Civil Law Review – 1st Meeting - January 15, 2017
1. If the law is silent as to its date of effectivity, when will that law take effect?
ANSWER: If the law is silent as to its own effectivity, then it shall take effect only after
fifteen (15) days following its complete publication. Page 3
2. Can Congress do away with publication of a law? Can Congress provide a law to
become effective even in the absence of publication?
ANSWER: In Tanada vs Tuvera case, the Court ruled that Article 2 of the CC does not
preclude the requirement of publication in the Official Gazette even if the law itself
provides for the date of effectivity since the clear object of the law is to give the general
public adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Page 5
3. May the publication of the law be made in the internet?
ANSWER: Publication of laws may either be in the Official Gazette or in a newspaper of
general circulation in the Philippines. Page 6
4. What if a certain law will be passed by Congress, RA 12779 and it will be passed this
year, what if in that law it will be Information Technology Act of the Philippines 2017.
What if that law will provide that it shall take effect 15 days after its publication in the
Official Gazette. Will that be valid? Can Congress add another venue for publication
other than Official Gazette or newspaper of general circulation?
ANSWER: Yes. In EO 200 amending Art 2 of the NCC, that can be subjected to an
amendment in Congress, expressly or impliedly.
5. If the law says that it shall take effect immediately upon its approval and the law was
approved by Congress on March 1, passed by Congress on March 1, approved by the
Pres on April 1, published completely in a newspaper of general circulation on May 1.
When will that law become effective?
ANSWER: May 1. A statute which its terms provides for its coming to effect immediately
upon approval thereof, is properly interpreted as coming into effect immediately upon
publication thereof in the Official Gazette as provided in the Art 2 of the CC. Page 7
6. What is the Doctrine of Presumed Identity Approach?
ANSWER: Also known as the Doctrine of Processual Presumption. A foreign law must
be properly pleaded and proved as a fact. Thus if the foreign law involved is not properly
pleaded and proved, our courts will presume that the foreign law is the same as our local
or domestic or internal law. Page 11
7. There is a foreigner, a Dutch national, married to a Filipina. They had a 2 year old child.
The Dutch went back to his country and obtained absolute divorce and went back to the
Philippines and married to another Filipina. Since the divorce, he has not been giving
support to the child. When the child was already 10, the former Filipina spouse filed
violation of RA 9262 for refusing to support the child since the child was 2 years old.
Under his national law, the defense of the Dutch, after a divorce, a parent has no longer
the obligation to support the child. The Dutch failed to prove the existence of that law in
the criminal action. Is it a valid defense?
ANSWER? Yes. Ordinarily, it is the national law of the foreigner that will apply. Under
Art. 15 of the CC, “Laws relating to family rights and duties, or to the status, condition
and legal capacity or persons are binding upon citizens of the Philippines, even though
living abroad. Page 36
Assuming that the foreigner will be able to prove the national law of the Dutch, if you
were the Philippine Court, will you apply that law?
ANSWER: No. The Philippine Court may refuse recognition of the foreign law if such law
is contrary to public policy.
Assuming that the foreigner was not able to prove the existence of the foreign law, how
will you decide the case?
ANSWER: I will convict the accused. Applying the Doctrine of Processual Presumption,
if the foreign law involved is not properly pleaded and proved, our courts will presume
that the foreign law is the same as our local or domestic or internal law. Under the
Family Code, parents are required to support the child and failure to do that is a violation
of RA 9262.
If it is the mother who failed to give support, will she be liable for RA 9262?
ANSWER: No. The law only punishes the father for violating the rights of women and
their children.
8. In Art. 3 CC, what kind of law is contemplated?
ANSWER: Substantive Law
9. Is there a conclusive presumption of knowledge of foreign laws?
ANSWER: No. Even our courts cannot take judicial notice of them. They must be
specifically alleged and proved. Page 11
10. If a foreign law will be necessary in resolving a case pending before a Philippine Court,
will our court take cognizance of said foreign law?
ANSWER: No. Even our courts cannot take judicial notice of them. They must be
specifically alleged and proved otherwise the Doctrine of Processual Presumption
applies. Page 11
11. What are the exceptions to the rule that laws shall be given prospective application only?
ANSWER:
a. If the law itself provides for retroactivity
Exceptions: a. When the retroactivity of a penal statute will make it an ex post
facto law
b. When the retroactive effect of the statute will result in impairment
of obligation of contracts.
b. Penal laws favorable to the accused except if the accused is a habitual delinquent
c. If the law is procedural
d. When the law is curative
e. When the law creates substantive rights Page 13
12. What is an ex post facto law?
ANSWER: It is one that would make a previous act criminal although it was not so at the
time it was committed. It is penal in nature. To be an ex post facto law, the law must: 1)
refer to criminal matters; 2) be retroactive in its application 3) prejudicial to the accused.
Page 13-14
13. How are laws repealed?
ANSWER: Laws are repealed in two ways: 1)express or 2) implied.
An express repeal is that contained in a special provision of a subsequent law.
Implied repeal takes place when the provisions of the subsequent law are incompatible
with those of an earlier law and there is no express repeal. Page 20
14. When the laws says that this Act “All laws, presidential decrees and issuances which are
inconsistent with this Act are hereby deemed repealed”, is that an express repeal?
ANSWER: No. It fails to identify or designate the act or acts that are intended to be
repealed. Page 20
15. What are the requisites of an implied repeal?
ANSWER: a. The laws cover the same subject matter, and
b. the latter is repugnant to the earlier. Page 21
16. Why is implied repeal not favored?
ANSWER: Because of separation of powers, the fundament is that the Legislature
should be presumed to have known the existing laws on the subject and not have
enacted conflicting statutes. Implied repeals are not favored because they rest only on
the presumption that because the old and the new laws are incompatible with each
other, there is an intention to repeal the old. Page 21
17. What is the difference between repealed of a law and the declaration of
unconstitutionality?
ANSWER: Both are ways of rendering a law ineffective but the difference is that the
former is a legislative act while the latter is a judicial act.
18. If the repealing law itself is repealed, what is the effect upon the law which it previously
repealed?
ANSWER: The effect of a repeal of the repealing law shall depend on whether the
previous repeal was express or implied:
Express Repeal: When a law which expressly repeals a prior law is itself repealed, the
law first repealed shall not be thereby revived unless expressly so provided.
Implied Repeal: When a law which impliedly repeals a prior law is itself repealed, the
prior law is itself repealed, the prior law shall thereby be revived, unless the repealing
law provides otherwise. Page 25-26
19. What is the effect of declaration of unconstitutionality?
ANSWER: Our Court adopted the view that before an act is declared unconstitutional it
is an “operative fact” which can be the source of rights and duties. Page 26
20. When the law speaks of a year, what does it mean?
ANSWER: CC (1950)- 365 days whether it be a regular year or a leap year while in the
Administrative Code (1987), it composed of 12 calendar months. The SC declared that
the provision of Sec. 31, Chapter VIII, Book I of the 1987 Administrative Code, being the
more recent law, governs the computation of legal periods with respect to counting “a
year”.
21. Is there a situation wherein the provision of the CC is applicable insofar as the meaning
of a year is concerned?
ANSWER? None. The Administrative Code impliedly repealed Art. 13 of the CC (CIR vs
Primetown Property Group, Inc) insofar as the meaning of the year is concerned
because both laws are concerned with the computation of legal periods (1st requisite of
implied repeal) and the provisions are in conflict and irreconcilable (2nd requisite of
implied repeal).
Example: one year from January 15, 2017, exclude first day, start counting on the 16,
(16,28,31,30,31,30,31,31,30,31,30,31) six 31s, four 30s, one 28, one 16 = 350 plus 15
days of January 2018 which is January 15th
-if it is leap year, the 365th day is January 14, 2018
Under the CC, the actual number of days matter.
22. Under the Administrative Code, what is one year from January 15, 2017?
ANSWER: January 15, 2018
If leap year, January 15, 2016, using the CC, one year will fall on January 14, 2017 but
under the Administrative Code, one year is January 15, 2017, the number of days
immaterial.
23. Is 12 calendar months the same with 12 months?
ANSWER: No. The provision of the law under Sec.31, Chapter VIII, Book I of the 1987
Administrative Code speaks of twelve calendar months which differs on 12 months
which is only 360 days (12x30).
24. When the law speaks of a month, what does it mean?
ANSWER: It is understood to be 30 days unless it refers to a specific calendar month in
which case it shall be computed according to the number of days the specific month
contains. Page 13 R
25. When the law speaks of a day what does it mean?
ANSWER? 24 hours Page 13 R
26. When the law speaks of a night, what does it mean?
ANSWER: It means from sunset to sunrise. Page 13 R. It is important in Labor Law in
terms of night differential; Criminal Law because it is an aggravating circumstance.
27. What is the principle of generality?
ANSWER: Philippine penal laws and those of public security and safety are obligatory
upon all who live or sojourn in Philippine territory. Page 13 R
Principle of Territoriality (Art 4) and Prospectivity (Art 22) – under the RPC whereas the
Principle of Generality is under the CC Art. 14
28. Smith Case – military serviceman charged with rape and Ivler case- charged with
another crime. The contention of Ivler’s mother is that his son should also be treated as
the same with Smith and be under the US Custody. Is that tenable?
ANSWER: No. In the case of Smith, he was under the VFA while Ivler was in his
individual capacity applying Art. 14 CC which states that “Penal laws shall be obligatory
to all who lives or sojourn in Phil. Territory subject to the principles of international law
and treaty obligations.
29. What are the exceptions to the principle of generality?
ANSWER: a. Treaty Stipulations b. Laws of Preferential Application c. Principles of
Public International Law Page 35
30. What are the matters covered by the application of the Nationality principle rule?
ANSWER: Family rights and duties, status, condition, and legal capacity are governed
by the personal law (Law of Domicile-if this country is following the domiciliary theory or
the National Law-if this country is following the nationality theory of the person
concerned Art. 15 Page 36
31. On the matter of validity of divorces, the SC tells the applicability of Art. 15, why are we
following the nationality rule in determining the validity of a divorce?
ANSWER: It talks about the status or condition of the person. In divorce, Philippine
nationals are covered by the policy against absolute divorce as against public policy and
morality whereas aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. Page 38
32. Can foreigners obtain a decree of divorce here in the Philippines?
ANSWER: No because divorce is not recognized in our jurisdiction. A decree of divorce
can only be obtained abroad.
33. Filipino citizens are married but living in a foreign country where a divorce decree is
recognized as valid. One of them obtained a decree of divorce capacitating him to
remarry. Is the decree of absolute divorce obtained by the citizen of the Philippines
valid?
ANSWER: No. The Nationality principle (Art.15) governs matters affecting the status or
condition of a person. Philippine law does not provide for absolute divorce. A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because
of Art. 15 and 17 of the CC. Page 37
34. What if the one who secured a divorce is a foreigner married to another foreigner? One
of them wants to remarry in the Philippines and applied for recognition of the judgment of
divorce. Can our courts recognize the existence of such judgment providing for an
absolute divorce obtained by the foreigner?
ANSWER: Yes. Aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. Page 38
35. What is the principle of Lex Rei Sitae?
ANSWER: Art. 16 CC provides that real and personal properties are subject to the law of
the country in which they are situated. Page 42
36. An Australian is married to a Filipina. The two is interested in buying a house and lot in
Paranaque. For the purpose of determining the legal capacity of the parties to acquire
that house and lot, which law are we going to apply?
ANSWER: Philippine law applies following the Lex Situs. Foreigners are prohibited from
acquiring private lands except by way of hereditary succession (consanguinity or
succession by operation of law which includes compulsory or intestate and not
testamentary). On the matter of real property, it is not the nationality principle that will
apply on the matter of legal capacity, it is the Lex Situs that will apply even on the matter
of legal capacity by way of exception to Art. 15 CC. All issues affecting properties, even
legal capacity or formalities are to be governed by Lex Situs and not by Lex Loci
Celebrationis especially on lands.
37. What are the exceptions to the principle of Lex Situs even if the properties are involved?
ANSWER: a. order of succession b. amount of successional rights c. intrinsic validity of
testamentary provisions (Art. 16 of the CC) and d. capacity of the heir to succeed
(Art.1039 of the CC)
38. What do you mean by order of succession? (An American living in Texas married to a
Filipina. They have an illegitimate child -of Filipino nationality following the citizenship of
the mother. The foreigner died. The brothers of the foreigner claim that the illegitimate
child is not an heir of the father under the law of Texas. In resolving that issue of whether
or not the child is an heir of the father even if the properties subject of succession are in
the Philippines, what law do we apply?)
ANSWER: Texas law will apply because the issue is order of succession. Order of
Succession refers to who are the heirs under the law.
39. The father executed a will with an illegitimate child be he later recognized as his. When
he executed his will, he gave all of his properties to his siblings, none was given to the
illegitimate child and the properties are here in the Phil. The will is to be probated in the
Phil. The illegitimate child opposed the probate alleging that the will is not valid because
he was preterited. The siblings claimed no preterition because under Texas Law, there is
no compulsory heir and an illegitimate child is not a legal heir. In resolving the issue of
preterition, what law do we apply?
ANSWER: Texas law will apply because the issue is whether one is a compulsory heir or
not which is the primary question in resolving the issue of preterition which is a matter
involving order of succession or amount of successional rights and also the intrinsic
validity of testamentary disposition even though the property is located in the Philippines.
40. What is the Doctrine of Lex Loci Celebrationis?
ANSWER: First Paragraph of Art. 17 CC provides that the forms and solemnities of
contracts, wills and other public instruments are governed by the laws of the country in
which they are executed. Page 46
41. If the issue is the extrinsic validity and intrinsic validity of a contract, what is the law
applicable?
ANSWER: Art. 17 1st Paragraph on Lex Loci Celebrationis. Intrinsic validity of a contract
is governed by the proper law of the contract or “Lex Contractus”, which may either be
the law of the place voluntarily agreed upon by the contracting parties (lex loci voluntatis)
or the law of the place intended by them expressly or impliedly (lex loci intentionis). Page
46
42. What is Damnum Absque Injuria?
ANSWER: It refers to the damage resulting from the legitimate exercise of a person’s
rights is a loss without injury for which the law gives no remedy. Page 48
43. How does it (DAI) differ from Abuse of Right?
ANSWER: In both there is injury but in DAI, the injury is not actionable hence there is no
ground for recovery of damages. In DAI, there is good faith while in AOR, there is bad
faith.
