PERSONS AND FAMILY RELATIONS
2017 VERSION – T HE C ONJUGAL R EVIEWER
This is a condensed, personalized version of the book with personal notes, insights,
opinions, questions, ruminations and conclusions. – KG 2014
This reviewer now contains notes from both Dean Mel Sta. Maria (M) & Ma’am Ampy
Sta. Maria (A), hence the name “The Conjugal Reviewer.” Their discussions are indicated
either as M or A. – KG 2018
Finals Reminders (A):
1. Don’t write at the back.
2. Talk like a lawyer; a marriage is not “invalid,” it is “void.”
THE CIVIL CODE OF THE PHILIPPINES
PRELIMINARY TITLE
CHAPTER 1.Effect and Application of Laws
Art. 1. This Act shall be known as the "Civil Code of the Philippines." (n)
Basic Details
•
RA No. 386: “An Act to Ordain and Institute the Civil Code of the Philippines”
•
Effectivity Date: August 30, 1950
Art. 2. Laws shall take effect after 15 days1 following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect one
year after such publication. (1a)
Executive Order (EO) 200
•
Previously, only publication in the Official Gazette was necessary to officially
promulgate laws. This, however, caused problems, due to the erratic release and
limited readership of the Gazette.2
•
Amended by E.O. 200: Laws, to be effective, must be published either in the
Official Gazette or in a newspaper of general circulation in the country
o Issued on June 18, 1987 by President Corazon Aquino
o Took effect immediately after publication in the Gazette
CLASS DISCUSSION (M)
Q: What is a newspaper of general circulation? Are Abante, New Record, Guardian,
Nueva Era, or Bulgar a newspaper of general circulation?
A: Yes, these are considered of general circulation.
Q: What are the requisites for a newspaper to be considered one of general circulation?
A: SC has held that the requisites are:
(1) Regular release
(2) No specific audience or patronage
(3) For the public
(4) Not devoted to private interest
1
2
Effectivity of Laws
•
Requisites
o Publication in the Official Gazette or in a newspaper of general circulation
in the Philippines
o After expiration of the 15-day period (period can be altered if the statute
provides it)
o Publication must be in full
•
Covered in the rule
o P.D.s & E.O.s promulgated by the President in the exercise of legislative
powers
§
Whenever the same are validly delegated by legislature OR directly
conferred by the Constitution
§
Included are P.D.s that name a public place after a favored
individual or exempt him from certain prohibitions or requirements
o Circulars issued by the Monetary Board that “fill in the details” of the
Central Bank Act
o Administrative rules and regulations, if their purpose is to enforce or
implement existing law pursuant to a valid delegation
o Charter of a city notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of that place
•
NOT covered in the rule
o Interpretative regulations and those merely internal in nature
§
Regulating only the personnel of the administrative agency and not
the public
o Letters of instruction issued by administrative superiors concerning rules
and guidelines to be followed by subordinates
•
General rule: those that are general in application & more or less permanent must
be published
“Unless otherwise provided” clause
•
Refers to the 15-day period & not the publication
•
Period can be shorter or longer, as provided by law; what the law says will prevail
•
The law can also say “shall take effect immediately”
Laws
•
Includes statutes, local & private laws
Art. 3. Ignorance of the law excuses no one from compliance therewith. (2)
Reason
•
Ignorantia legis non excusat
•
Once a law is published, the public is given constructive notice of the law’s
existence & effectivity, whether or not they actually know what it says
•
Applies only to mandatory & prohibitory laws
o Mandatory – obligatory laws (e.g. prescriptive periods)
o Prohibitory – laws that specifically prohibit certain acts; those which have
liabilities & penalties
When counting, the first day is excluded and the last day is included. The counting of days begins the day after the statute is
Tañada, et al. v. Tuvera, et al.
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M: Ignorance of the law excuses no one only applies to mandatory or prohibitory laws,
NOT directory laws.
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. (3)
Non-Retroactivity of Laws
•
Laws shall be given only prospective application unless the law expressly declares
or necessarily implies the contrary
•
In case of doubt, resolve against retroactivity
•
Legislature has the power to pass retroactive laws, so long as these do not impair
obligations of contracts, or affect injuriously vested rights
Instances with Retroactive Application
1) When the law expressly provides for its retroactivity. Art. 256 of the Family Code of
the Philippines states that the law shall have retroactive effect, so long as it does
not prejudice or impair vested or acquired rights in accordance with the Civil Code
& other laws.
2) When the law is curative or remedial.
a. Curative – laws that cure defects or add means of enforcing existing
obligations; laws can add what legislature previously dispensed with
previously, or actions which the law previously made immaterial; more
readily applied to legalizing laws
b. Laws which regulate the registration of instruments affecting titles to land
may be held to apply to deeds dated before as well as after their enactment,
as long as a reasonable time is given within which the effect of the statute,
as applied to existing conveyances, may be avoided & rendered harmless
with respect to vested rights.
CASE (Development Bank of the Philippines v. Court of Appeals)
Laws can have retroactive effect, especially when they are beneficial to those involved.
Facts: DBP purchased some lots for its employees, pursuant to RA 85, though this was
not allowed under said statute. Later, Congress passed RA 3147, meant to amend RA 85
& also precisely to make the purchase valid. Some question the validity of passing said
later law for the validity of the acquisition.
Held: SC classified this as an instance of curative law, which are intended to help a
person carry out an act which he was intended to be able to do, but which has failed by
reason of some statutory disability or irregularity in their action. Congress obviously
intended to remedy the first law so that DBP could make the purchase.
3)
4)
3
When the law is procedural.
a. When a law deals with procedure only, prima facie3, it applies to all actions—
those which have been accrued, are pending, or future actions
b. Example: a law prescribing the form of pleadings will apply to all pleadings
filed after its enactment, although the action had already begun before that
time
c. SC jurisprudence does not apply retroactively
d. It is within SC’s power to excuse failure to follow any of the Rules of Court in
order to prevent injustice
When the law is penal in character & is favorable to the accused.
a.
Art. 22 of RPC – Penal laws shall have retroactive effect when:
i. They favor the guilty
ii. The guilty person is not a habitual criminal
iii. The final sentence has been pronounced
iv. The convict is serving his sentence
Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be
void, except when the law itself authorizes their validity. (4a)
Mandatory & Prohibitory laws
•
A mandatory provision of law – the omission of which renders the proceeding or
acts to which it relates to generally illegal or void (e.g. prescriptive periods are
mandatory; when one files a suit after the prescriptive period, the action becomes
void)
o Ex. A husband, in order to impugn the legitimacy of a child, must file a case
within 1 year from the knowledge of the birth of the child or its recording in
the civil registrar, if he should live in the same municipality where the birth
took place
•
Prohibitory laws – contain positive prohibitions & are couched in negative terms,
importing that the act shall not be done unless otherwise designated
o Ex. “No decree of legal separation shall be based upon a stipulation of facts
or a confession of judgment.”
Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a third person with a right recognized by
law. (4a)
Waiver
•
Intentional relinquishment of a known right
•
Not presumed; must be clearly & convincingly shown, either by express stipulation
or acts admitting no other reasonable explanation
•
Requisites for a valid waiver:
o The right must exist at the time of the waiver;
o The person must know that the right exists;
o The person who makes the waiver must be aware of all the material facts &
consequences; &
o It must be exercised by a duly capacitated person actually possessing the
right to make the waiver
Prohibition against Waiver
•
Instances when waivers are not allowed:
o Tenants waiving their preferential right to purchase public land designated
to them by law
o Waiver of the right to get the minimum wage salary
o Acceptance of benefits such as separation pay & leave benefits; this is not
estoppel or a waiver of the right of an employee to contest his illegal
dismissal
o Signing of a disabled employee of a satisfaction receipt
o A private agreement between 2 spouses consenting to the commission of
adultery & concubinage is considered void
On its face; a fact presumed to be true unless it is disproved.
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•
Where the object of a statute is to promote great public interests, liberty, & morals,
it cannot be defeated by any private stipulation
CLASS DISCUSSION (M)
Q: Your employer asked you, an employee, to waive your claims and you did it. Is it void?
A: It is valid, as long as the agreement not against law, public order, etc.
Q: Does the violation of a law make a contract void?
A: Not necessarily. Only mandatory and/or prohibitory laws would make such contract
void.
Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall
be void & the latter shall govern.
Administrative or executive acts, orders, & regulations shall be valid only when they are
not contrary to the laws or the Constitution. (5a)
Repeal
•
Legislative act of abrogating through a subsequent law the effects of a previous
statute or portions thereof
•
Repeals are either express or implied
•
Express repeal – literally declared by a new law, either in specific terms, where a
specific law is named, or generally, where it says, “All laws inconsistent with this
will be repealed.”
o A general new law that states: “All written contracts will have a prescriptive
period of 10 years” DOES NOT repeal an old special law that states:
“Contract of sale has prescriptive period of 5 years.”
§
An old special law cannot be repealed by a new general law unless
the new law expressly says so
o A law states: “All laws & parts thereof inconsistent with the provisions of
this Act are hereby repealed or modified accordingly.”
§
This does not serve as an express repealing clause for the entire
provision, but only those which are substantially inconsistent with
said law
•
Implied – when a new law contains provisions contrary to or inconsistent with
those of a former without expressly repealing them; not favored for reasons of:
o Vagueness
o Repeals are not presumed, unless law expressly provides it
Unconstitutional Statutes
•
No ordinary statute can override a constitutional provision
•
In deciding the constitutionality of a statute, every presumption favors its validity;
whenever possible, statutes should be given a meaning that is not in conflict with
the Constitution
•
Constitutionality of a law is not affected by acts or omissions of law enforcement
agencies, & can depend upon factors other than those existing at the time of its
enactment
Partial Unconstitutionality of Statutes
•
Statutes can be partially repealed
•
BUT when the parts of a statute are so mutually dependent & connected to warrant
the belief that the legislative body intended for the statute to be read as one
whole, all parts that are conditional to unconstitutional provisions of a statute are
also unconstitutional
Rules & Regulations/Administrative & Executive Acts
•
IRRs have the nature of a law
•
Binding upon courts if the IRRs are within the scope granted by the statutes
passed by the legislature
•
Must be in harmony with provisions of its law & must exist for the sole purpose of
carrying into effect its general provisions
•
IRRs & executive acts violative of the law & the Constitution are invalid
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines. (n)
Judicial Construction & Interpretation
•
Courts have the principal function of not only resolving legal controversies, but
also interpreting vague provisions o law relative to a particular dispute
•
Construction – the art or process of discovering or expounding the meaning &
intention of the authors of the law with respect to its application to a given case,
where the intention is rendered doubtful, among others, because the given case
is not explicitly provided for in the law
Effect of Judicial Decision
•
Although they are not themselves laws, they assume the same authority as the
statute itself
•
Until authoritatively abandoned, they necessarily become the criteria which
controls not only the actions of those called upon to abide by the law, but also
those who must enforce obedience thereto
•
Legis interpretation legis vim obtinet – the interpretation placed upon the written
law by a competent court has the force of law
•
Weight of judicial decisions of SC v. inferior courts
o SC decisions – authoritative & precedent-setting; judges must apply the
law as interpreted by the SC
o CA & inferior courts – merely persuasive
When Judicial Decisions Deemed Part of the Law
•
The application & interpretation of the SC is part of the law as of the date of the
law’s enactment
•
BUT: When a doctrine of the SC is overruled & a different view is adopted, the
new doctrine will be applied prospectively, & will not be applied to parties who
relied on the old doctrine & acted on the faith thereof
CASE: People v. Jabinal
Facts: The accused was a secret confidential agent, authorized to possess a firearm in
1964. In 2 previous cases, it was held that such a position entailed that the person
would not be criminally liable despite not having a permit for possessing the firearm. In
1967, however, the previous decision was reversed. This criminal charge was then filed
against the secret agent.
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Held: The accused was acquitted. The 1967 decision should only be prospectively
applied, & should not prejudice persons who relied on the overturned doctrines while the
same were still controlling.
CASE: Apiag v. Cantero
Facts: A judge entered into a 2nd marriage contract in 1986, without having his 1st void
marriage judicially declared a nullity. The judge had done this relying on a previous SC
doctrine, which said this was allowed. Subsequently, however, the decision was reversed
& it was held that a judicial declaration of nullity of marriage would be necessary before
a person could enter into a 2nd marriage. An administrative case was filed against the
judge for violating this new doctrine.
Held: The judge was not liable. At the time of the 2nd marriage, the prevailing
jurisprudence was that a judicial declaration of nullity was not needed in a void marriage.
Art. 9. No judge or court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the laws. (6)
Duty of Judges
• Judges cannot evade performance of their responsibility because of the apparent
non-existence of a law in a particular dispute
• Where the conclusions of a judge in a decision are not without logic or reason, he
cannot be said to have been incompetent
CASE: In re: Padilla
Facts: The paraphernal property of the wife was demolished to give way for the
construction of another building. The erection of the new building benefited the conjugal
partnership of gains of the spouses. At the dissolution of the conjugal partnership, the
wife demanded reimbursement for the building demolished. However, the law does not
explicitly provide for such reimbursement.
Held: SC ruled in favor of reimbursement, holding that it would only be just & fair to do
so, even if the law was silent about this.
Judicial Legislation
• The judiciary is tasked with resolving legal controversies & interpreting statutes; it
cannot legislate
• But even a legislator, through Art. 9, recognizes that in some instances, courts “do
& must legislate” to fill in the gaps of the law
CLASS DISCUSSION (M)
Q: Technically, an adopted child has no middle name (In re: Stephanie). The father
wanted to have the child’s middle name be her mother’s name. OSG opposed since the
law and Rules of Court do not so provide. Was OSG correct?
A: Article 9 was used to hold that the OSG was wrong, and that the child could use the
middle name of her mother. According to Article 11 & 12 also, custom shows that the
mom’s last name is also the customary middle name of a child. Furthermore, giving the
child a middle name would be for the child’s best interest.
Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that
the lawmaking body intended right and justice to prevail. (n)
Doubtful Statutes
•
•
Where the law is clear, it must be applied according to its unambiguous provisions
Construction & interpretation come only after it has been demonstrated that
application is impossible or inadequate without them
o But in the interpretation, there must be fidelity to the legislative purpose
Art. 11. Customs which are contrary to law, public order or public policy shall not be
countenanced. (n)
Art. 12. A custom must be proved as a fact, according to the rules of evidence. (n)
Customs
•
A rule of conduct formed by repetition of acts, uniformly observed (practiced) as a
social rule, legally binding & obligatory.
•
Courts take no judicial notice of custom
o Instead, custom must be proven as fact with competent evidence.
•
There is a difference between social custom & juridical custom
o Juridical custom – can supplement statutory law or can be applied in the
absence of a statute
o Social custom – cannot be applied in the absence of a statute
•
Proven customs still cannot prevail if they are contrary to law, public policy or
public order (including rules enunciated by SC)
Art. 13. When the laws speak of years, months, days or nights, it shall be understood
that years are of 365 days each; months, of 30 days; days, of 24 hours; & nights from
sunset to sunrise.4
If months are designated by their name, they shall be computed by the number of days
which they respectively have. In computing a period, the first day shall be excluded, &
the last day included. (7a)
Computing the Legal Period
•
The 1987 Administrative Code has impliedly repealed the Civil Code, according to
the case CIR v. Primetown Property Group. It is now computed as follows –
Legal Period
Year
12 calendar months
Months
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
Day
24 hours
Night
From sunrise to sunset
•
Calendar month – a month designated in the calendar without regard to the
number of days it may contain
o The period of time running from the beginning of a certain numbered day up
to, but not including, the corresponding numbered day of the next month, &
if there is not a sufficient number of days in the next month, then up to &
including the last day of that month
o Ex. One calendar month from Dec. 31, 2007 will be from Jan. 1, 2008 to
Jan. 31, 2008
4
Impliedly repealed
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o
Year
•
Ex. One calendar month from Jan. 31, 2008 will be from Feb. 1, 2008 until
Feb. 29, 2008.
CASE: Garvida v. Sales – When a person wants to run for SK & the SK
provisions in LGC say that one should be not more than 21 years of age on the
day of the election, it means that the person cannot be 21 years + 1 day old or
more on the day of the election. If his birthday happens to be on the day of the
election, he can still run.
Counting Periods
•
In counting a period, the first day shall be excluded, while the last day is included
•
Ex. If a law is to be effective on the 20th day from its publication, & publication
was made on Feb. 3, 1998, then the law will be effective on Feb. 23, 1998.
CLASS DISCUSSION (M)
Q: In the Primetown case, what is 2 years from Aug. 3?
A: Aug. 3 1998. One need not check leap years anymore; instead, consider the years in
cycles.
Q: Can the statutory prescriptive period given for a written contract be modified by the
parties in the contract?
A: Yes; that is because a contract is a law between the parties.
Art. 14. Penal laws & those of public security & safety shall be obligatory upon all who
live or sojourn in the Philippine territory, subject to the principles of public international
law & to treaty stipulations. (8a)
Obligatory Force of Penal Laws
• Both citizens & foreigners are bound by penal laws & other laws designed to
maintain public security & safety
• The law attaches even if the foreigner is just sojourning in Philippine territory
Exceptions
1. When the foreigner is a diplomatic agent, his person shall be inviolable & he shall
not be liable to any form of arrest or detention (Vienna Convention on Diplomatic
Relations)
• Diplomatic agent – head of the mission or a member of the diplomatic staff of
the mission
2. Heads of State officially visiting the Philippines
•
4. Legal capacity of persons
Ex. If a Filipino initiates a petition abroad to obtain an absolute divorce from his wife
(whether Filipino or foreigner) & successfully gets a divorce, the Philippines will not
recognize the divorce, since under Philippine law, the only absolute divorce
recognized is that procured by the alien spouse of a Philippine citizen.
o In the eyes of Philippine law, the Filipino that gets the divorce abroad is still
married. If he remarries, he is still criminally liable for concubinage (or adultery,
if a woman)
Art. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate & testamentary successions, both with respect to the order of
succession & to the amount of successional rights & to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property &
regardless of the country wherein said property may be found. (10a)
Law Governing Real Properties
• General rule: The law of the country where the real property is situated governs the
law over such real property
• Exception: Intestate & testamentary succession, in which shall be regulated by the
national law of the deceased regardless of the nature of the property; in particular,
this rule applies to –
1. The order of succession
2. The amount of successional rights
3. The intrinsic validity of the provisions of the will
4. Capacity to succeed (Art. 1039, CC)
CASE: Miciano v. Brimo
Facts: A Turkish citizen wrote out a last will providing that his property should be
disposed of pursuant to Philippine laws.
Held: The provision is illegal & void. Pursuant to Art. 16, the national law of the deceased
should govern – hence, Turkish laws should apply.
Art. 15. Laws relating to family rights & duties, or to the status, condition, & legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad. (9a)
CASE: Bellis v. Bellis
Facts: A foreigner executed two wills – one in Texas, & another in the Philippines, with
the latter disposing his Philippine properties. At the time of his death, he was both a
national of the U.S. & domiciled in the U.S. It was argued that the foreigner intended that
Philippine law would govern the disposition of his properties in the Philippines,
particularly with respect to legitimes.
Held: Philippine law cannot govern the disposition of the Philippine properties of the
deceased, particularly with respect to legitimes. The law in the country of the deceased’s
nationality must govern in this regard.
Nationality Rule
• Regardless of where a Philippine citizen may be, he will be governed by Philippine
laws with respect to –
1. Family rights & duties
2. Status
3. Condition
Art. 17. The forms & solemnities of contracts, wills, & other public instruments shall be
governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by Philippine
laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, & those which have for their
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object public order, public policy, & good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country. (11a)
Extrinsic Validity
• Forms & solemnities of public instruments, wills, & contracts are governed by the
laws of the country where they are executed
• Ex. If in Japan, for a holographic will to be valid, the date need not be in the
handwriting of the testator, that will is valid in the Philippines even if under
Philippine law, all contents of a holographic will, including the date, must be in the
testator’s handwriting
Acts Before Diplomatic & Consular Officials
• Any act or contract made in a foreign country before Philippine diplomatic &
consular officials must conform to the solemnities under Philippine law
o Under international law, the host country waives its jurisdiction over the
premises of the diplomatic office of another country located in the said host
country
• THUS: The issuance of the marriage license, the duties of the local civil register, &
the duties of the solemnizing officer as regards celebrating marriage shall be
performed by a consul-general, consul, or vice-consul abroad
Prohibitive Laws
• Ex. Considering that the only ways to terminate a marriage in the Philippines are
through the grounds exclusively enumerated in the Family Code, any Filipino who
procures an absolute divorce abroad remains, in Philippine law, married
CASE: Tenchavez v. Escaño
Facts: A Filipina wife obtained a divorce abroad & later remarried an American. The
Filipino husband then filed a legal separation case against the Filipina wife for
technically committing adultery against him.
Held: The Filipino husband’s case prospered, given that absolute divorce is not
recognized in the Philippines.
perfection of the insurance contract because there was failure to show that the
acceptance of the offer came to the knowledge of the offerer.
CASE: Ang v. American Steamship Agencies, Inc.
Facts: Under the Carriage of Goods by Sea Act (COGSA), the word “loss” was not
explained.
Held: SC interpreted the word “loss” as understood under the Civil Code, relying on Art.
18.
CASE: Dole Philippines v. Maritime Co.
Not all deficiencies in the COGSA may be supplemented by the Civil Code.
Facts: Dole Philippines contended that the 1-year prescriptive period for making a claim
for loss under the COGSA was tolled by the making of an extrajudicial demand, as
provided under Art. 1155 of the Civil Code. It argued that Art. 18 gives Art. 1155 a
suppletory effect.
Held: Art. 1155 cannot be applied in this case; ruling that extrajudicial demand can toll
the prescriptive period in this case would have the effect of extending the 1-year
prescription period fixed by the COGSA. This would permit delays in the settlement of
questions affecting transportation, contrary to the clear intent & purpose of the COGSA.
• BUT: For suits not predicated upon loss or damage, but on alleged misdelivery or
conversion of the goods, the applicable rule of prescription is that in the Civil Code
– 10 years for written contracts, & 4 years for quasi-delicts, & not the rule on
prescription in the COGSA.
CLASS DISCUSSION (M)
Q: Is the suppletory application of the Civil Code, in accordance with Art. 18, an absolute
rule?
A: No, there are exceptions, as shown in Dole Philippines v. Maritime Co.
CHAPTER 2. Human Relations
Art. 19. Every person must, in the exercise of his rights & in the performance of his
duties, act with justice, give everyone his due, & observe honesty & good faith.
Art. 18. In matters which are governed by the Code of Commerce & special laws, their
deficiency shall be supplied by the provisions of this Code. (16a)
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
Suppletory Nature
• Deficiencies in the Code of Commerce & special laws are supplied by the Civil Code
Art. 21. Any person who willfully causes loss or injury to another in manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
CASE: Insular v. Sun Life
The rules on contracts under the Civil Code apply when there is no applicable provision
in the Insurance Act.
Facts: The Insurance Act is silent on when a contract of life annuity is perfected. The Civil
Code’s provisions on the perfection of contracts, however, that offer & acceptance must
concur in a perfected contract. The Civil Code further states that there is only an
acceptance from the date such acceptance comes to the knowledge of the offerer.
Held: SC applied the provisions on the perfection of contracts in the Civil Code to
supplement the deficiencies in the Insurance Act, & thus held that there was no
Abuse of Right Doctrine
• Art. 19, 20, & 21 deal with the “abuse of right” doctrine
o Art. 19 – provides a rule of conduct consistent with an orderly & harmonious
relationship between & among men & women; it condifies justice & fair play
§ Given Art. 19, a right, though by itself legal, may nevertheless
becomes the source of illegality
§ Ex. A debtor can be liable under Art. 19 for disposing of its property –
a perfectly legal act – in order to escape the reach of a creditor
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Ex. A principal is liable under Art. 19 for terminating the agency – a
perfectly legal act – when the termination deprives the agent of his
legitimate business
§ Elements of the abuse of right doctrine under Art. 19:
(1) There is a legal right or duty
(2) Which is exercised in bad faith
(3) For the sole intent of injuring another
o Art. 20 – the general sanction for all provisions of the law which do not
provide for their own sanction
o Art. 21 (also known as contra bonus mores) – designed to fill in the
countless gaps in the statutes, which leave so many victims of moral wrongs
helpless, though the have actually suffered material & moral injury;
presupposes loss or injury
§ Ex. A seduces the 19-year-old daughter of X. A promise of marriage
has not been made or provide. The daughter becomes pregnant.
Under present laws, there is no crime, as the girl is above 18. Neither
is there any civil action for breach of promise to marriage. However,
there is some grievous moral wrong involved.
§ Elements:
(1) There is act which is legal
(2) But which is contrary to morals, good custom, public order, or
public policy
(3) It is done with intent to injure
Good faith is presumed, & he who alleged bad faith must prove the same.
o Good faith – the intention to abstain from taking an unconscionable &
unscrupulous advantage of another
o Bad faith – involves malice; a breach of known duty due to some motives or
interest or ill-will that partakes the nature of fraud
§
•
Art. 19 v. Art. 20 v. Art. 21
Art. 19
Art. 20
Art. 21
An act which causes injury to another may be the basis for an award of damages.
Act is intentional
Act may be done willfully or Act is intentional
intentionally
A legal right or duty is Willfully
or
negligently There is a legal act done, in
exercised in bad faith
causing damage to another a way that is contrary to
morals,
good
custom,
public order, or public
policy
CASE: Llorente v. Sandiganbayan
A person can be liable for an act though it may be perfectly legal.
Facts: A particular government employee, Mr. Curio, was singled out by the deputy
administrator (DA) & strictly subjected to the rules for obtaining benefits after retirement
while similarly situated employees were liberally granted their benefits.
Held: SC granted damages to Mr. Curio for the acts of the DA. It held that the fact that
the DA was not motivated by ill-will would not be a defense.
CASE: PNB v. CA
Though a person may not have acted criminally, he may nevertheless undertake acts
which injure another; Art. 21 was intended to expand the concept of torts in this
jurisdiction by granting adequate legal remedy for the untold number of moral wrongs
which is impossible for human foresight to specifically provide in statutes.
Facts: A sugar quota was mortgaged to the PNB & a lease of such sugar quota allotment
made by the debtor to a third person required PNB’s consent. The responsible officers of
PNB, however, told the lessor & lessee that PNB would approve the lease if the amount
thereof was increased from P2.50 to P2.80 per picule. The lessor & lessee agreed to
increase the price. Despite this, the PNB Board of Directors twice turned down the deal
because it wanted to raise the amount once more to P3.00. Ultimately, the lessee lost
P2,800 & failed to utilize her sugar quota.
Held: SC made PNB liable for its unreasonableness, given that there was only a P2
difference between the sum the PNB Board insisted upon & that offered by the lessor &
lessee. There was no reasonable basis for the PNB Board to reject the lessee,
particularly since the PNB knew the agricultural year was about to expire.
Further Examples
• X sells a parcel of land to Y, thereby transferring the title to Y. Subsequently,
however, X claims & misrepresents that the title to the land was lost in WW2. X is
able to get a second title & sells the property to a third person, Z. X is liable under
Arts. 19-21.
• X withheld irrigation water from Y so that Y & his fellow farmers would vacate their
landholdings. The unjustified diversion of water was held to be a violation of Art.
21.
• Any third person who induces another to violate his contract is liable to damages to
the contracting party under Arts. 20 & 21.
• A group of drivers protesting the policies of a transportation company can be made
liable, despite having a constitutional right to redress their grievances, where they
violate the right of the transport company to operate its services in its routes, as
when the group of drivers forcibly takes over the motor units & personnel of the
company for 10 days without authority from the proper government authority.
• A clothing company suspects X, employee of Y, of stealing clothes. The clothing
company sends Y a demand letter making outright accusations despite evidence
showing there was a possibility that payment was made. This was a violation of
Arts. 19, 20 & 21.
Breach of Promise to Marry
• General Rule: A breach of promise to marry is not actionable.
• BUT: To formally set a wedding & spend for the preparations & publicity, only to
walk out of it when the matrimony is about to be solemnized, is unjustifiable &
gives rise to an action for damages under Art. 21.
Abuse of Right & Sex
• A married man forcing a woman not his wife to yield to his lust violates Art. 21.
• Where a man’s promise to marry is the proximate cause of a woman agreeing to
give up her virginity for him, proof that, in reality, he never wanted to marry her, &
the promise was only a subtle scheme to entice her to have sex, justifies an award
under Art. 21 because it was fraudulent & deceitful, constituting moral seduction.
• BUT: No damages can be recovered if the sex was a product of voluntariness &
mutual desire.
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o
Thus, if a 28-year-old woman admits attraction for a man & has sex with him
voluntarily despite learning he was married, she cannot subsequently sue
him for damages.
CLASS DISCUSSION (M)
Q: Can you comply with the law and still be held liable?
A: Yes, under the abuse of right doctrine.
Q: Is charging unconscionable interest rates against the law?
A: NO. But charging unconscionable interest rates are immoral, and therefore void. It is
contra bonus mores.
Art. 22. Every person who through an act of performance by another, or any other
means, acquires or comes into possession of something at the expense of the latter
without just or legal ground, shall return the same to him.
Unjust Enrichment
• No person can unduly profit on something which does not meritoriously belong to
him or her
CASE: Obana v. CA
No one shall unjustly enrich himself at the expense of another by holding on to property
no longer belonging to him.
Facts: Buyer 1 bought 170 cavans of palay from the seller. Though Buyer 1 had yet to
fully pay, he sold & delivered the palay to Buyer 2. Buyer 2 later learned that the palay
was only partially paid for, & Buyer 2 was reimbursed by Buyer 1 for the difference. But
Buyer 2 never delivered the palay back to the seller.
Held: Having been repaid the purchased price by Buyer 1, the sale, as between Buyer 1
& 2, had been voluntarily rescinded, hence divesting Buyer 2 of any claim to the rice.
Buyer 2 should thus return the rice to the seller.
CASE: Pacific Merchandising Co. v. Consolacion Insurance & Surety Co.
Facts: The receiver of certain properties, without approval of the court which appointed
him as receiver, entered into an indemnity agreement whereby he bound himself as
principal to the obligations of the corporation under receivership. A creditor then sought
payment of construction materials & improvements made on a theater owned by the
corporation under receivership. But the received refused to pay, on the ground that in
another court case the theater was adjudicated to belong to the receiver, not the
corporation under receivership.
Held: The owner-receiver must reimburse the creditor for the cost of improvements, as
he benefited from it. Where one has rendered services to another, & these services are
accepted by the latter, in the absence of proof that the service was done gratuitously, it
is but just that he should pay a reasonable remuneration therefor.
CASE: Republic v. Ballocanog
Facts: A person, in good faith, invested money to develop & grow fruit-bearing trees on
land. Later, it was discovered that the land was actually property of the State.
Held: SC recognized that the land as State property, but ordered the State to pay the
person the value of the actual improvements made.
Art. 23. Even when an act or event causing damage to another's property was not due to
the fault or negligence of the defendant, the latter shall be liable for indemnity if through
the act or event he was benefited.
Also Prevents Unjust Enrichment
• Ex. Without A’s knowledge, a flood drives his cattle to the cultivated highland of B.
A’s cattle are saved, but B’s crop are destroyed. In this case, though A was not at
fault, he benefited. Thus, A must indemnify B.
Art. 24. In all contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age, or other handicap, the courts must be vigilant for his protection.
CASE: De Lima v. Laguna
Facts: The pauper litigants were the aggrieved parties in a collision case. They appealed
the decision of the lower court to the Court of Appeals on some points of law not on the
question of interest that should be awarded to them. Before SC, they pointed out new
matters which they did not point out before the Court of Appeals, which is generally not
allowed by remedial law.
Held: SC adopted a liberal stance. It took into consideration the fact that, at the Court of
Appeals stage, the pauper litigants – heirs of the victim in the traffic accident – did not
appeal because they hoped that the transportation company would pay the damages
awarded by the lower court; yet the company instead appealed to the Court of Appeals,
delaying the case which had already been running for 30 years. SC took this as a dilatory
tactic on the part of the transportation company.
CASE: Sps. Domingo v. Astorga
Facts: One of the parties claimed to be disadvantaged by a contract. Yet the parties
executed the contract, implemented it for a lengthy period of time, & benefited from the
contract. There were also no ambiguous provisions in the contract.
Held: The party is not disadvantaged, since it was proven that the parties undertook
lengthy negotiations before the contract was finalized. Also, the party was good in
business.
Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of
acute public want or emergency may be stopped by order of the courts at the instance of
any government or private charitable institution.
Extravagance During Emergency
• Note that the law explicitly provides which entities have legal standing to seek an
injunction: any government or private charitable institution
CLASS DISCUSSION (M)
Q: Mt. Pinatubo exploded. I wanted to throw a party anyway. My heavily affected
neighbors wanted to sue me for being too extravagant in time of calamity. Can my
neighbors stop me?
A: NO. Only a government or private charitable institution can stop me.
Art. 26. Every person shall respect the dignity, personality, privacy, & peace of mind of
his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention
and other relief:
(1) Prying into the privacy of another's residence;
Katrina Monica C. Gaw | Block C 2018| 8
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in
life, place of birth, physical defect, or other personal condition.
o A chief of police is liable for his failure to give assistance to the complainants,
though it was his official duty to do so as an officer of the law.
o A mayor is personally liable for illegally dismissing policemen even if the
mayor has relinquished his position.
CASE: RCPI v. Verchez
Facts: A family in Sorsogon sent a telegram to a family member in Manila, seeking
money for their ailing mother. The telegram company was negligent in failing to send the
telegram & not immediately informing the family of the delay. There was a filial
disturbance which resulted from this failure, with the siblings blaming one another for
failing to respond to the emergency of their mother.
Held: SC awarded damages based on Art. 26 (2) – the disturbance of the peace of mind
of the family.
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit, machination or any other unjust,
oppressive or highhanded method shall give rise to a right of action by the person who
thereby suffers damage.
CASE: Hing v. Choachuy
Facts: A neighbor installed video surveillance cameras directed on a neighboring
business office without the consent of the latter’s owner.
Held: This is a violation of the right to privacy under Art. 26 (1). The owner had the right
to exclude the public or deny them access.
CLASS DISCUSSION (M)
Q: A went to the red light district, paid a prostitute, & was caught having sex with the
prostitute by the husband’s wife. Can the wife file a case invoking Art. 26 (2) in the Civil
Code, against the prostitute?
A: NO. Because the prostitute did not meddle or disturb. The prostitute was the
PURSUED, rather than the pursuer.
Q: What is the recourse of the wife?
A: It can still fall under Art. 20, given that prostitution is vagrancy under the RPC.
Art. 27. Any person suffering material or moral loss because a public servant or
employee refuses or neglects, without just cause, to perform his official duty may file an
action for damages & other relief against the latter, without prejudice to any disciplinary
administrative action that may be taken.
Relief Against Public Officials
• A public official is supposed to be an agent or at least a representation of
government
• The law exerts on said officials a duty to be very vigilant & just so that the public is
ensured that the government is truly effective in serving their needs
• A public officer who commits a tort or other wrongful act done in excess of beyond
the scope of his duty, is not protected by his office, & is personally liable to affected
private individuals
• Examples:
o The president of a state college, in bad faith & despite the decision &
directives of the Office of the Bureau of Public Schools, refused to graduate a
student with honors, even if the student honestly deserved them. The student
was awarded damages.
o A register of deeds assists in the fraudulent procurement of a certificate of
title in violation of the Land Registration Act, damages may be awarded under
Art. 27.
Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court
shall so declare. In the absence of any declaration to that effect, it may be inferred from
the text of the decision whether or not the acquittal is due to that ground.
Proof Beyond Reasonable Doubt
• Amount of proof which forms an abiding moral certainty that the accused
committed the crime charged
• Not absolute certainty, but still more exacting than what is needed in a civil case
Preponderance of Evidence
• As a whole, the evidence adduced by one side outweighs that of the adverse party
• This is the amount of proof needed in civil cases
• If the guilt of the accused is not proven beyond reasonable doubt, he may still be
made civilly liable since only preponderance of evidence is needed
CASE: Mendoza v. Alcala
Facts: The accused was acquitted of estafa. But the decision acquitting him did not state
that the fact from which the civil action might arise did not exist. It also did not state that
the acquittal of the defendant was based on reasonable doubt.
Held: The acquittal of the defendant in the criminal case was predicated on the
conclusion that his guilt of the crime charged has not been proved beyond reasonable
doubt. Hence, it does not preclude a suit to enforce the civil liability from the same
transaction which was the subject matter of the criminal action.
• “Any liability that is owed is civil in character” shows that a civil case can still be
pursued
• It was previously held that a statement that “the guilt of the defendant has not
been satisfactorily established” is considered based on reasonable doubt.
Art. 30. When a separate civil action is brought to demand civil liability arising from a
criminal offense, & no criminal proceedings are instituted during the pendency of the
civil case, a preponderance of evidence shall likewise be sufficient to prove the act
complained of.
Civil Obligation Arising from a Criminal Offense
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•
•
Even in this instance, the required quantum of evidence is preponderance of
evidence
Proof beyond reasonable doubt is required only in the criminal aspect cases
Art. 31. When the civil action is based on an obligation not arising from the act or
omission complained of as a felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter.
Civil Obligation Not Arising from a Felony
• Refers to certain injuries which do not necessarily arise from the commission of a
crime, though there is an injured party
o Ex. Quasi-delicts under Arts. 2176-2194 of the Civil Code
§ Art. 2176: Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict.
• Art. 31 does not provide for an independent civil action.
o An independent civil action is an action based on the same criminal act, as in
Arts. 32, 33, & 34.
o In instances covered by Art. 31, such as quasi-delicts, the civil action may
proceed totally independently of the criminal action, so that any acquittal in
the criminal case, even if based on reasonable doubt, has no effect on the
civil case under Art. 31.
o Art. 31 applies to culpa contractual, or contractual-based claims
§ Ex. If a driver is acquitted of the crime of reckless imprudence resulting in
homicide on the basis of reasonable doubt, the transportation company
may still be sued as a common carriers, regardless of the acquittal or any
criminal liability of its driver charged in the criminal case
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights & liberties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in a peaceable assembly to petition the Government for
redress of grievances;
(14) The right to be a free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself & counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward
to make such confession, except when the person confessing becomes a State
witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same
is imposed or inflicted in accordance with a statute which has not been judicially
declared unconstitutional; &
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate & distinct civil action for damages, & for other relief. Such civil action
shall proceed independently of any criminal prosecution (if the latter be instituted), &
may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute.
Particular Wrong or Injury
•
Two kinds of duties exercised by public officers:
o Of Duties to the Public – officers whose duty is owed primarily to the public
collectively and not to any particular individual.
§
Ordinarily paid out of the public treasury
§
Individual cannot single himself out and assert that acts by these
kinds of officials are duties owing to him and him alone
§
Ex.: It is the duty of members of legislature to pass only wise &
proper laws; highway commissioners owe a duty that they will be
governed only by considerations of the public good in deciding to
open and close certain highways
o Of Duties to Individuals – officers who, by reason of their employment by a
particular individual to do some act for him in an official capacity, is under
a special and particular obligation tot their employer as an individual.
§
Ordinarily receive compensation from fees paid by each individual
who employs them
§
They owe to the public a general duty of proper administration of
their respective offices
§
Examples: a sheriff or constable in serving civil process for a
private suitor; a recorder of deeds in recording the deed or
mortgage of an individual; a notary public in protesting negotiable
paper
•
An individual can hold a public officer personally liable for damages on account of
an act or omission that violates a constitutional right only if it results in a particular
wrong or injury to the former.
o Tort law: for a plaintiff to maintain an action for damages for the injuries of
which he complains, he must establish that:
§
Such injuries resulted from a breach of duty which the defendant
owed the plaintiff, meaning a concurrence of injury to the plaintiff
and legal responsibility by the person causing it
Katrina Monica C. Gaw | Block C 2018| 10
o
Complaints must also state a cause of action — the act or omission by
which a party violates the right of another. This exists if the following
elements are present:
§
A right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
§
An obligation on the part of the named defendant to respect or not
to violate such right
§
An act or omission on the part of such defendant violative of the
right of the plaintiff or constituting a breach of the obligation of
defendant to plaintiff for which the latter may maintain an action
for recovery of damages
Separate Civil Action for Filing Constitutional Rights
•
1947 Constitutional Commission acknowledged that:
o In most cases, threat to individual freedom originates from abuse of power
of government officials & peace officers.
o The requirement of proof beyond reasonable doubt (for criminal cases)
often prevents appropriate punishment, which a civil action only requires
the preponderance of evidence.
o There are subtle, clever, & indirect ways of trampling upon the freedoms
named which do not violate the Penal Code
CASE: Aberca v. Ver
Public officials can be made civilly liable for acts done which violate the constitutional
rights of individuals.
Facts: Plaintiffs alleged that the defendants, who were members of a military raiding
team, were liable for damages for violating their rights when they, in undertaking their
raid, employed defectively issued search warrants; confiscated a number of purely
personal items; made arrests without proper warrants; denied them visits of relatives
and lawyers; interrogated them in violation of their right to council; and employed, during
the interrogation, threats, tortures, and other forms of violence to obtain incriminatory
information or confessions. SG dismissed their case because they states no cause of
action for damages, and added too that the defendants were immune from liability for
acts done in performance of their official duties, and the privilege of habeas corpus has
been suspended.
Held: SC sides with the plaintiffs and finds defendants are liable for damages. Superior
officers, who are indirectly responsible for the violation of the Constitution, are also
liable. Art. 32 allows for a civil action to be filed against public officials when said public
officials directly or indirectly violate the rights of individuals listed in said article.
CASE: Lim v. Ponce de Leon
Good faith is not a defense to be exempt from Art. 32.
Facts: A fiscal ordered the impounding of a stolen motor launch without a valid search
warrant issued by the court despite having enough time to legally obtain one. He
delegated this command to a detachment commander of the province, who, faced with a
possible disciplinary action, hesitantly seized the motor launch upon orders of the
provincial commander who was in turn ordered by the fiscal. The fiscal, to prevent being
made liable under Art. 32, contended he was in good faith and without malice. The
detachment commander contended that he was merely obeying his superior officer’s
commands, & was led to believe these commands were lawful.
Held: The fiscal is liable for damages; the detachment commander is absolved. To be
liable under Art. 32, it is enough that there was a violation of constitutional rights of the
plaintiffs. It is not required that defendants should have acted with malice or bad faith.
The object of Art. 32 is to put an end to official abuse by the plea of good faith. Thus, as
fiscal caused the impounding of the motor launch, he is liable for damages. But the
detachment commander is not liable because he was merely following orders, & showed
reluctance to perform the act. He was also led to believe there was legal basis to
impound the launch.
Judges
•
Judges cannot be subjected to liability — civil, criminal, or administrative — for any
of their official acts, no matter how erroneous, as long as they act in good faith.
•
It is only when they act fraudulently or corruptly, or with gross ignorance, that they
face criminal or administrative liability.
Art. 33. In cases of defamation, fraud, & physical injuries a civil action for damages,
entirely separate & distinct from the criminal action, may be brought by the injured party.
Such civil action shall proceed independently of the criminal prosecution, & shall require
only a preponderance of evidence.
Rationale
•
To allow a citizen to enforce his rights in a private action brought by him,
regardless of the State attorney, so he can become self-reliant
Terms
•
Terms fraud, defamation and physical injuries must be understood in their ordinary
sense:
o Fraud – can include estafa
o Defamation – can include libel
o Physical injuries – can include death or the crime of homicide but it cannot
include reckless imprudence/criminal negligence resulting in homicide
Art. 34. When a member of a city or municipal police force refuses or fails to render aid
or protection to any person in case of danger to life or property, such peace officer shall
be primarily liable for damages, & the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be independent of any
criminal proceedings, & a preponderance of evidence shall suffice to support such
action.
Members of Police Force
•
It is the police’s job to see to it that there is peace & order in the community;
failure or refusal to render duties can be a basis for claiming damages against
them.
•
City or municipality will be subsidiarily responsible therefor.
o Partially responsible, as they employ the officers.
Art. 35. When a person, claiming to be injured by a criminal offense, charges another
with the same, for which no independent civil action is granted in this Code or any
special law, but the justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or fails to institute
Katrina Monica C. Gaw | Block C 2018| 11
criminal proceedings, the complainant may bring a civil action for damages against the
alleged offender. Such civil action may be supported by a preponderance of evidence.
Upon the defendant's motion, the court may require the plaintiff to file a bond to
indemnify the defendant in case the complaint should be found to be malicious.
If during the pendency of the civil action, an information should be presented by the
prosecuting attorney, the civil action shall be suspended until the termination of the
criminal proceedings.
Procedural Technicalities
•
Rule 111 of the Rules of Court of the Philippines outlines the procedures that must
be followed when attempting to file both a criminal and civil case:
o Sec. 1 (a) - When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless:
§
The offended party waives the civil action;
§
Reserves his right to institute it separately or institute the civil
action prior to the criminal action
•
When should this be made?
o Before the prosecution starts presenting its evidence
and under circumstances affording the offended
party a reasonable opportunity to make such
reservation.
o Filing fees:
§
If there is no specified amount in the complaint, the filing fee
therefor shall constitute a first lien5 on the judgment awarding such
damages.
§
Where the amount is specified in the complaint, the corresponding
filing fees shall be paid by offended party upon filing thereof in the
court.
o No counterclaim, cross-claim, or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have
been the subject thereof may be litigated in a separate civil action
•
Sec. 1 (b) – Special rules in situations involving B.P. 22 (Bouncing Check Law)
o The criminal action for violation of B.P. 22 shall be deemed to include the
corresponding civil action.
o No reservation to file such civil action separately is allowed.
o Upon the filing of the complaint, the full filing fees must be paid for.
•
Sec. 2 - When a separate civil action is suspended
o After a criminal action has been commenced, the separate civil action
arising from the said case will be suspended until final judgment is
rendered on the criminal action.
o Consolidation of civil & criminal case
§
The offended party can consolidate the civil claim with the criminal
action in the court trying the criminal action
§
This action is valid until the judgment on the criminal action has
been pronounced
A judgment lien is created when a court grants a creditor an interest in the debtor's property, based upon a court judgment. A
plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor." Judgment
liens may be created through a wide variety of circumstances. For example, if a person negligently injures someone in an accident,
the injured person is likely to sue for damages. If the insurance doesn't cover the judgment, a judgment lien may be placed against
the negligent person's property to secure payment of the claim to the injured party.
5
§
The consolidated cases shall be tried and decided jointly.
What happens to the prescriptive period of the civil action upon pendency
of the criminal action?
§
The period of prescription shall be tolled
o The extinction of the penal action does not carry with the extinction of the
civil action
§
Unless: it is found that the criminal action resulting in civil liability
did not exist
Sec. 3 - When the civil action may proceed independently
o In cases provided in Art. 32, 33, 34 and 2176 of the Civil Code
§
Shall independently of the criminal action and shall require only a
preponderance of evidence
o In no case may the offended party recover damages twice for the same act
or omission charged in the criminal action
Sec. 4 - Effect of death
o The death of the accused after arraignment and during the pendency of the
criminal action shall extinguish the civil liability arising from the crime.
o However, the independent civil action under Sec. 3 may be continued
against the estate or legal representative of the accused after proper
substitution or against said estate, as the case may be.
o Legal representatives
§
Representatives to appear and be substituted within period of 30
days from notice
Sec. 5 - Judgment in civil action not a bar
o If the defendant is absolved from civil liability, he can still be tried for
criminal liability for the same act or omission as the subject of the civil
action.
o
•
•
•
Art. 36. Prejudicial questions, which must be decided before any criminal prosecution
may be instituted or may proceed, shall be governed by rules of court which the Supreme
Court shall promulgate & which shall not be in conflict with the provisions of this Code.
General Rule
• Where both a civil and criminal case arising from the same facts are filed in the
court, the criminal case takes precedence.
Exceptions
• If there are prejudicial questions which should be resolved first before action can be
taken in a criminal case
• When the law provides that both civil and criminal case can be instituted
simultaneously (such as in Art. 33)
Prejudicial Questions
• One that arises in a case, the resolution of which is a logical antecedent of the issue
involved therein, & the cognizance of which pertains to another tribunal
• Two essential elements:
o The previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action;
o The resolution of such issue determines whether or not the criminal action
may proceed
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•
•
•
In prejudicial question matters, there is always a civil and criminal case.
o The issues in the civil case determine the outcome of the criminal case.
Where can these be filed?
o In the officer of the prosecutor or the court conducting the preliminary
investigation
Until when can they be filed?
o When the criminal action has been filed in court for trial, any time before the
prosecution rests
CASE: Fortich-Celdran v. Celdran
A prejudicial question exists when one important issue must be resolved before another
case can proceed.
Facts: A person alleges that his “motion to withdraw” filed in approved by the court was
falsified and that the consequent decision of the court, basing his rights on the motion
and disregarding his claim of falsification, was erroneous. The decision on the civil case
was appealed to the Court of Appeals before the said person filed a criminal case
against the accused for falsification of public document.
Held: SC ruled that the civil case should be decided first, as it answers a prejudicial
question, which will determine the results of the criminal case. The falsification of the
“motion to withdraw” is intimately linked with the subsequent criminal case for falsifying
of document, and can affect the results of the criminal proceedings.
CASE: Jimenez v. Averia
An example of non-applicability of prejudicial questions.
Facts: The accused was criminally charged of estafa for not returning money given to
them as agents for the purpose of buying a boat which never materialized. Prior to the
arraignment, the accused filed a case assailing the validity of the receipt where in they
acknowledged having received the amount of money (P20,000) but also contended that
their signatures in the receipt were obtained through fraud, deceit and intimidation. The
lower court suspended the criminal case believing that the issues in the civil case pose a
prejudicial question.
Held: SC ruled that there is no prejudicial question answered by the civil case in
connection to the criminal case. The question of the invalidity of the signatures found in
the receipt does not determine the guilt or innocence of the parties charged with estafa,
because the accused still received the P20,000 with which to buy the fishing boat &
misappropriated the money given.
Bigamy Example
•
A spouse was criminally charged with bigamy by his first spouse, and thereafter,
the second wife filed a civil case for annulment of marriage contending that the
accused only forced and intimidated her to marry him.
•
The accused then filed a third-party complaint against his first spouse, saying that
she had intimated and forced him to marry her.
•
SC ruling: The existence of the civil suit does not constitute a prejudicial question
to warrant a suspension of the criminal case for bigamy, because the first marriage
was still not annulled and still validly exists.
•
A party who contracts a second marriage then assumes the risk of being
prosecuted for bigamy.
•
IF, however, the husband made the claim that he was merely intimidated by the
second wife to enter into the bigamous marriage, his consent to the second
marriage would be involuntary and cannot be the basis of his conviction of bigamy.
He would be convicted of bigamy either way.
o The civil case for the annulment of his second marriage is a prejudicial
question to warrant the suspension of the criminal case for bigamy.
Concubinage Example
•
A husband files a civil action for declaration of nullity of his marriage on the ground
of psychological incapacity under Art. 36 of the Family Code.
•
The wife then files a criminal case for concubinage against the said husband & his
paramour.
•
SC: The civil action for nullity of marriage is not a suit involving a prejudicial action
to justify the suspension of the criminal case for concubinage. A subsequent
pronouncement of the nullity of marriage is not a defense in concubinage. As long
as there is no judicial declaration of nullity of marriage, the presumption is that the
marriage exists for all intents & purposes.
Parricide Example
•
A parricide6 case was filed against the husband for killing his wife.
•
Later, the husband filed a civil action for declaration of nullity of marriage on the
ground of psychological capacity.
•
SC: A civil case for the declaration of nulliy of marriage is not a prejudicial question
in a criminal case for parricide, especially in a case where the crime was
committed when the marriage had yet to be judicially voided.
BOOK I. PERSONS
TITLE I. CIVIL PERSONALITY
CHAPTER 1. General Provisions
Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is
inherent in every natural person & is lost only through death. Capacity to act, which is the
power to do acts with legal effect, is acquired & may be lost. (n)
Juridical Capacity
• Acquired upon the birth of a person, & terminated upon his death
• Under the Civil Code, even if a child is still unborn & merely inside the womb of the
mother, he is already given a provisional personality which entitles him to be
supported or to receive donation
Capacity to Act
• Not inherent in a person; it is attained or conferred
• It is lost not only by death, but also by any other valid cause provided by law
Art. 38. Minority, insanity, or imbecility, the state of being a deaf-mute, prodigality, & civil
interdiction are mere restrictions on capacity to act, & do not exempt the incapacitated
person from certain obligations, as when the latter arise from his acts or from property
relations, such as easements. (32a)
6
This crime is committed by a person who kills his father, mother, child, ascendants, descendants, or spouse.
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Art. 39. The following circumstances, among others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations,
alienage, absence, insolvency, & trusteeship. The consequences of these circumstances
are governed in this Code, other codes, the Rules of Court, & in special laws. Capacity to
act is not limited on account of religious belief or political opinion.
A married woman, 21 years of age or over, is qualified for all acts of civil life, except in
cases specified by law. (n)
CHAPTER 2. Natural Persons
Art. 40. Birth determines personality; but the conceived child shall be considered born
for all purposes that are favorable to it, provided it be born later with the conditions
specified in the following article. (29a)
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the fetus had an intra-uterine
life of less than 7 months, it is not deemed born if it dies within 24 hours after its
complete delivery from the maternal womb. (30a)
Art. 40 Modified by P.D. 603 (Child Youth & Welfare Code)
• Art. 40 has been amended by Art. 5 of P.D. 603, which provides that: “The civil
personality of the child shall commence from the time of his conception for all
purposes favorable to him, subject to the requirements of Art. 41o f the Civil Code.”
Commencement of Civil Personality
• A conceived child, though yet unborn, can have civil personality, & may receive
donations or succeed or inherit from a decedent, provided that it be born later
under the conditions prescribed in Art. 41.
• CASE: Geluz v. CA – A parent cannot invoke the “provisional personality” of his
conceived child to obtain damages for & on behalf of an aborted child, since the
conditions under Art. 40 & 41, in such case, would not be met. Instead, the parents
can file damages in their own right against the doctor who caused the abortion.
CASE: Quisumbing v. Icao
A conceived child, though still unborn, is given by law a provisional personality of its own
for all purposes favorable to it
Facts: Carmen, assisted by her parents, sued Felix, her neighbor. She claimed that Felix,
although married, had succeeded in having sex with her against her will & by force, & as
a result, she became pregnant & had to drop out of school. She thus filed this claim for
the support of their child. Felix filed a motion to dismiss, arguing that Carmen failed to
allege that the child had been born; hence, there was no cause of action. The trial court
granted the motion to dismiss.
Held: The trial court erred when they granted the motion to dismiss. A conceived child,
though as yet unborn, has the right to support from its progenitors, including the
defendant, just as a conceived child, though unborn, may be given donations or may
succeed. Support can be granted to children yet unborn.
Birth Certificate
• The best evidence of the fact of birth is the birth certificate
•
•
•
The birth certificate becomes a public document once registered with the Office of
the Local Civil Registerar
BUT: Entries therein are only prima facie evidence of the facts it contains; they can
be rebutted by competent evidence
Sec. 4, Civil Registry Law, provides –
o The declaration of the physician or midwife in attendance at the birth, or in
default therein, the declaration of either parent of the newborn child, is
sufficient to register a birth in the civil registrar
o In the case of an exposed child, the person who found the child shall report the
same to the registrar, giving the date, place, & hour of finding & other
attendant circumstances
o If the child is illegitimate, the birth certificate shall be signed & sworn jointly by
the infant’s parents, or only by the mother, if the father refuses.
§ If the dad refuses to acknowledge the child, any information regarding
the father, including his name, cannot be placed in the birth certificate.
Confidentiality of Birth Records
• Birth records are confidential; their contents cannot be revealed except in cases
provided by law.
• The mere filing of these documents with the civil registrar does not serve as
constructive notice to all persons of such documents or the facts contained therein,
given their confidential nature
• BUT these records remain public documents because, following the proper
procedure, they can be obtained under P.D. No. 603, by the following –
o The person himself, or any other person authorized by him
o His spouse, parents, his direct descendants, or the guardian or institution
legally in charge of him if he is a minor
o The court or proper public official whenever absolutely necessary in
administrative, judicial, or other official proceedings to determine the identity of
the child’s parents or other circumstances surrounding his birth
o In case of the person’s death, his nearest of kin
CLASS DISCUSSION (M)
Q: Within the 24 hours, the baby less than 7 months intra-uterine life was murdered by
choking by a madman. Did the baby acquire civil personality?
A: NO. The law does not distinguish. For as long as the baby does not survive 24 hours,
then the child has no civil personality.
Art. 42. Civil personality is extinguished by death. The effect of death upon the rights &
obligations of the deceased is determined by law, by contract and by will. (32a)
Death
• Death puts an end to civil personality
• Ex. In the law of co-ownership, a co-owner may buy back the piece of a co-owned
property sold by another co-owner. In a case where the decedent passed down by
succession a property to 6 co-heirs, if one co-heir sells his share, the other co-heirs
will be able to exercise a right of redemption & attempt to buy back the selling coheir’s share not because of the right of redemption of the deceased who gave them
the inheritance, but because of their rights as co-owners. The deceased could not
have acquired the righto f redemption after his death, when the sale was made to
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the third party, because death extinguished his civil personality, & therefore, all
further juridical capacity to acquire or transmit rights & obligations of any kind.
Death Certificate
• The local civil registrar of a municipality or city has in its custody the death
certificates of persons who died in its locality
Contract, Will, & the Law
• The rights & obligations of a dead person can still be regulated by contract, will, or
the law
o Ex. Creditors can claim from the estate of the deceased any obligation due
them before the estate can finally be partitioned in favor of the heirs
o Ex. The testator, through express provision in a will, may disinherit any of his
heirs under any of the valid grounds provided by law, thereby, in effect,
controlling the disposition of his properties even after death
o Ex. Any person who shows disrespect to the dead, or wrongfully interferes
with a funeral, shall be liable to the family of the deceased for damages,
material & moral
*[BAR] Art. 43. If there is a doubt, as between two or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death of one
prior to the other, shall prove the same; in the absence of proof, it is presumed that they
died at the same time and there shall be no transmission of rights from one to the other.
(33)
Proof of Death
• Art. 43 specifically applies only to persons who are called to succeed each other
• Proof of death must be established by positive evidence
o It may be established by circumstantial evidence derived from facts
o BUT it may never be established by mere inference from another inference,
or by some presumption
CASE: Joaquin v. Navarro
Where there is evidence to show which of two persons called to succeed each other died
first, the evidence, rather than the presumption in Art. 43, will prevail.
Facts: The mother & son in this case died during the massacre of civilians in Feb. 1945,
while Manila was bombarded in WW2. There was evidence to show that the son ran out
& got shot by bullets, while the mother stayed behind in the shelter of a building.
Held: Given that preponderance of evidence exists to show that the son died before the
mother. This evidence is what was upheld by the SC.
CLASS DISCUSSION (M)
Q: A & B are friends. A is 100-years-old. B is 25-years-old. A is weak, B is strong. There
was an explosion. Both A & B died. Who was presumed to have died first?
A: A.
Q: But if A & B are father & son, who is presumed to have died first?
A: None of them. If you cannot prove who died first, they will be presumed to have died at
the same time, and there will be no transmission of rights. There will instead be escheat
proceedings. So you better make sure one of you die first!
CHAPTER 3. Juridical Persons
Art. 44. The following are juridical persons:
(1) The State & its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created
by law; their personality begins as soon as they have been constituted according
to law;
(3) Corporations, partnerships and associations for private interest or purpose to
which the law grants a juridical personality, separate & distinct from that of each
shareholder, partner or member. (35a)
Art. 45. Juridical persons mentioned in Nos. 1 & 2 of the preceding article are governed
by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the subject.
Partnerships & associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (36 & 37a)
Art. 46. Juridical persons may acquire & possess property of all kinds, as well as incur
obligations & bring civil or criminal actions, in conformity with the laws & regulations of
their organization. (38a)
Juridical Person
• A juridical person is a being of legal existence susceptible of the rights &
obligations, or of being subject of juridical relations
State
• The State & its political subdivisions are juridical persons
• As a juridical person, the State –
o Can enter into treaties & contracts
o Can, in default of persons entitled to succeed to the estate of a deceased
person, inherit the latter’s whole estate
• The State cannot be sued without its consent
o Express consent – through general or special law
o Implied consent –
§ When the government enters into business contracts, thereby
descending into the level of a contracting party
§ When the State files a complaint, thus opening itself to a counterclaim
• But even in instances when the State waives its sovereign immunity & allows itself
to be sued, it is only giving the plaintiff the chance to prove that it is liable. It does
not mean that the judgment can be enforced by execution against the State’s
funds.
o Every disbursement of public funds must be covered by a corresponding
appropriation passed by the legislature
o Government properties & funds cannot be seized under writs of execution
or garnishment to satisfy such judgments
Political Subdivisions
• Municipal corporations, consisting of provinces, cities, & municipalities
• They exist in a dual capacity –
o In a sovereign capacity – when exercising political or governmental
functions
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o
In a private, proprietary, or corporate capacity – arising from their existence
as legal persons & not as public agencies
CASE: Municipality of San Fernando v. Judge Firme
Municipal corporations are agencies of the State when they are engaged in government
functions & enjoy sovereign immunity from suit. Nevertheless, they can sue or be sued
because of the grant under their respective charters.
Facts: The plaintiff sued the municipality of San Fernando for damages caused by its
driver. The driver caused the damage while on his way to the Naguilian river to get a load
of sand & gravel for the repair of the municipality’s streets.
Held: SC exonerated the municipality because the employee was undertaking
governmental activities. Municipal corporations are not generally liable for torts
committed by them in the discharge of governmental functions & can be held
answerable only if it can be shown that they were acting in a proprietary capacity. In
permitting such entities to be sued, the State merely gives the claimant the right to show
that the defendant was not acting in a governmental capacity when the injury was
committed or falls under exceptions provided by law. Failing this, the claimant cannot
recover.
Corporation
• A corporation is an artificial being created by operation of law, having the right of
succession and the powers, attributes and properties expressly authorized by law
or incident to its existence.
• General law governing public corporations – Corporation Code (B.P. Blg. 68)
• Government corporations, such as the Development Bank of the Philippines &
PAGCOR, are created by their own special chapters passed by the legislature, with
B.P. Blg. 68 applying suppletorily
Partnership (Art. 1767, Civil Code)
• By the contract of partnership two or more persons bind themselves to contribute
money, property, or industry to a common fund, with the intention of dividing the
profits among themselves.
• Two or more persons may also form a partnership for the exercise of a profession.
Distinct Personality & Exceptions
• Corporations, partnerships, & associations for private interests may be granted by
law a juridical personality separate & distinct from that of each shareholder,
partner, or member
• Obligations of the corporation are not the obligations of its stockholders, & vice
versa
o As a general rule, shareholders cannot intervene in cases involving their
corporation; the corporation is a distinct legal person from them & any share
they may have in corporate property is merely inchoate
• This legal fiction of a distinct personality is highly pronounced in corporations, but
it can be pierced & disregarded, thereby making shareholders liable for corporate
liabilities.
o Under the doctrine of piercing the veil of corporate fiction, when the
corporate fiction is used to defeat public convenience, protect fraud, justify
wrong, or defend crime, it will be disregarded. The corporation will be treated
as an association of persons only & shareholders can be made liable.
Art. 47. Upon the dissolution of corporations, institutions, & other entities for public
interest or purpose mentioned in No. 2 of Art. 44, their property, & other assets shall be
disposed of in pursuance of law or the charter creating them. If nothing has been
specified on this point, the property & other assets shall be applied to similar purposes
for the benefit of the region, province, city, or municipality which during the existence of
the institution derived the principal benefits from the same. (39a)
Laws on Dissolution
• For private corporations – Corporation Code
• For corporations of public interest or purposes created by charter – their charter
governs; in the absence of provisions on dissolution in their charters, the
Corporation Code
• For partnerships – the Civil Code
TITLE II. CITIZENSHIP AND DOMECILE
Art. 48.7 The following are citizens of the Philippines:
(1) Those who were citizens of the Philippines at the time of the adoption of the
Constitution of the Philippines;
(2) Those born in the Philippines of foreign parents who, before the adoption of said
Constitution, had been elected to public office in the Philippines;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines, &, upon reaching the age of
majority, elect Philippine citizenship;
(5) Those who are naturalized in accordance with law. (n)
Art. 49. Naturalization & the loss & reacquisition of citizenship of the Philippines are
governed by special laws. (n)
Art. 50. For the exercise of civil rights & the fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual residence. (40a)
Art. 51. When the law creating or recognizing them, or any other provision does not fix
the domicile of juridical persons, the same shall be understood to be the place where
their legal representation is established or where they exercise their principal functions.
(41a)
Domicile & Residence
•
Domicile – denotes a fixed permanent residence to which, when absent, one
has the intention of returning
•
Residence – indicates a place of abode, whether permanent or temporary
•
A minor follows the domicile of his parents
o Under the Family Code, the husband & wife fix the family domicile; if they
cannot agree, the courts shall fix it for them
•
A man may have his residence in one place, & his domicile in another
o He may have as many residences as he wants, but he can have only one
domicile
7
No longer controlling; the 1987 Constitution now governs the rule on Philippine citizenship
Katrina Monica C. Gaw | Block C 2018| 16
•
o Ex. A woman may have lived for many years in different places, & may be
a registered voter in one place, but that place is not necessarily her
domicile if it is not the residence where she really has the intention of
returning
Requisites for Changing the Domicile of Origin
Citizenship
•
Art. IV of the 1987 Constitution now governs the rule on citizenship
•
Provisions:
o Sec. 1 – Sec. 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before Jan. 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; &
(4) Those who are naturalized in accordance with law.
o Sec. 2 – Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with par. (3), Sec. 1 hereof shall be deemed
natural-born citizens.
o Sec. 3 – Philippine citizenship may be lost or reacquired in the manner
provided by law.
o Sec. 4 – Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission, they are deemed, under the
law, to have renounced it.
o Sec. 5 – Dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law.
Jus Sanguinis
• Jus sanguinis – citizenship by blood; this is what is followed in the Philippines since
being born of a Filipino father or mother determines citizenship
• Jus soli – citizenship on the basis of place of birth
Acquisition of Citizenship (C.A. No. 473)
• Sec. 2. Qualifications. – Subject to section four of this Act, any person having the
following qualifications may become a citizen of the Philippines by naturalization:
(1) He must be not less than 21 years of age on the day of the hearing of the
petition;
(2) He must have resided in the Philippines for a continuous period of not less
than 10 years;
(3) He must be of good moral character & believes in the principles underlying
the Philippine Constitution, & must have conducted himself in a proper and
irreproachable manner during the entire period of his residence in the
Philippines in his relation with the constituted government as well as with
the community in which he is living.
(4) He must have some known lucrative trade, profession, or lawful occupation;
(5) He must be able to speak and write English or Spanish & any one of the
principal Philippine languages; &
(6) He must have enrolled his minor children of school age, in any of the public
schools or private schools recognized by the Office of Private Education of
•
•
the Philippines, where the Philippine history, government, & civics are
taught or prescribed as part of the school curriculum, during the entire
period of the residence in the Philippines required of him prior to the
hearing of his petition for naturalization as Philippine citizen.
Sec. 3. Special qualifications. The 10 years of continuous residence required
under the second condition of the last preceding section shall be reduced to 5
years for any petitioner having any of the following qualifications:
(1) Having honorably held office under the Government of the Philippines or
under that of any of the provinces, cities, municipalities, or political
subdivisions thereof;
(2) Having established a new industry or introduced a useful invention in the
Philippines;
(3) Being married to a Filipino woman;
(4) Having been engaged as a teacher in the Philippines in a public or
recognized private school not established for the exclusive instruction of
children of persons of a particular nationality or race, in any of the branches
of education or industry for a period of not less than 2 years
(5) Having been born in the Philippines.
Sec. 4. Who are disqualified. - The following cannot be naturalized as Philippine
citizens:
(1) Persons opposed to organized government or affiliated with any association
or group of persons who uphold & teach doctrines opposing all organized
governments;
(2) Persons defending or teaching the necessity or propriety of violence,
personal assault, or assassination for the success & predominance of their
ideas;
(3) Polygamists or believers in the practice of polygamy;
(4) Persons convicted of crimes involving moral turpitude;
(5) Persons suffering from mental alienation or incurable contagious diseases;
(6) Persons who, during the period of their residence in the Philippines, have
not mingled socially with the Filipinos, or who have not evinced a sincere
desire to learn and embrace the customs, traditions, & ideals of the
Filipinos;
(7) Citizens or subjects of nations with whom the Philippines is at war, during
the period of such war;
(8) Citizens or subjects of a foreign country other than the U.S. whose laws do
not grant Filipinos the right to become naturalized citizens or subjects
thereof.
Loss & Reacquisition of Citizenship (C.A. No. 63, as amended by R.A. 106)
•
Grounds for loss
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of
a foreign country upon attaining 21 years of age or more: Provided,
however, That a Filipino may not divest himself of Philippine citizenship in
any manner while the Philippines is at war with any country;
(4) By rendering services to, or accepting commission in, the armed forces of a
foreign country: Provided, That the rendering of service to, or the
acceptance of such commission in, the armed forces of a foreign country,
and the taking of an oath of allegiance incident thereto, with the consent of
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•
the Philippines, shall not divest a Filipino of his Philippine citizenship if
either of the following circumstances is present:
a. The Republic of the Philippines has a defensive and/or offensive pact
of alliance with the said foreign country; or
b. The said foreign country maintains armed forces on Philippine
territory with the consent of the Republic of the Philippines: Provided,
That the Filipino citizen concerned, at the time of rendering said
service, or acceptance of said commission, and taking the oath of
allegiance incident thereto, states that he does so only in connection
with his service to said foreign country: And provided, finally, That any
Filipino citizen who is rendering service to, or is commissioned in, the
armed forces of a foreign country under any of the circumstances
mentioned in par. (a) or (b), shall not be permitted to participate nor
vote in any election of the Republic of the Philippines during the
period of his service to, or commission in, the armed forces of said
foreign country. Upon his discharge from the service of the said
foreign country, he shall be automatically entitled to the full
enjoyment of his civil and political rights as a Filipino citizen;
(5) By cancellation of the of the certificates of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine
armed forces in time of war, unless subsequently, a plenary pardon or amnesty
has been granted; and
(7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the
laws in force in her husband's country, she acquires his nationality.
Grounds for reacquisition
(1) By naturalization: Provided, That the applicant possess none of the
disqualification's prescribed in Sec. 4 of C.A. No. 473;
(2) By repatriation of deserters of the Army, Navy or Air Corp: Provided, That a
woman who lost her citizenship by reason of her marriage to an alien may be
repatriated in accordance with C.A. 473 after the termination of the marital
status; &
(3) By direct act of the Congress.
THE FAMILY CODE OF THE PHILIPPINES
•
•
•
Executive Order No. 209
Date of effectivity: August 3, 1988
Additional amendments:
o RA No. 6809: amended Title X of the Family Code dealing with emancipation
and age of majority
§
Effectivity: December 8, 1989
o RA No. 10572: amended Art. 73 & 111
§
Effectivity: June 8, 201312
entered into in accordance with the law for the establishment of conjugal and family life.
It is the foundation of the family & an inviolable social institution whose nature,
consequences, & incidents are governed by law & not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage within the limits
provided by this Code.
Breakdown of Provision
•
Marriage is…
o A special contract of permanent union
o Between a man & a woman
o Entered into in accordance with the law
o For the establishment of conjugal & family life.
o The foundation of family
o An inviolable social institution
o Nature, consequences & incidents are governed by law and not subject to
stipulation, except marriage settlements, which may fix property relations
during the marriage
Nature and Importance of Marriage
•
Marriage is a sacred obligation & a civil contract regulated by law
•
Distinctions between marriage and a mere contract:
o Other contracts may be modified, enlarged, restricted or released; not so with
marriage
o Consent on obligations of marriage is not taken from concurring minds; it is the
created law itself
o Preserving marriage is essential for public welfare
CASE (Bove v. Pinciotti)
On the special nature of the contract of marriage
Facts: Petitioner filed for annulment of his marriage, on the ground that he never
intended to marry the respondent, & only did so to give a name to the child in her womb,
which however was never born; thus, petitioner argues, there was a failure in the
consideration of the marriage contract.
Held: DENIED. Marriage is not at most a civil contract but is at least a civil contract.
Regular laws on obligations & contracts do not govern it. It is a status & a kind of fealty
to the State.
CASE (Phil. Telegraph & Telephone Co. v. NLRC)
On the illegality of discriminatory policies with regard to married individuals that have no
sound basis
Facts: A company policy disqualified from work any woman worker who contracts
marriage.
Held: VOID for violating equal protection clause & going against State policy on marriage.
Marriage cannot be the source of interdiction nor discrimination in the workplace.
TITLE I – MARRIAGE
Chapter I: REQUISITES OF MARRIAGE
Art. 1. Marriage is a special contract of permanent union between a man & a woman
12
Based on its approval date, May 24, 2013 and following the 15-day effecitivity rule as written in the Act itself.
Marriage & Criminal Laws
•
Art. 349, Revised Penal Code (Bigamy): The penalty of prision mayor shall be
imposed upon any person who shall contract a second or subsequent marriage
o Before the former marriage has been legally dissolved or
o Before the absent spouse has been declared presumptively dead by means of
a judgment rendered in the proper proceedings.
Katrina Monica C. Gaw | Block C 2018| 18
•
•
Art. 350, Revised Penal Code: The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any person who
o Shall have not been complied with [the requisites of the law for marriage]
o [Contracts] marriage in disregard of a legal impediment
If either of the contracting parties shall obtain the consent of the other by means of
violence, intimidation or fraud, he shall be punished by the maximum period of the
penalty provided in the next preceding paragraph.
Marriage Law of 1929: Criminal penalties for erring persons who are authorized to
solemnize a marriage
o Note that this is the only provision in the Marriage Law of 1929 which has not
been repealed by any law, including the Family Code
o
Mail-Order Bride
•
R.A. No. 6955, Sec. 2 (June 13, 1990)
•
Criminal offense for any natural or juridical entity who directly or indirectly:
o Established a business for matching Filipino women with foreign nationals, by
personal introduction or mail-order basis
o Advertised, published, distributed any materials that promote such businesses
§
Any manager of a publication which allows or consents to the acts above
are also liable
Trafficking in Women
•
R.A. No. 9208: The Anti-Trafficking in Persons Act of 2003
•
The following acts are illegal:
o Introducing or matching any person or, as provided in R.A. No. 6955, any
Filipino woman to a foreign national for the purpose of acquiring, buying,
offering, selling or trading him/her to engage in prostitution, pornography,
sexual relations, involuntary servitude, debt bondage or slavery for money,
profit, or material, economic or other consideration
o To offer or contract real or simulated marriage for the same reasons as above.
Marriage between Rapist & Raped Victim
•
A subsequent valid marriage of the offender & offended party in the crime of rape
extinguishes the criminal action or penalty imposed for rape.
•
In marital rape: subsequent forgiveness by the wife shall extinguish criminal action
or penalty, unless the marriage is void ab initio (Art. 266-C of RPC, as amended by
R.A. No. 8353).
CASE (People v. Edgar Jumawan - April 21, 2014)
Right to sexual intercourse cannot be enforced in court; marital rape is a criminal
offense
Facts: A wife files a case against her husband for forcing her to have sex and for boxing
her when she refused. Her husband claims that it is his right to have sex with her
because they are married, and that she did consent to sex with him when she followed
him to their room.
Held: The existence of marital rape was AFFIRMED in this case; there is no distinction
between marital & non-marital rape; both occur when the offended party does not
consent to the sexual act. The husband cannot force sex through intimidation; his only
proper remedy, if he so wishes, is to seek a declaration of nullity, if he can prove
psychological incapacity.
Marriage as a status
•
Marriage is a social status between the contracting parties in which not only they
but the State as well are interested
•
When a status is assigned by law to members of any particular class of persons
which affects their general position with regard to the rest of the community, no
one belonging to the said class can vary the rights & obligations incident to the
status
CASE (Anonymous v. Anonymous)
Privately imposed conditions that would alter the marriage status are not recognized by
the State
Facts: The spouses agreed that their civil marriage would not be considered valid &
binding until after they had their religious marriage ceremony. Later, they sought on an
annulment of their marriage based on said stipulation.
Held: The agreement is INVALID; the State and its laws govern marital status, & the
parties to a marriage cannot tinker with it according to their own notions of what is
proper.
Marriage in International Law
•
The Universal Declaration of Human Rights (UDHR)
o Men and women of full age, without any limitation due to race, nationality, or
religion, have the right to marry & found a family
o Marriage shall be entered with free & full consent of the intending parties
o Men & women are entitled to equal rights before & during marriage, & after its
dissolution
•
The International Covenant on Economic, Social & Cultural Rights (same as UDHR)
•
International Covenant on Civil & Political Rights (same as UDHR)
Constitutional Protection
•
The State recognizes the sanctity of family life & shall protect & strengthen the
family as a basic social institution (Sec. 12, Art. II)
•
Art. 15 of the Constitution exclusively deals with family.
•
A couple also has the right to privacy which is protected against all undue &
unwarranted government intrusion
o Absolute freedom of communication between the spouses – privileged
communication
•
HOWEVER, these do not imply that the legislature cannot enact a law for divorce
o Law is dependent on what legislature sees fit, but will be subject to the
limitations provided in the Constitution
•
Marriage does not shed an individual’s right to privacy13
o Neither the husband nor wife may testify for or against the other without the
consent of the affected spouse while the marriage subsists
o As a general rule, neither the husband nor wife may be examined without the
consent of the other as to any communication received in confidence by one
from the other during the marriage
The Bill of Rights in the Constitution is addressed against the State, and can be invoked to protect a party in a marriage from his
spouse.
13
Katrina Monica C. Gaw | Block C 2018| 19
The fact of marriage of the witness in a will to the devisee shall render
void the gratuitous disposition of a real property in favor of the deviseespouse or a personal property in favor of the legatee-spouse, unless there
are 3 other witnesses
§
In other words, when a witness who claims that a will & testament was
created which benefits the witness’ spouse with property, the donation
will be rendered void unless there are 3 other witnesses.
Art. 874, Civil Code: An absolute condition not to contract a first or subsequent
marriage made in a last will & testament on an instituted voluntary heir shall be
considered as not written unless such condition has been imposed on the
widow or widower by the deceased spouse, or the latter’s ascendants or
descendants.
§
CASE (Zulueta v. Court of Appeals)
Personal constitutional rights of a spouse remain even after he is married, and are
honored by the courts in proceedings
Facts: A woman ransacks the office of her husband to get evidence of his infidelity for a
legal separation case, forcibly taking documents and letters of the husband addressed
to the paramour. Her husband demanded the documents back, and the wife refused.
Held: The documents forcibly taken by the wife are inadmissible as evidence in court; to
admit them would be a violation of the husband’s right to privacy.
CASE (Star Paper Corp. v. Simbol)
Companies must show vital link between policies and effect on business operations for
policies on civil rights to be valid
Facts: A company provided that, in case 2 of their employees marry, one of them must
resign.
Held: The policy is ILLEGAL as it failed to prove that a marriage between 2 of its
employees could be detrimental to the operations of business.
CASE (Duncan v. Glaxo)
Right of companies to prevent conflict of interest between their employees and those of
competitor firms
Facts: A company issued an employment contract requiring employees to disclose to
management any of their existing or future relationships by consanguinity or affinity with
co-employees or employees of competing drug companies & requiring such employee to
resign should management find that there may be a possible conflict of interest.
Held: Contract is VALID & does not go against the equal protection clause. The
stipulation is reasonable, since such a relationship might allow competitor firms to gain
access on the company’s secrets and procedures. Also, there is no absolute prohibition
against relationships.
Legislative Control of Marriage
•
Legislature defines all legal aspects of marriage & prescribes the strategies to
protect it
•
Three parties to a marriage: two willing spouses, and an approving State
•
Aspects of marriage governed by State:
o Manner in which marriage is constituted
o Manner in which marriage ends
•
Aspect which the State does not control: property relations
o The spouses must decide on property regime before marriage
o This cannot be decided after marriage without court intervention
•
It is a generally accepted doctrine that the legislature may impose restrictions upon
marital relations as laws on propriety and social order demand, as long as such
regulations are not prohibitory (State v. Walker)
•
Legislature cannot contravene Constitution
o Equal protection clause cannot be violated by forbidding marriages on the basis
of race or political inclinations
•
Marriage can be made to limit one’s capacity to act or acquire property
o Art. 823, Civil Code: If a person attests to the execution of a last will &
testament, to whose spouse a devise or legacy is given by such will, such
devise or legacy shall, so far only as concerns such spouse, be void, unless
there are 3 other competent witnesses to such will
o
CASE SCENARIO (A)
Q: If a husband states in his will that he does not allow his widowed wife to marry after
his death, can the wife still marry?
A: Yes. Any subsequent marriage contracted by the widow is still valid, but her legacy in
the will is rendered ineffective by her contravention of her deceased husband’s wishes.
Property Relations
•
Except for property relations fixed via marriage settlement prior to marriage, the
nature, consequence and incidents of marriage are governed by law and are not
subject to stipulations.
•
Marriage settlements must be within limits of Family Code.
o Art. 107 in relation to Art. 88: Future spouses cannot stipulate in their marriage
settlement that the commencement of their property regime shall be at anytime
other than at the precise moment that the marriage was celebrated
o Art. 77: Any modification of the marriage settlement shall be in writing, signed
by the parties, & executed before the celebration of the marriage.
o Art. 78: Any modification after the marriage must be approved by courts & must
be made only in the instances provided for in Art. 76.
