be
recognized or given effect

FAMILY RELATIONS- Includesbetween husband and wife

between parents and children
among other ascendants and
descendants
among brothers and sisters
whether of full-blood or half-blood

SUIT BETWEEN MEMBERS OF THE SAME

FAMILY (151)
no suit shall prosper unless it should
appear from the verified complaint or
petition that earnest efforts toward a
compromise have been made, but the
same have failed. If it is shown that no
such efforts were in fact made, the case
must be dismissed.

RULES DOES NOT APPLY TO

CASES :
Affecting civil status of persons
Validity of marriage or legal
separation
Any ground for legal separation
Future support
Jurisdiction of courts
Future legitime

PATERNITY AND FILIATIONPaternity- is the civil status of the

father with respect to the child.
Maternity- is the civil status of
the mother with respect to the
child.
Filiation- is the status of the child
in relation to the father or
mother.

KIND OF FILIATION1-Natural- relation between

parent and child arising from
nature or from childs birth.
2-Artificial- relationship that
arises between parent and child
by fiction of law or in imitation of
nature, as in adoption.

LIGITIMATE CHILDRENFiliation of legitimate childrenby nature: legitimate

illegitimate
by fiction of law:

by adoption

LEGITIMATE CHILDREN- (164)

I. those conceived or born during
marriage of parents
II those conceived as a result of
artificial insemination
of the wife with sperm of husband
of the wife with sperm of donor
of the wife with sperm of both
donor and husband

In case of artificial inseminationboth spouse authorized or ratified

the insemination in a written
instrument executed and signed by
them before the birth of the child,
the instrument shall be recorded in
the civil registry together with the
birth certificate of the child.

Presumption of legitimacy (Art. 164 FC)

In Liyao Jr vs Tanhoti-Liyao, 378 SCRA 563,
the husband and wife were separated for
many years. During their separation, the
wife had an illicit relation with another
man, with whom she cohabited and had a
child. When the paramour died, the wife on
behalf of her child, filed an action for
compulsory recognition of the latter as the
illegitimate child of her paramour for the
purpose of partaking in the latters vast
estate. The SC denied the action because
the child is presumed to be a legitimate
child of the husband and wife, the child
being conceived and born during the
couples valid marriage.

In Concepcion vs CA, 468 SCRA 438, the wife

during the subsistence of her marriage with her
first husband, married anew. Thereafter, upon
petition of the second husband, the second
marriage was declared void for being bigamous
and the common child of the wife and the second
husband was declared to be an illegitimate child
by the trial court. The custody of the child was
awarded to the mother while the second husband
was granted visitation rights. On appeal from the
decision granting the second husband visitation
rights over the child, the SC held that the second
husband is not entitled to visitation rights
because of the absence of parent-child
relationship that exists between them. The Court
explained that since the child was born during the
valid marriage of the wife and the first husband,
the child is presumed to be a legitimate child of
that marriage.

GROUNDS TO IMPUGN LEGITIMACY OF A CHILD (166)

1. physical impossibility of sexual

intercourse by husband with wife within the
first 120 days of the 300 days which
immediately preceded the birth of the child
due to :
a-physical incapacity of husband to have
sexual intercourse with his wife
b- fact that husband and wife were living
separately in such a way that sexual
intercourse was not possible.
c- serious illness of the husband which
absolutely prevented sexual intercourse

2. If it is proved that for

biological or other scientific
reasons , the child could not
have been that of the
husband, except in case of
artificial insemination

3. that in case of children

conceive through artificial
insemination, the written
authorization or ratification of
either parent was obtain
through mistake ,fraud,
violence, intimidation or
undue
influence.

WIFE MARRYING WITHIN 300 DAYS

FROM TERMINATION OF MARRIAGE
(168)
a child born before 180 days after the
solemnization of the subsequent
marriage is considered to have been
conceived during the former marriage,
provided born within 300 days after
termination of the 1st marriage.
b- Child born after 180 days following
the celebration of the subsequent
marriage is considered to have been
conceived during the marriage, even
though born within 300 days after

WIFES DECLARATION OF LEGITIMACY OR

ILLEGITIMACY OF CHILD (167)
The child shall be considered legitimate
although the mother may have declared
against its legitimacy or may have been
convicted as an adulteress.
CHILD BORN AFTER 300 DAYS FROM
TERMINATION OF MARRIAGE (169)
The legitimacy or illegitimacy of a child born
after 300 days following the termination of
the marriage shall be proved by whosoever
alleges such legitimacy or illegitimacy.