44. What is Accion In Rem Verso?
ANSWER: Art 22. of the CC tells that if a person acquires something at the expense of
another without just cause or legal ground through an act or performance by another or
any other mans has the obligation to return the same. It contemplates a delivery of
plaintiff something to the defendant which the latter is not entitled without legal ground or
causebut there is no mistake. Page 67
45. What is the difference of In Rem Verso with Solutio Indebiti?
ANSWER: Solutio Indebiti is a concept that there was payment in mistake where
someone gained. It can result to an action for recovery of what has been unduly
delivered based on solution indebiti. In In Rem Verso, there is also an action for recovery
of something that has been unduly delivered but without mistake. The SC held that the
most important requisite of Accion In Rem Verso that will distinguish it from Solutio
Indebiti, citing the cases of LBP vs Ong and UP vs Philab Industries Inc, the plaintiff
must have no other legal remedy under contract, quasi-contract, delict or quasi-delict. If
he has available course of action under either of those four, it is not an In Rem Verso.
Solutio Indebiti is a form of a quasi-contract hence if one has available action under such
quasi-contract, he cannot resort to an Accion In Rem Verso. Page 67-68
46. A made a promise of marriage to B but broke it. Can B sue for damages?
ANSWER? No. It is not an actionable wrong citing the case of Villafuerte vs CA.
Congress deliberately eliminated from of the New Civil Code that would have made it so.
The reason is set forth in the Senate Committees on the Proposed Civil Code telling the
legislative intent of Congress. Hence, the SC look into the Committee Draft. Under the
Statute of Frauds Art 1403 (c), any agreement in consideration of marriage other than
mutual promise to marry are one of the agreements unenforceable by action.
Civil Law Review – 2nd Meeting - January 22, 2017
1. Concept of Prejudicial Question?
ANSWER: Prejudicial question is one which arises in a case, the resolution of which question is
logical antecedent of the issue involved in the case. Page 98, PAFR, Rabuya
2. What are the elements of Prejudicial Question?
ANSWER: a.) the previously instituted civil action involves an issue similarly or intimately
related to the issue raised in the subsequent criminal action; and b) the resolution of such issue
determined whether or not the criminal action may proceed. Page 98, PARF, Rabuya
3. In a prejudicial question, what is the issue that we consider as prejudicial?
ANSWER: The issue in the civil action is the one prejudicial to the one prejudicial to the
continuation of the criminal action, and not vice-versa. Page 98, PARF, Rabuya
4. If the criminal case was filed ahead of the civil case and there are two issues there which are
intimately related with each other in such a way that the issue of the civil is determinative of the
guilt or innocence of the accused, may the accused moved for the suspension of the proceeding
in the criminal case?
ANSWER: Yes, the criminal case can be suspended, due to the prejudicial question.
5. Castillo got married to Soliman in 1985 but the marriage was celebrated without a marriage
license. In 1989, without doing anything in relation to the first marriage, Castillo got married
anew. Sometime in 1993, Castillo filed a petition of declaration of nullity of the first marriage with
Soliman. In retaliation, Soliman filed a case of bigamy against Castillo. In the criminal case,
Castillo moved for suspension of the proceedings invoking the existence of prejudicial question,
alleging that since his first marriage is void, he does not commit the crime of bigamy. Is the
contention correct?
ANSWER: No, there’s no prejudicial question since the crime of bigamy was already committed.
6. What if, during the pendency of criminal case, the accused will be able to obtain a final
judgment declaring the marriage as void, can he make use of that as a defense in the criminal
case of bigamy?
ANSWER: No
7. In that same scenario, Castillo got married anew in 1989 without doing anything, in 1993
Castillo filed a declaration of nullity of his first marriage on the ground of absence of marriage
license and it was granted in the same year he was able to obtain a final judgment. In
retaliation, the first wife filed a case of bigamy against Castillo. Can he invoke the final judgment
he obtained declaring his first marriage void? Can he be convicted?
ANSWER: No and Yes, because the crime of bigamy was already committed. When the second
marriage was contracted, the first marriage was not yet declared void.
Under Article 40, the 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. – The
effect is civil only, it will make the second marriage void but will not affect the liability of the
accused in a crime of bigamy.
Bigamy is a crime punishable under Article 349 of the RPC and it is committed when a person
contracts a second or subsequent marriage before the former marriage has been legally
dissolved or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in proper proceedings.
8. C and S are about to be married, so they went before a certain judge in the city of Manila.
When they went to the sala of a Judge, they were informed that the judge is attending a fiesta in
Tondo. The judge left an instruction to sign the marriage contract he left in the chamber. The
parties signed the marriage contract and were assured that it will be signed by the judge and will
be forwarded in the LCR of Manila. The marriage contract was registered in LCR and was
forwarded to NSO. 2 years after, C contracted another marriage to another woman without
doing anything. S found out about the second marriage, S filed a case of bigamy. Prior to the
filing of the criminal action, C filed a petition to declare first marriage as null and void. May C
invoke for the suspension of the criminal proceeding on the ground that there was prejudicial
question?
ANSWER: Yes, in the Case of Morigo v. People, there’s no marriage to speak of, since there
was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer.
Instead, what transpired was a mere signing of the marriage contract by the two, without the
presence of a solemnizing officer. The first element of bigamy as a crime requires that the
accused must have been legally married. But this case, legally speaking, the petitioner was
never married. Thus, there is no marriage to speak of.
9. S is intending to marry his boyfriend B. So S, prior to applying a marriage license, S went to
Civil Registry and NSO to apply for CENOMAR. Upon inquiring in the NSO, she was surprised
that she was not issued a CENOMAR. Instead she was given a copy of a marriage contract,
where she appears to be married to someone else, to a Korean national. But she was not aware
of that marriage, in short, someone else made use of her identity. What if without doing
anything, she contracted a marriage to her boyfriend and she was subsequently prosecuted for
bigamy. If prior to the filing of the criminal action she will be filing a petition for declaration of
nullity of marriage. Can she invoke the existence of civil case as prejudicial question? If you
were the judge, will you acquit or convict the accused?
ANSWER: Yes, because there was no first marriage that was celebrated. Article 40 of FC will
not apply, because for it to apply there must be a marriage to speak of.
The accused shall be acquitted, even if she did not comply with Article 40 of the Family Code. S
was not the person in the first marriage, there was no marriage to speak, there was no valid and
subsisting marriage of hence there’s no need to file a petition for declaration of nullity of
marriage.
10. Boy Abunda and his boyfriend went to California to get married. In California, same sex
marriage is recognized. Both of them are Filipino citizen. They got married in California, after
their marriage, they went back and they cohabited and lived together. After one year they
quarreled and parted ways. After which, the former partner of Boy got married to S without
doing anything to his marriage to Boy. After a marriage, he filed a petition to declare the
California marriage as null and void. During the pendency of the petition, Boy filed a criminal
action for bigamy against Bong. Bong filed a motion to suspend proceeding on the ground that
there was a prejudicial question. If you were a court, will you suspend the proceeding? Is there
a prejudicial question? Will you convict the accused?
ANSWER: No, the suspension will not be made and there’s no prejudicial question. Since same
sex marriage is not recognized in the Philippines. The civil case will not prosper since the case
will just be dismissed.
No, the accused shall be acquitted. In bigamy, there must be prior valid marriage. In this case,
there was no valid marriage.
11. S was married to C, during the subsistence of their marriage. S contracted another marriage
to B, but was celebrated without a marriage license. Subsequently, S filed a petition for
declaration of nullity of her second marriage on the ground of lack of marriage license. During
the pendency of the civil case, C commenced a criminal action for bigamy against S. Can S
move for the suspension of the criminal proceeding on the ground that there is prejudicial
question? Will you acquit the accused?
ANSWER: Yes, because for bigamy to attach, the second or subsequent marriage has all the
essential requisites for validity.
Yes, because there’s no valid second marriage, for lack of marriage license.
Inthe case of Go-bangayan vs Bangayan, The elements of bigamy are:
1. That the offender has been legally married.
2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead according to the Civil Code.
3. That he contracts a second or subsequent marriage.
4. That the second or subsequent marriage has all the essential requisites for validity.
In this case, the fourth element is not present. The marriage license presented by Sally was not
authentic as in fact, no marriage license was ever issued to both parties in view of the alleged
marriage. The marriage between them was merely in jest and never complied with the essential
requisites of marriage. Hence, there is no bigamous marriage to speak of.
12. S was married to C, during the subsistence of their marriage S was about to contract a
second marriage to B. In order to avoid lining up in the civil registry, they executed an affidavit of
cohabitation when in truth, they were not cohabiting. Their marriage was contracted without a
marriage license. Subsequently, S filed a petition for declaration of nullity of second marriage on
the ground of lack of marriage license. During the pendency of the case, C filed a criminal case
of bigamy against S. In the criminal case, S moved for the suspension of the proceedings on the
ground that there was a prejudicial question. If you were the court, will you suspend the
proceedings?
ANSWER: No, there’s no prejudicial question. In the case of Santiago v. People, Here, the
cause of action of petitioner, meaning her affirmative defense in this criminal case of bigamy, is
that her marriage with Santos was void for having been secured without a marriage license. But
as elucidated earlier, they themselves perpetrated a false Certificate of Marriage by
misrepresenting that they were exempted from the license requirement based on their
fabricated claim that they had already cohabited as husband and wife for at least five years prior
their marriage. In violation of our law against illegal marriages, petitioner married Santos while
knowing fully well that they had not yet complied with the five-year cohabitation requirement
under Article 34 of the Family Code. Consequently, it will be the height of absurdity for this
Court to allow petitioner to use her illegal act to escape criminal conviction.
13. S is married to C. S contracted another marriage with B. After that, S filed a petition to
declare the second marriage void on the ground of psychological incapacity. Subsequently, C
filed a criminal case of bigamy. Can S moved for suspension of criminal proceedings on the
ground of prejudicial question?
ANSWER: No, there’s no prejudicial question. There’s conviction, because the elements of
bigamy is present. One of the element, the requirement that the second marriage had been
valid had it not been for the presence of the first marriage. If second marriage is void for reason
other than the existence of first, that is a defense in bigamy. Like in the Case of Go-Bangayan v.
Bangayan, People v. Lara, except in cases where there’s falsification, since it is a mockery of
the sanctity of marriage (case of Santiago v. People).
In the case of Tenebro v. CA – although the marriage is declared null and void because of
psychological incapacity, not all the effects are wiped out, it may still produce legal
consequences including criminal liability for bigamy.
14. B was married to S. during the subsistence of B’s marriage to S. B contracted another
marriage to A. After that, B filed a petition to declare your second marriage to A as void on the
ground that it was bigamous. Prosecution then filed a criminal action of bigamy against B.
During the pendency of the case, B moved for the suspension of the proceedings on the ground
that there was a prejudicial question, the pendency of the civil case. Is there a prejudicial
question?
ANSWER: None, because the resolution of the civil case will not affect the decision in the
criminal case. The accused shall be convicted, because all that is required for the charge of
bigamy to prosper is that the first marriage be subsisting at the time the second marriage is
contracted. He who contracts a second marriage before the judicial declaration of the first
marriage assumes the risk of being prosecuted for bigamy.
In the case of Capili v. People, When Capili married Tismo, all the above elements are present.
The crime of bigamy was already consummated. It is already immaterial if the second (or first
marriage, see Mercado vs Tan) was subsequently declared void. The outcome of the civil case
filed by Karla Medina had no bearing to the determination of Capili’s guilt or innocence in the
bigamy case because all that is required for the charge of bigamy to prosper is that the first
marriage be subsisting at the time the second marriage is contracted. He who contracts a
second marriage before the judicial declaration of the first marriage assumes the risk of being
prosecuted for bigamy.
The Supreme Court also notes that even if a party has reason to believe that his first marriage is
void, he cannot simply contract a second marriage without having such first marriage be
judicially declared as void. The parties to the marriage should not be permitted to judge for
themselves its nullity, for the same must be submitted to the judgment of competent courts and
only when the nullity of the marriage is so declared can it be held as void, and so long as there
is no such declaration the presumption is that the marriage exists.
15. a fetus of 6 months old inside the womb of D, does it possess a civil personality? Is it a
person in the eyes of the law?
ANSWER: Yes, under the law, the fetus has conditional personality. Conditional personality,
since it is essentially limited, because it is only for purposes favorable to the child; and it
depends upon the child being born alive later.
16. V and D met each other in the law school, they became sweethearts, in the course of their
relationship, D got pregnant, when the fetus was 4 months old, V made a donation of House
and lot in favor of the fetus. Is that donation valid?
ANSWER: Yes, because the fetus has provisional and limited, personality which gives her the
right to be a done of simple donations. Page 122, PAFR, Rabuya.
17. What if that donation is an onerous one, will there be a valid donation?
ANSWER: No, that’s not a valid donation; donation can only be a simple donation. In onerous
donation, there’s no done. If the donation is onerous, it is not favorable to the fetus.
Limited personality – fetus has personality only for purposed favorable to the fetus.
18. A simple donation made at the time the fetus was still on the womb, is the donation valid?
Yes
But later on, D was forced to deliver the fetus during the 6th month of the pregnancy, when the
fetus was delivered the fetus was alive for 12 hours but after 12 hours, the infant died. What will
happen to the donation that was made by the father in favor of the infant?
ANSWER: The donation is invalid. To be born alive the following must be considered: 1.) When
the child is alive even only for a few hours, if it had an intra-uterine life of at least 7 months. 2.)
When the child is alive for at least 24 hours, if it had an intra-uterine life of less than 7 months.
Otherwise, it did not acquire civil personality.
19. What are the rights that the fetus may acquire?
ANSWER: a) the right to be a done of simple donations but acceptance shall be made by
persons who would legally represent him if he were already born; b) the right to receive support
from his progenitors; and c) he may not be ignored by his parents in their testament; otherwise,
it may result in preterition of a forced heir that annuls the institution of the testamentary heir,
even if such child should be born after the death of the testator. Page 122, PAFR, Rabuya
20. Father and Son boarded a ship which capsized and sank. Nothing was heard about the
passengers and the crews. Both father and son are married, Father is married to B and the Son
is married to D. The father is rich and the son is poor. D consulted Atty. V, if she can inherit
some of the properties by reason of succession?