Law Governing Validity of Marriage
•
The validity of a marriage is tested by the law in force at the time the marriage was
contracted
•
The nature of a marriage already celebrated cannot be changed by a subsequent
amendment in the law
o Ex. Since under the Civil Code, a marriage between stepsister & stepbrother is
void, a marriage between a stepbrother & sister solemnized during the
effectivity of the Civil Code is void, even if the Family Code no longer prohibits
said marriage.
o EXCEPTION: Psychological Incapacity (Art. 36)
§
Art. 39 initially gave those filing a petition to declare a marriage void
based on this ground a prescriptive period of 10 years after the effectivity
of the Family Code to file for declaration of nullity, for marriages
contracted prior to the Family Code’s effectivity
§
BUT R.A. No. 8533, which deleted the prescriptive period
§
At present, if the ground for nullity is Art. 36, a petition to declare a
marriage void is proper whether the marriage was celebrated before or
after the effectivity of the Family Code on Aug. 3, 1988
Katrina Monica C. Gaw | Block C 2018| 20
•
For the status of a marriage to change, there must be an express validation or
invalidation provision in the new law
o Void marriages can never be ratified
o While Art. 256 of the Family Code states that the law is retroactive insofar as it
does not prejudice or impair vested or acquired rights in accordance with the
Civil Code and other laws, the clause is general and does not expressly validate
a previously void marriage under the Civil Code
CHANGES IN NULLITY AND ANNULMENT OF MARRIAGES
Civil Code (Aug. 30, 1950)
Family Code (Aug. 3, 1988)
Marriage
between
stepbrother
& Marriage
between
stepbrother
stepsister is void
stepsister is not prohibited (Art. 38)
&
Marrying ages were 16 years old for
males & 14 years old for females
Marrying age is 18 for both the male &
the female (Art. 5)
The authority of the solemnizing officer
was absolute, & good faith of the parties
in said authority is irrelevant
There is no stipulation in the Civil Code a
void subsequent marriage due to failure
to liquidate properties of a previous
marriage
A marriage that is not void when either or
both of the contracting parties believed in
good faith that the solemnizing officer
had the authority to solemnize their
marriage
Those living together as husband & wife
could marry without a marriage license if
they lived together for a 5-year period &
suffered no legal impediment at the time
of the marriage
A subsequent marriage is void if the
former spouses fail to liquidate their
property after the finality of a nullity
decree (Art. 40, 52, 43)
Mistake in identity was an instance of
fraud that made the marriage annullable
Mistake in identity makes a marriage void
ab initio (Art. 35)
Default property regime is the conjugal
property of gains
Default property regime
community of property
Those living together as husband & wife
could marry without a marriage license if
they suffered from no legal impediment to
their marriage for the entire 5-year period
is
absolute
CASE: Gomez v. Lipana
Validity of a marriage is governed by the laws effective at the time of the celebration of
the marriage
Facts: The SC was confronted with the issue of whether or not a 2nd marriage is void and
could be the subject of a collateral attack.
Held: Though the law in effect at the time was the Civil Code of 1950, the Court used the
Marriage Law of 1929 to determine the validity of the 2nd marriage, which was the law in
force at the time the marriage was celebrated, in 1935.
Three Ways of Terminating Marriage in the Eyes of the Law
1) Judicial Declaration of Nullity of Marriage (Art. 35)
2) Judicial Declaration of Annulment (Art. 45)
3) Affidavit of Reappearance of the absent spouse (Art. 42)
Art. 2. No marriage shall be valid, unless these essential requisites are present:
1) Legal capacity of the contracting parties who must be a male & a female; &
2) Consent freely given in the presence of the solemnizing officer
Art. 3. The formal requisites of the marriage are:
1) Authority of the solemnizing officer
2) A valid marriage license except in the cases provided for in Chapter 2 of this
Title; &
3) A marriage ceremony which takes place with the appearance of the contracting
parties before the solemnizing officer & their personal declaration that they
take each other as husband & wife in the presence of not less than 2
witnesses of legal age.
Art. 4. The absence of any of the essential or formal requisites shall render the marriage
void ab initio, except as stated in Art. 35 (2).
A defect in any of the essential requisites shall render the marriage voidable as provided
in Art. 45.
An irregularity in the formal requisites shall not affect the validity of the marriage but the
party or parties responsible for the irregularity shall be civilly, criminally, &
administratively liable.
Art. 5. Any male or female of the age of 18 years or upwards not under any of the
impediments mentioned in Art. 37 & 38 may contract marriage.
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary, however, for the contracting parties to appear personally
before the solemnizing officer & declare in the presence of not less than 2 witnesses of
legal age that they take each other as husband & wife. This declaration shall be
contained in the marriage certificate which shall be signed by the contracting parties &
their witnesses & attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable to
sign the marriage certificate, it shall be sufficient for one of the witnesses to the
marriage to write the name of said party, which fact shall be attested by the solemnizing
officer.
Legal Capacity
•
Refers to age; both parties must be 18 years old & above
•
If any party is below 18, the marriage is void even if the parents of the underage
party consented
•
Incestuous marriages (Art. 37) & marriages against public policy (Art. 38) are also
not allowed
Katrina Monica C. Gaw | Block C 2018| 21
•
Married people cannot marry again, unless his previous marriage has been
annulled or his case falls under “valid bigamous marriage” under Art. 41.
Contracting Parties Must Be of Different Sex
•
From a human rights perspective, the sex of a contracting party should be
considered at the time of the marriage, when the parties assert their gender
identities
•
Established Philippine jurisprudence: your sex at birth is your sex forever, unless
you have a condition14
CASE: Silverio v. Republic
Sex is determined by visually looking at the genitals of a baby at the time of birth
Facts: Petitioner had a biological sex change from male to female through sex
reassignment surgery. He sought the amendment of his name in his birth certificate to
reflect the change, as he wished to be married to his partner.
Held: DENIED. The law does not legally recognize sex reassignment; the sex of an
individual upon his birth is immutable.
CASE: Republic v. Cagandahan
Where an individual has a condition giving him both male & female characteristics, SC
lets individual decide his sex
Facts: A woman had Congenital Adrenal Hyperplasia (CAR), which gives him both male
and female characteristics & organs, & it was expertly shown that she secreted both
male and female hormones. She wished to be considered male.
Held: GRANTED. Since individual is biologically intersex, she must be given the right to
decide which sex she would prefer to be; in this case, male, especially since she has
reached the age of majority.
Consent
•
Must be freely given
o Capability of intelligently understanding the nature & consequences of the act
o Consent may be implied
•
Must be made in the presence of a solemnizing officer
•
P.D. 603, Art. 57: Parents should not force or unduly influence their child to marry
a person he has not freely chosen
•
Total absence of consent makes a marriage void ab initio
o BUT: Consent in marriage obtained through fraud, intimidation or undue
influence makes the consent defective, so that such marriage is annullable
or voidable (vitiated consent)
•
The consent requisite to the marriage relation need not be expressed in any special
manner, or any particular form, so long as there is a manifestation that the
contracting parties take each other as husband & wife
•
Proxy marriages are not allowed in the Philippines, as there is no personal
declaration in front of a solemnizing officer; however, proxy marriages celebrated
abroad, when valid in said country is valid, as there is still a ceremony
CLASS SCENARIO (A)
14
Q: A woman has a solemnizing officer before her, & signs the marriage contract in his
presence. She did not, however, declare verbally that she consented to the marriage. Is
her declaration valid?
A: Her declaration is presumed, & need not be vocal. There is no specifically prescribed
rite, so long as there is a semblance of a declaration.
Authority of the Solemnizing Officer
•
The absence or presence of the authority of the solemnizing officer is what is
important
•
Local Government Code (which took effect on Jan. 1, 1992): Mayor of a city or
municipality can solemnize a marriage
•
Authority of the officer or clergyman will be presumed, in the absence of any
showing to the contrary.
•
Solemnizing officer is not duty bound to investigate whether or not a marriage
license has been duly & regularly issued by the local civil registrar.
o All the officer needs to know is that the license was issued by a competent
official, who is presumed to have ascertained the validity of the marriage prior
to the issuance of the license
o NOTE: A marriage can be solemnized without a license in situations provided
in Art. 29 in relation to Art. 27 & 28, & Art. 34; but in these instances, the
solemnizing officer must undertake the necessary steps to ascertain the ages
& relationship of the contracting parties & the absence of legal impediment to
marry.
•
Criminal penalties are imposable against persons who solemnize a marriage
without authority.
o Marriage Law of 1929, Sec. 38, as amended: Any priest or minister
solemnizing marriage, without being authorized by the Civil Registrar General,
or who, upon solemnizing marriage, refuses to exhibit this authorization in
force when called upon to do so by the parties or the parents, grandparents,
guardians or persons having charge shall be imprisoned.
o Marriage Law of 1929, Sec. 43: Any person who is not authorized to
solemnize marriage but who publicly advertises himself as such shall be
imprisoned.
o Any priest convicted of moral turpitude or violation of the Marriage Law is
disqualified from solemnizing marriage for 6 mos.-6 yrs.
o NOTE: Judges need not register; their position grants them the power to
solemnize
Valid Marriage License
•
A valid marriage license must be issued by the local civil registrar of the place where
the marriage application was filed
•
License has a lifetime of 120 days from the date of issue and is effective in any part
of the Philippines
o The date of issue is the date of the signing of the marriage license by the local
civil registrar & is stamped in bold
o Not effective for marriages solemnized abroad
o Automatically canceled at the expiration of 120-day period if parties do not use
it
•
Most requirements for the license are merely directory; their non-observance results
only in irregularity which will not make the marriage void or annullable:
In the Philippines, amending of name in the birth certificate is a privilege, and not a right. There must be valid justification.
Katrina Monica C. Gaw | Block C 2018| 22
o
o
o
o
o
o
When the marriage license is issued in a place where the contracting parties do
not reside
When one of the contracting parties lies about their age to avoid getting
parental consent, marriage is still valid until annulled (Art. 45); or, when the
party forges the consent of the mother
When one of the parties did not disclose a previous marriage in the license
When one of the parties misrepresents his residence
When one of the parties falsely swears that he is not under guardianship
BUT where parties conceal that they are of the same sex, or under 18, the
marriage is void
Marriage Ceremony
•
State only recognizes ceremonial marriages, solemnized by authorized persons
•
The Family Code does prescribe any particular form of marriage ceremony as long
as the minimum requirement imposed by law is met, that is –
o Personal appearance before the solemnizing officer
o Declaration that they take each other as husband & wife
o In the presence of at least 2 witnesses – an exchange of vows can be
presumed from the testimonies of these witnesses that the marriage took
place
•
Contracting parties may use any ceremony of their whim, or based on their religious
beliefs
•
The agreement, not the form in which it is couched, is what constitutes a contract
o The failure of the solemnizing officer to ask the parties whether they take each
other as husband & wife cannot be considered as a fatal omission, nor a cause
for annulment. It is sufficient that they signed the contract declaring each other
as husband & wife.
o It is also sufficient when a man & woman appear before a justice, sign a
statement setting forth that they had agreed to marry, & ask the justice to
solemnize the marriage, & thereafter another document was signed by them &
2 witnesses ratifying the first instrument
•
NOTE: Marriage certificate itself is not an essential or formal requisite of marriage.
Thus, the absence of it does not make a marriage void or annullable.
o BUT the best evidence for the presumption of marriage is the marriage
certificate. Oral testimony of witnesses, family & certificates of baptized
children can only serve as proofs.
Witnesses in a Marriage Ceremony
•
The absence of one or both witnesses is merely a defect in the formal requisite &
does not invalidate the marriage.
o Every intendment of the law leans toward legalizing matrimony, as it is the
basis of human society throughout the civilized world.
•
The parties responsible for the lack of witnesses will be made civilly,
administratively, & criminally liable.
•
The most important part: the ceremony in front of the solemnizing officer with
authority (who represents the State) & the declaration of the two contracting parties
that they are husband & wife.
o Exchange of vows is the vital part of the ceremony that witnesses testify
about.
Common Law Marriages not recognized in the Philippines
•
Philippines requires the ceremonial & solemnization aspect of marriage
•
Common law marriage: non-ceremonial or informal marriage by agreement, hence
not recognized in the Philippines
o Entered into by man and woman with capacity to marry
o No compliance to statutory formalities such as marriage licenses
o Consummation & cohabitation
o Reputation in such a way that the public will recognize the marital status
•
The terms “spouse” & “husband & wife” refer only to solemnized marriages
Absence, Irregularities, Defect in Requisites
•
General Rule: If there is an absence of essential or formal requisites of marriage,
said marriage is void.
o Marriage by proxy in the Philippines is void.
o Getting married with an expired marriage license is void.
•
Exceptions:
o No marriage license but listed in Chapter 2, Title I of the Family Code (e.g.,
marriage of two persons living in places where there is no means of
transportation allowing them to appear personally before the civil registrar,
marriages between Muslims & other cultural minorities which follow their
cultural practices)
o Art. 35 (2) – When solemnizing officer has no authority, but either party
believed in good faith that he had it
•
Defects in essential requisites makes the marriage voidable
•
Irregularities in formal requisites do not affect validity of the marriage, except when
contracting parties are 18-21 years old with no consent from parents (which makes
the marriage annullable).
•
The following are irregularities that do not affect the validity of a marriage:
o Absence of two witnesses of legal age during ceremony
o Marriage solemnized in a place other than publicly in the chambers of the
judge or in open court, in church, chapel, or temple, or in the office of the
consul-general, consul or vice-consul
o Issuance of a marriage license in city or municipality not the residence of
either of the contracting parties
o Unsworn application for a marriage license
o Failure of the contracting parties to present original birth certificates or
baptismal certificate to the local civil registrar who likewise failed to ask for
the same
o Failure of the contracting parties between the ages of 18-21 to exhibit
consent of parents or persons having legal charge of them to local civil
registrar
o Failure of the parties between ages 21-25 to exhibit advice of parents to the
local civil registrar
o Failure to undergo marriage counseling
o Failure of local civil registrar to post required notices
o Issuance of a marriage license despite absence of publication or prior to
completion of 10-day publication period
o Failure of contracting parties to pay prescribed fees for marriage license
o Failure of the person solemnizing the marriage to send copies of the marriage
certificate to the local civil registrar
Katrina Monica C. Gaw | Block C 2018| 23
o
Failure of the local civil registrar to enter the applications for marriage
licenses filed with him in the registry book in the order in which they are
received
CASE: McClurg v. Terry – U.S. Case
Marriage made in jest is void; mere words without true consent makes marriage void
Facts: Two 19 year-olds joke about getting married in front of their young friends, one of
who was a justice of the peace. They actually go through with the ceremony, as is
tradition. The justice, thinking the marriage was serious, sent the certificate of marriage
to the proper registry. Is the marriage valid?
Held: INVALID. The intention of the parties to marry must be clearly shown. In the
absence of such, the ceremony is not considered valid and no marriage exists.
CASE: Republic v. Albios (2013)
A marriage solemnized for a financial consideration is valid & not in jest.
Facts: Albios paid Fringer, an American, US$2,000 to marry her so that she could obtain
U.S. citizenship. Later, she sought to have the marriage between her & Fringer nullified,
arguing that it was a marriage made in jest, & that both parties never really intended to
be married. Alternatively, Albios argued that the marriage was vitiated by fraud, & hence
could also be considered annullable using this ground.
Held: The marriage is valid. The marriage in this case is not one made in jest; marriage
made in jest is one where there is complete absent of consent. Here, there was no jest to
undertaking the marriage – Albios & Fringer intended to be married, if only to create the
very bond necessary to make Albios a U.S. citizen. The marriage was thus not entered
into just as a joke. Furthermore, this marriage cannot be declared voidable on the
ground of fraud, for Art. 45 (3) provides the circumstances in which there is fraud
sufficient to make a marriage voidable, & entering into a marriage for the sole purpose of
evading immigration laws is not one of them. Albios & Fringer are thus validly married.
CASE: Cosca v. Palaypayon
Judge must ask to see marriage license before marrying the two parties; the absence of
a marriage license, if not in exemptions, makes the marriage void.
Facts: A judge solemnized 2 marriages without having been shown valid marriage
licenses and required the licenses after the marriage ceremony only. One of them
married without a license; the other had one but did not show it.
Held: The parties that simply failed to bring their license on the wedding date are validly
married; the parties that did not have a marriage license are in a void marriage. The
judge, in both cases, is liable for his negligence. A judge is tasked with ascertaining the
validity of the marriage before actually solemnizing it.
Marriage Contract
•
The practice of a judge requiring the parties to sign the marriage contract first
before solemnization of the marriage is highly improper, if not illegal.
•
BUT a marriage solemnized by the judge in this irregular manner is not void or
voidable, because a marriage contract is not a formal requisite of a valid
marriage.
Breach of Promise to Marry
•
General Rule: Mere breach of a promise to marry is not an actionable wrong.
•
But the damages incurred by the injured party are actionable if they can be proven,
in accordance with Art. 21 of the Civil Code.
CASE: Wassmer v. Velez
The injured party in the breach of a promise to marry can claim damages if she proves
that the offender’s actions are contrary to good customs.
Facts: The bride was abandoned by her would-be groom days before the wedding,
supposedly because his mother did not wish for him to marry. As a result, the woman
had to deal with sending away the guests, canceling the wedding preparations which
were already spent & dealing with her emotional grief. Is she entitled to damages?
Held: YES. Even though as a general rule, a breach of promise to marry is not an
actionable wrong; in this case, the bride can claim damages under Art. 21 of the Civil
Code, which specifies that those who willfully injure others in ways that are contrary to
good custom shall indemnify the injured party.
Art. 7. Marriage may be solemnized by:
1) Any incumbent member of the judiciary within the court’s jurisdiction;
2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized
by his church or religious sect & registered with the civil registrar general, acting
within the limits of the written authority granted him by his church or religious
sect & provided that at least 1 of the contracting parties belongs to the
solemnizing officer’s church or religious sect;
3) Any ship captain or airplane chief only in cases mentioned in Art. 31;
4) Any military commander of a unit to which a chaplain is assigned, in the absence
of the latter, during a military operation, likewise only in the cases mentioned in
Art. 32;
5) Any consul-general, consul, or vice-consul in the case provided in Art. 10.
Authorized Solemnizers of Marriage
•
The solemnizing officer represents the State, & thus should be limited to persons
duly authorized by the State
•
If ANY of the listed solemnizing officers fail to comply with any of the requisites
mandated by law for them to validly solemnize a marriage, such a marriage is
generally void on the ground of absence of a formal requisite, which is the authority
of the solemnizing officer.
•
Always: UNLESS either of the parties believed in good faith that the solemnizing
officer had the authority to conduct the marriage (Art. 35 (2))
Judges
•
Judges can solemnize a marriage only within their courts’ jurisdiction & not beyond
it; such would be void unless it falls under the exception in Art. 35 (2)
•
Judges must be incumbent, & not retired
•
CTA, Sandiganbayan, Court of Appeals & SC – national in scope
•
After solemnizing a marriage, it is highly irregular for a judge to collect fees for the
ceremony; he cheapens his noble office when he does so.
CLASS SCENARIO (A)
Q: The judge of Mandaluyong who is to solemnize the marriage of A & B says, “Let’s just
meet in the marketplace in the city for your marriage.” Will the marriage be valid?
A: VALID. As long as the marketplace is in the jurisdiction of the judge, he still has the
authority to solemnize a marriage.
Katrina Monica C. Gaw | Block C 2018| 24
Priest, Rabbi, Imam or Minister of any Church or Religious Sect
•
Priest – one especially consecrated to the service of the divinity & the medium
through whom worship is to be offered to the one being worshipped
•
Authority of the priest extends only so far as his church members (e.g., a Catholic
priest can only marry a couple if at least 1 of them is Catholic)
•
The following essential requisites give these officers authority:
1. Must act within the limits of the written authority granted to him or her by the
church or religious sect
§
This may impose a limitation on where he can solemnize a marriage
•
Ex. Catholic priests are only allowed to solemnize marriages
within the area of the diocese or the place allowed by his Bishop
2. Must be registered with the civil registrar general
3. Must be duly authorized by his or her church or religious sect
4. At least 1 of the parties contracting the marriage should be a member of his
or her church or religious sect
CLASS SCENARIO (A)
Q: X & Y are Catholics. A Protestant priest dresses in Catholic priest garments & insists
he is Catholic. X & Y are presumed to have good faith. Is the marriage valid?
A: Yes, but only because there is good faith. In the absence of good faith, the solemnizing
officer had no authority to solemnize their marriage.
Ship Captain or Airplane Chief
•
Requisites for authority of the solemnizing officer:
1. The marriage must be in articulo mortis (at least one of the parties is at the
point of death)
2. The marriage must be between passengers or crew members
3. Generally, the ship must be at sea or the plane must be in flight, or during
stopovers at ports of call (as the voyage is not yet deemed terminated)
•
Assistant pilots do not have the authority to solemnize a marriage, even if the pilot
dies & the assistant assumes command of the plane
Military Commander
•
Requisites for authority of the solemnizing officer:
1. He or she must be a commander of a unit
§
Unit – a battalion under the present table of organization & not a mere
company
2. He or she must be a commissioned officer
§
His rank must begin from a second lieutenant, ensign & above
3. A chaplain must be assigned to such unit
4. Said chaplain must be absent at the time of marriage
§
If the chaplain is present, he should be the one to solemnize the
marriage, a power granted to him which proceeds from Art. 7(2). If he
does not have the qualifications listed therein, he is deemed absent as
he cannot solemnize a marriage
o In other words, he must be of the same religion as the at least one of
the parties who will be acquiring marriage, he must have the written
authority of his religious sect, he must be registered with the civil
registrar general
5. The marriage must be in articulo mortis
6.
•
The contracting parties, whether members of the armed forces or civilians,
must be within the zone of the military operation
§ “Within the zone of military operation” – presumes widespread military
activity over an area & does not refer to a simulated exercise because it
requires the absence of civilian authorities
§ Includes maneuvers, police actions, declared & undeclared war, civil
war, rebellion, etc. as the law may provide
7. Generally, the ship must be at sea or the plane must be in flight, or during
stopovers at ports of call (as the voyage is not yet deemed terminated)
A commander may solemnize a marriage even though the contracting parties do
not belong to his unit
Consul-General, Consul, or Vice Consul (CG, C, VC) (Art. 9, Vienna Convention of 1963)
•
Does not include –
1. Ambassadors; ambassadors are appointed, whereas consul-generals, consuls
& vice consuls are career officers
2. Consul agents
•
They can solemnize a marriage abroad only when both contracting parties are
Filipinos
o They also perform the duties of the local civil registrar, such as issuance of
marriage license
•
Solemnities established by Philippine laws shall be observed in their execution (Art.
17, Civil Code)
o Contracting parties shall appear personally before the CG, C, VC’s office
abroad & declare in the presence of at least 2 witnesses of legal age that
they take each other as husband & wife
o Declaration will be in the marriage certificate signed by the contracting
parties & their witnesses & attested by the solemnizing officer
o If contracting parties want their marriage in a place other than the CG, C, VC’s
office, they shall request the said official in writing
•
A marriage between a Filipino & a foreigner abroad solemnized by a Philippine
consul is void, unless the host country recognizes the marriage as valid, in which
case, such marriage shall be considered valid in the Philippines
•
Marriages solemnized by C, VC, CG within the territory of the Philippines is void
Mayor
•
Local Government Code took effect on Jan. 1, 1992, allowing a mayor to solemnize
a marriage within his jurisdiction
•
When the mayor is temporarily incapacitated to perform his duties for physical or
legal reasons such as, but not limited to, leave of absence, travel abroad, &
suspension from office, the vice mayor or the highest ranking sangguniang bayan
member shall automatically exercise the powers & duties of the local chief
executive concerned, INCLUDING the authority to solemnize marriages
Good Faith of Parties
•
Art. 35 (2) – If the marriage was solemnized by a person not legally authorized to
solemnize a marriage & either of the contracting parties believed in good faith that
such solemnizing officer had such authority, then the marriage shall be considered
as valid.
Katrina Monica C. Gaw | Block C 2018| 25
CLASS SCENARIO (A)
Q: X is getting married. X’s solemnizing officer is her uncle, who is a priest. X & her
husband, Y, know that her uncle’s license is expired. But her uncle thought it was already
renewed & assured them of this fact. The marriage was celebrated. Months later, the
uncle admits that his license wasn’t renewed after all.
A: Though Art. 35(2) seems to provide an exception to the rule on the authority of the
solemnizing officer, such an exemption requires good faith, which in turn requires due
diligence. Thus, the marriage is void, because there was no due diligence in making sure
the license was not expired on the part of the spouses. It was the priest who acted in
good faith, not X & Y.
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the office of the consul-general, consul or
vice-consul as the case may be, & not elsewhere, except in the cases of marriage
contracted at the point of death or in remote places in accordance with Art. 29 of this
Code, or where both of the parties request the solemnizing officer in writing in which
case the marriage may be solemnized at a house or place designated by them in a sworn
statement ot that effect.
Venue
•
Directory in nature; its non-observance will not invalidate a marriage, but can
subject the person who caused the violation to civil, criminal, or administrative
liability
•
Exceptions to the rules on venue provided by law:
1. Marriage contracted in articulo mortis
2. When both parties are in a remote place
3. When BOTH parties request a solemnizing officer in writing, in which case the
marriage may be solemnized at a place designated by them in a sworn
statement to that effect
Art. 9. A marriage license shall be issued by the local civil registrar of the city or
municipality where either of the contracting party habitually resides, except in marriages
where no license is required in accordance with Chapter 2 of this Title.
Place of Issue
•
Marriage license from the local civil registry in the city or municipality where either
of them resides
•
But not getting a marriage license where either of them resides is merely an
irregularity which will not render the marriage null & void on that basis alone
Republic Act No. 10354 (Responsible Parenthood & Reproductive Health Law of 2012)
•
The local civil registrar can only issue a marriage license if the applicants present a
certificate of compliance issued for free by the Family Planning Office certifying
that they had duly received adequate instructions & information on responsible
parenthood, family planning, breastfeeding, & infant nutrition.
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consulgeneral, consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license & the duties of the local civil registrar & of the solemnizing officer with
regard to the celebration of marriage shall be performed by said consular official.
Art. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which
shall specify the following:
1) Full name of contracting parties
2) Place of birth
3) Age & date of birth
4) Civil status
5) If previously married, how, when, & where the previous marriage was dissolved
or annulled
6) Present residence & citizenship
7) Degree of relationship of the contracting parties
8) Full name, residence, & citizenship of the father
9) Full name, residence, & citizenship of the mother
10) Full name, residence, & citizenship of the guardian or person having charge, in
case the contracting parties has neither father nor mother & is under the age
of 21 years.
The applicants, their parents or guardians shall not be required to exhibit their residence
certificate in any formality in connection with the securing of the marriage license.
Purpose of the documentary requirements
•
The local civil register is tasked with making sure the documentary proof is
accomplished & his job is to secure publicity & to require a record to be made of
the marriage contracted
•
Competent evidence of marriage, to discourage deception & seduction, & prevent
illicit intercourse under the guise of matrimony
•
Evidence of the statues & legitimacy of the offspring of the marriage
Marriage Application
•
Can be obtained by anybody
•
Once it is signed & sworn to by the parties & thereafter filed, local civil registrar has
no choice but to accept the application & process the same
•
If the local civil registrar has knowledge of some legal impediment, he or she
cannot discontinue the processing of the application. He must only note down the
impediments in the application & thereafter issue the license unless stopped by
the court (Art. 18, FC)
Art. 12. The local civil registrar, upon receiving such application, shall require the
presentation of the original birth certificates or, in default thereof, the baptismal
certificates of the contracting parties or copies of such document duly attested by the
persons having custody of the original. These certificates or certified copies of the
documents required by this article need not be sworn to & shall be exempt from the
documentary stamp tax. The signature & official title of the person issuing the certificate
shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal certificate
or a certified copy of either because of the destruction or loss of the original, or if it is
shown by an affidavit of such party or of any other person that such birth or baptismal
certificate has not yet been received though the same has been required of the person
having custody thereof at least 15 days prior to the date of the application, such party
may furnish in lieu thereof his current residence certificate or an instrument drawn up &
Katrina Monica C. Gaw | Block C 2018| 26
sworn to before the local civil registrar concerned or any public official authorized to
administer oaths. Such instrument shall contain the sworn declaration of 2 witnesses of
legal age, setting forth the full name, residence, & citizenship of such contracting party
& of his or her parents, if known, & the place & date of birth of such party. The nearest
of the kin of the contracting parties shall be preferred as witnesses, or, in their default,
persons of good reputation in the province of the locality.
The presentation of the birth or baptismal certificate shall not be required if the parents
of the contracting parties appear personally before the local civil registrar concerned &
swear to the correctness of the lawful age of said parties, as stated in the application,
or when the local 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.
Art. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse or
the judicial decree of annulment or declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an affidavit setting
forth the circumstance & his or her actual status & the name & date of death of the
deceased spouse.
Art. 14. In case either or both of the contracting parties, not having been emancipated
by a previous marriage, are between the ages of 18 & 21, they shall, in addition to the
requirements in the preceding articles, exhibit to the local civil registrar, the consent to
their marriage of their father, mother, surviving parent or guardian, or persons having
legal charge of them in the order mentioned. Such consent shall be manifested in
writing by the interested party who personally appears before the proper local civil
registrar, or in the form of an affidavit made in the presence of 2 witnesses & attested
before any official authorized by law to administer oaths. The personal manifestation
shall be recorded in both applications for marriage license, & the affidavit, if one is
executed instead, shall be attached to said application.
No Emancipation by Marriage
•
There is no more emancipation by marriage under the Family Code; emancipation
is attained if the child reaches the age of 18 year as of R.A. 6809 (Dec. 13, 1989).
•
Previously, age of majority was 21 years old
•
Marrying age & age of majority is now 18 years old
•
“Not having been emancipated by previous marriage” is now repealed
Parental Consent
•
This is needed when one of the contracting parties is at least 18 years old but
above & below 21 years of age; in this case, consent of the persons having legal
charge of them will be necessary, in the following order:
o Father
o Mother
o Surviving parent
o Guardian or persons having legal charge of them
•
Non-compliance with the parental consent makes a marriage valid until it is
annulled (Art. 45, FC)
The statutes which forbid the issuance of the license without consent are only
directory, in the absence of a statute declaring such a marriage void
o Persons above 18 can legally & validly marry
If any of the contracting parties is below 18, the marriage is void regardless of
consent
For foreigners: A foreigner must obtain a Certificate of Legal Capacity from his
embassy to be able to validly marry in the Philippines. But the U.S. Embassy does
not execute Certificates of Legal Capacity; the Embassy will just issue an affidavit,
which some cities do not accept (e.g., Makati, Q.C.)
If you do not bring a birth certificate or other proof of age, but it is obvious you are
old just by looking at you, the marriage is valid.
o
•
•
•
CLASS SCENARIO (A)
Q: What if X was 17.5 years old when all the documents & requisites were prepared, but
X got married to Y at the age of 18, is the marriage between X & Y valid?
A: Yes, the marriage is valid. In terms of legal capacity, the marriage is valid, as X had
already been 18 when the marriage was contracted. The license, however, was
defectively issued. But this defective issuance is deemed to be a mere irregularity. The
local civil registrar who issued the license could be held liable depending on the
circumstances.
Q: What if father disagrees to the marriage, but the mother agrees? Can the local civil
registrar suspend the license?
A: No. The local civil registrar cannot withhold the license even if it is defective, unless he
goes to court & gets an injunction through the court; OR if the applicant is a foreigner
with no documents from the embassy.
Q: X is a local civil registrar who one day forgot to bring his glasses to work. A couple
came before him without birth or baptismal certificates, but through his blurred eyes they
looked about 50. He approved their license without recording defects. It turns out, both
of the contracting parties were actually just 20 years old, but they already got married
after the registrar issued their license. Is their marriage valid?
A: Yes, the marriage is valid, as they are both within the age of legal capacity.
Art. 15. Any contracting party between the ages of 21 & 25 shall be obliged to ask their
parents or guardian for advice upon the intended marriage. If they do not obtain such
advice, of it be unfavorable, the marriage license shall not be issued until after 3 months
following the completion of the publication of the application therefor. A sworn statement
by the contracting parties to the effect that such advice has been sought, together with
the written advice given, if any, shall be attached to the application for marriage license.
Should the parents or guardian refuse to give any advice, the fact shall be stated in the
sworn statement.
Art. 16. In cases where parental consent or parental advice is needed, the party or
parties concerned shall, in addition to the preceding articles, attach a certificate issued
by a priest, imam or minister, authorized to solemnize marriage under Art. 7 of this Code
or a marriage counselor duly accredited by the proper government agency to the effect
that the contracting parties have undergone marriage counseling. Failure to attach said
certificate of marriage counseling shall suspend the issuance of the marriage license for
a period of 3 months from the completion of the publication of the application. Issuance
of the marriage license within the prohibited period shall subject the issuing officer to
Katrina Monica C. Gaw | Block C 2018| 27
administrative sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the
other party must be present at the counseling referred to in the preceding paragraph.
Parental Advice
•
Absence of parental advice does not affect marriage; it does not even qualify as a
ground for annulment
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names
& residences of the applicants for a marriage license & other data given in the
applications. The notice shall be posted for 10 consecutive days on a bulletin board
outside the office of the local civil registrar located in a conspicuous place within the
building & accessible to the general public. This notice shall request all persons having
knowledge of any impediment to the marriage to advise the local civil registrar thereof.
The marriage license shall be issued after the completion of the period of publication.
Duty of the Local Civil Registrar
•
The marriage license shall be issued after the completion of the period of
publication.
•
If parties are 21-25 years of age & do not obtain the advice of their parents, or if
such advice is unfavorable, the local civil registrar shall not issue the license till
after 3 months following the completion of the publication therefor.
o BUT: If the marriage license is somehow issued within the 3-month period &
the couple get married, their marriage is valid & not annullable.
•
If there is no consent for those 18-21 years of age, there is no 3-month period of
withholding; the license is automatically released.
•
If the couple is not able to obtain parental consent (for 18-21 years old) or parental
advice (for 21-25 years old), the failure of the parties to attach their certificate for
marriage counseling will suspend the issuance of the license for a period of 3
months from the completion of the publication of the application.
o Issuance of the marriage license within the prohibited period will make the
issuing officer administratively liable, but it shall not affect the validity of the
marriage.
Art. 18. In case of any impediment known to the local civil registrar or brought to his
attention, he shall note down the particulars thereof & his findings thereon in the
application for a marriage license, but shall nonetheless issue said license after the
completion of the period of publication, unless ordered otherwise by a competent court
at his own instance or that of any interested party. No filing fee shall be charged for the
petition nor a corresponding bond required for the issuance of the order.
Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or
regulations before the issuance of the marriage license. No other sum shall be collected
in the nature of a fee or a tax of any kind for the issuance of said license. It shall,
however, be issued free of charge to indigent parties, that is, those who have no visible
means of income or whose income is insufficient for their subsistence, a fact established
by their affidavit, or by their oath before the local civil registrar.
Investigative power of LCR & Court Intervention
•
•
•
•
LCR cannot withhold the license; he can only note down the particulars of the
impediments & his findings in the application for a marriage license
LCR is duty-bound to issue license after the payment of necessary fees, after the
completion of the period of publication or the 3-month period for those who did not
get parental advice or marriage counseling
o BUT: Recall that parties who are indigent need not pay the fees
Purpose of Art. 18 is to “eliminate any opportunity for extortion.”
Only court intervention can empower the LCR to refuse to issue said license. This
can be brought either by (1) the LCR himself or (2) interested parties.
o “Interested parties” – contracting parties’ parents, brothers, sisters, existing
spouse, if any, & those who will be prejudiced by the marriage
o If, despite the court injunction, the LCR issues the license, the marriage
solemnized through that license will still be valid. But the party responsible for
the irregularity shall be held civilly, criminally, & administratively liable.
Criminal Liability of LCR
•
Marriage Law of 1929 has laws regarding the liability of the LCR, which were never
repealed
o Influencing parties in religious respects – Any LCR who tries to directly or
indirectly influence the contracting party to marry or refrain from marrying in
any church, sect, or religious or before a civil authority shall be guilty of a
misdemeanor & may be imprisoned
o Illegal issuance or refusal of license – Any LCR who issues a license
unlawfully or maliciously refuses to issue a license to a person entitled
thereto or fails to issue the same within 24 hours after the time when,
according to law, it was proper to issue the same, shall be punished & may be
imprisoned & fined
Art. 20. The license shall be valid in any part of the Philippines for a period of 120 days
from the date of issue, & shall be deemed automatically cancelled at the expiration of
said period if the contracting parties have not made use of it. The expiry date shall be
stamped in bold characters at the face of every license issued.
Marriage License & Date of Issue
•
License is valid only within the Philippines & not abroad
•
The date of the signing of the LCR is the date of issue
•
From the date of issue, it should be claimed by the parties
o If it is not claimed & therefore not used within 120 days, it shall
automatically become ineffective
Art. 21. When either or both of the parties are citizens of a foreign country, it shall be
necessary for them before a marriage license be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal
capacity, submit an affidavit stating the circumstances showing such capacity to contract
marriage.
Certificate or Affidavit of Legal Capacity
•
Citizens of any foreign country may contract marriage in the Philippines, but they
must secure a marriage license locally
Katrina Monica C. Gaw | Block C 2018| 28
•
•
•
•
To get a license, they must submit a certificate of legal capacity – the Philippines
adheres to the national law of the contracting parties with respect to their legal
capacity to contract marriage
o If a 16-year-old is allowed to marry in U.S., then the American can also validly
marry in the Philippines.
o Without the certificate of legal capacity, the local civil registrar will not issue
the marriage license.
Certificate of legal capacity is a necessary requisite for foreigners, & is the only
exception to the rule (aside from court intervention) that the LCR cannot withhold a
license
o BUT: If a license is issued without a certificate of legal capacity, the marriage
celebrated on the basis of such license will still be considered valid.
If the foreigner is stateless or is a refugee, they shall be required to file an affidavit
stating the circumstances showing such capacity to contract marriage in lieu of the
certificate of legal capacity
If two citizens of a foreign country desire to have their marriage solemnized by their
country’s consul-general officially assigned in the Philippines, they can get married
before said officer without procuring a marriage license in the Philippines if their
country’s laws allow the same. Such marriage will be recognized in the Philippines.
CLASS DISCUSSION (A)
Q: What are the two instances under the Family Code that a LCR may validly refuse to
issue a license?
A: These are –
(1) When a foreigner wants to get married in the Philippines but does not submit a
certificate of legal capacity
(2) When the court orders the LCR not to issue the license upon petition of the LCR
himself or any interested party.
Art. 22. The marriage certificate, in which the parties shall declare that they take each
other as husband & wife, shall also state:
1) The full name, age, & sex of each contracting party;
2) Their citizenship, religion, & habitual residence;
3) The date & precise time of the celebration of marriage;
4) That the proper marriage license has been issued according to law, except in
marriages provided for in Chapter 2 of this Title;
5) That either or both of the contracting parties have secured the parental consent in
appropriate cases;
6) That the parties have entered into a marriage settlement, if any, attaching a copy
thereof.
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of
the contracting parties the original of the marriage certificate referred to in Art. 6 & to
send the duplicate & triplicate copies of certificate not later than 15 days after the
marriage, to the LCR of the place where the marriage was solemnized. Proper receipt
shall be issued by the LCR to the solemnizing officer transmitting copies of the marriage
certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the
marriage certificate, the original of the marriage license &, in proper cases, the affidavit
of the contracting party regarding the solemnization of the marriage in a place other than
those mentioned in Art. 8.
Presumption of Marriage
•
A lawful contract of marriage is the presumption, unless it is contradicted &
overcome by satisfactory evidence
•
Every intendment leans towards legalizing matrimony
•
One of the strongest in law, especially when the legitimacy of the children is
involved
•
Persons dwelling together in apparent matrimony are presumed, in the absence
of any counter-presumption or evidence special to the case, to be in fact married
•
ONCE the celebration of marriage is shown, the contract of marriage, the capacity
of the parties, & everything necessary to the validity of the marriage will be
presumed
o Credible testimony of witnesses that the wedding took place gives rise to
the presumption that the exchange of vows took place
o SEMPTER PRESUMITUR PRO MATRIMONIO: Always presume marriage
o If the first wife is still living, & it is the second marriage that is being
questioned, it is the presumption that the former marriage with the first
wife has been legally dissolved, in the absence of proof of the contrary
Proof of Evidence
•
Marriage may be proved by evidence of any kind
•
Best: Certificate of Marriage
o Mere Photostat copy is a worthless piece of paper
§
UNLESS such copy emanated from the Office of the LCR & is
duly certified by the LCR as an authentic copy of the records
in his office (admissible as evidence)
§
If Photostat copy is presented without objection by opposing
party, copies are deemed sufficient proof
o Failure to present this is not fatal in a case where marriage is in
dispute; there is still presumption of marriage
§
CASE: Rivera v. IAC – It was shown that the marriage
certificate was burned during the war. Despite the absence
of the certificate, the marriage was still presumed because
it was shown that husband & wife lived together for many
years & had many children
•
Official records of marriage are seen as more credible than even the testimony
of the parties themselves, in terms of establishing facts like dates
•
ALSO admissible as proof:
o Baptismal certificates
o Public & open cohabitation
§
BUT mere cohabitation is not direct proof of marriage; it
must be proved by the proper documents or by oral
testimony
§
Cohabit: to live together, to have the same habitation, so
that where one lives & dwells, there does the other live &
dwell with him
§
More than mere living together: it must be an association,
consciously & openly, as husband & wife
o Birth certificates
o Juridical decisions
o Solemn statement in the will of a deceased
Katrina Monica C. Gaw | Block C 2018| 29
Parol evidence (oral testimony)
Family bible
§
In which the names of the spouses have been entered as
married
o Testimony by the parties or the witnesses to the marriage, or by the
person who solemnized the marriage
§
Witness & testimony must be credible & competent
§
To be sufficient, the witness should disclose not only the
performance of the ceremony by someone, but that all
circumstances attending it were such as to constitute a valid
marriage
NOT admissible:
o Transfer Certificates of Title
o Residence Certificates
o Passports
o Documents of a similar nature
§
Especially true when there is certification from the LCR
concerned that the alleged marriage is not registered, or
certification from the supposed solemnizing officer that he
did not solemnize the marriage
o A Certificate of Marriage made many years after the marriage,
especially when there are no official records
Any officer, priest or minister who fails to deliver to either of the contracting
parties the original Certificate of Marriage or to forward the other copy to the
authorities within the fixed period shall be punished with imprisonment for not
more than 1 month or a fine by not more than 300 pesos, or both, at the
discretion of the court
o
o
•
•
CASE: Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. De Damian
Absence of a record of the contested marriage does not necessarily prove that a
marriage does not exist, if extensive proof that the marriage was valid exists
Facts: The petitioner contests the validity of a marriage, on the basis that there was no
official record of the marriage.
Held: The marriage was VALID. The following were used by respondents to prove the
existence of marriage, all of which the SC collectively took as prima facie evidence:
•
Certificate of Identity, passports
•
Declaration under oath of one of the contracting parties that they were married
•
That one of the petitioners witnessed the proposal & knew they both lived together
as husband & wife
There was one document, the baptismal certificate, which stated that the woman who
was allegedly married was single, but the SC did not give this document much value
since it opined that the woman did not personally prepare the baptismal certificate.
Proof to Attack Validity of Marriage
•
Evidence must be strong, distinct & satisfactory
o Not just a Certificate of Title stating that a person is single
•
There MUST be a valid marriage license before a marriage takes place, minus
the exceptions in Chapter 2 of this Title
o Obtaining a license in a place which is not the residence of any of the
parties is an indication that it may be spurious, & requires further
investigation
Official certification from the Office of the LCR where the marriage
license has been issued (based on the marriage certificate) that, after
earnest effort to locate & verify the existence of the marriage license,
no record has been found, or is issued to another couple, or is
fabricated, is a convincing evidence to destroy the validity of the
marriage on account of no marriage license
§
In one case, the Office of the LCR admitted that it did not
exert full force in locating the license due to workload; SC
did not allow the nullity of the marriage
Uninterrupted marital life for 40 years should not be discredited after the death
of the husband through an alleged prior Chinese marriage, save upon proof
that is clear, strong & unequivocal.
o But if a man & woman live separately for many years (like the last 35
years of their lives), presumption of marriage through cohabitation may
be offset.
o
•
CASE: Sy v. Court of Appeals
Proof that there was no marriage license when the marriage was celebrated makes the
marriage void
Facts: According to the marriage contract of petitioner, the marriage took place on Nov.
15, 1973. The birth certificates of the children in this case also indicated this same date
of marriage. However, the marriage license was issued on Sept. 17, 1974.
Held: The marriage is void. The evidence clearly shows that there was no marriage
license during the marriage.
CASE: Sarmiento v. Court of Appeals
Multiple evidence of invalidity of marriage can outweigh the validity, especially when it
includes proof from official records
Facts: One side showed, for proof that the marriage existed, a birth certificate indicating
the legitimacy of the child of the parties. The other, however, showed a transfer
certificate of title indicating that the man was a widower at such time, & a record of
marriage of the LCR which did not reflect the marriage.
Held: The marriage was INVALID. Even if birth certificate is admissible as evidence, the
pieces of evidence disproving the marriage also have probative value & outweigh the
proof of validity.
Declaratory Relief
•
Parties can ask for declaratory relief regarding their capacity to marry, given
their circumstances, if they are unsure that they can legally be married
•
Declaratory relief – brought by any person interested under a deed, will,
contract or other written instrument or whose rights are affected by a statute,
executive order, regulation, ordinance or other governmental regulation for the
purpose of determining any question of construction or validity arising
therefrom, & for a declaration of his or her rights or duties thereunder, provided
that the action is brought before any violation or breach
Art. 24. It shall be the duty of the LCR to prepare the documents required by this Title, &
to administer the oaths to all interested parties without any charge in both cases. The
documents & affidavits filed in connection with applications for marriage licenses shall
be exempt from documentary stamp tax.
Katrina Monica C. Gaw | Block C 2018| 30
Art 25. The LCR concerned shall enter all applications for marriage licenses filed with
him in a registry book strictly in the order in which the same are received. He shall record
in said book the names of the applicants, the date which the marriage license was
issued, & such other data as may be necessary.
•
•
Effect of Duty of LCR
•
LCR is the specific government official charged with the preparation & keeping
of all official documents in connection with marriage
•
Any certification issued by him is given high probative value
•
Marriage Register
•
LCR keeps a register of all persons married in its locality
•
Things that are entered into the register: Name & address of each of the
contracting parties, age, place, & date of the solemnization, the names &
addresses of the witnesses, the full name, address & relationship with the
contracting party of the person who gave their consent, & the full name, title &
address of the person who solemnized the marriage (Civil Registry Law)
•
*Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws
in force in the country where they are solemnized, & valid there as such, shall also be
valid in this country, except those prohibited under Art. 35(1), (4), (5), (6), 36, 37 & 38.
Where a marriage between a Filipino citizen & a foreigner is validly celebrated & a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine
law.
Provisions Mentioned in Article
•
Art. 35 (1) – That either of the parties is below 18 years old, even with consent
of the parents
•
Art. 35 (4) – Bigamous or polygamous marriages, even if contracted abroad
•
Art. 35 (5) – Mistake in identity of one of the contracting parties
•
Art. 35 (6) – Void subsequent marriages under Art. 53
•
Art. 36 – Psychological incapacity
•
Art. 37 – Incestuous marriages
•
Art. 38 – Marriages against public policy
Validity Provision
•
General rule in the Philippines is lex loci celebrationis – meaning the law of the
place where [the marriage] is celebrated
o Validity of marriage in terms of preliminaries, manner, & mode of its
celebration is to be determined in reference to the law of the place
where it is celebrated.
o A marriage valid where celebrated will be regarded as valid
everywhere; where there is a bona fide attempt by the parties to
effect a legal marriage, every assumption favors its validity
o A marriage void where it is celebrated is also void everywhere
§
If it would have been valid in the Philippines, but not where
it is celebrated, the marriage is still void
A Matter of International Comity
•
Legal effect given to marriages solemnized abroad is due to comity
BUT no state is bound by comity to give effects in its courts to laws which are
repugnant to its own laws & policies
Each state has the right to declare what marriages it recognizes, regardless of
the validity of said marriage abroad
Marriages celebrated abroad in accordance with the relevant foreign country’s
laws that would also be valid in the Philippines include:
o Proxy marriages
o Marriages without valid licenses
o Marriage solemnized by a professor of law
If a marriage is to be solemnized inside the Philippine consulate abroad, it
must observe the forms & solemnities established by Philippine laws
Exceptions
•
If either party is below 18 & both are Filipinos
o If one is a foreigner, the Philippines will follow the nationality rule as
to him. Thus, the rules of his country regarding his legal capacity will
be followed, & if the marriage is seen as valid by his country, the
marriage can be celebrated, as long as the Filipino is 18
•
Mistake of identity (whether it is the foreigner or the Filipino who committed the
mistake)
•
If a spouse who contracts the marriage abroad is able to annul or declare void
his first marriage but fails to record the judicial decree with the LCR, to partition
& distribute the properties from his first marriage, & deliver the presumptive
legitime of the children from the first marriage (Art. 40, 52, & 53)
•
A marriage by a Filipino to a psychologically incapacitated person, or if said
Filipino is psychologically incapacitated
•
Same sex marriages
•
Common-law marriages obtained abroad by Filipinos (though this is not listed in
Art. 26), due to absence of solemnization
•
Incestuous marriages & those against public policy (Art. 37 & 38)
o Courts can look at the statutes of foreign countries to check if a
marriage is not valid there
•
Bigamous & polygamous marriages
o Bigamy – a second marriage contracted by a person who has a valid
first marriage which has not been legally dissolved OR before the
absentee spouse has been declared presumptively dead by means of
a judgment rendered in the proper proceeding
§
Art. 41, FC - a bigamous marriage may be recognized if one
of the spouses has been absent for 4 consecutive years, or
2 in cases where there is danger of death, & the spouse has
a well-founded belief that the absent spouse was already
dead; the person gets judicial declaration of presumptive
death & can validly marry again, but without prejudice to the
reappearance of the absentee spouse
o Polygamy – An act or state of a person who, knowing that he has 2 or
more wives, or that she has 2 or more husbands, marries another
Proof of Foreign Marriage
•
Foreign law must be proven as a question of fact
Katrina Monica C. Gaw | Block C 2018| 31
If foreign law is not pleaded or proved, the laws of such state, in
absence of proof of the contrary, will be presumed by the court to be
the same as the laws of its own state
§ CASE: Ching Huat v. Co Heong – A Chinese woman alleged that
she was married to a Filipino & that their marriage was
solemnized in China by a village leader. However, she failed to
show proof of the marriage laws of China. SC presumed that the
laws of China were the laws of the Philippines, & invalidated the
marriage because a village leader is not a solemnizing officer in
the Philippines.
o Prior to 1991 - burden of proof: one who asserts validity of marriage
celebrated abroad
o After 1991 - burden of proof: one who asserts invalidity of marriage
celebrated abroad
Proof of the celebration of the marriage pursuant thereto by convincing
evidence
o Upon proof of marriage in another jurisdiction, it is presumed that
such marriage was performed in accordance of the law of that
jurisdiction
o
•
Absolute Divorce
•
Two Filipinos, even living abroad, cannot obtain divorce
o A Filipina woman who got a divorce from her Filipino husband in the
U.S. technically committed adultery when she dated other men, as the
Philippines never recognized the divorce (Art. 15 & 17, CC)
•
The Philippines will recognize the divorce of two aliens committed abroad, as a
matter of international comity
o BUT: Foreign marital law & divorce decree must be duly proven &
cannot be taken judicial notice of
o This is because the Philippines adheres to the nationality rule – the
law of the country of the person governs as to the person’s status or
legal capacity
•
But a Filipino who has become a citizen of a foreign country which allows
divorce can validly contract it
o For purposes of Art. 26, citizenship is to be determined at the time of
the divorce & not at the time of marriage
o If the Filipino returns to the Philippines & becomes a citizen of the
Philippines again, divorce will still be valid, & Filipino can validly
remarry
•
If the Filipino contracts a divorce with a foreigner, the divorce will be recognized
on the part of the foreigner, but not on the part of the Filipino
o A foreigner-spouse cannot claim that he still has interest in the
property of a Filipino acquired after said divorce
o A foreigner-spouse cannot file a criminal case for adultery if Filipinoex-spouse has sex with another person
Proving Foreign Divorce
•
Foreign divorce decree duly authenticated by the foreign court issuing said
decree is sufficient evidence of a divorce obtained
o A foreign judgment merely constitutes prima facie evidence of the
justness of the claim of a party & is subject to proof of the contrary
•
•
Reckoning point is the citizenship of a person at the time the divorce was
obtained
Valid foreign decree of a divorce shall be given res judicata15 effect
CASE: Bayot v. Court of Appeals
Filipino with a dual citizenship can validly obtain a divorce abroad as a citizen of said
country & can no longer filed a case to declare the marriage void; proof of preferred
citizenship can be seen by the evidence of the citizenship used when filling up official
documents
Facts: The petitioner wants to obtain a JDNOM so that she can once again contest the
property ownership of the property from their former marriage. She is a dual citizen, & is
recognized as a Filipino citizen, but she chose before, during, & shortly after her divorce
to allow her American citizenship to govern her marital relationship, as evidenced by the
Civil Decree she filed to obtain the divorce. Furthermore, her property relations with her
husband had been adjudged abroad.
Held: The divorce was VALID. The wife can no longer attempt to re-fix the property
relations of her former marriage, even if she is now a Filipino citizen. After a divorce, the
ex-husband can no longer be subject to a husband’s obligation under the law. The exwife lacks a cause of action16 to be able to file for a JDNOM.
CASE: Corpus v. Sto. Tomas
A foreigner cannot file a petition for recognition of divorce under the 2nd par. of Art. 26;
only the Filipino spouse can avail of this remedy However, said foreigner can register his
foreign divorce decree in a civil registry office by filing a petition for recognition of foreign
judgment so that the foreign judgment (i.e., the divorce) will be recognized in the
Philippines.
Facts: Corpuz was a former Filipino citizen who had since become Canadian. He married
Sto. Tomas, a Filipina, in Pasig; at the time, he was already a Canadian citizen. When
Sto. Tomas cheated on him, he filed for & obtained a divorce in Canada. Subsequently,
he met another Filipina & wanted to marry her. Corpuz went to the Pasig Civil Registry
Office to register his Canadian divorce decree; however, he was informed that registering
the decree would not suffice, & that he would need the court’s intervention. In
compliance with this, Corpuz filed a petition for recognition of divorce &/or declaration of
marriage as dissolved with the RTC. The RTC, however, denied Corpuz’s petition, holding
that only a Filipino can avail of the remedy under the 2nd par. of Art. 26 to have a court
recognize a divorce by the foreigner spouse. Corpuz appealed.
Held: The RTC was correct in holding that an alien can claim no right under the 2nd par.
of Art. 26, as it is a right established in favor of the Filipino spouse. The action under this
paragraph not only allows for recognition of the foreign divorce decree; it also
capacitates the Filipino spouse to remarry. No court in this jurisdiction, however, can
make a similar declaration for the alien spouse (other than that already established by
the foreign divorce decree), because of the nationality rule – the foreign spouse’s status
& legal capacity are governed by his national law as a general rule.
HOWEVER, the unavailability of the 2nd par. of Art. 26 to aliens like Corpuz does not
mean that Corpuz has no legal interest to petition the RTC for the recognition of his
foreign divorce decree. The foreign divorce decree itself, after its authenticity &
conformity with the alien’s national law have been duly proven according to the
Philippine rules on evidence, serves as presumptive evidence of a right in favor of
15
16
A matter already adjudged
Cause of action: an act or omission of one party in violation of a legal right of another, giving rise to a right to file suit
Katrina Monica C. Gaw | Block C 2018| 32
Corpuz. Because our courts do not recognize foreign judgments & laws, the foreign
judgment must be proven as well before the Philippines will consider Corpuz to truly be
divorced.
To prove the foreign divorce decree, Corpuz will have to present the following documents
for his petition to prosper:
• The foreign divorce decree &
• The national law of the alien
These must be proven either by –
• Official publications, or
• Copies attested by the officer having legal custody of the documents, AND
• A certificate issued by the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the record is kept &
authenticated by the seal of his office.
Aside from the need to present these documents, in order to have the divorce of Corpuz
& Sto. Tomas recorded in the civil registry, a petition must be filed under Rule 108 of the
Rules of Court. Rule 108 pertains to the rules which authorize the cancellation or
correction of entries annotated in the civil registry. While the petition for recognition of
the foreign divorce decree is needed for the Philippines to take cognizance of the foreign
judgment, the Rule 108 petition is what will allow for the recording of the divorce in the
civil registry.
SC also pointed out, however, that the Rule 108 petition & the petition for recognition of
foreign judgment need not be pursued in separate proceedings. The recognition of the
foreign divorce decree may be made in a Rule 108 proceeding itself.
Art. 30. The original of the affidavit required in the last preceding article, together with a
legible copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the LCR of the municipality where it was performed within 30 days after the
performance of the marriage.
Art. 31. A marriage in articulo mortis between passengers or crew members may also be
solemnized by a ship captain or an airplane pilot not only while the ship is at sea or the
plane is at flight, but also during stopovers at ports of call.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise
have the authority to solemnize marriages in articulo mortis between persons within the
zone of military operations, whether members of the armed forces or civilians.
Art. 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of a marriage license,
provided they are solemnized in accordance with their customs, rites, or practices.
Art. 34. No license shall be necessary for the marriage of a man & a woman who have
lived together as husband & wife for at least 5 years & without any legal impediment to
marry each other. The contracting parties shall state the foregoing facts in an affidavit
before any person authorized by law to administer oaths. The solemnizing officer shall
also state under oath that he ascertained the qualifications of the contracting parties &
found no legal impediment to the marriage.
Void & Voidable Marriages
•
If a marriage is void or voidable abroad, it is void or voidable here too, as the
case may be; this is true even if the marriage would have been valid if
celebrated in the Philippines
o Ex. If a Filipino, while abroad, marries a person in the residence of a
judge, within that judge’s jurisdiction, this is valid in the Philippines.
But if the law of that judge’s country declares the marriage to be void,
the marriage will also be void in the Philippines.
Exemption from Marriage License
•
Art. 28, 31, 32, 33 & 34 list situations where the contracting parties do not
need to obtain a marriage license before being validly married.
o Anchored on necessity & practicality
•
Various ethnic groups must comply with all other essential & formal requisites
under Art. 2 & 3 of the Family Code
o EXCEPTION: Muslims, who are governed by the Code of Muslim
Personal Laws of the Philippines (Feb. 4, 1977)
CHAPTER 2: MARRIAGES EXEMPT FROM LICENSE REQUIREMEN T
Far Areas
•
If the residence of either party is so located that there are no means of
transportation to enable personal appearance before the LCR, the marriage
may be solemnized without the marriage license
Art. 27. In case either or both of the contracting parties are at the point of death, the
marriage may be solemnized without necessity of a marriage license & shall remain valid
even if the ailing party subsequently survives.
Art. 28. If the residence of either party is located so that there is no means of
transportation to enable such party to appear personally before the LCR, the marriage
may be solemnized without necessity of a marriage license.
Art. 29. In the cases provided for in the 2 preceding articles, the solemnizing officer shall
state in an affidavit executed before the LCR or any other person legally authorized to
administer oaths that the marriage was performed in articulo mortis or that the
residence of either party, specifying the barrio or barangay, is so located & that the
officer took the necessary steps to ascertain the ages & relationship of the contracting
parties & the absence of a legal impediment to the marriage.
Solemnizing Officers under Art. 7 & Mayor
•
All those authorized to solemnize a marriage under Art. 7 & the mayor are
empowered to act as solemnizing officers even without a valid marriage license
if either or both of the contracting parties are at the point of death
•
All officers must still comply with rules on jurisdiction & other requisites
o Ex. Consuls can only solemnize a marriage if both parties are Filipino
Chief Pilots & Ship Captains
•
In articulo mortis
•
For passengers & crew members only
Katrina Monica C. Gaw | Block C 2018| 33
•
Plane must be in flight, or ship at sea; it may be performed even during
stopovers at ports of call
Military Commander
•
Officer must be a commissioned officer
o Rank should start from 2nd lieutenant, ensign & above
•
A commander of a unit
o At least a battalion of an army whose strength is laid down by
regulations
•
In articulo mortis
•
In the absence of a chaplain (unless neither of the contracting parties are in
the same sect as the chaplain)
•
Within the zone of military operation & during such military operation
•
Civilians or members of the armed forces
Muslim & Ethnic Groups
•
In the Civil Code, as long as the marriages of ethnic groups, pagans, & Muslims
were performed in accordance with their customs, rites, & practices, such
marriages were considered valid.
o Formal requisites need not be complied with, including authority of
the solemnizing officers
o BUT: This privilege that was good for 20 years from the time the Civil
Code took effect
•
Family Code now explicitly provides that the only requisite for marriage these
groups are exempted from complying with is the marriage license
•
Only two groups have a separate law governing their marriages
o Muslims – Code of Muslim Personal Laws
o R.A. 6766: The Organic Act for the Cordillera Autonomous Region
§ Marriages solemnized between or among members of the
indigenous tribal group or cultural community in accordance with
the indigenous customary laws of the place shall be valid, & the
dissolution thereof in accordance with these laws shall be
recognized
•
All other ethnic groups are subject to the provisions of the Family Code
Cohabitation for 5 Years
•
Two conditions must be fulfilled:
1) They must live as such for at least 5 years characterized by exclusivity &
continuity that is unbroken
2) They must be without any legal impediment to marry each other (at the
time of the actual marriage celebration)
•
Both conditions must concur, but do not need to qualify each other.
o They need not be without legal impediment throughout the entire 5
years.
•
In the 1950 Civil Code, the following conditions must be present for a commonlaw marriage to be validly solemnized without a license:
1) They must live as husband & wife for 5 years
2) They must have been unmarried for the entire 5 years
3) They must both be of legal age
•
•
*In other words, there must be no legal impediment to marry for the entire 5year period
Under the present Family Code, a spouse living-in with his paramour can avail
of this exception & marry his paramour without a marriage license after the
death of his legal spouse without waiting for 5 years
Contracting parties shall state the fact of their cohabitation for at least 5 years
& the absence of any legal impediment to marry in an affidavit before any
person authorized by law to administer oaths
o Solemnizing officer should also state under oath that he ascertained
the qualifications of the parties & found no legal impediment to the
marriage
o Failure of the solemnizing officer to investigate shall not invalidate the
marriage
CASE: Cosca v. Palaypayon
So long as at the time of the marriage, the parties had no legal impediment to marry,
courts will not invalidate a void marriage on the ground that the solemnizing officer
failed to ascertain the qualifications of the parties who claimed to have cohabited with
one another.
Facts: A judge solemnized a marriage involving a party who was only 18 years of age
without a marriage license on the basis of an affidavit where the parties indicated that
they already lived together as husband & wife for 6 years.
Held: SC held the judge acted improperly, because the likelihood that they had lived
together for 6 years already, when one of the parties was only 18, was very low.
Nevertheless, SC did not state that the marriage was void because, at the time of the
marriage ceremony, the parties had no legal impediment to marry
CASE: De Castro v. Assidao-De Castro
If there is no cohabitation for 5 years & no marriage license, the marriage is void
Facts: There was evidence that the contracting parties had not cohabited together for 5
years; yet, they failed to obtain a marriage license. It turned out the parties made false
statements in their affidavit so they could marry without the license.
Held: The marriage is void. The absence of the license cannot be considered a mere
irregularity becomes the 5-year period is the substantial requirement of the law to be
exempted from obtaining a marriage license.
Directory Requirements
•
Art. 29 & 30 are merely directory in character & absence will not render marriage
void or annullable.
•
Priests, ministers, & officers who, having solemnized a marriage in articulo mortis
or any other marriage of an exceptional character, shall fail to comply with the
provisions of Chapter 2, Title I of the Family Code shall be punished by
imprisonment, fines, or both.
CHAPTER 3: VOID & VOIDABLE MARRIAGES
Art. 35. The following marriages shall be void from the beginning:
1. Those contracted by any party below 18 years of age even with the consent of the
parents or guardians;
2. Those solemnized by any person not legally authorize to perform marriages
unless such marriages were contracted with either or both parties believing in
Katrina Monica C. Gaw | Block C 2018| 34
3.
4.
5.
6.
good faith that the solemnizing officer had the legal authority to do so;
Those solemnized without a license, except those covered by the preceding
Chapter;
Those bigamous & polygamous marriages not falling under Art. 41;
Those contracted through mistake of one contracting party as to the identity of
the other;
Those subsequent marriages that are void under Art. 53.
Void Marriages
•
A marriage that is not valid from inception
•
Art. 35, 36, 37, 38, 40, 41, 44 & 53 in relation to Art. 52 of the Family Code
enumerate marriages which are void
•
Only marriages declared void by legislature can be treated as such
o Thus: Because the law does not state such would be void, a
stepbrother & stepsister can marry each other; so can a guardian &
his or her ward
•
Multiple grounds for a void marriage may co-exist in one case
o A petition for declaration of nullity, without any other incidental
prayers like support, deals with only 1 cause of action, which is the
invalidity of the marriage from the beginning
o There can thus be multiple grounds, but only 1 cause of action - the
nullity of the marriage
Void & Voidable Marriages
Status
of
the Marriage
Ratification
Void Marriages
Considered as having never taken place
& cannot be the source of rights
No ratification
Type
of
Attack that
is allowed
Prescriptive
Period
Can be assailed collaterally & directly,
but only the spouses themselves may
assail it directly
For direct proceeding – only during the
lifetime of the parties
Who
can
Assail
Legitimacy
of Children
For collateral attack – no prescription
Any interested parties can assail
Generally, children conceived & born
inside a void marriage are illegitimate
Except:
Art. 54 – in relation to psychological
incapacity, Art. 53 (failure to record
judicial
declaration,
partition
&
distribute)
*NOTE: If a person in a void marriage
fails to get a JDNOM & remarries, the
Voidable Marriages
Valid until otherwise declared
by court
Generally ratifiable by free
cohabitation or prescription
Cannot
be
assailed
collaterally; only in a direct
proceeding
Only during the lifetime of the
parties
Only parties of marriage can
assail
Children are legitimate
Property
Regime
child is illegitimate (Art. 40)17
Co-ownership (Art. 147/148)
Conjugal partnership of gains
(or absolute community)
Except:
Art. 40 – marriages that are void due to
failure to obtain a JDNOM for the 1st
marriage of one of the spouses
*BUT NOTE: If only Art. 40 is complied
with, without Art. 52, the regime is coownership18
Void Marriage Not Subject to Ratification
•
A void marriage can never be ratified or cured by acts of the contracting
parties; nor can acquiescence or estoppel apply.
o If a contracting party states under oath in his application that he is 21
years of age when he is actually 16 when the marriage was
solemnized, the marriage is still void & can still be judicially declared
void.
o If the parties state that they have been cohabiting for 5 years already
when they have only cohabited for 2, the marriage is void.
•
SC in Mallion v. Alcantara – A petitioner cannot first file a petition for nullity of
his marriage based on 1 ground (psychological incapacity) & then subsequently
file another (for lack of a marriage nullity); a case for nullity involves only 1
cause of action, so all the grounds must be listed in that 1 cause; not having
invoked the other ground in the 1st place, the petitioner is considered to have
impliedly admitted the validity of the celebration of the marriage, thereby
waiving said defect
o Sta. Maria thinks this case is wrong for valuing procedural over
substantive law; he argues no amount of waivers, ratification,
estoppel, etc. can validate a void marriage.
Bad Faith or Good Faith in Void Marriages
•
General rule: Good faith or bad faith is immaterial in void marriages
o A person who marries her long-lost brother without knowing he was
her long-lost brother still entered into a void marriage
o Same applies if person marries without a marriage license
o A person who marries his cousin knowing the law declares the
marriage void can himself get the marriage declared void after
o The doctrine of unclean hands does not apply in actions for nullity of
marriage – the nullity case may still prosper despite one party
knowing that the marriage is void prior to the solemnization.
§
At most, the party who knew that he was entering into a void
marriage before the solemnization may be held liable for
damages by the other party, under Arts. 19, 20, 21 of the
If a man marries a 2nd woman after failing to obtain a JDNOM for his 1st marriage, his children with the woman will be illegitimate.
But if he obtained a JDNOM, & merely failed to record the JDNOM & distribute & partition his properties, his children with the 2nd
woman are legitimate.
18 If a spouse fails to get a JDNOM for his 1st marriage & remarries another woman, his property regime will still be ACP/CPG when he
dissolves his marriage with 2nd woman. But if the same spouse obtains a JDNOM, but fails to record it, distribute & partition, the
regime of his marriage with the 2nd woman will be co-ownership.
17
Katrina Monica C. Gaw | Block C 2018| 35
•
•
•
Civil Code dealing with human relations; however, this would
be dependent on the acts.
CASE: Abbas v. Abbas – Even if a party’s intention in filing a declaration for
nullity case was less than pure, as when it is done merely to evade a bigamy
case, such fact does not prevent the judicial declaration of nullity on the basis
of a clear showing that there was an absence of a marriage license or other
ground for nullifying a marriage.
There is no injured party in a void marriage, unlike in an annullable marriage or
those with legal separation.
Two Exceptions:
o First: When the party:
1) Has a well-founded belief that his or her spouse is dead
2) Procures a juridical declaration of presumptive death
3) At the time the subsequent marriage ceremony, is in good faith
together with subsequent spouse
o Second: If either of the contracting parties believes in good faith that
a solemnizing officer has authority to solemnize a marriage, though
he actually does not have such authority, the marriage will be valid.
o In these two cases, the good faith of even one of the contracting
parties to the marriage shall make the marriage valid. To be void,
both contracting parties must be in bad faith.
CASE: Chi Ming Tsoi v. Court of Appeals
That the party who is accused of being psychologically incapacitated is the one who files
the case is immaterial; good faith or bad faith does not serve to change the status of a
void marriage.
Facts: Chi Ming Tsoi has a 3-inch penis & his wife believes he is incapable of sex or that
he might be gay, as he has refused to sleep with her for a number of months already. Chi
Ming Tsoi, on the other hand, says it is his wife that is psychologically incapacitated, &
that he is willing to make the marriage work.
Held: Marriage is VOID. The refusal to have sex points towards a psychological issue, &
at this point, it is immaterial whether or not the wife or the husband is the reason why
this is the case; the bottom line is, this marriage ain’t working.
Bad Faith Affecting Property Distribution
•
In the disposition of properties in a void marriage, good faith & bad faith of one
of the parties at the time of marriage is material (Art. 147, 148 of CC)
•
GENERAL RULE in void marriages: property regime is co-ownership
o When one of the parties is in bad faith, the share of said party in the
co-ownership shall be forfeited in favor of their common children
§
In case of default or waiver by any or all of the common
children or their descendants, or the respective surviving
descendants, the share goes to the innocent party
§
Shall take place upon the termination of cohabitation
o Applies to all marriages except to a subsequent void marriage due to
the failure of a party to get a prior JDNOM of the previous void
marriage pursuant to Art. 40 of the Family Code.
§
Property regime: ACP or CPG
§
The party that contracted under bad faith will also be forfeit
his share pursuant to Art. 43 (2).
Collateral & Direct Attack
•
Direct attack – the nullity of the marriage is the principal issue; only husband &
wife can themselves make a direct attack of the marriage
•
Generally, a void marriage can be collaterally attacked – nullity of marriage can
be asserted even if it is not the main or principal issue of a case
o No previous JDNOM is required by law with respect to any other
matter where the issue of the voidness of a marriage is pertinent or
material, either directly or indirectly
•
Inheritance case: any proof can be showing that makes a child illegitimate due
to the void marriage of decedent with their mother
o JDNOM is not needed to prove that marriage is void (in other words, it
does not need to be shown that either one of the spouses filed a civil
case precisely & mainly for the purpose of judicially declaring the
marriage void).
o Evidence other than a judicial decision declaring said marriage void
can be presented to show nullity of marriage.
CASE: De Castro v. Assidao-De Castro
In cases of child support, the validity or voidness of a marriage can be collaterally
attacked.
Facts: Petitioner filed a complaint for support against her husband to compel the latter to
support their child. The husband interposed an affirmative degree claiming he &
petitioner were not married. Should there have been a separate case to declare the
marriage void?
Held: NO. In a case of child support, there is no need to file a separate case for the
JDNOM.
•
3 cases when a direct attack (not a collateral attack) on the nullity of a
marriage must be first undertaken
1) The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment
declaring such marriage void (Art. 40)
2) For other purposes, such as but not limited to heirship,
legitimacy, or illegitimacy of a child, settlement, etc., the court
may pass upon the validity of a marriage even in a suit not
directly related to it; but this is without prejudice to any issue that
may arise in the case, making the JDNOM necessary (Niñal v.
Bayadog)
3) Revocation of a donation propter nuptias given to one or both of
the parties on the ground that the marriage is void; a JDNOM
must first be obtained by the parties.
*The existence of a valid JDNOM will give the donor the cause of
action to revoke the donation (Art. 86(1)) or to consider the
donation revoked by operation of law (Art. 50 in relation to Art.
43 (3)), as the case may be.
Below 18 Years of Age
•
Subsequent parental consent cannot ratify such a void marriage
Non-Authority of Solemnizer
•
The Philippines exclusively recognizes ceremonial marriages
Katrina Monica C. Gaw | Block C 2018| 36
•
If a person is not enumerated in Art. 7 of FC or by the LGC, he has no authority
to solemnize a marriage
Good Faith Marriage
•
Good faith belief of either or both of the contracting parties in the authority of
the solemnizing officer can still make the marriage valid
o “Putative marriage” – applied to a matrimonial union which has been
solemnized in due form & good faith on the part of one or both of the
parties but which by reason of some legal infirmity, is either void or
voidable. The essential requisite is the belief that it is valid.
•
NO OTHER essential or formal requisite can be “cured” by good faith
•
Good faith is a question of fact which must be determined by the trial court, but
good faith is always presumed until the contrary is proven
o But good faith requires the exercise of due diligence, & this means a
certain awareness of the questions of law
o Person in good faith cannot close his ears to information or his eyes
to suspicious circumstances; must not act blindly or without
reasonable precautions
•
Question of fact – Parties go before a person who the law states is qualified to
solemnize a marriage, but in fact is not because of non-fulfillment of a
requirement by law (e.g., procurement of a solemnizer’s license); in these
cases, the good faith of the parties in believing in the officer’s authority is
material.
o When a man dresses up as a priest, pretending to have the authority
to solemnize a marriage
o Excusable mistake of fact
•
Question of law – If the contracting parties go before a person not specifically
mentioned by law as having any authority to solemnize a marriage, then good
faith or bad faith is immaterial because they cannot be excused for being
ignorant of the persons authorized by law to solemnize marriage
o Ignorantia legis non excusat (Art. 3, CC)
o The authority of the solemnizing officer (priest) to contract said
marriage
•
When a woman’s belief in the validity of the authority of the solemnizing officer
stems from a question of fact (he acts more like the judge than the judge
himself) rather than a question of law (not knowing which solemnizing officer
has authority), her belief is considered in good faith.
o From Family Code Senate Committee Discussions – many people
these days are good at pretending they have the authority to
solemnize marriages
No Marriage License
•
Marriage license is a formal requisite, with exceptions provided in Art. 27, 28,
29, 30, 31, 32, 33, & 34 of the FC.
Bigamous & Polygamous Marriages
•
General Rule: A validly married man or a woman are prohibited from
contracting another bond of union as long as the consort is alive
o Ex. A subsequent marriage contracted by a wife during the life of a
former husband is illegal & void from the beginning
Ex. A subsequent marriage contracted in HK by a husband who had
secured a void Nevada divorce is bigamous & void
Exceptions:
o Code of Muslim Personal Laws
o Art. 41 (Presumptive Death)
If the 1st marriage is void, there is no bigamy when the man or woman
contracts a 2nd marriage, according to Sta. Maria – in his opinion, 1st marriage
must be valid for bigamy to exist
o SC ruled in Nicdao Cariño v. Cariño, however, that a marriage under
Art. 40 would in fact be bigamous.19
BUT when the 1st marriage is void, & one of the parties contracts a 2nd
marriage, the 2nd marriage is likewise void if the parties did not obtain a
JDNOM & recorded with the LCR before any subsequent marriage (Art. 40, 52,
53)
o
•
•
•
Mistake in Identity
•
One of the parties marries the twin of the other, believing that such twin is his
or her lover
o The contracting party ABSOLUTELY did not intend to marry the other,
as the same is not the person he actually knew before the marriage
•
Does not include mistake in the name, character of the person, his or her
attributes, his or her age, religion, social standing, pedigree, pecuniary means,
temperaments, acquirements, condition of live or previous habits
o DOES NOT APPLY when a man is led to believe that he is marrying a
virtuous woman, when in fact she had previously led an immoral life
Void Under Art. 53
•
For persons whose marriages have been annulled or declared null & void to be
able to validly marry again, they must:
o Register JDNOM or JDAOM in the local civil registry where marriage
was solemnized
o Undertake the liquidation, partition & distribution of their properties
o ONLY in the proper cases, the delivery of the children’s presumptive
legitimes
•
Non-compliance with these requirements will make the subsequent marriage
void
Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization.
Psychological Incapacity
•
Determination is on a case-to-case basis, according to the facts of the case
•
Not to be equated with insanity or total mental inability to function in all
aspects of human life
Dean Mel does not agree with this ruling, as he explains in his discussion for Art. 40. He notes that an Art. 40 marriage envisions a
situation where the first marriage is void, and without getting a JDNOM, one of the spouses enters into a second VALID marriage.
19
Katrina Monica C. Gaw | Block C 2018| 37
Restricted to psychological incapacity “to comply with all the marital
obligations.”
o Malady or mental disposition must seriously & effectively prevent
them from having a functional & normal marital life clearly conducive
to bringing up a healthy personal inter-marital relationship within the
family which is necessary for its growth
o Incapacity must have been afflicting the psychologically incapacitated
party even BEFORE celebration of marriage
Refers to senseless, protracted, constant refusal to comply with all the
essential marital obligations by one or both of the parties although he, she or
they are physically capable of performing such obligations
Some examples from jurisprudence:
o While a person may be truly efficient & mentally capable in his
professional life, he can still be considered completely irresponsible
vis-à-vis his married life if he spends the whole day working & not
minding his family
o Despite him saying that he truly loves his wife & kids, he is so
absolutely indifferent with respect to his duties as a father & husband
Capacity is limited to his failure or disregard to comply with essential marital
obligations, although physically capable of doing so
o Not mere stubborn refusal; attributable to psychological issues
NOT related to insanity or lack of consent, but with obligations attendant to the
marriage
CANNOT be cured by cohabitation, considering that ratification does not apply
to void marriages; even the bearing of children does not necessarily cure
psychological incapacity
There is such a thing as SELECTIVE IMPOTENCY — when a person may be
psychologically impotent with one person, but not with another; this can be
considered psychological incapacity
A defect in the understanding of the consequences of marriage
o Psychological incapacity is incurable
o But a person who is psychologically incapacitated is not barred from
marrying again
Decisions of church tribunals are not binding on civil courts but have
persuasive effect, since the provision is taken from Canon Law
Mere difficulty of assuming moral obligations does not constitute incapacity.
There must be a true psychological disorder or issue.
In a sense, it is incurable
Does not cover all forms of psychoses
Children born in marriages under psychological incapacity are LEGITIMATE (Art.
54)
Proving Psychological Incapacity
•
Can only be proven by indicators & external manifestations of the person
claimed to be psychologically incapacitated
•
It is important to see if the spouse observes their duties as stated in Art. 68, FC
•
Procreation is considered an essential obligation – constant non-fulfillment of
this obligation will finally destroy the integrity or wholeness of the marriage
o Ex. Fear of a wife, who is afraid of children, to engage in sexual
relations is an indicator of psychological incapacity (senseless &
protracted refusal
•
Art. 220, 221, & 225 of FC – duties of parents in relation to their children;
failure to do this is a good indicator of psychological incapacity
•
o Ex. Unreasonable attachment of spouse to his friends, so much so
that his devotion to his family is subordinated to said attachment
•
Total breakdown of family life is a good indicator, but separation &
abandonment alone are not conclusive proof of psychological incapacity;
sexual infidelity or living an adulterous life is also not counted
•
Mere isolated idiosyncracies are not enough; so mere refusal or neglect to
comply is not enough too — it must be downright incapacity to perform
o There must be gross irresponsibility & utter disregard
•
Should NOT be attributed to pure physical illness
•
Psychological evidence (expert testimony) is not necessarily conclusive, but can
be considered decisive evidence if it is thorough & specific to the case of the
incapacitated spouse
o Personality disorders suffered by both parties is included
o BUT a person need not be declared psychologically incapacitated by a
physician, as courts can consider totality of evidence
o Expert testimony must be thorough & in-depth assessment
•
Some accepted disorders of psychological incapacity:
o Dependent personality disorder
o Anti-social & narcissistic personality disorder – with lack of loyalty to
persons or sense of moral values
o Hyperesthesia – no real freedom of sexual choice
o Schizophrenia
o Nymphomaniacs
o Inadequate personality disorder
•
BUT: The ground of psychological incapacity is very personal & limited; it does
not mean that just because a person is psychologically incapacitated to
perform his marital obligations with his present spouse, this would be the case
with any other person other than his present spouse.
CASE: Santos v. Court of Appeals
Absence for a long period of time does not necessarily prove psychological incapacity.
Facts: Wife goes abroad to work in the U.S. & does not contact her husband at all; only
calls him up 7 months later to say she is coming home, but she never does. She only
begins to reply when he files for JDNOM due to psychological incapacity, for her failure to
communicate with him for over 5 years.
Held: NO psychological incapacity; there is no showing that the wife fails to understand
the obligations & consequences of marriage.