IF HUSBAND or IF HIS HEIRS ARE RESIDENT OF

THE PLACE WHERE BIRTH TOOK PLACE OR
WAS RECORDEDThe action must be brought within 1 year
from knowledge of the birth or its recording
in the civil register
IF HUSBAND OR HIS HEIRS ARE NOT
RESIDENT OF THE PLACE WHERE BIRTH TOOK
PLACE OR WAS RECORDEDThe action must be brought within 2 years if
he is residing in the Philippines, and 3 years if
residing abroad
If the birth of child was concealed from or
unknown to the husband or his heirs, the
period shall be counted from the discovery or
knowledge of birth or fact of registration,

HEIRS MAY BRING ACTION TO

IMPUGN LEGITIMACY OF CHILD (171)
if husband should die before the
expiration of the period fixed for
bringing the action.
if husband should die after the
filling of complaint, without having
desisted therefrom.
if the child was born after the death
of the husband

PROOF OF FILIATION: (172)

1. Record of birth appearing in the civil registry
2. Final judgment
3. Admission of legitimate filiation in a public document
or private handwritten instrument and signed by parent
concerned.
In the absence of the foregoingOpen and continuous possession of status of a legitimate
child
Any other means allowed by the rules of court and special
laws, such asbaptismal certificate
judicial admission
family bible wherein name of child was entered
common reputation respecting pedigree
admission by silence
testimonies of witnesses

It is settled in law and

jurisprudence, that the status and
filiation of a child cannot be
compromised. Public policy
demands that there be no
compromise on the status and
filiation of a child. Paternity and
filiation or the lack of the same, is a
relationship that must be judicially
established, and it is for the Court
to declare its existence or absence.
It cannot be left to the will or
agreement of the parties. (Uy vs
Chua 600 SCRA 806.

In Uy vs Chua, while there was a

previous compromise agreement
between the parties approved by the
court in a previous case wherein the
petitioner had agreed that there was
no blood relationship between her and
the respondent, it was held that there
is no res judicata even If the second
case involves the same cause of action
(for recognition of paternity) between
the same parties considering that the
compromise agreement in the previous
case is null and void as there can be no
compromise on the status and filiation
of a child.

As for the baptismal

certificate, it can only
serve as evidence of the
administration of the
sacrament on the date
specified but not of the
veracity of the entries
with respect to the
childs paternity. (Puno
vs Puno Enterprises, Inc.

In Cabatania vs CA, 441 SCRA 96,

the Court held that the extremely
subjective test of physical
resemblance or similarity will not
suffice as evidence to prove
paternity and filiation.
This ruling abandons the dictum in
Tijing vs CA 354 SCRA 17, where
the Court held that resemblance
between a minor and his alleged
parent is competent and material
evidence to establish parentage.

FILIATION (173)
the action to claim legitimacy may be
brought by the child during his or her
lifetime and shall be transmitted to the
heirs should the child die during
minority or in a state of insanity
heirs have a period of 5 years to
institute the action
if the child dies after commencing the
action, the heirs of the child will be
substituted for him, even if the parent
also dies during the pendency of the
action

RIGHTS OF LEGITIMATE CHILDREN(174)

1. To bear surname of father and
mother
2. To receive support from parents,
ascendants, brothers and sisters
3. To be entitled to legitime and other
successional rights under the civil
code

ILLEGITIMATE CHILDRENChildren conceived and born outside a valid marriage are

illegitimate, unless provided by the family code. (165)
FILIATIONIllegitimate children may establish their illegitimate filiation
in the same way as legitimate children
ACTION TO CLAIM ILLEGITIMATE FILIATION (175)
The action must be brought within same period for
legitimate filiation except- when based on continuous
possession of status of illegitimate children or by other
means allowed under the rules of court, the action must be
brought during the lifetime of the alleged parent.

RIGHTS OF ILLEGITIMATE CHILDREN

(176)
1. Use the surname of mother
2. Under the parental authority of mother
3. Entitled to support
4. Entitled to legitime under the civil
code(1/2 that of the legitimate child)
Note: RA 9255 approved on Feb. 24,
2004, allows the illeg. Child to use the
surname of the father, if acknowledged
by the latter.

putative father is not competent

evidence of paternity where there
is no showing that the putative
father had a hand in the
preparation of the certificate. The
local civil registrar has no
authority to record the paternity
of an illegitimate child on the
information of a third person.
(Puno vs Puno Enterprises, Inc.
599 SCRA 585). In this case, it was
observed that only the mother
supplied the data in the birth
certificate and signed the same

Illegitimate children shall use the

surname of the mother, regardless
of whether or not the father
admits paternity. (Mossesgeld vs
CA, 300 SCRA 464).
Hence, the illegitimate father
cannot compel the local civil
registrar to register the certificate
of live birth of the illegitimate
child using his surname.

However, an illegitimate child shall

have the option (but not an
obligation) to use the surname of
the father in the following
instances:
1. If his/her filiation has been
expressly recognized by the father
through the record of birth
appearing in the civil register
2. when an admission of paternity
is made by the father in a public
document or private handwritten
instrument.

The recognition of the illegitimate

child in the record of birth, or
through an admission in a public
document or private handwritten
instrument is in itself, a
consummated act of
acknowledgment of the childs
paternity; hence, no separate
action for judicial approval is
necessary. (Dela Cruz vs Gracia,
594 SCRA 648)

Must the admission of

paternity in a private
handwritten instrument be
signed by the putative
father?