ANSWER: No, under the Civil Code, if there’s doubt as who died first and they are called to
succeed each other, whoever alleged the death of one prior to the other, shall prove the same.
In the absence of proof, they shall be presumed to have died at the same time and there is no
transmission of rights from one to the other. (Article 43 of Civil Code), Pages 32-33, Civil Law
Reviewer, Rabuya.
21. Prior to the death of the father, the father procured an insurance policy naming the child as
one of his beneficiaries aside from the mother, with the provision that 50% of the proceeds will
go to the wife and the other will go to the child. Father and Son boarded a ship which capsized
and sank. Nothing was heard about the passengers and the crews.at that time the father was 65
and the son was 25. D again consulted her lawyer, and asked if she can get the proceeds of the
insurance policy. Can she get the proceeds?
ANSWER: In Rule 131, Section 3,, when there’s no question of succession or when the persons
involved are not called to succeed each other such rule shall apply.
1. If both under 15, older is deemed the survivor.
2. If both above 60 younger is deemed the survivor.
3. If one is under 15 and the other is above 60, the former is deemed the survivor.
4. IF both over 15 but under 60 and sex is different, the male is deemed the survivor; and
5. If one is under 15 or over 60 and the other between those ages, the latter is deemed the
survivor. Pages 32-33, Civil Law Reviewer, Rabuya.
In the case, the son is deemed the survivor under number 5 of the rules. Hence, D can get the
proceeds of the insurance policy.
22. 6 months old fetus, D was forced to deliver the fetus and upon delivery, the infant was no
longer breathing. Can a person contend that that fetus did not die, because in order to die, it
must first acquire civil personality?
ANSWER: No, in the case of Continental Steel Manufacturing Corp v. Montano, Death is
defined as “cessation of life”. Certainly, a child in the womb has life. There is no need to discuss
whether or not the unborn child acquired juridical personality – that is not the issue here. But
nevertheless, life should not be equated to civil personality. Moreover, while the Civil Code
expressly provides that civil personality may be extinguished by death, it does not explicitly
state that only those who have acquired juridical personality could die. In this case,
Hortillano’s fetus had had life inside the womb as evidenced by the fact that it clung to life for 38
weeks before the unfortunate miscarriage. Thus, death occurred on a dependent hence
Hortillano as an employee is entitled to death benefit claims as provided for in their CBA.
23. V is married to D. V had collective bargaining agreement with the employed, with provision
that upon death of a legitimate dependent, the union member is entitled to certain financial
benefits aside from non-financial benefit such as leave benefits. It so happened that D is
pregnant, during 6 months pregnancy, she was forced to deliver and the child was no longer
breathing upon delivery. V then filed death benefits claim from his employer which was denied
alleging that the provision of CBA did not come to operation since there’s no death that
happened based on the Civil Code provisions and that there’s no proof of the fetus being a
legitimate dependent. Rule on the contention of the employer.
ANSWER: Untenable, The provisions of Civil Code, Article 37, 40, 41 and 42 are not applicable
since it is only applicable in the issue of the rights and obligations of the fetus. In this case, the
right of the father is in question.
On the contention of legitimacy of the child, it is also untenable, because under the Family
Code, Children conceived or born during the marriage of parents are legitimate.
In the case of Continental Steel Manufacturing Corp v. Montano the fact of marriage
between Hortillano and his wife was never put in question, hence they are presumed to be
married. Second, children conceived or born during the marriage of the parents are legitimate.
Hence, the unborn child (fetus) is already a legitimate dependent the moment it was conceived
(meeting of the sperm and egg cell).
24. What are the requisites of a valid marriage?
ANSWER: Under Article 2 of the Family Code, the essential requisites are: 1. Legal Capacity
and 2. Consent. While under Article 3 of the Family Code, the formal requisites ate: 1.
Authority of the solemnizing officer; 2. Valid marriage license; and 3. Marriage ceremony;
25. What are the effect of absence of any of the requisites:
ANSWER: In the absence of any of the essential requisites – the marriage is VOID. (Article 4
of FC)
In the absence of any of the formal requisites – marriage is VOID EXCEPT 1. Even if the
solemnizing officer has no authority, the marriage is still valid if either or both parties believed in
good faith that the solemnizing officer had the legal capacity to do so.
Defect in consent – Marriage is voidable
Irregularity in any of the formal requisites – does not affect the validity of marriage but the party
responsible for the irregularity shall be civilly, criminally and administratively liable.
26. V and D got married before a notary public, because they believed that notary public has
authority to solemnize marriage, is the marriage valid?
ANSWER: No, the good faith must be based on mistake of facts and not mistake of law
because ignorance of the law excuses no one from compliance therewith. Page 56, PAFR,
Rabuya
He requested President Duterte to solemnize the marriage, is the marriage valid?
ANSWER: No, the good faith must be based on mistake of facts and not mistake of law
because ignorance of the law excuses no one from compliance therewith. Page 56, PAFR,
Rabuya
27. The parties went to a priest and the priest solemnized their marriage. The problem was the
priest was never given written authority by their church to solemnize a marriage, there was no
authority registered in the Civil Registrar General. Is the marriage of the parties void?
ANSWER: Yes, if they believe in good faith
28. The parties are both members of the Roman Catholic church, they went before a Christian
minister, whom they know that is not a roman catholic member. Is the marriage valid?
ANSWER: Void, because the law requires that one of the parties in a marriage belongs to
solemnizing officer’s church or sect. (Article 7 of the Family Code) They cannot invoke good
faith since it is not a mistake of fact.
29. What is the effect of a defect of any of the essential requisites? Example where legal
capacity is defective?
ANSWER: The effect in the marriage is voidable. Example is a defect in consent, if one party is
below 21 and the marriage has no parental authority or if consent was given to unsound mind at
the time of celebration of marriage or if consent was given but it was vitiated by fraud, force,
intimidation or undue influence – there is a defect in consent.
Civil Law Review – 3rd Meeting - January 29, 2017
1. X got married to an American for a purpose of securing an American citizenship, after the
marriage X filed a petition to declare a marriage void on the ground that it is a marriage in jest,
she claimed that there’s no real consent that was given. Is the contention tenable?
ANSWER: No, in the case of Republic v. Albios, consent was not lacking between Albios and
Fringer. In fact, there was real consent because it was not vitiated nor rendered defective by
any vice of consent. Their consent was also conscious and intelligent as they understood the
nature and the beneficial and inconvenient consequences of their marriage, as nothing impaired
their ability to do so. Their consent was freely given is best evidence by their conscious purpose
of acquiring American citizenship through marriage.
2. How did the define marriage in the case of Ronulo v. People?
ANSWER: Ronulo v. People - Article 6 of the Family Code and particularly defines a marriage
ceremony as that which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife
in the presence of not less than two witnesses of legal age.
2. Is the requirement of witness mandatory, such as in the absence of which there is no
marriage ceremony?
ANSWER: presence of witnesses are merely directory. It bears emphasis that Article 2 (2) of
the Family Code categorically states that the consent must be given “in the presence of the
solemnizing officer” only.
3. Who are the persons authorized to solemnized marriages in articulo mortis?
ANSWER: under Article 31 and 32, ship captain or pilot, between passengers or crew members
and a military commander between persons within the zone of military operation
How about the Mayor?
No
4. What are the marriages that do not require a marriage license?
ANSWER:
1. In case either both of the contracting parties are at the point of death;
2. If the residence of either party is so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar;
3. Marriages among Muslims or among members of ethnic communities, provided these are
solemnized in accordance with their customs, rites or practices
4. Ratification of marital cohabitation between a man and a woman who have lived together as
husband and wife for at least 5 years and without any legal impediment to marry each other.
Page 148, PAFR, Rabuya
5. In order for a marriage among Muslims exempt from marriage license, what is required?
ANSWER: Under Article 33 of the Family Code, such marriages are solemnized in accordance
with their customs, rites or practices
6. In ratification of marital cohabitation, what if the marriage was celebrated in the absence of an
affidavit of cohabitation, will the marriage be void?
ANSWER: Yes, in this kind of marriage, the parties must execute an affidavit stating that they
have lived together for at least five years. Article 34 of the Family Code, Page 194, PAFR,
Rabuya. The fact of not having an affidavit if as if not having a marriage license.
7. If the marriage under article 34 is to be solemnized by a judge, may the same judge who is to
solemnize the marriage, be allowed to notarize the affidavit of cohabitation of the parties?
ANSWER: Yes, the solemnizing officer must ascertain the qualifications of the parties and that
he had found no legal impediment to their marriage. Article 34 of the Family Code, Page 194,
PAFR, Rabuya.
8. What if, during the first three years of the parties cohabitation, one of them is still married to
someone else, on the 5th year of their cohabitation, the spouse of the other party died. So on the
6th year they contracted a marriage license without a marriage license on the strength of their
affidavit of cohabitation stating that they had been cohabiting as husband and wife for atleast 5
years. Is the marriage valid?
ANSWER: No, the marriage is not valid, during the cohabitation; the parties must have no legal
impediment to marry each other.
8. But in the case of Borja-Manzano v. Manzano, it appears that the requirement of the absence
of legal impediment is required only at the time of marriage, What is your take on that?
ANSWER: You should not follow the case of Borja. Since this is against the State’s policies on
marriage. The inclusion in Article 34 of the phrase “and without any legal impediment to marry
each other”, is intended to qualify the clause “who lived together as husband and wife for at
least five years”. Meaning the present law now clarifies that the five-year period of cohabitation
must be free from any legal impediment. Page 195, PAFR, Rabuya
9. What if the parties made it clear that they had been cohabiting for 5 years and they executed
an affidavit of cohabitation but in truth they fell short to the 5-year period required by law. Can
they later on say that they have falsified their affidavit of cohabitation and that therefore they did
not comply with Article 34 and therefore their marriage is void?
ANSWER: Yes, in the case of De Castro v. De Castro, Under the Family Code, the absence of
any of the essential or formal requisites shall render the marriage void ab initio, whereas a
defect in any of the essential requisites shall render the marriage voidable. In the instant case, it
is clear from the evidence presented that petitioner and respondent did not have a marriage
license when they contracted their marriage. Instead, they presented an affidavit stating that
they had been living together for more than five years. However, respondent herself in effect
admitted the falsity of the affidavit when she was asked during cross-examination. The falsity
of the affidavit cannot be considered as a mere irregularity in the formal requisites of
marriage. The law dispenses with the marriage license requirement for a man and a woman
who have lived together and exclusively with each other as husband and wife for a continuous
and unbroken period of at least five years before the marriage. The aim of this provision is to
avoid exposing the parties to humiliation, shame and embarrassment concomitant with the
scandalous cohabitation of persons outside a valid marriage due to the publication of every
applicant’s name for a marriage license. In the instant case, there was no "scandalous
cohabitation" to protect; in fact, there was no cohabitation at all. The false affidavit which
petitioner and respondent executed so they could push through with the marriage has no value
whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license
requirement. Their failure to obtain and present a marriage license renders their marriage void
ab initio.
10. In what civil registry in particular supposed to get marriage license?
ANSWER: It must be issued by the LCR or the city of municipality where either of the
contracting party habitually resides. Page 169, PAFR, Rabuya
11. What if the marriage license was obtained somewhere else? Will that affect the validity of
the marriage?
ANSWER: No, the validity of marriage is not affected since this is a mere irregularity of the said
license. Note that a marriage icense so issued shall be valid in any part of the Philippines. Page
170, PAFR, Rabuya
12. How long is the effectivity of marriage license?
ANSWER: 120 days
Can the LCR extend the validity of the marriage license?
ANSWER: No, it is effective only for a period of 120 days counted from the date of issue and
the same shall be deemed automatically cancelled at the expiration of said period. Page 154,
PAFR, Rabuya
13. If an RTC Judge of Manila will solemnize a marriage in Laguna, will that marriage be valid?
ANSWER: No, if a marriage is solemnized by a Judges outside of their jurisdiction, there is an
absence of a formal requisite in such marriage, namely the authority of the solemnizing officer.
(Article 7 (1) of the Family Code)
The case of Navarro vs. Dumagtoy, when the court declared that it is a mere irregularity, it did
not set a binding precedent since it is only an administrative case.
14. Assuming that the parties are aware that they are getting married before a judge of manila,
but they are also aware that the marriage will be solemnized in Laguna. Can they invoke good
faith?
ANSWER: No, since there’s no mistake of fact but a mistake of law.
15. What ate the documentary evidence that is required for the issuance of a marriage licence?
ANSWER:
a.) Birth Certificate of Baptismal Certificate
b.) Death certificate of the spouse, divorce decree, etc.
c.) Parental Consent
d.) Parental Advice
e.) Certificate of marriage counseling
f.) Certificate of Legal Capacity
16. Birth Certificate, when are the parties excused from presenting the birth certificate?
ANSWER: If the parents of the contracting parties appear personally before the local civil
registrar concerned and swear to the correctness of the lawful age of said parties, as stated in
the application, or when the civil registrar shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either or both of them have the required
age. Page 174, PAFR, Rabuya
17. When is parental consent required to be submitted?
ANSWER: If either of the contracting parties are 18 but below 21. Page 174, PAFR, Rabuya
18. If the marriage license was issued in the absence of parental consent, what is the status of
marriage?
ANSWER: If the marriage license is issued notwithstanding the absence of such parental
consent, the same shall not affect the validity of the license so issued. Page 176, PAFR,
Rabuya
19. Who are required to give parental consent?
ANSWER: Article 14 of the Family Code, the consent of the marriage of the father, mother,
surviving parent or guardian or person having legal charge of them, in the order mentioned shall
be given.
20. When is parental advice required?
ANSWER: IT is required when any of the contracting party is between the age of 21 and 25.