Expert Testimony
•
Extremely helpful
•
Personal medical or psychological examination is not a requirement for the
declaration of psychological incapacity, & the presence of expert testimony
does not also immediately mean the decree will be granted
•
Decision must be based on totality of evidence
o Thus, sometimes, when the report from the psychiatrist seems faulty
or too general, it is not considered by the courts
•
•
•
•
•
•
•
•
•
•
•
•
•
Katrina Monica C. Gaw | Block C 2018| 38
But sometimes, when the psychiatrist does not personally examine
the incapacitated person but is able to get the pertinent data, the
testimony is still admitted as evidence
In one case, the husband was going to introduce the confidential psychiatric
evaluation report made by a psychiatrist with respect to his wife
o Court admitted this as evidence even if it was supposed to be
confidential, as it was the husband, not the psychiatrist, who would
be making the testimony
o
•
Lifted from Canon Law
•
Hence: Decisions of church tribunals are also considered persuasive, but not
necessarily conclusive
•
Example: Woman who submits herself to sex because she is obliged to do so;
this is indicative of a psychological problem
•
Fr. Dacanay – psychological incapacity as the inability to posit the object of
consent, rather than the inability to posit consent
o They understand marriage, however they find it difficult to deliver the
object of their consent
Jurisprudential Guidelines
•
(Republic v. CA & Molina) Guidelines for invoking & proving psychological
incapacity:
1) The burden of proof to show nullity of marriage belongs to the one who
claims the psychological incapacity; any doubt should be resolved in favor
of marriage
2) Root cause must be:
a. Clinically or medically identified
b. Alleged in the complaint
c. Sufficiently proven by experts
d. Clearly explained in the decision
e. Must be psychological, but manifestation may be physical
3) Existing at the time of the celebration of the marriage
4) Must be shown to be medically or clinically incurable – may be relative
only in regard to the other spouse
5) Such illness must be grave enough to bring about inability to assume the
essential obligations of marriage
6) The essential obligations must be those embraced by Art. 68-71 of the
Family Code
7) Interpretations given by National Appellate Matrimonial Tribunal of the
Catholic Church of the Philippines should be given great respect by our
courts
•
Despite Molina, each case of psychological incapacity must be treated
differently, according to Te v. Te
Damages
•
No moral or exemplary damages, or attorney’s fees, are allowed psychological
incapacity case; non-cognizance of one’s essential marital obligation at the
time of the marriage ceremony negates bad faith, which is an essential
element in awarding moral damages in contracting the marriage
Art. 37. Marriages between the following are incestuous & void from the beginning,
whether the relationship between the parties is legitimate or illegitimate:
1. Between ascendants & descendants of any degree;
2. Between brothers & sisters, whether full or half-blood.
Reasons for Prohibition
•
Immoral
•
Recessive abnormality (biological)
•
Social & psychological issues
Art. 38. The following marriages shall be void from the beginning for reasons of public
policy:
1) Between collateral blood relatives, whether legitimate or illegitimate, up to the 4th
civil degree
2) Between step-parents & step-children
3) Between parents-in-law & children-in-law
4) Between the adopting parents & the adopted child
5) Between the surviving spouse of the adopting parents & the adopted child
6) Between the surviving spouse of the adopted child & the adopter
7) Between an adopted child & a legitimate child of the adopter
8) Between adopted children of the same adopter
9) Between parents where one, with the intention to marry the other, killed that
other person’s spouse or his or her own spouse
Breakdown
•
Mimicking parents & children
a. Between step-parents & step-children
b. Between parents-in-law & children-in-law
c. Between adopting parent & adopted child
•
Mimicking siblinghood
a. Between the adopted children of the same adopter
b. Between the legitimate child of the adopter & the adopted child
•
Surviving Spouses
a. Between the surviving spouse of the adopting parents & the adopted
child
b. Between the surviving spouse of the adopted child & the adopter
•
Relatives & Plain Murder
a. Between collateral blood relatives, whether legitimate or illegitimate,
up to the 4th civil degree
b. Between parties where one, with the intention of marrying the other,
killed that other person’s spouse or his or her own spouse
Reasons for Prohibition of Void Marriages
•
Marriages in Art. 38 will not serve the fundamental objective of nurturing a
stable family unit that can effectively be the foundation of society
•
Enumeration in Art. 38 is exclusive
o A guardian & ward can marry each other
o Step-siblings can marry each other
o A principal & her agent can marry each other
Katrina Monica C. Gaw | Block C 2018| 39
Collateral Blood Relatives by Consanguinity
•
Relationship by consanguinity is not capable of dissolution
o If a common ancestor like a grandfather dies, the relationship is still
not severed
•
In determining if two persons are relatives up to the 4th civil degree, they have
to consider their nearest & most immediate common ascendant
o People you can’t marry:
§
Your first cousin
§
Your uncle or aunt
§
You great aunt or uncle
§
Your niece or nephew
§
Anybody in the ascending or descending line (Art. 37)
o People you can marry:
§
The daughter or son of your cousin
§
Your second cousin
Collateral Half-blood relatives by Consanguinity
•
Law does not provide that marriages between collateral blood relatives by the
half-blood are prohibited
•
Can you marry your half-blood niece or nephew, or half-blood uncle or aunt?
o Audrey v. Audrey – No. It can be implied from the nature of the
relationship.
o In Re Simms Estate– Yes. If legislature intended to do so, they
should’ve said so.
§
THIS appears to be the proper view; all doubts must be
construed in favor of marriage.
Relationships by Affinity
•
Affinity is a connection formed by marriage, but is also a fictive relationship
created by law
•
Step-brothers & step-sisters are allowed to get married
•
When a marriage is annulled or nullified, the relationship by affinity between
step-parents & step-children & parents-in-law & children-in-law is terminate;
they can THUS validly marry each other
•
When a marriage is terminated by death, the relationship by affinity continues,
so that the same prohibitions will still apply
CASE: Carungcong v. People, Sato
Upon the death of one spouse, relations by affinity do not terminate regardless of the
existence of issues for all intents & purposes favorable to them
Facts: Art. 332 of the RPC states that no criminal (only civil) liability shall be result from
the commission of the crime of swindling, theft or malicious mischief when committed or
cause mutually by (1) spouses, ascendants, descendants or relatives by affinity in the
same line, (2) the widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed into the possession of another (3)
brothers & sisters & brothers-in-law & sisters-in-law, if living together. Carungcong is the
manager of the properties of her late mother Manolita Carungcong-Gonzales.
Carungcong discovered that her brother-in-law, William Sato, had committed estafa
against Manolita while she was still alive, having her sign papers that he said were just
for the payment of her taxes, which turned out to papers that turned over 4 Tagaytay lots
to Sato. Manolita was blind at the time, & thus believed Sato. Sato never turned over the
proceeds to Manolita, even after she died, & even after the demands of Manolita’s
estate. Sato claims that he is entitled to the protection provided in Art. 332 of the RPC as
he swindled his mother-in-law, who is a relative by affinity in the same line. Carungcong,
on the other hand, argues that the death of her sister, Sato’s wife, before the death of
Manolita, severed mother-son relationship by affinity. She also cites the commentary of
Justice Luis B. Reyes in his book on criminal law that the rationale of Article 332 of the
Revised Penal Code exempting the persons mentioned therein from criminal liability is
that the law recognizes the presumed co-ownership of the property between the offender
and the offended party. Here, the properties subject of the estafa case were owned by
Manolita whose daughter, Sato’s wife, died on January 28, 1991. Hence, Sato’s wife
never became a co-owner because, under the law, her right to the three parcels of land
could have arisen only after her mother’s death. Since Sato’s wife predeceased her
mother, Manolita, no such right came about and the mantle of protection provided to
Sato by the relationship no longer existed.
Held: SC granted the petition in favor of Carungcong.
•
It has been previously held that parents-in-laws, stepparents & adopted
children are included in the exemptions listed in Art. 332 of RPC.
•
Affinity is a relationship gained by marriage; it is a fictive kinship created by
law. There are 2 views in jurisprudence in reference to what happens to
relationships by affinity when marriage is terminated by death:
o View 1: Relationships by affinity persist only when there are children.
Otherwise, these relationships are terminated. This is usually applies
in cases of jury disqualification & incest.
o View 2: Relationships by affinity continue even after the death of the
spouse. This usually applies in cases meant to benefit step-laws & inlaws.
o SC holds that View 2 is more aligned with the spirit of Art. 332 of RPC
§
View 2 also strengthens the institution of the family. Art.
332 is meant to avoid family scandal
§
View 2 holds for all intents & purposes favorable to the
strengthening of the bond of family
§
In case of doubt, the Court must favor the innocence of the
accused
§
SC states that the same applies to Art. 11[2] of RPC, Art.
13[5]
o HOWEVER, Sato was not charged with simple swindling, theft or
malicious mischief — he is charged with the complex crime of estafa
through falsification of public documents, based on the facts as
fleshed out by the SC, & is thus not covered by Art. 332 of RPC. Sato
is criminally liable.
Adoptive Relationship
•
Limited to one of parent & child
•
Adopter cannot marry:
o The adopted child
o The surviving spouse of the adopted child
•
Adopted child cannot marry:
o The surviving spouse of the adopting parent
Katrina Monica C. Gaw | Block C 2018| 40
If the marriage is nullified or annulled, adopted child &
former spouse can marry; same with adopter & former
spouse of adopted child
o The legitimate child of the adopting parent
o Another adopted child of the same adopting parent
o The adopting parent
Technically speaking, the adopted child can validly marry anybody else,
including an illegitimate child of the adopter & the parents & other relatives by
consanguinity or affinity of the adopter
Adopter can validly marry real parents of the adopted child, the illegitimate,
legitimate or adopted child of the adopted child, etc.
Technically also, because the law talks of a “surviving spouse,” if the marriage
of the adopted is terminated by annulment or nullity, then the adopter can
validly marry the former spouse of the adopted; the adopted may do the same
if the adopter’s marriage is annulled or nullified.
§
•
•
•
Intentional Killing of Spouse
•
Guilty party must be animated by an intention to marry another person
•
Ex. If a wife kills her husband because he is a philanderer & thereafter marries
her lawyer who defended her case, their marriage is valid
•
Ex. If a woman runs over her husband in anger, & has a lover on the side, but
didn’t kill the husband in order to marry her lover, the lover & the wife can
validly marry one another
•
Only preponderance of evidence is required; no need for criminal conviction
•
Evil intention need not be shared by the other spouse
•
The reason for a spouse killing his or her own spouse to marry another, making
the subsequent marriage void, likewise applies to a person who kills the
spouse of another to marry the latter
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall
not prescribe.
Prescriptive Period
•
JDNOM does NOT dissolve a marriage; such marriage is invalid from the
beginning, & thus cannot be dissolved
•
JDNOM merely declares the voidness of the marriage
•
Supreme Court en banc resolution in A.M. No. 02-11-10 (Mar. 15, 2003): ONLY
the husband & wife can file a case for JDNOM &, if filed, the case will be closed
or terminated if during its pendency, either the husband or wife should die.
o Heirs can no longer directly assail the marriage of their step-parent
with their parent.
•
All void marriages under the Family Code do not prescribe.
Parties
•
•
The doctrine that the court should not grant relief to the wrongdoer (doctrine of
clean hands) does not apply to JDNOM
Even the wrongdoer can nullify the marriage
o But the wrongdoer may be held liable for damages under Art. 19, 20,
21 of the CC
•
•
PRIOR to Mar. 15, 2003 – any interested party can directly file a case for a
JDNOM of two spouses, including the father or stepchildren of the spouses.
o Previously, a father could file a case for JDNOM for his daughter’s
bigamous marriage with another man.
o Also, legitimate heirs can file a suit against their stepmother for
declaration of nullity of her marriage with their deceased father to
protect their successional rights
However, a void marriage can still be collaterally attacked by any interested
party when the determination is necessary to give rise to certain rights or to
negate certain rights
CASE: Fujiki v. Marinay – Only the spouses in the subsisting first marriage can
file a case for JDNOM of a subsequent bigamous marriage. The other “spouse”
in the subsequent marriage cannot file the case considering his or her
marriage is void.
CASE: Perez v. Court of Appeals
A 2nd wife cannot file to intervene in JDNOM case of the 1st marriage of her husband
with his 1st wife
Facts: The 2nd wife filed to intervene in the JDNOM case of her husband & his 1st wife.
Her husband got divorced abroad, prior to marrying her.
Held: SC denied the petition, as the divorce obtained abroad is not valid, & SC does not
recognize the 2nd marriage of her husband to her.
Art. 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.
Judicial Declaration of Nullity
•
If a marriage between 2 contracting parties is void, anyone of them cannot
contract a subsequent valid marriage without a previous judicial declaration of
nullity of the previous void marriage.
o The 2nd marriage will also become void if there is no JDNOM, in
accordance with Art. 40, 52 & 53.
o If a JDNOM were obtained & not registered with the LCR & the
liquidation, partition & distribution of the properties, if any, were not
also recorded in the proper registry of property in accordance with Art.
52 & 53, any subsequent marriage is likewise void.
o FULL compliance with Art. 52 & 53 is necessary.
Historical Background of the need for JDNOM
•
The chart below demonstrates the historical background of the need for a
JDNOM in order to have a valid subsequent marriage
•
Which case doctrine applies depends on when the 2nd marriage was celebrated
•
In annulment, a judgment must always be procured; otherwise, the marriage
continues to be valid until terminated
•
JDNOM is not only for purposes of remarriage, but it is MANDATORY for those
who want to marry a 2nd time
o The ONLY ACCEPTABLE PROOF for purpose of remarriage (Domingo v.
Court of Appeals)
Case/Code
Date
JDNOM required?
Katrina Monica C. Gaw | Block C 2018| 41
Civil Code
People v. Mendoza
Gomez v. Lipana
Odayat v. Amante
Wiegel v. Sempio Diy
Yap v. Court of Appeals
Family Code
Aug. 30, 1955
Sept. 28, 1954
June 30, 1970
June 2, 1977
Aug. 19, 1986
Oct. 28, 1986
Aug. 3 1988
No
No
Yes
No
Yes
No
Yes
Art. 40 & Bigamy
•
Law distinctly separates the provisions of a subsequent void marriage
contracted while a previous void marriage is still subsisting (Art. 40, 52, 53)
from the provisions on void bigamous marriages (Art. 35(4) & Art. 41)
•
If a person, without a JDN for his 1st marriage, marries another, the marriage is
void, but Sta. Maria believes that it is NOT bigamous; the person merely failed
to comply with the formal requisites of law
o Art. 40 does not call such a marriage bigamous
o Bigamy involves 2 valid marriages – a valid one with the 1st spouse, &
another valid (or at most, voidable) with the 2nd.
o In a bigamous void marriage, the 1st marriage is valid, while the one
in Art. 40 is void
CASE Nicdao Cariño v. Cariño
A 2nd void marriage obtained by a spouse who has already been in a void 1st marriage is
bigamous, because the 1st marriage is presumed to be valid as there was no JDNOM,
contrary to the opinion of Sta. Maria.
Facts: A man previously married his 1st wife, but it was void because the marriage was
solemnized without a marriage license. Subsequently, & without getting a JDNOM, he
marries his 2nd wife.
Held: SC held that the marriage of the man to his 2nd wife was bigamous, as his 1st
marriage is assumed valid by law, because he was unable to obtain a JDNOM for the 1st
marriage. SC thus applied the property regime under Art. 148.
For Sta. Maria, this decision is WRONG because it blurs the line between Art. 40 & 41;
thus, he holds that, despite the SC decision, the difference between the 2 must be
maintained.
Art. 40 & Criminal Bigamy
•
Bigamy (as a crime) – committed by any person who shall contract a 2nd
marriage or a subsequent marriage before –
o 1st marriage has been legally dissolved, or
o The first spouse has been declared presumptively dead by means of a
judgment in the proper proceeding
•
1st marriage is valid or at least annullable
•
2nd marriage would have also been valid, had it not been bigamous
•
But in Mercado v. Mercado, SC has held that criminal bigamy is committed by
anyone who contracts a 2nd marriage without 1st obtaining a JDNOM of his 1st
marriage.
o When Art. 40 is not complied with, the subsequent marriage is
criminally bigamous.
Dissent of Justice Vitug: Criminal law on bigamy contemplates an
existing 1st marriage, or at least an annullable one; in fact, a void
marriage is supposed to be a defense in bigamy; JDN is not necessary
People v. Cobar (Sta. Maria likes this better) details 4 requisites for bigamy:
1) Offender has been legally married
2) 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
3) Offender contracts a 2nd or subsequent marriage
4) The 2nd or subsequent marriage has all the essential requisites for
validity
*A marriage contracted against provisions of laws is punishable under
Art. 350 of RPC
o
•
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null & void, unless before the celebration of the subsequent marriage,
the prior spouse has been absent for 4 consecutive years & the spouse present has a
well-founded belief that the absent spouse is already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of Art.
391 of the Civil Code, an absence of only 2 years shall be sufficient.
For purposes of contracting a subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided for in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
Art. 42. The subsequent marriage referred to in the preceding Art. shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse,
unless there is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact & circumstances of reappearance shall be recorded in the
civil registry of the residence of the parties to the subsequent marriage at the instance of
any interested person, with due notice to the spouses of the subsequent marriage &
Without prejudice to the fact of reappearance being judicially determined in case such
fact is disputed.
Bigamous Marriage
•
A person who marries another, knowing that the latter is already married & that
his marriage is valid & subsisting, can be prosecuted for bigamy
•
Even an annullable marriage can be subject to a case of bigamy
CASE: Fujiki v. Marinay
A petitioner may prove the termination of a second bigamous marriage through petition
for recognition of foreign judgment, where there is a foreign judgment which declares
the second marriage void.
Facts: A Filipino married two Japanese husbands. She obtained a judicial decision in a
Japanese court declaring void her marriage with Japanese husband #2 on the ground of
bigamy. Japanese husband #1 also filed a petition for recognition of foreign judgment in
the Philippines, but the lower court dismissed the case, arguing that the Rules of Nullity
of Marriage under Philippine Law should have been availed of rather than the foreign
route.
Held: SC reversed the decision of the lower courts, & held that the petition for
recognition of the foreign judgment was the right procedure, given that bigamy is also
Katrina Monica C. Gaw | Block C 2018| 42
against public policy in the Philippines. SC also provided some ground rules for the
recognition of a judgment abroad nullifying a marriage:
•
The judgment of the foreign court may be proven by the petitioner through (1) an
official publication or (2) a certification or copy attested by the officer who has
custody of the judgment. If the office which has custody is in a foreign country
such as Japan, the certification may be made by the proper diplomatic or
consular officer of the Philippine foreign service in Japan and authenticated by
the seal of office.
•
There will be no re-litigation of the merits of the judgment & whether or not the
marriage was truly bigamous. Rather, the Philippine court will only need to
determine (1) whether the foreign judgment is inconsistent with an overriding
public policy in the Philippines; and (2) whether any alleging party is able to prove
an extrinsic ground to repel the foreign judgment, i.e. want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact. If there is
neither inconsistency with public policy nor adequate proof to repel the judgment,
Philippine courts should, by default, recognize the foreign judgment as part of the
comity of nations. Upon recognition of the foreign judgment, this right becomes
conclusive and the judgment serves as the basis for the correction or cancellation
of entry in the civil registry.
Exception
•
A “bigamous” marriage can be valid if the present spouse obtains a JDPD via a
summary proceeding in a court (the only instance when the law creates a valid
bigamous marriage)
•
Requisites:
o Spouse has been absent for 4 consecutive years & present spouse
has a well-founded belief that absent spouse is dead
o Spouse is in a circumstance where he is in danger of death; the
period shall be shortened, in this case, to 2 consecutive years. These
circumstances (Art. 391, CC) are:
§
Absent spouse was on a vessel & the same was lost during
a sea voyage & he had not been heard of for 2 years since
the loss20
§
Absent spouse was on an airplane & spouse was not heard
of for 2 years since the loss of the plane
§
When the absent spouse was in the armed forces & has
taken part in the war & has been missing for 2 years
§
When the absent spouse has been in danger of death under
other circumstances
•
JDPD is only prima facie, & can be overthrown by evidence or reappearance of
spouse
Termination of the Subsequent Marriage
•
Automatic termination of the subsequent marriage can be obtained by the
recording of the affidavit of reappearance of the absent spouse in the civil
registry of the resident of the parties of the subsequent marriage pursuant to
Art. 42.
o EXCEPT when 1st marriage is declared void ab initio
This implies that, if the vessel is found, but the spouse is not in the vessel, the period is once again reset because the ship has
been found.
•
•
This is the ONLY INSTANCE where a marriage can be terminated extrajudicially
o In case reappearance is disputed (when filed by an interested party),
the same shall be subject to judicial determination
If the spouse reappears after the marriage & no one files an affidavit or sworn
statement, there will technically be 2 valid marriages, thus a valid “bigamous
marriage”
o If the marriage between the subsequent spouse & the present spouse
is void, then there is no valid bigamous marriage
Liquidation of the Properties of First Marriage
•
After issuance of JDPD, the properties of the 1st marriage should be married
using the provisions of Art. 103 & 130 of FC if the marriage to be liquidated is
in itself valid.
o If there is no liquidation (but there is a JDPD), the subsequent
marriage is valid, but complete separation of property will apply.21
o If there is liquidation, they can agree to any type of settlement, or the
default ACP.
•
If the marriage is void, the rules of co-ownership will apply.
•
In terms of the succession of the absentee spouse, different periods apply (Art.
391, CC):
o Spouse must be absent for 10 years before he is presumed dead for
purposes of opening his succession
o If he disappeared after the age of 75, an absence of 5 years shall be
sufficient in order that his succession may be opened
o If he disappeared under circumstances with high risk of death, 4
years shall be enough
o If he turns out to be alive, he shall be entitled to the balance of his
estate after payment of all his debts. The balance may be recovered
by motion in the same proceeding
Well-Founded Belief of Death
•
In the Civil Code, there was no need for JDPD; also, there is now a stricter
standard of “well-founded belief” in the death of the spouse, versus the
previous “general belief”
•
“Well-founded belief” – the belief of the present spouse must be the result of
proper & honest to goodness inquiries & efforts to ascertain the whereabouts
of the absent spouse & whether the absent spouse is still alive or is already
dead
o Depends on the circumstances
o A seaman was said to have failed to conduct a thorough enough
search for his missing wife with such diligence as to give rise to a wellfounded belief of her death (he searched for her but in the wrong
places)
JDPD
•
As a general rule, no JDPD is required as such presumption arises from law
20
21
Similar to a marriage contracted after the death of the 1st spouse.
Katrina Monica C. Gaw | Block C 2018| 43
o
o
Art. 390 & 391, CC – After an absence of 7 years, absentee shall be
presumed dead for all purposes except for succession; period is
shortened to 4 years if there is risk of death
Art. 41 – JDPD is mandatory for REMARRIAGE only
§
JDPD is best evidence of “well-founded belief”
§
Immunizes present spouse from charges of bigamy, adultery
or concubinage
Sworn Statement of Reappearance
•
The absentee spouse can easily terminate the new marriage by filing her
affidavit of reappearance & recording the same with due notice to the spouses
of the subsequent marriage
o Automatic termination by the recording of the affidavit in the civil
registry of the residence of the parties to the subsequent marriage
o Without filing, the subsequent marriage shall not be terminated
§
Sta. Maria thinks this should be void functus officio if the
reappearance is authentic
•
Any interested party may also file a sworn statement of reappearance
o Parents, children, present spouse & even the subsequent spouse;
parents & children of subsequent spouse, too
o Termination shall also be automatic
o This can still be contested in a judicial proceeding
§
If it is proven that the reappearance is false, there will be no
automatic termination & marriage will subsist
•
If the present spouse does not file an affidavit, or no one files a sworn
statement, the subsequent marriage will still be valid
o AND the State will protect the 2nd marriage over the 1st
o BUT if there is a filing, State will protect the 1st over the 2nd
o LOTS of confusion if there is no filing:
§
Reappearing spouse cannot marry anyone else
•
Can be charged with bigamy if he marries
someone else
•
Also, sexual infidelity
§
He would have to nullify or annul the 1st marriage
§
In conclusion: just file it
Criminal Liability
•
Bigamy (Art. 349, Revised Penal Code) – committed by any person who shall
contract a 2nd marriage or a subsequent marriage before
o 1st marriage has been legally dissolved, or
o Before the first spouse has been declared presumptively dead by
means of a judgment in the proper proceeding
Art. 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:22
1) The children of the subsequent marriage conceived prior to its termination shall
be considered legitimate & their custody & support in case of dispute shall be
decided by the court in a proper proceeding;
22
2)
3)
4)
5)
The absolute community of property or conjugal partnership, as the case may be,
shall be dissolved & liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there
are none, the children of the guilty spouse by a previous marriage or in default of
children, the innocent spouse;
Donations by reason of marriage shall remain valid, except if the donee
contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law;
The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as a beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; &
The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate or intestate
succession.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage
shall be void ab initio & all donations by reasons of marriage & testamentary dispositions
made by one in favor of the other are revoked by operation of law.
Bad faith
•
In terms of Art. 41 & 42 – The spouse in bad faith is one who sees the
absentee spouse alive before the marriage is celebrated & does not tell the
other spouse
o If both spouses knew that the absentee spouse was alive, they are
both in bad faith as contemplated in Art. 44.
•
In terms of Art. 45 & 55 – In annulment & legal separation, whoever caused
the separation or invalidity of the marriage, despite not being in “bad faith,” is
considered the guilty spouse & all the provisions here apply to him
Status of Children
•
Children conceived during the subsequent marriage in Art. 41 & before
termination due to reappearance of absentee spouse in Art. 42 are considered
legitimate, as they are conceived in a valid bigamous marriage
o If only one is in bad faith, the children are legitimate
o EXCEPT when both spouses act in bad faith, as the marriage will be
void ab initio
Effect of Termination of the Property Regime
•
Effect of termination under Art. 42 is that the property regime (ACP or CPG) will
be dissolved & liquidated
•
After the payment of all debts & obligations, the spouses shall divide the
property equally or in accordance with the share stipulated in the valid
marriage settlement, unless there is a voluntary waiver of share by either
spouse upon the judicial separation of property
•
If either of the spouses acted in bad faith, the guilty spouse shall not get his
share in the net profits of the property regime
o Will go to the common children, or
o Children of the guilty spouse by a previous marriage, or
o The innocent spouse
Applies generally to void marriages under Art. 40 & 41, annullable marriages (Art. 45), legal separation (Art. 55)
Katrina Monica C. Gaw | Block C 2018| 44
•
Net profits = increase in value between market value of the property at the
time of the celebration of the marriage & the market value at its dissolution
Donations by Reason of Marriage
•
Generally, when both spouses are in good faith, donations are valid
•
When the donor acted in bad faith, the donation is valid
•
If the donee acted in bad faith, the donation is revoked by operation of law
•
If both spouses act in bad faith in relation to Art. 42 & 44, donations made to
each other are revoked by operation of law, & the marriage is void ab initio
o Testamentary dispositions made by one in favor of the other are also
revoked by operation of law
o Art. 739, CC: A donation made between persons who are guilty of
adultery or concubinage is void
Designation as Beneficiary in an Insurance Policy
•
Spouse who contracted the subsequent marriage in bad faith is disqualified to
inherit from the innocence spouse by testate & intestate succession
•
When a marriage is void, the contracting parties likewise cannot inherit by
intestate succession because no legal relation binds them
Marriage Contracted in Bad Faith
•
Art. 41 – If only one of the parties is in bad faith & Art. 42 does not occur,
marriage is still valid.
o Applies whether or not it is the present spouse that is the bad faith
spouse
•
Art. 44 – If both parties in the subsequent marriage are in bad faith, the
marriage is void.
•
If the present spouse were able to personally know that the absent spouse was
in fact alive prior to the issuance of any JDPD, such spouse should not be
issued the JDPD
•
Good faith must be present up to the time of the celebration of the subsequent
marriage
o Ex. If, after the JDPD is issued, the present spouse suddenly sees the
absent spouse & chats him up, but marries the second spouse
anyway, the present spouse is in bad faith. Despite this, the marriage
with the second spouse is still valid if the latter is in good faith.
*Art. 45. A marriage may be annulled for any of the following causes, existing at the time
of the marriage:
1) That the party in whose behalf it is sought to have the marriage annulled was 18
years old or over but below 21, & the marriage was solemnized without the
consent of the parents, guardian, or person having substitute parental authority
over the party, in that order, unless after attaining the age of 21, such party freely
cohabited with the other & both have lived together as husband & wife;
2) That either party was of unsound mind, unless such party, after coming to reason,
freely cohabited with the other as husband & wife;
3) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as husband & wife;
4) That the consent of either party was obtained by force, intimidation, or undue
5)
6)
influence, unless the same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband & wife;
That either party was physically incapable of consummating the marriage with the
other, & such incapacity continues & appears to be incurable;
That either party was afflicted with a sexually transmissible disease found to be
serious & appears to be incurable.
Art. 46. Any of the following circumstances shall constitute the fraud referred to in No. 3
of the preceding Article:
1) Non-disclosure of a previous conviction by final judgment of the other party of a
crime involving moral turpitude;
2) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
3) Concealment of a sexually transmissible disease, regardless of its nature, existing
at the time of the marriage; or
4) Concealment of drug addiction, habitual alcoholism, or homosexuality or
lesbianism existing at the time of marriage.
No other misrepresentation or deceit as to character, health, rank, fortune, or chastity
shall constitute such fraud as will give grounds for action for the annulment of marriage.
Public Policy Consideration
•
Strict in granting annulment of marriage
o Clear & undeniable proofs are necessary
Exclusivity of Grounds for Annulment
•
Annullable or voidable marriages are valid until they are terminated
•
Must exist at the time of marriage
•
Grounds are only those specified by law
o Mere non-cohabitation is not grounds for annulment of marriage
No Parental Consent
•
18-21 years old – not yet possessing the degree of maturity to be able to
comprehend marital obligations thoroughly; thus, the need for consent
o Marriage without consent is annullable at the instance
§
Of the party who gets married without the consent of his
parent, guardian, or person with substitute parental
authority; &
§
Of the parents, guardian, or person having substitute
parental authority over the party, in that order.
Unsound Mind
•
There must be a derangement of the mind to prevent the party from
comprehending the nature of the contract & from giving free & intelligent
consent
•
Must relate specifically to the contract of marriage in order to affect it; if the
mental illness does not affect the understanding of the marriage contract, such
cannot be used as a basis for annulment
o Dullness of mind, eccentricities, dementia, or weakness of intellect
does not annul marriage
•
Question of defect in consent; capability of understanding the contract
Katrina Monica C. Gaw | Block C 2018| 45
•
•
Fraud
•
•
•
•
•
CASE: Larson v. Larson – If symptoms of insanity only show up 2 years later &
there’s no proof it happened before, the marriage is valid
Burden of Proof
o Rests upon him who alleges insanity
o If, however, a previous state of insanity is proved, burden of proof
shifts to him who asserts that the act was done while the person was
sane (person who claims lucid interval must prove it)
Concealment & non-disclosure of certain circumstances material to the
marriage
No fraud when there is no concealment
o Ex. If one is aware that his spouse is a homosexual even prior to the
marriage, even if the homosexual spouse never confessed, it cannot
be said that there was fraud
Any act of fraud not included in the list under Art. 46 cannot be invoked to
annul a marriage.
o Non-disclosure of a husband’s pre-marital relationship with another
woman is not listed in Art. 46, & thus does not constitute as one of
the instances of fraud contemplated in the FC
Previous Conviction as Fraud
o Crime involving moral turpitude (homicide) – inherent vileness or
depravity in private & social duties which a man owes to his fellow
men & society
o Moral turpitude – anything contrary to justice, honesty or good morals
o Conviction by final judgment is a requisite
o The innocent spouse’s investigation of the fraudulent spouse’s
criminal record prior to the marriage is not required
§
The burden is on the convicted party to reveal his criminal
record
Concealment of Pregnancy as Fraud
o Fraud is limited to the wife only & not husband
o Concealment must have been done in bad faith
§
Ex. If a woman is diagnosed as completely barren &
thereafter marries her fiancé believing that she was not
pregnant, the marriage cannot later be annulled even if it
turned out that her previous diagnosis was completely
wrong & she was pregnant with another man’s child at the
time of the marriage
o Mere pregnancy is not sufficient to annul the marriage; what is
important is the CONCEALMENT
§
If the woman does not state she is pregnant, but it is
obvious, the man cannot claim to not know of her pregnancy
§
BUT just because a woman has been a pregnant already for
4 months, it does not mean that the man cannot claim he
didn’t know she was pregnant, as he could have associated
the growth in plumpness as her gaining weight (Fun fact: 5th
month is when the enlargement of the belly becomes
obvious)
If a man knows his wife is unchaste, & she assures him that
the child is his, but in fact, it isn’t, he may still not be
allowed to get an annulment because he should’ve known
o If a woman pretends to be pregnant with the child of a man to force
him to marry her, & it turn outs later that she’s not, marriage cannot
be annulled (because there was no pregnancy to conceal)
Concealment of STD, regardless of nature, is fraud
o Fraud, gravity, & nature is irrelevant when there is concealment of the
STD at the time of the marriage
o Consummation is not required for this ground to exist
Concealment of drug addiction & habitual alcoholism
o Habitual alcoholism – that the person, by frequent indulgence, may
be said to have a fixed & irresistible habit of drunkenness, whereby
he has lost the power or will to control his appetite for intoxicating
liquor, & he drinks whenever the temptation is presented
§
One does not have to drink all the time
§
Not necessary that he is incapacitated to work
§
Fixed habit of frequently drinking
Concealment of Homosexuality
o Ground is not homosexuality, but its concealment
§
Element of bad faith must be duly proven
§
Not intrinsically abhorrent; it is a sexual orientation or
preference
o Subject to ratification
o If the spouse knows fully well that he or she is marrying a homosexual
or a lesbian prior to the marriage, the marriage cannot be annulled on
this ground anymore
§
•
•
•
Vitiated Consent
•
Consent to marriage must be freely given
•
Violence causing duress may be physical or moral
•
Compelling a party with a fear of an imminent & grave evil upon his person,
property, descendants, or ascendants
•
Age, sex & condition of the party shall be considered
•
Has to be unlawful force
o Ex. If a person threatens to file a criminal or disbarment case against
someone unless the latter marries the former, but there is real legal
basis to do so (such as some criminal act of the person, or his
immorality, which would be a ground for disbarment), the force is
actually lawful (UNLESS the charge is false)
•
Vitiated consent must be proven by preponderance of evidence which may
include actuations of the parties previous to the marriage; not a valid ground if:
o Both spouses issued affidavits stating they lived together for 5 years
as husband & wife
o More than a year passed before the spouse came up with the story
o Man is just trying to escape a bigamy case
•
There is also criminal liability under the Art. 350 of the Revised Penal Code for
those who use violence, intimidation, & fraud in contracting a marriage
Incapacity to Consummate
Katrina Monica C. Gaw | Block C 2018| 46
•
•
•
•
•
•
•
STDs
•
•
•
Permanent inability on the part of one of the spouses to perform the complete
act of sexual intercourse
o Non-consummation of the marriage may be on the part of the
husband or wife; it is not limited to the husband being impotent only
All types of non-consummation, even psychological, which leads to physical
inability
o
o Excessive sensibility of wife, such that the pain sex inflicts stops her
from wanting to have sex, can be considered as incapacity
o Also, incurable nervous disorder which renders sex impossible
o Mere epilepsy is not enough
Not equal to the mere refusal of one party; what is required is PHYSICAL
INABILITY
o IF a man can attain erection BUT is psychologically inhibited in
engaging in sex despite his erection, this situation will not fall under
impotency
Must exist at the time of the marriage ceremony
o If a wife becomes paralyzed after the marriage & can’t have sex
anymore, this cannot be used
It must be continuous & incurable
o Where a hymen was just too thick, annulment wasn’t allowed
because it is considered curable by surgery
Burden of proof
o An adult male is considered to have normal powers of virility; whoever
alleges incapacity must prove it
o Preponderance of evidence
o Impotence need not be universal – condition may exist only as to
present spouse & not to others
o Triennial cohabitation – if a wife remains a virgin for at least 3 years
from the time the spouses started cohabiting, the husband must
show he is not impotent during the said period & there is now a
presumption of impotence
Sterility is not impotency; inability to bear children (arising from, e.g., the
removal of the woman’s ovaries prior to the marriage) is immaterial
If STD is not concealed, party wanting annulment must prove that the STD is
serious & incurable
o If concealed, it need not be serious & incurable
CASE: Ryder v. Ryder – The wife had syphilis which she transmitted to the
husband, & which killed their child of the spouses
If the disease was obtained AFTER the marriage, it cannot be a ground for
annulment, but can be used as evidence of sexual infidelity (a ground for legal
separation)
Ratification of Annullable Marriages
•
Ratification is made if the "injured” party freely cohabits with the guilty party in
the proper situations as provided by law:
1)
Art. 45(1): the contracting party (18-21, no consent) cannot file the suit
if, after attaining the age of 21, he freely cohabited with the other as
husband & wife
o NOTE: Between 18-21, even if he freely cohabits with the
other, this will not constitute ratification
2) Art. 45(2): the contracting party comes to reason & still freely cohabited
with the other as husband & wife.
o Only the insane spouse can ratify by free cohabitation.
o As to the sane spouse, he cannot ratify the marriage if he
knew at the time the marriage was celebrated that the other
party was insane (note that he cannot file for annulment).24
But if he found out after, subsequent free cohabitation will not
constitute ratification & he can still file for annulment.
3) Art. 45(3): If the injured party, with full knowledge of the facts of the
fraud, freely cohabits with the other, there is ratification;
4) Art. 45(4): If the injured party, after the disappearance or cessation of
the force, intimidation or undue influence, freely cohabited with the
other
*If the ground relied upon is incurable physical incapacity to consummate
the marriage or affliction of incurable STD, both existing at the time of the
ceremony, mere free cohabitation will not ratify the annullable marriage
o Even if these are known to the parties prior to the marriage, the same
can still be used to file for annulment, as it is not based on defective
consent but on incurable disease or impotency
o BUT if the aggrieved parties do not bring suit within 5 years of the
marriage ceremony, they are barred forever from annulling the
marriage
Art. 47. The action for annulment of marriage must be filed by the following persons &
within the periods indicated herein:
1) For cases mentioned in No. 1 of Art. 45, by the party whose parent or guardian
did not give his or her consent, within 5 years after attaining the age of 21; or by
the parent or guardian or person having legal charge of the minor, at any time
before such party reached the age of 21;
2) For causes mentioned in No. 2 of Art. 45, by the sane spouse who had no
knowledge of the other’s insanity; by any relative, guardian or person having legal
charge of the insane, at any time before the death of either party; or by the insane
spouse during a lucid interval or after regaining sanity;
3) For causes mentioned in No. 3 of Art. 45, by the injured party, within 5 years from
the time of discovery of the fraud;
4) For causes mentioned in No. 4 of Art. 45, by the injured party, within 5 years from
the time the force, intimidation or undue influence disappeared or ceased;
5) For causes mentioned in Art. 5 & 6 of Art. 45, by the injured party, within 5 years
after the marriage.
Nature of Annulment Case
•
Jurisdiction is based on the nationality of those involved, not where the
marriage was celebrated
In case of insanity, if the sane spouse knew that his or her spouse has already been insane previous to the marriage, such sane
spouse cannot file the suit for annulment as he or she is already estopped.
24
Katrina Monica C. Gaw | Block C 2018| 47
•
A Filipino who got married in Korea to a Korean woman can get his divorce
annulled in the Philippines
Grounds, Parties, Prescriptive Period
•
Prescriptive period – period in which case can still be filed in court; after the
lapse, the case can no longer be filed
•
All ratifiable except for #5; this means that annulment will not prosper if it can
be shown that the parties freely cohabited as husband & wife at any time
within the periods
Ground
1. No parental
consent
Party to File the Suit
a. Parent or guardian having
legal charge of “no-consent”
party
b. “No-consent” party
2. Unsound mind
a. Sane spouse who discovered
insanity after marriage
b. Relative or Guardian having
legal charge of insane spouse
c. Insane spouse
3. Fraud
Injured party
4. Vitiated
Consent
Injured party
5. Incapacity to
Consummate/STD
Injured party
Prescription Period
a. While “no-consent” party
has yet to reach 21 years of
age
b. Within 5 years after
attaining the age of 21 (also,
from 18-21)
a. At any time before the death
of either party
b. At any time before the death
of either party
c. During lucid interval or after
regaining sanity
Within 5 years after discovery
of the fact of fraud
Within 5 years after the force,
undue influence or
intimidation has ceased
Within 5 years after the
marriage
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the court
shall order the prosecuting attorney or fiscal assigned to appear on behalf of the State to
take steps to prevent collusion between the parties & to take care that evidence is not
fabricated or suppressed.
In all cases referred to in the preceding paragraph, no judgment shall be based on a
stipulation of facts or confession of judgment.
Art. 49. During the pendency of the action & in the absence of adequate provisions in a
written agreement between the spouses, the court shall provide for the support of the
spouses & the custody & support of their common children. The Court shall give
paramount consideration to the moral & material welfare of said children & their choice
of the parent with who they wish to remain as provided in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
Procedure
•
Procedure follows SC en banc resolution from Mar. 15, 2003
•
Defendant has 15 days from the receipt of the summons to file an answer, but
even if he doesn’t, he cannot be declared to be in default – court will order
fiscal to appear on behalf of the State and STILL order the full-blown hearing
If the judgment is erroneous because of defendant’s neglect, decree
will still take effect
Prosecuting attorney investigates existence of collusion between the 2 & to
check if evidence is not fabricated
Annulment suit cannot be terminated by way of compromise agreement – no
suspension of the case can be made for discussion of compromise
Full-blown hearing is needed; no summary proceedings
Material facts must always be proved
o
•
•
•
•
Role of Fiscal & Solicitor General
•
Fiscal or prosecuting attorney represents the State
o He must actively participate
o Task is to check for indicators of collusion between the parties
o If the case were strongly opposed, it is clear that there is a no-holdsbarred contest
o He must defend the validity or expose an invalid marriage
o Otherwise, case can be remanded for further proceeding
•
OSG can intervene in the proceedings, as he is counsel for the State in the
capacity of a defender of the marital bond; he may be required to submit a
memorandum
•
Agreements on separation of property agreed on by the parties via compromise
agreement is valid
o Not an indicator of collusion
Collusion
•
Occurs where, for purposes of getting an annulment or nullity decree, the
parties come up with an agreement making it appear that the marriage is
defective due to the existence of any of the grounds for annulment or nullity as
provided by law & agree to represent such false or non-existent cause of action
before the court with the objective of facilitating the issuance of the decree
o Commission of an offense with the consent of the other party can be
considered as collusion
o Corrupt agreements & connivance
o Failure to file an answer is not necessarily collusion
•
Even if there is an agreement between the parties to file the case, there is no
collusion if the allegations are true
•
The confession of the commission of the offense does not equate to collusion
•
A judge who does not investigate collusion can be held administratively liable
CASE: Republic v. CA
Mere agreement as to amount & receipt of share in conjugal property is not collusion.
Facts: The wife agreed & accepted the amount of P50,000 as her share in the conjugal
property, in a nullity case with her husband.
Held: This is not collusion. The husband likely willingly gave her the amount in
recognition of her unquestionable legal entitlement to it, so that whether he also did so
to encourage her to stick to her previously announced stance of not opposing the
petition for nullity of marriage should by no means be of any consequence in determining
whether there was collusion between the parties.
Katrina Monica C. Gaw | Block C 2018| 48
Stipulation of Facts or Confession of Judgment
•
Stipulation of facts – admission of both parties in court agreeing to the
existence of the act constitution the ground for JDNOM or JDAOM
•
Confession of judgment – admission in court by the respondent or defendant
admitting fault as invoked by the plaintiff to sever the marriage ties
•
BUT if these are sufficiently supported by evidence, they may warrant the
declaration, but only through proper proceeding
Nullity Decision Prior to Determination of Other Incidental Issues
•
In an annulment or declaration of nullity case, other issues can be threshed
out, such as those with respect to visitation rights, division of property, &
custody.
•
BUT a judge may also choose to allow the reception on evidence on custody,
support & property relations AFTER the decision on the annulment or nullity
case is rendered, or upon entry of judgment granting the petition.
Support of Spouses & Custody of Children
•
During the pendency of the suit, support of the spouses & custody of the
children shall be governed by whatever agreement the parties have made with
respect to the same
•
Support is from CPG or ACP
•
If agreement is inadequate, court can make the necessary provisions
•
If, in a nullity case, the court gives support to a spouse who is found to not be
entitled to support because the marriage is void, the court shall order the
recipient to return to the person who furnished the support the amounts
already paid, with legal interest
•
Support given during the pendency of the annulment of a marriage need not be
reimbursed
•
Court will consider best interest of the children
o Children below 7 go to mother (Art. 213, FC)
o Other kids can choose, unless the parent they choose is unfit
o Appropriate visitation rights
•
Visitation Rights
o Parents have the natural right, as well as the moral & legal duty, to
care for their children, see to their proper upbringing, & safeguard
their best interest & welfare
o Even if custody goes to one parent, the other parent still has the right
to visit
o BUT: If there is a compelling reason, the parent can be deprived of
visitation rights
§
BUT ALSO: Visitation rights can be reinstated if deprivation
is too harsh or grounds are no longer present
o CASE: Silva v. CA – In a case where the mother wanted to take away
the father’s right to visit their kids because the father was immoral &
had a paramour, the court denied her request because the father has
an inherent & natural right to rear his child & a few hours with the
kids would not so gravely affect the children’s morality.
Art. 50. The effects provided for in paragraphs 2, 3, 4 & 5 of Art. 43 & in Art. 44 shall
also apply in the proper cases to marriages which are declared void ab initio or annulled
by final judgment under Art. 40 & 45.
The final judgment in such cases shall provide for the liquidation, partition, & distribution
of the properties of the spouses, the custody & support of the common children, & the
delivery of their presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as well as of the ACP or CPG shall be notified of the
proceedings of the liquidation.
In the partition, the conjugal dwelling & lot on which it is situated shall be adjudicated in
accordance with Art. 102 & 129.
Art. 51. In said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
ultimate successional rights of the children accruing upon the death of either or both of
the parents; but the value of the properties already received under the decree of
annulment (JDAOM) or absolute nullity (JDNOM) shall be considered as advances in their
legitimes.
JDAOM or JDNOM
• Judgment must state the factual & legal basis for its dispositive conclusion
• Court cannot grant relief which is not based on an allegation in the petition unless
opposing party does not contest
o Judgment is void if the decision is not in conformity with the
allegations in a pleading; but if it not set aside through a Motion for
Reconsideration, it will be effective still
• Finding of psychological incapacity shall be binding upon the SC absent of clear &
manifest errors
• Liquidation, partition, & distribution of the properties shall be provided for in the
said judgment unless there is a settlement
o Separate civil action need not be filed
• Insofar as void marriages are concerned, par. (2), (3), (4) & (5) of Art. 43 only apply
to void subsequent marriages that occur as a result of non-observance of Art. 40 –
liquidation is ACP or CPG.
o All other void marriages are governed by co-ownership provided for in
Arts. 147 & 148
§
When it comes to void marriages other than Art. 40, the
marriage can already be declared void without waiting for
the liquidation of the properties of the parties
• In annulment cases & cases under Art. 40, the rules for ACP & CPG will be followed
o Conjugal dwelling & lot goes to the spouse with custody of majority of
the common children
§
NOT applicable to other void marriages; in void marriage,
dwelling shall be co-owned equally; In case of liquidation, it
can be sold & the proceeds can be divided equally between
the co-owners
Katrina Monica C. Gaw | Block C 2018| 49
•
All creditors shall be notified of liquidation proceedings; if one party waives his
rights, the creditor of said party can seek the rescission of the waiver to the extent
of the amount necessary to pay the debt
Entry of JDNOM or JDAOM
•
Final upon the expiration of 15 days from receipt of the parties of the decision,
unless there is a motion for reconsideration or appeal filed
o
•
Upon finality, Entry of Judgment shall be issued
•
Then, JDNOM or JDAOM will be issued
o Issued only AFTER the registration of Entry of Judgment in the proper
LCRs & of the approved partition & distribution of properties of the
spouses in the proper registry of deeds & delivery of presumptive
legitime
o The JDNOM or JDAOM are considered the best evidence of nullity or
annulment
Presumptive Legitime
•
Legitime – part of testator’s property which he cannot dispose of because the
law has reserved it for certain heirs (Compulsory heirs)
•
Protects the legitime of the children against future subsequent marriages
•
The JDNOM or JDAOM shall also provide that the presumptive legitime of the
common children shall be delivered to them, unless the parties, by mutual
agreement, with approval of the court, provide for some other manner
•
Presumptive legitime is not actual legitime
o Actual legitime Is that which is present AT THE TIME OF DEATH
o The basis of the presumption is that the properties of the persons
involved at the time of this particular situation arises would be the
same as when he does (which is not a fact)
o Computed as of date of final judgment of the trial court
o Approval of mutual agreement of spouses shall be summary in nature
•
Necessity of distributing presumptive legitimes –
o CASE: Valdes v. RTC – In VOID MARRIAGES, the delivery of the
presumptive legitime is GENERALLY NOT REQUIRED, except in Art. 40,
52, 53 (declaration of nullity of a SUBSEQUENT MARRIAGE due to no
JDNOM of 1st void marriage) – opposed to Nicdao-Cariño v. Cariño,
which required co-ownership under an Art. 40 void marriage.
§
Generally, in void marriages Art. 147 & 148 apply, & by
extension, the rules of co-ownership, & NOT Art. 50, 51 & 52
of the FC.
o In ANNULLED MARRIAGES, the delivery of presumptive legitimes is a
MUST.
•
Children & their guardians & trusties have the legal standing to seek
enforcement of the judgment (delivery of presumptive legitimes) – via summary
court proceeding
CASE: Republic v. Olaybar
Where there is no actual marriage to speak of at all, a Petition for Correction of Entries
under Rule 108 of the Rules of Court is proper, instead of a Petition for JDNOM under
the Family Code.
Facts: The petitioner wanted to get married, but discovered that in the her local civil
registrar, the entries pertaining to her stated that she was already married to a particular
man; there was even a marriage certificate which she allegedly signed. However, she did
not know the man; her signature was forged; she had no knowledge of the wedding
ceremony at all; & the alleged bride was an impostor.
Held: The petitioner need not file a petition for JDNOM; the Petition for the Correction of
Entries was the correct remedy. In this case, there was no actual marriage to speak of, &
petitioner never participated as a bride to said wedding.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition, &
distribution of the properties of the spouses, & the delivery of the children’s presumptive
legitimes shall be recorded in the appropriate civil registry & registries of property;
otherwise, the same shall not affect 3rd persons.
Art. 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage
shall be void.
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity
of the marriage under Art. 36 has become final & executory, shall be considered
legitimate. Children conceived or born of the subsequent marriage under Art. 53 shall
likewise be considered legitimate.
Liquidation & Partition of Properties
•
JDNOM – liquidation in accordance with rules of co-ownership
o EXCEPT in Art. 40, 52, 53 – CPG or ACP (Valdez v. RTC)
•
JDAOM – ACG or ACP or pre-nuptial agreement (latter would remove need for
liquidation & partition)
Recording in the Civil Registry & Registry of Property
•
Art. 52 is NECESSARY TO BIND 3RD PERSONS for annulled marriages & Art. 40,
52 & 53 & to contract a subsequent valid marriage (Art. 53)
•
Non-compliance with the liquidation & partition requirement may lead to nonissuance of JDNOM/JDAOM
o BUT: Delivery of presumptive legitime is only required for subsequent
void marriage that may arise due to non-observance of Art. 40
•
Observance or non-observance of the requirements of liquidation, partition,
distribution & delivery of presumptive legitimes is crucially material in
determining the validity of a subsequent marriage ONLY IF the previous
marriage has been judicially declared nullified or annulled by law. (Art. 53)
o If 1st marriage is terminated by death or JDPD, there is no need to do
Art. 52/53; non-compliance does not lead to a void marriage, but
makes the property regime of the subsequent valid marriage
COMPLETE SEPARATION OF PROPERTY.
•
A partial voluntary separation of property agreed upon by the parties via a
compromise agreement approved by the court prior to the JDNOM is valid.
Appropriate Civil Registry & Registries of Property
•
Proper LCR: (1) the LCR in the city or municipality where the court issued the
JDNOM or JDAOM AND (2) the LCR where the marriage was solemnized
Katrina Monica C. Gaw | Block C 2018| 50
•
•
o Duty of successful petitioner to send copy to LCRs
It is the clerk or court’s duty to make sure the successful petitioner recorded
the JDNOM or JDAOM; if it is discovered the petitioner did not do this, the clerk
has to send a copy of the decree to the civil registry of the city or municipality
where the court is functioning
Registration has to also be made in registries of property where the properties
are located; if there are lots of properties, there has to be a recording in the
LCR of each of the locations
Status of Children
•
Generally, children conceived & born outside a valid marriage or inside a void
marriage are illegitimate.
•
EXCEPTIONS are in Art. 54; the following children are legitimate despite the
marriage of their parents being void:
(1) Children born in Art. 36, before the finality of the judgment of nullity –
psychological incapacity marriages
§
Ex. If, 2 days after receipt of JDNOM, couple has sex &
conceives a child, child is legitimate because by then, the
judgment is not yet final. JDNOMs only become final after
the lapse of 15 days from the receipt of the parties of the
decree, unless there is an appeal to a higher court.
§
Special notes on this type of marriage –
•
Children conceived OR born inside an Art. 36
marriage are legitimate
•
Those conceived AND born before the marriage
ceremony are illegitimate in Art. 56, referring to
Art. 36 if the parents, get a JDNOM.
o Without JDNOM, parents marrying would
legitimize the children; but since there is
now a JDNOM, children conceived & born
before the marriage are now illegitimate
(2) Children born in Art. 52/53 – No recording, distribution & partition or
delivery of presumptive legitime
§
Ex. A & B get their marriage annulled but fail to liquidate
their properties. A later marries C, & with C, has a child, X.
The marriage between A & C is void, but X remains a
legitimate child.
SC en banc Resolution A.M. 02-11-12-SC – Rule on Provisional Orders (Mar. 15, 2003)
•
Child support
o The common children of the spouses get support from the ACP or CPG
o Subject to the court’s discretion, either or both spouses may also be
ordered to give an amount necessary for the support, maintenance, &
education of the child, in proportion to the means & resources of the
giver
•
Spousal support may be given by the court:
o To either spouse for the amount of time it deems necessary; to be
taken out of ACP or CPG
o Court may consider if the spouse’s custody of the child makes it
difficult for him to seek outside employment (e.g., child is a toddler)
Time necessary for spouse to seek outside employment &
training
§
Duration of the marriage
§
Age & health of spouses; ability to give support
§
Contribution of each spouses to the marriage (including
working at home as housewife, childcare, education)
§
Comparative financial resources
Custody may be awarded to (order of preference):
o Parents jointly
o Either parent
o Surviving grandparent
o Eldest sibling over 21 years of age
o Child’s actual custodian
o Any other person deemed by the court suitable
Visitation Rights – The parent who does not get provisional custody will get
appropriate visitation rights unless found to be unfit or disqualified by the court
Hold departure order – no child of the parties shall be brought out of the
country without prior order from court, pending resolution of the petition
Court may issue Order of Protection
§
•
•
•
•
TITLE II – LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed on any of the following grounds:
1) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;
2) Physical violence or moral pressure to compel the petitioner to change religious
or political affiliation;
3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a
child of the petitioner, to engage in prostitution or connivance in such corruption
or inducement;
4) Final judgment sentencing the respondent to imprisonment of more than 6 years,
even if pardoned;
5) Drug addiction or habitual alcoholism or respondent;
6) Lesbianism or homosexuality of the respondent;
7) Contracting by the respondent of a subsequent bigamous marriage, whether in
the Philippines or abroad;
8) Sexual infidelity or perversion;
9) Attempt by the respondent against the life of the petitioner;
10) Abandonment of petitioner by respondent without justifiable cause for more than
1 year.
For purposes of this Article, the term “child” shall include a child by nature or by
adoption.
Legal Separation
•
Does not affect marital status, just “bed & board” separation
•
Terminable at the will of the parties by merely filing a manifestation in court
•
Separation is (generally) due to some cause arising after the marriage (v.
annulment/nullity)
o “Relative divorce”
o BUT: Cause may exist at the time of marriage
Katrina Monica C. Gaw | Block C 2018| 51
•
•
Divorce – dissolution of marriage for some cause arising after the marriage
o Not allowed in the Philippines
Grounds are exclusive
Repeated Physical Violence or Grossly Abusive Conduct
•
Does not apply if spouse inflicts physical violence upon his or her own child
with another person
o BUT this may be a cause to suspend or terminate the parental
authority of the respondent
•
Physical violence – infliction of bodily harm
o Inflicted with bad faith & violence
o Frequency, not severity (requires repetition or habituality)
•
Grossly abusive conduct – no exact definition; case-to-case basis
o Ex. Singular but serious act of “squeezing of neck, pulling of hair, &
the like without intent to kill”
o Ex. Deliberate use of offensive language when speaking to the other
spouse; continually calling the other spouse vile names, with intent to
cause unhappiness
o Ex. Indifference or aversion coupled with neglect
§
Could also be a ground for nullity under Art. 36
Compulsion by Violence to Change Religious or Political Affiliation
•
One instance is enough
•
Families should learn to live with each other’s political or religious ideas
Corruption or Inducement to Engage in Prostitution
•
Refers to prostitution ONLY
•
A mere “attempt” is enough
•
Like the ground of repeated physical violence or gross abusive conduct, this
ground does not apply if the guilty spouse induces or corrupts to engage in
prostitution his or her own child with another person
o But the act may be cause to terminate or suspend the parental
authority of the respondent-guilty spouse upon his minor child with
the other person
Final Judgment with Imprisonment For More Than 6 Years
•
Pardon refers to executive clemency or the like
•
The crime could have been committed against ANYBODY, not necessarily the
petitioning-spouse or their kids
•
Judgment must be final (petition for legal separation cannot be filed while the
criminal case making the spouse guilty is still on appeal)
Drug Addiction, Habitual Alcoholism, Homosexuality or Lesbianism
•
In annulment, these grounds must involve fraud & they must have existed at
the time of the ceremony; here, there is no need for fraud & these grounds can
occur after the marriage
Bigamy
•
Illegally contracting a 2nd marriage
o Despite knowing one has a valid 1st marriage
o
•
•
Despite not having gotten a JDPD for the missing 1st spouse
May be the cause of a bigamous marriage whether or not it is solemnized here
or abroad
o BUT: If the bigamous marriage was committed abroad, the guilty party
cannot be criminally prosecuted for bigamy in the PH as our penal
statutes are territorial in nature
Sexual Infidelity or Perversion
•
Adultery, concubinage, & other acts that fall short of adultery or concubinage
may be grounds for legal separation
o Clear betrayals of the trust of his or her spouse
o Single act of sexual intercourse with another person is enough
§
Note that in the Civil Code, the husband had to commit
concubinage for there to be a ground for legal separation
•
A Filipina who obtains a divorce abroad & remarries again is technically
cheating on her real husband (the first one) & is in a bigamous marriage
•
Perversion – behavior with third persons or the spouse
o Bestiality
o Even oral sex if the other spouse refuses
o BUT condonation would be tantamount to consent
Attempt on Life
•
Criminal attempt to kill spouse
•
Proceed from an evil design & NOT a justifiable cause
o Catching the other spouse having sex with another person is
considered a justifiable cause
•
No previous criminal conviction is required; preponderance of evidence only
o Wife & kids can (by choice) disinherit the guilty spouse, unless there
has been a reconciliation
o Provisions in a will favoring the guilty spouse will also be revoked by
operation of law when the legal separation decree issues
Unjustified Abandonment
•
Desertion must be willful – design to forsake the other spouse intentionally
o Cease living with the other spouse
o Abnegation of all duties of the marriage
•
Mere severance of relations is NOT enough
o If the spouse neither neglects the management of the conjugal
partnership nor ceases to give support to the other spouse, it is NOT
counted
o It must be an ABSOLUTE cessation
o CASE: Dela Cruz v. Dela Cruz – If the spouse still gives support to the
other spouse & to the kids & gives small contributions, there is no
abandonment
•
There must be no justifiable cause for the abandonment
o If spouse beats up other spouse, it is justifiable
o BUT: If spouse forces wife to leave with his home unless she gets rid
of the children by a former marriage, it is abandonment
Katrina Monica C. Gaw | Block C 2018| 52
•
•
•
•
If both parties willingly concur to separation, that is not considered a willful
desertion
Time in which spouse is insane cannot be included in the count of 1 year
o If a spouse becomes insane after deserting his spouse but before the
1-year period has passed, then the period in which he is insane can’t
be counted
o Must be WILLFUL & INTENTIONAL
NOT consent when husband reasonably endeavors to get wife to stay to no
avail, & he rendered her some assistance when he could not prevent her to
leave (can be grounds for legal separation)
One is deemed to have abandoned the other when he has left the conjugal
dwelling without intent of returning
o A spouse who left the conjugal dwelling for a period of 3 months or
has failed within the same period to give any information on his or he
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
1) Where the aggrieved party has condoned the offense or act complained of;
2) Where the aggrieved party consented to the commission of the offense or act
complained of;
3) Where there is connivance between the parties in the commission of an
offense or act constituting the ground for legal separation;
4) Where both parties have given ground for legal separation;
5) Where there is collusion between the parties to obtain the decree of legal
separation; or
6) Where the action is barred by prescription.
Art. 57. An action for legal separation shall be filed within 5 years from the time of the
occurrence of the cause.
Condonation
•
Act of forgiving the offense after its commission
o Implies condition of future good behavior
•
Subsequent offense of spouse nullifies the condonation & revives the initial
offense
o Condonation of adultery obtained by a false pretense of repentance
may cause the revival of the original offense, although there is only a
presumption, & no real proof, of the adultery
•
CASE: Ocampo v. Florenciano – Failure of the husband to actively look for
adulterous wife after she left the conjugal home is not condonation
•
CASE: Almacen v. Baltazar – Act of giving money to erring wife & the fact that
no action was taken against her are sufficient to establish condonation
o May be express or implied & requires no sex
Consent
•
When either of the spouses agreed to or did not object, despite full knowledge,
to the act giving rise to the ground for legal separation
•
Agreement to live separately & that they will not object to the other’s sexual
infidelity has been declared void but, though void, is an expression of consent
•
Can be deduced by acts of spouse
o CASE: People v. Sensano – The husband cannot file a case of
adultery when knew that his wife resumed living with her paramour, &
yet did nothing to interfere with their relations or assert his right as
husband & instead, he left for Hawaii where he lived for 7 years,
totally abandoning his wife & kids.
Connivance
•
Denotes direction, influence, personal exertion, or other action with knowledge
& belief that such action would produce certain results & which results are
produced
•
Doctrine of unclean hands – One is not legally injured if he consented to the
act complained of or was willing that it should occur
•
CASE: Witherspoon v. Witherspoon (U.S.) – Where a husband employs agents
to induce his wife into participating in illicit sexual activities, that is active
connivance
Recrimination or Equal Guilt
•
Doctrine of Clean Hands
•
Pari delicto – when 2 parties have acted in bad faith, it is considered as them
having acted in good faith
•
CASE: Ong v. Ong – A husband beats his wife up & wants the dismissal of the
legal separation case that she filed; he claimed that it was she who
abandoned him. SC ruled that his abuse was a justified cause for her
abandonment; thus, the legal separation is possible because no equal guilt
was involved.
Collusion
•
Collusion is a corrupt agreement
o An agreement between H & W looking to procure LS
§
Agreement for one of them to commit, or appear to commit
an act that will lead to LS
§
Agreement to suppress or fabricate evidence
§
May be express or implied
•
In collusion, the existence of grounds for LS are fabricated
•
While collusion is a corrupt agreement, connivance is a corrupt consenting
•
CASE: Ocampo v. Florenciano – There could not have been collusion, even if
the wife admitted she “liked also” to get the LS, because she confessed to
adultery to the fiscal, which could have gotten her imprisoned.
o Collusion cannot be inferred from the mere fact that the guilty party
confesses to the offense & thus enables the other party to procure
evidence necessary to prove it.
Prescription
•
Must be filed within 5 years from THE OCCURRENCE OF THE CAUSE
o NOT discovery
o Ex. If husband discovers wife had sex 6 years ago with another man,
he can no longer file
•
Civil Code – prescriptive period is 1 year from the discovery of the cause, but
not later than 5 years from the occurrence of the cause
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Art. 58. An action for legal separation shall in no case be tried before 6 months shall
have elapsed since the filing of the petition.
•
Art. 59. No legal separation may be decreed unless the court has taken steps toward the
reconciliation of the spouses & is fully satisfied, despite such efforts, that reconciliation
is highly improbable.
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take
steps to avoid collusion between the parties & to take care that evidence is not
fabricated or suppressed.
•
•
Art. 61. After the filing of the petition for LS, the spouses shall be entitled to live
separately from one another.
The court, in the absence of a written agreement between the spouses, shall designate
either of them or a 3rd person to administer the absolute community or conjugal
partnership of property. The administrator appointed by the court shall have the same
powers & duties as those of a guardian under the Rules of Court.
Art. 62. During the pendency of the action for legal separation, the provisions of Art. 49
shall likewise apply to the support of the spouses & the custody & support of the
common children.
Procedure
•
SC en banc Resolution A.M. No. 01-11-01-SC
•
Defendant shall be required to answer within 15 days from receipt of summons
o If no reply, fiscal must investigate for collusion
o No defaulting
•
Fiscal must actively participate
o But when there is a no-holds-barred opposition, Art. 48 & 60 need not
apply
•
No hearing on merits of LS will be set by the courts for 6 months
o Time for contemplation & possible reconciliation (cooling-off period)
§
BUT: If the offense is violence against the woman or child
(Anti-VAWC),25 6-month period can be dispensed with
o Failure to observe 6-month period is a ground for setting aside LS
o 6-month period is for merits of the legal separation case; but note
that, within that period, child support, alimony, spousal support can
be heard in court
§
Motion to dismiss may be filed
§
Injunction may be filed to stop administrator spouse from
spending all of the property
•
Court must take steps towards RECONCILIATION
CASE: Garcia v. Drilon – A case was filed questioning the constitutionality of the VAWC law, arguing that it was a violation of equal
protecting, as it protected only women, & not men. SC held that the statute is constitutional, & there was no discrimination, because
women were in reality more likely to be victims of violence than men.
VAWC crimes can be committed through conspiracy, as when the parents of the husband participate in tormenting the wife.
All grounds enumerated under Art. 55 (for legal separation), except nos. 4, 5, & 6, qualify as acts of violence under the VAWC law.
For a more comprehensive discussion on VAWC, see end of this reviewer.
25
Proof by preponderance of evidence
o Material facts must always be proved
o There is no prejudicial question in legal separation cases; criminal &
civil suits may proceed simultaneously
§
CASE: Gandionco v. Peñaranda – The wife filed a case for
legal separation against her cheating husband; thereafter,
she filed a criminal case against him for concubinage. It was
held that these could proceed simultaneously because the
civil action is not one to enforce the liability arising from the
offense.
Judgment cannot be based on stipulation of facts & confession of judgment
o BUT this does not stop the guilty spouse from confessing in court;
there just must be supporting evidence
If LS is not granted, the court cannot force the couple to live with one another
Management of Properties During Suit
•
If no agreement between spouses, court can leave this to 1 of the spouses or a
3rd party
CASE: Sabalones v. CA
The court’s designation of who will manage the properties may be implied, as when the
trial court denies the erring spouse a share in the conjugal properties.
Facts: The husband abandoned the legitimate wife & kids for many years & began living
his with concubine & illegitimate children. The legitimate wife managed the properties of
their marriage herself through the many years. The wife petitioned for legal separation,
then, the decision which granted her petition was being appealed, filed an injunction to
stop the husband from interfering with her management of the properties. The husband
argued that the FC provides that the husband & wife should be joint administrators of
their property, so that it was wrong for him to be excluded in the management thereof.
Held: The injunction should be granted. Authority to manage the properties of the
marriage was rightfully granted to the wife, as she was the one designated by the trial
court to administer the property. While she was never formally designated, the fact of her
designation is implicit in the trial court’s decision not to give the husband a share in the
CPG, thus disqualifying him to be an administrator.
It is noted, however, that she was not appointed permanent administrator; she was only
the administrator pending express designation in accordance with Art. 61, FC.
Death Terminates LS Case
•
Death of one of the spouses extinguishes LS case, including the property,
separation, & maintenance disputes
•
LS is purely personal
•
Even property splitting is merely the result of the LS decree, so without the LS
decree, the other issues cannot be faced
Art. 63. The decree of legal separation shall have the following effects:
1) The spouses shall be entitled to live separately from each other, but the marriage
bond shall not be severed;
2) The ACP or CPG shall be dissolved & liquidated but the offending spouse shall
have no right to any share of the net profits earned by the ACP or CPG, which shall
be forfeited in accordance with Art. 43 (2).
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3)
4)
The custody of the minor children shall be awarded to the innocent spouse,
subject to the provisions of Art. 213 of this Code; &
The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse in the will of the innocent spouse shall be revoked by operation of law.
Effects of decree of LS
•
After the lapse of the period to appeal the decision to a higher court, decree, &
property division becomes final
•
Marriage is not severed, so even if the couple lives apart, one can still be
criminally charged for adultery, concubinage, or bigamy
•
Following Art. 43 (2), share in the net profit of the ACP or CPG does not go to
the erring spouse; it goes to their common children, the children of the guilty
spouse by previous marriage, or the innocent spouse (in that order)
•
Minor children go to the innocent spouse – best interest of the child is the
standard for determining custody
o BUT: The court can assign kids to a 3rd person if the spouses are not
fit to take care of the children
o Choices of kids over 7 years of age shall be considered, unless
chosen parent is unfit
o Kids below 7 usually go to mom
Intestate & Testate Disqualification
•
Erring spouse is disqualified from intestate succession of innocent spouse
•
Provisions in a will made by innocent spouse will also be revoked by operation
of law
•
Art. 921 (4), CC: Spouse can disinherit other spouse even when there is no final
decree for legal separation yet, so long as the guilty spouse has given cause for
legal separation
•
Art. 922, CC: Reconciliation between the spouses renders the disinheritance
from the will ineffectual
Art. 64. After the finality of the decree of legal separation, the innocent spouse may
revoke the donations made by him or by her in favor of the offending spouse, as well as
the designation of the latter as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the properties are located.
Alienations, liens, & encumbrances registered in good faith before the recording of the
complaint for revocation in the registries of property shall be respected. The revocation
of or change in the designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within 5 years from
the time the decree of legal separation has become final.
Donations & Beneficiary in Insurance
•
Donations are acts of gratuity & liberality, so the innocent party has the option
to revoke the donation or designation
•
Designation of the guilty spouse as beneficiary – considered revoked after
written notification thereof to the insured
The Code Committee intended notice to be given to the insurer, not
the insured, but final printing was “insured.” Giving notice to the
insurer would have been more practical, so that the insurer would not
accidentally give the money away. Nevertheless, the law says
“insured.”
Donations – revocation must be filed within 5 years from final LS decree
o If it is a void donation (Art. 87 – donations between the spouses
during the marriage), action shall never prescribe
Recording must be of the revocation & the recording of the liens,
encumbrances, etc.
o If the same thing is sold to different vendees, whoever first takes
possession in good faith owns it if it is movable property
o For immovable property, ownership shall belong to the person in good
faith who first registered in the Registry of Property
o If there is no inscription, ownership should go to the one who first got
the possession, or the person with the oldest title
o
•
•
•
o
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath
duly signed by them shall be filed with the court in the same proceeding for legal
separation.
Art. 66. The reconciliation referred to in the preceding article shall have the following
consequences:
1) The legal separation proceedings, if still pending, shall be terminated in whatever
stage; &
2) The final decree of legal separation shall be set aside, but the separation of
property & any forfeiture of the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their former property regime.
The court’s order containing the foregoing shall be recorded in the proper civil registries.
Art. 67. The agreement to revive the former property regime referred to in the preceding
article shall be executed under oath & shall specify:
1) The properties contributed anew to the restored regime;
2) Those to be retained as separate properties of each spouse; &
3) The names of all their known creditors, their addresses, & the amounts owing to
each.
The agreement of revival & the motion for its approval shall be filed within the court in
the same proceeding for legal separation, with copies of both furnished to the creditors
named therein. After due hearing, the court shall, in its order, take measures to protect
the interests of creditors & such order shall be recorded in the proper registries of
property.
The recording of the order in the registries of property shall not prejudice any creditor not
listed or notified, unless the debtor-spouse has sufficient separate properties to satisfy
the creditor’s claim.
Effect of Reconciliation
•
Couple will file a Joint Manifestation of Reconciliation in court
o Pending LS will be terminated
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•
•
o If issued, decree will be set aside
The order containing the termination of the pending case or the setting aside of
the decree has to be recorded in the proper LCRs.
BUT: Separation of properties shall still subsist
o Parties can enter into an agreement approved by the court to return
to their old property regime
o Agreement will contain a list of which properties will remain separate
& which will be included in the revived property regime
o Creditors must be furnished with the motion seeking for approval of
the agreement (court can protect their interests)
o No prejudice to unlisted creditors also, unless debtor-spouse’s
separate property is enough to pay the debt
Revival & Adoption
•
Reconciled spouses can revive their original property regime
•
SC en banc resolution in Mar. 15, 2003 allows not only the revival of the
previous property regime, but the adoption of another regime different from
that which they had prior to the filing of the petition
•
Resolution leads to 3 divergent views
o Art. 66 & 67 are the substantive-law-provisions of the FC dealing with
property regime upon reconciliation. They are restrictive & refer only
to revival. Furthermore, Art. 87 states that any stipulation as to the
property regime cannot commence at anytime other than at the
precise moment that the marriage is celebrated is void. SC en banc is
undue extension of substantive law. Thus, only revival is allowed.
o Though Art. 66 (2) refers to revival only, it does not expressly prohibit
change of property regime. However, the new rule cannot allow a
change from ACP to CPG & vice versa as there is a substantive rule in
Art. 88 in relation to Art. 107 that these two property regimes can only
commence at the precise moment that the marriage is celebrated.
The change of property regime can be anything other than ACP or
CPG.
o 3rd view is that, provided there is court approval, the property regime
can be changed. This, however, does not consider provisions of FC.
Inheritance
•
Any disinheritance is rendered ineffectual by reconciliation
•
But there is nothing in FC regarding revoked provisions of a will
•
Thus, the spouses have the option to return the provisions in the will
Recording of the Order of Revival
•
If revival is not recorded, creditors will not be prejudiced
•
If revival is recorded, & if the creditors are listed, then the creditors will be
prejudiced
•
Example: A & B decide to reconcile after their decree of LS.
o If A & B do not act on reviving their previous property regime, nothing
will happen to the creditors.
o If A & B decide to revive their properties, they will file a motion for that
purpose & notify the creditors.
If A & B decide to put their separate properties in the
conjugal fund, an order will be issued to that effect, but the
court may make reservations for the creditors
•
Court can set aside some of the properties of the
debtor-spouse for paying the future creditors
•
If no properties are set aside for the listed
creditors who were notified but did not file their
claims to protect their interests, they will be
prejudiced by the recording of the order in the
registry of property
If, long before the revival, A was ordered to pay X, the creditor of A, &
X could only execute on the house of A for the satisfaction of the
judgment debt…
§
X will be prejudiced if he is listed as a creditor in the registry
& was sent a copy of the motion but did nothing to protect
his rights. He can no longer execute on the house of A, as A
& B are the co-owners.
§
X will not be prejudiced if he files an opposition or claim in
the court proceeding which heard the motion for revival so
that the court can make provisions for his interest.
§
If X was not listed as a creditor or not notified of the
proceedings, X can still foreclose on the house
•
BUT if there are still separate properties of A which
are not included in the revived property regime &
which are enough to satisfy X’s claims, X will be
prejudiced even if he is not listed.
•
He will not be able to execute on the house or any
other assets in the property regime of A & B.
§
o
TITLE III – RIGHTS & OBLIGATIONS BETWEEN HUSBAND & WIFE
Art. 68. The husband & wife are obliged to live together, observe mutual love, respect &
fidelity & render mutual help & support.
Duties & Obligations
•
When people are “forced” to stay together, they learn to soften by mutual
accommodation that yoke which they cannot shake off
•
Procreation is an essential marital obligation
•
No compulsion can be forced by courts (living together, observe mutual love,
assistance with domestic matters like housekeeping, & fidelity)
o EXCEPT SUPPORT
Damages
•
Generally, the husband & wife cannot sue one another for damages for mere
breach of marital obligation, as the property is shared
o Ex. A wife cannot seek damages from her husband for filing a
baseless petition for JDNOM, leading to mental anguish on her part.
•
BUT if (1) a spouse in bad faith refuses to comply with the above obligations &
(2) their regime is separation of property, he may be held liable under Art. 19,
20 & 21 of CC (abuse of right doctrine).
Katrina Monica C. Gaw | Block C 2018| 56
o
o
Desertion & securing an invalid divorce entitles the other spouse to
recover damages & attorney’s fees
Any person who likewise deprives a spouse of the consortium or
service of the other spouse can be held liable for damages, but this
must be FULLY PROVEN
Rape & Marriage
•
Rape – committed by a man who shall have carnal knowledge of a woman
through force, threat or intimidation; when woman is deprived of reason or
unconscious; by means of fraudulent machinations or grave abuse of authority;
oral sex or anal sex by force; etc.
•
In Philippines, the husband can be held liable for rape of his wife. However, if
the wife forgives him, it shall extinguish criminal action or penalty, UNLESS the
marriage was void ab initio.
•
Implied consent rationale – prior to RPC, there was disagreement W/N a
husband can actually rape his wife; when the husband & wife are married, a
wife consents to sex with her husband which she cannot retract
•
Now, that a husband can rape his wife is a universal & absolute rule
Art. 69. The husband & wife shall fix the family domicile. In case of disagreement, the
court shall decide.
The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid & compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.
Domicile
•
For civil rights & obligations, the domicile of natural persons is the place of
their habitual residence (Art. 50, CC)
•
Spouses can have many residences, but only 1 domicile
o Permanent residence
o With intention of always returning even if they have left it for some
time
•
A minor always follows the domicile of his or her parents
•
Summary proceeding in accordance with Art. 253, in case of disagreement
•
Examples of valid reasons for living separately:
o Work in a far place
Art. 70. The spouses are jointly responsible for the support of the family. The expenses
for such support & other conjugal obligations shall be paid from the community property
&, in the absence thereof, from the income or fruits of their separate properties.
Art. 71. The management of the household shall be the right & duty of both spouses. The
expenses for such management shall be paid in accordance with the provisions of Art.
70.
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or
commits acts which tend to bring danger, dishonor & injury to the other or to the family,
the aggrieved party may apply to the court for relief.
Expenses for Support & Household Management
•
•
•
Spouses are jointly liable for support
o Even during proceedings of annulment or nullity, the ACP or CPG is
what provides support for the spouses & their children
o Parents & those with parental authority shall have the duty to support
their unemancipated kids or wards
If the ACP or CPG cannot cover expenses for support & household
management, the fruits or income of the separate properties of the husband &
wife will be liable
o If even the fruits or income of the separate properties are not enough,
the spouses shall be solidarily liable for the unpaid balance with their
separate properties
This is true even in a regime of CSOP; if the family has liabilities to creditors for
family expenses, the spouses are solidarily liable
Management & Relief
•
Even if the family house is separately owned by 1 of the parties, the other
spouse still has the right & duty to manage the household
•
Neglect of duty can lead to relief in courts
o Nullity, annulment, legal separation
o Petitioning court for receivership
o Judicial separation of property
o Authority to be sole administrator of the ACP or CPG subject to
conditions as the courts may impose
Art. 73. Either spouse may exercise any legitimate profession, occupation, business, or
activity without the consent of the other. The latter may object only on valid, serious, &
moral grounds.
In case of disagreement, the court shall decide whether or not:
1) The objection is proper.
2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting obligation shall be enforced against
the community property. If the benefit accrued thereafter, such obligation shall be
enforced against the separate property of the spouse who has not obtained
consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith. (as amended by R.A. No. 10572)
Legitimate Profession
•
The spouses need no prior consent of the other to engage in any legitimate
profession, occupation, business or activity.
•
The husband violates R.A. 9262 (VAWC Law) when he compels his wife to desist
from pursuing a profession, or otherwise controlling or restricting her movement,
and can be punished by law
•
Generally, the spouse’s exercise of a legitimate profession, occupation, business or
activity is considered to have redounded to the benefit of the family, making the
conjugal partnership or absolute community liable
•
BUT when a spouse makes an isolated transaction, such as being a guarantor for a
3rd person’s debt, it is not considered to redound to the benefit of the family, &
does not hold community property liable
o UNLESS proofs exist which show the direct benefit accrued by the family
Katrina Monica C. Gaw | Block C 2018| 57
•
Disagreement regarding a profession, business or activity must be anchored only
on VALID, SERIOUS, MORAL GROUNDS to be valid.
o If there is a disagreement, the court shall decide in a summary
proceeding
§
If court finds it objectionable, profession can be validly
stopped
o Hence: The husband cannot object to the wife being a lawyer
o BUT: The wife can object to husband running an escort service or
prostitution ring (not necessarily illegal; as long as it is valid, serious &
moral)
CASE: Go v. Court of Appeals
A single transaction made by one spouse cannot be held against community property
Facts: A wife entered into a video contract with the aggrieved party, an isolated activity of
the wife, which was not related to her regular business or profession. Can her husband
be held solidarily liable for the debt she incurs?
Held: NO. Since the contract is only for one time & is not related to the wife’s legitimate
profession, business or activity, said contract did not redound to the benefit of the family,
& thus cannot be charged against community property.
Separate Property Liability
•
In case of disagreement, the court can also decide whether or not benefit has
accrued to the family
•
GENERAL RULE: Debts & obligations, regardless of the time they were incurred
(whether before or after the marriage ceremony), redounding to the benefit of
the family, shall be chargeable to the CPG or ACP & not to the separate
property of the spouse who incurred the obligation.
o This rule applies to obligations incurred for family businesses or from
legitimate professions & activities that redound to the benefit of the
family
•
EXCEPTIONS:
o When the profession is seriously invalid or immoral, & the spouse has
already objected
o For the rules to apply, other spouse must have no knowledge of the
immoral profession. If he knew already, it would be implied consent &
ACP or CPG will be liable.
§
BEFORE the innocent spouse knew of the objection & voiced
his dissent – the obligation is enforced against the ACP or
CPG
§
AFTER the innocent spouse finds out & objection is voiced –
the obligation is enforced against the separate property of
the erring spouse; this is true EVEN IF benefits accrue to the
family
•
In effect, this penalizes the erring spouse
§
NO estoppel even if husband uses the immoral money, as
long as he makes an authentic objection later on, because
estoppel cannot sanction immorality
o Sample scenario: X, without the knowledge of her husband, Y, was a
prostitute. To be able to buy a plane ticket to go to Japan & see a
regular customer, X borrowed money from her creditor-friend, Z. Z
knew of the wife’s plans. Upon returning home, X gave the income to
o
o
Y, & Y used the money to buy food for the family without knowing that
X was actually engaging in prostitution, an immoral profession.
§
Before Y founds out, Z would have been able to seek
payment of the debt owed by X from Y, since the ACP or CPG
is liable for the expense.
§
When Y finds out & objects to X’s profession, the
knowledgeable creditor-friend, Z, can no longer go to Y to
seek payment of debt, because Y has objected.
BUT NOTE: When creditor is in good faith & does not know about the
immoral profession, he can seek payment from the ACP or CPG
regardless of the objection of the husband, & can demand from the
husband the payment of the obligation.
§
In the example, if Z just thought that X was going to Japan
as a tourist, Z can get the refund. It is only when the creditor
is in bad faith that the spouse’s objection is relevant.
Another example: The prostitute wife, issued a post-dated check
funded by advances (i.e., money for future prostitution activities) from
her pimp to pay a conjugal debt in favor of a Philippine creditor.
§
If the check was cleared for payment after the husband
objects, the loan of the Philippine creditor is chargeable only
to the wife’s separate property, even if the whole family
benefited.
§
But if the Philippine creditor had no idea that the money was
to be used to fund prostitution activities, he can collect from
the ACP or CPG.
TITLE IV. – PROPERTY RELATIONS BETWEEN HUSBAND & WIFE
Art. 74. The property relations between husband & wife shall be governed in the
following order:
1) By marriage settlement executed before the marriage;
2) By the provisions of this Code;
3) By local customs.
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of
absolute community, conjugal partnership of gains, complete separation of property, or
any other regime. In the absence of a marriage settlement, or when the regime agreed
upon is void, the system of absolute community of property as established in this Code
shall govern.