In Dela Cruz vs Gracia, 594 SCRA 648,

the SC lay down the rules:
a- where the private handwritten
instrument is the lone piece of
evidence submitted to prove filiation,
the same must be signed by the
acknowledging parent.
b. where the private instrument is
accompanied by other relevant and
competent evidence, it suffices that
the claim of filiation therein be shown
to have been made and signature of
the acknowledging parent is merely
corroborative of such evidence.

In Briones vs Miguel, 440 SCRA

455, the Court reiterated the rule
that an illegitimate child is under
the parental authority of the
mother, and the recognition of an
illegitimate child by the father is a
ground for ordering the latter to
give support, but not custody of
the child. The illegitimate father,
however, is entitled to visitation
rights.

In In re: Stephanie Naty

Astorga, 454 SCRA 541, it was
held that an illegitimate child,
upon adoption by her natural
father, may be allowed to use
the surname of her natural
mother as her middle name.
The Court explained that the
same is in keeping with the
Filipino custom of adding the
surname of the childs mother
as his middle name.

The SC held that the law does not allow

one to drop the middle name from his
registered name. Middle name serves to
identify the maternal lineage or filiation of a
person as well as further distinguish him
from others who may have the same given
name and surname as he has. In this case,
when Julian was born prior to the marriage
of his parents, he was named Julian Lin
Carulasan. After the subsequent marriage of
his parents, his name was changed to Julian
Lin Carulasan Wang. He now seeks to drop
the middle name Carulasan. (In re: Change
of name and/or correction ofEntry in the
Civil Registry of Julian Lin Carulasan Wang,
454 SCRA 155)

In Braza vs the City Civil Registrar of

Himamaylan City, Negros Occidental, GR
No. 181174, Dec. 4, 2009, when the first
wife found out that her deceased husband
had a second marriage and a child in the
second marriage, she filed on Dec. 23,
2005 a petition to correct the entries in
the birth record of the child contending
that the child could not have been
legitimated because the marriage of the
parents was void for being bigamous. In
her petition, she likewise prayed that the
marriage of the parents of the child be
declared void on the ground that it is
bigamous.

action is actually to seek the

declaration of the marriage of the
parents of the child as void for being
bigamous and impugn the childs,
which causes of action are governed
not by Rule 108 but by AM No. 02-1110-SC which took effect on March 15,
2003, and Art. 171 of the FC, hence,
the petition should be filed in a Family
Court as expressly provided in said
Code. The Court reasoned that the
validity of marriages as well as the
legitimacy and filiation can be
questioned only in a direct action
seasonably filed by the proper party,
and not through a collateral attack

Since the marriage to be

declared a nullity was celebrated
during the effectivity of the FC
and the case questioning its
validity was filed after March 15,
2003, the case is governed by
AM No. 02-11-10-SC. Thus, only
the husband or second wife,
who are parties to the marriage,
can file the action.

LEGITIMATED CHILDRENLegitimation- is the remedy by means of

which those who in fact were not born in
wedlock and should therefore, be considered
illegitimate, are by fiction, considered
legitimate, it being supposed that they were
born when their parents were validly married.
Legitimated children are illegitimate children
who, because of the subsequent marriage of
their parents are, by legal fiction, considered
legitimate.

Requisites of legitimation:
1. the child is conceived and born
outside of wedlock
2. at the time of the childs
conception, the parents were either:
not disqualified by any impediment to
marry each other, or disqualified only
because either or both of them were
below 18 years of age (RA 9858)
3. after the birth of the child, the
parents subsequently enter into a
valid marriage

WHEN LEGITIMATION TAKES PLACE (178)

Legitimation takes place by the subsequent
marriage of parents provided the parents have
acknowledged the child before or after the
marriage.
Annulment of voidable marriage shall not affect
the legitimation.
RIGHTS OF LEGITIMATED CHILDREN- (179)
Same rights as legitimate children.

EFFECT OF LEGITIMATION (180)

The legitimation shall retroact
to the time of the childs birth
The legitimation of children who
died before the celebration of
the marriage shall benefit their
descendants.(181)

WHO IMPUGNS AND GROUNDS TO IMPUGN LEGITIMATION (182)

Legitimation may be impugned only by those who are prejudiced in their
rights, (testamentary or reinstated heirs), within five years from the
time their cause of action accrues.(from death of putative parents)
Legitimation may be impugned on the following grounds
1. subsequent marriage of parents is void
2. child allegedly legitimated is not a natural child
3. the child is not really the child of the alleged
parents.

WHO MAY ADOPT?

1. of age
2. possessed of civil capacity and legal rights
3. can support and care for his children, in keeping
with the
means of the family
4. 16 years older than adopted
except 1. adopter is parent by nature of
adopted
2. adopter is spouse of legitimate parent of
the
person adopted
NOTE :
Person with children can adopt
Adopter or adopted may be single or married
Age difference is to assure maturity

WHO MAY NOT ADOPT ?