Page 176, PAFR, Rabuya
21. What is the effect of the absence of parental advice?
ANSWER: The marriage license shall not be issued till after three months following the
completion of the publication of the application thereof. Page 176, PAFR, Rabuya
22. What if the LCRR did not wait for three months. It immediately issued the license after
expiration of the period of publication, will that affect the validity of marriage?
ANSWER: No, it is considered as a mere irregularity and shall not affect the validity of the
marriage. Page 176, PAFR, Rabuya
23. How long is the publication for the issuance of the marriage license?
ANSWER: a period of 10 days.
24. May a LCR issue a license prior to the expiration of the 10-day period?
ANSWER: yes, since this is mere irregularity and will not affect the validity of the marriage
celebrated on the basis of the license so issued. Page 178, PAFR, Rabuya
25. When is Certificate of Legal Capacity required to be submitted?
ANSWER: In case where either or both of the parties are citizen of foreign country. Absence of
which is also a mere irregularity. Page 177, PAFR, Rabuya
26. What is the newest documentary evidence required in the issuance of marriage license?
ANSWER: R.A. 10854 – responsible parenthood – family planning
27. According to the case of Bayot v. Court of Appeals, what are the three basic principles in
relation to the validity of a divorce?
ANSWER:
a) Marriage is a mixed marriage
b) The one who obtained the divorce is the alien spouse
c) That the divorce capacitated the alien spouse to remarry.
28. If the applicants are foreigners, can our court issue a decree of divorce for said foreigners?
ANSWER: No, because there’s no divorce in the Philippines
29. But can our court recognize the divorce paper obtained abroad?
ANSWER: Yes, thee party invoking the decree should present the document and the law of the
country where it was obtained.
30. Was there a case where the court accepted the copy of that decree to recognize the divorce
obtained abroad?
ANSWER: Yes, in Bayot v. CA, but there’s a subsequent case ruled that the presentation of the
copy of the divorce decree is not sufficient.
30. Parties used to be a Filipino citizen at the time of celebration of marriage, later on they
migrated to another country. One of them obtained a foreign citizenship and pursuant to such
citizenship, he obtained a decree of divorce. While the woman, the one who remained a citizen
of the Philippines went back to the Philippines and got married to her former boyfriend in the
absence of judicial recognition of the validity of the foreign decree of divorce that was obtained
by the former spouse. Is the second marriage of the Filipina a valid marriage?
ANSWER: The second marriage is void since she did not first obtain a judicial recognition of the
divorce decree.
31. Is a judicial recognition of a foreign decree of absolute divorce an indispensable requirement
before a citizen of the Philippines of that mixed marriage can validly contract another marriage?
ANSWER: Yes, by analogy of Article 40 of the Family Code.
32. In a mixed marriage, it was the citizen who obtained the decree of absolute divorce abroad
and was recognized as valid in the said country. After obtaining that decree, the citizen of the
Philippines went back home and contracted another marriage. After such marriage, the citizen
of the Philippines died. She left an estate, for purposes of succession in relation to her estate
the foreign spouse went to the Philippines and claimed that he is the surviving spouse for
purposes of succession since according to him the divorce decree is not recognized as valid in
the Philippines. Is the argument of the foreigner correct, that he is the surviving spouse?
ANSWER:
33. There was a mixed marriage of Filipino citizen and foreign spouse. Foreign spouse
obtained, in 1980, a decree of absolute divorce. In said decree, the foreigner regained his
capacity to remarry. In 1981, the Filipino citizen contracted another marriage to another Filipino.
Is the second marriage valid? Can article 26 par. 2 be applied retroactively?
ANSWER: The marriage is not valid,
34. The foreign spouse obtained a decree of absolute divorce. After that, the foreigner went
back to the Philippines since he desired to remarry another Filipina citizen. Therefore he filed a
petition for judicial recognition of divorce decree based on article 26 par. 2. Can he invoke said
provision?
ANSWER: Yes, in the case of Corpuz v. Sto. Tomas, The alien spouse cannot claim under the
second paragraph of Art 26 of the Family Code because the substantive right it establishes is in
favor of the Filipino spouse. Only the Filipino spouse can invoke the second par of Art 26 of the
Family Code. The unavailability of the second paragraph of Art 26 of the Family Code to aliens
does not necessarily strip the petitioner of legal interest to petition the RTC for the recognition of
his foreign divorce decree. The petitioner, being a naturalized Canadian citizen now, is clothed
by the presumptive evidence of the authenticity of foreign divorce decree with conformity to
alien’s national law.
35. B is married to A. During the subsistence of said marriage, B is cohabiting with another
woman, O. Later on, B and O, after 3 years of cohabitation, B and O executed an affidavit of
cohabitation and for that reason they were able to contract another marriage in the absence of
marriage license. B was prosecuted with bigamy, he alleged that he cannot be convicted of said
crime since the second marriage is void for lack of marriage license and that the affidavit of
cohabitation was falsified hence not exempt from getting marriage license. Will the accused be
convicted?
ANSWER: Yes, crime of bigamy was already committed. When the second marriage was
contracted, the first marriage was not yet declared void.
36. B contracted 2nd marriage to O, but it was celebrated without a marriage license. Later on, B
was prosecuted of Bigamy. Will the accused be convicted?
ANSWER: No, because for bigamy to attach, the second or subsequent marriage has all the
essential requisites for validity. In this case, the second marriage is void, since there’s an
absence of marriage license.
37. B is married to A, B contracted second marriage. The second marriage was celebrated
without marriage license since they made it appeared that they have been cohabiting for at least
5 years. But in truth, they were not cohabiting since B was still married to A. B was prosecuted
for crime of bigamy. Will the accused be convicted?
ANSWER: Yes, In the case of Santiago v. People, Here, the cause of action of petitioner,
meaning her affirmative defense in this criminal case of bigamy, is that her marriage with Santos
was void for having been secured without a marriage license. But as elucidated earlier, they
themselves perpetrated a false Certificate of Marriage by misrepresenting that they were
exempted from the license requirement based on their fabricated claim that they had already
cohabited as husband and wife for at least five years prior their marriage. In violation of our law
against illegal marriages, petitioner married Santos while knowing fully well that they had not yet
complied with the five-year cohabitation requirement under Article 34 of the Family Code.
Consequently, it will be the height of absurdity for this Court to allow petitioner to use her illegal
act to escape criminal conviction.
38. B is married to A. B contracted second marriage, later on said marriage was declared nullity
on the ground of Article 36. Even when the second marriage was declared void, A field a case
of bigamy against B. Will the accused be convicted?
ANSWER: Yes, In the case of Tenebro v. CA – although the marriage is declared null and void
because of psychological incapacity, not all the effects are wiped out, it may still produce legal
consequences including criminal liability for bigamy.
39. Who can file a petition for declaration of nullity of marriage? Who has the personality?
ANSWER: The husband or the wife under A.M. No. 02-11-10-SC.
40. May the brother of one of the parties, be allowed to file a petition to declare the marriage of
his brother to the sister-in-law void?
ANSWER: It depends, if the marriage was celebrated under the effectivity of the family code of
under the family code but before March 15, 2003, the brother can file said petition. However,
those marriage under the family code and during the effectivity of A.M. 02-11-10-SC, he cannot
file said petition. What he can do is to collaterally attack the marriage in the estate proceedings
of the deceased spouse.
41. If the marriage that will be the subject matter of the petition was contracted after the
effectivity of the family code. May the petition of the nullity of marriage be filed after the death of
one spouse?
ANSWER: No, since under the A.M. No. 02-11-10-SC only allow them to file said petition during
their lifetime.
42. N was married to R. N contracted another marriage to B, do R have a personality to file the
declaration of nullity of marriage of N to B?
ANSWER: Yes, in the case of Fujiki v. Marinay, the husband and wife referring in A.M. No. 0211-10-SC refers to the parties in the first marriage and not on the second marriage.
43. What is the coverage of A.M. No. 02-11-10-SC?
ANSWER: This rule apply, Carlos v. Sandoval, the following actions for declaration of absolute
nullity of a marriage are exempted from the limitation, to wit:
1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and
2. Those filed vis-a-vis marriages celebrated during the effectivity of the Civil Code and, those
celebrated under the regime of the Family Code prior to March 15, 2003.
44. The marriages that commenced under the Civil Code and those not covered by the A.M. No.
02-11-10-SC, who shall be the party to file the case of declaration of nullity of marriage?
ANSWER: Any party in interest may file the petition, such as the heirs of either of the party.
Party in interest – Real and material interest.
in Niñal v. Bayadog, 384 Phil. 661 (2000), the Court held that the children have the personality
to file the petition to declare the nullity of marriage of their deceased father to their stepmother
as it affects their successional rights.
45. Does the ruling in Ninal v. Bayadog has continuing applicability notwithstanding of the
issuance of the Supreme Court of the A.M. No. 02-11-10-SC?
ANSWER: No, since said administrative memorandum prohibits them to file petition for
declaration of nullity. However, they are not left with no recourse, they can collaterally attack the
marriage in the proceeding on the estate of the deceased.
46. If the marriage is governed by A.M. No. 02-11-10-SC after the death of one of the spouses
and the marriage is indeed void ab initio. How may a validity of marriage be questioned?
ANSWER: Through the estate settlement proceeding of the deceased spouse. Collaterally
attacking the marriage.
47. B is scheduled to marry S and for that purpose B went to Civil Registry to secure a
CENOMAR but to her surprise, she was shown a copy of a marriage contact where she
appeared to be married to a Korean national. B has no knowledge of that marriage and she
contracted the marriage to S without securing the judicial declaration of nullity of marriage. Later
on, B was prosecuted of the crime of bigamy. Can she be convicted?
ANSWER: No, the accused shall be acquitted, even if she did not comply with Article 40 of the
Family Code. S was not the person in the first marriage, there was no marriage to speak, there
was no valid and subsisting marriage of hence there’s no need to file a petition for declaration of
nullity of marriage.
People vs Olaybar, Respondent requested from the National Statistics Office (NSO) a
Certificate of No Marriage (CENOMAR) as one of the requirements for her marriage with her
boyfriend of five years. Upon receipt thereof, she discovered that she was already married to a
certain Ye Son Sune, a Korean National. The SC held that the proper remedy of the person is
to file a correction/cancellation of her civil status in the civil registrar.
What if B indeed contracted the marriage with the Korean national but without a marriage
license and without securing of judicial declaration of nullity of marriage to the Korean. B
contracted marriage to S. What is the status of the second marriage?
ANSWER: Bigamous marriage
48. M was married to S and subsequently, M learned that S contracted another marriage with B
and that S had a child with B who was declared in the birth certificate as a legitimated child by
reason of B’s marriage to S. Upon learning, M filed for a correction of entries in the birth
certificate of the child of S and B on the ground that the child must be declared illegitimate
because S and B’s marriage is a bigamous marriage and likewise praying for the declaration of
the nullity of marriage of S and B. May that petition with prayer for change of status of child and
nullity of marriage as void prosper?
ANSWER: No, Rule 108 of the Rules of Court vis-a-vis Article 412 of the Civil Code charts the
procedure by which an entry in the civil registry may be cancelled or corrected. The proceeding
contemplated therein may generally be used only to correct clerical, spelling, typographical and
other innocuous errors in the civil registry. A clerical error is one which is visible to the eyes or
obvious to the understanding; an error made by a clerk or a transcriber; a mistake in copying or
writing, or a harmless change such as a correction of name that is clearly misspelled or of a
misstatement of the occupation of the parent. Substantial or contentious alterations may be
allowed only in adversarial proceedings, in which all interested parties are impleaded and due
process is properly observed.
The petitioners’ cause of action is actually to seek the declaration of Pablo and Lucille’s
marriage as void for being bigamous and impugn Patrick’s legitimacy, which causes of action
are governed not by Rule 108 but by A.M. No. 02-11-10-SC which took effect on March 15,
2003, and Art. 171 of the Family Code, respectively; hence, the petition should be filed in a
Family Court as expressly provided in said Code. It is well to emphasize that, doctrinally, validity
of marriages as well as legitimacy and filiation can be questioned only in a direct action
seasonably filed by the proper party, and not through collateral attack such as the petition filed
before the court a quo. (Braza vs. Civil Registrar of Negros Occidental, G.R. No. 181174,
December 4, 2009)
49. What is the difference of Republic v. Olaybar and Braza case?
ANSWER:
50. Difference of Bigamous marriage under article 40 and under article 35 (4)?
ANSWER: Article 40 should refer to situations where the prior marriage is itself void but a party
thereto did not secure a judicial declaration of nullity of the prior marriage before contracting a
subsequent marriage. In such situation, the subsequent marriage is also void because of failure
to comply with article 40 of the FC.
If the prior marriage is perfectly valid, or at least voidable, and a party thereto contracts another
marriage prior to its termination, the subsequent marriage is void for being bigamous pursuant
to Article 35(4) of the FC.
51. Can you apply
code?
ANSWER: Yes, in
Brillantes, Jr., the
procedure, should
article 40 retroactively, to second marriages contracted prior to the family
the case of Montanez vs Cipriano, As far back as 1995, in Atienza v.
Court already made the declaration that Article 40, which is a rule of
be applied retroactively because Article 256 of the Family Code itself
provides that said "Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights." The Court went on to explain, thus: “The fact that procedural statutes
may somehow affect the litigants' rights may not preclude their retroactive application to
pending actions. The retroactive application of procedural laws is not violative of any right of a
person who may feel that he is adversely affected. The reason is that as a general rule, no
vested right may attach to, nor arise from, procedural laws.” and in the case of Jarillo v.
People, a motion of reconsideration case, which was denied by the SC. Court made the
declaration that Article 40, which is a rule of procedure, should be applied retroactively because
Article 256 of the Family Code itself provides that said "Code shall have retroactive effect
insofar as it does not prejudice or impair vested or acquired rights.
Court clarified in Apiag v. Cantero and Ty v. Court of Appeals, the requirement of a judicial
decree of nullity does not apply to marriages that were celebrated before the effectivity of the
Family Code, particularly if the children of the parties were born while the Civil Code was in
force. In Ty, this Court clarified that those cases continue to be governed by Odayat, Mendoza,
and Aragon, which embodied the then-prevailing rule:
x x x. In Apiag v. Cantero, (1997) the first wife charged a municipal trial judge of immorality for
entering into a second marriage. The judge claimed that his first marriage was void since he
was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of
the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second
marriage took place and all the children thereunder were born before the promulgation of
Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of nullity
of the first marriage pursuant to prevailing jurisprudence at that time. In this case, the Judge
was not held guilty since article 40 cannot be applied retroactively since it is prejudicial to the
status of marriage.