Art. 76. In order that any modification in the marriage settlements may be valid, tit must
be made before the celebration of marriage, subject to the provisions of Art. 66, 67,
128, 135, & 136.
Art. 77. The marriage settlements & any modification thereof shall be in writing, signed
by the parties, & executed before the celebration of marriage. They shall not prejudice
3rd persons unless they are registered in the LCR where the marriage contract is
recorded as well as in the proper registries of property.
Property Relations & Pre-Nuptial Agreements
•
NON-NEGOTIABLES:
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Marriage settlement must be signed before the marriage
Marriage settlement must be in writing
§
Oral settlement is void & not ratifiable by any claim of partial
execution or absent of objection
When is the property regime of your marriage not your choice?
o Art. 43 – When a present spouse marries a subsequent spouse after
obtaining a JPDP for absentee spouse but fails to perform the
liquidation, distribution, partition, & delivery, the subsequent marriage
is valid, but the property regime of the subsequent marriage will
automatically become complete separation of property
o Note that this is the exception to the general rule that the ante-nuptial
agreement must be in writing or else ACP will govern
RULES in marriages:
o H & W can’t sell property to each other, except when there is a
separation or property in their settlement of a JSOP (judicial
separation of property)
o No right of accretion in cases of donation made to several persons is
not applicable to a donation jointly made to H & W; between H & W,
there will be right of accretion, unless donor expressly provides the
contrary.
Spouses may agree on anything allowed by law, even if partition is not equal
o May refer to present or future property or both
o May be total or partial (e.g. a property not agreed upon as separate
shall automatically be absolute community)
o BUT parties cannot stipulate:
§
That the CPG/ACP will start at any time before or after the
marriage is celebrated because such agreement is void
under Art. 88 & 107.
§
No substantial donations to each other during their
marriage under Art. 87.
§
JDPD/1st marriage terminated by death – subsequent
marriages can only be complete separation of property if
there is no liquidation
§
Parties cannot vary marital personal rights & duties that
arise on marriage by operation of law.
§
Agreement cannot divest the children of the parties of legal
rights.
No marriage settlement = ACP
There can also be a Mixed-Up Property Regime combining multiple types.
o
o
•
•
•
•
•
Prejudice to 3rd Parties
•
Settlement & modifications must be recorded in LCR (of marriage contract) &
registries of property
•
Example: A & B, prior to their marriage, execute a valid marriage settlement.
Two of three properties of B in Q.C., San Juan & Makati, shall be excluded from
the settlement. Only the Makati one will be included.
o Had there been no agreement, A & B would own everything as ACP
o Prior to marriage, B borrowed money from Y. B used the loan
personally, & it did not benefit the family of A & B. When debt became
due, B defaulted. After obtaining a favorable court judgment, can Y,
•
3rd party creditor, execute on the Makati property now co-owned by A
& B?
§
IF marriage settlement is properly registered, NO. Property is
now part of ACP, even if before it was owned separately by
B, especially since there is still the property in Q.C. & San
Juan. The Makati property can only be made liable for
COMMUNITY DEBTS now.
§
IF marriage settlement is NOT registered, Y can execute on
the community property in Makati. Then, B has to pay the
community property for the payment of his obligation to Y;
can be made at the time of liquidation of ACP, wherein the
cost of the debt will be deducted from B’s share. This is true
EVEN IF B had other properties that could be used to pay
the debt.28
§
IF B’s debt to Y redounded to the benefit of the family, ACP
is DEFINITELY liable.
If there is no marriage settlement, ACP automatically governs & there is nothing
to register. The effects on the 3rd party creditor X with a mortgaged property for
a debt owed by B, who subsequently marries A, are as follows:
o IF the mortgage is registered, X will not be prejudiced, as B will be
bound to said mortgage.
o IF the mortgage is NOT registered, B shall not be bound by the
mortgage, but he will lose his right to make use of the period (Art.
1198, CC: The debtor shall lose every right to make use of a period
when, by his own actions, he has impaired the security given after its
establishment, unless he immediately gives new ones equally
satisfactory)
§
B can ask A to make use of the collateral already
established.
§
B can also give equally satisfactory securities.
§
In case A says no to both, X can file an action to collect the
amount of indebtedness.
•
If X, despite judgment in his favor, cannot satisfy
the debt because B no longer has exclusive
property, X can obtain payment under 94(9).
•
If X proves that B has no more separate property,
he can use ACP to pay, & B’s debt will simply be
deducted from share of ACP if ACP is liquidated
•
If debt redounded to the benefit of the family, X
can execute immediately on the mortgaged
property.
o If property is registered in the proper registry & has the corresponding
valid TCT, a 3rd party can rely on the annotations. If a married man
caused the description “single” & through continuous representation
of singlehood, sells the property to an innocent purchaser for value &
there are no other indicators for said purchaser to be suspicious,
transaction can’t be annulled.
This should not be confused with Art. 94 (9) where, if the debtor-spouse’s properties are shown to be insufficient, the creditor can
seek payment of the debts through the community property. Art. 94 (9) has nothing to do with registration or failure thereof & any
resulting prejudice to third parties.
28
Katrina Monica C. Gaw | Block C 2018| 59
Fairness in Marriage Settlement
•
In weighing fairness of provisions, case-to-case basis weighing all important
factors
•
If settlement is unfair, it can still be upheld if it is shown that the disadvantaged
spouse signed it understanding that her rights were waived
•
Spouses must sign freely, intelligently & voluntarily
•
Burden of proof of invalidity is on the spouse who alleges it
o BUT: If on its face, the contract is unenforceable, a presumption of
concealment arises, the burden shifts & it is incumbent upon the other
party to prove validity
Modifications
•
General rule: must be made before the celebration of the marriage, in writing &
signed by the parties; otherwise, the property regime is ACP
•
Modifications made after marriage NEED judicial approval & should only refer
to instances provided in Art. 66, 67, 128, 135 & 136 of FC:
o A revival of former property regime between reconciling spouses
o In case of abandonment or failure to comply with marital obligations
o Aggrieved spouse can appeal to court & get a judicial separation of
property
o Spouses can do a voluntary & verified petition to modify their property
regime into a separate community
o Otherwise, modification is not valid.
§
CANNOT be effected by mere execution of contract or
agreement between the two parties
§
EVEN if it’s related to debts
•
Exception to the general rule that ACP will govern if no antenuptial agreement
is executed: If a marriage is terminated by the death of a spouse & the living
spouse marries again without a judicial or extrajudicial settlement from the first
marriage within one year from the death of the first spouse; in that case, the
mandatory regime of CSOP will govern.
Local Customs
•
Custom – a rule of conduct formed by repetition of acts uniformly observed as
a social rule, legally binding & obligatory
•
A custom must be proved as fact, according to rules of evidence (CC)
•
Local custom will apply when –
1. Parties expressly state that it applies, or
2. If parties stipulate in their settlement that they do not want ACP only,
without stating otherwise what regime governs
•
IF marriage settlement says NO to ACP & local custom without stating a
property regime, the provision will be void. ACP will then apply anyway.
sentence of civil interdiction has been pronounced or who is subject to any other
disability, it shall be indispensible that a guardian appointed by a competent court be
made a party thereto.
Consent by those Designated by Law
•
Applicability of Art. 78 is now in doubt as legal age & marrying age is now 18
(Dec. 18, 1989, RA 6809)
•
An 18 year old, at present, can execute a marriage settlement without consent.
•
Civil interdiction (Art. 34, RPC) – deprives offender during his time of sentence
of the rights of parental authority, guardianship, marital authority, of the right to
manage his property & the right to dispose of such property by any act.
o Art. 31: Reclusion temporal & reclusion perpetua lead to civil
interdiction for life, even if pardoned as to the principal penalty,
unless the same shall have been expressly remitted
o Art. 40, RPC: Death sentence, when not executed, leads to civil
interdiction for 30 years.
•
Under Art. 79, in case a person upon whom a sentence of civil interdiction has
been pronounced or who is subject to any other disability, the court must
appoint him a guardian to be a party in the written marriage settlement.
Art. 80. In the absence of contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippine laws, regardless of the place of
celebration of the marriage & their residence. This rule shall not apply:
1) Where both spouses are aliens;
2) With respect to the extrinsic validity of contracts affecting property not situated in
the Philippines & executed in the country where the property is located; &
3) With respect to extrinsic validity of contracts entered into in the Philippines but
affecting property situated in a foreign country whose laws require different
formalities for its extrinsic validity.
Notes
•
Art. 80 (1) – does not apply if both spouses are aliens married in the Philippines
•
Art. 80 (2) – lot is abroad & instrument is executed where lot is located
•
Art. 80 (3) – lot is abroad but the instrument is executed in the Philippines
Art. 78. A minor who according to law may contract marriage may also execute his or her
marriage settlements, but they shall be valid only if the persons designated in Art. 14 to
give consent to the marriage are made parties to the agreement, subject to the
provisions of Title IX of this Code.
Rules Governing Property Relations
•
If parties are Filipinos, their property relations will be governed by Philippine laws
in the absence of any agreement to the contrary
•
Art. 16, CC – Real & personal property will always be subject to the law of the
country where it is situated
•
Property which is abroad will not be governed by Philippine laws
o The extrinsic validity of a contract involving properties abroad will not be
governed by Philippine laws, whether the contract is executed here or
abroad. If the contract is executed in the Philippines, the laws of the
country where the property is located would govern the extrinsic validity of
the contract.
•
Art. 80, 1st par. does not apply if both spouses are aliens married in the
Philippines.
Art. 79. For the validity of any marriage settlement executed by a person upon whom a
Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding
Katrina Monica C. Gaw | Block C 2018| 60
articles in consideration of a future marriage, including donations between the
prospective spouses made therein, shall be rendered void if the marriage does not take
place. However, stipulations that do not depend upon the celebration of the marriage are
valid.
Notes
•
BASIC RULE: Donation propter nuptias within marriage settlements shall be
rendered void if marriage does not happen.
o Void marriages have no prescriptive periods.
o INCLUDES a scenario where the in-laws also put their donations to
the couple in the marriage settlement.
Efficacy of the Marriage Settlement
•
Consideration of the marriage settlement is the marriage itself.
•
General Rule: If marriage does not take place, the marriage settlement is
generally rendered void.
o EXCEPTION: stipulations that do not depend upon the celebration of
the marriage shall be valid
§
Ex. Support of common child (whether legitimate or
illegitimate) of the contracting parties who decide not to get
married
•
If some provisions in a marriage settlement are invalid, but do not affect the
rest of the provisions, only the invalid ones will be ineffectual. The provisions of
a marriage settlement are thus separable.
CHAPTER 2: DONATIONS 29 BY REASON OF MARRIAGE
Art. 82. Donations by reason of marriage are those which are made before its
celebration, in consideration of the same, & in favor of one or both of the future spouses.
Art. 83. These donations are governed by the rules on ordinary donations established in
Title III of Book III of the Civil Code, insofar as they are not modified by the following
Articles.
Art. 84. If the future spouses agree upon a regime other than the ACP, they cannot
donate to each other in their marriage settlements more than 1/5 of their present
property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary
succession & the formalities of wills.
Donation Propter Nuptias
•
Need not be in the marriage settlement
•
Without onerous condition, as marriage is the motive for the donation
•
Remain subject to reduction for inofficiousness upon the donor’s death, If they
should infringe on the legitime of a forced heir
•
MUST be made
1) Prior to the celebration of the marriage
2) In consideration of the same
29
Donations are unilateral acts & are effective when accepted.
•
•
3) In favor of one of the contracting parties or both
IF the donation has stipulations, like:
o Marriage has to be childless
o One of the spouses has to die before the donation operates
o Donation was in favor not of the wife but of the parents who raised
her
o CANNOT be regarded as one made in consideration of marriage
NOT donations by reason of marriage:
1) Made in favor of the spouses after the celebration of marriage
2) Executed in favor of the future spouses but not in consideration of
marriage
3) Granted to persons other than the spouses even though they may be
founded on the marriage
Donation of Present Property
•
MOVABLE PROPERTY donations:
1) May be oral or written
a. If oral, document representing the thing or the thing itself must be
delivered simultaneously
b. If the value of the thing is more than 5,000 pesos, the donation &
acceptance shall be in writing. Otherwise, donation shall be void.
2) Donee must accept the donation personally or through an authorized
person with a special power for the purpose, or with a general or
sufficient power
a. Acceptance during lifetime of donor & donee
•
IMMOVABLE PROPERTY donations:
1) Must be made in a public document
a. Specify the property to be donated
b. The value of the charges which the donee must satisfy
2) Acceptance may be made in the same deed of donation or in a separate
public document
a. Must take effect during lifetime of donor
b. If acceptance is in a separate instrument, donor should be notified
in an authentic form; this step shall be noted in both instruments
CLASS SCENARIO (A)
Q: X is the proud of future son-in-law Y for finishing law school. X thus awards Y with a
car. Y, however, breaks up with X’s daughter, W. Can X revoke the donation?
A: If it is a donation by reason of marriage, & Y refuses to return the car, X has 8 years to
file a case from the time he makes the demand & Y refuses.
Donation Propter Nuptias (PN) of Future Property
•
Shall be governed by provisions on testamentary succession & formalities of a
will
•
Document containing future donation may be handwritten
o BUT if it is handwritten, it MUST be entirely handwritten, dated &
signed by donor
•
If not handwritten, it must be subscribed at the end thereof by the donor
himself or the donor’s name written by some other person in his presence, & by
his express direction, & attested & subscribed by 3 or more credible witnesses
in the presence of the donor & of one another.
Katrina Monica C. Gaw | Block C 2018| 61
o
Every will must be acknowledged before a notary public by the donor
& the witnesses
Donation between Future Spouses
•
If ACP = donation PN is useless
•
Requisites for valid donation PN:
1) Valid marriage settlement
2) Marriage settlement stipulates a property regime that is not ACP
3) Donation contained in the settlement is not more than 1/5 of the present
property of the donor
4) Donation must be accepted by would-be spouse
5) Must comply with requisites in Title III Book III of the CC
•
If the parties never executed a marriage settlement, making a donation PN
would be useless, as marriage will be governed by ACP by default
•
If there is a marriage settlement, but the donation PN is not in the settlement
o The not more than 1/5 rule will not apply
o More freedom to give more, as Title III of Book III of CC will dictate
§
Donation may comprehend all present party of the donor
§
PROVIDED:
•
He reserves sufficient means to support himself &
all relatives who, by law, are entitled to support
from the donor
§
NO PERSON MAY GIVE OR RECEIVE, BY WAY OF DONATION,
MORE THAN HE MAY GIVE OR RECEIVE BY WILL. Otherwise,
the donation is inofficious.
•
Ex. If A gave a donation PN to Z in the amount of
P60,000, but his entire estate is P100,000, A’s
only son, G, is prejudiced as it extends on his
compulsory legitime
o Only son gets ½ of A’s estate supposedly
(P50,000)
o The other P50,000 is the free portion A
can give to anyone. This is the only
amount he can give to Z.
o Donation given by A to Z is inofficious; Z
should give back P10,000 he got from A
•
It can be argued that not applying the 1/5 rule
messes with the spirit of the law (Art. 87)
o Donation is an act of pure liberality & is
not negotiated
o Donations are not part of the property
settlement
o 1/5 rule applies in a settlement because
there are negotiations; but when it’s
outside of the settlement, it’s just an act
of liberality
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be
valid. In case of foreclosure of the encumbrance & the property is sold for less than the
total amount of the obligation secured, the donee shall not be liable for the deficiency. If
the property is sold for more than the total amount of said obligation, the donee shall be
entitled to the excess.
Notes
•
•
Ordinarily, when you buy a property with an annotation, you take over the
burden of those annotations.
But in Art. 85, as donation is gratuitous, donee will not be held liable for any
liens recorded, & is entitled to any excess
Donation with Encumbrance
•
Donee’s rights are subject to encumbrance
•
Donee cannot seek reimbursement from the donor for the donation that was
foreclosed; at most, donee is entitled to any excess that wasn’t used to pay the
encumbrance
Art. 86. A donation by reason of marriage may be revoked by the donor in the following
cases:
1) If the marriage is not celebrated or judicially declared void ab initio except the
donations made in the marriage settlements, which shall be governed by Art. 81;
2) When the marriage takes place without the consent of the parents or guardian, as
required by law;
3) When the marriage is annulled, & the donee acted in bad faith;
4) Upon legal separation, the donee being the guilty spouse;
5) If it is with a resolutory condition & the condition is complied with;
6) When the donee has committed an act of ingratitude as specified by provisions of
the Civil Code on donations in general.
General Rule
•
In all cases except in the case of void marriages, if the donee is NOT in bad
faith, the donation CANNOT be revoked
•
“Void donations” & “donations revoked by operation of law” are the same
Marriage Not Celebrated
•
If the donation PN is not in the marriage settlement: When the marriage is not
celebrated, donor has the option to revoke or maintain the donation
o Prescriptive period: 5 years from the moment the marriage is not
solemnized on the fixed date
•
If the donation PN is in the marriage settlement: The donation is void.
o Prescriptive period: Action does not prescribe.
•
If the donation is not by reason of marriage, donation is still valid.
Marriage Judicially Declared Void
•
There MUST be a judicial declaration that the marriage is void before donation
can be revoked by the donor.
•
Generally, good faith or bad faith is immaterial when the marriage is judicially
declared void.
•
BUT there are 5 scenarios that can arise, depending on the reason why the
marriage is void:
Katrina Monica C. Gaw | Block C 2018| 62
1)
2)
3)
4)
Art. 40, 52 & 53 (i.e., a subsequent marriage is void because there was no
JDNOM for the 1st marriage) – REVOKED for bad faith spouse by operation
of law
a. Art. 86 (1) would prevail if based on statutory construction, as it
was written later on in the Code.
b. Sta. Maria view: Revoked by operation of law IF the doneespouse contracted the marriage in bad faith (spirit of the law)
i. Example: A’s first marriage is void with C is void, but he
gets no JDNOM. Later, A marries B. A knew all along
that he needed a JDNOM for his marriage with C.
Before the wedding, B gave A a donation PN. Upon
finality of the JDNOM between A & B, the donation shall
be revoked by operation of law pursuant to Art. 50,
which provides that Art. 43 (3) shall also apply in proper
cases where marriages are declared void under Art. 40.
c. If the donee does not want to return the donated property, the
donor should file an action to recover the thing donated & his
right of action starts from the finality of the JDNOM.
i. If it is movable property, prescription period is 8 years.
ii. If it is immovable, prescription period is 30 years.
Bad faith on the part of both parties in Art. 41 (i.e., JDPD) – REVOKED by
operation of law
a. Donations are revoked by operation of law according to Art. 44
In all other cases where marriage is declared void not in Art. 40, 52, 53 or
41 – revocation is at the OPTION OF THE DONOR
a. GENERALLY, donations made in good faith marriages cannot be
revoked, UNLESS said marriage is void.
b. Art. 86 (1) will apply; donor has option.
i. Good faith or bad faith of donee is irrelevant.
ii. Donor has option to revoke or not to revoke after
JDNOM, for a prescription period of 5 years.
Bigamy – 2nd spouse generally has option to revoke donations to bad faith
bigamous spouse unless they were already living together/adulterous
a. Donations of 2nd spouse to bigamous spouse – may or may not
be revoked by the 2nd spouse
b. Donations given by bigamous spouse to 2nd spouse – void IF the
two of them are guilty of adultery or concubinage at the time of
donation
c. Donations given by bigamous spouse & bigamous spouse while
they were already cohabiting without a valid marriage – void (Art.
87, FC)
d. Donations in a situation where the first marriage entered into by
the ‘bigamous spouse’ is void, & said ‘bigamous spouse’
subsequently marries another person (in effect making the
second marriage void by failure to get a JDNOM before
remarrying) (Art. 40 marriage) –
i. Donations made by the 2nd spouse are revoked by
operation of law upon the finality of the JDNOM of the
first marriage of the ‘bigamous spouse’ & his 1st
spouse
ii.
5)
BUT donations made by the ‘bigamous spouse’ to his
2nd spouse would be void IF the two of them lived
together as husband & wife without the benefit of
marriage (Art. 87, FC)
Both parties are in good faith
a. Donor, after the JDNOM is given, can choose whether or not to
revoke the donation (Art. 86 (1))
b. Ex. Marriage between X & Y where X gets a JDNOM under Art. 40
but fails to liquidate his property as required under Art. 52, in
good faith – any donation of X to Y & vice versa may be revoked
by the them at their option, if both entered into the 2nd marriage
in good faith.
c. Prescription of 5 years from the JDNOM
No Consent of Parents or Guardian Where One of the Parties is Aged 18-21
•
Donation may be revoked by the donor; donor can be a 3rd person
•
Has 5 years from the time of the knowledge that the needed consent was not
obtained by the parties
•
The knowledge of non-consent, in this case, can come only on or after the
marriage
o If he or she knew of the non-consent before the marriage, donor may
not revoke because the parent can still give their consent anytime
before the marriage ceremony takes place
•
If marriage does not take place, Art. 86(1) or Art. 81 will apply in the proper
cases
Annulled Marriage & Donee Acted in Bad Faith
•
There are conflicting provisions in the Family Code as regards annulment & the
revocation of donations where a spouse is in bad faith
o Art. 50 in relation to Art. 43(3) – the donation is revoked by operation
of law if donee acted in bad faith; IF there is good faith in an annulled
marriage, donation CANNOT be revoked (this is the view preferred by
Sta. Maria)
o Art. 86 (3) – in an annulment, the donation is revocable at the
instance of the donor, where the donee is in bad faith
•
How Resolved
o Art. 86 (3) is later, so statutory construction says apply this
o BUT: Art. 43 (3) is more in harmony with the general tenor of the
provision on annulment (i.e., the bad faith spouse must not be
allowed to benefit)
o Also: Giving the innocent spouse the option to revoke may lead to
difficulties because guilty spouse can bargain with innocent spouse &
attempt to change the innocent spouse’s mind
§
Also not a good deterrent for those who marry to get rich
§
Art. 86 (3) would mean that that there is a prescription
period of 5 years from the finality of the annulment decree
§
BUT if it is revoked by operation of law, no need to file an
action to revoke the donation – refusal to return will lead to
an action to recover the property lost; this would give the
donor 8 years for personal property, & 30 years for real
property
Katrina Monica C. Gaw | Block C 2018| 63
•
o Hence: Art. 43 (3) is the way!
NOTE: There are instances when a donation PN remains effective despite the
annulment & cannot be revoked – i.e., where there is no bad faith spouse,
even if there is an injury
o Ex. The donee-spouse informed the 3rd party donor & the other
spouse that he has a serious & incurable STD or is impotent; the
donee-spouse is not in bad faith here, & any donation PN given to him
is valid & cannot be revoked.
Legal Separation
•
The donor-spouse has the option to revoke
•
Prescription: 5 years from the judicial declaration of LS (decree is necessary)
•
If the ground is sexual infidelity or concubinage, a donation made between
persons who are guilty of adultery or concubinage at the time of the donation
shall be void
Resolutory Condition
•
If the donation PN is one with a resolutory condition & the condition is complied
with, the donation may or may not be revoked
•
Resolutory condition – the happening of a future & uncertain event operates to
extinguish the right or the obligation
o Ex. X’s father donates a car to him, but says the donation will be
revoked if X & his wife leave Philippines. If X & wife leave, hence
fulfilling the resolutory condition, X’s father may choose to revoke the
donation.
•
Prescriptive period if the donation is made by a third party: 5 years from
happening of resolutory condition
•
Prescriptive period if the donation is made by one spouse to the other: Not
subject to prescription
o Art. 1109, CC: Prescription does not run between husband & wife,
even though there be a separation of property agreed upon in the
marriage settlement
Acts of Ingratitude
•
Art. 765 of CC:
1) If the donee should commit some offense against the person, honor or
property of donor, or his wife, children under his parental authority (kids
under 18)
2) If the donee imputes (libel30) to the donor any criminal offense, or any act
involving moral turpitude, even though it can be proven, unless the crime
or act is committed against the donee himself, his wife or kids
3) If he unduly refuses him support when the donee is legally or morally
bound to give support to the donor
o Scenario: Your ninang loses everything in a storm; she once donated
something to you. After she loses everything, she asks if she can
receive support from you. You say no. In this situation, your ninang
can revoke the donation she once gave to you.
30
•
Period: Must be done within 1 year from the time the donor had knowledge of
the ingratitude & it was possible for him to bring suit; alienations shall subsist
Void Donations
•
Art. 739, CC: Donations made by those guilty of adultery or concubinage shall
be void
o Ex. The husband transfers property to 2nd wife at the time of marriage
with 1st wife
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the
spouses during the marriage shall be void, except moderate gifts which the spouses may
give to each other on the occasion of any family rejoicing. The prohibition shall also apply
to persons living together as husband & wife without a valid marriage.
Reasons
•
Undue & improper pressure & influence
•
The provision also applies to a man who lives with a woman not his wife, but in
this case, for the donation to fall under Art. 87, it must be shown that the
donation was made AT A TIME WHEN THEY WERE STILL LIVING TOGETHER as
husband & wife without the benefit of marriage
•
CASE: Agapay v. Palang – A transfer is also invalid if it is obvious that there was
connivance to make the transfer appear like a sale when it was actually a
donation.
•
Indirect donations are also not allowed; thus, the Art. 87 also prohibits the
following donations of a spouse:
1) To a stepchild who has no compulsory heir &/or legal heirs, such as his or
her children, other than the other spouse at the time of the donation;
2) To a stepchild who has no compulsory heir &/or legal heirs, such as his or
her children, other than the other spouse at the time of the donation;
3) To a common adopted child who has no other compulsory heir/s;
4) To the parents of the other spouse;
5) To the other spouse’s adopted child who has no compulsory heirs or in
cases when at the time of the donation, the only surviving relative of the
adopted is the other child
•
Anytime the donation may redound back to the spouse, it is considered an
indirect donation
o VALIDITY OF A DONATION is determined AT THE TIME IT WAS GIVEN
§
Ex. If the donation to a stepchild was given when the
stepchild had no children, but then later the stepchild has
children already, the donation is still void
o EXCEPTION: Donation by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity of selfimprovement are valid; these are chargeable to the ACP or CPG
Persons Who Can Challenge the Validity of Transfers
•
CANNOT be challenged by those who had absolutely no relation to the parties
to the transfer at the time it occurred & had no rights or interests inchoate,
present, remote, or otherwise, in the property in question
In such a case, that the libelous statement is true is not a defense
Katrina Monica C. Gaw | Block C 2018| 64
CASE: Rodriguez v. Rodriguez
Facts: A mother sold her exclusive property to her daughter. Later, the daughter sold the
property to her father, for the purpose of converting the property of the mother to CPG
property. This would in effect result in an evasion on the prohibition against donations
from one spouse to another during coverture. Can the wife file a case to later on attempt
to nullify the donation from daughter to father?
Held: No. SC held the transaction was evidently designed to circumvent the legal
prohibition. Still, it refused to nullify the transaction on the ground that, while the cause
involved an illicit consideration, all parties knew the illicit purpose of the scheme, making
them all guilty. Thus, no one could recover what was given by virtue of the contract. SC
applied the pari delicto rule.
Effect on Reserva Troncal31
•
Art. 891, CC, dealing with the law on succession, provides that the ascendant
who inherits fro his descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve the property as he may have acquired by operation of law for
the benefit of relatives within the third degree & who belong to the line from
which the property came.
•
There may be instances where a father donates to his son property during his
lifetime. This is technically not allowed under the FC because it is an indirect
donation. Despite this, reserva troncal will still fully apply.
CHAPTER 3: SYSTEM OF ABSOLUTE COMMUNITY
Section 1. GENERAL PROVISIONS
Art. 88. The absolute community of property between spouses shall commence at the
precise moment the marriage is celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other time shall be void.
Absolute Community of Property (ACP)
•
All properties owned by the contracting parties before the marriage ceremony &
those which they may acquire thereafter shall comprise the absolute
community of property regime
o Spouses become co-owners of all the properties in the ACP
o No waiver of rights, interests, shares & effects of the ACP can be
made except upon judicial separation of property
•
In a partial separation of property regime, the property not agreed upon as
separate shall pertain to the absolute community (Art. 144, FC)
•
Only those discussed in the marriage settlement to be separate & those
enumerated in Art. 92 are excluded from the ACP
•
Traditional oneness of the Filipino family is reflected in ACP
o Even the Civil Code Commission thought so, but at the time they had
decided that CPG was more revolutionary as a concept
Alien Married to Filipino
31
NOT discussed by freshmen
•
In ACP & CPG, an alien married to a Filipino cannot have any interest in the
community or partnership property
o CASE: Matthews v. Taylor – A Filipina wife need not obtain consent
from her foreigner spouse before leasing a space they own, because
the alien spouse is not considered the owner of the property;
otherwise, allowing the alien to have a claim would be allowing him to
circumvent the laws on aliens not being allowed to acquire land in PH.
In the end, the Filipina wife is seen by the law as the sole owner of the
property.
§
Aliens are disqualified by the Constitution from acquiring
private or public lands. Only Filipinos or corporations at least
60% of the shares of which are owned by Filipinos can own
land
§
Foreigners are only allowed to own Philippine land under
constitutionally-recognized exceptions
•
This is to be construed strictly; they cannot buy
lands that are not strictly agricultural, either
§
CASE: Ting Ho v. Teng Gui – A Chinese citizen acquired a
parcel of land, together with the improvements thereon.
Upon his death, his heirs claimed that the properties are
part of the estate of their deceased father. However, SC
ruled that the land & improvements are excluded as the
father was a foreigner, & hence he never became the owner
of the land.
§
CASE: Muller v. Muller – A Filipina & her husband bought
Antipolo property. When they separated, the husband
sought reimbursement. SC did not allow the reimbursement,
as the husband had no right to make claims on the land.
§
CASE: Frenzel v. Catito – Similar to cases above; Australian
executed deeds of sale under the name of his common-law
Filipina girlfriend; when they broke up & the Australian sued
her, SC held: “One who loses his money or property by
knowingly engaging in an illegal contract may not maintain
an action for his losses.”
§
CASE: Cheesman v. IAC – A Filipina & her husband acquired
a parcel of land under the Filipina’s name. The Filipina sold
the parcel of land to a 3rd person without her husband’s
knowledge. However, SC gave him no right to nullify the sale
Commencement
•
ACP commences at the precise moment of the celebration of marriage
•
Any stipulation, express or implied, that it begins at any other time shall be void
o A provision that states that the CPG shall govern the property
relationship until after the 5th anniversary of the couple, when it will
automatically convert to ACP, is void
o No automatic change is allowed even later in the marriage without
the court’s intervention
Art. 89. No waiver of rights, interests, shares, & effects of the ACP during the marriage
can be made except in case of judicial separation of property.
When the waiver takes place upon a judicial separation of property, or after the marriage
Katrina Monica C. Gaw | Block C 2018| 65
Art. 90. The provisions on co-ownership shall apply to the ACP between the spouses in all
matters not provided for in this Chapter.
Section 2. WHAT CONSTITUTES COMMUNITY PROPERTY
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the
community property shall consist of all the property owned by the spouses at the time of
the celebration of the marriage or acquired thereafter.
Art. 92. The following shall be excluded from the community property:
1) Property acquired during the marriage by gratuitous title by either spouse, & the
fruits as well as the income thereof, if any, unless it is expressly provided by the
donor, testator or grantor that they shall form part of their community property;
2) Property for personal & exclusive use of either spouse. However, jewelry shall
form part of the community property;
3) Property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, & the fruits as well as the income, if any, of
such property.
Art. 93. Property acquired during the marriage is presumed to belong to the community,
unless it is proved that it is one of those excluded therefrom.
Special Type of Co-Ownership
•
ACP is a special type of co-ownership; that’s why laws on co-ownership can also
apply to ACP.
•
Spouses can individually use things owned in common, so long as –
o Each does so in accordance with the purpose for which it was
intended &
o The use does not injure the interest of the co-ownership or prevent
the co-owner from using it according to their rights (Art. 486, CC)
•
Any one of the co-owners may bring an action for ejectment (Art. 487, CC)
•
BUT UNLIKE AN ORDINARY CO-OWNERSHIP
o No waiver of rights, interests, shares & effects of the ACP during the
marriage can be made except in case of judicial separation of
property
o Like in CPG, the interest of the parties in the property is merely
inchoate or an expectancy prior to liquidation
•
When a waiver takes place upon judicial separation of property, or after a
marriage has been dissolved or annulled, the same shall appear in a public
instrument & shall be recorded as provided in Art. 77.
•
“Upon judicial separation” in par. 2 of Art. 89 – covers the time period during &
after judicial separation
o Creditors of the spouse who made such waiver may petition the court
to rescind the waiver to the extent of the amount sufficient to cover
the amount of their credits
Ex. Spouses A & B had their ACP worth P1M dissolved in
accordance with law. Upon judicial separation of property, B
is entitled to get 500K as her share. B is indebted to X in the
amount of 100K. If B decides to waive her entire share in
favor of A, X has the right to seek rescission of the waiver
amounting to 100K (to be taken from B’s supposed share of
500K) to protect X’s interest.
If the waiver takes place without a judicial separation of property
decree, such waiver shall be void – it will be contrary to law & public
policy (Art. 6, CC & Art. 89, FC)
§
has been dissolved or annulled, the same shall appear in a public instrument & shall be
recorded as provided in Art. 77. The creditors of the spouse who made such waiver may
petition the court to rescind the waiver to the extent of the amount sufficient to cover the
amount of their credits.
o
CLASS DISCUSSION (M)
A spouse cannot sell, donate, of waive a right in favor of other spouse because the share
of each spouse is merely inchoate, an expectancy. The nature of an interest of a spouse
in an ACP is inchoate. That is the philosophy behind Art. 89.
Exclusions
•
Four excluded properties from ACP — Art. 91 is at the discretion of the parties,
& Art. 92 are statutory exclusions (& are thus mandatory)
•
1st - Marriage Settlement – anything that the spouses exclude from the
community property in their marriage settlements
•
2nd – Gratuitous Title – must be a valid gratuitous acquisition during the
marriage, & includes the fruits & incomes of the subject matter as well
o CANNOT be donations made by a spouse to the other spouse
involving substantial amount of separation properties which, in the
marriage settlement, has been agreed upon as not included in the
community property (Art. 87)
o HOWEVER, the donor, testator or grantor may provide that the
property, fruits & income will form part of the community property
•
3rd – Personal & Exclusive Use – Property for personal & exclusive use of either
of the spouses, either those brought inside the marriage or bought during the
marriage
o Excludes jewelry, which must involve a substantial amount
o Property in this exclusion must be interpreted in terms of value (cost)
o If a spouse has an expensive car worth 1M & which is for his
“personal & exclusive use,” this is considered as part of the ACP if it
can be shown that the spouses are not even very rich to simply be
able to afford such an expensive car
•
4th – Property from a Previous Marriage – property + fruits & income of said
property of either spouse when they still have legitimate descendants from a
former marriage
o Descendants are not just children, but include grandchildren, greatgrandchildren & all other descendants, who must all be legitimate
o If a previous marriage is void, & the kids from those marriage become
illegitimate, & thereafter one of the parties marries again, the
properties acquired by said party upon liquidation of the 1st marriage
belong to the ACP of the 2nd marriage
o If a previous marriage is annulled or declared void under Art. 36 or
Art. 52 & 53, the children born or conceived under such marriage is
legitimate, the property acquired by the spouse with children from a
previous marriage will not belong to the ACP; it shall belong to the
Katrina Monica C. Gaw | Block C 2018| 66
o
spouse with the legitimate children or to the children as presumptive
legitime
If marriage is terminated by death & there is no liquidation, the
subsequent marriage is governed by complete separation of property
in accordance with Art. 103
§
If there was liquidation, the property regime is ACP or what
is in the marriage settlement; but if the surviving spouse has
legitimate descendants, the properties owned by the
surviving spouse acquired before the subsequent marriage
shall remain separate even if ACP governs the subsequent
marriage
•
•
•
CLASS DISCUSSION (M)
Art. 93, No. 3 tells us that the status of a child can determine inclusion or exclusion of a
specific property in the community regime.
Q: A & B are married. They have a child. The marriage is declared void because there is
no marriage license. There was a liquidation of the properties forming part of A & B’s
property from when they were married. A later bought a mansion, & married X without a
prenuptial agreement. What is the property regime in the subsequent marriage?
A: The regime of ACP.
Q: Is the mansion that A bought included in the subsequent ACP, despite A & B having a
child together?
A: YES, because the child is illegitimate by reason of the void marriage of A & B.
Q: What if the first marriage was declared void because of psychological incapacity? Is
the mansion included in the subsequent ACP?
A: NO. By express provision of law, a child born within a marriage declared void by
psychological incapacity is legitimate.
Nature of Acquired Property Using Separate Properties
•
Art. 109 (4), FC: one of the exclusive properties of the spouses in relation to the
CPG is that which is purchased with the exclusive money of the wife or husband
o This is not so for ACP; there is no provision on ACP regarding exclusive
properties. Thus, it can be the assumed intention of the Code
Commission to make the husband & wife truly a single community
•
If a marriage settlement provides that the 1M won by the husband in the
sweepstake prior to the marriage shall remain separate during the marriage,
the stipulation is valid.
o If, using the said amount, the husband subsequently buys a house
which is used as a family home, the house cannot be considered his
separate property but a part of the ACP.
§
Reasons:
•
The absence of a counterpart provision to Art. 109
(4) for ACP
•
Art. 93, FC: Property acquired during the marriage
is presumed to belong to the community unless it
is provide that that it is one excluded therefrom.
•
Art. 91, FC: Unless otherwise provided in this
chapter or in the marriage settlement, the
community property shall consist of all the
properties owned by the spouses at the time of the
celebration of the marriage or acquired thereafter
•
Does not fall in any of the exceptions
The law does not provide that property purchased with the
exclusive money of the wife or husband shall be excluded
from the community property, UNLIKE in CPG
Same conclusion as above if the house was donated to the husband & the
husband, after becoming owner of the house, sells the property to a 3rd person.
o The money obtained through the sale is part of the ACP.
o Same result will be reached when money is obtained from the sale of
personal & exclusive properties under Art. 92 (2)
When items in Art. 92 (3) are sold during the marriage, the money obtained
from such will also be part of the ACP of the subsequent marriage.
When a property is exchanged or bartered for another property, the result
would be the same, unless the property received will qualify as a property used
for personal & exclusive use of the recipient spouse
o Unlike 109(3) for CPG
All of this strengthens the complete unity between husband & wife through
ACP32
THUS:
o
For properties in Art. 92 to be considered separate, it must be maintained as
such
o If a spouse sells property involved in the exclusions, that is his own
prerogative, but if he does so, he parts with the “property”
§
Proceeds or objects received are not anymore protected as
exclusive properties
§
FC favors ACP rather than separation of property
§
•
•
•
Section 3. CHARGES UPON & OBLIGATIONS OF THE ABSOLUTE COMMUNITY
Art. 94. The absolute community of property shall be liable for:
1) The support of the spouses, their common children, & legitimate children of either
spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
2) All debts & obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the community, or by both spouses, or by
one spouse with the consent of the other;
3) Debts & obligations contracted by either spouses without the consent of the other
to the extent that the family may have been benefited;
4) All taxes, liens, charges, & expenses, including major or minor repairs, upon the
community property;
5) All taxes & expenses for mere preservation during marriage upon the separate
property of either spouse used by the family;
6) Expenses to enable either spouse to commence or complete a professional or
vocational course, or other activity for self-improvement;
7) Antenuptial debts of either spouse insofar as they have redounded to the benefit
of the family;
The book shares another point of view (to which the author does not agree) – An object bought using separate property, proceeds
obtained from the sale of separate property, or items received by way of exchange or barter of the separate properties excluded in
Art. 91 & 92 will not necessarily make said object part of the ACP. Otherwise, it would be easy to circumvent or negate the purpose of
stipulations in a settlement. This view does not seem to have any support in the Family Code itself.
32
Katrina Monica C. Gaw | Block C 2018| 67
8)
The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or
contemplating a professional or vocational course or other activity for selfimprovement;
9) Antenuptial debts of either spouse other than those falling under par. (7) of this
Article, the support of illegitimate children of either spouse, & liabilities incurred by
either spouse by reason of a crime or quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-spouse, the payment of which
shall be considered as advances deducted from the share of the debtor-spouse
upon liquidation of the community; &
10) Expenses of litigation between the spouses unless the suit is found to be
groundless.
If the community property is insufficient to cover the foregoing liabilities, except those
falling under par. (9), the spouses shall be solidarily liable for the unpaid balance with
their separate properties.
Support
•
The most sacred & important of all obligations imposed by law
•
Others may sometimes fail, but this one should never fail unless with a valid cause
•
Comprises everything indispensible for sustenance, dwelling, clothing, medical
attendance, education & transportation, in keeping with the financial capacity, of
the family
o Education includes schooling & training for some profession, trade or
vocation, even beyond the age of majority
o Transportation includes expenses in going to & from school & work
o Illegitimate children – governed by provisions of Support in FC
§
Taken from separate property of parent-spouse
§
In case of absence or insufficiency of the exclusive property of the
parent of the illegitimate children, the ACP shall pay the support,
but said support is considered an advance to be deducted from
the share of the parent concerned upon liquidation of the ACP
CLASS SCENARIO (M)
Q: A & B are married. A has an illegitimate child. Who should support the child?
A: A.
Q: Where will the property come from?
A: A’s separate property.
Q: If the separate property of A is lacking, who shall pay the child’s expenses?
A: The community property of A & B, but the share will be taken from A’s share.
Debts & Obligations
•
If the administration of the property is delegated to one of the spouses & he or
she, as the administrator during marriage, contracted a debt or obligation for
the benefit of the community, the ACP shall be liable for the same
o Consent of the other spouse – not needed
o HOWEVER, there must be proof that it redounded to the benefit of the
family
•
Even when NOT for the benefit of the family, the ACP is liable for the debts of
one spouse who obtains the consent of the other spouse before incurring said
debt or obligation
o Consent may be express or implied
CASE: Marmont Resort World Enterprises v. Guiang – The case deals
with the issue of whether or not the husband consented to a debt.
The wife contracted a debt alone, but her husband signed the
contract as a witness. He thus impliedly consented to the debt & the
ACP (& in effect, he himself) is liable for the debt.
If a debt was contracted during marriage, even when NOT for the benefit of the
family & WITHOUT consent of the other spouse, the ACP is liable to the extent
that the family may have been benefited
o If the debt does not redound to the benefit of the family, the separate
property of the debtor-spouse is liable
If a debt was contracted prior to the marriage, ACP is liable if the debt
redounded to the benefit of the family
o Separate property is liable if it does not redounded to the benefit of
the family
o If the exclusive property of the debtor-spouse is insufficient, the ACP
will pay the debt, but the payment will be considered as an advance
to be deducted from the share of the debtor-spouse upon liquidation
of the community
Losses due to family business or the exercise of profession by any of the
spouses – charged to ACP
o BUT: Any personal undertaking by a spouse, such as making himself a
surety or guarantor to an obligation of another person, is NOT
considered to be for the benefit of the family
o
•
•
•
Taxes, Liens, Charges, Repairs
•
ACP will be charged for the ff. in relation to the community property:
o Taxes & liens
o Charges & expenses
o Major & minor repairs
•
Consent of other spouse is NOT needed
Taxes & Expenses for Preservation of Separate Property
•
ACP is also accountable for the expenses incurred to preserve the separate
property of any of the spouses, on the premise that such separate property is
used by the family during the marriage
Expenses or Donation for Self-Improvement Activities
•
Expenses for education or training of either spouse – chargeable to ACP
•
Value of what is donated or promised by BOTH spouses in favor of their
common legitimate child for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for selfimprovement is chargeable to ACP
o If only 1 of the spouses donate, this may fall under the prohibition
under Art. 87, making void any direct or indirect donation between the
spouses
§
A donation by one spouse to a common child who has no
descendants or compulsory heir other than his parents is an
indirect donation to the other spouse
Liabilities by Reason of a Crime or Quasi-Delict
Katrina Monica C. Gaw | Block C 2018| 68
•
•
ACP will not pay for obligations arising from crimes or quasi-delicts of a spouse
In case spouse’s property is insufficient, ACP shall pay as an advance, which
will later be deducted from the share of the debtor spouse upon liquidation;
possible sources of liability include the ff. –
o Art. 100, RPC: One who is criminally liable for a felony is also civilly
liable
o Art. 2176, CC: Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done; if there is no pre-existing contractual obligation
between the parties, such fault or negligence is called quasi-delict
§
Art. 2189, CC: A proprietor of a building is responsible for
the damages resulting from its total or partial collapse if it is
due to lack of necessary repairs
§
Art. 2193, CC: Head of a family who lives in a building is
responsible for damages caused by things thrown or falling
from the same
§
Art. 2187, CC: Manufacturers or processors of foodstuffs,
drinks, toilet articles, or similar goods shall be liable for
death or injuries to customers caused by any noxious or
harmful substances used
§
Art. 2176 also applies to acts or omissions of those persons
for whom one is responsible
•
Damages caused by employees while doing things
they were employed to do
§
Quasi-delicts are covered by Art. 2177-2194 of CC (Ch. 2,
Title XVII, CC)
Expenses of Litigation
•
ACP is charged when:
o The suit is between the husband & wife, &
o The suit is not groundless
§
Ex.: When it is obvious that the other spouse will be
acquitted because of prescription, the case is groundless
§
But just because the other spouse loses the case because
there is no proof beyond reasonable doubt, the case is not
necessarily groundless
•
ACP is also charged for suits that are not between the husband & wife, as long
as the suit benefits the family
•
CASE: Seva v. Nolan – A wife was criminally sued by her husband for adultery;
she spent attorney’s fees to defend herself. She was later acquitted. SC ruled
that the legal fees she spent during the litigation were chargeable to the ACP
as the right to a good name & reputation are vital & deserving of protection as
the right to existence, which is the meaning of the right to support.
•
CASE: Recto v. Harden – A wife made a contract with her lawyer that she would
pay 20% of the value of her share in the CPG she has with her husband when it
is liquidated. SC ruled that this contract did not bind the CPG, as the wife
merely bound HERSELF, i.e., assumed a personal obligation to pay, by way of
contingent fees. The 20%-amount is merely the BASIS of the computation, but
the lawyer does not actually get her share in the CPG.
•
o
•
Solidary obligations – where several creditors or debtors or both concur, &
where each creditor has the right to demand & each debtor is bound to
perform, in its entirety, the prestation constituting the object of the obligation
o If 2 debtors solidary owe a creditor an amount of money, the creditor
may demand payment from both or he may choose to ask payment
from anyone of the debtors
o Creditor can ask for the full amount of the obligation, not only the part
constituting the share each of the debtors owe
Even if a creditor runs after the wife’s entire property, the wife can seek
payment from the husband, as the liability between husband & wife is solidary
Spouses are SOLIDARILY liable with their separate properties if the community
property is insufficient to cover ACP liabilities.
o BUT this solidary liability does not include –
§
Ante-nuptial debts not redounding to the benefit of the family
§
Support of illegitimate kids of either spouse
§
Liabilities incurred by the spouse by reason of a crime or
quasi-delict
Insolvency of Spouses
•
In an insolvency proceeding, an assignee is appointed
o Represents the insolvent & creditors, whether voluntary or involuntary
o Takes all the properties of the insolvent & converts the estate, real or
personal, into money to settle the debts of the debtor
•
As long as the ACP exists, its property cannot be among the assets to be taken
possession of by the assignee for the payment of an insolvent debtor’s
obligations, except insofar as the latter has redounded to the benefit of the
family (Art. 2238, CC)
•
Differences between CC & FC in relation to ACP:
o Art. 206, CC: the ownership, administration, possession & enjoyment
of the common property belong to both spouses jointly & in case of
disagreement, the courts shall settle the difficulty
§
2nd sentence of Art. 2388, CC: If it is the husband who is
insolvent, the administration of the CPG or ACP may, by
order of the court, be transferred to the wife or to a 3rd
person other than the assignee
•
Prevents the husband, who usually acts as the
actual administrator, from dissipating the assets of
the ACP which may be held liable for the insolventhusband’s debts
o Art. 96, FC: Administration jointly belongs to both the husband & wife,
with the husband’s decision will prevail in case of disagreement, but
the wife can seek annulment of the contract
§
2nd sentence of Art. 2388, CC still applies under FC,
especially because there is an explicit provisional statement
that the husband’s decision will prevail in the meantime
•
Hence: If both the spouses maintain joint administration & 1 of them becomes
insolvent, the right of the insolvent spouse to jointly administer the ACP/CPG
may be curtailed by the court; the non-insolvent spouse becomes the sole
administrator of the ACP/CPG. The court can also appoint a 3rd person, other
than the assignee, as administrator.
Solidary Liability of the Spouses
Katrina Monica C. Gaw | Block C 2018| 69
CLASS DISCUSSION (M)
This whole provision can be summarized. In this provision, we speak of COMMUNITY
DEBTS, & not community ownership. When are there community debts?
Rule #1
GR: If it redounds to the benefit of the family, the debt ALWAYS pertains to community
debts. This is whether the debt was made before or during the marriage.
EXC: When the debt is immoral and invalid; though it redounded to the benefit of the
family, the separate property of the erring spouse will be liable.
Rule #2
Though it did not redound to the benefit of the family, if both spouses consented to the
expense, then the expense is a community debt.
Par. 9, on the other hand, speaks of a special rule. When can a creditor or aggrieved
party or an illegitimate child reach the community property for payment of obligations as
a matter of right?
When the spouse-debtor, in relation to his separate debt, has no more or inadequate
personal property, & it is so proven, the illegitimate child, creditor, or aggrieved party can
reach the community property.
Art. 95. Whatever may be lost during the marriage in any game of chance, betting,
sweepstakes, or any other kind of gambling, whether permitted or prohibited by law,
shall be borne by the loser & shall not be charged to the community, but any winnings
therefrom shall form part of the community property.
Gains & Losses in Games of Chance
•
Games of chance may unnecessarily deplete the ACP/CPG
o Includes the lotto, even if the lotto is legal
•
Losses incurred are borne by the loser
•
Winnings form part of the community property
•
Provision necessarily connotes that the spouses parted with some valuable
consideration hoping that some valuable return will be gained
o Ex. If a stranger gives one of the spouses a sweepstake ticket without
consideration, & said spouse won prize money, the winning will be
considered separate property in accordance with Art. 92 (1) of FC,
unless the donor expressly provides that it shall form part of the
community property
§
This is because the prize money is “income” derived from
the ticket; recall that property acquired by gratuitous title, as
well as the fruits & income thereof, are excluded from ACP
Section 4. OWNERSHIP, ADMINISTRATION, ENJOYMENT, & DISPOSITION OF
THE COMMUNITY PROPERTY
*Art. 96. The administration & enjoyment of the community property shall belong to both
spouses jointly. In case of disagreement, 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.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition & encumbrance
which must have the authority of the court or written consent of the other spouse. In the
absence of such authority or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the part of the
consenting spouse & the 3rd person, & may be perfected as a binding contract upon the
acceptance by the other spouse or authorization of the court before the offer is withdraw
by either or both offerors.
Joint Administration & Enjoyment
•
There is joint administration spouses are co-owners of the properties they
introduced into the marriage & acquired after the marriage ceremony
•
Administration may be validly delegated to only one spouse in the marriage
settlement
•
Joint management or administration does not require the husband & wife to
always act together
o Each spouse may validly exercise full power of management alone,
subject to intervention of the court in the proper cases
o Thus: Though the general rule is that all parties to a suit have to sign
a certification against forum shopping, the signature of the husband
or wife alone is substantial compliance with the requirement if the
case involves the community property of the spouses, even if both
parties are petitioners to the case
§
Each spouse is reasonably presumed to have knowledge of
the filing or non-filing of the other spouse
•
Each spouse may act individually without the consent of the other in case of
repairs to the property
•
Rules of co-ownership that apply to ACP:
o Repairs for preservation may be made by the will of 1 of the coowners, but if practicable, he should first notify his co-owner of such
repairs
o Art. 489, CC: Expenses to improve or embellish the thing shall be
decided by the co-owners the thing shall be decided by the co-owners
o Art. 491, CC: None of the spouses can make alterations on a thing
owned in common without the consent of the other, even if benefits
from all result therefrom
§
BUT: Art. 94(2), FC: If the alteration redounds to the benefit
of the family, ACP will be liable for the expenses incurred,
which implies that the alteration is valid
o NOTE: Rules of co-ownership apply only in a suppletory character
§
In cases of conflict between co-ownership provisions & FC
provisions, FC will prevail
o Example: The marriage of H & W are governed by ACP.
§
If H repairs the roof of the house to prevent leaking, he can
do so without the consent of W.
§
If H decides to alter the appearance of the roof to make it
more beautiful, he must get the consent of W.
•
If H proceeds with the alteration without W’s
consent, only H is liable for expenses incurred,
unless W ratifies it
•
If W does not ratify it, W can demand that the
altered roof be removed & the original roofing
returned at the expense of H
Katrina Monica C. Gaw | Block C 2018| 70
HOWEVER, if the alteration redounds to the benefit
of the family, like if it prevents the roof from
completely decaying, the alteration, even without
W’s consent, would be valid & the ACP will be
liable for debts incurred because of the alteration
o If ordinary rules of co-ownership applied,
the alteration would have been invalid
even if it redounded to the benefit of the
family
In case of disagreement, husband’s decision prevails
o Wife can go to court for recourse within 5 years from the date of the
contract implementing such decision
§
Going to court does not necessarily mean a desire to change
the administrator, but merely to settle the particular
disagreement
§
Proceeding will be summary in nature (Art. 253, FC)
o Ex. if there is a disagreement regarding alteration of a common
property & the husband objects, the wife can go to court. If wife
pushes through with alteration without husband’s consent, he can
also go to court
Par. 1 of Art. 96 includes the power to dispose, encumber, & alienate (broad
treatment) & includes these powers in the general power of management &
administration.
o Thus, same concept of husband’s decision prevailing & wife going to
court applies when the husband decides to sell a lot jointly owned
against the wife’s wishes.
Par. 2 of Art. 96 DOES NOT include the power to dispose, encumber & alienate
(limited by law).
•
•
•
•
CLASS DISCUSSION (M)
There are always questions on this particular provision. There are 2 parts in Art. 96.
Par. 1: The modus vivendi is that the decision of the husband prevails, subject to
rescission by the wife within 5 years.
Par. 2: In case of incapacity of a spouse, the capacitated spouse assumes responsibility.
But all alienations & encumbrance must have consent of both parties. Without consent
of both parties, it is void.
Who will eventually perfect the contract?
Either the capacitated spouse who will finally consent, OR the court will perfect it for the
parties.
CLASS SCENARIO (M)
Q: A & B are married, have ACP as their property regime, & live in Mindanao. A went to
Manila. B & children are all in Mindanao. B wanted to sell Lot X, but A disagreed with B.
B, nevertheless, as the husband, sold Lot X. What paragraph applies, the first or the
second?
A: Par. 2 applies. This paragraph talks about being (1) unable to participate, and (2)
incapacity of the other spouse. The one in Manila is unable to participate in the sale.
Therefore, the par. 1 deals with the situation where both are capacitated or able to
participate (this scenario is taken from the case involving the Spouses Antonio).
Q: Now we go to the case of Abalos. The husband is incapacitated. He is paralyzed from
the neck down. The wife said she will sell their car. Husband says OK. Wife sells the
property. Is the sale valid?
A: NO, it’s void. The only acceptable consent in the 2nd paragraph is WRITTEN CONSENT.
Q: Under the 2nd paragraph, can the wife automatically assumed sole powers of
administration?
A: NO. The spouse must FIRST go to court.
Q: What must the proceeding be, summary or not summary?
A: IT DEPENDS. There are two grounds in par. 2 – one is incapacity, and one is unable to
participate. Incapacitated is like what happened in Abalos – paralysis, or comatose. If
that’s the case, what must be filed is a petition for judicial guardianship. If it is “unable to
participate” because the other spouse cannot be found, or they are physically separated,
then that is the summary proceeding under the Family Code.
Effect of Alienation & Encumbrance
•
Any disposition by one spouse of community properties in ACP, completely
without the knowledge & consent of the other spouse, is void.
o Prior to FC, such a contract would be voidable only
o No prescriptive period as such contract is void
•
HOWEVER, there are cases when a 3rd party purchaser is protected by law
o Ex. If a TCT for a piece of land states that the person named therein is
single, when he is in fact married & the marriage is governed by ACP,
the sale of the said property by the registered owner to the 3rd person
(an innocent purchaser-for-value) who in good faith relies on the
official annotation, CANNOT be voided
§
Purchaser-for-value in good faith could also sell the property
to another without obtaining consent from anyone, unless
the buyer has been informed previously that the seller is in
fact married
§
Remedy of the aggrieved spouse: compel the erring spouse
to account for the proceeds of the sale
§
BUT if the 3rd party purchaser acts in bad faith, the contract
can be voided
CASE: Aggabao v. Parulan
In a situation where a seller’s capacity to sell is restricted by reason of marriage, the
buyers must show that they inquired not only into the title of the seller but also into the
seller’s capacity to sell. Buyers must observe two kinds of requisite diligence: (1) the
diligence in verifying the validity of the title covering the property; & (2) the diligence in
inquiring into the authority of the transacting spouse to sell conjugal property on behalf
of the other spouse.
Facts: When the buyers purchased the 2 properties in issue, they checked the
authenticity of the TCTs of the properties & inquired about the mortgage annotated in
one of the TCTs. They argue that their actions demonstrate that they have exercised due
diligence in the transaction, & it should thus be considered a valid transaction. When
they purchased the property, however, they dealt only with Ma. Elena, who had a SPA
allegedly signed by her husband Dionisio in her favor. Did the buyers exercise the
requisite amount of diligence to validate the transaction?
Held: No. Looking into the TCTs is not enough. The buyers should have also diligently
inquired into the authority of Ma. Elena to convey the property. The buyers knew fully well
that the law demanded the written consent of both the husband & the wife to convey the
Katrina Monica C. Gaw | Block C 2018| 71
property. Yet they failed to make inquiries as to Dionisio’s execution of the SPA
purportedly in favor of Ma. Elena. Had they made the appropriate inquiries, they would
have learned that the spouses had actually already been estranged from each other at
the time & were under de facto separation, & that they probably held conflicting interests
that would negate the agency between them. The omission to inquire indicated their not
being buyers in good faith.
SC ultimately held that the transaction was void & was not subject to future ratification.
Furthermore, any counter-offer by an agent could not validate the contract, for it had no
effect from the beginning.
CLASS DISCUSSION (M)
Q: A & B are married. A talked to X and asked X if X wanted to buy Lot W. X said he
wanted to. X then checked out the title of Lot W, where the title stated that “A & B were
actually married.” X bought the property anyway. B sought to have the case declared
void. Is B’s case to prosper? Is the sale valid?
A: It can be annulled. Though generally statements on titles are merely descriptions
which do not affect the validity of certificates of title, the phrase “married to B” is a red
flag to any buyer. Such buyer is no an innocent purchaser for value if he does not
investigate.
Q: What if A shows X a special power of attorney allegedly signed by B?
A: SC said this is not enough. X must go DEEP into the SPA.
Right of Wife or Husband to Nullify
•
As the case of Aggabao states, if there is no knowledge & no consent of one
spouse, the sale of ACP property is void.
•
BUT: If there is knowledge of a contract, but a spouse does not consent, the
contract entered into by the husband, whose decision initially prevails in case
of disagreement, is not void, but merely annullable at the instance of the wife.
o Wife has 5 years from the date of the contract implementing the
decision to go to court & seek remedies such as annulment
o Wife can nullify the entire contract & not just her share of the property
o BUT: If the wife ratifies the contract by any express or implied act, she
can no longer seek annulment even within the 5 years; it will be as if
the contract suffered from no legal infirmity as of the time it was
entered into
•
Husband can also seek relief if wife’s decision was implemented
o He can file an injunction suit to stop the implementation of the
contract for having been entered into by the wife also in his name
without authority (hence, the contract becomes unenforceable)
o OR nullify it on the grounds that it is against law & public policy
Effect of Incapacity of One of the Spouses on Administration
•
If the other spouse is absent, separated in fact, has abandoned the other, or
the consent is withheld – the other spouse may assume sole power of
administration through a summary proceeding (Art. 253, FC)
•
If the subject spouse is an “incompetent” who is in a comatose, a victim of
stroke, cerebrovascular accident, without motor or mental faculties, or other
such issues – the proper remedy is a judicial guardianship proceeding under
the Revised Rules of Court; NOT a summary proceeding under the FC
•
IN ANY EVENT: If the administrator spouse wants to sell real property, he must
observe the procedure for the sale of the ward’s estate required of judicial
guardians; as the administrator spouse in this case, he must perform the
duties of a guardian
o Spouse who assumes administration cannot dispose or encumber
property without judicial approval or written consent of the
incapacitated spouse
o Any contract or disposition, encumbrance or alienation shall be void
Continuing Offer & Perfection
•
Offer between 3rd party & the consenting spouse becomes continuing offer if
contract is void
•
Perfection of contract is obtained only through judicial authorization or the
written consent of the incapacitated spouse – the contract will only be effective
upon this written acceptance or court authorization
CASE: Flores v. Lindo
Subsequent execution of SPA by previously non-consenting spouse validates the
previously void contract.
Facts: The wife executed a mortgage with a 3rd party on conjugal property without the
consent of her husband. Subsequently, the wife executed a SPA in favor of her husband
(which the husband agreed to) with respect to said mortgage.
Held: While the mortgage was initially void for violating Art. 124 (Art. 96’s twin provision
on administration under CPG), the contract was a continuing offer. The subsequent
execution of the SPA with respect to the mortgage was the acceptance by the other
spouse that perfected the continuing offer as a binding contract between the parties,
making the mortgage a valid contract.
Art. 97. Either spouse may dispose by will of his or her interest in the community
property.
Disposition by Will
•
Will – an act whereby a person is permitted, with the formalities provided by
law, to control to a certain degree the disposition of his estate to take effect
after his death (Art. 738, CC)
•
Legitime – that part of the testator’s property which cannot be disposed of; the
law has reserved it for COMPULSORY heirs (Art. 886, CC)
•
A spouse can validly dispose of his specific separate properties in a will, as long
as it does not infringe on the legitime of compulsory heirs
o HOWEVER, as ACP is a co-ownership, the spouse can only dispose of
his interest in the ACP & not a specific property belonging to the ACP
•
A disposition made in a will of an interest in the community property cannot be
considered a waiver of such interest in the ACP (which is illegal, under Art. 89,
FC)
Art. 98. Neither spouse may donate any community property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate
donations from the community property for charity or on occasions of family rejoicing or
family distress.
Reason for Prohibiting Donations
Katrina Monica C. Gaw | Block C 2018| 72
•
•
•
•
Prohibition against gifts or donations of the community property without the
consent of the other is for the protection of the latter’s share from the
prodigality of a reckless or faithless spouse
Donations by both spouses or with consent of the other spouse are generally
valid – subject to revocation/reduction should such donations turn out to be
inofficious or if they infringe on the legitime or successional rights of another
compulsory heir (Art. 760-773, CC)
o HOWEVER, even with the consent of the other spouse, the donorspouse cannot make a substantial donation, whether direct or
indirect, to the consenting spouse during the marriage (Art. 87, FC)
By way of exception, either spouse may, without the consent of the other, make
moderate gifts from the community property for charity or on occasions of
family rejoicing or distress
o Moderation – depends on the financial situation of the spouses &
ACP
ALSO: Donations made by both spouses in favor of their common legitimate
children for the exclusive purpose or commencing or completing a professional
or vocational course or other activity for self-improvement are valid &
chargeable to ACP
Section 5. DISSOLUTION OF THE ABSOLUTE COMMUNITY REGIME
Art. 99. The absolute community terminates:
1) Upon the death of the other spouse
2) When there is a decree of legal separation
3) When the marriage is annulled or declared void
4) In case of judicial separation of property during the marriage under Arts. 134 to
138.
Dissolution of the Community Property
•
Termination of ACP does not necessarily mean termination of marriage
o BUT the termination of the marriage simultaneously results in the
dissolution of the ACP
•
After dissolution comes liquidation & partition
Death of Either Spouse
•
Civil personality is extinguished by death (Art. 42, CC)
o Effect of death on the rights & obligations of the deceased is
determined by law, by contract, & by will
•
Art. 103, FC: Upon termination of the marriage by death, the community
property shall be liquidated in the same proceeding for the settlement of the
estate of the deceased
Legal Separation Decree (JDLS)
•
One effect of the JDLS – dissolution & liquidation of ACP/CPG
o Offending spouse shall have no right to any share of the net profits
earned by the ACP/CPG, which shall be forfeited in accordance with
the provisions of Art. 63 (2) in relation to Art. 43 (2)
•
Upon reconciliation, they may agree to revive the property regime (Art. 67, FC)
Annulment Decree (JDAOM)
•
Art. 50, 2nd par.: Final judgment in JDAOM shall provide for:
o
The liquidation, partition, & distribution of the properties
o The custody & support of the common children
o The delivery of presumptive legitime
•
ACP will be dissolved & liquidated; but if either spouse acts in bad faith, his
share in the net profits of the ACP shall be forfeited in favor of the common
children, or of there be none, the children of the guilty spouse by a previous
marriage, or in default of children, the innocent spouse (Art. 43, par. 2 in
relation to Art. 50)
Nullity Decree
•
Generally, there is no ACP in a void marriage – property regime is under either
Art. 147 or 148
o Art. 147 – when the man & woman are capacitated to marry live
exclusively with each other without the benefit of marriage or under a
void marriage
§
Liquidated in accordance with co-ownership under the Civil
Code (NOT under Art. 102, FC dealing with ACP)
§
When only 1 of the spouses is in good faith, the share of the
party in bad faith in the co-ownership is forfeited in favor of
their common children & descendants, each vacant share
shall belong to the respective surviving descendants
•
In the absence of descendants, share will belong
to innocent party
o Art. 148 – when a void marriage does not fall under Art. 147
§
Liquidated using rules of co-ownership also
§
Forfeiture process described in Art. 147 shall apply also,
even if both parties are in bad faith
•
EXCEPTION: Art. 40 – in case a party fails to get a JDNOM for his 1st void
marriage before entering into a 2nd marriage, the 2nd marriage also becomes
void
o Art. 50 – In such a case, Art. 43 par. (2), (3), (4), & (5) shall apply
§
Art. 43 (2) – dissolution of ACP & forfeiture procedure in
case either spouse acts in bad faith
o Thus, in cases involving Art. 40, it is the ACP/CPG that is dissolved –
in Valdes v. RTC, this is explained as an acknowledgment of the fact
that void marriages are inexistent from the beginning & a JDNOM is
technically not necessary, though the law now provides for it as a
requisite.33
o
Judicial Separation of Property (JSOP)
§
May be voluntary or involuntary
o Voluntary – parties can file their agreement for separation of property
in court to obtain necessary court approval (Art. 136)
HOWEVER, in Nicdao Cariño v. Cariño, SC ruled that a VALID 2nd marriage celebrated without a JDNOM for the 1st marriage is
bigamous & the property regime will be co-ownership. Sta. Maria does NOT agree with this view.
33
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After approval, parties can file for a revival; once revived,
however, no voluntary SOP may be granted thereafter (Art.
141 [7])
Involuntary – must be for a sufficient cause & must have court
approval (listed in Art. 135, FC)
1) Spouse of the petitioner has been sentenced to a penalty
which carries with it the penalty of civil interdiction;
2) Spouse of the petitioner has been judicially declared an
absentee;
3) Loss of parental authority of the spouse of the petitioner has
been declared by the court;34
4) Spouse of the petitioner has abandoned the latter or failed
to comply with his obligations to the family as provided in
Art. 101;
5) Spouse granted the power of administration in the marriage
settlement has abused that power;
6) At the time of the petition, the spouses have been
separated in fact for at least 1 year & reconciliation is highly
improbable.
§
o
Liquidation After Affidavit of Reappearance
§
When a reappearing spouse or an interested person under Art. 41 files an
affidavit of reappearance to terminate the 2nd marriage
o Art. 43: Termination of 2nd marriage leads to dissolution of ACP/CPG
§
If either spouse contracts a 2nd marriage in bad faith, his
share of the net profits of the ACP/CPG will be forfeited in
favor of their common children, the children of the guilty
spouse by a previous marriage or if there be none, the
innocent spouse
Art. 100.35 The separation in fact between husband & wife shall not affect the regime of
ACP except that:
1) The spouse who leaves the conjugal home or refuses to live therein, without
just cause, shall not have the right to be supported;36
2) When the consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding;
3) In the absence of sufficient community property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse
present shall, upon proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other
spouse & use the fruits or proceeds thereof to satisfy the latter’s share.
Effect of Separation in Fact
•
Generally, ACP is not affected
o ACP will still be liable for all the obligations incurred by either spouse
for the benefit of the family
o Liable for all charges provided in Art. 94
34
35
36
For (1), (2), & (3), judicial decree is all that is needed
Art. 100 v. Art. 101 – Art. 100 is not really abandonment; it is just the refusal of one spouse to live in the same place as the other
Only one that is solely addressed to the leaving spouse
Separate property of each spouse is still liable when ACP is
insufficient for expenses incurred for the benefit of the family
EXCEPTIONS to general rule are in Art. 100
o
•
CLASS DISCUSSION (M)
GR: The separation of the spouses does not affect the community property. For example,
any salary earned by the separated spouse still pertains to the community property.
EXC: The listed terms in the provision.
No Support
•
Spouse who leaves the conjugal home without just cause will not be entitled to
support37
o Fault must always be PROVEN
o Mere fact of leaving, which cannot be presumed as culpable, when
there is no evidence of any fault or guilt on the part of the one who
separates, does not constitute a reason for annulling the right to
support
•
If spouse leaves for a valid cause, he shall still be supported by ACP
o ACP can be held liable for the support of the leaving spouse & for
expenses to enable the spouse to commence or complete a
professional or vocational course, or other activity for selfimprovement
o ACP is liable still for all debts & obligations incurred by the separating
spouse that redounds to the benefit of the family
•
If spouse who left is proven to be at fault or he left without just cause, the
erring spouse cannot be supported by the ACP even if he is a co-owner of the
same
o Drastic penalty for disrupting the unity of the family
o BUT ACP may still be held liable for expenses incurred which are for
the benefit of the family (esp. those enumerated in Art. 94)
CLASS SCENARIO (M)
Q: Let’s say A & B, married, & co-own a condominium. B left the family home without just
cause. B said that he just wants the rent of the condominium which anyway, he co-owns.
Can B have it?
A: NO, because of Art. 100 (1).
Court Authorization
•
When the consent of the other spouse is required by law, judicial authorization
shall be obtained in a summary manner (Art. 239-248, FC)
•
Any of the spouses, whether or not he was the one who left the home & even
without valid cause for having left, can seek judicial relief
•
Ex. Husband left home in bad faith & without valid cause. However, he needs
money to have funds to pay for the school matriculation fees of a common
child for the latter’s education, & the only way to get money is to sell the car
that belongs to the ACP. In this case, the husband can seek for judicial
authorization if the innocent spouse refuses to give her consent to the sale, or
if the consent cannot be obtained
Support is to be understood as it is defined in the Family Code; thus, anything necessary for sustenance & living, including food,
clothing, transportation, etc. will be withheld in this situation from the spouse who left.
37
Katrina Monica C. Gaw | Block C 2018| 74
As a general rule, any balancing out or reimbursement should be at the point of
liquidation. But if one of the spouses leaves the conjugal home, under Art. 100 (3), there
can already be reimbursement by the guilty spouse.
•
•
CLASS SCENARIO (M)
Q: X & Y are married. X borrowed money from C, a creditor, at P500K to pay the support
of the children. X left without just cause. Credit of P500K became due. The community
property was insufficient to pay the P500K. As between the person missing & the person
present, who will C sue?
A: The person present – thus, Y – because of solidary liability. Y will be liable on his or
her separate property. But Y can thereafter run after X. Though as a general rule,
reimbursement will be made only at the time of liquidation, in the special case in Art.
100 (3), Y will already get reimbursements by managing the separate property of X.
Art. 101. If a spouse without just cause abandons the other or fails to comply with his or
her obligations to the family, the aggrieved spouse may petition the court for
receivership, for JSOP, or for authority to be the sole administrator of the ACP, subject to
such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital,
parental, & property relations.
A spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without intention of returning. The spouse who has left the conjugal dwelling for
a period of 3 months or has failed within the same period to give any information on his
or her whereabouts shall be prima facie presumed to have no intention of returning to
the conjugal dwelling.
Abandonment
•
A departure by one spouse with avowed intent never to return, followed by
prolonged absence without just cause, & without providing in the least for the
family although able to do so
•
Absolute cessation of marital relations, duties, & rights with intention of
perpetual separation
•
Ex. The husband denies admission of the wife to their conjugal dwelling when
she returns from a trip, & refusal by the husband to give his wife financial
support. The physical separation of the parties & the refusal of the husband to
support his wife is sufficient to constitute abandonment as a ground for JSOP
•
Abandonment must not only be physical, but also moral & financial desertion –
courts are careful in appreciating the evidence on whether or not abandonment
really exists on the part of one of the spouses
o A judgment declaring JSOP when there is no true abandonment may
forever shut the door to reconciliation
•
Three things abandoned spouse may petition for:
1) JSOP
2) Receivership
3) Sole administration of ACP/CPG
•
Art. 101 & 128 provide a presumption – if the spouse leaves the conjugal
home for 3 months or has failed within the same period to give info on his or
her whereabouts, there is a presumption that said spouse has no intention to
return to the conjugal dwelling
Failure to Comply with Family Obligations
•
•
Reliefs in Art. 101 apply ONLY IF one of the spouses fail to comply with his
marital obligations to the family (marital, parental, property relationship)
Example: if a designated spouse abuses his administration, any of the reliefs
provided in Art. 101 can be availed of
o BUT mere refusal or failure of the administrator of the property to
inform the other spouse of the progress of the family business does
not constitute abuse
§
Not enough that the husband performs acts prejudicial to
the wife
§
Not sufficient that he performs acts injurious to the
partnership if it is just the result of insufficient or negligent
administration
o Abuse – willful & utter disregard of the interest of the partnership,
evidenced by repetition of deliberate acts &/or omissions prejudicial
to the latter
BUT TAKE NOTE: Arts. 101 & 128 use the words “fails to comply” – if the
negligence or inefficiency is not isolated, but so gross & constantly done
without any effort or only with a token effort to improve, reliefs in Art. 101 &
128 may be availed of by the aggrieved spouse
o IF it is shown that this failure to comply is the result of psychological
incapacity to perform the marital obligations, which existed at the
time of the marriage, the marriage can be considered void under Art.
36
If the abandonment without just cause is for more than 1 year, another remedy
is filing for legal separation under Art. 55 (10).
Section 6. LIQUIDATION OF THE ACP ASSETS & LIABILITIES
Art. 102. Upon dissolution of the absolute community regime, the ff. procedure shall
apply:
1) An inventory shall be prepared, listing separately all the properties of the
absolute community & the exclusive properties of each spouse;
2) The debts & obligations of the absolute community shall be paid out of its
assets. In case of insufficiency of said assets, the spouses shall be solidarily
liable for the unpaid balance with their separate properties in accordance with
the provisions of the 2nd par. of Art. 94;
3) Whatever remains of the exclusive property of the spouses shall thereafter be
delivered to each of them;
4) The net remainder of the properties of the absolute community shall constitute
its assets, which shall be divided equally between the husband & the wife,
unless a different proportion or division was agreed upon in the marriage
settlement, or unless there has been a voluntary waiver of such share as
provided in this Code. For purposes of computing the net profits subject to
forfeiture in accordance with Arts. 43 (2) & 63 (2), the said profits shall be the
increase in value between the market value of the community property at the
time of the celebration of the marriage & the market value at the time of its
dissolution;
5) The presumptive legitimes of the common children shall be delivered upon
partition, in accordance with Art. 51;
6) Unless otherwise agreed upon by the parties, in the partition of the properties,
the conjugal dwelling & the lot on which it is situated shall be adjudicated to
Katrina Monica C. Gaw | Block C 2018| 75
the spouse with whom the majority of the children choose to remain. Children
below the age of 7 are deemed to have chosen the mother, unless the court
has decided otherwise. In case there is no such majority, the court shall decide,
taking into consideration the best interests of the child.
o
o
Liquidation Procedure
•
Dissolution of the ACP occurs upon the happening of events listed in Art. 99
•
Generally, Art. 102 details the manner by which ACP shall be settled after or
during dissolution
o In a voluntary JSOP, the liquidation may instead be governed by the
agreement of the parties, so long as the court approved the same
Step 1: Inventory
•
All properties or assets at the time of the dissolution must be inventoried,
itemized & valued; includes:
o The ACP property
o The separate properties of the spouses
•
It is an error to determine the amount to be divided by adding up the profits
which were made each year by the community’s continuance & saying that the
result thereof is that amount
•
In the appraisal of the properties, it is the market value or, in default thereof,
the assessed value at the time of liquidation that must be taken into account
o NOT the purchase value
•
The process of liquidation may take some time; if the proceedings take a long
time & the values suffer some alterations, there is nothing to prevent a new
valuation when the last stage is reached (i.e. the actual division or partition) so
long as ALL the properties are newly appraised in reference to the same period
of time
o There is no law or doctrine that a prior appraisal is conclusive upon
the parties & the courts
Step 2: Payment of Debts
•
After inventory, all debts of ACP must be paid
o Includes obligations in Art. 94
o HOWEVER, under Art. 94 (9), payments made by the ACP due to the
insufficiency of the separate property of the debtor spouse for the ff.
are to be considered advances to be deducted from the share of the
debtor-spouse upon liquidation of the ACP:
1) Ante-nuptial debts which have not redounded to the benefit of
the family
2) The support of illegitimate of the debtor-spouse
3) Liabilities incurred by debtor spouse by reason of crime or quasidelict
•
In case of the insufficiency of the ACP, the spouses are solidarily liable for the
unpaid balance with their separate properties
Step 3: Delivery of Exclusive Properties
•
After payment of the debts of the ACP (including debts paid for by the exclusive
properties of the spouses), the next step is to deliver whatever remains of the
EXCLUSIVE PROPERTIES of the spouses to each of them; refers to:
Properties stipulated in the marriage settlement as separate (Art. 91)
Three exclusions referred to in Art. 92:
1) Property acquired during the marriage by gratuitous title by either
spouse, & the fruits & income thereof, unless it is expressly
provided by the donor, testator or grantor that they shall form
part of the ACP
2) Property for personal & exclusive use of either spouse, excluding
jewelry
3) Property acquired before the marriage by either spouse who has
legitimate descendants from a former marriage, & the fruits &
income of said property
Step 4: Partition of Net Assets
•
Equal division of the net assets
o Net assets = net remainder of the community property after
undertaking the 1st 3 steps
o Interest of the parties is limited to these net assets
•
Unless a liquidation has been made, it is IMPOSSIBLE to say whether or not
there will be a net remainder to be divided between the properties
•
Equal sharing shall not apply if a different proportion is agreed upon in the
marriage settlement UNLESS there is a voluntary waiver of such share as
provided in the FC (but waiver must be valid)
o If waiver is made during subsistence of ACP, such waiver is invalid or
ineffective (Art. 89, FC)
o Valid waivers only occur upon JSOP or after the marriage has been
dissolved or annulled
§
Must be contained in a public instrument (Art. 89, par. 2)
•
In case of JDAOM & JSOP, ACP shall be dissolved & liquidated
o If either spouse acted in bad faith, his share in the net profits of the
conjugal property shall be forfeited in favor of the common children,
the children of the guilty spouse by a previous marriage, or the
innocent spouse
o Computation: Increase in MV of the community property at the time of
the celebration of marriage & MV at the time of its dissolution
•
In case marriage is void & falls under Art. 147/148 & only 1 of the parties is in
good faith, share of the bad faith spouse38 shall be forfeited in favor of their
common children
o In case of default of, or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the respective
surviving descendants; in the absence of descendants, the innocent
party
o In all cases, forfeiture takes place upon the termination of the
cohabitation
•
In void marriages under Art. 40, 52 & 53, the forfeiture rule in case of
dissolution of ACP (not the rules on void marriages) shall apply
CLASS DISCUSSION (M)
Q: A & B are married. Marriage is declared void or annulled. There was no partition,
Note the difference: generally, when a marriage is declared void & a party is in bad faith, said party’s entire share in the coownership is forfeited, whereas in JDAOM/JSOP & Art. 40, only the share in the profits is forfeited (A)
38
Katrina Monica C. Gaw | Block C 2018| 76
liquidation, or distribution on the assets of the first marriage. A married X. What is their
property regime?
A: The property regime is co-ownership either under Art. 147 or 148. Under Art. 52, after
a JDNOM, the decree must be recorded & there must be liquidation, partition, &
distribution. Without these, the subsequent marriage is VOID.
Q: Where does complete separation of property apply?
A: When the marriage is terminated by DEATH & there is no liquidation, and then there is
subsequent marriage. In that case, it is a valid marriage unless there are other reasons
for its nullity, but the regime of the second marriage is complete separation of property.
Delivery of Presumptive Legitime
•
Delivered only after the finality of the JDAOM (Art. 45) or of the nullity of a
subsequent void marriage under Art. 40, 52, 53, as stated in Art. 51.
•
Delivery of presumptive legitime NEED NOT BE MADE in case of a JDNOM other
than a subsequent void marriage due to non-observance of Art. 40.
•
The children or their guardian, or the trustee of their property may ask for the
enforcement of the judgment in accordance with the last par. of Art. 51.
o Made via a summary judicial proceeding under Art. 253.
•
Value of presumptive legitime – computed as of the date of final judgment
o Shall be delivered in cash, property or sound securities, unless the
parties, by mutual agreement judicially approved, had already
provided for such matters (Art. 51)
CLASS DISCUSSION (M)
Art. 102 (5) is only about cases of annulment and subsequent void marriage; in some
void marriages, presumptive legitimes is not delivered.
Art. 103. Upon the termination of the marriage by death, the community property shall
be liquidated in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
community property either judicially or extra-judicially within 1 year from the death of the
deceased spouse. If upon the lapse of said period, no liquidation is made, any
disposition or encumbrance involving the community property of the terminated
marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with
the foregoing requirements, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.