1. guardian with respect to ward before the final
account of guardianship is approved
2. those convicted of crime involving moral turpitude
3. alien
except- a- former Filipino adopting relatives by
consanguinity
b- adopting the legitimate child of
Filipino
spouse
c- married to a Filipino citizen and
jointly
adopting relative by consanguinity of
the latter
(adoption of illegitimate child of Filipino
spouse)
exception to exception- inter- country adoption

HUSBAND AND WIFE MUST JOINTLY

ADOPT :
Except1. spouse adopts his illegitimate child,
with the consent of the other spouse
2. spouse adopts the legitimate child of
the other, in which case, exercise joint
parental authority.
3. if the spouse are legally separated
from each other. (Sec. 7, RA 8552)

WHO MAY NOT BE ADOPTED?

I. PERSON OF AGE
Excepta- child by nature of the adopter or
by the spouse
b- prior to adoption, considered
and treated as child during
minority
2. alien with no diplomatic relation
3. person already adopted , unless
revoked or rescinded

WHOSE CONSENT IS NEEDED ?

1. child to be adopted if 10 years or over
2. parent by nature of adopted
3. children of adopter, if 10 yrs over
4. illeg. Children of adopter, if 10 yrs over and
living with
adopter
5. spouse of adopter
6. spouse of person to be adopted
NOTE :
consent of parent who abandoned child is not
necessary.
If both parents abandoned the child to be
adopted, then consent of those exercising
substitute parental authority is needed

In Landingin vs Republic, 493

SCRA 415, the Court held that the
written consent of the biological
parents is indispensable for the
validity of a decree of adoption. The
Court explained that the natural
right of a parent to his child requires
that his consent must be obtained
before his parental rights and duties
may be terminated and reestablished in the adoptive parents.

If the written consen of the

biological parents cannot be
obtained, the written consent of
the legal guardian of the minors
will suffice. If it is claimed that
the biological mother of the
minor had indeed abandoned
them, the written consent of
their legal guardian must be
adduced. (Landingin vs Republic)

Prior to the amendment introduced

by RA 9523 (effective 2009), the
declaration of a child as legally
available for adoption may be had
either judicially or administratively.
With the amendment introduced by RA
9523, only the DSWD now has the sole
authority to issue the certification
declaring a child legally available for
adoption. Such certification that a
child is legally available for adoption
shall be issued by the DSWD in lieu of
a judicial order, thus making the entire
process administrative in nature.

In addition, the amendatory law

provides that such certification
shall be, for all intents and
purposes, the primary evidence
that the child is legally available in
a domestic adoption proceeding
(as provided in RA 8552 or the
Domestic Adoption Act) and in an
Inter-country adoption proceeding
(as provided in RA 8043 or the
Inter-Country Adoption Act).

-Adopted shall be deemed child of the

adopter
-Adopted has right to use surname of
adopter
-Parental authority of parents by
nature shall
terminate and vested in the adopter
exceptif adopter is spouse of parent by
nature of
adopted, then, both shall exercise
joint parental
authority
-Adopted shall remain intestate heir of
his parents by
nature and other blood relatives
-Adoption cannot confer on the adopted

LEGAL SUCCESSION ON THE ESTATE OF ADOPTED :

children\ leg. illeg. Descendants spouse of adopted
shall inherit from him
parents by natureadopters-

of estate
of estate

surviving spouseadopters-

of estate
of estate

illeg. children
adopters

of estate
of estate

illeg. Childrensurviving spouseadoptersadopters only

only collateral relatives-

1/3 estate
1/3 estate
1/3 estate
I

whole estate
intestacy applies

A.IF ADOPTED IS MINOR OR INCAPACITATED(on the same grounds for loss or suspension of parental
authority)
1. Art. 229upon adoption of child adopted by another
upon appointment of judicial guardian
judicial declaration of abandonment
final judgment divesting parental authority from adopters
judicial declaration of absence or incapacity of person
exercising parental authority
2. Art. 230 suspended upon conviction with penalty of civil
interdiction. Reinstated upon service of penalty or pardon or
amnesty
3. Art. 231- suspend parental authority if :
treats child with excessive harshness
gives child corrupting order or counsel or example
compels child to beg
subjects child or allows child to be subjected to acts of
lasciviousness
4- Art. 232-subjected child to sexual abuse or allows him to

2. proper government instrumentality acting

in behalf of the
child, like DSSD
B- IF ADOPTED CHILD IS ALREADY 18 YRS OLD

File personallyGrounds- 920- for disinheriting as ascendant

a- parents abandoned their children, induced
their daughter to
live a corrupt or immoral life
b- parent convicted of attempt against the life
of adopted,
spouse, ascendants or descendants
c- Accused adopted of a crime with penalty of
imprisonment
for six years or more, accusation found to
be false.
D- Convicted pf adultery or concubinage with

Note: The adopter can no

longer file an action to
revoke the adoption. (Adm.
Circular). The reason being
that adoption is for the
benefit of the adopted.