52. There are 2 marriage, the 1st marriage celebrated without a marriage license in 1983, the
second marriage was celebrated in 1986 and without securing a petition for declaration of nullity
of the first marriage. What is the status of second marriage?
ANSWER: The second marriage is void since the second marriage was contracted after the
promulgation of Wiegel v. Sempio-Dy which requires a judicial declaration of nullity of void
marriage
52. What is the case which is the source of Article 40?
ANSWER: In the case of Wiegel v. Sempio-Diy (August 19, 1986 case), the Court held that
there is a need for a judicial declaration of nullity of void marriage. In wiegel, Lilia married
Maxion in 1972. In 1978, she married another man Wiegel. Wiegel filed a petition with the JDRC
to declare his marriage to Lilia as void on the ground of her previous valid marriage. Page 253,
PAFR, Rabuya
Prior to Wiegel case, like in the ruling of Odayat, Aragon case, no judicial declaration of nullity
is necessary.
If the marriage occurred during the effectivity of the Family Code, apply article 40.
If prior to the effectivity of the Family Code, check if it was after the promulgation of Wiegel v.
Sempio-Diy case same rule applies.
If second marriage if contracted prior to 19 August 1986, the Odayat rule will apply in which
case no judicial declaration is necessary. (Asked in the Bar)
53. In 1983 S contracted a first marriage without a marriage license. In 1985 he contracted a
second marriage without declaration of nullity of marriage of the first. In 2016, a case of bigamy
was filed against S. Does the crime of bigamy already prescribed even if it was only in 2016 that
was discovered that there are two marriages?
ANSWER: No, the cases of Jarillo v. People and Montanez v. Cipriano will apply. Article 40 will
be applied retroactively in a criminal case.
Constructive notice - The crime of bigamy prescribes in 15 years. The prescriptive period for the
crime of bigamy should be counted only from the day on which the said crime was discovered
by the offended party, the authorities or their agents, as opposed to being counted from the date
of registration of the bigamous marriage. Her defense is therefore ineffectual. (Sermonia vs.
CA, 233 SCRA 151)
There’s a contradicting ruling in Apiag and Jarillo case.
In the case of Apiag was simply the administrative liability of the Judge, in Ty is simply the
validity of the marriage, in this cases article 40 cannot be applied retroactively since it will
prejudice the children and the status of the marriage. But in the criminal case of bigamy, the
Supreme Court ruled that Article 40 is a mere rule of procedure, thus it can be applied
retroactively.
So, in the bar, if the question pertains to administrative, do not apply retroactively. If the
question is about a criminal liability of the accused, there is no prejudice. Hence, apply
Article 40 retroactively.
Civil Law Review – 4th Meeting - February 12, 2017
1. Because the wife of O had been missing for almost 12 years. O has a well-founded belief that
the wife is already dead and he exerted diligent effort in locating the whereabouts of the wife,
but there’s no information on such matter. In 1986, O contracted another marriage without
securing a judicial declaration of presumptive death. In 1989, the first wife of O reappeared and
notified O of her reappearance. Upon seeing the first wife, O suffered a heart attack. Prior to O
suffering from heart attack, in 1989 the first wife filed his affidavit of reappearance. In relation to
the estate of O, there are two wives claiming for the estate. Who should be the surviving
spouse?
ANSWER:
2. What if, the second marriage was contracted in 1989 without securing the declaration of
presumptive death of the previous wife. What is the status of the second marriage?
ANSWER: void marriage for being bigamous since under article 4, For the purpose of
contracting the subsequent marriage under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of the absent spouse.
3. Can the accused put up a defense that article 41 of the Family Code should produce only civil
effects but will not make him criminally liable for bigamy?
ANSWER: In one case, the crime of bigamy was committed. Article 41 of the family code only
seeks to clarify confusion in the previous decision of the court and does not seek to modify the
provision of the RPC. It was there to clarify and harmonize the civil code provisions of Civil
Code and the RPC.IT sets a rule in determining when a marriage can be considered void.
4. If prior spouse had been absent and believed to be dead in order for the spouse present to be
able to contract another marriage, what are the requirements during the effectivity of the Family
Code?
ANSWER:
a) That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid in Article 391, Civil Code
b) That the present spouse wishes to remarry;
c) That the present spouse has a well-founded belief that the absentee spouse is dead; and
d) That the present spouse files a summary proceeding for the declaration of presumptive death
of the absentee. Page 284, PAFR, Rabuya
For purposes of opening the absentee’s succession
Judicial declaration of presumptive death ONLY for purposes of REMARRIAGE without Article
41 of Family Code, the consistent ruling is that a Judicial Declaration of Presumptive Death
under the provisions of Article 390 and 391 of the Civil Code because it is the law itself provides
for that presumption.
The law presumes death if those period in Article 390 and 391 was met.
For all other purposes – there’s no need for judicial declaration of presumptive death since the
law presumes death. – BAR MATTER
5. In 1989, after securing a Judicial Declaration of Presumptive Death of the absentee spouse,
the spouse present contracted another marriage. If all the requirements of the Family Code are
present in contracting the second marriage, what is the status of the second marriage under the
provision of the second marriage?
ANSWER: the second marriage is valid
6. How may it be terminated? Will the mere reappearance terminate the second marriage?
ANSWER: The mere reappearance of the absentee spouse does not terminate the subsequent
marriage. The second marriage is terminated upon the recording of the affidavit of
reappearance of the absentee spouse in the civil registry of the residence of the parties to the
subsequent marriage which results to the automatic termination of the subsequent marriage.
Page 288, PARF, Rabuya
7. In 1989, a second marriage was contracted with all the requirements of the family code. In
1990, the former wife reappeared and went to see the contracting parties of the second
marriage and after seeing the absentee spouse; the spouse present suffered a heart attack and
died. Who is considered the surviving spouse for purposes of succession?
ANSWER: The second wife will be considered the surviving spouse since the absentee spouse
did not cause the recording of the affidavit of reappearance in the civil registry.
8. Who can file the affidavit of reappearance?
ANSWER: In article 42 of the Family Code, affidavit of reappearance may be executed and
filed by any “interested person” and not only by the reappearing spouse. Obviously, the parties
to the previous and subsequent marriages may qualify as an interested person for purposes of
filing the affidavit of reappearance. The second spouse may cause the automatic termination of
his or her marriage without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed. Page 288, PARF, Rabuya
9. In 1989, the second marriage was contracted by the spouse present after serving all the
requirements of the Family Code. In 1990 the absentee spouse reappeared. Upon
reappearance of the first wife, the second spouse saw her. The 2nd spouse immediately went to
Civil Registry and filed for the affidavit of reappearance of the first wife. One week after filing
such affidavit, she contracted another marriage after getting a marriage license.IS the second
marriage of the second spouse valid?
ANSWER: Yes, since the recording of the affidavit of reappearance automatically terminates
the marriage without need of judicial intervention. Page 288, PARF, Rabuya
10. For subsequent marriages contracted pursuant of the provisions of Article 41. Is filing oa the
affidavit of reappearance the only way to terminate the second marriage contracted under the
provisions of Article 41 of the Family Code?
ANSWER: No, The remedy provided for in the family code is not exclusive. One of the remedies
is by going to court and ask for judicial declaration of the dissolution of the second marriage as
provided for by the Supreme Court in the case of SSS vs Vda. De baylon.
11. P had been living with his wife in Quezon City but one day, in the year 2011, P without
informing his wife the reason for living, he left the conjugal dwelling and went to the province of
Tarlac and resided therein. Several months, P was able to obtain judicial declaration of
presumptive death of the wife of which P is aware that the wife is alive and in Quezon City. P
contracted another marriage to another woman who is not aware that the first wife is alive.
When the 1st wife acquired knowledge that P contracted another marriage, she went to a lawyer
and ask for legal advice as to what she will do in relation to the second marriage. What will be
your advice?
ANSWER: The remedy of the first wife to terminate the marriage is to file a declaration of nullity
of marriage of second marriage for being bigamous.
In one of the ruling of the Supreme Court, it was held that the first wife cannot file the
declaration of nullity of marriage of the second marriage on the ground of A.M. No. 02-11-10-SC
which allows only the husband and wife to file said petition. In this case Justice Leonen said that
the available remedy if Annulment of Judgment of the declaration of presumptive death of the
first spouse. – Case of Santos V. Santos (2014) penned by Justice Leonen.
The ruling is not correct since in the case of Fujiki v. Marinay (2013), the husband and wife
referring in A.M. No. 02-11-10-SC refers to the parties in the first marriage and not the parties
on the second marriage because the second marriage is void ab initio for being bigamous.
Juliano-Llave vs Republic (2011), the Supreme Court ruled that A.M. No. 02-11-10-SC
requirement does not apply to bigamy.
In Article 43, the marriage is still valid but one of them had acted in bad faith except that it is
terminated by filing of the affidavit of marriage of reappearance.
In Article 44, if both parties in the subsequent marriage had contracted the marriage in bad faith,
the marriage is void ab inito.
Republic v. Albios, motive is not taken into account so long as there’s consent freely given
there’s no problem with the marriage.
Santos v. Santos will contravene the provision of the Family Code and not supported by the
provisions of the Family Code.
12. What is the difference between a void and voidable marriage?
ANSWER:
Void – inexistent from the very beginning; IT can be collaterally attacked; A void marriage can
be questions even after the death of either party; The action or defense for the declaration of
asolute nullity of marriage is imprescriptible. Page 51-53, PAFR, Rabuya
Voidable Marriages – valid and produces all its civil effects until annulled; It cannot be attacked
collaterally; the defects of voidable marriages can be generally be ratified or confirmed by free
cohabitation or prescription; cannot be questioned after the death of either spouse; Children
born in this marriage are considered legitimate. Page 79-80, PAFR, Rabuya
13. A judgment of annulment was issued by the court pursuant to annulment filed by the wife.
Upon receiving the judgment, on the same day, they called each other to inform each other and
decided to meet for the last time. When they met, they had sexual intercourse and the judgment
became final and executor. But because of the sexual intercourse, the woman conceived. What
will be the status of the child?
ANSWER: The child is still legitimate since Article 54 of the Family Code provides that
children of voidable marriage are legitimate IF CONCEIVED OR BORN BEFORE the finality of
the judgment of annulment. Page 80, PAFR, Rabuya
14. Ground for Annulment of Voidable Marriages
ANSWER:
a) Lack of Parental Consent
Who can file the annulment: 1. By the person whose consent is required under Article 14
of the Family Code (parents), but only when the party of the marriage has not yet
reached the age of 21; or 2. By the party whose parent did not give consent, but only in
cases where such party has already reached the age of 21.
Is it susceptible to ratification: Yes, after reaching the age of 21, said party whose
parental consent is lacking, freely cohabits with the other and both lived together as
husband and wife.
Prescriptive Period: within 5 years after attaining the age of 21.
b) Insanity
Who can file the annulment: Insane spouse, during the period of lucid interval and the
sane spouse who had no knowledge of the other’s sanity. The relative, guardian or
person having legal charge of him may file an action for annulment.
Is it susceptible to ratification: It can be ratified by the insane spouse. The sane spouse
is not entitled to ratify the marriage even if he or she had no knowledge of the other’s
insanity at the time of marriage.
Prescriptive Period: Can be assailed only during the lifetime of the parties and not after
the death of either.
Prior to the sane spouse filing a petition for annulment, the insane spouse regained his sanity
and she was cured of the mental sickness and subsequently decided to freely cohabit with the
other spouse. After such decision, the sane spouse filed for an annulment. Will that case still
prosper?
ANSWER: No, Article 47(2) authorizes the sane spouse to file an action for annulment only
PRIOR to the ratification of the marriage by the insane spouse after the coming to reason.
At the time of the celebration of marriage, the bride was 18 and the parents did no gave her
consent. Prior to attaining the age of 21, the wife cohabited with the husband. Subsequently
impliedly give their consent to the marriage but prior to the wife turning 21, she left and
subsequently filed a case of annulment of their marriage on the ground of absence of parental
consent. May that petition prosper?
ANSWER: Yes, it may still prosper on the ground of lack of parental consent. The ratification,
cohabitation, is counted from the time that said spouse attained the age of 21.
c) Consent obtained through fraud
Meaning of Fraud: It constitutes the non-disclosure of previous conviction by final
judgment of other party involving moral turpitude; concealment by the wife of the fact
that at the time of their marriage, she was pregnant by a man other than her husband;
concealment of STD, regardless of its nature, existing at the time of marriage;
concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism
existing at the time of marriage.
If the ground is previous conviction by final judgment involving moral turpitude, is there a
requirement of concealment?
ANSWER: No, what is required is the NON-DISCLOSURE of the previous conviction.
When Rustom married Carmina, C though that R was a Padilla (a man) but it turned out that R
was gay and that fact was not known by C before their marriage. Is there a ground for
annulment of marriage?
ANSWER: Yes, on the ground of concealment of homosexuality.
Assuming, C had knowledge of R’s homosexuality at the time of the celebration of their
marriage. May that serve as a ground of annulment later on?
ANSWER: No, it can no longer be a ground of annulment since it must be concealed to be a
ground of annulment.
At the time of the celebration of marriage, the woman was already 4 months at the time of
celebration. May husband file a petition for annulment on the ground of concealment of the
pregnancy of the wife?
ANSWER: Yes, since at this stage of pregnancy, the enlargement of woman’s abdomen is still
not evident and may look attributable to fat formation only. Page 305, PAFR, Rabuya
Who can file the annulment: It can be filed by the injured party, the party who was not
responsible for the fraud.
Is it susceptible to ratification: Yes, if the injured party freely cohabited with the guilty
spouse after gaining full knowledge of the facts constituting fraud.
Prescriptive Period: within 5 years after the discovery of the fraud
d) Fore, Intimidation or Undue Influence
Who can file the annulment: It can be filed by the injured party, the party who was
subject to duress.