Void Sales under Art. 103
•
A sale of community property is void automatically if:
1. It is sold without the liquidation of the community property after 1 year
following the death of one of the spouses
2. It is sold with liquidation of the community property, but while the
liquidation process is not yet complete
Liquidation Upon Death
•
Judicial partition (Sec. 2, Rule 73 of the Rules of Court): When a marriage is
dissolved by the death of a spouse, the community property shall be
inventoried, administered & liquidated, & the debts thereof paid, in the estate
or intestate proceedings of the deceased spouse
If both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either
Extrajudicial partition: If the decedent spouse left no will & no debts, & the
heirs are all of age or the minors are represented by their judicial legal or legal
representatives, duly authorized for the purpose, parties may, without securing
letters of administration from the court, divide the estate among themselves as
they see fit by means of a public instrument filed in the office of the register of
deeds
o Should they disagree, they may do so in an ordinary action for
partition
o If there is only 1 heir, he may adjudicate to himself the entire estate
by means of an affidavit filed in the office of the registrar of deeds
If upon the lapse of the 1-year period from the death of one of the spouses, no
liquidation is made, any disposition or encumbrance involving the community
property of the terminated marriage shall be void
o Reason: Upon death of a spouse, only the interest to the property &
not any physical & definite property is vested on the heirs
§
If there are creditors, the interest will only vest after the
payment of the debts of the decedent
§
It is only after liquidation & partition when specific
properties are definitely & physically determined that a sale
of such allotted property can be made
§
Hence, although after the death of the decedent, the heirs
can sell, waive, or alienate their INTEREST in the inherited
property, they cannot sell a specific property as the same
can only be determined after liquidation & partition
o
•
•
Nature of Interest of Heirs Prior to Liquidation
•
Art. 103 & 130 are similar (ACP & CPG); explanation here is valid for both
•
While the spouses have an interest in the ACP/CPG, the spouses cannot claim
any definite property at the time when the ACP/CPG is still in existence
•
Upon the death of one spouse, the right of the heirs vest
o The right of succession of a person are transmitted from the moment
of death
o Thus, if the deceased is survived by a spouse & compulsory heirs (like
the legitimate children), the ACP/CPG (which was dissolved by the
death of the spouse) evolves into a co-ownership between the
surviving spouse & the kids
o Example: If the surviving wife & three of her kids divide a property,
she gets ½ of the property & her kids get a share as well, so that:
§
Wife gets 5/8 = 1/2 + 1/8
§
Children get 1/8 each
o Each co-owner owns the whole, & over it he exercises rights of
dominion, but at the same time he is the owner of just a share
§
Until the division is effected, such share cannot be
concretely determined
•
As co-owner, the spouse or heirs can undertake any act of dominion over their
interest, but not over a specific concrete property
o Art. 493, CC: Each co-owner shall have the full ownership of his part &
the fruits & benefits pertaining thereto, & he may therefore alienate,
assign, or mortgage it, although the effect of the alienation or
Katrina Monica C. Gaw | Block C 2018| 77
•
•
•
mortgage shall be limited to the portion allotted to him in the division
upon the termination of the co-ownership
Prior to liquidation & partition, the interest of an heir in the estate of the
deceased person may be attached for purposes of execution, even if the estate
is in the process of settlement before the courts
o Rule 57, Rules of Civil Procedure: one of the properties that can be
attached for purposes of execution is the “interest of the party
against whom attachment is issued in property belonging to the
estate of the decedent, whether as heir, legatee, or devisee.”
o The right of participation in the estate & the lands thereof may be
attached & sold even if the value of the heir’s share is indeterminable
before the final liquidation of the estate
o HOWEVER, the attachment is subject to the administration of the
estate – administrator retains control over all the properties & will still
have the power to sell them, if necessary, for the payment of the
debts of the deceased
It is only AFTER LIQUIDATION that definable property can be claimed &
adjudged to them from the remainder of their properties after satisfaction of
ALL the obligations which the community properties must pay
o Specific, concrete properties CANNOT BE DONATED by any co-heir
prior to liquidation & partition
CASE: Anderson v. Perkins – The administrator of the deceased spouse sought
to sell certain properties allegedly owned by the deceased spouse. SC issued
an order stopping the sale, because the widow claims that the properties are
either part of the CPG or completely owned by herself, & at the time the sale
was made, no proceedings had yet been started to segregate the alleged
exclusive property from the mass of the estate left by the deceased. SC said
that the issue of ownership must first be resolved through liquidation or an
agreement reached between the widow & the administrator as to which
properties she would not mind being sold to preserve their value. At this point,
the sale is premature.
Claim Against the Estate
•
Upon the death of any of the spouses, the community property is
dissolved/terminated
o No complaint for the collection of indebtedness chargeable to the
community property may be brought against the surviving spouse
unless the surviving spouse has committed himself to be solidarily
liable for the claim against the community property
o If the claim is brought against the surviving spouse who did not
commit himself to solidary liability & a judgment is rendered directing
the surviving spouse to pay the obligation, the judgment is VOID
o All debts chargeable to community property which has already been
dissolved must be claimed & paid in the settlement of estate
proceedings of the deceased spouse
•
Reason: Upon the death of one spouse, powers of administration of the
surviving spouse ceases & is passed on to the administrator appointed by the
court having jurisdiction over the settlement of the estate
o Surviving spouse is not even a de facto administrator
o Conveyances made by him of any specific property prior to the
liquidation of the mass of the community property is VOID
Mandatory Complete Separation of Property
•
Art. 103 & 130’s last paragraphs are identical
o Applies when 1st marriage is terminated by one spouse’s death & not
due to JDNOM/JDAOM
o If the surviving spouse validly marries again without liquidation of the
properties of the previous marriage, the subsequent marriage is valid
but will be governed by complete separation of property automatically
§
This is the only exception to the rule that, if there is no
stipulation in a settlement, ACP governs the marriage
•
Intended to prevent confusion of the properties of the 1st & 2nd marriage
•
If prior to the 2nd marriage & without liquidation of the assets of the 1st
marriage, the parties execute a settlement, the settlement is void
Art. 104. Whenever the liquidation of the community properties of 2 or more marriages
contracted by the same person prior to the effectivity of the Family Code is carried out
simultaneously, the respective capital, fruits, & income of each community shall be
determined upon such proof as may be considered according to the rules of evidence. In
case of doubt as to which community the existing properties belong, the same shall be
divided between & among the different communities in proportion to the capital &
duration of each.
Simultaneous Liquidation
•
Refers to at least 2 marriages contracted prior to Aug. 3, 1988
•
Involves a situation where the community properties of each marriage are to be
liquidated simultaneously
•
Determination of the inventoried properties, including their fruits & income,
depends upon the proofs presented by the contending claimants in accordance
with the rules of evidence
•
In case of doubt, the properties will be divided between or among the different
communities in proportion to the CAPITAL & DURATION of each
•
5 foreseeable scenarios (assuming there are 2 marriages):
Scenario 1: 2 marriages are equal in
duration & assets of each marriage are
unknown
-Fair market value at time of liquidation
= P15,000
Scenario 2: If the durations are not
equal but the actual assets in each
particular marriage is unknown
-1st marriage lasted for 2 years; 2nd
marriage lasted for 3 years
-FMV of inventoried assets at the time
of liquidation = P15,000
Scenario 3: If the durations are
equal, they cancel each other out & the
prorating will be based on the amount
of the known assets in each particular
marriage
Solution
-Equal duration = divide P15,000 equally
between the heirs of each marriage
-P7,500 for the heirs of the 1st marriage &
P7,500 for the 2nd marriage
Solution
-Heirs of 1st marriage get a share of 2/5
(2 out of 5 years) of the P15,000 =
P6,000
-Heirs of 2nd marriage get a share of 3/5
(3 out of 5 years) of the P15,000 =
P9,000
Solution
-Heirs of 1st marriage get a share of 1/3
(P1,000 out of P3,000) of P15,000 =
P5,000
-Heirs of 2nd marriage get a share of 2/3
Katrina Monica C. Gaw | Block C 2018| 78
-FMV of inventoried assets = P15,000
-Value of the 1st marriage’s assets =
P1,000
-Value of the 2nd marriage’s assets =
P2,000
Scenario 4: Durations of each
marriage are different & the assets of
each marriage are equal & known
-FMV of inventoried assets = P15,000
-Each marriage has an identical P5,000
worth of assets each
-Duration of 1st marriage is 2 years
-Duration of 2nd marriage is 3 years
Scenario 5: Durations of each
marriage are different, the amount of
assets of each marriage are known, &
the amount of the assets to be
inventoried at the time of the
liquidation has been ascertained
-Duration of 1st marriage is 2 years,
with assets of P1,000
-Duration of 2nd marriage is 3 years,
with assets of P2,000
(P2,000 out of P3,000) of 15,000 =
P10,000
•
Solution
-Heirs of 1st marriage get 2/5 (2 out of 5
years) of P15,000 = P6,000
-Heirs of 2nd marriage get 3/5 (3 out of 5
years) = P9,000
*NOTE: Same effect as Scenario 2
Solution
-(Duration of marriage x Assets of
marriage), & then prorate this amount
-Heirs of 1st marriage =
(2 years x P1,000)/(5 years + P3,000) =
2/8 of P15,000 = P3,750
-Heirs of 2nd marriage =
(3 years x P2,000)/(5 years + P3,000) =
6/8 = P11,250
CHAPTER 4: CONJUGAL PARTNERSHIP OF GAINS
Section. 1. GENERAL PROVISIONS
Art. 105. In case the future spouses agree in the marriage settlements that the regime of
CPG shall govern their property relations during marriage, the provisions of this Chapter
shall be of suppletory application.
The provisions of this Chapter shall also apply to CPG already established between the
spouses before the effectivity of this Code without prejudice to the vested rights already
acquired in accordance with the Civil Code or other laws as provided in Art. 256.
Art. 106. Under the regime of CPG, the husband & wife place in a common fund the
proceeds, products, fruits, & income from their separate properties & those acquired by
either or both spouses through their efforts or by chance, & upon dissolution of the
marriage or of the partnership, the net gains or benefits obtained by both spouses shall
be divided equally between them, unless otherwise agreed in the marriage settlements.
•
•
•
•
•
•
1) Fruits of their separate properties
2) Income from their separate work or industry
Fruits of paraphernal properties (i.e., separate properties of the wife) form part
of the assets of the CPG & are subject to the payment of the debts & expenses
of the spouses, but not to the payment of the personal obligation of the other
spouse, unless it be proved that such obligations were productive of some
benefit to the family
“Effort” – an activity or undertaking which may or may not be rewarded
“Chance” – activities like gambling or betting
No unilateral declaration by one spouse can change the character of a CPG
o CPG is determined by law & not by the will of one of the spouses
Proof of acquisition of the property during the marriage suffices to render the
statutory presumption of conjugality
Dissolution of marriage – the net gains or benefits obtained shall be divided
equally between the spouses, unless they stipulated otherwise in their
settlement
If prior to the effectivity of the FC on Aug. 3, 1988, the spouses were already
under the CPG, the property regime will continue after that date, but will now be
governed by the provisions of the FC, UNLESS vested rights have already been
acquired under the CC or another law.
o There is no automatic conversion of the CPG from CPG to ACP upon
the effectivity of the FC.
CASE: Heirs of Protacio Go v. Servacio
If there are already rights vested upon the heirs under the Civil Code, then it is the rules
under the Civil Code that will govern to ensure no prejudice of vested rights.
Facts: The spouses married prior to the effectivity of the Family Code. The wife also died
prior to the enactment of the Family Code. The heirs sold some portions of the undivided
properties prior to the liquidation. Under the Family Code, this would have made the
entire sale void.
Held: SC held that, since the wife died prior to the enactment of the Family Code, the
provisions of the Civil Code will apply – the heirs already had a vested right on their
respective shares of the property left corresponding to the share of the deceased wife for
inheritance. And under the Civil Code, the sale is not totally void – the only rights
affected are those of the selling heirs with respect to their individual shares.
The remedy of the aggrieved heirs would be to file an action for partition, so that the
properties will finally be liquidated & distributed. The specific properties that will be
adjudicated corresponding to the selling heirs will be the ones retained by the buyer who,
while the case was pending, held the whole property as trustee.
Art. 107. The rules provided in Art. 88 & 89 shall also apply to CPG.
When CPG Commences (Art. 88)
•
At the precise moment the marriage ceremony is celebrated
•
What is considered is the hour & not the date of the marriage
Conjugal Partnership of Gains
•
Spouses place in a common fund the:
Prohibition of Waiver (Art. 89)
o
No waiver of rights, interests, shares & effects of the CPG can be made during
the marriage except upon JSOP
o To avoid undue pressure & influence upon the weaker spouse
Katrina Monica C. Gaw | Block C 2018| 79
Art. 108. The CPG shall be governed by the rules on the contract of partnership in all that
is not in conflict with what is expressly determined in this Chapter or by the spouses in
their marriage settlements.
Special Type of Partnership
•
ACP = rules of co-ownership apply in a suppletory manner
•
CPG = rules on partnership apply when not in conflict with what is expressly
determined in this Chapter or by the spouses in their settlements
•
In case of conflicts between CC & FC regarding CPG, the FC prevails
•
Some rules on partnership that could also apply in CPG:
o Art. 1799, CC: Any stipulation which excludes the partners from any
share of the profits & losses of the partnership is void
o Art. 1811, CC: A partner is a co-owner with his other partner of
specific partnership property
o Art. 1807, CC: Every partner must account to the partnership for any
benefit, & hold as trustee for it any profits derived by him without the
consent of the other partner from any transaction connected with the
formation, conduct, & liquidation of the partnership or from any use
by him or her of its property
o Art. 1818, CC: Without the consent of the other partner, a partner
cannot assign the partnership property in trust for creditors or on the
assignee’s promise to pay the debts of the partnership, confess a
judgment, enter into a compromise concerning a partnership claim or
liability, submit a partnership claim or liability to arbitration &
renounce a claim of the partnership. No act of a partner in
contravention of a restriction on authority shall bind the partnership
to persons having knowledge of the restriction.
o Art. 1822, CC: Where, by any wrongful act or omission of any partner
acting in the ordinary course of the business of the partnership or
with authority of his co-partner, loss or injury is caused to any person,
not being a partner in the partnership, or any penalty is incurred, the
partnership shall be liable therefor to the same extent as the partner
so acting or omitting to act.
CASE (Carandang v. Heirs of Quirino A. De Guzman)
On the application of rules of partnership on CPG
Facts: The right of one spouse to bring an action was assailed on the ground that the
other spouse should have also been made a party to the action.
Held: Art. 1811, CC states: “A partner is a co-owner with the other partners of specific
partnership property.” As the spouses are both co-owners of their conjugal properties,
each spouse may separately bring an action for the recovery thereof. Pursuant to Art.
487, CC, any one of the co-owners may bring an action, any kind of action, for the
recovery of the co-owned properties. Thus, only one of the co-owners, namely, the coowner who filed the suit for recovery, is an indispensible party thereto. The other coowners are not indispensible parties, as complete relief can be accorded in the suit even
without their participation. The suit cannot be dismissed because the other spouse was
not made a party to the action.
SECTION 2. EXCLUSIVE PROPERTY OF EACH SPOUSE
Art. 109. The ff. shall be the exclusive property of each spouse:
1) That which is brought to the marriage as his or her own;
2) That which each acquires during the marriage by gratuitous title;
3) That which is acquired by right of redemption, by barter, or by exchange with
property belonging to only one of the spouses; &
4) That which is purchased with exclusive money of the wife or of the husband.
Properties Brought Into the Marriage
•
CPG – all properties brought into the marriage by the parties belong to each of
them exclusively
o CPG does not produce the merger of the properties of each spouse
•
Spouses can exercise all rights of dominion over their own exclusive properties
o Said properties cannot be encumbered, alienated, nor disposed of by
the other spouse without the consent of the owner-spouse
o Nature of the property as separate shall remain unless the contrary is
provided by positive & convincing evidence
•
CASE: Del Mundo v. CA - There must be positive & convincing evidence that an
exclusive property is actually a part of the CPG; the admission or
acknowledgment of one person that the money used to purchase a property
came from the other spouse serves as evidence against the party making the
admission or his heirs.
o Facts: A man sold to Isidra a lot while Isidra was still single, sometime
in 1920. Years later, when Isidra was already married, a deed of sale
was executed by Isidra for the sale, already verbally made, in 1920.
Now, the heirs of Agripino, Isidra’s husband, claim that the property in
the deed of sale is part of the CPG of the spouses.
o Held: The property belongs exclusively to Isidra, absent any clear &
positive evidence that the property actually belongs to the CPG. This
is made clearer by the fact that Agripino had signed in the deed of
sale that Isidra had purchased the property using her own money &
that it was hers. This declaration is of the highest evidentiary value. At
this point, Agripino is in estoppel to deny his declaration. Also, where
a husband is made a party to an act of purchase of immovable
property made in the name of his wife, which recited that the
purchase was made with the paraphernal property (i.e., the wife’s
personal property), neither he nor his heirs can be permitted to go
behind the deed & contest the wife’s title; furthermore, any
declaration to the contrary made by the wife, or that of her child,
cannot anymore change the character of the property in question.
•
If the property is asserted as separate property & a title has been issued under
the name of the one asserting it, & acts have been undertaken clearly
indicating that the property is separately owned without prompt opposition
from the adverse party who knew of the acts of dominion, the latter party
cannot belatedly claim the conjugal nature of the property
•
If one of the spouses, previous to the marriage, purchases a property, but it is
only during the marriage the owner-spouse registers the property but together
with the other spouse as co-owner, said property is STILL the exclusive property
of the spouse who bought it by his exclusive funds prior to the marriage
o The registration during the marriage only creates a TRUST
o The property must be restored to the real owner-spouse upon
liquidation
Katrina Monica C. Gaw | Block C 2018| 80
•
•
CASE: Penanra v. Register of Deeds – Held: The title under consideration is a
free patent which is only granted to occupants for their continued occupation &
cultivation. Had the land been acquired by the joint efforts of the spouses, the
patent should have so indicated; but the patent grants it to the wife only. It is
thus presumed that the husband is not a co-owner & that the wife acquired it
when she was still single, making the property hers exclusively.
Exclusive properties brought into the marriage are principally used to:
o Pay personal debts not redounding to the benefit of the family,
contracted by the owner-spouse before the marriage
o Pay fines & indemnities imposed upon him
o Support the illegitimate children of the owner-spouse
o In the event that the assets of the CPG are insufficient to pay the
obligations of the partnership upon the liquidation of the same, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties (Art. 121 [2])
Property Acquired by Gratuitous Title
•
Anything received by each spouse from any source by way of an act of liberality
of the giver belongs exclusively to the spouse-recipient & not to the CPG; this
includes –
o Moderate gifts given by the other spouse during family occasions
o Honorariums as appreciation for services rendered
o Property acquired by way of succession (lucrative titles) – whether or
not acquired before or after marriage
•
BUT: Fruits & income of the property acquired by gratuitous title are considered
part of the CPG
o As opposed to ACP – fruits & income of gratuitous property are
considered exclusive property, unless the donor provides otherwise
(Art. 92 [1])
CLASS DISCUSSION (M)
Fruits of the CPG are ALWAYS conjugal, whether sourced from the personal or separate
property. This is different from ACP. In ACP, when something is donated to only 1 spouse
as separate property, that property’s fruits are also considered separate property. In
CPG, given the same scenario, the fruits will accrue to the community property.
Redemption, Barter & Exchange
•
Redemption – the right of a debtor whose real property has been foreclosed
upon & sold to reclaim said property if they are able to come up with the money
to repay the amount of the debt
o Property shall belong to the spouse who has the right to redeem,
regardless of whether or not he uses personal funds
o When conjugal funds are used to effect the redemption, the spouse
making the redemption shall be held liable to the CPG for
reimbursement of the amount used to redeem his exclusive property
§
CPG shall have a lien for the amount paid by it
o If there is no right of redemption belonging to either of the spouses,
whoever buys something using his own funds shall exclusively own
what was purchased
•
Right of redemption is not the same as the right of a successor-in-interest in
cases of execution of judgment
CASE: Rosete v. Provincial Sheriff of Zambales – When 4 parcels of
land owned by the CPG were executed upon & sold to answer for the
indemnity due to the heirs of a murder victim & 2 parcels of land were
redeemed by the convict’s wife using money given to her by her father
& the sheriff had executed in her favor the corresponding deed of
repurchase, it was held that the 2 parcels of land the wife redeemed
cannot be the subject of another execution to satisfy the balance of
the indemnity, because the wife did not acquire the property on
behalf of her husband, but by right of redemption as successor-ininterest; the property thus became the exclusive property of the wife
& cannot be the property of the judgment debtor anymore
In the absence of proof that the right of redemption pertained to any of the
spouses, the property involved, or the rights arising therefrom, must be
presumed to form part of the CPG
Exchange – Property acquired by exchange by one of the spouses using his
exclusive property shall remain separate property of said spouse
Barter – limited to goods
o If the separate property of a spouse is used as part of the purchase
price of a new property in addition to the conjugal funds spent for said
purchase, property is considered CONJUGAL.
o CASE: Abella de Diaz v. Erlander S. Galinger, Inc. – The wife had an
car prior to her marriage with her husband. The spouses then traded
in the old car for a new car, adding some money from the conjugal
funds as part of the purchase price of the new car. The new car is
considered conjugal, & not the separate property of the wife.
Provision on barter, exchange & redemption has no counterpart in ACP
o
•
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CLASS SCENARIO (M)
Q: A told B, “I have a rusty jeep. I want to exchange it for your Mercedez Benz.” B said
that this was an unfair deal. A offered an additional P5M of his salary to B on top of the
jeep. P5M is 9/10th of the price, while the rusty jeep is 1/10th of the price. A & B
exchanged. If A is married, is that Mercedez Benz conjugal or separate?
A: This is conjugal. According to Art. 109 (3), property will only be separate if it is bought
using the exclusive property of a spouse.
Property Purchased with the Exclusive Money of Either Spouse
•
Belongs to the spouse who purchased it
•
HOWEVER, when property is purchased using the exclusive money of one
spouse but the title is taken in the spouses’ joint names, the circumstances will
determine whether or not it shall result in a gift from the spouse whose money
was spent, or a trust in favor of such spouse
•
Also no counterpart provision in ACP
Art. 110. The spouses retain the ownership, possession, administration, & enjoyment of
their exclusive properties.
Either spouse may, during the marriage, transfer the administration of his or her
exclusive property to the other by means of a public instrument, which shall be recorded
in the registry of property in the place where the property is located.
Administration of Exclusive Properties
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Administration includes:
o Entering into contracts regarding the use of the property
o Engaging in litigation
o Collection of fruits, profits & income arising from the separate
property
Owner-spouse may transfer administration to other spouse
o Despite transfer, owner-spouse may still donate, encumber, or
otherwise alienate the property
Owner-spouse may also transfer administration to a stranger, even without
consent of the other spouse
CASE: Naguit v. CA – The exclusive property of the wife was sold by the sheriff
for the satisfaction of a court decision finding her husband liable for a personal
obligation. The wife filed a separate action to annul the sale, which was
permitted by SC, as the wife’s exclusive property was wrongfully levied upon. In
such a case, the wife is a stranger to the action wherein the writ of execution
was issued & is justified in bringing an independent action to vindicate her right
of ownership.
Art. 111. A spouse may mortgage, encumber, alienate, or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, & appear alone in court to
litigate with regard to the same.
Art. 112. The alienation of any exclusive property of a spouse administered by the other
automatically terminates the administration over such property & the proceeds of the
alienation shall be turned over to the owner-spouse.
Termination of Administration
•
Art. 127 – In cases where the spouses are separated in fact, the spouse
present shall, upon petition in a summary proceeding, be given authority to
administer or encumber any specific property of the other spouse & use the
fruits or proceeds to satisfy the latter’s share, in the event that the spouses are
held solidarily liable for a CPG obligation
o Judicial authority given to the present spouse to administer the
property serves as a limitation to Art. 112
§
Owner-spouse, who is a party to the summary proceeding,
cannot revoke the judicially approved administration of the
present spouse over his specific property by the mere
expediency of alienating said property
§
Even if the administrator-spouse or the court approves of a
sale made by the owner-spouse of said property, the
administrator-spouse or court can ask or order that a
portion of the proceeds there be made the payment of the
owner-spouse’s share in the solidary liability
Art. 113. Property donated or left by will to the spouses, jointly & with designation of
determinate shares, shall pertain to the donee-spouse as his or her own exclusive
property, & in the absence of designation, share & share alike,40 without prejudice to the
right of accretion when proper.
40
Art. 114. If the donations are onerous, the amount of the charges shall be borne by the
exclusive property of the donee-spouse, whenever they have been advanced by the CPG.
Property Donated or Left by Will to Spouses
•
A donor or testator may donate or provide in a will that a certain property will
jointly belong to the spouses
o The donor may likewise designate the respective share of each
spouse, &, in the absence thereof, share & share alike
•
Property of donation will be considered separate property of the spouses
Accretion in Case of Donation
•
Accretion – incorporation or addition of property to another property
•
General rule in joint donation – one cannot accept independently of his codonee, for there is no right of accretion unless expressly provided EXCEPT when
the joint donation is made in favor of husband & wife
o BUT: Donor can provide that there is no right of accretion between
even husband & wife if he so desires (Art. 753, CC)
•
Ex. A valid donation is given to the husband & wife jointly, where the donor
provided that ¼ of the property will go to the wife & ¾ will belong to the
husband
o Each of them shall own the portions given to them
o If the wife does not accept her part of the donation, accretion will set
in favor of her husband & he will own all of the property donated as
his separate property
o BUT if the donor provides in that there will be no right of accretion,
the husband will only get the ¾ granted to him in the donation
o If there is no designation of shares, the same rules will apply
•
HOWEVER, if the designation of donations is not of determinate shares but of
determinate properties, like a house or a car, accretion will not apply
CLASS DISCUSSION (M)
Q: A & B are strangers. X donated a mass of property to A & B. X gave ½ to A & ½ to B.
As logic, A will get his share, but B will not. What happens however if A & B are married?
A: If B rejects, A will get 100%. This is what the right to accretion entails.
Accretion in Case of Property Left by Will
•
For accretion to apply if the property is left by will, the husband & wife should
be called to the same inheritance, or to the same portion thereof, pro indiviso
(not divided) & one of the spouses thus called should either –
1. Die before the testator, or
2. Renounce the inheritance, or
3. Be incapacitated to receive it (Art. 1016, CC)
•
The words “one-half each” or “in equal shares” or any other which, though
designation an aliquot part, do not identify it by such description as shall make
each heir the exclusive owner of the determinate property, shall not exclude
the right of accretion (Art. 1017, CC)
o Such words will not mean that the inheritance is not pro indiviso
Refers to the equal division of a benefit from an estate; in this case, split equally between the spouses (A)
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Ex. If the husband & wife were validly given a property in a will which states that
¼ belongs to the wife & ¾ to the husband, they shall own their respective
shares separately
o Designation of this proportionate sharing does not make the properties
specific; inheritance is still pro indiviso
o If the husband dies before the testator, or renounces the inheritance or
is incapacitated to receive it, the wife will get the share of her husband
by right of accretion
o BUT if the testator gives to the husband & wife school buildings which
he owns, providing that the one in Manila is the husband’s & the one in
Cebu is the wife’s, the right of accretion will not apply, as the inheritance
is NOT pro indiviso
Payment Using Conjugal Funds
•
If conjugal funds are used to pay for debts attached to an onerous donation,
the donee-spouse will reimburse the CPG but the donated property remains the
exclusive property of the debtor spouse
•
Taxes & expenses for mere preservation of the separate property of either
spouse during the marriage is chargeable to the CPG (Art. 121[5])
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs, & similar
benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be
proper in each case.
Nature of Pensions, Annuities, Gratuities
•
Whether these are separate depend upon how they were obtained & the
circumstances of the case
•
Gratuity – an act of pure liberality, acquired by lucrative title (e.g., donation or
gift)
•
CASE: Mendoza v. Dizon – Any amount given by the government because of
previous work as provincial auditor is a gratuity & is separate property
•
BUT: An annuity is NOT a gratuity if the recipient is entitled to it as a matter of
right
o Ex. A law states that teachers, principals, & supervisors whose
positions are not clerical or casual & who, at the time of their
retirement, have rendered 25 years of government service, shall be
entitled to a retirement on annuity
§
If a teacher complies with all the above requisites, such
government teacher is entitled as a matter of right to said
annuity; it is, thus, not a gratuity
o Hence, annuities are part of the CPG
•
Pensions – compensation for services previously rendered for which full &
adequate compensation was not received at the time of the rendition of the
service
o It is pay withheld to induce long continued & faithful service
o Public benefit accrues in 2 ways:
§
Encouraging competent employees to remain in the service
Retiring from the service those who have become
incapacitated from performing the duties as well as they
might be performed by younger men
o Pensions are NOT considered gratuities or donations
o When there is no liberality on the part of the government, & the award
is composed of mere accumulated savings or deductions earned
during marriage, this would be a pension & thus is part of CPG
Insurance
o CASE: Martinez v. Moran – A husband took out an endowment life
insurance policy on his life payable as directed by will & the premiums
thereon were paid by communal funds. In his will, he made the
proceeds payable to his own estate. SC ruled that the proceeds were
community estate, ½ of which belong to the wife.
o CASE: In re Stan’s Estate – A testator, after marriage, took out an
insurance policy on which he paid the premiums of his salary
(remember that income & fruits made during marriage are part of the
CPG). The insurance money was held as community property, ½ of
which the wife was entitled to as survivor.
o CASE: BPI v. Posadas – This case occurred prior to the Family Code.
The life insurance taken out by the deceased spouse was made
payable to the estate of the deceased. However, SC ruled that the
proceeds of said insurance would still be considered conjugal
property if the life insurance policy is paid out of conjugal funds.
§
HOWEVER, If the policy were partly paid by conjugal funds &
party by separate funds, the proceeds are owned by the CPG
& the separate property in proportion to the amount of
contribution
§
BUT, under the FC, for a property to become the separate
property of one of the spouses, it must be EXCLUSIVELY
paid out from the separate funds of said spouse (Art.
109[4])
§
If the BPI case were decided under the FC, the proceeds
would be considered conjugal, but the spouse who paid
partly using his separate property will be reimbursed by the
CPG
o CASE: Berciles v. GSIS – Retirement premiums are conjugal, if there is
no proof that the premiums were paid from the exclusive funds of the
deceased spouse
o HOWEVER, if a beneficiary is named in the life insurance policy, the
proceeds of the same are to be paid to said beneficiary
o CASE: Vda. De Consanguera v. GSIS – GSIS retirement was held to be
primarily intended for the benefit of the employee in his old age. If the
employee reaches the age of retirement, he gets the retirement
benefits even to the exclusion of the beneficiary named in his
application for retirement insurance.
§
The beneficiary listed can only claim the proceeds of the
retirement if the employee dies before retirement
§
If the employee fails to state a beneficiary, the benefits will
accrue to his estate & will be given to his legal heirs in
accordance with the law (same as with life insurance in
general, when no beneficiary is named)
§
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Section. 3. CONJUGAL PARTNERSHIP PROPERTY
Art. 116. All property acquired during the marriage, whether the acquisition appears to
have been made, contracted, or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved.
When Presumption is Applicable
•
GENENERALLY, when the property is proven to have been acquired during the
marriage, it is presumed to be conjugal property regardless of whose name is
on the title
o Presumption must be overturned by clear, convincing evidence to the
contrary
o TCT in the Register of Deeds containing the name of just one person
is not enough IF it is proven that the purchase was made during the
marriage
•
CASE: Jocson v. CA – The party who invokes this presumption must first prove
that the property in controversy was acquired during the marriage
o PROOF of acquisition during the coverture is a condition sine qua non
for the operation of the presumption in favor of conjugal ownership
o If there is no showing as the WHEN the property in question was
acquired, the fact that the title is in the wife’s name only is
DETERMINATIVE
•
It has also been held that an inscription in a TCT that says, “X married to Y” is
merely descriptive of civil status & does not necessarily prove that the property
was acquired by the party prior to marriage; thus it is not proof that the
property is conjugal. It is also not evidence of co-ownership.
•
Registration of the property is also not proof of acquisition, because the
property could have been acquired while the owner was single, & registered
when he was already married
•
Example of when the conjugal presumption has been rebutted
o CASE: Laperal v. Katigbak – SC ruled that the conjugal presumption
had been rebutted even if the property was acquired during the
marriage because: (1) the deed was in the name of the wife, (2) at the
time of its purchase, the husband admittedly could not afford to buy
the land with his salary, (3) the wife believably stated that the
purchase price was furnished by her mother, & (5) it was established
that it was a practice of the wife’s parents to provide their children
with money to purchase realties for investment
•
When the property is registered in the names of both spouses, the presumption
that it is conjugal arises
o HOWEVER it can still be shown that it actually belongs to one spouse,
even if both their names appear in the title
The placing of both names is like the placing of the property in trust
by the owner-spouse to his spouse as a trustee
o THUS, it is but fair that on liquidation of the partnership, the trust
should be recognized & enforced, so that the real ownership of the
property may be established
§
Principle: A trustee who takes a Torrens title in his name
cannot repudiate the trust by relying on the registration –
one of the well-known limitations upon the finality of a
decree
§
In other words, if the spouse who is not the owner-spouse
survives the owner-spouse, he must justly designate as
exclusive the property of the owner-spouse, even if the title
contains both their names, as the same was merely held in
trust by the non-owner spouse.
For so long as the property is acquired during the marriage, presumption of
conjugal property applies even if they live separately
o Evidence must be clear to overcome presumption
o Controlling factor: the source of the money utilized in the purchase
CASE: Belcodero v. CA – The husband brought the property in installments &
thereafter left his family to bigamously marry another woman. When the
property was acquired, he registered it under the name of the other woman. SC
held that the property is part of the CPG of the 1st marriage, as the presumption
that it was paid exclusively from husband’s own property was not convincingly
rebutted.
CASE: Plata v. Yatco – The conveyance of the property of the wife to a 3rd
person & its reconvenyance to her several months afterward DOES NOT
TRANSFORM said property into a conjugal property, in the absence of proof
that the money in the reconvenyance came from conjugal funds.
Presumption of conjugality attaches when a property is proven to have been
acquired during marriage even if the property is registered under the name of
one or both of the spouses
o Proofs like tax declarations in the name of one of the spouses
obtained during marriage is not evidence of acquisition & hence is not
sufficient to give rise to the presumption that the property is conjugal
o
CLASS DISCUSSION (M)
For this provision, what is important is that the source of the fund involved is identified. It
is the source that will determine whether the amount is part of the CPG or not.
If the fund belongs to the spouse as a matter of RIGHT, it is conjugal property. If it is not
the spouse’s as a matter of right & it was received purely as a gratuity, then it is separate
property.
•
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Art. 117. The following are conjugal partnership properties:
1) Those acquired by onerous title during the marriage at the expense of the
common fund, whether the acquisition be for the partnership, or for only one of
the spouses;
2) Those obtained from the labor, industry, work, or profession of either or both of
the spouses;
3) The fruits, natural, industrial, or civil, due or received during the marriage from
the common property, as well as the net fruits from the exclusive property of
each spouse;
4) The share of either spouse on the hidden treasure which the law awards to the
finder or the owner of the property where the treasure is found;
5) Those acquired through occupation42 such as fishing or hunting;
6) Livestock existing upon the dissolution of the partnership in excess of the
number of each kind brought to the marriage by either spouse;
42
This refers to personal property, not real property.
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7)
Those which are acquired by chance, such as winning from gambling or betting.
However, such losses therefrom shall be borne exclusively by the loser-spouse.
General Rule
•
Generally, everything the spouses acquires during the marriage is CPG, unless
it is an advance to either spouse or it was bought with the exclusive property of
either spouse
When does Ownership Vest?
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Upon dissolution
•
When the thing/property is fully paid for
Acquisition by Onerous Title from Common Fund
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Whatever is acquired with money of the CPG belongs thereto & forms part
thereof
o This is true even if the acquisition be for the partnership or for only
one of the spouses
o Follows the logic that whatever is acquired exclusively using separate
property of one of the spouses belongs to said spouse
•
Damages granted by courts in favor of any of the spouses arising from a
contract solely financed by the CPG & breached by a 3rd party belongs to the
CPG
•
Damages arising from illegal detention of the exclusive property of any of the
spouses shall pertain to the CPG IF such detention deprived the partnership of
the use & earnings of the same
•
HOWEVER, where damages are awarded to one of the spouses as a result of
physical injuries inflicted by a 3rd party, the damages belong exclusively to the
injured spouse
o Where the wife was permanently deformed in a car accident due to
the negligence of the driver, the damages belong exclusively to her
Property Acquired through Industry, Labor, & Profession & Through Occupation
•
Difference between Art. 117(2) & (5)
o Art. 117(2) – Industry or work assures sure earnings
o Art. 117(5) – Occupations, like fishing or hunting, involve an element
of chance since one can be in the sea or forest for a long time without
catching anything; thus, the work is not always commensurate with
the result
Fruits & Earnings from Properties
•
Fruits of the common property are part of CPG
•
ALSO: Net fruits of exclusive property belong to CPG
o Net fruits = (Gross fruits - expenses of administration of said separate
property)
Hidden Treasure
•
Share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found is part of CPG
•
Hidden treasure – artifacts or objects which have undergone transformation
from their original raw state (e.g. earrings, necklaces, bracelets)
Art. 439, CC: Any hidden & unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of which does not appear
Gold nuggets, precious stones in their raw state, oil & the like are NOT
treasures
o
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Livestock
•
Livestock that is part of CPG = (The number of each kind brought into the
marriage – Those existing of said kind upon dissolution of the partnership)
•
If, at the start of the marriage, there are 40 cows, and as a result of marriage,
there are 60 cows, 20 cows will be part of the CPG
Chance
•
Income acquired by chance is part of CPG
•
Losses from gambling or betting shall be borne exclusively by the loser-spouse
o Spouse who engaged in the activity parted with a valuable
consideration
•
BUT where a third person gives a spouse a ticket for free, & the ticket won
P1M, such winning will be considered income &, therefore, shall belong to the
CPG
Art. 118. Property bought on installments paid partly from exclusive funds of either or
both spouse & partly from conjugal funds belongs to the buyer or buyers if full ownership
was vested before the marriage & to the conjugal partnership if such ownership was
vested during the marriage. In either case, any amount advanced by the partnership or
by either or both spouses shall be reimbursed by the owner or owners upon liquidation of
the partnership.
Installment Purchases
•
Situation: An installment was initiated prior to the marriage & ended during the
marriage, & paid partly by exclusive funds of one spouse & partly by the CPG
•
Ownership – determined by the time when the title is vested
o If the title vested before the marriage ceremony – belongs to the
spouse who bought it exclusively, subject to reimbursement to the
CPG by the owner-spouse
§
Belongs to properties exempted under Art. 109 (1)
o If the title vested after the marriage ceremony/during the marriage –
belongs to the CPG, subject to reimbursement by CPG to the spouse
who paid partially
•
Ex. The Friar Lands Act No. 1120 states that the title to the land passes to the
purchaser the moment the 1st installment is paid & a certificate of sale is
issued. Thus, if the wife bought a parcel of friar land & paid the 1st installment
prior to the marriage, the land is her exclusive property even if funds from the
CPG were used to pay for the land too, because the title was vested upon
payment of the 1st installment
•
CASE: Javellanos v. CA – A contract to sell or conditional sale of a parcel of land
by installment stated that the ownership to said property would vest only upon
the payment of the last installment. A man began paying for the parcel of land
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•
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in his 1st marriage using partly the CPG funds of the 1st marriage & partly his
own money, but the last installment was paid using funds from the 2nd
marriage. SC ruled that the parcel of land belonged to the CPG of the 2nd
marriage, though reimbursements should be given to the 1st marriage.
Law does not provide for a situation where the property was bought during the
marriage & the purchase was partly funded by the exclusive money of either or
both of the spouses & partly by the CPG; there are 2 views to this:
o View 1 – CASE: Javellana v. CA – when a property acquired during
marriage is partly paid by exclusive funds of a spouse & partly by the
CPG, the property belongs to both the partly-paying spouse & the CPG,
in proportion to the contributions of each
o View 2 – Sta. Maria view – Properties bought partly by exclusive funds
of either or both spouses & partly by the CPG during marriage should
belong to the CPG, subject to reimbursement to the partly-paying
spouse
§
Supported by Art. 109 (4), which provides that property
purchased with the exclusive property of one spouse is
separate property; hence if it is bought partly through CPG &
partly exclusively by one spouse, it cannot be said to belong
“exclusively” to the partly-paying spouse; therefore, the
property bought is to be considered conjugal
Reimbursement Upon Liquidation of Partnership
o Reimbursement for the partial payment will occur only upon
liquidation of the CPG
§
Reasoning: there can be no absolute sharing until after
liquidation
o It is only upon liquidation of the partnership that the share of each
spouse will be known
Art. 119. Whenever an amount or credit payment within a period of time belongs to one
of the spouses, the sums which may be collected during the marriage in partial
payments or by installments on the principal shall be the exclusive property of the
spouse. However, interests falling during the marriage on the principal shall belong to
the conjugal partnership.
Payment of Credit in Favor of Spouse
•
Where one spouse has a credit payable in installments or, in any case, a credit
which will be fully paid during the marriage – all payments made on the
principal during the marriage belongs exclusively to the spouse who owns the
credit
•
Interest on the principal falling due during marriage – belongs to the CPG
o Interest is considered a fruit derived from a particular property, & is
included under Art. 117 (3)
o When counting the interest which belongs to the CPG, consider only
the PAYMENTS made DURING marriage to determine the capital &
interest of said payments
Art. 120. The ownership of improvements, whether for utility or adornment, made on the
separate property of the spouses at the expense of the partnership or through the acts
or efforts of either or both spouses shall pertain to the conjugal partnership, or to the
original owner-spouse, subject to the ff. rules:
When the cost of improvement made by the conjugal partnership & any resulting
increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the owner-spouse
at the time of improvement; otherwise, said property shall be retained in ownership by
the owner-spouse, likewise subject to reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested upon reimbursement,
which shall be made at the time of the liquidation of the conjugal partnership.
Source of Funds for Improvements
•
When the value of the improvement & any resulting increase in value is
BIGGER than the value of the separate property at the time of the improvement
o The entire property of one of the spouses shall belong to the CPG
o BUT ownership shall vest only upon reimbursement at the time of the
liquidation of the CPG
§
Proof of the source of the funds & the values at the time of
construction are needed to determine the character of the
improvements
•
CASE: Ferrer v. Ferrer – A husband, prior to his death, sold his lot; there was
improvement made on said lot that was paid out of the conjugal funds. Later,
when the husband had already died, the wife sought reimbursement of her half
of the sale from the buyer of the property, using Art. 120 to support her claim.
SC ruled, however, that Art. 120 does not give a cause of action on the part of
a surviving spouse to claim from subsequent buyers of the property of the
deceased husband. Art. 120 only allows claims from the husband if the
husband is still the owner of the lot upon liquidation
•
CASE: Munoz v. Ramirez – A wife constructed a residential house on a lot she
owned. Her husband contributed some funds into the payment of the loan that
the wife took out to help pay for the house’s construction. SC held that the
house & lot belonged to the wife because the value of the lot the wife
contributed was more than the amount the husband contributed as payment.
The contract of mortgage she alone entered into with a 3rd person was thus
enforced.
Usufructuary
•
When an owner allows persons to reside in property he owns without paying
rent
o CPG gets usufructuary rights over properties in Art. 120 even when
the CPG is not yet the owner of said lot & improvements
•
Prior to reimbursement at the time of liquidation, the CPG may use both the
land & the improvement (owned by the spouses separately), but it does so not
as the owner, but as the usufruct
o The ownership of the land remains the same until the value of the
land is paid, & this payment can only be demanded upon the
liquidation of the partnership
•
Prior to liquidation, the owner-spouse still owns her separate property &,
therefore, the same cannot be levied upon to satisfy conjugal debts
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UNLESS the conjugal funds are insufficient to pay the debts, in which
case the separate property can be held solidarily liable
In Art. 120, ownership of the land is retained by the original owner until said
owner is paid/reimbursed the value of the lot; the mere construction of a
building over the land using common funds does not automatically convey the
ownership of the owner’s land to the CPG.
o The erection of a building is simply an exercise of the right of usufruct
pertaining to the CPG over the wife’s land
o Thus, the CPG will not pay rent – if it did, the CPG would essentially
just be paying itself
o If the building were leased to a 3rd person, instead of the building
being erected, the rent would go into the CPG
If no reimbursement is made upon liquidation, the ownership will be retained
by the owner-spouse, subject to reimbursement of the cost of improvement
If the property of the owner-spouse is worth more than the improvement, the
entire improvement will belong to the owner-spouse, subject to reimbursement
at the time of liquidation in favor of the CPG
o
•
•
•
Computation
•
Worth of building (improvement) – P50,000
•
Worth of land – P100,000
•
Total worth of building & lot – P150,000
•
The value of the house & lot increased due to the improvement by P30,000
•
Worth after increase in value – P180,000
•
Cost of the building + the increase in worth = P80,000
•
Cost of land (P100,000) > Cost of the building + increase in worth (P80,000)
o Thus, the property belongs to the owner-spouse
o This is a case of ordinary accession
o At the time of liquidation, the owner-spouse must reimburse the worth
of the building (P50,000) to the CPG
SEC. 4. CHARGES UPON & OBLIGATIONS OF THE CONJUGAL PARTNERSHIP
Art. 121. The conjugal partnership shall be liable for:
1) The support of the spouses, their common children, & the legitimate children of
either spouse; however, the support of illegitimate children shall be governed
by the provisions of this Code on Support;
2) All debts & obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the CPG, or by both spouses or by one
of them with the consent of the other;
3) Debts & obligations contracted by either spouse without the consent of the
other to the extent that the family may have been benefited;
4) All taxes, liens, charges, & expenses, including major or minor repairs upon the
conjugal partnership property;
5) All taxes & expenses for mere preservation made during the marriage upon the
separate property of either spouse;
6) Expenses to enable either spouse to commence or complete a profession,
vocational, or other activity for self-improvement;
7) Antenuptial debts of either spouse insofar as they redounded to the benefit of
the family;
8)
The value of what is donated or promised by both spouses in favor of their
common legitimate children for the sole purpose of commencing or completing
a professional or vocational course or other activity for self-improvement; &
9) Expenses of litigation between the spouses unless the suit is found to be
groundless.
If the CPG is insufficient to cover the foregoing liabilities, the spouses shall be solidarily
liable for the unpaid balance with their separate properties.
Charges & Obligations
•
Liabilities in the CPG enumerated in Art. 121 are largely the same as those
enumerated In Art. 94 for APC, except for the ff. –
o Support of illegitimate children
o Payment of fines
o Indemnities arising from crimes & quasi-delicts
•
Liabilities shall be chargeable only when CPG benefits from the same
•
Burden of proof that a debt was contracted for the benefit of the CPG lies with
the creditor
o Burden of proof to show the benefit to the CPG falls on the person
claiming that the transaction redounded to the benefit of the family
o Benefit must be a direct result of the obligation
o Cannot be a by-product or spin-off of the obligation or loan itself
•
Indirect benefits that might accrue to a husband who signs a surety or
guarantee for his employer-corporation (instead of on behalf of his family) does
not constitute a liability that redounds to the benefit of the family
o Even if this supposedly prolongs his employment or increases the
value of the shares of stock of some members of the family in the
corporation
o Creditors in such an instance cannot go against the CPG of the
husband to satisfy the surety agreement
•
Ex. Bare allegations of a creditor, without adducing evidence, that a loan to
finance housing obtained by one of the spouses redounds to the benefit of the
family cannot claim from the conjugal assets
•
CASE: Cobb-Perez v. Lantin – Debts incurred for a commercial enterprise for
gain or in the exercise of the industry or profession by the husband, as the
administrator of the CPG property & which contributes to the family, cannot be
deemed to be his exclusive debts
o CPG is liable for family business debts or for the exercise of
profession of one or both of the spouses
•
CASE: Ayala Investment & Dev’t Co v. CA – SC tackled the instances when the
debts incurred by one spouse alone are considered to benefit the CPG
1) If the husband himself is the principal obligor in the contract, as when
he directly received the money or services used in or for his business
or profession
o The contract falls within the term “obligations for the benefit
of the CPG”
o Benefit of the family must be apparent at the time of the
signing of the contract
o It must be shown from the very nature of the contract of
loans or services, the family stands to benefit from the loan
or services rendered
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2)
o Failure of business or profession or lack of success is
immaterial
o Family business obligations – considered to redound to the
benefit of the family
If the husband acted as the surety or the guarantor & the money or
services are given to another person or entity
o The contract cannot, by itself, be categorized as falling in
obligations for the benefit of the CPG
o Principal benefit is to debtor, not to family
o Proof must be presented to establish benefit redounding to CPG
o Mere signing as surety or guarantor does not make said person
automatically engaged in the profession of said suretyship or
guaranty, such that any loss arising from the same is chargeable
to CPG
§
HOWEVER, if both spouses sign the agreement, the CPG is
liable
Obligation of Husband & Wife
•
CPG is liable for all obligations contracted by the husband & wife
o Even debts made without consent of one of the spouses for the benefit of
the family is counted
o When a wife signs as a mere witness in a contract, it is already a sign of
implied consent to a contract of sale executed by her husband
•
If a creditor has a claim against spouses H & W of P1,000, CPG shall be liable if:
o Both H & W contracted it
o Only one of them contracted, but it benefited their family
•
In enforcing the claim against H & W, it is NOT correct for the creditor to consider
them jointly liable
o He cannot claim P500 from the separate property of H & P500 from the
separate property of W
o He cannot consider both H & W strictly solidarily liable such that he
collects the entire indebtedness from the separate property of either H/W
o Creditor MUST enforce the liability on the CPG, not on the separate
properties of H & W individually
§
Separate properties of H & W can only be held liable if the CPG is
insufficient to pay off the indebtedness
•
CASE: Carandong v. Heirs of Quirino A. De Guzman – When a claim is made
against spouses, they are being impleaded in their capacity as representatives of
the CPG & NOT as independent debtors. Hence, either of them may be sued for
the whole amount, similar to that of a solidary liability, but the amount is
chargeable against their CPG.
Solidary Obligation
o If CPG is insufficient to cover debts in Art. 121, creditors may demand payment
from either or any of the spouses with their respective separate properties
o The spouse who makes the payment may claim from his spouse only
the share which corresponds to him, with interest for the payment
already due
o If the payment is made before the debt is due, no interest in the
intervening period may be demanded
•
The separate properties of the husband & wife may also be solidarily liable if both
of them expressly made themselves liable in a solidary manner in any obligation
contracted by them for the benefit of the ACP/CPG
Insolvency of Spouses
•
So long as CPG subsists, its property cannot be among the assets taken
possession of by the assignee to satisfy the debts of an insolvent debtor, except
insofar as the debts redounded to the benefit of the family (Art. 2238, CC)
•
Procedure for insolvency proceedings
o An assignee is appointed who represents the creditors & the insolvent,
whether voluntary or involuntary
o Assignee takes all the properties of the insolvent & obtains title thereto
o He speedily converts the estate, real & personal, into money to settle the
debts
•
Civil Code: Husband is the administrator of the CPG
o 2nd sentence of Art. 2388, CC: If the husband is insolvent, the
administration of the CPG/ACP may be transferred to the wife or to a 3rd
person other than the assignee
•
Family Code: Husband & wife jointly administer; 2nd sentence of Art. 2388 still
applies
o The non-insolvent wife can be made the sole administrator of the ACP/CPG
*Art. 122. The payment of personal debts contracted by the husband or the wife before
or during the marriage shall not be charged to the conjugal partnership except insofar as
they have redounded to the benefit of the family.
Neither shall the fines & indemnities imposed upon them be charged to the partnership.
However, the payment of the personal debts contracted by either spouse before the
marriage, that of fines & indemnities imposed upon them, as well as 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, if the
spouse who is bound should have no exclusive property or it should be insufficient; but
at the time of the liquidation of the partnership, such spouse shall be charged for what
has been paid for the purposes above-mentioned.
CLASS DISCUSSION (M)
This is one of the only provisions which are different from ACP. Note the difference.
Debts, Fines, Pecuniary Indemnities Incurred Before or During Marriage
•
Any debts that redound to the benefit of the family are charged to CPG
o Includes medical & hospital expenses of the spouses
•
For 3rd par. of Art. 122 to apply, it must be shown that:
o The debts listed in Art. 121 are COVERED
o The debtor-spouse has insufficient or no exclusive properties to pay
the debt involved
o The one who invokes this provision (the creditor) must establish that
the requisites for its applicability are obtaining
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•
Fines & pecuniary indemnities imposed upon either spouse may be charged
against the CPG even before the liquidation of the partnership
o Payment must comply with Art. 122, but should not be applied with so
much rigidity as to negate the claims of aggrieved creditors
o SC – Art. 122’s wording shows that it is meant to be applied even
before the liquidation of the CPG
§
However, when it comes to civil fines that come with
criminal convictions, proofs required should not be of the
most exacting kind. Ordinary credibility shall suffice.
CLASS DISCUSSION (M)
What does “has been covered” cover? In one case, the debtor spouse, the criminal who
was already convicted, was proven to have no exclusive property to pay the civil
indemnity that he owed to the victim of the family. The family thus tried to execute the
judgment and get money from the CPG. The wife defended herself by saying that her son
still had to go to college, an amount which must be covered under Art. 121.
SC held the while the wife’s contention that Art. 121 debts had to be satisfied first was
correct, the word “covered” pertains to what the spouses would normally pay & not
extraordinary expenses. Otherwise, injustice would result to the victims of the families.43
Difference from the ACP Rules
•
CPG – liable for the personal debts, fines & indemnities of either spouse only:
o AFTER payment of all obligations in Art. 121 &
o When the separate property of the spouse is insufficient or inexistent
o In CPG, there is no duty to make advance payments for the crimes or
quasi-delict of a spouse
•
ACP – such liabilities may be charged against the community only
o In case the separate property of the spouse is insufficient
o Reason: In ACP, spouses may have less or no separate property
o In ACP, liabilities incurred by a spouse by reason of a crime or quasidelict are chargeable to the ACP in the absence or insufficiency of
exclusive property of the erring spouse
o CASE: Spouses Buado v. CA – For an obligation to be chargeable
against the CPG, there must have been a benefit that has redounded
to the CPG. This is unlike ACP, where liabilities incurred by spouses by
reason of crimes committed (evidently not redounding to the benefit
of the family) can be taken out of the ACP fund in the absence of
exclusive property of the debtor-spouse.
Personal Obligations of Spouses During the Marriage
•
Personal obligations which do not redound to the benefit of the family or do not
have the consent of the other spouse shall be borne solely by the debtorspouse & his separate property
•
Where a spouse incurs an obligation for his sole benefit, it cannot be charged
to the CPG
o Ex. If a husband leaves the conjugal home & his family, & incurs an
obligation at that time, he cannot claim that said obligation
redounded to the benefit of the family
43
Personal obligations incurred DURING marriage that do not redound to the
benefit of the family are not given by law the same advance-reimbursement
mechanism in Art. 122
o Art. 122, par. 3 only discusses personal obligations contracted by
either spouse BEFORE the marriage that do not redound to the
benefit of the family
o CPG thus has no duty to make a payment in advance for the liability
of the debtor-spouse which shall be reimbursed or paid at the time of
the liquidation
Computation
•
Justice Caguioa computation:
o Husband’s share – P50,000
o Wife’s share – P50,000
o Amount advanced for personal debt of husband – P10,000
o (Husband’s share – amount advanced) = P40,000
o The P10,000 will go to the partnership assets, which shall be divided
again between the spouses
o Caguioa states that considering the personal debts as partnership
assets will not change the computation
•
Take note of Art. 129
o After the inventory, amounts advanced by the CPG in payment of
personal debts & obligations of either spouse shall be credited to the
CPG as an asset thereof
o Only then can the net remainder be determined
o Despite these steps, the result will basically be the same; the only
difference would be the procedure (Justice Caguioa)
•
Art. 123. Whatever may be lost during the marriage in any game of chance, or in betting,
sweepstakes or any other kind of gambling whether permitted or prohibited by law, shall
be borne by the loser & shall not be charged to the CPG but any winnings therefrom shall
form part of the CPG.
Game of Chance
•
CPG must not be put to useless risk through highly speculative activities of any
kind, even those that are legal
•
Winnings – go to CPG (considered as income of the separate property/CPG)
•
Losses – charged to separate property of risking spouse
SEC. 5. ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY
Art. 124. The administration & enjoyment of the conjugal partnership shall belong to
both spouses jointly. In case of disagreement, 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.
In the event that one spouse is incapacitated or is otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole power of
administration. These powers do not include the powers of disposition or encumbrance
which must have the authority of the court or the written consent of the other spouse. In
the absence of such authority or consent, any disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the part of the
I can’t find this case.
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consenting spouse & the 3rd person, & may be perfected as a binding contract upon
acceptance by the other spouse or authorization by the court before the offer is withdraw
by either or both offerors.
Art. 125. Neither spouse may donate any conjugal partnership property without the
consent of the other. However, either spouse may, without the consent of the other
spouse, make moderate donations for charity or on the occasions of a family rejoicing or
family in distress.
Identity of Provisions
•
Art. 124 & 125 are exactly the same as Art. 96 & 98 for ACP
•
If the marriage settlement states that CPG will govern a marriage, but that the
sharing will not be equal upon liquidation, such unequal sharing will not affect
the joint administration of the spouses during the marriage on equal footing,
unless the contrary is also provided in the settlement (also true with ACP)
•
Conjugal properties belong equally to husband & wife
o Any alienation made by H without consent of W prejudices her insofar
as it includes a part or the whole of the W’s share & is, to that extent,
invalid
o However, during the marriage, the interest of each spouse is merely
inchoate – cannot be determined in definite & concrete specifications
until & after the liquidation of the same
§
In cases of disposition of property by H over the objection of
W, W is given the right to file a case to nullify or annul, as
the case may be, the entire contract as a whole
§
If H, without knowledge & consent of W, sells or encumbers
a conjugal property, such sale is VOID
§
If the sale is with knowledge but without consent, such sale
is ANNULLABLE at the instance of the W
•
W is given 5 years from the date of the contract
implementing the decision of H to institute the
case
§
In case it is an act of administration with knowledge but
without the consent of the W, the contract is merely
RESCISSIBLE, at the instance of the W
•
W is given 5 years from the implementation of the
contract
•
When the buyers know that they bought CPG property & bought it from the
husband without the wife’s consent, the sale is totally void
o However, the purchase price has to be returned to the buyers with
interest (principle of unjust enrichment)
•
If one spouse is incapacitated or unable to participate in the administration of
the CPG, same rule as ACP applies
o Any alienation or encumbrance by the capacitated spouse of any
ACP/CPG without consent of the incapacitated spouse or without
court approval is VOID
o If the “contract” is later approved by the court or by the spouse, there
is no retroactive effect – contract thereby perfected is an entirely
NEW transaction
CASE: Spouses Antonio v. CA
Facts: A husband sold ½ of his CPG property to a 3rd party while his wife was busy
working in Manila, without her consent.
Held: SC declared the sale void. Also, a subsequent but questionable “amicable
settlement” (which was really the wife signing that she would no longer trespass on the
property, rather than her agreeing to the sale) with the 3rd party could not have validated
or ratified the already void & illegal contract, one that could not be cured by any
subsequent act. The amicable settlement could not be considered the “continuing offer”
contemplated in the 2nd par. of Art. 124.
CASE: Flores v. Lindo
Subsequent execution of SPA by previously non-consenting spouse validates the
previously void contract.
Facts: The wife executed a mortgage with a 3rd party on conjugal property without the
consent of her husband. Subsequently, the wife executed a SPA in favor of her husband
(which the husband agreed to) with respect to said mortgage.
Held: While the mortgage was initially void for violating Art. 124, the contract was a
continuing offer. The subsequent execution of the SPA with respect to the mortgage was
the acceptance by the other spouse that perfected the continuing offer as a binding
contract between the parties, making the mortgage a valid contract.
Nature of Proceedings
•
Summary procedure (Title XI, FC) – applies to par. 1 of Art. 124
o Annulment of the husband’s decision in the administration &
enjoyment of the CPG in case the husband’s decision conflicts with
the wife’s
o Also, when the husband’s consent is needed to participate in the
administration, sell or encumber, but (1) he is incapacitated because
he is absent, (2) he & the wife are separated in fact, or (3) he has
abandoned the other, or (4) consent is withheld
•
Judicial Guardianship Proceeding (Rule 93, 1964 Revised Rules of Court)
o When the spouse is not merely incapacitated, but is INCOMPETENT
§
Comatose, suffering a stroke, without motor or mental
faculties
§
In such a case, the proper remedy is the appointment of a
judicial guardian of the person, estate or both of the
incompetent
§
Even if the wife becomes the sole administrator, she still
must also exercise the powers & duties of a guardian
§
If a spouse desires to sell real property as such
administrator of the CPG, he must observe the Rules for the
sale of the ward’s estate required of judicial guardians
•
Non-compliance will render any sale VOID
§
If the other spouse is an incompetent, the administrator
spouse cannot obtain permission from the court to sell CPG
property through a summary proceeding; such sale would be
VOID
SEC. 6. DISSOLUTION OF THE CPG
Art. 126. The conjugal partnership terminates:
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1)
2)
3)
4)
Upon the death of either spouse;
When there is a decree of legal separation;
When the marriage is annulled or is declared void; or
In case of judicial separation of property during the marriage under Art. 134 &
138.
Termination of the CPG
•
Art. 126 = same as Art. 99 for ACP
•
Rules of partnership apply only in a suppletory character EXCEPT upon
dissolution of the CPG – at this point, the rules of partnership will not apply
•
Upon death, the ACP/CPG will terminate for the ff. reasons:
1) When the marriage is dissolved, the cause that brought about the
community ceases, for the principles of an ordinary partnership are not
applicable to this community, which is governed by special rules
2) In the absence of reasons that induced the legislator to establish it, the
provisions of law governing the subject should cease to have any effect for
the community of property is admissible & proper insofar as it conforms to
unity of life, which terminates upon the death of either partner
3) The partnership is created by law & has no object; it is unsafe to extend it
on the pretext of tacit consent
•
Since the rules of partnership do not apply upon the dissolution of the CPG –
o Whatever is acquired by the surviving spouse on the dissolution of the
partnership by death or presumption of death, or for other reasons,
whether the acquisition was made by his labor, or industry, or
whether by onerous or lucrative title, forms part of his capital already
o Heirs or estate of his spouse can no longer claim a share of the
property of the other spouse after the dissolution of the CPG
Art. 127. The separation in fact between the husband & wife shall not affect the regime
of conjugal partnership, except that:
1) The spouse who leaves the conjugal home or refuses to live therein, without just
cause, shall not have the right to be supported;
2) When the consent of one spouse to any transaction of the other is required by law,
judicial authorization shall be obtained in a summary proceeding;
3) In the absence of sufficient conjugal partnership property, the separate property of
both spouses shall be solidarily liable for the support of the family. The spouse
present shall, upon petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the other spouse & use
the fruits & income thereof to satisfy the latter’s share.
Effect of Separation
•
Art. 127 – same as Art. 100 for ACP
•
Art. 127 (2) – When the consent of one spouse is required by law, judicial
authorization shall be obtained in a summary proceeding
o Immaterial whether or not the party is guilty; the one who unjustifiably
separates himself may avail of this remedy provided by law
•
Art. 127 (3) – Any debt incurred to support the family is a liability to the CPG
o Even the guilty spouse who left the home without justifiable reasons
can charge the CPG for debts incurred for the benefit of the family
o Separation in fact does not justify the non-liability of the CPG
Art. 128. If a spouse without just cause abandons the other or fails to comply with his or
her obligations to the family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for authority to be the sole
administrator of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital,
parental, or property relations.
A spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without intention of returning. The spouse who has left the conjugal dwelling for
a period of 3 months or has failed within the same period to give any information as to
his or her whereabouts shall be prima facie presumed to have no intention of returning
to the conjugal dwelling.
Abandonment
•
Art. 128 is exactly the same as Art. 101 for ACP; same explanations also apply
•
Gives the aggrieved spouse, who is the co-owner of the properties, the right to
bring an action to protect his interest & his rights EVEN BEFORE the liquidation
or dissolution of the CPG/ACP
Section. 7. LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS &
LIABILITIES
Art. 129. Upon the dissolution of the conjugal partnership regime, the ff. procedure shall
apply:
1) An inventory shall be prepared, listing separately all the properties of the CPG &
the exclusive properties of each spouse;
2) Amounts advanced by the CPG in payment of personal debts & obligations of
either spouse shall be credited to the conjugal partnership as an asset;
3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the
acquisition of property or for the value of his or her exclusive property, the
ownership of which has been vested by law in the CPG;
4) The debts & obligations of the conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency in said assets, the spouses shall be
solidarily liable for the unpaid balance with their separate properties, in
accordance with the provisions of Art. 121, par. 2;
5) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them;
6) Unless the owner had been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to said spouse from the
conjugal funds, if any;
7) The net remainder of the conjugal partnership properties shall constitute the
profits, which shall be divided equally between the husband & wife, unless a
different proportion or division was agreed upon in the marriage settlements or
unless there has been voluntary waiver or forfeiture of such share as provided
in this Code;
8) The presumptive legitimes of the common children shall be delivered upon
partition in accordance with Art. 51;
9) In the partition of the properties, the conjugal dwelling & the lot on which it is
situated shall, unless otherwise agreed upon by the parties, be adjudicated to
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the spouse with whom the majority of the common children choose to remain.
Children below the age of 7 are deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no such majority, the court shall
decide, taking into consideration the best interest of the children.
Liquidation of Partnership
•
3 ways to liquidate a CPG:
1) Extrajudicial settlement
2) Ordinary action of partition
3) Intestate or testate proceedings
Step 1: Inventory
•
All properties or assets at the time of the dissolution must be inventoried,
itemized & valued; includes:
o The CPG property
o The separate properties of the spouses
•
Art. 132, Rules of Court on the administration of the estate of deceased
persons shall be observed in the appraisal & sale of property of the CPG
•
It is an error to determine the amount to be divided by adding up the profits
which were made each year by the community’s continuance & saying that the
result thereof is that amount
•
In the appraisal of the properties, it is the market value or, in default thereof,
the assessed value at the time of liquidation that must be taken into account
o NOT the purchase value
•
The process of liquidation may take some time; if the proceedings take a long
time & the values suffer some alterations, there is nothing to prevent a new
valuation when the last stage is reached (i.e., the actual division or partition) so
long as ALL the properties are newly appraised in reference to the same period
of time
o There is no law or doctrine that a prior appraisal is conclusive upon
the parties & the courts
Step 2: Credits in Favor of Partnership
•
Any amount advanced during the marriage by the CPG in favor of any of the
spouses shall be credited to the CPG as an asset
o Ex. Support of illegitimate child of either spouse, personal debts
contracted before the marriage which did not redound to the benefit
of the family, payment of fines or pecuniary indemnities for which the
spouse was made liable & which did not redound to the benefit of the
family, are all considered as assets (Art. 122)
•
Property bought by installments under Art. 118, where conjugal funds &
separate funds were both used & where the property was owned separately by
either of the spouses
o The amount of conjugal funds used to complete the purchase is also
an asset to the CPG
•
Advances made by the CPG involving charges relative to onerous donations
made in favor of a particular spouse (Art. 114)
Step 3: Reimbursement in Favor of Partnership
•
•
•
If separate funds of any of the spouses are used to buy conjugal property, the
amount shall be reimbursed to the spouse
CPG should also reimburse the spouse for the value of exclusive properties, the
ownership of which is vested by law in the CPG (ex. Art. 120)
CASE: In re: Padilla – A building separately owned by the wife was torn down to
make way for the construction of a new building, which was owned by the CPG.
SC ruled that the CPG should pay the spouse for the value of the torn building
at the time of liquidating, as the tearing down benefited the partnership
o This is true even if the building torn down supposedly no longer has
any value; its value comes with the fact that the new building was
made because the old building was torn down
Step 4: Payment of Debts & Obligations of Partnership
•
Debts & obligations of CPG (like those in Art. 121) should be paid
•
Remember that under Art. 129, the reimbursement of the spouses for
advances they made in favor of the CPG or for the value of their separate
property which, by law, vested to the CPG, must be paid first before the
payment of the debts in Art. 121
•
Construction of tombstones or mausoleums & other funeral expenses are
chargeable to CPG if deceased is one of the spouses (Art. 310, CC)
•
In case of insufficiency of said assets, spouses shall be solidarily liable for the
unpaid balance with their separate properties
Step 5: Delivery of Separate Properties
•
Exclusive properties owned by either of the spouses should be returned
Step 6: Division of Net Remainder
•
Net remainder = the profits of the CPG property
o Until a liquidation has been made, it is impossible to say Q/N there
will be a net remainder to divide between the parties
•
Sharing = equal, unless a different proportion is agreed upon in the marriage
settlement OR a voluntary, valid waiver of such share
o A valid waiver can only be made upon a JSOP or after the marriage
has been dissolved or annulled; must also be contained in a public
instrument
•
How bad faith affects share of the bad faith spouse
o Annulment & void under Art. 40 – forfeits his share in the net profits
of the CPG in favor of the common children, the children of the guilty
spouse by a previous marriage, or the innocent spouse
§
Net profits = (MV of the community property at the time of
dissolution – MV at the time of celebration)
o Legal Separation – forfeits his share in the net profits
o Void marriage, Art. 147/148 & only 1 party is in good faith – share of
the bad faith spouse shall be forfeited in favor of their common
children.
§
In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall
belong to the respective surviving descendants
§
In the absence of descendants, the share will belong to the
innocent party
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o
In all cases: Forfeiture takes place upon termination of cohabitation
CASE: Quiao v. Quaio
Lesson #1: If there are no separate properties to be inventoried or included in the
property relations of the parties in the ACP/CPG, “net share of the net profit” as textually
provided in the law actually means ALL the fruits of the separate properties of the
spouses & the products of their labor & industry.
Lesson #2: If there is no separate property to be included in the inventories of the
ACP/CPG upon liquidation or dissolution, “net share of the net profit” means ALL the
shares or properties. Nothing will be left to the bad faith spouse.
Lesson #3: The spouses do not have a vested right on their share of the ACP/CPG,
because if they are in bad faith, their share may still be forfeited.
Facts: Rita filed a case of legal separation against Brigido, which was granted. Brigido
was declared in bad faith. When their assets were inventoried, it was discovered that
they had no separate properties. In the process of liquidating their assets, a motion for
clarification for the meaning of the term “NET PROFIT EARNED” was filed by Brigido. RTC
held that this meant “the remainder of the properties of the parties after deducting the
separate properties of each of the spouses & the debts.” Everyone remained confused.
Held: Since both husband & wife have no separate properties, there is nothing to return
to the spouses aside from their share in the CPG. Since, however, Brigido was in bad
faith, nothing will be returned to him & he is not entitled to any property. The same
conclusion will be reached even if the regime was ACP.
SC also distinguished between what is returned to the spouses upon dissolution in the
ACP versus the CPG property regime, if there are separate properties in either case:
What spouses separately
put into the marriage
What spouses get back
after the marriage
ACP
All their property, from
before or after the
marriage, except those
which are excepted under
the law
Whatever is left of the
separate properties will be
returned to the spouses in
equal amounts, after
deducting debts, etc.
CPG
1. Fruits of their separate
property
2. Income from their work or
industry
1. All net gains or benefits
obtained indiscriminately by
either spouse during the
marriage will be divided
equally
2.If the CPG is enriched at
the expense of the separate
properties of either spouse,
said spouse will be restituted
the value of the property
Step 7: Delivery of the Presumptive Legitime
•
Delivery of presumptive legitime can be done only after a final judgment
•
Computation of value of presumptive legitime & who can ask for delivery are
under Art. 51 of FC
•
According to Art. 51, delivery is needed only in cases of:
1) JD of annulment of marriage under Art. 45
2) JD of nullity of marriage falling under Art. 40, 52, 53
•
Not delivered in cases of:
1) JD of legal separation
•
•
2) Nullity of marriage not as a result of Art. 40, 52, 53
Delivery shall also be provided for in the final judgment
o Children, their guardians, or the trustee of their property may ask for
the enforcement of the judgment (Art. 51, last par.)
Value of presumptive legitime of all the children is computed as of the date of
the final judgment of the trial court, & shall be delivered in cash, property or
sound securities, unless the parties, by mutual agreement judicially approved,
have already provided for such matters (Art. 51)
Conjugal Dwelling
•
Unless otherwise agreed upon by the parties, in the partition of properties, the
conjugal dwelling & lot is adjudicated to the spouse with whom the majority of
the children choose to reside
•
Children under the age of 7 are automatically presumed to have chosen their
mother, unless the court decides otherwise
•
If there is no majority, the court shall decide, taking into consideration the best
interests of the children
Art. 130. Upon the termination of the marriage by death, the conjugal partnership
property shall be liquidated in the same proceeding for the settlement of the estate of
the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
conjugal partnership property either judicially or extra-judicially within 1 year from the
death of the deceased spouse. If upon the lapse of the 1-year period no liquidation is
made, any disposition or encumbrance involving the conjugal partnership property of the
terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with
the foregoing requirements, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.
Identity of Provisions
•
Art. 130 – Same as Art. 103 of ACP; explanations apply
•
CASE: Estonia v. CA – When the TCT states the owner as married to someone
but there is no proof that the property was acquired during the marriage, the
property shall be considered as owned by the person stated in the certificate
despite a description that he is married to someone. It shall not be conjugal
o Statement that the owner is married in a TCT does not give rise to the
presumption of conjugality
•
In case of the death of the owner, this exclusive property shall be co-owned by
the surviving spouse & his heirs
o Creditors of the surviving spouse can only attach the share or interest
of the surviving spouse to the co-ownership & not the whole estate of
the dead (that would prejudice other heirs)
Art. 131. Whenever the liquidation of the conjugal partnership properties of 2 or more
marriages contracted by the same person prior to the effectivity of this Code is carried
out simultaneously, the respective capital, fruits & income of each partnership shall be
determined upon such proof as may be considered according to the rules of evidence. In
case of doubt as to which partnership the existing properties belong, the same shall be
divided between & among the different partnerships in proportion to the capital &
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2)
duration of each.
Simultaneous Liquidation of CPG Constituted Prior to FC
•
Basically the same application as that of Art. 104
•
Refers to at least 2 marriages contracted prior to Aug. 3, 1988
•
Involves a situation where the community properties of each marriage are to be
liquidated simultaneously
•
Determination of the inventoried properties, including their fruits & income,
depends upon the proofs presented by the contending claimants in accordance
with the rules of evidence
•
In case of doubt, the properties will be divided between or among the different
communities in proportion to the CAPITAL & DURATION of each
o CASE: Dael v. IAC – If 1st marriage lasted 14 years & the 2nd lasted
15, the share of the heirs of the 1st marriage in the inventory listed is
14/29, while those in the 2nd get 15/29. Excluded are any properties
that definitely belong to the estate of the deceased spouse, as
inheritance from his parents (in other words, any exclusive property of
either spouse is excluded)
•
If there are 2 or more conjugal partnership properties of 2 marriages w/c have
not yet been liquidated, the subsequent partnership cannot be liquidated w/o
liquidating the prior one
o The reason is that the heirs of the 1st marriage could be prejudiced by
the dissolution of the CPG of the the 2nd marriage w/o the 1st,
because the division, in case of doubt, should be based on the capital
& duration — thus the children of the 1st marriage should also be
notified of the proceedings
Art. 132. The Rules of Court on the administration of estates of deceased persons shall
be observed in the appraisal & sale of property of the conjugal partnership, & other
matters which are not expressly determined in this Chapter.
Art. 133. From the common mass of property support shall be given to the surviving
spouse & to the children during the liquidation of the inventoried property & until what
belongs to them is delivered; but from this shall be deducted the amount received for
support which exceeds the fruits or rents pertaining to them.
Advancement
•
Once a spouse dies, the surviving spouse & the children become co-heirs of the
estate left by the deceased
o They are allowed, during liquidation, to get certain amounts to
support themselves, as they technically own it
o Amount must at least be equivalent to the fruits or rent arising from
the share which they will eventually obtain after liquidation
§
If what they get exceeds the fruits of their share, the excess
shall be taken from the part of the property which has been
given to them as their separate property after liquidation
o Advance of the common mass shall be paid:
1) First, by the fruits of their respective shares
•
•
•
If what they got exceeded the fruits of their share, the excess
shall be taken from the part of the property which has been given
to them as their separate property after liquidation
Allowances for support to the children & the spouse of the deceased pending
liquidation are subject to collation & deductible from their share of the
inheritance insofar as they exceed what they are entitled to as fruits or income
ONLY the surviving spouse & the children are entitled to get the allowance for
support In Art. 133
o Other heirs, like grandchildren, are not included
o Even if the children are already of age, gainfully employed or married,
they may still enjoy these rights
SC has held that the expense of the maintenance & support of a widow at the
time when the CPG had not yet been liquidated was properly borne by the
administrator of the deceased husband, but the expenditure was in the nature
of mere advancement, to be deducted from the share pertaining to the heirs of
the widow insofar as it exceeds what they are entitled to as fruits or income
o There must be a showing of the source from which the funds used for
the maintenance & support of the widow were derived
o If the amount is derived from the net income of her share, such
amount should not be charged against her share
CHAPTER 5. SEPARATION OF PROPERTY OF THE SPOUSE &
ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE
MARRIAGE
Art. 134. In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take place except
by judicial order. Such judicial separation of property may either be voluntary or for
sufficient cause.
Judicial Separation of Property (JSOP)
•
If the husband & wife do not execute a valid marriage settlement before their
marriage, they cannot, after the marriage, alter their property regime to a
separation of property regime without judicial approval
o The same even if separation is by agreement of the parties (Art. 136)
or for sufficient cause (Art. 135)
•
In most cases, JSOP is sought because the spouses have already separated
o In granting a JSOP, Court does not thereby accord recognition to de
facto separation of the spouses
o It is for the dousing of the momentary seething of emotions
Notes from Class (A)
•
When there is a JSOP, the marriage subsists
o Separation of property becomes a property regime
•
Having a JSOP is different form having complete separation of property as your
property regime
•
Instances when COMPLETE separation of property (CSOP) is the regime:
1) When it is specified in the marriage settlement
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2)
3)
4)
When a spouse dies & the other remarries without first liquidating the
properties from the former marriage, the 2nd marriage is governed by
CSOP
When there is a JDPD & the other remarries without first liquidating the
properties from the former marriage, the 2nd marriage is governed by
CSOP
When the spouses obtain a legal separation
Art. 135. Any of the ff. shall be considered sufficient cause for JSOP:
1) That the spouse of the petitioner has been sentenced to a penalty which
carries with it civil interdiction;
2) That the spouse of the petitioner has been judicially declared an absentee;
3) That the loss of parental authority of the spouse of the petitioner has been
decreed by the court;
4) That the spouse of the petitioner has abandoned the latter or failed to comply
with his or her obligations to the family as provided in Art. 101;
5) That the spouse granted the power of administration in the marriage
settlements has abused that power;
6) That at the time of the petition, the spouses have been separated in fact for at
least 1 year & reconciliation is highly improbable.
In the cases provided in numbers (1), (2) & (3), the presentation of the final judgment
against the guilty or absent spouse shall be enough basis for the grant of the decree of
JSOP.
Civil Interdiction
•
Accessory penalty – deprives the offender, during the time of his sentence, of:
o The rights of parental authority
o Guardianship, either as to the person or property of any ward
o Marital authority
o Right to manage his property
o Right to dispose of such property by any act or conveyance inter vivos
•
Final decision of the court rendered against the erring spouse embodying the
penalty of civil interdiction is enough for the court to approve JSOP
Declaration of Absence
•
Following rules of Art. 384 of the Civil Code, JD of absence is granted when:
o 2 years have elapsed without any news about the absentee or since
receipt of last news
o 5 years in case the absentee has left a person in charge of the
administration of his property
•
Art. 385, CC - Those who may file for JD of absence:
o Spouse present
o Heirs instituted in a will who present an authentic copy of the same
o The relatives who may succeed by the law of intestacy
o Those who may have over the property some right subordinated to the
condition of his death
•
JD of Absence shall not take effect until 6 months after its publication in a
newspaper of general circulation (Art. 386, CC)
•
Final decision is enough for the court to approve JSOP
Loss of Parental Authority
•
•
•
•
•
Loss of such authority over:
o The common child, whether legitimate or illegitimate, of the petitioner
& the spouse of the petitioner
o The child, whether legitimate or illegitimate, of the petitioner with
another person
One of the liabilities of the ACP/CPG = support of the common children & the
legitimate children of either spouse (Art. 94 [1) & 121[1])
Subject to reimbursement, liabilities also include support of the illegitimate
children, granted certain conditions (Art. 94 [9] & 122)
Reason for this ground: Exposure of ACP/CPG may extend to children who may
not even be related to one of the spouses
Final decision decreeing loss of parental authority is enough for the court to
approve JSOP, as long as the ground for loss of parental authority is that
specified under the law (Art. 229, Art. 231, par. 3, & Art. 232 of the FC)
Abandonment & Failure to Comply with the Obligations to the Family
•
The concept here is the same as that under Art. 101
•
Abandonment – when the spouse leaves the conjugal dwelling without any intent
of returning & with an intent to absolutely forego his or her family duties
o The spouse who has left the conjugal dwelling for a period of 3
months or has failed within the same period to give any information
as to his whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling
o Failure to comply – marital, parental, or property relations
Abuse of Administration
•
Marriage settlement may grant sole administration to either spouse; if the
administrator-spouse abuses his powers of administration, JSOP may be
availed of by the aggrieved spouse
•
Abuse – willful & utter disregard of the interests of the partnership, evidenced
by a repetition of deliberate acts &/or omissions prejudicial to the latter
o Not enough that the administrator-spouse does acts prejudicial to the
other spouse
o Not sufficient that he commits acts injurious to the ACP/CPG (he may
just be negligent)
o Not enough that the administrator spouse does not send updates on
the family business
Separation in Fact
•
Spouses have been separated in fact for at least 1 year at the time of the
petition
•
Reconciliation is highly improbable
Art. 136. The spouses may jointly file a verified petition with the court for the voluntary
dissolution of the ACP/CPG, & for the separation of their common properties.
All creditors of the ACP/CPG, as well as the personal creditors of the spouse, shall be
listed in the petition & notified of the filing thereof. The court shall take measures to
protect the creditors & other persons with pecuniary interest.
Voluntary Separation
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•
•
•
•
•
•
•
•
Before separation, there must be court approval
o No court approval = VOID, even if parties agree already
There need not be any reason for the conversion as long as the parties agree
o BUT if the parties state a reason & it is against public policy, the court
must reject the agreement
Petition may even embody the plan or scheme as to how the properties are to
be separated, which will be granted by court if it’s not against public policy
The agreement for the division of the ACP/CPG must be equal unless:
1) A different proportion or division has been agreed upon in the marriage
settlement or
2) There has been a valid waiver of such share (Art. 102[4] & 129[7]). A valid
waiver may be made upon JSOP
Agreement for voluntary JSOP – takes effect from the time of the judicial order
o NOT from the signing of the agreement by the parties
All the creditors of the ACP/CPG & the personal creditors of the spouses shall
be listed in the petition & notified in the filing
o Court will take measures to protect creditors & those with pecuniary
interests
In case one of the spouses waives his interests, any creditor of the spouse who
made the waiver can petition to rescind the waiver to the extent of the amount
sufficient to cover the amount of the credit (Art. 89 & 107)
CASE: De Ugalde v. De Yasi – If the judgment by way of compromise agreement
has become final & executory, the fact that the creditors were not notified will
not invalidate such a judgment
o A judgment on a compromise agreement has all the force & effect of
any other judgment
o Conclusive only upon the parties thereto, & not upon 3rd persons who
are not parties to it
Art. 137. Once the separation of property has been decreed, the ACP/CPG shall be
liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property, the ACP/CPG shall
pay for the support of the spouses & their children.