EFFECT OF REVOCATION:
If adopted still minor, reinstate parental
authority of parents, unless disqualified or
incapacitated, in which case, court appoints a
guardian
If adopted is physically or mentally
handicapped court appoints a guardian
All reciprocal right and obligations between
adopter and adopted are extinguished
Adopted shall resume his surname prior to
adoption
Court shall order the amendment of the
records of the birth of adopted in the local
civil registrar

INTER-COUNTRY
ADOPTION
LAW

INTER-COUNTRY ADOPTION
Inter-country adoption refers to the sociolegal process of adopting a Filipino child by an
alien or a Filipino citizen permanently residing
abroad where the petition is filed, the supervised
trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.
Child means a person below fifteen (15)
years of age unless sooner emancipated by law.
Legally free child means a child who has
been voluntarily or involuntarily committed to
the Department, in accordance with the Child
and Youth Welfare Code.

Only a legally free child

may be the subject of intercountry adoption.
Requisitesa- Child Study Report
b- Birth Certificate or foundling
certificate
c- deed of voluntary commitment
or decree of
abandonment or death
certificate of parents
d- recent photo of child

residing abroad ifa- at least 27 years of age and at least 16

years older
than the child to be adopted, at the time
of application
except- 1. parent by nature of the child
to be adopted
2. spouse of such parent (of
child to be adopted)
- if married, his or her spouse must jointly file
for adoption
b- has the capacity to act and assume all
rights and
responsibilities of parental authority under
his national law
and has undergone appropriate counseling
from an

c- has not been convicted of a crime

involving moral turpitude
d- is eligible to adopt under his
national law
e- is in a position to provide the proper
care and support and to give the
necessary moral values and example to
all his children, including the child to
be adopted.

f- agrees to uphold the basic right of

the child as embodied under Philippine
laws, the UN Convention on the Rights
of the Child and to abide by the Rules
and regulations issued to implement
the provisions of this act.
g- comes from a country with whom the
Philippines has diplomatic relations
and whose government maintains a
similarly authorized and accredited
agency and that adoption is allowed
under his or her national law.
h- possess all the qualifications
provided herein and other applicable

WHERE TO FILE APPLICATIONAn application to adopt a Filipino

child shall be filed
a- Regional Trial Court having
jurisdiction over
the child, or
b- Inter-Country Adoption Board
thru: l. intermediate
agency,
2. governmental or
accredited
agency in the
country of the
adopting parents

Documents to be submitted1. birth certificate

2. marriage contract
3. written consent of biological/adopted children
above 10 years of age
4. physical. Medical and psychological evaluation
by duly licensed physician or psychologist
5. Income tax return or any document showing the
financial capability of the applicants
6. police clearance of applicants
7. character reference from local church/minister,
applicants employer and member of the
immediate
community who have known the applicants for at
least five years
8. recent postcard-size pictures of the applicant and
his
immediate family

TRIAL CUSTODYTrial custody shall be for a

period of six months from
time of placement.

SUPPORT

SUPPORT- everything indispensable

for :
1- sustenance
2- dwelling
3- medical attendance
4- education
5- transportation
in keeping with the financial capacity
of the family

- The education of the person

entitled to be supported shall
include his schooling or training
for some profession, trade or
vocation, even beyond the age of
majority.
- Transportation shall include
expenses in going to school or to
and from the place of work.

CHARACTERISTICS :
- Purely personal founded on personal
necessity
- Cannot be attached or executedSURVIVAL
- Instransmissable and non-assignable
- Variable
- Reciprocal
- Demandable from time of needs and even
beyond age of majority or even if married.

PERSON OBLIGED TO GIVE SUPPORT :

1- Spouses
2- Leg. asc. And desc.
3- Parents and their leg. children, and leg.
and illeg. children of the latter.
4- Parents and their illeg. Children, and the
leg. and illeg. children of the latter.
5- Leg. brothers and sisters, whether of
full or
half blood.
6- Illeg. Brothers or sisters, except- when
already of age and due to cause imputable
to claimants fault or negligence

SOURCES OF SUPPORT :
- SPOUSE- absolute or conjugal
property
- Common children- absolute
or
conjugal property
- Children of spouse by
another
marriage- same

Illegitimate children of either spousea- if ABSOLUTE COMMUNITY

REGIME1- separate property
2- If insufficient- absolute
community
But deduct from share of spouse upon
liquidation
b- if CONJUGAL PARTNERSHIP1- separate property
2- if insufficient-conjugal property
But deduct from share of spouse upon
liquidation

Brothers or sisters- from

separate property of spouse
- If insufficient-from absolute or
conjugal property if financially
capable.
But to be deducted upon
liquidation
-

SUPPORT DURING PROCEEDING FOR LEGAL

SEPARATION, ANNULMENT OF MARRIAGE
OR DECLARATION OF NULLITY OF
MARRIAGE:

during pendency- from absolute or

conjugal property
after judgment- mutual support ceases

BUT IN LEGAL SEPARATIONthe court may order the

guilty spouse to give
support to innocent spouse,
specifying the terms
thereof.