Is it susceptible to ratification: Yes, by continued cohabitation as husband and wife after
the disappearance of force, intimidation or undue influence disappeared or ceased.
Prescriptive Period: Yes, within 5 years from the time the force, intimidation or undue
influence disappeared or ceased.
e) Either party was physically incapable of consummating the marriage (impotence)
Who can file the annulment: It can be filed by the injured party, the party who was not
aware of the existence of such incapacity
Is it susceptible to ratification: Not subject to ratification by continued cohabitation as
husband and wife.
Prescriptive Period: within 5 years after the celebration of the marriage.
Who has the burden of proving, if the ground is impotency on the part of the husband?
ANSWER: The party, the wife, assailing the impotency of the husband.
EXCEPT: when the wife continued to be virgin after three years of cohabitation. The burden of
proof shifts to the husband. “DOCTRINE OF TRIENNIAL COHABITATION”
f) Either party was afflicted with STD which is serious and incurable
Who can file the annulment: It can be filed by the injured party, the party not aware of
the existence of such disease at the time of marriage.
Is it susceptible to ratification: Not subject to ratification by continued cohabitation as
husband and wife.
Prescriptive Period: within 5 years after the celebration of the marriage.
15. What is the difference between annulment and legal separation?
ANSWER: In annulment the marriage bond is severed and the cause must exist at the time of
marriage, while in Legal Separation the marital bond is not severed and the cause must exist
only after the celebration of marriage. Page 89, Civil Law Reviewer, Rabuya
16. How long is the cooling-off period of legal separation?
ANSWER: The case shall not be tried within 6 months from the filing of the petition to take steps
toward getting the parties to reconcile except in cases that the ground for the petition constitutes
violence under R.A. No. 9262. Page 365 PARF, Rabuya
There’s no cooling-off period in petition for nullity of marriage.
17. If the court issues a decree of legal separation, if the husband forces his wife to have sexual
intercourse with him. IS the husband guilty of rape?
ANSWER: Yes, since after decree of legal separation, there’s already a separation of bed and
board.
18. If the husband forces his wife to have sexual intercourse with him. Is the husband guilty of
rape even without the decree of legal separation?
ANSWER: Yes, it will still constitute a marital rape.
Civil Law Review – 5th Meeting - February 19, 2017
Donation Propter Nuptias Between the Groom and the Bride
They can donate future properties but it is considered a donation mortis causa to be
governed by the law succession requiring the formalities in the last will and testament.
Donation of Present Property
If what is to be donated by one of the future spouses in favor of the other future spouse,
as to the limitation on whether or not he can donate all of his present property, it will depend on
their subsequent property regime. If the property regime is ACP, NO LIMITATIONS, they can
donate everything that they have in favor of the other spouse, anyway the donation was made
prior to the marriage.
If the property regime is other than ACP, the law provides for a limitation that the future
spouse can only donate not more than 1/5 of his present property because in the CPG, the
property of one spouse will remain his property as exclusive property to prevent influence in
donating the present property. In excess of that limitation, the donation becomes invalid but the
donation is not invalid in its entirety, only the excess is invalid while the 1/5 is valid.
The enumeration under Art. 86 of the FC are the grounds for the revocation of propter nuptias.
The DPN is not revoked by operation of law, they are merely revocable so there must be an
action for the revocation of DPN. The law did not provide for the prescriptive period. The rules
applicable in ordinary donation will also apply in DPN. In ordinary donation if the ground is
ingratitude, the prescriptive period is one year for the filing of an action for revocation. In the CC,
there is also no prescriptive period but the SC said that the prescriptive period in ordinary
donation is 10 years if the donation is in writing whether donation of real or personal property.
(Santos vs. Alana)
PROPERTY REGIMES
1. Absolute Community
2. Conjugal Partnership of Gains
3. Complete Separation
4. Art. 147
5. Art. 148
Absolute Community is a special form of co-ownership. The provision on Co-ownership applies
suppletorily. On the other hand, the law on Partnership applies suppletorily in the regime of
Conjugal Partnership of Gains. Both property regimes commence at the precise moment of
the celebration of the marriage and any agreement to the contrary is void, whether express or
implied. Under Sec. 22 and 23 of the AM 02-11-11 or the Rule on Legal Separation promulgated
by the SC, the SC appears to be permitting the spouses upon reconciliation in legal separation
to adopt a property regime different from what they have previous to the issuance of the decree
of legal separation. The FC does not provide for the adoption of a new property regime, it only
allows for a revival of the previous property regime in case of reconciliation in legal separation.
The FC is the substantive law, AM 02-11-11 is a mere procedural law; in the event of conflict,
the substantive law prevail.
Art. 89 is applicable to CPG.
Rule: No waiver of rights, interests, shares and effects (RISE) of the ACP during the marriage.
Reason: Prior to the liquidation of the ACP, the interest of each spouse in the community
property is inchoate or a mere expectancy which does not ripen into title until it appears that
there assets in the community as a result of the liquidation and settlement. (Abalos vs.
Macatangay)
Hapitan vs Lagradilla
Sps. Lagradilla filed a case for a sum of money against Esmeralda et al. for issuing bouncing
checks. They alleged that the house and lot owned by Esmeralda and Nolan was sold to Sps
Terosa to defraud them.
Whether or not the waiver and amicable settlement made by the parties can modify the decision
of the CA.
No. Mrs. Lagradilla’ s waiver cannot cover the issue of the validity of the sale of the property to
the Sps Terosa since the property is neither a right nor a benefit she is entitled to. The
declaration of nullity due to the existence of fraud was both a finding of fact and of law by the
lower courts and the parties cannot agree amongst themselves and decide otherwise. The
compromise agreements is invalid because Sps. Lagradilla did not fully comprehend the CA
Decision in their favour thus they did not give consent to it. Also Nolan cannot waive his and
Esmeralda’s rights over the house and lot because any disposition of conjugal property
must have the written consent of the other spouse. They violated Art. 124 of the FC.
Identical Provisions in ACP and CPG
Support – Art 94 in ACP AND Art 121 in CPG
a. Support of the spouses
b. Common children
c. Legitimate children of either spouse
However, the support of illegitimate children of either spouse shall come from the exclusive
property of the illegitimate parent-spouse and, in case of absence or insufficiency of the
exclusive property of the illegitimate parent-spouse, the payment of which may be taken from
the community property and the same shall be considered as advances to be deducted from the
share of such parent upon liquidation of the absolute community. (Art. 94 par. 9 of the FC)
In CPG, under Art. 122 of the FC, the support of illegitimate children of either spouse, may be
enforced against the partnership assets after the responsibilities enumerated in the preceding
Article have been covered.
Ante-nuptial Debts (Debts incurred prior to the celebration of the marriage)
In ACP, the absolute community shall be liable only if it can be proven that such debt has
redounded to the benefit of the family. If not, it is the exclusive property of the debtor-spouse
which must respond for the payment of such debt. If the exclusive property is insufficient, the
payment of which shall be considered as advances to be deducted from the share of the debtorspouse upon liquidation of the community.
In CPG, the conjugal partnership shall be liable only after satisfying the obligations of the CPG.
Debts Contracted during the Marriage Chargeable to the ACP/CPG
a. If contracted by both spouses
b. If contracted by one spouse with the consent of the other
c. If contracted by one spouse without the consent of the other but only to the extent that
they have redounded to the benefit of the family
d. If contracted by the administrator-spouse for the benefit of the community
Debts Contracted during the Marriage Not Chargeable to the ACP but to the Separate
Property/CPG
a. By the administrator-spouse which did not benefit the community
b. By one spouse without the consent of the other which did not benefit the family
In CPG, 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. This is also
applicable in ACP.
In the cases of SEBTC vs Mar Tierra Corp and Ayala Investment and Development vs CA:
a. If the husband himself is the principal obligor in the contract, i.e the direct recipient of
the money and services to be used in or for his own business or profession, the
transaction falls within the tern “obligations for the benefit of the conjugal
partnership”.
b. 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.
Taxes and Expenses – obligations of the ACP and the CPG
In ACP, Expenses incurred on a separate property if:
a. Incurred during the marriage
b. For mere preservation
c. Property is used by the family
In CPG, Expenses incurred on a separate property if:
a. Incurred during the marriage
b. For mere preservation
Civil Liability arising from Delict or Quasi-Delict
Whether ACP or CPG, the civil liability arising from delict or quasi-delict is chargeable to his
separate property. In the regime of ACP, the spouse who committed delict or quasi-delict does
not have property, under Art 94 (9), the ACP can be compelled to advance the payment. In the
regime of CPG, that will become the obligation of CPG only if the other obligations of CPG are
first satisfied.
3 Obligations Chargeable to the Separate Property of the Spouses
a. Support of Illegitimate Children
b. Antenuptial Debts which did not redound to the benefit of the family
c. Civil liability for the commission of delict or quasi-delict
If the separate property of debtor-spouse is not sufficient, the three shall be chargeable in the
ACP/CPG. In ACP, there is no requirement that the other obligations of the ACP must be paid
first but in CPG, before those obligations can be charged in the CPG, it is necessary that the
other obligations must first be satisfied. (Dewara vs Lamela, Pana vs Heirs of Juanite Sr.,
Buado vs CA)
May the liability of one of the spouses for the commission of a crime, may that be charged to the
CPG?
Buado vs CA: No. SC pointed out the difference between ACP and CPG because there was no
showing that the other obligations have been satisfied.
Dewara vs Lamela, Pana vs Heirs of Juanite Sr.: Yes. It can be charged provided that the other
obligations of the CPG has been satisfied/covered. SAME RULINGS APPLYING ART. 122 OF
THE FC.
Ownership, Administration, Enjoyment and Disposition of the Community Property
Art. 96 -ACP
Art. 124 – CPG
Rule: Joint Administration/Management
In case of disagreement in the management or administration, the husband’s decision shall
prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed
of within 5 years from the date of the contract implementing such decision.
Persons; conjugal property. Article 160 of the New Civil Code provides, “All property of the
marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains
exclusively to the husband or to the wife.”
There is no issue with regard to the lot covered by TCT No. T-26471, which was an exclusive
property of Pedro, having been acquired by him before his marriage to Mary Ann. However, the
lot covered by TCT No. T-88674 was acquired in 1982 during the marriage of Pedro and Mary
Ann. No evidence was adduced to show that the subject property was acquired through
exchange or barter. The presumption of the conjugal nature of the property subsists in the
absence of clear, satisfactory and convincing evidence to overcome said presumption or to
prove that the subject property is exclusively owned by Pedro. Petitioners’ bare assertion would
not suffice to overcome the presumption that TCT No. T-88674, acquired during the marriage of
Pedro and Mary Ann, is conjugal. Likewise, the house built thereon is conjugal property, having
been constructed through the joint efforts of the spouses, who had even obtained a loan from
DBP to construct the house.
Significantly, a sale or encumbrance of conjugal property concluded after the effectivity of the
Family Code on August 3, 1988, is governed by Article 124 of the same Code that now treats
such a disposition to be void if done (a) without the consent of both the husband and the wife, or
(b) in case of one spouse’s inability, the authority of the court. Patronica Ravina and Wilfredo
Ravina Vs. Mary Ann P. Villa Abrille, for behalf of Ingrid D’Lyn P. Villa Abrille, et al., G.R. No.
160708, October 16, 2009.
Art. 493 Not Applicable in CPG: SC held that the rules on co-ownership, including Art. 493, do
not apply to CPG because the said property regime is a special type of partnership. Hence it is
the rules on partnership which apply suppletory to conjugal partnership of gains and not the
rules on co-ownership. (Homeowners Savings and Loan Bank vs Dailo)
Art. 493 Not also applicable in ACP: Art. 493 of the NCC does not apply pending the dissolution
and liquidation of the ACP. The right of either spouse does not vest until after the dissolution
and liquidation of the ACP, when it is finally determined that, after settlement of its obligations,
there are net assets left which can be divided between the spouses. (Abalos vs Macatangay)
In Art. 96 (2) and Art. 124 (2), if the consent is given by the offeree or there is a court
authorization, that will not amount to ratification, the contract is still void because a void contract
cannot be ratified. It means if the consent is later on given, the contract is deemed perfected
only upon such giving of the consent.
Example: Day 1- Husband mortgaged w/o the wife’s consent- VOID; nevertheless, it is a
continuing offer. Day 10- The wife later on gave her consent to the mortgage. Since this is a
continuing offer, the consent given by the wife will result in perfection of the mortgage not on
Day 1 but as of Day 10. Giving of the consent will not amount to ratification, it will not retroact in
Day 1 because a void contract cannot be ratified. The contract will be deemed ratified only on
Day 10.
Two kinds of diligence required of a buyer of a conjugal property or absolute community
property before he can successfully invoke the buyer in good faith:
1. He must be able to prove that he exercised due diligence in determining the validity of
the title
2. Diligence in ascertaining the capacity to transact of the transacting spouse in behalf of
the other spouse.
Consent under Art. 96 and Art. 124 need not be explicit.
Pana vs. Heirs of Juanite Sr. – Both the RTC and the CA took the position that such property
relation was changed to absolute community upon the effectivity of the FC considering that no
vested or acquired rights are impaired. The SC did not agree as it ruled that Art. 256 of the FC
does not intend to reach back and automatically convert into absolute community of property
relation all CPGs that existed before 1988 excepting only those prenuptial agreements.
Doctrine of Immutability of Matrimonial Property Regime
Art. 124 of the FC can also be applied to CPG already existing prior to the FC. Why?
Because the FC and the CC have different meaning with regard to the disposition or
encumbrance of the conjugal property. In CC, if the husband sold a CP property without the
consent of the wife, the sale is voidable (annullable) at the instance of the wife who did not give
consent with a prescriptive period of 10 years. In the FC, if no consent from the other spouse,
the contract is void. That provision is also applicable to CPs already existing before the FC.
If the transaction took place prior to Aug 3,1988, Art. 124 cannot be applied retroactively, that
will result into prejudice in the interest of the buyer.
If the transaction took place on August 4, 1988, Art 124 is applicable because the contract is
void without the consent of the other spouse and it is imprescriptible.