Liquidation
•
Process laid down in Art. 102 & 129 will be observed
o BUT the delivery of presumptive legitime need not be complied with
§
Delivery only applies in annulled marriages & those null
under Art. 40
•
During the pendency of the proceedings for JSOP, ACP/CPG will pay for the
support of the spouses & their children
•
CASE: Maquilan v. Maquilan – A partial voluntary separation of property
agreement by parties, duly approved by the court prior to JDNOM, is valid
Art. 138. After dissolution of the ACP/CPG, the provision on complete separation of
property shall apply.
Dissolution
•
In JSOP, whether voluntary or involuntary, mere filing of the petition to initiate
the proceeding will not automatically dissolve the ACP/CPG
•
•
It is the FINALITY of the decision of the court decreeing JSOP which dissolves
the same
o Only from that time that the complete separation of property starts
THUS, as to properties each of the spouses acquire during the trial, it may still
form part of the ACP/CPG
o But properties acquired AFTER the decree of JSOP, the same shall
belong exclusively to either of them independently of the ACP/CPG
Art. 139. The petition for separation of property & the final judgment granting the same
shall be recorded in the proper local civil registries & registries of property.
Art. 140. The separation of property shall not prejudice the rights previously acquired by
creditors.
Rights of Creditors
•
Recording in the civil registry of the petition for separation of property & the
final judgment
o Aids creditors in determining which properties are conjugal or
exclusive
•
Creditors may petition to rescind any waivers made by a spouse to the extent of
the amount sufficient to cover the amount of the credit
Art. 141. The spouses may, in the same proceedings where separation of property was
decreed, file a motion in court for a decree reviving the property regime that existed
between them before the separation of property in any of the ff. instances:
1) When the civil interdiction terminates;
2) When the absentee spouse reappears;
3) When the court, being satisfied that the spouse granted the power of
administration in the marriage settlements will not again abuse that power,
authorizes the resumption of said administration;
4) When the spouse who has left the conjugal home without a decree of legal
separation resumes common life with the other;
5) When the parental authority is judicially restored to the spouse previously
deprived thereof;
6) When the spouses who have separated in fact for at least 1 year, reconcile &
resume common life;
7) When after voluntary dissolution of the ACP/CPG has been judicially decreed
upon the joint petition of the spouses, they agree to the revival of the former
property regime. No voluntary separation of property may thereafter be
granted.
The revival of the former property regime shall be governed by Art. 67.
Revival of Previous Property Regime
•
Termination of causes under Art. 135 (involuntary JSOP) constitutes grounds to
be able to revive the previous property regime (not automatic)
o Clearly set out in Art. 141 (1) to (6)
•
Where the previous property regime is separated on the basis of voluntary
JSOP, the parties can revive the same upon petition in court
o HOWEVER, no voluntary JSOP may thereafter be granted
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•
But if the basis for the initial JSOP is Art. 135 (involuntary), a JSOP may
thereafter be granted again
Judicial Proceeding for Revival
•
To revive the previous property regime, spouses must file a motion in the same
court proceeding where JSOP was decreed to revive their pre-JSOP regime
•
Agreement to revive shall be executed under oath & shall specify:
1) The properties to be contributed anew in the restored regime
2) Those to be retained as separate properties of each spouse
3) The names of all their known creditors, address & the amounts owed to
each
•
Copies of the agreement of revival & the motion for its approval shall be
furnished to the creditors
o After due hearing, the court shall protect the interest of the creditors
o Such order shall be recorded in the proper registries of property
Art. 142. The administration of all classes of exclusive property of either spouse may be
transferred by the court to the other spouse:
1) When one spouse becomes the guardian of the other;
2) When one spouse is judicially declared an absentee;
3) When one spouse is sentenced to a penalty which carries with it civil
interdiction; or
4) When one spouse becomes a fugitive from justice & is hiding as an accused in
a criminal case.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or any
other just cause, the court shall appoint a suitable person as administrator.
Guardian
•
When a spouse is appointed the guardian of his spouse, he may likewise be
constituted as the administrator of the estate of the other spouse
•
Since spouse is already obliged to live with & take care of his spouse
Absentee & Civil Interdiction
•
Same as in Art. 135 (1) & (2)
Fugitive from Justice
•
One who, having committed or having been accused of a crime in one
jurisdiction is absent for any reason from that jurisdiction
•
One who flees to avoid punishment
Other Persons as Guardian
•
Court shall appoint a suitable person to be the administrator of the exclusive
property of the absent spouse if other spouse is not qualified due to:
o Incompetence
o Conflict of Interest
o Other just cause
Separation in Fact
•
Under Art. 100 (3) & 127 (3), separation in fact of the spouses shall not affect
the ACP/CPG
EXCEPT: In the absence of sufficient ACP/CPG, the separate property
of both spouses shall be solidarily liable for the support of the family
Spouse present shall, upon petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other
spouse & use the fruits & proceeds thereof to satisfy the latter’s share
o
•
CHAPTER 6: REGIME OF SEPARATION OF PROPERTY
Art. 143. Should the future spouses agree in the marriage settlements that their property
relations during marriage shall be governed by the regime of separation of property, the
provisions of this Chapter shall be suppletory.
Suppletory Character
•
For regime of complete separation of property, the parties must execute a valid
marriage settlement prior to the marriage stipulating such regime
•
Marriage settlement shall principally govern the regime
Art. 144. Separation of property may refer to present or future property or both. It may be
total or partial. In the latter case, the property not agreed upon as separate shall pertain
to the absolute community.
Properties Included
•
Parties can agree on the extent of their property regime
•
Can involve present or future property or both
•
May be total or partial
o If partial, the property not agreed upon as separate shall pertain to
the absolute community
•
NOT VALID to agree in the marriage settlement that the ACP/CPG shall govern
their marital property relations up to a certain time (ex. 10th wedding
anniversary), & thereafter, the separation of property regime will govern.
o Tantamount to dissolving the ACP/CPG by virtue of a cause not
provided by the law
Art. 145. Each spouse shall own, dispose of, possess, administer & enjoy his or her own
separate estate, without need of the consent of the other. To each spouse shall belong
all earnings from his or her profession, business or industry, & all fruits, natural,
industrial or civil, due or received during the marriage from his or her separate property.
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or,
in case of insufficiency or default thereof, to the current market value of their separate
properties.
The liability of the spouses to creditors for family expenses shall, however, be solidary.
CHAPTER 7: PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
*Art. 147. When a man & a woman who are capacitated to marry each other, live
exclusively with each other as husband & wife without the benefit of marriage or under a
void marriage, their wages & salaries shall be owned by them in equal shares & the
property acquired by both of them through their work or industry shall be governed by the
rules on co-ownership.
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In the absence of proof to the contrary, property acquired while they live together shall
be presumed to have been obtained by their joint efforts, work, or industry, & shall be
owned by them in equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property shall be deemed to have
contributed jointly to the acquisition thereof if the former’s efforts consisted in the care &
maintenance of the family & of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation & owned in common, without the consent of the
other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in
bad faith in the co-ownership shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children or their descendants, each
vacant share shall belong to the respective surviving descendants. In the absence of
descendants, each share shall belong to the innocent party. In all cases, the forfeiture
shall take place upon termination of the cohabitation.
Informal Civil Relationship
•
Though there is technically no marital relationship between persons living
together as husband & wife without the benefit of marriage, there is still an
informal civil relationship between them which entitles them to some rights
•
Art. 147 & 148 – special kind of co-ownership
o Co-ownership is a form of trust & every co-owner is a trustee for the
other
•
Requisites for Art. 147 – the man & woman must:
1) Be capacitated to marry each other
2) Live exclusively with each other as husband & wife
3) Be without the benefit of marriage or under a void marriage
•
Absence of the above requisites will remove the contracting parties will remove
the parties from the ambit of Art. 147
•
Void marriages that do not fall under Art. 147:
o Those who live together below 18 years of age
o Those under Art. 37 (incest) & 38 (against public policy)
o An already married person cannot remarry without the 1st marriage
having been previously terminated
o 2nd marriage celebrated while the 1st is validly subsisting is bigamous
o SUMMARY: Art. 37, 38, 35 (1) & (4)
•
Void marriages included in Art. 147:
o Art. 36 (psychological incapacity)
o Art. 44 (both parties in a marriage in bad faith in relation to Art. 41,
which is about presumptive death)
o Art. 53 (no liquidation & recording in the registry of JDNOM)
o Void marriages where there is:
§
Absence of consent
§
No authority of the solemnizing officer
§
No valid marriage license
§
No marriage ceremony
Structure of the Property Relationship under Art. 147
1) Salaries & wages shall be owned by the parties in equal shares
2)
3)
4)
5)
6)
7)
8)
Property acquired by either of the spouses exclusively by his own fund belongs
to such party, provided that there is proof that it was acquired by exclusive
funds
Property acquired by both parties through their work or industry will be
governed by the rules of co-ownership. Either spouse may alienate in favor of
the other his share in the property
Property acquired while they live together shall be presumed to have been
obtained by their joint efforts, work or industry & shall be owned by them in
equal shares.
a. A party who did not participate in the acquisition by the other party of
any property shall be deemed to have contributed jointly in the
acquisition thereof if the former’s efforts in the household consisted
in the care & maintenance of the family & the household
The fruits of the couple’s separate property are NOT included in the coownership
Property acquired by any of the parties after separation shall be exclusively
owned by the party who acquired it
Neither party can encumber or dispose by acts inter vivos of his/her share in
the property acquired during cohabitation & owned in common, without the
consent of the other, until after the termination of their cohabitation.
a. HOWEVER, either spouse may alienate in favor of the other his/her
share in the property co-owned
b. BUT no one can donate or waiver any interest in the co-ownership
that would constitute an indirect or direct grant of gratuitous
advantage to the other, which is void pursuant to Art. 87
When only one of the parties to a void marriage is in good faith, the share of
the party in bad faith in the co-ownership shall be forfeited in favor their
common children.
a. In case of default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the respective
surviving descendants.
b. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take upon termination
of the cohabitation.
Valdes v. RTC Ruling
•
In a void marriage, the property regimes are those provided in Art. 147/148
•
Liquidation of the co-ownership shall be in accordance with the provisions on
co-ownership under the Civil Code, as long as these do not conflict with Art.
147/148
•
Art. 50, 51, 52 in relation to Art. 102/129 of the FC will NOT apply in the
liquidation & partition
o Art. 50, 51, 52 – liquidation rules for JDNOM marriages
o Art. 102/129 – liquidation procedure for ACP/CPG
•
Arts. 102 (6) & 129 (9) which provide that the conjugal home goes to
whichever parent the majority of the kids choose to stay with will NOT apply
•
Difference between forfeiture of shares of bad faith spouses in void marriages:
o Art. 40 in relation to Art. 43(2) & Art. 50 – The spouse in bad faith
forfeits the net profits of the ACP/CPG, goes to:
§
Common children
§
If none, children of the guilty spouse
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o
§
If none, innocent spouse
Art. 147/148 applies in any other void marriage
§
Art. 147 – bad faith spouse forfeits all his shares, goes to:
•
Common children
•
In case of default, or if any or all of the children or
their descendants waive their shares, each vacant
share shall belong to the respective surviving
descendants
•
If none, goes to the innocent party
§
Art. 148
•
If one of the parties is validly married to another,
his share in the co-ownership will accrue to the
ACP/CPG existing in such marriage
•
If the party in bad faith is not validly married to
another, his or her share shall be provided in
accordance with Art. 147
CLASS DISCUSSION (M)
When the marriage is void, there are only two options for property regimes: 147 & 148.
However, there is an exception – that is Art. 40. A subsequent void marriage.
In that subsequent void marriage, it will be liquidated as if the property regime is the ACP
or CPG, as the case may be. (Diño v. Diño)
Art. 147’s requisites are that the persons are:
1. Man & woman
2. Living together
3. As if they are husband & wife
4. Exclusively
5. Either in a marriage which is void or in a no-marriage situation (live-in couple)
6. The two are capacitated to marry
If none of these requisites are there, then Art. 148 will apply.
The most important requisite in the list is that they are capacitated to marry. It should be
in the sense of Art. 5 (& they should not be psychologically incapacitated) (Valdes v. RTC)
Capacitated means that the parties must –
1. Not be below 18
2. Not be married under Art. 37 (incestuous) or Art. 38 (void for being against public
policy)
3. Not be bigamous
If one of these 3 is what applies to the couple, then the regime is that under Art. 148.
CLASS SCENARIO #1 (M)
Q: A got married to B in the year 2000; separated with B in the year 2005. A bought a
mansion in 2007. In 2010, the marriage was declared void. In the liquidation of the
marriage, should the mansion bought in 2007 be included in the liquidation?
A: No. This is the Valdes case. What will be liquidated in a void marriage are only those
that are acquired “while they were living together.” In this case that would include the
properties acquired by A & B between 2000 & 2005. This rule applies in Art. 147 & 148.
Q: BUT if it is the void subsequent marriage under Art. 40, will the mansion be included?
A: YES. It will be liquidated as if there is ACP or CPG.
CLASS SCENARIO #2 (M)
Q: A & B did not get married. A became an OFW in Saudi Arabia, but back home they
were just like family. A would send money to the Philippines to B and their kids. B would
manage the house, everything. B used the money to get a home. A & B however fought
and eventually separated. Who owns the house?
A: If the rules are followed strictly, A will get the house. The house must have been
acquired while THEY WERE LIVING TOGETHER. There is no philosophical meaning of
“living together.” Thus, Art. 148 will apply. (Diño, Buenaventura, Valdes)
*Art. 148. In cases of cohabitation not falling under the preceding article, only the
properties acquired by both of the parties through their actual joint contribution of
money, property, or industry shall be owned by them in common in proportion to their
respective contributions. In the absence of proof to the contrary, their contributions &
corresponding shares are presumed to be equal. The same rule & presumption shall
apply to joint deposits of money & evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership
shall accrue to the ACP/CPG existing in such valid marriage. If the party who acted in bad
faith is not validly married to another, his or her share shall be forfeited in the manner
provided in the last par. of the last preceding article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
Property Regime under Art. 148
•
If any of the requirements under Art. 147 are absent, Art. 148 shall apply
•
The parties may be deemed co-owners of a property acquired during the
cohabitation only upon proof that each made an actual contribution to its
acquisition
•
Without proof of actual cohabitation, ownership under Art. 147/138 cannot
apply
•
The fact that the other party administered the property is irrelevant to prove coownership
•
Relationships contemplated under Art. 148:
1) A man & woman living together as husband & wife, without benefit of
marriage, but are not capacitated to marry
2) An adulterous relationship even if it occurred prior to the effectivity of FC
3) A bigamous or polygamous marriage
4) Incestuous void marriages under Art. 37
5) Void marriages under Art. 38 (against public policy)
Structure of Property Regime: Limited Co-ownership
1) The salaries & wages are separately owned by the parties & if any of the
spouses is married, his salary is the property of the CPG/ACP of his legitimate
marriage
2) Property solely acquired by funds of any of the parties belongs to such party
3) Only the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common
in proportion to their respective contributions
4) The respective shares of the parties over properties owned in common are
presumed to be equal
a. However, proofs may be shown to prove that their contribution &
respective shares are not equal
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b.
5)
6)
Without proof of actual contribution by both parties, there can be no
presumption of co-ownership & equal sharing
The rule & presumption mentioned above shall apply to join deposits of money
& evidences of credit
If one of the parties is validly married to another, his or her share in the coownership shall accrue to the ACP/CPG in such valid marriage.
a. If the party who acted in bad faith is not validly married to another, his
or her share shall be forfeited in the manner provided in the last
paragraph of Article 147.
b. The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith.
Case Law
•
CASE: Manila Surety & Fidelity Co., Inc. v. Teodoro – Two Filipinos procured an
absolute divorce abroad. One of them subsequently contracted another
marriage in Hong Kong. The remarrying spouse tried to levy the properties of
his “spouse” from the 2nd marriage.
o SC held that any liability of the remarrying spouse cannot be levied on
the fruits of the separate property of his new “spouse,” considering
that the said fruits were acquired by the said “spouse” prior to the
solemnization of the 2nd bigamous marriage & therefore such fruits
did not belong to spouses in the 2nd bigamous marriage.
•
CASE: Juaniza v. Jose – A woman who was living in a bigamous relationship
with a married was sought to be held liable for an accident involving a vehicle
driven by the bigamous husband, & where the vehicle was registered under the
name of the husband.
o The woman was not held liable as co-owner of the vehicle, because
the vehicle must be considered the conjugal property of the bigamous
husband & his legitimate spouse.
•
CASE: Belcodero v. CA – A husband bought property in installment & thereafter
left his family to bigamously marry another woman. The husband, after
successfully paying in full, then had the property named under the 2nd woman
he married.
o Civil Code ruling: SC held that the property belongs to the 1st
marriage, on the strength of the provision which states that “all
property of the marriage is presumed to belong to the CPG, unless it
be proved that it pertains exclusively to the husband or wife.” The
presumption was not convincingly rebutted.
o Family Code ruling: if the said property was bought using the actual
joint contribution of money, property or industry by both parties in the
bigamous relationship, the share of the bigamous husband will
accrue to the ACP/CPG of his legitimate marriage.
•
CASE: Agapay v. Palang – Miguel & Carlina were already married (but were de
facto separated) when Miguel bigamously marries Erlinda on July 1973. Miguel
sold some land on May 1973, in favor of himself & Erlinda.
o Importance of this case: stresses the difference in Art. 148 of “actual
joint contribution of money, property or industry” shall be owned by
them in common” as opposed to Art. 147 which states that “efforts in
the care & maintenance of the family & household are regarded as
contributions to the acquisition of common property by one who has
no salary or income or work or industry.”
SC held that, in a bigamous marriage, Art. 148 applies especially
when it was never shown that one of the spouses actually contributed
to the co-ownership. In this case, Erlinda was only 20 years old at the
time of the conveyance, & Miguel 64, so it was hardly likely that
Erlinda would possibly be able to contribute to buying the property,
even if she is now engaged in a buy-and-sell business. There is thus
no proof that the properties were purchased through actual joint
contribution; the property thus reverts back to the CPG of Carlina &
Miguel.
CASE: Borromeo v. Descallar – A title to an immovable property was registered
under the name of a Filipina wife considering her Austrian-husband, who
acquired & fully financed the purchase during their cohabitation, was
constitutionally prohibited from owning land in the Philippines. However, it was
then discovered that the Filipina was already married to another man, prior to
her marriage with the Austrian. The Austrian then sold the property registered
under the name of the wife to a 3rd person.
o SC affirmed the sale of the property to a 3rd person even if the name
is under the Filipina wife, as there was convincing evidence that the
property was financed solely by the Austrian.
o “In an adulterous relationship, no co-ownership exists between the
parties. It is necessary for each of the partners to prove his or her
actual joint contribution to the acquisition of property in order to lay
claim to any portion of it. Presumptions of co-ownership & equal
contribution do not apply.”
o So what happens to the property acquired by the 3rd person, since the
Austrian who sold the property technically cannot own property in the
Philippines?
§
If land is invalidly transferred to an alien who subsequently
becomes a Filipino or transfers it to a Filipino, the flaw in the
original transaction is considered cured & the title of the
transferee is rendered valid.
§
In this case, the Austrian had already subsequently become
naturalized as a Filipino citizen. Thus, the defect is cured
and he can now own the property.
o Compare with Matthews v. Taylor
CASE: Nicdao Cariño v. Cariño – A man entered into a 2nd marriage, which was
held void because the man did not obtain a JDNOM for his 1st marriage.
o SC held that the 2nd marriage was bigamous, even if the 1st marriage
was void, much to the chagrin of Sta. Maria.
o SC applied the Art. 148 property regime to the 2nd marriage, though
Sta. Maria believes the correct application is under Art. 50—that the
2nd marriage will be governed by ACP/CPG, because a marriage under
Art. 40 is an exceptional void marriage
o
•
•
Forfeiture of Shares & Bad Faith
•
Art. 148 states that the rule on forfeiture of shares shall likewise apply even if
both parties are in bad faith.
•
Ex. A woman marries her cousin, who is already married to another woman.
Later, she marries another man. If the woman & her cousin jointly contribute to
their co-ownership living together, with both the husband & the bigamous-
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cousin-wife contributing their salaries, the co-ownership will be liquidated as
follows:
o The share of the spouse who is obviously in bad faith shall accrue to
the ACP/CPG of his existing valid marriage.
o The share of the bigamous-cousin-wife who is also in bad faith will be
forfeited in favor of their common children. Since she has no children
or descendants. Supposedly, the share will go to the innocent spouse.
However, since there is no innocent spouse, the share of the
bigamous-cousin-wife is retained by her.
§
In this regard & for purposes of the share of the bigamouscousin-wife only, considering that both husband & wife are
in bad faith, they will be considered as if they were both in
good faith & the wife’s share can go to her.
CLASS DISCUSSION (M)
Note the difference between Arts. 147 & 148 as regards the presumption of
contribution.
Assuming Art. 147 can squarely apply to the relations of X & Y, if X contributes money, &
Y contributes no money, but manages the household, that is enough to create the
presumption of co-ownership under Art. 147.
In Art. 148, however, given the same facts, there is NO PRESUMPTION OF COOWNERSHIP. There will only be co-ownership if there is PROOF of ACTUAL
CONTRIBUTION of MONEY by both spouses. Co-ownership will not be presumed. Under
Art. 148, if X contributed a car, and Y contributed a toothpick, Y will get ONLY get a
toothpick upon dissolution.
TITLE V. – THE FAMILY
CHAPTER 1: THE FAMILY AS AN INSTITUTION
Art. 149. The family, being the foundation of the nation, is a basic social institution which
public policy cherishes & protects. Consequently, family relations governed are by law &
no custom, practice, or agreement destructive of the family shall be recognized or given
effect.
Paramount Importance
•
Art. II, Sec. 12, 1987 Constitution – sanctity of family life; basic social
institution
•
Art. XV, 1987 Constitution – dedicated exclusively to the family
Destructive Agreements
•
No custom, practice or agreement destructive of the family shall be recognized
•
If the husband & wife state in an agreement that, while their marriage subsists,
the husband can have a concubine, the agreement is void
o HOWEVER, such void agreement’s only legal significance is to invoke
it as evidence showing “consent” to the sexual infidelity of the
husband or wife in cases of legal separation
•
It is also not valid if parties stipulate that: “in consideration for a peaceful
termination of relations between the undersigned & her lawful husband,” the
parties agreed to give properties to the wife & monthly support for the children,
so that the wife would agree to a JSOP & amendment of divorce proceedings.
o The agreement is void for being contrary to Filipino morals & public
policy
o The consideration for the agreement was the termination of the
marriage by the parties which they cannot do on their own & without
legal basis
Parties in Court Case
•
Sec. 4, Rule 3 of the 1997 Rules of Civil Procedure: “The husband & wife shall
sue or be sued jointly except as provided by law.”
o “Jointly” – they shall be sued together
o When spouses are sued for the enforcement of an obligation which
has redounded to the benefit of the family, they are being impleaded
in their capacity as representatives of the ACP/CPG, and NOT as
independent debtors, such that the concept of joint or solidary liability
between them does not arise
o Spouses are also generally the joint administrators of their ACP/CPG
•
HOWEVER, while spouses should be sued together, even just one of the
spouses can sue others on behalf of the ACP/CPG (Carangdang v. Heirs of
Quirino A. De Guzman)
o The other spouse is not an indispensible party to such a case
o Reasoning: the rules on co-ownership (ACP)/partnership (CPG) apply
in a suppletory character
•
Art. 111, FC: Spouses may appear alone in court if what is involved in litigation
is his own separate & exclusive property
•
Joint management/administration does not require that the husband & wife
always act together
o If a debtor to the ACP/CPG is to be sued, the husband or wife alone
may file the case if the suit relates to any act of administration or
management
•
However, it is advisable that both spouses sue together for community claims
o If one of the spouses files a suit as plaintiff, the defendants in the
counterclaim against the ACP/CPG can file a motion to include as a
necessary party the spouse who has not been impleaded
•
Also, though as a general rule the certification for non-forum shopping must be
signed by all petitioners in a case, the signature of only one o the spouses is
substantial compliance with this requirement, even if both parties are
petitioners
o Each spouse may be reasonably presumed to have personal
knowledge of the filing/non-filing of the action
Art. 150. Family relations include those:
1) Between husband and wife;
2) Between parents and children;
3) Among other ascendants and descendants; &
4) Among brothers and sisters, whether of the full or half-blood.
Art. 151. No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a compromise
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have been made, but that the same have failed. If it is shown that no such efforts were
in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.
Application
•
Enumeration in Art. 150 should be construed strictly – any person not included
in the enumeration is not considered by law to be within the terms of “family
relations”
o Example: If the suit is between a brother-in-law & a sister-in-law,
“earnest efforts to seek a compromise” is not necessary, because
their relationship is not within the ambit of “family relations” as
specified by law
o Collateral relatives who are not brothers & sisters are not included in
the term “family relations”
•
HOWEVER, a suit filed by a woman against her sister & the latter’s husband will
not need earnest efforts to compromise, since one of the parties, the sister’s
husband, is not considered within the “family relations” provided by law
•
Petition must be verified
o But if it is unverified, it should not be dismissed; the court should just
merely require the party to have it verified
Earnest Efforts to Compromise
•
If family relations is in the definition in Art. 150, there must be earnest efforts
to compromise; without this, the suit is DISMISSIBLE
o Failure to exert earnest efforts in these situations is a group for a
motion to dismiss (Sec. 1 [j], Rule 16 of the Rules of Court)
Exceptions
•
Earnest efforts to compromise is not required if a stranger not of the same
family is included in the suit, as the interest of such stranger may be different
from the interest of the members of the family
o “Stranger” – not listed in Art. 150
•
Rule also doesn’t apply to cases which may not be compromised under the Civil
Code (Art. 2035):
1) The civil status of persons
2) The validity of a marriage or legal separation
3) Any grounds for legal separation
4) Future support
5) Jurisdiction of courts
6) Future legitime
•
Earnest efforts rule also does not apply to special proceedings
o Petition for settlement of estate guardianship
o Custody of children
o Habeas corpus
o Only civil actions are included
Exemption from Criminal Liability in Crimes Against Property
•
•
Art. 332, RPC: No criminal, but only civil liability, shall result from the
commission of the crime of theft, swindling or malicious mischief committed or
caused mutually by the following persons:
1) Spouses, ascendants & descendants or relatives by affinity in the same
line
2) The widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed into the possession
of another, &
3) Brothers & sisters & brothers-in-law & sisters-in-law, if living together
Not applicable to strangers who participated in the commission of the crime
Running of Prescriptive Period
•
Unless otherwise provided by FC & other laws, Art. 1109, CC applies:
o Prescription does not run between H W, even if there is separation of
property agreed upon in a valid settlement or through JSOP
o Prescription does not run between parents & children during the
minority or insanity of the latter, & between guardian & ward during
the continuance of guardianship
CHAPTER 2: THE FAMILY HOME
Art. 152. The family home, constituted jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling house where they & their family reside, and
the land on which it is situated.
Art. 153. The family home is deemed constituted on a house & lot from the time it is
occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment except as hereinafter provided and to
the extent of the value allowed by law.
Constitution
•
A family home is deemed constituted on a house & lot from the time it is
actually occupied as a family residence
•
Requirement of house & land as constitutive of a family home – stresses
permanence
o A boat on water cannot constitute a family home
•
So long as the owners (husband & wife or unmarried head of a family) or their
beneficiaries actually reside in the premises, it is a family home as
contemplated by law
•
Residing in a family home is a real right
•
Occupancy – must be actual, & not just constructive (presumptive)
o One cannot claim to have occupied the premises at the time his
overseer, maid, houseboy or driver lived in the same place
o Also not valid when a man claims he is merely staying temporarily in
the U.S. & his wife lives in supposed family home whenever she is
here, if it is just the overseer who truly permanently resides in the
home
o Must be actually existing or real, not merely possible
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•
•
Creditors must take necessary precautions to protect their interests before
extending credit to the spouses or the head of the family owning a home
There is NO NEED to constitute the family home judicially or extra-judicially
(previously needed in the Family Code)
o All residences used as a family home as deemed constituted by
operation of law as of August 3 1988
o Example: A debtor who, prior to Aug. 3 1988, never constituted his
house judicially or extra-judicially & whose debt matured PRIOR to
August 3 1988, CANNOT claim that his house can no longer be
answerable to satisfy a debt because the house is a family home & is
thus exempt from execution
§
If the debt matures prior to the effectivity of the FC, one
must constitute one’s family home judicially or extrajudicially, pursuant to CC
CLASS DISCUSSION (M)
A lessee cannot constitute an apartment where he is staying as a family home.
Who Constitutes the Family Home
•
The family home CANNOT be constituted by the wife or husband alone
o Constitution must be done jointly by husband & wife
o BUT a family home can also be constituted by an unmarried head of
family by himself
o ALSO Occupancy of any of the beneficiaries can also constitute a
home as a family home
§
Even if a married person is legally/de facto separated, a
family home is still constituted if any of his beneficiaries
actually occupies the land & house of such married person
with his consent & pursuant to FC requirements
Exempt from Execution
•
Exemption from execution, forced sale or attachment is provided by law
o Effective from the time the constitution of the family home as such
o Lasts so long as any of the beneficiaries actually resides therein
CASE: Olivia de-Mesa v. Acero, Jr.
This case provides a summary of the rule for purposes of exemption from execution.
PERIOD OF CONSTRUCTION
CONSTITUTION AS FAMILY HOME TO BE EXEMPTED
FROM EXECUTION
Family residences constructed before Must be constituted as family home either
the effectivity of FC (i.e., before Aug. 3, judicially or extrajudicially
1988)
Family residences constructed after the Automatically deemed to be family homes
effectivity of FC
& exempt from execution from the time it
was constituted, so long as any of its
beneficiaries actually resides therein
Not
judicially
or
extrajudicially Family homes by operation of law &
constituted as family home prior to the prospectively entitled to the benefits in the
effectivity of the FC, but were thereafter FC
existing
Waiver, Laches, & Estoppel
•
Personal right – can be claimed only by the judgment debtor, & not by the
sheriff, & therefore must be claimed before the public auction
•
Exemption is not absolute – exclusions are in Art. 155, which allows the whole
amount obtained from the sale of the family home to be taken by the creditor
•
Art. 160 – a judgment creditor whose claim is not among those provided in Art.
155 may apply for the family home’s execution IF he has reasonable grounds
to believe that it is worth more than the max amount fixed in Art. 157.
o Proceeds of any execution sale shall be applied:
§
1st – to the amount provided in Art. 157
§
2nd – liabilities under the judgment & costs
§
3rd – excess goes to judgment debtor (family home owner)
•
Why exemption is not absolute – so that debtors cannot thwart just claims of
creditors
•
CASE: Josef v. Santos – The petitioner immediately claimed exemption from
execution of a property, which he claimed was a family home, after the
respondent filed a motion for execution. The lower court did not conduct an
investigation on W/N the property was indeed a family home.
o SC voided the writ of execution for respondent– a claim for exemption
from execution of the family home must be validly proven before the
sale of the property at public auction
o Respondent & the trial court ignored petitioner’s argument that the
properties were exempt from execution
CLASS SCENARIO (M)
Q: The sheriff did not levy on a house because he knew a house to be a family home. Is
the sheriff correct?
A: No, it is a personal right that can only be invoked by the spouses, the head of the
family, & the beneficiary.
Art. 154. The beneficiaries of a family home are:
1) The husband & wife, or an unmarried person who is the head of a family; &
2) Their parents, ascendants, descendants, brothers & sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home & who
depend upon the head of the family for legal support.
Beneficiaries
•
Actual occupancy of beneficiaries constitutes a family home
o Must have the consent of either the husband or wife
o Applies even if the owners do not actually reside therein
•
3 Requisites for Beneficiaries:
1) Must be among the relationships listed in Art. 154
2) Must live in the family home
3) Must be dependent for legal support upon the head of the family
•
CASE: Patricio v. Dario III – A grandson is not considered a beneficiary of a
family home owned by his grandfather even if he resides there, because he is
dependent on his father for support.
•
The beneficiaries are the ones who will most likely be affected by the
constitution of the family home & its disposition
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•
•
•
Art. 158 – When an owner plans to sell a family home, he must first obtain the
consent of a majority of the beneficiaries of legal age
The enumeration in Art. 154 includes the in-laws where the family home is
constituted jointly by the husband & wife
Law definitely excludes maids & overseers
CLASS DISCUSSION (M)
Q: Grandfather houses A, the child of B. A died. X said, let’s partition already since we
have inherited the property. B said, “No you can’t, there’s still a minor in this house who
is my child, A. According to law, we have to wait until he reaches the age of majority.” Is B
correct?
A: B is wrong. If you look at the list of beneficiaries, the minor has to be dependent on
the head of the family for support.
In this case, A complies with the first requisite of living in the family home.
However, A does not depend on his grandfather for support. Hence, he is not considered
a beneficiary.
Art. 155. The family home shall be exempt from execution, forced sale or attachment
except:
1) For non-payment of taxes;
2) For debts incurred prior to the constitution of the family home;
3) For debts secured by mortgages on the premises before or after such
constitution; &
4) For debts due to laborers, mechanics, architects, builders, materialmen &
others who have rendered service or furnished material for the construction of
the building.
Debts
•
•
•
A court judgment is not necessary to clothe a pre-existing debt with the
privileged character of being enforceable against the family home
o When a case is filed questioning the validity of a debt under Art. 155
for which the family home is being executed in acc. with law, such
debt shall be considered as having arisen NOT from the time the
court issues a judgment affirming such existence, but from the time it
actually arose
“Debt” – “obligations” in general
o Includes money judgments arising from tort
o Whole value of the family home may be used to pay off obligations
under Art. 155
CASE: Gomez v. Sta. Ines – A debt was incurred in 1977 before the effectivity
of FC. The subject property had not, at the time, been constituted as a family
home under the provisions of the CC.
o SC: Because a home which was not a family home prior to the
effectivity of FC became one after the effectivity of FC by operation of
law, the debt therefore can be raised as having been incurred before
the constitution of the family home. Thus, it is subject to execution.
o The judgment sustaining the liability of the debtor was not the
reckoning date for the existence of the debt; instead, it is the time
when the debut was actually incurred in 1977
Art. 156. The family home must be part of the properties of the ACP/CPG, or of the
exclusive properties of either spouse with the latter’s consent. It may also be constituted
by an unmarried head of a family on his or her own property.
Nevertheless, property that is the subject of a conditional sale on installment where
ownership is reserved by the vendor only to guarantee payment of the purchase price
may be constituted as a family home.
Family Home
•
Constituted at a place where there is a fixed & permanent connection with the
persons constituting it
•
Must be a part of the ACP/CPG or the exclusive properties of either spouse with
the latter’s consent
•
May also be constituted by an unmarried head of family on his own property
•
Property that is the subject of a conditional sale on installment where
ownership is reserved by the vendor only to guarantee payment of the
purchase price may be constituted as a family home
•
NOT a family home:
o An apartment unit or a house that is being rented
o A house erected by a person on the property of another
In cases under Art. 156, the totality of the family home can be executed.
Art. 157. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of P300,000 in urban areas, and P200,000 in rural areas, or
such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code, the
value most favorable for the constitution of a family home shall be the basis of the
evaluation.
For purposes of this article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for chartered
cities. All others are deemed to be rural areas.
Value of the Family Home
•
Art. 153: The family home is constituted from the time it is actually occupied as
a family home
o Actual occupancy is the operative act of the constitution
o The value at the of the constitution must be:
§
P300,000 in urban areas
§
P200,000 in rural areas
§
Or such amount as may hereafter be fixed by law
•
If the home is MORE than the value fixed by law, it is NOT a family home
o NOT exempt from forced sale, execution or attachment
•
2nd par, Art. 157: “In any case, if the value of the currency changes after the
adoption of this Code, the value most favorable for the constitution of a family
home shall be the basis of the evaluation
o If a house is worth P300,000 in an urban area but was not legally
instituted prior to the effectivity of FC, it will automatically become a
family home if it is still worth P300,000 on Aug. 3 1988
o If the house were worth P400,000 prior to the effectivity of the FC & if
its value increased to P500,000 at the time or after the effectivity, it
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will not be considered a family home because the value of P400,000
at the time of its constitution is the basis of the evaluation (rather
than the P500,000), as it is the more favorable assessment for the
constitution of the family home
o If a house in 1987 was worth P500,000, & the value decreased to
P300,000 at the time of the effectivity of the FC, it is the P300,000
that will be considered
Justification for limits: those who can afford more expensive homes need no
protection; this is intended to protect the middle-class
o Justification is a sweeping generalization that ignores some facts
o Has become a regressive limitation inhibiting progressive middleclass growth
died on March 10 2003. It cannot be partitioned for 10 years or longer, if there
is still a minor residing there. It can thus only be partitioned in March 10 2013.
o If there is no compelling reason to immediately partition the lot, the
court will not order it
§
Reason for forced sale must be set up & proved to the
Sheriff before the sale of the property at public auction
o Proscription against partitioning exists regardless of its ownership
§
Even if the family home has passed by succession to the coownership of the heirs, the family home is not transformed
into an ordinary property
§
Rights of the beneficiaries of the conjugal home cannot be
subjugated
Increase in Value of Family Home
•
REMEMBER: The values in Art. 157 refer only to the value at the time of the
constitution made after the effectivity of the FC
o If after the constitution, the value of the house increased due to
improvements to an amount more than fixed by law at the time of the
constitution, the family home remains a family home
Art. 160. When a creditor whose claim is not among those mentioned in Art. 155 obtains
a judgment in his favor, & he has reasonable grounds to believe that the family home is
actually worth more than the maximum amount fixed in Art. 157, he may apply to the
court which rendered the judgment for an order directing the sale of the property under
execution. The court shall so order if it finds that the actual value of the family home
exceeds the maximum amount allowed in Art. 157 & results from subsequent voluntary
improvements introduced by the person or persons constituting the family home, by the
owner or owners of the property, or by any of the beneficiaries, the same rule &
procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied 1st to the amount mentioned in Art. 157, &
then to the liabilities under the judgment & costs. The excess, if any, shall be delivered to
the judgment debtor.
•
Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by
the owner or owners thereof with the written consent of the person constituting the
same, the latter’s spouse, and a majority of the beneficiaries of legal age. In case of
conflict, the court shall decide.
Disposition of Family Home
•
Limitation to the right of disposition of the owners of a property where a family
home is situated
•
Cannot be sold, alienated, encumbered, donated or assigned without the
written consent of the ff.:
1) Person constituting the same
2) The spouse of the person constituting the same
3) A majority of the beneficiaries of legal age
•
Thus, for the family home to be leased, the written consent of all the people
mentioned must be obtained (a lease = an encumbrance)
Art. 159. The family home shall continue despite the death of one or both spouses or of
the unmarried head of the family for a period of 10 years or for as long as there is a
minor beneficiary, & the heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply regardless of whoever owns the
property or constituted the family home.
Limitation After Death
•
Even upon the death of the person who constituted the family home, such
family home shall continue as one for a period of 10 years, or longer, if there is
a minor beneficiary
•
Heirs cannot partition the same unless the court finds compelling reasons
•
CASE: Arriola v. Arriola – Even if a house & lot passes to the heirs upon the
death of their father, it cannot be immediately partitioned, at least not for 10
years, as it is a physical symbol of family love. In the case, the family patriarch
Judgment Creditor
•
Unlike in Art. 155, in Art. 160 there is a need for a court decision before a
judgment creditor can avail of the privilege
•
Example: If a creditor obtains a judgment in his favor, directing the debtor to
pay him P500,000, & the debtor owns a family home which has a current
actual value of P1,000,000, such judgment creditor can execute on said family
home.
o Bidders cannot bid an amount below P300,000
o If the house is sold for P700,000 only, the sheriff gives the debtor the
amount of P300,000,then gives P400,000 to the creditor
§
Immunity of P300,000 supposedly allows debtor to build a
new family home
•
Judgment-claim & judgment creditor should not be among those in Art. 155
o If the judgment creditors are laborers & the judgment amount of
P500,000 represents the amount due them, P700,000 will be first
applied to them
§
P500,000 will be given to the Art. 155 creditors
§
P200,000 goes to the judgment debtor
§
If the house is sold for exactly P500,000, the creditorlaborers get everything
Art. 161. For purposes of availing of the benefits of a family home as provided for in this
Chapter, a person may constitute, or be the beneficiary of, only one family home.
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Art. 162. The provisions in this Chapter shall also govern family residences insofar as
said provisions are applicable.
Application of Art. 162
•
Art. 162 does not have a retroactive effect
o It does not mean that all existing family residences are deemed to
have been constituted as family homes at the time of the occupation
of the family home prior to the effectivity of the FC & are exempt from
execution for payments of obligations
o Art. 162 simply means that all existing family residences at the time
of the effectivity of the FC are considered family homes & are
prospectively entitled to the benefits accorded to a family home
TITLE VI. – PATERNITY & FILIATION
CHAPTER 1: LEGITIMATE CHILDREN 44
A child born inside a valid marriage is legitimate.
A child born in a void marriage is illegitimate, EXCEPT when the grounds for nullity are (1)
psychological incapacity, or (2) no recording, liquidation, etc. of a previous terminated
marriage (Art. 52 & 53, check those out).
The child must be the offspring of the wife. If the child is not the offspring of the wife, this
whole chapter on paternity & filiation will not apply.
Cases: Babiera, Badelles
Q: A is married to B. They have no children. They informally adopted a child, X, by
simulated birth certificate. A & B died. X is the only compulsory “heir.” But it was the
brothers & sisters of A that filed the intestate proceedings. X opposed, arguing that he is
the legitimate child & the only heir. It was proven in court, however, that A & B are
barren. X said, “Siblings, you have no legal basis to question me. The only people who
can impugn the legitimacy of the child, is the husband (note, it is wrong to say the father)
only as a general rule. Also, the period for contesting the legitimacy of the child is only 12-3 (living together, separated, abroad). Given both of these, my right is no longer
contestable.” CA sided with X.
A: SC reversed. This Chapter does not apply in a situation where the child did not come
out from the woman. This is a simple case of falsification of public documents.
Q: B without terminating his marriage with A, married C. A child was born between C & A
(C Jr.). What is the status of C Jr.?
A: C Jr. is legitimate. Since the marriage is bigamous, the child was born inside the
marriage of A & B. (Concepcion v. CA)
Q: C asked if C Jr. can still maintain C’s surname, and also if C can get visitorial rights.
Can he be entitled?
A: NO. Though C is a biological father, legally, C is not related to C Jr.
Q: If B is irresponsible, can C seek custody of the child?
A: NO. In impugning the legitimacy of the child, only A (& other heirs in extraordinary
situation) can say “I am not your father.” If A does not impugn C Jr.’s status in court, C
will be a foreigner.
Q: What is the reckoning point?
A: From the knowledge of birth OR from knowledge of the record of birth.
Q: It turns out A is the doctor. A is the one who facilitated birth of C Jr. At age 2, A realizes
that C Jr. actually looks like C, and not him. Can A still impugn?
A: No, 1 year has passed since KNOWLEDGE OF BIRTH (if they live together).
Q: What is the status of the artificially inseminated child when you fail to record in the
civil registry?
A: Legitimate. Our paradigm works with the necessity of impugning on the part of the
husband. So long as the husband does NOT impugn, the child is LEGITIMATE, though
born by artificial insemination.
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may
be legitimate or illegitimate.
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the
husband or that of a donor or both are likewise legitimate children of the husband & his
wife, provided that both of them authorized or ratified such insemination in a written
instrument executed & signed by them before the birth of the child. The instrument shall
be recorded in the civil registry together with the birth certificate of the child.
Art. 165. Children conceived & born outside a valid marriage are illegitimate, unless
otherwise provided in this Code.
Policy of the FC
•
The policy of the FC: liberalize the rule on the investigation of the paternity of
children, especially illegitimate children, without prejudice to the right of the
alleged parent to resist the claimed status with his own defenses.
•
Legitimacy cannot be negotiated; it is determined by law
o A child cannot go to court and say “This man is not my father!” and
have that statement have any legal effect
•
Adoption – created by law; child has all rights, obligations & duties of a natural
child
Paternity & Filiation
•
GENERAL RULE: the law will always recognize the husband as the father; if he
does nothing to impugn the child, the child is legitimate & his
•
Paternity & filiation – relationship which exists between parents & children
o Paternity – whether one is the father or not
o Filiation – legitimacy/illegitimacy
•
Legitimacy/illegitimacy is fixed by law & cannot be left to the will of the parties
or the declaration of a physician or midwife
•
Filiation:
o By nature – legitimate if they are conceived or born during the valid
marriage of the parents
The emphasis of this Chapter is that only paternity needs to be established; maternity is certain but paternity is not. Only fathers
have the right to impugn the legitimacy of their child. The mother cannot impugn with any legal effect.
44
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Presumption of legitimacy can only arise upon convincing
proof that the parents of the child were legally married &
that the child’s conception/birth occurred during the
subsistence of such marriage
o By adoption
CASE: Conception v. CA – A woman bigamously married another man. A child
was born out of their bigamous union. Later on, the bigamous marriage
between the woman & the man was declared void. What is the child’s filiation?
o SC: The child born in the 2nd voided union was in effect born of the
wife in the 1st subsisting marriage. Thus, in the eyes of the law, the
father of the child is the 1st husband of the wife.
o Additionally, in this case, the child wanted to acknowledge his real
father (the 2nd husband from the bigamous marriage); the court,
however, did not permit this. By legal fiction, the child’s father was the
1st husband, & a child cannot file a case to acknowledge his real
father
o Child is the legitimate child of the 1st husband.
§
Note that if the 1st marriage was the void marriage, the child
would be illegitimate & could now be attributed to the 2nd
husband
§
Note also that if the wife successfully got a JDNOM for her
1st marriage, the child would then be the legitimate child of
the 2nd husband
Illegitimate children – those conceived & born outside of a valid marriage or
inside a void marriage
o EXCEPTIONS: A child is legitimate when he is…
§
Conceived/born before the judgment of annulment (Art. 54)
§
From a marriage declared void due to psychological
incapacity (Art. 54)
§
From a void marriage due to failure to comply with
mandatory provisions of Art. 52 & 53
§
•
•
Artificial Insemination
•
Two types of artificial insemination
o Homologous – wife is artificially impregnated with the semen of her
husband; Artificial Insemination Husband (AIH)
o Heterologous – artificial insemination o the wife by the semen of a
3rd-party donor; Artificial Insemination Donor (AID)
§
Consensual – with consent of husband
§
Non-consensual – w/o husband’s consent
Status of an Artificially Inseminated Child
•
Legitimate, as long as both of them authorized or ratified such insemination
o Through a written instrument executed & signed before the birth of
the child
o Instrument is recorded in the registry together with the birth
certificate of the child45
o Since the husband consents, there is no marital infidelity
45
One who consents to the production of a child cannot create
a temporary relation to be assumed & disclaimed at will; he
has an obligation for the person whose existence he is
directly responsible
If written authorization/ratification is obtained through mistake, fraud, violence,
intimidation or undue influence, the husband may impugn the legitimacy of the
child on these grounds
Morality is not the concern in this case, because the fact is that the child is
already born
HOWEVER, it must be observed that if the requirements in par. 2, Art. 164 are
not followed & the husband DOES NOT impugn the legitimacy of the child on
grounds provided by law within the prescriptive period, the child will still be
legitimate, having been born in a valid marriage
o Requirements in Art. 146, par. 2:
1) Both spouses authorize or ratify such insemination before the
birth of the child;
2) The instrument is recorded in the civil registry together with the
birth certificate of the child
§
•
•
•
SCENARIO (A)
Q: What if the husband agreed to use 3rd party’s sperm & signed the written instrument,
but the wife used both the husband’s sperm & a 3rd party’s?
A: Husband can impugn the legitimate filiation of the child, but NOT the paternity. Thus
the child would be illegitimate at most, but can never be said to be not related to him (as
is the case when grounds in Art. 166 are proven)
No Criminal Liability for Adultery of Wife Artificially Inseminated w/o Consent of Husband
•
A woman who, without the consent of her husband, gets herself a AID
insemination CANNOT be held criminally liable for adultery
•
Art. 333, RPC: Adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband
o Artificial insemination – no sex involved
Art. 166. Legitimacy of a child may be impugned only on the ff. grounds:
1) That it was physically impossible for the husband to have sexual intercourse
with his wife within the first 120 days of the 300 days which immediately
preceded the birth of the child because of:
a. The physical incapacity of the husband to have sexual intercourse
with his wife;
b. The fact that the husband and wife were living separately in such a
way that sexual intercourse was not possible;
c. Serious illness of the husband, which absolutely prevented sexual
intercourse;
2) That it is proved that for biological or other scientific reasons, the child could
not have been that of the husband, except in the instance provided in the 2nd
Child will still be considered legitimate, even if the requirement of registration is not complied with
Katrina Monica C. Gaw | Block C 2018| 107
3)
paragraph of Article 164; or
That in case of children conceived through artificial insemination, the written
authorization or ratification of either parent46 was obtained through mistake,
fraud, violence, intimidation, or undue influence.47
Q: In reverse, what if it is the husband who is drugged by the wife & his sperm was taken,
but without written authorization?
A: Husband cannot use Art. 166(3) for his defense. He may use other reasons instead.
•
Art. 167. The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.
1988: Sexual intercourse may have been had at the end of the 120 days, but then 300
is said to be the longest average period of gestation. 6 is the shortest. There must be
physical impossibility to have sex within the first 120 days.
Physical Incapacity
Biological – vasectomy, etc. but it must be ABSOLUTE
Artificial insemination – vitiated consent
•
Notice how the ground is not failure to comply with requirements, but vitiation
of consent. Thus, note that the failure to comply is not actually a ground, giving
rise to a gray area.
Applicability of Art. 166 & 167
•
Art. 166 – presupposes a valid marriage bet. husband & wife
o Only the husband & the heirs (in proper cases under Art. 171) can
invoke these grounds
o If any grounds are proven, the child will neither be legitimate nor
illegitimate as far as the husband is concerned—they are simply not
related
o As far as the wife is concerned, the child is illegitimate
•
The legitimacy of the child can likewise be questioned on the ground that the
marriage bet. husband & wife is void
o But remember: a void marriage usually means that the child is
illegitimate for both husband & wife
•
Art. 167 – makes it impossible for the wife to file an action to impugn the
legitimacy of her child
o Even if a wife is declared adulterous by courts, or is aware that her
husband is not the father, her knowledge or sentence will have no
bearing & can never affect the legitimate status of the child born or
conceived inside a valid marriage
o Only husband can contest legitimacy if he & his wife are in a valid
marriage
SCENARIO (A)
Q: What if the wife did not actually want to get pregnant & have the baby, but was
drugged & her husband conspired to impregnate her with the doctor?
A: The wife cannot do anything about it; she cannot impugn the child.
The phrase states “either parent,” but admittedly, even if a woman complains on these grounds, she cannot impugn the child; only
her husband can
Notice again that there is nothing about the necessity of recording. Thus, if the husband & wife sign an instrument but fail to
register it, the artificially inseminated child will still be legitimate.
46
47
Art. 166 & 167 – only apply when the child has been delivered by his natural
mother (condition sine qua non)
o Do not apply when the alleged mother did not deliver the baby herself
o CASE: Chua Keng Giap v. IAC – If a person claims to be the son of an
alleged woman & of the decedent whose properties are being
liquidated, but said person was not actually delivered from the womb
of the alleged mother, the mother can validly declare that the said
person is not her child because she never gave birth to him
§
Ex. Husband was already dead. At the wake, suddenly, a
certain person came (X) who said to the wife, “I’m your
child.” It was held that X is not an offspring of the wife. Thus,
this Chapter cannot apply to X. OFFSPRING is the key
requisite for the application of this entire chapter.
o CASE: Benitez-Badua v. CA – A person claims to be the only daughter
of a deceased married couple. The oppositors, however, presented
evidence to show that the alleged “daughter” could not have been
that of the deceased, as they were both unable to physically
procreate. This is true even if the couple treated the daughter as their
own child, & even they even falsified a certificate of birth to reflect
that she was their child.
Declaration of Legitimacy
•
CC provisions provide presumptions; FC provisions are declarations
•
In all cases where a husband assails the legitimacy of an issue sired by his
wife, all doubts are resolved in favor of legitimacy because of the universal
presumption of legitimacy
o A woman is innocent until proven guilty (of having sex with someone
else)
Rebutting Presumption
•
While the presumption is a strong one, if reason & experience dictates that it
should not hold, then the presumption should be disregarded
o Only upon convincing evidence
•
Art. 166 – grounds to impugn legitimacy are exclusive
o Invoked by husband &, in proper cases, the heirs
•
Court needs clear & convincing proof of illegitimacy
120-300-Day Period
•
Ordinarily, a woman carries a child for 270-280 days after conception
•
Average longest period = 300 days (10 months)
•
First 120 days = 1st 4 months
•
When a child is born inside a marriage, sex is presumed between husband &
wife within the 1st 120 days of the 300 days immediately preceding the birth of
the child
o Any day within the 1st 120 days is presumed to be when the child was
conceived
Katrina Monica C. Gaw | Block C 2018| 108
o
Timespan bet. 120th day & 300th day = 180 days (6 months)
§
The period of viability
§
Child may be born without defects even if the gestation
period is only 6 months
Physical Incapacity
•
Impotence/sterility must be proven with evidence so strong & convincing as to
justify the bastardization of the child
•
CASE: Tarleton v. Thompson - Where it was shown that a man’s penis head was
already cut off & necessitated insertion of metal sounds for him to urinate, the
man still failed to impugn the legitimacy of the child because it was shown that
he still had sex with other women
Living Separately
•
To rebut presumption of legitimacy, the husband & wife have to live separately
in such a way that sex is truly impossible
•
Example: If the husband can prove he was living in another country for the
entire questioned period – has to be completely impossible
•
Mere remoteness is not sufficient to disavow paternity
o Bare testimony of the husband that he & his wife live 30 miles away
from each other at the time of the child’s conception is not enough to
show that the child is illegitimate, as sex with his wife was not
impossible given the distance
o Even the husband & wife living separately & 170 miles away is not
enough
•
A child born 11 years after the mother left her husband for England & came to
England with her paramour is proof that the child is not the legitimate son of
the husband
Serious Illness
•
Serious enough to absolutely prevent husband from engaging in sex
•
Doctor’s statement that the husband is truly not physically capable of
performing the sexual act as it was not possible for him to enter a woman in
such a manner as to allow the spermatozoa to find the ova
Biological & Scientific Reasons
•
If a DNA test proves with certainty that one is not the father
•
Can also be by the laws of nature:
o A white couple cannot have a black baby
o BUT parents must show evidence that they have zero black ancestry
Sterility
•
Relative condition, both as to degree & as to time
•
As proof of non-paternity on the grounds of biological or scientific reasons, the
husband must be shown to be completely sterile at the time the child was
conceived
•
It only takes one sperm to fertilize successfully
•
CASE: Lucas v. William – A husband was “sterile” 7 years before the birth of the
child, as shown by medical evidence, & an exam 4 years after the birth
indicated he was sterile at that time.
o
SC: The legitimacy of the child was not conclusively rebutted, because
there is still no proof that the husband was sterile at the time of the
conception of the child
Vasectomy
•
Not enough proof to rebut the presumption of legitimacy of a child sired
•
Must be coupled with concrete proof that the husband is completely sterile &
re-channelization of tubes did not occur
Scientific Testing
•
Several blood tests (such as A-B-O test) have only been accurate in excluding
paternity (ensuring a person is not the father)
•
Current test: DNA test – SC has declared it is a valid procedure for determining
paternity
o DNA result that excludes the putative father from paternity is
conclusive proof of non-paternity
Vitiated Consent in Artificial Insemination
•
If the written authorization or ratification is obtained through fraud, violence,
intimidation or undue influence, the legitimacy of the child may be impugned
o But only the husband can impugn, due to Art. 170, or heirs in Art. 171
o Fraud/undue influence can also be asserted by 3rd persons on both
the spouses or any one of them
•
Husband or heirs can allege that:
1) The wife was subjected to these causes, or
2) The husband was himself subjected to the same or
3) Both of them were subjected
•
Even if the mother was subjected to these cases, she cannot file a case to
impugn the legitimacy of the child because she is not given legal standing to do
so (Art. 167, 170, 171)
Non-Observance of Procedure Relative to Artificial Insemination
•
Law does not provide that the failure to comply with the procedure laid down in
Art. 164 will constitute a ground to impugn the legitimacy of a child
o However, if the husband consented & the sperm was his, it is almost
impossible that he would contest the legitimacy of the child
o If he decides to impugn the child later on, the case will fail, regardless
of lack of procedural compliance
§
He is bound by his consent
•
If the wife was able to obtain a sperm sample of her husband’s which the latter
contributed to a sperm bank & used it for artificial insemination w/o husband’s
knowledge
o Husband can impugn the legitimacy of the child using Art.
166(1)[a][b][c] & (2), as it was physically impossible for him to have
sex with his wife at the time the child was conceived
•
If the husband acceded to the artificial insemination of his wife using the
sperm of another man, & he fails to comply with the procedure in 2nd par. of
Art. 164, then allowed the prescriptive period for impugning the child to pass,
the child will be his legitimate child with is wife
Katrina Monica C. Gaw | Block C 2018| 109
•
•
If the donor were a man other than the husband & the husband, objecting to
the artificial insemination, did not want to comply with the procedure in Art.
164, he can impugn using Art. 166(1)[a][b][c] & (2).
o Same course of action if the husband initially acceded to the artificial
insemination, but failed or refused to comply with the requirements
under Art. 164, then later on impugned the child’s legitimacy
§
He must impugn within the prescriptive period in Art. 170
If the husband agrees to wife’s artificial insemination with another man’s
sperm & they observed all the requirements in Art. 164, he CANNOT impugn
the legitimacy of the child
o Art. 166 (1)(2) & (3) cannot be invoked because he knew the sperm
was not his before agreeing to the process
o Art. 166(2) also provides that, when Art. 164 is observed, impugning
legitimacy for biological or other scientific reasons cannot be invoked
Art. 168. If the marriage is terminated & the mother contracted another marriage within
300 days after such termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:
1) A child born before 180 days 50 after the solemnization of the subsequent
marriage is considered to have been conceived during the former marriage,
provided it be born within 300 days after the termination of the former
marriage;
2) A child born after 180 days 51 following the celebration of the subsequent
marriage is considered to have been conceived during such marriage, even
though it be born within the 300 days after the termination of the former
marriage.
Today, DNA is acceptable.
What is the probative value of DNA?
No match, conclusive presumption of no paternity
99.9%, refutable presumption of paternity. If there is no countervailing evidence,
paternity sticks.
Below 99.9%, there is corroborative evidence (you must give other evidence)
Art. 168 does not provide for a presumption of status; rather, it provides for a
presumption of conception.
Class Notes
•
Art. 168 merely provides for a presumption; can be disproven by DNA test
•
After 300 days have passed, there are no longer any presumptions
Access Presumed Prior to Termination of Marriage
•
Presumption holds even immediately before the official termination of the
marriage
o It is not unlikely that the couple had sex just prior to the death of one
of them or just before the issuance of JDAOM/JDNOM
•
Remember: Law fixes the period of 300 days as the longest gestation period
for a child inside the womb of the mother
50
51
Access Not Presumed After Termination Marriage
•
When the marriage tie is severed or void from the beginning, the essential
obligation of cohabitation is no longer present
o No need to observe mutual fidelity or render help or support
•
Presumption is that they obeyed the JDAOM/JDNOM & have separated
•
Art. 54: Children conceived or born before the finality of a decree of JDAOM
(Art. 45) or nullity (Art. 36) are considered legitimate
o Even after the issuance of the decree, children born or conceived
prior to the FINALITY of the decree are considered legitimate
o Unless appealed, decree become final after the lapse of 15 days from
the receipt of the decision
Presumption of Filiation in Case of 2 Marriages
•
If there is convincing proof of filiation that the father of the child is the previous
husband or the subsequent husband, the rules in Art. 168 will not apply
•
Art. 168 only applies “in the absence of proof to the contrary”
o 180-day period – shortest gestation period
o 300-day period – longest gestation period
•
There is no presumption as to legitimacy or illegitimacy; the presumption is only
with regard to WHEN the child is considered to have been conceived
o The status of the child depends on the status of the marriage in which
he is considered to have been conceived
•
If the mother marries a 2nd time & a child is born within 180 days from the
solemnization of the 2nd marriage & within the 300-day period after the
termination of the 1st marriage
o Child shall be considered to have been conceived in the 1st marriage
o It’s like saying that the 2nd husband & the wife only had sex when they
were already married & that the 1st husband & the wife had sex
before the end of their marriage
§
This rule avoids confusion & upholds woman’s virtue
o Whether the child is legitimate or illegitimate depends on the status
of the 1st marriage
§
Art. 36, 40 (52, 53), 45 – legitimate
§
All other void marriages – illegitimate
•
If the child is born after 180 days following the celebration of the 2nd marriage,
but within the 300-day period since the 1st marriage, it is considered to have
been the child of the 2nd marriage, in the absence of proof to the contrary.
o If on the 100th day after the termination of the 1st marriage, the
woman remarries…
§
A child born on the 181st day after the solemnization of the
2nd marriage is a child of the 2nd marriage
§
Art. 36, 40 (52, 53), 45 – legitimate
§
All other void marriages – illegitimate
Proof to the Contrary
•
If there is any confusion as to who the father is, or if the proofs are not
convincing or if there is no proof, then the presumptions in Art. 168 will apply
Less than 6 months from the termination of the 1st marriage
More than 6 months from the termination of the 1st marriage
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•
•
But if there is convincing proof, a child born after 180 days from the
celebration of the subsequent marriage but within 300 days from the 1st
marriage can still be recognized by law as the child of the 1st marriage
Once filiation is proven, the presumption of legitimacy attaches
o The father can still impugn such legitimacy on the basis of grounds in
Art. 166 & within the prescriptive periods provided in Art. 170
Art. 169. The legitimacy or illegitimacy of a child born after 300 days following the
termination of the marriage shall be proved by whoever alleges such legitimacy or
illegitimacy.
No Presumption for a Child Born After 300 Days After Termination of Marriage
•
In the absence of any subsequent marriage after the termination of the 1st
marriage, the father of a child born after 300 days from such termination can
be ANYBODY
o Includes the husband of the previous marriage
o Convincing proofs & evidence of filiation must be shown
•
CASE: People v. Velasquez – The child was allegedly born of rape, 10 months &
11 days after the alleged date of said rape. The law, however, assumes that
300 days (10 months) is the longest gestation period. Thus, 311 days would be
considered extraordinary by law & must be backed up with convincing
evidence.
o SC held that the circumstances seemed to point to the possibility of
subsequent sexual acts between the alleged rapist & his victim, thus
there was some doubt on whether or not the accused & the victim
actually had sex voluntarily. Thus, SC concluded that the 2 engaged in
sex more than once, as asserted by the alleged rapist, contrary to the
victim’s claims.
Art. 170. The action to impugn the legitimacy of the child shall be brought within 1 year
from the knowledge of the birth or its recording in the civil register, if the husband or, in a
proper case, any of his heirs, should reside in the city or municipality where the birth
took place or was recorded.
If the husband, or in his default, all of his heirs do not reside at the place of birth as
defined in the 1st paragraph or where it was recorded, the period shall be 2 years if they
should reside in the Philippines; & 3 years if abroad. If the birth of the child has been
concealed from or was unknown to the husband or his heirs, the period shall be counted
from the discovery or knowledge of the birth of the child or of the fact of registration of
said birth, whichever is earlier.
Art. 171. The heirs of the husband may impugn the filiation of the child within the period
prescribed in the preceding Art. only in the ff. cases:
1) If the husband should die before the expiration of the period fixed for bringing
his action;
2) If he should die after the filing of the complaint, without having desisted
therefrom; or
3) If the child was born after the death of the husband.54
54
Class Notes
•
Prescriptive period is:
o 1 year from the KNOWLEDGE of recording at the local civil registrar
o 1 year from the KNOLWEDGE of the birth of the child
•
Counted from the day of discovery; there is no need for due diligence on the
part of the husband
Parties
•
•
•
•
•
Impugning the legitimacy of a child is strictly a personal right
o CANNOT be set up as a defense
o CANNOT be a collateral issue or collaterally attacked
o Impugned only through a direct suit precisely filed for the purpose of
assailing the legitimacy of a child
Principally, only the HUSBAND can file a direct action
o Even if the child were conceived by a donor of sperm who is not the
husband
o His heirs can substitute him only under the conditions in Art. 171
The husband (& his heirs) is the sole judge of determining whether or not to file
a proceeding, or continue the proceeding, disputing the legitimacy of his wife’s
child
o The husband is the only person who can know he is not the father
o Generally, where a husband fails to file suit, no one can subsequently
assert the husband’s strictly personal right except the heirs in certain
but very restricted situations
Example: If a wife gives birth to a child of her paramour, the said child is born in
the valid marriage between her & her husband
o If not contested, the child is legitimate as to said husband & wife
o If the paramour files an action for the custody of the child, the action
shall be dismissed, because only the husband can claim the child is
illegitimate
CASE: Tison v. CA – A niece filed a reconveyance of certain properties formerly
belonging to her aunt, as she is one of her aunt’s heirs. To prove her filiation to
her aunt, she presented evidence showing that she was the legitimate
daughter of her father, who was the brother of her aunt. The respondent filed a
demurrer to evidence, claiming that the evidence presented by the niece was
not enough to prove her legitimate filiation to her father, & consequently, her
aunt.
o SC held that, though the evidences, taken separately & independently
of each other were not necessarily sufficient to establish proof of
legitimacy, the niece could nevertheless avail of the presumption of
legitimacy which was never controverted by any sufficient evidence by
the respondent (the respondent in this case was a 3rd party buyer of
the lot, not related to the family)
o Respondent also had no legal personality to impugn the legitimacy of
the niece, as the respondent was not the “husband” referred to in the
law
o Legitimacy can only be directly attacked by the husband of the niece’s
mother
A posthumous child born after the death of the alleged father
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•
•
•
•
CASE: Babiera v. Catotal – A legitimate child filed a suit to cancel the birth
certificate of her housemaid’s child who claimed to be her sister & therefore
also the legitimate child of her parents. (In this case, the child was not an
offspring of the wife, but the housemaid; thus, this Chapter cannot apply).
o It was proven that it was not the legitimate child’s mother who gave
birth to the housemaid’s child & that the birth certificate was forged
o SC rejected the contention of the housemaid’s child that the
legitimate child cannot anymore impugn her legitimacy on the ground
that only the father can do so & the action already prescribed
§
Art. 171 applies where the father (or the heirs) impugns the
legitimacy of his wife’s child; in Art. 171 the wife is the
undisputed mother of the offspring. In this case, though, it
was already proven that the mother did not give birth to the
housemaid’s child
§
There is no blood relation to impugn
§
Additionally, the action to nullify the birth certificate does
not prescribe, because it was void
o Also, in this case, it was the housemaid’s child who filed the suit & not
the child herself, &, being a party-in-interest, the child had the right to
bring up the legitimacy
Impugning the legitimacy of a child cannot be made in an action for partition,
as this is a collateral attack
o HOWEVER, if the issue in an action for annulment of extrajudicial
partition is the right of a particular person to inherit & there is an
assertion that the alleged heir was not in fact the child of the
deceased, a determination of filiation can be made
§
CASE: Spouses Fidel v. CA – One party contested that the
other party was not truly related to his father, who was long
ago deceased, & thus had no right to a specific property. SC
held that it was necessary to determine the filiation of the
party, to determine if he had the right to the property.
Heirs are only substitutes of the husband, & cannot file a case impugning the
legitimacy of the child if the husband is still alive
o Heirs can file when the husband dies, but also within the period
provided in Art. 170
o All heirs, whether testamentary, legal, compulsory or voluntary can file
The mother has no standing to file an action to impugn the filiation or
legitimacy of her children; maternity is never uncertain
Reason for the Limitation of Parties w/ Legal Standing
•
Protection of innocent children against attacks of paternity
•
Those who are not listed by law CANNOT impugn the legitimacy of a child
•
Persons who are without legal standing to impugn legitimacy:
o The actual father of the child impugning the legitimacy of a child in a
valid marriage between the mother and another man, because he is
not among those granted by law the right to make such impugnation
§
Biological father’s rights are subordinate to the collective
rights of the child, the mother, the presumed father & the
family unit
o The child himself, born inside a valid marriage, but aware that he has
a different father, cannot repudiate his own legitimacy
Prescriptive Periods
•
3 Prescriptive period for the husbands or heirs:
1) 1 year from knowledge of the birth or knowledge of the recording in the
civil registrar, if the impugner resides in the city or municipality where the
birth took place or was recorded;
2) 2 years from knowledge of the birth or knowledge of the recording in the
civil registrar, if the impugner resides in a place in the Philippines other
than the city or municipality where the birth took place or was recorded;
3) 3 years, if the impugner resides abroad
•
If the birth of the child has been concealed or is unknown to the impugners, the
period is counted from the discovery of the birth or recording, whichever is
earlier
•
After the lapse of this period, the status of the child born in a marriage
becomes fixed & can no longer be questioned
•
If the husband knew of the birth or recording of birth in the LCR, the
prescriptive period will start to run from that time
o NOT from the subsequent knowledge that the child is not his child
o Thus, if a husband were informed by a woman that a child of which he
is pregnant was his child & because of this, he marries her, & she
thereafter gives birth to the child in the presence of her husband who,
for more than a year later, discovers the child could not be his child,
he cannot anymore impugn the legitimacy of the child as the
prescriptive period has lapsed
•
Concealment referred to by the law does not refer to the conceal that the child
is not the husband’s, but concealment of the birth or the recording
CHAPTER 2: PROOF OF FILIATION
Art. 172. The filiation of legitimate children is established by any of the ff.:
1) The record of birth appearing in the civil register or a final judgment; or
2) An admission of legitimate filiation in a public document or a private
handwritten instrument & signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1) The open and continuous possession of the status of a legitimate child; or
2) Any other means allowed by the Rules of Court and special laws.
First paragraph:
1. Record of birth – must be signed by the father (SC: A record of birth not signed by the
father is not proof of filiation)
2. Public instrument – e.g., SSS E1 Form the father submitted to the SSS showing that
the child is theirs is enough to qualify under Art. 172 (latest SC decision)
3. Handwritten instrument – e.g., Dear wife, please take care of the child in your womb. I
love that child. Love, the future daddy (SC held this is enough, in the Luna decision. No
matter how informal the letter may be).
4. Final decision – e.g., father tried to eject his son from an apartment. The decision
states that the case is concerning X, the father, & Y, the son. This is NOT enough. The
final decision has to be one on filiation.
Q: A & B are married. A & C got into a bigamous marriage. A & C have a child, C Jr. In the
birth certificate of C Jr., it was C who signed as father.
Katrina Monica C. Gaw | Block C 2018| 112
A: As between a presumption of fact (the signature of C in the birth certificate) and a
presumption of law (a child born in a legitimate marriage is legitimate), the latter
prevails. C’s argument will thus fail.
Q: A impugns C Jr. Who can file a petition to claim the legitimate status of the child
making C the parent?
A: The child, C Jr.
Petition to claim legitimacy is transmissible to the heirs, but the petition to claim
illegitimacy is not transimissible to the heirs.
Second paragraph:
1. Open & continuous possession of status of a legitimate child – the continuous
possession must be spontaneous, with, clear, willing, intentional declaration of filiation
(it should not be because of pity, anger, or annoyance)
2. Rules of Court – this is where DNA comes in (DNA, pedigree, family bible)
If you are a LEGITIMATE child, you can use paragraph 1 or 2 whether the alleged father is
alive or not.
If you are an ILLEGITIMATE child, you can use all of them if the alleged father is alive. If
the alleged father is dead, you can no longer use paragraph 2.
Q: In an intestate proceeding, X, an illegitimate child, tries to claim the illegitimacy of the
child. Can he do so if he has 1,000 pictures taken from birth to death and also DNA
evidence?
A: No. He can only use paragraph 1.
Filiation Established
o Legitimacy cannot be made dependent on parental physiognomy or bodily
marks of similarity
o HOWEVER, resemblance between parent & child can serve as
material evidence to establish parentage IF accompanied by other
strong evidence, whether direct or circumstantial, to prove filiation of
the child
§
HOWEVER, SC has ruled that in the age of DNA testing, this
stuff feels obsolete
o Art. 164: For as long as a child is conceived or born inside a valid marriage,
they considered as legitimate
o If child is conceived & born outside a valid marriage or inside a void
marriage, they are declared by Art. 165 as illegitimate unless
otherwise provided by law
o Art. 172 refers to proofs of legitimacy; but according to Art. 175, they can also
be used to prove illegitimacy
o Art. 172 – does not derogate the declaration made by law; merely
provides for the necessary documentary evidence to prove claims of
legitimate or illegitimate filiation
o Legitimacy or illegitimacy does not arise from statements &
admissions made in documents mentioned in Art. (1) & (2); but from
the fact that the children were conceived or born inside a valid
marriage, or otherwise, for illegitimacy
o Hence, Art. 172 pales in legal significance to a clear showing that a child was
born inside a valid marriage or not for legitimacy or illegitimacy
o
Probative value of mentioned documents have great weight &
significance over all other evidence where
§
The children were born 300 days following the termination
of a marriage & no subsequent marriage was entered into
•
Art. 169 – legitimacy/illegitimacy shall be proven
by whoever alleges it
Record of Birth
•
Good proof as it proceeds from an official government source
•
Public document & prima facie evidence of the facts therein contained
o Statements in the record of birth may be rebutted
o BUT if there is no evidence to disprove the facts stated therein, the
presumption will hold & the children, as stated in the birth certificate,
will be legitimate
•
If certificate of live birth is signed by the parents (more particularly, the father),
such a certificate is self-authenticating & is a consummated act
o No need to file any further action for acknowledgement
•
If the alleged father did not sign the birth certificate, the placing of his name by
the mother, doctor or registrar is incompetent evidence of paternity
•
Between a presumption of fact created by a record of birth versus the
presumption of law in Art. 164, Art. 164 prevails
Final Judgment
•
A final judgment bearing on the status of the child as legitimate is binding &
conclusive
o A mere reportorial statement (obiter dictum) of the court, as opposed
to an actual final judgment, is not enough to establish filiation
•
A final judgment based on a compromise agreement where the parties agreed
regarding a status of a person is void – against public policy & law
o Art. 2035, CC: No compromise agreement upon the civil status of
persons is valid
o Paternity & filiation is a relationship that must be judicially
established
Admission in Public or Private Handwritten Document
•
An admission in a public instrument or a private handwritten document &
signed by the parent concerned is a complete act of recognition
o No need for court intervention
•
Will not qualify under the law if:
o A private document that is not in the handwriting of the supposed
parent
o Not a public instrument
o Examples of non-proof:
§
It has been held that a child’s written consent to the
operation of her alleged father, not being written in the
handwriting of the alleged father, is not a proof of filiation
§
A secondary student permanent record not signed by the
alleged father
§
A marriage contract stating that advice of the alleged father
was obtained, but said letter was not signed by the father
Katrina Monica C. Gaw | Block C 2018| 113
•
CASE: Lim v. CA – In this case, SC held that there was no doubt that the
petitioner was the father of the illegitimate child, due to the evidence fully
showing this.
o It was petitioner who paid the bills for the hospitalization of the
mother when she gave birth
o He cause the registration of the name of the child using his surname
in the birth certificate
o He wrote handwritten letters to the mom & child stating his promise
“to be a loving husband & father to both of you.”
o Various pictures of petitioner cuddling with child.
Open & Continuous Possession of Legitimate Status
•
In the absence of foregoing evidence, the legitimate or illegitimate filiation can
be proven by open & continuous possession of the status of being legitimate
•
“Continuous” as defined in Mendoza v. CA – does not mean that the
concession of status shall continue forever but only that it shall not be of an
intermittent character while it continues
o Father treats the child as his own, directly & not through others,
spontaneously & without concealment though without publicity
o Permanent intention of the supposed father to consider the child as
his own through clear & continuous manifestation of paternal
affection & care
•
Paternal affection & care must not be attributed to pure charity
•
CASE: Jison v. CA – Not only conviction of paternity, but also that apparent
desire to have & treat the child as such in all relations in society & life, not
accidentally, but continuously
o Higher standard of proof is needed; evidence must be clear &
convincing, such as:
§
Sending appellant to school, paying for tuition, school
uniforms, books, etc., defraying hospital expenses, providing
a monthly allowance, responding to appellant’s paternal
greetings, recommending her employment, allowing her to
use his home in Bacolod, allowing appellant to use his
surname
•
NOT considered open & continuous possession
o Supposed father & child have met only 4 times for money
o Must be spontaneous & uninterrupted
Evidence under the Rules of Court & Special Laws
•
NOT considered proof: pictures, typewritten letters, affidavits, use of surname
after father’s death without his consent
•
In earlier cases, SC did not allow baptismal records as proof of filiation
•
HOWEVER, in a more recent case SC held that “any means allowed by the
Rules of Court & special laws can be used”
o Baptismal certificates, judicial admission, family bible in which child’s
name is entered, admission by silence, testimony of witnesses (Rule
130, Rules of Court)
o But for baptismal certificate to be proof, it must be shown that the
father had therein participated in the preparation of the same; if not
signed, it is not competent proof
Where a priest who officiated the baptism claimed that he could
recognize the father of the child as he was there during the baptism,
but at the same time testified that he had to be shown a picture of
the father by the mother to be able to recognize him it was also held
that there was no concrete proof
Best proof is that father signed the birth/baptismal certificate
o
•
DNA Testing
•
Valid to prove paternity (as of 2002 case People v. Vallejo)
•
In assessing probative value, it must be established that the laboratory
complied with appropriate standards & controls, & had the available testing
data & results
o How the samples were collected. How they were handled, possibility
of contamination, procedure in analyzing samples, whether proper
standards were used in analyzing the samples & conducting the tests,
the qualification of the analyst who conducted it
•
If scientific, technical or other specialized knowledge will assist the trier of fact
in determining a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education may testify thereto in the form of an
opinion or otherwise if:
(1) The testimony is based upon sufficient facts or data
(2) The testimony is the product of reliable principles & methods
(3) The witness has applied the principles & methods reliably to the facts
of the case
•
99.9% is the minimum value of the Probability of Paternity prior to a paternity
inclusion
•
DNA analysis that excludes putative father from paternity should be conclusive
proof of non-paternity
o If the value is less than 99.9%, the results of DNA tests should serve
as corroborative evidence
o If the value of W is 99.9% or higher, then there is a refutable
presumption of paternity which should be subject to the Vallejo
standards (i.e. observance of proper procedures)
•
CASE: Lucas v. Lucas – The issue of a DNA testing order remains discretionary
upon the court. It may consider whether or not a DNA test is absolutely
necessary. If there is already preponderance f evidence to establish paternity &
the DNA test would only be corroborative, the court may choose to disallow the
DNA testing.
Art. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime & shall be transmitted to the heirs should the child die during minority or in a
state of insanity. In these cases, the heir shall have a period of 5 years within which to
institute the action.
The action already commenced by the child shall survive notwithstanding the death of
either or both of the parties.
Action to Claim Legitimacy
•
Right of action for legitimacy devolving upon the child is of a personal character
o Generally pertains exclusively to him
o Only the child may exercise it at any time during his lifetime
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•
•
Three cases where, as an exception, it may be transmitted to the heirs of the
child:
1) If he dies during minority
2) If he dies while insane
3) If he dies after the action and already been instituted
Right of actin accruing to the child lasts a whole lifetime; he may exercise it
either against the presumed parents, or the heirs of the presumed parents
Art. 174. Legitimate children shall have the right:
1) To bear the surname of the father & the mother, in conformity with the provisions
of the Civil Code on Surnames;
2) To receive support from their parents, their ascendants, & in proper cases, their
brothers & sisters, in conformity with the provisions of this Code on Support;
3) To be entitled to the legitime & other successional rights granted to them by the
Civil Code.
Q: The child can actually use the surname of the father OR the mother (Carulasan case).
The mother’s surname can be used if there are COMPELLING REASONS. In that case, the
child tried to change his surname because he did not like the surname “Carulasan”
because it is hard to pronounce Is that enough to use the mother’s surname?
A: NO. That reason is not considered compelling.
Q: Can a child take out the middle name which he got from his mom?
A: NO.
Rights of Legitimate Children
•
Greatest & preferential sum of rights is given to the legitimate child
Filing Claims & Proof
Transmission
to
Heirs of Right to File
Claim
Support in the Same
Direct Line
Successional Rights
Surname
Legitimate Child
Has his lifetime to file an
action
to
claim
legitimacy, regardless of
the type of proofs
provided for in Art. 172
Right to file an action to
claim legitimacy can be
transmitted to his heirs
(Art. 173)
Entitled
to
receive
support from any of his
ascendants
&
descendants (Art. 195 &
199)
Gets 1 whole portion as
legitime, as compared to
the illegitimate child
Principally bears the
surname of his father
Illegitimate Child
Has his lifetime to file an
action to claim illegitimacy only
if he uses proofs under par. 1
of Art. 172.
If he uses proofs under par. 2
of Art. 172, he only has until
the lifetime of the parent
Right of an illegitimate child is
not transferrable to his heirs
Entitled to receive support only
up to his grandparents & his
grandchildren (Art. 195 [2], [3])
Gets ½ of the legitime of a
legitimate child
Generally bears the surname of
the mother
Inheriting
intestato*
ab
(Art. 364, CC)
Legitimate child can
inherit ab intestato from
the legitimate children &
relatives of his father or
mother
No right to inherit ab intestato
from the legitimate children &
relatives of his father or
mother (Art. 992, CC)
*Example: X has a legitimate child Y.
•
Y has 2 children: 0, who is legitimate, & P, who is illegitimate
•
If Y dies before X, then X later dies…
o O will inherit from X by right of representation, as Y would have
inherited had he not died prior to X (Art. 970-973, CC)
o P cannot inherit by right of representation, because illegitimate
children cannot inherit from legitimate relatives (Art. 992, CC), such
as X, though X is P’s grandfather
•
RULE: Illegitimate children are entitled to support until their grandparents, but
they get no inheritance from their grandparents
o Inheritance of illegitimate children is limited to inheritance from their
parents
CHAPTER 3: ILLEGITIMATE CHILDREN
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way &
on the same evidence as legitimate children.