ORDER OF PREFERENCE ON
WHO WILL GIVE SUPPORT :
1- Spouse
2- Descendants, nearest in
degree
3- Ascendants, nearest in
degree
4- Brothers or sisters

In Patricio vs Dario III, 507 SCRA

438, it was held that
grandchildren cannot demand
support directly from their
grandparents, if they have
parents (ascendants of nearest
degree) who are capable of
supporting them. This is so
because we have to follow the
order of support under Art. 199 FC

RULES- If support falls on two persons or more, both

shall give support in proportion to resources
of each
- In cause of urgent need, the court may order
one to give support provisionally, subject to
claim for reimbursement from the other.
- If several beneficiaries, against only one
giver, and resources not sufficient- order of
payment shall be as follows :
1. spouse
2. descendants, nearest degree
3. ascendants, nearest in degree
4. brothers or sisters

But in case of
concurrence between
spouse and child- child
shall be preferred to be
supported.

SPECIAL RULES ON
SUPPORT :
amount of support
dependent on :
1- means of giver
3- necessities of
recipient

- support demandable from

needs, but payable from
judicial or extra-judicial
demands
- support pendent lite claimed
in accordance with the rules of
court
- payment of support shall be
made within five days from
each corresponding month. No
refund even if dies within the
month

support can be made by :

(option of giver)
- paying the allowance fixed
- receiving and maintaining in
the family dwelling the
recipient
except- when there is moral or
legal obstacle thereto.

Right to receive support

- money or property given as
support not subject to levy
or attachment or execution
except
1. support in arrears
2. contractual support in
excess of legal
support
3. support given by will in
excess of
legal support

NOTE : Contractual
support can be subject
to adjustment whenever
modification is necessary
due to changes in the
circumstances
manifestly beyond the
contemplation of the
parties

- When giver has knowledge, the

stranger can claim from giver,
unless the stranger has no
intention to be reimbursed
- When giver unjustly refuses or
fails to give support when
urgently needed by the latter,
stranger may give, with right of
reimbursement. This applies
specially where mother and father
unjustly refused or fails to give
support to the child if urgently
needed.

PARENTAL
AUTHORITY

PARENTAL AUTHORITYConcept- mass of rights and

obligations which parents have
in relation to the person and
property of their children until
their emancipation, and even
beyond under certain
circumstances.

PURPOSE
1. sound physical development of
children
2. cultivation of their intellectual
perceptions
3. nourishment of their appetitive
and sensitive faculties(Reyes
vs.
Alvarez, 8 Phil. 723)

LAW ON PARENTAL AUTHORITYBefore august 3 1988, PD 603 and civil

code
After august 3, 1988 , family code
expressly repealing Title XI of the civil
code on parental authority and Arts.
17, 18 and 19 of PD 603 on parental
authority (art 254, family code)

CHARACTERISTICS OF PARENTAL
AUTHORITY
- A natural right and duty of parents(209)
- Can not be renounced, transferred or
waived except in cases authorized by
law, (210), as in the case of:
1. adoption
2. guardianship
3. commitment of child in an entity or
institution engaged in child care or in
childrens home(223-224)

fathers decision prevails

unless there is judicial order to
the contrary.
- Purely personal and cannot be
exercised
thru agents
- Temporary, ends when child
emancipated,
can take care of himself & his
property or
parent unable to properly
exercise the

PARENTAL AUTHORITY CONSISTS

OF: (209)
caring and rearing of such
children for civic consciousness
and efficiency,
development of their moral,
mental, and physical character
and well-being, parental
responsibility

IN CASE OF DEATH OR
ABSENCE OF EITHER
PARENT- parental
authority shall be
exercised by :
parent present (122)

IN CASE OF REMARRIAGE
OF SURVIVING PARENTparental authority shall
be exercised by :
surviving parent, unless
court appoints a
guardian (212)

IN CASE OF SEPARATION OF PARENTS, (213)

parental authority shall be exercised by :
parent designated by court, but :
court shall take into account all relevant
considerations, specially the choice of child over 7
years of age, unless parent chosen is unfit;
no child under 7 years of age shall be separated
from the mother, unless court finds compelling
reason to order otherwise, such as insanity,
communicable disease which might endanger
health and life of child, maltreatment of child or
other similar reasons which make her unfit.

In the case of PabloGualberto vs Gualberto, 461

SCRA 450, and Gamboa-Hirsch
vs CA, 527 SCRA 380, the
Court referred to the second
paragraph of Article 213 of the
FC, giving the mother
preference in awarding
custody of the child under the
age of seven as the tender
age presumption.

The Court further held that

the mere fact that the mother
is a lesbian is not a compelling
reason to deprive her of
custody without showing that
she carried on her purported
relationship with a person of
the same sex in the presence
of the child or under
circumstances not conducive to
the childs proper moral
development.