103 vs 130- Termination of Property Regime by Reason of Death
If death is the reason for the termination of property regime, there is a mandatory requirement of
liquidation within the period of 1 year from the death of the spouse. Effects if not followed:
a. Upon lapse of 1 year period and no liquidation is made, any disposition or encumbrance
involving the community property of the terminated marriage shall be void.
b. If the surviving spouse contracts another marriage without compliance with the foregoing
requirement, a mandatory regime of complete separation shall govern the property
relations of the subsequent marriage.
Property Regimes in Void Marriages
Rule: Art. 147 or Art. 148, such as the case may be. There is no ACP or CPG in a void
marriage.
Exception: If the subsequent marriage is void by reason of non-compliance with Art. 40, the
property relations of the parties to the subsequent marriage will still be ACP or CPG, as the
case may be.
Included and Excluded Properties in ACP and CPG (Refer to the Book)
Property Bought thru Installment
Requisites: a. Property is bought on installment prior to the marriage b. Paid partly from
exclusive funds and partly from conjugal funds
Rules in Determining Ownership:
a. If full ownership was vested prior to the marriage, exclusive property of the buyer
b. If full ownership was vested during the marriage, conjugal property
c. In either case, there shall be reimbursement upon liquidation of the partnership
Improvement on Separate Property
Requisites:
a. An improvement is made on a separate property of either spouse;
b. Improvement is made during the marriage
c. At the expense of the conjugal partnership or thru the acts or efforts of either or both
spouses
Rules in determining ownership:
a. If cost of improvement and any resulting increase in value are more than the value of the
property at the time of improvement, the entire property shall belong to the conjugal
partnership
b. If less than, the entire property shall belong to the owner-spouse
c. In either case, there shall be reimbursement upon the liquidation of the conjugal
partnership and ownership of the entire property shall be vested only upon
reimbursement
Reminder: The obligation to reimburse for the cost of the improvements, under Art 120 of the
FC, rests on the spouse upon whom ownership of the entire property is vested-there is no such
obligation on the part of the purchaser of the property, in case the property is sold by the ownerspouse prior to reimbursement.
Principal and interest payable in installments:
a. Sums representing installments on the principal, exclusive property of the spouse
b. But interest on the principal falling due during the marriage, conjugal property
Livestock existing at the time of the dissolution of the partnership, in excess of the number of
each kind brought to the marriage by either spouse belongs to the CPG.
Share in the hidden treasure and those acquired thru fishing or hunting shall belong to the
conjugal partnership
Civil Law Review – February 26, 2017
Property Regimes in Void Marriages (Art. 147 & 148)
Rule: Art. 147 or Art. 148 applies. There is no ACP or CPG in a void marriage.
Exception: If the subsequent marriage is void by reason of Art. 40, the property relations of the
parties to the subsequent marriage will still be absolute community or conjugal partnership of
gains as the case may be.(Valdez vs RTC and Dino vs Dino citing Art. 50 in relation to Art. 43
par. 2)
Requisites for Art. 147 to apply:
1. Must be capacitated to marry each other
2. Live exclusively with each other as husband and wife
3. Their union is without the benefit of marriage of their marriage is void
Requisites for Art. 148 to apply:
1. Must be incapacitated to marry each other or they do not live exclusively with each other
as husband and wife
2. Their union is without the benefit of marriage or their marriage is void
Wages and Salaries:
Art. 147- shall be owned by the parties in equal shares
Art. 148- belong to the earning party exclusively
Property Acquired during Cohabitation
Art. 147- those will be under the co-ownership if those acquired through their joint
efforts. A party who did not participate shall be considered as having contributed jointly if
said party’s efforts consisted in the care and maintenance of the family household.
Art. 148- there must be proof of actual contribution in the form of money, property and
industry in order that co-ownership arise
Ex. Dong met Daisy in a club. They live together while Daisy stop working. She has no money
and property. While they were cohabiting, properties were acquired. Even if registered in
the name of Daisy, co-ownership will not arise because she failed to present proof of
actual contribution in the form of money, property and industry.
Ex. Australian married to a Filipina but it is bigamous because the foreigner is previously
married in Australia. During the marriage, the couple were able to acquire house and lot
in the Phil. The two got separated. Art. 148 will not apply because there was no proof of
actual contribution on the part of the Filipina, only the foreigner contributed. The property
should belong to the Australian but there is prohibition in the Constitution that foreigner
are not allowed to acquire lands in the Phil. In that case, the foreigner had a debt to a
Filipino. He paid his debt by way of his house and lot through dacion en pago. The SC
ruled that there was no co-ownership because there was no proof of actual contribution
by the wife but taking to account the Constitutional prohibition, that provision is cured if
the property is already in the possession of the person who is qualified to acquire it
applying Art. 148.
In Art. 147, during the cohabitation, the parties are prohibited from disposing by acts inter vivos
or encumbering their respective shares in the co-owned property without the consent of
the other. After the cohabitation, the prohibition will no longer apply but instead Art. 493
will be applicable.
COMPLETE SEPARATION OF PROPERTY
a. By express declaration in the marriage settlement
b. By a judicial order
c. By failure of the surviving spouse to liquidate the ACP or CPG of a previous marriage
which has been terminated by death within the one-year period required by law prior
to contracting another marriage. The subsequent marriage is mandatorily governed
by a regime of complete separation.
Revival of Previous Property Regime
Grounds: 1. If voluntary, the parties may agree to the revival even in the absence of a
reason/ground. However, no voluntary separation may thereafter be granted.
2 If for sufficient cause, upon cessation of the ground which was the basis of the
judicial order for separation. If judicial separation is for a sufficient cause, the spouses
can again petition for judicial separation so long as there is new cause/ground.
PATERNITY AND FILIATION
Filiation- relationship of the child to the parents
2 Kinds: Natural- by means of blood relationship including the case of artificial insemination
Artificial- by adoption
Special case: Children conceived of Artificial Insemination
Whether the sperm is that of the husband or that of a donor, the child is legitimate if 1)
both the husband and the wife authorized or ratified such insemination in a written
instrument; and 2) such written instrument is executed and signed by them before the
birth of the child.
Status of Children
Art. 2035 par. 1. No compromise upon the civil status of persons shall be valid
The status of a marriage determines in large part the filiation of the resultant issue. The ff are
the rules:
a. Legitimate- conceived or born during a valid marriage
b. Illegitimate- conceived or born outside of a valid marriage but may be legitimated.
Exceptions: Children of void marriages under Art. 36 of the FC are legitimate
Children of a void marriage under Art. 53 of the FC are legitmate
For a child to be legitimated, if the parents of the illegitimate child were, at the time of the
child’s conception, not legally barred from marrying each other and subsequently do so, the
child’s filiation improves as he becomes legitimized and the legitimated child eventually enjoys
all the privileges and rights associated with legitimacy.
Presumption of Legitimacy: Under Art. 164 of the FC, a child conceived or born during a valid
marriage is presumed to be legitimate.
Impugning the Child’s Legitimacy
Who can Impugn: Husband or in exceptional cases, his heirs for the reason that he is one
directly confronted with the scandal and ridicule which the infidelity of his wife produces.
The true father cannot admit his paternity over the child. Even if the true father is admitting the
child’s paternity in the child’s birth certificate, that admission does not produce any legal effect
because it is a collateral attack against the child’s legitimacy which is not allowed under our law.
It can only be done in a direct proceeding by way of a direct action in an action to impugn the
child’s legitimacy. The biological father is not the proper person to deny the paternity of the
presumed father. That right belongs to the husband. As a consequence of that rue, the child
cannot choose his own father.
On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the
paternity of the husband who successfully defeated the presumption.
When heirs can file action to impugn (exceptional cases):
a. If husband dies before the expiration of the prescriptive period
b. If husband dies after the filing of the action without desisting therefrom
c. If child was born after the death of the husband.
Any declaration of the mother against the legitimacy of the child is not admissible as it is a
violation of Art. 167 of the FC. Art. 167 applies only to a situation where the wife denies the
paternity of the husband. It also not apply to a situation where a child is alleged not to be the
child of nature or biological child of the couple.
An action impugning legitimacy is simply an action to deny the father’s paternity over the child.
The husband is not questioning the mother’s maternity, only the husband’s paternity over the
child.
Liyao vs Liyao GR No 138961 Mar 7 2002
FACTS: Petitioner, represented by his mother Corazon, filed an action for compulsory
recognition as the illegitimate (spurious) son of the late William Liyao against herein
respondents, the legitimate wife and children of the deceased.
Corazon is legally married but living separately from her husband allegedly for more
than ten years at the time of the institution of this civil case. She cohabited with the late William
until his death. Petitioner alleged that he “was in continuous possession and enjoyment of the
status of the child of said William Liyao,” having been “recognized and acknowledged as such
child by the decedent during his lifetime and presented witnesses and evidence to prove his
allegations. On the other hand, respondents painted a different picture of the story.
RTC rendered judgment in favour of petitioner.
CA reversed the ruling of RTC, favoured the presumption of legitimacy of the child and
gave weight to the testimonies of the witnesses of the respondents that Corazon and her
husband were seen together during the period she cohabited with the deceased.
ISSUE: WON the petition initiated by Corazon to compel recognition by respondents can
prosper.
WON petitioner’s action to impugn his legitimacy is proper.
RULING: No. It is settled that a child born within a valid marriage is presumed legitimate even
though the mother may have declared against its legitimacy or may have been sentenced as an
adulteress.(Art 167,FC)
No. We cannot allow petitioner to maintain his present petition and subvert the clear
mandate of the law that only the husband, or in exceptional circumstances, his heirs,
could impugn the legitimacy of a child born in a valid and subsisting marriage. The child
himself cannot choose his own filiation. If the husband, presumed to be the father does not
impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot
choose to be the child of his mother’s alleged paramour. On the other hand, if the presumption
of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully
defeated the presumption. (Art 170-171, FC)
Concepcion vs CA
FACTS:
Gerardo Concepcion, the petitioner, and Ma. Theresa Almonte, private respondent, were
married in December 1989, and begotten a child named Jose Gerardo in December 1990. The
husband filed on December 1991, a petition to have his marriage annulled on the ground of
bigamy since the wife married a certain Mario Gopiao sometime in December 1980, whom
according to the husband was still alive and living in Loyola Heights, QC. Trial court ruled that
the son was an illegitimate child and the custody was awarded to the wife while Gerardo was
granted visitation rights. Theresa argued that there was nothing in the law granting “visitation
rights in favor of the putative father of an illegitimate child”. She further wanted to have the
surname of the son changed from “Concepcion to Almonte”, her maiden name, since an
illegitimate child should use his mother’s surname. After the requested oral argument, trial court
reversed its ruling and held the son to be not the son of Gerardo but of Mario. Hence, the child
was a legitimate child of Theresa and Mario.
HELD:
Considering that Theresa’s marriage with Gerardo was void ab initio, the latter never became
the former’s husband and never acquired any right to impugn the legitimacy of the child.
Theresa’s contention was to have his son be declared as not the legitimate child of her and
Mario but her illegitimate child with Gerardo. In this case, the mother has no right to disavow a
child because maternity is never uncertain. Hence, she is not permitted by law to question the
son’s legitimacy. Under Article 167 of the Family Code, “the child shall be considered legitimate
although the mother may have declared against its legitimacy or may have been sentenced as
an adulteress”. Having the best interest of the child in mind, the presumption of his legitimacy
was upheld by the Court. As a legitimate child, the son shall have the right to bear the
surnames of Mario and Theresa, in conformity with the provisions of Civil Code on surnames.
Gerardo cannot then impose his surname to be used by the child, since in the eyes of the law,
the child is not related to him in any way.
Grounds to Impugn Legitimacy
a. Physical Impossibility of Sexual Intercourse during the period of conception. The
allowable reasons are:
1) Impotency -physical incapability of sexual intercourse
2) When the spouses are living separately but sexual intercourse is highly impossible
3) Serious illness which must be absolutely prevent sexual intercourse
b. Biological and other scientific reasons. (This is not available in Artificial insemination
using a donor’s sperm except if the consent is vitiated)
This can be determined in the result of blood testing:
-If the result is denial of paternity- conclusive
-If the result shows paternity- not conclusive
Action to Prove Filiation
Art. 172 – Action to claim legitimate/illegitimate filiation
Any compromise agreement with respect to the status of the child is void.
The admission must be personal. Legitimate filiation must come from the spouses while
illegitimate filiation must come from the illegitimate father.
Whether the action is to prove legitimate/illegitimate filiation, Art. 172 applies. If the action is to
prove legitimate filiation, Art 172 applies. If the action is to claim illegitimate filiation,
apply Art. 175 in relation to Art. 172.
As to the manner of proving-the same
As to who may file the action- the same
As to the prescriptive period-ordinarily, the same except:
-If the action is to claim legitimate filiation- the child may file the action during his lifetime
regardless of whether the parents are still alive
-If the action is to claim illegitimate filiation- if the child relies on those proof mentioned
par. 1, the child can file the action during his lifetime even after the death of his alleged
father; but if the proof is the 2nd paragraph, the action may be filed during the lifetime of
the alleged putative father otherwise barred.
Art. 169 of the FC contemplates of a situation where there was no marriage when the child was
born 300 days after the termination of the marriage, hence the child has no status.
An action to claim legitimate filiation is an action to prove that someone is your father. It is an
action to prove paternity.
Art. 172 1ST paragraph, amounts to Voluntary Recognition of paternity. It speaks of: a. Birth
Certificate or a Final Judgment b. Written admission of (Legitimate or Illegitimate) Filiation. It is a
consummated act without need of any judicial action. No longer required to prove filiation in a
judicial proceeding.
Art. 172 2nd paragraph, there is no voluntary admission of paternity. The father may even be
denying paternity. It is called as Compulsory Recognition.
1st PARAGRAPH Art. 172
1.Birth Certificate as proof of legitimate filiation
-It must be signed by the alleged father, if not, it cannot be used as evidence of paternity except
when the illegitimate father had a hand in the preparation of the birth certificate which can be
used as an evidence of paternity.