The action must be brought within the same period as specified in Art. 174, except when
action is based on the 2nd par. of Art. 172, in which case the action may be brought
during the lifetime of the alleged parent.
Obligation of Father to Illegitimate Child
•
Support
•
(Possibly) a surname
Claim of Illegitimate Children
•
A child is born outside a valid marriage or inside a void marriage, except Art. 54
•
If a philandering husband has a concubine, a child of such concubine by said
philandering husband is surely illegitimate
o Illegitimate child may file an action to claim his illegitimate status
o BUT if the concubine has her own spouse, the child cannot file an
action to claim his illegitimate status against the philandering
husband thought the latter is his natural father
§
The child is born in the valid marriage of the concubine &
her own husband, so the child is legitimate, but under this
marriage the concubine’s spouse is the one with the power
to file a case to impugn the legitimacy o the child
§
If concubine’s spouse never files a case, the child will
continue to be the legitimate child of the concubine & her
spouse, & not the illegitimate child of the concubine & the
philanderer
Katrina Monica C. Gaw | Block C 2018| 115
§
§
§
Proofs
•
•
•
•
To allow a child to file a case to claim his illegitimate status
would allow him to impugn his legitimate status, which
cannot be done
Only concubine’s spouse & his heirs can file a case
regarding the child’s legitimacy
The child can only file to claim his illegitimate status if the
concubine’s spouse or his heirs are successful in
questioning his legitimacy under the marriage of the
concubine & her spouse
•
Child must have proofs of filiation & must follow
prescriptive periods
Same proofs in Art. 172 may be used for illegitimate children in proving filiation
Explanation in Art. 173 is also applicable to 174
A judicial testimony which has not been rebutted or disputed by the alleged
father is sufficient to prove paternity
CASE: Mendoza v. CA – Established the rules of evidence in proving paternity
o “Any other means allowed by the Rules of Court” – may consist of a
combination of various proofs, such as: baptismal certificate, family
bible, common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, other kinds of proof admissible
in Rule 130 of the Rules of Court
o The father’s grandparents also admitted that the daughter in the case
was their son’s child
§
Rule 130, Sec. 39 – “The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be
received in evidence where:
•
It occurred before the controversy
•
The relationship between the persons is shown by
evidence other than such act or declaration
•
Serves as an exception to the hearsay rule
§
“Pedigree” includes relationship, family genealogy, birth,
marriage, death, the dates when & the places where these
facts occurred, & the names of the relatives (facts of family
history)
§
In the case, the witnessed testified that he was informed by
his father, who was the brother of the alleged father in the
case, & his grandmother, that the petitioner was the
daughter of the alleged father
o Rules for the admission of declarations of pedigree into evidence:
1) The declarant is dead or unable to testify
2) The pedigree must be in issue
3) The declarant must be a relative of the person whose pedigree is
in issue
4) The declaration must be made before the controversy
5) The relationship between the declarant & the person whose
pedigree is in question must be shown by evidence other than
such declaration
•
CASE: Jison v. CA - Private letters & notes were presented to prove filiation
under the Rules of Court, Sec. 40: “entries in family bibles or other family books
or charts, engravings on rings, family portraits & the like”; however SC ruled
that such private documents do not fall under the phrase “and the like” of the
said rule
o
“And the like” is limited to objects which are commonly known as
“family possessions” & are in effect, a family’s joint statement of its
belief as to the pedigree of a person
o
Other possibilities: tombstones, monuments or coffin plates
•
CASE: Constantino v. Mendez – If the birth of the illegitimate child is way
beyond 9 months from the approximate time of conception, this can negate any
claim of filiation
o
The woman claimed she had sex with the alleged father on the first
week or second week of November, 1974 but at the same time she
later said she could not remember the date of their last sexual
intercourse in November 1974; thus, she failed to establish the
crucial point on direct examination on which specific date or dates
she had sex with the alleged father
o
It is not enough that she said they had sex on “September, October &
November, 1974” if she cannot say for certain they had sex on the
crucial dates
o
Furthermore, the child was born on August 3, 1975, when there is
proof that the mother sent a letter to her attorney on February 11,
1975 that she was 4 months pregnant with a child—way past the
traditional 267 days for a full term baby, which the mother said her
baby was
o
The evidence of paternity was held to be not clear & convincing
CASE: Verceles v. Posada – Admitted love letters of petitioner in his own
handwriting & using an alias, declaring that, should respondent be pregnant, he
will have no regrets, qualifies as a private handwritten instrument that can
establish filiation
CASE: Salas v. Matusalem – birth certificate unsigned by the dad, dad’s
handwritten notes without statements admitting paternity, mere proof of visits
& photos of the mom, dad, & child together were NOT deemed to be
overwhelming evidence, documentary & testimonial, enough to prove filiation
•
•
Prescriptive Period
•
Par. 1, Art. 172 – Illegitimate child has whole lifetime to bring action
•
Par. 2, Art. 172 – During the lifetime of the alleged parent only
o CASE: Tayag v. CA – An illegitimate child brought an action for
partition after the death of the alleged father & prior to the effectivity
of FC. The issue on his illegitimacy had to be answered collaterally. Is
ground was his alleged continuous possession of the status of an
illegitimate child.
§
SC: When the case hit SC, FC had taken effect. Thus, SC
dismissed the case because the father had died, & thus the
illegitimate child could no longer use this ground to prove
filiation.
Katrina Monica C. Gaw | Block C 2018| 116
•
A party must be allowed to adduce proof of his illegitimacy to be able to know
whether he falls under Art. 172 par. 1 or 2.
Art. 176. Illegitimate children shall use the surname & shall be under the parental
authority of their mother, & shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has
been expressly recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is
made by the father. Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of ½ of the legitime of a legitimate child.
GR: Illegitimate child’s surname is the mother’s surname.
EXC: If the illegitimate child wants to use the surname of the father, there is no need to
go to court (unlike when the child is legitimate who wants to use the mom’s surname).
The illegitimate child only needs to go to LCR, with affidavit of father consenting, & have
that registered.
If an illegitimate child uses the surname of the mother, is there a middle name for the
illegitimate child?
The illegitimate child will not have a middle name. (SC decision)
But an illegitimate child who uses the surname of the father would have a middle name
(i.e., the mother’s).
Q: An illegitimate child was allowed to use the surname of the father following the
requisites of the law. Can the mother ask that the surname be reverted to hers again?
A: Yes, the mother can if she goes to court.
Rights of an Illegitimate Child
•
Surname of the mother
•
½ the legitime of a legitimate child
Parental Authority
•
Illegitimate child is under the parental authority of the mother
o Father is NOT given parental authority, even if there is recognition on
his part that the child is his
•
CASE: David v. CA (Briones)– Where a person who lives exclusively with his
legitimate family got hold of his legitimate son from the mother, who was
obviously not living with the father, X stated that the illegitimate son is under
the parental authority of the mother who, as a consequence of such authority,
is entitled to have custody of him.
o Paternity is certain, but the father was not cohabiting with the mother.
•
But for Sta. Maria, this ruling by Briones is quite strict.
o Sta. Maria: If the alleged father admits that the child is his & it is
shown that it is really conclusively his child & he even acknowledges
that the child is his, & the said father lives together with the child &
the mother under a void marriage without the benefit of marriage, Art.
211 applies – “the father & mother shall jointly exercise parental
authority over the person of their common children. In case of
disagreement, the father’s decision shall prevail, unless there is a
judicial order to the contrary.”
•
•
o In this case, parental authority will be exercised by both dad & mom
Once parental authority is established, it cannot be waived except in cases of
o Adoption
o Guardianship &
o Surrender to a children’s home or orphan institution
But parental authority can be terminated on legal grounds provided in FC
Surname
o Surname of the mother is used, generally.
o But illegitimate children may use the surname of their father if their filiation has
been expressly recognized by the father through
o Record of birth appearing in the civil registrar
o Admission in a public document or private handwritten instrument
made by the father
o Nevertheless, father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime
CHAPTER 4: LEGITIMATED CHILDREN
Art. 177. Children conceived & born outside of wedlock of parents who, at the time of the
conception of the former, were not disqualified by any impediment to marry each other,
or were so disqualified only because either or both of them were below 18 years age,
may be legitimated.
Art. 178. Legitimation shall take place by a subsequent valid marriage between parents.
The annulment of a voidable marriage shall not affect legitimation.
Art. 179. Legitimated children shall enjoy the same rights as the legitimate children.
Art. 180. The effects of legitimation shall retroact to the time of the child’s birth.
Statutory Creation
•
Before a child may be legitimated, requirements of law must be strictly
complied with
•
Remedial in character – intended for the benefit & protection of innocent
offspring; may be applied retroactively & must be liberally construed
(nevertheless, requirements must be complied with)
Requirements
•
The mandatory requisites for legitimation:
1) Parents do not suffer any legal impediment OR are only disqualified to
marry because either or both of them were 18 at the time of the
conception of the child by the mother
2) The child has been conceived & born outside a valid marriage
3) The parents subsequently enter into a valid marriage
a. This last step legitimates the child
b. Even a later annulment will not change legitimacy anymore
•
It has been held that where the essential elements of legitimation existed prior
to the passage of the legitimating statute, legitimation is deemed to occur as of
the time the statute becomes effective
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Example: In the Civil Code, before a child could be legitimated, such
child must also be first acknowledged by the father
§
If B gives birth to X in 1983 & father M does not want to
acknowledge that X is his child, X will not be legitimated
even if B & M enter into a subsequent valid marriage in
1984
§
However, on Aug. 3 1988, X will be legitimated even if M still
does not acknowledge him.
HOWEVER, when a legitimating statute adopted after the birth of an illegitimate
child may have the effect of legitimating the child, it will NOT affect property
rights which have already vested
o Using the same example, if M dies in 1985 & X is considered
legitimated in Aug. 3 1988, X will not have a claim anymore as to
property rights which have been transferred to the legitimate children
of B & M upon M’s death.
Generally, legitimation cannot occur if either or both of the parents, at the time
of the conception of the child, were disqualified by any impediment to marry thus, such a child would never be legitimated
o EXCEPT if the impediment is that either or both being under 18
o Cannot be legitimated:
§
Adulterous children, especially if the parents marry years
after the birth of the child
§
Bigamous children
o
•
•
Effects of Legitimation
•
Retroacts to the child’s birth
•
Enjoy the same rights as legitimate children
•
Unlike adoption where the extent of filial relationship is defined by law, the
provisions on legitimation puts the legitimated child on equal footing with the
child born legitimate
o Adoption – only relationship created is between parent & child
o Legitimation – creates the total & full extent of the blood-relationship
existing within the family, including all ascendants, descendants &
collateral relatives
Art. 181. The legitimation of children who died before the celebration of the marriage
shall benefit their descendants.
Benefit to Descendants
•
Art. 195(2) – Legitimate ascendants & descendants are obliged to support
each other
o A great grandparent is obliged to support his great grandchild
o Art. 195(4) – In case there is an illegitimate child involved, parents
are only obliged to support their illegitimate children & the illegitimate
children of the latter only (illegitimate grandchildren)
•
Example: Maria and Jose are not married but are capacitated to marry. They
have an illegitimate child, Pedro. Pedro in turn has a child, Miguel. Miguel then
has a child, Jose.
o
o
Miguel, Maria & Jose’s grandchild, is entitled to support from them.
Jose, however, Maria & Jose’s great grandchild, is not entitled to
support
HOWEVER, if Maria & Jose marry after Pedro dies, Jose will be entitled
to support as the legitimated great grandchild
Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights,
within 5 years from the time their cause of action accrues.
Prescriptive Period
•
Rights here are understood to be successional rights
o Those who can be prejudiced – legal heirs of parents
o If the legitimated child continued to be illegitimate, said child would
only be given half the inheritance of a legitimate child
•
If the legitimation is irregular, the heirs can file suit to protect their rights
•
Cause of action: only upon the death of the parents of the legitimated child
•
Even an adopted child can be a prejudiced heir of his adopter & his natural
parents in case a child of the said parents is legitimated
TITLE VII. – ADOPTION
(Repealed)
Domestic Adoption Act of 1998 [RA 8552] - Feb. 25, 1998
(Only relevant provisions are cited)
Salient Points in Adoption according to Dean Sta. Maria:
1. If you are a stranger adopting a person or child not related to you by blood, you must
show that there is no one in the extended family wants to adopt the child. If you fail to
show that, the case is dismissed.
2. Whereas before, aliens can adopt by way of exception, today, aliens are included in
the general rule and can adopt.
3. Adoption can be rescinded only be the adopted. BUT a void adoption decree can be
annulled and questioned by any party, even collaterally.
4. Pre-birth arrangements or contracts are illegal. This is an act which presumes
trafficking in children under RA 7610.
5. For adoption, international conventions can be availed of to determine the paramount
interest of the child. But our jurisprudence is replete with information on the paramount
interest of children.
6. Generally, there are two steps in adoption: the administrative part, and the judicial
part. In the administrative part is generated all necessary requirements, so that the
Secretary of the DSWD will issue a certificate for availability for adoption. During the
administrative phase, there will be evaluation of all the parties concerned (adoptee,
adopted, biological parents). This is now mandatory. If the child is abandoned, then there
must first be a declaration of abandonment. Whereas the court previously declared a
child abandoned, the declaration of abandonment is now made by the DSWD
administratively.
Nevertheless, the parent shall be searched thoroughly during the administrative case.
The trial period can also occur during the administrative phase.
Then there is the judicial phase. It is a special proceeding where the endpoint is a
decision. The adoptive parents will be considered as such not from the finality of the
Katrina Monica C. Gaw | Block C 2018| 118
decision, but from the filing of the petition.
7. Simulated birth certificate immunity is now over. Before, there was a law that if there
is a subsequent adoption, no one will be prosecuted for simulating a birth certificate. But
that law has already lapsed.
Sec. 2. Declaration of Policies. – (a) It is hereby declared the policy of the State to ensure
that every child remains under the care and custody of his/her parent(s) and be provided
with love, care, understanding and security towards the full and harmonious
development of his/her personality. Only when such efforts prove insufficient and no
appropriate placement or adoption within the child's extended family is available shall
adoption by an unrelated person be considered.
(b) In all matters relating to the care, custody and adoption of a child, his/her interest
shall be the paramount consideration in accordance with the tenets set forth in the
United Nations (UN) Convention on the Rights of the Child; UN Declaration on Social and
Legal Principles Relating to the Protection and Welfare of Children with Special
Reference to Foster Placement and Adoption, Nationally and Internationally; and the
Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. Toward this end, the State shall provide alternative protection and
assistance through foster care or adoption for every child who is neglected, orphaned, or
abandoned.
Sec. 3. Definition of Terms. (a) “Child” is a person below 18 years of age. [Note the
difference in R.A. 9523 below]
(b) "A child legally available for adoption" refers to a child who has been voluntarily or
involuntarily committed to the Department or to a duly licensed and accredited childplacing or child-caring agency, freed of the parental authority of his/her biological
parent(s) or guardian or adopter(s) in case of rescission of adoption.
(c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly
relinquishes parental authority to the Department.
(d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been
permanently and judicially deprived of parental authority due to abandonment;
substantial, continuous, or repeated neglect; abuse; or incompetence to discharge
parental responsibilities.
(e) "Abandoned child" refers to one who has no proper parental care or guardianship or
whose parent(s) has deserted him/her for a period of at least 6 continuous months &
has been judicially declared as such. [Note the difference in R.A. 9523 below]
(f) "Supervised trial custody" is a period of time within which a social worker oversees the
adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their
filial relationship.
(g) "Department" refers to the Department of Social Welfare and Development.
(h) "Child-placing agency" is a duly licensed and accredited agency by the Department to
provide comprehensive child welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive parents, and preparing the
adoption home study.
(i) "Child-caring agency" is a duly licensed and accredited agency by the Department that
provides 24-hour residential care services for abandoned, orphaned, neglected, or
voluntarily committed children.
(j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth
records that a certain child was born to a person who is not his/her biological mother,
causing such child to lose his/her true identity and status.
Statutory Construction
•
Adoption is a purely statutory creation
o All statutory requirements for adoption must be met
o Where a court issues an adoption decree despite the fact that all said
requirements are not met, such decree is a nullity.
o Example: A child by adoption cannot inherit from the parent by
adoption unless the act of adoption has been done in strict accord
with the statute
•
Burden of proof: the person claiming such relationship
o One must prove compliance with statutes relating to adoption in the
jurisdiction where the adoption occurred
•
If the mandatory requirements are present, & there are only irregularities,
substantial compliance with mandatory requisites is enough
•
Always, the primary consideration in adoption is the interest & welfare of the
child
M: The adopted is not a sibling of the natural child of the adopter. The adopted is not
related to the father of the adopter. The only creation of the law in adoption, by legal
fiction, is that of parent & child.
Yet at the same, despite the creation of only that relationship, there are some
prohibitions – like a legitimate child of the adopter cannot marry the adopted child of the
adopter. These explicit statutory provisions, you must take note of.
CASE: Republic v. Bobiles
In an adoption proceeding, the technical rules of pleading should not be stringently
applied.
Facts: Zenaida filed a petition to adopt a child, Jason. Only her name appeared formally
in the petition for adoption as petitioner, though the affidavit of consent attached as an
annex to the pleading showed that Dioscoro, her husband, consented to adopting Jason
& Dioscoro & Zenaida both “mutually desired to adopt” Jason. The lower court held that
only Zenaida successfully became Jason’s adopter, & not Dioscoro. Was the lower court
correct?
Held: No. In an adoption proceeding, the technical rules of pleading should not be
stringently applied. It is deemed more important that the petition should give facts
relating to the child & its parents, which may give information to those interested, than
that it should be formally correct as a pleading. The declarations of Dioscoro & his
subsequent confirmatory testimony in open court are sufficient to make him copetitioner. Punctiliousness in language should yield to & be eschewed in the higher
considerations of substantial justice. The future of an innocent child must not be
compromised by arbitrary insistence of rigid adherence to procedural rules in the form of
pleadings.
Philosophy Behind Adoption
•
Old tendency: benefits the parents, so they have the opportunity to have a child
•
Present tendency: geared towards the promotion of the welfare of the child & the
enhancement of his or her opportunities for a useful & happy life
Sec. 4. Counseling Services. –The Department shall provide the services of licensed
Katrina Monica C. Gaw | Block C 2018| 119
social workers to the following:
(a) Biological Parent(s) – Counseling shall be provided to the parent(s) before and after
the birth of his/her child. No binding commitment to an adoption plan shall be permitted
before the birth of his/her child. A period of 6 months shall be allowed for the biological
parent(s) to reconsider any decision to relinquish his/her child for adoption before the
decision becomes irrevocable. Counseling and rehabilitation services shall also be
offered to the biological parent(s) after he/she has relinquished his/her child for
adoption.
Steps shall be taken by the Department to ensure that no hurried decisions are made
and all alternatives for the child's future and the implications of each alternative have
been provided.
(b) Prospective Adoptive Parent(s) – Counseling sessions, adoption fora and seminars,
among others, shall be provided to prospective adoptive parent(s) to resolve possible
adoption issues and to prepare him/her for effective parenting.
(c) Prospective Adoptee – Counseling sessions shall be provided to ensure that he/she
understands the nature and effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.
Search for Biological Parents
•
The natural & biological parents of the child are always given the preference in
the custody of their own children
•
Before adoption can proceed, the law requires that the child’s parents, if
unknown, must be located & that all reasonable means must be exhausted to
look for them
Intermission: An Act Requiring Certification from the DSWD to Declare a
Child “Legally Available for Adoption,” Amending the Domestic Adoption
Act of 1998, the Intercountry Adoption Act & P.D.603 [RA 9523]
(Only relevant provisions are cited)
Sec. 2 – Definition of Terms
(2) Child refers to a person below 18 years of age or a person over 18 years of age but is
unable to fully take care of him/herself or protect himself/herself from abuse, neglect,
cruelty, exploitation, or discrimination because of physical or mental disability or
condition.56
(3) Abandoned Child refers to a child who has no proper parental care or guardianship,
or whose parent(s) have deserted him/her for a period of at least 3 continuous months,
which includes a founding.
(4) Neglected Child refers to a child whose basic needs have been deliberately
unattended or inadequately attended within a period of 3 continuous months. Neglect
may occur in 2 ways:
(a) There is physical neglect when the child is malnourished, ill-clad, and without
proper shelter. A child is unattended when left by himself/herself without proper
provisions and/or without proper supervision.
(b) There is emotional neglect when the child is maltreated, raped, seduced,
exploited, overworked, or made to work under conditions not conducive to good
health; or is made to beg in the streets or public places; or when children are in
moral danger, or exposed to gambling, prostitution, and other vices.
(5) Child Legally Available for Adoption refers to a child in whose favor a certification was
56
issued by the DSWD that he/she is legally available for adoption after the fact of
abandonment or neglect has been proven through the submission of pertinent
documents, or one who was voluntarily committed by his/her parent(s) or legal guardian.
(6) Voluntarily Committed Child is one whose parent(s) or legal guardian knowingly and
willingly relinquished parental authority to the DSWD or any duly accredited childplacement or child-caring agency or institution.
(7) Child-caring agency or institution refers to a private non-profit or government agency
duly accredited by the DSWD that provides 24 hour residential care services for
abandoned, neglected, or voluntarily committed children.
(8) Child-placing agency or institution refers to a private non-profit institution or
government agency duly accredited by the DWSD that receives and processes applicants
to become foster or adoptive parents and facilitate placement of children eligible for
foster care or adoption.
(9) Petitioner refers to the head or executive director of a licensed or accredited childcaring or child-placing agency or institution managed by the government, local
government unit, non-governmental organization, or provincial, city, or municipal Social
Welfare Development Officer who has actual custody of the minor and who files a
certification to declare such child legally available for adoption, or, if the child is under
the custody of any other individual, the agency or institution does so with the consent of
the child's custodian.
(10) Secretary refers to the Secretary of the DSWD or his duly authorized representative.
(11) Conspicuous Place shall refer to a place frequented by the public, where by notice
of the petition shall be posted for information of any interested person.
(12) Social Case Study Report (SCSR) shall refer to a written report of the result of an
assessment conducted by a licensed social worker as to the social-cultural economic
condition, psychosocial background, current functioning and facts of abandonment or
neglect of the child. The report shall also state the efforts of social worker to locate the
child's biological parents/relatives.
Definition of a Child
•
Person below 18 years of age, or
•
Person over 18 years of age but is unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation or discrimination because of
physical or mental disability or condition
Consent of Parents
•
As much as possible, the consent of the biological parents is necessary for the
child to be adopted
Relevant Note: This is the definition of children that ma’am told us to search for
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Sec. 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn
to before any person authorized by law to administer oaths. It shall contain facts
necessary to establish the merits of the petition and shall state the circumstances
surrounding the abandonment or neglect of the child.
The petition shall be supported by the following documents:
(1) Social Case Study Report made by the DSWD, local government unit, licensed or
accredited child-caring or child-placing agency or institution charged with the custody of
the child;
(2) Proof that efforts were made to locate the parent(s) or any known relatives of the
child. The following shall be considered sufficient:
(a) Written certification from a local or national radio or television station that the
case was aired on 3 different occasions;
(b) Publication in 1 newspaper of general circulation;
(c) Police report or barangay certification from the locality where the child was
found or a certified copy of a tracing report issued by the Philippine National Red
Cross (PNRC), National Headquarters (NHQ), Social Service Division, which
states that despite due diligence, the child's parents could not be found; and
(d) Returned registered mail to the last known address of the parent(s) or known
relatives, if any.
(3) Birth certificate, if available; and
(4) Recent photograph of the child and photograph of the child upon abandonment or
admission to the agency or institution.
committed a child may recover legal custody and parental authority over him/her from
the agency or institution to which such child was voluntarily committed when it is shown
to the satisfaction of the DSWD that the parent(s) or legal guardian is in a position to
adequately provide for the needs of the child: Provided, That, the petition for restoration
is filed 3 months after the signing of the Deed of Voluntary Commitment.
Sec. 8. Certification. – The certification that a child is legally available for adoption shall
be issued by the DSWD in lieu of a judicial order, thus making the entire process
administrative in nature.
The certification, shall be, for all intents and purposes, the primary evidence that the
child is legally available in a domestic adoption proceeding, as provided in RA No. 8552
& in an inter-country adoption proceeding, as provided in RA No. 8043.
Regular Programming: Domestic Adoption Act of 1998
Sec. 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional
office of the DSWD where the child was found or abandoned.
The Regional Director shall examine the petition and its supporting documents, if
sufficient in form and substance and shall authorize the posting of the notice of the
petition conspicuous place for 5 consecutive days in the locality where the child was
found.
The Regional Director shall act on the same and shall render a recommendation not later
than 5 working days after the completion of its posting. He/she shall transmit a copy of
his/her recommendation and records to the Office of the Secretary within 48 hours from
the date of the recommendation.
Sec. 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the
Secretary shall issue a certification declaring the child legally available for adoption
within 7 working days from receipt of the recommendation.
Said certification, by itself shall be the sole basis for the immediate issuance by the local
civil registrar of a foundling certificate. Within 7 working days, the local civil registrar
shall transmit the founding certificate to the National Statistic Office (NSO).
Sec. 7. Declaration of Availability for Adoption of Involuntarily Committed Child and
Voluntarily Committed Child. – The certificate declaring a child legally available for
adoption in case of an involuntarily committed child under Article 141, par. 4(a) and
Article 142 of PD No. 603 shall be issued by the DSWD within 3 months following such
involuntary commitment.
In case of voluntary commitment as contemplated in Article 154 of PD No. 603, the
certification declaring the child legally available for adoption shall be issued by the
Secretary within 3 months following the filing of the Deed of Voluntary Commitment, as
signed by the parent(s) with the DSWD.
Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily
Katrina Monica C. Gaw | Block C 2018| 121
Sec. 7. Who May Adopt. – The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of
good moral character, has not been convicted of any crime involving moral turpitude,
emotionally and psychologically capable of caring for children, at least 16 years older
than the adoptee, and who is in a position to support and care for his/her children in
keeping with the means of the family. The requirement of 16 year difference between
the age of the adopter and adoptee may be waived when the adopter is the biological
parent of the adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for Filipino
nationals: Provided, That his/her country has diplomatic relations with the Republic of
the Philippines, that he/she has been living in the Philippines for at least 3 continuous
years prior to the filing of the application for adoption and maintains such residence until
the adoption decree is entered, that he/she has been certified by his/her diplomatic or
consular office or any appropriate government agency that he/she has the legal capacity
to adopt in his/her country, and that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter: Provided, Further, That the
requirements on residency and certification of the alien's qualification to adopt in his/her
country may be waived for the following:
(i) A former Filipino citizen who seeks to adopt a relative within the 4th degree of
consanguinity or affinity; or
(ii) One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse;
or
(iii) One who is married to a Filipino citizen and seeks to adopt jointly with his/her
spouse a relative within the 4th degree of consanguinity or affinity of the Filipino
spouse; or
(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) If one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) If one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
However, that the other spouse has signified his/her consent thereto; or
(iii) If the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the spouses.
•
•
There are, however, additional conditions:
1) His country has diplomatic relations with the Republic of the Philippines
2) He has been living in the Philippines for 3 continuous years prior to the
filing of the application for adoption & maintains such residence until the
adoption decree is entered
3) He has been certified by his diplomatic or consular office or any
appropriate government agency that he has the legal capacity to adopt in
his country, & the government allows the adoptee to enter his country as
his adopted son or daughter
Certificate of residency & certificate of eligibility requirements may be waived if
the alien who intends to adopt is either of the ff.:
1) A former Filipino citizen who seeks to adopt a relative within the 4th civil
degree of consanguinity or affinity
2) One who seeks to adopt the legitimate the son/daughter of his Filipino
spouse
3) One who is married to a Filipino citizen & seeks to adopt jointly with his
spouse a relative within the 4th civil degree of consanguinity or affinity of
the Philippine spouse
Joint Adoption of Husband & Wife
•
Mandated by law for family harmony
•
BUT there are exceptions to the rule; for example, a husband may choose to
adopt his illegitimate child, though not jointly
CLASS DISCUSSION
Q: Can you adopt your older sister or brother?
A: No. You can only adopt your younger siblings.
Sec. 8. Who May Be Adopted. – The following may be adopted:
(a) Any person below 18 years of age who has been administratively or judicially declared
available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that
of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive has died: Provided, That no proceedings shall be
initiated within 6 months from the time of death of said parents.
Qualifications
•
Relatives by blood or affinity are not excluded from adopting one another
•
A sister can adopt a brother, a stepfather can adopt a stepchild, etc.
•
Adoption tries to approximate natural filiation as much as possible, but it is still
the best interest of the child or the one to be adopted which is the principal
consideration
•
Conviction is necessary to exclude a possible adopter
Who May Be Adopted
•
Situations when someone who is not a minor can be adopted:
o When the child adopted is the illegitimate child of the adopter
o When the child to be adopted is the legitimate child of his spouse
o De facto adoption - When the child is consistently treated as a child of
the adopted during minority
Aliens
•
Sec. 9. Whose Consent is Necessary to the Adoption. – After being properly counseled
and informed of his/her right to give or withhold his/her approval of the adoption, the
written consent of the following to the adoption is hereby required:
(a) The adoptee, if 10 years of age or over;
Aliens, whether resident or non-resident, can generally adopt as long as they
have the qualifications possessed by a Filipino national to adopt
Katrina Monica C. Gaw | Block C 2018| 122
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, 10 years of age or over, of the
adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, 10 years of age or over, of the adopter if living with
said adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.
Written Consent
•
Mandatory written consent of biological parents, as well as others
o Consent of parents to the adoption is not an absolute requisite
§
If the natural parents have abandoned their children,
consent by the guardian ad litem & the proper government
agency suffices
§
Abandonment – total cessation of all parental duties
•
A period of 6 months is given for the biological parent to reconsider permission
to adopt, but after this, the decision becomes irrevocable
•
Parent has to be properly counseled before the adoption decree can be given
CLASS DISCUSSION
Q: Can you adopt a person who is married?
A: Yes. Though as a general rule, only a minor may be adopted, there are cases where
those of majority age may be adopted, provided that he qualifies based on statutory
requirements. This is proven by Section 9 (e).
Q: Should the consent be in an affidavit form?
A: It need not be. But by practice, courts ask for an affidavit form of written consent. But
in that one particular case, Aranzanso, it was not in affidavit form. It was not required in
the law. And in the same case, it was held that the one who executes the affidavit need
not …. Testify?! Something like that, read original [read case, in the book! But it’s not
complete]
Written consent of the BIOLOGICAL parent is needed. Also, the legal father (adopter)’s
consent is needed.
Sec. 13. Decree of Adoption. – If, after the publication of the order of hearing has been
complied with, and no opposition has been interposed to the petition, and after
consideration of the case studies, the qualifications of the adopter(s), trial custody report
and the evidence submitted, the court is convinced that the petitioners are qualified to
adopt, and that the adoption would redound to the best interest of the adoptee, a decree
of adoption shall be entered which shall be effective as of the date the original petition
was filed. This provision shall also apply in case the petitioner(s) dies before the
issuance of the decree of adoption to protect the interest of the adoptee. The decree
shall state the name by which the child is to be known.
Effectivity of Adoption Decree
•
The adoption decree is considered effective from the date of the original
petition of adoption was filed
o NOT when the decree became final
•
However, if the child to be adopted murders someone during the proceedings
for adoption, while the child still lives with his biological parents, the biological
parents are the ones who pay due to the principle of vicarious liability
Registration
•
It is the duty of the interested parties or petitioners to register the adoption
decree in the LCR of the municipality where the decree was issued
•
The LCR of the place where the birth certificate was issued must also be sent a
copy
Sec. 16. Parental Authority. – Except in cases where the biological parent is the spouse
of the adopter, all legal ties between the biological parent(s) & the adoptee shall be
severed and the same shall then be vested on the adopter(s).
Severance of Legal Ties
•
Right to parental authority is purely personal
•
Cannot be waived or renounced except in the cases provided by law – like
adoption
•
All legal ties between the natural parents & the adoptee are terminated
o Exception: when the biological parent is the spouse of the adopter
§
Both parents will exercise joint parental authority over their
common children
M: The biological authority of the parent is terminated, but also, ALL legal ties between
the biological parent & the adoptee shall be severed & the same shall then be vested on
the adopter. This includes succession, in the opinion of M, except in testate succession.
Sec. 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of
the adopter(s) for all intents & purposes and as such is entitled to all the rights &
obligations provided by law to legitimate sons/daughters born to them without
discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.
Effects of Adoption
•
Parental authority of natural parents is dissolved
o It becomes the adopter, for example, who must give their consent to the
marriage of an adopted child between 18-21 years old
o Upon the death of the adoptive parents, no rights or duties are
reestablished with the natural parents
•
Relations established by adoption is limited to the adopting parents & does not
extend to the other relatives, except as expressly provided by law
o The relationship is only one of parent & child
o The adopted child is not related to the ascendants, descendants or
collateral relatives of the adopter
o Neither is the child of the adopted considered the descendant of the
adopted (i.e. if the adopted child has a child too, the law does not
presume that the child is the grandchild of the adoptive parents)
Sec. 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee
shall have reciprocal rights of succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern.
Katrina Monica C. Gaw | Block C 2018| 123
Legal or Intestate Succession
•
An adopted child is an intestate heir of the adopter, along with the legitimate,
legitimated & illegitimate children of the said adopter
•
The adopter & the adoptee are mutually legal or intestate heirs of each other
o If the adopter is survived only by his adoptee, the latter gets the whole
of the estate of the deceased
•
Biological parents will not get anything from the adopted child, because all
legal ties are severed between them
Right of Representation
•
The adopted child does not have the right of representation in the law of
succession
•
Right of representation - In the event that his father dies, a legitimate son has a
right of representation to inherit from his grandfather
o This right stems from his blood relation with his grandfather, not with
his father
o In adoption, however, the relationship between adopted & adopting
parents is made by law & not by blood; thus, no right of
representation vests upon the adopted child
Testate Succession
•
If the adoptee & his biological parents had left a will, the law on testamentary
succession shall govern
•
The adoptee has the same rights as the legitimate child
o If an adoptee concurs with an illegitimate child, the illegitimate child
gets ½ of what the adoptee gets
•
If the adoptee leaves a will & specifies his biological parents, the free portion of
the will can be given to the biological parents
•
But the adopting parents are the ones who are compulsory heirs; the biological
parents are not compulsory heirs
M: Succession is a purely statutory concept also. Ineffective disinheritance can be
applied to an adopted child, and also preterition. But an adopted child has no right of
representation.
Sec. 20. Effects of Rescission. – If the petition is granted, the parental authority of the
adoptee's biological parent(s), if known, or the legal custody of the Department shall be
restored if the adoptee is still a minor or incapacitated. The reciprocal rights and
obligations of the adopter(s) and the adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended certificate of birth of the
adoptee and restore his/her original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
All the foregoing effects of rescission of adoption shall be without prejudice to the
penalties imposable under the Penal Code if the criminal acts are properly proven.
Inter-country Adoption of 1995 [RA 8043] – Dec. 26 1995
Background
•
Socio-legal process of adopting a Filipino child by a foreign national or a Filipino
citizen permanently residing abroad when the petition for adoption is filed, the
supervised trial custody is undertaken, & the decree of adoption is issued in
the foreign country where the applicant resides, thereby creating a permanent
parent-child relationship between the child & the adoptive parents
Sec. 3. Definition of Terms. — As used in this Act. The term:
(a) Inter-country adoption refers to the socio-legal process of adopting a Filipino
child by a foreigner or a Filipino citizen permanently residing abroad where the
petition is filed, the supervised trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.
(b) Child means a person below 15 years of age unless sooner emancipated by law.
(c) Department refers to the DSWD of the Republic of the Philippines.
(d) Secretary refers to the Secretary of the DSWD.
(e) Authorized and accredited agency refers to the State welfare agency or a
licensed adoption agency the country of the adopting parents which provide
comprehensive social services and which is duly recognized by the Department.
(f) Legally-free child means a child who has been voluntarily or involuntarily
committed to the Department, in accordance with the Child and Youth Welfare Code.
(g) Matching refers to the judicious pairing of the adoptive child and the applicant to
promote a mutually satisfying parent-child relationship
(h) Board refers to the Inter-country Adoption Board.
M: Remember that there is a difference between Inter-country adoption & domestic
adoption law. The threshold age for inter-country adoption is 15 years old. Hence, a 16year-old cannot be adopted under the Inter-country Adoption Law.
Sec. 4. The Inter-Country Adoption Board. — There is hereby created the Inter-Country
Adoption Board, hereinafter referred to as the Board to act as the central authority in
matters relating to inter-country adoption. It shall act as the policy-making body for
purposes of carrying out the provisions of this Act, in consultation and coordination with
the Department, the different child-care and placement agencies, adoptive agencies as
well as non-governmental organizations engaged in child-care and placement activities.
As such, it shall:
(a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other
practice in connection with adoption which is harmful, detrimental, or prejudicial to the
child;
(b) Collect, maintain, and preserve confidential information about the child and
the adoptive parents;
(c) Monitor, follow up, and facilitate completion of adoption of the child through
authorized and accredited agency;
(d) Prevent improper financial or other gain in connection with an adoption and deter
improper practices contrary to this Act;
(e) Promote the development of adoption services including post-legal adoption;
(f) License and accredit child-caring/placement agencies and collaborate with them in
the placement of Filipino children;
(g) Accredit and authorize foreign adoption agency in the placement of Filipino children in
their own country; and
(h) Cancel the license to operate and blacklist the child-caring and placement agency
or adoptive agency involved from the accreditation list of the Board upon a finding of
violation of any provision under this Act.
Katrina Monica C. Gaw | Block C 2018| 124
Sec. 7. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all
possibilities for adoption of the child under the Family Code have been exhausted and
that inter-country adoption is in the best interest of the child. Towards this end, the
Board shall set up the guidelines to ensure that steps will be taken to place the child in
the Philippines before the child is placed for inter-country adoption: Provided, however,
That the maximum number that may be allowed for foreign adoption shall not exceed
600 a year for the first 5 years.
Sec. 8. Who May be Adopted. — Only a legally free child may be the subject of intercountry adoption. In order that such child may be considered for placement, the following
documents must be submitted to the Board:
(a) Child study;
(b) Birth certificate/foundling certificate;
(c) Deed of voluntary commitment/decree of abandonment/death certificate of parents;
(d) Medical evaluation/history;
(e) Psychological evaluation, as necessary; and
(f) Recent photo of the child.
Qualified Children
•
Any child who has been voluntarily or involuntarily committed to the DSWD as
dependent, abandoned or neglected
o In case the child is voluntarily committed, the physical transfer of the
child shall not be made earlier than 6 months from the date the Deed
of Voluntary Commitment was executed by the child’s biological
parents
•
Important note: the child here as defined as one who is below 15 years of age
(as opposed to the Domestic Adoption Act)
Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently residing abroad may
file an application for inter-country adoption of a Filipino child if he/she:
(a) is at least 27 years of age and at least 16 years older than the child to be adopted, at
the time of application unless the adopter is the parent by nature of the child to be
adopted or the spouse of such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and responsibilities of parental authority
under his national laws, and has undergone the appropriate counseling from an
accredited counselor in his/her country;
(d) has not been convicted of a crime involving moral turpitude;
(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and support and to give the necessary moral
values and example to all his children, including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the
U.N. Convention on the Rights of the Child, and to abide by the rules and regulations
issued to implement the provisions of this Act;
(h) comes from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption is
allowed under his/her national laws; and
(i) possesses all the qualifications and none of the disqualifications provided herein and
in other applicable Philippine laws.
Qualified Adopters
•
If a married person is to adopt, the rules clarify that he shall file jointly with his
spouse, if any, who shall have the same qualifications & none of the
disqualifications to adopt as prescribed in the rules
Sec. 11. Family Selection/Matching — No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the child cannot be adopted locally. The
clearance, as issued by the Board, with the copy of the minutes of the meetings, shall
form part of the records of the child to be adopted. When the Board is ready to transmit
the Placement Authority to the authorized and accredited inter-country adoption agency
and all the travel documents of the child are ready, the adoptive parents, or any one of
them, shall personally fetch the child in the Philippines.
Matching
•
The judicious pairing of the applicant & the child to promote a mutually
satisfying parent-child relationship
TITLE VIII. – SUPPORT
Art. 194. Support comprises everything indispensible for sustenance, dwelling, clothing,
medical attendance, education & transportation in keeping with the financial capacity of
the family.
The education of the person entitled to be supported referred to in the preceding
paragraph shall include his schooling or training for some profession, trade or vocation,
even beyond the age of majority.
Transportation shall include expenses in going to & from school, or to & from place of
work.
This Chapter of Support is the support taken from the SEPARATE PROPERTY of the
spouses. Recall that generally, ACP/CPG will support family funds.
Pendente Lite (Based on preliminary basis; could be affidavits) – Three Things to Prove
1. Need of recipient
2. Capacity of the giver
3. The probable outcome of the case
Q: A filed a case for nullity against B. B resisted the nullity case. B counterclaimed for
support. B proved capacity of A & B proved her needs. A gave only one evidence –
certification from LCR that there is no marriage license. Should support pendente lite be
given?
A: NO. The evidence presented by A shows the probability of the outcome of the case –
the probability is that the marriage will be terminated due to lack of a marriage license.
Support is always provisional in character. It does not become permanent. It can be
changed anytime.
Motion to Enhance Support – the motion for increasing support as the need arises
(Lin-Lua v. Lua, 2013)
Katrina Monica C. Gaw | Block C 2018| 125
Q: A & B married. They have a child. The court ordered support amounting to P15,000 to
be given to the child. But A is a good person. Whenever he is a child; aside from the
P15,000, A gives the child more money, cars, valuables, etc. B thus filed a motion for
enhancement of support. A said that he wants everything he has already given to be
credited to the enhanced support.
A: There can be no crediting whatever has already been given in excess of the P15,000.
But at the same time, SC said that only the necessary expenses can be credited (such as
toothpaste, toothbrush). But the car, etc. are not to be credited.
Q: From whom must you ask support?
A: From the spouse. Then, if the spouse cannot give support, from the children. If the
children cannot give support, from the ascendants & the descendants.
Support
•
General rule: support includes whatever is necessary to keep a person alive
o The key term is “indispensible”
•
“In keeping with the financial position of the family”
o Determines the amount of support to be given
•
Natural support – basic necessities
•
Civil support – Anything beyond the basic necessities
•
2nd par. of Art. 194
o “Schooling” refers to formal education
o “Training” refers to non-formal education
Art. 195. Subject to the provisions of the succeeding articles, the ff. are obliged to
support each other to the whole extent set forth in the preceding article:
1) The spouses;
2) Legitimate ascendants & descendants;
3) Parents & their legitimate children & the legitimate & illegitimate children of the
latter;
4) Parents & their illegitimate children & the legitimate & illegitimate children of the
latter; &
5) Legitimate brothers & sisters, whether of full or half-blood.
Class Notes
•
Art. 195 (2) & (3), phrased in an easier way
o Parents & their children, whether legitimate or illegitimate
o Grandparents & their grandchildren, whether legitimate or illegitimate
§
Thus, one is entitled to support from one’s illegitimate
grandchildren & vice versa
•
Illegitimate siblings are not contemplated in Art. 195 (4)
•
An unborn child is also entitled to support; whether or not the child is born is
irrelevant
Mandatory Nature
•
Support is a mandatory obligation
o Cannot be waived, renounced, transmitted or compensated
o Most sacred & important of all obligations imposed by law
•
Art. 2035, CC: No compromise shall be valid upon the question of future
support
•
CASE: De Asis v. CA – A mother in a previous support-case said that it would be
useless to claim further support for her son from the defendant who denied
paternity. She thus agreed to the dismissal of the case, provided that the
defendant did not pursue a counter-claim.
o SC: Such manifestation does not bar the mother from filing a
subsequent case for support on behalf of the child against the same
defendant. The agreement for the dismissal of the case was in the
form of a compromise, which cannot be countenanced by law, as it
goes against the right to future support.
o If paternity is at issue, its existence or absence must be judicially
established & cannot be left to the will or agreement of the parties
Between Spouses
•
The duty to support & the right to be supported presuppose a VALID marriage
between the parties
o Fact of valid marriage gives rise to the duty of mutual support
•
Even when there is a legal separation, the spouses may still be mandated to
give support
•
CASE: Dadivas de Villanueva v. Villanueva – A man kept cheating on his wife,
until his wife finally left him. She then made a demand for support in court. The
husband claimed that she was not entitled to his support, as she had left their
conjugal home.
o SC held that the wife is entitled to support, as a husband cannot, by
his own wrongful acts, relieve himself from the duty to support his
wife imposed by law; and where a husband by wrongful, illegal and
unbearable conduct, drives his wife from the domicile fixed by him, he
cannot take advantage of her departure to abrogate the law
•
Valid Reasons for NOT Giving Support
o It has been held that the adultery of the wife is a valid defense
against an action for support
o A spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported from the
ACP/CPG (Art. 100 & 127, FC)
•
In a case for support where the VALIDITY OF THE MARRIAGE is in issue, the
aggrieved party cannot be given support pendente lite without due hearing
o Prior to the rendition of final judgment, nothing exists except the
allegation of a marriage & denial thereof (Yangco v. Rohde)
•
Pending litigation for legal separation or annulment
o Spouses shall be supported from ACP/CPG
o Art. 198, FC – In cases of legal separation, the court may order the
guilty spouse to support the innocent one, even after the separation
has been decreed
•
Once a marriage is nullified/annulled, the obligation to give support ceases
•
In legal separation, support likewise ceases unless the court orders the guilty
spouse to support the innocent spouse
Between Ascendants & Descendants
•
All members of the family in the direct legitimate ascending & descending are
obligated to support each other
Katrina Monica C. Gaw | Block C 2018| 126
•
•
If the relationship between the one to be supported & the one to support is in
issue, the status of the parties should be established first before support can
be made
o Example: If a minor son, through his guardian, brings an action claim
a certain man is his father, the fact that said man is the father must
first be proven before support can be mandated
o There is no law or reason which authorizes the granting of support to
a person who claims to be a son in the same manner as to a person
who establishes by legal proof that he is such a son
§
In the latter case, the legal evidence raises a presumption of
law, while in the former there is no presumption
§
If there is nothing but mere allegation, a fact in issue & no
final judgment, no support can be given (Francisco v.
Zandueta)
Valid defense to refuse support by a husband to a child in claiming support:
o That such child is the fruit of an adulterous relationship, for in such
case, it would not be the child of the person from whom support is
sought
Between Parents & their Legitimate Children & the Legitimate & Illegitimate Children of
the Latter
•
Parents are obliged to support their children & grandchildren whether
legitimately or illegitimately related & vice versa
•
However, the persons obliged to support each other are limited from the
grandparents to the grandchildren only & vice versa
Between Parents & their Illegitimate Children & the Legitimate & Illegitimate Children of
the Latter
•
Parents are obliged to support their illegitimate children or grandchildren,
whether or not legitimately or illegitimately related to their illegitimate children
& vice versa
•
Limited from grandparents to grandchildren only & vice versa
•
If in a hearing for support pendent lite, the status of the child is at issue, the
alleged child can get support in the meantime while the case is pending from
the alleged parent if his status has been provisionally proven
o That means there is prima facie evidence, such as the affidavit of the
claimant-child & testimonies of witnesses, to show merit of the claim
of the child
o However, finding is merely provisional; still subject to the final
outcome of the trial on the merits
•
CASE: Quiminguing v. Icao – Even an unborn child is given by law a provisional
personality for all purposes favorable to it, as provided in the Civil Code
o Has a right to support from its progenitors
o NOT dependent on whether or not the child is born
Between Legitimate Brothers & Sisters, Whether Full or Half-Blood
•
The collateral blood relatives that are obligated to support each other are
LIMITED to legitimate brothers & sisters, whether full or half-blood
•
Not obliged:
o Uncles & aunts
o
Nieces & nephews
Art. 196. Brothers & sisters not legitimately related, whether of the full or half-blood, are
likewise bound to support each other to the full extent set forth in Art. 194, except only
when the need for support of the brother & sister, being of age, is due to a cause
imputable to the claimant’s fault or negligence.
Illegitimate Brothers & Sisters
•
There is also an obligation to support illegitimate brothers & sisters
•
HOWEVER, support does not become a demandable right & need not be given
at all if an illegitimate brother or sister is:
1) Already of legal age &
2) The need for his support is due to his fault or negligence
Art. 197. For the support of legitimate ascendants; descendants, whether legitimately or
illegitimately related, only the separate property of the person obliged to give support
shall be answerable provided that in case the obligor has no separate property, the
ACP/CPG, if financially capable, shall advance the support, which shall be deducted from
the share of the spouse obliged upon the liquidation of the ACP/CPG.
Class Notes (A)
•
Support will come from the separate property of obliged individual, even if said
individual is married
o If there is a COMPLETE ABSENCE of separate property & it is a parent
or sibling that must be supported, it can be advanced by the ACP
o If the one entitled to support is an illegitimate child & there is only
INSUFFICIENCY of funds of separate property, the amount can also be
advanced by the ACP
Source
•
Art. 195: Support is personally owned to each other
o It is to be taken from the separate property of the person obliged to
give support
•
Art. 94[1] & 121[1]: The ACP/CPG will be principally charged for support if:
(2) If legitimate descendants are the common children of the spouses or
(3) The legitimate children of either spouse
*Different from the personal support owing to them from the father or
mother as provided in Art. 195 or 197
o Because the law does not so provide, the ACP/CPG of a child with his
spouse is not principally liable to support his parents
•
ACP/CPG, if financially capable, shall advance the support, which shall be
deducted from the share of the spouse obliged upon liquidation IF there is no
separate property of the obligor
o Generally, there must be NO separate property available
•
Insofar as illegitimate children of either spouse are concerned, the mere
insufficiency of the separate property is enough to make ACP liable in the
meantime (Art. 94[9])
o But if the regime is CPG, the regime can in the meantime be held
liable if the responsibilities enumerated in Art. 121 have been
covered & there is at least insufficiency of the separate property of
the spouse called upon to make the support (Art. 122)
Katrina Monica C. Gaw | Block C 2018| 127
Who Are Entitled
Legitimate Children of both
or either spouse & common
children of the spouses
What Can Be Liable
ACP/CPG is principally liable
Illegitimate children of either
spouse
Separate
property
is
principally liable;
ACP can advance the support;
CPG can be held liable if the
responsibilities in Art. 121 are
covered
Separate
property
is
principally liable; ACP/CPG
can advance support, but only
if there is complete absence
of separate property
Parents & siblings
There must be a
complete absence of
separate property on
the part of the obligorspouse
Art. 198. During the proceedings for legal separation or for annulment of marriage, & for
declaration of nullity of marriage, the spouses & their children shall be supported from
the properties of the ACP/CPG. After final judgment granting the petition, the obligation
of mutual support between spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to the innocent one, specifying
the terms of such order.
Support Pendente Lite
•
Pendente lite – support pending litigation
o Recall: If the party is in bad faith, he is not entitled to net profits
•
Support under this chapter is PRINCIPALLY obtained from the separate
property of the spouse from who support is sought
o HOWEVER, pending litigation, support for the spouses & the kids shall
be drawn from ACP/CPG
o Take note: in a nullity case, spouse cannot demand support from
separate property of other spouse
CLASS SCENARIO (A)
A files a legal separation case. If A is the one guilty of adultery, there is no case because
A is the one guilty of adultery. Thus there is no entitlement to pendente lite because the
legal separation case will likely be dismissed.
Support Pendente Lite
•
ACP/CPG is primarily source for the support of the spouses & the children
during the pendency of annulment, nullification & legal separation cases
•
Rule 61 of the 1997 Rules of Civil Procedure provides how support pendente
lite can be obtained:
o When to apply – at the commencement of the proper action, or at any
time prior to the judgment or final order
o Adverse party has 5 days to comment, & hearing is set 3 days after
Court fixes the amount of money to be provisionally paid if the
application is granted & fixes the amount based on the necessity of
the applicant & the means of the adverse party
§
If the adverse party fails to give the court-mandated support,
any 3rd party who furnishes the support to the applicant
may, after due notice & hearing in the same, obtain a writ of
execution to enforce his right of reimbursement against the
person ordered to provide such support
o Restitution – When the judgment of the court finds that the person
who has been providing support pendente lite is not actually liable, it
shall order the recipient thereof to return the former with legal
interest from the dates of actual payment
§
The original applicant can still file an action against others
who must give her support
Valid reasons to withhold support:
o Adultery of a wife; however, the adultery must be supported by
competent evidence
§
Mere allegation that the wife committed adultery will not bar
her from the right to recover support pendente lite
§
It is enough, however, that an affidavit or other documentary
evidence appear on record for the court to make a judgment
on whether or not support pending litigation should be given
•
Not necessary to go into the full merits of a case
o CASE: Lerma v. CA – The wife, who was convicted of adultery in CFI,
filed a case against her husband for legal separation in CA. During the
pendency of the suit, she invoked Art. 198 of FC. The husband
claimed that such adulterous act of the spouse is a defense to
successfully resist giving support pendente lite. The wife claims that
there is a difference & she is entitled to support from the CPG, even if
she is not entitled to her husband’s exclusive funds
§
SC held that there is no difference between taking from the
husband’s exclusive funds & the CPG if it has been
provisionally proven that the legal separation case will not
prosper
§
Law does not grant support to a petitioner in bad faith
o
Insufficiency/Absence
If
ACP/CPG
is
insufficient, separate
property of spouses is
liable
If separate property of
spouses is insufficient,
the spouses can use
ACP/CPG
•
Art. 199. When 2 or more persons are obliged to give support, the liability shall devolve
upon the ff. persons in the order herein provided:
1) The spouse;
2) The descendants in the nearest degree;
3) The ascendants in the nearest degree; &
4) The brothers & sisters
Art. 200. When the obligation to give support falls under 2 or more persons, the payment
of the same shall be divided between them in proportion to the resources of each.
However, in case of urgent need & by special circumstances, the judge may order only 1
of them to furnish the support provisionally, without prejudice to his right to claim from
the other obligors the share due from them.
When 2 or more recipients at the same time claim support from one & the same person
legally obliged to give it, should the latter not have sufficient means to satisfy all claims,
the order established in the preceding article shall be followed, unless the concurrent
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obliges should be the spouse & a child subject to parental authority, in which case the
child shall be preferred.
Class Notes (A)
•
If the child is a minor, the order is reversed, & the parent must give support to
the minor child before giving support to the spouse
•
Basis: Capacity of giver + necessity for the one needing the support
o Must always be considered
•
When the court orders that one party needs to be supported by 2 persons, one
can advance the share of the other if the latter cannot currently afford to pay
Order of Priority
•
The law sets the order of the persons upon whom the liability of giving support
devolves
o In the presence of the spouse, the descendants in the nearest degree
are not obliged to give support
o Ascendants in the nearest degree shall be obliged to give support only
in the absence, failure or refusal to give support by the descendants
in the nearest degree
•
CASE: Mangonon v. CA – SC ordered the grandfather, who was well-off, to
support his grandkids, on the basis of Art. 199, considering that the parents
were not capable of giving support.
Art. 201. The amount of support, in the cases referred to in Art. 195 & 196, shall be in
proportion to the resources or means of the giver & to the necessities of the recipient.
Art. 202. Support in the cases referred to in the preceding article shall be reduced or
increased proportionately, according to the reduction or increase of the necessities of
the recipient & the resources or means of the person obliged to furnish the same.
Evolving Capacity of Needs
•
Custody & support is never final
•
Support can be increased by mere motion to increase support
Proportionality
•
Law is not unreasonable as to contemplate a situation where the one giving the
support shall be compelled to do something to the detriment of his own
existence
•
Support must be based on
o The necessities of the recipient &
o The resource or means of the person obliged to furnish support
•
CASE: Vinluan v. CA – Where the aggregate annual income of the CPG was only
P3,000 & the wife, in her complaint, prayed for no more than P200 monthly
allowance, SC held that an award granting P1,000 was clearly excessive.
•
CASE: Baltazar v. Serfino – SC will also increase support if it is shown that the
one paying the support has multiple sources of income & can thus afford to
give more support.
CASE: Lim-Lua v. Lua
This case explains creditable deductions; the amount of support those related to each
other by marriage & family relationship are generally obliged to give each other shall be
in proportion to the means of the giver & the needs of the recipient.
Facts: Susan filed an action for JDNOM against her husband, Danilo. She also prayed for
support pendente lite. Danilo was ordered to pay monthly support, but upon surrendering
a tranche of the monthly support, argued that the following should be credited & allowed
as deductions from the support that he gave: the purchase & maintenance of 2
expensive cars, payment of tuition fees, travel expenses, & credit card expenditures for
groceries, among others, that all benefited Susan & their two kids. Susan argued,
however, that it would be erroneous to allow Danilo to deduct from monthly support the
value & maintenance cost of the 2 expensive cars.
Held: The purchase & maintenance of the 2 expensive cars & the travel expenses, &
credit card expenditures not related to the sustenance & basic living expenses of Susan
& the 2 kids should not be credited as support. While Danilo’s generosity to his children
is commendable, these are considered his voluntary gifts, made of his own accord. The
lower courts had required him to give support to the family for their basic living expenses
& sustenance, including medical expenses of Susan, food, education, etc. it is this these
expenses that can be credited to the support Danilo must give to Susan & the 2 kids.
Provisional Character of Support Judgment
•
Judgment for support does not become final
o Changing needs of the recipient & changing ability of the provider can
bring about modification or alteration
o May be modified for sufficient reasons upon application to the court
§
There must be a need that arose, though, for only then does
the one making the demand have a cause of action
•
The right to ask for support is demandable from the date in which the one
being supported was in need of the same
o Payable from date of judicial or extrajudicial demand
•
If the petitioners’ right to support has already been recognized by the court, an
order of dismissal of the action for support on some other grounds cannot be
with prejudice, as this would deprive the petitioner the right to present & future
support
•
Judgments for support do not become dormant; it becomes due from time to
time as provided & enforceable by simple motion at any time
o EXCEPT as to installments not recovered within the statute of
limitations
Art. 203. The obligation to give support shall be demandable from the time the person
who has a right to receive the same needs it for maintenance, but it shall not be paid
except from the date of judicial or extrajudicial demand.
Support pendent lite may be claimed in accordance with the Rules of Court.
Payment shall be made within the first 5 days of each corresponding month. When the
recipient dies, his heirs shall not be obliged to return what he has received in advance.
Q: A & B are married. They have children, but they separated. There is no nullity of
marriage. B began to work abroad as a OFW. But B could not afford it anymore, so B filed
a case against A for support, as well as X & Y.
A: SC held that there is proof that A does not have any money. The next person from
whom to ask for support is the ascendants. So it was correct to ask from grandparents.
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Q: But B was also asking for support for arrears for all those years that A, X, & Y did not
give support. In the Civil Code, there is a provision on support in arrears; the Family Code
does not state it.
A: SC also allowed the support in arrears.
Q: How far can this support in arrears go?
A: The law gives us the answer – Art. 203, first paragraph. It depends on WHEN THE
EXTRAJUDICIAL OR JUDICIAL DEMAND was first made.
Q: The child, was born in year 2000. The child filed a case in 2016. The mother made a
demand in the year 2000. Will it go that far back?
A: NO. Because it is an obligation created by law, and there is a prescriptive period. The
prescriptive period for obligations created by law is 10 years.
Demand
•
Payment of the amount for support starts only from the time the support has
been judicially or extra-judicially demanded
o But the right to claim it starts from when it was needed
•
CASE: Jocson v. Empire Insurance Co. – Support does include what is
necessary for education & such, but support MUST be demanded & the right to
it established before it becomes payable
o Right to support does not rise from the mere fact of relationship, but
from imperative necessity; the law presumes that such necessity does
not exist when there is no demand
o Need for support cannot be presumed
•
CASE: Baltazar v. Serfino - An illegitimate child was born on Dec. 19, 1943 &
made an extrajudicial demand for support on June 1959.
o SC held that payment of support should begin only from June 1959,
applying Art. 203 of FC.
•
CASE: Ilano v. CA – A case was filed in August 14, 1972 against the alleged
father of an illegitimate child. At the time, the child was 7 years of age. It was
proven that she was illegitimate born on December 30, 1963. When the case
was resolved, she was already spending about P500 for her school expenses
while the alleged father earned P10,000 a month. She reached the age of
majority on December 30, 1984.
o SC held that the child was entitled to support in arrears for a period of
12 years, 4 months & 14 days (from the date of filing until she
reached the age of majority)
o SC also graduated the amounts based on inflation
•
CASE: Sy v. CA – In a custody suit, even if support is not prayed for, but it was
sought during the hearing of the case without objection of the other party, a
decision of support can be obtained even if the pleadings were not amended to
conform with the evidence
Support in Arrears
•
CASE: Mangonon v. CA – SC allows support in arrears; in this case, considering
that the children, who should have been given support, must already have
finished their schooling by the time the decision was rendered
o Arrears – money that is owed & should have been paid earlier
§
Overdue after missing 1 or 2 required payments
o Amount of support to be paid was computed from the time they had
entered college until they finished their respective studies
Art. 204. The person obliged to give support shall have the option to fulfill the obligation
either by paying the allowance fixed, or by receiving & maintaining in the family dwelling
the person who has a right to receive support. The latter alternative cannot be availed in
case there is a moral or legal obstacle thereof.
Option
•
•
The person obliged to give support has the right to elect the manner by which it
is to be given
o Not an absolute right – can be opposed if there is a moral issue or if
there is a preferential right
o Example: A wife who is forced to leave the home by her husband,
without fault on her part, may maintain an action for separate
maintenance even if the law says the husband can choose other
methods to pay her support
CASE: Mangonon v. CA – SC rejected the choice of the grandfather who was
giving support to take custody of the grandkids considering that, while they
were in good terms prior to the filing of the suit for support pendente lite, the
relationship of the grandfather & grandkids had already turned sour during the
pendency of the suit
Art. 205. The right to receive support under this Title as well as any money or property
obtained as such support shall not be levied upon on attachment or execution.
Exemption from Attachment or Execution
•
Anything obtained by way of support is impliedly for the survival of the recipient
o To deprive the recipient would be prejudicial to his existence
•
Thus, money or property obtained from support cannot be made to satisfy any
judgment against the recipient, nor can it be attached or subject to execution
o HOWEVER, in case of contractual support or that given by will, the
excess in amount beyond that required for legal support can be levied
on attachment or execution (Art. 208, FC)
Art. 206. When, without the knowledge of the person obliged to give support, it is given
by a stranger, the latter shall have a right to claim the same from the former, unless it
appears that he gave it without intention of being reimbursed.
Art. 207. When the person obliged to give support to another unjustly refuses or fails to
give support when urgently needed by the latter, any 3rd person may furnish support to
the needy individual, with a right of reimbursement from the person obliged to give
support. This Article shall apply particularly when the father or mother of a child under
the age of majority unjustly refuses or fails to give support to the child when urgently
needed.
Quasi-Contract
•
Relationship between the stranger & the person obliged to give support under
Art. 206 is a quasi-contract.
Katrina Monica C. Gaw | Block C 2018| 130
•
•
•
•
•
•
o
Art. 2142, CC: A quasi-contract is a juridical relation which arises from certain
lawful, voluntary & unilateral acts to the end that no one shall be unjustly
enriched at the expense of another
o A lawful valid obligation arises from a quasi-contract
Whoever advances the support shall be entitled to be reimbursed unless the
grantor gives it as an act of liberality or without intending to be reimbursed
Requisites for reimbursement of a stranger (from the case Ramirez & de
Marcaida v. Redfern):
(1) The support was furnished upon a dependent of one bound to give
support but who fails to do so;
(2) The support was supplied by a stranger;
(3) The support was given without the knowledge of the person charged
with the duty
Negative qualification: when support is given without the expectation of
recovery
CASE: Ramirez & de Marcaida v. Redfern – A spouse obtained a sum of money
on different occasions from her sister. The sister & her husband sued the
husband of the said spouse for reimbursement under Art. 206.
o
SC held that there was a failure of the 1st & 2nd essential elements
because though the husband & wife are obliged to support each
other, the wife never asked money from her husband, & went directly
to her sister. The husband also offered to give her money, & she
never took it.
o Also, there is evidence that the husband amply provided for his wife &
children in London.
o This case was decided prior to the FC; if it was decided now, if it could
be proved that the loan given to the wife redounded to the benefit of
the family, the ACP/CPG could be held liable under Art. 94 & 121, FC
Requisites restated by the Sta. Maria book:
(1) There is an urgent need to be supported on the part of the recipient
(2) The person obliged to give support unjustly refuses or fails to give the
support
(3) A 3rd person furnishes the support to the needy individual
Art. 207 particularly applies it is the father & mother of a child under the age of
majority who unjustly refuses to give support or fails to give support to the child
when it is urgently needed
o Example: A child writes his father in Davao the he, the child, needs
support to pay for tuition at school. If the father doesn’t want to give
support just because he doesn’t want to fly to Manila just to give
money to his son, & a 3rd person furnishes the money for the child,
the 3rd person can file a claim against the father for reimbursement.
CLASS SCENARIO
If you are a brat, & make demands left & right to your parents, & your parents deny you &
you go to your uncle, your case does not fall under Art. 207 as there is no unjust refusal.
Art. 208. In case of contractual support or that given by will, the excess in amount
beyond that required for legal support shall be subject to levy on attachment or
execution.
Furthermore, contractual support shall be subject to adjustment whenever modification
is necessary due to changes in circumstances manifestly beyond the contemplation of
the parties.
Contractual & Testamentary Support
•
The contract of support is not the equivalent of obligation to support
o Obligation to support is what is mandated by law (Art. 194)
o A contract of support may be given by a donor or 3rd party
§
Usually with reciprocal duties & obligations
§
In case of support given by contract or by will, the excess
beyond what is required for legal support can be levied for
attachment or execution
•
Only contractual support is subject to adjustment whenever modification is
necessary due to circumstances not contemplated by the parties
o When it comes to support given by will, there can be no more
modification of the amounts promised
•
Basis of contractual support: agreement
o If the parents procure an educational policy for their kids through an
insurance company – this is contractual support
§
The money placed by the corporation in a trust fund to
finance the education of the children cannot be subject to
levy or attachment except the amount in excess required for
legal support
§
However, if the policy goes beyond educational support &
also says the children will receive money for their vacation
to fund for transportation expenses, said money can be
attached in the proper cases, as it is not anymore needed
for the children’s education
TITLE IX. – PARENTAL AUTHORITY
Chapter 1: General Provisions
Cannot be waived! The classic case is Santos.
Art. 209. Pursuant to the natural right & duty of parents over the person & property of
their unemancipated children, parental authority & responsibility shall include the caring
for & rearing of such children for civic consciousness & efficiency & the development of
their moral, mental & physical character & well-being.
Natural Right
•
The custody, care & the nurture of the child reside first in the parents, whose
primary function includes the preparation or obligations the state can neither
supply nor hinder
•
Parental authority can be transferred only by law
Art. 210. Parental authority & responsibility may not be renounced or transferred except
in cases authorized by law.
Renunciation & Transfer of Parental Authority
•
Upbringing of children – sacred duty of parents
•
Cannot be renounced or transferred except in cases authorized by law
Katrina Monica C. Gaw | Block C 2018| 131
•
•
CASE: Santos v. CA – A father took his son away from the son’s grandparents,
who were taken care of his child, through deceit, false pretensions & trickery. In
the case, the father signed a document entrusting the grandparents with the
custody of the minor previously. However, it was not shown during trial that the
father was actually unfit.
o SC held that the father had the rightful custody of his child.
o Parental authority & responsibility are inalienable & may not be
transferred or renounced except in cases authorized by law
o Waiver is allowed only in cases of adoption, guardianship & surrender
to a children’s home or orphan institution
o The document signed by the father was just for temporary custody &
does not constitute renunciation of parental authority
§
Law does not allow renunciation unless:
•
Parent dies
•
Parent is absent
•
Parent is unsuitable
o Furthermore, in the case, there was no proof that the father could not
presently support the child
§
This is true even if previously, the father failed to financially
support the child for 3 years
Parental authority can be terminated for cause in accordance with legal
grounds in Art. 228-232, FC
o Duty of care is not dependent on custody
o If a mother does not have custody of her child & the father is properly
supporting him, she still has a duty to give him personal care &
attention
Art. 211. The father & the mother shall jointly exercise parental authority over the
persons of their common children. In case of disagreement, the father’s decision shall
prevail, unless there is a judicial order to the contrary.
Children shall always observe respect & reverence towards their parents & are obliged to
obey them as long as the children are under parental authority.
Joint Parental Authority
•
Parents are equally bound to ensure the wholesome upbringing of their
children
o True for both illegitimate & legitimate children if they are the
“common children” of the mother & father, as provided by Art. 211
Application to Illegitimate Children
•
Two requisites:
1) The father is certain;
2) The illegitimate children are living with the said father & mother, who are
cohabiting without the benefit of marriage or under a void marriage not
falling under Art. 36 & 53
•
This interpretation harmonizes Art. 176 & Art. 211
o Art. 176 – provides that illegitimate children will be under the
parental authority of the mother
Based on the idea that the paternity is uncertain & a
particular man should not be made liable if it is uncertain
the child is his
§
Could be because the father has another family or he does
not openly acknowledge the child
§
Follows that Art. 176 applies in 2 cases:
1) When the paternity of the child is unknown or in
doubt
2) Where, though paternity is certain, the father does
not live with the mother & the child
CASE: David v. CA – A married man living with his legitimate family got hold of
his illegitimate son from the latter’s mother, who was not living with the
married man. SC held that parental authority is vested in the mother only & the
mother is the one entitled to custody
CASE: Briones v. Miguel – SC ruled that illegitimate children are under the sole
parental authority of their mothers, regardless of the father’s
acknowledgement (in this case, even if he allowed the use of his surname &
gave support)
o Sta. Maria reminds us that he thinks this is wrong
Once parental authority is vested, it cannot be waived except in cases of:
1) Adoption
2) Guardianship
3) Surrender to a children’s home or orphan institution
§
•
•
•
Preferential Choice of the Father
•
Father & mother exercise joint parental authority, but in case of conflict, the
decision of the father prevails
o Presumption is that father’s decision is for the child’s best interest,
though this doesn’t necessarily mean that the mother’s isn’t.
•
If both the decision of the father & mother have merit, & to be able to prevent a
void decision, the decision of the father is given preference
o Only a court order can alter the binding force of the father’s decision
§
Basis must rest on substantial, important & serious grounds
for the paramount interest of the children
o Example: If the mother does not want to have the children study in a
particular school because the kids do not like the school, it is not
enough to supplant the dad’s decision to send the children to said
school.
§
If the school, however, evidently does not provide good
instruction or does not teach the right moral values & the
father avoids listening to the reasons of the mother, the
mother can go to court & have the decision changed
Art. 212. In case of absence or death of either parent, the parent present shall continue
exercising parental authority. The marriage of the surviving parent shall not affect the
parental authority over the children, unless the court appoints another person to be the
guardian of the person or property of the children.
Remarriage of Parent
•
Death of one of the spouses will not terminate parental authority of the
surviving parent over their children
Katrina Monica C. Gaw | Block C 2018| 132
•
•
If surviving spouse remarries, the parental authority is also not affected
o The new spouse, however, does not automatically possess parental
authority over the child of the surviving parent unless such new
spouse legally adopts the children
Upon remarriage of the surviving parent, the court may appoint another person
to be the guardian of the person or property of the children if it is shown that,
by reason of remarriage, the surviving parent cannot undertake the necessary
devotion & concern toward the children
Art. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over 7 years of age, unless the parent
chosen is unfit.
No child under 7 years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise.
This applies only to legitimate children. Because for illegitimate children, the mother is
the only one with parental authority. Thus, when it comes to illegitimate children, that
demarcation line becomes irrelevant.
In all cases involving a child, the inflexible criterion is his paramount interest.
Guardian ad litem – refers to guardians with custody of child
Tender Years Doctrine
•
No child under 7 years of age shall be separate for mother, unless there are
compelling reasons
•
Presumption is strong – the only thing that rebuts the presumption is a showing
that the mother is unfit
•
Presumption holds even if parents made a previous agreement by contract that
the child goes to the father
Separation
•
Parental authority may be designated by court in case the parents separate
o This does not necessarily mean that the parental authority of the
other spouse is necessarily terminated or suspended
o There are specific grounds for termination or suspension provided by
law
•
CASE: Cang v. CA – The mother was granted parental authority over her
children by the court in a legal separation case between her & her husband.
Later, she decided to have the children adopted without first seeking the
consent of the father. She argued that the court had already granted her the
parental authority, so permission was not needed.
o SC held that the father’s consent is still necessary, because the legal
separation decree did not terminate the parental authority of the
father. Only the EXERCISE of parental authority was given to the
mother
§
Hence, the mother would have the right to the children’s
services & earnings & the right to direct their activities &
make decisions regarding their care, control, education,
health, etc.
§
However, such delegation did not excuse her having the
children adopted without the father’s consent, because the
father still had parental authority & there was no finding that
he was an irresponsible person
Custody of Children
•
Parents are never deprived of the custody & care of their children, except for
just cause
•
But in custody cases, the right of the parents are not the paramount issue; they
are overridden by the singular interests of the child
•
The “cardinal principle” & “paramount consideration” is the best interest of the
child in custody cases
o Courts shall take into account the choice of the child over 7 years of
age, unless the parent chosen is unfit
§
However, such choice is not determinative of the issue of
custody; the court may nevertheless award custody to the
other parent or even to a 3rd person if the paramount
interest of the child so dictates
§
HOWEVER, if the child has made a choice & there is no
showing that the chosen parent is unfit, the child is to be
awarded to the chosen parent
Custody Hearings
•
Governed by A.M. No. 03-04-04 SC, “Rule on Custody of Minors & Writ of
Habeas Corpus in Relation to Custody of Minors”
o A habeas corpus can be availed of to secure custody of the child if
parents are separated from each other
§
Parents can also use it as against 3rd persons
§
Also the proper remedy to enable parents to regain custody
of their minor daughter even though the latter be in the
custody of a 3rd person of her free will because the parents
were compelling her to marry a man against her will
•
CASE: Tijing v. CA – Showed that the question of identity is relevant & material
in habeas corpus proceedings. In this case, the real parent filed a case against
an impostor parent who had kidnapped the child from the real parents &
caused the issuance of a falsified birth certificate indicating the child was hers
& her live-in partner’s.
o SC held that the child belongs to the real parents, making the ff.
observations in relation to her identity:
§
Evidence of sterility & impotence, irregular filing of birth
certificate, the resemblance of the real parents with the
child, etc.
•
In child custody hearings, equity may also be invoked for the best interests of
the child.
o CASE: Dacasin v. Dacasin – SC ruled as void a custodial agreement
providing that the child below 7 years of age would be under the joint
custody of both separated parents. Instead of dismissing the case for
lack of cause of action, however, SC remanded the case to the lower
court to determine the child’s custody, as the child was already 15
when the case was decided, so there was no longer any need to
follow the mandatory maternal custody regime under Art. 213.
Katrina Monica C. Gaw | Block C 2018| 133
Parental Preference Rule
•
Natural parents, who are of good character & can reasonable provide for the
child, are ordinarily entitled to the custody of the child against all persons
o Springs from the exercise of parental authority
o Entitled as against prospective adoptive parents
o Also applies against other relatives, like grandparents, or as against
an agency or institution
Maternal Preference
•
The mother is the natural custodian of her young – awarded sole parental
authority
•
In applying the Tender Years Doctrine rule (tender-age presumption), the child
must be under 7 years of age at the time either parent is given custody or at
the time the decision is rendered
•
However the criterion is flexible, depending on the paramount interest of the
child
•
CASE: Espiritu v. CA – In a custody case, a mother who had been committing
bigamy & was convicted of it in court, & who the children witnessed kissing the
other man, filed to gain custody of her children. The children chose to go to the
father & the psychologist said the children were better off with the father.
o SC held that the children were better off with the father, looking upon
the relevant, substantive facts of the case. The court must examine if
the parent chosen is unfit to assume parental authority.
o Adultery/bigamy of the parent during the child’s formative years may
likewise be considered in questions involving the custody of the
children, since adultery is a sign that the woman is immoral & unfit to
take care of their child.
•
Any agreement by the parties unduly depriving the mother of the custody of her
children under 7 years of her age in the absence of any compelling reason to
warrant the same is null & void.
o CASE: Dacasin v. Dacasin – A Philippine Court has no authority to
enforce a custody-agreement executed in the U.S. where a Filipina
woman divorced from her foreigner spouse agreed that she & her ex
would have joint custody of their child.
§
At the time the agreement was made, the child was below 7
years old. When it was decided, she was 15. Nevertheless,
the custody agreement was declared void for being contrary
to law.
§
In Philippines, sole parental custody is awarded to the
mother when the child is below 7 years old.
•
However, parents can make ancillary agreements, such as visitation rights &
other privileges; but they cannot decide that the custody will be jointly shared
for a child under 7
•
From 8 years old until the time of emancipation, the separated parents can,
subject to the usual contractual limitations, agree on custody regimes they see
fit to adopt
Exception to Maternal Preference
•
•
•
•
There must be “compelling reason” that is shown by clear & positive evidence
that the mother is unfit
o It must be complete unfitness, not merely comparative unfitness
o The criterion remains to be the paramount interest of the child
Instances that are not considered to be “compelling reasons”
o When the mother is a lesbian
o When the father is more well-off than the mother but the mother
sustains the family
o When the mother occasionally forgets to bathe the child, or leaves the
child with the grandmother often, or goes out late at night; none of
these are concrete proofs that she is unfit, though they may show she
is neglectful
But where it is shown that the mother is completely neglectful, that she intends
to have her children adopted by her wealthy aunt for monetary consideration,
that her children were always sick when the mother took them, it was enough
to turn over custody to the father.
Presumption of maternal preference is only resorted to in the rare situation
when all other considerations are equal, with the parental qualities of the
litigants so equally balanced that the presumption becomes necessary
Custody Granted to Others
•
Custody may be granted to persons who are strangers to the family if such
award would best serve the paramount interest of the child
•
Court may designate:
o Paternal or maternal grandparents
o Brothers & sisters of the child
o Some reputable & discreet person
o Asylum, children’s home or benevolent society
No Finality of Custody Judgment
•
Custody of minor children is always open to adjustments as the circumstances
relevant to the matter may demand
•
CASE: Luna v. IAC – The custody of the child was awarded to the grandparents
by the lower court, but later the CA granted it to the natural parents. But when
the child said she would kill herself if she would be delivered to her natural
parents, SC reversed the CA decision even if at first it affirmed it.
•
CASE: Viesca v. Gilinsky – Where an equivocal compromise agreement reached
between the 2 parties results in a disagreement between them for a prolonged
period, the court’s only choice is to help facilitate the compromise agreement;
the court itself cannot modify, by motion of one of the parties, a compromise
agreement.
Art. 214. In case of death, absence or unsuitability of the parents, substitute parental
authority shall be exercised by the surviving grandparent. In case several survive, the
one designated by the court, taking into account the same consideration mentioned in
the preceding article, shall exercise the authority.
Substitute Parental Authority of Grandparents
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•
•
In the absence or incapacity of the parents, the grandparents are the most
natural, suitable & logical persons to exercise parental authority
Takes into consideration the choice of the child above 7 years old
Art. 215. No descendant shall be compelled, in a criminal case, to testify against his
parents and grandparents, except when such testimony is indispensable in a crime
against the descendant or by one parent against the other.
Salient Points
1. Only in criminal cases
2. The child can testify; he just cannot be compelled to testify, except when it falls under
the exemptions.
Q: A & B are cousins. X & Y are parents of A. B saw X hit A in front of his other cousins.
Can A be compelled to testify?
A: No. Because his testimony is not indispensible, as his cousins are beside him who
also saw the crime. But A’s testimony is indispensible, then he can be compelled to
testify still.
Reason for the Filial Privilege
•
The privilege is solely addressed to the descendant-witness
o He may or may not testify against his parents or grandparents in a
criminal case
o If the descendant does not want to do so, he cannot be compelled to
do so
o The child can testify if he wants to, but he cannot be forced
•
Exception: Such testimony is indispensible in a crime against the descendant
or by one parent against another
Marital Privilege
•
Provided in Sec. 24(a) of Rule 130 of the Rules of Court
o The husband & wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage,
except:
§
In a civil case by one against the other
§
In a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants
•
A rape case filed by the daughter against the
father was considered by SC as a crime “against
the other”
•
Not dependent on the CHOICE of the confessor, but on the CONSENT of the
spouse
•
CASE: Alvarez v. Ramirez - The husband set fire to the house of his wife’s sister
knowing the wise was inside the house. A wife testified against her husband in
the arson case.
o SC held that there was no more marital privilege to protect, & the wife
could testify against her husband.
Final Notes
•
•
Remember that custody is not the equivalent of parental authority
Remember that parental authority terminates when one reaches the age of 18
CHAPTER 2: SUBSTITUTE & SPECIAL PARENTAL AUTHORITY
Art. 216. In default of parents or a judicially appointed guardian, the following persons
shall exercise substitute parental authority over the child in the order indicated:
1) The surviving grandparent, as provided in Art. 214;
2) The oldest brother or sister, over 21 years of age, unless unfit or disqualified; &
3) The child’s actual custodian, over 21 years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the child becomes
necessary, the same order of preference shall be observed.
Substitute Parental Authority
•
Have all the rights given to parents in Art. 220
•
Same authority over the person of the child as the parents (Art. 233)
•
They shall also be civilly liable for the injuries & damages caused by the acts or
omissions of the unemancipated children living in their company & under their
parental case (Art. 221)
o Substitute parental authority is more encompassing than special
parental authority; the latter is usually for minors, & only for special
occasions or authorized activities
•
A person who is not even related to an unemancipated child & who was not
adopted by the same but who has actual custody of said child, may be liable for
the damages caused by said child
o At the same time, he may not inherit from the said child upon the
latter’s death, as he is not the heir at all
•
Order established is not mandatory
o If the brother is more qualified than the grandparent, the substitute
parental authority may be granted to the brother
•
But order must be observed when those enumerated are equally fit
Art. 217. In case of foundlings, abandoned, neglected or abused children & other
children similarly situated, parental authority shall be entrusted in summary judicial
proceedings to heads of children’s homes, orphanages and similar institutions duly
accredited by the proper government agency.