The so-called tender age

presumption under Art. 213 of the FC
may be overcome only by compelling
evidence of the mothers unfitness.
The mother is declared unsuitable to
have custody of her children in one or
more of the following instances:
neglect, abandonment,
unemployment, immorality, habitual
drunkenness, drug addiction,
maltreatment of the child, insanity or
affliction with communicable disease.
(Gamboa-Hirsch vs CA)

IN CASE OF DEATH,
ABSENCE OR
UNSUITABILITY OF BOTH
PARENTS- substitute
parental authority shall be
exercised by surviving
grandparent
if several survive, one
designated by court (214)

FILIAL PRIVILEGEDescendant can not be

compelled to testify, in a
criminal case, against his
parents and grandparents ,
except- indispensable in a crime
against the descendants OR
crime by one parent against the
other

exercised by : (in default of

parents or court appointed
guardian )
1. surviving grandparent
2. oldest brother or sister,
over 21 years of
age, unless disqualified
3. childs actual custodian,
over 21 of age,
unless unfit or disqualified.
(216)

IN CASE OF FOUNDLINGS , ABANDONED,

NEGLECTED OR ABUSE CHILDREN (217)
Substitute parental authority shall be
entrusted to
- heads of childrens homes, orphanages
and similar institution duly accredited
by proper govt agency
- designation shall be through summary
judicial proceeding

SPECIAL PARENTAL AUTHORITY

SHALL BE EXERCISED BY- the School, its administrator and
teachers
- Individual, entity or institution engage
in
child care while under their
supervision
instruction or custody
It shall apply to all authorized activities
whether inside or outside the premises
of the school , entity or institution.

The school administrator,

teacher or individual
engaged in child care and
exercising parental
authority shall in no case
inflict corporal punishment
upon the child.

DISTINCTION BETWEEN SUBSTITUTE

AND SPECIAL PARENTAL AUTHORITY
Substitute parental authority is exercised in the
case of death, absence or unsuitability of parents.
Substitute parental authority is not exercised
concurrently with the exercise by parent of
parental authority.
Special authority is exercised concurrent with
parental authority of parents.
The parents temporarily relinquish parental
authority over those granted special authority
while children are in the custody of the latter.

SUBSTITUTE OR SPECIAL
PARENTAL AUTHORITYShall be principally and
solidarily liable for damage
caused by acts or omissions of
the minor under their custody.
The parents, guardian or
person exercising substitute
parental authority shall be
subsidiarily liable.
Due diligence is available as
defense.

RIGHTS OF PARENTS OR
PERSON EXERCISING PARENTAL
AUTHORITY- (220)
- to keep them in their company
- to support
- to educate
- to instruct them by right
precept
and good example

keeping with
their means.
- to give them love and affection
- to give them advice and counsel
- to give them companionship and
understanding
- to provide them with moral and
spiritual
guidance
- to inculcate in them honesty,
integrity, selfdiscipline, self-reliance, industry
and thrift
- To stimulate their interest in

- To inspire in them
compliance with
duties of citizenship
- to enhance, protect, preserve
and
maintain their physical and
mental
health at all times .
- to furnish them with good
and
wholesome educational
materials

- To supervise their activities, reaction

and
association with others
- To protect them from bad companies
- To prevent them from acquiring
habits
detrimental to their health, studies
and
morals.
- to represent them in all matters
affecting
their interest

respect and
obedience
- to impose discipline on them
as may be
required under the
circumstances
- to perform such other duties
as are
imposed by law upon
parents and
guardians, such as those
right and duties specified in
chapters 3 and chapter 4 of

ART 204 of PD 603

penalizing parents or
guardians who aid, or
connive in the
commission by the child
of delinquency or do acts
promoting or
contributing to a child
becoming juvenile
deliquent.

LIABILITY FOR TORTS- (221)

Parents and persons exercising
parental authority shall be civilly
liable for the injuries and damages
caused by the acts or omissions of
their unemancipated children, LIVING
in their company and UNDER their
parental AUTHORITY , subject to
defenses of due diligence.

The liability is solidary.

(Araneta vs. Arreglado
104 Phil 529 ) and
primary and direct, not
subsidiary. (Barredo vs.
Soriano, 73 Phil 607)

MEASURES TO ASSIST PARENTS IN IMPOSING

DISCIPLINE TO CHILD223- petition court where child resides for an
order providing for disciplinary measure over
the child
= child shall be entitled to assistance of
counsel, of his own choice or appointed by the
court
= summary hearing shall be conducted
wherein petitioner and child shall be heard
= if court finds petitioner at fault, even if
petition is meritorious, the court may also
order deprivation or suspension of parental
authority ; or adopts such measure as may be
reasonable, including appointment of a
guardian

224- the measure may include

commitment of the child for not
more than 30 days in entities or
institution engaged in child care
or childrens home duly accredited
by proper govt agency
- parent shall not interfere with
the care of the child whenever
committed, but shall provide for
his support.
- Upon proper petition or motu
propio, the court may terminate
the commitment whenever just
and proper.