Ilano vs CA (P. 561 of the book)
Arado vs Alcoran
2 Instrument whether public or private
a. There must be a statement or recognition of paternity
b. The admission of paternity must be made personally by the father
c. It must be signed
SAN JUAN DELA CRUZ VS GRACIA
FACTS:
Jenie was denied the registration of her child's birth because the document attached to the
Affidavit to use the Surname of the Father (AUSF) entitled "Autobiography," did not include the
signature of the deceased father, and “because he was born out of wedlock and the father
unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to
the child.”
Jenie and the child promptly filed a complaint for injunction/registration of name against Gracia.
The trial court held that even if Dominique, the father, was the author of the unsigned
handwritten Autobiography, the same does not contain any express recognition of paternity.
ISSUE:
Whether or not the unsigned handwritten instrument of the deceased father of minor Christian
can be considered as a recognition of paternity.
RULING:
Yes. Article 176 of the Family Code, as amended by RA 9255, permits an illegitimate child to
use the surname of his/her father if the latter had previously recognized him/her as his offspring
through an admission made in a pubic of private handwritten instrument.
Article 176, as amended, does not explicitly state that there must be a signature by the
putative father in the private handwritten instrument.
The following rules respecting the requirement of affixing the signature of the acknowledging
parent in any private handwritten instrument wherein an admission of filiation of a legitimate or
illegitimate child is made:
1)
Where the private handwritten instrument is the lone piece of evidence submitted to prove
filiation, there should be strict compliance with the requirement that the same must be signed by
the acknowledging parent; and
2)
Where the private handwritten instrument is accompanied by other relevant and
competent evidence, it suffices that the claim of filiation therein be shown to have been made
and handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.
2ND PARAGRAPH Art. 172
1. Open and Continuous Possession of Status of a legitimate child
-There must be showing of parental love, care and affection which must be shown
habitually and with consistency
- Those actions must not be attributable to a mere charity.
2. Any other evidence allowed by the Special Law or Rules of Court
-Blood test is not a competent evidence. For purposes of paternity, it is not conclusive.
-DNA TEST- an accepted evidence of paternity (Agustin vs. I-ACT)
-In Lucas vs Lucas- there must be at least a prima facie evidence of paternity
-Herrera vs Alba – there is no violation on DNA Testing because it is not covered by the
right against self-incrimination. In this case, it enumerated the 4 aspects of traditional paternity:
1. establish a prima facie case in court by way of a testimony
2. defense of the man
3. the other partner is sterile
Estate of Ong vs Diaz- even if the presumed father is already dead, his DNA can still be used to
prove filiation prior to the death of the putative father. It may also be used if the action already
commenced prior to the death of the putative father.
3.Physical Resemblance
Ty- Ging vs CA
Cabatana vs CA – The Court noted the striking physical resemblance hence there is no doubt
that he is the putative father. But the SC held that physical resemblance is no longer competent
evidence in this age of where DNA is being used to determine paternity.
Rights of Legitimate and Illegitimate Children
1. For a legitimate child, he can use principally the surname of the father hence the child
can use the mother’s surname because the law used the word principally and not
exclusively
2. For an illegitimate child, he will the surname of the mother except when paternity is
admitted by the father in writing and the admission is signed by the father except Dela
Cruz vs. Gracia
In Grande vs Antonio, the SC clarified that the right to use the father’s surname belongs to the
child so the exercise of that right belongs to the child so he is under no compulsion to make use
of the father’s surname.
In succession, LC and ILC are compulsory and legal heirs but they have different shares.
LEGITIMATION
The child was born and conceived outside of a valid marriage who can be raised from legitimate
to illegitimate by operation of law. The requisites are:
1. The child was conceived or born outside a valid marriage
2. At the time of the conception, the parents are qualified to marry
3. After the birth of the child, his/her parents subsequently married
4. Such marriage is not void ab initio
Legitimation takes place by the subsequent valid marriage of the parents. In voidable marriage,
legitimation can also take place except if the ground for the nullity of the marriage is Art. 36 and
Art. 53 of the FC but under these articles even though the marriage is void, the children are
considered legitimate, so legitimation can still arise.
The effects of legitimation will retroact at the date of the birth of the child. The retroactive effect
will also apply if the child dies prior to the marriage of his/her parents for it nonetheless benefit
his/her descendants.
Even if the child was born and conceived in a void marriage, we can still apply the provisions on
legitimation because after all a void marriage is invalid from the very beginning so it is as if both
the conception and the birth have taken place outside of a marriage thus authorizing us to apply
the rules on legitimation.
ADOPTION
Castro vs Gregorio- if the adopters are married, joint adoption is mandatory, otherwise the
action will be dismissed. Exceptions:
1. If you are a stepparent adopting your stepchild and the latter is a legitimate child of your
spouse
2. Adoption of an illegitimate child, the other spouse is not required to join in the adoption
but his/her consent is required.
Castro vs Gregorio
Facts: This is a petition for review on Certiorari assailing the decision of the CA which denied
the petition for annulment of judgment filed by petitioners. The petition before the appellate court
sought to annul the judgment of the trial court that granted Rs’ decree of adoption.
Atty. Castro was allegedly married to Rosario Castro (Petitioner). Unfortunately, they separated
later on due to their incompatibilities and Jose’s alleged homosexual tendencies. Their marriage
bore two daughters: Rose Marie, who succumbed to death after nine days from birth due to
congenital heart disease, and Joanne Benedicta Charissima Castro (Petitioner).
On August 2000, A petition for adoption of Jose Maria Jed Gregorio (Jed) and Ana Maria
Regina Gregorio (Regina) was instituted by Atty. Jose Castro. Atty. Castro alleged that Jed and
Regina were his illegitimate children with Lilibeth Gregorio (Rosario’s housekeeper). After a
Home Study Report conducted by the Social Welfare Officer of the TC, the petition was granted.
A disbarment complaint was filed against Atty. Castro by Rosario. She alleged that Jose had
been remiss in providing support to his daughter Joanne for the past 36 year; that she singlehandedly raised and provided financial support to Joanne while Jose had been showering gifts
to his driver and allege lover, Larry, and even went to the extent of adopting Larry’s two
children, Jed and Regina, without her and Joanne knowledge and consent. Atty. Castro denied
the allegation that he had remiss his fatherly duties to Joanne. He alleged that he always
offered help but it was often declined. He also alleged that Jed and Regina were his illegitimate
children that’s why he adopted them. Later on Atty. Castro died.
Rosario and Joanne filed a petition for annulment of judgment seeking to annul the decision of
the TC approving Jed and Regina’s adoption.
Petitioner allege that Rosario’s consent was not obtained and the document purporting as
Rosario’s affidavit of consent was fraudulent. P also allege that Jed and Regina’s birth
certificates shows disparity. One set shows that the father to is Jose, while another set of NSO
certificates shows the father to be Larry. P further alleged that Jed and Regina are not actually
Jose’s illegitimate children but the legitimate children of Lilibeth and Larry who were married at
the time of their birth. CA denied the petition.
CA held that while no notice was given by the TC to Rosario and Joanne of the adoption, it ruled
that there is “no explicit provision in the rules that spouses and legitimate child of the adopter. . .
should be personally notified of the hearing.”
CA also ruled that the alleged fraudulent information contained in the different sets of birth
certificates required the determination of the identities of the persons stated therein and was,
therefore, beyond the scope of the action for annulment of judgment. The alleged fraud could
not be classified as extrinsic fraud, which is required in an action for annulment of judgment.
Issues:
Whether extrinsic fraud exist in the instant case?
Whether consent of the spouse and legitimate children 10 years or over of the adopter is
required?
Decision:
The grant of adoption over R should be annulled as the trial court did not validly acquire
jurisdiction over the proceedings, and the favorable decision was obtained through extrinsic
fraud.
When fraud is employed by a party precisely to prevent the participation of any other interested
party, as in this case, then the fraud is extrinsic, regardless of whether the fraud was committed
through the use of forged documents or perjured testimony during the trial.
Jose’s actions prevented Rosario and Joanne from having a reasonable opportunity to contest
the adoption. Had Rosario and Joanne been allowed to participate, the trial court would have
hesitated to grant Jose’s petition since he failed to fulfill the necessary requirements under the
law. There can be no other conclusion than that because of Jose’s acts, the trial court granted
the decree of adoption under fraudulent circumstances.
RA 8552 requires that the adoption by the father of a child born out of wedlock obtain not only
the consent of his wife but also the consent of his legitimate children. (Art. III, Sec. 7, RA 8552)
As a rule, the husband and wife must file a joint petition for adoption. The law, however,
provides for several exceptions to the general rule, as in a situation where a spouse seeks to
adopt his or her own children born out of wedlock. In this instance, joint adoption is not
necessary. But, the spouse seeking to adopt must first obtain the consent of his or her spouse.
In the absence of any decree of legal separation or annulment, Jose and Rosario remained
legally married despite their de facto separation. For Jose to be eligible to adopt Jed and
Regina, Rosario must first signify her consent to the adoption. Since her consent was not
obtained, Jose was ineligible to adopt.
The law also requires the written consent of the adopter’s children if they are 10 years
old or older (ART. III, Sec. 9, RA 8552).
For the adoption to be valid, petitioners’ consent was required by Republic Act No. 8552.
Personal service of summons should have been effected on the spouse and all legitimate
children to ensure that their substantive rights are protected. It is not enough to rely on
constructive notice as in this case. Surreptitious use of procedural technicalities cannot be
privileged over substantive statutory rights.
Since the trial court failed to personally serve notice on Rosario and Joanne of the proceedings,
it never validly acquired jurisdiction.
RA 9523 – The power of the Court to declare a child legally available for adoption, it was
removed. Under the law, the right to declare a child legally available for adoption is the sole
power/authority of the DSWD. It applies to child who has been abandoned, neglected, abused
etc. It does not apply to the adoption of a relative, or an illegitimate child, etc.
Bartolome vs SSS- If the adopters died during the minority of the adopted, the law is silent it is
for that reason the Court applied by analogy Sec. 20 of the Domestic Adoption Act, the parental
authority of the biological parents, if known, shall be automatically restored.
In Bartolome vs SSS, applying Art. 192, the SC stressed the obiter dictum that the biological
parents remain to be the remain to be the legal heirs of the adopted child. On the other hand,
there is an obiter dictum if the adopted can still be the legal heirs of the biological parents.
EFFECTS OF DOMESTIC ADOPTION
On Successional Rights:
1. In legal and intestate succession, the adopter(s) and the adoptee shall have resciprocal
rights of succession without distinction from legitimate filiation
2. However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern.
3. Art. 189 (3) of the FC and Sec. 18 Art. V of RA 8552 (LAW ON ADOPTION) provide that
the adoptee remains an intestate heir of his/her biological parent. (In re. Stephanie
Garcia)
In Re Adoption of Stephanie Garcia, GR No. 148311
Facts: Honorato B. Catindig filed a petition to adopt his minor illegitimate child Stephanie
Astorga Garcia. He averred that Stephanie was born on June 26, 1994; that Stephanie had
been using her mother’s middle name and surname; and that he is now a widower and qualified
to be her adopting parent. He prayed that Stephanie’s middle name be changed to Garcia, her
mother’s surname, and that her surname “Garcia” be changed to “Catindig” his surname.
The RTC granted the petition for adoption, and ordered that pursuant to article 189 of the Family
Code, the minor shall be known as Stephanie Nathy Catindig.
Honorato filed a motion for classification and/or reconsideration praying that Stephanie be
allowed to use the surname of her natural mother (Garcia) as her middle name. The lower court
denied petitioner’s motion for reconsideration holding that there is no law or jurisprudence
allowing an adopted child to use the surname of his biological mother as his middle name.
Issue: Whether or not an illegitimate child may use the surname of her mother as her middle
name when she is subsequently adopted by her natural father.
Held: One of the effects of adoption is that the adopted is deemed to be a legitimate child of the
adapter for all intents and purposes pursuant to Article 189 of the Family Code and Section 17
of Article V of RA 8557.
Being a legitimate by virtue of her adoption, it follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without discrimination of any kind, including the right to bear
the surname of her father and her mother. This is consistent with the intention of the members
of the Civil Code and Family Law Committees. In fact, it is a Filipino custom that the initial or
surname of the mother should immediately precede the surname of the father.
PARENTAL AUTHORITY
Dacasin vs Dacasin
Family relations; child custody; agreements between separated parents. At the time the parties
executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was
under seven years old; and (2) petitioner and respondent were no longer married under the laws
of the United States because of the divorce decree. The relevant Philippine law on child custody
for spouses separated in fact or in law (under the second paragraph of Article 213 of the Family
Code) is also undisputed: “no child under seven years of age shall be separated from the
mother x x x.” (This statutory awarding of sole parental custody to the mother is mandatory,
grounded on sound policy consideration, subject only to a narrow exception not alleged to
obtain here.) Clearly then, the Agreement’s object to establish a post-divorce joint custody
regime between respondent and petitioner over their child under seven years old contravenes
Philippine law. Thus the joint custody agreement between the parents is void ab initio for being
contrary to law. Also, it has also been repudiated by the mother when she refused to allow joint
custody by the father. The agreement would be valid if the spouses have not divorced or
separated because the law provides for joint parental authority when spouses live
together. However, upon separation of the spouses, the mother takes sole custody under the
law if the child is below seven years old and any agreement to the contrary is void. The
separated parents cannot contract away the provision in the Family Code on the maternal
custody
of
children
below
seven
years. Herald
Black Dacasin vs.
Sharon
Del Mundo Dacasin, G.R. No. 168785, February 5, 2010
Family Code; child custody; application of Article 213 on all custody agreements. It will not do to
argue that the second paragraph of Article 213 of the Family Code applies only to judicial
custodial agreements based on its text that “No child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise.” To
limit this provision’s enforceability to court sanctioned agreements while placing private
agreements beyond its reach is to sanction a double standard in custody regulation of children
under seven years old of separated parents. This effectively empowers separated parents, by
the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the
separated mother sole custody of her children under seven years of age “to avoid a tragedy
where a mother has seen her baby torn away from her.” This ignores the legislative basis that
“[n]o man can sound the deep sorrows of a mother who is deprived of her child of tender
age.” Herald Black Dacasin vs. Sharon Del Mundo Dacasin, G.R. No. 168785, February 5,
2010.
The tender age presumption rule is mandatory and any agreement to the contrary is void.