Unfortunate Children
•
Foundling – newborn child abandoned by its parents who are unknown
•
Abandoned – One who has no proper parental care or guardianship; or whose
parents or guardians have deserted him for a period of at least 6 continuous
months
•
Neglected – One whose basic needs have been deliberately unattended or
inadequately unattended; two forms of neglect:
o Physical neglect – child is malnourished, ill clad & without proper
shelter
o Emotional neglect – child is maltreated, raped or seduced, exploited
or overworked or made to beg in the streets, or are placed in
situations of moral danger (abused children fall under here)
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•
Dependent – One who is without a parent, guardian or custodian; or one whose
parent, guardian or custodian for good cause desires to be relieved of his care
& custody; dependent upon the public for support
Child Welfare Agency
•
Child welfare agencies cannot be established temporarily or permanently
without a license secured from the DSWD
o License is non-transferrable
o Shall be used only by the person or institution to which it was issued
at the place stated therein
•
Proper function & purpose of the child welfare agency must be clearly defined
Transfer of Parental Authority
•
Transfer of parental authority for unfortunate children shall be entrusted in a
summary proceeding to heads of children’s homes, orphanages or other similar
institutions (following Art. 253)
•
The transfer of parental authority over the child can be voluntary or involuntary
•
When done involuntarily:
o DSWD or authorized representatives or a child-placement agency
having knowledge of a child who appears to be dependent,
abandoned or neglected may file a petition for involuntary
commitment of said child
o After commitment, parents or guardians shall thereafter exercise no
authority over him except upon such conditions as the court may
impose
o DSWD or agency becomes the legal guardian & will be entitled to
custody & be responsible for his support
•
When done voluntarily:
o Parent of a neglected, abandoned or dependent child voluntarily
commits the child to DSWD or a license child-placing agency or
individual
o He must be surrendered in writing by his parents or guardian
§
In case of death or legal incapacity of either parent of the
child for a period of at least 1 year, the other parent alone
has the authority to make the commitment
§
Upon being surrendered, the rights of his natural parents,
guardians or custodian over the exercise of parental
authority over him shall cease
o Agency will be entitled to custody & control of the child
o Agency may intervene in adoption proceedings
Art. 218. The school, its administrators and teachers, or the individual, entity or
institution engaged in child care shall have special parental authority and responsibility
over the minor child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside or
outside the premises of the school, entity or institution.
Art. 219. Those given the authority & responsibility under the preceding Art. shall be
principally & solidarily liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the persons exercising
substitute parental authority over said minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding par. shall not apply if it is
proved that they exercised the proper diligence required under the particular
circumstances.
All other cases not covered by this & the preceding articles shall be governed by the
provisions of the Civil Code on quasi-delicts.
Liability of Persons Possessing Special Parental Authority
•
Special parental authority is given by law to:
o School, its administrator & teachers
o Individuals, entities or institutions engaged in child care
•
Can be exercised only while under their supervision, instruction or custody
o Also attaches to all authorized activities whether inside or outside the
school entity or institution
•
They are civilly liable for the acts & omissions of the unemancipated minor
o BUT liability shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances
•
Teacher must be teacher-in-charge
o The one designated by the dean, administrative superior or principal
to exercise supervision over the pupils in his assigned classes
o Immediately involved in the students’ discipline as he has direct
control or influence over them
o Example: A mere physics teacher who is not the teacher-in-charge is
not liable
•
Those with special authority are in loco parentis only with respect to the
unemancipated minors & their liability will attach only in such a case
o Liability attaches while the minor is under their supervision,
instruction & custody & all authorized activities
o “Being in the custody of the school” means the protective &
supervisory custody these individuals have over the pupils for as long
as they are in attendance in the school, including recess time
•
Must be proven that the student is in the school premises in pursuance of a
legitimate student objective, in the exercise of a legitimate student right, &
even in the enjoyment of a legitimate student privilege
o Even if the student is just relaxing in the grass or talking to his friends
in school, he is within the custody of the school authorities
•
No distinction on whether the school is academic or non-academic (arts &
trades)
•
Liability extends to the administrators of the school
Liability of Persons Exercising Substitute Parental Authority
•
Parents, judicial guardians & persons exercising parental authority over the
minor are subsidiarily liable
o Liable only if the principals cannot satisfy their liability
Defense of Persons with Special Parental Authority
•
The liability under Art. 219 will not apply if it is proved that they exercised the
proper diligence required under the particular circumstances
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This is not as strictly imposed as liability is upon parents, because it is
assumed that parents have more influence over their children than
teachers do
CASE: Ylarde v. Aquino – Not enough that a teacher told the kids “not to touch
the stone” in an excavation site; to bring them there & then leave them there
by themselves is not something a reasonably prudent person would do. A
teacher who stands in loco parentis to his pupils must make sure that the
children are protected from all harm in his company.
o
•
Quasi-Delict
•
Art. 2180, CC: Teachers or heads of establishments of arts & trades shall be
liable for damages caused by their pupils & students or apprentices so long as
they remain in their custody.
o There must be clear showing of negligence or laxness in the
enforcement of discipline
o Applies if the students are no longer minor children
o School itself cannot be held liable under Art. 2180, but may be held
liable under the principle of respondeat superior
§
Master/employer is liable for the damages of
servants/employees
§
Same principle as special authority
o To exculpate themselves, the school, teachers or heads of the
establishment must show that they took the necessary precautions to
prevent the injury complained of
CLASS SCENARIO (A)
If a child destroys property in school, special authority is primarily liable for the damages,
though the parents retain parental authority.
AMPY’S ADVICE
If the school tells you to sign a waiver for your child’s field trip absolving them of liability,
sign the document. The waiver is void insofar as the school & teachers are concerned
when they negligently handle the field trip.
CHAPTER 3: EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE
CHILDREN
Art. 220. The parents and those exercising parental authority shall have with respect to
their unemancipated children or wards the following rights and duties:
1) To keep them in their company, to support, educate & instruct them by right precept &
good example, & to provide for their upbringing in keeping with their means;
2) To give them love and affection, advice and counsel, companionship & understanding;
3) To provide them with moral and spiritual guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry & thrift, stimulate their interest in civic
affairs, & inspire in them compliance with the duties of citizenship;
4) To enhance, protect, preserve & maintain their physical & mental health at all times;
5) To furnish them with good and whole- some educational materials, supervise their
activities, recreation and association with others, protect them from bad company, &
prevent them from acquiring habits detrimental to their health, studies and morals;
6) To represent them in all matters affecting their interests;
7) To demand from them respect and obedience;
8) To impose discipline on them as may be required under the circumstances; &
9) To perform such other duties as are imposed by law upon parents & guardians.
Representative of the Children
•
Art. 220, par. 8: Parents have the duty to represent their children in all matters
affecting their interest
o An offer to redeem a particular property made by the father on behalf
of his children is valid, as he is their natural guardian. It is not an act
of administration, but of representation of his children.
o A mother also has the right to file a petition for change of name on
behalf of her child, as the mother had the duty to represent the child
in all actions which redound to his benefit.
o A petition for habeas corpus filed by the uncle of a minor for the
minor was dismissed by SC because the parents of the minor filed a
motion to withdraw the appeal
§
The parents exercise joint parental authority & represent
their children in all actions which may redound to their
benefit
Disciplinary Actions
•
Art. 220 (7) & (8): Parents have the right to demand respect & obedience & to
discipline them as may be required
o They may inflict a reasonable measure of corporate punishment
•
CASE: Roe v. Doe (U.S.) – A child who constantly disobeyed the reasonable
requests of her parents, abandoned her parents’ home without just cause,
tried experimental drugs, etc. was denied support by her parents. The decision
of the parents was upheld in the court, because her actions disregarding the
parental authority of the parents forfeited her rights to demand for support.
Rights of the Children
•
Art. 356, CC provides that every child:
1) Is entitled to parental care
2) Shall receive at least elementary education
3) Shall be given moral & civic training by the parents or guardian
4) Has a right to live in an atmosphere conducive to his physical, moral &
intellectual development
Art. 221. Parents & other persons exercising parental authority shall be civilly liable for
the injuries & damages caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority subject to the appropriate
defenses provided by law.
Imputed or vicarious liability of parents
Two qualifiers:
1. While living in their company
2. Under their parental authority
If one of these is gone, the parents are NOT liable.
Parents
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•
•
•
•
•
Are primarily & principally liable for acts & omissions of their unemancipated
children resulting in injuries to others
2 requisites:
1) The unemancipated child must be living in their company
2) Must be under their parental authority
Doctrine of “imputed negligence” or vicarious liability – because you instruct &
discipline your child, you are also liable for torts committed by him
o Responsibility for the negligence of those persons whose acts &
omissions are imputable, by legal fiction, to others who are in a
position to exercise an absolute or limited control over them
o Torts that parents pay for their minor children are a result of their
parental authority over them
Parental dereliction can be overturned under Art. 2180, CC, by proof that the
parents had exercised all the diligence of a good father of a family to prevent
the damage
Example: When, pending a trial, the child shoots someone, the natural parents,
rather than the adoptive parents, are liable, because the natural parents are
the ones with responsibility over the child. This is true even if the general rule in
adoption is that the parent-child relationship is established from the date of the
filing of the petition
Diligence of a Good Father of a Family
•
Necessary to remove liability under Art. 221
•
CASE: Libi v. IAC – The son had used his father’s gun to shoot someone. The
father kept it in a safe but the son knew where it was & where the key was
hidden.
o SC held that there was no diligence of a good father of a family
Art. 222. The courts may appoint a guardian of the child’s property, or a guardian ad
litem when the best interests of the child so require.
Guardian
•
Trust relationship of the most sacred character
•
Represents the interest of the incompetent or the minor
Selection
•
The appointment which will probably keep the family together is preferred to
one which will bring about their separation
•
Appointment of a guardian is addressed to the sound discretion of the court
•
Primary consideration – best interests of the child
•
Guardian must be personally subject to the court’s jurisdiction
Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution
exercising parental authority, may petition the proper court of the place where the child
resides, for an order providing for disciplinary measures over the child. The child shall be
entitled to the assistance of counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner & the child shall be heard.
However, if in the same proceeding the court finds the petitioner at fault, irrespective of
the merits of the petition, or when the circumstances so warrant, the court may also
order the deprivation or suspension of parental authority or adopt such other measures
as it may deem just and proper.
Art. 224. The measures referred to in the preceding article may include the commitment
of the child for not more than 30 days in entities or institutions engaged in child care or
in children’s homes duly accredited by the proper government agency.
The parent exercising parental authority shall not interfere with the care of the child
whenever committed but shall provide for his support. Upon proper petition or at its own
instance, the court may terminate the commitment of the child whenever just and
proper.
Aid from the Court
•
Parents have the principal duty of undertaking measures to discipline their
children
•
If the parent wants to discipline the child, they can petition, but the child has a
right to be heard as well
o One of the measures that can be imposed – commitment of the child
for not more than 30 days in entities or institutions engaged in
childcare
o Parent of the child will not interfere with care once committed, but
shall provide for his support
o Upon petition or at its own instance, court may terminate the
commitment of the child whenever just & proper.
CHAPTER 4: EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF
THE CHILDREN
Art. 225. The father and the mother shall jointly exercise legal guardianship over the
property of their unemancipated common child without the necessity of a court
appointment. In case of disagreement, the father’s decision shall prevail, unless there is
a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000.00, the parent concerned shall be required to furnish a bond in such amount
as the court may determine, but not less than 10& per centum of the value of the
property or annual income, to guarantee the performance of the obligations prescribed
for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place
where the child resides, or, if the child resides in a foreign country, in the proper court of
the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents &
issues regarding the performance of the obligations referred to in the 2nd par. of this Art.
shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is
under substitute parental authority, or the guardian is a stranger, or a parent has
remarried, in which case the ordinary rules on guardianship shall apply.
Legal Guardian
•
No need for a judicial court order appointing parents as guardians
•
Regardless of the value of the child’s property, the parents ipso jure become
the legal guardian of the child’s property
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o
Here, still, father’s decision prevails over mother’s, subject to the
mother’s right to go to court to question the decision
Prohibition
•
2 cases where a parent cannot be the administrator of the property of his
children (provided in the law on succession):
1) Art. 923, CC – Children & descendants of the person disinherited shall
take his place & shall preserve the rights of the compulsory heirs with
respect to the legitime, but the disinherited parent shall not have the
usufruct or administration of the property which constitutes the legitime.
a. A has a legitimate son B. B has a legitimate son, C. At the time of
the death of A, his net estate was P100,000.
b. A executed a will where he validly disinherited B & bequeathed
all his properties to C.
c. Since C is the only heir who can inherit, he will inherit all of
P100,000.
i. The legitime portion is P50,000
ii. The voluntary portion is P50,000
d. B will not be allowed to administer the P50,000 constituting the
legitime. However, B can administer the P50,000 constituting C’s
inheritance as voluntary heir.
2) Art. 1035, CC – If the person excluded from the inheritance by reason of
incapacity should be a child or descendant of the decedent & should have
children or descendants, the latter shall acquire the right to the legitime.
The person so excluded shall not enjoy the usufruct & administration of
the property thus inherited by his children.
a. A has a legitimate son B, who has 2 legitimate children, C & D.
b. B groundlessly accused A of murder which accusation made B
incapacitated to succeed due to unworthiness.
c. At the time of A’s death, his estate was P100,000.
d. C & D will inherit the whole of P100,000. Since there is no will &
testament, they shall divide the P100,000 equally as their
inheritance.
i. P50,000 goes to C.
ii. P50,000 goes to D.
e. B will not enjoy the usufruct of either C or D’s share.
Bond
•
•
•
If the value of the property or income of the child exceeds P50,000, the
parents are required to furnish a bond in such amount as the court may
determine
o Not less than 10% of the value of the property or annual income, to
guarantee performance of guardian obligations
Law speaks of market value of the property or annual income – if this exceeds
P50,000, a bond is required
CASE: Pineda v. CA – A mother did not file a bond because her 3 children
received P50,000 each from an insurance policy, & this amount does not
exceed P50,000. However, SC held that the mother failed to show that the
P50,000 of each child was their only properties, as the law computes the
aggregate market value of the properties & incomes.
•
Any act done without giving the bond is a nullity; it is a prerequisite to the right
to use the power of guardianship
Bond & Duties of a Guardian
•
Bond guarantees the performance of the obligations prescribed for general
guardians
•
CASE: Jocson v. Empire Insurance Co. – The father used the money the children
inherited from their mother to buy clothes for the kids. The petitioner is
protesting this, because he claims that under the law the father must support
his children with his own funds.
o SC held that support was indeed demandable at any time the children
needed it, but it requires that they actually make the demand, which
they didn’t. Furthermore, the use of the children’s funds to buy their
clothes was made with court approval & therefore the bond cannot be
forfeited.
Alienation & Encumbrance
•
Parent’s authority over the estate of the ward as a legal-guardian would not
extend to acts of encumbrance or disposition, as distinguished from acts of
management or administration
o Mother cannot sell the property of her minor children without court
approval; such a sale would be void
o A guardian has no authority to sell or encumber the properties of his
ward
•
An abdicate waiver of rights by the guardian is also an act of disposition &
cannot bind his ward, being null & void, unless duly authorized by the court
o Parents have no power to compromise their child’s claims
o Court’s approval is necessary in compromises entered into by
guardians & parents
Summary Proceeding
•
Parents must immediately take care of the needs of their unemancipated
children
•
Day-to-day management should not be derailed by extensive proceedings
•
Law itself has already constituted the parent as the legal guardian
•
“All other incidents & issues” includes alienation, disposition, encumbrance or
mortgaging the property beyond P50,000
Guardianship Proceeding
•
If the guardians are the parents, the rules on guardianship are suppletory
•
If the child is under substitute parental authority, or the guardian is a stranger,
or the parent is remarried, the ordinary rules of co-ownership will apply
Art. 226. The property of the unemancipated child earned or acquired with his work or
industry or by onerous or gratuitous title shall belong to the child in ownership & shall be
devoted exclusively to the latter’s support & education, unless the title or transfer
provides otherwise.
The right of the parents over the fruits & income of the child’s property shall be limited
primarily to the child’s support & secondarily to the collective daily needs of the family.
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Ownership of Child’s Property
•
Child himself owns the property acquired by his own work to be used for his
education, support & welfare
•
But if the child’s property is more than sufficient to maintain said child, his
income may be used to help pay for the daily collective needs of the family
•
Art. 195, FC: A child is also obliged to support his parents
o The child’s separate property can be used by the parents if the
parents need it & the child can afford it
Art. 227. If the parents entrust the management or administration of any of their
properties to an unemancipated child, the net proceeds of such property shall belong to
the owner. The child shall be given a reasonable monthly allowance in an amount not
less than that which the owner would have paid if the administrator were a stranger,
unless the owner grants the entire proceeds to the child. In any case, the proceeds thus
given in whole or in part shall not be charged to the child’s legitime.
Allowance of Unemancipated Child
•
Parents who have engaged their unemancipated children to take care of their
properties shall only be entitled to the net fruits of the managed properties
o Unemancipated child first receives a reasonable monthly allowance
taken from the gross proceeds of the property for the said month
o All other expenses of the administration & management of the
property shall be taken from the proceeds
o Balance of the net profits goes to the parents
•
Parent can also grant all proceeds to the child
CHAPTER 5: SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY
Art. 228. Parental authority terminates permanently:
1) Upon the death of the parents;
2) Upon the death of the child;
3) Upon emancipation of the child.
There are types of termination, depending on whether the parental authority can be
revived.
1. Permanent termination
2. Automatic revival – e.g., civil interdiction
3. Revival by courts – e.g., sexual abuse
Death of Parent or Child
•
Art. 42, CC – Civil personality is extinguished by death
o Rights & obligations of the deceased are determined by law, by
contract & by will
•
Death terminates parental authority
•
PD 603: The court, upon the death of the parents, can appoint a guardian for
the person & property of the child, on petition of any relative or friend of the
family or the DSWD
Emancipation
•
•
Child is emancipated upon reaching age of majority – 18 years old
Emancipation terminates parental authority over the person & property of the
child; child is qualified to do all acts of civil life save for exceptions established
by existing laws
Effect of Art. 228
•
In such cases, parental authority is terminated permanently
•
The events happen with no fault on the part of the parties
•
Parental authority cannot be revived in these cases
Art. 229. Unless subsequently revived by a final judgment, parental authority also
terminates:
1) Upon adoption of the child;
2) Upon appointment of a general guardian;
3) Upon judicial declaration of abandonment of the child in a case filed for the
purpose;
4) Upon final judgment of a competent court divesting the party concerned of
parental authority;
5) Upon judicial declaration of absence or incapacity of the person exercising
parental authority.
Effect of Art. 229
• Termination in Art. 229 is not permanent
• Can be revived by the court, unlike Art. 228 & 232
Judicial Termination of Parental Authority
• Must be done only on the basis of legal grounds provided by law
• Even if parents attempt to compel their daughter to marry someone against her
will, this cannot be grounds to terminate parental authority
Adoption
•
Except in cases where the biological parent is the spouse of the adopter, all
legal ties between the biological parents & the adoptee shall be severed
o The same shall be vested in the adopter upon the finality of a judicial
adoption decree
•
Adoptee shall be considered the legitimate child of the adopter for all intents &
purposes
o Shall be entitled to all the rights & obligations provided by law to
legitimate children born to them without discrimination of any kind
•
If the adoption decree is rescinded, the rescission shall extinguish all reciprocal
rights between the adopter & the adopted
o Upon rescission, the parental authority of the adoptee’s biological
parents, if known, or the legal custody of the DSWD if the adoptee is
still a minor & incapacitated, shall be restored
Guardianship
•
A guardian appointed by the court shall generally have the care & custody of
the person of his ward & the management of his estate
Judicial Declaration of Abandonment
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•
•
•
A settled purpose on the part of the parent to forego all parental duties &
relinquish all parental claims to the child
Neglect or refusal to perform the natural & legal obligations of care & support
which parents owe to their children
This ground refers to a judicial decision arising from a case precisely filed for
the declaration of abandonment (it must be the principal issue in the case)
•
•
Suspension or deprivation can be judicially decreed in a case specifically filed
for that purpose or in a related case
o “Related case” – can be an offshoot of an incident or a collateral
pronouncement in another case
Art. 223, FC: If parents file a disciplinary case against their child, but their child
is able to prove fault on the part of the parents can suspend parental authority
Divestment by Final Court Judgment
•
Court may divest parental authority if the welfare of the child so demands
•
There must be clear, convincing & positive proofs
Excessive Harshness or Cruelty
•
Parents should not excessively use corporal punishment
•
Severely beating children or doing other cruel things is not allowed
Judicial Declaration of Absence or Incapacity
•
Parental authority cannot be expected from one who is an absentee or
incapacitated
•
If a declaration has been decreed by court, such is a valid ground for
terminating parental authority
o A separate case will be filed using the decree to terminate parental
authority
Corrupting Orders, Counsel or Example
•
It is the duty of the parents to provide their parents with moral & spiritual
guidance
Art. 230. Parental authority is suspended upon conviction of the parent or the person
exercising the same of a crime which carries with it the penalty of civil interdiction. The
authority is automatically reinstated upon service of the penalty or upon pardon or
amnesty of the offender.
Civil Interdiction
• An accessory penalty imposed on accused found guilty of certain crimes
• The deprivation of the offender during his sentence of rights of parental authority,
guardianship, either as to persons or property of any ward, marital authority, the
right to manage property, right to dispose of such property by any act or
conveyance inter vivos
• This ground is distinct because it requires no judicial declaration; it is an accessory
to a conviction
Art. 231. The court in an action filed for the purpose or in a related case may also
suspend parental authority if the parent or the person exercising the same:
1) Treats the child with excessive harshness or cruelty;
2) Gives the child corrupting orders, counsel or example;
3) Compels the child to beg;
4) Subjects the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted from
culpable negligence of the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child so demands, the
court shall deprive the guilty party of parental authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived in a
case filed for the purpose or in the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated.
Court Proceeding
Compelling Child to Beg
•
Parents should inculcate in their children self-reliance through lawful activities
Acts of Lasciviousness
•
To make the child the object of his prurient behavior can cause great
emotional, physical & psychological harm to the victim-child
Culpable Negligence
•
Grounds in Art. 231 are deemed to include cases which result from culpable
negligence of the parent or person executing parental authority
•
Example: If the stepfather forces his son to beg & mother acts indifferent, she
can be culpably negligent
Suspension, Deprivation, Revival
•
Like Art. 229, suspension or deprivation can be revoked & parental authority
revived in a case filed for the purpose or in the same proceeding, if the court
finds the cause therefor has ceased & will not be repeated
Art. 232. If the person exercising parental authority has subjected the child or allowed
him to be subjected to sexual abuse, such person shall be permanently deprived by the
court of such authority.
Sexual Abuse
•
CASE: Re Van Vlack – A father sexually molested his adopted daughter. The
biological mother left with the daughter, but returned a month later with the
child.
o SC held that this was grounds to terminate the parental rights of the
mother
•
CASE: Re Armentrout – Where the evidence showed that the children were
molested by their stepfather but the mother consistently refused to believe in
the stepfather’s guilt despite the conviction, SC permanently severed the
parental rights of the mother
•
Where the welfare of the child so demand, the right of the parents becomes
secondary
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2)
Effect of Art. 232
•
Parental authority CANNOT be revived even if there is reformation
Grounds for Terminating Parental Authority Under the RPC
•
Art. 278, RPC: If any ascendant, guardian, teacher or person entrusted with a
child under 16 years of age delivers the child gratuitously or for a price to any
habitual vagrant or beggar or to any person who is an acrobat, gymnast, etc.
who will employ the child in an exhibition, they may be deprived, permanently
or perpetually, of their parental authority & imprisoned
Art. 233. The person exercising substitute parental authority shall have the same
authority over the person of the child as the parents. In no case shall the school
administrator, teacher or individual engaged in childcare & exercising special parental
authority, inflict corporal punishment upon the child.
NEGLIGENCE IS PRESUMED in these 3 instances in Civil Code
1. Vehicular accidents – e.g., violating traffic rules
2. Common carriers & extraordinary diligence
3. Art. 233 – administrators, teachers, etc. with special parental authority
Q: If the teacher has her back turned & the minor children behind her are hitting each
other, and a pencil is stabbed on one child, is the teacher liable?
A: She is presumed liable & must prove she exercised the proper diligence.
Q: What does aggrieved party have to prove?
A: The kid was in the classroom, came out with a bruise. That’s it, because of the
presumed negligence.
This also applies in outside activities with authorization of the school
1. Recess
2. Graduation
3. Waiting within the vicinity of the school for the fetching of the child
4. There is a dorm owned by the school where the child lives
Corporal Punishment
•
Teachers & academic personnel are absolutely prohibited from inflicting
corporal punishment upon children
•
A teacher may be held civilly & administratively liable for such an offense, but
for there to be criminal liability, there must be proof of felonious intent
Right of Parents to Inflict Corporal Punishment
•
Only persons exercising special parental authority cannot inflict corporal
punishment
•
Parents & those exercising substitute parental authority can inflict reasonable
corporal punishment
Criminal Liability of Parents
•
Parents can be criminally liable for maltreating their children when they:
1) Conceals or abandons the child with intent to make such child lose his civil
status;
Abandons the child under such circumstances as to deprive him of the
love, care and protection he needs;
3) Sells or abandons the child to another person for valuable consideration;
4) Neglects the child by not giving him the education which the family’s
station in life and financial conditions permit;
5) Fails or refuses, without justifiable grounds, to enroll the child;
6) Causes, abates or permits the truancy of the child from the school where
he is enrolled. “Truancy’’ as here used means absence without cause for
more than twenty days, not necessarily consecutive;
7) Improperly exploits the child by using him, directly or indirectly, such as for
purposes of begging and other acts which are inimical to his interest and
welfare;
8) Inflicts cruel and unusual punishment upon the child or deliberately
subjects him to indignation and other excessive chastisement that
embarrass or humiliate him;
9) Causes or encourages the child to lead an immoral or dissolute life;
10) Permits the child to possess, handle or carry a deadly weapon, regardless
of its ownership;
11) Allows or requires the child to drive without license or with license which
the parent knows to have been illegally procured. If the motor vehicle
driven by the child belongs to the parents, it shall be presumed that he
permitted or ordered the child to drive (Art. 59, PD 603).
Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act [RA 7610] – June 17, 1992
Important Provisions
Sec. 2. Declaration of State Policy and Principles. — It is hereby declared to be the policy
of the State to provide special protection to children from all forms of abuse, neglect,
cruelty, exploitation & discrimination, & other conditions prejudicial to their development;
provide sanctions for their commission & carry out a program for prevention and
deterrence of & crisis intervention in situations of child abuse, exploitation &
discrimination. The State shall intervene on behalf of the child when the parent,
guardian, teacher or person having care or custody of the child fails or is unable to
protect the child against abuse, exploitation & discrimination or when such acts against
the child are committed by the said parent, guardian, teacher or person having care &
custody of the same.
It shall be the policy of the State to protect and rehabilitate children gravely threatened
or endangered by circumstances which affect or will affect their survival and normal
development and over which they have no control.
The best interests of children shall be the paramount consideration in all actions
concerning them, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative bodies, consistent with the
principles of First Call for Children as enunciated in the United Nations Convention on the
Rights of the Child. Every effort shall be exerted to promote the welfare of children and
enhance their opportunities for a useful and happy life.
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Sec. 3. Definition of Terms. –
(a) “Children” refers to persons below 18 years of age or those but are unable to fully
take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or condition;
(b) “Child Abuse” refers to the maltreatment, whether habitual or not, of the child which
includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as food & shelter;
or
(4) Failure to immediately give medical treatment to an injured child resulting in
serious impairment of his growth and development or in his permanent incapacity
or death.
(c) “Circumstances which gravely threaten or endanger the survival and normal
development of children” include, but are not limited to, the following:
(1) Being in a community where there is armed conflict or being affected by armed
conflict-related activities;
(2) Working under conditions hazardous to life, safety & morals which unduly
interfere with their normal development;
(3) Living in or fending for themselves in the streets of urban or rural areas without
the care of parents or a guardian or any adult supervision needed for their
welfare;
(4) Being a member of an indigenous cultural community &/or living under the
conditions of extreme poverty or in an area which is underdeveloped &/or lacks
or has inadequate access to basic services needed for a good quality of life;
(5) Being a victim of a man-made or natural disaster or calamity; or
(6) Circumstances analogous to those above-stated which endanger the life, safety or
normal development of children.
(d) “Comprehensive program against child abuse, exploitation and discrimination” refers
to the coordinated program of services and facilities to protect children against:
(1) Child prostitution and other sexual abuse;
(2) Child trafficking;
(3) Obscene publication and indecent shows;
(4) Other acts of abuse; &
(5) Circumstances which threaten or endanger the survival and normal development
of children.
Important Notes
•
Definition of Children:
o Persons below 18 years, or
o Those unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition
Four basic types of offenses:
(1) Prostitution and other sexual abuse
(2) Trafficking in children
(3) Pornography and other forms of indecency
(4) Other forms of abuse
Special children:
(1) Ethnic children who should not be discriminated against
(2) Children as zones of peace in areas of conflict
Sec. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are
deemed to be children exploited in prostitution & other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include,
but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with
intent to engage such child in prostitution.
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse; Provided, That when the
victims is under 12 years of age, the perpetrators shall be prosecuted under Art. 335,
par. 3, for rape & Art. 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under 12 years of age shall be reclusion temporal in its
medium period; &
(c) Those who derive profit or advantage therefrom, whether as manager or owner of the
establishment where the prostitution takes place, or of the sauna, disco, bar, resort,
place of entertainment or establishment serving as a cover or which engages in
prostitution in addition to the activity for which the license has been issued to said
establishment.
Sec. 6. Attempt to Commit Child Prostitution. — There is an attempt to commit child
prostitution under Section 5, paragraph (a) hereof when any person who, not being a
relative of a child, is found alone with the said child inside the room or cubicle of a
house, an inn, hotel, motel, pension house, apartelle or other similar establishments,
vessel, vehicle or any other hidden or secluded area under circumstances which would
lead a reasonable person to believe that the child is about to be exploited in prostitution
and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of Section 5
hereof when any person is receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments. A penalty lower by two (2)
degrees than that prescribed for the consummated felony under Section 5 hereof shall
be imposed upon the principals of the attempt to commit the crime of child prostitution
under this Act, or, in the proper case, under the Revised Penal Code.
Important Notes
•
Sec. 5 lists all those who are considered to have committed child prostitution,
including procurers, inducing a person to be a client of a child prostitute, those
who take advantage of their relationships with children, etc.
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•
Included are those who manage clubs, saunas, hotels & other such
establishments that also run child prostitution rings
There are two types of sexual abuse:
(1) Pimp – inducing people to have sex with a child
(2) You are the actual sexual abuser
Under pimping, there is such a thing as an attempt to prostitute. This includes when a
foreigner or other person is seen with a child in an isolated place – in a car, hotel, or bar.
You may already be caught for this, as attempt to prostitute. There is a presumption of
enticing.
Under the person being the actual sexual abuser, when you are seen with a child in a
massage parlor, in a health club, etc. this falls under this second category.
Sec. 7. Child Trafficking. – Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and selling of a child for money, or
for any other consideration, or barter, shall suffer the penalty of reclusion temporal to
reclusion perpetua. The penalty shall be imposed in its maximum period when the victim
is under 12 years of age.
There are presumptions of law where trafficking will attach, but these are rebuttable. As
an example – a pre-birth contract for adoption, surrogacy, or simulated birth certificates
create a presumption of trafficking.
Sec. 8. Attempt to Commit Child Trafficking. — There is an attempt to commit child
trafficking under Sec. 7 of this Act:
(a) When a child travels alone to a foreign country without valid reason therefor &
without clearance issued by the DSWD or written permit or justification from the child’s
parents or legal guardian;
(b) When a pregnant mother executes an affidavit of consent for adoption for a
consideration;
(c) When a person, agency, establishment or child-caring institution recruits women or
couples to bear children for the purpose of child trafficking;
(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil
registrar or any other person simulates birth for the purpose of child trafficking; or
(e) When a person engages in the act of finding children among low-income families,
hospitals, clinics, nurseries, day- care centers, or other child-caring institutions who can
be offered for the purpose of child trafficking.
Sec. 9. Obscene Publications and Indecent Shows. – Any person who shall hire, employ,
use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent
shows, whether live or in video, or model in obscene publications or pornographic
materials or to sell or distribute the said materials shall suffer the penalty of prision
mayor in its medium period.
If the child used as a performer, subject or seller/distributor is below 12 years of age,
the penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any capacity with the care of a child who
shall cause and/or allow such child to be employed or to participate in an obscene play,
scene, act, movie or show or in any other acts covered by this section shall suffer the
penalty of prision mayor in its medium period.
M: For example, forcing a child to dance in public until he cries (Willy!)
Sec. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child’s Development. —
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or
be responsible for other conditions prejudicial to the child’s development including those
covered by Article 59 of PD No. 603, as amended, but not covered by the Revised Penal
Code, as amended, shall suffer the penalty of prision mayor in its minimum period.
(b) Any person who shall keep or have in his company a minor, 12 years or under or who
is 10 years or more his junior in any public or private place, hotel, motel, beer joint,
discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other
tourist resort or similar places shall suffer the penalty of prision mayor in its maximum
period & a fine of not less than P50,000.00: Provided, That this provision shall not apply
to any person who is related within the fourth degree of consanguinity or affinity or any
bond recognized by law, local custom & tradition, or acts in the performance of a social,
moral or legal duty.
(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act
to keep or have in his company a minor as provided in the preceding paragraph shall
suffer the penalty of prision mayor in its medium period and a fine of not less than
P40,000.00: Provided, however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its
maximum period, a fine of not less than P50,000.00, & the loss of parental authority
over the minor.
(d) Any person, owner, manager or one entrusted with the operation of any public or
private place of accommodation, whether for occupancy, food, drink, or otherwise,
including residential places, who allows any person to take along with him to such place
or places any minor herein described shall be imposed a penalty of prision mayor in its
medium period and a fine of not less than P50,000.00, & the loss of the license to
operate such a place or establishment.
(e) Any person who shall use, coerce, force or intimidate a street-child or any other child
to:
(1) Beg or use begging as a means of living;
(2) Act as conduit or middleman in drug trafficking or pushing; or
(3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its
medium period to reclusion perpetua.
M: This is like a catch-all provision. But as SC held, the qualifier in Section 10 is that the
abuse must be for the purpose of denigrating or lowering the dignity of a child. For
Katrina Monica C. Gaw | Block C 2018| 144
example, X got mad at this child, Y, who always calls X ugly. X got so mad he hit Y in the
head. Will a case against X prosper?
Held: No. X was just annoyed, but not for the purpose of denigrating the dignity of the
child. Hence, not all physical contact constitutes abuse.
Sec. 12. Employment of Children. — Children below 15 years of age may be employed:
Provided, that, the following minimum requirements are present:
(a) The employer shall secure for a work permit from the Department of Labor and
Employment;
(b) The employer shall ensure the protection, health, safety, & morals of the child;
(c) The employer shall institute measures to prevent exploitation or discrimination taking
into account the system & level of remuneration, & the duration and arrangement of
working time; &
(d) The employer shall formulate & implement continuous program for training & skill
acquisition of the child.
Sec. 17. Survival, Protection and Development. — In addition to the rights guaranteed to
children under this Act and other existing laws, children of indigenous cultural
communities shall be entitled to protection, survival and development consistent with
the customs and traditions of their respective communities.
Sec. 27. Who May File a Complaint — Complaints on cases of unlawful acts committed
against children as enumerated herein may be filed by the following:
(a) Offended party;
(b) Parents or guardians;
(c) Ascendant or collateral relative within the third degree of consanguinity;
(d) Officer, social worker or representative of a licensed child-caring institution;
(e) Officer or social worker of the DSWD;
(f) Barangay chairman; or
(g) At least 3 concerned, responsible citizens where the violation occurred.
Add Sec. 29 – Mel emphasized that this is important.
In actual practice, photos of children should be blurred.
TITLE X. – EMANCIPATION & AGE OF MAJORITY
(Virtually repealed because now emancipation only occurs at 18 & cannot be earlier)
TITLE XI. – SUMMARY JUDICIAL PROCEEDINGS IN FAMILY LAW
[REREAD THIS ENTIRE THING]
Rule 45 v. Rule 65
TITLE XII. – FINAL PROVISIONS
Sec. 22. Children as Zones of Peace. — Children are hereby declared as Zones of Peace.
It shall be the responsibility of the State and all other sectors concerned to resolve
armed conflicts in order to promote the goal of children as zones of peace. To attain this
objective, the following policies shall be observed:
(a) Children shall not be the object of attack and shall be entitled to special respect. They
shall be protected from any form of threat, assault, torture or other cruel, inhumane or
degrading treatment;
(b) Children shall not be recruited to become members of the Armed Forces of the
Philippines or its civilian units or other armed groups, nor be allowed to take part in the
fighting, or used as guides, couriers, or spies;
(c) Delivery of basic social services such as education, primary health and emergency
relief services shall be kept unhampered;
(d) The safety and protection of those who provide services including those involved in
fact-finding missions from both government and non-government institutions shall be
ensured. They shall not be subjected to undue harassment in the performance of their
work;
(e) Public infrastructure such as schools, hospitals and rural health units shall not be
utilized for military purposes such as command posts, barracks, detachments, and
supply depots; and
(f) All appropriate steps shall be taken to facilitate the reunion of families temporarily
separated due to armed conflict.
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of RA 386, otherwise known as
the Civil Code of the Philippines, as amended, & Articles 17, 18, 19, 27, 28, 29, 30, 31,
39, 40, 41, and 42 of PD 603, otherwise known as the Child & Youth Welfare Code, as
amended, & all laws, decrees, executive orders, proclamations, rules & regulations, or
parts thereof, inconsistent herewith are hereby repealed.
Repealing Provision
•
For any implied repeals to operate, there must be substantial irreconcilable
conflict in connection with provisions in existing & prior acts with those of FC
Art. 255. If any provision of this Code is held invalid, all the other provisions not affected
thereby shall remain valid.
Separability
•
The invalidity of one provision will not necessarily invalidate the whole law
•
However, the invalidity of a particular provisions invalidates those other
provisions which are affected by the said invalidity
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws.
Retroactive Effect
•
Generally not favored
Katrina Monica C. Gaw | Block C 2018| 145
•
CASE: Jovellanos v. CA – A husband, during his 1st marriage in 1955, entered
into a contract to sell in installment over a specific property but the contract
said the title would only fully vest upon the payment of the final installment.
o The husband paid partly by the conjugal funds of his 1st marriage &
partly by his own separate exclusive funds
o The last installment was made in 1976 during the 2nd valid marriage
using conjugal funds of the 2nd marriage
o SC held that the property is part of the CPG of the 2nd marriage by
virtue of Art. 118, FC which became law on Aug. 3 1988
Vested Rights
•
Retroactivity will not take effect if vested rights are involved
•
A vested right – an immediate & fixed right of present & future payment
o No longer in doubt or in controversy
o Not contingent
o Already fixed & absolute
•
Inchoate right - A state of activity or entitlement that is characterized by partial
completion of an intended outcome or status. The notion of inchoate comes
into play most often in a legal sense, as it could refer to an inchoate
transaction between two parties, where the tentative terms of an agreement
have been discussed and it's plausible that the deal will go through, but no
formal agreement has yet been signed.
Art. 257. This Code shall take effect one year after the completion of its publication in a
newspaper of general circulation, as certified by the Executive Secretary, Office of the
President. Publication shall likewise be made in the Official Gazette.
Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased.
In the absence of such expression, his religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same, after consulting the other members
of the family.
Kinds of Funerals
•
The wishes of the deceased will mainly be followed as a sign of respect
o In the absence of such expression, his religious beliefs or affiliation
will be followed
o In case of doubt, the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same, after consulting
the other members of the family
Art. 308. No human remains shall be retained, interred, disposed of or exhumed without
the consent of the persons mentioned in Art. 294 & 305.
Art. 309. Any person who allows disrespect to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the deceased for damages, material & moral.
Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the
funeral expenses, & shall be chargeable to the ACP/CPG, if the deceased is one of the
spouses.
CIVIL CODE OF THE PHILIPPINES
TITLE X. FUNERALS
TITLE XIII. – CARE & RESPECT FOR CHILDREN
Art. 305. The duty & the right to make arrangements for the funeral of a relative shall be
in accordance with the order established for support, under Art. 199 of the Family
Code.58 In case of descendants of the same degree, or of brothers & sisters, the oldest
shall be preferred. In case of ascendants, the paternal shall have a better right.
Art. 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral & civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual
development.
Arrangements
•
Art. 199, FC states that the duty should devolve as follows:
o 1st – Spouse; in his absence or incapacity,
o 2nd – Descendants in the nearest degree; in absence or incapacity,
§
Preferred: the eldest descendant
o 3rd – Ascendants in the nearest degree;
§
Preferred: the paternal side
o 4th – In the absence of all the above, the brothers & sisters
§
Preferred: the eldest sibling
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, & persons holding substitute parental
authority;
(3) Exert his utmost for his education & training;
(4) Cooperate with the family in all matters that make for the good of the same.
Art. 306. Every funeral shall be in keeping with the social position of the deceased.
Art. 358. Every parent and every person holding substitute parental authority shall see to
58
Previously Art. 294 of the CC
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it that the rights of the child are respected & his duties complied with, & shall
particularly, by precept & example, imbue the child with high-mindedness, love of
country, veneration for the national heroes, fidelity to democracy as a way of life, &
attachment to the ideal of permanent world peace.
Art. 359. The government promotes the full growth of the faculties of every child. For this
purpose, the government will establish, whenever possible:
(1) Schools in every barrio, municipality & city where optional religious instruction shall
be taught as part of the curriculum at the option of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; &
(4) Juvenile courts.
Art. 360. The Council for the Protection of Children shall look after the welfare of children
in the municipality. It shall, among other functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect & assist abandoned or mistreated children, & orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening & maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the welfare of children, & secure
their cooperation.
Art. 361. Juvenile courts will be established, as far as practicable, in every chartered city
or large municipality.
Art. 362. Whenever a child is found delinquent by any court, the father, mother, or
guardian may in a proper case be judicially admonished.
Art. 363. In all questions on the care, custody, education and property of children, the
latter’s welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.
Class Notes (A)
•
Remember Roe v. Doe – If you do not follow a reasonable demand as a child,
your parents have the right to withhold support from you
TITLE XIII. THE USE OF SUR NAMES
Q: Can you use “junior” if you are a woman?
A: No, because the law explicitly says sons.
Q: Is the name “Mrs. Corazon Aquino” correct?
A: No. What is correct is “Mrs. Benigno Aquino.” The correct way to use “Mrs.” Is it should
be with the name of the husband.
Q: Can a woman who had her marriage annulled use the surname of her ex-husband?
A: Yes.
Changing Names
First name, nickname – LCR
Surname –
GR: Always go to court
EXC:
1. Clerical error
2. Change of the surname of an illegitimate child from the mother’s surname from the
father’s surname (LCR)
Birthdate
Month and day of birth – LCR
Year of birth – Court
Surnames & Middle Names
•
A person’s name is the designation by which he is called in the community in
which he lives & is best known
•
It is defined as the word or combination of words by which a person is
distinguished from other individuals &, also, as the label which he bears for the
convenience of the world at large addressing him, or in speaking of or dealing
with him.
•
It is a matter of personal & public interest
o Every person must have a name
•
2 parts in an individual’s name
(1) Given or proper name
o Given at birth or at baptism, to distinguish him from others
o Freely chosen by the parents
(2) Surname or family name
o Identifies him to the family that he belongs, & is passed from
parent to child
o Fixed by law
•
5 characteristics of a name
(1) It is absolute, intended to protect the individual from being confused
with others
(2) It is obligatory in certain respects, for nobody can be without a name
(3) It is fixed, unchangeable, or immutable, at least at the start, and maybe
changed only for good cause & (for surnames) by judicial proceedings
(4) It is outside the commerce of man, & therefore inalienable &
intransmissible by act inter vivos or mortis causes
(5) It is imprescriptible
•
Middle names – legal significance because it identifies maternal lineage
o A middle name cannot be just dropped without compelling or
justifiable reasons (ex. Can’t be dropped because it’s inconvenient)
Art. 364. Legitimate & legitimated children shall principally use the surname of the
father.
Legitimate & Legitimated Children
•
They can use the surname of the father or the mother
•
There is no legal obstacle if the child chooses to use the surname of the
mother, as he is equally entitled to do so
Art. 365. An adopted child shall bear the surname of the adopter.
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Art. 366. A natural child acknowledged by both parents shall principally use the surname
of the father. If recognized by only one of the parents, a natural child shall employ the
surname of the recognizing parent.
Art. 367. Natural children by legal fiction shall principally employ the surname of the
father.
Art. 368. Illegitimate children shall bear the surname of the mother.
Illegitimate Children
•
Under the FC, there are only 2 classes of children: legitimate or illegitimate
•
Art. 176, FC: Illegitimate children shall principally use the surname of the
mother, & shall be entitled to support in conformity with the FC.
o Child may use the surname of their father if their filiation has been
expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father
o Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime
•
Have no middle name if father does not acknowledge them
When is the father’s surname used?
1) For legitimate kids
2) For legitimated kids
3) For adopted kids
4) For illegitimate kids who the father acknowledges
Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
Conception inside an Annullable Marriage
•
Annullable marriage – valid until terminated
o Children conceived or born in marriages that are annulled are
legitimate, because the marriage is valid until annulled
•
Vital word in this provision: conceived!
Null Marriage
•
When a marriage is nullified, one cannot use the name of her spouse anymore
(3) Her husband’s full name, with a prefix such as “Mrs.” to indicate that she is his
wife
(4) Her own maiden name
Married Woman
•
Art. 370 is merely directory – when a woman marries, she does not change her
name; only her civil status
•
CASE: Remo v. Hon. Sec. of Foreign Affairs – A woman who initially uses her
first name & her husband’s surname in her passport cannot change the name
to her maiden name upon passport renewal.
o SC ruled that her name can only be changed in subsequent renewals,
if she annulled or nullified her marriage or a valid divorce was
obtained abroad
o For Sta. Maria, she should have been allowed to change the surname
to her own surname
Art. 371. In case of annulment of marriage, & the wife is the guilty party, she shall
resume her maiden name & surname. If she is the innocent spouse, she may resume
her maiden name & surname. However, she may choose to continue employing her
former husband’s surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Annulment
•
Scenario: Maria Clara marries Juan dela Cruz. She is then known as Maria
Clara-dela Cruz
o If they get an annulment, & it is her fault, she will revert back to using
Maria Clara
o If they get an annulment & it is not her fault, she can keep using
Maria Clara-dela Cruz depending on her own choice, unless:
§
The court decrees otherwise
§
She marries Sean America, in which case she will follow Art.
370
Art. 372. When legal separation has been granted, the wife shall continue using her
name & surname employed before the legal separation.
Legal Separation
•
Wife may keep using her name before the legal separation, since the marriage
is not dissolved in such a decree
Art. 370. A married woman may use:
(1) Her maiden first name & surname & add her husband’s surname, or
(2) Her maiden first name & her husband’s surname, or
(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as
“Mrs.”
Art. 373. A widow may use the deceased husband’s surname as though he were still
living, in accordance with Art. 370.
Four Ways a Woman Can be Named After Marriage
(1) Her maiden first name & surname, & the surname of her husband
(2) Her maiden first name & her husband’s surname
Identity of Names
•
If parents want to name their child after a godparent who is not related to
them, the said son must use an additional name to avoid confusion
Art. 374. In case of identity of names and surnames, the younger person shall be obliged
to use such additional name or surname as will avoid confusion.
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o
Example: If the godfather’s name is Juan dela Cruz, the godson
should use an additional name like Juan Pedro dela Cruz
Art. 375. In case of identity of names & surnames between ascendants & descendants,
the word “Junior” can be used only by a son. Grandsons & other direct male descendants
shall either:
(1) Add a middle name or the mother’s surname, or
(2) Add the Roman numerals II, III, and so on.
Identity of Names Between Ascendants & Descendants
•
Only sons can use “Junior”
o Example: The son of Juan dela Cruz is Juan dela Cruz Jr.
o Any direct descendant of Juan dela Cruz Jr. must use Roman
numerals II, III, so on
§
If Juan dela Cruz Jr. marries Rica Santos has a son, he shall
be either:
•
Juan Ricardo dela Cruz
•
Juan dela Cruz III
•
Juan Santos-dela Cruz
§
If Juan dela Cruz names his son after his father, Robert dela
Cruz, his son would be Robert dela Cruz II
Art. 376. No person can change his name or surname without judicial authority.
INTERMISSION: R.A. 9048
RA 9048 (as amended by R.A. 10172)
•
Art. 366 & 412 of the Civil Code have been amended by RA 9048
o “An Act Authorizing the City or Municipal Civil Registrar or the Consul
General to Correct a Clerical or Typographical Error in an Entry &/or
Change of First Name or Nickname in the Civil Register Without Need
of Judicial Order. Amending for this Purpose Art. 376 & 412 of the
Civil Code of the Philippines” – signed into law on March 22, 2001
o Sec. 1. No entry in a civil register shall be changed or corrected
without a judicial order, EXCEPT
§
For clerical or typographical errors
•
A mistake committed in the performance of
clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless
& innocuous
•
Visible to the eye & obvious to the understanding
§
For change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions
of this Act and its implementing rules and regulations
o No corrections can involve:
§
Nationality petitioner
§
Sex of the petitioner
§
Status of the petitioner
o Possible corrections include:
o
§
Misspelled name or misspelled place of birth or the like
Who may file? The one who wants his name changed, as he has a
direct & personal interest in the case
Sec. 4. Grounds for Change of First Name or Nickname. — The petition for change of first
name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be:
a. Ridiculous
b. Tainted with dishonor or
c. Extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually & continuously used by the
petitioner & he has been publicly known by the first names or nicknames in the
community; or
(3) The change will avoid confusion.
Form and Contents of the Petition
•
The petition shall be in the form of an affidavit, subscribed & sworn to before
any person authorized by law to administer oaths.
o The affidavit shall set forth facts necessary to establish the merits of
the petition & shall show affirmatively that the petitioner is competent
to testify to the matters stated.
o The petitioner shall state the particular erroneous entries which are
sought to be corrected &/or the change sought to be made.
•
The petition shall be supported with the following documents:
(1) A certified true machine copy of the certificate or of the page of the registry
book containing the entry or entries sought to be corrected or changed;
(2) At least 2 public or private documents showing the correct entry or entries
upon which the correction or change shall be based; &
(3) Other documents which the petitioner or the city or municipal civil registrar,
or the consul general may consider relevant and necessary for the approval of
the petition.
•
In case of change of first name or nickname, the petition shall likewise be
supported with the documents mentioned in the immediately preceding
paragraph.
o Also, the petition shall be published at least once a week for 2
consecutive weeks in a newspaper of general circulation.
o Furthermore, the petitioner shall submit a certification from the
appropriate law enforcement agencies that he has no pending case
Sec. 7. Duties and Powers of the Civil Registrar General. — The civil registrar general
shall, within 10 working days from receipt of the decision granting a petition, exercise the
power to impugn such decision by way of an objection based on the following grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil register is substantial or controversial
as it affects the civil status of a person; or
(3) The basis used in changing the first name or nickname of a person does not fall
under Sec. 4.
Class Notes
•
General rule for changing official records: Art. 376 – a judicial proceeding is
required
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o
Exceptions:
§
RA 9048 (first names & nicknames, clerical errors)
§
RA 10172 (you can change date of birth, gender if you have
proofs)
Change of Surname & Nickname
•
A change of name is a privilege, & not a right
•
There must be proper cause & compelling reason as justification
•
Change of given name or nickname can be effected through the LCR
o Reviewable by the Office of the Civil Registrar General & finally the
courts
•
Change of surname can only be done as a matter of judicial discretion
o A person is not allowed to use a surname he is not permitted to
employ under the law
Reason for Allowing Change of Names
•
To give a person an opportunity to improve his or her personality & to promote
his or her best interest
•
The reasons for change of name or nickname are in Sec. 4, RA 9048
•
Examples of reasonable causes to change name:
o A ridiculous name, a name tainted with dishonor or a name extremely
difficult to pronounce
o A need to avoid confusion
o A change of civil status
o A sincere desire by a former alien to erase signs of a former
nationality, which duly hamper social & business life
•
CASE: Silverio v. Republic – A man who had a sex reassignment surgery cannot
change his name to a female’s name in his birth certificate because it is seen
as unnatural.
•
CASE: Republic v. Cagandahan – A woman who is diagnosed with CAH & has
both male & female characteristics can change her birth certificate name to a
man’s name because she personally is inclined to being male due to her body.
•
CASE: Moore v. Republic – A divorced woman wanted her son from a previous
marriage to have the surname of her husband in her 2nd marriage, because her
2nd husband treats her son like his own. SC rejected this because PH law does
not allow a legitimate son to be given the surname of anyone other than his
own father.
•
CASE: Calderon v. Republic – SC allowed the change of surname of an
illegitimate child if this would be for the best interest of the child, to the
surname of his mother’s 2nd husband who is not his real father.
Effect of Change of Surname
•
Does NOT alter family relations, rights or duties, legal capacity, civil status or
citizenship
Nature of Proceedings
•
Governed by Rule 103 of the Rules of Court
o One has to appear in court for the petition
o Any interested person may appear & oppose the hearing
o
Refers to change of surname since change of first name does not
need judicial order
R.A. 10172
RA 10172
•
Authorized changes in date of birth & sex of a person which are simply clerical
errors without judicial order:
SEC. 3. Section 5 of the Act (RA9048) is hereby amended to read as follows:
“SEC. 5. Form and Contents of the Petition. – The petition for correction of a clerical or
typographical error, or for change of first name or nickname, as the case may be, shall
be in the form of an affidavit, subscribed and sworn to before any person authorized by
law to administer oaths. The affidavit shall set forth facts necessary to establish the
merits of the petition and shall show affirmatively that the petitioner is competent to
testify to the matters stated. The petitioner shall state the particular erroneous entry or
entries, which are sought to be corrected and/or the change sought to be made.
The petition shall be supported with the following documents:
(1) A certified true machine copy of the certificate or of the page of the registry book
containing the entry or entries sought to be corrected or changed;
(2) At least 2 public or private documents showing the correct entry or entries upon
which the correction or change shall be based; and
(3) Other documents which the petitioner or the city or municipal civil registrar or the
consul general may consider relevant and necessary for the approval of the
petition.
No petition for correction of erroneous entry concerning the date of birth or the sex of a
person shall be entertained except if the petition is accompanied by earliest school
record or earliest school documents such as, but not limited to, medical records,
baptismal certificate and other documents issued by religious authorities; nor shall any
entry involving change of gender corrected except if the petition is accompanied by a
certification issued by an accredited government physician attesting to the fact that the
petitioner has not undergone sex change or sex transplant. The petition for change of
first name or nickname, or for correction of erroneous entry concerning the day and
month in the date of birth or the sex of a person, as the case may be, shall be published
at least once a week for 2 consecutive weeks in a newspaper of general circulation.
Furthermore, the petitioner shall submit a certification from the appropriate law
enforcements, agencies that he has no pending case or criminal record.
The petition and its supporting papers shall be filed in 3 copies to be distributed as
follows: first copy to the concerned city or municipal civil registrar, or the consul general;
second copy to the Office of the Civil Registrar General; and third copy to the petitioner.”
Combined Rules of R.A. 9048 & R.A. 10172
•
Combining R.A. 9048 & R.A. 10172, these cannot be changed without judicial
order:
1) Nationality
2) Status
•
Date of birth or sex is changeable if accompanied by:
1) Earliest school record or earliest school documents such as, but not
limited to, medical records, baptismal certificate & other documents
issued by religious authorities
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2)
[For sex] A certification issued by an accredited government physician
attesting to the fact that the petitioner has not undergone sex change or
sex transplant
Art. 377. Usurpation of a name & surname may be the subject of an action for damages
and other relief.
Art. 378. The unauthorized or unlawful use of another person’s surname gives a right of
action to the latter.
Usurpation of a Name
•
CASE: Tolentino v. CA – Current wife filed an action to prevent the former wife
of her husband from using the surname of the husband. The court ruled,
however, that there was no usurpation.
o The records do not show that the former wife had legally remarried;
the public is also aware of the difference between the 2 of them
o Elements of Usurpation of a Name:
1) There is actual use of another’s name by the defendant
2) The use is unauthorized
3) The use of another’s name is to designate personality or identify
a person
Art. 379. The employment of pen names or stage names is permitted, provided it is done
in good faith & there is no injury to third persons. Pen names & stage names cannot be
usurped.
Art. 380. Except as provided in the preceding article, no person shall use different names
& surnames.
Pen Names or Stage Names
•
So that a pen name or stage name cannot be usurped, it should be registered
& patented
o Following this, said names cannot be used by others without suffering
damages if sued
TITLE XIV. – ABSENCE
CHAPTER 1: PROVISIONAL MEASURES IN CASE OF ABSENCE
Art 383. In the appointment of a representative, the spouse present shall be preferred
when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent person
may be appointed by the court.
Court Appointment
•
Necessary that the appointment of a representative of an absentee be made by
way of a court order
•
Even the spouse must file an application for appointment with the courts with
respect to the properties of his own absent spouse (in accordance with Art. 142
of the Family Code)
•
Art. 142, FC: Spouse may file a petition to administer the exclusive property of
his spouse when:
1) When one spouse becomes the guardian of the other;
2) When one spouse is judicially declared an absentee;
3) When one spouse is sentenced to a penalty which carries with it
civil interdiction; or
4) When one spouse becomes a fugitive from justice or is hiding as
an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator.
CHAPTER 2: DECLARATION OF ABSENCE
Art. 384. 2 years having elapsed without any news about the absentee or since the
receipt of the last news, & 5 years in case the absentee has left a person in charge of
the administration of his property, his absence may be declared.
Art. 385. The ff. may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to
the condition of his death.
Art. 386. The judicial declaration of absence shall not take effect until 6 months after its
publication in a newspaper of general circulation.
Art. 381. When a person disappears from his domicile, his whereabouts being unknown,
& without leaving an agent to administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under similar circumstances the power conferred
by the absentee has expired.
Judicial Declaration of Absence
•
Necessary for interested persons to protect their rights, interests & benefits in
connection with the person who has disappeared
•
Necessary also to protect the interest of the absentee
Art. 382. The appointment referred to in the preceding article having been made, the
judge shall take the necessary measures to safeguard the rights & interests of the
absentee and shall specify the powers, obligations & remuneration of his representative,
regulating them, according to the circumstances, by the rules concerning guardians.
Spouse
•
Art. 384/385 refers to separate/exclusive property, not community property
o In community property, both spouses are already administrators
•
JD of absence can be a sufficient cause for involuntary JSOP, & also a bsis for
the termination of the ACP/CPG
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•
•
Also a ground for transferring all classes of exclusive properties of a spouse to
his spouse under Art. 142, FC
Basis for termination of parental authority under Art. 229, FC
Testamentary Heirs
•
Can be a neighbor, who is not a relative, who is also in the will
o He can also seek a JD of absence of the testator
Intestate Heirs
•
Intestate heirs include the legitimate & illegitimate relatives of the deceased,
the spouse & the collateral relatives
Interested Party
•
Those who may have a right subordinated to the condition of the absentee’s
death may seek the judicial declaration of absence
•
Example: X, while still present, executed a valid contract with Y stating that, if
he dies in 1994, Y will have the right to repurchase his former house which was
sold to X while X was still present.
o Y has the right to repurchase the former house which was sold to the
absentee when the latter was still present & can now file for a JD of
absence
Effectivity of Judicial Declaration
•
LAST NEWS = COUNT OF ABSENCE
o Count does not start from the effectivity of the judicial decree, but
from the date on which the last news of the absentee was received
•
Judicial declaration of absence shall not take effect until 6 months after its
publication in a newspaper of general circulation
CHAPTER 3: ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE
Art. 387. An administrator of the absentee’s property shall be appointed in accordance
with Art. 383.
Art. 388. The wife who is appointed as an administratrix of the husband’s property
cannot alienate or encumber the husband’s property, or that of the conjugal partnership,
without judicial authority.
Prohibition on Alienation
•
Art. 388 refers to both the husband & the wife
•
Right of spouses to their exclusive properties are respected
•
Art. 111, FC – A spouse may mortgage, encumber, alienate or otherwise
dispose of his exclusive property without the consent of the other spouse &
appear alone in court to litigate with regard to the same
•
Art. 112, FC – Alienation of any exclusive property of a spouse administered by
the other automatically terminates the administration over such property & the
proceeds of the alienation shall be turned over to the owner-spouse
Art. 389. The administration shall cease in any of the ff. cases:
(5) When the absentee appears personally or by means of an agent;
(6) When the death of the absentee is proved & his testate or intestate heirs appear;
(7) When a third person appears, showing by a proper document that he has acquired
the absentee’s property by purchase or other title.
In these cases, the administrator shall cease in the performance of his office, & the
property shall be at the disposal of those who may have a right thereto.
Appearance of Absentee
•
Appearance can be by absentee himself or his agent
•
Agency – where a person binds himself to render some service or to do
something in representation or on behalf of another, with the consent or
authority of the latter
Death
•
•
Upon the death of a person, the executor mentioned in his will is the appointed
administrator of his estate in accordance with his wishes
If he dies without a will, intestate proceedings will be instituted where a new
administrator of his estate will be appointed
Superior Interest
•
An administrator has no right to administer property which does not belong to
the owner
•
If somebody with a valid document shows that the property being administered
really belongs to someone else, the administration of the property will cease
CHAPTER 4: PRESUMPTION OF DEATH
Art. 390. After an absence of 7 years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till
after an absence of 10 years. If he disappeared after the age of 75 years, an absence of
5 years shall be sufficient in order that his succession may be opened.
Art. 391. The following shall be presumed dead for all purposes, including the division of
the estate among the heirs:
(8) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for 4 years since the loss of the vessel or
aeroplane;
(9) A person in the armed forces who has taken part in war, & has been missing for 4
years;
(10) A person who has been in danger of death under other circumstances and his
existence has not been known for 4 years.
Art. 392. If the absentee appears, or without appearing his existence is proved, he shall
recover his property in the condition in which it may be found, and the price of any
property that may have been alienated or the property acquired therewith; but he cannot
claim either fruits or rents.
Absence
•
Means that a person is not at the place of his domicile & his actual residence is
unknown
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o
o
For this reason, his existence is doubtful
HOWEVER, removal is not enough – there must be disappearance
from his domicile & from the knowledge of those with whom he could
naturally communicate
Presumption of Death
•
Except for purposes of remarriage, there is no need to file a case to declare
that one is presumptively dead
o Even a judicial pronouncement is only prima facie & a sign of good
faith; it is still disputable
o Even a judicial declaration cannot reach the stage of finality
No need for court order for Art. 390. There is only a court order needed for remarrying.
Considered dead as of the beginning of the 5 years.
Period
Years
2
5
Event
Since the person was last heard from
Since the person was last heard from, but he left
someone to administer the property
Legal Effect
Judicial
Declaration
of
Absence
in
order
to
administer the property of
the absent person
2
Since the person was last heard from, in a
situation where he could be in danger of death
Since the person was last heard from
Judicial
Declaration
of
Presumptive Death (for
remarriage, Art. 41)
Since the person was last heard from, in a
situation where he could be in danger of death
Since the person was last heard from & he
disappeared after the age of 75 years
He is presumed dead for all
purposes, including the
division of the estate among
the heirs; no need for a
judicial
declaration
of
presumptive death
Since a person was last heard from
He is presumed dead for all
intents & purposes, save for
succession
He is presumed dead & his
succession can be opened
4
4
5
7
10
Missing Person
•
Art. 391 declares situations for missing persons under dangerous
circumstances
•
Art. 391 does not apply to:
o Persons who accidentally fell into the sea while on board a vessel &
consequently drowned because “the vessel was not lost during a sea
voyage”
o A person who cannot be found in a wreckage of a plane, because the
plane is not missing
•
In case Art. 391 is applicable in a situation, it shall be presumed that the
person died at the time he was last heard of & not at the end of the period
CHAPTER 5: EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE
ABSENTEE
Art. 393. Whoever claims a right pertaining to a person whose existence is not
recognized must prove that he was living at the time his existence was necessary in
order to acquire said right.
Proof of Existence
•
If a person is known to be dead & there is a controversy regarding the validity
of a transaction or contract he allegedly entered into, the person claiming
validity must prove that the person was alive when the obligation was incurred
•
If some right exists in favor of a deceased & someone is seeking enforcement,
the latter must prove that the right vested in favor of the deceased while the
latter was still living
•
Example: A validly donated a house to X on January 5 1990 & likewise
promised to give another donation of a specific car to X in the event that X
would still be alive on January 2, 1991.
o On December 25, 1990, X was nowhere to be found.
o The heirs of X can claim that the car already belongs to X after
January 2, 1991 if they can prove X was alive them.
Art. 394. Without prejudice to the provisions of the preceding article, upon the opening of
a succession to which an absentee is called, his share shall accrue to his co-heirs,
unless he has heirs, assignees, or a representative. They shall all, as the case may be,
make an inventory of the property.
Accretion
•
The disposition of the inheritance of an absentee benefits:
o His co-heirs
o His own heirs, assignees or representatives
•
Example: A & B are brothers. They are the only heirs of their father. A has been
judicially declared an absentee.
o Their father dies without a last will & testament, leaving a net estate
worth P 100,000.
o If A were not an absentee, he would have inherited P 50,000.
o His share goes to B, who will therefor inherit the whole estate.
o HOWEVER, if A has kids, the kids will get the P 50,000 which
supposedly belonged to A, through their right of representation.
Art. 395. The provisions of the preceding article are understood to be without prejudice
to the action or petition for inheritance or other rights which are vested in the absentee,
his representatives or successors in interest. This right shall not be extinguished save by
lapse of time fixed for prescription. In the record that is made in the Registry of the real
estate which accrues to the co-heirs, the circumstance of its being subject to the
provisions of this article shall be stated.
Claim
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•
•
•
In the event that the property supposed to be inherited by the absentee
accrues to the co-heirs, the title or record of the said property in the proper
registry of property shall have an annotation stating that, within the prescriptive
period, the property can be subject to claim by any person having an interest in
the said property especially the absentee, or his or her representative or
successors
If absentee reappears, he has the right to file a petition to get his rightful
inheritance from said co-heirs
5-year prescription period applies
Art. 396. Those who may have entered upon the inheritance shall appropriate the fruits
received in good faith so long as the absentee does not appear, or while his
representatives or successors do not bring the proper actions.
Appropriation of Fruits
•
Anyone who obtains the inheritance of the absentee in accordance with law
can make use or appropriate the fruits of the inheritance as long as they are in
good faith
•
If absentee, his representatives or his successors file a claim in court, those
who may have entered upon the inheritance cannot make such appropriation
anymore
TITLE XVI. – CIVIL REGISTRY
Art. 407. Acts, events & judicial decrees concerning the civil status of persons shall be
recorded in the civil registrar.
Art. 408. The ff. shall be entered in the civil registrar:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulment of marriages;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss; or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name. (326a)
Art. 409. In cases of legal separation, adoption, naturalization & other judicial orders
mentioned in the preceding article, it shall be the duty of the clerk of court which issued
the decree to ascertain whether the same has been registered, & if this has not been
done, to send a copy of said decree to the civil registry of the city or municipality where
the court is functioning.
Art. 410. The books making up the civil register & all documents relating thereto shall be
considered public documents & shall be prima facie evidence of the facts therein
contained.
Public Documents
•
Books & documents making up the civil register are considered public
documents
o Open to the public during office hours
•
Documents cannot be removed, except by order of a court, in which case the
proper receipt shall be taken
•
The LCR may issue certified copies of any documents filed, upon payment of
the proper fees required under the law
•
Civil Registry Law does not provide for constructive notice to all persons of any
document filed with the LCR
o Registry of Deeds – considered constructive notice to all persons,
unlike LCR documents
•
Birth records are extremely confidential & cannot be revealed except when
obtained by those interested therein, namely:
1) The person himself, or a person authorized by him
2) His spouse, his parents, his direct descendants or guardian or institution
legally in charge of him if he is a minor
3) The court or proper public official whenever absolutely necessary in
administrative, judicial or other official proceedings to determine the
identity of the child’s parents or other circumstances surrounding his birth
4) In case of the person’s death, his nearest of kin
Prima Facie Evidence
•
Evidence remains sufficient to maintain the fact which it seeks to substantiate
as long as it is unrebutted or uncontradicted
o Created a presumption of fact
o In case of a conflict between a presumption of fact & a presumption
of law, a presumption of law will prevail
•
CASE: Babiera v. Catotal – A legitimate child filed a suit to cancel the birth
certificate of her housemaid’s child, because the certificate said that the
legitimate child’s father & mother were the real parents of the housemaid’s
child.
o SC held that the regularity of the birth certificate was overcome by the
totality of evidence presented during the trial which sufficiently
negated the presumption
Art. 411. Every civil registrar shall be civilly responsible for any unauthorized alteration
made in any civil register, to any person suffering damage thereby. However, the civil
registrar may exempt himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration.
Art. 412. No entry in a civil register shall be changed or corrected, without judicial order.
RA 9048
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•
•
Art. 412 has been amended by RA9048, & the discussion of the text is under
Art. 376
Deals with corrections in the civil registry which involve merely typographical or
clerical errors, just like the concept in Art. 412
Administrative or Judicial Proceeding
•
Except for clerical or typographical errors or change in the name or nickname of
a person, a change in the entries must always pass through judicial order
o Clerical errors in surnames – can be changed without judicial order
o Occupation of parents – can also be changed without judicial order
o For the exceptions, the resolution of the Office of the LCR is
reviewable by the Office of the Civil Registrar General & by the courts
§
Procedure may be summary or adversarial
•
Adversarial – if the changes involve substantial or
controversial matters such as citizenship,
nationality, civil status & filiation
•
For a change which will alter the status of a person (example, from legitimate to
illegitimate filiation), the general rule is that such change cannot be effectuated
through Art. 412.
Rule 108 of the Rules of Court
•
Procedural rules for the cancellation or correction of entries in the civil registry
•
Sec. 1 – Who may file a petition
o Any person interested in any act, order or decree concerning the civil
status of persons which has been recorded in the civil register
•
Sec. 2 – Entries subject to cancellation or correction
o The list provided in Art. 408 may be changed for good & valid grounds
through petition
•
CASE: Republic v. Valencia – A petition for cancellation/correction of entries in
the record of birth if filed & conducted under Rule 108 cannot be described as
“summary”
o In the case, the changes sought in the entries in a record of birth are
the ff.:
1) From “Chinese” to “Filipino”
2) From “legitimate” to “illegitimate”
o SC held that while the case was filed under Art. 412, for clerical &
innocuous errors which may be corrected by way of summary
proceeding, which may be correct by summary proceeding,
substantial errors (as opposed to merely clerical ones) cannot be
corrected under Art. 412; change will be allowed if all the
requirements in Rule 108 are fulfilled because in such a case, the
petition would become adversarial, which is necessary for substantial
changes in entires
Art. 413. All other matters pertaining to the registration of civil status shall be governed
by special laws.
Civil Registrar Law (Act. No. 3753)
•
Provides for the registration of documents evidencing acquisition or
termination of a particular civil status such as legitimation, adoption, change of
name, marriage, termination of such marriage & others
ADDITIONAL INFORMATION AND RELATED SPECIAL LAWS
Laws on Marriage
Marriage Law of 1929
Civil Code of 1950
The Family Code
Effectivity Date
December 4, 1929
August 30, 1950
August 3, 1988
RA 9262: Anti-Violence Against Women and Children Act
Important Provisions
Effectivity Date: March 23 2004
Sec. 3. Definition of Terms. – As used in this Act:
(a) "Violence against women and their children" refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating relationship, or with whom
he has a common child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but
is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a
woman or her child. It includes, but is not limited to:
a) Rape, sexual harassment, acts of lasciviousness, treating a woman or her
child as a sex object, making demeaning & sexually suggestive remarks,
physically attacking the sexual parts of the victim's body, forcing her/him to
watch obscene publications and indecent shows or forcing the woman or
her child to do indecent acts and/or make films thereof, forcing the wife &
mistress/lover to live in the conjugal home or sleep together in the same
room with the abuser;
b) Acts causing or attempting to cause the victim to engage in any sexual
activity by force, threat of force, physical or other harm or threat of physical
or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause
mental or emotional suffering of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule, or humiliation, repeated
verbal abuse and mental infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member of the family to
which the victim belongs, or to witness pornography in any form or to witness
abusive injury to pets or to unlawful or unwanted deprivation of the right to custody
and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:
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1.
Withdrawal of financial support or preventing the victim from engaging in
any legitimate profession, occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid, serious and moral
grounds as defined in Article 73 of the Family Code;
2. Deprivation or threat of deprivation of financial resources and the right to
the use and enjoyment of the conjugal, community or property owned in
common;
3. Destroying household property;
4. Controlling the victims' own money or properties or solely controlling the
conjugal money or properties.
(b) "Battery" refers to an act of inflicting physical harm upon the woman or her child
resulting to the physical and psychological or emotional distress.
(c) "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological
and behavioral symptoms found in women living in battering relationships as a result of
cumulative abuse.
(d) "Stalking" refers to an intentional act committed by a person who, knowingly and
without lawful justification follows the woman or her child or places the woman or her
child under surveillance directly or indirectly or a combination thereof.
(e) "Dating relationship" refers to a situation wherein the parties live as husband and
wife without the benefit of marriage or are romantically involved over time and on a
continuing basis during the course of the relationship. A casual acquaintance or ordinary
socialization between two individuals in a business or social context is not a dating
relationship.
(f) "Sexual relations" refers to a single sexual act which may or may not result in the
bearing of a common child.
(g) "Safe place or shelter" refers to any home or institution maintained or managed by
the Department of Social Welfare and Development (DSWD) or by any other agency or
voluntary organization accredited by the DSWD for the purposes of this Act or any other
suitable place the resident of which is willing temporarily to receive the victim.
(h) "Children" refers to those below 18 years of age or older but are incapable of taking
care of themselves as defined under Republic Act No. 7610. As used in this Act, it
includes the biological children of the victim and other children under her care.
•
Economic abuse
o Withdrawal of financial support or preventing the victim from
engaging in any legitimate profession, occupation, business or
activity, except in cases wherein the other spouse/partner objects on
valid, serious and moral grounds as defined in Article 73 of the Family
Code;
o Deprivation or threat of deprivation of financial resources and the
right to the use and enjoyment of the conjugal, community or property
owned in common;
o Destroying household property;
o Controlling the victims' own money or properties or solely controlling
the conjugal money or properties.
Sec. 4. Construction. – This Act shall be liberally construed to promote the protection
and safety of victims of violence against women and their children.
Class Discussion on Section 3
•
Any person committing an act against any woman he ever dated, slept with or
had children with, including those whom he married, those whom he had
affairs with, etc.
•
Resulted in physical, sexual, psychological, economic harm
•
Harm: includes “mental infidelity,” threats, attempts to limit the woman’s
career
•
Rape, sexual harassment, acts of lasciviousness, treating a woman or her child
as a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch
obscene publications and indecent shows or forcing the woman or her child to
do indecent acts and/or make films thereof, forcing the wife and mistress/lover
to live in the conjugal home or sleep together in the same room with the
abuser;
•
Acts causing or attempting to cause the victim to engage in any sexual activity
by force, threat of force, physical or other harm or threat of physical or other
harm or coercion;
•
Prostituting the woman or child.
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Sec. 5. Acts of Violence Against Women and Their Children. – The crime of violence
against women and their children is committed through any of the following acts:
(a) Causing physical harm to the woman or her child;
(b) Threatening to cause the woman or her child physical harm;
(c) Attempting to cause the woman or her child physical harm;
(d) Placing the woman or her child in fear of imminent physical harm;
(e) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or desist from conduct which
the woman or her child has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by force or threat of force,
physical or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, but not limited to, the following acts
committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:
(1) Threatening to deprive or actually depriving the woman or her child of custody to
her/his family;
(2) Depriving or threatening to deprive the woman or her children of financial support
legally due her or her family, or deliberately providing the woman's children
insufficient financial support;
(3) Depriving or threatening to deprive the woman or her child of a legal right; and
(4) Preventing the woman in engaging in any legitimate profession, occupation,
business or activity or controlling the victim's own mon4ey or properties, or solely
controlling the conjugal or common money, or properties.
(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of
controlling her actions or decisions;
(g) Causing or attempting to cause the woman or her child to engage in any sexual
activity which does not constitute rape, by force or threat of force, physical harm, or
through intimidation directed against the woman or her child or her/his immediate
family;
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,
that alarms or causes substantial emotional or psychological distress to the woman or
her child. This shall include, but not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or her
child;
(3) Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will;
(4) Destroying the property and personal belongings or inflicting harm to animals or
pets of the woman or her child; and
(5) Engaging in any form of harassment or violence.
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and denial
of financial support or custody of minor children of access to the woman's child/children.
Sec. 8. Protection Orders. – A protection order is an order issued under this act for the
purpose of preventing further acts of violence against a woman or her child specified in
Sec. 5 of this Act and granting other necessary relief. The relief granted under a
protection order serves the purpose of safeguarding the victim from further harm,
minimizing any disruption in the victim's daily life, and facilitating the opportunity and
ability of the victim to independently regain control over her life. The provisions of the
protection order shall be enforced by law enforcement agencies. The protection orders
that may be issued under this Act are the barangay protection order (BPO), temporary
protection order (TPO) and permanent protection order (PPO). The protection orders that
may be issued under this Act shall include any, some or all of the following reliefs:
(a) Prohibition of the respondent from threatening to commit or committing, personally or
through another, any of the acts mentioned in Sec. 5 of this Act;
(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or
otherwise communicating with the petitioner, directly or indirectly;
(c) Removal and exclusion of the respondent from the residence of the petitioner,
regardless of ownership of the residence, either temporarily for the purpose of protecting
the petitioner, or permanently where no property rights are violated, and if respondent
must remove personal effects from the residence, the court shall direct a law
enforcement agent to accompany the respondent has gathered his things and escort
respondent from the residence;
(d) Directing the respondent to stay away from petitioner and designated family or
household member at a distance specified by the court, and to stay away from the
residence, school, place of employment, or any specified place frequented by the
petitioner and any designated family or household member;
(e) Directing lawful possession and use by petitioner of an automobile and other
essential personal effects, regardless of ownership, and directing the appropriate law
enforcement officer to accompany the petitioner to the residence of the parties to
ensure that the petitioner is safely restored to the possession of the automobile and
other essential personal effects, or to supervise the petitioner's or respondent's removal
of personal belongings;
(f) Granting a temporary or permanent custody of a child/children to the petitioner;
(g) Directing the respondent to provide support to the woman and/or her child if entitled
to legal support. Notwithstanding other laws to the contrary, the court shall order an
appropriate percentage of the income or salary of the respondent to be withheld
regularly by the respondent's employer for the same to be automatically remitted directly
to the woman. Failure to remit and/or withhold or any delay in the remittance of support
to the woman and/or her child without justifiable cause shall render the respondent or
his employer liable for indirect contempt of court;
(h) Prohibition of the respondent from any use or possession of any firearm or deadly
weapon and order him to surrender the same to the court for appropriate disposition by
the court, including revocation of license and disqualification to apply for any license to
use or possess a firearm. If the offender is a law enforcement agent, the court shall
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order the offender to surrender his firearm and shall direct the appropriate authority to
investigate on the offender and take appropriate action on matter;
(i) Restitution for actual damages caused by the violence inflicted, including, but not
limited to, property damage, medical expenses, childcare expenses and loss of income;
(j) Directing the DSWD or any appropriate agency to provide petitioner may need; and
(k) Provision of such other forms of relief as the court deems necessary to protect and
provide for the safety of the petitioner and any designated family or household member,
provided petitioner and any designated family or household member consents to such
relief.
Any of the reliefs provided under this Sec. shall be granted even in the absence of a
decree of legal separation or annulment or declaration of absolute nullity of marriage.
The issuance of a BPO or the pendency of an application for BPO shall not preclude a
petitioner from applying for, or the court from granting a TPO or PPO.
Class Discussion
Protection order can force perpetrator to:
•
Surrender firearms
•
Never enter the house where woman resides, regardless of who between the two
of them owns it
•
Lose custody of their children
•
Payment of damages
•
Being disallowed to threaten people
•
Decrees here shall be granted even without a judicial decree of legal separation,
nullity or annulment
Sec. 9. Who may file Petition for Protection Orders. – A petition for protection order may
be filed by any of the following:
(a) The offended party;
(b) Parents or guardians of the offended party;
(c) Ascendants, descendants or collateral relatives within the fourth civil degree of
consanguinity or affinity;
(d) Officers or social workers of the DSWD or social workers of local government units
(LGUs);
(e) Police officers, preferably those in charge of women and children's desks; (f) Punong
Barangay or Barangay Kagawad;
(g) Lawyer, counselor, therapist or healthcare provider of the petitioner;
•
•
Police, barangay captain, lawyer
2 concerned responsible citizens in municipality where women and kids live
Sec. 11. How to Apply for a Protection Order. – The application for a protection order
must be in writing, signed and verified under oath by the applicant. It may be filed as an
independent action or as incidental relief in any civil or criminal case the subject matter
or issues thereof partakes of a violence as described in this Act. A standard protection
order application form, written in English with translation to the major local languages,
shall be made available to facilitate applications for protections order, and shall contain,
among other, the following information:
(a) names and addresses of petitioner and respondent;
(b) description of relationships between petitioner and respondent;
(c) a statement of the circumstances of the abuse;
(d) description of the reliefs requested by petitioner as specified in Sec. 8 herein;
(e) request for counsel and reasons for such;
(f) request for waiver of application fees until hearing; and
(g) an attestation that there is no pending application for a protection order in
another court.
If the applicant is not the victim, the application must be accompanied by an affidavit of
the applicant attesting to (a) the circumstances of the abuse suffered by the victim and
(b) the circumstances of consent given by the victim for the filling of the application.
When disclosure of the address of the victim will pose danger to her life, it shall be so
stated in the application. In such a case, the applicant shall attest that the victim is
residing in the municipality or city over which court has territorial jurisdiction, and shall
provide a mailing address for purpose of service processing. An application for
protection order filed with a court shall be considered an application for both a TPO and
PPO.
Barangay officials and court personnel shall assist applicants in the preparation of the
application. Law enforcement agents shall also extend assistance in the application for
protection orders in cases brought to their attention.
Sec. 19. Legal Separation Cases. – In cases of legal separation, where violence as
specified in this Act is alleged, Article 58 of the Family Code shall not apply. The court
shall proceed on the main case and other incidents of the case as soon as possible. The
hearing on any application for a protection order filed by the petitioner must be
conducted within the mandatory period specified in this Act.
(h) At least 2 concerned responsible citizens of the city or municipality where the
violence against women and their children occurred and who has personal knowledge of
the offense committed.
Class Discussion: Who can file for the protection order?
•
Offended party, parents of party, ascendants, descendants, relatives by
consanguinity
•
Workers of DSWD
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