PARENTAL AUTHORITY OVER

PROPERTY OF CHILDREN (225)
Father and mother shall jointly exercise
legal guardianship over the property of
their unemancipated common children
without necessity of court appointment.
if the market value of the property or
annual income of the child exceeds
P50,000.00,the parent concern shall
furnish a bond in an amount the court may
determine, but not less than 10 % of the
value of the property or annual income

Verified petition for

approval of the bond shall
be filed in proper court
where child resides, or if
child resides in foreign
country, court of the place
where the property is
situated.

PROPERTY OF THE CHILD INCLUDES (226)

1- childs earnings through his labor, work
2.
3.
4.
5.

or industry
property acquired by child by
gratuitous title
property acquired by child by onerous
title
fruits of all the properties of the child
insurance proceeds accruing to the
child

- It shall be devoted exclusively for his

support and education, unless the title or
transfer provides otherwise.
- And secondarily, for the collective
needs of the family.
parental usufruct over the properties of
their unemancipated children had been
abolished.

- net proceeds of properties shall

belong to the
parent/s owner.
- Child shall be given reasonable
monthly
allowance in an amount not less
than which
shall be given to strangers who
manages the
property
- If parents give the entire
proceeds of the
property to the child, it shall not

TERMINATION OF PARENTAL
AUTHORITY (228)
- upon death of parents
- upon death of child
- upon emancipation of the child
termination is permanent and
can no be revived

AUTHORITY (229)
- upon adoption of the child
- upon appointment of a general
guardian
- upon judicial declaration of
abandonment of
the child in a case filled for the
purpose
- upon final judgment of a
competent court
divesting the party concerned of
parental
authority
- upon judicial declaration of

- rescission of the adoption

- termination of the guardianship
- restoration of parental authority
to parent
who has returned home after
abandoning
child, or who has been divested
of authority
for any other reason
- restoration of parental authority
to an absent
spouse who has returned or
formerly

AUTOMATIC SUSPENSION OF
PARENTAL AUTHORITY (230)
- conviction of parent for crime which
carried the penalty of civil interdiction
- authority is automatically restored
upon service of the penalty or upon
pardon or amnesty of the offender

SUSPENSION OF PARENTAL AUTHORITY THRU

COURT ACTION (231) Grounds- treats the child with excessive harshness or
cruelty
- gives the child corrupting orders, counsel or
example
- compels the child to beg
- subject child or allows him to be subjected
to
acts of lasciviousness
above grounds include cases which have
resulted from culpable negligence of the
parents

PERMANENT DEPRIVATION OF
PARENTAL AUTHORITY (232)
parent subjected the child or
allowed him/her to be
subjected to sexual abuse
deprivation is permanent and
can not be restored

THOSE EXERCISING SUBSTITUTE

AUTHORITY (233)
- person exercising substitute
parental authority have the same
authority over the child as the
parents
- can impose discipline on the
child as required under the
circumstances, which includes
moderate punishment, but not
amounting to maltreatment or
cruelty
- can not inflict corporal

EMANCIPATION AND AGE OF

MAJORITY- (234-237 FAMILY CODE)
(REP. ACT NO. 6809)
Section 1 . Article 234, executive
Order NO. 209 of the Family Code
of the Philippines, is hereby
amended to read as follows :
Art. 234. Emancipation takes
place by the attainment of
majority. Unless otherwise
provided, majority commences at
the age of 18 years.

Section 2. Articles 235 and 237 of the

same code are hereby repealed
Section 3. Article 236 of the same
code is also hereby amended to read
as follows :
Art. 236. Emancipation shall
terminate parental authority over the
person and property of the child who
shall then be qualified and responsible
for all acts of civil life, save the
exception established by existing laws
in special cases

Contracting marriage shall require

parental consent until the age of 21
Nothing in this code shall be
construed to derogate from the
duty or responsibility of parents
and guardians for children and
wards below 21 years of age
mentioned in the second and third
paragraphs of Article 2180 of the
new civil code

BY reason of section 3 of RA 6809,

the decision in Elcano vs. Hill, 77
SCRA 89 wherein the father of a
married minor was held still
liable for damages resulting from
the childs having killed someone,
which has been abrogated by the
former Article 236 of the family
code, would still now be
applicable under the said
amendment to Article 236.

Change of First Name:

Administrative change of name or
nickname is allowed on the following
grounds:
1. petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write
or pronounce;
2. the new first name or nickname has
been habitually and continuously used
by the petitioner and he has been
publicly known by that first name or
nickname in the community;
3. the change will avoid confusion. (RA
9048)

Before a person can legally

change his given name, he
must present proper or
reasonable cause or any
compelling reason justifying
such change. (Wang vs
Cebu City Civil
Registrar, 454 SCRA 155)

In Silverio vs Republic, the

SC held that a persons first
name